Specpro-lecture-gito.pdf

Rule 91, Escheats Escheat is a proceeding whereby the state, by virtue of its sovereignty, steps in and claims the real or personal property of a person who dies intestate leaving no heir. (Republic vs. Court of Appeals, and Solano, G.R. No. 143483, January 31, 2002). Requisites for Escheat • That the person died intestate • That he left no heirs or persons entitled by law to the estate • That deceased left properties Section 1, Rule 91 3 Kinds of Escheat • Under Section 1, Rule 91 • Under Section 5, id., - reversion of property alienated in violation of the constitution or law • Under Act no. 3936 – unclaimed balances in the bank Where to file? • RTC of the last residence of the deceased, in case of resident of the Philippines • RTC of the place of his estate in case of non-residence Who may file the petition? • It must be initiated by the OSG. • All interested parties, such as actual occupants and the adjacent owners shall be personally notified of the proceedings and given the opportunity to present their valid claims. (Tan vs. City of Davao, Sept. 26, 1988) • “Interested party” is any person alleging to have a direct or interest in the property sought to be escheated. (Republic vs. Court of Appeals, and Solano, G.R. No. 143483, January 31, 2002) Procedural Flow

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! May the court declare a person presumptively dead in an escheat proceeding? YES. The Court of Appeals did not err in affirming the trial court's ruling that Dominga Garcia and her heirs may be presumed dead in the escheat proceedings as they are, in effect, proceedings to settle her estate. Indeed, while a petition instituted for the sole purpose of securing a judicial declaration that a person is presumptively dead cannot be entertained if that were the only question or matter involved in the case, the courts are not barred from declaring an absentee presumptively dead as an incident of, or in connection with, an action or proceeding for the settlement of the intestate estate of such absentee. (Vicente Tan vs. City of Davao, September 29, 1988) Deceased A’s property was escheated by the State. Within five (5) years from the date of judgment, an heir appeared. 1. What is the remedy of this heir? 2. What will be the effect of his appearance? Sec. 4, Rule 91 If a devisee, legatee, heir, widow, widower or other person entitled to such estate appears and files a claim thereto with the court within five (5) years from the date of such judgment, such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable to him for the proceeds, after deducting reasonable charges for the care of the estate; but a claim not made within said time shall be forever barred. Sec. 7, Article XII Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations or associations qualified to acquire or hold land of public domain. Sec. 5, Rule 91 !2

Until otherwise provided by law, actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be governed by this rule, except that the action shall be instituted in the province where the land lies in whole or in part. Escheat under RA 3936 Who shall file?

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Solicitor General

Under whose name the petitioner shall be filed?

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Under the name of People of the Philippines

Where to file?

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RTC of the place where the bank is located

Who shall be join as parties?

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Bank, creditor and depositor

Rule 92-97
 GUARDIANSHIP Concept It is a trust relation in which one person called a “guardian” acts for another called “ward” whom the law regards as incapable of managing his own affairs. Purpose To safeguard the rights and interests of minor and incompetent persons such that the Courts should be vigilant to see that the rights of such persons are properly protected. Kinds of Guardian • Legal Guardian • Guardian Ad Litem • Judicial Guardian Rules Governing Guardianship Incompetents

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Rules of Court, Rule 92 to Rule 97

Minors

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A.M. No. 03-02-05-SC, May 1, 2003 – Rule on Guardianship of Minor

Guardianship of Incompetents Who are incompetents? • Persons suffering the penalty of civil interdiction • Hospitalized lepers !3

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Prodigals Deaf and dumb who are unable to read and write, Those who are of unsound mind, even though they have lucid intervals Persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation (Sec. 2, Rule 92)

Venue and Jurisdiction • Regional Trial Court of the place where the wards resides. • Where the ward is NOT A RESIDENT of the Philippines, the RTC of the place where his property is situated. Who may petition for appointment of guardian for resident? 1. Any relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or 2. The minor himself if fourteen years of age or over, may petition the court having jurisdiction for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent. 3. An officer of the Federal Administration of the United States in the Philippines may also file a petition in favor of a ward thereof, and the 4. Director of Health, in favor of an insane person who should be hospitalized, or in favor of an isolated leper. (Sec. 1, Rule 93) Who may petition for appointment of guardian for non- resident? 1. Any relative or 2. friend of such person, or 3. any one interested in his estate, in expectancy or otherwise, may petition a court having jurisdiction for the appointment of a guardian for the estate, and if, after notice given to such person and in such manner as the court deems proper, by publication or otherwise, and hearing, the court is satisfied that such non-resident is a minor or incompetent rendering a guardian necessary or convenient, it may appoint a guardian for such estate. (Sec. 6, Rule 93) Contents of the Petition 1. Jurisdictional facts 2. Fact of incompetency 3. Names, ages and residences of the relatives of incompetents, or person having the care of incompetent 4. Probable value or character his estate 5. Name of the person for whom letter of guardianship are prayed for Sec. 2, Rule 93 Procedure 1. Court shall set time for hearing and will issue !4

notice. (Sec. 3, Rule 93)

2. 3. 4.

Interested party may file an opposition (Sec. 4) Hearing on the merits (Sec. 5) Issuance of letters guardianship. (Sec. 5)

Bond of Guardian 1. Bond to be given before the letters of guardianship is issued (Sec. 1, Rule 94) 2. Bond is subject to the following conditions: • To make and return inventory of property within three (3) months • To faithfully execute the duties of his trust • To render true and just account Selling and Encumbering the Property of the Ward • The property of the ward can only be sold or encumbered upon petition to be filed by the guardian in the Court which issued letters of guardianship. • The sale or encumbrance must be for the benefit of the ward which benefit must be shown to the Court (Sec. 1, Rule 95)

Procedure • A Petition should be filed by the guardian (Sec. 1, Rule 95) • Court shall issue an order directing the next of kin of the ward, or all person interested in the state of the ward to appear on the day and time set by the Court (Sec. 2, Rule 95) • The petitioner and next of kin or any other interested person will be heard (Sec. 3, Rule 95) • The Court will either grant or deny the petition (Sec. 4, Rule 95) Powers and Duties of Guardians • Basic obligation of the guardian is to have care and custody of the person of his ward, and the management of his estate. (Sec. 1, Rule 96) • Pay the debts of the ward (Sec. 2, Rule 96) • Settle accounts, collect debts, and prosecute and defend suit for the ward (Sec. 3, Rule 96) • To manage the estate frugally (Sec. 4, Rule 96) • To make inventory and accounting (Sec. 6, Rule 96) • Termination of Guardianship • When the person is no longer incompetent (Sec. 1, Rule 97) • When the guardian is removed or resigned (Sec. 2, Rule 97) Grounds for removal: • Insanity • Incapable of discharging his trust or unsuitable therefore • Mismanagement !5

Guardianship of Minor
 (A.M. 03-02-05-SC) • The Rule is applicable to petitioner for guardianship of the person or property of the minor (Sec. 1) • Parents are the legal guardians of the minor without necessity of court appointment (Sec. 1) • But: they have to file bond in accordance with Sec. 16. Who between the mother and paternal grandmother should be the guardian of the minor? • It is the mother pursuant to Article 211 of the FC (Vancil vs. Belmes, June 19, 2001) Who may file the Petition? 1. Relative 2. Other person on behalf of the minor 3. Minor, himself, if fourteen (14) years or over. 4. DSWD or DOH for insane minor who needs to be hospitalized. Section 2. Venue and Jurisdiction • Family Court of the province or city where the minor resides • If the minor resides in foreign country, in the Family Court of the province or city where his property is located. Section 3. Grounds 1. Death, continued absence, or incapacity of his parents; 2. Suspension, deprivation or termination of parental authority; 3. Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; or 4. When the best interests of the minor so require. Qualifications 1. Moral character; 2. Physical, mental and psychological condition; 3. Financial status; 4. Relationship of trust with the minor; 5. Availability to exercise the powers and duties of a guardian for the full period of the guardianship; 6. Lack of conflict of interest with the minor; and 7. Ability to manage the property of the minor. (Section 5) Who may be appointed in the absence of parents or court appointed guardian 1. Surviving grandparents; !6

2. Oldest brother or sister of minor over 21 years old; 3. Actual custodian of minor over 21 years old; 4. Relationship of trust with the minor; 5. Any other person in sound discretion of the court taking into account the best interest of the child (Section 6) Procedure • Filing of Petition (Sec. 7) • Setting of time and notice of hearing through the Court’s Order (Sec. 8) • Order case study Report (Sec. 9) • Opposition to petition (Sec 10) • Hearing of Petition and Opposition (Sec. 11) • Filing of bond (Sec. 14) • Decision (Sec. 11) • Final Decision shall be sent to LCR and RD (Sec. 13) • If non-resident, petition may be filed with any relative or friend or any person interested in the estate (Sec. 12) • Grounds for Removal • Guardian became insane • Incapable of discharging his trust • Unsuitable to discharge his trust • Mismanaged the property • Failed to render an account (Section 24) Grounds for Termination • Ward is of legal age already • Death of the ward Motu propio or verified motion (Section 24)

ADOPTION Concept of Adoption • The process of making a child, whether related or not to the adopted, possess in general, the rights accorded to a legitimate child. • It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. • It is also an acts which endows the child with a legitimate status. (In the matter of the adoption of Stephanie Nathy Astorga Garcia, March 26, 2005) • The relationship established by the adoption is limited to the adopting parent, and does not extend to his other relatives, except as expressly provided by law. !7

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Thus, the adopted child cannot be considered as a relative of the ascendants and collateral of the adopting parents, nor the legitimate children which they may have after the adoption. (Teotico vs. Del Val, G.R. No. L-18753, March 6, 1965)

Nature of Adoption In an adoption which involves the status of the person, there is no particular defendant to speak of since the action is an action in rem. In such a case, jurisprudence over the person of the defendant is a non-essential condition for the taking of deposition for the jurisdiction of the court is based on its power over the res, to render judgment over the thing so as to bar indifferently all who might be minded to make an objection against the right so established. (Republic vs. Elepano, October 15, 1991) Purpose of Adoption • The adoption is for the benefit of the child to be adopted, not so much on the adopter. • Under the law now in force, having legitimate, legitimated, acknowledged natural child or children by legal fiction is no longer a ground for disqualification to adopt. Status of Rules 99 and 100 • It is already amended by A.M. No. 02-6-02-SC. • It took effect on May 1, 2002. It covers both domestic and inter-country adoption. • The rule on adoption authorizes the inclusion, in the petition for adoption, a petition for change of name or rectification of simulated birth, in which case, the requirement of Rule 108 should be complied with. Rule on Adoption
 (A.M. No. 02-6-02-SC) The paramount consideration in all matters relating to the care, custody and adoption of the child is the best interest of the child. Section 2 Filipino who may adopt • Filipino citizen • Of legal age • In possession of full legal capacity and legal rights • Of good moral character • Not convicted of crime involving moral turpitude • Emotionally and psychologically capable of caring for children • At least 16 years older than the adoptee • In position to support and care for his children in keeping with the means of the family. Section 4(2) Exception to 16 years older requirement • When the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent. !8

Alien who may adopt • Same qualification as Filipino • Alien’s country has diplomatic relation with the Philippines • Living continuously in the Philippines for three (3) years prior to the filing of petition • Maintain residence until the decree is entered • Legal capacity to adopt in his country • His country allows the adoptee to enter his country. Section 4(2). Exception on residency and certification requirement • Former Filipino citizens who seeks to adopt a relative within the 4th civil degree • One who seeks to adopt the legitimate child of his Filipino spouse • One who is married to a Filipino and seeks to adopt jointly with his spouse a relative 4th degree of the Filipino spouse. Section 4(2) General Rule: Spouses jointly adopt: Exceptions: • If one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or • If one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or • If the spouses are legally separated from each other Section 4(3)

Monina is married to Primo. They were childless. Two children of unknown parents were given to them. They had the two children registered with OCR with them as their parents. Thus, the two children were using their surnames as their surnames in all transactions involving them. Primo died and Monina remarried. Monina decided to adopt the two children who were all of age. The husband of Monina consented and the two children likewise consented. Should the Petition be granted? NO. Under the law, husband and wife shall jointly adopt. At the time of the filing of adoption, Monina has already remarried. Thus, her husband should be co-petitioner in the Petition for adoption. The case of Monina does not fall within the exeption. (In re: Petition for Adoption of Michelle P. Lim, May 21, 2009)

Who may be adopted?
 (Section 5) 1. Any person below eighteen (18) years of age who has been voluntarily committed to the Department under Articles 154, 155 and 156 of P.D. No. 603 or judicially declared available for adoption; 2. The legitimate child of one spouse, by the other spouse; !9

3. An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy; 4. A person of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as their own child since minority; 5. A child whose adoption has been previously rescinded; 6. A child whose biological or adoptive parents have died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parents. 7. A child not otherwise disqualified by law or these rules. Venue (Section 6) • The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside. Contents of Petition
 (Section 7) • The petition shall be verified and specifically state at the heading of the initiatory pleading whether the petition contains an application for change of name, rectification of simulated birth, voluntary or involuntary commitment of children, or declaration of child as abandoned, dependent or neglected. Contents of Petition
 (Filipino adopter) 1. Jurisdictional facts 2. That the petitioner is of legal age, in possession of full civil capacity and legal rights; is of good moral character; has not been convicted of any crime involving moral turpitude; is emotionally and psychologically capable of caring for children; is at east sixteen (16) years older than the adoptee, unless the adopter is the biological parent of the adoptee or is the spouse of the adoptee's parent; and is in a position to support and care for his children in keeping with the means of the family and has undergone pre-adoption services as required by Section 4 of Republic Act No. 8552. Contents of Petition
 (Alien adopter) 1. Jurisdictional facts 2. Qualification of adopter (Sec. 7[b]) 3. Diplomatic relations 4. Certification of capacity to adopt and for adoptee to enter country 5. Residency requirement of 3 years, subject of exemption Contents of Petition
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In addition to the jurisdictional facts and qualifications of adopter, the fact of termination of guardianship shall be alleged and that the adopter has been cleared of his responsibilities as such.

If the adopter is married, the spouse shall be a co-petitioner for joint adoption except if: a) One spouse seeks to adopt the legitimate child of the other, or b) If one spouse seeks to adopt his own illegitimate child and the other spouse signified written consent thereto, or c) If the spouses are legally separated from each other. If the adoptee is a foundling, the petition shall allege the entries which should appear in his birth certificate, such as name of child, date of birth, place of birth, if known; sex, name and citizenship of adoptive mother and father, and the date and place of their marriage. If the petition prays for a change of name, it shall also state the cause or reason for the change of name. In all petitions, it shall be alleged: a) The first name, surname or names, age and residence of the adoptee as shown by his record of birth, baptismal or foundling certificate and school records. b) That the adoptee is not disqualified by law to be adopted c) The probable value and character of the estate of the adoptee. d) The first name, surname or names by which the adoptee is to be known and registered in the Civil Registry. If the petition seeks rectification of simulation of birth a) Petitioner is applying for rectification of a simulated birth; b) The simulation of birth was made prior to the date of effectivity of Republic Act No. 8552 and the application for rectification of the birth registration and the petition for adoption were filed within five years from said date; c) The petitioner made the simulation of birth for the best interests of the adoptee; and d) The adoptee has been consistently considered and treated by petitioner as his own child. (Section 8) If the petition seeks adoption of foundling, abandoned, neglected child a) The facts showing that the child is a foundling, abandoned, dependent or neglected; b) The names of the parents, if known, and their residence. If the child has no known or living parents, then the name and residence of the guardian, if any; c) The name of the duly licensed child-placement agency or individual under whose care the child is in custody; and d) That the Department, child-placement or child-caring agency is authorized to give its consent. (Section 9) !11

If the petition is accompanied with a change of name a) The registered name of the child; b) Aliases or other names by which the child has been known; and c) The full name by which the child is to be known. (Section 10) Annexes to Petition
 (Section 11) 1. Birth, baptismal or foundling certificate, as the case may be, and school records showing the name, age and residence of the adoptee; 2. Affidavit of consent; 3. Child study report on the adoptee and his biological parents; 4. If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in his country and that his government allows the adoptee to enter his country as his own adopted child unless exempted under Section 4(2); 5. Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; 6. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any. 7. Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; 8. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any. Procedure 1. Filing of Petition 2. Order of Hearing (Sec. 12) • Date and place of hearing which shall be six (6) months from the issuance of order. • Publication of the order once a week for three weeks. • If with change of name, not within four (4) months after the last publication or within 30 days from publication. • Order to social worker to submit child and home study and conduct counseling session • If with change of change of name, notice to OSG is mandatory, if not, through prosecutor, DSWD and biological parent. 3. Hearing (Sec. 14) 4. Supervised trial custody (Sec. 15) 5. Decree of adoption (Sec. 16) Whose consent is needed? 1. The adoptee, if ten (10) years of age or over; !12

2. The biological parents of the child, if known, or the legal guardian, or the childplacement agency, child-caring agency, or the proper government instrumentality which has legal custody of the child; 3. The legitimate and adopted children of the adopter and of the adoptee, if any, who are ten (10) years of age or over; 4. The illegitimate children of the adopter living with him who are ten (10) years of age or over; and 5. The spouse, if any, of the adopter or adoptee. Materiality of Consent • Written consent of biological parent is indispensable to the validity of the decree of adoption. • But, if the child is abandoned, written consent of the biological parents are not needed, even if they are known (Cang vs. Court of Appeals, September 25, 1998) • Where a spouses seeks to adopt his or her own illegitimate child, joint adoption is not necessary. But, a spouse seeking to adopt his illegitimate child must fist obtain consent of his or her spouse, even if they are separated (Castro vs. Gregorio, October 15, 2014) Hearing • SECTION 14. Hearing. — Upon satisfactory proof that the order of hearing has been published and jurisdictional requirements have been complied with, the court shall proceed to hear the petition. The petitioner and the adoptee must personally appear and the former must testify before the presiding judge of the court on the date set for hearing. • The court shall verify from the social worker and determine whether the biological parent has been properly counseled against making hasty decisions caused by strain or anxiety to give up the child; ensure that all measures to strengthen the family have been exhausted; and ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest.

Flowchart of Domestic Adoption

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! Effects of Adoption • Sever legal ties between the adopted and his or her biological parents, except if the adopter is the biological parent of the adopted; • Adoptee is the legitimate child of the adopter; • Giving the adoptee the rights and obligation arising from the relationship of parent and child; • The adopting parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled such as support and successional rights Can the adopted child use the surname of his biological mother, as his middle name? YES. There is no law regulating the use of middle name. Even Article 176 of the Family Code, as amended by R.A. No. 9255, otherwise known as “An Act Allowing Illegitimate Children to Use the Surname of Their Father,” is silent as to what middle name a child may use. (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, March 31, 2005) Rescission of Adoption
 (Section 19) Who may file? 1. Adopted who is 18 years or above 2. Minor adopted child with the assistance of DSWD 3. Legal guardian or counsel if the adopted is over 18 and incapacitated

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May the adopter rescind the decree of adoption? NO. Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code. (Section 19) (Lahom vs. Sibulo, July 14, 2003) Grounds • Repeated physical and verbal maltreatment by the adopter despite having undergone counseling • Attempt on the life of the adoptee • Sexual assault or violence • Abandonment or failure to comply with parental obligations (Section 19) Venue SECTION 20 • The petition shall be filed with the Family Court of the city or province where the adoptee resides. Time to file Petition • The adoptee, if incapacitated, must file the petition for rescission or revocation of adoption within five (5) years after he reaches the age of majority, or if he was incompetent at the time of the adoption, within five (5) years after recovery from such incompetency. Order to Answer • The court shall issue an order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof. The order and copy of the petition shall be served on the adverse party in such manner as the court may direct.

Rule 105
 JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILD Application of Rule 105 There are voluntary recognitions which need no judicial approval. This is provided in Article 172 of the Family Code. These are recognition made in any of the following: • Record of birth • Final Judgment • Admission in public instrument • Private hand written instrument signed by the parent concerned Thus, Rule 105 is only applicable to those voluntary recognition which is not covered by Article 172. These are: !15

• Open and continuous possession of a legitimate child • Or any other means allowed by the Rules of Court and special laws. (Gono-Javier vs. Court of Appeals, December 29, 1994.) • Rule 105 presupposes that there is voluntary recognition. • When the child is not recognized, an action to claim legitimacy (Art. 173, FC) or illegitimacy (Art. 175, FC) is the proper remedy. • In case of action to claim legitimacy it may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. (Art. 173, FC) • In an action to claim illegitimacy, it must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent (Art. 175, FC). Uyguanco vs. Court of Appeals, October 26, 1989 •

If the ground to establish a filiation 1) continuous possession of illegitimacy; 2) other means allowed by the Rules of Court or Special Laws, it must be brought within the lifetime of the alleged parent.

Venue and Jurisdiction • In the Family Court of the province or city where the child resides. • R.A. 8369, Section 5 (e) – “Petitions for support and/or acknowledgment” Contents of Petition
 (Section 2) a) The jurisdictional facts; b) The names and residences of the parents who acknowledged the child, or of either of them, and their compulsory heirs, and the person or persons with whom the child lives; c) The fact that the recognition made by the parent or parents took place in a statement before a court of record or in an authentic writing, copy of the statement or writing being attached to the petition. Flowchart of Voluntary Recognition

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! Rule 106
 Constitution of Family Home Rule 106 is rendered unnecessary by the Family Code Under Article 152 and 153 of the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. Indeed, there is no need to constitute the same judicially or extra-judicially as required in Civil Code. If the family actually resides in the premises, it is, therefore, a family home contemplated by law. Article 152 of FC The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. Article 153 of FC The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law.

Rule 102
 Habeas Corpus To what Habeas Corpus extends • All cases of illegal confinement and detention • Deprivation of liberty • Rightful custody of the person is withheld from the person entitled thereto (Sec. 1) Purpose • The ultimate purpose of the writ of habeas corpus is to relieve a person from unlawful restraint. The writ exists as a speedy and effectual remedy to relieve a person from !17

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unlawful restraint and as an effective defense of personal freedom. (Adonis vs. Tesoro, June 5, 2013) Specifically, the writ is availed of to: 1) obtain immediate relief from illegal confinement; 2) liberate those who may be imprisoned without sufficient cause; 3) deliver from unlawful custody. It is then essentially a writ of inquiry and is granted to test the right under which a person is detained. (Velasco vs. CA, July 7, 1995)

May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss? No. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. (Ilusorio vs. Bildner, May 12, 2000) (Ampatuan vs. Macaraig, June 29, 2010) • Ampatuan was arrested for allegedly killing Atty. Dalaig of Comelec. He was subjected to an inquest proceedings. In the meantime, a case for grave misconduct was filed against him. Ampatuan was ordered to be under restrictive custody by the PNP Chief. • Subsequently, the inquest prosecutor recommended that Ampatuan be released for further investigation. However, he was not eventually released because he under restrictive custody. Hence, he filed a petition for habeas corpus. • DENIED • Under the law (RA. 6975, as amended by RA 8551), police officers may be subjected to restrictive custody. Who may grant the writ?

! Requisites for the Application 1. That the person in whose behalf the application is made is imprisoned or restrained on 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; !18

3. The place where he is so imprisoned or restrained, if known; 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. 5. Petition must be verified (Section 3, Rule 102) Action of the Court or judge upon receipt of petition • If the Judge determines that that writ should be issued, it shall issue an order directing the clerk of court to issue the writ. • In case of emergency, the judge may issue the writ by his own hand (Section 5, Rule 102)

To whom “writ” is directed? Section 6, Rule 102 Officer

The writ shall command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified.

Non-officer

The writ shall command the officer to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified.

What is the obligation of the officer to whom the writ of directed? • The officer shall bring the body of the person for whom the writ was issued to the court on the day and time specified in the writ. Section 7, Rule 102 The person to whom the writ is directed must make a RETURN: • Whether he has or has not the party in his custody or power, or under restraint • If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held. • If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge. • 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.

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When writ may be not allowed: (Section 4, Rule 102) • If the person is under custody of an officer based on the following:

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It shall not issued if there is showing that:

Under process issued by the court or judge By virtue of judgment or order of the court of record Court has jurisdiction to issue the process Person is charged Convicted of an offense Suffering imprisonment under lawful judgment

RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. No. 03-04-04-SC) Applicability This rule shall apply to petitions for custody of minors and writs of habeas corpus in relation thereto. (Section 1) Where to file? • The petition for custody of minors shall be filed with the Family Court of the province or city where the petitioner resides or • where the minor may be found. (Section 2) Contents of Verified Petition • The personal circumstances of the petitioner and of the respondent; • The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent; • The material operative facts constituting deprivation of custody; and • Such other matters which are relevant to the custody of the minor. (Section 3) Procedural Flow

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! What is the effect of failure to appeal at pre-trial? Section 11 • Petitioner fails to appear – DISMISSED • Respondent fails to appear - Ex-parte presentation of evidence May a provisional order awarding custody be issued while the case is being heard? • After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. (Section 13) What are the order of preference in the provisional award? • Both parents jointly • Either parent • The grandparent • The eldest brother or sister over twenty-one years of age • The actual custodian • Any other person or institution (Section 13) May a HDO be issued to prevent the child from leaving the country? • Yes. The minor child subject of the petition shall not be brought out of the country without prior order from the court while the petition is pending. (Section 16) May a TPO be issued in custody cases? • Yes. Under Section 17 Petition for Writ of Habeas Corpus of Minor • A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs. !21

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However, the petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. The petition may also be filed with the appropriate regular courts in places where there are no Family Courts. The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. Upon return of the writ, the court shall decide the issue on custody of minors. The appellate court, or the member thereof, issuing the writ shall be furnished a copy of the decision.

Does the SC, CA have jurisdiction to entertain PWHC involving minors? • Thornton vs. Thornton, G.R. No. 154598, August 16, 2004 • Madrinan vs. Madrinan, G.R. No. 159374, July 12, 2007 • The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. Upon return of the writ, the court shall decide the issue on custody of minors. The appellate court, or the member thereof, issuing the writ shall be furnished a copy of the decision. Section 20, A.M. No. 03-04-04-SC
 Habeas Corpus What is the coverage of the writ of habeas corpus? • Deprivation of liberty • Deprivation of the rightful custody of any person from the person entitled thereto Writ may be availed of under exceptional circumstances: • There has been a deprivation of a constitutional right resulting in the restraint of a person • The court has no jurisdiction to impose the sentence • Imposed penalty has been excessive as to such excess (Go vs. Dimagiba, June 21, 2005) Who may grant the writ? 1. Supreme Court (Section 5, Article VIII, 1987 Constitution) a. Or any member thereof (Sec. 2, Rule 102) b. Writ issued by SC is enforceable anywhere in the Philippines, (id.) !22

c. Returnable before the SC, or any member thereof, or before the CA or any member thereof, or the RTC or any Judge thereof. (id.) 2. Court of Appeals (Section 9, B.P. 129) a. Or any member thereof, (Sec. 2, Rule 102) b. Writ issued by CA is enforceable anywhere in the Philippines, (id.) c. Returnable before the CA or any member thereof, or the RTC or any Judge thereof. (id.) 3. Regional Trial Court (Section 21, B.P. 129) a. Or any judge thereof thereof (Sec. 2, Rule 102) b. Writ issued by RTC is enforceable within its judicial region, (id.) c. Returnable before the judge thereof, (id.) 4. Sandiganbayan (Section 4 (c), par. 4, R.A. 8049) a. The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: b. Provided, that the jurisdiction over these petitions shall not be exclusive of the Supreme Court. Who may file the Petition? (Section 3, Rule 102) • By a party for whose relief it is intended • By some person on behalf of the person in whose behalf the petition is filed

What are the form and contents of the Petition? • The petition must be signed and verified by a party for whose relief it is intended or some person on behalf of the person in whose behalf the petition is filed. • Must contain the following: c. That the person in whose behalf the application is made is imprisoned or restrained d. The officer or name of the person by whom he is imprisoned or restrained. e. The place where he is so imprisoned or restrained, if known f. Copy of the commitment or cause of detention of such person, if it can it be procured without impairing the efficiency of the remedy or, if the imprisonment or restraint is without legal authority, such fact must be shown. (Section 3, Rule 102) OCA vs. Judge Perello, A.M. No. RTJ-05-1952, December 24, 2008

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A judge cannot grant a writ of habeas corpus without the pertinent copies of detention and judgment of conviction. To do so would be contrary to the provision of Section 3(d), Rule 102.

Instances where the writ are not allowed 1. If the person is under custody by virtue of the process issued by the court or judge 2. By virtue of a judgment or order of a court of record which has jurisdiction to issue the process, render judgment or make order; 3. If the person is charged; 4. If the person is convicted; 5. If the person is suffering imprisonment under lawful judgment. (Section 4, Rule 102) Reason • Under Section 1, Rule 102, the writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. • The remedy has one objective: to inquire into the cause of detention of a person, and if found illegal, the court orders the release of the detainee. If, however, the detention is proven lawful, the habeas corpus proceedings terminates (In the matter of Petition for Habeas Corpus of Kunting, April 19, 2006). Problem 1 Carla filed a complaint before the police station for rape against Louie allegedly committed three (3) months ago. Louie was invited for questioning in the police station regarding the complaint filed by Carla, to which Louie acceded. However, instead of being just questioned, Louie was detained. Louie protested the arrest. Consequently, through his lawyer, Louie filed a Petition for Writ of Habeas Corpus before the Regional Trial Court against the police officers who detained him. Meanwhile, an Information for rape was filed against Louie. Thus, the Court where the case was raffled issued a commitment order to transfer the custody of the accused from the police station to the BJMP. With this development, would it be proper for the Court to grant the Petitioner for Writ of Habeas Corpus? No. It is not proper for the Court to grant the Petition for Writ of Habeas Corpus. Section 4, Rule 102 provides for the instances where the writ shall not be allowed. One of which is when the person is under custody by virtue of the process issued by the court or judge. In this case, the Louie is under custody because of the case filed against him in court and the commitment order issued by the same court. Thus, there is legal ground to detain Louie. "The filing of charges, and the issuance of the corresponding warrant of arrest, against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect.“ (Sanchez vs. Demetriou, 227 SCRA 627 [1993]).

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Problem 2 Atty. Dalaig, head of the legal department of Comelec was killed. PO1 Ampatuan was identified as the perpetrator. Accordingly, he was arrested and subjected to an inquest proceedings. Meanwhile, an administrative case for grave misconduct was filed against PO1 Ampatuan. The Chief PNP, on account of the administrative complaint filed against him, subjected PO1 Ampatuan to a restrictive custody. Meanwhile, the Prosecutor’s Office recommended further investigation on the criminal case filed against PO1 Ampatuan and ordered his release. He was not released by the PNP. Will writ of habeas corpus lie? No. The Writ of Habeas Corpus will not lie. The restrictive custody of PO1 Ampatuan is valid and in accordance with law. Restrictive custody of the members of the PNP facing administrative charges may be placed under restrictive custody under RA 6975 as amended by RA 8551. Therefore, the confinement of PO1 Ampatuan is by virtue of the authority of the law. (Ampatuan vs. Macaraig, G.R. No. 142497, June 29, 2010)

Velasco vs. CA, 245 SCRA 677 • Even granting that a person was illegally arrested, still the petition for a writ of habeas corpus will not prosper because his detention has become legal by virtue of the filing before the trial court of the complaint against him and by the issuance of the order denying the accused’s motion to dismiss or grant bail and granting the motion of the prosecution for the issuance of a hold departure order. The order qualifies as a process within the meaning of Section 4, Rule 102. What happen if the petition is sufficient in form and substance? SECTION 5. When the Writ Must Be Granted and Issued. — A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it. Duty to make a “return” SECTION 8. How Writ Executed and Returned. — The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or, in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be brought before the court or judge; and the officer shall make due return of the writ, together with the day and the cause of the caption and restraint of such person according to the command thereof. Contents of the Return
 Section 10 a) Whether he has or has not the party in his custody or power, or under restraint; !25

b) If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held; c) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; d) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. What to do after the “return” is filed • Hearing in accordance with Section 12. Sufficiency of return • When the Return Evidence, and When Only a Plea. — If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint; but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts. (Section 13) How to appeal the decision? (Section 3, Rule 41) • Period of ordinary appeal; appeal in habeas corpus cases. — The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. However, an appeal in habeas corpus cases shall be taken within forty-eight (48) hours from notice of the judgment or final order appealed from. Writ vs. Privilege of the Writ of Habeas Corpus • A writ of habeas corpus is on which was issued by the Court after finding that the petition is sufficient in form and substance. It is an order commanding the person who has custody of the person detained or an officer commanding him to bring the person detained before the court on the designated time and place. • The privilege of the writ of habeas corpus is issued after the return is filed and a hearing was conducted. If the Court finds the person is illegally detained or whose custody is being possessed by a person who is not authorized by law, the petition will be granted and the privilege of the writ of habeas corpus will be issued. The Constitution and habeas corpus • Article III, Section 15 - The privilege of habeas corpus shall not be suspended except in cases of invasion or rebellion when public safety requires it.

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Article VII, Section 18 - In cases of invasion or rebellion when public safety requires it, the president may, for a period not exceeding 60 days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

Habeas Corpus Involving Custody of Minor Family Court’s Act of 1997 • Section 5(b) - The Family Court’s Act of 1997 vested the Family Court exclusive original jurisdiction to hear petitions for custody of minors

The Rule on the Writ of Amparo (A. M. No. 07-9-12-SC) !27

To whom shall the remedy of amparo available? • 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) Nature of Amparo as a Remedy • Curative and Preventive Coverage 1. Extra-judicial killing & Enforced disappearances - It was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and the perceived lack of available and effective remedies to address these extra-ordinary concerns (Rodriguez vs. Arroyo, April 16, 2013) 2. Writ of amparo does not protect property or commercial rights (Canlas vs. Napico Homeowners Association, June 5, 2008) 3. It does not protect right to travel (Reyes vs. Gonzales, December 3, 2009) 4. It is not a proper remedy to obtain custody of minor child (Caram vs. Segui, August 5, 2014)

Canlas vs. Napico Homeowners Assn. June 5, 2008 • The threatened demolition of a dwelling by virtue of a final judgment of the court, which in this case was affirmed with finality by this Court in G.R. Nos. 177448, 180768, 177701, 177038, is not included among the enumeration of rights as stated in the abovequoted Section 1 for which the remedy of a writ of amparo is made available. Their claim to their 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. • Petitioners are being demolished from their dwellings. They filed the petition against the “unprincipled land official” to hold them accountable for their participation in the issuances of alleged fraudulent and spurious title. Reyes vs. Gonzalez, Dec. 3, 2009 • A case for rebellion was filed against Reyes. Consequently, a HDO was issued against him. Later, the case filed against him was dismissed. However, the HDO was not lifted. • He filed the petition claiming that his right to travel which is included in the right to liberty is violated. • Petition dismissed. The Court, in Secretary of National Defense et al. v. Manalo et al., made a categorical pronouncement that the Amparo Rule in its present form is confined to these two instances of "extralegal killings" and "enforced disappearances" !28

Caram vs. Segui, August 5, 2014 • Petitioner Ma. Christina Yusay Caram (Christina) had an amorous relationship with Marcelino Gicano Constantino III (Marcelino) and eventually became pregnant with the latter's child without the benefit of marriage. After getting pregnant, Christina mislead Marcelino into believing that she had an abortion when in fact she proceeded to complete the term of her pregnancy. During this time, she intended to have the child adopted through Sun and Moon Home for Children (Sun and Moon) in Parañaque City to avoid placing her family in a potentially embarrassing situation for having a second illegitimate son. • On July 26, 2009, Christina gave birth to Baby Julian at Amang Rodriguez Memorial Medical Center, Marikina City. Sun and Moon shouldered all the hospital and medical expenses. On August 13, 2009, Christina voluntarily surrendered Baby Julian by way of a Deed of Voluntary Commitment 7 to the DSWD. • On November 26, 2009, Marcelino suffered a heart attack and died without knowing about the birth of his son. Thereafter, during the wake, Christina disclosed to Marcelino's family that she and the deceased had a son that she gave up for adoption due to financial distress and initial embarrassment. Marcelino's family was taken aback by the revelation and sympathized with Christina. After the emotional revelation, they vowed to help her recover and raise the baby. • They filed an amparo case against DSWD • Petition dismissed. This pronouncement on the coverage of the writ was further cemented in the latter case of Lozada, Jr. v. Macapagal-Arroyo where this Court explicitly declared that as it stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced disappearances, or to threats thereof. Pador vs. Arcayan, March 12, 2013 • Intrusion upon petitioner’s ampalaya farm is merely violation of property rights, which is beyond the protective power of the writ of amparo. Who may file? 1. Aggrieved party 2. Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party 3. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph. 4. Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. (Sec. 2) Against whom may it be filed? • SECTION 1. Petition. — The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by !29

an unlawful act or omission of a public official or employee, or of a private individual or entity. Please take note: • Even if a person sought to be accountable or responsible in an amparo petition is a private individual or entity, the government involvement remains an indispensable element. • There must be state participation. Navia vs. Pardico, 673 SCRA 618 • Enforced Disappearance • "the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law." • As thus dissected, it is now clear that 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. Where to file? (Section 3) • The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines. • When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge. • When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. • When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. Contents of the Petition (Section 5) !30

1. The personal circumstances of the petitioner; 2. The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation; 3. The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; 4. The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; 5. The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and 6. The relief prayed for. Effect of Failure to comply with Section 5 • Canlas vs Napico Homeowners, 554 SCRA 208 • Castillo vs. Cruz, 605 SCRA 628 • Tapuz vs. Del Rosario, 554 SCRA 768 Relaxation of the Section 5 • Razon vs. Tagitis, 606 SCRA 598 – failure to attached supporting affidavits • Saez vs. Macapagal-Arroyo, 681 SCRA 678 – defective verification Initial Action of the Court • Section 6. Issuance of the Writ. — Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. • The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance. 
 The issuance of the writ sets in motion the amparo proceedings What is to be filed by the respondent? • Within five (5) working days - Verified written RETURN which shall contain: • 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; • 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; !31

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All relevant information in the possession of the respondent pertaining to the threat, act or omission of the aggrieved; If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: (i) to verify the identity of the aggrieved party; (ii) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; (iii) to identify witnesses and obtain statements from them concerning the death or disappearance; (iv) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; (v) to identify and apprehend the person or persons involved in the death or disappearance; and (vi) to bring the suspected offenders before a competent court.

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THE PERIOD TO FILE A RETURN CANNOT BE EXTENDED EXCEPT ON HIGHLY MERITORIOUS GROUND. The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be allowed.

Take Note: RETURN should be filed not an ANSWER

! Prohibited Pleadings (Section 11) • Motion to dismiss; • Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; • Dilatory motion for postponement; • Motion for a bill of particulars; • Counterclaim or cross-claim; !32

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Third-party complaint; Reply; Motion to declare respondent in default; Intervention; Memorandum; Motion for reconsideration of interlocutory orders or interim relief orders; and Petition for certiorari, mandamus or prohibition against any interlocutory order.

What are the interim reliefs? 1. Temporary Protection Order 2. Inspection Order – upon verified motion 3. Production Order – upon verified motion 4. Witness Protection Order What is the burden of proof? • Substantial Evidence • The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. • The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. • The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. Judgment • Section 18. Judgment. — The court shall render within ten (10) days from the time the petition is submitted for decision If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. When and where to appeal? • SECTION 19. Appeal - Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. • The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. • The appeal shall be given the same priority as in habeas corpus cases.

Consolidation • SECTION 23. Consolidation. — When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. !33

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When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action.

Effect of Filing a criminal action • When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. • The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013 • Gatdula filed a Petition for Writ of Amparo before the RTC of Manila. The case was raffled to Judge Pampilo. Judge Pampilo issued summons to the respondents and required the latter to file an Answer. Judge Pampilo proceeded with the hearing even without the Answer. Later he ordered the parties to submit their respective Memorandum. Thereafter, Judge Pampilo rendered a decision grating the issuance of the writ of amparo. • De Lima, et.al., filed a Petition for Review under Rule 45 in accordance with Section 19, of the Rule. It is initiated through a petition to be filed in a Regional Trial Court, Sandiganbayan, the Court of Appeals, or the Supreme Court. • The judge or justice then makes an "immediate" evaluation of the facts as alleged in the petition and the affidavits submitted "with the attendant circumstances detailed“ • After evaluation, the judge has the option to issue the Writ of Amparo or immediately dismiss the case. • The court compels the respondents to appear before a court of law to show whether the grounds for more permanent protection and interim reliefs are necessary. • The respondents are required to file a Return after the issuance of the writ through the clerk of court. The Return serves as the responsive pleading to the petition. • There will be a summary hearing only after the Return is filed to determine the merits of the petition and whether interim reliefs are warranted. • If the Return is not filed, the hearing will be done ex parte. • After the hearing, the court will render the judgment within ten (10) days from the time the petition is submitted for decision. • If the allegations are proven with substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate. • 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. • 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. !34

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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.

Rule on the Writ of Habeas Data (A. M. No. 08-1-16-SC) Habeas Data • SECTION 1. Habeas Data. — The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. Nature
 (Vivares vs. STC, September 29, 2014) • The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. • It is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one's right to the truth and to informational privacy. It seeks to protect a person's right to control information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful ends. • The writ, however, will not issue on the basis merely of an alleged unauthorized access to information about a person. Availment of the writ requires the existence of a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the other. NOTE: The writ of habeas data is not only confined to cases of extralegal killings and enforced disappearances Three strands of right to privacy 1. Locational or situational privacy refers to the privacy that is felt in physical space, such as that which may be violated by trespass and unwarranted search and seizure. 2. Decisional privacy defined as the right of individuals to make certain kinds of fundamental choices with respect to their personal and reproductive autonomy. 3. Informational privacy defined as the right of individuals to control information about themselves !35

Coverage of the Rule • RIGHT TO INFORMATIONAL PRIVACY Against whom may it be filed? • Meaning of "engaged" in the gathering, collecting or storing of data or information. • The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas data is a protection against unlawful acts or omissions of public officials and of private individuals or entities engaged in gathering, collecting, or storing data about the aggrieved party and his or her correspondences, or about his or her family. Such individual or entity need not be in the business of collecting or storing data. (Vivares vs. STC) Who may file? (Section 2) 1. Any aggrieved party may file a petition for the writ of habeas data. 2. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph. Where to File (Section 3) • The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. • The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices. Where returnable (Section 4) • When the writ is issued by a Regional Trial Court or any judge thereof, it shall be returnable before such court or judge. • When issued by the Court of Appeals or the Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. • When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its justices, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. Where enforceable (Section 4) • The writ of habeas data shall be enforceable anywhere in the Philippines. !36

Contents of the Petition (Section 6) a) The personal circumstances of the petitioner and the respondent; b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; c) The actions and recourses taken by the petitioner to secure the data or information; d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or Information or files kept by the respondent. • In case of threats, the relief may include a prayer for an order enjoining the act complained of; and f) Such other relevant reliefs as are just and equitable. Action of the Court upon filing • SECTION 7. Issuance of the Writ. — Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from its issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance. What should be filed by respondent? • SECTION 10. Return; Contents. — The respondent shall file a verified written return together with supporting affidavits within five (5) work days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following: (a) The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; (b) In case of respondent in charge, in possession or in control of the data or information subject of the petition: (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and (iii) the currency and accuracy of the data or information held; and (c) Other allegations relevant to the resolution of the proceeding. • A general denial of the allegations in the petition shall not be allowed. Prohibited Pleadings (Section 13) • Motion to dismiss; !37

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Motion for extension of time to file opposition, affidavit, position paper and other pleadings; Dilatory motion for postponement; Motion for a bill of particulars; Counterclaim or cross-claim; Third-party complaint; Reply; Motion to declare respondent in default; Intervention; Memorandum; Motion for reconsideration of interlocutory orders or interim relief orders; and Petition for certiorari, mandamus or prohibition against any interlocutory order.

Nature of Hearing • SECTION 15. Summary Hearing. — The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. Judgment • SECTION 16. Judgment — The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. • Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be designated by the court, justice or judge within five (5) work days. Appeal • SECTION 19. Appeal. — Any party may appeal from the judgment or final order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. • The period of appeal shall be five (5) work days from the date of notice of the judgment or final order. • The appeal shall be given the same priority as habeas corpus and amparo cases. Consolidation • SECTION 21. Consolidation. — When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. • When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. • After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition. !38

Effect of Filing of a criminal action • SECTION 22. Effect of Filing of a Criminal Action. — When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available to an aggrieved party by motion in the criminal case. • The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. Lee vs. Ilagan, October 8, 2014 • Ilagan and Lee were live-in-partners. Lee was able to obtain the digital camera of Ilagan. Lee found a sex video in it. Lee confronted Ilagan about it but the latter demanded for the return of his digital camera. Lee refused. Consequently, Ilagan banged Lee’s head against the wall. Lee filed a criminal case for violation of RA 9262. Still, Ilagan is demanding for the return of the digital camera. Lee refused. • Ilagan filed a petition for habeas data against Lee to compel Lee to produce the camera, as well as the negative and reproductions thereof. Will the petition prosper? • NO. As defined in Section 1 of the Habeas Data Rule, the writ of habeas data now stands as "a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home, and correspondence of the aggrieved party." • Thus, in order to support a petition for the issuance of such writ, Section 6 of the Habeas Data Rule essentially requires that the petition sufficiently alleges, among others, "[t]he manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party." In other words, the petition must adequately show that there exists a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the other.

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