G.R. No.

L-10033

August 30, 1917

THE CITY OF MANILA, petitioner-appellant, vs. THE ROMAN CATHOLIC ARCHBISHOP OF MANILA and THE ADMINISTRATOR FOR THE ESTATE OF MARIA CONCEPCION SARMIENTO, interveners-appellees. City Attorney Escaler for appellant. William A. Kincaid and Thomas L. Hartigan for the appellee Roman Catholic Archbishop of Manila. No appearance for the other appellee. JOHNSON, J.: This action was commenced in the Court of First Instance of the city of Manila on the 15th day of February, 1913. Its purpose was to have declared escheated to the city of Manila certain property situated in and around said city; that said property consists of five parcels of land located ion the districts of Malate and Paco of the city of Manila, as shown in a plan, in the office of the Department of Engineering and Public Works of said city of Manila, No. B-10-27. The theory of the plaintiff is that one Ana Sarmiento was the owner of said property and died in the year 1668 without leaving "her or person entitled to the same." After hearing the evidence, the Honorable A. S. Crossfield, in a carefully prepared opinion, reached the conclusion that the prayer of the plaintiff should be denied without any finding as to costs. From that conclusion the plaintiff appealed to this court and made a number of assignments of error. After an examination of the evidence adduced during the trial of the cause, we find that the following facts were proved by a large preponderance of the evidence: That Ana Sarmiento resided, with her husband, in the city of Manila sometime prior to the 17th day of November, 1668; that on said date she made a will; that on the 23d day of November, 1668, she added a codicil to said will, that on the 19th day of May, 1669, she made another will making a part thereof the said codicil of November 23d, 1668; that said will contained provisions for the establishment of a "Capellania de Misas;" that the first chaplain of said capellania should be her nephew Pedro del Castillo; that said will contained a provision for the administration of said property in relation with the said "Capellania de Misas" succeeding administration should continue perpetually; that said Ana Sarmiento died about the year 1672; that for more than two hundred years the intervener, the Roman Catholic Archbishop of Manila, through his various agencies, has administered said property; that the Roman Catholic Archbishop of Manila has rightfully and legally succeeded in accordance with the terms and provisions of the will of Ana Sarmiento. Section 750 of Act No. 190 provides when property may be declared escheated. It provides, "when a person dies intestate, seized of real or personal property . . . leaving no heir or person by law entitled to the same," that then and in that case such property under the procedure provided for by sections 751 and 752, may de declared escheated. The proof shows that Ana Sarmiento did not die intestate. She left a will. The will provides for the administration of said property by her nephew as well as for the subsequent administration of the same. She did not die without an heir nor without persons entitled to administer her estate. It further shows that she did not die without leaving a person by law entitled to inherit her property. In view of the facts, therefore, the property in question cannot be declared

escheated as of the property of Ana Sarmiento. If by any chance the property may be declared escheated, it must be based upon the fact that persons subsequent to Ana Sarmiento died intestate without leaving heir or person by law entitled to the same. The will clearly, definitely and unequivocally defines and designates what disposition shall be made of the property in question. The heir mentioned in said will evidently accepted its terms and permitted the property to be administered in accordance therewith. And, so far as the record shows, it is still being administered in accordance with the terms of said will for the benefit of the real beneficiary as was intended by the original owner. The record fully and completely shows that the theory of the plaintiff is without foundation either in fact or in law. The judgment of the lower court is, therefore, hereby affirmed, with costs in this instance. So ordered. Arellano, C.J., Araullo, Street and Malcolm, JJ., concur. G.R. No. L-45460 February 25, 1938

THE MUNICIPAL COUNCIL OF SAN PEDRO, LAGUNA, ET AL., applicants-appellants, vs. COLEGIO DE SAN JOSE, INC., ET AL., oppositorsappellees. Juan S. Rustia for appellants. Araneta, Zaragoza and Araneta for appellee Colegio de San Jose, Inc. Francisco Alfonso for appellee Young. IMPERIAL, J.: This is an appeal from the order of the Court of First Instance of Laguna of October 29, 1936, which denied the applicants motion questioning the appearance and intervention in the case of the oppositors Colegio de San Jose and Carlos Young, and from the resolution of the 30th of the same month which denied the petition for escheat filed by the said petitioners, with the costs against the latter. This case was commenced in the said by a petition filed by the petitioners in behalf of the municipality of San Pedro, Province of Laguna, wherein they claim the Hacienda de San Pedro Tunasa by the right of escheat. The Colegio de San Jose, Inc., appeared specially and assailed the petition upon the grounds that the court has no jurisdiction to take cognizance and decide the case and that the petition does not allege sufficient facts to entitle the applicants to the remedy prayed for; and asked that the petition be finally dismissed. Carlos Young intervened and filed a motion asking for the dismissal or the petition upon the ground that the Code of Civil Procedure, under which the same was filed, is not applicable because it was not yet in force when the original owner of the hacienda died, which was in April, 1596, and that the petition was irregularly docketed as the applicants had paid at the docket fees which the clerk of court should collect. Subsequently the attorneys for both parties filed another motions of minor importance, almost all of which contains the arguments advanced in support of their contentions. On October 29, 1936, the court overruled the objection to the appearance and intervention in the case by the Colegio de San Jose and Carlos Young, entering the order which is one of those appealed from. And on the 30th of the

same moth the court entered the resolution, also appealed from, dismissing the petition for escheat, with the costs to the petitioners. The petitioners attribute to the court the following errors: "(1) In overruling the objection of the appellant of September 2, 1936, and in not excluding the appellees Carlos Young and Colegio de San Jose, Inc., from these proceedings. (2) In sustaining definitely the appellees' petitions to dismiss, without previous hearing and in derogation of the right to amend in any case. (3) In improperly and unseasonably taking judicial notice of certain facts in other judicial records to reinforce the appealed resolutions, and in erroneously distorting those facts judicially taken notice of. (4) In holding that the municipality of San Jose has neither right standing to file a petition for escheat; that the petition does not state facts sufficient a cause of action and that the same does not lie, and that the Court of First Instance of Laguna is without jurisdiction to take cognizance of and decide said petition. (5) In finally dismissing the petition upon the dilatory exceptions thereto, and the ordering the payment of costs when no hearing has yet taken place." 1. The sworn petition which gave rise to the proceeding is based upon the provisions of section 750 and 751 of the Code of Civil Procedure, the English text of which reads:1vvphl.nt SEC. 750. Procedure when person dies intestate without heirs. When a person dies intestate, seized of real or personal property in the Philippines Islands, leaving no heir or person by law entitled to the same, the president and municipal council of the municipality where the deceased last resided, if he was an inhabitant of these Islands, or of the municipality in which he had estate, if he resided out of the Islands, may, on behalf of the municipality, the file a petition with the Court of First Instance of the province for an inquisition in the premises; the court shall there upon appoint a time and place of hearing, and deciding on such petition, and cause a notice thereof to be published in some newspaper of general circulation in the province of which the deceased was last an inhabitant, if within the Philippines Island, and if not, some newspaper of general circulation in the province in which he had estate. The notice shall recite the substance of the facts and request set forth in the petition, the time and place at which persons claiming the estate may appear and be heard before the court, and shall be published at least six weeks successively, the last of which publication shall be at least six weeks before the time appointed by the court to make inquisition. SEC. 751. Decree of the court in such case. If, at the time appointed for the that purpose, the court that the person died intestate, seized of real or personal property in the Islands, leaving no heirs or person entitled to the same and no sufficient cause is shown to the contrary, the court shall order and decree that the estate of the deceased in these Islands, after the payment of just debts and charges, shall escheat; and shall assign the personal estate to the municipality where he was last an inhabitant in the Islands, and the real estate to the municipality in which the same is situated. If he never was a inhabitant of the Islands, the whole estate may be assigned to the several municipalities where the same is located. Such estate shall be for the use of schools in the municipalities, respectively, and shall be managed and disposed or by the municipal

council like other property appropriated to the use of schools. Accordingly to the first of the said sections, the essential facts which should be alleged in the petition, which are jurisdiction because they confer jurisdiction upon the Court of First Instance, are: That a person has died intestate or without leaving any will; that he has left real or personal property; that he was the owner thereof; that he has not left any heir or person who is by law entitled to the property; and that the one who applies for the escheat is the municipality where deceased had his last residence, or in case should have no residence in the country, the municipality where the property is situated. The following section provides that after the publications and trial, if the court finds that the deceased is in fact the owner of real and personal property situated in the country and has not left any heirs or other person entitled thereto, it may order, after the payments of debts and other legal expenses, the escheat, and in such case it shall adjudicate the personal property to the municipality where the deceased had his last place of residence and the real property to the municipality or municipalities where they are situated. Escheat, under sections 750 and 751, is a proceeding whereby the real and personal property of a deceased person become the property of the State upon his death without leaving any will or legal heirs (21 C.J., sec. 1, p. 848; American L. & T. Co. vs. Grand River Co., 159 Fed., 775; In re Miner, 143 Cal., 194; Johnston vs. Spicer 107 N.Y., 185; Wright vs. Methodist Episcopal Church, Hoffm. [N.Y.], 201; In re Linton's, 198 Pa., 438; State vs. Goldberg, 113 Tenn., 298). It is not an ordinary action contemplated by section 1 of the Code of Civil Procedure, but a special proceeding in accordance with the said section and Chapter XXXIX, Part II, of the same Code. The proceeding, as provided by section 750, should be commenced by petition and not by complaint. In a special proceeding for escheat under section 750 and 751 the petitioner is not the sole and exclusive interested party. Any person alleging to have a direct right or interest in the property sought to be escheated is likewise and interest and necessary party and may appear and oppose the petition for escheat. In the present case the Colegio de San Jose, Inc., and Carlos Young appeared alleging to have a material interest in the Hacienda de San Pedro Tunasa; and the former because it claims to be the exclusive owner of the hacienda, and the latter because he claim to be the lessee thereof under a contract legality entered with the former. In view of these allegations it is erroneous to hold that the said parties are without right either to appear in case or to substantiate their respective alleged right. This unfavorably resolves the petitioners' first assignment of error. 2. The final dismissal of the petition for escheat decreed by the court is assigned by the petitioners as the second error committed by it upon the contention that the demurrer, to which amount the motions for dismissal, is not a pleading authorized by law in this kind of proceeding and because, in any event, the court should have given them an opportunity to amend the petition. Chapter XXXIX of the Code of Civil Procedure, relative to the escheat of properties, does not in fact authorize the filing of a demurrer to the petition presented for that purpose, and section 91 and 99 permitting the interposition of demurrers to the complaint and answer, respectively, are not applicable to special proceedings. But is no reason of a procedure nature which prevents the filing of a motion to dismiss based upon any of the grounds provided by law for a demurrer to a

complaint. In such case, the motion to dismiss pays the role of a demurrer and the court should resolve the legal question raised therein. When, for instance, a petition for escheat does not state facts which entitle the petitioner to the remedy prayed from and even admitting them hypothetically it is clear that there are nor grounds for the court to proceed to the inquisition provided by law, we see no reason to disallow an interest party from filing a motion to dismiss the petition which is untenable from all standpoints. And when the motion to dismiss is entertained upon this ground, the petition may be dismissed unconditionally and the petitioner is not entitled, as in the case of a demurrer, to be afforded an opportunity to amend his petition. 3. The petitioners assign as third error the judicial notice which the court took of the complaint filed in civil case No. 6790, docketed and pending in the same court, wherein the petitioner recognized the personality Colegio de San Jose, Inc., and Carlos Young and the latters' interest in said action of interpleader and in the Hacienda de San Pedro Tunasan which is the same subject matter of the instant proceedings. In general, courts are not authorized to take judicial notice, in the adjudication of cases pending before them, of the contents of the records of the other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge. (U.S. vs. Claveria, 29 Phil., 527.) The rule is squarely applicable to the present case, wherefore, we hold that the assignment of error is tenable. 4. In the appealed resolution the court held that the municipality of San Pedro, represented by the petitioners, has no personality to institute the petition for escheat that the latter does not state sufficient facts, and that the court is without jurisdiction either to take cognizance of the proceeding or to grant the remedy sought. These legal conclusions are the subject matter of the fourth assignment of error. According to the allegations of the petition, the petitioners base their right to the escheat upon the fact that the temporal properties of the Father of the Society of Jesus, among them, the Hacienda de San Pedro Tunasan, were confiscated by order of the King of Spain and passed from then on the Crown of Spain. The following allegations of the petition are important and specific and clearly the theory maintained by the petitioners: "11. As a result of the perpetual expulsion of the Jesuits in their dominions, the King also decreed the confiscation of all their properties, estate, rents, foundation, etc., in favor of the Crown of Spain, and the order of the King was thus complied with here in the Philippines. The Hacienda de San Pedro Tunasa from then on passed to the Crown of Spain under the administration and management on its respective here, the Governor-General of the Philippines Islands. 12. As a result of the war between Spain and the United States, the latter acquired by way of transfer, all the properties of the Crown of Spain in the Philippines, under articles III and VIII of the Treaty of Peace entered into in Paris on December 10, 1989, and among which properties was included the Hacienda de San Pedro Tunasan. 13. That the said hacienda thereafter passed to the Government of the Philippines Islands by virtue of the Act of the United States Congress of July 1, 1992 (Philippine Bill), by mere administration for the benefit of the inhabitant of the Philippines; and there after, under the Tydings-McDuffie law approved by the same Congress on March 24, 1934, section 5, the United States, in turn, have ceded to the Commonwealth of the Philippines, upon its inauguration, all the properties, estate, etc., ceded by Spain to the United States as above stated, among them being the Hacienda de

San Pedro Tunasan. Said Commonwealth was inaugurated on November 15, 1935." If the hacienda de San Pedro Tunasan,, which is the only property sought to be escheated and adjudicated to the municipality of San Pedro, has already passed to the ownership of the Commonwealth of the Philippines, it is evident that the petitioners cannot claim that the same be escheated to the said municipality, because it is no longer the case of real property owned by a deceased person who has not left any heirs or person who may legality claim it, these being the conditions required by section 750 and without which a petition for escheat should not lie from the moment the hacienda was confiscated by the Kingdom of Spain, the same ceased to be the property of the children of Esteban Rodriguez de Figueroa, the Colegio de San Jose or the Jesuit Father, and became the property of the Commonwealth of the Philippines by virtue of the transfer under the Treaty of Paris, alleged in the petition. If the municipality of San Pedro believes that it has some other right to the hacienda, distinct from the escheat relied upon in its petition which gave rise to this proceeding, it should bring the proper action, but it cannot avail itself successfully of the remedy provided by section 750 of the Code of Civil Procedure. We, therefore, hold that the court did not commit the error assigned in ruling that the petition does not allege sufficient facts justifying the escheat of the hacienda in favor of the municipality of San Pedro and in finally dismissing the same. Having reached this conclusion we do not believe it necessary to go into further considerations regarding the personality of the municipality of San Pedro and the court's lack of jurisdiction. 5. The last assignment of error does not require any further consideration. The questions raised therein have already been passed upon in the preceding considerations, with the exception of the order to pay costs. With respect thereto, there is no reason why they should not be taxed against the petitioners, they being defeated party (section 487, Code of Civil Procedure). That no trial was had is not a bar to the imposition of costs under the provisions of section 492. For the foregoing reasons, the appealed order and resolution are affirmed, with the costs of this instance against the petitioners and appellants. So ordered. Avancea, C.J., Villa-Real, Abad Santos, Diaz, Laurel and Concepcion, JJ., concur. G.R. No. 143483 January 31, 2002

REPUBLIC OF THE PHILIPPINES represented by the REGISTER OF DEEDS OF PASAY CITY, petitioner, vs. COURT OF APPEALS (SPECIAL FORMER 3RD DIVISION) AND AMADA H. SOLANO, assisted by her husband ROMEO SOLANO, respondents. BELLOSILLO , J.: This petition for certiorari seeks to nullify two (2) Resolutions of the Court of Appeals dated 12 November 1998 and 4 May 2000 giving due course to the petition for annulment of judgment filed by private respondent Amada H. Solano on 3 February 1997 and denying petitioner's motion for reconsideration. For more than three (3) decades (from 1952 to 1985) private respondent Amada Solano served as the all-around personal domestic helper of the late Elizabeth Hankins, a widow and a French national. During Ms. Hankins' lifetime and most

especially during the waning years of her life, respondent Solano was her faithful girl Friday and a constant companion since no close relative was available to tend to her needs. In recognition of Solano's faithful and dedicated service, Ms. Hankins executed in her favor two (2) deeds of donation involving two (2) parcels of land covered by TCT Nos. 7807 and 7808 of the Registry of Deeds. Private respondent alleged that she misplaced the deeds of donation and were nowhere to be found. While the deeds of donation were missing, the Republic filed a petition for the escheat of the estate of Elizabeth Hankins before the Regional Trial Court of Pasay City.1 During the proceedings, a motion for intervention was filed by Romeo Solano, spouse of private respondent, and one Gaudencio Regosa, but on 24 June 1987 the motion was denied by the trial court for the reason that "they miserably failed to show valid claim or right to the properties in question."2 Since it was established that there were no known heirs and persons entitled to the properties of decedent Hankins, the lower court escheated the estate of the decedent in favor of petitioner Republic of the Philippines. By virtue of the decision of the trial court, the Registry of Deeds of Pasay City cancelled TCT Nos. 7807 and 7808 and issued new ones, TCT Nos. 129551 and 129552, both in the name of Pasay City. In the meantime, private respondent claimed that she accidentally found the deeds of donation she had been looking for a long time. In view of this development, respondent Amada Solano filed on 28 January 1997 a petition before the Court of Appeals for the annulment of the lower court's decision alleging, among other, that3 13.1. The deceased Elizabeth Hankins having donated the subject properties to the petitioner in 1983 (for TCT No. 7807) and 1984 (for TCT No. 7808), these properties did not and could not form part of her estate when she died on September 20, 1985. Consequently, they could not validly be escheated to the Pasay City Government; 13.2. Even assuming arguendo that the properties could be subject of escheat proceedings, the decision is still legally infirm for escheating the properties to an entity, the Pasay City Government, which is not authorized by law to be the recipient thereof. The property should have been escheated in favor of the Republic of the Philippines under Rule 91, Section 1 of the New Rules of Court x x x x On 17 March 1997 the Office of the Solicitor General representing public respondents RTC and the Register of Deeds (herein petitioner) filed an answer setting forth their affirmative defenses, to wit: (a) lack of jurisdiction over the nature of the action; and, (b) the cause of action was barred by the statute of limitations. Finding no cogent reason to justify the dismissal of the petition for annulment, the Court of Appeals issued on 12 November 1998 the first of its assailed Resolutions giving due course to the petition for annulment of judgment and setting the date for trial on the merits. In upholding the theory of respondent Solano, the Appeals Court ruled that Herein petitioner invokes lack of jurisdiction over the subject matter on the part of respondent RTC to entertain the escheat proceedings x x x because the

parcels of land have been earlier donated to herein petitioner in 1983 and 1984 prior to the death of said Hankins; and therefore, respondent court could not have ordered the escheat of said properties in favor of the Republic of the Philippines, assign them to respondent Pasay City government, order the cancellation of the old titles in the name of Hankins and order the properties registered in the name of respondent Pasay City x x x x The 1997 Rules of Civil Procedure specifically laid down the grounds of annulment filed before this Court, to wit: extrinsic fraud and lack of jurisdiction. Jurisdiction over the subject matter is conferred by law and this jurisdiction is determined by the allegations of the complaint. It is axiomatic that the averments of the complaint determine the nature of the action and consequently the jurisdiction of the courts. Thus whether or not the properties in question are no longer part of the estate of the deceased Hankins at the time of her death; and, whether or not the alleged donations are valid are issues in the present petition for annulment which can be resolved only after a full blown trial x x x x It is for the same reason that respondents espousal of the statute of limitations against herein petition for annulment cannot prosper at this stage of the proceedings. Indeed, Section 4, Rule 91 of the Revised Rules of Court expressly provides that a person entitled to the estate must file his claim with the court a quo within five (5) years from the date of said judgment. However, it is clear to this Court that herein petitioner is not claiming anything from the estate of the deceased at the time of her death on September 20, 1985; rather she is claiming that the subject parcels of land should not have been included as part of the estate of the said decedent as she is the owner thereof by virtue of the deeds of donation in her favor. In effect, herein petitioner, who alleges to be in possession of the premises in question, is claiming ownership of the properties in question and the consequent reconveyance thereof in her favor which cause of action prescribes ten (10) years after the issuance of title in favor of respondent Pasay City on August 7, 1990. Herein petition was seasonably filed on February 3, 1997 under Article 1144, to wit: Art. 1144. The following actions must be brought within ten years from the time the right of action accrues: (1) Upon a written contract; (2) Upon an obligation created by law; (3) Upon a judgment. And Article 1456, to wit: Art. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes.4 In its Resolution of 4 May 2000 the Court of Appeals denied the motion for reconsideration filed by public respondents Register of Deeds of Pasay City and the Presiding judge of the lower court and set the trial on the merits for June 15 and 16, 2000.

In its effort to nullify the Resolutions herein before mentioned, petitioner points out that the Court of Appeals committed grave abuse of discretion amounting to lack or excess of jurisdiction (a) in denying petitioner's affirmative defenses set forth in its answer and motion for reconsideration, and in setting the case for trial and reception of evidence; and, (b) in giving due course to private respondent's petition for annulment of decision despite the palpable setting-in of the 5-year statute of limitations within which to file claims before the court a quoset forth in Rule 91 of the Revised Rules of Court and Art. 1014 of the Civil Code. Petitioner argues that the lower court had jurisdiction when it escheated the properties in question in favor of the city government and the filing of a petition for annulment of judgment on the ground of subsequent discovery of the deeds of donation did not divest the lower court of its jurisdiction on the matter. It further contends that Rule 47 of the 1997 Rules of Civil Procedure only provides for two (2) grounds for the annulment of judgment, namely: extrinsic fraud and lack of jurisdiction. As such the discovery of the deeds of donation seven (7) years after the finality of the escheat proceedings is an extraneous matter which is clearly not an instance of extrinsic fraud nor a ground to oust the lower court of its jurisdiction. Petitioner also insists that notwithstanding the execution of the deeds of donation in favor of private respondent, the 5year statute of limitations within which to file claims before the court a quo as set forth in Rule 91 of the Revised Rules of Court has set in. The present controversy revolves around the nature of the parcels of land purportedly donated to private respondent which will ultimately determine whether the lower court had jurisdiction to declare the same escheated in favor of the state. We rule for the petitioner. Escheat is a proceeding, unlike that of succession or assignment, 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. In the absence of a lawful owner, a property is claimed by the state to forestall an open "invitation to self-service by the first comers."5 Since escheat is one of the incidents of sovereignty, the state may, and usually does, prescribe the conditions and limits the time within which a claim to such property may be made. The procedure by which the escheated property may be recovered is generally prescribed by statue, and a time limit is imposed within which such action must be brought. In this jurisdiction, a claimant to an escheated property must file his claim "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 the estate; but a claim not made shall be barred forever."6The 5year period is not a device capriciously conjured by the state to defraud any claimant; on the contrary, it is decidedly prescribed to encourage would-be claimants to be punctilious in asserting their claims, otherwise they may lose them forever in a final judgment. Incidentally, the question may be asked: Does herein private respondent, not being an heir but allegedly a donee, have the personality to be a claimant within the purview of Sec. 4, Rule 91, of the Revised Rules of Court? In this regard, we agree with the Solicitor General that the case of Municipal Council of San Pedro, Laguna v. Colegio de San Jose, Inc.,7 is applicable at least insofar as it concerns the Court's discussion on who is an "interested party" in an escheat proceeding -

In a special proceeding for escheat under sections 750 and 751 the petitioner is not the sole and exclusive interested party. Any person alleging to have a direct right or interest in the property sought to be escheated is likewise an interested party and may appear and oppose the petition for escheat. In the present case, the Colegio de San Jose, Inc. and Carlos Young appeared alleging to have a material interest in the Hacienda de San Pedro Tunasan; the former because it claims to be the exclusive owner of the hacienda, and the latter because he claims to be the lessee thereof under a contract legally entered with the former (underscoring supplied). In the instant petition, the escheat judgment was handed down by the lower court as early as 27 June 1989 but it was only on 28 January 1997, more or less seven (7) years after, when private respondent decided to contest the escheat judgment in the guise of a petition for annulment of judgment before the Court of Appeals. Obviously, private respondent's belated assertion of her right over the escheated properties militates against recovery. A judgment in escheat proceedings when rendered by a court of competent jurisdiction is conclusive against all persons with actual or constructive notice, but not against those who are not parties or privies thereto. As held inHamilton v. Brown,8 "a judgment of escheat was held conclusive upon persons notified by advertisement to all persons interested. Absolute lack on the part of petitioners of any dishonest intent to deprive the appellee of any right, or in any way injure him, constitutes due process of law, proper notice having been observed." With the lapse of the 5-year period therefore, private respondent has irretrievably lost her right to claim and the supposed "discovery of the deeds of donation" is not enough justification to nullify the escheat judgment which has long attained finality. In the mind of this Court the subject properties were owned by the decedent during the time that the escheat proceedings were being conducted and the lower court was not divested of its jurisdiction to escheat them in favor of Pasay City notwithstanding an allegation that they had been previously donated. We recall that a motion for intervention was earlier denied by the escheat court for failure to show "valid claim or right to the properties in question."9 Where a person comes into an escheat proceeding as a claimant, the burden is on such intervenor to establish his title to the property and his right to intervene. A fortiori, the certificates of title covering the subject properties were in the name of the decedent indicating that no transfer of ownership involving the disputed properties was ever made by the deceased during her lifetime. In the absence therefore of any clear and convincing proof showing that the subject lands had been conveyed by Hankins to private respondent Solano, the same still remained, at least before the escheat, part of the estate of the decedent and the lower court was right not to assume otherwise. The Court of Appeals therefore cannot perfunctorily presuppose that the subject properties were no longer part of the decedent's estate at the time the lower court handed down its decision on the strength of a belated allegation that the same had previously been disposed of by the owner. It is settled that courts decide only after a close scrutiny of every piece of evidence and analyze each case with deliberate precision and unadulterated thoroughness, the judgment not being diluted by speculations, conjectures and unsubstantiated assertions. WHEREFORE, the petition is GRANTED. The assailed Resolution of the Court of Appeals dated 12 November 1998 giving due course to the petition for annulment of judgment, and its Resolution dated 4 May 2000 denying petitioner's

motion for reconsideration, are SET ASIDE. The decision of the RTC-Br. 114, Pasay City, dated 27 June 1989, is REINSTATED. SO ORDERED. REPUBLIC OF THE PHILIPPINES, petitioner, vs. DAVID REY GUZMAN, represented by his Attorney-inFact, LOLITA G. ABELA, and the REGISTER OF DEEDS OF BULACAN, MEYCAUAYAN BRANCH, respondents. BELLOSILLO, J.: The REPUBLIC OF THE PHILIPPINES seeks the nullification of the 5 March 1998 Decision of the Court of Appeals1which affirmed the dismissal by the Regional Trial Court, Br. 77, Malolos, Bulacan, of the petition for escheat filed by the Government.2 David Rey Guzman, a natural-born American citizen, is the son of the spouses Simeon Guzman,3 a naturalized American citizen, and Helen Meyers Guzman, an American citizen. In 1968 Simeon died leaving to his sole heirs Helen and David an estate consisting of several parcels of land located in Bagbaguin, Sta. Maria, Bulacan, covered by TCT Nos. T146837 (M), T-146839 (M), T-146840 (M), T-146841 (M), T146842 (M), T-120254 (M) and T-120257 (M). On 29 December 1970 Helen and David executed a Deed of Extrajudicial Settlement of the Estate of Simeon Guzman dividing and adjudicating to themselves all the property belonging to the estate of Simeon. The document of extrajudicial settlement was registered in the Office of the Register of Deeds on 8 December 1971. The taxes due thereon were paid through their attorneys-in-fact, Attys. Juan L. Austria and Lolita G. Abela, and the parcels of land were accordingly registered in the name of Helen Meyers Guzman and David Rey Guzman in undivided equal shares. On 10 December 1981 Helen executed a Quitclaim Deed assigning, transferring and conveying to her son David her undivided one-half (1/2) interest on all the parcels of land subject matter of the Deed of Extrajudicial Settlement of the Estate of Simeon Guzman. Since the document appeared not to have been registered, upon advice of Atty. Lolita G. Abela, Helen executed another document, a Deed of Quitclaim, on 9 August 1989 confirming the earlier deed of quitclaim as well as modifying the document to encompass all her other property in the Philippines.4 On 18 October 1989 David executed a Special Power of Attorney where he acknowledged that he became the owner of the parcels of land subject of the Deed of Quitclaim executed by Helen on 9 August 1989 and empowering Atty. Lolita G. Abela to sell or otherwise dispose of the lots. On 1 February 1990 Atty. Lolita G. Abela, upon instruction of Helen, paid donor's taxes to facilitate the registry of the parcels of land in the name of David. On 16 March 1994 a certain Atty. Mario A. Batongbacal wrote the Office of the Solicitor General and furnished it with documents showing that David's ownership of the one-half (1/2) of the estate of Simeon Guzman was defective. On the basis thereof, the Government filed before the Regional Trial Court of Malolos Bulacan a Petition for Escheat praying that one-half (1/2) of David's interest in each of the subject parcels of land be forfeited in its favor. On 9 August 1994 David Rey Guzman responded with a prayer that the petition be dismissed.

On 11 July 1995 the trial court dismissed the petition holding that the two (2) deeds of quitclaim executed by Helen Meyers Guzman had no legal force and effect so that the ownership of the property subject thereof remained with her.5 The Government appealed6 the dismissal of the petition but the appellate court affirmed the court a quo. Petitioner anchors its argument on Art. XII of the Constitution which provides Sec. 7. 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 lands of the public domain. Sec. 8. Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law. Thus as a rule, only a Filipino citizen can acquire private lands in the Philippines. The only instances when a foreigner can acquire private lands in the Philippines are by hereditary succession and if he was formerly a natural-born Filipino citizen who lost his Philippine citizenship. Petitioner therefore contends that the acquisition of the parcels of land by David does not fall under any of these exceptions. It asserts that David being an American citizen could not validly acquire onehalf (1/2) interest in each of the subject parcels of land by way of the two (2) deeds of quitclaim as they are in reality donations inter vivos. It also reasons out that the elements of donation are present in the conveyance made by Helen in favor of David: first, Helen consented to the execution of the documents; second, the dispositions were made in public documents; third, David manifested his acceptance of the donation in the Special Power of Attorney he executed in favor of Atty. Lolita G. Abela; fourth, the deeds were executed with the intention of benefiting David; and lastly, there was a resultant decrease in the assets or patrimony of Helen, being the donor. Petitioner further argues that the payment of donor's taxes on the property proved that Helen intended the transfer to be a gift or donation inter vivos. David maintains, on the other hand, that he acquired the property by right of accretion and not by way of donation, with the deeds of quitclaim merely declaring Helen's intention to renounce her share in the property and not an intention to donate. He further argues that, assuming there was indeed a donation, it never took effect since the Special Power of Attorney he executed does not indicate acceptance of the alleged donation. There are three (3) essential elements of a donation: (a) the reduction of the patrimony of the donor; (b) the increase in the patrimony of the donee; and, (c) the intent to do an act of liberality or animus donandi. When applied to a donation of an immovable property, the law further requires that the donation be made in a public document and that there should be an acceptance thereof made in the same deed of donation or in a separate public document.7 In cases where the acceptance is made in a separate instrument, it is mandated that the donor should be notified thereof in an authentic form, to be noted in both instruments.8 Not all the elements of a donation of an immovable property are present in the instant case. The transfer of the property by virtue of the Deed of Quitclaim executed by Helen resulted in the reduction of her patrimony as donor and the

consequent increase in the patrimony of David as donee. However, Helen's intention to perform an act of liberality in favor of David was not sufficiently established. A perusal of the two (2) deeds of quitclaim reveals that Helen intended to convey to her son David certain parcels of land located in the Philippines, and to re-affirm the quitclaim she executed in 1981 which likewise declared a waiver and renunciation of her rights over the parcels of land. The language of the deed of quitclaim is clear that Helen merely contemplated a waiver of her rights, title and interest over the lands in favor of David, and not a donation. That a donation was far from Helen's mind is further supported by her deposition which indicated that she was aware that a donation of the parcels of land was not possible since Philippine law does not allow such an arrangement.9 She reasoned that if she really intended to donate something to David it would have been more convenient if she sold the property and gave him the proceeds therefrom.10 It appears that foremost in Helen's mind was the preservation of the Bulacan realty within the bloodline of Simeon from where they originated, over and above the benefit that would accrue to David by reason of her renunciation.11 The element of animus donandi therefore was missing. Likewise, the two (2) deeds of quitclaim executed by Helen may have been in the nature of a public document but they lack the essential element of acceptance in the proper form required by law to make the donation valid. We find no merit in petitioner's argument that the Special Power of Attorney executed by David in favor of Atty. Lolita G. Abela manifests his implied acceptance of his mother's alleged donation as a scrutiny of the document clearly evinces the absence thereof. The Special Power of Attorney merely acknowledges that David owns the property referred to and that he authorizes Atty. Abela to sell the same in his name. There is no intimation, expressly or impliedly, that David's acquisition of the parcels of land is by virtue of Helen's possible donation to him and we cannot look beyond the language of the document to make a contrary construction as this would be inconsistent with the parol evidence rule.12 Moreover, it is mandated that if an acceptance is made in a separate public writing the notice of the acceptance must be noted not only in the document containing the acceptance but also in the deed of donation. Commenting on Art. 633 of the Civil Code from whence Art. 74913 came Manresa said: "If the acceptance does not appear in the same document, it must be made in another. Solemn words are not necessary; it is sufficient if it shows the intention to accept . . . . it is necessary that formal notice thereof be given to the donor, and the fact that due notice has been given must be noted in both instruments. Then and only then is the donation perfected.14 Thus, in Santos v. Robledo we emphasized that when the deed of donation is recorded in the registry of property the document that evidences the acceptance if this has not been made in the deed of gift should also be recorded. And in one or both documents, as the case may be, the notification of the acceptance as formally made to the donor or donors should be duly set forth.15 Where the deed of donation fails to show the acceptance, or where the formal notice of the acceptance made in a separate instrument is either not given to the donor or else noted in the deed of donation, and in the separate acceptance, the donation is null and void.16 These requisites, definitely prescribed by law, have not been complied with, and no proof of compliance appears in the record. The two (2) quitclaim deeds set out the conveyance of the parcels of land by Helen in favor of David but its acceptance by David does not appear in the deeds, nor in the

Special Power of Attorney. Further, the records reveal no other instrument that evidences such acceptance and notice thereof to the donor in an authentic manner. It is well-settled that if the notification and notation are not complied with, the donation is void. Therefore, the provisions of the law not having been complied with, there was no effective conveyance of the parcels of land by way of donation inter vivos.17 However, the inexistence of a donation does not render the repudiation made by Helen in favor of David valid. There is no valid repudiation of inheritance as Helen had already accepted her share of the inheritance when she, together with David, executed a Deed of Extrajudicial Settlement of the Estate of Simeon Guzman on 29 December 1970 dividing and adjudicating between the two (2) of them all the property in Simeon's estate. By virtue of such extrajudicial settlement the parcels of land were registered in her and her son's name in undivided equal share and for eleven (11) years they possessed the lands in the concept of owner. Article 1056 of the Civil Code provides The acceptance or repudiation of an inheritance, once made is irrevocable and cannot be impugned, except when it was made through any of the causes that vitiate consent or when an unknown will appears. Nothing on record shows that Helen's acceptance of her inheritance from Simeon was made through any of the causes which vitiated her consent nor is there any proof of the existence of an unknown will executed by Simeon. Thus, pursuant to Art. 1056, Helen cannot belatedly execute an instrument which has the effect of revoking or impugning her previous acceptance of her one-half (1/2) share of the subject property from Simeon's estate. Hence, the two (2) quitclaim deeds which she executed eleven (11) years after she had accepted the inheritance have no legal force and effect. Nevertheless, the nullity of the repudiation does not ipso facto operate to convert the parcels of land into res nullius18 to be escheated in favor of the Government. The repudiation being of no effect whatsoever the parcels of land should revert to their private owner, Helen, who, although being an American citizen, is qualified by hereditary succession to own the property subject of the litigation.1wphi1.nt WHEREFORE, the assailed Decision of the Court of Appeals which sustained the Decision of the Regional Trial Court of Malolos, Bulacan, dismissing the petition for escheat is AFFIRMED. No costs. SO ORDERED. G.R. No. 158230 July 16, 2008

REPUBLIC OF THE PHILIPPINES, represented by the DIRECTOR OF LANDS, Petitioner, vs. REGISTER OF DEEDS OF ROXAS CITY, ELIZABETH LEE, and PACITA YU-LEE, Respondents. DECISION CARPIO, J.: The Case

This is a petition for review1 of the Decision2 dated 12 July 2002 and the Resolution dated 9 May 2003 of the Court of Appeals in CA-G.R. CV No. 53890. The Facts In March 1936, Lee Liong, a Chinese citizen, bought Lot No. 398 from Vicenta Arcenas, Francisco, Carmen Ramon, Mercedes, Concepcion, Mariano, Jose, and Manuel, all surnamed Dinglasan. Lot No. 398, with an area of 1,574 square meters, is located at the corner of Roxas Avenue and Pavia Street in Roxas City. In February 1944, Lee Liong died intestate and was survived by his widow Ang Chia, and his sons Lee Bing Hoo and Lee Bun Ting. On 30 June 1947, the surviving heirs of Lee Liong extrajudicially settled the estate of the deceased and partitioned among themselves Lot No. 398. When Lee Bing Hoo and Lee Bun Ting died, Lot No. 398 was transferred by succession to their respective wives, Elizabeth Lee (Elizabeth) and Pacita Yu-Lee (Pacita). In the 1956 case of Dinglasan v. Lee Bun Ting,3 involving Lot No. 398, the Court held that even if the sale of the property was null and void for violating the constitutional prohibition on the sale of land to an alien, still the doctrine of in pari delicto barred the sellers from recovering the title to the property. Eleven years later, in the case of Lee Bun Ting v. Judge Aligaen,4 the Court ordered the trial court to dismiss the complaint of the Dinglasans for the recovery of Lot No. 398. Applying the doctrine of res judicata, the Court held that the case was a mere relitigation of the same issues previously adjudged with finality in the Dinglasan case, involving the same parties or their privies and concerning the same subject matter. On 7 September 1993, Elizabeth and Pacita (private respondents) filed a petition for reconstitution of title of Lot No. 398 because the records of the Register of Deeds, Roxas City were burned during the war. On 3 October 2001, the Court held that the trial courts order of reconstitution was void for lack of factual support because it was based merely on the plan and technical description approved by the Land Registration Authority.5 Meanwhile, on 26 January 1995, petitioner Republic of the Philippines (petitioner), through the Office of the Solicitor General (OSG), filed with the Regional Trial Court of Roxas City a Complaint6 for Reversion of Title against private respondents and the Register of Deeds of Roxas City, praying that (1) the sale of Lot No. 398 to Lee Liong be set aside for being null and void ab initio; and (2) Lot No. 398 be reverted to the public domain for the States disposal in accordance with law. In their Answer, private respondents invoked as affirmative defenses: (1) prescription; (2) private ownership of Lot No. 398; and (3) Lee Liongs being a buyer in good faith and for value. Furthermore, private respondents claimed that as Filipino citizens, they are qualified to acquire Lot No. 398 by succession. The Register of Deeds of Roxas City did not file an answer. On 7 May 1996, the trial court rendered a decision ordering the reversion of Lot No. 398 to the State. On appeal, the Court of Appeals rendered its Decision7 dated 12 July 2002, reversing the trial courts decision and declaring private respondents as the absolute and lawful owners of Lot No. 398. Petitioner moved for reconsideration, which the Court of Appeals denied in its Resolution8 dated 9 May 2003.

Hence, this petition for review. The Ruling of the Trial Court The trial court ordered the reversion of Lot No. 398 to the State. The trial court held that private respondents could not have acquired a valid title over Lot No. 398 because the sale of the lot to their predecessor-in-interest Lee Liong was null and void. Being an innocent purchaser in good faith and for value did not cure Lee Liongs disqualification as an alien who is prohibited from acquiring land under the Constitution. The trial court further held that prescription cannot be invoked against the State as regards an action for reversion or reconveyance of land to the State. The Ruling of the Court of Appeals The Court of Appeals agreed with the trial court that the State is not barred by prescription. However, the Court of Appeals held that the trial court erred in ordering the reversion of Lot No. 398 to the State. Although the sale of Lot No. 398 to Lee Liong violated the constitutional prohibition on aliens acquiring land, the Court of Appeals noted that Lot No. 398 had already been acquired by private respondents through succession. The transfer of Lot No. 398 to private respondents, who are Filipino citizens qualified to acquire lands, can no longer be impugned on the basis of the invalidity of the initial transfer. The flaw in the original transaction is considered cured and the title of the transferee is deemed valid considering that the objective of the constitutional proscription against alien ownership of lands, that is to keep our lands in Filipino hands, has been achieved. The Issue Petitioner raises the lone issue that: THE COURT OF APPEALS GRAVELY ERRED WHEN IT REVERSED AND SET ASIDE THE APPEALED DECISION AND DECLARED PRIVATE RESPONDENTS THE ABSOLUTE AND LAWFUL OWNERS AND POSSESSORS OF LOT NO. 398 OF ROXAS CITY CADASTRE CONSIDERING THAT LEE LIONG, WHO IS AN ALIEN, AND THUS, CONSTITUTIONALLY PROHIBITED TO OWN REAL PROPERTY IN THE PHILIPPINES, ACQUIRED NO RIGHT OR TITLE OVER SUBJECT LOT WHICH HE COULD HAVE TRANSMITTED BY SUCCESSION TO PRIVATE RESPONDENTS PREDECESSORS-IN-INTEREST. The Ruling of the Court The petition is without merit. Petitioner argues that since the sale of Lot No. 398 to Lee Liong was void, Lot No. 398 never became part of the deceased Lee Liongs estate. Hence, Lot No. 398 could not be transmitted by succession to Lee Liongs surviving heirs and eventually to private respondents. We do not subscribe to petitioners position. The circumstances of this case are similar to the case of De Castro v. Teng Queen Tan,9 wherein a residential lot was sold to a Chinese citizen. Upon the death of the alien vendee, his heirs entered into an extrajudicial settlement of the estate of the deceased and the subject land was transferred to a son who was a naturalized Filipino. Subsequently, the vendor of the lot filed a suit for annulment of sale for alleged violation of the Constitution prohibiting the sale of land to aliens. Independently of the doctrine of in pari delicto, the Court sustained the sale, holding that while the vendee was an alien

at the time of the sale, the land has since become the property of a naturalized Filipino citizen who is constitutionally qualified to own land. Similarly, in this case, upon the death of the original vendee who was a Chinese citizen, his widow and two sons extrajudicially settled his estate, including Lot No. 398. When the two sons died, Lot No. 398 was transferred by succession to their respective spouses, herein private respondents who are Filipino citizens. We now discuss whether reversion proceedings is still viable considering that Lot No. 398 has already been transfered to Filipino citizens. In the reconstitution case of Lee v. Republic of the Philippines10 involving Lot No. 398, this Court explained that the OSG may initiate an action for reversion or escheat of lands which were sold to aliens disqualified from acquiring lands under the Constitution. However, in the case of Lot No. 398, the fact that it was already transferred to Filipinos militates against escheat proceedings, thus: Although ownership of the land cannot revert to the original sellers, because of the doctrine of pari delicto, the Solicitor General may initiate an action for reversion or escheat of the land to the State, subject to other defenses, as hereafter set forth. In this case, subsequent circumstances mili0tate against 0escheat proceedings because the land is now in the hands of Filipinos. The original vendee, Lee Liong, has since died and the land has been inherited by his heirs and subsequently their heirs, petitioners herein [Elizabeth Lee and Pacita Yu Lee]. Petitioners are Filipino citizens, a fact the Solicitor General does not dispute. The constitutional proscription on alien ownership of lands of the public or private domain was intended to protect lands from falling in the hands of non-Filipinos. In this case, however, there would be no more public policy violated since the land is in the hands of Filipinos qualified to acquire and own such land. "If land is invalidly transferred to an alien who subsequently becomes a citizen or transfers it to a citizen, the flaw in the original transaction is considered cured and the title of the transferee is rendered valid." Thus, the subsequent transfer of the property to qualified Filipinos may no longer be impugned on the basis of invalidity of the initial transfer. The objective of the constitutional provision to keep our lands in Filipino hands has been achieved.11 (Emphasis supplied) In this case, the reversion proceedings was initiated only after almost 40 years from the promulgation of the case of Dinglasan v. Lee Bun Ting,12 where the Court held that the sale of Lot No. 398 was null and void for violating the constitutional prohibition on the sale of land to an alien. If petitioner had commenced reversion proceedings when Lot No. 398 was still in the hands of the original vendee who was an alien disqualified to hold title thereto, then reversion of the land to the State would undoubtedly be allowed. However, this is not the case here. When petitioner instituted the action for reversion of title in 1995, Lot No. 398 had already been transferred by succession to private respondents who are Filipino citizens.1avvphi1 Since Lot No. 398 has already been transferred to Filipino citizens, the flaw in the original transaction is considered cured.13 As held in Chavez v. Public Estates Authority:14 Thus, the Court has ruled consistently that where a Filipino citizen sells land to an alien who later sells the land to a

Filipino, the invalidity of the first transfer is corrected by the subsequent sale to a citizen. Similarly, where the alien who buys the land subsequently acquires Philippine citizenship, the sale was validated since the purpose of the constitutional ban to limit land ownership to Filipinos has been achieved. In short, the law disregards the constitutional disqualification of the buyer to hold land if the land is subsequently transferred to a qualified party, or the buyer himself becomes a qualified party.15 (Emphasis supplied) Clearly, since Lot No. 398 has already been transferred to private respondents who are Filipino citizens, the prior invalid sale to Lee Liong can no longer be assailed. Hence, reversion proceedings will no longer prosper since the land is now in the hands of Filipino citizens. WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 12 July 2002 and the Resolution dated 9 May 2003 of the Court of Appeals in CA-G.R. CV No. 53890. SO ORDERED. G.R. No. 192413 June 13, 2012

Rizal Commercial Banking Corporation, Petitioner, vs. Hi-Tri Development Corporation and Luz R. Bakunawa, Respondents. DECISION SERENO, J.: Before the Court is a Rule 45 Petition for Review on Certiorari filed by petitioner Rizal Commercial Banking Corporation (RCBC) against respondents Hi-Tri Development Corporation (Hi-Tri) and Luz R. Bakunawa (Bakunawa). Petitioner seeks to appeal from the 26 November 2009 Decision and 27 May 2010 Resolution of the Court of Appeals (CA),1 which reversed and set aside the 19 May 2008 Decision and 3 November 2008 Order of the Makati City Regional Trial Court (RTC) in Civil Case No. 06-244.2 The case before the RTC involved the Complaint for Escheat filed by the Republic of the Philippines (Republic) pursuant to Act No. 3936, as amended by Presidential Decree No. 679 (P.D. 679), against certain deposits, credits, and unclaimed balances held by the branches of various banks in the Philippines. The trial court declared the amounts, subject of the special proceedings, escheated to the Republic and ordered them deposited with the Treasurer of the Philippines (Treasurer) and credited in favor of the Republic.3 The assailed RTC judgments included an unclaimed balance in the amount of P 1,019,514.29, maintained by RCBC in its Ermita Business Center branch. We quote the narration of facts of the CA4 as follows: x x x Luz [R.] Bakunawa and her husband Manuel, now deceased ("Spouses Bakunawa") are registered owners of six (6) parcels of land covered by TCT Nos. 324985 and 324986 of the Quezon City Register of Deeds, and TCT Nos. 103724, 98827, 98828 and 98829 of the Marikina Register of Deeds. These lots were sequestered by the Presidential Commission on Good Government [(PCGG)]. Sometime in 1990, a certain Teresita Millan ("Millan"), through her representative, Jerry Montemayor, offered to buy said lots for "P 6,724,085.71", with the promise that she will take care of clearing whatever preliminary obstacles there

may[]be to effect a "completion of the sale". The Spouses Bakunawa gave to Millan the Owners Copies of said TCTs and in turn, Millan made a down[]payment of "P 1,019,514.29" for the intended purchase. However, for one reason or another, Millan was not able to clear said obstacles. As a result, the Spouses Bakunawa rescinded the sale and offered to return to Millan her down[]payment of P 1,019,514.29. However, Millan refused to accept back the P 1,019,514.29 down[]payment. Consequently, the Spouses Bakunawa, through their company, the Hi-Tri Development Corporation ("Hi-Tri") took out on October 28, 1991, a Managers Check from RCBC Ermita in the amount of P 1,019,514.29, payable to Millans company Rosmil Realty and Development Corporation ("Rosmil") c/o Teresita Millan and used this as one of their basis for a complaint against Millan and Montemayor which they filed with the Regional Trial Court of Quezon City, Branch 99, docketed as Civil Case No. Q-91-10719 [in 1991], praying that: 1. That the defendants Teresita Mil[l]an and Jerry Montemayor may be ordered to return to plaintiffs spouses the Owners Copies of Transfer Certificates of Title Nos. 324985, 324986, 103724, 98827, 98828 and 98829; 2. That the defendant Teresita Mil[l]an be correspondingly ordered to receive the amount of One Million Nineteen Thousand Five Hundred Fourteen Pesos and Twenty Nine Centavos (P 1,019,514.29); 3. That the defendants be ordered to pay to plaintiffs spouses moral damages in the amount of P2,000,000.00; and 4. That the defendants be ordered to pay plaintiffs attorneys fees in the amount of P 50,000.00. Being part and parcel of said complaint, and consistent with their prayer in Civil Case No. Q-91-10719 that "Teresita Mil[l]an be correspondingly ordered to receive the amount of One Million Nineteen Thousand Five Hundred Fourteen Pesos and Twenty Nine [Centavos] ("P 1,019,514.29")["], the Spouses Bakunawa, upon advice of their counsel, retained custody of RCBC Managers Check No. ER 034469 and refrained from canceling or negotiating it. All throughout the proceedings in Civil Case No. Q-91-10719, especially during negotiations for a possible settlement of the case, Millan was informed that the Managers Check was available for her withdrawal, she being the payee. On January 31, 2003, during the pendency of the abovementioned case and without the knowledge of [Hi-Tri and Spouses Bakunawa], x x x RCBC reported the "P 1,019,514.29-credit existing in favor of Rosmil" to the Bureau of Treasury as among its "unclaimed balances" as of January 31, 2003. Allegedly, a copy of the Sworn Statement executed by Florentino N. Mendoza, Manager and Head of RCBCs Asset Management, Disbursement & Sundry Department ("AMDSD") was posted within the premises of RCBC-Ermita. On December 14, 2006, x x x Republic, through the [Office of the Solicitor General (OSG)], filed with the RTC the action below for Escheat [(Civil Case No. 06-244)]. On April 30, 2008, [Spouses Bakunawa] settled amicably their dispute with Rosmil and Millan. Instead of only the amount of "P 1,019,514.29", [Spouses Bakunawa] agreed to pay Rosmil

and Millan the amount of "P3,000,000.00", [which is] inclusive [of] the amount of ["]P 1,019,514.29". But during negotiations and evidently prior to said settlement, [Manuel Bakunawa, through Hi-Tri] inquired from RCBC-Ermita the availability of the P1,019,514.29 under RCBC Managers Check No. ER 034469. [Hi-Tri and Spouses Bakunawa] were however dismayed when they were informed that the amount was already subject of the escheat proceedings before the RTC. On April 17, 2008, [Manuel Bakunawa, through Hi-Tri] wrote x x x RCBC, viz: "We understand that the deposit corresponding to the amount of Php 1,019,514.29 stated in the Managers Check is currently the subject of escheat proceedings pending before Branch 150 of the Makati Regional Trial Court. Please note that it was our impression that the deposit would be taken from [Hi-Tris] RCBC bank account once an order to debit is issued upon the payees presentation of the Managers Check. Since the payee rejected the negotiated Managers Check, presentation of the Managers Check was never made. Consequently, the deposit that was supposed to be allocated for the payment of the Managers Check was supposed to remain part of the Corporation[s] RCBC bank account, which, thereafter, continued to be actively maintained and operated. For this reason, We hereby demand your confirmation that the amount of Php 1,019,514.29 continues to form part of the funds in the Corporations RCBC bank account, since pay-out of said amount was never ordered. We wish to point out that if there was any attempt on the part of RCBC to consider the amount indicated in the Managers Check separate from the Corporations bank account, RCBC would have issued a statement to that effect, and repeatedly reminded the Corporation that the deposit would be considered dormant absent any fund movement. Since the Corporation never received any statements of account from RCBC to that effect, and more importantly, never received any single letter from RCBC noting the absence of fund movement and advising the Corporation that the deposit would be treated as dormant." On April 28, 2008, [Manuel Bakunawa] sent another letter to x x x RCBC reiterating their position as above-quoted. In a letter dated May 19, 2008, x x x RCBC replied and informed [Hi-Tri and Spouses Bakunawa] that: "The Banks Ermita BC informed Hi-Tri and/or its principals regarding the inclusion of Managers Check No. ER034469 in the escheat proceedings docketed as Civil Case No. 06-244, as well as the status thereof, between 28 January 2008 and 1 February 2008. xxx xxx xxx

Contrary to what Hi-Tri hopes for, the funds covered by the Managers Check No. ER034469 does not form part of the Banks own account. By simple operation of law, the funds covered by the managers check in issue became a deposit/credit susceptible for inclusion in the escheat case initiated by the OSG and/or Bureau of Treasury. xxx xxx xxx

Granting arguendo that the Bank was duty-bound to make good the check, the Banks obligation to do so prescribed as early as October 2001." (Emphases, citations, and annotations were omitted.) The RTC Ruling The escheat proceedings before the Makati City RTC continued. On 19 May 2008, the trial court rendered its assailed Decision declaring the deposits, credits, and unclaimed balances subject of Civil Case No. 06-244 escheated to the Republic. Among those included in the order of forfeiture was the amount of P 1,019,514.29 held by RCBC as allocated funds intended for the payment of the Managers Check issued in favor of Rosmil. The trial court ordered the deposit of the escheated balances with the Treasurer and credited in favor of the Republic. Respondents claim that they were not able to participate in the trial, as they were not informed of the ongoing escheat proceedings. Consequently, respondents filed an Omnibus Motion dated 11 June 2008, seeking the partial reconsideration of the RTC Decision insofar as it escheated the fund allocated for the payment of the Managers Check. They asked that they be included as party-defendants or, in the alternative, allowed to intervene in the case and their motion considered as an answer-in-intervention. Respondents argued that they had meritorious grounds to ask reconsideration of the Decision or, alternatively, to seek intervention in the case. They alleged that the deposit was subject of an ongoing dispute (Civil Case No. Q-91-10719) between them and Rosmil since 1991, and that they were interested parties to that case.5 On 3 November 2008, the RTC issued an Order denying the motion of respondents. The trial court explained that the Republic had proven compliance with the requirements of publication and notice, which served as notice to all those who may be affected and prejudiced by the Complaint for Escheat. The RTC also found that the motion failed to point out the findings and conclusions that were not supported by the law or the evidence presented, as required by Rule 37 of the Rules of Court. Finally, it ruled that the alternative prayer to intervene was filed out of time. The CA Ruling On 26 November 2009, the CA issued its assailed Decision reversing the 19 May 2008 Decision and 3 November 2008 Order of the RTC. According to the appellate court,6 RCBC failed to prove that the latter had communicated with the purchaser of the Managers Check (Hi-Tri and/or Spouses Bakunawa) or the designated payee (Rosmil) immediately before the bank filed its Sworn Statement on the dormant accounts held therein. The CA ruled that the banks failure to notify respondents deprived them of an opportunity to intervene in the escheat proceedings and to present evidence to substantiate their claim, in violation of their right to due process. Furthermore, the CA pronounced that the Makati City RTC Clerk of Court failed to issue individual notices directed to all persons claiming interest in the unclaimed balances, as well as to require them to appear after publication and show cause why the unclaimed balances should not be deposited with the Treasurer of the Philippines. It explained that the jurisdictional requirement of individual notice by personal service was distinct from the requirement of notice by publication. Consequently, the CA held that the Decision and Order of the RTC were void for want of jurisdiction. Issue

After a perusal of the arguments presented by the parties, we cull the main issues as follows: I. Whether the Decision and Order of the RTC were void for failure to send separate notices to respondents by personal service II. Whether petitioner had the obligation to notify respondents immediately before it filed its Sworn Statement with the Treasurer III. Whether or not the allocated funds may be escheated in favor of the Republic Discussion Petitioner bank assails7 the CA judgments insofar as they ruled that notice by personal service upon respondents is a jurisdictional requirement in escheat proceedings. Petitioner contends that respondents were not the owners of the unclaimed balances and were thus not entitled to notice from the RTC Clerk of Court. It hinges its claim on the theory that the funds represented by the Managers Check were deemed transferred to the credit of the payee or holder upon its issuance. We quote the pertinent provision of Act No. 3936, as amended, on the rule on service of processes, to wit: Sec. 3. Whenever the Solicitor General shall be informed of such unclaimed balances, he shall commence an action or actions in the name of the People of the Republic of the Philippines in the Court of First Instance of the province or city where the bank, building and loan association or trust corporation is located, in which shall be joined as parties the bank, building and loan association or trust corporation and all such creditors or depositors. All or any of such creditors or depositors or banks, building and loan association or trust corporations may be included in one action. Service of process in such action or actions shall be made by delivery of a copy of the complaint and summons to the president, cashier, or managing officer of each defendant bank, building and loan association or trust corporation and by publication of a copy of such summons in a newspaper of general circulation, either in English, in Filipino, or in a local dialect, published in the locality where the bank, building and loan association or trust corporation is situated, if there be any, and in case there is none, in the City of Manila, at such time as the court may order. Upon the trial, the court must hear all parties who have appeared therein, and if it be determined that such unclaimed balances in any defendant bank, building and loan association or trust corporation are unclaimed as hereinbefore stated, then the court shall render judgment in favor of the Government of the Republic of the Philippines, declaring that said unclaimed balances have escheated to the Government of the Republic of the Philippines and commanding said bank, building and loan association or trust corporation to forthwith deposit the same with the Treasurer of the Philippines to credit of the Government of the Republic of the Philippines to be used as the National Assembly may direct. At the time of issuing summons in the action above provided for, the clerk of court shall also issue a notice signed by him, giving the title and number of said action, and referring to the complaint therein, and directed to all persons, other than those named as defendants therein, claiming any interest in any unclaimed balance mentioned in said complaint, and requiring them to appear within sixty days after the publication or first publication, if there are several, of such

summons, and show cause, if they have any, why the unclaimed balances involved in said action should not be deposited with the Treasurer of the Philippines as in this Act provided and notifying them that if they do not appear and show cause, the Government of the Republic of the Philippines will apply to the court for the relief demanded in the complaint. A copy of said notice shall be attached to, and published with the copy of, said summons required to be published as above, and at the end of the copy of such notice so published, there shall be a statement of the date of publication, or first publication, if there are several, of said summons and notice. Any person interested may appear in said action and become a party thereto. Upon the publication or the completion of the publication, if there are several, of the summons and notice, and the service of the summons on the defendant banks, building and loan associations or trust corporations, the court shall have full and complete jurisdiction in the Republic of the Philippines over the said unclaimed balances and over the persons having or claiming any interest in the said unclaimed balances, or any of them, and shall have full and complete jurisdiction to hear and determine the issues herein, and render the appropriate judgment thereon. (Emphasis supplied.) Hence, insofar as banks are concerned, service of processes is made by delivery of a copy of the complaint and summons upon the president, cashier, or managing officer of the defendant bank.8 On the other hand, as to depositors or other claimants of the unclaimed balances, service is made by publication of a copy of the summons in a newspaper of general circulation in the locality where the institution is situated.9 A notice about the forthcoming escheat proceedings must also be issued and published, directing and requiring all persons who may claim any interest in the unclaimed balances to appear before the court and show cause why the dormant accounts should not be deposited with the Treasurer. Accordingly, the CA committed reversible error when it ruled that the issuance of individual notices upon respondents was a jurisdictional requirement, and that failure to effect personal service on them rendered the Decision and the Order of the RTC void for want of jurisdiction. Escheat proceedings are actions in rem,10whereby an action is brought against the thing itself instead of the person.11 Thus, an action may be instituted and carried to judgment without personal service upon the depositors or other claimants.12 Jurisdiction is secured by the power of the court over the res.13 Consequently, a judgment of escheat is conclusive upon persons notified by advertisement, as publication is considered a general and constructive notice to all persons interested.14 Nevertheless, we find sufficient grounds to affirm the CA on the exclusion of the funds allocated for the payment of the Managers Check in the escheat proceedings. Escheat proceedings refer to the judicial process in which the state, by virtue of its sovereignty, steps in and claims abandoned, left vacant, or unclaimed property, without there being an interested person having a legal claim thereto.15 In the case of dormant accounts, the state inquires into the status, custody, and ownership of the unclaimed balance to determine whether the inactivity was brought about by the fact of death or absence of or abandonment by the depositor.16 If after the proceedings the property remains without a lawful owner interested to claim it, the property shall be reverted to the state "to forestall an open invitation to self-service by the first comers."17 However, if interested parties have come forward and lain claim to the property, the courts shall determine whether the credit or deposit should pass to the claimants or be forfeited in favor of the state.18 We emphasize that escheat is not a proceeding to

penalize depositors for failing to deposit to or withdraw from their accounts. It is a proceeding whereby the state compels the surrender to it of unclaimed deposit balances when there is substantial ground for a belief that they have been abandoned, forgotten, or without an owner.19 Act No. 3936, as amended, outlines the proper procedure to be followed by banks and other similar institutions in filing a sworn statement with the Treasurer concerning dormant accounts: Sec. 2. Immediately after the taking effect of this Act and within the month of January of every odd year, all banks, building and loan associations, and trust corporations shall forward to the Treasurer of the Philippines a statement, under oath, of their respective managing officers, of all credits and deposits held by them in favor of persons known to be dead, or who have not made further deposits or withdrawals during the preceding ten years or more, arranged in alphabetical order according to the names of creditors and depositors, and showing: (a) The names and last known place of residence or post office addresses of the persons in whose favor such unclaimed balances stand; (b) The amount and the date of the outstanding unclaimed balance and whether the same is in money or in security, and if the latter, the nature of the same; (c) The date when the person in whose favor the unclaimed balance stands died, if known, or the date when he made his last deposit or withdrawal; and (d) The interest due on such unclaimed balance, if any, and the amount thereof. A copy of the above sworn statement shall be posted in a conspicuous place in the premises of the bank, building and loan association, or trust corporation concerned for at least sixty days from the date of filing thereof: Provided, That immediately before filing the above sworn statement, the bank, building and loan association, and trust corporation shall communicate with the person in whose favor the unclaimed balance stands at his last known place of residence or post office address. It shall be the duty of the Treasurer of the Philippines to inform the Solicitor General from time to time the existence of unclaimed balances held by banks, building and loan associations, and trust corporations. (Emphasis supplied.) As seen in the afore-quoted provision, the law sets a detailed system for notifying depositors of unclaimed balances. This notification is meant to inform them that their deposit could be escheated if left unclaimed. Accordingly, before filing a sworn statement, banks and other similar institutions are under obligation to communicate with owners of dormant accounts. The purpose of this initial notice is for a bank to determine whether an inactive account has indeed been unclaimed, abandoned, forgotten, or left without an owner. If the depositor simply does not wish to touch the funds in the meantime, but still asserts ownership and dominion over the dormant account, then the bank is no longer obligated to include the account in its sworn statement.20 It is not the intent of the law to force depositors into unnecessary litigation and defense of their rights, as the state is only interested in escheating balances that have been abandoned and left without an owner.

In case the bank complies with the provisions of the law and the unclaimed balances are eventually escheated to the Republic, the bank "shall not thereafter be liable to any person for the same and any action which may be brought by any person against in any bank xxx for unclaimed balances so deposited xxx shall be defended by the Solicitor General without cost to such bank."21 Otherwise, should it fail to comply with the legally outlined procedure to the prejudice of the depositor, the bank may not raise the defense provided under Section 5 of Act No. 3936, as amended. Petitioner asserts22 that the CA committed a reversible error when it required RCBC to send prior notices to respondents about the forthcoming escheat proceedings involving the funds allocated for the payment of the Managers Check. It explains that, pursuant to the law, only those "whose favor such unclaimed balances stand" are entitled to receive notices. Petitioner argues that, since the funds represented by the Managers Check were deemed transferred to the credit of the payee upon issuance of the check, the proper party entitled to the notices was the payee Rosmil and not respondents. Petitioner then contends that, in any event, it is not liable for failing to send a separate notice to the payee, because it did not have the address of Rosmil. Petitioner avers that it was not under any obligation to record the address of the payee of a Managers Check. In contrast, respondents Hi-Tri and Bakunawa allege23 that they have a legal interest in the fund allocated for the payment of the Managers Check. They reason that, since the funds were part of the Compromise Agreement between respondents and Rosmil in a separate civil case, the approval and eventual execution of the agreement effectively reverted the fund to the credit of respondents. Respondents further posit that their ownership of the funds was evidenced by their continued custody of the Managers Check. An ordinary check refers to a bill of exchange drawn by a depositor (drawer) on a bank (drawee),24 requesting the latter to pay a person named therein (payee) or to the order of the payee or to the bearer, a named sum of money.25 The issuance of the check does not of itself operate as an assignment of any part of the funds in the bank to the credit of the drawer.26 Here, the bank becomes liable only after it accepts or certifies the check.27After the check is accepted for payment, the bank would then debit the amount to be paid to the holder of the check from the account of the depositordrawer. There are checks of a special type called managers or cashiers checks. These are bills of exchange drawn by the banks manager or cashier, in the name of the bank, against the bank itself.28 Typically, a managers or a cashiers check is procured from the bank by allocating a particular amount of funds to be debited from the depositors account or by directly paying or depositing to the bank the value of the check to be drawn. Since the bank issues the check in its name, with itself as the drawee, the check is deemed accepted in advance.29Ordinarily, the check becomes the primary obligation of the issuing bank and constitutes its written promise to pay upon demand.30 Nevertheless, the mere issuance of a managers check does not ipso facto work as an automatic transfer of funds to the account of the payee. In case the procurer of the managers or cashiers check retains custody of the instrument, does not tender it to the intended payee, or fails to make an effective delivery, we find the following provision on undelivered instruments under the Negotiable Instruments Law applicable:31

Sec. 16. Delivery; when effectual; when presumed. Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting, or indorsing, as the case may be; and, in such case, the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved. (Emphasis supplied.) Petitioner acknowledges that the Managers Check was procured by respondents, and that the amount to be paid for the check would be sourced from the deposit account of HiTri.32 When Rosmil did not accept the Managers Check offered by respondents, the latter retained custody of the instrument instead of cancelling it. As the Managers Check neither went to the hands of Rosmil nor was it further negotiated to other persons, the instrument remained undelivered. Petitioner does not dispute the fact that respondents retained custody of the instrument.33 Since there was no delivery, presentment of the check to the bank for payment did not occur. An order to debit the account of respondents was never made. In fact, petitioner confirms that the Managers Check was never negotiated or presented for payment to its Ermita Branch, and that the allocated fund is still held by the bank.34 As a result, the assigned fund is deemed to remain part of the account of Hi-Tri, which procured the Managers Check. The doctrine that the deposit represented by a managers check automatically passes to the payee is inapplicable, because the instrument although accepted in advance remains undelivered. Hence, respondents should have been informed that the deposit had been left inactive for more than 10 years, and that it may be subjected to escheat proceedings if left unclaimed.1wphi1 After a careful review of the RTC records, we find that it is no longer necessary to remand the case for hearing to determine whether the claim of respondents was valid. There was no contention that they were the procurers of the Managers Check. It is undisputed that there was no effective delivery of the check, rendering the instrument incomplete. In addition, we have already settled that respondents retained ownership of the funds. As it is obvious from their foregoing actions that they have not abandoned their claim over the fund, we rule that the allocated deposit, subject of the Managers Check, should be excluded from the escheat proceedings. We reiterate our pronouncement that the objective of escheat proceedings is state forfeiture of unclaimed balances. We further note that there is nothing in the records that would show that the OSG appealed the assailed CA judgments. We take this failure to appeal as an indication of disinterest in pursuing the escheat proceedings in favor of the Republic. WHEREFORE the Petition is DENIED. The 26 November 2009 Decision and 27 May 2010 Resolution of the Court of Appeals in CA-G.R. SP No. 107261 are hereby AFFIRMED. SO ORDERED. MALACAANG Manila

PRESIDENTIAL DECREE No. 679 April 2, 1975 AMENDING ACT NUMBERED THIRTY NINE HUNDRED AND THIRTY SIX, AN ACT REQUIRING BANKS, TRUST CORPORATIONS, AND BUILDING AND LOAN ASSOCIATIONS, TO TRANSFER UNCLAIMED BALANCES HELD BY THEM TO THE TREASURER OF THE PHILIPPINES AND FOR OTHER PURPOSES. WHEREAS, Act No. 3936 requires the publication of a sworn statement of unclaimed balances in banks once a week of three consecutive weeks in at least two newspapers of general circulation in the locality where the banks are situated, if there be any, and if there is none, in the City of Manila, one in English and one in Spanish, the cost of which shall be paid by the Bureau of Treasury, which shall be reimbursed out of the escheated funds; WHEREAS, the law also provides for the publication of summons and a notice upon the commencement of the prescribed judicial proceedings for the escheat of unclaimed balances; WHEREAS, past experience has shown that the cost of publication required by law, the increase of which has been substantial the past few years, is more than the aggregate amount of the unclaimed balances to be escheated, the average amount of which is small; WHEREAS, there is a felt need to simplify the procedure for the escheat of unclaimed balances for the purpose of reducing the expenses therefor; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby decree and order: Section 1. Sections 1, 2, 3, 4, and 5 of Act No. 3936 are hereby amended to read as follows: "Sec. 1. "Unclaimed balances", within the meaning of this Act, shall include credits or deposits of money, bullion, security or other evidence of indebtedness of any kind, and interest thereon with banks, buildings and loan associations, and trust corporations, as hereinafter defined, in favor of any person known to be dead or who has not made further deposits or withdrawals during the preceding ten years or more. Such unclaimed balances, together with the increase and proceeds thereof, shall be deposited with the Treasurer of the Philippines to the credit of the Government of the Republic of the Philippines to be used as the National Assembly may direct. "Banks", "building and loan associations" and "trust corporations", within the meaning of this Act, shall refer to institutions defined under Section two, thirty-nine and fiftysix, respectively, of Republic Act Numbered Three Hundred Thirty Seven, otherwise known as the General Banking Act, as amended, whether organized under special charters or not. "Sec. 2. Immediately after the taking effect of this Act and within the month of January of every odd year, all banks, building and loan associations, and trust corporations shall forward to the Treasurer of the Philippines a statement, under oath, of their respective managing officers, of all credits and deposits held by them in favor of persons known to be dead, or who have not made further deposits or withdrawals during the preceding ten years or more, arranged in alphabetical

order according to the names of creditors and depositors, and showing: "(a) The names and last known place of residence or post office addresses of the persons in whose favor such unclaimed balances stand; "(b) The amount and the date of the outstanding unclaimed balance and whether the same is in money or in security, and if the latter, the nature of the same; "(c) The date when the person in whose favor the unclaimed balance stands died, if known, or the date when he made his last deposit or withdrawal; and "(d) The interest due on such unclaimed balance, if any, and the amount thereof. "A copy of the above sworn statement shall be posted in a conspicuous place in the premises of the bank, building and loan association, or trust corporation concerned for at least sixty days from the date of filing thereof: Provided, That immediately before filing the above sworn statement, the bank, building and loan association, and trust corporation shall communicate with the person in whose favor the unclaimed balance stands at his last known place of residence or post office address. "It shall be the duty of the Treasurer of the Philippines to inform the Solicitor General from time to time the existence of unclaimed balances held by banks, building and loan associations, and trust corporations. "Sec. 3. Whenever the Solicitor General shall be informed of such unclaimed balances, he shall commence an action or actions in the name of the People of the Republic of the Philippines in the Court of First Instance of the province or city where the bank, building and loan association or trust corporation is located, in which shall be joined as parties the bank, building and loan association or trust corporation and all such creditors or depositors. All or any of such creditors or depositors or banks, building and loan association or trust corporations may be included in one action. Service of process in such action or actions shall be made by delivery of a copy of the complaint and summons to the president, cashier, or managing officer of each defendant bank, building and loan association or trust corporation and by publication of a copy of such summons in a newspaper of general circulation, either in English, in Filipino, or in a local dialect, published in the locality where the bank, building and loan association or trust corporation is situated, if there be any, and in case there is none, in the City of Manila, at such time as the court may order. Upon the trial, the court must hear all parties who have appeared therein, and if it be determined that such unclaimed balances in any defendant bank, building and loan association or trust corporation are unclaimed as hereinbefore stated, then the court shall render judgment in favor of the Government of the Republic of the Philippines, declaring that said unclaimed balances have escheated to the Government of the Republic of the Philippines and commanding said bank, building and loan association or trust corporation to forthwith deposit the same with the Treasurer of the Philippines to credit of the Government of the Republic of the Philippines to be used as the National Assembly may direct. "At the time of issuing summons in the action above provided for, the clerk of court shall also issue a notice signed by him, giving the title and number of said action, and referring to the

complaint therein, and directed to all persons, other than those named as defendants therein, claiming any interest in any unclaimed balance mentioned in said complaint, and requiring them to appear within sixty days after the publication or first publication, if there are several, of such summons, and show cause, if they have any, why the unclaimed balances involved in said action should not be deposited with the Treasurer of the Philippines as in this Act provided and notifying them that if they do not appear and show cause, the Government of the Republic of the Philippines will apply to the court for the relief demanded in the complaint. A copy of said notice shall be attached to, and published with the copy of, said summons required to be published as above, and at the end of the copy of such notice so published, there shall be a statement of the date of publication, or first publication, if there are several, of said summons and notice. Any person interested may appear in said action and become a party thereto. Upon the publication or the completion of the publication, if there are several, of the summons and notice, and the service of the summons on the defendant banks, building and loan associations or trust corporations, the court shall have full and complete jurisdiction in the Republic of the Philippines over the said unclaimed balances and over the persons having or claiming any interest in the said unclaimed balances, or any of them, and shall have full and complete jurisdiction to hear and determine the issues herein, and render the appropriate judgment thereon. "Sec. 4. If the president, cashier or managing officer of the bank, building and loan association, or trust corporation neglects or refuses to make and file the sworn statement required by this action, such bank, building and loan association, or trust corporation shall pay to the Government the sum of five hundred pesos a month for each month or fraction thereof during which such default shall continue. "Sec. 5. Any bank, building and loan association or trust corporation which shall make any deposit with the Treasurer of the Philippines in conformity with the provisions of this Act shall not thereafter be liable to any person for the same and any action which may be brought by any person against in any bank, building and loan association, or trust corporation for unclaimed balances so deposited with the Treasurer of the Philippines shall be defended by the Solicitor General without cost to such bank, building and loan association or trust corporation." Section 2. This Decree shall take effect immediately. DONE in the City of Manila, this 2nd day of April, in the year of Our Lord, nineteen hundred and seventy-five. WRIT OF HABEAS CORPUS G.R. No. 160792 August 25, 2005 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF CAPT. GARY ALEJANO, PN (MARINES) CAPT. NICANOR FAELDON, PN (MARINES) CAPT. GERARDO GAMBALA, PA LT. SG JAMES LAYUG, PN CAPT. MILO MAESTRECAMPO, PA LT. SG ANTONIO TRILLANES IV, PN HOMOBONO ADAZA, and ROBERTO RAFAEL (ROEL) PULIDO, Petitioners, vs. GEN. PEDRO CABUAY, GEN. NARCISO ABAYA, SEC. ANGELO REYES, and SEC. ROILO GOLEZ,Respondents. DECISION

CARPIO, J.: The Case This petition for review1 seeks to nullify the Decision2 of the Court of Appeals dated 17 September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545. The Court of Appeals Decision and Resolution dismissed the petition for habeas corpus filed by lawyers Homobono Adaza and Roberto Rafael Pulido ("petitioners") on behalf of their detained clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) ("detainees"). Petitioners named as respondent Gen. Pedro Cabuay ("Gen. Cabuay"), Chief of the Intelligence Service of the Armed Forces of the Philippines ("ISAFP"), who has custody of the detainees. Petitioners impleaded Gen. Narciso Abaya ("Gen. Abaya"), Sec. Angelo Reyes and Roilo Golez, who are respectively the Chief of Staff of the Armed Forces of the Philippines ("AFP"), Secretary of National Defense and National Security Adviser, because they have command responsibility over Gen. Cabuay. Antecedent Facts Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior officers, entered and took control of the Oakwood Premier Luxury Apartments ("Oakwood"), an upscale apartment complex, located in the business district of Makati City. The soldiers disarmed the security officers of Oakwood and planted explosive devices in its immediate surroundings. The junior officers publicly renounced their support for the administration and called for the resignation of President Gloria Macapagal-Arroyo and several cabinet members. Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities after several negotiations with government emissaries. The soldiers later defused the explosive devices they had earlier planted. The soldiers then returned to their barracks. On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the Major Service Commanders to turn over custody of ten junior officers to the ISAFP Detention Center. The transfer took place while military and civilian authorities were investigating the soldiers involvement in the Oakwood incident. On 1 August 2003, government prosecutors filed an Information for coup detat with the Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the 27 July 2003 Oakwood incident. The government prosecutors accused the soldiers of coup detat as defined and penalized under Article 134-A of the Revised Penal Code of the Philippines, as amended. The case was docketed as Criminal Case No. 03-2784. The trial court later issued the Commitment Orders giving custody of junior officers Lt. SG Antonio Trillanes IV ("Trillanes") and Capt. Gerardo Gambala to the Commanding Officers of ISAFP. On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take into custody the military personnel under their command who took part in the Oakwood incident except the detained junior officers who were to remain under the custody of ISAFP.

On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme Court. On 12 August 2003, the Court issued a Resolution, which resolved to: (a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m. before the Court of Appeals; (c) refer the case to the Court of Appeals for RAFFLEamong the Justices thereof for hearing, further proceedings and decision thereon, after which a REPORT shall be made to this Court within ten (10) days from promulgation of the decision.3 Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing respondents to make a return of the writ and to appear and produce the persons of the detainees before the Court of Appeals on the scheduled date for hearing and further proceedings. On the same date, the detainees and their other co-accused filed with the Regional Trial Court of Makati City a Motion for Preliminary Investigation, which the trial court granted. On 18 August 2003, pursuant to the directives of the Court, respondents submitted their Return of the Writ and Answer to the petition and produced the detainees before the Court of Appeals during the scheduled hearing. After the parties filed their memoranda on 28 August 2003, the appellate court considered the petition submitted for decision. On 17 September 2003, the Court of Appeals rendered its decision dismissing the petition. Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of implementing the regulations in the ISAFP Detention Center, to uphold faithfully the rights of the detainees in accordance with Standing Operations Procedure No. 0263-04. The appellate court directed Gen. Cabuay to adhere to his commitment made in court regarding visiting hours and the detainees right to exercise for two hours a day. The Ruling of the Court of Appeals The Court of Appeals found the petition bereft of merit. The appellate court pointed out that the detainees are already charged of coup detat before the Regional Trial Court of Makati. Habeas corpus is unavailing in this case as the detainees confinement is under a valid indictment, the legality of which the detainees and petitioners do not even question. The Court of Appeals recognized that habeas corpus may also be the appropriate remedy to assail the legality of detention if there is a deprivation of a constitutional right. However, the appellate court held that the constitutional rights alleged to have been violated in this case do not directly affect the detainees liberty. The appellate court ruled that the regulation of the detainees right to confer with their counsels is reasonable under the circumstances. The appellate court declared that while the opening and reading of Trillanes letter is an abhorrent violation of his right to privacy of communication, this does not justify the issuance of a writ of habeas corpus. The violation does not amount to illegal restraint, which is the proper subject of habeas corpus proceedings. The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the promise he made in open court to uphold the visiting hours and the right of the detainees to

exercise for two hours a day. The dispositive portion of the appellate courts decision reads: WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED. Respondent Cabuay is hereby ORDERED to faithfully adhere to his commitment to uphold the constitutional rights of the detainees in accordance with the Standing Operations Procedure No. 0263-04 regarding visiting hours and the right of the detainees to exercise for two (2) hours a day. SO ORDERED.4 The Issues Petitioners raise the following issues for resolution: A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A DECISION OF THE SUPREME COURT; B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE CONDITIONS OF THE DETAINED JUNIOR OFFICERS DETENTION.5 The Ruling of the Court The petition lacks merit. Petitioners claim that the Courts 12 August 2003 Order granted the petition and the Court remanded the case to the Court of Appeals only for a factual hearing. Petitioners thus argue that the Courts Order had already foreclosed any question on the propriety and merits of their petition. Petitioners claim is baseless. A plain reading of the 12 August 2003 Order shows that the Court referred to the Court of Appeals the duty to inquire into the cause of the junior officers detention. Had the Court ruled for the detainees release, the Court would not have referred the hearing of the petition to the Court of Appeals. The Court would have forthwith released the detainees had the Court upheld petitioners cause. In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the hearing of the petition.6 The respondent must produce the person and explain the cause of his detention.7 However, this order is not a ruling on the propriety of the remedy or on the substantive matters covered by the remedy. Thus, the Courts order to the Court of Appeals to conduct a factual hearing was not an affirmation of the propriety of the remedy of habeas corpus. For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes the determination of the propriety of the remedy. If a court finds the alleged cause of the detention unlawful, then it should issue the writ and release the detainees. In the present case, after hearing the case, the Court of Appeals found that habeas corpus is inapplicable. After actively participating in the hearing before the Court of Appeals, petitioners are estopped from claiming that the appellate court had no jurisdiction to inquire into the merits of their petition.

The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper remedy to address the detainees complaint against the regulations and conditions in the ISAFP Detention Center. The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person.8 The purpose of the writ is to determine whether a person is being illegally deprived of his liberty.9 If the inquiry reveals that the detention is illegal, the court orders the release of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus very limited. It is not a writ of error.10 Neither can it substitute for an appeal.11 Nonetheless, case law has expanded the writs application to circumstances where there is deprivation of a persons constitutional rights. The writ is available where a person continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due process, where the restraints are not merely involuntary but are also unnecessary, and where a deprivation of freedom originally valid has later become arbitrary.12 However, a mere allegation of a violation of ones constitutional right is not sufficient. The courts will extend the scope of the writ only if any of the following circumstances is present: (a) there is a deprivation of a constitutional right resulting in the unlawful restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty is imposed and such sentence is void as to the excess.13 Whatever situation the petitioner invokes, the threshold remains high. The violation of constitutional right must be sufficient to void the entire proceedings.14 Petitioners admit that they do not question the legality of the detention of the detainees. Neither do they dispute the lawful indictment of the detainees for criminal and military offenses. What petitioners bewail is the regulation adopted by Gen. Cabuay in the ISAFP Detention Center preventing petitioners as lawyers from seeing the detainees their clients any time of the day or night. The regulation allegedly curtails the detainees right to counsel and violates Republic Act No. 7438 ("RA 7438").15 Petitioners claim that the regulated visits made it difficult for them to prepare for the important hearings before the Senate and the Feliciano Commission. Petitioners also point out that the officials of the ISAFP Detention Center violated the detainees right to privacy of communication when the ISAFP officials opened and read the personal letters of Trillanes and Capt. Milo Maestrecampo ("Maestrecampo"). Petitioners further claim that the ISAFP officials violated the detainees right against cruel and unusual punishment when the ISAFP officials prevented the detainees from having contact with their visitors. Moreover, the ISAFP officials boarded up with iron bars and plywood slabs the iron grills of the detention cells, limiting the already poor light and ventilation in the detainees cells. Pre-trial detainees do not forfeit their constitutional rights upon confinement.16 However, the fact that the detainees are confined makes their rights more limited than those of the public.17 RA 7438, which specifies the rights of detainees and the duties of detention officers, expressly recognizes the power of the detention officer to adopt and implement reasonable measures to secure the safety of the detainee and prevent his escape. Section 4(b) of RA 7438 provides: Section 4. Penalty Clause. a) x x x

b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister or by his counsel, from visiting and conferring privately chosen by him or by any member of his immediate family with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00). The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape. (Emphasis supplied) True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a detainee client "at any hour of the day or, in urgent cases, of the night." However, the last paragraph of the same Section 4(b) makes the express qualification that "notwithstanding" the provisions of Section 4(b), the detention officer has the power to undertake such reasonable measures as may be necessary to secure the safety of the detainee and prevent his escape. The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The regulations governing a detainees confinement must be "reasonable measures x x x to secure his safety and prevent his escape." Thus, the regulations must be reasonably connected to the governments objective of securing the safety and preventing the escape of the detainee. The law grants the detention officer the authority to "undertake such reasonable measures" or regulations. Petitioners contend that there was an actual prohibition of the detainees right to effective representation when petitioners visits were limited by the schedule of visiting hours. Petitioners assert that the violation of the detainees rights entitle them to be released from detention. Petitioners contention does not persuade us. The schedule of visiting hours does not render void the detainees indictment for criminal and military offenses to warrant the detainees release from detention. The ISAFP officials did not deny, but merely regulated, the detainees right to counsel. The purpose of the regulation is not to render ineffective the right to counsel, but to secure the safety and security of all detainees. American cases are instructive on the standards to determine whether regulations on pre-trial confinement are permissible. In Bell v. Wolfish,18 the United States (U.S.) Supreme Court held that regulations must be reasonably related to maintaining security and must not be excessive in achieving that purpose. Courts will strike down a restriction that is arbitrary and purposeless.19 However, Bell v. Wolfish expressly discouraged courts from skeptically questioning challenged restrictions in detention and prison facilities.20 The U.S. Supreme Court commanded the courts to afford administrators "wide-ranging deference" in implementing policies to maintain institutional security.21 In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to make regulations in detention centers allowable: "such reasonable measures as may be necessary to secure the detainees safety and prevent his escape." In the present case, the visiting hours accorded to the lawyers of the detainees are reasonably connected to

the legitimate purpose of securing the safety and preventing the escape of all detainees. While petitioners may not visit the detainees any time they want, the fact that the detainees still have face-to-face meetings with their lawyers on a daily basis clearly shows that there is no impairment of detainees right to counsel. Petitioners as counsels could visit their clients between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business hours, the same hours when lawyers normally entertain clients in their law offices. Clearly, the visiting hours pass the standard of reasonableness. Moreover, in urgent cases, petitioners could always seek permission from the ISAFP officials to confer with their clients beyond the visiting hours. The scheduled visiting hours provide reasonable access to the detainees, giving petitioners sufficient time to confer with the detainees. The detainees right to counsel is not undermined by the scheduled visits. Even in the hearings before the Senate and the Feliciano Commission,22 petitioners were given time to confer with the detainees, a fact that petitioners themselves admit.23 Thus, at no point were the detainees denied their right to counsel. Petitioners further argue that the bars separating the detainees from their visitors and the boarding of the iron grills in their cells with plywood amount to unusual and excessive punishment. This argument fails to impress us.Bell v. Wolfish pointed out that while a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law, detention inevitably interferes with a detainees desire to live comfortably.24The fact that the restrictions inherent in detention intrude into the detainees desire to live comfortably does not convert those restrictions into punishment.25 It is when the restrictions are arbitrary and purposeless that courts will infer intent to punish.26 Courts will also infer intent to punish even if the restriction seems to be related rationally to the alternative purpose if the restriction appears excessive in relation to that purpose.27 Jail officials are thus not required to use the least restrictive security measure.28 They must only refrain from implementing a restriction that appears excessive to the purpose it serves.29 We quote Bell v. Wolfish: One further point requires discussion. The petitioners assert, and respondents concede, that the "essential objective of pretrial confinement is to insure the detainees presence at trial." While this interest undoubtedly justifies the original decision to confine an individual in some manner, we do not accept respondents argument that the Governments interest in ensuring a detainees presence at trial is the only objective that may justify restraints and conditions once the decision is lawfully made to confine a person. "If the government could confine or otherwise infringe the liberty of detainees only to the extent necessary to ensure their presence at trial, house arrest would in the end be the only constitutionally justified form of detention." The Government also has legitimate interests that stem from its need to manage the facility in which the individual is detained. These legitimate operational concerns may require administrative measures that go beyond those that are, strictly speaking, necessary to ensure that the detainee shows up at trial. For example, the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees. Restraints that are reasonably related to the institutions interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released

while awaiting trial. We need not here attempt to detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention. It is enough simply to recognize that in addition to ensuring the detainees presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.30

An action constitutes a punishment when (1) that action causes the inmate to suffer some harm or "disability," and (2) the purpose of the action is to punish the inmate.31 Punishment also requires that the harm or disability be significantly greater than, or be independent of, the inherent discomforts of confinement.32 Block v. Rutherford,33 which reiterated Bell v. Wolfish, upheld the blanket restriction on contact visits as this practice was reasonably related to maintaining security. The safety of innocent individuals will be jeopardized if they are exposed to detainees who while not yet convicted are awaiting trial for serious, violent offenses and may have prior criminal conviction.34 Contact visits make it possible for the detainees to hold visitors and jail staff hostage to effect escapes.35 Contact visits also leave the jail vulnerable to visitors smuggling in weapons, drugs, and other contraband.36 The restriction on contact visits was imposed even on low-risk detainees as they could also potentially be enlisted to help obtain contraband and weapons.37 The security consideration in the imposition of blanket restriction on contact visits was ruled to outweigh the sentiments of the detainees.38 Block v. Rutherford held that the prohibition of contact visits bore a rational connection to the legitimate goal of internal security.39 This case reaffirmed the "hands-off" doctrine enunciated in Bell v. Wolfish, a form of judicial selfrestraint, based on the premise that courts should decline jurisdiction over prison matters in deference to administrative expertise.40 In the present case, we cannot infer punishment from the separation of the detainees from their visitors by iron bars, which is merely a limitation on contact visits. The iron bars separating the detainees from their visitors prevent direct physical contact but still allow the detainees to have visual, verbal, non-verbal and limited physical contact with their visitors. The arrangement is not unduly restrictive. In fact, it is not even a strict non-contact visitation regulation like in Block v. Rutherford. The limitation on the detainees physical contacts with visitors is a reasonable, non-punitive response to valid security concerns. The boarding of the iron grills is for the furtherance of security within the ISAFP Detention Center. This measure intends to fortify the individual cells and to prevent the detainees from passing on contraband and weapons from one cell to another. The boarded grills ensure security and prevent disorder and crime within the facility. The diminished illumination and ventilation are but discomforts inherent in the fact of detention, and do not constitute punishments on the detainees. We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP Detention Center are not inhuman, degrading and cruel. Each detainee, except for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is

confined in separate cells, unlike ordinary cramped detention cells. The detainees are treated well and given regular meals. The Court of Appeals noted that the cells are relatively clean and livable compared to the conditions now prevailing in the city and provincial jails, which are congested with detainees. The Court of Appeals found the assailed measures to be reasonable considering that the ISAFP Detention Center is a high-risk detention facility. Apart from the soldiers, a suspected New Peoples Army ("NPA") member and two suspected Abu Sayyaf members are detained in the ISAFP Detention Center. We now pass upon petitioners argument that the officials of the ISAFP Detention Center violated the detainees right to privacy when the ISAFP officials opened and read the letters handed by detainees Trillanes and Maestrecampo to one of the petitioners for mailing. Petitioners point out that the letters were not in a sealed envelope but simply folded because there were no envelopes in the ISAFP Detention Center. Petitioners contend that the Constitution prohibits the infringement of a citizens privacy rights unless authorized by law. The Solicitor General does not deny that the ISAFP officials opened the letters. Courts in the U.S. have generally permitted prison officials to open and read all incoming and outgoing mail of convicted prisoners to prevent the smuggling of contraband into the prison facility and to avert coordinated escapes.41 Even in the absence of statutes specifically allowing prison authorities from opening and inspecting mail, such practice was upheld based on the principle of "civil deaths."42 Inmates were deemed to have no right to correspond confidentially with anyone. The only restriction placed upon prison authorities was that the right of inspection should not be used to delay unreasonably the communications between the inmate and his lawyer.43 Eventually, the inmates outgoing mail to licensed attorneys, courts, and court officials received respect.44 The confidential correspondences could not be censored.45 The infringement of such privileged communication was held to be a violation of the inmates First Amendment rights.46 A prisoner has a right to consult with his attorney in absolute privacy, which right is not abrogated by the legitimate interests of prison authorities in the administration of the institution.47 Moreover, the risk is small that attorneys will conspire in plots that threaten prison security.48 American jurisprudence initially made a distinction between the privacy rights enjoyed by convicted inmates and pre-trial detainees. The case of Palmigiano v. Travisono49 recognized that pre-trial detainees, unlike convicted prisoners, enjoy a limited right of privacy in communication. Censorship of pre-trial detainees mail addressed to public officials, courts and counsel was held impermissible. While incoming mail may be inspected for contraband and read in certain instances, outgoing mail of pre-trial detainees could not be inspected or read at all. In the subsequent case of Wolff v. McDonnell,50 involving convicted prisoners, the U.S. Supreme Court held that prison officials could open in the presence of the inmates incoming mail from attorneys to inmates. However, prison officials could not read such mail from attorneys. Explained the U.S. Supreme Court: The issue of the extent to which prison authorities can open and inspect incoming mail from attorneys to inmates, has been considerably narrowed in the course of this litigation. The prison regulation under challenge provided that (a)ll

incoming and outgoing mail will be read and inspected, and no exception was made for attorney-prisoner mail. x x x Petitioners now concede that they cannot open and read mail from attorneys to inmates, but contend that they may open all letters from attorneys as long as it is done in the presence of the prisoners. The narrow issue thus presented is whether letters determined or found to be from attorneys may be opened by prison authorities in the presence of the inmate or whether such mail must be delivered unopened if normal detection techniques fail to indicate contraband. xxx x x x If prison officials had to check in each case whether a communication was from an attorney before opening it for inspection, a near impossible task of administration would be imposed. We think it entirely appropriate that the State require any such communications to be specially marked as originating from an attorney, with his name and address being given, if they are to receive special treatment. It would also certainly be permissible that prison authorities require that a lawyer desiring to correspond with a prisoner, first identify himself and his client to the prison officials, to assure that the letters marked privileged are actually from members of the bar. As to the ability to open the mail in the presence of inmates, this could in no way constitute censorship, since the mail would not be read. Neither could it chill such communications, since the inmates presence insures that prison officials will not read the mail. The possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison officials opening the letters. We disagree with the Court of Appeals that this should only be done in appropriate circumstances. Since a flexible test, besides being unworkable, serves no arguable purpose in protecting any of the possible constitutional rights enumerated by respondent, we think that petitioners, by acceding to a rule whereby the inmate is present when mail from attorneys is inspected, have done all, and perhaps even more, than the Constitution requires.51 In Hudson v. Palmer,52 the U.S. Supreme Court ruled that an inmate has no reasonable expectation of privacy inside his cell. The U.S. Supreme Court explained that prisoners necessarily lose many protections of the Constitution, thus: However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. These constraints on inmates, and in some cases the complete withdrawal of certain rights, are "justified by the considerations underlying our penal system." The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of "institutional needs and objectives" of prison facilities, chief among which is internal security. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.53 The later case of State v. Dunn,54 citing Hudson v. Palmer, abandoned Palmigiano v. Travisono and made no distinction as to the detainees limited right to privacy. State v. Dunn noted the considerable jurisprudence in the United States holding that inmate mail may be censored for the furtherance of a substantial government interest such as security or discipline. State v. Dunn declared that if complete censorship is permissible, then the lesser act of opening the mail and reading it is also permissible. We quote State v. Dunn:

[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoners expectation of privacy always yield to what must be considered a paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement." The distinction between the limited privacy rights of a pretrial detainee and a convicted inmate has been blurred as courts in the U.S. ruled that pre-trial detainees might occasionally pose an even greater security risk than convicted inmates. Bell v. Wolfish reasoned that those who are detained prior to trial may in many cases be individuals who are charged with serious crimes or who have prior records and may therefore pose a greater risk of escape than convicted inmates.55 Valencia v. Wiggins56 further held that "it is impractical to draw a line between convicted prisoners and pre-trial detainees for the purpose of maintaining jail security." American cases recognize that the unmonitored use of pretrial detainees non-privileged mail poses a genuine threat to jail security.57 Hence, when a detainee places his letter in an envelope for non-privileged mail, the detainee knowingly exposes his letter to possible inspection by jail officials.58 A pre-trial detainee has no reasonable expectation of privacy for his incoming mail.59 However, incoming mail from lawyers of inmates enjoys limited protection such that prison officials can open and inspect the mail for contraband but could not read the contents without violating the inmates right to correspond with his lawyer.60 The inspection of privileged mail is limited to physical contraband and not to verbal contraband.61 Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees letters in the present case violated the detainees right to privacy of communication. The letters were not in a sealed envelope. The inspection of the folded letters is a valid measure as it serves the same purpose as the opening of sealed letters for the inspection of contraband. The letters alleged to have been read by the ISAFP authorities were not confidential letters between the detainees and their lawyers. The petitioner who received the letters from detainees Trillanes and Maestrecampo was merely acting as the detainees personal courier and not as their counsel when he received the letters for mailing. In the present case, since the letters were not confidential communication between the detainees and their lawyers, the officials of the ISAFP Detention Center could read the letters. If the letters are marked confidential communication between the detainees and their lawyers, the detention officials should not read the letters but only open the envelopes for inspection in the presence of the detainees. That a law is required before an executive officer could intrude on a citizens privacy rights62 is a guarantee that is available only to the public at large but not to persons who are detained or imprisoned. The right to privacy of those detained is subject to Section 4 of RA 7438, as well as to the limitations inherent in lawful detention or imprisonment. By the very fact of their detention, pre-trial detainees and convicted prisoners have a diminished expectation of privacy rights.

In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on the constitutional rights of the detainees and convicted prisoners, U.S. courts "balance the guarantees of the Constitution with the legitimate concerns of prison administrators."63 The deferential review of such regulations stems from the principle that: [s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.64 The detainees in the present case are junior officers accused of leading 300 soldiers in committing coup detat, a crime punishable with reclusion perpetua.65 The junior officers are not ordinary detainees but visible leaders of the Oakwood incident involving an armed takeover of a civilian building in the heart of the financial district of the country. As members of the military armed forces, the detainees are subject to the Articles of War.66 Moreover, the junior officers are detained with other high-risk persons from the Abu Sayyaf and the NPA. Thus, we must give the military custodian a wider range of deference in implementing the regulations in the ISAFP Detention Center. The military custodian is in a better position to know the security risks involved in detaining the junior officers, together with the suspected Abu Sayyaf and NPA members. Since the appropriate regulations depend largely on the security risks involved, we should defer to the regulations adopted by the military custodian in the absence of patent arbitrariness. The ruling in this case, however, does not foreclose the right of detainees and convicted prisoners from petitioning the courts for the redress of grievances. Regulations and conditions in detention and prison facilities that violate the Constitutional rights of the detainees and prisoners will be reviewed by the courts on a case-by-case basis. The courts could afford injunctive relief or damages to the detainees and prisoners subjected to arbitrary and inhumane conditions. However, habeas corpus is not the proper mode to question conditions of confinement.67The writ of habeas corpus will only lie if what is challenged is the fact or duration of confinement.68 WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals in CA-G.R. SP No. 78545. No pronouncement as to costs. SO ORDERED. G.R. No. 169482 January 29, 2008

IN THE MATTER OF THE PETITION OF HABEAS CORPUS OF EUFEMIA E. RODRIGUEZ, filed by EDGARDO E. VELUZ, petitioner, vs. LUISA R. VILLANUEVA and TERESITA R. PABELLO, respondents. DECISION CORONA, J.:

This is a petition for review1 of the resolutions2 dated February 2, 2005 and September 2, 2005 of the Court of Appeals3 in CA-G.R. SP No. 88180 denying the petition for habeas corpus of Eufemia E. Rodriguez, filed by petitioner Edgardo Veluz, as well as his motion for reconsideration, respectively. Eufemia E. Rodriguez was a 94-year old widow, allegedly suffering from a poor state of mental health and deteriorating cognitive abilities.4 She was living with petitioner, her nephew, since 2000. He acted as her guardian. In the morning of January 11, 2005, respondents Luisa R. Villanueva and Teresita R. Pabello took Eufemia from petitioner Veluz house. He made repeated demands for the return of Eufemia but these proved futile. Claiming that respondents were restraining Eufemia of her liberty, he filed a petition for habeas corpus5 in the Court of Appeals on January 13, 2005. The Court of Appeals ruled that petitioner failed to present any convincing proof that respondents (the legally adopted children of Eufemia) were unlawfully restraining their mother of her liberty. He also failed to establish his legal right to the custody of Eufemia as he was not her legal guardian. Thus, in a resolution dated February 2, 2005,6 the Court of Appeals denied his petition. Petitioner moved for reconsideration denied.7 Hence, this petition. but it was also

complaint for estafa against petitioner in the Regional Trial Court of Quezon City. Consequently, and by reason of their mothers deteriorating health, respondents decided to take custody of Eufemia on January 11, 2005. The latter willingly went with them. In view of all this, petitioner failed to prove either his right to the custody of Eufemia or the illegality of respondents action. We rule for the respondents. The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty or by which the rightful custody of a person is being withheld from the one entitled thereto.10 It is issued when one is either deprived of liberty or is wrongfully being prevented from exercising legal custody over another person.11 Thus, it contemplates two instances: (1) deprivation of a persons liberty either through illegal confinement or through detention and (2) withholding of the custody of any person from someone entitled to such custody. In this case, the issue is not whether the custody of Eufemia is being rightfully withheld from petitioner but whether Eufemia is being restrained of her liberty. Significantly, although petitioner admits that he did not have legal custody of Eufemia, he nonetheless insists that respondents themselves have no right to her custody. Thus, for him, the issue of legal custody is irrelevant. What is important is Eufemias personal freedom. Fundamentally, in order to justify the grant of the writ of habeas corpus, the restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action.12 In general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. A prime specification of an application for a writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. "The writ of habeas corpuswas devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. A prime specification of an application for a writ ofhabeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient."13(emphasis supplied) In passing upon a petition for habeas corpus, a court or judge must first inquire into whether the petitioner is being restrained of his liberty.14 If he is not, the writ will be refused. Inquiry into the cause of detention will proceed only where such restraint exists.15 If the alleged cause is thereafter found to be unlawful, then the writ should be granted and the petitioner discharged.16 Needless to state, if otherwise, again the writ will be refused. While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfunctory operation on the filing of the petition.17 Judicial discretion is called for in its issuance and it must be clear to the judge to whom the petition is presented that, prima facie, the petitioner is entitled to the writ.18 It is only if the court is satisfied that a person is being unlawfully restrained of his liberty will the

Petitioner claims that, in determining whether or not a writ of habeas corpus should issue, a court should limit itself to determining whether or not a person is unlawfully being deprived of liberty. There is no need to consider legal custody or custodial rights. The writ of habeas corpus is available not only if the rightful custody of a person is being withheld from the person entitled thereto but also if the person who disappears or is illegally being detained is of legal age and is not under guardianship. Thus, a writ of habeas corpus can cover persons who are not under the legal custody of another. According to petitioner, as long as it is alleged that a person is being illegally deprived of liberty, the writ of habeas corpus may issue so that his physical body may be brought before the court that will determine whether or not there is in fact an unlawful deprivation of liberty. In their comment, respondents state that they are the legally adopted daughters of Eufemia and her deceased spouse, Maximo Rodriguez. Prior to their adoption, respondent Luisa was Eufemias half-sister8 while respondent Teresita was Eufemias niece and petitioners sister.9 Respondents point out that it was petitioner and his family who were staying with Eufemia, not the other way around as petitioner claimed. Eufemia paid for the rent of the house, the utilities and other household needs. Sometime in the 1980s, petitioner was appointed as the "encargado" or administrator of the properties of Eufemia as well as those left by the deceased Maximo. As such, he took charge of collecting payments from tenants and transacted business with third persons for and in behalf of Eufemia and the respondents who were the only compulsory heirs of the late Maximo. In the latter part of 2002, Eufemia and the respondents demanded an inventory and return of the properties entrusted to petitioner. These demands were unheeded. Hence, Eufemia and the respondents were compelled to file a

petition for habeas corpus be granted.19 If the respondents are not detaining or restraining the applicant or the person in whose behalf the petition is filed, the petition should be dismissed.20 In this case, the Court of Appeals made an inquiry into whether Eufemia was being restrained of her liberty. It found that she was not: There is no proof that Eufemia is being detained and restrained of her liberty by respondents. Nothing on record reveals that she was forcibly taken by respondents. On the contrary, respondents, being Eufemias adopted children, are taking care of her.21 (emphasis supplied) The Court finds no cogent or compelling reason to disturb this finding.22 WHEREFORE, the petition is hereby DENIED. IN RE: PETITION FOR HABEAS CORPUS OF DAVID CRUZ y GONZAGA MARIA CRUZ y GONZAGA and DAVID CRUZ y GONZAGA, petitioners, vs. COURT OF APPEALS, SUPERINTENDENT OF THE NATIONAL PENITENTIARY, DIRECTOR OF THE BUREAU OF CORRECTIONS, respondents. Misoedp DECISION PUNO, J.: This is a consolidated petition for certiorari and habeas corpus. The petition for certiorari was filed by David Cruz y Gonzaga questioning the Resolution of the Court of Appeals in CA-G.R. CR No. 16944 which dismissed his appeal from the judgment of conviction of the Regional Trial Court, Branch 167, Pasig, Metro Manila for failure to file appellant's brief. The petition for habeas corpus was filed by David Cruz's mother, Maria Cruz y Gonzaga, against respondents Superintendent of the National Penitentiary and the Director of the Bureau of Corrections.[1] Petitioner David Cruz y Gonzaga was charged before the Regional Trial Court, Branch 167, Pasig, Metro Manila with a violation of Republic Act (R.A.) No. 6425, the Dangerous Drugs Act of 1972. He allegedly sold to another person on April 11, 1992 dried marijuana fruiting tops weighing 2.70 grams. On September 23, 1993, the trial court found David Cruz guilty of the crime charged and sentenced him to suffer life imprisonment with all the accessory penalties of the law and to pay a fine of P20,000.00 and the costs. David Cruz seasonably appealed to this Court. The First Division accepted his appeal and the case was docketed as G.R. No. 113390. Meanwhile, David Cruz was transferred from the Municipal Jail to the New Bilibid Prisons. His counsel of record, Atty. Carmelo L. Arcilla, was notified and required to file the appellant's brief within thirty (30) days from notice. The notice was, however, returned unserved. On October 3, 1994, we issued a Resolution referring the appeal to the Court of Appeals in view of the effectivity of Republic Act No. 7659 and the promulgation of the case of People v. Martin Simon y Sunga.[2] We noted that as the

quantity of the marijuana involved in the case was less than 750 grams, the imposable penalty on the appellant was not life imprisonment but one within the range of prision correccional to reclusion temporal, in accordance with the People v. Simon y Sunga ruling. A second notice to file appellant's brief was sent to the new address of David Cruz's counsel, as furnished by Cruz. The notice was again returned unserved. On September 19, 1995, David Cruz filed with us an "Urgent Motion to Withdraw Appeal." Attached to the motion was the Indorsement of Assistant Director Jesus P. Villanueva, Bureau of Corrections, stating that the legal effects of the Motion were adequately explained to Cruz. The motion was referred to the Court of Appeals. Misedp On October 24, 1995, the Court of Appeals, Seventh Division, issued a Resolution holding in abeyance its resolution on the motion to withdraw appeal "until the situation is explained to him by the Director, National [sic] Bilibid Prison." The Director was ordered to submit a written report, together with the reply of David Cruz, within ten (10) days from receipt thereof. In the same Resolution, the Court of Appeals also noted that: "The penalty imposable for the offense charged against David Cruz, considering the quantity of the prohibited drug involved, is 6 months of arresto mayor, as the minimum, to four (4) years and two (2) months of prision correccional, as the maximum, pursuant to the Sunga case. "By 1996, David Cruz shall have served the maximum penalty imposable. We seriously doubt if this was explained to him. x....x....x. "SO ORDERED."[3] No report was submitted by the Director, New Bilibid Prisons.[4] A third notice to file appellant's brief was sent to David Cruz's counsel which he received on June 8, 1996. Despite this receipt, no appellant's brief was filed. On September 18, 1996, the Court of Appeals issued another Resolution declaring David Cruz's appeal as abandoned and dismissed the same. The dispositive portion of this Resolution reads as follows: "For failure to file appellant's brief despite receipt by accused-appellant's counsel on June 8, 1996 of the notice to do so, the court resolved to consider the appeal ABANDONED and accordingly DISMISSED pursuant to Section 8, Rule 124 of the 1985 Rules on Criminal Procedure."[5] This Resolution became final and executory on October 14, 1996. Judgment was entered on April 1, 1997.[6] In 1998, petitioner Maria Cruz sought the assistance of the Office of Legal Aid of the University of the Philippines College of Law. Hence, this petition. Petitioners claim that:

"I. The Court of Appeals committed grave abuse of discretion in considering petitioner's appeal abandoned despite its October 24, 1995 Resolution. "II. The correct penalty to be imposed should be determined in a new trial. Jjsc "III. There is no lawful writ or process which justifies petitioner's restraint of liberty."[7] The petition for certiorari must be dismissed. Respondent Court of Appeals did not err in declaring the appeal of petitioner David Cruz as abandoned and dismissed. Section 8 of Rule 124 of the 1985 Rules on Criminal Procedure, as amended, provides: "Sec. 8. Dismissal of appeal for abandonment or failure to prosecute.The appellate, court may, upon motion of the appellee or on its own motion and notice to the appellant, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule, except in case the appellant is represented by a counsel de oficio. "The court may also, upon motion of the appellee or on its own motion, dismiss the appeal if the appellant escapes from prison or confinement or jumps bail or flees to a foreign country during the pendency of the appeal."[8] An appeal may be dismissed by the Court of Appeals, upon motion of the appellee or upon the court's own motion, if the appellant fails to file his brief within the prescribed time. The only exception is when the appellant is represented by counsel de officio. Petitioner David Cruz was represented not by counsel de officio, but by counsel of his own choice. His lawyer, Atty. Carmelo Arcilla, was counsel de parte before the trial court, before this Court on appeal, and before the Court of Appeals. There is nothing in the records that would show that Atty. Arcilla withdrew his representation of petitioner. On the contrary, the notice from the Court of Appeals requiring the filing of the appellant's brief was received by Atty. Arcilla. And despite this receipt, still no appellant's brief was filed. It was more than three (3) months later that the appellate court issued the questioned Resolution. By dismissing David Cruz's appeal,the Court of Appeals acted within its discretion. A new trial to determine his penalty cannot be granted petitioner. A motion for new trial may be granted by the Court of Appeals only on the ground of newly discovered evidence material to the accused's defense. This is clear from Section 14, Rule 124 of the 1985 Rules on Criminal Procedure, to wit: "Sec. 14. Motion for new trial.-At any time after the appeal from the lower court has been perfected and before the judgment of the appellate court convicting the accused becomes final, the latter may move for a new trial on the ground of newly discovered evidence material to his defense, the motion to conform to the provisions of Section 4, Rule 121." Scjj

Maria Cruz's petition for habeas corpus, on the other hand, must be granted. Her son, David, was tried and convicted by the trial court for violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. He was convicted on September 27, 1993 and sentenced to life imprisonment and its accessory penalties. He was committed to the National Penitentiary on October 13, 1993. On December 31, 1993, Republic Act (R.A.) No. 769 took effect. This law amended provisions of several penal laws, including the Dangerous Drugs Act of 1972. Before R. A. No. 7659, Article II, Section 4 of the Dangerous Drugs Act of 1972 provided: "Sec 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. --. The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. If the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall, be imposed." With the effectivity of R. A. No. 7659, Section 4, Article II now reads: "Sec. 4. Sale; Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of reclusion perpetua to death, and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. "Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed." R.A. No. 7659 also added the following provision: "Sec. 17. Section - 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows: Supremex "Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instrument of the Crime.-The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections

14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: "1. x x x xxx 5. 750 grams or more of indian hemp or marijuan a; x x x." "Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. "x x x." The penalty for the illegal sale of marijuana under the old law was "life imprisonment to death." Under R.A. 7659, the penalty depended on the quantity of the drug. The sale of "750 grams or more of Indian hemp or marijuana" became punishable by reclusion perpetua, to death.[9] The penalty for the sale of less than 750 grams of marijuana was reduced to a range "from prision correccional to reclusion perpetua, depending upon the quantity" of the drug. In the 1994 case of People v. Simon y Sunga,[10] we held that for drugs with quantities weighing 750 grams or more, and for drugs with quantities weighing below 750 grams, reclusion perpetua could not be imposed twice.[11] The penalty of "prision correccional" to reclusion perpetua" for drug offenses where the quantity involved is less than those enumerated in the first paragraph of Section 17 of R.A. 7659 was construed as "prision correccional to reclusion temporal." This was the range of the imposable penalty for drugs weighing less than 750 grams and the proper penalty depended on the quantity of the drug involved. If the drug weighs less than 250 grams, the penalty to be imposed is prision correctional; from 250 grams to 499 grams, prision mayor; and from 500 grams to 749 grams, reclusion temporal.[12] In the instant case, the amount of marijuana for which David Cruz was convicted is 2.70 grams. The imposable penalty for this amount under the Simon ruling is prision correctional which has a duration of six (6) months and one (1) day to six (6) years. Presently, David Cruz has already served six (6) years and three (3) months of his sentence which is way beyond the last day of prision correccional. The continued detention of Cruz at, the National Penitentiary has been admitted by the Solicitor General as already illegal.[13] David Cruz should therefore be released from prison without further delay. Courtx An application for the writ of habeas corpus is made upon verified petition setting forth: (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 imprisoned or restrained; (3) the place where he is imprisoned or restrained of his liberty; and (4) a copy of the commitment or cause of detention of such person.[14] The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty.[15] IN VIEW WHEREOF, the petition is GRANTED. Let a writ of habeas corpus issue immediately. The Director, Bureau of Corrections, is commanded to forthwith execute the writ for the discharge of DAVID CRUZ y GONZAGA from confinement and RELEASE him, unless he is being detained for some other lawful cause, and to make due return of the writ. With costs de officio. FURTHER, in view of the Court of Appeals' dismissal of petitioner's appeal on the ground of abandonment for failure to file appellant's brief, Atty. Carmelo L. Arcilla is hereby ordered to explain within fifteen (l5) days from receipt of this decision why no disciplinary action should be taken against him by this Court. SO ORDERED. Edpsc NORBERTO FERIA Y PACQUING, petitioner, vs. THE COURT OF APPEALS, THE DIRECTOR OF THE BUREAU OF CORRECTIONS, MUNTINLUPA, METRO MANILA (IN PLACE OF THE JAIL WARDEN OF THE MANILA CITY JAIL), THE PRESIDING JUDGE OF BRANCH II, REGIONAL TRIAL COURT OF MANILA, and THE CITY PROSECUTOR, CITY OF MANILA, respondents. DECISION QUISUMBING, J.: The mere loss or destruction of the records of a criminal case subsequent to conviction of the accused will not render the judgment of conviction void, nor will it warrant the release of the convict by virtue of a writ of habeas corpus. The proper remedy is the reconstitution of judicial records which is as much a duty of the prosecution as of the defense. Subject of this petition for review on certiorari are (1) the Decision dated April 28, 1995, of the Eighth Division of the Court of Appeals, which affirmed the dismissal of the petition for habeas corpus filed by petitioner, and (2) the Resolution of the Court of Appeals dated December 1, 1995, which denied the Motion for Reconsideration. As hereafter elucidated, we sustain the judgment of respondent appellate court. Based on the available records and the admissions of the parties, the antecedents of the present petition are as follows: Petitioner Norberto Feria y Pacquing has been under detention since May 21, 1981, up to present[1] by reason of his conviction of the crime of Robbery with Homicide, in Criminal Case No. 60677, by the Regional Trial Court of Manila, Branch 2, for the jeepney hold-up and killing of United States Peace Corps Volunteer Margaret Viviene Carmona. Some twelve (12) years later, or on June 9, 1993, petitioner sought to be transferred from the Manila City Jail to the Bureau of Corrections in Muntinlupa City,[2] but the Jail Warden of the Manila City Jail informed the Presiding Judge of the RTC-Manila, Branch 2, that the transfer cannot be

effected without the submission of the requirements, namely, the Commitment Order or Mittimus, Decision, and Information.[3] It was then discovered that the entire records of the case, including the copy of the judgment, were missing. In response to the inquiries made by counsel of petitioner, both the Office of the City Prosecutor of Manila and the Clerk of Court of Regional Trial Court of Manila, Branch 2 attested to the fact that the records of Criminal Case No. 60677 could not be found in their respective offices. Upon further inquiries, the entire records appear to have been lost or destroyed in the fire which occurred at the second and third floor of the Manila City Hall on November 3, 1986.[4] On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ of Habeas Corpus[5] with the Supreme Court against the Jail Warden of the Manila City Jail, the Presiding Judge of Branch 2, Regional Trial Court of Manila, and the City Prosecutor of Manila, praying for his discharge from confinement on the ground that his continued detention without any valid judgment is illegal and violative of his constitutional right to due process. In its Resolution dated October 10, 1994, Division of this Court resolved [6]

The Motion for Reconsideration of the aforesaid Order having been denied for lack of merit,[9] petitioner is now before us on certiorari, assigning the following errors of law:[10] I. WHETHER OR NOT, UNDER THE PECULIAR CIRCUMSTANCES OF THIS CASE, WHERE THE RECORDS OF CONVICTION WERE LOST, THE PETITIONERS CONTINUED INCARCERATION IS JUSTIFIED UNDER THE LAW. COROLLARY TO THIS, WHETHER OR NOT THE COURT OF APPEALS RESOLUTION, AFFIRMING THE DENIAL OF HEREIN APPELLANTS PETITION FOR HABEAS CORPUS IS, IN CONTEMPLATION OF LAW, A JUDGMENT OR A SUBSTITUTE JUDGMENT, WHICH CAN BE UTILIZED AS A SUFFICIENT BASIS FOR HIS INCARCERATION. II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL RECORDS LOST/DESTROYED SHOULD BE INITIATED BY THE GOVERNMENT AND ITS ORGANS, WHO ARE IN CUSTODY OF SUCH, OR BY THE PRISONER, WHOSE LIBERTY IS RESTRAINED. Petitioner argues that his detention is illegal because there exists no copy of a valid judgment as required by Sections 1 and 2 of Rule 120 of the Rules of Court,[11] and that the evidence considered by the trial court and Court of Appeals in the habeas corpus proceedings did not establish the contents of such judgment. Petitioner further contends that our ruling in Gunabe v. Director of Prisons, 77 Phil. 993, 995 (1947), that "reconstitution is as much the duty of the prosecution as of the defense" has been modified or abandoned in the subsequent case of Ordonez v. Director of Prisons, 235 SCRA 152, 155 (1994), wherein we held that "[i]t is not the fault of the prisoners that the records cannot now be found. If anyone is to be blamed, it surely cannot be the prisoners, who were not the custodians of those records." In its Comment,[12] the Office of the Solicitor General contends that the sole inquiry in this habeas corpus proceeding is whether or not there is legal basis to detain petitioner. The OSG maintains that public respondents have more than sufficiently shown the existence of a legal ground for petitioners continued incarceration, viz., his conviction by final judgment, and under Section 4 of Rule 102 of the Rules of Court, the discharge of a person suffering imprisonment under lawful judgment is not authorized. Petitioners remedy, therefore, is not a petition for habeas corpus but a proceeding for the reconstitution of judicial records. The high prerogative writ of habeas corpus, whose origin is traced to antiquity, was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom.[13] It secures to a prisoner the right to have the cause of his detention examined and determined by a court of justice, and to have the issue ascertained as to whether he is held under lawful authority.[14] Consequently, the writ may also be availed of where, as a consequence of a judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of a person, (b) the court had no jurisdiction to impose the sentence, or (c) an excessive penalty has been imposed, as such sentence is void as to such excess.[15] Petitioners claim is anchored on the first ground considering, as he claims, that his continued

the Second

" x x x (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the Executive Judge of the Regional Trial Court of Manila to conduct an immediate RAFFLE of this case among the incumbent judges thereof; and (c) to REQUIRE [1] the Judge to whom this case is raffled to SET the case for HEARING on Thursday, October 13, 1994 at 8:30 A.M., try and decide the same on the merits and thereafter FURNISH this Court with a copy of his decision thereon; [2] the respondents to make a RETURN of the Writ on or before the close of office hours on Wednesday, October 12, 1994 and APPEAR PERSONALLY and PRODUCE the person of Norberto Feria y Pa[c]quing on the aforesaid date and time of hearing to the Judge to whom this case is raffled, and [3] the Director General, Philippine National Police, through his duly authorized representative(s) to SERVE the Writ and Petition, and make a RETURN thereof as provided by law and, specifically, his duly authorized representative(s) to APPEAR PERSONALLY and ESCORT the person of Norberto Feria y Pa[c]quing at the aforesaid date and time of hearing." The case was then raffled to Branch 9 of the Regional Trial Court of Manila, which on November 15, 1994, after hearing, issued an Order[7] dismissing the case on the ground that the mere loss of the records of the case does not invalidate the judgment or commitment nor authorize the release of the petitioner, and that the proper remedy would be reconstitution of the records of the case which should be filed with the court which rendered the decision. Petitioner duly appealed said Order to the Court of Appeals, which on April 28, 1995, rendered the assailed Decision[8] affirming the decision of the trial court with the modification that "in the interest of orderly administration of justice" and "under the peculiar facts of the case" petitioner may be transferred to the Bureau of Corrections in Muntinlupa City without submission of the requirements (Mittimus, Decision and Information) but without prejudice to the reconstitution of the original records.

detention, notwithstanding the lack of a copy of a valid judgment of conviction, is violative of his constitutional right to due process. Based on the records and the hearing conducted by the trial court, there is sufficient evidence on record to establish the fact of conviction of petitioner which serves as the legal basis for his detention. Petitioner made judicial admissions, both verbal and written, that he was charged with and convicted of the crime of Robbery with Homicide, and sentenced to suffer imprisonment "habang buhay". In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the finding that -[16] "During the trial and on manifestation and arguments made by the accused, his learned counsel and Solicitor Alexander G. Gesmundo who appeared for the respondents, it appears clear and indubitable that: (A) Petitioner had been charged with Robbery with Homicide in Criminal Case No. 60677, Illegal Possession of Firearm in Criminal Case No. 60678 and Robbery in Band in Criminal Case No. 60867. ... In Criminal Case No. 60677 (Robbery with Homicide) the accused admitted in open Court that a decision was read to him in open Court by a personnel of the respondent Court (RTC Branch II) sentencing him to Life Imprisonment (Habang buhay)..." (emphasis supplied) Further, in the Urgent Motion for the Issuance of Commitment Order of the Above Entitled Criminal Case dated June 8, 1993,[17] petitioner himself stated that "COMES NOW, the undersigned accused in the above entitled criminal case and unto this Honorable Court most respectfully move: 1. That in 1981 the accused was charge of (sic) Robbery with Homicide; 2. That after four years of trial, the court found the accused guilty and given a Life Sentence in a promulgation handed down in 1985; (emphasis supplied) 3. That after the sentence was promulgated, the Presiding Judge told the councel (sic) that accused has the right to appeal the decision; 4. That whether the de oficio counsel appealed the decision is beyond the accused

comprehension (sic) because the last time he saw the counsel was when the decision was promulgated. 5. That everytime there is change of Warden at the Manila City Jail attempts were made to get the Commitment Order so that transfer of the accused to the Bureau of Corrections can be affected, but all in vain;" Petitioners declarations as to a relevant fact may be given in evidence against him under Section 23 of Rule 130 of the Rules of Court. This rule is based upon the presumption that no man would declare anything against himself, unless such declaration were true,[18] particularly with respect to such grave matter as his conviction for the crime of Robbery with Homicide. Further, under Section 4 of Rule 129, "[a]n admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by a showing that it was made through palpable mistake or that no such admission was made." Petitioner does not claim any mistake nor does he deny making such admissions. The records also contain a certified true copy of the Monthly Report dated January 1985[19] of then Judge Rosalio A. De Leon, attesting to the fact that petitioner was convicted of the crime of Robbery with Homicide on January 11, 1985. Such Monthly Report constitutes an entry in official records under Section 44 of Rule 130 of the Revised Rules on Evidence, which is prima facieevidence of facts therein stated. Public respondents likewise presented a certified true copy of Peoples Journal dated January 18, 1985, page 2,[20] issued by the National Library, containing a short news article that petitioner was convicted of the crime of Robbery with Homicide and was sentenced to "life imprisonment." However, newspaper articles amount to "hearsay evidence, twice removed"[21] and are therefore not only inadmissible but without any probative value at all whether objected to or not,[22] unless offered for a purpose other than proving the truth of the matter asserted. In this case, the news article is admissible only as evidence that such publication does exist with the tenor of the news therein stated. As a general rule, the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such restraint. In other words, where the return is not subject to exception, that is, where it sets forth process which on its face shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process.[23] If the detention of the prisoner is by reason of lawful public authority, the return is considered prima facie evidence of the validity of the restraint and the petitioner has the burden of proof to show that the restraint is illegal. Thus, Section 13 of Rule 102 of the Rules of Court provides: "SEC. 13. When the return evidence, and when only a plea.If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts."

Public respondents having sufficiently shown good ground for the detention, petitioners release from confinement is not warranted under Section 4 of Rule 102 of the Rules of Court which provides that "Sec. 4. When writ not allowed or discharge authorized. - If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment." In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), accused was convicted by the trial court of the crime of rape, and was committed to the New Bilibid Prison. Pending appeal with the Court of Appeals, the records of the case were, for reasons undisclosed, completely destroyed or lost. Accused then filed a petition for the issuance of the writ of habeas corpus with the Supreme Court. The Court denied the petition, ruling thus: "The petition does not make out a case. The Director of Prisons is holding the prisoner under process issued by a competent court in pursuance of a lawful, subsisting judgment. The prisoner himself admits the legality of his detention. The mere loss or destruction of the record of the case does not invalidate the judgment or the commitment, or authorize the prisoners release." Note further that, in the present case, there is also no showing that petitioner duly appealed his conviction of the crime of Robbery with Homicide, hence for all intents and purposes, such judgment has already become final and executory. When a court has jurisdiction of the offense charged and of the party who is so charged, its judgment, order, or decree is not subject to collateral attack by habeas corpus.[24] Put another way, in order that a judgment may be subject to collateral attack by habeas corpus, it must be void for lack of jurisdiction.[25] Thus, petitioners invocation of our ruling in Reyes v. Director of Prisons, supra, is misplaced. In the Reyes case, we granted the writ and ordered the release of the prisoner on the ground that "[i]t does not appear that the prisoner has been sentenced by any tribunal duly established by a competent authority during the enemy occupation" and not because there were no copies of the decision and information. Here, a copy of the mittimus is available. And, indeed, petitioner does not raise any jurisdictional issue. The proper remedy in this case is for either petitioner or public respondents to initiate the reconstitution of the judgment of the case under either Act No. 3110,[26] the general law governing reconstitution of judicial records, or under the inherent power of courts to reconstitute at any time the records of their finished cases in accordance with Section 5 (h) of Rule 135 of the Rules of Court.[27] Judicial records are

subject to reconstitution without exception, whether they refer to pending cases or finished cases.[28] There is no sense in limiting reconstitution to pending cases; finished cases are just as important as pending ones, as evidence of rights and obligations finally adjudicated.[29] Petitioner belabors the fact that no initiative was taken by the Government to reconstitute the missing records of the trial court. We reiterate, however, that "reconstitution is as much the duty of the prosecution as of the defense."[30] Petitioners invocation of Ordoez v. Director of Prisons, 235 SCRA 152 (1994), is misplaced since the grant of the petition for habeas corpus therein was premised on the loss of records prior to the filing of Informations against the prisoners, and therefore "[t]he government has failed to show that their continued detention is supported by a valid conviction or by the pendency of charges against them or by any legitimate cause whatsoever." In this case, the records were lost after petitioner, by his own admission, was already convicted by the trial court of the offense charged. Further, the same incident which gave rise to the filing of the Information for Robbery with Homicide also gave rise to another case for Illegal Possession of Firearm,[31] the records of which could be of assistance in the reconstitution of the present case. WHEREFORE, the petition is DENIED for lack of merit, and the decision of the Court of Appeals is AFFIRMED. SO ORDERED. G.R. No. L-63345 January 30, 1986 EFREN C. MONCUPA, petitioner, vs. JUAN PONCE ENRILE, FABIAN C. VER, GALILEO KINTANAR, FERNANDO GOROSPE, AND JOSE CASTRO,respondents. Lorenzo M. Tanada, Jose W. Diokno and Joker Arroyo for petitioner,

GUTIERREZ, JR., J.: As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil. 778, 790), this Court ruled: A prime specification of al application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. ... This latitudinarian scope of the writ of habeas-corpus has, in law, remained undiminished up to the present. The respondents' contention that the petition has become moot and academic must necessarily be denied. Efren C. Moncupa may have been released from his detention cell. The restraints attached to his temporary release, however, preclude freedom of action and under the Villavicencio v. Lukban rule warrant this Court's inquiry into the nature of his involuntary restraint and our relieving him of such restraints as may be illegal.

Petitioner Efren C. Moncupa, together with others, was arrested on April 22, 1982 at about 10:50 P.M., at the corner of D. Street and Quezon Avenue, Quezon City. Moncupa D. Tuazon was brought to MIG-15 Camp Bago Bantay, Quezon City where he was detained. On April 23, 1982, on the allegation that he was a National Democratic Front (NDF) staff member, a Presidential Commitment Order (PCO) was issued against him and eight (8) other persons. After two separate investigations, conducted first, by Lieutenant Colonel Gerardo Lantoria, Jr., Chief of Task Force Makabansa Investigation Group and second, by Investigating Fiscal Amado Costales of Quezon City, it was ascertained that the petitioner was not a member of any subversive organization. Both investigators recommended the prosecution of the petitioner only for illegal possession of firearms and illegal possession of subversive documents under Presidential Decree No. 33. Consequently, two separate informations were filed against the petitioner, one, for illegal possession of firearms before the Court of First Instance of Rizal and the other for violation of P.D. 33 before the City Court of Quezon City. Against the other accused, however, the cases filed were for violation of P.D. 885 as amended. Significantly, the petitioner was excluded from the charge under the Revised Anti-Subversion Law. During the pendency of this petition, it is significant that his arraignment and further proceedings have not been pursued. And yet, the petitioner's motions for bail were denied by the lower court. Hence, the petitioner filed the instant petition. The respondents, in their return of the writ justified the validity of petitioner's detention on the ground that the privilege of the writ had been suspended as to the petitioner. However, on August 30, 1983, the respondents filed a motion to dismiss stating that on May 11, 1983, the petitioner was temporarily released from detention on orders of the Minister temporary of National Defense with the approval of the President. The respondents stated. "Since the petitioner is free and no longer under the custody of the respondents, the present petition for habeas corpus may be deemed moot and academic as in similar cases. The issue to be resolved is whether or not the instant petition has become moot and academic in view of the petitioner's temporary release. It is to be noted that attached to the petitioner's temporary release are restrictions imposed on him. These are: 1) His freedom of movement is curtailed by the condition that petitioner gets the approval of respondents for any travel outside Metro Manila. 2) His liberty of abode is restricted because prior approval of respondents is also required in case petitioner wants to change his place of residence. 3) His freedom of speech is muffled by the prohibition that he should not "participate in any interview conducted by any local or foreign mass media representatives nor give any press release or information that is inimical to the interest of national security." 4) He is required to report regularly to respondents or their representatives.

The petitioner argues that although admittedly his temporary release is an improvement upon his actual detention, the restrictions imposed by the respondents constitute an involuntary and illegal restraint on his freedom. The petitioner stresses that his temporary release did not render the instant petitioner moot and academic but that "it merely shifted the inquiry from the legality of his actual detention to the legality of the conditions imposed by the respondents." We agree with the petitioner. The reservation of the military in the form of restrictions attached to the temporary release of the petitioner constitute restraints on the liberty of Mr. Moncupa. Such restrictions limit the freedom of movement of the petitioner. It is not physical restraint alone which is inquired into by the writ of habeas corpus. In Villavicencio v. Lukban, the women who had been illegally seized and transported against their will to Davao were no longer under any official restraint. Unlike petitioner Moncupa, they were free to change their domicile without asking for official permission. Indeed, some of them managed to return to Manila. Yet, the Court condemned the involuntary restraints caused by the official action, fined the Mayor of Manila and expressed the hope that its "decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from Megal encroachment." In the light of the above ruling, the present petition for habeas corpus has not become moot and academic. Other precedents for such a conclusion are not wanting. The decision in Caunca v. Salazar (82 Phil. 851) states: An employment agency, regardless of the amount it may advance to a prospective employee or maid, has absolutely no power to curtail her freedom of movement. The fact that no physical force has been exerted to keep her in the house of the respondent does not make less real the deprivation of her personal freedom of movement, freedom to transfer from one place to another, from to choose one's residence. Freedom may be lost due to external moral compulsion, to founded or groundless fear, to erroneous belief in the existence of the will. If the actual effect of such psychological spell is to place a person at the mercy of another, the victim is entitled to the protection of courts of justice as much as the individual who is illigally deprived of liberty by deprived or physical coercion. In Tibo v. The Provincial Commander (85 SCRA 564), this Court ruled: Although the release in the custody of the Deputy Minister did not signify that petitioners could once again enjoy their full freedom, the application could have been dismissed, as it could be withdrawn by the parties themselves. That is a purely voluntary act. When the hearing was held on September 7, 1978, it turned out that counsel for petitioner Bonifacio V. Tupaz

could have academic in a hasty manner when he set forth the above allegations in his manifestation of August 30, 1978, for Attorney Jose C. Espinas, who appeared for petitioners, while conceding that there was such a release from confinement, also alleged that it was conditioned on their restricting their activities as labor union leaders to the premises of the Trade Unions of the Philippines and ABSOLUTE Services, presumably in Macaraig as well as the Ministry of labor. As the voting was to take place in the business firm in Bataan, the acts set would nullify whatever efforts they could have exerted. To that extent, and with the prohibition against their going to Bataan, the restraint on liberty was undeniable. If so, the moot and academic character of the petition was far from clear. More recently, we had occasion to rule squarely on whether or not a temporary release from detention renders the petition for writ of habeas corpus moot and academic. As in this case of Moncupa, the petitioners in Toyoto, et al v. Hon. Fidel Ramos, et al, G.R. No. 69270, October 15, 1985, were temporarily released from detention. The respondents filed a motion to dismiss the petition for habeas corpus on the ground that the petitioners had been temporarily released and their case had, therefore, become moot and academic. The petitioners insisted, however, that their case may be considered moot and academic only "if their release would be permanent." In ruling for the petitioners, we said: Ordinarily, a petition for habeas corpus becomes moot and academic when the restraint on the liberty of the petitioners is lifted either temporarily or permanently. We have so held in a number of cases. But the instant case presents a different situation. The question to be resolved is whether the State can reserve the power to re-arrest a person for an offense after a court of competent jurisdiction has absolved him of the offense. An affirmative answer is the one suggested by the respondents because the release of the petitioners being merely 'temporary' it follows that they can be rearrested at anytime despite their acquittal by a court of competent jurisdiction. We hold that such a reservation is repugnant to the government of laws and not of men principle. Under this principle the moment a person is acquitted on a criminal charge he can no longer be detained or re-arrested for the same offense. This concept is so basic and elementary that it needs no elaboration. In effect the principle is clear. A release that renders a petition for a writ of habeas corpus moot and academic must be one which is free from involuntary restraints. Where a person continues to be unlawfully denied one or more of his constitutional freedoms, where there is present a denial of due process, where the restraints are not merely involuntary but appear to be unnecessary, and where a deprivation of freedom originally valid has, in the light of subsequent developments, become arbitrary, the person concerned or those applying in his behalf may still avail themselves of the privilege of the writ.

The respondents have failed to show why the writ may not issue and why the restraints on the petitioner's freedom of movement should not be lifted. WHEREFORE, the PETITION is GRANTED. The conditions attached to the temporary release of the petitioner are declared null and void. The temporary release of the petitioner is declared ABSOLUTE. No costs, SO ORDERED. G.R. No. L-54558 May 22, 1987 EDUARDO B. OLAGUER, OTHONIEL V. JIMENEZ, ESTER MISA-JIMENEZ, CARLOS LAZARO, REYNALDO MACLANG, MAGDALENA DE LOS SANTOS-MACLANG, TEODORICO N. DIESMOS, RENE J. MARCIANO, DANILO R. DE OCAMPO, VICTORIANO C. AMADO and MAC ACERON, petitioners, vs. MILITARY COMMISSION NO. 34, THE TRIAL COUNSEL OF MILITARY COMMISSION NO. 34, and THE MINISTER OF NATIONAL DEFENSE, respondents. No. L-69882 May 22, 1987 EDUARDO OLAGUER, OTHONIEL JIMENEZ, REYNALDO MACLANG and ESTER MISA-JIMENEZ, petitioners, vs. THE CHIEF OF STAFF, AFP, MILITARY COMMISSION NO. 34, JUDGE ADVOCATE GENERAL, AFP, MINISTER OF NATIONAL DEFENSE and THE DIRECTOR OF PRISONS, respondents. Sabino Padilla, Jr. and Jose B. Puerto for petitioner Othoniel Jimenez. Fulgencio Factoran for petitioners Maclang and Magdalena de los Santos-Maclang Rene Saguisag for petitioner Mac Aceron. Joaquin Misa for petitioner Ester Misa-Jimenez. Jejomar Binay for petitioners Magdalena de los Santos-Maclang. Reynaldo Maclang and

Jaime Villanueua for petitioner Danilo R. de Ocampo. Joker P. Arroyo, Lorenzo M. Tanada and Rene Sarmiento for petitioners Eduardo Olaguer and Othoniel Jimenez. Wigberto Tanada for petitioners Olaguer and Maclang

GANCAYCO, J.: Filed with this Court are two Petitions wherein the fundamental question is whether or not a military tribunal has the jurisdiction to try civilians while the civil courts are open and functioning. The two Petitions have been consolidated inasmuch as the issues raised therein are interrelated. On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V. Jimenez, Ester Misa-Jimenez, Carlos

Lazaro, Reynaldo Maclang, Magdalena De Los Santos Maclang, Teodorico N. Diesmos, Rene J. Marciano, Danilo R. De Ocampo and Victoriano C. Amado were arrested by the military authorities. They were all initially detained at Camp Crame in Quezon City. They were subsequently transferred to the detention center at Camp Bagong Diwa in Bicutan except for petitioner Olaguer who remained in detention at Camp Crame. Petitioner Mac Aceron voluntarily surrendered to the authorities sometime in June, 1980 and was, thereafter, also incarcerated at Camp Bagong Diwa. All of the petitioners are civilians. On May 30, 1980, the petitioners were charged for subversion 1 upon the recommendation of the respondent Judge Advocate General and the approval of the respondent Minister of National Defense. 2 The case was designated as Criminal Case No. MC-34-1. On June 13. 1980, the respondent Chief of Staff of the Armed Forces of the Philippines 3 created the respondent Military Commission No 34 to try tile criminal case filed against the petitioners. 4 On July 30, 1980, an amended charge sheet was filed for seven (7) offenses, namely: (1) unlawful possession of explosives and incendiary devices; (2) conspiracy to assassinate President, and Mrs. Marcos; (3) conspiracy to assassinate cabinet members Juan Ponce Enrile, Francisco Tatad and Vicente Paterno; (4) conspiracy to assassinate Messrs. Arturo Tangco, Jose Roo and Onofre Corpus; (5) arson of nine buildings; (6) attempted murder of Messrs. Leonardo Perez, Teodoro Valencia and Generals Romeo Espino and Fabian Ver; and (7) conspiracy and proposal to commit rebellion, and inciting to rebellion. 5 Sometime thereafter, trial ensued. In the course of the proceedings, particularly on August 19, 1980, the petitioners went to this Court and filed the instant Petition for prohibition and habeas corpus." 6 They sought to enjoin the respondent Military Commission No. 34 from proceeding with the trial of their case. They likewise sought their release from detention by way of a writ of habeas corpus. The thrust of their arguments is that military commissions have no jurisdiction to try civilians for offenses alleged to have been committed during the period of martial law. They also maintain that the proceedings before the respondent Military Commission No. 34 are in gross violation of their constitutional right to due process of law. On September 23, 1980, the respondents filed their Answer to the Petition. 7 On November 20, 1980, the petitioners submmitted their reply to the Answer. 8 In a Motion filed with this Court on July 25, 1981, petitioner Olaguer requested that the Petition be considered withdrawn as far as he is concerned. 9 In the Resolution of this Court dated July 30, 1981, the said prayer was granted." 10 On August 31, 1984, the respondents filed a Rejoinder to the Reply submitted by the petitioners. 11 On December 4, 1984, pending the resolution of the Petition, the respondent Military Commission No. 34 passed sentence convicting the petitioners and imposed upon them the penalty of death by electrocution. Thus, on February 14, 1985, petitioners Olaguer, Maclang and Othoniel and Ester Jimenez went to this Court and filed the other instant Petition, this time for habeas corpus, certiorari, prohibition and mandamus. They also sought the issuance of a writ of preliminary injunction. 12 The respondents named in the Petition are the Chief of Staff of the Armed Forces of the Philippines, Military Commission No. 34, the Judge Advocate General, the Minister of National Defense and the Director of the Bureau of Prisons.

In sum, the second Petition seeks to enjoin the said respondents from taking any further action on the case against the petitioners, and from implementing the judgment of conviction rendered by the respondent Military Commission No. 34 for the reason that the same is null and void. The petitioners also seek the return of all property taken from them by the respondents concerned. Their other arguments in the earlier Petition are stressed anew. On August 9, 1985, the respondents filed their Answer to the Petition. 13 On September 12, 1985, this Court issued a temporary restraining order enjoining the respondents from executing the Decision of the respondent Military Commission No. 34 14 On February 18, 1986, the petitioners submitted an extensive Brief. 15 Thereafter, and in due time, the cases were submitted for decision. In resolving these two Petitions, We have taken into account several supervening events which have occurred hitherto, to wit (1) On January 17, 1981, President Ferdinand E. Marcos issued Proclamation No. 2045 officially lifting martial law in the Philippines. The same Proclamation revoked General Order No. 8 (creating military tribunals) and directed that "the military tribunals created pursuant thereto are hereby dissolved upon final determination of case's pending therein which may not be transferred to the civil courts without irreparable prejudice to the state in view of the rules on double jeopardy, or other circumstances which render prosecution of the cases difficult, if not impossible."; and (2) Petitioner Ester Misa-Jimenez was granted provisional liberty in January, 1981. On the other hand, petitioners Eduardo Olaguer and Othoniel Jimenez obtained provisional liberty on January 23, 1986. 16 The rest of the petitioners have been released sometime before or after President Corazon C. Aquino assumed office in February, 1986. The sole issue in habeas corpus proceedings is detention. 17 When the release of the persons in whose behalf the application for a writ of habeas corpus was filed is effected, the Petition for the issuance of the writ becomes moot and academic. 18 Inasmuch as the herein petitioners have been released from their confinement in military detention centers, the instant Petitions for the issuance of a writ of habeas corpus should be dismissed for having become moot and academic. We come now to the other matters raised in the two Petitions. The main issue raised by the petitioners is whether or not military commissions or tribunals have the jurisdiction to try civilians for offenses allegedly committed during martial law when civil courts are open and functioning. The petitioners maintain that military commissions or tribunals do not have such jurisdiction and that the proceedings before the respondent Military Commission No. 34 are in gross violation of their constitutional right to due process of law. The respondents, however, contend otherwise.

The issue on the jurisdiction of military commissions or tribunals to try civilians for offenses allegedly committed before, and more particularly during a period of martial law, as well as the other issues raised by the petitioners, have been ruled upon by a divided Supreme Court in Aquino, Jr. v. Military Commission No. 2. 19 The pertinent portions of the main opinion of the Court are as follows We hold that the respondent Military Commission No. 2 has been lawfully constituted and validly vested with jurisdiction to hear the cases against civilians, including the petitioner. l. The Court has previously declared that the proclamation of Martial Law ... on September 21, 1972, ... is valid and constitutional and that its continuance is justified by the danger posed to the public safety. 20 2. To preserve the safety of the nation in times of national peril, the President of the Philippines necessarily possesses broad authority compatible with the imperative requirements of the emergency. On the basis of this, he has authorized in General Order No. 8 . . . the Chief of Staff, Armed Forces of the Philippines, to create military tribunals to try and decide cases "of military personnel and such other cases as may be referred to them." In General Order No. 12 ... , the military tribunals were vested with jurisdiction "exclusive of the civil courts," among others, over crimes against public order, violations of the Anti-Subversion Act, violations of the laws on firearms, and other crimes which, in the face of the emergency, are directly related to the quelling of the rebellion and preservation of the safety and security of the Republic. ... These measures he had the authority to promulgate, since this Court recognized that the incumbent President (President Marcos), under paragraphs 1 and 2 of Section 3 of Article XVII of the new (1973) Constitution, had the authority to "promulgate proclamations, orders and decrees during the period of martial law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people and to the institution of reforms to prevent the resurgence of the rebellion or insurrection or secession or the threat thereof ... " 21 3. Petitioner nevertheless insists that he being a civilian, his trial by military commission deprives him of his right to due process, since in his view the due process guaranteed by the Constitution to persons accused of "ordinary" crimes means judicial process. This argument ignores the reality of the rebellion and the existence of martial law. It is, of course, essential that in a martial law situation, the martial law administrator must have ample and sufficient means to quell the rebellion and restore civil order. Prompt and effective trial and punishment of offenders have been considered as necessary in a state of martial law, as a mere power of detention may be wholly inadequate for the exigency. 22 " ... martial law ... creates an

exception to the general rule of exclusive subjection to the civil jurisdiction, and renders offenses against the law of war, as well as those of a civil character, triable, ... by military tribunals. 23 "Public danger warrants the substitution of executive process for judicial process." 24 . ... "The immunity of civilians from military jurisdiction must, however, give way in areas governed by martial law. When it is absolutely imperative for public safety, legal processes can be superseded and military tribunals authorized to exercise the jurisdiction normally vested in courts. 25 . ..." xxx xxx xxx 5. ... The guarantee of due process is not a guarantee of any particular form of tribunal in criminal cases. A military tribunal of competent jurisdiction, accusation in due form, notice and opportunity to defend and trial before an impartial tribunal, adequately meet the due process requirement. Due process of law does not necessarily mean a judicial proceeding in the regular courts. 26 ... This ruling has been affirmed, although not unanimously, in at least six other cases, to wit: Gumaua v.Espino, 27Buscayno v. Enrile, 28 Sison v. Enrile, 29 Luneta v. Special Military Commission No. 1, 30 Ocampo v. Military Commission No. 25, 31 and Buscayno v. Military Commission Nos. 1, 2, 6 and 25. 32 These rulings notwithstanding, the petitioners anchor their argument on their prayer that the ruling in Aquino, Jr. be appraised anew and abandoned or modified accordingly. After a thorough deliberation on the matter, We find cogent basis for re-examining the same. Some recent pronouncements of this Court could be considered as attempts to either abandon or modify the ruling in Aquino, Jr. In De Guzman v. Hon. Leopando, et al., 33 an officer of the Armed Forces of the Philippines and several other persons were charged with Serious Illegal Detention before the Court of First Instance of Maguindanao sometime in October, 1982. The military officer sought to effect the transfer of the case against him to the General Court Martial for trial pursuant to the provisions of Presidential Decree No. 1850. The trial court disallowed such transfer for the reason that the said Decree is unconstitutional inasmuch as it violates the due process and equal protection clauses of the Constitution, as well as the constitutional provisions on social justice, the speedy disposition of cases, the republican form of government, the integrity and independence of the judiciary, and the supremacy of civilian authority over the military, When the matter was elevated to this Court by way of a Petition for certiorari, prohibition and mandamus, the Court decided that a ruling on the constitutional issues raised was not necessary. With the view that practical and procedural difficulties will result from the transfer sought, this Court resolved to dismiss the Petition for lack of merit. In Animas v. The Minister of National Defense, 34 a military officer and several civilians were charged with murder alleged

to have been committed sometime in November, 1971. All of the said accused were recommended for prosecution before a military tribunal. in the course of the proceedings, the said accused went to this Court on a Petition for certiorari and challenged the jurisdiction of the military tribunal over their case. The petitioners contended that General Order No. 59 upon which the jurisdiction of the military tribunal is anchored refers only to the crime of illegal possession of firearms and explosives in relation to other crimes committed with a political complexion. They stressed that the alleged murder was devoid of any political complexion. This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the transfer of the criminal proceedings to the civil courts after noting that with martial law having been lifted in the country in 1981, all cases pending before the military tribunals should, as a general rule, be transferred to the civil courts. The Court was also of the view that the crime alleged to have been committed did not have any political complexion. We quote the pertinent portions of the Decision of the Court, to wit Inspite or because of the ambiguous nature of ... civilian takeover of jurisdiction was concerned and notwithstanding the shillyshallying and vacillation characteristic of its implementation, this Court relied on the enunciated policy of normalization in upholding the primacy of civil courts. This policy meant that as many cases as possible involving civilians being tried by military tribunals as could be transferred to civil courts should be turned over immediately. In case of doubt, the presumption was in favor of civil courts always trying civilian accused. xxx xxx xxx The crime for which the petitioners were charged was committed ... long before the proclamation of martial law. ... Now that it is already late 1986, and martial law is a thing of the past, hopefully never more to return, there is no more reason why a murder committed in 1971 should still be retained, at this time, by a military tribunal. We agree with the dissenting views of then Justice, now Chief Justice Claudio Teehankee 35 and Madame Justice Cecilia Munoz Palma 36 in Aquino, Jr. in so far as they hold that military commissions or tribunals have no jurisdiction to try civilians for alleged offenses when the civil courts are open and functioning. Due process of law demands that in all criminal prosecutions (where the accused stands to lose either his life or his liberty), the accused shall be entitled to, among others, a trial. 37 The trial contemplated by the due process clause of the Constitution, in relation to the Charter as a whole, is a trial by judicial process, not by executive or military process. Military commissions or tribunals, by whatever name they are called, are not courts within the Philippine judicial system. As explained by Justice Teehankee in his separate dissenting opinion... Civilians like (the) petitioner placed on trial for civil offenses under general law are entitled to trial by judicial process, not by executive or military process.

Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established by law. Judicial power exists only in the courts, which have "exclusive power to hear and determine those matters which affect the life or liberty or property of a citizen. 38 Since we are not enemy-occupied territory nor are we under a military government and even on the premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly functioning. 39 ... And in Toth v. Quarles, 40 the U.S. Supreme Court furtherstressed that the assertion of military authority over civilians cannot rest on the President's power as Commander-inChief or on any theory of martial law. xxx xxx xxx The U.S. Supreme Court aptly pointed out ... , in ruling that discharged army veterans (estimated to number more than 22.5 million) could not be rendered "helpless before some latter-day revival of old military charges" and subjected to military trials for offenses committed while they were in the military service prior to their discharge, that "the presiding officer at a court martial is not a judge whose objectivity and independence are protected by tenure and undiminished salary and nurtured by the judicial tradition, but is a military law officer. Substantially different rules of evidence and procedure apply in military trials. Apart from these differences, the suggestion of the possibility of influence on the actions of the court martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in military law, despite strenuous efforts to eliminate the danger." The late Justice Black ... added that (A) Court-Martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the over-all mechanism by which military discipline is preserved," and that exservicemen should be given "the benefits of a civilian court trial when they are actually civilians ... Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. Moreover, military tribunals pertain to the Executive Department of the Government and are simply instrumentalities of the executive power, provided by the legislature for the President as Commander-in-Chief to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or

those of his authorized military representatives. 41 Following the principle of separation of powers underlying the existing constitutional organization of the Government of the Philippines, the power and the duty of interpreting the laws as when an individual should be considered to have violated the law) is primarily a function of the judiciary. 42 It is not, and it cannot be the function of the Executive Department, through the military authorities. And as long as the civil courts in the land remain open and are regularly functioning, as they do so today and as they did during the period of martial law in the country, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by the civil courts. 43 To have it otherwise would be a violation of the constitutional right to due process of the civilian concerned. In addition to this pronouncement, We take note of the observation made by the Solicitor General to the effect that the death penalty imposed upon the petitioners by the respondent Military Commission No. 34 appears to have been rendered too hastily to the prejudice to the petitioners, and in complete disregard of their constitutional right to adduce evidence on their behalf. We quote the pertinent portions of the Manifestation submitted by the Solicitor General, to wit Prior to the session of December 4, 1984, when the respondent Commission rendered its sentence, petitioners have requested the prosecution to provide them with copies of the complete record of trial, including the evidences presented against them, but the prosecution dillydallied and failed to provide them with the document requested. According to petitioners, they needed the documents to adequately prepare for their defense. But a few days before December 4, 1984 the prosecution suddenly furnished them with certain transcripts of the proceedings which were not complete. Petitioner Othoniel Jimenez was scheduled to start with the presentation of his evidence on said date and he requested that his first witness be served with subpoena. The other petitioners, as agreed upon, were to present their evidence after the first one, Othoniel Jimenez, has finished presenting his evidence. But on that fateful day, December 4, 1984, the witness requested to be served with subpoena was not around, because as shown by the records, he was not even served with the requested subpoena. But in spite of that, respondent Military Commission proceeded to ask each one of the petitioners if they are ready to present their evidence. Despite their explanation that Othoniel Jimenez cannot proceed because the prosecution, which performs the duties and functions of clerk of court, failed to subpoena his witness, and that the other petitioners were not ready because it was not yet their turn to do so, the Commission abruptly decided that petitioners are deemed to have waived the presentation of evidence in their behalf, and considered the case submitted for resolution.

After a recess of only twenty-five (25) minutes, the session was resumed and the Commission rendered its sentence finding petitioners guilty of all the charges against them and imposing upon them the penalty of death by electrocution. 44 Thus, even assuming arguendo that the respondent Military Commission No. 34 does have the jurisdiction to try the petitioners, the Commission should be deemed ousted of its jurisdiction when, as observed by the Solicitor General, the said tribunal acted in disregard of the constitutional rights of the accused. Indeed, it is well-settled that once a deprivation of a constitutional right is shown to exist, the tribunal that rendered the judgment in question is deemed ousted of jurisdiction. 45 Moreover, We find that Proclamation No. 2045 (dated January 17, 1981) officially lifting martial law in the Philippines and abolishing all military tribunals created pursuant to the national emergency effectively divests the respondent Military Commission No. 34 (and all military tribunals for that matter) of its supposed authority to try civilians, including the herein petitioners. The main opinion in Aquino, Jr. is premised on the theory that military tribunals have the jurisdiction to try civilians as long as the period of national emergency (brought about by public disorder and similar causes) lasts. Undoubtedly, Proclamation No. 2045 is an acknowledgment on the part of the Executive Department of the Government that the national emergency no longer exists. Thereafter, following the theory relied upon in the main opinion, all military tribunals should henceforth be considered functus officio in their relationship with civilians. By virtue of the proclamation itself, all cases against civilians pending therein should eventually be transferred to the civil courts for proper disposition. The principle of double jeopardy would not be an obstacle to such transfer because an indispensable element of double jeopardy is that the first tribunal which tried the case must be of competent jurisdiction. 46 As discussed earlier, the military tribunals are devoid of the required jurisdiction. We take this opportunity to reiterate that as long as the civil courts in the land are open and functioning, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them. Whether or not martial law has been proclaimed throughout the country or over a part thereof is of no moment. The imprimatur for this observation is found in Section 18, Article VII of the 1987 Constitution, to wit 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. (Emphasis supplied.) This provision in the fundamental law is just one of the many steps taken by the Filipino people towards the restoration of the vital role of the judiciary in a free country-that of the guardian of the Constitution and the dispenser of justice without fear or favor. No longer should military tribunals or commissions exercise jurisdiction over civilians for offenses allegedly committed by

them when the civil courts are open and functioning. No longer may the exclusive judicial power of the civil courts, beginning with the Supreme Court down to the lower courts 47 be appropriate by any military body or tribunal, or even diluted under the guise of a state of martial law, national security and other similar labels. At this juncture, We find it appropriate to quote a few paragraphs from the ponencia of Mr. Justice Gutierrez inAnimas v. The Minister of National Defense , 48 viz The jurisdiction given to military tribunals over common crimes and civilian(s) accused at a time when all civil courts were fully operational and freely functioning constitutes one of the saddest chapters in the history of the Philippine judiciary. The downgrading of judicial prestige caused by the glorification of military tribunals, the instability and insecurity felt by many members of the judiciary due to various causes both real and imagined, and the many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect will require plenty of time and determined efforts to cure. The immediate return to civil courts of all cases which properly belong to them is only a beginning. And in his separate concurring opinion in Animas, Mr. Chief Justice Teehankee had this to say I only wish to add that the great significance of our judgment in this case is that we reestablish and reinstate the fundamental principle based on civilian supremacy over the military as urged in vain in my dissent in the case of Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al. that "Civilians placed on trial for offenses under general law are entitled to trial by judicial process, not by executive or military process. Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established by law. Military commissions, or tribunals, are not courts and do not form part of the judicial system. Since we are not enemy-occupied territory nor are we under a military government and even on the premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly functioning. xxx xxx xxx The terrible consequences of subjecting civilians to trial by military process is best exemplified in the sham military trial of the martyred former Senator Benigno S. Aquino, Jr., whereby he was deprived (1) by the summary ex parte investigation by the

Chief prosecution staff of the JAGO of his right to be informed of the charges against him and of his right to counsel as expressly recognized by Section 20 of the Bill of Rights of the 1973 Constitution; (2) of his vested statutory right to a preliminary investigation of the subversion charges against him before the proper court of first instance as required under Section 5 of the Anti-Subversion Act, R.A. 1700 and of the other charges against him before the proper civilian officials and to confront and crossexamine the witnesses against him under R.A. 5180; (3) of the right to be tried by judicial process, by the regular independent courts of justice, with all the specific constitutional, statutory and procedural safeguards embodied in the judicial process and presided over not by military officers; and (4) of the right to appeal to the regular appellate courts and to judicial review by this Court in the event of conviction and imposition of a sentence of death or life imprisonment which the charges carry and wherein a qualified majority of ten (10) votes for affirmance of the death penalty is required. In fine, he was denied due process of law as guaranteed under the Bill of Rights which further ordains that "No person shall be held to answer for a criminal offense without due process of law."Worse, his trial by a military tribunal created by the then President and composed of the said President's own military subordinates without tenure and of non-lawyers (except the law member) and of whose decision the President is the final reviewing authority as Commander-in-Chief of the Armed Forces deprived him of a basic constitutional right to be heard by a fair and impartial tribunal, considering that the said President had publicly declared the evidence against petitioner "not only strong (but) overwhelming" and thereby prejudged and predetermined his guilt, and none of his military subordinates could be expected to go against their Commander-in-Chief's declaration. Hopefully, an these aberrations now belong to the dead and nightmarish past, when time-tested doctrines, to borrow a phrase from the then Chief Justice, "shrivelled in the effulgence of the overpowering rays of martial rule. 49 As stated earlier, We have been asked to re-examine a previous ruling of the Court with a view towards abandoning or modifying the same. We do so now but not without careful reflection and deliberation on Our part. Certainly, the rule of stare decisis is entitled to respect because stability in jurisprudence is desirable. Nonetheless, reverence for precedent, simply as precedent, cannot prevail when constitutionalism and the public interest demand otherwise. Thus, a doctrine which should be abandoned or modified should be abandoned or modified accordingly. After all, more important than anything else is that this Court should be right. 50 Accordingly, it is Our considered opinion, and We so hold, that a military commission or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over

civilians for offenses allegedly committed by them as long as the civil courts are open and functioning, and that any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned. 51 For the same reasons, Our pronouncement in Aquino, Jr. v. Military Commission No. 2 52 and all decided cases affirming the same, in so far as they are inconsistent with this pronouncement, should be deemed abandoned. WHEREFORE, in view of the foregoing, the Petitions for habeas corpus are DISMISSED for having become moot and academic. The Petitions for certiorari and prohibition are hereby GRANTED. The creation of the respondent Military Commission No. 34 to try civilians like the petitioners is hereby declared unconstitutional and all its proceedings are deemed null and void. The temporary restraining order issued against the respondents enjoining them from executing the Decision of the respondent Military Commission No. 34 is hereby made permanent and the said respondents are permanently prohibited from further pursuing Criminal Case No. MC-34-1 against the petitioners. The sentence rendered by the respondent Military Commission No. 34 imposing the death penalty on the petitioners is hereby vacated for being null and void, and all the items or properties taken from the petitioners in relation to the said criminal case should be returned to them immediately. No pronouncement as to costs. SO ORDERED. G.R. No. 93028 July 29, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARTIN SIMON y SUNGA, respondent. The Solicitor General for plaintiff-appellee. Ricardo M.Sampang for accused-appellant.

drug activities of a certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante, the team, together with their informant, proceeded to Sto. Cristo after they had coordinated with the police authorities andbarangay officers thereof. When they reached the place, the confidential informer pointed out appellant to Lopez who consequently approached appellant and asked him if he had marijuana. Appellant answered in the affirmative and Lopez offered to buy two tea bags. Appellant then left and, upon returning shortly thereafter, handed to Lopez two marijuana tea bags and Lopez gave him the marked money amounting to P40.00 as payment. Lopez then scratched his head as a pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and the team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested appellant. The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp Olivas on board a jeep and he was placed under custodial investigation, with Sgt. Pejoro as the investigator. 4 Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and took the marked money from appellant. 5 Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was stationed farthest from the rest of the other members, that is, around two hundred meters away from his companions. He did not actually see the sale that transpired between Lopez and appellant but he saw his teammates accosting appellant after the latter's arrest. He was likewise the one who conducted the custodial investigation of appellant wherein the latter was apprised of his rights to remain silent, to information and to counsel. Appellant, however, orally waived his right to counsel. 6 Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his possession. Pejoro likewise informed the court below that, originally, what he placed on the receipt was that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez and Villaruz corrected his entry by telling him to put "two", instead of "one" and "40", instead of "20". He agreed to the correction since they were the ones who were personally and directly involved in the purchase of the marijuana and the arrest of appellant. 7 Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day after the latter's apprehension, and the results were practically normal except for his relatively high blood pressure. The doctor also did not find any trace of physical injury on the person of appellant. The next day, he again examined appellant due to the latter's complaint of gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a history of peptic ulcer, which causes him to experience abdominal pain and consequently vomit blood. In the afternoon, appellant came back with the same complaint but, except for the gastrointestinal pain, his physical condition remained normal. 8

REGALADO, J.: Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a violation of Section 4, Article II of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of the sum of P40.00, which tea bags, when subjected to laboratory examination, were found positive for marijuana. 1 Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his escape from Camp Olivas, San Fernando, Pampanga where he was temporarily detained, 2 he pleaded not guilty. He voluntarily waived his right to a pre-trial conference, 3 after which trial on the merits ensued and was duly concluded. I The evidence on record shows that a confidential informant, later identified as a NARCOM operative, informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal

As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day in question, at around 4:30 p.m., he was watching television with the members of his family in their house when three persons, whom he had never met before suddenly arrived. Relying on the assurance that they would just inquire about something from him at their detachment, appellant boarded a jeep with them. He was told that they were going to Camp Olivas, but he later noticed that they were taking a different route. While on board, he was told that he was a pusher so he attempted to alight from the jeep but he was handcuffed instead. When they finally reached the camp, he was ordered to sign some papers and, when he refused, he was boxed in the stomach eight or nine times by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the documents presented to him. He denied knowledge of the P20.00 or the dried marijuana leaves, and insisted that the twenty-peso bill came from the pocket of Pejoro. Moreover, the reason why he vomited blood was because of the blows he suffered at the hands of Pejoro. He admitted having escaped from the NARCOM office but claimed that he did so since he could no longer endure the maltreatment to which he was being subjected. After escaping, he proceeded to the house of his uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m. There, he consulted a quack doctor and, later, he was accompanied by his sister to the Romana Pangan District Hospital at Floridablanca, Pampanga where he was confined for three days. 9 Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise confirmed that appellant had been suffering from peptic ulcer even before the latter's arrest. 10 Also, Dr. Evelyn GomezAguas, a resident physician of Romana Pangan District Hospital, declared that she treated appellant for three days due to abdominal pain, but her examination revealed that the cause for this ailment was appellant's peptic ulcer. She did not see any sign of slight or serious external injury, abrasion or contusion on his body. 11 On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos and to pay the costs. The four tea bags of marijuana dried leaves were likewise ordered confiscated in favor of the Government. 12 Appellant now prays the Court to reverse the aforementioned judgment of the lower court, contending in his assignment of errors that the latter erred in (1) not upholding his defense of "frame-up", (2) not declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3) convicting him of a violation of the Dangerous Drugs Act. 13 At the outset, it should be noted that while the People's real theory and evidence is to the effect the appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags were merely confiscated subsequently from his possession, 14 the latter not being in any way connected with the sale, the information alleges that he sold and delivered four tea bags of marijuana dried leaves. 15 In view thereof, the issue presented for resolution in this appeal is merely the act of selling the two tea bags allegedly committed by appellant, and does not include the disparate and distinct issue of illegal possession of the other two tea bags which separate offense is not charged herein. 16

To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably established. 17 To sell means to give, whether for money or any other material consideration. 18 It must, therefore, be established beyond doubt that appellant actually sold and delivered two tea bags of marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two twenty-peso bills. After an assiduous review and calibration of the evidence adduced by both parties, we are morally certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as to how the sale took place and his testimony was amply corroborated by his teammates. As between the straightforward, positive and corroborated testimony of Lopez and the bare denials and negative testimony of appellant, the former undeniably deserves greater weight and is more entitled to credence. We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is susceptible to mistake, harassment, extortion and abuse. 19 Nonetheless, such causes for judicial apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not effected in a haphazard way, for a surveillance was conducted by the team before the buy-bust operation was effected. 20 No ill motive was or could be attributed to them, aside from the fact that they are presumed to have regularly performed their official duty. 21 Such lack of dubious motive coupled with the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, should prevail over the self-serving and uncorroborated claim of appellant of having been framed, 22 erected as it is upon the mere shifting sands of an alibi. To top it all, appellant was caught red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert the charge, he does not appear to have plausibly done so. When the drug seized was submitted to the Crime Laboratory Service of the then Philippine Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn Salangad, a forensic chemist therein, 23 confirmed in her Technical Report No. NB-448-88 that the contents of the four tea bags confiscated from appellant were positive for and had a total weight of 3.8 grams of marijuana. 24 Thus, the corpus delicti of the crime had been fully proved with certainty and conclusiveness. 25 Appellant would want to make capital of the alleged inconsistencies and improbabilities in the testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of Property Seized/Confiscated," he signed it as the one who seized the same. 26 Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really matter since such is not an element of the offense with which appellant is charged. What is unmistakably clear is that the marijuana was confiscated from the possession of appellant. Even, assuming arguendo that the prosecution committed an error on who actually seized the marijuana from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses'

honesty. 27 Besides, there was clearly a mere imprecision of language since Pejoro obviously meant that he did not take part in the physical taking of the drug from the person of appellant, but he participated in the legal seizure or confiscation thereof as the investigator of their unit. Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were not powdered for finger-printing purposes contrary to the normal procedure in buy-bust operations. 28 This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows: Q: Is it the standard operating procedure of your unit that in conducting such operation you do not anymore provide a powder (sic) on the object so as to determine the thumbmark or identity of the persons taking hold of the object? A: We were not able to put powder on these denominations because we are lacking that kind of material in our office since that item can be purchased only in Manila and only few are producing that, sir. xxx xxx xxx Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS, as well as the office of NICA? A: Our office is only adjacent to those offices but we cannot make a request for that powder because they, themselves, are using that in their own work, sir. 29 The foregoing explanation aside, we agree that the failure to mark the money bills used for entrapment purposes can under no mode of rationalization be fatal to the case of the prosecution because the Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions."30 The dusting of said bills with phosphorescent powder is only an evidentiary technique for identification purposes, which identification can be supplied by other species of evidence. Again, appellant contends that there was neither a relative of his nor any barangay official or civilian to witness the seizure. He decries the lack of pictures taken before, during and after his arrest. Moreover, he was not reported to or booked in the custody of any barangay official or police authorities. 31 These are absurd disputations. No law or jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be accompanied by the taking of pictures. On the contrary, the police enforcers

having caught appellant in flagrante delicto, they were not only authorized but were also under the obligation to effect a warrantless arrest and seizure. Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in connection with his apprehension. Said Booking Sheet and Arrest Report 32 states, inter alia, that "suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks was affixed appellant's signature. In the same manner, the receipt for the seized property, hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of the marked bills from him. 33 However, we find and hereby declare the aforementioned exhibits inadmissible in evidence. Appellant's conformance to these documents are declarations against interest and tacit admissions of the crime charged. They were obtained in violation of his right as a person under custodial investigation for the commission of an offense, there being nothing in the records to show that he was assisted by counsel. 34 Although appellant manifested during the custodial investigation that he waived his right to counsel, the waiver was not made in writing and in the presence of counsel, 35 hence whatever incriminatory admission or confession may be extracted from him, either verbally or in writing, is not allowable in evidence. 36 Besides, the arrest report is self-serving and hearsay and can easily be concocted to implicate a suspect. Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated from his predicament since his criminal participation in the illegal sale of marijuana has been sufficiently proven. The commission of the offense of illegal sale of prohibited drugs requires merely the consummation of the selling transaction 37 which happens the moment the buyer receives the drug from the seller. 38 In the present case, and in light of the preceding discussion, this sale has been ascertained beyond any peradventure of doubt. Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger. 39 We take this opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a small scale as in this case, belongs to that class of crimes that may be committed at any time and in any place. 40 It is not contrary to human experience for a drug pusher to sell to a total stranger, 41 for what matters is not an existing familiarity between the buyer and seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves. 42 While there may be instances where such sale could be improbable, taking into consideration the diverse circumstances of person, time and place, as well as the incredibility of how the accused supposedly acted on that occasion, we can safely say that those exceptional particulars are not present in this case. Finally, appellant contends that he was subjected to physical and mental torture by the arresting officers which caused him to escape from Camp Olivas the night he was placed under custody. 43 This he asserts to support his explanation as to how his signatures on the documents earlier discussed were supposedly obtained by force and coercion. The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must not only proceed from the mouth of a credible witness but must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. 44 The evidence on record is bereft of any support for appellant's allegation of maltreatment. Two

doctors, one for the prosecution 45 and the other for the defense, 46 testified on the absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the person of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which he had been suffering even before his arrest. 47 His own brother even corroborated that fact, saying that appellant has had a history of bleeding peptic ulcer. 48 Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for not divulging the same to his brother who went to see him at the camp after his arrest and during his detention there.49 Significantly, he also did not even report the matter to the authorities nor file appropriate charges against the alleged malefactors despite the opportunity to do so 50 and with the legal services of counsel being available to him. Such omissions funnel down to the conclusion that appellant's story is a pure fabrication. These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless and premeditated for the NARCOM agents were determined to arrest him at all costs. 51 Premeditated or not, appellant's arrest was only the culmination, the final act needed for his isolation from society and it was providential that it came about after he was caught in the very act of illicit trade of prohibited drugs. Accordingly, this opinion could have concluded on a note of affirmance of the judgment of the trial court. However, Republic Act No. 6425, as amended, was further amended by Republic Act No. 7659 effective December 31, 1993, 52 which supervenience necessarily affects the original disposition of this case and entails additional questions of law which we shall now resolve. II The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to this effect: Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, are hereby amended to read as follows: xxx xxx xxx Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. xxx xxx xxx

Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows: Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instrument of the Crime. The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: xxx xxx xxx 5. 750 grams or more of indian hemp or marijuana xxx xxx xxx Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. 1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic Act No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder, pursuant to Article 22 of the Revised Penal Code. Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in substitution of the previous Articles 190 to 194 of the Revised Penal Code, 53 it has long been settled that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes punished by special laws. 54 The execution in said article would not apply to those convicted of drug offenses since habitual delinquency refers to convictions for the third time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification. 55 Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been involved nor invoked in the present case, a corollary question would be whether this court, at the present stage, can sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus: . . . . The plain precept contained in article 22 of the Penal Code, declaring the

retroactivity of penal laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty. If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659 has already become final and executory or the accused is serving sentence thereunder, then practice, procedure and pragmatic considerations would warrant and necessitate the matter being brought to the judicial authorities for relief under a writ of habeas corpus. 56 2. Probably through oversight, an error on the matter of imposable penalties appears to have been committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial reconciliation and craftsmanship. As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That penalty, according to the amendment to Section 20 of the law, shall be applied if what is involved is 750 grams or more of indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana involved is 750 grams or more. The same error has been committed with respect to the other prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting provisions in order to give effect to the whole law, 57 we hereby hold that the penalty to be imposed where the quantity of the drugs involved is less than the quantities stated in the first paragraph shall range from prision correccional to reclusion temporal, and not reclusion perpetua. This is also concordant with the fundamental rule in criminal law that all doubts should be construed in a manner favorable to the accused. 3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the imposable range of penalties under the second paragraph of Section 20, as now modified, the law provides that the penalty shall be taken from said range "depending upon the quantity" of the drug involved in the case. The penalty in said second paragraph constitutes a complex one composed of three distinct penalties, that is, prision correccional,prision mayor, and reclusion temporal. In such a situation, the Code provides that each one shall form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum period.58 Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances determine which period of such complex penalty shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug subject of the criminal

transaction. 59 Accordingly, by way of exception to Article 77 of the Code and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid component penalties shall be considered as a principal imposable penalty depending on the quantity of the drug involved. Thereby, the modifying circumstances will not altogether be disregarded. Since each component penalty of the total complex penalty will have to be imposed separately as determined by the quantity of the drug involved, then the modifying circumstances can be used to fix the proper period of that component penalty, as shall hereafter be explained. It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and double or treble the same, to be respectively the bases for allocating the penalty proportionately among the three aforesaid periods according to the severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to 749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the penalty is reclusion perpetua to death. 60 Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of prision correccional is consequently indicated but, again, another preliminary and cognate issue has first to be resolved. 4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it consists of three periods as provided in the text of and illustrated in the table provided by Article 76 of the Code. The question is whether or not in determining the penalty to be imposed, which is here to be taken from the penalty of prision correccional, the presence or absence of mitigating, aggravating or other circumstances modifying criminal liability should be taken into account. We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases, however, reveals that the reason therefor was because the special laws involved provided their own specific penalties for the offenses punished thereunder, and which penalties were not taken from or with reference to those in the Revised Penal Code. Since the penalties then provided by the special laws concerned did not provide for the minimum, medium or maximum periods, it would consequently be impossible to consider the aforestated modifying circumstances whose main function is to determine the period of the penalty in accordance with the rules in Article 64 of the Code. This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation of penalties by degrees could not be given supplementary application to special laws, since the penalties in the latter were not components of or contemplated in the scale of penalties provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the special law against, such supplementary application. The situation, however, is different where although the offense is defined in and ostensibly punished under a special

law, the penalty therefor is actually taken from the Revised Penal Code in its technical nomenclature and, necessarily, with its duration, correlation and legal effects under the system of penalties native to said Code. When, as in this case, the law involved speaks of prision correccional, in its technical sense under the Code, it would consequently be both illogical and absurd to posit otherwise. More on this later. For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or aggravating circumstance. 5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed for offenses under special laws would be necessary. Originally, those special laws, just as was the conventional practice in the United States but differently from the penalties provided in our Revised Penal Code and its Spanish origins, provided for one specific penalty or a range of penalties with definitive durations, such as imprisonment for one year or for one to five years but without division into periods or any technical statutory cognomen. This is the special law contemplated in and referred to at the time laws like the Indeterminate Sentence Law 61 were passed during the American regime. Subsequently, a different pattern emerged whereby a special law would direct that an offense thereunder shall be punished under the Revised Penal Code and in the same manner provided therein. Inceptively, for instance, Commonwealth Act No. 303 62 penalizing non-payment of salaries and wages with the periodicity prescribed therein, provided: Sec. 4. Failure of the employer to pay his employee or laborer as required by section one of this Act, shallprima facie be considered a fraud committed by such employer against his employee or laborer by means of false pretenses similar to those mentioned in article three hundred and fifteen, paragraph four, sub-paragraph two (a) of the Revised Penal Code and shall be punished in the same manner as therein provided. 63 Thereafter, special laws were enacted where the offenses defined therein were specifically punished by the penalties as technically named and understood in the Revised Penal Code. These are exemplified by Republic Act No. 1700 (AntiSubversion Act) where the penalties ranged from arresto mayor to death; 64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto mayor toprision mayor; and Presidential Decree No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor may involveprision mayor, reclusion temporal, reclusion perpetua or death. Another variant worth mentioning is Republic Act No. 6539 (Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months, when committed without violence or intimidation of persons or force upon things; not less than 17 years and 4 months and not more than 30 years, when committed with violence against or

intimidation of any person, or force upon things; and life imprisonment to death, when the owner, driver or occupant of the carnapped vehicle is killed. With respect to the first example, where the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules for the application of penalties under said Code or by other relevant statutory provisions based on or applicable only to said rules for felonies under the Code. In this type of special law, the legislative intendment is clear. The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same formulation. On the other hand, the rules for the application of penalties and the correlative effects thereof under the Revised Penal Code, as well as other statutory enactments founded upon and applicable to such provisions of the Code, have suppletory effect to the penalties under the former Republic Act No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised Penal code lucidly reveals the statutory intent to give the related provisions on penalties for felonies under the Code the corresponding application to said special laws, in the absence of any express or implicit proscription in these special laws. To hold otherwise would be to sanction an indefensible judicial truncation of an integrated system of penalties under the Code and its allied legislation, which could never have been the intendment of Congress. In People vs. Macatanda, 65 a prosecution under a special law (Presidential Decree No. 533, otherwise known as the AntiCattle Rustling Law of 1974), it was contended by the prosecution that Article 64, paragraph 5, of the Revised Penal Code should not apply to said special law. We said therein that We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct from and unrelated to the Revised Penal Code. From the nature of the penalty imposed which is in terms of the classification and duration of penalties as prescribed in the Revised Penal Code, which is not for penalties as are ordinarily imposed in special laws, the intent seems clear that P.D. 533 shall be deemed as an amendment of the Revised Penal Code, with respect to the offense of theft of large cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such as Article 104 of the Revised Penal Code . . . . Article 64 of the same Code should, likewise, be applicable, . . . . (Emphasis supplied.) More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal Code to Republic Act

No. 6425, in this case involving Article 63(2) of the Code, we have this more recent pronouncement: . . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code shall be "supplementary" to special laws, this Court held that where the special law expressly grants to the court discretion in applying the penalty prescribed for the offense, there is no room for the application of the provisions of the Code . . . . The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit grant of discretion to the Court in the application of the penalty prescribed by the law. In such case, the court must be guided by the rules prescribed by the Revised Penal Code concerning the application of penalties which distill the "deep legal thought and centuries of experience in the administration of criminal laws." (Emphasis ours.) 66 Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties defined in and constituting integral parts of the three scales of penalties in the Code, 67 with much more reason should the provisions of said Code on the appreciation and effects of all attendant modifying circumstances apply in fixing the penalty. Likewise, the different kinds or classifications of penalties and the rules for graduating such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if they would result in absurdities as will now be explained. While not squarely in issue in this case, but because this aspect is involved in the discussion on the role of modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances should be considered and applied only if they affect the periods and the degrees of the penalties within rational limits. Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71, are the stage of execution of the crime and the nature of the participation of the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under the aforestated second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been contemplated by the legislature. Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since the complex penalty in this case consists of three discrete penalties in their full extent,

that is, prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto menor,destierro and arresto mayor. There could, however, be no further reduction by still one or two degrees, which must each likewise consist of three penalties, since only the penalties of fine and public censure remain in the scale. The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution cannot be forged from an imperfect law, which impasse should now be the concern of and is accordingly addressed to Congress. 6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does, since drug offenses are not included in nor has appellant committed any act which would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. 68 The more important aspect, however, is how the indeterminate sentence shall be ascertained. It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified under the rule of contemporanea expositio. 69 We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects. In fact, for purposes of determining the maximum of said sentence, we have applied the provisions of the amended Section 20 of said

law to arrive at prision correccional and Article 64 of the Code to impose the same in the medium period. Such offense, although provided for in a special law, is now in effect punished by and under the Revised Penal Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.) A divergent pedantic application would not only be out of context but also an admission of the hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its construction of Act. No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we have held that what is considered is the penalty actually imposed and not the penalty imposable under the law, 70 and that reclusion perpetua is likewise embraced therein although what the law states is "life imprisonment". What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the principles of literal interpretation, which have been rationalized by comparative decisions of this Court; of historical interpretation, as explicated by the antecedents of the law and related contemporaneous legislation; and of structural interpretation, considering the interrelation of the penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation. 71 The indeterminate Sentence Law is a legal and social measure of compassion, and should be liberally interpreted in favor of the accused. 72 The "minimum" sentence is merely a period at which, and not before, as a matter of grace and not of right, the prisoner may merely be allowed to serve the balance of his sentence outside of his confinement. 73 It does not constitute the totality of the penalty since thereafter he still has to continue serving the rest of his sentence under set conditions. That minimum is only the period when the convict's eligibility for parole may be considered. In fact, his release on parole may readily be denied if he is found unworthy thereof, or his reincarceration may be ordered on legal grounds, even if he has served the minimum sentence. It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision correccional which is the maximum range we have fixed through the application of Articles 61 and 71 of the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6 months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference, which could thereby even involve only one day, is hardly worth the creation of an overrated tempest in the judicial teapot.

ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court a quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION that he should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months of arresto mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof. SO ORDERED. Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza, JJ., concur. Bellosillo, J., is on leave.

[G.R. No. 139789. May 12, 2000] ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm [G.R. No. 139808. May 12, 2000] POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents. DECISION PARDO, J.: May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss? The answer is no. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. A writ of habeas corpus extends to all cases of illegal confinement or detention,[1] or by which the rightful custody of a person is withheld from the one entitled thereto.[2] Slx "Habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and 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."[3] It is a high prerogative, common-law writ, of ancient origin, the great object of which is the liberation of those who may be imprisoned without sufficient cause.[4] It is issued when one is deprived of liberty or is wrongfully prevented from exercising legal custody over another person.[5] The petition of Erlinda K. Ilusorio[6] is to reverse the decision[7] of the Court of Appeals and its resolution[8] dismissing the application for habeas corpus to have the custody of her husband, lawyer Potenciano Ilusorio and enforce consortium as the wife. On the other hand, the petition of Potenciano Ilusorio[9] is to annul that portion of the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation rights to her husband and to enjoin Erlinda and the Court of Appeals from enforcing the visitation rights.

The undisputed facts are as follows: Scslx Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio. Potenciano Ilusorio is about 86 years of age possessed of extensive property valued at millions of pesos. For many years, lawyer Potenciano Ilusorio was Chairman of the Board and President of Baguio Country Club. On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony and lived together for a period of thirty (30) years. In 1972, they separated from bed and board for undisclosed reasons. Potenciano lived at Urdaneta Condominium, Ayala Ave., Makati City when he was in Manila and at Ilusorio Penthouse, Baguio Country Club when he was in Baguio City. On the other hand, Erlinda lived in Antipolo City. Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49); Marietta (age 48); and Shereen (age 39). On December 30, 1997, upon Potencianos arrival from the United States, he stayed with Erlinda for about five (5) months in Antipolo City. The children, Sylvia and Erlinda (Lin), alleged that during this time, their mother gave Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an antidepressant drug prescribed by his doctor in New York, U.S.A. As a consequence, Potencianos health deteriorated. On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a petition[10] for guardianship over the person and property of Potenciano Ilusorio due to the latters advanced age, frail health, poor eyesight and impaired judgment. On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano Ilusorio did not return to Antipolo City and instead lived at Cleveland Condominium, Makati. Slxsc On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas corpus to have the custody of lawyer Potenciano Ilusorio. She alleged that respondents[11] refused petitioners demands to see and visit her husband and prohibited Potenciano from returning to Antipolo City. After due hearing, on April 5, 1999, the Court of Appeals rendered decision the dispositive portion of which reads: "WHEREFORE, in the light of the foregoing disquisitions, judgment is hereby rendered: "(1) Ordering, for humanitarian consideration and upon petitioners manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia Ilusorio-Yap, the administrator of Cleveland Condominium or anywhere in its place, his guards and Potenciano Ilusorios staff especially Ms. Aurora Montemayor to allow visitation rights to Potenciano Ilusorios wife, Erlinda Ilusorio and all her children, notwithstanding any list limiting visitors thereof, under penalty of contempt in case of violation of refusal thereof; xxx

"(2) ORDERING that the writ of habeas corpus previously issued be recalled and the herein petition for habeas corpus be DENIED DUE COURSE, as it is hereby DISMISSED for lack of unlawful restraint or detention of the subject of the petition. "SO ORDERED."[12] Hence, the two petitions, which were consolidated and are herein jointly decided. As heretofore stated, a writ of habeas corpus extends to all cases of illegal confinement or detention,[13] or by which the rightful custody of a person is withheld from the one entitled thereto. It is available where a person continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due process, where the restraints are not merely involuntary but are unnecessary, and where a deprivation of freedom originally valid has later become arbitrary.[14] It is devised as a speedy and effectual remedy to relieve persons from unlawful restraint, as the best and only sufficient defense of personal freedom.[15] Jksm The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such restraint is illegal.[16] To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action.[17] The illegal restraint of liberty must be actual and effective, not merely nominal or moral.[18] The evidence shows that there was no actual and effective detention or deprivation of lawyer Potenciano Ilusorios liberty that would justify the issuance of the writ. The fact that lawyer Potenciano Ilusorio is about 86 years of age, or under medication does not necessarily render him mentally incapacitated. Soundness of mind does not hinge on age or medical condition but on the capacity of the individual to discern his actions. After due hearing, the Court of Appeals concluded that there was no unlawful restraint on his liberty. The Court of Appeals also observed that lawyer Potenciano Ilusorio did not request the administrator of the Cleveland Condominium not to allow his wife and other children from seeing or visiting him. He made it clear that he did not object to seeing them. As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed that he was of sound and alert mind, having answered all the relevant questions to the satisfaction of the court. Being of sound mind, he is thus possessed with the capacity to make choices. In this case, the crucial choices revolve on his residence and the people he opts to see or live with. The choices he made may not appeal to some of his family members but these are choices which exclusively belong to Potenciano. He made it clear before the Court of Appeals that he was not prevented from leaving his house or seeing people. With that declaration, and absent any true restraint on his liberty, we have no reason to reverse the findings of the Court of Appeals. With his full mental capacity coupled with the right of choice, Potenciano Ilusorio may not be the subject of visitation rights

against his free choice. Otherwise, we will deprive him of his right to privacy. Needless to say, this will run against his fundamental constitutional right. Es m The Court of Appeals exceeded its authority when it awarded visitation rights in a petition for habeas corpus where Erlinda never even prayed for such right. The ruling is not consistent with the finding of subjects sanity. When the court ordered the grant of visitation rights, it also emphasized that the same shall be enforced under penalty of contempt in case of violation or refusal to comply. Such assertion of raw, naked power is unnecessary. The Court of Appeals missed the fact that the case did not involve the right of a parent to visit a minor child but the right of a wife to visit a husband. In case the husband refuses to see his wife for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise of his right. No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other mesne process. That is a matter beyond judicial authority and is best left to the man and womans free choice. WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack of merit. No costs. In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision of the Court of Appeals insofar as it gives visitation rights to respondent Erlinda K. Ilusorio. No costs. SO ORDERED Villavicencio vs lukban - Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the same means to return them from Davao to Manila. EDGARDO A. TIJING and BIENVENIDA R. TIJING, petitioners, vs. COURT OF APPEALS (Seventh Division) and ANGELITA DIAMANTE, respondents. DECISION QUISUMBING, J.: For review is the decision of the Court of Appeals dated March 6, 1996, in CA-G.R. SP No. 39056, reversing the decision of the Regional Trial Court in a petition for habeas corpus of Edgardo Tijing, Jr., allegedly the child of petitioners. Petitioners are husband and wife. They have six children. The youngest is Edgardo Tijing, Jr., who was born on April 27, 1989, at the clinic of midwife and registered nurse Lourdes Vasquez in Sta. Ana, Manila. Petitioner Bienvenida served as the laundrywoman of private respondent Angelita Diamante, then a resident of Tondo, Manila.

According to Bienvenida in August 1989, Angelita went to her house to fetch her for an urgent laundry job. Since Bienvenida was on her way to do some marketing, she asked Angelita to wait until she returned. She also left her fourmonth old son, Edgardo, Jr., under the care of Angelita as she usually let Angelita take care of the child while Bienvenida was doing laundry. When Bienvenida returned from the market, Angelita and Edgardo, Jr., were gone. Bienvenida forthwith proceeded to Angelitas house in Tondo, Manila, but did not find them there. Angelitas maid told Bienvenida that her employer went out for a stroll and told Bienvenida to come back later. She returned to Angelitas house after three days, only to discover that Angelita had moved to another place. Bienvenida then complained to her barangay chairman and also to the police who seemed unmoved by her pleas for assistance. Although estranged from her husband, Bienvenida could not imagine how her spouse would react to the disappearance of their youngest child and this made her problem even more serious. As fate would have it, Bienvenida and her husband reconciled and together, this time, they looked for their missing son in other places. Notwithstanding their serious efforts, they saw no traces of his whereabouts. Four years later or in October 1993, Bienvenida read in a tabloid about the death of Tomas Lopez, allegedly the common-law husband of Angelita, and whose remains were lying in state in Hagonoy, Bulacan. Bienvenida lost no time in going to Hagonoy, Bulacan, where she allegedly saw her son Edgardo, Jr., for the first time after four years. She claims that the boy, who was pointed out to her by Benjamin Lopez, a brother of the late Tomas Lopez, was already named John Thomas Lopez.[1] She avers that Angelita refused to return to her the boy despite her demand to do so. Bienvenida and Edgardo filed their petition for habeas corpus with the trial court in order to recover their son. To substantiate their petition, petitioners presented two witnesses, namely, Lourdes Vasquez and Benjamin Lopez. The first witness, Vasquez, testified that she assisted in the delivery of one Edgardo Tijing, Jr. on April 27, 1989 at her clinic in Sta. Ana, Manila. She supported her testimony with her clinical records.[2]The second witness, Benjamin Lopez, declared that his brother, the late Tomas Lopez, could not have possibly fathered John Thomas Lopez as the latter was sterile. He recalled that Tomas met an accident and bumped his private part against the edge of a banca causing him excruciating pain and eventual loss of his child-bearing capacity. Benjamin further declared that Tomas admitted to him that John Thomas Lopez was only an adopted son and that he and Angelita were not blessed with children.[3] For her part, Angelita claimed that she is the natural mother of the child. She asserts that at age 42, she gave birth to John Thomas Lopez on April 27, 1989, at the clinic of midwife Zosima Panganiban in Singalong, Manila. She added, though, that she has two other children with her real husband, Angel Sanchez.[4] She said the birth of John Thomas was registered by her common-law husband, Tomas Lopez, with the local civil registrar of Manila on August 4, 1989. On March 10, 1995, the trial court concluded that since Angelita and her common-law husband could not have children, the alleged birth of John Thomas Lopez is an impossibility.[5] The trial court also held that the minor and Bienvenida showed strong facial similarity. Accordingly, it ruled that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person who is the natural child of petitioners. The trial court decreed: WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered GRANTING the petition for Habeas Corpus, as such,

respondent Angelita Diamante is ordered to immediately release from her personal custody minor John Thomas D. Lopez, and turn him over and/or surrender his person to petitioners, Spouses Edgardo A. Tijing and Bienvenida R. Tijing, immediately upon receipt hereof. Branch Sheriff of this Court, Carlos Bajar, is hereby commanded to implement the decision of this Court by assisting herein petitioners in the recovery of the person of their minor son, Edgardo Tijing Jr., the same person as John Thomas D. Lopez. SO ORDERED.[6] Angelita seasonably filed her notice of appeal.[7] Nonetheless, on August 3, 1994, the sheriff implemented the order of the trial court by taking custody of the minor. In his report, the sheriff stated that Angelita peacefully surrendered the minor and he turned over the custody of said child to petitioner Edgardo Tijing.[8] On appeal, the Court of Appeals reversed and set aside the decision rendered by the trial court. The appellate court expressed its doubts on the propriety of the habeas corpus. In its view, the evidence adduced by Bienvenida was not sufficient to establish that she was the mother of the minor. It ruled that the lower court erred in declaring that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person,[9] and disposed of the case, thus: IN VIEW OF THE FOREGOING, the decision of the lower court dated March 10, 1995 is hereby REVERSED, and a new one entered dismissing the petition in Spec. Proc. No. 94-71606, and directing the custody of the minor John Thomas Lopez to be returned to respondent Angelita Diamante, said minor having been under the care of said respondent at the time of the filing of the petition herein. SO ORDERED.[10] Petitioners sought reconsideration of the abovequoted decision which was denied. Hence, the instant petition alleging: I THAT THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR WHEN IT DECLARED THAT THE PETITIONERS ACTION FOR HABEAS CORPUS IS MERELY SECONDARY TO THE QUESTION OF FILIATION THAT THE PETITIONERS HAD LIKEWISE PROVEN. II THAT THE RESPONDENT COURT OF APPEALS ERRED IN REVERSING THE DECISION OF THE REGIONAL TRIAL COURT DISMISSING THE PETITION FOR HABEAS CORPUS AND DIRECTING THAT THE CUSTODY OF THE MINOR JOHN THOMAS LOPEZ WHO WAS PROVEN TO THE SAME MINOR AS EDGARDO R. TIJING, JR., BE RETURNED TO THE PRIVATE RESPONDENT.[11] In our view, the crucial issues for resolution are the following: (1) Whether or not habeas corpus is the proper remedy?

(2) Whether or not Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person and is the son of petitioners? We shall discuss the two issues together since they are closely related. 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.[12] Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child.[13] It must be stressed too that in habeas corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions including those as to identity of the person. In this case, the minors identity is crucial in determining the propriety of the writ sought. Thus, it must be resolved first whether the Edgardo Tijing, Jr., claimed by Bienvenida to be her son, is the same minor named John Thomas Lopez, whom Angelita insists to be her offspring. We must first determine who between Bienvenida and Angelita is the minors biological mother. Evidence must necessarily be adduced to prove that two persons, initially thought of to be distinct and separate from each other, are indeed one and the same.[14] Petitioners must convincingly establish that the minor in whose behalf the application for the writ is made is the person upon whom they have rightful custody. If there is doubt on the identity of the minor in whose behalf the application for the writ is made, petitioners cannot invoke with certainty their right of custody over the said minor. True, it is not the function of this Court to examine and evaluate the probative value of all evidence presented to the concerned tribunal which formed the basis of its impugned decision, resolution or order.[15] But since the conclusions of the Court of Appeals contradict those of the trial court, this Court may scrutinize the evidence on the record to determine which findings should be preferred as more conformable to the evidentiary facts. A close scrutiny of the records of this case reveals that the evidence presented by Bienvenida is sufficient to establish that John Thomas Lopez is actually her missing son, Edgardo Tijing, Jr. First, there is evidence that Angelita could no longer bear children. From her very lips, she admitted that after the birth of her second child, she underwent ligation at the Martinez Hospital in 1970, before she lived with Tomas Lopez without the benefit of marriage in 1974. Assuming she had that ligation removed in 1978, as she claimed, she offered no evidence she gave birth to a child between 1978 to 1988 or for a period of ten years. The midwife who allegedly delivered the child was not presented in court. No clinical records, log book or discharge order from the clinic were ever submitted. Second, there is strong evidence which directly proves that Tomas Lopez is no longer capable of siring a son. Benjamin Lopez declared in court that his brother, Tomas, was sterile because of the accident and that Tomas admitted to him that John Thomas Lopez was only an adopted son. Moreover, Tomas Lopez and his legal wife, Maria Rapatan Lopez, had no children after almost fifteen years together. Though Tomas Lopez had lived with private respondent for fourteen years, they also bore no offspring. Third, we find unusual the fact that the birth certificate of John Thomas Lopez was filed by Tomas Lopez instead of

the midwife and on August 4, 1989, four months after the alleged birth of the child. Under the law, the attending physician or midwife in attendance at birth should cause the registration of such birth. Only in default of the physician or midwife, can the parent register the birth of his child. The certificate must be filed with the local civil registrar within thirty days after the birth.[16] Significantly, the birth certificate of the child stated Tomas Lopez and private respondent were legally married on October 31, 1974, in Hagonoy, Bulacan, which is false because even private respondent had admitted she is a common-law wife.[17] This false entry puts to doubt the other data in said birth certificate. Fourth, the trial court observed several times that when the child and Bienvenida were both in court, the two had strong similarities in their faces, eyes, eyebrows and head shapes. Resemblance between a minor and his alleged parent is competent and material evidence to establish parentage.[18] Needless to stress, the trial courts conclusion should be given high respect, it having had the opportunity to observe the physical appearances of the minor and petitioner concerned. Fifth, Lourdes Vasquez testified that she assisted in Bienvenidas giving birth to Edgardo Tijing, Jr., at her clinic. Unlike private respondent, she presented clinical records consisting of a log book, discharge order and the signatures of petitioners. All these considered, we are constrained to rule that subject minor is indeed the son of petitioners. The writ of habeas corpus is proper to regain custody of said child. A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test[19] for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage.[20] Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge.[21] Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress.[22] Though it is not necessary in this case to resort to DNA testing, in future it would be useful to all concerned in the prompt resolution of parentage and identity issues. WHEREFORE, the instant petition is GRANTED. The assailed DECISION of the Court of Appeals is REVERSED and decision of the Regional Trial Court is REINSTATED. Costs against the private respondent. SO ORDERED.

PER CURIAM: The power of judicial review is an aspect of judicial power that allows this Court every opportunity to review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts and to determine whether or not there has been a grave abuse of discretion amounting to lack of or excess of jurisdiction on the part of any branch or instrumentality of the government.[1] The case before us is a petition for a writ of habeas corpus filed by Jury Andal, Ricardo Andal and Edwin Mendoza, all convicted of rape with homicide in Criminal Case No. 14894 and 149-94, Regional Trial Court, Batangas, Branch 05, Lemery, affirmed by this Court in a decision en banc promulgated on September 25, 1997, and a resolution promulgated on February 17, 1998. They are scheduled for execution on June 16, 17, and 18, 1999. Petitioners seek a writ of habeas corpus on the basis of a claim of mistrial and/or that the decision of the Regional Trial Court, Batangas, Branch 05, Lemery, was void. They pray for a temporary restraining order to stay their execution and/or a preliminary injunction enjoining their execution. The petitioners rely on the argument that the trial court was ousted of jurisdiction to try their case since the pre-trial identification of the accused was made without the assistance of counsel and without a valid waiver from the accused. The petitioners cite the case of Olaguer v. Military Commission No. 34[2], wherein in a separate opinion, Justice Claudio Teehankee stated that Once a deprivation of a constitutional right is shown to exist, the court that rendered the judgement is deemed ousted of its jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention. We agree with petitioners that the extra-ordinary writ of habeas corpus is the appropriate remedy to inquire into questions of violation of the petitioners constitutional rights and that this Court has jurisdiction to entertain this review. Indeed, under the Constitution, the jurisdiction of this Court has been expanded to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.[3] And under Rule 102, Section 1 of the Revised Rules of Court, it is provided that Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. He may also avail himself of the writ where as a consequence of a judicial proceeding (a) there has been a deprivation of a constitutional right resulting in the restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty has been imposed, as such sentence is void as to such excess.[4] However, in this case, we find that there was no violation of the constitutional rights of the accused and a resultant deprivation of liberty or due process of law. In fact, the petition may be viewed as an attempt at a second motion for reconsideration of a final decision of the Court, disguised as one for habeas corpus. The accused were sentenced to the supreme penalty of death as a result of a valid accusation, trial, and judgment by a court of competent jurisdiction, after a fair and equitable trial. The factual milieu does not show a mistrial or a violation of the constitutional rights of the accused. As ruled by this Court, in its decision of September 25, 1997, the constitutional infirmity cannot affect the conclusion since accused-appellants did not make any confessions or

JURRY

ANDAL, RICARDO ANDAL and EDWIN MENDOZA, petitioners, vs. PEOPLE OF THE PHILIPPINES, REGIONAL TRIAL COURT, BATANGAS BR. 05, LEMERY, THE DIRECTOR, BUREAU OF CORRECTIONS, and THE HONORABLE, THE SECRETARY OF JUSTICE, in their official capacities,respondents.

RESOLUTION

admissions in regard to the crime charged. Further the earring recovered from Jury Andal was not obtained in the course of the investigation itself, but obtained through a search incident to a lawful arrest.[5] The Court has held in a long cases, that any illegality attendant during the arrest is deemed cured when the accused voluntarily submitted themselves to the jurisdiction of the court by entering their plea[6]. The trial court therefore had jurisdiction to try the case. The Court subsequently affirmed the decision based on a careful consideration of the evidence presented both by the prosecution and the defense. The absence of the testimony of Rufino Andal due to the failure of the defense counsel to present him as a witness will not make the judgment of the lower court invalid or void. The case was decided on the evidence presented, which this Court considered sufficient to support the judgment of conviction. The issue of DNA tests as a more accurate and authoritative means of identification than eye-witness identification need not be belabored. The accused were all properly and duly identified by the prosecutions principal witness. Olimpio Corales, a brother in law of accused Jurry and Ricardo Andal. DNA testing proposed by petitioners to have an objective and scientific basis of identification of semen samples to compare with those taken from the vagina of the victim are thus unnecessary or are forgotten evidence too late to consider now. The trial court imposed and this Court affirmed the correct sentence. The death penalty is what the law prescribes in cases involving rape with homicide.[7] We agree with the accused that they should be afforded every opportunity to prove their innocence, especially in cases involving the death penalty; in this case, the Court can state categorically that every opportunity was provided the accused. However, painful the decision may be in this case, we have conscientiously reviewed the case. Four (4) Justices of the Court maintain their position as to the unconstitutionality of Republic Act No. 7659 in so far as it prescribes the death penalty for certain heinous crimes; nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty may be lawfully imposed in proper cases as the one at bar. IN VIEW WHEREOF, we hereby resolve to DENY the petition for habeas corpus, and declare valid the judgment rendered by the trial court and affirmed by this Court. This resolution is final. No costs. SO ORDERED. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS G.R. No. 167193 Present:
*

DECISION AZCUNA, J.:

This is a petition for the issuance of a writ of habeas corpus directing Police Chief General

Superintendent Ismael R. Rafanan and Robert Delfin,

[1]

Philippine National Police (PNP) Intelligence

Chief, to bring petitioner Ashraf Kunting before this Court and show cause why he is illegally detained.

The antecedents are as follows:

On October

19,

2001,

petitioner Kunting was

arrested in Malaysia for violation of the Malaysian Internal Security Act. On June 12, 2003, the Royal Malaysian Police in Kuala Lumpur, Malaysia, turned over Kunting to the PNP-IG and Task Force Salinglahi pursuant to warrants for his arrest issued by the Regional Branch Trial 2, Court Ninth (RTC) Judicial

of Isabela City,Basilan,

Region. Kunting was charged with four counts of Kidnapping for Ransom and Serious Illegal Detention with the RTC under separate AmendedInformations, docketed as Criminal Case Nos. 3674-1187, 3537-1129, 3608-1164, and 3611-1165.

Petitioner

was

immediately

flown

to

the Philippines and brought to the PNP-IG at Camp Crame for booking and custodial investigation.

In a letter dated July 3, 2003, Atty. Guillermo G. Danipog, Jr., Police Superintendent and Chief of the Legal Affairs Division, PNP-IG, informed the Branch Clerk of Court of the RTC that Kunting was already in the custody of the PNP-IG. Atty. Danipog requested for Kuntings temporary

detention at the PNP-IG, Camp Crame, Quezon City due to the high security risks involved and prayed for the issuance of

ENGR. ASHRAF KUNTING, Petitioner.

PUNO, J., Chairperson, a corresponding commitment order. SANDOVAL-GUTIERREZ,** CORONA, AZCUNA, and In a letter dated July 9, 2003, Emilio F. Enriquez, GARCIA, JJ. Promulgated: Acting Clerk of Court of the RTC, replied to the request of

Atty. Danipog, thus: April 19, 2006 x ----------------------------------------------------------------------------------------------- x xxx

The undersigned referred the matter to Hon. Danilo M. Bucoy, Presiding Judge of this Court, who issued the Alias Warrant of Arrest in the herein mentioned case (Criminal Case No. 3674-1187) and per his instruction, accused As[h]raf Kunting y Barreto [may be] temporarily detained thereat by virtue of the Alias Warrant of Arrest issued in this case, however considering that the accused is a high security risk, he should be brought to Isabela, Basilan as soon as the necessary security escort can be provided for his transfer, where the proper commitment order can be issued as the herein mentioned case is about to be submitted by the prosecution. Thank you ever so much for your usual cooperation extended to the Court.[2]

directing the Police Superintendent and Chief, Legal Affairs Division, PNP-IG, to turn over Kunting to the court. In a letter dated February 22, 2005, Police Chief Superintendent Ismael R. Rafanan reiterated the request to Chief State Prosecutor Jovencito R. Zuo to facilitate the

transfer of the venue of the trial of Kuntings case, citing the same grounds in the previous letter. He added that

if Kunting had been transferred to Isabela City, Basilan, he could have been one of the escapees in a jail break that occurred on April 10, 2004 as suspected ASG members were able to go scot-free.

On On September 15, 2003, the RTC issued an Order directing the Police Superintendent and Chief, Legal Affairs Division, PNP-IG, to immediately turn over Kunting to the trial court since Kunting filed an Urgent Motion for Reinvestigation.

March

15,

2005,

Police

Inspector Amado L. Barbasa, Jr., OIC, Legal Affairs Division, PNP-IG, filed with the RTC a Motion to Defer Implementation of the Order dated February 11, 2005, citing, among other grounds, the existence of a pending motion for the transfer of the venue of the trial of Criminal Case No. 3537-1129

On November 5, 2003, PNP-IG Director Arturo C. Lomibao wrote a letter to Chief State

against Kunting, which was allegedly filed by the DOJ before this Court. Police Inspector Barbasa prayed that the Order of

Prosecutor Jovencito R. Zuo, Department of Justice (DOJ), requesting for representation and a motion to be filed for the transfer of the venue of for the the trial following

the RTC dated February 11, 2005, directing the turnover of Kunting to the court, be suspended until the motion for the transfer of venue is resolved.

from Isabela City, Basilan to Pasig City,

reasons: (1) Several intelligence reports have been received by the PNP-IG stating that utmost effort will be exerted by the Abu Sayyaf Group (ASG) to recover the custody petition

On March 14, 2005, Kunting, by counsel, filed this for the issuance of a writ of habeas

corpus. Kunting stated that he has been restrained of his liberty since June 12, 2003 by the PNP-IG led by Police Chief Superintendent Ismael Rafanan and assisted by PNP

of Kunting from the PNP considering his importance to the ASG; and (2) there is a big possibility that Kunting may be recovered by the ASG if he will be detained in Basilan due to inadequate security facility in the municipal jail and its proximity to the area of operation of the ASG.

Intelligence Chief, General Robert Delfin. He alleged that he was never informed of the charges filed against him until he requested his family to research in Zamboanga City. It was discovered in the RTC of Isabela City, Basilan that his name

On August 13, 2004, the RTC rendered a decision against petitioners co-accused in the consolidated Criminal Case Nos. 3608-1164, 3537-1129, 3674-1187, and 36111165, finding 17 of the accused, who were tried, guilty of the crime/s charged.

appeared in the list of accused who allegedly participated in the kidnapping incident which occurred on June 2,

2001 in Lamitan, Basilan.

Kunting asserted that he never participated in the kidnapping incident, so he promptly filed an Urgent Motion for

On February 11, 2005, the RTC issued an Order denying Kuntings Motion to Set Case for Preliminary

Reinvestigation

on

Investigation since the PNP-IG has not turned over Kunting. The trial court reiterated its Order dated September 15, 2003,

September 8, 2003. He was aware that the PNP-IG requested Chief State Prosecutor Jovencito R. Zuo for representation to

file a motion with this Court for the transfer of venue of his case from Isabela City, Basilan to Pasig City. Having no

IG, Camp Crame, Quezon City, was thus authorized by the trial court.

further information on the status of his case, he filed a Motion to Set Case for Preliminary Investigation on January 26, 2005. He stated that since no action was taken by the trial court or the DOJ, he filed this petition to put an end to his illegal detention classified in the records as for safekeeping purposes only. Moreover, Kunting was charged with four counts of Kidnapping for Ransom and Serious Illegal Detention in Criminal Case Nos. 3608-1164, 3537-1129, 3674-1187, and 3611-1165. In accordance with the last sentence of Section 4 above, the writ cannot be issued and Kunting cannot be discharged since he has been charged with a criminal The main issue is whether the petition for habeas corpus can prosper. offense. Bernarte v. Court of Appeals[7] holds that once the person detained is duly charged in court, he may no longer question his detention by a petition for the issuance of a writ Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to all case of illegal Nevertheless, this Court notes that the RTC in its Order dated February 11, 2005 reiterated its Order dated September 15, 2003, directing the Police Superintendent and Chief, Legal Affairs to turn Division, PNP-IG, over Kunting to the of habeas corpus.

confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person,
[3]

and if found illegal, the court

[4]

Camp Crame, Quezon City,

orders the release of the detainee. detention is proven lawful,

If, however, the the habeas

court. TThe trial court has been waiting for two years for the PNP-IG to turn over the person of Kunting for the trial of his case. The PNP-IG has delayed the turn over because it is waiting for the DOJ to request for the transfer of venue of the

then

corpus proceedings terminate.[5]

Section 4, Rule 102 of the Rules of Court provides when the writ is not allowed: SEC. 4. When writ not allowed or discharge authorized.If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.[6]

trial of the case from Isabela City, Basilan to Pasig City. In the absence of evidence that the DOJ has indeed filed a motion for the transfer of venue, In its Comment, the Office of the Solicitor General stated that the PNP-IG is presently awaiting the resolution of the Motion for Transfer of Venue it requested from the DOJ. In this regard, t the Police Chief Superintendent is, therefore, directed to take positive steps towards action on said motion.comply with the Order of the trial court, dated February 11, 2005, to turn over the body

of petitioner Kunting to the trial court..

WHEREFORE,

the

instant

petition

for habeas

corpus is hereby DISMISSED. In this case, Kuntings detention by the PNP-IG was under process issued by the RTC. He was arrested by the PNP by virtue of the alias order of RTC, arrest issued by HABEAS CORPUS IN RELATION TO CUSTODY OF MINOR WILSON 124518 SY, Petitioner, G.R. No.

JudgeDanilo M. Bucoy,

Branch

2, Isabela City, Basilan. His temporary detention at PNP-

Present: BING, J., - versus QUISUM Chairperson, CARPIO, CARPIO TINGA, VELASCO,

her family in 1992; secondly, she is mentally unstable; and thirdly, she cannot provide proper care to the children.[5] After trial, the trial court caused the issuance of a writ of habeas corpus and awarded custody of the children to respondent, to wit: WHEREFORE, judgment is hereby rendered maintaining to the petitioner the custody of the minors Vanessa and Jeremiah, all surnamed Uy-Sy, without, however, prejudice to the visitorial rights of the father, herein respondent, and the temporary arrangement of the custody made by the parties during pendency of this proceeding is hereby revoked, and without any further effect. The Court further orders the respondent to pay by way of monthly support for the minors, the amount of P50,000.00 payable to petitioner from [the] date of judgment for failure on the part of respondent to show by preponderance of evidence that the petitioner is unfit to the custody of the minor children who are only 6 and 4 years old.[6] Petitioner appealed the order of the trial court to the Court of Appeals. Before the appellate court, he alleged that the trial court erred: (1) in awarding the custody of the minor children solely to respondent; and (2) in ordering him to provide respondent support in the amount of P50,000.00 per month.[7] The Court of Appeals found no merit in the appeal and affirmed the decision of the trial court. The Court of Appeals did not find any reason to disturb the conclusions of the trial court, particularly petitioners failure to prove by

MORALES, and COURT OF APPEALS, JR., JJ. Regional Trial Court of Manila, Branch 48, and MERCEDES TAN SY, Respondents. r 27, 2007

Promulgated:

UY-

Decembe

x -----------------------------------------------------------------------------------x DECISION TINGA, J.:

In this Petition for Review on Certiorari[1] under Rule 45 of the 1997 Rules of Civil Procedure, petitioner

Wilson Sy assails the Decision[2] dated 29 February 1996 of the Court of Appeals in C.A. G.R. SP No. 38936 and its Resolution[3] dated 15 reconsideration. The following are the antecedents: April 1996 denying his motion for

On 19 January 1994, respondent Mercedes Tan UySy filed a petition for habeas corpus against petitioner Wilson Sy before the Regional Trial Court of Manila, Branch 48, docketed as Special that Proceeding writ be No. issued 94-69002. ordering

Respondent

prayed

said

preponderance of evidence that respondent was unfit to take custody over the minor children.

petitioner to produce their minor children Vanessa and Jeremiah before the court and that after hearing, their care and custody be awarded to her as their mother.[4]

The Court of Appeals held that petitioner was not able to substantiate his contention that respondent was unfit to

In his answer, petitioner prayed that the custody of the minors be awarded to him instead. Petitioner maintained that respondent was unfit to take custody of the minors. He adduced the following reasons: firstly, respondent abandoned

have custody of the children. On respondents supposed abandonment of the family, the appellate court found instead that respondent had been driven away by petitioners family because of religious differences. Respondents stay

inTaiwan likewise could hardly be called abandonment as she

had gone there to earn enough money to reclaim her children. Neither could respondents act of praying outdoors in the rain be considered as evidence of insanity as it may simply be an expression of ones faith. Regarding the allegation that respondent was unable to provide for a decent dwelling for the minors, to the contrary, the appellate court was satisfied with respondents proof of her financial ability to provide her children with the necessities of life.[8]

provisions on support; and (3) the award of P50,000.00 as support is arbitrary, unjust, unreasonable and tantamount to a clear deprivation of property without due process of law.[11]

For her part, respondent claims that petitioner had lost his privilege to raise the first issue, having failed to raise it before the appellate court. Anent the second issue,

respondent takes refuge in the appellate courts statement that the questions regarding the care and custody of children

As to the second assignment of error, the Court of Appeals held that questions as to care and custody of children may be properly raised in a petition for writ of habeas corpus. Moreover, petitioner was properly heard on the matter relative to the issue of support. He was questioned about his sources of income for the purpose of determining his ability to give support. As to the propriety of the amount awarded, the appellate court was unwilling to alter the trial courts conclusion for petitioner did not forthrightly testify on his actual income. Neither did he produce income tax returns or other competent evidence, although within his power to do so, to provide a fair indication of his resources. At any rate, the appellate court declared that a judgment of support is never final and petitioner is not precluded at any time from seeking a modification of the same and produce evidence of his claim.[9]

may properly be adjudicated in a habeas corpus case. Regarding the third issue, respondent maintains that the amount of support awarded is correct and proper.[12] There is no merit in the petition regarding the question of care and custody of the children.

The applicable provision is Section 213 of the Family Code which states that: Section 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent is unfit. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

Petitioner filed a motion for reconsideration of the Court of Appeals decision but the same was 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.[13] 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 seven (7) years of age unless the parent so chosen be

denied.[10] Hence, this appeal by certiorari wherein petitioner asserts that: (1) the Court of Appeals erred in awarding the custody of the minor children solely to respondent; (2) the Court of Appeals had no jurisdiction to award support in a habeas corpus case as: (a) support was neither alleged nor prayed for in the petition; (b) there was no express or implied consent on the part of the parties to litigate the issue; and (c) Section 6, Rule 99 of the Rules of Court does not apply because the trial court failed to consider the Civil Code

unfit to take charge of the child by reason of moral depravity, habitual drunkenness or poverty.[14] In all controversies regarding the custody of minors, the sole and foremost consideration is the physical,

educational, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents.[15] However, the law favors the mother if she is a fit and proper person to have custody of her children so that they may not only receive her attention, care, supervision but also have the advantage and benefit of a mothers love and devotion for which there is no substitute.[16] Generally, the love, solicitude and devotion of a mother cannot be replaced by another and are worth more to a child of tender years than all other things combined.[17] The Civil Code Commission, in recommending the preference for the mother, explained, thus: The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for compelling reasons for the good of the child: those cases must indeed be rare, if the mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet unable to understand the situation.[18]

Court by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with if it be over ten years of age, unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. If upon such hearing, it appears that both parents are improper persons to have the care, custody, and control of the child, the court may either designate the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum, childrens home, or benevolent society. The court may in conformity with the provisions of the Civil Code order either or both parents to support or help support said child, irrespective of who may be its custodian, and may make any order that is just and reasonable permitting the parent who is deprived of its care and custody to visit the child or have temporary custody thereof. Either parent may appeal from an order made in accordance with the provisions of this section. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor. (Emphasis supplied)

The above-quoted provision expressly acknowledges and authorizes that the matter of care and custody of the children may be raised and adjudicated as an incident to any proceeding, such as a case for habeas corpus.

Evidently,

absent

any

compelling

reason

to

the

contrary, the trial court was correct in restoring the custody of the children to the mother, herein respondent, the children being less than seven years of age, at least at the time the

This preference favoring the mother over the father is even reiterated in Section 6, Rule 99 of the Rules of Court (the Rule on Adoption and Custody of Minors) underscoring its significance, to wit: SEC. 6. Proceedings as to child whose parents are separated. Appeal. When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody and control of a child or children of their marriage is brought before a Regional Trial

case was decided. Moreover, petitioners contention that respondent is unfit to have custody over the minor children has not been substantiated as found by both courts below. Thus, it is already too late for petitioner to reiterate the assertion for only questions of law may be raised before this Court. Furthermore, the determination of whether the mother is fit or unfit to have custody over the children is a matter well within the sound discretion of the trial court, and unless

it is shown that said discretion has been abused the selection will not be interfered with.[19] Consequently, the Court affirms the award of custody in respondents favor.

was not justified in awarding support in respondents favor. In addition, petitioner claims that he did not give consent to the trial and the threshing out of the issue as it was not raised in the pleadings.[24] He claims that in fact, he testified on his financial status only to prove that he is financially able to provide for his children and not for the purpose of

Now, the issue of support.

determining the amount of support.[25] Besides, he contends that the trial court did not order the amendment of the pleadings to conform to the evidence presented pursuant to Section 5[26] Rule 10 of the 1997 Rules of Civil Procedure, an aspect that supports his contention that the parties never consented, expressly or impliedly, to try the issue of support.[27]

Article 203 of the Family Code states that the obligation to give support is demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand. The case of Jocson v. The Empire Ins. Co. and Jocson Lagniton for this rule: x x x Support does include what is necessary for the education and clothing of the person entitled thereto (Art. 290, New Civil Code). But support must be demanded and the right to it established before it becomes payable (Art. 298, New Civil Code; Marcelo v. Estacio, 70 Phil. 215). For the right to support does not arise from the mere fact of relationship, even from the relationship of parents and children, but from imperative necessity without which it cannot be demanded, and the law presumes that such necessity does not exist unless support is demanded (Civil Code of the Philippines, Annotated, Tolentino, Vol. 1, p. 181, citing 8 Manresa 685). In the present case, it does not appear that support for the minors, be it only for their education and clothing, was ever demanded from their father and the need for it duly established. The need for support, as already stated, cannot be presumed, and especially must this be true in the present case where it appears that the minors had means of their own.[21]
[20]

explains the rationale

The Court is not convinced. Contrary to petitioners assertions, respondent testified during trial, without any objection on petitioners part, regarding the need for support for the childrens education and other necessities, viz:

ADDL

DIRECT

EXAMINATION

OF THE WITNESS MERCEDES TAN UY-SY

Q: Q:

With the kind permission of this Honorable Court. Ms. Sy, the custody of the two minors[,] of course[,] require some expenses on your part notwithstanding that you said you have savings intended for them, is it not? Yes, sir. And what is the nature of these expenses that you expect to disburse for the children? For the medicine or health care. What else? For education, for emergency expenses, for basically for food. In your estimate, how much would these expenses be per month? Well, I think, perhaps P50,000.00, sir.

A: Q: As intimated earlier, the Court agrees with the courts below that Section 6, Rule 99[22] of the Rules of Court permits the ventilation of the question regarding the care and custody of the children as an incident to any proceeding, even a habeas corpus proceeding. Petitioner would have us Q: A: A: Q: A:

believe, however, that since respondents petition did not include a prayer[23] for support of the children in accordance with the above-quoted Family Code provision, the trial court

Q: A:

Which the furnish? Yes, sir.

respondent should

Q:

ATTY. CORTEZ That is all for the witness, Your Honor.[28] A: COURT: Moreover, based on the transcript of stenographic notes, petitioner was clearly made aware that the issue of support was being deliberated upon, to wit: Q: A: Q: A: Q: WILSON SY: will be testifying under the same oath.[29] xxxx ATTY. ALBON: Q: In the hearing of July 23, 1994 as appearing on page 3, Mercedes Sy testified that she would be needing P50,000.00 a month expenses for her children, what can you say about that? A: xxxx COURT:

A shares [sic] of stock is the evidence of your investment in the corporation. My question is: What investment did you put in to enable you to get a share, was it money or property? There is no money but it was given by my father.

Upon the death of your father you just inherited it? Before. After the death, did you not acquire some of the shares of your father? No, your Honor. What happened to the shares of your father? It is with my mother.

WITNESS:

Never mind the share of the mother. What is material is his share. ATTY. CORTEZ: Q: A: Q: A: COURT Q: For purposes of this case, the Court is asking you how much is your share? I [do not ] how to appraise. How many shares do you have in the corporation? Right now I have only ten (10) shares. What is the value of that [sic] shares? I [do not] give any importance.

A:

That is a dillusion [sic] on her part.[30]

The trial court judge even propounded questions to petitioner regarding his sources of income for the purpose of determining the amount of support to be given to the children: Q: A:

COURT: I want to find out how much his income now for the purposes of giving support to the children. Please answer the question. WITNESS: A: Shares of stocks.

A:

More or less, how much? Use the word more or less, is that one million more or less, 2 million, more or less, 10 million, more or less? Anyway, this is not a BIR proceeding, this is a Court proceeding? I want to speak the truth but I [do not] know. I did not even see the account.

COURT: Proceed. ATTY. CORTEZ xxxx Q: At that time fathers death[,] of you your were

ATTY. CORTEZ:

A: Q: A: COURT Q: A: xxxx COURT:

[sic]already holding ten (10) shares or was it less? More. More than ten (10) shares? Yes, sir.

What is the par value of that one (1) share? I [do not] know, your Honor.

matters are involved, as we held in Bank of the Philippine Islands vs. Laguna (48 Phil. 5). In Co Tiamco v. Diaz (75 Phil. 672), we stressed that the rule on amendment need not be applied rigidly, particularly where no surprise or prejudice is caused the objecting party. And in the recent case of National Power Corporation v. Court of Appeals (113 SCRA 556), we held that where there is a variance in the defendants pleadings and the evidence adduced by it at the trial, the Court may treat the pleading as amended to conform with the evidence.[35]

Let it remain that he owns ten (10) shares. ATTY. CORTEZ: xxxx A: Q: A: Yes, 10 shares. The shares I already sold it. other

The Court likewise affirms the award of P50,000.00 as support for the minor children. As found by both courts, petitioners representations regarding his familys wealth and his capability to provide for his family more than provided a fair indication of his financial standing even though he proved to be less than forthright on the matter.[36] In any event, this award of support is merely provisional as the amount may be modified or altered in accordance with the increased or decreased needs of the needy party and with the means of the giver.[37]

How many shares did you sell? I only have 10 shares now. I dont know how many shares that I have left. I only know the 20 shares.[31]

Applying Section 5,[32] Rule 10 of the 1997 Rules of Civil Procedure, since the issue of support was tried with the implied consent of the parties, it should be treated in all respects as if it had been raised in the pleadings. And since there was implied consent, even if no motion had been filed and no amendment had been ordered, the Court holds that the trial court validly rendered a judgment on the NERISSA Z. PEREZ, petitioner, vs. THE COURT APPEALS (Ninth Division) and RAY PEREZ, respondents. DECISION ROMERO, J.: Parties herein would have this Court duplicate the feat of King Solomon who was hailed in Biblical times for his sagacious, if, at times unorthodox, manner of resolving conflicts, the most celebrated case being that when his authority was invoked to determine the identity of the real mother as between two women claiming the same infant. Since there could only be one mother, the daunting task that confronted the king/judge was to choose the true one. In the instant case, we are faced with the challenge of deciding, as between father and mother, who should have OF C. WHEREFORE, the Decision dated 29 February 1996 of the Eleventh Division of the Court of Appeals in C.A. G.R. SP No. 38936 and its Resolution[38] dated 15 April 1996 are AFFIRMED. Costs against petitioner. SO ORDERED.

issue.[33] Significantly, in the case of Bank of America v. American Realty Corporation,[34] the Court stated: There have been instances where the Court has held that even without the necessary amendment, the amount proved at the trial may be validly awarded, as in Tuazon v. Bolanos (95 Phil. 106), where we said that if the facts shown entitled plaintiff to relief other than that asked for, no amendment to the complaint was necessary, especially where defendant had himself raised the point on which recovery was based. The appellate court could treat the pleading as amended to conform to the evidence although the pleadings were actually not amended. Amendment is also unnecessary when only clerical error or non substantial

rightful custody of a child who bears in his person both their genes. While there is a provision of law squarely in point, the two courts whose authority have been invoked to render a decision have arrived at diametrically opposite conclusions. It has fallen upon us now to likewise act as judge between the trial court, on the one hand, and the appellate, on the other. On the issue of custody over the minor Ray Perez II, respondent Court of Appeals ruled in favor of the boys father Ray C. Perez, reversing the trial courts decision to grant custody to Nerissa Z. Perez, the childs mother. Ray Perez, private respondent, is a doctor of medicine practicing in Cebu while Nerissa, his wife who is petitioner herein, is a registered nurse. They were married in Cebu on December 6, 1986. After six miscarriages, two operations and a high-risk pregnancy, petitioner finally gave birth to Ray Perez II in New York on July 20, 1992. Petitioner who began working in the United States in October 1988, used part of her earnings to build a modest house in Mandaue City, Cebu. She also sought medical attention for her successive miscarriages in New York. She became a resident alien in February 1992. Private respondent stayed with her in the U.S. twice and took care of her when she became pregnant. Unlike his wife, however, he had only a tourist visa and was not employed. On January 17, 1993, the couple and their baby arrived in Cebu. After a few weeks, only Nerissa returned to the U.S. She alleged that they came home only for a fiveweek vacation and that they all had round-trip tickets. However, her husband stayed behind to take care of his sick mother and promised to follow her with the baby. According to Ray, they had agreed to reside permanently in the Philippines but once Nerissa was in New York, she changed her mind and continued working. She was supposed to come back immediately after winding up her affairs there. When Nerissa came home a few days before Ray IIs first birthday, the couple was no longer on good terms. That their love for each other was fading became apparent from their serious quarrels. Petitioner did not want to live near her in-laws and rely solely on her husbands meager income of P5,000.00.1 She longed to be with her only child but he was being kept away from her by her husband. Thus, she did not want to leave RJ (Ray Junior) with her husband and inlaws. She wished for her son to grow up with his mother. On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced his profession. He maintained that it would not be difficult to live here since they have their own home and a car. They could live comfortably on his P 15,000.00 monthly income2 as they were not burdened with having to pay any debts. Petitioner was forced to move to her parents home on Guizo Street in Mandaue. Despite mediation by the priest who solemnized their marriage, the couple failed to reconcile. On July 26, 1993, Nerissa Z. Perez filed a petition for habeas corpus3 asking respondent Ray C. Perez to surrender the custody of their son, Ray Z. Perez II, to her. On August 27, 1993, the court a quo issued an Order awarding custody of the one-year old child to his mother, Nerissa Perez, citing the second paragraph of Article 213 of the Family Code which provides that no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. The dispositive portion of the Order reads:

WHEREFORE, foregoing premises considered, Order is hereby issued ordering the respondent to turn over the custody of their child Ray Cortes Perez II, his passport and roundtrip ticket to herein petitioner with a warning that if he will escape together with the child for the purpose of hiding the minor child instead of complying with this Order, that warrant for his arrest will be issued. SO ORDERED.4 Upon appeal by Ray Perez, the Court of Appeals, on September 27, 1994, reversed the trial courts order and awarded custody of the boy to his father.5 Petitioners motion for reconsideration having been denied,6 she filed the instant petition for review where the sole issue is the custody of Ray Perez II, now three years old. Respondent court differed in opinion from the trial court and ruled that there were enough reasons to deny Nerissa Perez custody over Ray II even if the child is under seven years old. It held that granting custody to the boys father would be for the childs best interest and welfare.7 Before us is the unedifying situation of a husband and wife in marital discord, struggling for custody of their only child. It is sad that petitioner and private respondent have not found it in their hearts to understand each other and live together once again as a family. Separated in fact, they now seek the Courts assistance in the matter of custody or parental authority over the child. The wisdom and necessity for the exercise of joint parental authority need not be belabored. The father and the mother complement each other in giving nurture and providing that holistic care which takes into account the physical, emotional, psychological, mental, social and spiritual needs of the child. By precept and example, they mold his character during his crucial formative years. However, the Courts intervention is sought in order that a decision may be made as to which parent shall be given custody over the young boy. The Courts duty is to determine whether Ray Perez II will be better off with petitioner or with private respondent. We are not called upon to declare which party committed the greater fault in their domestic quarrel. When the parents of the child are separated, Article 213 of the Family Code is the applicable law. It provides: ART. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. (Italics supplied) Since the Code does not qualify the word separation to mean legal separation decreed by a court, couples who are separated in fact, such as petitioner and private respondent, are covered within its terms.8 The Revised Rules of Court also contains a similar provision. Rule 99, Section 6 (Adoption and Custody of Minors) provides: SEC. 6. Proceedings as to child whose parents are separated. Appeal. - When husband and wife are divorced or living separately and apart from each other, and the questions as to the care, custody, and control of a child or children of their

marriage is brought before a Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody, and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with if it be over ten years of age, unless the parent chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty x x x. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor. (Italics supplied) The provisions of law quoted above clearly mandate that a child under seven years of age shall not be separated from his mother unless the court finds compelling reasons to order otherwise. The use of the word shall in Article 213 of the Family Code and Rule 99, Section 6 of the Revised Rules of Court connotes a mandatory character. In the case of Lacson v. San Jose-Lacson,9 the Court declared: The use of the word shall in Article 36310 of the Civil Code, coupled with the observations made by the Code Commission in respect to the said legal provision, underscores its mandatory character. It prohibits in no uncertain terms the separation of a mother and her child below seven years, unless such separation is grounded upon compelling reasons as determined by a court.11 The rationale for awarding the custody of children younger than seven years of age to their mother was explained by the Code Commission: The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for compelling reasons for the good of the child; those cases must indeed be rare, if the mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the divorce decree (relative divorce) will ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have any effect upon the baby who is as yet unable to understand her situation. (Report of the Code Commission, p. 12)12 The Family Code, in reverting to the provision of the Civil Code that a child below seven years old should not be separated from the mother (Article 363), has expressly repealed the earlier Article 17, paragraph three of the Child and Youth Welfare Code (Presidential Decree No. 603) which reduced the childs age to five years.13 The general rule that a child under seven years of age shall not be separated from his mother finds its raison detre in the basic need of a child for his mothers loving care.14 Only the most compelling of reasons shall justify the courts awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental authority. In the past the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect, abandonment,15 unemployment and immorality,16 habitual drunkenness,17 drug addiction, maltreatment of the child, insanity and being sick with a communicable disease.18 It has long been settled that in custody cases,19 the foremost consideration is always the Welfare and best interest of the child. In fact, no less than an international instrument, the Convention on the Rights of the Child provides: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law,

administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.20 Courts invariably look into all relevant factors presented by the contending parents, such as their material resources, social and moral situations.21 In the case at bench, financial capacity is not a determinative factor inasmuch as both parties have demonstrated that they have ample means. Respondent court stated that petitioner has no permanent place of work in the U.S.A. and has taken this point against her. The records, however, show that she is employed in a New Yorkhospital22 and was, at the time the petition was filed, still abroad.23 She testified that she intends to apply for a job elsewhere, presumably to improve her work environment and augment her income, as well as for convenience.24 The Court takes judicial notice of the fact that a registered nurse, such as petitioner, is still very much in demand in the United States. Unlike private respondent, a doctor who by his own admission could not find employment there, petitioner immediately got a job in New York. Considering her skill and experience, petitioner should find no difficulty in obtaining work elsewhere, should she desire to do so. The decision under review casts doubt on petitioners capability to take care of the child, particularly since she works on twelve-hour shifts thrice weekly, at times, even at night. There being no one to help her look after the child, it is alleged that she cannot properly attend to him. This conclusion is as unwarranted as it is unreasonable. First, her present work schedule is not so unmanageable as to deprive her of quality time for Ray II. Quite a number of working mothers who are away from home for longer periods of time are still able to raise a family well, applying time management principles judiciously. Second, many a mother, finding herself in such a position, has invited her own mother or relative to join her abroad, providing the latter with plane tickets and liberal allowances, to look after the child until he is able to take care of himself. Others go on leave from work until such time as the child can be entrusted to day-care centers. Delegating child care temporarily to qualified persons who run day-care centers does not detract from being a good mother, as long as the latter exercises supervision, for even in our culture, children are often brought up by housemaids or yayas under the eagle eyes of the mother. Third, private respondents work schedule was not presented in evidence at the trial. Although he is a general practitioner, the records merely show that he maintains a clinic, works for several companies on retainer basis and teaches part-time.25 Hence, respondent courts conclusion that his work schedule is flexible (and h)e can always find time for his son26 is not well-founded. Fourth, the fact that private respondent lives near his parents and sister is not crucial in this case. Fifth, petitioners work schedule cited in the respondent courts decision is not necessarily permanent. Hospitals work in shifts and, given a mothers instinctive desire to lavish upon her child the utmost care, petitioner may be expected to arrange her schedule in such a way as to allocate time for him. Finally, it does not follow that petitioner values her career more than her family simply because she wants to work in the United States. There are any number of reasons for a persons seeking a job outside the country, e.g. to augment her income for the familys benefit and welfare, and for psychological fulfillment, to name a few. In the instant case, it has been shown that petitioner earned enough from her job to be able to construct a house for the family in Mandaue City. The record describes sketchily the relations between Ray and Nerissa Perez. The transcripts of the three hearings are inadequate to show that petitioner did not exert earnest efforts and make sacrifices to save her marriage.

It is not difficult to imagine how heart-rending it is for a mother whose attempts at having a baby were frustrated several times over a period of six years to finally bear one, only for the infant to be snatched from her before he has even reached his first year. The mothers role in the life of her child, such as Ray II, is well-nigh irreplaceable. In prose and poetry, the depth of a mothers love has been immortalized times without number, finding as it does, its justification, not in fantasy but in reality. WHEREFORE, the petition for review is GRANTED. The decision of the Court of Appeals dated September 27, 1994 as well as its Resolution dated January 24, 1995 are hereby REVERSED and SET ASIDE. The Order of the trial court dated August 27, 1993 is hereby REINSTATED. Custody over the minor Ray Z. Perez II is awarded to his mother, herein petitioner Nerissa Z. Perez. This decision is immediately executory. SO ORDERED. G.R. No. L-23828 February 28, 1966

of by them up to the present time, and the latter has been cared for since she was only fifteen days old. Paulina Santos Reyes is now seventeen years old and has given her consent to the adoption as shown by her signature at the foot of the petition. She ratified the same in open Court. Both parents of the minors have long been unheard from and in spite of diligent efforts of the petitioners to locate them, they could not be found. The consent to the adoption has been given by the guardian ad litem appointed by the Court. The petitioners are both proprietors and have substantial income, more than enough to support and educate the minors. The Court is of the opinion that this adoption will be for the best interest and welfare of the minors. WHEREFORE, the Court hereby grants the petition of the spouses Simplicio Santos and Juliana R. Santos to adopt the minors Paulina Santos Reyes and Aurora Santos Reyes and in accordance with Rule 100 of the Rules of Court in the Philippines, hence forth, the minors are freed from all legal obligations to their natural parents and are, to all legal intents and purposes the children of the petitioners. NOW, ORDERED. Manila, Philippines, August 25, 1949. No appeal was taken from the aforesaid decision. Subsequently eight years later on October 21, 1957, Juliana Reyes died, in Manila, without testament. On November 25, 1957 Simplicio Santos filed in the Court of First Instance of Manila a petition for the settlement of the intestate estate of Juliana Reyes.3 In said petition he stated among other things that the surviving heirs of the deceased are: he, as surviving spouse, Paulina Santos and Aurora Santos, 27 and 17 years of age, respectively. In the same petition, he asked that he be appointed administrator of the estate. Gregoria Aranzanso, alleging that she is first cousin to the deceased, filed on January 2, 1958 an opposition to the petition for appointment of administrator. For her grounds she asserted that Simplicio Santos" marriage to the late Juliana Reyes was bigamous and thus void: and that the adoption of Paulina Santos and Aurora Santos was likewise void ab initio for want of the written consent of their parents, who were then living and had not abandoned them. An answer to the opposition was filed by Simplicio Santos on March 7, 1958 and oppositor Aranzanso filed a reply thereto on March 17, 1958. Demetria Ventura, alleging likewise that she is the first cousin of the deceased Juliana Reyes and adding that she is the mother of the child Paulina Santos, filed on March 19, 1959 an opposition to the petition of Simplicio Santos to be named administrator, and, moreover, thereunder adopted, as her own, the pleadings filed by Gregoria Aranzanso. By order of April 6, 1959, the Court of First Instance decided the point in dispute, ruling that the validity of the adoption in question could not be assailed collaterally in the intestate proceedings (Sp. Proc. No. 34354). From the order Gregoria Aranzanso and Demetria Ventura appealed to the Court of Appeals. In its decision, promulgated on September 14, 1964, the Court of Appeals reversed the appealed order, finding instead

PAULINA SANTOS and AURORA SANTOS, petitioners, vs. GREGORIA ARANZANSO and DEMETRIA VENTURA, respondents. Jose W. Diokno for Eulogio Rafael for the respondents. BENGZON, J.P., J.: A petition for adoption of Paulina Santos and Aurora Santos was filed by Simplicio Santos and Juliana Reyes in the Court of First Instance of Manila on June 4, 1949.1 Paulina Santos was then 17 years old and Aurora Santos, 8 years old. The petition, which was under oath, alleged inter alia, that the whereabouts of the minors' nearest of kin, particularly their parents, were unknown; that since the outbreak of the war said minors have been abandoned by their respective parents; and that for years, since their infancy, said children have continuously been in petitioners' care and custody. A guardian ad litem Crisanto de Mesa, was thereafter appointed for the minors. Said guardian ad litem forthwith gave his written consent to the adoption. Paulina Santos, being over fourteen years of age, likewise gave her written consent thereto.2 After due publication and hearing, the adoption court (CFI) rendered on August 25, 1949 a decision, hereunder quoted in full: This is a petition for the adoption of the minors Paulina Santos Reyes and Aurora Santos Reyes by the spouses Simplicio Santos and Juliana R. Santos. After due publication in the "National Weekly", a newspaper of general circulation in the City of Manila, once a week for three consecutive weeks, the case was then set for trial. The office of the Solicitor General was duly notified of the petition and at the hearing did not offer any objection.1wph1.t From the evidence presented at the hearing, it appears that the petitioners have been married for the past twenty-seven years and have no children of their own. They desire to adopt the minors Paulina Santos Reyes and Aurora Santos Reyes, both of whom are and for years have been living under their care and custody; that the former, since she was barely three months old has already been taken care the petitioners.

that the adoption was null and void ab initio due to the absence of consent thereto by the natural parents of the minor children, which it deemed a jurisdictional defect still open to collateral attack. After denial of their motion for reconsideration by the Court of Appeals, Paulina Santos and Aurora Santos appealed to this Court by way of petition for review, filed on November 18, 1964, to which due course was given. Five months after submission of this case for decision or on October 14, 1965 petitioners herein filed a petition for preliminary injunction, and later, on October 26, 1965, a supplemental petition therefor, to stop the trial court from allowing Gregorio Aranzanso and Demetria Ventura, as well as of two other persons, namely, Consuelo and Pacita Pasion, to intervene in the settlement proceedings or to withdraw cash advances from the estate. It was alleged in the petition and supplemental petition for preliminary injunction that on September 22, 1965 the probate court issued an order allowing Gregoria Aranzanso and Demetria Ventura to intervene in the settlement proceedings of Juliana Reyes' estate (Sp. Proc. No. 34354); that on October 2, 1965 said court issued an order allowing, on previous motions therefor, withdrawal of the sum of P7,000 each, under bond, to all the parties,including Gregoria Aranzanso and Demetria Ventura; that on October 7, 1965 two strangers to the proceedings the aforesaid sisters Consuelo and Pacita Pasion filed a motion, stating that they are also first cousins of the decedent and praying that an order be issued allowing them to withdraw the sum of P7,000 each under bond; that on October 13, 1965 the same Pasion sisters filed a supplemental motion in the same proceedings praying that their motion of October 7 be treated as a motion to intervene; that on October 18, 1965 the probate court issued an order allowing the Pasion sisters to intervene in the settlement proceedings and allowing them to withdraw under bond the sum of P7,000 each from the funds of the estate. On November 4, 1965 respondents, together with Consuelo and Pacita Pasion who thereby submitted themselves to this Court's jurisdiction and stated that they, "for purposes of expediency, are also denominated respondents" filed their "Comment", as required by this Court, opposing the aforesaid petition for preliminary injunction. On November 15, 1965 this Court granted the prayer for preliminary injunction and the writ was issued upon posting of a bond of P5,000 on November 20, 1965. Respondents however moved for reconsideration or modification thereof on November 23, 1965, stating inter alia that they would now be precluded from taking part in the scheduled hearing for settlement of the accounts of the special administratrix (Araceli A. Pilapil). On November 26, 1965 we ordered modification of the preliminary injunction, so that on November 29, the writ was modified so as to enjoin the probate court, until further orders: (1) from hearing and/or approving the settlement of special administratrix's accounts; (2) from allowing any sale, disposition or disbursement of the estate except when essential for strictly maintenance purposes; and (3) from allowing respondents, Gregoria Aranzanso and Demetria Ventura, or Consuelo and Pacita Pasion, or any of them, to receive any advance, cash or otherwise, from the funds of the intestate estate. The principal issue on the merits in this appeal is whether respondents-oppositors Aranzanso and Ventura, could assail in the settlement proceedings the adoption decree in favor of Paulina and Aurora Santos. In sustaining their right to make such a collateral attack, the respondent Court of Appeals rested as abovementioned on the premise that failure to obtain the consent of the natural parents was a jurisdictional defect rendering the adoption void ab initio. In its view, said

consent was not properly dispensed with, not only because the evidence adduced in the adoption proceedings was insufficient to support a finding that the parents had abandoned the children, but also since the adoption court fatally omitted to expressly and specifically find that such abandonment in fact occurred. In this regard it should be stated that the Court of Appeals completely relied on American jurisprudence and authorities to the effect that parental consent to the adoption is a jurisdictional requisite (E.g., 2 C.J.S., Adoption of Children, Section 45[a] p. 435; Whetmore vs. Fratello, 282 P2d 667, 670). The point to remember, however, is that under our law on the matter, consent by the parents to the adoption is not an absolute requisite: SEC. 3. Consent to adoption.There shall be filed with the petition a written consent to the adoption signed by the child if over fourteen years of age and not incompetent, and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned such child, or if there are no such parents by the general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan asylum, children's home, or benevolent society or person, by the proper officer or officers of such asylum, home, or society, or by such person; but if the child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be required. (Rule 100, Old Rules of Court.)4 Stated otherwise, if the natural parents have abandoned their children, consent to the adoption by the guardianad litem suffices. This brings as to the question whether in the proceedings at bar the Court of Appeals can still review the evidence in the adoption case and conclude that it was not sufficiently established therein that the parents of Paulina and Aurora Santos had abandoned them. First of all, it is not quite accurate to say that the adoption court made no determination of the fact of abandonment. As quoted earlier, it is stated in the decision of the adoption court, that: From the evidence presented at the hearing it appears that the petitioners have been married for the past twenty-seven years and have no children of their own. They desire to adopt the minors Paulina Santos [y] Reyes and Aurora Santos [y] Reyes, both of whom are and for years have been living under their care and custody; that the former, since she was barely three months old has already been taken care of by them up to the present time, and the latter has been cared for since she was only fifteen days old. Paulina Santos [y] Reyes is now seventeen years old. . . . Both parents of the minors have long been unheard from and in spite of diligent efforts of the petitioners to locate them, they could not be found. The consent to the adoption has been given by the guardian ad litem appointed by the Court. . . . . (Emphasis supplied.) Abandonment under persuasive American rulings imports "any conduct on the part of the parent which evinces a settled purpose to forgo all parental duties and relinquish all parental claims to the child". It means "neglect or refusal to perform the natural and legal obligations of care and support which parents owe to their children." (2 Am. Jur. 2d, Adoption, Sec. 32, pp. 886-887.) It can thus readily be seen that altho the CFI judgment approving the adoption does not

use the word "abandoned", its findings sufficiently contain a set of facts and circumstances which truly constitutes a finding of abandonment. Coming now to the power of the Court of Appeals to review in this case the finding of abandonment made by the adoption court, we find that even under American jurisprudence relied upon, as stated, by said Court the settled rule is that even when the jurisdiction of an inferior or special tribunal depends upon the existence of a fact to be established before it, the determination of that fact by the tribunal cannot be questioned in a collateral attack upon its order (In re McKaeg's Estate, 141 Cal. 403, 74 Pac. 1039, 1040; In re Camp's Estate, 131 Cal. 469, 63 Pac. 736). Anent this point the rulings are summed up in 2 American Jurisprudence, 2nd Series, Adoption, Sec. 75, p. 922, thus: An adoption order implies the finding of the necessary facts and the burden of proof is on the party attacking it; it cannot be considered void merely because the fact needed to show statutory compliance is obscure. While a judicial determination of some particular fact, such as the abandonment of his next of kin to the adoption, may be essential to the exercise of jurisdiction to enter the order of adoption, this does not make it essential to the jurisdictional validity of the decree that the fact be determined upon proper evidence, or necessarily in accordance with the truth; a mere error cannot affect the jurisdiction, and the determination must stand until reversed on appeal, and hence cannot be collaterally attacked. If this were not the rule, the status of adopted children would always be uncertain, since the evidence might not be the same at all investigations, and might be regarded with different effect by different tribunals, and the adoption might be held by one court to have been valid, while another court would hold it to have been of no avail. Freeman on Judgments says the same thing: In general, therefore, where the right of the court to assume jurisdiction of a cause and proceed to judgment depends upon the ascertainment of facts in pais and the court retains jurisdiction it thereby impliedly adjudges that the requisite jurisdictional facts exist and having found such facts in favor of jurisdiction, its decision in this respect, whether erroneous or not, cannot be questioned in a collateral proceedings, for a presumption arises in such cases, when the validity of the judgment is attacked, that the necessary jurisdictional facts were proven. . . . . (Vol. I, Sec. 350, pp. 719-720.) The Supreme Court of Wisconsin, construing a statute akin to our law in this regard, said in Parsons vs. Parsons, 101 Wis. 76, 77 N.W. 147, 148: The statute to be considered is section 4022, Rev. St. 1878, which reads as follows: "No such adoption shall be made without the written consent of the living parents of such child unless the court shall find that one of the parents has abandoned the child or gone to parts unknown." Thus it will be seen that upon the fact being established that the living parent has abandoned his child, he is deemed by the statute to have thereby relinquished all parental right to be consulted in respect to the child's welfare, and his

consent to the adoption is therefore dispensed with. The term "abandon" obviously means no more than neglect or refusal to perform the natural and legal obligations of care and support which parents owe to their children. The fact of abandonment, judicially determined, was essential to the jurisdiction; not essential that it should be determined on proper evidence, necessarily, or in accordance with the truth, because mere error in that regard does not affect jurisdicition. If jurisdiction be obtained to determine a fact, its determination wrong or on insufficient or improper evidence is immaterial oh the question of legal right to proceed judicially to the next step. That is deemed to be elementary... A judicial determination may be contrary to conclusive evidence, or legal evidence, or without any evidence, yet cannot be impeached for want of jurisdiction. Van Fleet, Coll. Attack, Secs. 663, 665. That rule applies to all judicial proceedings. . . . . It follows, therefore, that the Court of Appeals erred in reviewing, under a collateral attack, the determination of the adoption court that the parents of Paulina and Aurora Santos had abandoned them. This is so even if such fact of abandonment is deemed jurisdictional, a point which we need not and do not rule upon in this case. For the same reason, it is not in point to argue here that Simplicio Santos in fact concealed the adoption proceedings from the natural parents, thereby rendering the judgment obtained therein null and void or being secured by extrinsic fraud. The rule is well recognized that a judgment can be set aside on the ground of extrinsic fraud only in a separate action brought for that purpose; not by way of collateral attack (Gomez vs. Concepcion, 47 Phil. 717; Ramos vs. Maalac, 89 Phil. 270). Anent the alleged lack of notice of the adoption proceedings on the natural parents, suffice it to mark that adoption is a proceeding in rem5 and that constructive notice, such as the publication duly made as aforesaid, is enough where the residence of the parents is unknown (2 Am. Jur., 2d, Adoption, Sec. 56, p. 906). Notice, moreover, is not required in adoption cases in regard to the abandoning parent (Parsons vs. Parsons, supra). Assuming that Simplicio Santos was not validly married to Juliana Reyes, it will not make any difference as far as the right of respondents to intervene in the intestate proceedings is concerned. Juliana Reyes should then be deemed to have filed the petition for adoption as a person whose status is single, not married. The defect would then lie only as to Simplicio Santos, who, as allegedly married to another person (a point that we do not decide in this case), could not adopt without joining his wife in the petition.6 It being the estate of Juliana Reyes that is the subject matter of the settlement proceedings, the flaw, if any, would not affect the consideration of the right of Paulina and Aurora Santos to succeed as adopted children of Juliana Reyes, to the exclusion of respondents. It must not be forgotten that the philosophy behind adoption statutes is to promote the welfare of the child. Accordingly, the modern trend is to encourage adoption (Prasnik vs. Republic, 5 O.G. 1942) and every reasonable intendment should be sustained to promote that objective. From 2 Corpus Juris Secundum 375-376 we quote:

Accordingly, as the main purpose of adoption statutes is the promotion of the welfare of children, bereft of the benefits of the home and care of their real parents, wherever possible without doing violence to the terms of the statute, such a construction should be given adoption laws as will sustain, rather than defeat, this purpose. Although, as against the interests of the child, the proceedings must be strictly in accordance with the statute, there is a tendency on the part of the courts, however, where the adoption has been fully consummated, to construe the statute with a reasonable degree of liberality, to the end that the assumed relationship and the intention of the parties be upheld, particularly as against strangers to the proceedings collaterally attacking them . . . . From all the foregoing it follows that respondents-oppositors Aranzanso and Ventura and those who, like them (Pasion sisters), claim an interest in the estate of Juliana Reyes as alleged first cousins, cannot intervene, as such, in the settlement proceedings, in view of the fact that in the order of intestate succession adopted children exclude first cousins (Articles 979 and 1003, New Civil Code). The same holds true as long as the adoption must be as in the instant case considered valid. Wherefore, the judgment of the Court of Appeals is hereby reversed and the order of the probate court a quosustaining the adoption, dated April 6, 1959, is affirmed. Respondents Gregoria Aranzanso and Demetria Ventura as well as Consuelo and Pacita Pasion are declared without right to intervene as heirs in the settlement of the intestate estate of Juliana Reyes. The preliminary injunction heretofore issued is dissolved, except insofar as it enjoins the intervention or allowance of withdrawals of properly from the estate by Gregoria Aranzanso, Demetria Ventura, Consuelo and Pacita Pasion, in the concept of heirs, as to which it is hereby made permanent. No costs. So ordered. Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Sanchez, JJ., concur. Bengzon, JJ., took no part. G.R. No. 154598 August 16, 2004

jurisdiction and portion2 read:

lack

of

substance.

The

dispositive

WHEREFORE, the Court DISMISSES the petition for habeas corpus on the grounds that: a) this Court has no jurisdiction over the subject matter of the petition; and b) the petition is not sufficient in substance. Petitioner, an American, and respondent, a Filipino, were married on August 28, 1998 in the Catholic Evangelical Church at United Nations Avenue, Manila. A year later, respondent gave birth to a baby girl whom they named Sequeira Jennifer Delle Francisco Thornton. However, after three years, respondent grew restless and bored as a plain housewife. She wanted to return to her old job as a "guest relations officer" in a nightclub, with the freedom to go out with her friends. In fact, whenever petitioner was out of the country, respondent was also often out with her friends, leaving her daughter in the care of the househelp. Petitioner admonished respondent about her irresponsibility but she continued her carefree ways. On December 7, 2001, respondent left the family home with her daughter Sequiera without notifying her husband. She told the servants that she was bringing Sequiera to Purok Marikit, Sta. Clara, Lamitan, Basilan Province. Petitioner filed a petition for habeas corpus in the designated Family Court in Makati City but this was dismissed, presumably because of the allegation that the child was in Basilan. Petitioner then went to Basilan to ascertain the whereabouts of respondent and their daughter. However, he did not find them there and the barangay office of Sta. Clara, Lamitan, Basilan, issued a certification3 that respondent was no longer residing there. Petitioner gave up his search when he got hold of respondents cellular phone bills showing calls from different places such as Cavite, Nueva Ecija, Metro Manila and other provinces. Petitioner then filed another petition for habeas corpus, this time in the Court of Appeals which could issue a writ of habeas corpus enforceable in the entire country. However, the petition was denied by the Court of Appeals on the ground that it did not have jurisdiction over the case. It ruled that since RA 8369 (The Family Courts Act of 1997) gave family courts exclusive original jurisdiction over petitions for habeas corpus, it impliedly repealed RA 7902 (An Act Expanding the Jurisdiction of the Court of Appeals) and Batas Pambansa 129 (The Judiciary Reorganization Act of 1980): Under Sec. 9 (1), BP 129 (1981) the Intermediate Appellate Court (now Court of Appeals) has jurisdiction to issue a writ of habeas corpus whether or not in aid of its appellate jurisdiction. This conferment of jurisdiction was re-stated in Sec. 1, RA 7902 (1995), an act expanding the jurisdiction of this Court. This jurisdiction finds its procedural expression in Sec. 1, Rule 102 of the Rules of Court. In 1997, RA 8369 otherwise known as Family Courts Act was enacted. It provides: Sec. 5. Jurisdiction of Family Court. The Family Courts shall have exclusive original

IN THE MATTER OF APPLICATION FOR THE ISSUANCE OF A WRIT OF HABEAS CORPUS RICHARD BRIAN THORNTON for and in behalf of the minor child SEQUEIRA JENNIFER DELLE FRANCISCO THORNTON, petitioner, vs. ADELFA FRANCISCO THORNTON, respondent.

DECISION

CORONA, J.: This is a petition to review, under Rule 45 of the Rules of Court, the July 5, 2002 resolution1 of the Court of Appeals, Sixteenth Division, in CA G.R. SP No. 70501 dismissing the petition for habeas corpus on the grounds of lack of

jurisdiction to hear and decide the following cases: xxx xxx xxx

b. Petition for guardianship, custody of children, habeas corpus in relation to the latter. The vital question is, did RA 8369 impliedly repeal BP 129 and RA 7902 insofar as the jurisdiction of this Court to issue writ of habeas corpus in custody of minor cases is concerned? The simple answer is, yes, it did, because there is no other meaning of the word "exclusive" than to constitute the Family Court as the sole court which can issue said writ. If a court other than the Family Court also possesses the same competence, then the jurisdiction of the former is not exclusive but concurrent and such an interpretation is contrary to the simple and clear wording of RA 8369. Petitioner argues that unless this Court assumes jurisdiction over a petition for habeas corpus involving custody of minors, a respondent can easily evade the service of a writ of habeas corpus on him or her by just moving out of the region over which the Regional Trial Court issuing the writ has territorial jurisdiction. That may be so but then jurisdiction is conferred by law. In the absence of a law conferring such jurisdiction in this Court, it cannot exercise it even if it is demanded by expediency or necessity. Whether RA 8369 is a good or unwise law is not within the authority of this Court or any court for that matter to determine. The enactment of a law on jurisdiction is within the exclusive domain of the legislature. When there is a perceived defect in the law, the remedy is not to be sought form the courts but only from the legislature. The only issue before us therefore is whether the Court of Appeals has jurisdiction to issue writs of habeas corpus in cases involving custody of minors in the light of the provision in RA 8369 giving family courts exclusive original jurisdiction over such petitions. In his comment, the Solicitor General points out that Section 20 of the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-04-04SC, effective May 15, 2003) has rendered the issue moot. Section 20 of the rule provides that a petition for habeas corpus may be filed in the Supreme Court,4Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines.5 The petition is granted. The Court of Appeals should take cognizance of the case since there is nothing in RA 8369 that revoked its jurisdiction to issue writs of habeas corpus involving the custody of minors. The Court of Appeals opines that RA 8369 impliedly repealed RA 7902 and BP 129 since, by giving family courts exclusive jurisdiction over habeas corpus cases, the lawmakers intended it to be the sole court which can issue writs of habeas corpus. To the court a quo, the word "exclusive" apparently cannot be construed any other way.

We disagree with the CAs reasoning because it will result in an iniquitous situation, leaving individuals like petitioner without legal recourse in obtaining custody of their children. Individuals who do not know the whereabouts of minors they are looking for would be helpless since they cannot seek redress from family courts whose writs are enforceable only in their respective territorial jurisdictions. Thus, if a minor is being transferred from one place to another, which seems to be the case here, the petitioner in a habeas corpus case will be left without legal remedy. This lack of recourse could not have been the intention of the lawmakers when they passed the Family Courts Act of 1997. As observed by the Solicitor General: Under the Family Courts Act of 1997, the avowed policy of the State is to "protect the rights and promote the welfare of children." The creation of the Family Court is geared towards addressing three major issues regarding childrens welfare cases, as expressed by the legislators during the deliberations for the law. The legislative intent behind giving Family Courts exclusive and original jurisdiction over such cases was to avoid further clogging of regular court dockets, ensure greater sensitivity and specialization in view of the nature of the case and the parties, as well as to guarantee that the privacy of the children party to the case remains protected. The primordial consideration is the welfare and best interests of the child. We rule therefore that RA 8369 did not divest the Court of Appeals and the Supreme Court of their jurisdiction over habeas corpus cases involving the custody of minors. Again, to quote the Solicitor General: To allow the Court of Appeals to exercise jurisdiction over the petition for habeas corpus involving a minor child whose whereabouts are uncertain and transient will not result in one of the situations that the legislature seeks to avoid. First, the welfare of the child is paramount. Second, the ex parte nature of habeas corpus proceedings will not result in disruption of the childs privacy and emotional wellbeing; whereas to deprive the appellate court of jurisdiction will result in the evil sought to be avoided by the legislature: the childs welfare and well being will be prejudiced. This is not the first time that this Court construed the word "exclusive" as not foreclosing resort to another jurisdiction. As correctly cited by the Solicitor General, in Floresca vs. Philex Mining Corporation,6 the heirs of miners killed in a workrelated accident were allowed to file suit in the regular courts even if, under the Workmens Compensation Act, the Workmens Compensation Commissioner had exclusive jurisdiction over such cases. We agree with the observations of the Solicitor General that: While Floresca involved a cause of action different from the case at bar. it supports petitioners submission that the word "exclusive" in the Family Courts Act of 1997 may not connote automatic foreclosure of the jurisdiction of other courts over habeas corpus cases involving minors. In the same manner that the remedies in the Floresca case were selective, the jurisdiction of the Court of Appeals and Family Court in the case at bar is concurrent. The Family Court can issue writs of habeas corpus enforceable only within its territorial jurisdiction. On the other hand, in cases where the territorial jurisdiction for the enforcement of the writ cannot be

determined with certainty, the Court of Appeals can issue the same writ enforceable throughout the Philippines, as provided in Sec. 2, Rule 102 of the Revised Rules of Court, thus: The Writ of Habeas Corpus may be granted by the Supreme Court, or any member thereof, on any day and at any time, or by the Court of Appeals or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a Court of First Instance, or any judge thereof for hearing and decision on the merits. It may also be granted by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district. (Emphasis supplied) In ruling that the Commissioners "exclusive" jurisdiction did not foreclose resort to the regular courts for damages, this Court, in the same Floresca case, said that it was merely applying and giving effect to the constitutional guarantees of social justice in the 1935 and 1973 Constitutions and implemented by the Civil Code. It also applied the wellestablished rule that what is controlling is the spirit and intent, not the letter, of the law: "Idolatrous reverence" for the law sacrifices the human being. The spirit of the law insures mans survival and ennobles him. In the words of Shakespeare, "the letter of the law killeth; its spirit giveth life." xxx xxx xxx

jurisprudence. The fundament is that the legislature should be presumed to have known the existing laws on the subject and not have enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all laws on the subject."9 The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the Court of Appeals and Supreme Court to issue writs of habeas corpus relating to the custody of minors. Further, it cannot be said that the provisions of RA 8369, RA 7092 and BP 129 are absolutely incompatible since RA 8369 does not prohibit the Court of Appeals and the Supreme Court from issuing writs of habeas corpus in cases involving the custody of minors. Thus, the provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 that family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue. In any case, whatever uncertainty there was has been settled with the adoption of A.M. No. 03-03-04-SC Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. Section 20 of the rule provides that: Section 20. Petition for writ of habeas corpus.- A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs. xxx xxx xxx

It is therefore patent that giving effect to the social justice guarantees of the Constitution, as implemented by the provisions of the New Civil Code, is not an exercise of the power of law-making, but is rendering obedience to the mandates of the fundamental law and the implementing legislation aforementioned. Language is rarely so free from ambiguity as to be incapable of being used in more than one sense. Sometimes, what the legislature actually had in mind is not accurately reflected in the language of a statute, and its literal interpretation may render it meaningless, lead to absurdity, injustice or contradiction.7 In the case at bar, a literal interpretation of the word "exclusive" will result in grave injustice and negate the policy "to protect the rights and promote the welfare of children"8 under the Constitution and the United Nations Convention on the Rights of the Child. This mandate must prevail over legal technicalities and serve as the guiding principle in construing the provisions of RA 8369. Moreover, settled is the rule in statutory construction that implied repeals are not favored: The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare leqibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of

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. (Emphasis Ours) From the foregoing, there is no doubt that the Court of Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved. One final note. Requiring the serving officer to search for the child all over the country is not an unreasonable availment of a remedy which the Court of Appeals cited as a ground for dismissing the petition. As explained by the Solicitor General:10 That the serving officer will have to "search for the child all over the country" does not represent an insurmountable or unreasonable obstacle, since such a task is no more different from or difficult than the duty of the peace officer in effecting a warrant of arrest, since the latter is likewise enforceable anywhere within the Philippines. WHEREFORE, the petition is hereby GRANTED. The petition for habeas corpus in CA-G.R.-SP-No. 70501 is hereby REINSTATED and REMANDED to the Court of Appeals, Sixteenth Division. SO ORDERED.

FELIPE N. MADRIAN, Petitioner, vs. FRANCISCA R. MADRIAN, Respondent. DECISION CORONA, J.: When a family breaks up, the children are always the victims. The ensuing battle for custody of the minor children is not only a thorny issue but also a highly sensitive and heartrending affair. Such is the case here. Even the usually technical subject of jurisdiction became emotionally charged. Petitioner Felipe N. Madrian and respondent Francisca R. Madrian were married on July 7, 1993 in Paraaque City. They resided in San Agustin Village, Brgy. Moonwalk, Paraaque City. Their union was blessed with three sons and a daughter: Ronnick, born on January 30, 1994; Phillip, born on November 19, 1996; Francis Angelo, born on May 12, 1998 and Krizia Ann, born on December 12, 2000. After a bitter quarrel on May 18, 2002, petitioner allegedly left their conjugal abode and took their three sons with him to Ligao City, Albay and subsequently to Sta. Rosa, Laguna. Respondent sought the help of her parents and parents-in-law to patch things up between her and petitioner to no avail. She then brought the matter to theLupong Tagapamayapa in their barangay but this too proved futile. Thus respondent filed a petition for habeas corpus of Ronnick, Phillip and Francis Angelo in the Court of Appeals, alleging that petitioners act of leaving the conjugal dwelling and going to Albay and then to Laguna disrupted the education of their children and deprived them of their mothers care. She prayed that petitioner be ordered to appear and produce their sons before the court and to explain why they should not be returned to her custody. Petitioner and respondent appeared at the hearing on September 17, 2002. They initially agreed that petitioner would return the custody of their three sons to respondent. Petitioner, however, had a change of heart1 and decided to file a memorandum. On September 3, 2002, petitioner filed his memorandum2 alleging that respondent was unfit to take custody of their three sons because she was habitually drunk, frequently went home late at night or in the wee hours of the morning, spent much of her time at a beer house and neglected her duties as a mother. He claimed that, after their squabble on May 18, 2002, it was respondent who left, taking their daughter with her. It was only then that he went to Sta. Rosa, Laguna where he worked as a tricycle driver. He submitted a certification from the principal of the Dila Elementary School in Sta. Rosa, Laguna that Ronnick and Phillip were enrolled there. He also questioned the jurisdiction of the Court of Appeals claiming that under Section 5(b) of RA 8369 (otherwise known as the "Family Courts Act of 1997") family courts have exclusive original jurisdiction to hear and decide the petition forhabeas corpus filed by respondent.3 For her part, respondent averred that she did not leave their home on May 18, 2002 but was driven out by petitioner. She alleged that it was petitioner who was an alcoholic, gambler and drug addict. Petitioners alcoholism and drug addiction impaired his mental faculties, causing him to commit acts of

violence against her and their children. The situation was aggravated by the fact that their home was adjacent to that of her in-laws who frequently meddled in their personal problems.4 On October 21, 2002, the Court of Appeals5 rendered a decision6 asserting its authority to take cognizance of the petition and ruling that, under Article 213 of the Family Code, respondent was entitled to the custody of Phillip and Francis Angelo who were at that time aged six and four, respectively, subject to the visitation rights of petitioner. With respect to Ronnick who was then eight years old, the court ruled that his custody should be determined by the proper family court in a special proceeding on custody of minors under Rule 99 of the Rules of Court. Petitioner moved for reconsideration of the Court of Appeals decision but it was denied. Hence, this recourse. Petitioner challenges the jurisdiction of the Court of Appeals over the petition for habeas corpus and insists that jurisdiction over the case is lodged in the family courts under RA 8369. He invokes Section 5(b) of RA 8369: Section 5. Jurisdiction of Family Courts. The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases: xxx xxx xxx

b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter; xxx xxx xxx

Petitioner is wrong. In Thornton v. Thornton,7 this Court resolved the issue of the Court of Appeals jurisdiction to issue writs of habeas corpus in cases involving custody of minors in the light of the provision in RA 8369 giving family courts exclusive original jurisdiction over such petitions: The Court of Appeals should take cognizance of the case since there is nothing in RA 8369 that revoked its jurisdiction to issue writs of habeas corpus involving the custody of minors. xxx xxx xxx

We rule therefore that RA 8369 did not divest the Court of Appeals and the Supreme Court of their jurisdiction over habeas corpus cases involving the custody of minors. xxx xxx xxx

The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the Court of Appeals and Supreme Court to issue writs of habeas corpus relating to the custody of minors. Further, it cannot be said that the provisions of RA 8369, RA 7092 [An Act Expanding the Jurisdiction of the Court of Appeals] and BP 129 [The Judiciary Reorganization Act of 1980] are absolutely incompatible since RA 8369 does not prohibit the Court of Appeals and the Supreme Court from issuing writs of habeas corpus in cases involving the custody of minors. Thus, the provisions of RA 8369 must be read in

harmony with RA 7029 and BP 129 that family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpuswhere the custody of minors is at issue.8 (emphases supplied) The jurisdiction of the Court of Appeals over petitions for habeas corpus was further affirmed by A.M. No. 03-03-04SC (April 22, 2004) in Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors: In any case, whatever uncertainty there was has been settled with the adoption of A.M. No. 03-03-04-SC Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. Section 20 of the rule provides that: Section 20. Petition for writ of habeas corpus. A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs. xxx xxx xxx

court. The writ must be issued by the same court to avoid splitting of jurisdiction, conflicting decisions, interference by a co-equal court and judicial instability. The rule therefore is: when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer.11 Once a court acquires jurisdiction over the subject matter of a case, it does so to the exclusion of all other courts, including related incidents and ancillary matters. Accordingly, the petition is hereby DENIED. Costs against petitioner. SO ORDERED. RENATO C. CO NOEL B. BAGTAS, Petitioner, vs. HON. RUTH C. SANTOS, Presiding Judge of Regional Trial Court, Branch 72, Antipolo City, and ANTONIO and ROSITA GALLARDO, Respondents. DECISION CARPIO, J.: The Case This is a petition1 for review on certiorari under Rule 45 of the Rules of Court. The petition challenges the 11 June 2004 Decision2 and 5 January 2005 Resolution3 of the Court of Appeals in CA-G.R. SP No. 77751. The Court of Appeals affirmed the 9 December 20024 and 21 April 2003 Orders of the Regional Trial Court (RTC), Judicial Region 4, Branch 72, Antipolo City, in Special Proceeding Case No. 02-1128. The Facts Antonio and Rosita S. Gallardo (Spouses Gallardo) are the parents of Maricel S. Gallardo (Maricel). Two weeks after graduating from high school in April 2000, Maricel ran away to live with her boyfriend. Maricel became pregnant and gave birth to Maryl Joy S. Gallardo (Maryl Joy). Maricels boyfriend left her. In February 2002, Maricel returned to her parents. On the same day, Maricel ran away again and lived with Noel B. Bagtas (Bagtas) and Lydia B. Sioson (Sioson) at Ma. Corazon, Unirock, Barangay Sta. Cruz, Antipolo City. Maricel went to Negros Occidental and left Maryl Joy in the custody of Bagtas and Sioson. In a letter5 dated 5 February 2001, Maricel relinquished her rights over Maryl Joy to Bagtas and his wife. She stated: Ako po si Maricel S. Gallardo 18 taong gulang ay kusang ipinagkaloob ang aking anak sa pagkadalaga sa mag-asawang Noel B. Bagtas at Neneth A. Bagtas sa kadahilanan pong itinakwil ako ng sarili kong mga magulang at hindi ko po kayang buhayin at dahil po sa tinakbuhan ako ng aking boyfriend kaya wala na pong ibang paraan para ako makabangon o makapagsimula ng panibagong buhay kaya para mabigyan ng magandang buhay ang aking anak inisip ko

The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its membersand, 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. From the foregoing, there is no doubt that the Court of Appeals and Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved.9(emphases supplied)1avvphi1 We note that after petitioner moved out of their Paraaque residence on May 18, 2002, he twice transferred his sons to provinces covered by different judicial regions. This situation is what the Thornton interpretation of RA 8369s provision on jurisdiction precisely addressed: [The reasoning that by giving family courts exclusive jurisdiction over habeas corpus cases, the lawmakers intended them to be the sole courts which can issue writs of habeas corpus] will result in an iniquitous situation, leaving individuals like [respondent] without legal recourse in obtaining custody of their children. Individuals who do not know the whereabouts of minors they are looking for would be helpless since they cannot seek redress from family courts whose writs are enforceable only in their respective territorial jurisdictions. Thus, if a minor is being transferred from one place to another, which seems to be the case here, the petitioner in ahabeas corpus case will be left without legal remedy. This lack of recourse could not have been the intention of the lawmakers when they passed [RA 8369].10 Moreover, a careful reading of Section 5(b) of RA 8369 reveals that family courts are vested with original exclusive jurisdiction in custody cases, not in habeas corpus cases. Writs of habeas corpus which may be issued exclusively by family courts under Section 5(b) of RA 8369 pertain to the ancillary remedy that may be availed of in conjunction with a petition for custody of minors under Rule 99 of the Rules of Court. In other words, the issuance of the writ is merely ancillary to the custody case pending before the family

po na ito na ang pinaka madaling paraan para po sa pagbabago ng aking buhay. Kaya mula sa araw na ito ay wala na akong karapatan sa aking anak. Sila ang tatayo bilang magulang ng aking anak. In April 2002, the Spouses Gallardo tried to obtain the custody of Maryl Joy from Bagtas and Sioson. Bagtas and Sioson refused. Unable to settle the matter, the Spouses Gallardo filed with the RTC a petition 6 for habeas corpus. In its Order dated 10 July 2002, the RTC issued a writ of habeas8 corpus directing the deputy sheriff to produce Maryl Joy before it and to summon Bagtas and Sioson to explain why they were withholding the custody of Maryl Joy. The Spouses Gallardo, Bagtas and Sioson entered into a compromise agreement. In its Order9 dated 13 September 2002, the RTC stated: In todays hearing, both parties appeared with their respective counsels and have agreed on the following: 1. that the child should be placed in custody of the petitioners on Friday, Saturday and Sunday; 2. that the child should be returned to the respondents by the petitioners on Sunday at 8:00 oclock in the evening subject to visitorial rights of the petitioners anytime of the day; and 3. that the child can be brought by the respondents to Valenzuela but should be returned to the petitioners on Friday morning. The above agreement shall take effect today and parties are ordered to comply strictly with the said agreement under pain of contempt in case of violation thereof. On 29 September 2002, Bagtas and Sioson learned that Rosita S. Gallardo brought Maryl Joy to Samar. In their motion10 dated 30 September 2002, Bagtas and Sioson prayed that the Spouses Gallardo be directed to produce Maryl Joy before the RTC, that they be directed to explain why they violated the RTCs 13 September 2002 Order, and that they be cited in contempt. In their motion11 to dismiss dated 11 October 2002, Bagtas and Sioson prayed that the Spouses Gallardos action be dismissed pursuant to Section 3, Rule 17, of the Rules of Court. Section 3 states that "If, for no justifiable cause, the plaintiff fails x x x to comply with x x x any order of the court, the complaint may be dismissed upon motion of the defendant or upon the courts own motion." Bagtas and Sioson claimed that the Spouses Gallardo failed to comply with the RTCs 13 September 2002 Order. In its Order12 dated 15 October 2002, the RTC cited the Spouses Gallardo in contempt, fined themP500, and ordered them to produce Maryl Joy before the trial court. The RTCs Ruling In its Order13 dated 9 December 2002, the RTC dismissed the action for having become moot. The RTC stated:
7

In this petition, the prayer of the petitioners is to produce the person of Meryl [sic] Joy S. Gallardo before this court to be turned over to herein petitioners who are the maternal [grandparents] of said minor. Since the person subject of the petition has already produced [sic] to this court and has been turned over to the petitioners, the issue on the petition for habeas corpus is now moot and academic without prejudice to the filing of the proper action to determine as to the rightful custody over the minor child. In view thereof, x x x the Motion to Dismiss is hereby granted but without prejudice on the petitioners to file proper action for custody of the minor. (Emphasis supplied) In their motion14 for reconsideration dated 27 December 2002, Bagtas and Sioson alleged that the ground for the dismissal of the action was erroneous. The action should have been dismissed pursuant to Section 3, Rule 17, of the Rules of Court. They prayed that Maryl Joy be returned to them to preserve the status quo ante. Bagtas and Sioson stated: 5. Thus, the Honorable Court very clearly issued a conflicting Order because It has cited the [Spouses Gallardo] in contempt of court for violating the previous September 13, 2002 Order that the child should be returned to the respondents in the evening of September 29, 2002 (Sunday), and yet the Honorable Court has dismissed the petition for being moot and academic. This is in effect giving premium to the act of the petitioners of not turning over the child to respondents on September 29, 2002. Likewise, this is tantamount to rewarding them for not producing the child in court in violation of the aforesaid September 13, 2002 Order; 6. Moreover, the Honorable Court has issued an unreasonable Order by stating that the dismissal of the instant case is without prejudice to the filing of the proper action for custody of the minor by the petitioners. Why would the petitioners still file the proper action for custody if they now have the custody of the minor? PRAYER WHEREFORE, premises considered, it is most respectfully prayed that the December 9, 2002 Order of the Honorable Court be partially reconsidered so that the dismissal of the case will not be based on the ground of being moot and academic but based on failure to comply with the September 13, 2002 pursuant [sic] to Section 3, Rule 17 of the 1997 Rules of Civil Procedure and that petitioners be consequently directed to return the person subject of the petition to the respondents to preserve the status quo ante. In its Order15 dated 21 April 2003, the RTC denied the motion for reconsideration. The RTC held that the sole purpose of the petition for habeas corpus was the production of Maryl Joy and that the Spouses Gallardo exercised substitute parental authority over Maryl Joy. The RTC stated that: The allegations in the Petition show that the sole purpose for the filing of the Petition is to cause the production before the Court of the person of minor Meryl [sic] Joy S. Gallardo, not a determination of the legality or illegality of respondents custody of the child, petitioners being aware of the fact that the child was left by their (petitioners) daughter to [sic] the custody of the respondents, as stated in par. no. 10 of the Petition.

The instant Petition is therefore, essentially not a petition for Habeas Corpus as contemplated in Rule 102, Revised Rules of Court which is resorted to in all cases of illegal confinement by which any person is deprived of his liberty (Cruz vs. CA, 322 SCRA 518), but is resorted to also where the rightful custody of any person is withheld from the person entitled thereto as contemplated in Rule 102, Revised Rules of Court. In order that the special remedy of Habeas Corpus maybe [sic] invoked, it is necessary that there should be an actual and effective restraint or deprivation of liberty. A nominal or moral restraint is not sufficient (Gonzales vs. Viola, et al., 61 Phil 824). Since therefore, the purpose of the instant Petition has already been served, as the child has been produced and delivered to the petitioners, the instant Petition logically has become moot and academic. Petitioners are, under the law (Art. 214, Family Code), authorized to exercise substitute parental authority over the child in case of death, absence or unsuitability of the parents, the entitlement to the legal custody of the child being necessarily included therein to make possible and/or enable the petitioners to discharge their duties as substitute parents. There is no inconsistency between the Order dated December 9, 2002 sought to be reconsidered, and the Order dated October 15, 2002, as the latter was issued pursuant to an incident, an interlocutory matter, that is, the failure of the petitioners to comply with the agreement reached between the parties in open court on September 13, 2002. The said Order dated October 15, 2002 is not a resolution of the case in the main, as it did not terminate the case. The Order dated December 9, 2002, on the other hand, terminated the case, and considering that the dismissal of the case was unqualified, the same amounted to an adjudication on the merits pursuant to Sec. 3, Rule 17 of the Revised Rules of Court Procedure, therefore, the agreement earlier entered by and between the herein parties is deemed terminated. (Emphasis supplied) Bagtas filed with the Court of Appeals a petition16 for certiorari under Rule 65 of the Rules of Court. Bagtas alleged that (1) the RTC erred when it ruled that the sole purpose of the 1 August 2002 petition was the production of Maryl Joy before the trial court, (2) the RTC erred when it ruled that the petition was "essentially not a petition for Habeas Corpus as contemplated in Rule 102," (3) the RTC erred when it ruled that there must be actual and effective deprivation of liberty, (4) the RTC erred when it ruled that the action had become moot, (5) the RTC erred when it ruled that the Spouses Gallardo had substitute parental authority over Maryl Joy, and (6) the RTC erred when it ruled that there was no inconsistency between the 15 October and 9 December 2002 Orders. The Court of Appeals Ruling

Significantly, in custody cases involving minors, the question of illegal or involuntary restraint is not the underlying rationale for the availability of the writ of habeas corpus as a remedy; rather, the writ is prosecuted for the purpose of determining the right of custody of a child. By dismissing the petition a quo, the trial court in effect upheld private respondents right of custody over the minor involved as against that of petitioner. While it cannot be gainsaid that private respondents obtained initial custody of the minor in violation of a valid court order, we nonetheless sustain the judgment a quo dismissing the petition and validating such rightful custody over Maryl Joy. This is because private respondents are the grandparents of Maryl Joy, hence, lawfully authorized to exercise substitute parental authority over her in the absence of her parents. What is more, in awarding custody to private respondents, the best welfare of the child was taken into consideration inasmuch as, per report of the Court Social Worker, the implementation of the parties agreement would cause more psychological damage and traumatic experience to Maryl Joy. To our mind, therefore, the violation of a court order pales in significance when considered alongside the best interest of the minor whose welfare requires that she be in the custody of her grandparents rather than petitioners. x x x Under the factual and legal milieux of the case, there is no question that as grandparents of the minor, Maryl Joy, private respondents have a far superior right of custody over her than petitioner.17 The Issues In his petition dated 1 February 2005, Bagtas raised as issues that: THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION IN NOT FINDING THAT TRIAL COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN FINDING THAT THE ALLEGATION IN THE PETITION FOR HABEAS CORPUS SHOW THAT THE SOLE PURPOSE FOR THE FILING THEREOF IS TO CAUSE THE PRODUCTION BEFORE THE COURT OF THE PERSON IN WHOSE FAVOR IT WAS FILED. THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION IN NOT FINDING THAT THE TRIAL COURT GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION IN RULING THAT WITH THE DELIVERY OF THE CHILD FOR WHOM THE PETITION WAS FILED, THE PETITION FOR HABEAS CORPUS HAS BECOME MOOT AND ACADEMIC. The Courts Ruling

In its Decision dated 11 June 2004, the Court of Appeals dismissed the petition and affirmed the 9 December 2002 and 23 April 2003 Orders of the RTC. The Court of Appeals held that: In the second part of [Section 1, Rule 102, of the Rules of Court], x x x habeas corpus may be resorted to in cases where the rightful custody of any person is withheld from the person entitled thereto. Accordingly, the writ of habeas corpus is the proper remedy to enable herein private respondents to regain the custody of their minor grand daughter Maryl Joy who was admittedly left by her natural mother in the care of petitioner and Lydia Sioson.

The Court of Appeals erred when it affirmed the RTCs 9 December 2002 and 21 April 2003 Orders. In its Orders, the RTC ruled that, since the sole purpose of the petition for habeas corpus was the production of Maryl Joy before the trial court, the action became moot when Maryl Joy was produced. The Court disagrees. Section 1, Rule 102, of the Rules of Court states that the writ of habeas corpus shall extend to all cases where the rightful custody of any person is withheld from the persons entitled thereto. 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. In Tijing v. Court of Appeals,18 the Court held that: 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. Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child. (Emphasis supplied)1avvphi1 The RTC erred when it hastily dismissed the action for having become moot after Maryl Joy was produced before the trial court. It should have conducted a trial to determine who had the rightful custody over Maryl Joy. In dismissing the action, the RTC, in effect, granted the petition for habeas corpus and awarded the custody of Maryl Joy to the Spouses Gallardo without sufficient basis. In Laxamana v. Laxamana,19 the Court held that: Mindful of the nature of the case at bar, the court a quo should have conducted a trial notwithstanding the agreement of the parties to submit the case for resolution on the basis, inter alia, of the psychiatric report of Dr. Teresito. Thus, petitioner is not estopped from questioning the absence of a trial considering that said psychiatric report, which was the courts primary basis in awarding custody to respondent, is insufficient to justify the decision. The fundamental policy of the State to promote and protect the welfare of children shall not be disregarded by mere technicality in resolving disputes which involve the family and the youth. (Emphasis supplied) Article 214 of the Civil Code states that in case of absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. Article 216 states that in default of parents or a judicially appointed guardian, the surviving grandparent shall exercise substitute parental authority over the child. Accordingly, in its 21 April 2003 Order, the RTC held that: Petitioners are, under the law (Art. 214, Family Code), authorized to exercise substitute parental authority over the child in case of death, absence or unsuitability of the parents, the entitlement to the legal custody of the child being necessarily included therein to make possible and/or enable the petitioners to discharge their duties as substitute parents.20 In its 11 June 2004 Decision, the Court of Appeals held that: While it cannot be gainsaid that private respondents obtained initial custody of the minor in violation of a valid court order, we nonetheless sustain the judgment a quo dismissing the petition and validating such rightful custody over Maryl Joy. This is because private respondents are the grandparents of Maryl Joy, hence, lawfully authorized to exercise substitute parental authority over her in the absence of her parents.21 In determining who has the rightful custody over a child, the childs welfare is the most important consideration. The court is not bound by any legal right of a person over the child. In Sombong v. Court of Appeals,22 the Court held that: 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, these 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. Hence, the court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the childs welfare is the supreme consideration. Considering that the childs welfare is an all-important factor in custody cases, 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 paramount consideration. In the same vein, the Family Code authorizes the courts to, if the welfare of the child so demands, deprive the parents concerned of parental authority over the child or adopt such measures as may be proper under the circumstances. (Emphasis supplied) In Sombong,23 the Court laid down three requisites in petitions for habeas corpus involving minors: (1) the petitioner has a right of custody over the minor, (2) the respondent is withholding the rightful custody over the minor, and (3) the best interest of the minor demands that he or she be in the custody of the petitioner. In the present case, these requisites are not clearly established because the RTC hastily dismissed the action and awarded the custody of Maryl Joy to the Spouses Gallardo without conducting any trial. The proceedings before the RTC leave so much to be desired. While a remand of the case would mean further delay, Maryl Joys best interest demands that proper proceedings be conducted to determine the fitness of the Spouses Gallardo to take care of her. WHEREFORE, the Court REMANDS the case to the Regional Trial Court, Judicial Region 4, Branch 72, Antipolo City, for the purpose of receiving evidence to determine the fitness of the Spouses Antonio and Rosita S. Gallardo to have custody of Maryl Joy Gallardo. SO ORDERED. G.R. No. 162734 August 29, 2006 MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO B. SALIENTES, and ROSARIO C. SALIENTES,Petitioners, vs. LORAN S.D. ABANILLA, HONORABLE JUDGE PEDRO SABUNDAYO, JR., REGIONAL TRIAL COURT, BRANCH 203, MUNTINLUPA CITY, Respondents DECISION QUISUMBING, J.: The instant petition assails the Decision 1dated November 10, 2003 of the Court of Appeals in CA-G.R. SP No. 75680, which dismissed the petition for certiorari against the orders of the Regional Trial Court in Special Proceedings No. 03-004.

Likewise assailed is the Court of Appeals Resolution 2dated March 19, 2004 denying reconsideration. The facts of the case are as follows: Private respondent Loran S.D. Abanilla and petitioner Marie Antonette Abigail C. Salientes are the parents of the minor Lorenzo Emmanuel S. Abanilla. They lived with Marie Antonettes parents, petitioners Orlando B. Salientes and Rosario C. Salientes. Due to in-laws problems, private respondent suggested to his wife that they transfer to their own house, but Marie Antonette refused. So, he alone left the house of the Salientes. Thereafter, he was prevented from seeing his son. Later, Loran S.D. Abanilla in his personal capacity and as the representative of his son, filed a Petition for Habeas Corpus and Custody, 3 docketed as Special Proceedings No. 03-004 before the Regional Trial Court of Muntinlupa City. On January 23, 2003, the trial court issued the following order: Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the Respondents Marie Antonette Abigail C. Salientes, Orlando B. Salientes and Rosario C. Salientes are hereby directed to produce and bring before this Court the body of minor Lorenzo Emmanuel Salientes Abanilla on January 31, 2003 at 1:00 oclock in the afternoon and to show cause why the said child should not be discharged from restraint. Let this Writ be served by the Sheriff or any authorized representative of this Court, who is directed to immediately make a return. SO ORDERED.
4

deprive the petitioner-mother of her minor son of tender years. The assailed orders, resolutions and decisions of the lower court and the Court of Appeals are clearly void; 2. The Court of Appeals erred in not pronouncing that the respondent judge gravely abused his discretion in issuing a writ of habeas corpus which clearly is not warranted considering that there is no unlawful restraint by the mother and considering further that the law presumes the fitness of the mother, thereby negating any notion of such mother illegally restraining or confining her very own son of tender years. The petition is not even sufficient in substance to warrant the writ. The assailed orders are clearly void. 3. Contrary to the Court of Appeals decision, the " Sombong vs. CA" case supports rather than negates the position of the petitioners. 4. Contrary to the Court of Appeals decision, summary proceeding does violence to the tender-years-rule 5. The Court of Appeals failed to consider that the private respondent failed to present prima facie proof of any compelling reason of the unfitness of the petitioner-mother; 6. The Court of Appeals failed to see that the New Rules on Custody SUFFICES AS REMEDY. 6 Plainly put, the issue is: Did the Court of Appeals err when it dismissed the petition for certiorari against the trial courts orders dated January 23, 2003 and February 24, 2003? Petitioners contend that the order is contrary to Article 213 7 of the Family Code, which provides that no child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise. They maintain that herein respondent Loran had the burden of showing any compelling reason but failed to present even a prima facie proof thereof. Petitioners posit that even assuming that there were compelling reasons, the proper remedy for private respondent was simply an action for custody, but not habeas corpus. Petitioners assert that habeas corpus is unavailable against the mother who, under the law, has the right of custody of the minor. They insist there was no illegal or involuntary restraint of the minor by his own mother. There was no need for the mother to show cause and explain the custody of her very own child. Private respondent counters that petitioners argument based on Article 213 of the Family Code applies only to the second part of his petition regarding the custody of his son. It does not address the first part, which pertains to his right as the father to see his son. He asserts that the writ of habeas corpus is available against any person who restrains the minors right to see his father and vice versa. He avers that the instant petition is merely filed for delay, for had petitioners really intended to bring the child before the court in accordance with the new rules on custody of minors, they would have done so on the dates specified in the January 23, 2003 and the February 24, 2003 orders of the trial court. Private respondent maintains that, under the law, he and petitioner Marie Antonette have shared custody and parental authority over their son. He alleges that at times when petitioner Marie Antonette is out of the country as required of her job as an international flight stewardess, he, the father,

Petitioners moved for reconsideration which the court denied. Consequently, petitioners filed a petition for certiorari with the Court of Appeals, but the same was dismissed on November 10, 2003. The appellate court affirmed the February 24, 2003 Order of the trial court holding that its January 23, 2003 Order did not award the custody of the 2year-old child to any one but was simply the standard order issued for the production of restrained persons. The appellate court held that the trial court was still about to conduct a full inquiry, in a summary proceeding, on the cause of the minors detention and the matter of his custody. The Court of Appeals ruled thus: WHEREFORE, the petition is hereby DISMISSED for lack of merit. SO ORDERED.
5

Petitioners moved for reconsideration, which was denied on March 19, 2004. Hence, petitioners interposed this anchored on the following grounds: appeal by certiorari

1. The Court of Appeals erred in not pronouncing the respondent judge gravely abused his discretion, amounting to lack or in excess of jurisdiction in issuing an order for the petitioner-mother to first show cause why her own three-year old child in her custody should not be discharged from a socalled "restraint" despite no evidence at all of restraint and no evidence of compelling reasons of maternal unfitness to

should have custody of their son and not the maternal grandparents. As correctly pointed out by the Court of Appeals, the assailed January 23, 2003 Order of the trial court did not grant custody of the minor to any of the parties but merely directed petitioners to produce the minor in court and explain why they are restraining his liberty. The assailed order was an interlocutory order precedent to the trial courts full inquiry into the issue of custody, which was still pending before it. Under Rule 41, Section 1 8 of the Rules of Court, an interlocutory order is not appealable but the aggrieved party may file an appropriate special action under Rule 65. The aggrieved party must show that the court gravely abused its discretion in issuing the interlocutory order. In the present case, it is incumbent upon petitioners to show that the trial court gravely abused its discretion in issuing the order. Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. 9Under Article 211 10 of the Family Code, respondent Loran and petitioner Marie Antonette have joint parental authority over their son and consequently joint custody. Further, although the couple is separated de facto, the issue of custody has yet to be adjudicated by the court. In the absence of a judicial grant of custody to one parent, both parents are still entitled to the custody of their child. In the present case, private respondents cause of action is the deprivation of his right to see his child as alleged in his petition. 11 Hence, the remedy of habeas corpus is available to him. In a petition for habeas corpus, the childs welfare is the supreme consideration. The Child and Youth Welfare Code 12 unequivocally provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. 13 Again, it bears stressing that the order did not grant custody of the minor to any of the parties but merely directed petitioners to produce the minor in court and explain why private respondent is prevented from seeing his child. This is in line with the directive in Section 9 14 of A.M. 03-04-04SC 15 that within fifteen days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order requiring the respondent (herein petitioners) to present the minor before the court. This was exactly what the court did. Moreover, Article 213 of the Family Code deals with the judicial adjudication of custody and serves as a guideline for the proper award of custody by the court. Petitioners can raise it as a counter argument for private respondents petition for custody. But it is not a basis for preventing the father to see his own child. Nothing in the said provision disallows a father from seeing or visiting his child under seven years of age. In sum, January Appeals the said the trial court did not err in issuing the orders dated 23, 2003 and February 24, 2003. Hence, the Court of properly dismissed the petition for certiorari against orders of the trial court.

ADOPTION G.R. No. 164948 June 27, 2006

DIWATA RAMOS LANDINGIN Petitioner, vs. REPUBLIC OF THE PHILIPPINES, Respondent. DECISION CALLEJO, SR., J.: Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision1 of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision2 of the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner herein. The Antecedents On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition3 for the adoption of minors Elaine Dizon Ramos who was born on August 31, 1986;4 Elma Dizon Ramos, who was born on September 7, 1987;5 and Eugene Dizon Ramos who was born on August 5, 1989.6 The minors are the natural children of Manuel Ramos, petitioners brother, and Amelia Ramos. Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,7 the children were left to their paternal grandmother, Maria Taruc Ramos; their biological mother, Amelia, went to Italy, re-married there and now has two children by her second marriage and no longer communicated with her children by Manuel Ramos nor with her in-laws from the time she left up to the institution of the adoption; the minors are being financially supported by the petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the children; the minors have given their written consent8 to the adoption; she is qualified to adopt as shown by the fact that she is a 57-year-old widow, has children of her own who are already married, gainfully employed and have their respective families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and works as a restaurant server. She came back to the Philippines to spend time with the minors; her children gave their written consent9 to the adoption of the minors. Petitioners brother, Mariano Ramos, who earns substantial income, signified his willingness and commitment to support the minors while in petitioners custody. Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows: WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor childrens name follow the family name of petitioner. Petitioner prays for such other reliefs, just and equitable under the premises.10 On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to conduct a case

WHEREFORE, the petition is DENIED. The Decisiondated November 10, 2003 and the Resolutiondated March 19, 2004 of the Court of Appeals in CA-G.R. SP No. 75680 are AFFIRMED. Costs against petitioners. SO ORDERED.

study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition.11 The Office of the Solicitor General (OSG) entered its appearance12 but deputized the City Prosecutor of Tarlac to appear in its behalf.13 Since her petition was unopposed, petitioner was allowed to present her evidence ex parte.14 The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to testify on the written consent executed by her and her siblings.15 The petitioner marked in evidence the Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent.16 On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac, submitted a Child Study Report, with the following recommendation: In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible for adoption because of the following reasons: 1. Minors surviving parent, the mother has voluntarily consented to their adoption by the paternal aunt, Diwata Landingin this is in view of her inability to provide the parental care, guidance and support they need. An Affidavit of Consent was executed by the mother which is hereto attached. 2. The three minors subject for adoption have also expressed their willingness to be adopted and joins the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto attached. The minors developed close attachment to the petitioners and they regarded her as second parent. 3. The minors are present under the care of a temporary guardian who has also family to look after. As young adolescents they really need parental love, care, guidance and support to ensure their protection and well being. In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial custody is hereby further recommended to be dispensed with considering that they are close relatives and that close attachments was already developed between the petitioner and the 3 minors.17 Pagbilao narrated what transpired during her interview, as follows: The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks vacation. This is to enable her appear for the personal interview concerning the adoption of her children. The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after the death of their paternal grandmother and guardian. The paternal relatives including the petitioner who attended the wake of their mother were very much concerned about the well-being of the three minors. While preparing for their adoption, they have asked a cousin who has a family to stay with minors and act as their temporary guardian.

The mother of minors was consulted about the adoption plan and after weighing the benefits of adoption to her children, she voluntarily consented. She realized that her children need parental love, guidance and support which she could not provide as she already has a second family & residing in Italy. Knowing also that the petitioners & her children have been supporting her children up to the present and truly care for them, she believes her children will be in good hands. She also finds petitioners in a better position to provide a secured and bright future to her children.18 However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present any documentary evidence to prove that Amelia assents to the adoption. On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision granting said petition. The dispositive portion reads: WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance from their natural parents and that they be declared for all legal intents and purposes the children of Diwata Ramos Landingin. Trial custody is dispensed with considering that parent-children relationship has long been established between the children and the adoptive parents. Let the surnames of the children be changed from "Dizon-Ramos" to "Ramos-Landingin." Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect the corresponding changes/amendment in the birth certificates of the abovementioned minors. SO ORDERED.19 The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its brief21 for the oppositor-appellant, the OSG raised the following arguments: I THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF CONSENT OF THE PROPOSED ADOPTEES BIOLOGICAL MOTHER. II THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF THE WRITTEN CONSENT OF THE PETITIONERS CHILDREN AS REQUIRED BY LAW. III THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONERS FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED ADOPTEES. On April 29, 2004, the CA rendered a decision22 reversing the ruling of the RTC. It held that petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the childrens natural mother. Moreover, the affidavit of consent of the petitioners children could not also be admitted in evidence as the same was executed in Guam, USA and was

not authenticated or acknowledged before a Philippine consular office, and although petitioner has a job, she was not stable enough to support the children. The dispositive portion of the CA decision reads: WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and SET ASIDE. SO ORDERED.23 Petitioner filed a Motion for Reconsideration24 on May 21, 2004, which the CA denied in its Resolution dated August 12, 2004.25 Petitioner, thus, filed the instant petition for review on certiorari26 on September 7, 2004, assigning the following errors: 1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED THE RESULT OF THE CASE. 2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE CHILDREN.27 The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is entitled to adopt the minors without the written consent of their biological mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed by the petitioner-adopters children sufficiently complies with the law; and (c) whether or not petitioner is financially capable of supporting the adoptees. The Courts Ruling The petition is denied for lack of merit. It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,28 that adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should thus be sustained to promote and fulfill these noble and compassionate objectives of the law.29 However, in Cang v. Court of Appeals,30 the Court also ruled that the liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Courts position should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to approve adoption proceedings is not to be anchored solely

on best interests of the child but likewise, with due regard to the natural rights of the parents over the child.31 Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides: Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required: (a) The adoptee, if ten (10) years of age or over; (b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; (c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any; (d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living with said adopter and the latters souse, if any; (e) The spouse, if any, of the person adopting or to be adopted. The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption.32 Clearly, the written consent of the biological parents is indispensable for the validity of a decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and re-established in adoptive parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the adoption. We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is incredible that the latter would not require Amelia Ramos to execute a Written Consent to the adoption of her minor children. Neither did the petitioner bother to present Amelia Ramos as witness in support of the petition. Petitioner, nonetheless, argues that the written consent of the biological mother is no longer necessary because when Amelias husband died in 1990, she left for Italy and never came back. The children were then left to the guidance and care of their paternal grandmother. It is the paternal relatives, including petitioner, who provided for the childrens financial needs. Hence, Amelia, the biological mother, had effectively abandoned the children. Petitioner further contends that it was by twist of fate that after 12 years, when the petition for adoption was pending with the RTC that Amelia and her child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD social worker, was able to meet her, and during the meeting, Amelia intimated to the social worker that she conformed to the adoption of her three children by the petitioner.

Petitioners contention must be rejected. When she filed her petition with the trial court, Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written consent of the biological parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother of the minors had indeed abandoned them, she should, thus have adduced the written consent of their legal guardian. Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct which evinces a settled purpose to forego all parental duties.33 The term means neglect and refusal to perform the filial and legal obligations of love and support. If a parent withholds presence, love, care, the opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in effect, abandons the child.34 Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.35To dispense with the requirement of consent, the abandonment must be shown to have existed at the time of adoption.36 In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim that Amelia Ramos had abandoned her children. Petitioners testimony on that matter follows: Q Where is the mother of these three children now? A She left for Italy on November 20, 1990, sir.

Q When did your mother left for Italy? A After my father died, sir. Q How old were you when your mother left for Italy in 1990? A Two years old, sir. Q At the time when your mother left for Italy, did your mother communicate with you? A No, sir.38 However, the Home Study Report of the DSWD Social Worker also stated the following: IV. Background of the Case: xxxx Since the mother left for Italy, minors siblings had been under the care and custody of their maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves as their guardian. The petitioner, together with her children and other relatives abroad have been supporting the minor children financially, even during the time that they were still living with their natural parents. Their mother also sends financial support but very minimal.39 xxxx

Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated with the family? A None, sir.

V. Background Information about the Minors Being Sought for Adoption: xxxx

Q How about with her children? A None, sir. Q Do you know what place in Italy did she reside? A I do not know, sir. xxxx Q Did you receive any news about Amelia Ramos? A What I know, sir, was that she was already married with another man. Q From whom did you learn that? A From others who came from Italy, sir. Q Did you come to know whether she has children by her second marriage? A Yes, sir, she got two kids.37 Elaine, the eldest of the minors, testified, thus: Q Where is your mother now? A In Italy, sir. In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy and comfortable life. After the death of her husband, her in-laws which include the petitioner had continued providing support for them. However being ashamed of just depending on the support of her husbands relatives, she decided to work abroad. Her parents are also in need of financial help as they are undergoing maintenance medication. Her parents mortgaged their farm land which she used in going to Italy and worked as domestic helper. When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her mother-in-law who returned home for good, however she died on November 2000. While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in partners since 1995 and have a son John Mario who is now 2 years old. The three of them are considered Italian residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and As the eldest she tries her best to be a role model to her younger siblings. She helps them in their lessons, works and has fun with them. She also encourages openness on their problems and concerns and provides petty counseling. In serious problems she already consult (sic) her mother and petitioner-aunt.40

his wife is amenable to it. He is providing his legitimate family regular support. Amelia also sends financial support ranging from P10,000P15,000 a month through her parents who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other paternal relatives are continuously providing support for most of the needs & education of minors up to present.41 Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently sever their motherchild relationship. She was merely impelled to leave the country by financial constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly obligations of rearing the children to her now deceased mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for serious personal problems. Likewise, Amelia continues to send financial support to the children, though in minimal amounts as compared to what her affluent in-laws provide. Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing all legal ties between the biological mother, Amelia, and the adoptees, and that the same shall then be vested on the adopter.42 It would thus be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his/her children. More proof has to be adduced that Amelia has emotionally abandoned the children, and that the latter will not miss her guidance and counsel if they are given to an adopting parent.43 Again, it is the best interest of the child that takes precedence in adoption. Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. The offer of evidence is necessary because it is the duty of the Court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such document is offered, the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings thereof as exhibits do not confer any evidentiary weight on documents unless formally offered.44 Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of Consent purportedly executed by her children; the authenticity of which she, likewise, failed to prove. The joint written consent of petitioners children45 was notarized on January 16, 2002 in Guam, USA; for it to be treated by the Rules of Court in the same way as a document notarized in this country it needs to comply with Section 2 of Act No. 2103,46 which states: Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be considered authentic if the acknowledgment and authentication are made in accordance with the following requirements: (a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, charg d affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done.

(b) The person taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him, and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister, secretary of legation, charg de affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited. The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and seal, if any, are genuine. As the alleged written consent of petitioners legitimate children did not comply with the afore-cited law, the same can at best be treated by the Rules as a private document whose authenticity must be proved either by anyone who saw the document executed or written; or by evidence of the genuineness of the signature or handwriting of the makers.47 Since, in the instant case, no further proof was introduced by petitioner to authenticate the written consent of her legitimate children, the same is inadmissible in evidence. In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the children and is only relying on the financial backing, support and commitment of her children and her siblings.48 Petitioner contradicts this by claiming that she is financially capable as she has worked in Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children and siblings have likewise committed themselves to provide financial backing should the need arise. The OSG, again in its comment, banks on the statement in the Home Study Report that "petitioner has limited income." Accordingly, it appears that she will rely on the financial backing of her children and siblings in order to support the minor adoptees. The law, however, states that it is the adopter who should be in a position to provide support in keeping with the means of the family. Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child or children, in keeping with the means of the family. According to the Adoption Home Study Report49 forwarded by the Department of Public Health & Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting her legitimate children, as the latter are already adults, have individual lives and families. At the time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioners main intention in adopting the children is to bring the latter to Guam, USA. She

has a house at Quitugua Subdivision in Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption proceedings. Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the financial aspect of rearing the three children in the US. She only has a part-time job, and she is rather of age. While petitioner claims that she has the financial support and backing of her children and siblings, the OSG is correct in stating that the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the latter. Moreover, the records do not prove nor support petitioners allegation that her siblings and her children are financially able and that they are willing to support the minors herein. The Court, therefore, again sustains the ruling of the CA on this issue. While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew, there are legal infirmities that militate against reversing the ruling of the CA. In any case, petitioner is not prevented from filing a new petition for adoption of the herein minors. WHEREFORE, premises considered, the petition is hereby DENIED. SO ORDERED.