UST GOLDEN NOTES 2011
b. FUNCTIONS OF THE RTC
Q: What is the function of the RTC in inter-country
adoption?
A: The Court, after finding that the petition is
sufficient in form and substance and a proper case
for inter-country adoption, shall immediately
transmit the petition to the ICAB for appropriate
action. (Sec. 32, Rule on Adoption).
The application for adoption shall be filed with the
RTC having jurisdiction over the child, or the Inter-
Country Adoption Board, through an intermediate
agency, whether governmental or an authorized
and accredited agency, in the country of the
prospective adoptive parents.
c. BEST INTEREST OF THE MINOR STANDARD
Q: What is the Best Interest Standard?
A: It refers to the totality of the circumstances and
conditions as are most congenial to the survival,
protection, and feelings of security of the minor and
most encouraging to his physical, psychological and
emotional development. It also means the least
detrimental available alternative for safeguarding
the growth and development of the minor. (Sec. 14)
M. WRIT OF HABEAS CORPUS
Q: What is writ of habeas corpus?
A: It is a writ directed to the person detaining
another and commanding him to produce the body
of the prisoner at a certain time and place with the
day and the cause of his caption and detention to
do, submit to and receive whatsoever, the court or
judge awarding the writ shall consider in that
behalf.
Note: It is regarded as palladium of liberty, a
prerogative writ which does not issue as a matter of
right but in the sound discretion of the court or judge.
Q: To what instances may habeas corpus extend?
A:
1. Cases of illegal confinement or detention
by which a person is deprived of his
liberty; and
2. Cases by which the rightful custody of the
person is withheld from the person
entitled thereto. (Sec. 1, Rule 102)
Note: To justify the grant of the petition, the restraint
of liberty must be an illegal and involuntary
deprivation of freedom of action. The illegal restraint
196 REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
of liberty must be actual and effective, not merely
nominal or moral. (Ilusorio v. Bildner, G.R. Nos.135789-
90, May 16, 2000)
Q: What is the nature of the petition?
A: It is an inquisition by the government at the
suggestion and instance of an individual, most
probably, but still in the name and capacity of the
sovereign is a proceeding in rem. It is also instituted
for the purpose of fixing the status of a person and
that there can be no judgment entered against
anybody since there is no real plaintiff and
defendant. (Alimpoos v. CA, G.R. No. L-27331, July
30, 1981)
Note: In habeas corpus cases, the judgment in favor of
the applicant cannot contain a provision for damages.
1. CONTENTS OF THE PETITION
Q: What should a verified petition for a writ of
habeas corpus contain?
A:
1. That the person in whose behalf the
application is made is imprisoned or
restrained of his liberty;
2. The officer or name of the person by
whom he is so imprisoned or restrained;
or, if both are unknown or uncertain, such
officer or person may be described by an
assumed appellation, and the person who
is served with the writ shall be deemed
the person intended;
3. The place where he is so imprisoned or
restrained, if known;
4. A copy of the commitment or cause of
detention of such person, if it can be
procured without impairing the efficiency
of the remedy; or, if the imprisonment or
restraint is without any legal authority,
such fact shall appear. (Sec. 3, Rule 102)
2. CONTENTS OF THE RETURN
Q: What are the contents of the return?
A: When the person to be produced is imprisoned
or restrained by an officer, the person who makes
the return shall state therein, and in other cases the
person in whose custody the prisoner is found shall
state, in writing to the court or judge before whom
the writ is returnable, plainly and unequivocably:
1. Whether he has or has not the party in his
custody or power, or under restraint;
2. If he has the party in his custody or
power, or under restraint, the authority
 SPECIAL PROCEDINGS
and the true and whole cause thereof, set
forth at large, with a copy of the writ,
order, execution, or other process, if any,
upon which the party is held;
3. If the party is in his custody or power or is
restrained by him, and is not produced,
particularly the nature and gravity of the
sickness or infirmity of such party by
reason of which he cannot, without
danger, be brought before the court or
judge;
4. If he has had the party in his custody or
power, or under restraint, and has
transferred such custody or restraint to
another, particularly to whom, at what
time, for what cause, and by what
authority such transfer was made. (Sec.
10, Rule 102)
3. DISTINGUISH PEREMPTORY WRIT FROM
PRELIMINARY CITATION
Q: What is the difference between a preliminary
citation and a peremptory writ?
A:
1. Preliminary citation is issued when a
government officer has the person in his
custody, the illegality of which is not
patent, to show cause why the writ of
habeas corpus should issue.
2. Peremptory writ is issued when the cause
of the detention appears to be patently
illegal and the non-compliance therewith
is punishable. (Lee Yick Hon v. Collector of
Customs, G.R. No. 16779, Mar. 30, 1921).
4. WHEN NOT PROPER/APPLICABLE
Q: When is habeas corpus not applicable?
A:
1. When detained under a lawful cause.
2. In case of invasion or rebellion or when
public safety requires it, under Art. III,
Sec. 15, 1987 Constitution.
3. When in case of invasion or rebellion or
when public safety requires it, for a
period not exceeding 60 days, under Art.
7, Sec. 18, 1987 Constitution.
4. If the jurisdiction of the court to try the
person detained appears after the writ is
allowed. (Sec. 4, Rule 102).
5. If the person is in custody of an officer
under process issued by a court or by
virtue of a judgment or order of a court of
record which has jurisdiction to issue the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
process, render the judgment, or make
the order. (Sec. 4, Rule 102).
6. If the person is charged or convicted of an
offense in the Philippines. (Sec. 4, Rule
102).
7. If the person is suffering imprisonment
under lawful judgment. (Sec. 4, Rule 102).
8. In case of three-day retention of a suspect
for three days without charge, pursuant
to Sec. 18 of the Human Security Act.
9. When person is serving final sentence
imposed by court.
10. For asserting or vindicating a denial of
right to bail.
11. For correcting errors in appreciation of
facts or of law.
Note: Issuance of a writ of habeas corpus may not lie
in order to revive a settled issue of the validity of the
writ of preliminary injunction issued in an agrarian
case allegedly on the ground of the existence of a
tenancy relationship between the parties arising from
their arrest for having assaulted persons in authority.
(Bernarte v. CA, G.R. No. 107741, Oct. 18, 1996).
Loss of the records of the case after petitioner, by his
own admission, was already convicted by the trial
court of the offense charged will bar the issuance of a
writ of habeas corpus. The loss must have occurred
prior to the filing of the information against him. (Feria
v. CA, G.R. No. 122954, Feb. 15, 2000).
It has been noted that the ORDER contains a provision
enjoining the prosecution of the Accused in the
Criminal Case. That is error. If the Accused was illegally
detained because he was arrested without a
preliminary examination, what should have been done
was to set aside the warrant of arrest and order the
discharge of the Accused, but without enjoining the
Municipal Judge from conducting a preliminary
examination and afterwards properly issuing a warrant
of arrest. Habeas Corpus proceedings are not meant to
determine criminal responsibility. (Alimpoos v. CA, G.R.
No. L-27331, July 30, 1981).
In case of an illegal arrest, the petition for a writ
of habeas corpus will still not prosper if the detention
has become legal by virtue of the filing before the trial
court of the complaint against him and by the issuance
of an order denying bail. (Velasco v. CA, G.R. No.
118644, July 7, 1995).
Habeas Corpus may be had to give retroactive effect to
a previous ruling of the Supreme Court favorable to
the accused when the accused has already served the
full term for a crime which the Court has declared non-
existent. (Gumabon v. Director of the Bureau of
Prisons, G.R. No. L-30026, Jan. 30, 1971). However, it
will not lie if the penalty of imprisonment imposed by
the court is longer than that allowed by law. Such error
of judgment may be corrected by appeal or by the
197
UNIVERSITY OF SANTO TOMAS
Facultad de Derecho Civil
 UST GOLDEN NOTES 2011
President. (Pomeroy v. Director of Prisons, G.R. No. L-
14284, Feb. 24, 1960).
The writ of habeas corpus cannot be issued in cases in
which the Bureau of Immigration has duly ordered the
deportation of undocumented aliens, specifically those
found guilty of illegally entering the Philippines with
the use of tampered and previously cancelled
passports. (Tung Chin Hui v. Rodriguez, G.R. No.
141938, April 2, 2001).
Q: May a wife secure a writ of habeas corpus to
compel her husband to live with her in the
conjugal home?
A: No. Marital rights including coverture and living
in conjugal dwelling may not be enforced by the
extra-ordinary writ of habeas corpus. 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. That is
a matter beyond judicial authority and is best left to
the man and womans free choice. (Ilusorio v.
Bildner, G.R. No. 139789, May 12, 2000).
5. WHEN WRIT DISALLOWED/DISCHARGED
Q: In what instances shall a writ be disallowed or
discharged?
A:
1. In cases of supervening events such as
issuance of a process and filing of an
information (Velasco v. CA, G.R. No.
118844, July 7, 1995);
2. In cases of improper arrest or lack of
preliminary investigation (Paredes v.
Sandiganbayan, G.R. No. 89989, Jan. 28,
1991); and
3. In cases of invalid arrest due to
deportation cases cured by filing of
deportation proceedings (Santos v.
Commissioner of Immigration, G.R. No.L-
25694, Nov. 29, 1976).
Note: In all petitions for habeas corpus, the court must
inquire into every phase and aspect of petitioners
detention- from the moment petitioner was taken into
custody up to the moment the court passes upon the
merits of the petition and only after such a scrutiny
can the court satisfy itself that the due process clause
of the Constitution has been satisfied. (Bernarte v. CA,
G.R. No. 107741, Nov. 18, 1996)
When the court or judge has examined into the
cause of caption and restraint of the prisoner, and
is satisfied that he is unlawfully imprisoned or
restrained, he shall order his discharge from
confinement, but such discharge shall not be
198 REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
effective until a copy of the order has been served
on the officer or person detaining the prisoner. If
the officer or person detaining the prisoner does
not desire to appeal, the prisoner shall be released.
6. DISTINGUISH FROM WRIT OF AMPARO AND
HABEAS DATA
Q: Distinguish Writ of Habeas Corpus from Writ of
Amparo and Writ of Habeas Data.
A: Refer to page 205.
7. RULES ON CUSTODY OF MINORS AND WRIT OF
HABEAS CORPUS IN RELATION TO CUSTODY OF
MINORS (AM No. 03-04-04-SC)
Q: Who may file a petition for custody of minor?
A: Any person may file a verified petition for the
rightful custody of a minor. The party against whom
it may be filed shall be designated as the
respondent. (Sec. 2, AM No. 03-04-04-SC).
Q: Where should a petition for custody of minor
be filed?
A: Family courts in the province or city where the
petitioner resides or where the minor may be
found. (Sec. 3, AM No. 03-04-04-SC)
Q: Whether Family Courts have concurrent
jurisdiction with the Supreme Court and the Court
of Appeals in petitions where the custody of minors
is at issue?
A: Yes. The Court of Appeals and Supreme Court
have concurrent jurisdiction with family courts in
habeas corpus cases where the custody of minors is
involved. The provisions of RA 8369 must be read
in harmony with 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. (Thornton v. Thornton, G.R. No.
154598, Aug. 16, 2004).
Q: What are the contents of the verified petition?
A:
1. The personal circumstances of the petitioner
and of the respondent.
2. The name, age and present whereabouts of
the minor and his or her relationship to the
petitioner and the respondent.
3. The material operative facts constituting
deprivation of custody.
 SPECIAL PROCEDINGS
4. Such other matters which are relevant to
the custody of the minor.
5. Certificate of Non-Forum Shopping signed
personally by the petitioner. (Sec. 4, AM No.
03-04-04-SC)
Q: When is a child not allowed to be separated
from the mother?
A: Under Article 213 (2) of the Family Code, no child
under 7 years of age shall be separated from the
mother, unless the court finds compelling reasons
to order otherwise.
Q: When will the court take into consideration the
choice of the child?
A: The child, who is over 7 years of age, may choose
which parent he prefers to live with, unless the
parent so chosen is unfit to take charge of the child
by reason of moral depravity, habitual drunkenness,
incapacity, or poverty. (Art. 213, Family Code)
Note: If both parents are unfit, the court may
designate other persons or an institution to take
charge of the child, such as the paternal or maternal
grandparent of the child, or his oldest brother or sister,
or some reputable and discreet person.
Q: What should be considered in awarding the
custody of minor?
A: The court shall consider the best interests of the
minor and shall give paramount consideration to his
material and moral welfare. (Sec. 14, AM No. 03-04-
04-SC).
Q: What is the Best Interest Standard?
A: It refers to the totality of the circumstances and
conditions as are most congenial to the survival,
protection, and feelings of security of the minor and
most encouraging to his physical, psychological and
emotional development. It also means the least
detrimental available alternative for safeguarding
the growth and development of the minor. (Sec. 14,
AM No. 03-04-04-SC)
Q: What are the other factors that the court may
consider in awarding custody?
A:
1. Any extrajudicial agreement which the
parties may have bound themselves to
comply with respecting the rights of the
minor to maintain direct contact with the
non custodial parent on a regular basis,
except when there is an existing threat or
danger of physical, mental, sexual or
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
emotional violence which endangers the
safety and best interests of the minor;
2. The desire and ability of one parent to
foster an open and loving relationship
between the minor and the other parent;
3. The health, safety and welfare of the
minor;
4. Any history of child or spousal abuse by
the person seeking custody or who has
had any filial relationship with the minor,
including anyone courting the parent;
5. The nature and frequency of contact with
both parents;
6. Habitual use of alcohol, dangerous drugs
or regulated substances;
7. Marital misconduct;
8. The most suitable physical, emotional,
spiritual, psychological and educational
environment for the holistic development
and growth of the minor; and
9. The preference of the minor over seven
years of age and of sufficient
discernment, unless the parent chosen is
unfit. (Sec. 14, AM No. 03-04-04-SC)
Q: Would a decision rendering judgment on the
issue of custody of a child in a nullity of marriage
case constitute as res judicata on a pending
habeas corpus case on the same matter?
A: Yes. By filing the case for declaration of nullity of
marriage petitioner automatically submitted the
issue of the custody of the child as an incident
thereof. Section 21 of the "Rule on Declaration Of
Absolute Nullity Of Void Marriages and Annulment
of Voidable Marriages" directs the court taking
jurisdiction over a petition for declaration of nullity
of marriage to resolve the custody of common
children, by mere motion of either party, it could
only mean that the filing of a new action is not
necessary for the court to consider the issue of
custody of a minor. (Yu v. Yu, G.R. No. 164915,
March 10, 2006).
Q: What are the stages in the pre-trial?
A:
1. First stage the parties may agree on the
custody of the minor.
2. Second stage the trial court will direct
the parties to secure the services of a
mediator if the parties do not agree on
the custody of the minor. (Sec. 12, AM
No. 03-04-04-SC)
Note: If the second stage does not produce an
amicable settlement, the court will proceed with the
pre-trial conference. Pre-trial is mandatory. (Sec. 12,
AM No. 03-04-04-SC)
199
UNIVERSITY OF SANTO TOMAS
Facultad de Derecho Civil
 UST GOLDEN NOTES 2011
Q: What is the order of preference in awarding
provisional custody?
A: As far as practicable, the order of preference
shall be observed:
1. Both parents jointly;
2. Either parent, taking into account all
relevant considerations, especially the
choice of the minor over seven years of
age and of sufficient discernment, unless
the parent chosen is unfit;
3. The grandparent, or if there are several
grandparents, the grandparent chosen by
the minor over seven years of age and of
sufficient discernment, unless the
grandparent chosen is unfit or
disqualified;
4. The eldest brother or sister over twenty-
one years of age, unless he or she is unfit
or disqualified;
5. The actual custodian of the minor over
twenty-one years of age, unless the
former is unfit or disqualified; or
6. Any other person or institution the court
may deem suitable to provide proper care
and guidance for the minor.
Q: May the court award temporary visitation
rights in the provisional custody order?
A: Yes, the court shall provide in its order awarding
provisional custody appropriate visitation rights to
the non-custodial parent or parents, unless the
court finds said parent or parents unfit or
disqualified.
Q: What should the court award after the hearing?
A:
1. Care, custody and control of each child as
will be for its best interest.
2. Court may order either or both parents to
support or help support the child,
irrespective of who may be its custodian.
The fact that the father has recognized
the child may be a ground for ordering
him to give support, but not for giving him
custody of the child.
3. Court may permit the parent who is
deprived of care and custody to visit the
child or have temporary custody thereof
in an order that is just and reasonable.
(Sec. 18, AM No. 03-04-04-SC)
Q: May the court award the custody of the minors
based merely on psychiatric report and agreement
of the parties?
200 REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
A: No, the court should conduct thorough trial on
all matters relevant to the welfare and interests of
the child. (Laxamana v. Laxamana, G.R. No. 144763,
Sept. 3, 2002)
Q: Can the minor child be brought out of the
country without leave from court while the
petition is pending?
A: The minor child subject of the petition shall not
be brought out of the country without prior order
from the court while the petition is pending.
The court, motu proprio or upon application under
oath, may issue ex parte a hold departure order,
addressed to the Bureau of Immigration and
Deportation, directing it not to allow the departure
of the minor from the Philippines without the
permission of the court. (Sec. 16, AM No. 03-04-04-
SC)
N. WRIT OF AMPARO (AM No. 07-9-12-SC)
Q: What is writ of amparo?
A: It is a remedy available to any person whose
right to life, liberty and security is violated or
threatened with violation by an unlawful act or
omission of a public official or employee, or of a
private individual or entity. The writ shall cover
extralegal killings and enforced disappearances or
threats thereof. (Sec. 1)
Note: The remedy provides rapid judicial relief as it
partakes of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative
responsibility requiring substantial evidence that will
require full and exhaustive proceedings. (Deliberations
of the Committee on the Revision of the Rules of Court,
Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and Sept.
20, 2008)
Q: What are extralegal killings?
A: Killings committed without due process of law,
legal safeguards or judicial proceedings. (Secretary
of National Defense v. Manalo, G.R. No. 180906,
Oct. 7, 2008) These include the illegal taking of life
regardless of the motive, summary and arbitrary
executions, salvaging even of suspected criminals,
and threats to take the life of persons who are
openly critical of erring government officials and
the like.
 SPECIAL PROCEDINGS
Q: What are enforced disappearances?
A: An arrest, detention or abduction of a person by
a government official or organized groups or private
individual acting with the direct or indirect
acquiescence of the government; the refusal of the
State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons
outside the protection of law. (Secretary of National
Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)
1. COVERAGE
Q: What is the scope of the Writ of amparo?
A: It covers extralegal killings and enforced
disappearances or threats thereof. It is available to
any person whose right to life, liberty and security
is violated or threatened with violation by an
unlawful act or omission of a public official or
employee, or of a private individual or entity.
The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty
and security is violated or threatened with violation
by an unlawful act or omission of a public official or
employee, or of a private individual or entity. The
writ shall cover extralegal killings and enforced
disappearances or threats thereof.
2. DISTINGUISH FROM HABEAS CORPUS AND
HABEAS DATA
Q: Distinguish Writ of Habeas Corpus from Writ of
Amparo and Writ of Habeas Data.
A: Refer to page 205.
3. DIFFERENCES BETWEEN WRIT OF AMPARO AND
SEARCH WARRANT
Q: What is the difference between a Writ of
Amparo from a Search Warrant?
A: In the October 7, 2008 decision of the Supreme
Court in the case of The Secretary of National
Defense vs. Manalo, the Court said that the
production order under the Amparo Rule should
not be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a
protection of the people from the unreasonable
intrusion of the government, not a protection of the
government from the demand of the people such
as respondents.
Instead, the Amparo production order may be
likened to the production of documents or things
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
under Section 1, Rule 27 of the Rules of Civil
Procedure which provides in relevant part, viz:
Section 1. Motion for production or inspection
order. Upon motion of any party showing good
cause therefor, the court in which an action is
pending may (a) order any party to produce
and permit the inspection and copying or
photographing, by or on behalf of the moving
party, of any designated documents, papers,
books of accounts, letters, photographs,
objects or tangible things, not privileged,
which constitute or contain evidence material
to any matter involved in the action and which
are in his possession, custody or control.
A search warrant is a court order issued by a judge
or magistrate judge that authorizes the law
enforcement officers to conduct a search of a
person or location for evidence of a crime and to
confiscate evidence if it is found. A writ of amparo
is a form of constitutional relief.
4. WHO MAY FILE
Q: Who may file the petition?
A: Any aggrieved party may file the petition. It may
also be filed by any qualified person or entity in the
following order:
1. Any member of the immediate family,
namely: the spouse, children and parents
of the aggrieved party;
2. Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in
the preceding paragraph; or
3. Any concerned citizen, organization,
association or institution, if there is no
known member of the immediate family
or relative of the aggrieved party.
NOTE: The filing of a petition by the aggrieved party
suspends the right of all other authorized parties to file
similar petitions. Likewise, the filing of the petition by
an authorized party on behalf of the aggrieved party
suspends the right of all others, observing the order
established herein. (Sec. 2).
5. CONTENTS OF RETURN
Q: What is the content of the verified return?
A: Within seventy-two (72) hours after service of
the writ, the respondent shall file a verified written
return together with supporting affidavits which
shall, among other things, contain the following:
201
UNIVERSITY OF SANTO TOMAS
Facultad de Derecho Civil
 UST GOLDEN NOTES 2011

1. The lawful defenses to show that the
respondent did not violate or threaten
with violation the right to life, liberty and
security of the aggrieved party, through
any act or omission;
2. The steps or actions taken by the
respondent to determine the fate or
whereabouts of the aggrieved party and
the person or persons responsible for the
threat, act or omission;
3. All relevant information in the possession
of the respondent pertaining to the
threat, act or omission against the
aggrieved party; and
4. If the respondent is a public official or
employee, the return shall further state
the actions that have been or will still be
taken:
a. to verify the identity of the aggrieved
party;
b. to recover and preserve evidence
related to the death
disappearance of the person
identified in the petition which may
aid in the prosecution of the person
or persons responsible;
c. to identify witnesses and obtain
statements from them concerning
the death or disappearance;
d. to determine the cause, manner,
location and time of death or
disappearance as well as any pattern
or practice that may have brought
about the death or disappearance;
e. to identify and apprehend the
person or persons involved in the
death or disappearance; and
f. to bring the suspected offenders
before a competent court.
5. Other matters relevant to the
investigation, its resolution and the
prosecution of the case.
Note: A general denial of the allegations in the petition
shall not be allowed.
6. EFFECTS OF FAILURE TO FILE A RETURN
A: The omnibus waiver rules states that all defenses
not raised in the return are deemed waived. (Sec.
10).
8. PROCEDURE FOR HEARING
Q: What is the nature of the hearing?
A: The hearing on the petition shall be summary.
However, the court, justice or judge may call for a
preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations
and admissions from the parties. (Sec. 12).
Q: How long should the hearing last?
A: The hearing shall be from day to day until
completed and given the same priority as petitions
for habeas corpus. (Sec. 13)
9. INSTITUTION OF SEPARATE ACTION
or
Q: May a separate action be filed after filing a
petition for a writ of amparo?
A: Yes. It does not preclude the filing of separate
criminal, civil or administrative actions. (Sec. 21)
10. EFFECT OF FILING A CRIMINAL ACTION
Q: What is the effect if a prior criminal action has
been filed?
A: No petition for a writ of amparo shall be filed.
The reliefs under the writ shall be available by
motion in the criminal case. (Sec. 22)
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
amparo.
11. CONSOLIDATION
Q: What happens if criminal action is filed
subsequent to a petition for writ of amparo?
A: The petition for the writ shall be consolidated
with criminal action. (Sec. 23)

Q: What happens when the respondent fails to file Q: What happens if a criminal action and a
a return? separate civil action are filed subsequent to a
petition for writ of amparo?
A: The court, justice or judge shall proceed to hear
the petition ex parte. (Sec. 9) A: The petition for writ of amparo shall be
consolidated with the criminal action.
7. OMNIBUS WAIVER RULE
Note: After consolidation, the procedure under this
Q: What is the Omnibus Waiver Rule? Rule shall continue to apply to the disposition of the
reliefs in the petition.

202 REMEDIAL LAW TEAM:

ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
 SPECIAL PROCEDINGS

12. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT

Q: What are interim reliefs available?

A:
PETITIONER RESPONDENT
1. Temporary protection order;
2. Inspection order; 1. Inspection order;
3. Production order; 2. Production order. (Sec. 15)
4. Witness protection order. (Sec. 14)

HOW INITIATED THE COURT SHALL

Temporary Upon motion or motu proprio Order the petitioner or the aggrieved party and any
Protection Order member of the immediate family be protected in a
government agency or by an accredited person or
private institution capable of keeping and securing their
safety. If the petitioner is an organization, association or
institution referred to in Section 3(c) of this Rule, the
protection may be extended to the officers involved.
Inspection Order Upon verified motion and after due Order any person in possession or control of a
hearing designated land or other property, to permit entry for
the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or
operation thereon.
Production Order Upon verified motion and after due order any person in possession, custody or control of
hearing any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute
or contain evidence relevant to the petition or the
return, to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
Witness Upon Motion or Motu Proprio refer the witnesses to the Department of Justice for
Protection Order admission to the Witness Protection, Security and
Benefit Program, pursuant to Republic Act No. 6981.

The court, justice or judge may also refer the witnesses

to other government agencies, or to accredited persons
or private institutions capable of keeping and securing
their safety.

13. QUANTUM OF PROOF IN APPLICATION FOR regularly performed to evade responsibility or

ISSUANCE OF WRIT OF AMPARO liability.

Q: What is the quantum of evidence required in a
petition for a writ of amparo?
A: The parties shall establish their claims by
substantial evidence. (Sec. 17)
The respondent who is a private individual or entity
must prove that ordinary diligence as required by
the applicable laws, rules and regulations was
observed in the performance of duty.
The respondent who is a public official or employee
must prove that extraordinary diligence as required
by applicable laws, rules and regulations was
observed in the performance of duty.
The respondent public official or employee cannot
invoke the presumption that official duty has been
Note: No writ of amparo may be issued unless there is
a clear allegation of the supposed factual and legal
basis of the right sought to be protected. A threatened
demolition of a dwelling by virtue of a final judgment
of the court is not included among the enumeration of
rights as stated in the above-quoted Section 1 for
which the remedy of a writ of amparo is made
available. Their claim to their dwelling, assuming they
still have any despite the final and executory judgment
adverse to them, does not constitute right to life,
liberty and security. There is, therefore, no legal basis
for the issuance of the writ of amparo. (Canlas v.
Napico Homeowners Association, G.R. No. 182795,
June 5, 2008).
Q: Raymond and Reynaldo Manalo escaped from
captivity and surfaced of the armed forces. But
while the two admit that they are no longer in

203
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
 UST GOLDEN NOTES 2011

detention and are physically free, they assert, that property, and may be ordered destroyed by the
they are not free in every sense of the word as court.
their movements continue to be restricted for fear
that the people they have named in their judicial 3. DISTINGUISH FROM HABEAS CORPUS AND WRIT
affidavits and testified against are still at large and OF AMPARO
have not held accountable. The Manalo brothers
claim that they are under the threat of being once Q: Distinguish Writ of Habeas Corpus from Writ of
again abducted, kept captive or even killed, which Amparo and Writ of Habeas Data.
constitute a direct violation of their right to
security of person. They filed a petition for writ of A: Refer to page 205.
amparo. Should the court granted the petition?
A: Yes, the Manalo brothers right to security as 4. WHO MAY FILE
freedom from threat is violated by the apparent
threat to their life, liberty and security of person. Q: Who may file the petition?
Their right to security as a guarantee of protection
by the government is likewise violated by the A: Any aggrieved party may file a petition for the
ineffective investigation and protection on the part writ of habeas data. However, in cases of extralegal
of the military. In blatant violation of guarantees to killings and enforced disappearances, the petition
life, liberty and security, these rights are snuffed may be filed by:
out from victims of extralegal killings and enforced
disappearances. The writ of amparo is a tool that 1. Any member of the immediate family of
gives voice to preys of silent guns and prisoners the aggrieved party, namely: the spouse,
behind secret walls. (Secretary of National Defense children and parents; or
v. Manalo, G.R. No. 180906, Oct. 7, 2008) 2. In default thereof, any ascendant,
descendant or collateral relative of the
O. WRIT OF HABEAS DATA (AM No. 08-1-16-SC) aggrieved party within the fourth civil
degree of consanguinity or affinity. (Sec.
1. SCOPE OF WRIT 2)

Q: What is the scope of the writ? 5. CONTENTS OF PETITION

A: The writ covers instances wherein a persons Q: What are the contents of the verified petition?
right to privacy in life, liberty or security is violated
or threatened by an unlawful act or omission of a A:
public official or employee, or of a private individual 1. The personal circumstances of the
or entity engaged in the gathering, collecting or petitioner and the respondent
storing of data or information regarding the person, 2. The manner the right to privacy is
family, home and correspondence of the aggrieved violated or threatened and how it affects
party. the right to life, liberty or security of the
aggrieved party
2. AVAILABILITY OF WRIT 3. The actions and recourses taken by the
petitioner to secure the data or
Q: What is writ of habeas data? information
4. The location of the files, registers or
A: It is a remedy available to any person whose databases, the government office, and
right to privacy in life, liberty or security is violated the person in charge, in possession or in
or threatened by an unlawful act or omission of a control of the data or information, if
public official or employee, or of a private individual known
or entity engaged in the gathering, collecting or 5. The reliefs prayed for, which may include
storing of data or information regarding the person, the updating, rectification, suppression or
family, home and correspondence of the aggrieved destruction of the database or
party. It is a procedure designed to safeguard information or files kept by the
individual freedom from abuse in the information respondent. In case of threats, the relief
age. (Sec. 1) may include a prayer for an order
enjoining the act complained of.
Information or data written, tends to threaten 6. Such other relevant reliefs as are just and
violation of constitutional right to life, liberty or equitable. (Sec. 6)

204 REMEDIAL LAW TEAM:

ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
 SPECIAL PROCEDINGS
6. CONTENTS OF RETURN
Q: What should the respondent allege in his
verified return?
A: The respondent, within 5 working days from the
service of the writ, unless reasonably extended by
the Court, shall allege:
1. The lawful defenses such as national
security, state secrets, privileged
communication, confidentiality of the
source of information of media and
others;
2. In case of respondent in charge, in
possession or in control of the data or
information subject of the petition:
a. A disclosure of the data or
information about the petitioner, the
nature of such data or information,
and the purpose for its collection;
b. The steps or actions taken by the
respondent to ensure the security
and confidentiality of the data or
information; and
c. The currency and accuracy of the
data or information held; and
3. Other allegations relevant to the
resolution of the proceeding.
Note: A general denial of the allegations in the petition
shall not be allowed.
7. INSTANCES WHEN PETITION BE HEARD IN
CHAMBERS
Q: What are the instances when a petition for a
writ of habeas data may be heard in chambers?
A: It may be conducted where the respondent
invokes the defense that the release of the data or
information in question shall compromise national
security or State secrets, or when the data or
security and that it cannot be divulged to the public
due to its nature or privileged character. (Sec. 12)
8. CONSOLIDATION
Q: What happens when a criminal and/or civil
action is filed after the filing of the petition for
writ of habeas data?
Q: What are the differences between the writs?
A:
HABEAS CORPUS AMPARO
Literal interpretation
You have the body To protect You have the data
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
A:
1. When a subsequent criminal action is
filed, the Petition for the writ of Habeas
Data shall be consolidated with the
criminal action.
2. When a criminal action and a separate
civil action are filed subsequent to a
petition for a writ of habeas data, the
petition shall be consolidated with the
criminal action.
Note: After consolidation, the procedure under the
Rule shall continue to govern the disposition of the
reliefs in the petition. (Sec. 21)
9. EFFECT OF FILING A CRIMINAL ACTION
Q: What is the effect of an institution of a criminal
action?
A: No separate petition for the writ shall be filed.
The reliefs under the writ shall be available to an
aggrieved party by motion in the criminal case. (Sec.
22).
10. INSTITUTION OF SEPARATE ACTION
Q: Does the filing of a petition for the writ of
habeas data prohibit the filing of separate
criminal, civil or administrative actions?
A: The filing of a petition for the writ of habeas data
shall not preclude the filing of separate criminal,
civil or administrative actions. (Sec. 20).
11. QUANTUM OF PROOF IN APPLICATION FOR
WRIT OF HABEAS DATA
Q: What is the quantum of evidence required in a
petition for a writ of habeas data?
A: The court shall render judgment within (10) days
from the time the petition is submitted for decision.
If the allegations in the petition are proven by
substantial evidence, the court shall enjoin the act
complained of, or order the deletion, destruction,
or rectification of the erroneous data or
information and grant other relevant reliefs as may
be just and equitable; otherwise, the privilege of
the writ shall be denied. (Sec. 16.).
HABEAS DATA KALIKASAN
It is a Filipino word which
means nature in English
205
UNIVERSITY OF SANTO TOMAS
Facultad de Derecho Civil
 UST GOLDEN NOTES 2011

Governing rule
Rule 102 A.M. No. 07-9-12-SC A.M. No. 08-1-16-SC A.M. No. 09-6-8-SC
Description
Writ directed to Remedy available to any Remedy available to any person Special remedy available
the person person whose right to whose right to privacy in life, liberty to a natural or juridical person,
detaining another, life, liberty, and security or security is violated or threatened entity authorized by law,
commanding him is violated or threatened by an unlawful act or omission of a peoples organization, non-
to produce the with violation by an public official or employee, or of a governmental organization, or
body of the unlawful act or omission private individual or entity engaged any public interest group
accredited by or registered with
prisoner at a of a public official or in the gathering, collecting, or
any government agency, on
designated time employee, or of a storing of data or information
behalf of persons whose
and place, with the private individual or regarding the person, family, home
constitutional right to a
day and cause of entity. and correspondence of the balanced and healthful ecology
his capture and aggrieved party. is violated, or threatened with
detention, to do, violation by an unlawful act or
submit to, and omission of a public official or
receive whatsoever employee, or private individual
the court or judge or entity, involving
awarding the writ environmental damage of such
shall consider in magnitude as to prejudice the
that behalf. life, health or property of
inhabitants in two or more cities
or provinces.
Coverage
Involves the right to life,
Involves the right Involves the right to privacy in life,
liberty, and security of
to liberty of and liberty, and security of the Constitutional right to a
the aggrieved party and
rightful custody by aggrieved party and covers balanced and healthful
covers extralegal killings
the aggrieved extralegal killings and enforced ecology.
and enforced
party. disappearances.
disappearances.
Rights violated
There is an actual or
There is an actual There is an actual or
There is an actual or threatened threatened violation of ones
violation of the threatened violation of
violation of the aggrieved partys right to a healthful and
aggrieved partys the aggrieved partys
right. balanced ecology involving
right. right.
environmental damage.
Where to file
RTC where the petitioner or
RTC or any judge RTC of the place where
respondent resides, or that which has
thereof, CA or any the threat, act or
jurisdiction over the place where the
omission was committed
member thereof in data or information is gathered,
or any of its elements
instances collected or stored, at the option of In SC or any stations of the CA.
occurred; SB or any
authorized by law; the petitioner; or with SC, CA or SB
justice thereof; CA or any
or SC or any when the action concerns public data
justice thereof; SC or any
member thereof. files or government offices.
justice thereof.

Habeas Corpus Amparo Habeas Data Kalikasan

Who may file a petition
In the following order: A natural or
1. Any aggrieved party;
1. Any member of the juridical person,
2. However, in cases of extralegal
immediate family entity authorized
killings and enforced
2. Any ascendant, by law, peoples
disappearances:
1. Party for whose relief descendant, or organization, non-
a. Any member of the
it is intended; or collateral relative of governmental
immediate family
the aggrieved party organization, or
th b. Any ascendant,
2. Any person on his within the 4 civil any public interest
descendant, or collateral
behalf degree of group accredited
relative of the aggrieved
consanguinity or by or registered
party within the 4th civil
affinity with any
degree of consanguinity
3. Any concerned citizen, government
or affinity
organization, agency.

206 REMEDIAL LAW TEAM:

ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
 SPECIAL PROCEDINGS

May or may not be an
officer.
If granted by SC or CA:
enforceable anywhere In
the Philippines;
If granted by RTC:
enforceable only within
the judicial district
Payment is required
Note: Rule on indigent
petitioner applies.
Served upon the person to
whom it is directed, and if
not found or has not the
prisoner in his custody, to
the other person having or
exercising such custody
Officer by whom the
prisoner is imprisoned or
the person in whose
custody the prisoner is
found
On the day specified in the
writ
association or
institution
Respondent
Public official or employee or a
private individual or entity engaged
Public official or employee in the gathering, collecting or storing Public official or
or a private individual or of data or information regarding the employee, private
entity. person, family, home and individual or entity.
correspondence of the aggrieved
party.
Enforceability of the writ
Enforceable anywhere in the Philippines regardless of who issued Enforceable
the same anywhere in the
Philippines
Docket fees
Payment is required.
Petitioner is
Petitioner is exempted
exempted from
from payment Note: Rule on indigent petitioner
payment
applies.
Service of writ
Served upon the
Served upon the
Served upon the respondent respondent
respondent personally; or
personally; or substituted service personally; or
substituted service
substituted service.
Person who makes the return
Respondent Respondent Respondent
When to file a return
The respondent shall file a verified
Within 5 working days
written return together with
after service of the writ, Within non-
supporting affidavits within 5
the respondent shall file a extendible period
working days from service of the
verified written return of 10 days after the
writ, which period may be
together with supporting service of writ.
reasonably extended by the Court
affidavits.
for justifiable reasons.

Habeas Corpus Amparo Habeas Data Kalikasan

Return
If issued by RTC: returnable If issued by RTC: returnable
before such court; before such court;

If granted by the SC or If issued by SB or CA or any If issued by SB or CA or any of

CA: returnable before of their justices:
the court or any returnable before such
member or before RTC court or to any RTC of the
or any judge thereof; place where the threat, act
or omission was
If granted by RTC: committed or any of its
returnable before such elements occurred;
court
If issued by SC or any of its
justices: returnable before
such court, or before SB,
their justices: returnable
before such court or to any
RTC of the place where the
If issued by SC, returnable
petitioner or respondent
before such court or CA.
resides or that which has
jurisdiction over the place
where the data or
information is gathered,
collected or stored;
If issued by SC or any of its

207
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
 UST GOLDEN NOTES 2011

CA, or to any RTC of the justices: returnable before

place where the threat, act such court, or before SB, CA,
or omission was or to any RTC of the place
committed or any of its where the petitioner or
elements occurred respondent resides or that
which has jurisdiction over
the place where the data or
information is gathered,
collected or stored
General denial
Not prohibited. Not allowed. Not allowed. Not allowed.
Liability of the person to whom the writ is directed if he refuses to make a return
Forfeit to the aggrieved
party the sum of Imprisonment or fine for Imprisonment or fine for
Indirect contempt.
P1000, and may also be committing contempt. committing contempt.
punished for contempt.
Hearing
The hearing including the
preliminary conference shall
Summary hearing shall be Summary hearing shall be
Date and time of not extend beyond sixty (60)
conducted not later than 7 conducted not later than 10
hearing is specified in days and shall be given the
days from the date of working days from the date
the writ. same priority as petitions for
issuance of the writ. of issuance of the writ.
the writs of habeas corpus,
amparo and habeas data.
Period of appeal
Within fifteen (15) days from
Within 48 hours from
5 working days from the 5 working days from the date the date of notice of the
notice of the judgment
date of notice of the of notice of the judgment or adverse judgment or denial
or final order appealed
adverse judgment. final order. of motion for
from.
reconsideration.

Habeas Corpus Amparo Habeas Data Kalikasan

Prohibited pleadings
1. Motion to dismiss; 1. Motion to dismiss;
2. Motion for extension of time to file opposition, 2. Motion for extension of
affidavit, position paper and other pleadings; time to file return;
3. Dilatory motion for postponement; 3. Motion for
4. Motion for a bill of particulars; postponement;
5. Counterclaim or cross - claim; 4. Motion for a bill of
6. Third - party complaint; particulars;
None 7. Reply; 5. Counterclaim or cross-
8. Motion to declare respondent in default; claim;
9. Intervention; 6. Third-party complaint;
10. Memorandum; 7. Reply; and
11. Motion for reconsideration of interlocutory orders or 8. Motion to declare
interim relief orders; and respondent in default.
12. Petition for certiorari, mandamus or prohibition
against any interlocutory order.

Note: In writ of amparo, one rare instance where the SB, notwithstanding its status as a special court, is vested with
jurisdiction co-equal with SC, CA and RTC. Take note that CTA, albeit acting as a special court being in the same rank of
CA and SB, is not vested with jurisdiction to issue writ of amparo.

P. CHANGE OF NAME

1. DIFFERENCES UNDER RULE 103, R.A. 9048 AND RULE 108

Discuss the differences among Rule 103 (Change of Name), R.A. 9048 (Administrative Correction of Clerical or
Typographical Error/Change of first name or nickname) and Rule 108 (Cancellation or Correction of Clerical or
Typographical Error).

208 REMEDIAL LAW TEAM:

ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

A:
Rule 103
Change of first name or
surname.
Judicial; hearing is necessary.
Verified petition.
RTC of the province where the
petitioner resides at least 3
months.
CA under Rule 41
Filed by the person desiring to
change his name.
Solicitor General/ Interested
parties.
Order for hearing shall be
published once a week for 3
consecutive weeks.
1. Name is ridiculous, tainted
with dishonor or extremely
difficult to write or
pronounce;
2. Habitual and continuous used
and been known since
childhood by a Filipino name,
unaware of her alien
parentage;
3. Consequence of a change of
status;
4. A sincere desire to adopt a
Filipino name to erase signs of
former alienage, all in good
faith and without prejudicing
anybody;
5. The change will avoid
confusion; or
6. When the surname causes
embarrassment and there is
no showing that the desired
change of name was for a
fraudulent purpose or that
the change of name should
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
SPECIAL PROCEDINGS
R.A. 9048 Rule 108
Scope
Correction of or substantial errors
Change of first name or nickname/ correction
of entries in the Civil Registry/
of clerical errors of entries in the Civil Registry.
cancellation of entries.
Nature
Judicial; hearing is necessary
Summary if it involves clerical
Administrative; hearing is not necessary. errors
Adversarial if it involves substantial
errors.
Initiated by
Sworn affidavit. Verified petition.
Where to file
1. Local Civil Registry office where the record
RTC where the corresponding civil
is kept;
registry is located.
2. Consul general.
Where to appeal , in case of adverse decision
Civil Registrar General under Sec. 7 or CA
CA under Rule 41
under Rule 43
Who may file
Petition is filed by the person of legal age who
must have a direct and personal interest in the
correction:
1. Owner of the record; Any person interested in the act,
2. Owners spouse, children, parents, event, decree or order concerning
brothers, sisters, grandparents, guardian; the civil status of persons.
or
3. Anyone authorized by law or owner of the
record.
Who must be notified
Interested parties/Solicitor General need not be Civil registrar as respondent; Solicitor
notified. General/ Interested parties.
Publication
Order for hearing in case of change of first
Order for hearing shall be published
name/nickname shall be published once a week
once a week for 3 consecutive weeks.
for 2 consecutive weeks.
Grounds
1. The petitioner finds the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce.
2. The new first name or nickname has been
N/A
habitually and continuously used by the
petitioner and he has been publicly known by
that by that first name or nickname in the
community: or
3. The change will avoid confusion.
209
UNIVERSITY OF SANTO TOMAS
Facultad de Derecho Civil
 UST GOLDEN NOTES 2011

prejudice public interest.

(Republic v. CA, G.R. No.
88202, Dec. 14, 1998).

Entries subject to correction

1. Correction of clerical or 1. Correction of clerical or typographical errors in 1. Births;
typographical errors in any the civil registry 2. Marriages;
entry in civil registry 2. change of first name or nickname in the civil 3. Deaths;
documents, except registry 4. Legal separations;
corrections involving the 5. Judgments of annulments of
change in sex, age, nationality marriage;
and status of a person; and 6. Judgments declaring marriages
2. Change of a person's first void from the beginning;
name or nickname in his or 7. Legitimations;
her civil registry. 8. Adoptions;
9. Acknowledgments of natural
children;
10. Naturalization;
11. Election, loss or recovery of
citizenship;
12. Civil interdiction;
13. Judicial determination of
filiation; and
14. Change of name. (Sec. 2)

NOTE: Clerical/typographical error refer to an obvious mistake committed in clerical work, either in writing, copying,
transcribing, or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or place of birth
and the like, and can be corrected or changed only by reference to other existing record or records. [Sec. 2(3) of RA 9048]

nationality of a party, it is deemed substantial, and the

2. GROUNDS FOR CHANGE OF NAME procedure to be adopted is adversary. (Republic v.
Bautista, 155 SCRA 1, Oct. 26, 1987).
Q: What are the grounds for change of name
under Rule 103? Q. ABSENTEES

A: 1. PURPOSE OF THE RULE

1. Name is ridiculous, tainted with dishonor
or extremely difficult to write or
pronounce;
2. Habitual and continuous used and been
known since childhood by a Filipino name,
unaware of her alien parentage;
3. Consequence of a change of status;
4. A sincere desire to adopt a Filipino name
to erase signs of former alienage, all in
good faith and without prejudicing
anybody;
5. The change will avoid confusion; or
6. When the surname causes
embarrassment and there is no showing
that the desired change of name was for a
fraudulent purpose or that the change of
name should prejudice public interest.
(Republic v. CA, G.R. No. 88202, Dec. 14,
1998).
Q: What is the purpose of this Rule?
A: It is to appoint an administrator over the
properties of the absentee. This is proper only
where the absentee has properties to be
administered.
When a person disappears from his domicile his
whereabouts being unknown, and without having
left an agent to administer his property, or the
power conferred upon the agent has expired, any
interested party, relative or friend, may petition the
RTC of the place where the absentee resided before
his disappearance for the appointment of a person
to represent him provisionally in all that may be
necessary.
Note: If the absentee left no properties, such petition
is not necessary. (Reyes v. Alejandro, G.R. No. L-46187,
Jan. 16, 1986)

Note: Under Rule 108, change of name may either be

summary or adversary in nature. If the correction
sought to be made in the civil registrar is clerical, then
the procedure to be adopted is summary. If the
rectification affects the civil status, citizenship or

210 REMEDIAL LAW TEAM:

ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
 SPECIAL PROCEEDINGS

2. WHO MAY FILE A PETITION; WHEN TO FILE Note: Rule 108, when all the procedural requirements
thereunder are followed, is the appropriate adversary
Q: Who may file a petition for declaration of proceeding to effect substantial correction and
absence and appointment of administrator or changes in the entries of civil register (Lee v. CA, G.R.
trustee? No. L-118387, Oct. 11, 2001).
A:
1. Spouse present; Q: What are the requisites of adversarial
2. Heirs instituted in the will; proceedings?
3. Relatives who will succeed by intestacy;
4. Those who have over the property of the A:
absentee some right subordinated to the 1. Proper petition is filed where the Civil
condition of his death. (Sec. 2, Rule 107) Registrar and all parties interested are
impleaded;
Q: When should a petition for declaration of 2. The order of hearing must be published
absence and appointment of administrator or once a week for three consecutive weeks;
trustee be filed? 3. Notice must be given to the Civil Registrar
and all parties affected thereby;
A: 4. The civil registrar and any person
1. After 2 years: interested, may within 15 days from
a. From his disappearance and without notice or from the last date of
any news about the absentee; or publication, files his opposition thereto;
b. of the last news about the absentee. and
2. After 5 years If he left an administrator 5. Full blown trial. (Republic v. Valencia,
of his property. (Sec. 2, Rule 107) supra.)

R. CANCELLATION OR CORRECTION OF ENTRIES IN 1. ENTRIES SUBJECT TO CANCELLATION OR

THE CIVIL REGISTRY CORRECTION UNDER RULE 108, IN RELATION TO
RA 9048
Q: Who may file a petition for cancellation or
correction of entries? Q: What are the entries subject to cancellation or
correction under Rule 108?
A: Any person interested in any act, event, order or
decree concerning the civil status of persons which A:
has been recorded in the civil register, may file a 1. Births;
verified petition for the cancellation or correction 2. Marriages;
of any entry relating thereto, with the RTC of the 3. Deaths;
province where the corresponding civil registry is 4. Legal separations;
located (Sec. 1). 5. Judgments of annulments of marriage;
6. Judgments declaring marriages void from
Q: What is the nature of proceedings in Rule 108? the beginning;
7. Legitimations;
A: It is summary if the entries in the civil register 8. Adoptions;
sought to be corrected are clerical or innocuous in 9. Acknowledgments of natural children;
nature. However, where such entries sought to be 10. Naturalization;
corrected or changed are substantial, the 11. Election, loss or recovery of citizenship;
proceedings are adversarial in nature. (Republic v. 12. Civil interdiction;
Valencia, G.R. No. L-32181, Mar. 5, 1986) 13. Judicial determination of filiation; and
14. Change of name. (Sec. 2)
Q: What is meant by appropriate adversarial
proceeding? Q: May the trial court issued an order declaring
the nullity of marriage under Rule 108 and change
A: One which has opposing parties; contested as the status from married to single?
distinguished from an ex parte application, one of
which the party seeking relief has given legal A: No, it is proper only in ordinary adversarial
warning to the other party, and afforded the latter proceedings. (Lim v. Republic, G.R. No. 8932, May
an opportunity to contest it. (Republic v. Valencia, 31, 1957)
Ibid.)

211
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
 UST GOLDEN NOTES 2011
Q: Within what period may a petition for
correction or cancellation of entries be filed?
A: The law did not fix a period within which the
petition for correction under Rule 108 in relation to
Art. 412 of Civil Code may be filed. Accordingly,
such petition may be filed within 5 years from time
the petitioner discovered the error or mistake in
the civil registry, and not from the date the birth
certificate was registered in the civil registry. (Lee v.
CA, supra.)
Q: Celine files a petition for cancellation of the
birth certificate of her daughter Jeanie on the
ground of falsified material entries therein made
by Celines husband as the informant. The RTC sets
the case for hearing and directs the publication of
the order once a week for 3 consecutive weeks in a
newspaper of general circulation. Summons was
served on the Civil Registrar but there was no
appearance during the hearing. The RTC granted
the petition. Jeanie filed a petition for annulment
of judgment before the CA, saying that she was
not notified of the petition and hence, the decision
was issued in violation of due process. Celine
opposed saying that the publication of the court
order was sufficient compliance with due process.
Rule.
A: The petition for annulment of judgment before
the CA should be granted. Jurisdiction of the court
over a petition for cancellation of a birth certificate
requires reasonable notice to all interested parties
and also publication of the order once a week for 3
consecutive weeks in a newspaper of general
circulation. In this case, publication of the order is
insufficient because Jeanie, a directly concerned
party, was not given reasonable notice, hence,
denied due process. The lower court, therefore, did
not acquire jurisdiction. (Ceruila v. Delantar, G.R.
No. 140305, Dec. 9, 2005).
Alternative Answer:
It should not be granted. The publication of an
order of hearing under Section 4 of Rule 108 cured
the failure to implead an indispensable party. A
petition for correction is an action in rem, an action
against a thing and not against a person. The
decision on the petition binds not only the parties
thereto but the whole world. An in rem proceeding
is validated essentially through publication.
Publication is notice to the whole world that the
proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any
sort against the right sought to be established. It is
the publication of such notice that brings in the
whole as a party in the case and vests the court
with jurisdiction to hear and decide it (Republic v.
212 REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
Kho, G.R. No. 170340, June 29, 2007; Alba v. CA,
G.R. No. 164041, July 29, 2005; Barco v. CA, G.R. No.
120587, Jan. 20, 2004). (2007 Bar Question)
Q: Helen is the daughter of Eliza, a Filipina, and
Tony, a Chinese, who is married to another
woman living in China. Her birth certificate
indicates that Helen is the legitimate child of Tony
and Eliza and that she is a Chinese citizen. Helen
wants her birth certificate corrected by changing
her filiation from "legitimate" to "illegitimate" and
her citizenship from Chinese" to "Filipino"
because her parents were not married. What
petition should Helen file and what procedural
requirements must be observed? Explain.
A: A petition has to be filed in a proceeding under
Rule 108 of the Rules of Court. A petition to change
the record of birth by changing the filiation from
legitimate to illegitimate and petitioners
citizenship from Chinese to Filipino does not
involve a simple summary correction which could
otherwise be done under the authority of R.A.
9048. Procedural requirements include: (a) filing a
verified petition; (b) naming as parties all persons
who have or claim any interest which would be
affected; (c) issuance of an order fixing the time and
place of hearing; (d) giving reasonable notice to the
parties named in the petition; and (e) publication of
the order once a week for 3 consecutive weeks in a
newspaper of general circulation. (2005 Bar
Question)
S. APPEALS IN SPECIAL PROCEEDINGS
1. JUDGMENTS AND ORDERS FOR WHICH APPEAL
MAY BE TAKEN
Q: What are the orders or judgments from which
appeal may be taken?
A: An interested person may appeal when such
order or judgment:
1. Allows or disallows a will;
2. Determines who are the lawful heirs of a
deceased person, or the distributive share
of the estate to which such person is
entitled;
3. Allows or disallows, in whole or in part,
any claim against the estate of a deceased
person, or any claim presented on behalf
of the estate in offset to a claim against it;
4. Settles the account of an executor,
administrator, trustee or guardian;
5. Constitutes, in the proceedings relating to
the settlement of the estate of a
deceased person, or the administration of
 SPECIAL PROCEEDINGS

a trustee or guardian, a final A:

determination in the lower court of the 1. Rule 40 (Appeal from MTC to RTC) By
rights of the party appealing, except that filing a notice of appeal, record on appeal
no appeal shall be allowed from the and payment of appeal fees on questions
appointment of a special administrator; of law or fact or both;
6. Is the final order or judgment rendered in
the case, and affects the substantial rights 2. Rule 41 (Appeal from the RTC to CA in
of the person appealing, except orders exercise of its original jurisdiction) By
granting or denying a motion for new trial ordinary appeal by filing a notice of
or for reconsideration (Sec. 1, Rule 109). appeal, record on appeal and payment of
appeal fees on questions of law or fact or
Note: A stranger having neither material nor direct both;
interest in a testate or intestate estate has no
right to appeal from any order issued therein. 3. Rule 42 (Petition for review from the RTC
(Panis v. Yangco, G.R. No. L-29460, Dec. 22, 1928) to the CA in exercise of its appellate
jurisdiction) By filing a notice of appeal,
2. WHEN TO APPEAL record on appeal and payment of appeal
fees on questions of law or fact or both;
Q: When should the appeal in special proceedings
be filed? 4. Rule 45 (Appeal by certiorari to the SC)
By filing of verified petition for review on
A: certiorari and payment of fees which shall
PERIOD FOR APPEAL raise questions of law only
30 days (Record on Appeal XPN: Any party may raise questions
Special Proceedings
required) of fact in their appeal in cases of writ
48 hours from service of of amparo, habeas data and
Habeas Corpus
judgment kalikasan.
5 working days from date of
Writ of Amparo
notice of judgment
5. Rule 65 (Petition for certiorari) By filing
5 working days from date of
Writ of Habeas Data of verified petition for certiorari on the
notice of judgment
ground that the court acted without or in
15 days from notice of
excess of jurisdiction or with grave abuse
Writ of Kalikasan judgment or denial of motion
for reconsideration
of discretion.

4. RULE ON ADVANCE DISTRIBUTION

Q: What are the orders that are not
appealable?
Q: When can an advance distribution be made
despite a pending controversy in the settlement of
A:
an estate?
1. Order directing the administrator to
take action to recover an amount due
A: Notwithstanding a pending controversy or
to the estate.
2. Order made in administration appeal in proceedings to settle the estate of a
proceedings relating to the inclusion decedent, the court may, in its discretion and upon
or exclusion of items of property in such terms as it may deem proper and just, permit
the inventory of executor or that such part of the estate as may not be affected
administrator. by the controversy or appeal be distributed among
3. Order appointing a special
the heirs or legatees, upon compliance with the
administrator.
4. Order granting or denying a motion conditions set forth in Rule 90 of these rules. (Sec.
for new trial or for reconsideration. 2)

3. MODES OF APPEAL

Q: What are the modes of appeal, how perfected

and their grounds?

213
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ