Rule 102 Nature:
Habeas corpus proceedings are
Habeas Corpus
SECTION 1
Applicability:
Habeas Corpus extends to all cases of
illegal confinement or detention
where:
(a) any person is deprived of his
liberty; or (b) by which the rightful
custody of any person is withheld from
the person entitled thereto.
Purpose:
In general, the purpose of a writ of
habeas corpus is to determine whether
or not a particular person is legally
held.
“The essential object and purpose of
the writ is to inquire into all manner of
involuntary restraint as distinguished
from voluntary, and to relieve a person
therefrom if such restraint is illegal.”
The writ also extends to situations
where rightful custody of a person is
withheld from the person entitled
thereto hence, it is also an available
remedy for parents to regain the
custody of a minor child even if said
child is in the custody of another by
his/her own free will.
The writ is availed of to:
(a) obtain immediate relief from illegal
confinement;
(b) liberate those who may be
imprisoned without sufficient cause;
and
(c) deliver them from unlawful
custody.
It is essentially a writ of inquiry and
is granted to test the right under which
a person is detained.
Fundamentally, to avail of the writ,
the restraint of liberty must be in the
nature of an illegal and involuntary
deprivation of freedom of action.
separate and distinct from the main
case in which it MAY spring from.
As stated in Caballes v. CA:
“Habeas corpus is a summary
remedy. It is analogous to a
proceeding in rem when instituted for
the sole purpose of having the person
of restraint presented before the judge
in order that the cause of his
dentition may be inquired into and
his statements final. It does not act
upon the prisoner who seeks relief, but
upon the person who holds him in
what is alleged to be the unlawful
authority. Hence, the only parties
before the court are the
prisoner/petitioner and the person
holding the petitioner in custody, and
the only question to be resolved is
whether the custodian has authority to
deprive the petition of his liberty.”
Availability:
 Writ may issue even if another
remedy is available to the
defendant.
 It may even be issued even upon
a final judgement (where the
penalty imposed is in excess of
the power of the court granting it
thereby making such illegal)
 What is crucial is that the person
is unlawfully deprived of liberty,
which may usually involve:
(1) A violation of the accused’s
constitutional rights
(2) The court trying the case has no
jurisdiction; and
(3) The penalty is excessive or beyond
what the court could legally impose
SECTION 2
Who may grant the writ:
The following Courts may grant the
writ:
1. Supreme Court/ or any Justice
thereof: May be filed on any day
and at any time and is enforceable
ANYWHERE in the Philippines
2. RTC/ or any Judge thereof: May
be filed on any day and at any
time and is enforceable only
within his judicial district.
3. CA/ or any Justice thereof: May be
filed only in instances authorized
by law and is enforceable
anywhere in the Philippines
SECTION 3
Requisites of the Application
 The petition (which may be filed
either by the party for whose
relief it is intended or some other
person on his behalf) must be
SIGNED and VERIFIED;
 It must also contain and/or set
forth:
a. That the person in whose behalf
the application is made is
imprisoned or restrained of his
liberty;
b. The officer or name of the
person by whom he is so
imprisoned or restrained;
c. The place where he is so
imprisoned or restrained, if
known; and
d. 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.
SECTION 4
When writ not applicable:
 Not applicable for asserting or
vindicating the denial of the right
to bail.
 Not applicable to correct errors of
judgement.
 It cannot be availed of to enforce
marital rights, including co-
venture and living in conjugal
dwelling.
 It is not available to any person
that is in the custody of an officer:
1. Under process issued by a
court or judge; or
2. By virtue of a judgement or
order of a court of record;
and
3. The court or judge had
jurisdiction to issue the
process, render the
judgement or make the
order.
 It does not extend to persons
that:
1. Is Charged with an offense;
2. Convicted of an offense; or
3. Suffering imprisonment
under lawful judgement.
SECTION 5
When writ must be granted and
issued:
Sec. 5- A court or judge authorized to
grant the writ must, when a petition
therefor is presented and it
appears that the writ ought to
issue, grant the same forthwith, and
immediately thereupon the clerk of the
court shall issue the writ under the
seal of the court; or in case of
emergency, the judge may issue the
writ under his own hand, and may
depute any officer or person to serve
it.
SECTION 6
To whom writ is directed:
 In case of imprisonment or
restraint by an officer:
1. The writ shall be directed to said
officer;
2. The writ shall command him to
have the body of the person
retrained of his liberty before
the court or judge designated in
the writ at the time and place
therein specified.
 In case of imprisonment or
restraint by a person not an
officer:
 1. The writ shall be directed to an
officer;
2. The writ shall command him to
take and have the body of the
person restrained of his liberty
before the court or judge
designated in the writ at the
time and place therein specified,
and to summon the person by
whom he is restrained then and
there to appear before said court
or judge to show the cause of
the imprisonment or restraint.
 The above provision is merely a
peremptory writ of habeas corpus/
the preliminary step in the hearing
of the petition and is not actually
the grant of the writ itself.
 It is not a ruling on the propriety
of the remedy or on the
substantive matters covered by
the remedy.
SECTION 7
Section 7. How prisoner designated
and writ served. — The person to be
produced should be designated in the
writ by his name, if known, but if his
name is not known he may be
otherwise described or identified. The
writ may be served in any province by
the sheriff or other proper officer, or
by a person deputed by the court or
judge. Service of the writ shall be
made by leaving the original with the
person to whom it is directed and
preserving a copy on which to make
return or service. If that person cannot
be found, or has not the prisoner in his
custody, then the service shall be
made on any other person having or
exercising such custody.
How service is made:
1. By leaving the original of the writ
with the person to whom it is
directed or to any person having
custody if the former cannot be
found or has not the person in his
custody; and
2. By preserving a copy on which to
make return of service. The writ
itself plays the role of summons
in ordinary actions; court
acquires jurisdiction over the
person of the respondent by
mere service of writ.
Service of Writ
 The writ may be served in any
province by:
a. The sheriff
b. Other proper officer, or
c. By a person deputed by
the court or judge
 The writ is served by leaving the
original with the person to whom
it is directed
 A copy is preserved because the
return shall be made thereon
 However, if that person (on
whom it must be served)
cannot be found, or does not
have the prisoner in his
custody, then the service shall
be made on any other person
having or exercising such
custody.
 Note that the writ is served
upon the officer, not the
person detained
 The important fact to be observed
in regard to the mode of
procedure upon this writ is, that it
is directed to and served upon,
not the person confined, but his
jailor. It does not reach the former
except through the latter. The
officer or person who serves it
does not unbar the prison doors,
and set the prisoner free, but the
court relieves him by compelling
the oppressor to release his
constraint. The whole force of the
writ is spent upon the respondent,
and if he fails to obey it, the
means to be resorted to for the
 purposes of compulsion are fine
and imprisonment. This is the
ordinary mode of affording relief,
and if any other means are
resorted to, they are only auxiliary
to those which are usual. The
place of confinement is, therefore,
not important to the relief, if the
guilty party is within reach of
process, so that by the power of
the court he can be compelled to
release his grasp. The difficulty of
affording redress is not increased
by the confinement being beyond
the limits of the state, except as
greater distance may affect it. The
important question is, where the
power of control exercised?
(Villavicencio vs Lukban 1919).
What if the respondent says that
custody was transferred to
another officer/person, is that a
defense?
 Sec. 7, Rule 102 says that service
shall be made on any other person
having or exercising such custody.
 BUT, it was not so in this
Villavicencio case. The true
principle should be that, if the
respondent is within the
jurisdiction of the court and
has it in his power to obey the
order of the court and thus to
undo the wrong that he has
inflicted, he should be
compelled to do so. 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. The respondents,
within the reach of process, may
not be permitted to restrain a
fellow citizen of her liberty by
forcing her to change her domicile
and to avow the act with impunity
in the courts, while the person
who has lost her birthright of
liberty has no effective recourse.
The great writ of liberty may not
thus be easily evaded
(Villavicencio vs Lukban 1919).
SECTION 8
Section 8. How writ executed and
returned. — The officer to whom the
writ is directed shall convey the person
so imprisoned or restrained, and
named in the writ, before the judge
allowing the writ, or in case of his
absence or disability, before some
other judge of the same court, on the
day specified in the writ, unless, from
sickness or infirmity of the person
directed to be produced, such person
cannot, without danger, be bought
before the court or judge; and the
officer shall make due return of the
writ, together with the day and the
cause of the caption and restraint of
such person according to the
command thereof.
General rule: Officer to whom writ is
directed shall
convey the detained person on the day
specified in the
writ:
1. Before the judge who allowed
the writ;
2. If he is absent, before any
judge of the same court.
Exception: If the person to be
produced has sickness or infirmity
such that he cannot be brought before
the court without danger.
The duties of an Officer:
1. Convey the person so
imprisoned before the judge,
unless from sickness or
infirmity, such person cannot,
 without danger be brought
before the court.
2. Make the return of the writ
together with the day and the
cause of caption or restraint.
SECTION 9
Section 9. Defect of form. — No writ
of habeas corpus can be disobeyed for
defect of form, if it sufficiently appears
therefrom in whose custody or under
whose restraint the party imprisoned
or restrained is held and the court or
judge before whom he is to be bought.
No writ can be disobeyed for
defect of form if it sufficiently
states:
1. The person in whose custody or
under whose restraint the party
imprisoned or restraint is held; and
2. The court or judge before whom he
is to be brought.
SECTION 10
Section 10. Contents of return. —
When the person to be produced is
imprisoned or restrained by an officer,
the person who makes the return shall
state therein, and in other cases the
person in whose custody the prisoner
is found shall state, in writing to the
court or judge before whom the writ is
returnable, plainly and unequivocably:
a. Whether he has or has not the
party in his custody or power, or under
restraint;
b. If he has the party in his
custody or power, or under restraint,
the authority and the true and whole
cause thereof, set forth at large, with a
copy of the writ, order execution, or
other process, if any, upon which the
party is held;
c. If the party is in his custody or
power or is restrained by him, and is
not produced, particularly the nature
and gravity of the sickness or infirmity
of such party by reason of which he
cannot, without danger, be bought
before the court or judge;
d. If he has had the party in his
custody or power, or under restraint,
and has transferred such custody or
restraint to another, particularly to
whom, at what time, for what cause,
and by what authority such transfer
was made.
Content of Return
1. Whether he has or has not the
party in his custody or power,
or under restraint;
2. If he has the party in his
custody or power, or under
restraint, the authority and the
true and whole cause thereof, set
forth at large, with a copy of the
writ, order, execution, or other
process, if any, upon which the
party is held;
3. If the party is in his custody or
power or is restrained by him,
and is not produced,
particularly the nature and
gravity of the sickness or
infirmity of such party by reason
of which he cannot, without
danger, be brought before the
court or judge;
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.
A RETURN IS MADE AND THE
PERSON RESTRAINED MUST BE
BROUGHT BEFORE THE COURT
(SEC. 8, 9, & 10, RULE 102)
 The officer is required to:
a. Make a due return of the
writ, together with the day and
the cause of the caption and
restraint of such person
according to the command
thereof.
b. Convey the person so
imprisoned or restrained, and
named in the writ, before the
judge allowing the writ unless,
from sickness or infirmity of
the person directed to be
 produced, such person cannot,
without danger, be bought
before the court or judge
 But in case of his absence or
disability of such judge, it may be
made before some other judge of
the same court, on the day
specified in the writ
Contents of the Return
a. Whether he has or has not the
party in his custody or power, or
under restraint
b. If the party is in his custody or
power, or under restraint— the
authority and the true and whole
cause thereof, with a copy of the
writ, order, execution, or other
processes upon which the party is
held
c. If the party is in his custody or
power or is restrained by him, and
is not produced, particularly the
nature and gravity of the sickness
or infirmity of such party by
reason of which he cannot,
without danger, be bought before
the court or judge
d. If he has had the party in his
custody or power, or under
restraint, and has transferred such
custody or restraint to another,
particularly to whom, at what
time, for what cause, and by what
authority such transfer was made.
 The return or statement shall be
signed by the person who makes
it; and shall also be sworn by him
if the prisoner is not produced,
and in all other cases unless the
return is made and signed by a B.
sworn public officer in his official
capacity. (Sec. 11, Rule 102)
 Note that no writ of habeas corpus
can be disobeyed for defect of
form, if it sufficiently appears
therefrom in whose custody or
under whose restraint the party
imprisoned or restrained is held
and the court or judge before
whom he is to be bought. (Sec. 9,
Rule 102)
 The weight of the return is
determined by the colour of
authority, or by the lack of it, for
which a person is detained (Sec.
13, Rule 102)
A. Person is under custody by
public officer under a warrant of
commitment in pursuance of law
 The return is considered as prima
facie evidence of the cause of
the restraint
 Unless the allegations in the
return are controverted, they are
deemed to be true or admitted,
pursuant to
 Section 13, Rule 102, Rules of
Court, which provides that the
“return shall be considered prima
facie evidence of the cause of
restraint, if it appears that the
prisoner is in custody under a
warrant of commitment in
pursuance of law.” (Florendo vs
Javier 1979)
 Thus, the petitioner must
controvert the allegations as to
the cause of the restraint in the
return, by filing a comment. If
these are not controverted, they
are deemed admitted and thus,
dismissal would probably result.
BUT, note that the presumption
only extends as to the fact of the
cause of restraint, not anything
else, only that fact is required to
be controverted.
Person is restrained by private
individual
 If however, the person is
restrained by any alleged private
authority, the return is considered
only as a plea of the facts
therein set forth.
 Consequently, the party claiming
custody has the burden of proving
such facts
 SECTION 11
Section 11. Return to be signed and
sworn to. — The return or statement
shall be signed by the person who
makes it; and shall also be sworn by
him if the prisoner is not produced,
and in all other cases unless the return
is made and signed by a sworn public
officer in his official capacity.
SECTION 12
Section 12. Hearing on return.
Adjournments. — When the writ is
returned before one judge, at a time
when the court is in session, he may
forthwith adjourn the case into the
court, there to be heard and
determined. The court or judge before
whom the writ is returned or
adjourned must immediately proceed
to hear and examine the return, and
such other matters as are properly
submitted for consideration, unless for
good cause shown the hearing is
adjourned, in which event the court or
judge shall make such order for the
safekeeping of the person imprisoned
or restrained as the nature of the case
requires. If the person imprisoned or
restrained is not produced because of
his alleged sickness or infirmity, the
court or judge must be satisfied that it
is so grave that such person cannot be
produced without danger, before
proceeding to hear and dispose of the
matter. On the hearing the court or
judge shall disregard matters of form
and technicalities in respect to any
warrant or order of commitment of a
court or officer authorized to commit
by law.
Hearing of Return & Adjournments
1. His remedy, upon the return of the
writ, the court must immediately
hear the case.
2. The hearing MAY be adjourned by
the court for good causes, provided
that conditions upon the
safekeeping of the detained person
is laid.
3. If the detained person cannot be
produced before the court, the
officer of person detaining must
satisfy the court of the gravity of
the alleged sickness or infirmity.
4. During the hearing, the court shall
disregard matters of form and
technicalities of the authority or
order of commitment. The failure
of petitioners to file a reply to the
return of the writ warrants the
dismissal of the petition because
unless controverted, the
allegations on the return are
deemed to be true or admitted
(Florendo v. Javier, G.R. No. L-
36101, June 29, 1979).
Hearing is Conducted
 When the writ is returned before
one judge, at a time when the
court is in session, he may
forthwith adjourn the case into the
court, there to be heard and
determined.
 The court or judge before whom
the writ is returned or adjourned
must immediately proceed to hear
and examine the return, and such
other matters as are properly
submitted for consideration
 Unless for good cause shown the
hearing is adjourned, in which
event the court or judge shall
make such order for the
safekeeping of the person
imprisoned or restrained as the
nature of the case requires.
 If the person imprisoned or
restrained is not produced because
of his alleged sickness or infirmity,
the court or judge must be
satisfied that it is so grave that
such person cannot be produced
without danger, before proceeding
to hear and dispose of the matter.
 a. Prisoner is lawfully committed;
 In the hearing, the court or judge and
shall disregard matters of form and b. Prisoner is plainly and
technicalities in respect to any specifically charged in the warrant of
warrant or order of commitment of commitment with an offense
a court or officer authorized to punishable by death
commit by law.
If the two requisites above are not
present, the prisoner may be
recommitted to imprisonment or
admitted to bail at the discretion of the
court or judge.

HOWEVER, there is no right to bail

when the applicant for the writ of
habeas corpus is serving sentence by
final judgement.

SECTION 15
Grant of Writ of Habeas Corpus

Requisites under Sec. 15 for the Grant

SECTION 13
Return as Evidence
The return shall be considered as the
prima facie evidence of the cause of
the restraint if the person is in custody
under a warrant of commitment in
pursuance of law.
However, if the person is restrained
by any private authority, the return is
merely considered as a plea of the
facts set forth therein. The party
claiming custody has the burden of
proof of proving the facts it alleges.
of Writ of Habeas Corpus:
a. Court or judge has examined
into the cause of caption and restraint
of the prisoner;
b. Court or judge is satisfied that
the prisoner is unlawfully imprisoned
or restrained; and
c. A copy of the order has been
served on the officer or person
detaining the prisoner.
d. The officer or person detaining
the prisoner does not desire to appeal.
If the officer or person detaining the
prisoner desires to appeal, A.M. No.
01-01-03-S provides that such appeal
must be made within 48 hours from
notice of judgement.
SECTION 16
Penalty for Refusing to Issue the
Writ and Penalty for Disobeying
the Writ

SECTION 14 Persons covered by Sec. 16:

Right to Bail
A person shall not be
discharged, or bailed when:
a. A clerk of a court who refuses
to issue the writ after allowance
released, thereof and demand therefor;
b. Person to whom a writ is
directed who:

1. Neglects or refuses to
obey or make return of
the writ according to the
command thereof;
2. Makes false return
thereof;
3. Upon demand made by
or on behalf of the
prisoner, refuses to
deliver to the person
demanding within 6 GENERAL RULE: A person committed
hours after the demand
therefor, a true copy of
the warrant or order of
commitment.
Penalty:
a. Forfeiture - Such persons shall
forfeit to the party aggrieved the sum
of one thousand pesos, to be
recovered in a proper action; and
b. Contempt - Such persons may
also be punished by the court or judge
for contempt.
SECTION 17
No double jeopardy in habeas
corpus cases
GENERAL RULE: Once a person is
released by virtue of a writ of habeas
corpus, he cannot be again imprisoned
for the same offense.
EXCEPTION: When the court having
jurisdiction over the cause or offense
orders his recommitment.
Sec. 17 also penalizes the following:
a. Persons who knowingly
recommits, imprisons, or causes to be
committed or imprisoned, for the same
offense or pretended offense, any
person who has been set to liberty;
b. Persons who knowingly aid or
assist therein.
Penalty:
a. Forfeiture - Such persons shall
forfeit to the party aggrieved the sum
of one thousand pesos, to be
recovered in a proper action; and
b. Contempt - Such persons may
also be punished by the court or judge
for contempt.
SECTION 18
When a prisoner may be removed
from one custody to another
to prison or in custody of an officer
cannot be removed therefrom or
custody transferred to another.
EXCEPTIONS:
a. By legal process;
b. When prisoner is delivered to
an inferior officer to carry to jail;
c. By order of the proper court or
judge for the transfer from one place
to another within the Philippines for
trial;
d. In case of fire, epidemic,
insurrection, or other necessity or
public calamity
Sec. 18 also penalizes any person
who, after such commitment, makes,
signs, or countersigns any order for
such removal contrary to the
provisions of Sec. 18.
Penalty: Forfeiture to the party
aggrieved the sum of one thousand
pesos, to be recovered in a proper
action.
SECTION 19
Record of writ, fees and costs
a. Record - The proceedings upon
a writ of habeas corpus shall be
recorded by the clerk of the court, and
upon the final disposition of such
proceedings the court or judge shall
make such order as to costs as the
case requires.
b. Fees - The fees of officers and
witnesses shall be included in the costs
taxed, but no officer or person shall
have the right to demand payment in
advance of any fees to which he is
entitled by virtue of the proceedings.
c. Costs -
1. When a person confined under
color of proceedings in a
criminal case is discharged,
the costs shall be taxed
against the Republic of the
Philippines, and paid out of its
Treasury;
2. When a person in custody by
virtue or under color of
proceedings in a civil case is
discharged, the costs shall be
taxed against him, or against
the person who signed the
application for the writ, or
both, as the court shall direct.
Habeas Corpus as a Post-
Conviction Remedy
Habeas corpus as a post-conviction
remedy may be allowed when, as a
consequence of a judicial proceeding,
any of the following exceptional
circumstances are present:
a. There has been a deprivation of
a constitutional right resulting in the
restraint of the person;
b. The court has no jurisdiction to
impose the sentence; or
c. The imposed penalty has been
excessive, thus voiding the sentence
as to such excess.
A.M. No. 03-04-04-SC
RULE ON CUSTODY OF MINORS
AND WRIT OF HABEAS CORPUS
IN RELATION TO CUSTODY OF
MINORS
Effectivity date: May 15, 2003
SECTION 1
Applicability
This rule shall apply to petitions for
custody of minors and writs of habeas
corpus in relation thereto.
The Rules of Court shall apply
suppletorily.
SECTION 20
Jurisdiction
A. For a petition for habeas
corpus involving a child
1. Family court
However, the petition may also be
filed before the regular court
when:
a. in the absence of the presiding
judge of the Family Court, provided,
however, that the regular court shall
refer the case to the Family Court as
soon as its presiding judge returns to
duty;
b. in places where there are no
Family Courts.
The writ issued by the Family
Court or the regular court shall
be enforceable in the judicial
region where they belong.
“judicial region”
The enumeration of judicial
regions in the country are
enumerated in Section 13 of BP
129 (The Judiciary
Reorganization Act of 1980).
For example, in the case of
Tujan Milante vs. Cada
Deapera, where the writ was
issued by the family court of
Caloocan City but the child was
found in Quezon City.
Section 13. Creation of
Regional Trial Courts. – There
are hereby created thirteen
Regional Trial Courts, one for
each of the following judicial
regions:
xxx
The National Capital Judicial
Region, consisting of the cities
of Manila, Quezon, Pasay,
Caloocan and Mandaluyong,
and the municipalities of
Navotas, Malabon, San Juan,
Makati, Pasig, Pateros, Taguig,
 Marikina, Parañaque, Las Piñas, petitions for habeas corpus where
Muntinlupa, and Valenzuela. the custody of minors is at issue.

Since Caloocan City and B. For an ancillary remedy of a

Quezon City both belong to the petition for habeas corpus
same judicial region, the writ involving a child availed in
issued by the RTC-Caloocan can conjunction with a petition for
still be implemented in Quezon custody of minors
City. Whether petitioner resides
in the former or the latter is Following RA 8369, the Family court
immaterial in view of the above has exclusive original jurisdiction. The
rule. venue is the province or city where the
petitioner resides or where the minor
2. Supreme Court, Court of may be found.
Appeals, or with any of its members.
The writ issued by the Family Court
Section 20 - xxx The petition may shall be enforceable in the judicial
likewise be filed with the Supreme region where they belong.
Court, Court of Appeals, or with
any of its members and, if so
granted, the writ shall be
enforceable anywhere in the
Philippines. The writ may be made
returnable to a Family Court or to
any regular court within the region
where the petitioner resides or
where the minor may be found for
hearing and decision on the
merits.

Upon return of the writ, the court

shall decide the issue on custody
of minors. The appellate court, or
the member thereof, issuing the
writ shall be furnished a copy of
the decision.

Following the case of Thornton vs

Thornton, the provisions of RA
8369 (The Family Courts Act of
1997) 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. The provisions of RA 8369
must be read in harmony with RA
7029 (An Act Expanding the
Jurisdiction of the Court of
Appeals) and BP 129 ― that
family courts have concurrent
jurisdiction with the Court of
Appeals and the Supreme Court in