CATEGORY HABEAS CORPUS AMPARO

GOVERNING LAW Rule 102 A.M. No. 07-9-12-SC

The writ of habeas The petition for a writ of

corpus is a remedy to all amparo is a remedy
cases of illegal available to any person
confinement or whose right to life,
detention by which any liberty and security is
person is deprived of his violated or threatened
liberty, or by which the with violation by an
rightful custody of any unlawful act or omission
DEFINITION
person is withheld from of a public official or
the person entitled employee, or of a private
thereto. (Sec. 1) individual or entity. (Sec.
1)
“Habeas corpus” is a
latin phrase which
means “produce the
body.”

Illegal confinement and The writ covers

detention: extralegal killings and
enforced disappearances
1. by which any person or threats thereof.
is deprived of his
REMEDY FOR liberty, or
2. by which the rightful
custody of any
person is withheld
from the person
entitled thereto.

The Rule took effect on The Rule took effect on

EFFECTIVITY
July 1, 1997. October 24, 2007.

Filed by the party for Filed by the aggrieved

whose relief it is party or by any qualified
intended, or by some person or entity in the
person on his behalf. following order:
PETITIONER (Sec. 3)
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.

Where the plaintiff Regional Trial Court of

resides, or where the
defendant resides, or in
case of non-resident
defendant, where he may
VENUE
be found, at the election
of the plaintiff. (Sec. 2)
the place where the
threat, act or omission
was committed or any of
its elements occurred, or
with the Sandiganbayan,
the Court of Appeals, the
Supreme Court, or any
justice of such courts.
(Sec. 3)

If granted by the SC, CA, The writ shall be

and SB: anywhere in the enforceable anywhere in
Philippines. the Philippines. (Sec.3)
EXTENT OF
ENFORCEABILITY If granted by the RTC:
only within its
jurisdiction. (Sec. 2)

On any day at any time. On any day at any time.

WHEN TO FILE
(Sec. 2) (Sec. 3)
DOCKET FEES AND Exempt (Sec.4)
OTHER LAWFUL FEES

The petition must be The petition shall be

signed and verified, nd signed and verified and
shall set forth: shall allege the
following:

a) That the person in

whose behalf the (a) The personal
application is made is circumstances of the
imprisoned or petitioner;
restrained on his
liberty; (b) The name and
personal
b) The officer or name circumstances of the
of the person by respondent
whom he is so responsible for the
imprisoned or threat, act or
restrained; or, if both omission, or, if the
are unknown or name is unknown or
uncertain, such uncertain, the
REQUISITES OF officer or person may respondent may be
PETITION be described by an described by an
assumed appellation, assumed
and the person who is appellation;
served with the writ
shall be deemed the (c) The right to life,
person intended; liberty and security
of the aggrieved
c) The place where he is party violated or
so imprisoned or threatened with
restrained, if known; violation by an
unlawful act or
d) A copy of the omission of the
commitment or cause respondent, and
of detention of such how such threat or
person, if it can be violation is
procured without committed with the
impairing the attendant
efficiency of the circumstances
remedy; or, if the detailed in
imprisonment or supporting
restraint is without affidavits;
 any legal authority,
such fact shall (d) The investigation
appear. (Sec. 3) conducted, if any,
specifying the
names, personal
circumstances, and
addresses of the
investigating
authority or
individuals, as well
as the manner and
conduct of the
investigation,
together with any
report;

(e) The actions and

recourses taken by
the petitioner to
determine the fate
or whereabouts of
the aggrieved party
and the identity of
the person
responsible for the
threat, act or
omission; and

(f) The relief prayed

for. (Sec. 5)

When it appears, it ought When on its face ought

ISSUANCE OF THE WRIT to be issued to be issued
immediately. (Sec. 5) immediately. (Sec. 6)

Hearing on return (Sec. Not later than seven (7)

SUMMARY HEARING 12) days from the date of its
issuance. (Sec. 6)

Service of the writ shall The writ shall be served

be made by leaving the upon the respondent by
original with the person a judicial officer or by a
MANNER OF SERVICE to whom it is directed person deputized by the
and preserving a copy on court, justice or judge
which to make return or who shall retain a copy
service. If that person on which to make a
 cannot be found, or has return of service. In case
not the prisoner in his the writ cannot be served
custody, then the service personally on the
shall be made on any respondent, the rules on
other person having or substituted service shall
exercising such custody. apply. (Sec. 8)
(Sec. 7)

The date specified in the Within FIVE (5)

writ. WORKING DAYS after
service of the writ, the
respondent shall file a
verified written return
together with supporting
WHEN TO FILE A affidavits.
RETURN
The period to file a
return cannot be
extended except on
highly meritorious
ground. (Sec. 9, as
amended)

The return shall state, in The respondent shall file

writing, the person in a verified written return
whose custody the together with supporting
prisoner is found and affidavits which shall,
upon the court or judge among other things,
before whom the writ is contain the following:
returnable, plainly and
unequivocably: a) The lawful defenses
to show that the
a) Whether he has or respondent did not
has not the party in violate or threaten
CONTENTS OF RETURN his custody or power, with violation the
or under restraint; right to life, liberty
and security of the
b) If he has the party in aggrieved party,
his custody or power, through any act or
or under restraint, omission;
the authority and the
true and whole cause b) The steps or actions
thereof, set forth at taken by the
large, with a copy of respondent to
the writ, order determine the fate or
execution, or other whereabouts of the
 process, if any, upon aggrieved party and
which the party is the person or persons
held; responsible for the
threat, act or
c) If the party is in his omission;
custody or power or
is restrained by him, c) All relevant
and is not produced, information in the
particularly the possession of the
nature and gravity of respondent
the sickness or pertaining to the
infirmity of such threat, act or
party by reason of omission against the
which he cannot, aggrieved party; and
without danger, be
bought before the d) If the respondent is a
court or judge; public official or
employee, the return
d) If he has had the shall further state the
party in his custody actions that have been
or power, or under or will still be taken:
restraint, and has
transferred such i. to verify the
custody or restraint identity of the
to another, aggrieved party;
particularly to whom,
at what time, for what ii. to recover and
cause, and by what preserve evidence
authority such related to the
transfer was made. death or
disappearance of
The return shall be the person
signed and sworn to if identified in the
the prisoner is not petition which may
produced. (Sec.10) aid in the
prosecution of the
person or persons
responsible;

iii. to identify
witnesses and
obtain statements
from them
concerning the
 death or
disappearance;

iv. to determine the

cause, manner,
location and time
of death or
disappearance as
well as any pattern
or practice that
may have brought
about the death or
disappearance;

v. to identify and
apprehend the
person or persons
involved in the
death or
disappearance;
and

vi. to bring the

suspected
offenders before a
competent court.

The return shall also

state other matters
relevant to the
investigation, its
resolution and the
prosecution of the case.

A general denial of the

allegations in the
petition shall not be
allowed. (Sec. 9)

Applies to: SECTION 7

PENALTIES 1. A clerk of a court who Applies to:

refuses to issue the
writ after allowance
 thereof and demand
therefor; or 1. A clerk of court who
refuses to issue the
2. A person to whom a writ after its
writ is directed, who allowance; or
neglects or refuses to
obey or make return 2. A deputized person
of the same who refuses to serve
according to the the same.
command thereof; or
PENALTY:
3. A person to whom a
writ is directed a) Contempt without
makes false return prejudice to other
thereof, disciplinary actions.

4. A person who, upon SECTION 16

demand made by or
on behalf of the Applies to:
prisoner, refuses to
deliver to the person 1. A respondent who
demanding, within refuses to make a
six (6) hours after the return;
demand therefor, a
true copy of the 2. A respondent who
warrant or order of makes a false return;
commitment.
3. Any person who
PENALTIES: disobeys or resists a
lawful process or
a) Forfeit to the party order of the court
aggrieved the sum of
one thousand pesos, PENALTIES:
to be recorded in a
proper action; and a) Contempt; and

b) May also be punished b) The contemnor may

by the court or judge be imprisoned or
as for contempt. (Sec. imposed a fine.
16)

a) Motion to dismiss;
PROHIBITED PLEADINGS
b) Motion for extension
AND MOTIONS
of time to file return,
opposition, affidavit,
 position paper and
other pleadings;

c) Dilatory motion for

postponement;

d) Motion for a bill of

particulars;

e) Counterclaim or
cross-claim;

f) Third-party
complaint;

g) Reply;

h) Motion to declare
respondent in
default;

i) Intervention;

j) Memorandum;

k) Motion for
reconsideration of
interlocutory orders
or interim relief
orders; and

l) Petition for certiorari,

mandamus or
prohibition against
any interlocutory
order. (Sec. 11)

EFFECT OF FAILURE TO Hear the petition ex

FILE A RETURN parte. (Sec. 12)

The hearing on the

petition shall be
summary. However, the
SUMMARY HEARING
court, justice or judge
may call for a
preliminary conference
 to simplify the issues
and determine the
possibility of obtaining
stipulations and
admissions from the
parties.

The hearing shall be

from day to day until
completed and given the
same priority as
petitions for habeas
corpus. (Sec. 13)

1. Unless for good cause a) Temporary

shown the hearing is Protection Order.
adjourned, the
hearing is adjourned, The court, justice or
in which event the judge, upon motion or
court or judge shall motu proprio, may order
make such order for that the petitioner or the
the safekeeping of aggrieved party and any
the person member of the
imprisoned or immediate family be
restrained as the protected in a
nature of the case government agency or
requires; by an accredited person
or private institution
2. If the person capable of keeping and
imprisoned or securing their safety. If
INTERIM RELIEFS
restrained is not the petitioner is an
produced because of organization,
his alleged sickness association or
or infirmity, the court institution, the
or judge must be protection may be
satisfied that it is so extended to the officers
grave that such involved.
person cannot be
produced without The Supreme Court shall
danger, before accredit the persons and
proceeding to hear private institutions that
and dispose of the shall extend temporary
matter. (Sec. 12) protection to the
petitioner or the
aggrieved party and any
member of the
immediate family, in
accordance with
guidelines which it shall
issue.

The accredited persons

and private institutions
shall comply with the
rules and conditions that
may be imposed by the
court, justice or judge.

(b) Inspection Order.

The court, justice or

judge, upon verified
motion and after due
hearing, may order any
person in possession or
control of a 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.

The motion shall state in

detail the place or places
to be inspected. It shall
be supported by
affidavits or testimonies
of witnesses having
personal knowledge of
the enforced
disappearance or
whereabouts of the
aggrieved party.

If the motion is opposed

on the ground of
national security or of
the privileged nature of
the information, the
court, justice or judge
may conduct a hearing in
chambers to determine
the merit of the
opposition.

The movant must show

that the inspection order
is necessary to establish
the right of the aggrieved
party alleged to be
threatened or violated.

The inspection order

shall specify the person
or persons authorized to
make the inspection and
the date, time, place and
manner of making the
inspection and may
prescribe other
conditions to protect the
constitutional rights of
all parties. The order
shall expire five (5) days
after the date of its
issuance, unless
extended for justifiable
reasons.

(c) Production Order.

The court, justice or

judge, upon verified
motion and after due
hearing, may order any
person in possession,
custody or control of 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.

The motion may be

opposed on the ground
of national security or of
the privileged nature of
the information, in
which case the court,
justice or judge may
conduct a hearing in
chambers to determine
the merit of the
opposition.

The court, justice or

judge shall prescribe
other conditions to
protect the
constitutional rights of
all the parties.

(d) Witness Protection

Order.

The court, justice or

judge, upon motion or
motu proprio, may refer
the witnesses to the
Department of Justice
for admission to the
Witness Protection,
Security and Benefit
Program, pursuant to
Republic Act No. 6981.

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
forthwith order his
discharge from
confinement, but such
JUDGMENT discharge shall not be
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 forthwith
released. (Sec. 15)
48 hours from notice of
judgment appealed from
by ordinary appeal. (Sec.
15 in relation to Sec. 3 of
Rule 41 and Sec. 39 of
B.P. Blg. 129)
APPEAL
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.
(Sec. 14)
The court shall render
judgment within ten (10)
days from the time the
petition is submitted for
decision. If the
allegations in the
petition are proven by
substantial evidence, the
court shall grant the
privilege of the writ and
such reliefs as may be
proper and appropriate;
otherwise, the privilege
shall be denied. (Sec. 18)
Any party may appeal
from the final judgment
or order to the Supreme
Court under Rule 45. The
appeal may raise
questions of fact or law
or both.
The period of appeal
shall be five (5) working
days from the date of
notice of the adverse
judgment.
 The appeal shall be given
the same priority as in
habeas corpus cases.
(Sec. 19)

The court shall not

dismiss the petition, but
shall archive it, if upon
its determination it
cannot proceed for a
valid cause such as the
failure of petitioner or
witnesses to appear due
to threats on their lives.

A periodic review of the

archived cases shall be
made by the amparo
court that shall, motu
proprio or upon motion
by any party, order their
revival when ready for
ARCHIVING AND
further proceedings. The
REVIVAL OF CASES
petition shall be
dismissed with prejudice
upon failure to
prosecute the case after
the lapse of two (2) years
from notice to the
petitioner of the order
archiving the case.

The clerks of court shall

submit to the Office of
the Court Administrator
a consolidated list of
archived cases under
this Rule not later than
the first week of January
of every year. (Sec. 20)

This Rule shall not

INSTITUTION OF
preclude the filing of
SEPARATE ACTIONS
separate criminal, civil
 or administrative
actions. (Sec. 21)

When a criminal action

has been commenced, no
separate petition for the
EFFECTS OF FILING writ shall be filed. The
CRIMINAL ACTION reliefs under the writ
shall be available by
motion in the criminal
case. (Sec. 22)

When a criminal action is

filed subsequent to the
filing of a petition for the
writ, the latter shall be
consolidated with the
criminal action.

CONSOLIDATION When a criminal action

and a separate civil
action are filed
subsequent to a petition
for a writ of amparo, the
latter shall be
consolidated with the
criminal action. (Sec. 23)

This Rule shall not

diminish, increase or
modify substantive
SUBSTANTIVE RIGHTS
rights recognized and
protected by the
Constitution. (Sec. 24)

In the absence of special The Rules of Court shall

provisions, the rules apply suppletorily
SUPPLETORY provided for in ordinary insofar as it is not
APPLICATION OF THE actions shall be, as far as inconsistent with this
RULES OF COURT practicable, applicable in Rule. (Sec. 25)
special proceedings.
(Sec. 2, Rule 72)
This table was derived from the book of Dean Festin entitled “Special Proceedings
(A Foresight to the Bar Exam and the Practice of Law”