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Section 15 – Suspension of
the Privilege of the Writ of
HABEAS CORPUS
Habeas corpus. Sec. 15. Art. III. “The
privilege of the writ of habeas corpus shall
not be suspended except in cases of
invasion or rebellion when public safety
requires it. ”]
Definition of a writ of habeas corpus:
“A writ issued by a court directed to a
person detaining another, commanding
him to produce the body of the prisoner
at a designated time and place, with the
day and cause of his caption and
detention, to do, to submit to, and to
receive whatever the court or judge
awarding the writ shall consider in his
behalf.” 2
When available. Habeas corpus
restores the liberty of an individual
subjected to physical restraint. The
high prerogative of the writ was devised
and exists as a speedy and effectual
remedy to relieve persons from unlawful
restraint and is the best and only
sufficient defense of personal freedom. It
secures to the prisoner the right to have
the cause of his detention examined and
determined by a court of justice, and to
have the issue ascertained as to whether
he is held under lawful authority.
Consequently, the writ may also be
availed of where, as a consequence of a
judicial proceeding
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[i] there has been deprivation of a
constitutional right resulting in the
restraint of the person; [ii] the court has
no jurisdiction to impose the sentence; or
[iii] an excessive penalty has been
imposed, since such sentence is void as to
the excess [Feria v. Court of Appeals, G.R.
No. 122954, February 15, 2000, and
reiterated in In Re: Reynaldo de Villa,
G.R. No. 158802, November 17, 2004]. It
may also extend to cases by which rightful
custody of any person is withheld from
the person entitled thereto P'ijing v.
Court of Appeals, G.R. No. 125901,
March 8, 2001] .
In Caunca v. Salazar, 82 Phil 851, the
writ was issued on the ground that moral
restraint was being exerted by the
employer to prevent the housemaid from
leaving. In Alcantara v. Director of
Prisons, 75 Phil 749, a person detained
during the Japanese Occupation for an
offense of political complexion could
demand his release on habeas corpus
after the legitimate government was
restored. In Gumabon v. Director of
Prisons, 37 SCRA 420, the right was
accorded a person sentenced to a longer
penalty than was subsequently meted out
to another person convicted of the same
offense. It may also be availed of in case of
unlawful denial of bail.
In Ordonez v. Director of Prisons, 235
SCRA 152, the Supreme Court granted the
writ in favor of two persons convicted by
the military court and condemned to die
by musketry, in view of the ruling in Tan v.
Barrios, 190 SCRA 686, that “civilians who
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have been convicted by military courts
and who have been serving (but not yet
completed) their sentences of
imprisonment, may be given the option
either to complete service of their
sentence or be tried anew by the civil
courts; and upon conviction, they should
be credited in the service of their
sentence for the full period of their
previous imprisonment; upon acquittal,
they should be set free”.
The writ will not issue where the person
alleged to be restrained of liberty is in the
custody of an officer under a process
issued by the court which has jurisdiction
to do so. The ultimate purpose of the writ
is to relieve a person from unlawful
restraint. It is essentially a writ of inquiry
and is granted to test the right under
which he was detained. Even if the
detention is, at its inception, illegal,
supervening events, such as the issuance
of a judicial process, may prevent the
discharge of the detained person
[Jackson v. Macalino, G.R. No. 139255,
November 24, 2003]. In Serapio v.
Sandiganbayan, G.R. No. 148468, the
Court observed that the petitioner was
under detention pursuant to the order of
arrest issued by the Sandiganbayan after
the filing by the Ombudsman of the
amended information for plunder against
petitioner and his co-accused. Petitioner
had, in fact, voluntarily surrendered to
the authorities on April 25, 2001, upon
learning that a warrant for his arrest had
been issued. Likewise, in Tung Chin Hui v.
Commissioner Rodriguez, G.R. No. 141938,
April 02, 2001, where the petitioner had
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already been charged and ordered
deported by the Bureau of Immigration
and Deportation, petitioner’s confinement
cannot be considered illegal and there is
no justification for the writ. Also, where
the person detained applied for and was
released on bail, the petition for habeas
corpus became moot and academic
insofar as it questioned the legality of the
arrest and detention [Magno v. Court of
Appeals, 212 SCRA 229]. Neither can
marital rights, including living in a
conjugal dwelling, be enforced by the
extraordinary writ of habeas corpus
[llusorio v. Bildner, G.R. No. 139789,
May 12, 2000].
The fact that the preliminary
investigation was invalid and that the
offense had already prescribed do not
constitute valid grounds for the issuance
of a writ of habeas corpus. The remedy is
to file a motion to quash the warrant of
arrest, or to file a motion to quash the
information based on prescription
[Paredes v. Sandiganbayan, 193 SCRA
464],
Restrictive custody and monitoring of
movement or whereabouts of police
officers under investigation by their
superiors is not a form of illegal detention
or restraint of liberty. A petition for
habeas corpus will be given due course
only if it shows that petitioner is being
detained or restrained of his liberty
unlawfully [SP02 Geronimo Manalo v.
PNP Chief Oscar Calderon, G.R. No.
178920, October 15, 2007],

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In Dizon v. Eduardo, 158 SCRA 470, in Likewise, in Feria v. Court of Appeals,

the case of desaparecidos (disappeared
persons), because the persons in whose
behalf the writ was issued could not be
found, there was no relief granted by the
Court, except to refer the matter to the
Commission on Human Rights, although
the Court ruled that in case of doubt as to
whether detainees had been actually
released, the burden of proof rests upon
the officers who detained them and who
claim to have effected the release of the
detainees.
In Angeles v. Director of New Bilibid
Prison, 240 SCRA 49, the Court declared
that all courts of competent jurisdiction
may entertain petitions for habeas corpus
to consider the release of petitioners
convicted for violation of the Dangerous
Drugs Act, provided they have served the
maximum term of the applicable penalties
newly prescribed by R.A. 7659. In this
regard, the formalities required shall be
construed liberally. In the instant case,
however, since petitioner had served only
the minimum of the prescribed penalty,
he is not entitled to be released on a
petition for habeas corpus.
In In Re: Petition for Habeas Corpus of
Wilfredo S. Sumulong- Torres, 251 SCRA
709, the petition was denied because with
the cancellation of the conditional pardon,
the petitioner would still have to serve his
prison term up to November 2, 2000.
Habeas corpus lies only where the
restraint of a person’s liberty has been
judicially adjudged to be illegal or
unlawful.
supra.,it was held that the loss of the
judicial records of the case, after 12 years
of detention in the service of the sentence
imposed for conviction of murder, will not
entitle the convict to be released on a writ
of habeas corpus. The proper remedy, is
reconstitution of judicial records.
Procedure. There is need to comply with
the writ; disobedience thereof constitutes
contempt of court [Contado v. Tan, 160
SCRA 404].
Grounds for suspension; duration of
suspension; congressional authority;
Supreme Court power of review;
application of suspension; effect of
martial law on privilege [Sec. 18, Art. VII:
xxx “In case of invasion or rebellion, when
the public safety requires it, (the
President) may, for a period not
exceeding sixty days, suspend the
privilege of the writ of habeas corpus x x
x . Within forty- eight hours from x x x the
suspension of the privilege of the writ of
habeas corpus, the President shall submit
a report in person or in writing to the
Congress. The Congress, voting jointly, by
a vote of at least a majority of all its
members in regular or special session,
may revoke such proclamation or
suspension, which revocation shall not be
set aside by the President. Upon the
initiative of the President, the Congress
may, in the same manner, extend such
proclamation or suspension fora period to
be determined by the Congress, if the

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invasion or rebellion shall persist and
public safety requires it. xxx The Supreme
Court may review, in an appropriate
proceeding filed by any citizen, the
sufficiency of the factual basis for the
proclamation of martial law or the
suspension of the privilege of the writ or
the extension thereof, and must
promulgate its decision thereon within
thirty days from filing, xxx The
suspension of the privilege of the writ
shall apply only to persons judicially
charged for rebellion or offenses inherent
in or directly connected with invasion.
During the suspension of the privilege of
the writ, any person thus arrested or
detained shall be judicially charged within
three days, otherwise he shall be
released. ”].
NOTE: Suspension of privilege does not
suspend right to bail [Sec. 13, Art. III].
all persons detained or to be detained for
the crimes of rebellion or insurrection
throughout the Philippines, which area
has lately been reduced to some eighteen
provinces, two sub-provinces and
eighteen cities with the partial lifting of
the suspension of the privilege effected by
Presidential Proclamations Nos. 889-B,
889-C and 889-D) and thus determine the
constitutional sufficiency of such bases in
the light of the requirements of Article III,
sec 1, par. 14, and Article VII, sec. 10,
par 2, of the Philippine Constitution; and
considering that the members of the
Court are not agreed on the precise scope
and nature of the inquiry to be made in
the premises, even as all of them are
agreed that the Presidential findings are
entitled to great respect, the Court
RESOLVED that these cases be set for
rehearing on October 8, 1971 at 9:30 A.M
Let us now consider the substantive
validity of the proclamation, as amended.

Pursuant to the above-quoted provisions

Lansang vs. Garcia [G.R. No. L-33964, of the Constitution, two (2) conditions
December 11, 1971] must concur for the valid exercise of the
authority to suspend the privilege to the
THE SUPREME COURT HAD writ, to wit:
AUTHORITY TO DETERMINE THE
SUFFICIENCY OF THE FACTUAL BASES (a) there must be "invasion, insurrection,
OF THE SUSPENSION OF THE or rebellion" or — pursuant to paragraph
PRIVILEGE OF THE WRIT OF HABEAS (2), section 10 of Art. VII of the
CORPUS. A majority of the Court having Constitution — "imminent danger
tentatively arrived at a consensus that it thereof," and
may inquire in order to satisfy itself of the
existence of the factual bases for the (b) "public safety" must require the
issuance of Presidential Proclamations suspension of the privilege. The
Nos. 889 and 889-A (suspending the Presidential Proclamation under
privilege of the writ of habeas corpus for

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consideration declares that there has
been and there is actually a state of
rebellion and that "public safety requires
that immediate and effective action be
taken in order to maintain peace and
order, secure the safety of the people and
preserve the authority of the State."
In our resolution of October 5, 1971, We
stated that "a majority of the Court" had
"tentatively arrived at a consensus that it
may inquire in order to satisfy itself of the
existence of the factual bases for the
issuance of Presidential Proclamations
Nos. 889 and 889-A . . . and thus
determine the constitutional sufficiency
of such bases in the light of the
requirements of Article III, sec. 1, par. 14,
and Article VII, sec. 10, par 2, of the
Philippine Constitution . . . ."
Upon further deliberation, the members
of the Court are now unanimous in the
conviction that it has the authority to
inquire into the existence of said factual
bases in order to determine the
constitutional sufficiency thereof.
Indeed, the grant of power to suspend the
privilege is neither absolute nor
unqualified. The authority conferred by
the Constitution, both under the Bill of
Rights and under the Executive
Department, is limited and conditional.
The precept in the Bill of Rights
establishes a general rule, as well as an
exception thereto. What is more, it
postulates the former in the negative,
evidently to stress its importance, by
providing that "(t)he privilege of the writ
of habeas corpus shall not be
suspended . . . ." It is only by way of
exception that it permits the suspension
of the privilege "in cases of invasion,
insurrection, or rebellion" — or, under
Art. VII of the Constitution, "imminent
danger thereof" — "when the public
safety requires it, in any of which events
the same may be suspended wherever
during such period the necessity for such
suspension shall exist." For from being
full and plenary, the authority to suspend
the privilege of the writ is thus
circumscribed, confined and restricted,
not only by the prescribed setting or the
conditions essential to its existence, but,
also, as regards the time when and the
place where it may be exercised. These
factors and the aforementioned setting or
conditions mark, establish and define the
extent, the confines and the limits of said
power, beyond which it does not exist.
And, like the limitations and restrictions
imposed by the Fundamental Law upon
the legislative department, adherence
thereto and compliance therewith may,
within proper bounds, be inquired into by
courts of justice.
Otherwise, the explicit constitutional
provisions thereon would be meaningless.
Surely, the framers of our Constitution
could not have intended to engage in such
a wasteful exercise in futility. Much less
may the assumption be indulged in when
we bear in mind that our political system
is essentially democratic and republican
in character and that the suspension of

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the privilege affects the most fundamental
element of that system, namely, individual
freedom. Indeed, such freedom includes
and connotes, as well as demands, the
right of every single member of our
citizenry to freely discuss and dissent
from, as well as criticize and denounce,
the views, the policies and the practices of
the government and the party in power
that he deems unwise, improper or
inimical to the commonweal, regardless
of whether his own opinion is objectively
correct or not. The untrammeled
enjoyment and exercise of such right —
which, under certain conditions, may be a
civic duty of the highest order — is vital
to the democratic system and essential to
its successful operation and wholesome
growth and development.
requires it. Although we must be
forewarned against mistaking mere
dissent — no matter how emphatic or
intemperate it may be — for dissidence
amounting to rebellion or insurrection,
the Court cannot hesitate, much less
refuse — when the existence of such
rebellion or insurrection has been fairly
established or cannot reasonably be
denied — to uphold the finding of the
Executive thereon, without, in effect,
encroaching upon a power vested in him
by the Supreme Law of the land and
depriving him, to this extent, of such
power, and, therefore, without violating
the Constitution and jeopardizing the very
Rule of Laws the Court is called upon to
epitomize.

Manifestly, however, the liberty

guaranteed and protected by our Basic
Law is one enjoyed and exercised, not in
derogation thereof, but consistently
therewith, and, hence, within the
framework of the social order established
by the Constitution and the context of the
Rule of Law. Accordingly, when individual
freedom is used to destroy that social
order, by means of force and violence, in
defiance of the Rule of Law — such as by
rising publicly and taking arms against
the government to overthrow the same,
thereby committing the crime of rebellion
— there emerges a circumstance that may
warrant a limited withdrawal of the
aforementioned guarantee or protection,
by suspending the privilege of the writ of
habeas corpus, when public safety
LANSANG VS. GARCIA [42 SCRA 448; L-
33964; 11 Dec 1971]
Facts: In the evening of August 21, 1971,
at about 9 p.m., while the Liberal Party of
the Philippines was holding a public
meeting at Plaza Miranda, Manila, for the
presentation of its candidates in the
general elections scheduled for November
8, 1971, two hand grenades were thrown
at the platform where said candidates and
other persons were. Eight persons were
killed and many more injured.
Proclamation 889 was issued by the
President suspending privilege of writ of
habeas corpus stating that there is a
conspiracy of rebellion and insurrection
in order to forcibly seize political power.

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Petitions for writ of habeas corpus were
filed by persons (13) who have been
arrested without a warrant.
It was stated that one of the safeguards of
the proclamation was that it is to be
applied to persons caught in flagrante
delicto. Incidentally, Proc. 889-A was
issued as an amendment, inserting the
word “actually staging”. Proc. 889-B was
also issued lifting the suspension of
privilege in 27 provinces, 3 sub-provinces
and 26 cities. Proc. 889-C was issued
restoring the suspension in 13 provinces
and cities(mostly in Mindanao). Proc.
889-D further lifted the suspension in 7
provinces and 4 cities. Only 18 provinces
and sub-provinces and 2 cities whose
privilege was suspended. Petitioners
maintained that Proclamation No. 889 did
not declare the existence of actual
"invasion insurrection or rebellion or
imminent danger thereof, however it
became moot and academic since it was
amended. Petitioners further contend that
public safety did not require the issuance
of proclamations stating: (a) that there is
no rebellion; (b) that, prior to and at the
time of the suspension of the privilege,
the Government was functioning
normally, as were the courts; (c) that no
untoward incident, confirmatory of an
alleged July-August Plan, has actually
taken place after August 21, 1971; (d)
that the President's alleged apprehension,
because of said plan, is non-existent and
unjustified; and (e) that the Communist
forces in the Philippines are too small and
weak to jeopardize public safety to such
extent as to require the suspension of the
privilege of the writ of habeas corpus.
A resolution was issued by majority of the
Court having tentatively arrived at a
consensus that it may inquire in order to
satisfy itself of the existence of the factual
bases for the proclamations. Now the
Court resolves after conclusive decision
reached by majority.
Issues:
(1) Whether or Not the authority to
decide whether the exigency has arisen
requiring suspension (of the privilege of
the writ of habeas corpus) belongs to the
President and his decision is final and
conclusive upon the courts and upon all
other persons.
(2) Whether or Not public safety require
the suspension of the privilege of the writ
of habeas corpus decreed in Proclamation
No. 889-A.
Held: The President has authority
however it is subject to judicial review.
Two conditions must concur for the valid
exercise of the authority to suspend the
privilege to the writ (a) there must be
"invasion, insurrection, or rebellion" or
"imminent danger thereof," and (b)
"public safety" must require the
suspension of the privilege. President has
three (3) courses of action: (a) to call out
the armed forces; (b) to suspend the
privilege of the writ of habeas corpus; and
(c) to place the Philippines or any part

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thereof under martial law. He had, corpus is not allowed or discharged

already, called out the armed forces,
proved inadequate. Of the two other
alternatives, the suspension of the
privilege is the least harsh.
Petitioners contention that CPP-NPA has
no ability, is negatived by the killing of 5
mayors, 20 barrio captains and 3 chiefs of
police; that there were fourteen (14)
meaningful bombing incidents in the
Greater Manila Area in 1970. CPP has
managed to infiltrate or establish and
control nine major labor organizations;
has exploited the (11) major student or
youth organizations; about thirty (30)
mass organizations actively advancing the
CPP.
authorized:
Sec. 4. When writ not allowed or
discharged authorized. — If it appears
that the person alleged to be restrained of
his liberty is in the custody of an officer
under process issued by a court or judge
or by virtue of a judgment or order of a
court of record, and that the court or
judge had jurisdiction to issue the process,
render the judgment; or make the order,
the writ shall not be allowed; or if the
jurisdiction appears after the writ is
allowed, the person shall not be
discharged by reason of any informality
or defect in the process, judgment, or
order.

Nor shall anything in this rule be held to

Jackson vs. Macalino [G.R. No. 139255,
November 24, 2003]
Section 1, Rule 102 of the Rules of Court,
as amended, provides that "except as
otherwise expressly provided by law, the
writ of habeas corpus shall extend to all
cases of illegal confinement or detention
by which any person is deprived of his
liberty, or by which the rightful custody of
any person is withheld from the person
entitled thereto." The ultimate purpose of
the writ of habeas corpus is to relieve a
person from unlawful restraint. It is
essentially a writ of inquiry and is granted
to test the right under which he is
detained. Section 4, Rule 102 of the said
Rules provides when the writ of habeas
authorize the discharge of a person
charged with or convicted of an offense in
the Philippines, or of a person suffering
imprisonment under lawful judgment.
The term "court" includes quasi-judicial
bodies like the Deportation Board of the
Bureau of Immigration. Even if the arrest
of a person is illegal, supervening events
may bar his release or discharge from
custody. What is to be inquired into is the
legality of his detention as of, at the
earliest, the filing of the application for a
writ of habeas corpus, for even if the
detention is at its inception illegal, it may,
by reason of same supervening events
such as the instances mentioned in
Section 4, Rule 102, be no longer illegal at
the time of the filing of the application.

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Any such supervening events are the
issuance of a judicial process preventing
the discharge of the detained person.
Moreover, the petitioner, in his motion for
reconsideration with the CID, offered to
post a bail bond for his provisional
release to enable him to secure the
necessary documents to establish the
appropriate grounds for his permanent
stay in the Philippines. By offering to post
a bail bond, the petitioner thereby
admitted that he was under the custody of
the CID and voluntarily accepted the
jurisdiction of the CID.15[35]
JACKSON VS MACALINO [G.R.
139255, November 24, 2003]
FACTS:
Am information was filed against an
American citizen, Raymond Jackson for
violation of Article 176 of the Revised
Penal Code. Summary deportation
proceedings were initiated at the
Commission of Immigration and
Deportation (CID) against the petitioner.
However, he could not be deported
because he filed a petition to lift the
summary order of deportation with the
CID which had not yet been resolved. The
CID then issued an order for his arrest for
being an undesirable alien, based on the
hold departure order in one of the
criminal cases.
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Jackson filed a petition for habeas corpus
against the Commissioner of the CID. The
court directed its issuance as well as a
return of the writ by the respondents. In
their return , the respondents alleged
inter alia that the detention was on the
basis of the summary deportation order
issued and the hold departure order of
the Makati RTC.
ISSUE:
WON the Commissioner of the CID can
issue warrants of arrest and if so, WON
such warrants can only be issued to
enforce a final order of deportation.
HELD:
The ultimate purpose of the writ of
No. habeas corpus is to relieve a person from
unlawful restraint. It is essentially a writ
of inquiry and is granted to test the right
under which he is detained. The term
“court” includes quasi-judicial bodies like
the Deportation Board of the Bureau of
Immigration.
As a general rule, the burden of proving
illegal restraint by the respondents rests
on the petitioner who attaches such
restraints. Whether the return sets forth
process where on its face shows good
ground for the detention of the petitioner,
it is incumbent on him to allege and prove
new matter that tends to invalidate the
apparent effects of such process. If it
appears that the detained person is in
custody under a warrant of commitment
in pursuance of law, the return shall be
considered prima facie evidence of the
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cause of restraint. In this case, based on
the return of the writ by the respondents,
Jackson was arrested and detained based
on the order of the BOC which had
become final and executory. His passports
were also cancelled by the US consul on
the ground that they were tampered with.
Based on previous jurisprudence, such
constitute sufficient grounds for the
arrest and deportation of aliens from the
Philippines. Hence, the petition was
dismissed.
In re: The issuance of Writ of Habeas
Corpus for Dr. Aurora Parong, et.al vs
Ponce Enrile
1. I submit that notwithstanding the
suspension of the privilege of the writ of
habeas corpus and the issuance on March
9, 1982 of Letter of Instruction No. 1211
that the Presidential Commitment Order
constitutes authority to keep the subject
person under detention "until ordered
released by the President or his duly
authorized representative" (which is a
mere internal instruction to certain
agencies), the higher and superior
mandate of the Constitution guarantees
the right to bail and vests the courts with
the jurisdiction and judicial power to
grant bail which may not be removed nor
diminished nor abdicated. We cannot but
so hold, if we are to be true to the
fundamental precept that "The
Constitution is a law for rulers and for
people equally in war and in peace and
covers with the shield of its protection all
classes of men at all times and under all
circumstances."
The argument that otherwise the purpose
of the suspension of the privilege would
be defeated ignores the overwhelming
capability of the State and its military and
police forces to keep suspects under
surveillance and the courts' imposition of
reasonable conditions in grating bail, such
as periodic reports to the authorities
concerned, and prohibiting their going to
certain critical areas.
2. The most authoritative pronouncement
in this regard is of course none other than
the President's himself. In all the
metropolitan newspapers of April 20,
1983, the President is reported to have
"said that Pimentel has been charged with
rebellion before the regional trial court of
Cebu City and is therefore under the
jurisdiction of the civil court and not only
under the jurisdiction of the military by
virtue of the PCO." In a telegram in reply
to the appeal of Msgr. Patrick Cronin,
Archbishop of Cagayan de Oro and
Misamis Oriental, for lifting of the PCO on
Mayor Aquilino Pimentel of Cagayan de
Oro City, the President said that "(T)he
disposal of the body of the accused, as any
lawyer will inform you, is now within the
powers of the regional trial court of Cebu
City and not within the powers of the
President."

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3. This is but in consonance with the
majority holding in the leading 1951
cases of Nava vs. Gatmaitan and
Hernandez vs. Montesa 8 (although it
failed one vote short of the required
majority of six affirmative votes at the
time) as expounded by then Chief Justice
Ricardo Paras and Associate Justice (later
Chief Justice) Cesar Bengzon and
Associate Justices Pedro Tuason, Alex
Reyes and Fernando Jugo that after
formal indictment in court by the filing
against them of an information charging
rebellion with multiple murder, etc.,
accused persons covered by the
proclamation of suspension of the
privilege of the writ of habeas corpus are
entitled to the right to bail.
4. As stressed by then Chief Justice
Ricardo Paras, "(T)he right to bail, along
with the right of an accused to be heard
by himself and counsel, to be informed of
the nature and cause of the accusation
against him, to have a speedy and public
trial, to meet the witnesses face to face,
and to have compulsory process to secure
the attendance of witnesses in his behalf
(Article III, Section 1, Paragraph 17, of the
Constitution), tends to aid the accused to
prove his innocence and obtain acquittal.
If it be contended that the suspension of
the privilege of the writ of habeas corpus
includes the suspension of the distinct
right to bail or to be provisionally at
liberty, it would a fortiori imply the
suspension of all his other rights (even
the right to be tried by a court) that may
win for him ultimate acquittal and, hence,
absolute freedom. The latter result is not
insisted upon for being patently
untenable."
Then Chief Justice Paras stressed that ". . .
The privilege of the writ of habeas corpus
and the right to bail guaranteed under the
Bill of Rights are separate and co-equal. If
the intention of the framers of the
Constitution was that the suspension of
the privilege of the writ of habeas corpus
carries or implies the suspension of the
right to bail, they would have very easily
provided that all persons shall before
conviction be bailable by sufficient
sureties, except those charged with
capital offenses when evidence of guilt is
strong and except when the privilege of
the writ of habeas corpus is suspended.
As stated in the case of Ex Parte Milligan,
4 Wall. 2, 18 L. ed. 297, the Constitution
limited the suspension to only one great
right, leaving the rest to remain forever
inviolable."
5. It is noteworthy and supportive of the
prevailing stand since 1951 that the other
great constitutional rights remain forever
inviolable since the Constitution limited
the suspension to only one great right (of
the privilege of the writ of habeas
corpus), that there has been no
amendment of the Constitution to curtail
the right to bail in case of such suspension
notwithstanding the numerous
constitutional amendments adopted after
the 1973 Constitution.

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6. The late Justice Pedro Tuason
emphasized that "(T)o the plea that the
security of the State would be jeopardized
by the release of the defendants on bail,
the answer is that the existence of danger
is never a justification for courts to
tamper with the fundamental rights
expressly granted by the Constitution.
These rights are immutable, inflexible,
yielding to no pressure of convenience,
expediency or the so-called 'judicial
statesmanship.' The Legislature itself
cannot infringe them, and no court
conscious of its responsibilities and
limitations would do so. If the Bill of
Rights are incompatible with stable
government and a menace to the Nation,
let the Constitution be amended, or
abolished. It is trite to say that, while the
Constitution stands, the courts of justice
as the repository of civil liberty are bound
to protect and maintain undiluted
individual rights."
7. And-former Chief Justice Cesar Bengzon
then made the same forceful plea echoed
these days by men of goodwill that
respect for constitutional and human
rights and adherence to the rule of law
would help in the fight against rebellion
and movement for national reconciliation,
thus: "And in my opinion, one of the
surest means to ease the uprising is a
sincere demonstration of this
Government's adherence to the principles
of the Constitution together with an
impartial application thereof to all
citizens, whether dissidents or not. Let
the rebels have no reason to apprehend
that their comrades now under custody
are being railroaded into Muntinglupa,
without benefit of those fundamental
privileges which the experience of the
ages has deemed essential for the
protection of all persons accused of crime
before the tribunal of justice. Give them
the assurance that the judiciary, ever
mindful of its sacred mission, win not,
thru faulty or misplaced devotion, uphold
any doubtful claims of governmental
power in diminution of individual rights,
but will always cling to the principles
uttered long ago by Chief Justice Marshall
that when in doubt as to the construction
of the Constitution, 'The Courts will favor
personal liberty.'"
8. The right to bail cannot just be
cancelled out summarily because of the
issuance of a PCO. In the case at bar,
detainee Dr. Aurora Parong is charged in
the municipal court with the crime of
illegal possession of firearm, which is a
clearly bailable offense. The charges filed
against the other detainees are likewise
for clearly bailable offenses. It is
elementary that the right to bail in non-
capital offenses and even in capital
offenses where evidence of guilt is not
strong will be generally granted and
respected by the courts, "the natural
tendency of the courts (being) towards a
fair and liberal appreciation," particularly
taking into consideration the record and
standing of the person charged and the
unlikelihood of his fleeing the court's
jurisdiction.

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As the Court held in the leading case of
Montano vs. Ocampo, 9 wherein the
Supreme Court granted bail to Senator
Montano who was charged with multiple
murders and frustrated murders:
"Brushing aside the charge that the
preliminary investigation of this case by
the aforesaid Judge was railroaded, the
same having been conducted at midnight,
a few hours after the complaint was filed,
we are of the opinion that, upon the
evidence adduced in the application for
bail in the lower court, as such evidence is
recited lengthily in the present petition
and the answer thereto, and extensively
analyzed and discussed in the oral
argument, there is not such clear showing
of guilt as would preclude all reasonable
probability of any other conclusion.
"In the evaluation of the evidence the
probability of flight is one other
important factor to be taken into account.
The sole purpose of confining accused in
jail before conviction, it has been
observed, is to assure his presence at the
trial. In other words, if denial of bail is
authorized in capital cases, it is only on
the theory that the proof being strong, the
defendant would flee, if he has the
opportunity, rather than face the verdict
of the jury. Hence the exception to the
fundamental right to be bailed should be
applied in direct ratio to the extent of the
probability of evasion of prosecution.
"The possibility of escape in this case,
bearing in mind the defendant's official
and social standing and his other personal
circumstances, seems remote if not nil."

"Exclusion from bail in capital offenses
being an exception to the otherwise
absolute right guaranteed by the
constitution, the natural tendency of the
courts has been toward a fair and liberal
appreciation, rather than otherwise, of
the evidence in the determination of the
degree of proof and presumption of guilt
necessary to warrant a deprivation of that
right.
"Besides, to deny bail it is not enough that
the evidence of guilt is strong; it must also
appear that in case of conviction the
defendant's criminal liability would
probably call for a capital punishment. No
clear or conclusive showing before this
Court has been made.
In the recent case of Sobremonte vs.
Enrile, 10 the detainee was released upon
her filing of the recommended P1,000.00
bail bond for the offense of possession of
subversive literature with which she was
charged and the habeas corpus petition,
like many others, although dismissed for
having thereby become moot,
accomplished the purpose of securing the
accused's release from prolonged
detention. The Court had occasion to
decry therein that "all the effort, energy
and man-hours expended by the parties
and their counsel, including this Court, . . .
could have been avoided had the officers
of the AVSECOM and the ISAFP responded
promptly to the inquiries of petitioner

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instead of giving her the 'run-around' by
referring her from one office to another."
9. "The continuous flow of petitions for
habeas corpus" filed with this Court
should not be decried nor discouraged.
The Court stands as the guarantor of the
constitutional and human rights of all
persons within its jurisdiction and must
see to it that the rights are respected and
enforced. It is settled in his jurisdiction
that once a deprivation of a constitutional
right is shown to exist, the court that
rendered the judgment or before whom
the case is pending is ousted of
jurisdiction and habeas corpus is the
appropriate remedy to assail the legality
of the detention. 11 So accused persons
deprived of the constitutional right of
speedy trial have been set free. 12 And
likewise persons detained indefinitely
without charges so much so that the
detention becomes punitive and not
merely preventive in character are
entitled to regain their freedom. The
spirit and letter of our Constitution
negates as contrary to the basic precepts
of human rights and freedom that a
person he detained indefinitely without
any charges.
"WHEREAS, the Filipino people, having
subdued threats to the stability of
government, public order and security,
are aware that the time has come to
consolidate the gains attained by the
nation under a state of martial law by
assuming their normal political roles and
shaping the national destiny within the
framework of civil government and
popular democracy:
"WHEREAS, the experience gained by the
nation under martial law in subduing
threats to the stability of the government,
public order and security, has enabled the
Filipino people to rediscover their
confidence in their ability to command
the resources of national unity,
patriotism, discipline and sense of
common destiny;
"WHEREAS, the government and the
people are at the same time also aware
that the public safety continues to require
a degree of capability to deal adequately
with elements who persist in endeavoring
to overthrow the government by violent
means and exploiting every opportunity
to disrupt the peaceful and productive
labors of the government; . . ."

III. The main opinion invokes "a time of
war or grave peril to the nation" (at page
16), oblivious of the President's lifting of
martial law under Proclamation No. 2045
on January 17, 1981 and the specific
premises therein set forth that.
As to the "self-evident" submittal of the
main opinion that "the duty of the
judiciary to protect individual rights must
yield to the power of the Executive to
protect the State, for if the State perishes,
the Constitution, with the Bill of Rights
that guarantees the right to personal
liberty, perishes with it" (at page 16), I

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can only recall the exhortation of the Holy
Father John Paul II in his address to the
Philippine nation on February 17, 1981,
thus: "Even in exceptional situations that
may at times arise, one can never justify
any violation of the fundamental dignity
of the human person or of the basic rights
that safeguard this dignity. Legitimate
concern for the security of a nation, as
demanded by the common good, could
lead to the temptation of subjugating to
the State the human being and his or her
dignity and rights. Any apparent conflict
between the exigencies of security and of
the citizens' basic rights must be resolved
according to the fundamental principle -
upheld always by the Church -that social
organization exists only for the service of
man and for the protection of his dignity,
and that it cannot claim to serve the
common good when human rights are not
safeguard People will have faith in the
safeguarding of their security and the
promotion of their well-being only to the
extent that they feel truly involved, and
supported in their very humanity."
WRIT OF HABEAS CORPUS
Defendants who want to challenge the
legality of their imprisonment -- or the
conditions in which they are being
imprisoned -- may seek help from a court
by filing an application for what is known
as a "writ of habeas corpus."
A writ of habeas corpus (literally to
"produce the body") is a court order to a
person (prison warden) or agency
(institution) holding someone in custody
to deliver the imprisoned individual to
the court issuing the order. Many state
constitutions provide for writs of habeas
corpus, as does the U.S. Constitution,
which specifically forbids the government
from suspending writ proceedings except
in extraordinary times -- such as war.
Known as "the Great Writ," habeas corpus
gives citizens the power to get help from
courts to keep government and any other
institutions that may imprison people in
check. In many countries, police and
military personnel, for example, may take
people and lock them up for months --
even years -- without charging them, and
those imprisoned have no avenue, no
legal channel, by which to protest or
challenge the imprisonment.

A writ of habeas corpus (literally to
"produce the body") is a court order to a
person (prison warden) or agency
(institution) holding someone in custody
to deliver the imprisoned individual to
the court issuing the order.
The writ of habeas corpus gives jailed
suspects the right to ask an appellate
judge to set them free or order an end to
improper jail conditions, and thereby
ensures that people in this country will
not be held for long times in prison in
violation of their rights. Of course, the
right to ask for relief is not the same as

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the right to get relief; courts are very the merits. It may also be granted by a
stingy with their writs. Court of First Instance, or a judge thereof,
on any day and at any time, and
returnable before himself, enforceable
only within his judicial district.

SPECIAL PROCEEDINGS: THE WRIT OF xxxx

HABEAS CORPUS
Essentially, a writ of habeas
corpus applies to all cases of illegal
confinement or detention by which any
person is deprived of his liberty (Moncupa
v. Enrile, 225 Phil. 191, 197 (1986). Rule
102 of the 1997 Rules of Court sets forth
the procedure to be followed in the
issuance of the writ. The Rule provides:
“SECTION 1. To what habeas
corpus extends. – Except as otherwise
expressly provided by law, the writ of
habeas corpus shall extend to all cases of
illegal confinement or detention by which
any person is deprived of his liberty, or by
which the rightful custody of any person
is withheld from the person entitled
thereto.
SEC 2. Who may grant the writ.
– The writ of habeas corpus may be
granted by the Supreme Court, or any
member thereof, on any day and at any
time, or by the Court of Appeals or any
member thereof in the instances
authorized by law, and if so granted it
shall be enforceable anywhere in the
Philippines, and may be made returnable
before the court or any member thereof,
or before a Court of First Instance, or any
judge thereof for hearing and decision on
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SEC. 4. When writ not allowed
or discharge authorized. – If it appears
that the person alleged to be restrained of
his liberty is in the custody of an officer
under process issued by a court or judge
or by virtue of a judgment or order of a
court of record, and that the court or
judge had jurisdiction to issue the
process, render the judgment, or make
the order, the writ shall not be allowed; or
if the jurisdiction appears after the writ is
allowed, the person shall not be
discharged by reason of any informality
or defect in the process, judgment, or
order. Nor shall anything in this rule be
held to authorize the discharge of a
person charged with or convicted of an
offense in the Philippines, or of a person
suffering imprisonment under lawful
judgment” (emphasis supplied).
The objective of the writ is to
determine whether the confinement or
detention is valid or lawful. If it is, the
writ cannot be issued. What is to be
inquired into is the legality of a person’s
detention as of, at the earliest, the filing of
the application for the writ of habeas
corpus, for even if the detention is at its
inception illegal, it may, by reason of
some supervening events, such as the

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instances mentioned in Section 4 of Rule
102, be no longer illegal at the time of the
filing of the application (Go, Sr. v. Ramos,
G.R. No. 167569, 4 September 2009, 598
SCRA 266, 301).
Plainly stated, the writ obtains
immediate relief for those who have been
illegally confined or imprisoned without
sufficient cause. The writ, however,
should not be issued when the custody
over the person is by virtue of a judicial
process or a valid judgment.
The most basic criterion for the
issuance of the writ, therefore, is that the
individual seeking such relief is illegally
deprived of his freedom of movement or
placed under some form of illegal
restraint. If an individual’s liberty is
restrained via some legal process, the writ
of habeas corpus is unavailing. (In Re: The
Writ of Habeas Corpus for Reynaldo De
Villa, G.R. No. 158802, 17 November 2004,
442 SCRA 706, 719).
Fundamentally, in order to justify
the grant of the writ of habeas corpus, the
restraint of liberty must be in the nature
of an illegal and involuntary deprivation
of freedom of action.(Veluz v.
Villanueva, G.R. No. 169482, 29 January
2008, 543 SCRA 63, 67-68).
In general, the purpose of the writ
of habeas corpus is to determine whether
or not a particular person is legally held.
A prime specification of an application for
a writ of habeas corpus, in fact, is an actual
and effective, and not merely nominal or
moral, illegal restraint of liberty. The writ
of habeas corpus was devised and exists
as a speedy and effectual remedy to
relieve persons from unlawful restraint,
and as the best and only sufficient defense
of personal freedom. A prime
specification of an application for a writ of
habeas corpus is restraint of liberty. The
essential object and purpose of the writ of
habeas corpus is to inquire into all
manner of involuntary restraint as
distinguished from voluntary, and to
relieve a person therefrom if such
restraint is illegal. Any restraint which
will preclude freedom of action is
sufficient. (Ibid).
Finally, in passing upon a petition
for habeas corpus, a court or judge must
first inquire into whether the petitioner is
being restrained of his liberty. If he is not,
the writ will be refused. Inquiry into the
cause of detention will proceed only
where such restraint exists. If the alleged
cause is thereafter found to be unlawful,
then the writ should be granted and the
petitioner discharged. Needless to state, if
otherwise, again the writ will be
refused. (Ibid).
In fine, while habeas corpus is a
writ of right, it will not issue as a matter
of course or as a mere perfunctory
operation on the filing of the petition.
Judicial discretion is called for in its
issuance and it must be clear to the judge
to whom the petition is presented that,
prima facie, the petitioner is entitled to

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the writ. It is only if the court is satisfied
that a person is being unlawfully
restrained of his liberty will the petition
for habeas corpus be granted. If the
respondents are not detaining or
restraining the applicant or the person in
whose behalf the petition is filed, the
petition should be dismissed. (NURHIDA
JUHURI AMPATUAN vs. JUDGE VIRGILIO
V. MACARAIG, G.R. No. 182497, June 29,
2010, PEREZ, J.).
protecting the right to life, liberty and
security, especially of victims of politically
motivated crimes.
ADVERTISEMENT
Under the writ of habeas data, a person
can compel the release of information, or
to update, rectify, suppress or destroy
database, information or files in the
control of the respondents in a petition.

Then Chief Justice Reynato Puno said that

WRIT OF HABEAS DATA
The writ of habeas data is a remedy
available to any person whose right to
privacy in life, liberty or security is
violated or threatened by an unlawful act
of any official or employee, or of a private
individual or entity engaged in the
gathering, collecting or storing of data or
information.
The judicial remedy, approved on Jan. 22,
2008, and which took effect on Feb. 2,
2008, was crafted amid an alarming rise
in the number of forced disappearances
and extrajudicial executions, including the
murders of leftist militants and
journalists during the Arroyo
administration.
The writ of habeas data functions as an
independent remedy as well as a
complement to the writs of habeas corpus
and amparo—both of which are aimed at
in the case of the habeas data, its rules did
not hinder the gathering of information
against a person, but only erroneous ones.
Puno said that many violations of the
right to informational privacy had taken
place around the world and the Supreme
Court was not blind to these.
For instance, the police in many countries
keep files on citizens for political
purposes even though these people have
not been accused of any crime while
several instances of illegal wiretaps have
been done by private parties and mostly
on behalf of the government.
THE RULE ON THE WRIT OF HABEAS
DATA
Section 1. Habeas Data. - The writ of
habeas data is a remedy available to any
person whose right to privacy in life,
liberty or security is violated or
threatened by an unlawful act or omission

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of a public official or employee, or of a

private individual or entity engaged in the
gathering, collecting or storing of data or
information regarding the person, family,
home and correspondence of the
aggrieved party.
Sec. 2. Who May File. - Any aggrieved
party may file a petition for the writ of
habeas data. However, in cases of
extralegal killings and enforced
disappearances, the petition may be filed
by:
(a) Any member of the immediate family
of the aggrieved party, namely: the spouse,
children and parents; or
(b) Any ascendant, descendant or
collateral relative of the aggrieved party
within the fourth civil degree of
consanguinity or affinity, in default of
those mentioned in the preceding
paragraph; or
Sec. 3. Where to File. - The petition may
be filed with the Regional Trial Court
where the petitioner or respondent
resides, or that which has jurisdiction
over the place where the data or
information is gathered, collected or
stored, at the option of the petitioner.
The petition may also be filed with the
Supreme Court or the Court of Appeals or
the Sandiganbayan when the action
concerns public data files of government
offices.
Sec. 4. Where Returnable; Enforceable. -
When the writ is issued by a Regional
Trial Court or any judge thereof, it shall
be returnable before such court or judge.
When issued by the Court of Appeals or
the Sandiganbayan or any of its justices, it
may be returnable before such court or
any justice thereof, or to any Regional
Trial Court of the place where the
petitioner or respondent resides, or that
which has jurisdiction over the place
where the data or information is gathered,
collected or stored.
When issued by the Supreme Court or any
of its justices, it may be returnable before
such Court or any justice thereof, or
before the Court of Appeals or the
Sandiganbayan or any of its justices, or to
any Regional Trial Court of the place
where the petitioner or respondent
resides, or that which has jurisdiction
over the place where the data or
information is gathered, collected or
stored.
The writ of habeas data shall be
enforceable anywhere in the Philippines.
Sec. 5. Docket Fees. - No docket and other
lawful fees shall be required from an
indigent petitioner. The petition of the
indigent shall be docked and acted upon
immediately, without prejudice to
subsequent submission of proof of
indigency not later than fifteen (15) days
from the filing of the petition.

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Sec. 6. Petition. - A verified written
petition for a writ of habeas data should
contain:
(a) The personal circumstances of the
petitioner and the respondent;
(b) The manner the right to privacy is
violated or threatened and how it affects
the right to life, liberty or security of the
aggrieved party;
Sec. 7. Issuance of the Writ. - Upon the
filing of the petition, the court, justice or
judge shall immediately order the
issuance of the writ if on its face it ought
to issue. The clerk of court shall issue the
writ under the seal of the court and cause
it to be served within three (3) days from
the issuance; or, in case of urgent
necessity, the justice or judge may issue
the writ under his or her own hand, and
may deputize any officer or person serve
it.

(c) The actions and recourses taken by
the petitioner to secure the data or
information;
(d) The location of the files, registers or
databases, the government office, and the
person in charge, in possession or in
control of the data or information, if
known;
(e) The reliefs prayed for, which may
include the updating, rectification,
suppression or destruction of the
database or information or files kept by
the respondent.
In case of threats, the relief may include a
prayer for an order enjoining the act
complained of; and
The writ shall also set the date and time
for summary hearing of the petition
which shall not be later than ten (10)
work days from the date of its issuance.
Sec. 8. Penalty for Refusing to Issue or
Serve the Writ. - A clerk of court who
refuses to issue the writ after its
allowance, or a deputized person who
refuses to serve the same, shall be
punished by the court, justice or judge for
contempt without prejudice to other
disciplinary actions.
Sec. 9. How the Writ is Served. - The writ
shall be served upon the respondent by a
judicial officer or by a person deputized
by the court, justice or judge who shall
retain a copy on which to make a return
of service. In case the writ cannot be
served personally on the respondent, the
rules on substituted service shall apply.

(f) Such other relevant reliefs as are just Sec. 10. Return; Contents. - The
and equitable. respondent shall file a verified written
return together with supporting affidavits

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within five (5) working days from service Sec. 11. Contempt. - The court, justice or
of the writ, which period may be judge may punish with imprisonment or
reasonably extended by the Court for fine a respondent who commits contempt
justifiable reasons. The return shall, by making a false return, or refusing to
among other things, contain the make a return; or any person who
following: otherwise disobeys or resist a lawful
process or order of the court.

(a) The lawful defenses such as national
security, state secrets, privileged
communications, confidentiality of the
source of information of media and
others;
(b) In case of respondent in charge, in
possession or in control of the data or
information subject of the petition;
Sec. 12. When Defenses May be Heard in
Chambers. - A hearing in chambers 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 information
cannot be divulged to the public due to its
nature or privileged character.

Sec. 13. Prohibited Pleadings and Motions.

(i) a disclosure of the data or information - The following pleadings and motions are
about the petitioner, the nature of such prohibited:
data or information, and the purpose for
its collection;
(a) Motion to dismiss;
(ii) the steps or actions taken by the
respondent to ensure the security and (b) Motion for extension of time to file
confidentiality of the data or information; return, opposition, affidavit, position
and paper and other pleadings;

(iii) the currency and accuracy of the data (c) Dilatory motion for postponement;
or information held; and,
(d) Motion for a bill of particulars;
(c) Other allegations relevant to the
resolution of the proceeding. (e) Counterclaim or cross-claim;

(f) Third-party complaint;

A general denial of the allegations in the
petition shall not be allowed. (g) Reply;

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(h) Motion to declare respondent in rectification of the erroneous data or

default; information and grant other relevant
reliefs as may be just and equitable;
(i) Intervention; otherwise, the privilege of the writ shall
be denied.
(j) Memorandum;
Upon its finality, the judgment shall be
(k) Motion for reconsideration of enforced by the sheriff or any lawful
interlocutory orders or interim relief officers as may be designated by the court,
orders; and justice or judge within five (5) working
days.
(l) Petition for certiorari, mandamus or
prohibition against any interlocutory Sec. 17. Return of Service. - The officer
order. who executed the final judgment shall,
within three (3) days from its
enforcement, make a verified return to
Sec. 14. Return; Filing. - In case the the court. The return shall contain a full
respondent fails to file a return, the court, statement of the proceedings under the
justice or judge shall proceed to hear the writ and a complete inventory of the
petition ex parte, granting the petitioner database or information, or documents
such relief as the petition may warrant and articles inspected, updated, rectified,
unless the court in its discretion requires or deleted, with copies served on the
the petitioner to submit evidence. petitioner and the respondent.

The officer shall state in the return how

Sec. 15. Summary Hearing. - The hearing
on the petition shall be summary.
However, the court, justice or judge may
call for a preliminary conference to
simplify the issues and determine the
possibility of obtaining stipulations and
admissions from the parties.
Sec. 16. Judgment. - The court shall render
judgment within ten (10) days from the
time the petition is submitted for decision.
If the allegations in the petition are
proven by substantial evidence, the court
shall enjoin the act complained of, or
order the deletion, destruction, or
the judgment was enforced and complied
with by the respondent, as well as all
objections of the parties regarding the
manner and regularity of the service of
the writ.
Sec. 18. Hearing on Officer-s Return. - The
court shall set the return for hearing with
due notice to the parties and act
accordingly.
Sec. 19. Appeal. - Any party may appeal
from the final judgment or order to the

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Supreme Court under Rule 45. The appeal The procedure under this Rule shall
may raise questions of fact or law or both. govern the disposition of the reliefs
available under the writ of habeas data.

The period of appeal shall be five (5) Sec. 23. Substantive Rights. - This Rule
working days from the date of notice of shall not diminish, increase or modify
the judgment or final order. substantive rights.

The appeal shall be given the same Sec. 24. Suppletory Application of the
priority as in habeas corpus and amparo Rules of Court. - The Rules of Court shall
cases. apply suppletorily insofar as it is not
inconsistent with this Rule.
Sec. 20. Institution of Separate Actions. -
The filing of a petition for the writ of
habeas data shall not preclude the filing of Sec. 25. Effectivity. - This Rule shall take
separate criminal, civil or administrative effect on February 2, 2008, following its
actions. publication in three (3) newspapers of
general circulation.
Sec. 21. Consolidation. - When a criminal
action is filed subsequent to the filing of a
petition for the writ, the latter shall be
consolidated with the criminal action.

When a criminal action and a separate

civil action are filed subsequent to a
petition for a writ of habeas data, the
petition shall be consolidated with the
criminal action.

After consolidation, the procedure under

this Rule shall continue to govern the
disposition of the reliefs in the petition.

Sec. 22. Effect of Filing of a Criminal

Action. - When a criminal action has been
commenced, no separate petition for the
writ shall be filed. The relief under the
writ shall be available to an aggrieved
party by motion in the criminal case.

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