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K. GUARDIANSHIP 1. General powers and duties of guardians

1. 2. 3. 4. 5. 6.

have the care and custody of the person of the ward, and the management of his estate, or the management of the estate only, as the case may be; pay the debts of the ward; settle accounts, collect debts and appear in actions for ward; manage the estate of the ward frugally, and apply the proceeds to maintenance of the ward; render verified inventory verified within 3 MONTHS after his appointment and annually thereafter upon application of interested persons; and render to court for its approval an accounting of the property for 1 YEAR from his appointment & every year thereafter.

2. Conditions of the bond of the guardian 1. Undertaking of bond of guardian: a. Make and return a complete inventory of the property of the estate which has come to his possession or knowledge, or the possession of any person for him, within 3 months; b. To faithfully execute the duties of his trust; c. To render a true and just account; and d. Perform all orders of the court. 2. Bond may be proceeded against in the same or separate proceeding for the use and benefit of the ward, or of any other person legally interested in the estate. 3. Rule on Guardianship over minor Grounds for Petition (Sec. 4) 1. Continued Absence, or Incapacity or Death of his parents; (AID) 2. Suspension, Termination or Deprivation of parental authority; (STD) 3. Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; 4. When the best interest of the minor so requires.
A. Who may be appointed guardian of the person or property, or both, of a minor

(Sec.6) In default of parents or a court appointed guardian, the court may the following observing as far as, practicable, the ORDER OF PREFERENCE: 1. the SURVIVING GRANDPARENT and in case several grandparents survive, the court shall select any of them taking into account all relevant considerations; 2. the OLDEST BROTHER OR SISTER of the minor over twenty-one years of age, unless unfit or disqualified; 3. the ACTUAL CUSTODIAN of the minor over twenty-one years of age, unless unfit or disqualified; and
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4. any

OTHER PERSON, who in the sound discretion of the court would serve the best interests of the minor.

B. Bond of parents as guardians of property of minor (Sec. 16)

If the market value of the property on the annual income of the child exceeds P50,000, the parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the value of such property or income, to guarantee the performance of the obligations prescribed for general guardians. L. ADOPTION 1. Distinguish domestic adoption from inter-country adoption Domestic Adoption Inter-country Adoption

Covers the domestic adoption of Covers inter-country adoption of Filipino children. Filipino children by foreign nationals and Filipino citizens permanently residing abroad. Ensure that every child remains Alternative means of child care, if under the care and custody of his the child cannot be placed in a foster parents. or an adoptive family or cannot, in any suitable manner, be cared for in the Philippines. 2. Domestic Adoption Act a. Effects of adoption (Sections 16-18) 1. Adopter will exercise parental authority. 2. All legal ties between biological parents and the adoptee shall be severed, except when biological parent is spouse of adopter. 3. Adoptee shall be considered legitimate child of adopter for all intents and purposes. 4. Adopters shall have reciprocal rights of succession without distinction from legitimate filiation. If the adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern. b. Instances when adoption may be rescinded (Section 19) 1. Repeated physical and verbal maltreatment, despite having undergone counselling. 2. Attempt on the adoptees life. 3. Sexual assault/violence. 4. Abandonment or failure to comply with parental obligations.
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c. Effects of rescission of adoption (Section 20) 1. parental authority or legal custody will be restored 2. reciprocal rights of adoptee and adopter will be extinguished 3. vested rights required prior to judicial rescission shall be respected 4. adoptee shall use the name stated in his original borth or foundling certificate 5. civil registrar will reinstate his original birth or foundling certificate Note: Unlike in revocation of guardianship, revocation of adoption is a separate proceeding from the adoption. 3. Inter-country Adoption a. When allowed (Sec. 27a, A.m. No. 02-6-02-SC 2002-08-02). Inter-country adoption as an alternative means of child care, is allowed if the child cannot be placed in a foster or an adoptive family or cannot, in any suitable manner, be cared for in the Philippines. b. Functions of the RTC The Regional Trial Court appears merely to receive applications from foreign adoption agencies, evaluate and assess the qualifications of the proposed adopter, and pursuant to the implementing rules, the court must submit its findings and the application papers to the Inter-Country Adoption Board (ICAB). The supervised trial custody is conducted and the decree of adoption is issued by the court in the place of the adopter abroad. c. Best interest of the Minor Standard Inter-country adoptions are allowed only when the same shall prove beneficial to the child's best interests, and shall serve and protect his/her fundamental rights.

M. WRIT OF HABEAS CORPUS

1.

Contents of the Petition.

The petition signed and verified either by the party for whose relief it is intended or by some person on his behalf are: (Section 3, Rule 102)
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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 or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; c. The place where he is so imprisoned or restrained, if known; d. A copy of the commitment or cause of detention of such person, if it can be procured without any legal authority, such fact shall appear. 2. Contents of the Return.

The person making the return shall state in writing: (Section 10, Rule 102) a. Whether he has or has not the party in his custody or power, or under the 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, either 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 brought before the court or judge; d. If he has 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. Note: Failure of petitioner to file a reply to the Return of the Writ warrants the dismissal of the petition. Unless the allegations in the return are controverted, they are deemed to be true or admitted pursuant to Section 13, Rule 102 that the return shall be considered prima facie evidence of the cause of the restraint, if it appears that the prisoner is in custody under warrant of commitment in pursuance of law. 3. Distinguish peremptory writ from preliminary citation Peremptory writ It is issued when the cause of detention appears to be patently illegal and the noncompliance therewith is punishable. Preliminary citation

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Where a person is detained under governmental authority and the illegality of his detention is not patent from the petition for the writ, the court may issue a citation to the government officer having the person in/her custody to show cause why the writ should not issue. 4. When not proper/applicable a) b) for asserting or vindicating denial of right to bail; for correcting errors in appreciation of facts/law; Note: Habeas Corpus can never be a substitute for appeal The person on bail is not entitled to habeas corpus because his detention is legal and technical 5. When writ disallowed/discharged a) If the person is in custody of an officer under process issued by a court or by virtue of a judgment or order of a court of record which has jurisdiction to issue the process, render the judgment or make an order; If jurisdiction appears after the writ is allowed; If the person is charged with or convicted of an offense in the Philippines

b) c)

Note: Even if the arrest of a person is illegal, supervening events may bar release from custody. What is to be inquired into is the illegality of the detention as of, at the earliest, the filing of the application for the writ of habeas corpus (Velasco vs. CA, July 7, 1995 6. Distinctions of Habeas Corpus from the Writs of Amparo and Habeas Data As to purpose: Writ of Habeas Corpus Purpose is either:
o

To relieve a person from physical restraint or illegal confinement (Note: restraint is not limited to physical restraint. It can mean restraint of a persons other constitutional rights such as the right of abode and movement. [Herrera, p. 473 citing Moncupa v. Enrile]); OR

o To grant lawful custody to person to whom such custody lawfully belongs. (Herrera, Remedial Law III-A, p. 467 and 475)

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Writ of Amparo - to grant relief to a person whose life, liberty and security is violated or threatened to be violated by an unlawful act or omission (Sec.1, Amparo Rule [AR]); Writ of Habeas Data to grant relief to a person whose right to PRIVACY in life, liberty and security is violated or threatened to be violated by an unlawful act or omission (Sec.1, Habeas Data Rule [HDR]).

As to who grants the writ: Writ of Habeas Corpus SC, CA, RTC (Sec.2, Rule 102, RC) Writ of Amparo and Habeas Data SC, CA, Sandiganbayan, RTC (Sec. 3 of both AR and HDR)

As to whom it is directed: Writ of Habeas Corpus directed against: o An officer or individual who unlawfully restrains a person of his liberty; o An individual who unlawfully deprives another of lawful custody (Sec.6, Rule 102, RC). Writ of Amparo - directed against a private individual/entity, or a public officer/employee (Sec.1, AR.); Writ of Habeas Data also directed against a private individual/entity, or a public officer/employee BUT one who is ENGAGED in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party (Sec.1, HDR.).

As to scope: Writ of Habeas Corpus covers:

o

All forms of unlawful restraint which includes not only: Physical restraint; BUT ALSO Restraint upon ones other freedoms such as the freedom of movement, of abode, and other constitutional freedoms. (See Herrera, pp. 471 747)

Deprivation of lawful custody (See Herrera p. 467 and 475)

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Writ of Amparo - covers extralegal killings and enforced disappearances or threats thereof (Sec.1, AR.); Writ of Habeas Data - covers the gathering, collecting, or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. (Sec.1, HDR).

As to who may file: Writ of Habeas Corpus the party himself, or some other person on his behalf (Sec. 3, Rule 102, RC) Writ of Amparo - any concerned citizen, organization, association or institution MAY file IN DEFAULT of:
o o

Immediate family spouse, children, parents of the aggrieved; Relatives ascendants, descendants, relatives by consanguinity or affinity within the 4th civil degree (Sec.2, AR.)

Writ of Habeas Data - only immediate family and relatives may file. Other citizens, organizations, associations or institutions CANNOT file (Sec.2, HDR).

As to date of summary hearing: Writ of Habeas Corpus not specified Writ of Amparo - not later than 7 days from issuance of the writ (Sec.6, AR); Writ of Habeas Data - not later than 10 days from issuance of the writ (Sec.7, HDR).

As to period to file respondent's return: Writ of Habeas Corpus no period stated Writ of Amparo return must be filed within 5 days from service of the writ; the period CANNOT be extended (Sec.9, AR); Writ of Habeas Data return also to be filed within a period of 5 days from service of the writ; but MAY be extended for JUSTIFIABLE reasons (Sec.10, HDR).

As to the nature of the hearing:

Writ of Habeas Corpus accorded high priority Writ of Amparo - assumes equal priority to the Writ of Habeas Corpus (Sec.13, WA);
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Writ of Habeas Data - no such equality in priority at the first level [however in cases of appeal, HD is accorded equal priority to Habeas Corpus] (See Secs. 15 and 19 of HDR).

As to interim reliefs: Writ of Habeas Corpus and Habeas Data no express provision for interim reliefs Writ of Amparo - expressly provides for the interim reliefs of (Sec.14, AR):
o o o o

Temporary Protection Order (TPO); Inspection Order (IO); Production Order (PO); and Witness Protection Order (WPO).

As to archiving and revival of petitions: Writ of Habeas Corpus and Habeas Data no express provision. Writ of Amparo - archiving, periodic review and revival of petitions for a maximum period of two years are expressly provided (Sec.20, AR);

7. Rules on Custody of Minors and Writ of Habeas of Habeas Corpus in Relation to Custody of Minors

Applicability - applies only to:

Custody of minors; and Writs of habeas corpus in relation thereto. (Sec.1)

Who may file the petition? - any person claiming right of custody over a minor. (Sec.2) Where to file the petition? - In the Family Court of the province or city where:

the petitioner resides; or where the minor may be found. (Sec.3)

Contents of the Petition

1. The personal circumstances of the petitioner and respondent 2. The name, age, and present whereabouts of the minor AND his or her

relationship to the petitioner and the respondent

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3. The material operative facts constituting deprivation of custody; and 4. Such other matters which are relevant to the custody of the minor (Sec.4).

Is a motion to dismiss allowed?

o

NO, except on the ground of lack of jurisdiction over the subject matter or over the parties. (Sec.6) Note: Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer. (Ibid.)

When must answer be filed?

o

Within five days from service of summons and copy of the petition (Sec.7)

Notice of Mandatory Pre-Trial

o

Within fifteen days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order:
1. Fixing a date for the pre-trial conference; 2. Directing the parties to file and serve their respective pre-trial briefs

in such manner as shall ensure receipt thereof by the adverse party at least three days before the date of pre-trial; and
3. Requiring the respondent to present the minor before the court.

(Sec.9) Contents of the pre-trial brief:

1. A statement of the willingness of the parties to enter into agreements that

may be allowed by law, indicating its terms;

2. A concise statement of their respective claims together with the applicable

laws and authorities;

3. Admitted facts and proposed stipulations of facts; 4. The disputed factual and legal issues; 5. All the evidence to be presented, briefly stating or describing its nature and

purpose;
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6. The number and names of the witnesses and their respective affidavits which

shall serve as the affiant's testimony on direct examination; and

7. Such other matters as the court may require to be included in the pre-trial

brief. (Sec. 10) Note: Failure to file pre-trial brief has the same effect as failure to appear at the pre-trial Effect on failure to appear at the pre-trial
o

Petitioner if he fails to appear, the case shall be dismissed, unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. (Sec. 11(a)) Respondent If he fails to appear at the pre-trial after filing his answer, the petitioner shall be allowed to present his evidence ex parte. The court shall then render judgment on the basis of the pleadings and the evidence thus presented. (Sec.11(b))

Pre-trial o At the pre-trial, the parties may agree on the custody of the minor. o If the parties fail to agree, the court may refer the matter to a mediator who shall have five days to effect an agreement between the parties. o If the issue is not settled through mediation, the court shall proceed with the pre-trial conference, on which occasion it shall consider such other matters as may aid in the prompt disposition of the petition. (Sec.12) Provisional/Temporary custody After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody: (a) Both parents jointly; (b) Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit; (c) The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified;
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(d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; (e) The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or (f) Any other person or institution the court may deem suitable to provide proper care and guidance for the minor. (Sec. 13) Factors to be considered in determining custody
o

The court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare.(Sec. 14) What does best interest of the minor mean?

o It means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor. (Ibid.)

If custody is granted to one of the parents or to some other person, may the noncustodial parent or parents be granted temporary visitation rights? o YES, unless the court finds said parent or parents unfit or disqualified. (Sec.15)

Orders which the court may issue while the case is pending: o Hold Departure Order (Sec.16) o Protection Order (Sec.17)

Confidentiality of Proceedings - The hearings on custody of minors may, at the discretion of the court, be closed to the public and the records of the case shall not be released to non-parties without its approval. (Sec.21) Judgment After trial, the court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor. Notes:

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1. If it appears that both parties are unfit to have the care and custody of the

minor, the court may designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home for children. (Sec.18) 2. In its judgment, the court may order either or both parents to give an amount necessary for the support, maintenance and education of the minor, irrespective of who may be its custodian. In determining the amount of support, the court may consider the following factors:
a. The financial resources of the custodial and non-custodial parent

and those of the minor;

b. The physical and emotional health, special needs, and aptitude

of the minor;
c. The standard of living the minor has been accustomed to; and d. The non-monetary contributions that the parents would make

toward the care and well-being of the minor. (Ibid.)

3. The court may also issue any order that is just and reasonable permitting

the parent who is deprived of the care and custody of the minor to visit or have temporary custody. (Ibid.) Appeal
o

No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment.(Sec.19) An aggrieved party may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of the denial of the motion for reconsideration or new trial and serving a copy thereof on the adverse parties. (Ibid.)

Habeas corpus in relation to custody of minors; where must the petition be filed?
o

Family Court enforceable within its territorial jurisdiction (Sec.20) Regular Courts
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1. In the absence of the presiding judge of the Family Court.

(However, the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty.)
2. In areas where there is no Family Court. (Ibid.)

N. WRIT OF AMPARO (AM No. 07-9-12-SC) 1. Coverage (Section 1) The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. 2. Distinguish from habeas corpus and habeas data

AMPARO An order directed against the authorities to find the body of the detainee if nowhere to be found.

HABEAS CORPUS - An order directed against the person detaining another to produce the body of the subject detainee.

Will deny the authorities the defense of simple denial when they are sued to produce before the courts the bodies of victims of involuntary disappearances.

Could compel law enforcement agents to present a detained person.

HABEAS DATA - An order issued against the authorities to produce all the data about the subject person who was under surveillance or government custody. - Will give reality to the right to truth on the part of the people.

3. Differences between Amparo and search warrant

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(The Secretary of National Defense, The Chief of Staff, Armed Forces of the Philippines vs. Raymond Manalo and Reynaldo Manalo; GR No. 180906; October 7, 2008): petitioners argue that the production order sought by respondents partakes of the characteristics of a search warrant. Thus, they claim that the requisites for the issuance of a search warrant must be complied with prior to the grant of the production order, namely: (1) the application must be under oath or affirmation; (2) the search warrant must particularly describe the place to be searched and the things to be seized; (3) there exists probable cause with one specific offense; and (4) the probable cause must be personally determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. In the case at bar, however, petitioners point out that other than the bare, self-serving and vague allegations made by respondent Raymond Manalo in his unverified declaration and affidavit, the documents respondents seek to be produced are only mentioned generally by name, with no other supporting details. They also argue that the relevancy of the documents to be produced must be apparent, but this is not true in the present case as the involvement of petitioners in the abduction has not been shown. Petitioners' arguments do not hold water. The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz: Section 1. Motion for production or inspection order. Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control... Petition for a Writ of Amparo (Sec 1, AM No. 07-9-12-SC) - a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or Search Warrant (Sec 1, Rule 126, Rules of Court) - A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for
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employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. 4. Who may file (Section 2) The petition may be filed by the aggrieved party OR by any qualified person OR entity in the following order: a. Any member of the immediate family, namely: - Spouse; - Children; and - Parents of the aggrieved party b. In default of those mentioned in Letter A: - Any ascendant; - Descendant; or - Collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity c. If there is no known member of the immediate family or relative of the aggrieved party: - Any concerned citizen; - Organization; - Association; or - Institution Note: The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein. 5. Contents of the reutrn SEC. 9. Return; Contents. Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: a. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; b. The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission;
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personal property described therein and bring it before the court.

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c. All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and d. If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: i. to verify the identity of the aggrieved party; ii. to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may 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. 6. Effects of failure to file return SEC. 12. Effect of Failure to File Return. In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte. 7. Omnibus waiver rule SEC. 10. Defenses not Pleaded Deemed Waived. All defenses shall be raised in the return, otherwise, they shall be deemed waived. 8. Procedure for Hearing The hearing shall be SUMMARY. (Sec. 13, Amparo Rule) The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. Under the 1991 Revised Rule on Summary Procedure, which is what is most probably envisioned by the rule on amparo, or at least something similar or analogous thereto, the following is what usually transpires: a. A preliminary conference is held.
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- to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties b. Parties are then ordered to submit the affidavits of witnesses and other evidence on the factual issues defined therein, together with a brief statement of their positions setting forth the law and the facts relied upon by them. - requires that supporting affidavits be attached to the petition, however this may be without prejudice to the filing of additional affidavits at the discretion of the amparo court c. Should the court find that a judgment may be rendered without need of a formal hearing, it may proceed to render judgment not later than fifteen (15) days from the submission of the position statements of the parties. - however, the amparo court is mandated to decide the case within TEN (10) days from the time the case is submitted for decision.) In cases where the judge deems it necessary to hold a hearing to clarify specific factual matters before rendering judgment, he shall set the case for hearing for the purpose. At such hearing, witnesses whose affidavits were previously submitted may be asked clarificatory questions by the proponent and by the court and may be cross-examined by the adverse party. Note: Under the amparo rule the hearing must initially be held not less than SEVEN (7) days from the date of the issuance of the writ. (Sec. 6, Amparo Rule) 9. Institution of Separate Action The writ of amparo does not preclude the filing of separate criminal, civil or administrative actions. (Sec. 21, Amparo Rule) Partakes of the nature of a prerogative writ, hence it does not suspend the filing of criminal, civil or administrative actions.

- is not criminal in nature and will not determine the criminal guilt of the
respondent, however, if the evidence so warrants, the amparo court may refer the case to the Department of Justice for criminal prosecution - claims shall be filed in a proper civil action to prevent undue delay to the proceeding 10. Effect of Filing of a Criminal Action

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No separate petition for the writ may be filed in case a criminal action has already been instituted. The reliefs under the amparo rule may be availed of by motion in a criminal case. (Sec. 22, Amparo Rule)

- This is to avoid difficulties that may be encountered when two courts

essentially trying the same subject may issue conflicting orders. has If a petition for a writ of amparo has been filed and subsequently a criminal action been instituted, the petition will be consolidated with the criminal action.

O. THE RULE ON THE WRIT OF HABEAS DATA A. M. No. 08-1-16-SC

1. Scope of The Writ Of Habeas Data ( Sec. 1 )

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 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.

2. Availability of writ of Habeas Data

The rule [as to parties] allows any individual to file the petition on the ground that his right to privacy in life, liberty or security is violated or threatened. This provision may be interpreted to refer to an act or omission of an official or a private person or entity engaged in gathering or collecting information, which violates or threatens the right to privacy to life, liberty or security of an individual. Note that under the Rule, the respondent may be:

(i) a public official or employee; or (ii) a private individual or entity, who is engaged in the gathering, collecting, or storing of data regarding a the person, family, home and correspondence. The rule requires that the act or omission causing the violation must be unlawful. Even if this provision is open to varying interpretations, it is best that the petition must allege the unlawfulness of an act or omission to fulfill this required element. However, any gathering, collecting, storing or using of data on an individual, without that individuals consent, is presumed unlawful unless the respondent proves that the data is current, accurate, its confidentiality assured, and was legally acquired or gathered for a legitimate or legal purpose.

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Although the Court did not expressly provide that the confidentiality of sources by media is excluded from the writ, the same may be deemed excluded not only because it is not unlawful but also because that will clash with the constitutional freedom of the press. The media may be a respondent in a habeas data petition, but it can raise as a defense the confidentiality of its sources, and therefore privileged, as the habeas data rule provides.

3. Distinguish from Habeas Corpus, Writ of Habeas Data and Writ of Amparo

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Writ of Habeas Corpus Nature of the Extend to all cases of illegal remedy 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 thereto (Section 1) Note: Proceedings in habeas corpus are separate and distinct from the main case from which the proceedings spring. Every person unlawfully imprisoned or restrained of his liberty under any pretense. Writ of Amparo If right life/liberty/security is violated (or threatened to be so) by a public official/ employee or a private individual/entity Writ of Habeas Data If right to privacy is so violated (or threatened to be so) in gathering/ collecting/ storing data or information about aggrieved partys person/family/home/ correspondence

Who may file

Aggrieved party In order

Aggrieved party If Extra Legal Killings

(i) Immediate family members (ii) Ascendant/ descendant or collateral relative within 4th civil degree (iii) Concerned citizen/organization
Aggrieved partys filing

and Enforced Disappearance cases (in order) (i) Immediate family members (ii) Ascendant/ descendant or collateral relative within 4th civil degree (Sec. 2)

suspends the right to file of others Filing by an authorized party suspends the right of all others down the order
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Court with The SC, CA and Jurisdiction RTC have concurrence jurisdiction to issue writs of Habeas corpus The petition may be filed in The petition may be filed in any of the following courts: any of the following courts, at the option of petitioner: a) RTC of the place where a) The RTC of the place the petitioner or where the threat, act or respondent resides OR omission was committed; where the data or b) The Sandiganbayan or any information is stored at the Justice of such Court option of the petitioner. c) The Court of Appeals or b) Sandiganbayan any Justice of such Court d) The Supreme Court or nay c) Court of Appeals d) Supreme Court Justice of such Court (Sec. 3) The Petition shall be filed with the Sandiganbayan, Court of Appeals, or Supreme Court when the petition concerns public data files of government offices (Sec.3). Substantial Evidence (Sec. Substantial Evidence (Sec. 20) 17) Exempt Docket petition and act immediately If indigent petitioner, exempt Docket petition and act immediately, but without prejudice to submission of proof of indigency within 15 days from filing Signed, verified and allege Petitioners circumstances Respondents circumstances File/ database location and person/ entity in possession/ control Petitioners action/ recourses to secure the data/ information Relief prayed for, including the update/rectification/suppress ion/ destruction of the file/database or enjoinment of the threat Include general prayer for

Quantum Evidence Docket fees

of Clear and convincing evidence

Contents petition

of Signed, verified and allege The person in whose behalf the application is made in imprisoned or restrained of his liberty Officer or person detaining another Place where he is imprisoned or restrained of

Signed, verified and allege Petitioners circumstance Respondents circumstance Right violated or threatened to be violated, and how violated/threatened Investigations conducted Petitioners action/recourses to determine aggrieved partys identity/whereabouts and violators identity Relief prayed for
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his liberty Cause of his detention
Include general prayer for

other just and equitable reliefs

other just and equitable reliefs

Issuance of the Upon filing and Writ petitions prima facie validity

Upon filing and petitions prima facie validity

Clerk of Court shall issue

Upon filing and petitions prima facie validity

Same, and he shall serve it the writ under the Courts within 3 days from issuance seal If urgent, the judge/justice If urgent, the judge/justice may issue the writ in his may issue the writ in his own handwriting and own handwriting and deputize anyone to serve it deputize anyone to serve it Same, but within 10 days The writ shall set the date from the issuance and time for summary hearing, which should be within 7 days from issuance Service of Writ Serve a copy on respondent and retain a copy on which to make a return of service If respondent cannot be served personally, apply Serve a copy on respondent and retain a copy on which to make a return of service If respondent cannot be served personally, apply substituted service rules SAME

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substituted service rules Return on the The person in writ whose custody the prisoner is found shall state in writing before whom the writ is returnable, plainly and unequivocally; Contents of return: (Section 10) Whether he has or he has not the custody of the Lawful defenses

Respondent must file a verified written return within 72 hours after service Contents of return: Lawful defenses Steps/action taken to determine the whereabouts of the aggrieved party and the violator All relevant information If respondent is a public official/ employee, actions that were taken or will be taken To verify the aggrieved partys identity To recover and preserve evidence for prosecution To determine deaths/disappearances circumstances To identify and apprehend persons involved To bring suspected offenders to court General denial of petitions allegation is not allowed
Appeal to SC und r Rule

SAME, Respondent must file a verified written return within 72 hours after service Contents of return: Lawful defenses If respondent has possession/ control of the data/ information Disclosure of the data/ information, its nature, and the purpose of its collection Steps/ actions taken to secure the data/informations confidentiality Data/ informations currency and accuracy Other relevant allegations General denial of petitions allegation is not allowed

Appeal

Appeal shall be made within 48 hours from notice of the judgement appealed from. (BP 129, Section 39)

Appeal to SC under Rule 45,

45, on question of law, and within 5 days from notice of adverse judgment
Appeal has same priority

on question of law, and within 5 days from notice of adverse judgment

Appeal has same priority as

as Habeas Corpus cases

Habeas Corpus and Amparo cases

Consolidation

May be consolidated with a May be consolidated with a criminal action filed criminal action filed subsequent to the petition. subsequent to the petition.
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4. Who may file a petition for Habeas Data Section 2 provides that it is the aggrieved party who has standing to file the Petition: Sec. 2 Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extra-judicial killings and enforced disappearance, the petition may be filed by: (a) any member of the immediate family of the aggrieved party, namely: the spouse, children or 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. NOTES: Extralegal Killings killings committed without due process of law (e.g salvage, summary and arbitrary executions). Enforced Disappearances arrest, detention or abduction of a person by a government officer or organized groups or private individuals acting with direct or indirect acquiescence of the government; refusal of the state to disclose the fate or whereabouts of the person concerned or refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. If a petition is filed, therefore, on the basis that the violation or threats to the right to privacy is related to or results or may result in extra-judicial killing or enforced disappearance, the petition may be filed by third parties. In this situation, it is important to allege the threat of extrajudicial killing or enforced disappearance in the petition in order to grant third parties the standing to file the petition. Note that unlike in Amparo, human rights organizations or institutions are no longer allowed to file the petition, possibly in recognition of the privacy aspect of a habeas data petition.
5. Contents of the Petition (Sec. 6)

a. b. c. d.

Personal circumstances of the petitioner and respondent; The manner of the right of privacy is violated or threatened; Actions and recourses taken by the petitioner to secure the date or information; Location of the files, registers or database, the government office, person in charge, in possession and control of the data , if known, e. Reliefs prayed for; and f. Other relevant reliefs as are just and equitable. Page 24 of 33
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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. 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. Clerk of Courts refusal to issue the writ: CONTEMPT without prejudiced to other disciplinary actions) The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) working days from the date of its issuance. 6. Contents of Return (Sec. 10) Respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. (General Denial of the allegations in the petition not allowed.) The return shall, among other things, CONTAIN the following: (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; (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and, (iii) the currency and accuracy of the data or information held; and, (c) Other allegations relevant to the resolution of the proceeding. 7. Instances When Petition be heard in Chambers (Sec. 12,) A hearing in chambers may be conducted where the respondent invokes the defense that:
a) the release of the data or information in question shall compromise national

security, or
b) compromise state secrets, or

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c) when the data or information cannot be divulged to the public due to its nature or

privileged character. Summary of Defenses Available to Respondent (Heard in Chambers): National security, State secrets and Privileged character. NOTE: The following are Prohibited Pleadings and Motions (Sec. 13, AM No. 08-116-SC). This is not included in the outline but you might want to know. a. Motion to Dismiss; b. Motion for extension 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. No new Trial and Petition for Relied from judgment under prohibited pleadings. In case respondent fails to file a return court shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence. Note: Making a false return, or refusing to make a return; or any person who otherwise disobeys or resists a lawful process or order of the court shall be punished by CONTEMPT. 8. Consolidation 1. 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. 2. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. NOTE: After consolidation, the procedure under the RULE ON HABEAS DATA SHALL CONTINUE TO GOVERN the disposition of the reliefs in the petition. Page 26 of 33
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9. Effect of Filing Criminal Action (Sec. 22) 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. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. 10. Institution of Separate Action (Sec. 20) The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. 11. Quantum of Proof in Application for Issuance of Writ of Habeas Data (Sec. 20) 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 rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. Upon its finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within five (5) working days. P. CHANGE OF NAME 1. Differences under Rule 103, RA 9048 and Rule 108 Rule 103 Change of Name Judicial Where to file: in the RTC where petitioner resides the City or Municipal Civil in the RTC where the Registrar where the record corresponding civil registry being sought to be corrected is located or changed is kept In case the petitioner has
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RA 9048 Correction of Clerical or Typographical Error Extrajudicial

Rule 108 Cancellation or Correction of Entries in the Civil Registry Judicial

SILLIMAN LAW 2011

already migrated to another place in the country - petition may be filed, in person, with the local civil registrar of the place where the interested party is presently residing or domiciled. The 2 local civil registrars concerned will then communicate to facilitate the processing of the petition Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition in person, with the nearest Philippine Consulate Who may file: a person desiring to change any person having direct and his name personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register Solicitor General must be notified by service of a copy of the petition any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register

Includes change in surname

Civil Registrar concerned and all persons having or claiming any interest which would be affected are made parties to the proceeding as respondents. Solicitor General must also be notified by service of a copy of the petition Covers clerical or Covers substantial changes typographical error and and corrections in entries of change of first name or the civil register nickname

Rule 103 Quick Guide A change of name is a special proceeding to establish the status of a person involving his relation with others, that is, his legal position in or, with regard to, the rest of the community.
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It is a proceeding in rem and as such, strict compliance with all jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction thereover. For this purpose, the only name that may be changed is the true or official name recorded in the civil register A change of name is not a matter of right but of some judicial discretion to be exercised in the light of reasons adduced and the consequences that will likely follow; it is a privilege which may be granted only upon a showing of a proper or reasonable cause or compelling reason. Rule 103 does not say that only citizens of the Philippines may petition for a change of name. The word person is a generic term which is not limited to Filipino citizens, but embraces all natural persons. The rule does not even require that the citizenship of the petitioner be stated in his petition. The petition must be verified, signed by the petitioner or some other person in his behalf and set forth: a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least 3 years prior to the date of such filing b) The cause for which the change of the petitioners name is sought c) The name asked for d) All names or aliases must appear in caption of petition (omission of this is fatal to the petition) Only domiciled aliens are allowed to file a petition for change of name for what good will that be if, after all, his stay will be for a short time? The real name of a person is that given to him in the Civil Register, not the name by which he was baptized in his church. In case of annulment of marriage, or divorce there is no need to file a petition for resumption of maiden name or surname. The use of the husbands surname is merely permissive. Lack of verification to petition for change of name: Does not render the pleading fatally defective. It is not also a ground for dismissing the petition. The court may order the correction of the pleadings. Jurisdictional Requirement: publication of the notice at least once a week for 3 successive weeks in some newspaper of general circulation. The date set for hearing shall not be within 30 days prior to an election nor within 4 months after the last publication of the notice. Contents of Publication: a) The name or names of the applicant b) The cause for the change of name c) The new name asked for Effect of discrepancy in the petition and the published order: entire proceeding becomes null and void. RA 9048 Quick Guide No entry in a civil registrar shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname
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which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. (Sec 1, RA 9048) The above law speaks clearly. Clerical or typographical errors in entries of the civil register are now to be corrected and changed without need of judicial order and by the city or municipal civil registrar or consul general. The effect is to remove from the ambit of Rule 108 the correction or changing of such errors in entries of the civil register (Lee vs. CA, Oct. 11, 2001) Clerical or typographical error refers to a mistake committed in the performance of clerical work in writing, copying, transcribing, or typing an entry in the civil register that is: a) harmless or innocuous, such as misspelled name or misspelled place of birth or the like b) visible to the eyes or obvious to the understanding; and c) can be corrected or changed only by reference to other existing records. Provided, however, that no correction must involve the change of nationality, age, status or sex of the petitioner. (Sec. 2 (3), RA 9048) All petitions for the correction of clerical or typographical errors and/or change of first names or nicknames may be availed for only once. ( Sec. 3, par. 5, RA 9048) The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths. The petitioner shall submit a certification from the appropriate law enforcement agencies that he has no pending case or no criminal record. The petition and its supporting papers shall be filed in three copies to be distributed as follows: a) First copy to the concerned city or municipal civil registrar, or the consul general; b) Second copy to the Office of the Civil Registrar General; and c) Third copy to the petitioner Rule 108 Quick Guide What is left for the scope of operation of Rule 108 are substantial changes and corrections in entries of the civil register. The procedure recited in Rule 103 regarding change of name and in Rule 108 concerning the cancellation or correction of entries in the civil registry is separate and distinct. They may not be substituted one for the other for the sole purpose of expediency. If both reliefs are to be sought in the same proceedings, all the requirements of Rules 103 and 108 must be complied with. Thus, if the correction sought to be made in the civil register is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship, or nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary.
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Jurisdictional Requirement: publication of notice once a week for 3 consecutive weeks in a newspaper of general circulation The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought, may, within 15 days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto (Sec. 5, Rule 108) The proceeding becomes adversarial once an opposition is filed 2. Grounds for change of name (elucidated in the case of Chiu Ha Chiu vs. Republic) 1) Name is ridiculous, dishonorable or extremely difficult to write or pronounce; 2) When the change results as a legal consequence, as in legitimation 3) When the change will avoid confusion 4) Having continuously used and been known since childhood by a Filipino name, unaware of his/her alien parentage 5) A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest Insufficient Grounds for a Change of Name 1) Separation of Spouses (Laperal vs. Republic, Oct. 30, 1962) 2) No proof of prejudice by use of official name 3) Mere use and known by different name 4) No proof that true name evokes derisive laughter Q. Absentees 1. Purpose of the Rule To appoint an administrator over the properties of the absentee. Hence, if the absentee left no properties, such petition is unnecessary. An absentee is a person who: a) Disappears from his domicile b) His whereabouts being unknown; and c) Without having left an agent to administer his property, or the power conferred upon the agent has expired 2. Who may file; when to file Who may file a Petition for Appointment of Administrator or Trustee: 1) The spouse present 2) The heirs instituted in a will, who may present an authentic copy of the same 3) The relatives who would succeed by the law of intestacy Page 31 of 33
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4) Those who have over the property of the absentee some right subordinated to the condition of his death When to file: After the lapse of 2 years from his disappearance and without any news about the absentee or since the receipt of the news, or 5 years in case the absentee has left a person in charge of the administration of his property Notes: Declaration of absence may be made in administration proceedings Declaration of absence is unnecessary where there are no properties No need for an independent action for declaration of presumptive death, except for purposes of remarriage R. Cancellation or Correction of Entries in the Civil Registry 1. Entries subject to cancellation or correction under Rule 108, in relation to RA 9048 1) Births 2) Marriages 3) Deaths 4) Legal separations 5) Judgments of annulments of marriage 6) Judgments declaring marriages void from the beginning 7) Legitimations 8) Adoptions 9) Acknowledgements of natural children 10) Naturalization 11) Election, loss or recovery of citizenship 12) Civil interdiction 13) Judicial determination of filiation 14) Voluntary emancipation of a minor; and 15) Changes of name S. Appeals in Special Proceeding 1. Judgments or orders from which appeals may be taken An interested person may appeal in special proceedings from an order or judgment rendered by a Court of First Instance or a Juvenile and Domestic Relations Court, where such order or judgment:
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2) Determines who are the lawful heirs of a deceased person, or the distributive share of 3) 4) 5)

6)

the estate to which such person is entitled; Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; Settles the account of an executor, administrator, trustee or guardian; Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for a new trial or for reconsideration.

2. When to Appeal: 30 days 3. Modes of Appeal: Record on Appeal and docket fees Maybe extended on meritorious grounds Certiorari and Mandamus not a substitute for appeal 4. Rules on Advance Distribution Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of these rules. (Sec. 2, Rule 109)

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