ordered her release.

In your opinion, is the order of thr trial court correct under Rule
102? (2%)
Answer: No, Alma who is already convicted by final judgment, cannot be entitled to bail
under Sec. 14, Rule 102. The provision presupposes that she had not been convicted
yet. It provides that if she is lawfully imprisoned or restrained for an offense not
punishable by death, she may be recommitted to imprisonment or admitted to bail in the
discretion of the court or judge.
.
(11) : Widow A and her two children, both girls, aged 8 and 12 years old, reside in
Angeles City, Pampanga. A leaves her two daughters in their house at night because
she works in a brothel as a prostitute. Realizing the danger to the morals of these two
girls, B, the father of the deceased husband of A, files a petition for habeas corpus
against A for the custody of the girls in the Family Court in Angeles City. In the said
petition, B alleges that he is entitled to the custody of the two girls because their mother
is living a disgraceful life. The court issues the writ of habeas corpus. When A learns of
the petition and the writ, she brings her two children to Cebu City. At the expense of B,
the sheriff of the said Family Court goes to Cebu City and serves the writ on A. A files
her comment on the petition raising the following defense: B has no personality to
institute the petition. Resolve the petition in the light of the above defense of A. (6%)
Answer: B, father of the deceased husband of A, has the personality to institute the
petition for habeas corpus of the two minor girls, because the grandparent has the right
of custody as against the mother A, who is a prostitute .

Contents of the petition

(1) Application for the writ shall be by petition signed and verified either by the party for
whose relief it is intended, or by some person on his behalf, and shall set forth:
(a) That the person in whose behalf the application is made is imprisoned or restrained
of his liberty;
(b) The officer or name of the person by whom he is so imprisoned or restrained; 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 impairing the efficiency of the remedy; or, if the imprisonment or
restraint is without any legal authority, such fact shall appear .

Contents of the Return

(1) When the person to be produced is imprisoned or restrained by an officer, the person
who makes the return shall state therein, and in other cases the person in whose
custody the prisoner is found shall state, in writing to the court or judge before whom the
writ is returnable, plainly and unequivocably:
(a) Whether he has or has not the party in his custody or power, or under restraint;
(b) If he has the party in his custody or power, or under restraint, the authority and the
true and whole cause thereof, set forth at large, with a copy of the writ, order,
execution, or other process, if any, upon which the party is held;
(c) If the party is in his custody or power or is restrained by him, and is not produced,
particularly the nature and gravity of the sickness or infirmity of such party by
reason of which he cannot, without danger, be brought before the court or judge;

E LME RP. BRABANTE * R E M E D IA L LAW R E V I E W E R 2 0 1 6 Page 1

 (d) If he has had the party in his custody or power, or under restraint, and has
transferred such custody or restraint to another, particularly to whom, at what time,
for what cause, and by what authority such transfer was made .

Distinguish peremptory writ from preliminary citation

Unconditionally commands the respondent to Requires the respondent to appear and show
have the body of the detained person before cause why the peremptory writ should not be
the court at a time and place therein specified; granted

When not proper/applicable

(1) Instances when the writ of is not proper are:

(a) For asserting or vindicating denial of right to bail ;
(b) For correcting errors in appreciation of facts or appreciation of law – where the trial
court had no jurisdiction over the cause, over the person of the accused, and to
impose the penalty provided for by law, the mistake committed by the trial court, in
the appreciation of the facts and/or in the appreciation of the law cannot be
corrected by ;
(c) Once a person detained is duly charged in court, he may no longer file a petition for
. His remedy would be to quash the information or warrant
.

When writ disallowed/discharged

(1) 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 .

Distinguish from writ ofand

A remedy available to any A remedy available to any A remedy available to any

person, it covers 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.
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 covers
extrajudicial killings and
enforced disappearances or
threats thereof.
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

Who may file petition:
By the party for whose relief
it is intended, or by some
person on his behalf.
Where to file:
RTC, enforceable within its
area of jurisdiction.
CA or SC, enforceable
anywhere in the Philippines.
When issued:
Forthwith when a petition
therefor is presented and it
appears that the writ ought to
issue,
Who may file (in order):
a) Any member of the
immediate family: spouse,
children and parents of the
aggrieved party;
b) Any ascendant,
descendant or collateral
relative of aggrieved party
within the 4th civil degree
of consanguinity or
affinity;
c) Any concerned citizen,
organization, association
or institution, if no
known member of
immediate
family.
Where to file:
RTC, Sandiganbayan, CA,
SC;
Writ is enforceable anywhere in
the Philippines. (No
hierarchy of courts)
Petitioner is exempted to pay
docket and other lawful fees.
When issued:
Immediately if on its face it
ought to be issued;
Served immediately;
Summary hearing set not later
than seven (7) days from date
of issuance.
aggrieved party.
Who may file (in order):
a) Any member of the
immediate family:
spouse, children and
parents of the aggrieved
party;
b) Any ascendant,
descendant or collateral
relative of aggrieved party
within the 4th civil degree
of consanguinity or
affinity.
Where to file:
SC, CA, Sandiganbayan,
RTC.
Writ is also enforceable
anywhere in the Philippines.
Indigent petitioner is
exempted to pay docket and
other lawful fees.
When issued:
Immediately if on its face
it ought to be issued;
Served within 3 days from
issuance;
Summary hearing set not later
than ten (10) work days from
date of issuance.
Contents of verified petition: Contents of verified petition: Contents of verified petition:
(a) That the person in whose a) Personal circumstances of a) Personal circumstances of
behalf the application is petitioner and of petitioner and respondent;
made is imprisoned or respondent responsible for b) The manner the right to
restrained of his liberty; the threat, act or omission; privacy is violated or
(b) The officer or name of the b) Violated or threatened right threatened and how it
person by whom he is so to life, liberty and security affects the right to life,
imprisoned or restrained; of aggrieved party, and how liberty or security of
or, if both are unknown or committed with attendance aggrieved party;
uncertain, such officer or circumstances detailed in c) Actions and recourses
person may be described supporting affidavits; taken by petitioner to
by an assumed c) Investigation conducted, secure the data or
appellation, and the specifying names, information;
person who is served with personal circumstances d) Location of files, registers
the writ shall be deemed and addresses of or databases, government
the person intended; investigating authority or office, and the person in
(c) The place where he is so individuals, as well as charge, in possession or in
imprisoned or restrained, manner and conduct of control of the data or
if known; investigation together with information, if known;
(d) A copy of the any report; e) Reliefs prayed for, which
commitment or cause of may include the updating,
 detention of such person,
if it can be procured
without impairing the
efficiency of the remedy;
or, if the imprisonment or
restraint is without any
legal authority, such fact
shall appear
Contents of return:
a) Whether he has or has not
the party in his custody or
power, or under restraint;
b) If he has the party in his
custody or power, or under
restraint, the authority and
the true and whole cause
thereof, set forth at large,
with a copy of the writ,
order, execution, or other
process, if any, upon which
the party is held;
c) If the party is in his custody
or power or is restrained
by him, and is not
produced, particularly the
nature and gravity of the
sickness or infirmity of
such party by reason of
which he cannot, without
danger, be brought before
the court or judge;
d) If he has had the party in his
custody or power, or under
restraint, and has
transferred such custody or
restraint to another,
particularly to whom, at
what time, for what cause,
and by what authority such
transfer was made.
E LME RP. BRABANTE * R E M E D IA L LAW R E V I E W E R 2 0 1 6
d) Actions and recourses
taken by petitioner to
determine the fate or
whereabouts of aggrieved
party and identity of person
responsible for the threat,
act or omission; and
e) The relief prayed for.
f) May include general prayer
for other just and equitable
reliefs.
Contents of return:
a) Lawful defenses;
b) Steps or actions taken to
determine whereabouts of
aggrieved party;
c) All relevant information
pertaining to threat, act or
omission against aggrieved
party;
d) If respondent is a public
official or employee, further
state: (1) verify the identity
of aggrieved; (2) recover
and preserve evidence
related to death or
disappearance of person
identified in petition; (3)
identify witnesses and their
statements; (4) determine
cause, manner, location and
time of death or
disappearance as well as
pattern or practice; (5)
identify and apprehend
person/s involved in the
death/disappearance; (6)
bring suspected offenders
before a competent court.
Effects of failure to file return:
The court, justice or judge
shall proceed to hear the
petition . petition
rectification, suppression
or destruction of the
database or information or
files kept by respondent;
f) In case of threats, relief
may include a prayer for
an order enjoining the act
complained of; and
g) Such other reliefs as are
just and equitable.
Contents of return:
a) Lawful defenses such as
national security, state
secrets, privileged
communications,
confidentiality of source
of information;
b) Disclosure of data/info
about petitioner, nature of
data/info, purpose of
collection;
c) Steps or actions taken by
respondent to ensure
security and
confidentiality of data or
information;
d) Currency and accuracy of
data or information;
e) Other allegations relevant
to resolution of the
proceedings.
* A general denial of the
allegations in the petition is
not allowed.
Effects of failure to file return:
The court, justice or judge
shall proceed to hear the
, granting the
petitioner such relief as the
petition may warrant unless
the court in its discretion
requires petitioner to submit
evidence.
Page 260

Appeal:
To the SC under Rule 45,
within 48 hours from notice
of judgment
Procedure for hearing: Procedure for hearing:
The hearing on the petition The hearing on the petition
shall be summary. However shall be summary. However
the court, justice or judge may the court, justice or judge may
call for a preliminary call for a preliminary
conference to simplify the conference to simplify the
issues and determine the issues and determine the
possibility of obtaining possibility of obtaining
stipulations and admissions stipulations and admissions
from the parties. from the parties.
The hearing shall be from day
to day until completed and
given the same priority as
petitions for .
Interim reliefs available before (Not applicable)
final judgment:
a) Temporary Protection Order
– protected in a government
agency of by an accredited
person or private institution
capable of keeping and
securing their safety;
b) Inspection Order – with a
lifetime of 5 days which
may be extended, may be
opposed on the ground of
national security or
privileged information,
allows entry into and
inspect, measure, survey or
photograph the property;
c) Production Order – to
require respondents to
produce and permit
inspection, copying or
photographing of
documents, papers, books,
accounts, letters,
photographs, objects or
tangible things that contain
evidence.
d) Witness protection order.
Effect of filing criminal action: Effect of filing criminal action:
A criminal action first filed A criminal action first filed
excludes the filing of the writ; excludes the filing of the writ;
relief shall be by motion in the relief shall be by motion in the
criminal case. A criminal case criminal case; A criminal case
filed subsequently shall be filed subsequently shall be
consolidated with the petition consolidated with the petition
for the writ of . for the writ of .
Appeal: Appeal:
To the SC under Rule 45, To the SC under Rule 45,
within 5 days from notice of within 5 days from notice of
adverse judgment, to be given judgment or final order, to be
 the same priority as given the same priority as
. cases. and
A writ of does Of both questions of law and cases.
not lie where petitioner has of fact.
the remedy of appeal or
because it will not
be permitted to perform the
functions of a writ of error or
appeal for the purpose of
reviewing mere errors or
irregularities in the
proceedings of a court having
jurisdiction over the person
and the subject matter

.
Quantum of prof Quantum of proof: Quantum of prof
By substantial evidence.
Preponderance of evidence Private respondent to prove Substantial evidence
ordinary diligence was
observed in the performance
of duty. Public
official/employee respondent to
prove extraordinary diligence
was observed, and cannot
invoke the presumption that
official duty has been regularly
performed to evade
responsibility or liability.

Rules on Custody of Minors and Writ of in Relation to Custody of Minors

(1) The Family Court has exclusive original jurisdiction to hear petitions for custody of
minors and the issuance of the writ of in relation to custody of minors.
The Court is tasked with the duty of promulgating special rules or procedure for the
disposition of family cases with the best interests of the minor as primary consideration,
taking into account the United Nations Convention on the Rights of the Child. It should
be clarified that the writ is issued by the Family Court only in relation to custody of
minors. An ordinary petition for should be filed in the regular Court. The
issue of child custody may be tackled by the Family Court without need of a separate
petition for custody being filed.
(2) The Committee chose the phrase ―any person claiming custody‖ as it is broad enough
to cover the following: (a) the unlawful deprivation of the custody of a minor; or (b) which
parent shall have the care and custody of a minor, when such parent is in the midst of
nullity, annulment or legal separation proceedings .
(3) 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 .
(4) A motion to dismiss the petition is not allowed except on the ground of lack of
jurisdiction over the subject matter or over the parties. Any other ground that might
 warrant the dismissal of the petition shall be raised as an affirmative defense in the
answer .
(5) Upon the filing of the verified answer of the expiration of the period to file it, the court
may order a social worker to make a case study of the minor and the parties and to
submit a report and recommendation to the court at least three days before the
scheduled pre-trial .
(6) Hold Departure Order – The minor child subject of the petition shall not be brought out of
the country without prior order from the court while the petition is pending. The court
or upon application under oath may issue a hold departure order
addressed to the BID of the DOJ a copy of the hold departure order within 24 hours
from its issuance and through the fastest available means of transmittal .
(7) The petition may be filed with the regular court in the absence of the presiding judge of
the Family Court, provided, however, that the regular court shall refer the case to the
Family court as soon as its presiding judge returns to duty. Section 20 of AM No. 03-04-
04-SC states that the writ shall be enforceable within the judicial region to which the
Family Court belongs. Considering that the writ is made enforceable within the judicial
region, petitions for the issuance of the writ of , whether they be filed
under Rule 102 of the Rules of Court or pursuant to Section 20 of AM No. 03-04-04-SC,
may be filed with any of the proper RTC within the regional region where enforecement
thereof is sought. Furthermore, service of summons is not required in a
petition, be it under Rule 102 of the Rules of Court or AM No. 03-04-04-SC. A writ of
plays a role somewhat comparable to a summons in ordinary civil
actions, in that, by service of said writ, the court acquires jurisdiction over the person of
the respondent .

Writ of Amparo

(1) See table above.

(2) The AmparoRule was intended to address the intractable problem of "extralegal killings"
and "enforced disappearances," its coverage, in its present form, is confined to these
two instances or to threats thereof. "Extralegal killings" are "killings committed without
due process of law, i.e., without legal safeguards or judicial proceedings." On the other
hand, "enforced disappearances" are "attended by the following characteristics: an
arrest, detention or abduction of a person by a government official or organized groups
or private individuals acting with the direct or indirect acquiescence of the government;
the refusal of the State to disclose the fate or whereabouts of the person concerned or a
refusal to acknowledge the deprivation of liberty which places such persons outside the
protection of law. .
(3) It would be inappropriate to apply to writ of proceedings the Doctrine of
Command Responsibility as a form of criminal complicity through omission, for
individual respondents‘ criminal liability, if there be any, is beyond the reach of .
If command responsibility were to be invoked and applied to proceedings, it
should, at most, be only to determine the author who, at the first instance, is
accountable for, and has the duty to address, the disappearance and harassments
complained of, so as to enable the Court to devise remedial measures that may be