UST+Golden+Notes+-+Special+Proceedings.pdf

SPECIAL PROCEDINGS

b. INSTANCES WHEN ADOPTION MAY BE RESCINDED Q: What are the grounds for rescission of adoption?

permanently residing abroad where the petition is filed, the supervised trial custody is taken, and the decree of adoption is issued outside of the Philippines. [Sec. 3(a)] a. WHEN ALLOWED

A: Upon the petition of the adoptee, with the

assistance of the DSWD if a minor or though over 18 is incapacitated, on any of the following grounds committed by the adopter/s: 1. Repeated physical and verbal maltreatment by the adopter/s despite having undergone counseling; 2. Attempt on the life of the adoptee; 3. Sexual assault or violence; or 4. Abandonment and failure to comply with parental obligations (Sec. 19, Ibid.). Note: Only the adoptee can rescind the decree of

adoption. However, the adopter is not left without any remedy as he may deny to an adopted child his legitime and by will, may freely exclude him from having a share in the disposable portion of his estate. The new law had already abrogated or repealed the right of an adopter under the Civil and Family Codes to rescind a decree of adoption (Lahom v. Sibulo, G.R. No. 1439889, July 14, 2003).

Q: When may inter-country adoption be allowed? A: It shall only be allowed when all the possibilities

for domestic adoption of the child have been exhausted and that inter-country adoption is in the best interest of the child. (Sec. 27a) It is allowed when the adopter is an alien or a Filipino citizen permanently residing abroad. Moreover, his qualifications include: 1.

2. 3.

c. EFFECTS OF RESCISSION OF ADOPTION Q: What are the effects of rescission of adoption? A:

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2.

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The parental authority of the adoptee's biological parent/s, if known, or the legal custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated; The reciprocal rights and obligations of the adopter/s and the adoptee to each other shall be extinguished; The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his or her original birth certificate; The successional rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission; and The vested rights acquired prior to judicial rescission shall be respected (Sec. 23, Ibid.).

3. INTER-COUNTRY ADOPTION (R.A. 8043) Q: What is inter-country adoption? A: It refers to the socio-legal process of adopting a

4. 5. 6.

7.

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At least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent; If married, his/her spouse must jointly file for adoption; Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws and has undergone the appropriate counseling from an accredited counselor in his/her country; Has not been convicted of a crime involving moral turpitude; Is eligible to adopt under his/her national law; Is in a position to provide proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; Agrees to uphold the basic rights of the child as embodied under the Philippine laws, the U.N. Convention of the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; Comes from another country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and Possesses all the qualifications and none of the disqualifications provided herein and other applicable laws. (Sec. 9, R.A. 8043).

Filipino child by a foreigner or a Filipino citizen ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II U N I V E R S I T Y O F VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011

b. FUNCTIONS OF THE RTC Q: What is the function of the RTC in inter-country adoption?

of liberty must be actual and effective, not merely nominal or moral. (Ilusorio v. Bildner, G.R. Nos.13578990, May 16, 2000)

Q: What is the nature of the petition? A: The Court, after finding that the petition is sufficient in form and substance and a proper case for inter-country adoption, shall immediately transmit the petition to the ICAB for appropriate action. (Sec. 32, Rule on Adoption).

The application for adoption shall be filed with the RTC having jurisdiction over the child, or the InterCountry Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents.

A: It is an inquisition by the government at the

suggestion and instance of an individual, most probably, but still in the name and capacity of the sovereign is a proceeding in rem. It is also instituted for the purpose of fixing the status of a person and that there can be no judgment entered against anybody since there is no real plaintiff and defendant. (Alimpoos v. CA, G.R. No. L-27331, July 30, 1981) Note: In habeas corpus cases, the judgment in favor of

the applicant cannot contain a provision for damages.

c. “BEST INTEREST OF THE MINOR” STANDARD

1. CONTENTS OF THE PETITION Q: What is the Best Interest Standard? A: It refers to the totality of the circumstances and

conditions as are most congenial to the survival, protection, and feelings of security of the minor and most 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. (Sec. 14)

Q: What should a verified petition for a writ of habeas corpus contain? A:

1.

2.

M. WRIT OF HABEAS CORPUS Q: What is writ of habeas corpus? A: It is a writ directed to the person detaining

another and commanding him to produce the body of the prisoner at a certain time and place with the day and the cause of his caption and detention to do, submit to and receive whatsoever, the court or judge awarding the writ shall consider in that behalf.

3. 4.

Note: It is regarded as “palladium of liberty”, a

prerogative writ which does not issue as a matter of right but in the sound discretion of the court or judge.

That the person in whose behalf the application is made is imprisoned or restrained of his liberty; 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; The place where he is so imprisoned or restrained, if known; 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. (Sec. 3, Rule 102) 2. CONTENTS OF THE RETURN

Q: To what instances may habeas corpus extend?

Q: What are the contents of the return?

A:

A: When the person to be produced is imprisoned

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Cases of illegal confinement or detention by which a person is deprived of his liberty; and Cases by which the rightful custody of the person is withheld from the person entitled thereto. (Sec. 1, Rule 102)

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: 1.

Note: To justify the grant of the petition, the restraint

of liberty must be an illegal and involuntary deprivation of freedom of action. The illegal restraint

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2.

Whether he has or has not the party in his custody or power, or under restraint; If he has the party in his custody or power, or under restraint, the authority

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. Q UIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,

KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

SPECIAL PROCEDINGS

3.

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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; 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; 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. (Sec. 10, Rule 102)

3. DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION Q: What is the difference between a preliminary citation and a peremptory writ? A:

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2.

Preliminary citation is issued when a

government officer has the person in his custody, the illegality of which is not patent, to show cause why the writ of habeas corpus should issue. Peremptory writ is issued when the cause of the detention appears to be patently illegal and the non-compliance therewith is punishable. (Lee Yick Hon v. Collector of Customs, G.R. No. 16779, Mar. 30, 1921).

4. WHEN NOT PROPER/APPLICABLE Q: When is habeas corpus not applicable?

6.

process, render the judgment, or make the order. (Sec. 4, Rule 102). If the person is charged or convicted of an offense in the Philippines. (Sec. 4, Rule 102).

7.

If the person is suffering imprisonment under lawful judgment. (Sec. 4, Rule 102). 8. In case of three-day retention of a suspect for three days without charge, pursuant to Sec. 18 of the Human Security Act. 9. When person is serving final sentence imposed by court. 10. For asserting or vindicating a denial of right to bail. 11. For correcting errors in appreciation of facts or of law. Note: Issuance of a writ of habeas corpus may not lie

in order to revive a settled issue of the validity of the writ of preliminary injunction issued in an agrarian case allegedly on the ground of the existence of a tenancy relationship between the parties arising from their arrest for having assaulted persons in authority. (Bernarte v. CA, G.R. No. 107741, Oct. 18, 1996). Loss of the records of the case after petitioner, by his

own admission, was already convicted by the trial court of the offense charged will bar the issuance of a writ of habeas corpus. The loss must have occurred prior to the filing of the information against him. (Feria v. CA, G.R. No. 122954, Feb. 15, 2000).

It has been noted that the ORDER contains a provision enjoining the prosecution of the Accused in the Criminal Case. That is error. If the Accused was illegally detained because he was arrested without a preliminary examination, what should have been done was to set aside the warrant of arrest and order the discharge of the Accused, but without enjoining the Municipal Judge from conducting a preliminary examination and afterwards properly issuing a warrant of arrest. Habeas Corpus proceedings are not meant to determine criminal responsibility. (Alimpoos v. CA, G.R. No. L-27331, July 30, 1981).

A:

1. 2.

3.

4.

5.

When detained under a lawful cause. In case of invasion or rebellion or when public safety requires it, under Art. III, Sec. 15, 1987 Constitution. When in case of invasion or rebellion or when public safety requires it, for a period not exceeding 60 days, under Art. 7, Sec. 18, 1987 Constitution. If the jurisdiction of the court to try the person detained appears after the writ is allowed. (Sec. 4, Rule 102). 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

In case of an illegal arrest, the petition for a writ of habeas corpus will still not prosper if the detention has become legal by virtue of the filing before the trial court of the complaint against him and by the issuance of an order denying bail. (Velasco v. CA, G.R. No. 118644, July 7, 1995). Habeas Corpus may be had to give retroactive effect to

a previous ruling of the Supreme Court favorable to the accused when the accused has already served the full term for a crime which the Court has d eclared nonexistent. (Gumabon v. Director of the Bureau of Prisons, G.R. No. L-30026, Jan. 30, 1971). However, it will not lie if the penalty of imprisonment imposed by the court is longer than that allowed by law. Such error of judgment may be corrected by appeal or by the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II U N I V E R S I T Y O F VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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President. (Pomeroy v. Director of Prisons, G.R. No. L14284, Feb. 24, 1960).

The writ of habeas corpus cannot be issued in cases in which the Bureau of Immigration has duly ordered the deportation of undocumented aliens, specifically those found guilty of illegally entering the Philippines with the use of tampered and previously cancelled passports. (Tung Chin Hui v. Rodriguez, G.R. No. 141938, April 2, 2001).

Q: May a wife secure a writ of habeas corpus to compel her husband to live with her in the conjugal home? A: No. Marital rights including coverture and living

in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. In case the husband refuses to see his wife for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise of his right. That is a matter beyond judicial authority and is best left to the man and woman’s free choice. (Ilusorio v. Bildner, G.R. No. 139789, May 12, 2000).

5. WHEN WRIT DISALLOWED/DISCHARGED Q: In what instances shall a writ be disallowed or discharged? A:

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2.

In cases of supervening events such as issuance of a process and filing of an information (Velasco v. CA, G.R. No. 118844, July 7, 1995) ; In cases of improper arrest or lack of preliminary investigation (Paredes v. Sandiganbayan, G.R. No. 89989, Jan. 28, 1991); and

3.

In cases of invalid arrest due to deportation cases cured by filing of deportation proceedings (Santos v. Commissioner of Immigration, G.R. No.L25694, Nov. 29, 1976) .

effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be released. 6. DISTINGUISH FROM WRIT OF AMPARO AND HABEAS DATA Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. A: Refer to page 205. 7. RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (AM No. 03-04-04-SC) Q: Who may file a petition for custody of minor? A: Any person may file a verified petition for the

rightful custody of a minor. The party against whom it may be filed shall be designated as the respondent. (Sec. 2, AM No. 03-04-04-SC). Q: Where should a petition for custody of minor be filed? A: Family courts in the province or city where the

petitioner resides or where the minor may be found. (Sec. 3, AM No. 03-04-04-SC) Q: Whether Family Courts have concurrent jurisdiction with the Supreme Court and the Court of Appeals in petitions where the custody of minors is at issue? A: Yes. The Court of Appeals and Supreme Court

have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved. The provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 ― that

family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue. (Thornton v. Thornton, G.R. No.

Note: In all petitions for h abeas corpus, the court must inquire into every phase and aspect of petitioner’s

154598, Aug. 16, 2004).

detention- from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition and only after such a scrutiny can the court satisfy itself that the due process clause of the Constitution has been satisfied. (Bernarte v. CA,

Q: What are the contents of the verified petition?

G.R. No. 107741, Nov. 18, 1996)

When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall order his discharge from confinement, but such discharge shall not be

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A:

1. 2.

3.

The personal circumstances of the petitioner and of the respondent. The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent. The material operative facts constituting deprivation of custody.



SPECIAL PROCEDINGS

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Such other matters which are relevant to the custody of the minor. Certificate of Non-Forum Shopping signed personally by the petitioner. (Sec. 4, AM No. 03-04-04-SC )

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2.

3. Q: When is a child not allowed to be separated from the mother?

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A: Under Article 213 (2) of the Family Code, no child

under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

5. 6.

Q: When will the court take into consideration the choice of the child?

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A: The child, who is over 7 years of age, may choose

which parent he prefers to live with, unless the parent so chosen is unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. (Art. 213, Family Code)

9.

Note: If both parents are unfit, the court may

designate other persons or an institution to take charge of the child, such as the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person. Q: What should be considered in awarding the custody of minor? A: The court shall consider the best interests of the

minor and shall give paramount consideration to his material and moral welfare. (Sec. 14, AM No. 03-0404-SC). Q: What is the Best Interest Standard? A: It refers to the totality of the circumstances and

conditions as are most congenial to the survival, protection, and feelings of security of the minor and most 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. (Sec. 14, AM No. 03-04-04-SC)

Q: What are the other factors that the court may consider in awarding custody? A:

1.

Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or

emotional violence which endangers the safety and best interests of the minor; The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent; The health, safety and welfare of the minor; Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent; The nature and frequency of contact with both parents; Habitual use of alcohol, dangerous drugs or regulated substances; Marital misconduct; The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit. (Sec. 14, AM No. 03-04-04-SC )

Q: Would a decision rendering judgment on the issue of custody of a child in a nullity of marriage case constitute as res judicata on a pending habeas corpus case on the same matter? A: Yes. By filing the case for declaration of nullity of

marriage petitioner automatically submitted the issue of the custody of the child as an incident thereof. Section 21 of the "Rule on Declaration Of Absolute Nullity Of Void Marriages and Annulment of Voidable Marriages" directs the court taking jurisdiction over a petition for declaration of nullity of marriage to resolve the custody of common children, by mere motion of either party, it could only mean that the filing of a new action is not necessary for the court to consider the issue of custody of a minor. (Yu v. Yu, G.R. No. 164915, March 10, 2006).

Q: What are the stages in the pre-trial? A:

1. 2.

First stage – the parties may agree on the

custody of the minor. Second stage – the trial court will direct the parties to secure the services of a mediator if the parties do not agree on the custody of the minor. (Sec. 12, AM No. 03-04-04-SC)

Note: If the second stage does not produce an

amicable settlement, the court will proceed with the pre-trial conference. Pre-trial is mandatory. (Sec. 12, AM No. 03-04-04-SC)


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Q: What is the order of preference in awarding provisional custody?

A: No, the court should conduct thorough trial on

A: As far as practicable, the order of preference

Sept. 3, 2002)

shall be observed: 1. Both parents jointly; 2. 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; 3. 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; 4. The eldest brother or sister over twentyone years of age, unless he or she is unfit or disqualified; 5. The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or 6. Any other person or institution the court may deem suitable to provide proper care and guidance for the minor. Q: May the court award temporary visitation rights in the provisional custody order?

A: Yes, the court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents, unless the court finds said parent or parents unfit or disqualified. Q: What should the court award after the hearing? A:

1. 2.

3.

Care, custody and control of each child as will be for its best interest. Court may order either or both parents to support or help support the child, irrespective of who may be its custodian. The fact that the father has recognized the child may be a ground for ordering him to give support, but not for giving him custody of the child. Court may permit the parent who is deprived of care and custody to visit the child or have temporary custody thereof in an order that is just and reasonable. (Sec. 18, AM No. 03-04-04-SC)

Q: May the court award the custody of the minors based merely on psychiatric report and agreement of the parties?

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all matters relevant to the welfare and interests of the child. (Laxamana v. Laxamana, G.R. No. 144763,

Q: Can the minor child be brought out of the country without leave from court while the petition is pending? A: 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, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the minor from the Philippines without the permission of the court. (Sec. 16, AM No. 03-04-04SC ) N. WRIT OF AMPARO (AM No. 07-9-12-SC) Q: What is writ of amparo? A: It 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. (Sec. 1) Note: The remedy provides rapid judicial relief as it

partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. (Deliberations of the Committee on the Revision of the Rules of Court, Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and Sept. 20, 2008)

Q: What are extralegal killings? A: Killings committed without due process of law, legal safeguards or judicial proceedings. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) These include the illegal taking of life

regardless of the motive, summary and arbitrary executions, salvaging even of suspected criminals, and threats to take the life of persons who are openly critical of erring government officials and the like.



SPECIAL PROCEDINGS

Q: What are enforced disappearances?

under Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz:

A: An arrest, detention or abduction of a person by

a government official or organized groups or private individual 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. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)

1. COVERAGE Q: What is the scope of the Writ of amparo? A: It covers extralegal killings and enforced

disappearances or threats thereof. It is 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 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.

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.”

A search warrant is a court order issued by a judge or magistrate judge that authorizes the law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found. A writ of amparo is a form of constitutional relief. 4. WHO MAY FILE Q: Who may file the petition? A: Any aggrieved party may file the petition. It may

also be filed by any qualified person or entity in the following order:

2. DISTINGUISH FROM HABEAS CORPUS AND HABEAS DATA

1.

Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data.

2.

A: Refer to page 205. 3. DIFFERENCES BETWEEN WRIT OF AMPARO AND SEARCH WARRANT Q: What is the difference between a Writ of Amparo from a Search Warrant?

3.

Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; 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 Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.

NOTE: The filing of a petition by the aggrieved party

A: In the October 7, 2008 decision of the Supreme Court in the case of The Secretary of National Defense vs. Manalo, the Court said that “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

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. (Sec. 2). 5. CONTENTS OF RETURN Q: What is the content of the verified return? A: 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:


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1.

2.

3.

4.

5.

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; 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; All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: a. to verify the identity of the aggrieved party; b. 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; c. to identify witnesses and obtain statements from them concerning the death or disappearance; d. 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; e. to identify and apprehend the person or persons involved in the death or disappearance; and f. to bring the suspected offenders before a competent court. Other matters relevant to the investigation, its resolution and the prosecution of the case.

Note: A general denial of the allegations in the petition

A: The omnibus waiver rules states that all defenses not raised in the return are deemed waived. (Sec. 10). 8. PROCEDURE FOR HEARING Q: What is the nature of the hearing? A: 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. 12). Q: How long should the hearing last? A: The hearing shall be from day to day until

completed and given the same priority as petitions for habeas corpus. (Sec. 13) 9. INSTITUTION OF SEPARATE ACTION Q: May a separate action be filed after filing a petition for a writ of amparo? A: Yes. It does not preclude the filing of separate criminal, civil or administrative actions. (Sec. 21) 10. EFFECT OF FILING A CRIMINAL ACTION Q: What is the effect if a prior criminal action has been filed? A: No petition for a writ of amparo shall be filed.

The reliefs under the writ shall be available by motion in the criminal case. (Sec. 22) The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. 11. CONSOLIDATION Q: What happens if criminal action is filed subsequent to a petition for writ of amparo?

shall not be allowed. 6. EFFECTS OF FAILURE TO FILE A RETURN Q: What happens when the respondent fails to file a return? A: The court, justice or judge shall proceed to hear the petition ex parte. (Sec. 9)

A: The petition for the writ shall be consolidated with criminal action. (Sec. 23) Q: What happens if a criminal action and a separate civil action are filed subsequent to a petition for writ of amparo? A: The petition for writ of amparo shall be

consolidated with the criminal action. 7. OMNIBUS WAIVER RULE Note: After consolidation, the procedure under this

Q: What is the Omnibus Waiver Rule?

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Rule shall continue to apply to the disposition of the reliefs in the petition.



SPECIAL PROCEDINGS

12. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT Q: What are interim reliefs available? A: PETITIONER

1. 2. 3. 4.

Temporary protection order; Inspection order; Production order; Witness protection order. (Sec. 14) HOW INITIATED

Temporary Protection Order

Upon motion or motu proprio

Inspection Order

Upon verified motion and after due hearing

Production Order

Upon verified motion and after due hearing

Witness Protection Order

Upon Motion or Motu Proprio

RESPONDENT

1. 2.

Inspection order; Production order. (Sec. 15)

THE COURT SHALL

Order the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. Order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.

13. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF AMPARO

regularly performed to evade responsibility or liability.

Q: What is the quantum of evidence required in a petition for a writ of amparo?

Note: No writ of amparo may be issued unless there is

A: The parties shall establish their claims by substantial evidence. (Sec. 17)

The respondent who is a private individual or entity must prove that ordinary diligence as required by the applicable laws, rules and regulations was observed in the performance of duty.

a clear allegation of the supposed factual and legal basis of the right sought to be protected. A threatened demolition of a dwelling by virtue of a final judgment of the court is not included among the enumeration of rights as stated in the above-quoted Section 1 for which the remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. (Canlas v.

The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.

Napico Homeowners Association, G.R. No. 182795, June 5, 2008).

The respondent public official or employee cannot invoke the presumption that official duty has been

Q: Raymond and Reynaldo Manalo escaped from captivity and surfaced of the armed forces. But while the two admit that they are no longer in


S A N T O T O M A S

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detention and are physically free, they assert, that they are not free in every sense of the word as their movements continue to be restricted for fear that the people they have named in their judicial affidavits and testified against are still at large and have not held accountable. The Manalo brothers claim that they are under the threat of being once again abducted, kept captive or even killed, which constitute a direct violation of their right to security of person. They filed a petition for writ of amparo. Should the court granted the petition? A: Yes, the Manalo brothers’ right to security as

freedom from threat is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military. In blatant violation of guarantees to life, liberty and security, these rights are snuffed out from victims of extralegal killings and enforced disappearances. The writ of amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls. (Secretary of National Defense

property, and may be ordered destroyed by the court. 3. DISTINGUISH FROM HABEAS CORPUS AND WRIT OF AMPARO Q: Distinguish Writ of Habeas Corpus from Writ of Amparo and Writ of Habeas Data. A: Refer to page 205. 4. WHO MAY FILE Q: Who may file the petition? A: 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: 1.

2.

v. Manalo, G.R. No. 180906, Oct. 7, 2008)

O. WRIT OF HABEAS DATA (AM No. 08-1-16-SC) 1. SCOPE OF WRIT

2)

Q: What is the scope of the writ? A: The writ covers instances wherein a person’s

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

5. CONTENTS OF PETITION Q: What are the contents of the verified petition? A:

1. 2.

3.

Q: What is writ of habeas data?

4. A: It 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. It is a procedure designed to safeguard individual freedom from abuse in the information age. (Sec. 1) Information or data written, tends to threaten violation of constitutional right to life, liberty or

204

Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or In default thereof, any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity. (Sec.

5.

6.

The personal circumstances of the petitioner and the respondent 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 The actions and recourses taken by the petitioner to secure the data or information 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 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. Such other relevant reliefs as are just and equitable. (Sec. 6)



SPECIAL PROCEDINGS

6. CONTENTS OF RETURN

A:

1. Q: What should the respondent allege in his verified return? A: The respondent, within 5 working days from the

2.

service of the writ, unless reasonably extended by the Court, shall allege: 1.

The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; 2. In case of respondent in charge, in possession or in control of the data or information subject of the petition: a. A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; b. The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and c. The currency and accuracy of the data or information held; and 3. Other allegations relevant to the resolution of the proceeding. Note: A general denial of the allegations in the petition shall not be allowed.

When a subsequent criminal action is filed, the Petition for the writ of Habeas Data 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 h abeas data, the petition shall be consolidated with the criminal action.

Note: After consolidation, the procedure under the

Rule shall continue to govern the disposition of the reliefs in the petition. (Sec. 21) 9. EFFECT OF FILING A CRIMINAL ACTION Q: What is the effect of an institution of a criminal action? A: No separate petition for the writ shall be filed.

The reliefs under the writ shall be available to an aggrieved party by motion in the criminal case. (Sec. 22).

10. INSTITUTION OF SEPARATE ACTION Q: Does the filing of a petition for the writ of habeas data prohibit the filing of separate criminal, civil or administrative actions? A: The filing of a petition for the writ of habeas data

7. INSTANCES WHEN PETITION BE HEARD IN CHAMBERS

shall not preclude the filing of separate criminal, civil or administrative actions. (Sec. 20).

Q: What are the instances when a petition for a writ of habeas data may be heard in chambers?

11. QUANTUM OF PROOF IN APPLICATION FOR WRIT OF HABEAS DATA

A: It may be conducted where the respondent

Q: What is the quantum of evidence required in a petition for a writ of habeas data?

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 security and that it cannot be divulged to the public due to its nature or privileged character. (Sec. 12) 8. CONSOLIDATION Q: What happens when a criminal and/or civil action is filed after the filing of the petition for writ of habeas data?

A: The court shall render judgment within (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. (Sec. 16.).

Q: What are the differences between the writs? A: HABEAS CORPUS

You have the body

AMPARO

To protect

HABEAS DATA Literal interpretation

You have the data


KALIKASAN

It is a Filipino word which means “nature” in English

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Governing rule

Rule 102

A.M. No. 07-9-12-SC

A.M. No. 08-1-16-SC

A.M. No. 09-6-8-SC

Description

Writ directed to the 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 capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.

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.

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.

Special remedy available to a natural or juridical person, entity authorized by law, people’s organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

Coverage

Involves the right to liberty of and rightful custody by the aggrieved party.

Involves the right to life, liberty, and security of the aggrieved party and covers extralegal killings and enforced disappearances.

Involves the right to privacy in life, liberty, and security of the aggrieved party and covers extralegal killings and enforced disappearances.

Constitutional right to a balanced and healthful ecology.

Rights violated

There is an actual violation of the aggrieved party’s

right.

There is an actual or threatened violation of the aggrieved party’s right.

There is an actual or There is an actual or threatened

threatened violation of one’s

violation of the aggrieved party’s

right to a healthful and balanced ecology involving environmental damage.

right. Where to file

RTC or any judge thereof, CA or any member thereof in instances authorized by law; or SC or any member thereof.

RTC of the place where the threat, act or omission was committed or any of its elements occurred; SB or any justice thereof; CA or any justice thereof; SC or any justice thereof.

Habeas Corpus

RTC 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; or with SC, CA or SB when the action concerns public data files or government offices.

Amparo

In SC or any stations of the CA.

Habeas Data

Kalikasan

Who may file a petition

1.

Party for whose relief it is intended; or

2.

Any person on his behalf

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In the following order: 1. Any member of the immediate family 2. Any ascendant, descendant, or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity 3. Any concerned citizen, organization,

1. 2.

Any aggrieved party; However, in cases of extralegal killings and enforced disappearances: a. Any member of the immediate family b. Any ascendant, descendant, or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity

A natural or juridical person, entity authorized by

law,

people’s

organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency.



SPECIAL PROCEDINGS

association institution

or Respondent

May or may not be an officer.

Public official or employee or a private individual or entity.

Public official or employee or 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.

Public official or employee, private individual or entity.

Enforceability of the writ

If granted by SC or CA: enforceable anywhere In the Philippines;

Enforceable anywhere in the Philippines regardless of who issued the same

If granted by RTC: enforceable only within the judicial district

Enforceable anywhere in the Philippines

Docket fees

Payment is required Note: Rule on indigent

Payment is required. Petitioner is exempted from payment

Note: Rule on indigent petitioner

petitioner applies.

applies.

Petitioner is exempted from payment

Service of writ

Served upon the person to whom it is directed, and if not found or has not the prisoner in his custody, to the other person having or exercising such custody

Served upon the respondent personally; or substituted service

Served upon the respondent personally; or substituted service

Served upon the respondent personally; or substituted service.

Person who makes the return

Officer by whom the prisoner is imprisoned or the person in whose custody the prisoner is found

Respondent

Respondent

Respondent

The respondent shall file a verified written return together with supporting affidavits within 5 working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons.

Within nonextendible period of 10 days after the service of writ.

When to file a return

On the day specified in the writ

Habeas Corpus

Within 5 working days after service of the writ, the respondent shall file a verified written return together with supporting affidavits. Amparo

Habeas Data

Kalikasan

Return

If granted by the SC or CA: returnable before the court or any member or before RTC or any judge thereof; If granted by RTC: returnable before such court

If issued by RTC: returnable before such court;

If issued by RTC: returnable before such court;

If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred;

If issued by SB or CA or any of their justices: returnable before such court or to any RTC 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;

If issued by SC or any of its justices: returnable before such court, or before SB,

If issued by SC, returnable before such court or CA.

If issued by SC or any of its


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207


CA, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred

justices: returnable before such court, or before SB, CA, or to any RTC 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

General denial

Not prohibited.

Not allowed.

Not allowed.

Not allowed.

Liability of the person to whom the wri t is directed if he refuses to make a return

Forfeit to the aggrieved party the sum of P1000, and may also be punished for contempt.

Imprisonment or fine for committing contempt.

Imprisonment or fine for committing contempt.

Indirect contempt.

Hearing

Date and time of hearing is specified in the writ.

Summary hearing shall be conducted not later than 7 days from the date of issuance of the writ.

Summary hearing shall be conducted not later than 10 working days from the date of issuance of the writ.

The hearing including the preliminary conference shall not extend beyond sixty (60) days and shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data.

Period of appeal

Within 48 hours from notice of the judgment or final order appealed from.

5 working days from the date of notice of the adverse judgment.

Habeas Corpus

Amparo

5 working days from the date of notice of the judgment or final order.

Habeas Data Prohibited pleadings

1. 2.

None

Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration.

Motion to dismiss; Motion for extension of time to file opposition, affidavit, position paper and other pleadings; 3. Dilatory motion for postponement; 4. Motion for a bill of particulars; 5. Counterclaim or cross - claim; 6. Third - party complaint; 7. Reply; 8. Motion to declare respondent in default; 9. Intervention; 10. Memorandum; 11. Motion for reconsideration of interlocutory orders or interim relief orders; and 12. Petition for certiorari, mandamus or prohibition against any interlocutory order.

Kalikasan

1. 2. 3. 4. 5. 6. 7. 8.

Motion to dismiss; Motion for extension of time to file return; Motion for postponement; Motion for a bill of particulars; Counterclaim or crossclaim; Third-party complaint; Reply; and Motion to declare respondent in default.

Note: In writ of amparo, one rare instance where the SB, notwithstanding its status as a special court, is vested with jurisdiction co-equal with SC, CA and RTC. Take note that CTA, albeit acting as a special court being in the same rank of CA and SB, is not vested with jurisdiction to issue writ of amparo.

P. CHANGE OF NAME 1. DIFFERENCES UNDER RULE 103, R.A. 9048 AND RULE 108 Discuss the differences among Rule 103 (Change of Name), R.A. 9048 (Administrative Correction of Clerical or Typographical Error/Change of first name or nickname) and Rule 108 (Cancellation or Correction of Clerical or Typographical Error).

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SPECIAL PROCEDINGS

A: Rule 103

R.A. 9048 Scope

Change of first name or surname.

Change of first name or nickname/ correction of clerical errors of entries in the Civil Registry.

Rule 108

Correction of or substantial errors of entries in the Civil Registry/ cancellation of entries.

Nature

Judicial; hearing is necessary.

Administrative; hearing is not necessary.

Judicial; hearing is necessary Summary if it involves clerical errors Adversarial if it involves substantial errors.

Initiated by

Verified petition.

Sworn affidavit.

Verified petition.

Where to file

RTC of the province where the petitioner resides at least 3 months.

1. Local Civil Registry office where the record is kept; 2. Consul general.

RTC where the corresponding civil registry is located.

Where to appeal , in case of adverse decision

CA under Rule 41

Civil Registrar General under Sec. 7 or CA under Rule 43

Filed by the person desiring to change his name.

Petition is filed by the person of legal age who must have a direct and personal interest in the correction: 1. Owner of the record; 2. Owner’s spouse, children, parents, brothers, sisters, grandparents, guardian; or 3. Anyone authorized by law or owner of the record.

CA under Rule 41

Who may file

Solicitor General/ Interested parties.

Who must be notified Interested parties/Solicitor General need not be notified.

Order for hearing shall be published once a week for 3 consecutive weeks.

Order for hearing in case of change of first name/nickname shall be published once a week for 2 consecutive weeks.

Any person interested in the act, event, decree or order concerning the civil status of persons.

Civil registrar as respondent; Solicitor General/ Interested parties.

Publication

Order for hearing shall be published once a week for 3 consecutive weeks.

Grounds

Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2. Habitual and continuous used and been known since childhood by a Filipino name, unaware of her alien parentage; 3. Consequence of a change of status; 4. A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; change will avoid 5. The confusion; or 6. When the 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 should 1.

1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce. 2. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that by that first name or nickname in the community: or 3. The change will avoid confusion.


N/A

S A N T O T O M A S

209


prejudice

public

interest.

(Republic v. CA, G.R. No. 88202, Dec. 14, 1998).

Entries subject to correction

1. Correction of clerical or typographical errors in any entry in civil registry documents, except corrections involving the change in sex, age, nationality and status of a person; and 2. Change of a person's first name or nickname in his or her civil registry.

1. Correction of clerical or typographical errors in the civil registry 2. change of first name or nickname in the civil registry

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

Births; Marriages; Deaths; Legal separations; Judgments of annulments of marriage; Judgments declaring marriages void from the beginning; Legitimations; Adoptions; Acknowledgments of natural children; Naturalization; Election, loss or recovery of citizenship; Civil interdiction; Judicial determination of filiation; and Change of name. (Sec. 2)

NOTE: Clerical/typographical error refer to an obvious mistake committed in clerical work, either in writing, copying, transcribing, or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or place of birth and the like, and can be corrected or changed only by reference to other existing record or records. [Sec. 2(3) of RA 9048]

2. GROUNDS FOR CHANGE OF NAME

nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary. (Republic v. Bautista, 155 SCRA 1, Oct. 26, 1987).

Q: What are the grounds for change of name under Rule 103? A:

Q. ABSENTEES 1. PURPOSE OF THE RULE

1. 2. 3. 4.

5. 6.

Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; Habitual and continuous used and been known since childhood by a Filipino name, unaware of her alien parentage; Consequence of a change of status; A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; The change will avoid confusion; or When the 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 should prejudice public interest. (Republic v. CA, G.R. No. 88202, Dec. 14, 1998).

Q: What is the purpose of this Rule? A: It is to appoint an administrator over the

properties of the absentee. This is proper only where the absentee has properties to be administered. When a person disappears from his domicile his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the RTC of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. Note: If the absentee left no properties, such petition is not necessary. (Reyes v. Alejandro, G.R. No. L-46187, Jan. 16, 1986)

Note: Under Rule 108, change of name may either be

summary or adversary in nature. If the correction sought to be made in the civil registrar is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or

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SPECIAL PROCEEDINGS

2. WHO MAY FILE A PETITION; WHEN TO FILE Q: Who may file a petition for declaration of absence and appointment of administrator or trustee? A:

1. 2. 3. 4.

Spouse present; Heirs instituted in the will; Relatives who will succeed by intestacy; Those who have over the property of the absentee some right subordinated to the condition of his death. (Sec. 2, Rule 107)

Note: Rule 108, when all the procedural requirements

thereunder are followed, is the appropriate adversary proceeding to effect substantial correction and changes in the entries of civil register (Lee v. CA, G.R. No. L-118387, Oct. 11, 2001). Q: What are proceedings?

1.

2.

A:

4.

3.

After 2 years:

a.

2.

From his disappearance and without any news about the absentee; or b. of the last news about the absentee. After 5 years – If he left an administrator of his property. (Sec. 2, Rule 107)

R. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Q: Who may file a petition for cancellation or correction of entries? A: Any person interested in any act, event, order or

decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the RTC of the province where the corresponding civil registry is located (Sec. 1). Q: What is the nature of proceedings in Rule 108? A: It is summary if the entries in the civil register

sought to be corrected are clerical or innocuous in nature. However, where such entries sought to be corrected or changed are substantial, the proceedings are adversarial in nature. (Republic v. Valencia, G.R. No. L-32181, Mar. 5, 1986)

Q: What is meant by appropriate adversarial proceeding? A: One which has opposing parties; contested as distinguished from an ex parte application, one of

which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. (Republic v. Valencia,

requisites

of

adversarial

A:

Q: When should a petition for declaration of absence and appointment of administrator or trustee be filed?

1.

the

5.

Proper petition is filed where the Civil Registrar and all parties interested are impleaded; The order of hearing must be published once a week for three consecutive weeks; Notice must be given to the Civil Registrar and all parties affected thereby; The civil registrar and any person interested, may within 15 days from notice or from the last date of publication, files his opposition thereto; and Full blown trial. (Republic v. Valencia, supra.)

1. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN RELATION TO RA 9048 Q: What are the entries subject to cancellation or correction under Rule 108? A:

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.


Q: May the trial court issued an order declaring the nullity of marriage under Rule 108 and change the status from married to single? A: No, it is proper only in ordinary adversarial proceedings. (Lim v. Republic, G.R. No. 8932, May 31, 1957)

Ibid.)


S A N T O T O M A S

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Q: Within what period may a petition for correction or cancellation of entries be filed?

Kho, G.R. No. 170340, June 29, 2007; Alba v. CA, G.R. No. 164041, July 29, 2005; Barco v. CA, G.R. No. 120587, Jan. 20, 2004). (2007 Bar Question)

A: The law did not fix a period within which the

petition for correction under Rule 108 in relation to Art. 412 of Civil Code may be filed. Accordingly, such petition may be filed within 5 years from time the petitioner discovered the error or mistake in the civil registry, and not from the date the birth certificate was registered in the civil registry. (Lee v. CA, supra.)

Q: Celine files a petition for cancellation of the birth certificate of her daughter Jeanie on the ground of falsified material entries therein made by Celine’s husband as the informant. The RTC sets the case for hearing and directs the publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. Summons was served on the Civil Registrar but there was no appearance during the hearing. The RTC granted the petition. Jeanie filed a petition for annulment of judgment before the CA, saying that she was not notified of the petition and hence, the decision was issued in violation of due process. Celine opposed saying that the publication of the court order was sufficient compliance with due process. Rule. A: The petition for annulment of judgment before

the CA should be granted. Jurisdiction of the court over a petition for cancellation of a birth certificate requires reasonable notice to all interested parties and also publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. In this case, publication of the order is insufficient because Jeanie, a directly concerned party, was not given reasonable notice, hence, denied due process. The lower court, therefore, did not acquire jurisdiction. (Ceruila v. Delantar, G.R. No. 140305, Dec. 9, 2005) .

Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married to another woman living in China. Her birth certificate indicates that Helen is the legitimate child of Tony and Eliza and that she is a Chinese citizen. Helen wants her birth certificate corrected by changing her filiation from "legitimate" to "illegitimate" and her citizenship from “Chinese" to "Filipino" because her parents were not married. What petition should Helen file and what procedural requirements must be observed? Explain. A: A petition has to be filed in a proceeding under

Rule 108 of the Rules of Court. A petition to change the record of birth by changing the filiation from “legitimate” to “illegitimate” and petitioner’s citizenship from “Chinese” to “Filipino” does not

involve a simple summary correction which could otherwise be done under the authority of R.A. 9048. Procedural requirements include: (a) filing a verified petition; (b) naming as parties all persons who have or claim any interest which would be affected; (c) issuance of an order fixing the time and place of hearing; (d) giving reasonable notice to the parties named in the petition; and (e) publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation. (2005 Bar Question) S. APPEALS IN SPECIAL PROCEEDINGS 1. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN Q: What are the orders or judgments from which appeal may be taken? A: An interested person may appeal when such

order or judgment:

Alternative Answer:

It should not be granted. The publication of an order of hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party. A petition for correction is an action in rem, an action against a thing and not against a person. The decision on the petition binds not only the parties thereto but the whole world. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole as a party in the case and vests the court with jurisdiction to hear and decide it (Republic v.

212

1. 2.

3.

4. 5.

Allows or disallows a will; Determines who are the lawful heirs of a deceased person, or the distributive share of 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 the proceedings relating to the settlement of the estate of a deceased person, or the administration of




prejudice

public

interest.

(Republic v. CA, G.R. No. 88202, Dec. 14, 1998).

Entries subject to correction

1. Correction of clerical or typographical errors in any entry in civil registry documents, except corrections involving the change in sex, age, nationality and status of a person; and 2. Change of a person's first name or nickname in his or her civil registry.

1. Correction of clerical or typographical errors in the civil registry 2. change of first name or nickname in the civil registry

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.


NOTE: Clerical/typographical error refer to an obvious mistake committed in clerical work, either in writing, copying, transcribing, or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or place of birth and the like, and can be corrected or changed only by reference to other existing record or records. [Sec. 2(3) of RA 9048]

2. GROUNDS FOR CHANGE OF NAME

nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary. (Republic v. Bautista, 155 SCRA 1, Oct. 26, 1987).

Q: What are the grounds for change of name under Rule 103? A:

Q. ABSENTEES 1. PURPOSE OF THE RULE

1. 2. 3. 4.

5. 6.

Name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce; Habitual and continuous used and been known since childhood by a Filipino name, unaware of her alien parentage; Consequence of a change of status; A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; The change will avoid confusion; or When the 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 should prejudice public interest. (Republic v. CA, G.R. No. 88202, Dec. 14, 1998).

Q: What is the purpose of this Rule? A: It is to appoint an administrator over the

properties of the absentee. This is proper only where the absentee has properties to be administered. When a person disappears from his domicile his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the RTC of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. Note: If the absentee left no properties, such petition is not necessary. (Reyes v. Alejandro, G.R. No. L-46187, Jan. 16, 1986)

Note: Under Rule 108, change of name may either be

summary or adversary in nature. If the correction sought to be made in the civil registrar is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or

210



SPECIAL PROCEEDINGS

2. WHO MAY FILE A PETITION; WHEN TO FILE Q: Who may file a petition for declaration of absence and appointment of administrator or trustee? A:

1. 2. 3. 4.

Spouse present; Heirs instituted in the will; Relatives who will succeed by intestacy; Those who have over the property of the absentee some right subordinated to the condition of his death. (Sec. 2, Rule 107)

Note: Rule 108, when all the procedural requirements

thereunder are followed, is the appropriate adversary proceeding to effect substantial correction and changes in the entries of civil register (Lee v. CA, G.R. No. L-118387, Oct. 11, 2001). Q: What are proceedings?

1.

2.

A:

4.

3.

After 2 years:

a.

2.

From his disappearance and without any news about the absentee; or b. of the last news about the absentee. After 5 years – If he left an administrator of his property. (Sec. 2, Rule 107)

R. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Q: Who may file a petition for cancellation or correction of entries? A: Any person interested in any act, event, order or

decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the RTC of the province where the corresponding civil registry is located (Sec. 1). Q: What is the nature of proceedings in Rule 108? A: It is summary if the entries in the civil register

sought to be corrected are clerical or innocuous in nature. However, where such entries sought to be corrected or changed are substantial, the proceedings are adversarial in nature. (Republic v. Valencia, G.R. No. L-32181, Mar. 5, 1986)

Q: What is meant by appropriate adversarial proceeding? A: One which has opposing parties; contested as distinguished from an ex parte application, one of

which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. (Republic v. Valencia,

requisites

of

adversarial

A:

Q: When should a petition for declaration of absence and appointment of administrator or trustee be filed?

1.

the

5.

Proper petition is filed where the Civil Registrar and all parties interested are impleaded; The order of hearing must be published once a week for three consecutive weeks; Notice must be given to the Civil Registrar and all parties affected thereby; The civil registrar and any person interested, may within 15 days from notice or from the last date of publication, files his opposition thereto; and Full blown trial. (Republic v. Valencia, supra.)

1. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN RELATION TO RA 9048 Q: What are the entries subject to cancellation or correction under Rule 108? A:

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.


Q: May the trial court issued an order declaring the nullity of marriage under Rule 108 and change the status from married to single? A: No, it is proper only in ordinary adversarial proceedings. (Lim v. Republic, G.R. No. 8932, May 31, 1957)

Ibid.)


S A N T O T O M A S

211

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