Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 118644 July 7, 1995

DIRECTOR EPIMACO A. VELASCO, as Director of the National
Bureau of Investigation (NBI), NATIONAL BUREAU OF
INVESTIGATION SPECIAL OPERATIONS GROUP (SOG), SPECIAL
INVESTIGATORS III FLOR L. RESURRECCION and ANTONIO M.
ERUM, JR., and THE PEOPLE OF THE PHILIPPINES, petitioners,
vs.
COURT OF APPEALS, FELICITAS S. CUYAG, for and in behalf of
LAWRENCE A. LARKINS, respondents.

DAVIDE, JR., J.:

The high prerogative writ of habeas corpus, whose origin is lost in antiquity,
1
was devised and exists as a speedy and effectual remedy to relieve persons
from unlawful restraint and as the best and only sufficient defense of
personal freedom. 2 More specifically, its vital purposes are to obtain
immediate relief from illegal confinement, to liberate those who may be
imprisoned without sufficient cause, and to deliver them from unlawful
custody. It is then essentially a writ of inquiry and is granted to test the right
under which a person is detained. 3
Under our Constitution, the privilege of the writ of habeas corpus cannot be
suspended except in cases of invasion or rebellion when the public safety
requires it. 4 Pursuant to Section 1, Rule 102 of the Rules of Court, it extends,

except as otherwise provided by law, to all cases of illegal confinement or

detention by which any person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the person entitled thereto. It
is not available, however, under the instances enumerated in Section 4 of the
said Rule which reads:
Sec. 4. When writ not allowed or discharge authorized. If
it appears that the person alleged to be restrained of his
liberty is in the custody of an officer under process issued by
a court or judge or by virtue of a judgment or order of a
court of record, and that the court or judge had jurisdiction to
issue the process, render the judgment, or make the order, the
writ shall not be allowed; or if the jurisdiction appears after
the writ is allowed, the person shall not be discharged by
reason of any informality or defect in the process, judgment,
or order. Nor shall anything in this rule be held to authorize
the discharge of a person charged with or convicted of an
offense in the Philippines, or of a person suffering
imprisonment under lawful judgment.
In this petition for review, the petitioners want us to set aside and reverse the
decision of 1 February 1995 of the Court of Appeals in CA-G.R. SP No.
36273, 5 a petition for habeas corpus and certiorari with a prayer for a
temporary restraining order, ordering the herein petitioners to immediately
release Lawrence A. Larkins from their custody and declaring moot the
alternative relief of certiorari.
The antecedent facts of the case as culled from the challenged decision and
the pleadings of the parties are neither complicated nor disputed.
On 16 September 1993, a warrant of arrest was issued by Judge Manuel
Padolina of Branch 162 of the Regional Trial Court (RTC) of Pasig, Metro
Manila, against accused Lawrence Larkins in Criminal Cases Nos. 10118992 for violations of B.P. Blg. 22.
1

On 20 November 1994, a certain Desiree Alinea executed and filed before

the National Bureau of Investigation (NBI) a complaint-affidavit accusing
Larkins of the crime of rape allegedly committed against her on 19
November 1994 at 2:00 a.m. in Victoria Valley Subdivision, Valley Golf,
Antipolo, Rizal. 6
Acting on the basis of the complaint of Alinea, petitioners Special
Investigators Flor L. Resurreccion and Antonio M. Erum, Jr. proceeded to the
office of Larkins in Makati, Metro Manila, on 21 November 1994 and
arrested the latter, who was thereupon positively identified by Alinea as her
rapist. 7 Larkins was then detained at the Detention Cell of the NBI, Taft
Avenue, Manila.
On 22 November 1994, Larkins posted his bail of P4,000.00 in Criminal
Cases Nos. 101189-92. Judge Padolina forthwith issued an order recalling
and setting aside the warrant of arrest issued on 16 September 1993 and
directing the Jail Warden of the NBI Detention Cell to release Larkins from
confinement "unless otherwise detained for some other cause."
Special Investigators Resurreccion and Erum refused to release Larkins
because he was still detained for another cause, specifically for the crime of
rape for which he would be held for inquest.
On 23 November 1994, a complaint against Larkins for rape was executed by
Alinea. 8 It contains a certification by Assistant Provincial Prosecutor Ma.
Paz Reyes Yson that it is "filed pursuant to Section 7, Rule 112 of the 1985
Rules on Criminal Procedure, as amended, the accused not having opted to
avail of his right to preliminary investigation and not having executed a
waiver pursuant to Article 125 of the RPC. . . ." The complaint was filed with
the RTC of Antipolo on 2 December 1994, docketed therein as Criminal Case
No. 94-11794, and assigned to Branch 71 of the court, presided by Judge
Felix S. Caballes.

of guilt against him for rape is not strong, as he had no carnal knowledge of
the complainant and the medical report indicates that her hymen was neither
lacerated nor ruptured; that he is entitled as a matter of right to bail; and that
he has no intention of going out of the country or hiding away from the law.
On 6 December 1994, Larkins, through his new counsel, Atty. Theodore O.
Te, filed in Criminal Case No. 94-11794 an Urgent Omnibus Motion for the
Dismissal of the Complaint and for Immediate Release, 10 principally based
on the alleged illegality of his warrantless arrest. This motion met vigorous
opposition from the private complainant. 11
In the order of 5 January 1995, 12 the trial court denied the aforesaid motions,
thus:
After a careful appreciation of the arguments of the
prosecution and the defense, the Court finds no legal or valid
grounds to dismiss the complaint or release the accused, or
to grant him bail. The filing of this case against the accused,
which is [a] very serious offense, justifies the grant of the
motion of the prosecution for the issuance of a hold
departure order.
WHEREFORE, the motions of the accused are hereby
denied for lack of merit, and as prayed for by the prosecution
the Bureau of Immigration and Deportation is hereby
directed to include the name of the accused, Lawrence A.
Larkins, in its hold order departure list until further order
from this Court.
Unable to accept the ruling, Larkins' common-law wife, Felicitas S. Cuyag,
filed before the Court of Appeals a petition for habeas corpus with certiorari.
Impleaded as respondents were the herein petitioners and Judge Felix S.
Caballes.

On 2 December 1994, Larkins, through his counsel Mauricio C. Ulep, filed

an Urgent Motion for Bail 9 wherein he alleged, inter alia, that the evidence
2

Subsequently, the Court of Appeals issued a resolution 13 ordering the

respondents therein to appear and produce Lawrence A. Larkins before the
court on 31 January 1995 at 10:30 a.m. and to show cause why Larkins'
liberty is being restrained.
On the said date, Special Investigators Resurreccion and Erum appeared and
produced Larkins at the hearing. Atty. Orlando Dizon of the NBI acted as
their counsel. 14 The Office of the Solicitor General representing the People
of the Philippines made no appearance. 15 Neither did Judge Caballes, for he
had not received a copy of the resolution. On the other hand, the petitioner
therein, Felicitas S. Cuyag, appeared with her counsel, who manifested that
should the court order the release of Larkins the alternative prayer for
certiorari would be deemed abandoned. 16
After hearing the arguments of the parties, the Court of Appeals rendered the
challenged decision, holding that:
From the arguments presented by the parties, we resolve to
order the immediate release of Larkins from his present
confinement on the ground that the complaint presented to
the NBI by complainant Desiree Alinea on the basis of
which Larkins was detained without a warrant of arrest for
rape did not meet the legal requirements provided for in Rule
113 of the Rules of Court.
Furthermore, on the day the detention of Larkins
commenced, i.e., immediately after the NBI was served with
the Order of the Pasig RTC for his release on bail in
connection with the BP 22 cases, no other criminal
complaint or information had been filed or pending in any
court. It was only sometime between November 25, 1994
(when filing of the complaint was approved by the Rizal
Provincial Prosecutor) and November 29, 1994 (the date
appearing on the Urgent Motion for Bail filed by Larkins's

former counsel, said Atty. Ulep) that the complaint for rape
was filed with the Antipolo RTC.
The petitioners insist that the respondent court erred in granting the petition
for habeas corpus because Larkins had already been charged with the crime
of rape and the trial court had denied his application for bail. They further
claim that the warrantless arrest in this case is valid for it was made under
Section 5(b), Rule 113 of the Rules of Court.
On the other hand, the private respondent contends that habeas corpus is
rendered unavailing not by the mere filing of an information, but by the
issuance of a warrant of arrest or warrant of commitment, which are the only
two processes recognized by law to justify deprivation of liberty, and the
order of Judge Caballes of 5 January 1995 denying the petition for bail does
not qualify as such. She asserts that the petitioners have miscomprehended
Paredes vs. Sandiganbayan 17 because that case did not rule that the writ is no
longer available after an information (or criminal complaint for rape as in
this case) is filed against the person detained; what it stated is that the writ of
habeas corpus will not issue when the person alleged to be restrained of his
liberty is in the custody of an officer under a process issued by the court
which has jurisdiction to do so. She submits that the controlling doctrine is
that enunciated in Ilagan vs. Ponce Enrile, 18 adverted to in Sanchez vs.
Demetriou, 19 that "[t]he filing of charges, and the issuance of the
corresponding warrant of arrest, against a person invalidly detained will cure
the defect of that detention or at least deny him the right to be released
because of such defect."
We find for the petitioners.
But, before we take up the substantive merits of this petition, we shall first
delve into the propriety of the petition for habeas corpus and certiorari filed
by private respondent Cuyag with the Court of Appeals.
Concededly, the private respondent has the personality to institute on behalf
of her common-law spouse, Lawrence Larkins, the habeas corpus aspect of
3

the petition, as she falls within the purview of the term "some person" under
Section 3, Rule 102 of the Rules of Court, which means any person who has
a legally justified interest in the freedom of the person whose liberty is
restrained or who shows some authorization to make the application. 20 She is
not, however, the real party in interest in the certiorari aspect of the petition.
Only Larkins could institute a petition for certiorari to set aside the order
denying his motions for bail and for the dismissal of the complaint against
him.

application. Among such supervening events is the issuance of a judicial

process preventing the discharge of the detained person. Thus, in Sayo vs.
Chief of Police of Manila, 23 this Court held:

It does not, however, follow that if certiorari is available to Larkins, an

application for a writ of habeas corpus will absolutely be barred. While
ordinarily, the writ of habeas corpus will not be granted when there is an
adequate remedy by writ of error or appeal or by writ of certiorari, it may,
nevertheless, be available in exceptional cases, for the writ should not be
considered subservient to procedural limitations which glorify form over
substance. 21 It must be kept in mind that although the question most often
considered in both habeas corpus and certiorari proceedings is whether an
inferior court has exceeded its jurisdiction, the former involves a collateral
attack on the judgment and "reaches the body but not the record," while the
latter assails directly the judgment and "reaches the record but not the body."

Another is the filing of a complaint or information for the offense for which
the accused is detained, as in the instant case. By then, the restraint of liberty
is already by virtue of the complaint or information and, therefore, the writ of
habeas corpus is no longer available. Section 4 of Rule 102 reads in part as
follows: "Nor shall anything in this rule be held to authorize the discharge of
a person charged with . . . an offense in the Philippines."

22

And now on the merits of the petition.

The Court of Appeals granted the writ of habeas corpus because it found that
the warrantless arrest of Larkins for the crime of rape "did not meet the legal
requirements provided for in Rule 113 of the Rules of Court." It could have
in mind Section 5 thereof on lawful warrantless arrest.
Even if the arrest of a person is illegal, supervening events may bar his
release or discharge from custody. What is to be inquired into is the legality
of his detention as of, at the earliest, the filing of the application for a writ of
habeas corpus, for even if the detention is at its inception illegal, it may, by
reason of some supervening events, such as the instances mentioned in
Section 4 of Rule 102, be no longer illegal at the time of the filing of the

[W]e hold that petitioners are being illegally restrained of

their liberty, and their release is hereby ordered unless they
are now detained by virtue of a process issued by a
competent court of justice. (emphasis supplied)

Thus, in Matsura vs. Director of Prisons, 24 where petitioners Macario Herce

and Celso Almadovar claimed to have been illegally detained for more than
one year without any complaint or information filed against them, this Court
denied the petition for a writ of habeas corpus, for at the time they filed the
petition they had already been charged with the crime of treason and
confined by reason thereof. Harvey vs. Defensor-Santiago 25 reiterates
Matsura.
In Cruz vs. Montoya, 26 this Court dismissed the petition for habeas corpus
for having become academic because the information for estafa against the
party whose liberty was allegedly illegally restrained had already been filed
and a warrant for his arrest had been issued, and whatever illegality might
have originally infected his detention had been cured.
In Umil vs. Ramos 27 this Court, applying the last sentence of Section 4 of
Rule 102, held that the writ of habeas corpus should not be allowed after the
party sought to be released had been charged before any court. Thus:

It is to be noted that, in all the petitions here considered,

criminal charges have been filed in the proper courts against
the petitioners. The rule is, that if a person alleged to be
restrained of his liberty is in the custody of an officer under
process issued by a court or judge, and that the court or
judge had jurisdiction to issue the process or make the order,
or if such person is charged before any court, the writ of
habeas corpus will not be allowed. Section 4, Rule 102,
Rules of Court, as amended is quite explicit in providing
that:

When a defendant in a criminal case is brought before a

competent court by virtue of a warrant of arrest or otherwise,
in order to avoid the submission of his body to the
jurisdiction of the court he must raise the question of the
court's jurisdiction over his person at the very earliest
opportunity. If he gives bail, demurs to the complaint or files
any dilatory plea or pleads to the merits, he thereby gives the
court jurisdiction over his person. (State ex rel. John Brown
vs. Fitzgerald, 51 Minn., 534)
In United States vs. Grant, 31 this Court held:

Sec. 4. . . . 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 from imprisonment under lawful judgment. 28
(emphasis supplied)
It may also be said that by filing his motion for bail, Larkins admitted that he
was under the custody of the court and voluntarily submitted his person to its
jurisdiction. In De Asis vs. Romero, 29 this Court stated:
De Asis could have, right after his arrest, objected to the
regularity of the issuance of the warrant of arrest in question.
Instead he not only filed a petition for bail with the lower
court, thereby accepting the court's jurisdiction over his
person, but he also pleaded, on arraignment, to the
information filed against him. (emphasis supplied)
The filing of a petition or motion for bail in cases where no bail is
recommended has the same legal import and effect as the posting of bail in
cases where bail is recommended. It is settled that the giving or posting of
bail by the accused is tantamount to submission of his person to the
jurisdiction of the court. In the case of Carrington vs. Peterson, 30 this Court
declared:

Conceding again that the warrant issued in this case was

void for the reason that no probable cause was found by the
court before issuing it, the defendant waived all his rights to
object to the same by appearing and giving bond.
While it may be true that on 6 December 1994, or four days after the filing of
the Urgent Motion for Bail, Larkins, thru a new counsel, filed an Urgent
Omnibus Motion for Dismissal of the Complaint and for Immediate Release
based on the alleged illegality of his warrantless arrest, the said motion was a
mere afterthought which came too late in the day. By then, the trial court had
firmly acquired jurisdiction over his person.
Moreover, the trial court's order of 5 January 1995 denying the urgent motion
for bail was an unequivocal assertion of its authority to keep in custody the
person of Larkins. This order comes under the purview of the word order
under the first sentence of Section 4 of Rule 102 reading: "If it appears that
the person alleged to be restrained of his liberty is in the custody of an officer
...
by virtue of [an] order of a court of record, and that the court or judge had
jurisdiction to . . . make the order, the writ shall not be allowed. . . ."
The foregoing renders untenable the private respondent's claim that it is the
rule in Ilagan vs. Enrile 32 which must govern, that the writ may not be
5

allowed only where the person alleged to be restrained of his liberty is in the
custody of an officer under process issued by the court or judge, and that
there are only two recognized processes which justify deprivation of liberty,
viz., (1) commitment order and (2) warrant of arrest. The contention is not
only a deliberate misreading of Section 4 of Rule 102 limiting its application
to the first part of the first sentence and disregarding the rest, but is also an
undue and unwarranted restriction of the term process. A commitment order
and a warrant of arrest are but species of judicial process.
33

In Malaloan vs. Court of Appeals, this Court stated:

Invariably a judicial process is defined as a writ, warrant,
subpoena, or other formal writing issued by authority of law;
also, the means of accomplishing an end, including judicial
proceedings, or all writs, warrants, summonses and orders of
courts of justice or judicial officers. It is likewise held to
include a writ, summons or order issued in a judicial
proceeding to acquire jurisdiction of a person or his property,
to expedite the cause or enforce the judgment, or a writ,
warrant, mandate or other process issuing from a court of
justice.
In Macondray & Co., Inc. vs. Bernabe, 34 this Court quoted Corpus Juris'
definition of the term "process," to wit:
As a legal term, process is a generic word of very
comprehensive signification and many meanings. In its
broadest sense, it is equivalent to, or synonymous with
"proceedings" or procedure and embraces all the steps and
proceedings in a cause from its commencement to its
conclusion. Sometimes the term is also broadly defined as
the means whereby a court compels a compliance with its
demands. (50 C.J. 441)

We thus rule that the order of 5 January 1995 of the trial court also qualifies
as a process within the meaning of Section 4 of Rule 102.
Hence, even granting that Larkins was illegally arrested, still the petition for
a writ of habeas corpus will not prosper because his detention has become
legal by virtue of the filing before the trial court of the complaint against him
and by the issuance of the 5 January 1995 order.
Even as we thus decide in favor of the petitioners, we are, nevertheless,
disturbed by certain incidents relative to the warrantless arrest of Larkins.
Firstly, assuming that it was lawful, the facts before us disclose that the
arresting officers failed to strictly comply with (1) the last paragraph of
Section 5, Rule 113 of the Rules of Court requiring that the person lawfully
arrested without a warrant shall forthwith be delivered to the nearest police
station or jail and shall be proceeded against in accordance with Section 7,
Rule 112; and (2) Article 125 of the Revised Penal Code, as amended,
providing that he be delivered to the proper judicial authorities within thirtysix hours, the crime with which Larkins was charged being punishable by an
afflictive penalty. Although the arrest was made in Makati where there is a
police station and a municipal (now city) jail, Larkins was brought to the
NBI Detention Cell at Taft Avenue, Manila, and though the complaint of the
offended party was executed on 23 November 1994, it was not until 2
December 1994 that the said complaint was actually filed in court.
Unless satisfactorily explained, the non-compliance by the arresting officers
with the said provisions merits nothing but disapproval from the Court. In the
performance of their duty and in their commendable pursuit to stamp out
crimes and bring criminals to the bar of justice, law enforcement authorities
should make no shortcuts, but must comply with all procedures to safeguard
the constitutional and statutory rights of accused persons. The rule of law
must always be upheld. What this Court said in Beltran vs. Garcia 35 needs to
be repeated:
It certainly does not speak well of officialdom, whether
civilian or military, if a person deprived of his liberty had to
6

go to court before his rights are respected. The good name of

the administration is jeopardized, without any fault on its
part, by such inefficiency or inattention to duty. Every
precaution should be taken against its repetition. Otherwise,
the parties responsible for this state of affairs would justly
lay themselves open to the accusation that the greatest
danger to constitutional rights comes from public officials,
men of zeal, concededly well-meaning, but without
sufficient understanding of the implication of the rule of law.
We also note that the trial court did not conduct a hearing of the urgent
motion for bail, as required under Section 5, Rule 114 of the Rules of Court.
The grant or denial of bail must be based upon the court's determination as to
whether or not the evidence of guilt is strong. This discretion may only be
exercised after evidence is submitted at the hearing conducted for that
purpose. 36 The court's order granting or refusing bail must contain a
summary of the evidence for the prosecution followed by its conclusion
whether or not the evidence of guilt is strong; otherwise, the order would be

defective and voidable. 37 In fact, even if the prosecutor refuses to adduce

evidence in opposition to the application to grant and fix bail, the court may
ask the prosecution such questions as would ascertain the strength of the
State's evidence or judge the adequacy of the amount of bail. 38 It was thus
incumbent upon the trial court to receive the evidence for the prosecution on
the urgent motion for bail. For this procedural shortcoming, Larkins should
also be partly blamed. He did not press for a hearing after the scheduled
hearing on 5 December 1994 was cancelled because, as he claimed, the
presiding Judge was out of the country. 39
WHEREFORE, the instant petition is GRANTED, and the decision of the
Court of Appeals of 1 February 1995 in CA-G.R. SP No. 36273 is hereby
SET ASIDE and ANNULLED.
No pronouncement as to costs.
SO ORDERED.
Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

G.R. No. L-35546 September 17, 1974

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
BENIGNO S. AQUINO, JR., RAMON MITRA, JR., FRANCISCO
RODRIGO, AND NAPOLEON RAMA, petitioners,
vs.
HON JUAN PONCE ENRILE, SECRETARY OF NATIONAL
DEFENSE; GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES; AND GEN. FIDEL V. RAMOS,
CHIEF, PHILIPPINE CONSTABULARY, respondents.
These cases are all petitions for habeas corpus, the petitioners having been
arrested and detained by the military by virtue of the President's
Proclamation No. 1081, dated September 21, 1972.

At the outset a word of clarification is in order. This is not the decision of the
Court in the sense that a decision represents a consensus of the required
majority of its members not only on the judgment itself but also on the
rationalization of the issues and the conclusions arrived at. On the final result
the vote is practically unanimous; this is a statement of my individual
opinion as well as a summary of the voting on the major issues. Why no
particular Justice has been designated to write just one opinion for the entire
Court will presently be explained.
At one point during our deliberations on these cases it was suggested that as
Chief Justice I should write that opinion. The impracticability of the
suggestion shortly became apparent for a number of reasons, only two of
which need be mentioned. First, the discussions, as they began to touch on
particular issues, revealed a lack of agreement among the Justices as to
whether some of those issues should be taken up although it was not
7

necessary to do so, they being merely convenient for the purpose of

ventilating vexing questions of public interest, or whether the decision should
be limited to those issues which are really material and decisive in these
cases. Similarly, there was no agreement as to the manner the issues should
be treated and developed. The same destination would be reached, so to
speak, but through different routes and by means of different vehicles of
approach. The writing of separate opinions by individual Justices was thus
unavoidable, and understandably so for still another reason, namely, that
although little overt reference to it was made at the time, the future verdict of
history was very much a factor in the thinking of the members, no other case
of such transcendental significance to the life of the nation having before
confronted this Court. Second and this to me was the insuperable obstacle
I was and am of the opinion, which was shared by six other Justices 1 at
the time the question was voted upon, that petitioner Jose W. Diokno's
motion of December 28, 1973 to withdraw his petition (G.R. No. L-35539)
should be granted, and therefore I was in no position to set down the ruling
of the Court on each of the arguments raised by him, except indirectly,
insofar as they had been raised likewise in the other cases.
It should be explained at this point that when the Court voted on Diokno's
motion to withdraw his petition he was still under detention without charges,
and continued to remain so up to the time the separate opinions of the
individual Justices were put in final form preparatory to their promulgation
on September 12, which was the last day of Justice Zaldivars tenure in the
Court. 2 Before they could be promulgated, however, a major development
supervened: petitioner Diokno was released by the President in the morning
of September 11, 1974. In view thereof all the members of this Court except
Justice Castro agreed to dismiss Diokno's petition on the ground that it had
become moot, with those who originally voted to grant the motion for
withdrawal citing said motion as an additional ground for such dismissal.
The petitioners in the other cases, except Benigno Aquino, Jr. (G.R. No. L35546), either have been permitted to withdraw their petitions or have been
released from detention subject to certain restrictions. 3 In the case of Aquino,
formal charges of murder, subversion and illegal possession of firearms were

lodged against him with a Military Commission on August 11, 1973; and on
the following August 23 he challenged the jurisdiction of said Commission as
well as his continued detention by virtue of those charges in a petition for
certiorari and prohibition filed in this Court (G.R. No.
L-37364). The question came up as to whether or not Aquino's petition for
habeas corpus should be dismissed on the ground that the case as to him
should more appropriately be resolved in this new petition. Of the twelve
Justices, however, eight voted against such dismissal and chose to consider
the case on the merits. 4
On Diokno's motion to withdraw his petition I voted in favor of granting it
for two reasons. In the first place such withdrawal would not emasculate the
decisive and fundamental issues of public interest that demanded to be
resolved, for they were also raised in the other cases which still remained
pending. Secondly, since it was this petitioner's personal liberty that was at
stake, I believed he had the right to renounce the application for habeas
corpus he initiated. Even if that right were not absolute I still would respect
his choice to remove the case from this Court's cognizance, regardless of the
fact that I disagreed with many of his reasons for so doing. I could not escape
a sense of irony in this Court's turning down the plea to withdraw on the
ground, so he alleges among others, that this is no longer the Court to which
he originally applied for relief because its members have taken new oaths of
office under the 1973 Constitution, and then ruling adversely to him on the
merits of his petition.
It is true that some of the statements in the motion are an affront to the
dignity of this Court and therefore should not be allowed to pass unanswered.
Any answer, however, would not be foreclosed by allowing the withdrawal.
For my part, since most of those statements are of a subjective character,
being matters of personal belief and opinion, I see no point in refuting them
in these cases. Indeed my impression is that they were beamed less at this
Court than at the world outside and designed to make political capital of his
personal situation, as the publicity given to them by some segments of the
foreign press and by local underground propaganda news sheets subsequently
confirmed. It was in fact from that perspective that I deemed it proper to
8

respond in kind, that is, from a non-judicial forum, in an address I delivered

on February 19, 1974 before the LAWASIA, the Philippine Bar Association
and the Philippine Lawyers' Association. Justice Teehankee, it may be stated,
is of the opinion that a simple majority of seven votes out of twelve is legally
sufficient to make the withdrawal of Diokno's petition effective, on the
theory that the requirement of a majority of eight votes applies only to a
decision on the merits.
In any event, as it turned out, after petitioner Diokno was released by the
President on September 11 all the members of this Court except Justice
Castro were agreed that his petition had become moot and therefore should
no longer be considered on the merits. This notwithstanding, some of the
opinions of the individual members, particularly Justices Castro and
Teehankee, should be taken in the time setting in which they were prepared,
that is, before the order for the release of Diokno was issued.
The Cases.
The events which form the background of these nine petitions are related,
either briefly or in great detail, in the separate opinions filed by the
individual Justices. The petitioners were arrested and held pursuant to
General Order No. 2 of the President (September 22, 1972), "for being
participants or for having given aid and comfort in the conspiracy to seize
political and state power in the country and to take over the Government by
force ..."
General Order No. 2 was issued by the President in the exercise of the
powers he assumed by virtue of Proclamation No. 1081 (September 21,
1972) placing the entire country under martial law. The portions of the
proclamation immediately in point read as follows:
xxx xxx xxx
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines by virtue of the powers vested

upon me by Article VII, Section 10, Paragraph (2) of the

Constitution, do hereby place the entire Philippines as
defined in Article I, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-inChief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence
as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.
In addition, I do hereby order that all persons presently
detained, as well as all others who may hereafter be similarly
detained for the crimes of insurrection or rebellion, and all
other crimes and offenses committed in furtherance or on the
occasion thereof, or incident thereto, or in connection
therewith, for crimes against national security and the law of
nations, crimes against public order, crimes involving
usurpation of authority, rank, title and improper use of
names, uniforms and insignia, crimes committed by public
officers, and for such other crimes as will be enumerated in
orders that I shall subsequently promulgate, as well as
crimes as a consequence of any violation of any decree,
order or regulation promulgated by me personally or
promulgated upon my direction shall be kept under detention
until otherwise ordered released by me or by my duly
designated representative.
The provision of the 1935 Constitution referred to in the proclamation reads:
"the President shall be commander-in-chief of all armed forces of the
Philippines and, whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion, insurrection, or
rebellion. In case of invasion, insurrection, or rebellion, or imminent danger
thereof, when the public safety requires it, he may suspend the privilege of
9

the writ of habeas corpus, or place the Philippines or any part thereof under
martial law."
1. The first major issue raised by the parties is whether this Court may
inquire into the validity of Proclamation No. 1081. Stated more concretely, is
the existence of conditions claimed to justify the exercise of the power to
declare martial law subject to judicial inquiry? Is the question political or
justiciable in character?
Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino hold that the
question is political and therefore its determination is beyond the jurisdiction
of this Court. The reasons are given at length in the separate opinions they
have respectively signed. Justice Fernandez adds that as a member of the
Convention that drafted the 1973 Constitution he believes that "the
Convention put an imprimatur on the proposition that the validity of a
martial law proclamation and its continuation is political and non-justiciable
in character."
Justice Barredo, on the other hand, believes that political questions are not
per se beyond the Court's jurisdiction, the judicial power vested in it by the
Constitution being plenary and all-embracing, but that as a matter of policy
implicit in the Constitution itself the Court should abstain from interfering
with the Executive's Proclamation, dealing as it does with national security,
for which the responsibility is vested by the charter in him alone. But the
Court should act, Justice Barredo opines, when its abstention from acting
would result in manifest and palpable transgression of the Constitution
proven by facts of judicial notice, no reception of evidence being
contemplated for purposes of such judicial action.
It may be noted that the postulate of non-justiciability as discussed in those
opinions involves disparate methods of approach. Justice Esguerra maintains
that the findings of the President on the existence of the grounds for the
declaration of martial law are final and conclusive upon the Courts. He
disagrees vehemently with the ruling in Lansang vs. Garcia, 42 SCRA 448,
December 11, 1971, and advocates a return to Barcelon vs. Baker, 5 Phil. 87

(1905), and Montenegro vs. Castaeda, 91 Phil. 882 (1952). Justice Barredo,
for his part, holds that Lansang need not be overturned, indeed does not
control in these cases. He draws a distinction between the power of the
President to suspend the privilege of the writ of habeas corpus, which was
the issue in Lansang, and his power to proclaim martial law, calling attention
to the fact that while the Bill of Rights prohibits suspension of the privilege
except in the instances specified therein, it places no such prohibition or
qualification with respect to the declaration of martial law.
Justice Antonio, with whom Justices Makasiar, Fernandez and Aquino
concur, finds that there is no dispute as to the existence of a state of rebellion
in the country, and on that premise emphasizes the factor of necessity for the
exercise by the President of his power under the Constitution to declare
martial law, holding that the decision as to whether or not there is such
necessity is wholly confided to him and therefore is not subject to judicial
inquiry, his responsibility being directly to the people.
Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee
and Muoz Palma. They hold that the constitutional sufficiency of the
proclamation may be inquired into by the Court, and would thus apply the
principle laid down in Lansang although that case refers to the power of the
President to suspend the privilege of the writ of habeas corpus. The
recognition of justiciability accorded to the question in Lansang, it should be
emphasized, is there expressly distinguished from the power of judicial
review in ordinary civil or criminal cases, and is limited to ascertaining
"merely whether he (the President) has gone beyond the constitutional limits
of his jurisdiction, not to exercise the power vested in him or to determine the
wisdom of his act." The test is not whether the President's decision is correct
but whether, in suspending the writ, he did or did not act arbitrarily.
Applying this test, the finding by the Justices just mentioned is that there was
no arbitrariness in the President's proclamation of martial law pursuant to the
1935 Constitution; and I concur with them in that finding. The factual bases
for the suspension of the privilege of the writ of habeas corpus, particularly
in regard to the existence of a state of rebellion in the country, had not
disappeared, indeed had been exacerbated, as events shortly before said
10

proclamation clearly demonstrated. On this Point the Court is practically

unanimous; Justice Teehankee merely refrained from discussing it.
Insofar as my own opinion is concerned the cleavage in the Court on the
issue of justiciability is of not much more than academic interest for purposes
of arriving at a judgment. I am not unduly exercised by Americas decisions
on the subject written in another age and political clime, or by theories of
foreign authors in political science. The present state of martial law in the
Philippines is peculiarly Filipino and fits into no traditional patterns or
judicial precedents.
In the first place I am convinced (as are the other Justices), without need of
receiving evidence as in an ordinary adversary court proceeding, that a state
of rebellion existed in the country when Proclamation No. 1081 was issued.
It was a matter of contemporary history within the cognizance not only of the
courts but of all observant people residing here at the time. Many of the facts
and events recited in detail in the different "Whereases" of the proclamation
are of common knowledge. The state of rebellion continues up to the present.
The argument that while armed hostilities go on in several provinces in
Mindanao there are none in other regions except in isolated pockets in
Luzon, and that therefore there is no need to maintain martial law all over the
country, ignores the sophisticated nature and ramifications of rebellion in a
modern setting. It does not consist simply of armed clashes between
organized and identifiable groups on fields of their own choosing. It includes
subversion of the most subtle kind, necessarily clandestine and operating
precisely where there is no actual fighting. Underground propaganda,
through printed news sheets or rumors disseminated in whispers; recruitment
of armed and ideological adherents, raising of funds, procurement of arms
and material, fifth-column activities including sabotage and intelligence
all these are part of the rebellion which by their nature are usually conducted
far from the battle fronts. They cannot be counteracted effectively unless
recognized and dealt with in that context.
Secondly, my view, which coincides with that of other members of the Court
as stated in their opinions, is that the question of validity of Proclamation No.

1081 has been foreclosed by the transitory provision of the 1973 Constitution
[Art. XVII, Sec. 3(2)] that "all proclamations, orders, decrees, instructions,
and acts promulgated, issued, or done by the incumbent President shall be
part of the law of the land and shall remain valid, legal, binding and effective
even after ... the ratification of this Constitution ..." To be sure, there is an
attempt in these cases to resuscitate the issue of the effectivity of the new
Constitution. All that, however, is behind us now. The question has been laid
to rest by our decision in Javellana vs. Executive Secretary (L-36142, 50
SCRA 30, March 31, 1973), and of course by the existing political realities
both in the conduct of national affairs and in our relations with other
countries.
On the effect of the transitory provision Justice Muoz Palma withholds her
assent to any sweeping statement that the same in effect validated, in the
constitutional sense, all "such proclamations, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President." All that she
concedes is that the transitory provision merely gives them "the imprimatur
of a law but not of a constitutional mandate," and as such therefore "are
subject to judicial review when proper under the Constitution.
Finally, the political-or-justiciable question controversy indeed, any inquiry
by this Court in the present cases into the constitutional sufficiency of the
factual bases for the proclamation of martial law has become moot and
purposeless as a consequence of the general referendum of July 27-28, 1973.
The question propounded to the voters was: "Under the (1973) Constitution,
the President, if he so desires, can continue in office beyond 1973. Do you
want President Marcos to continue beyond 1973 and finish the reforms he
initiated under Martial Law?" The overwhelming majority of those who cast
their ballots, including citizens between 15 and 18 years, voted affirmatively
on the proposal. The question was thereby removed from the area of
presidential power under the Constitution and transferred to the seat of
sovereignty itself. Whatever may be the nature of the exercise of that power
by the President in the beginning whether or not purely political and
therefore non-justiciable this Court is precluded from applying its judicial
yardstick to the act of the sovereign.
11

2. With respect to the petitioners who have been released from detention but
have not withdrawn their petitions because they are still subject to certain
restrictions, 5 the ruling of the Court is that the petitions should be dismissed.
The power to detain persons even without charges for acts related to the
situation which justifies the proclamation of martial law, such as the
existence of a state of rebellion, necessarily implies the power (subject, in the
opinion of the Justices who consider Lansang applicable, to the same test of
arbitrariness laid down therein), to impose upon the released detainees
conditions or restrictions which are germane to and necessary to carry out the
purposes of the proclamation. Justice Fernando, however, "is for easing the
restrictions on the right to travel of petitioner Rodrigo" and others similarly
situated and so to this extent dissents from the ruling of the majority; while
Justice Teehankee believes that those restrictions do not constitute
deprivation of physical liberty within the meaning of the constitutional
provision on the privilege of the writ of habeas corpus.
It need only be added that, to my mind, implicit in a state of martial law is
the suspension of the said privilege with respect to persons arrested or
detained for acts related to the basic objective of the proclamation, which is
to suppress invasion, insurrection, or rebellion, or to safeguard public safety
against imminent danger thereof. The preservation of society and national
survival take precedence. On this particular point, that is, that the
proclamation of martial law automatically suspends the privilege of the writ
as to the persons referred to, the Court is practically unanimous. Justice
Fernando, however, says that to him that is still an open question; and Justice
Muoz Palma qualifiedly dissents from the majority in her separate opinion,
but for the reasons she discusses therein votes for the dismissal of the
petitions.

IN VIEW OF ALL THE FOREGOING AND FOR THE REASONS

STATED BY THE MEMBERS OF THE COURT IN THEIR SEPARATE
OPINIONS, JUDGMENT IS HEREBY RENDERED DISMISSING ALL
THE PETITIONS, EXCEPT THOSE WHICH HAVE BEEN PREVIOUSLY
WITHDRAWN BY THE RESPECTIVE PETITIONERS WITH THE
APPROVAL OF THIS COURT, AS HEREINABOVE MENTIONED. NO
COSTS.
Makasiar, Esguerra, Fernandez, Muoz Palma and Aquino, JJ., concur.
Prefatory Note
(written on September 12, 1974)
My separate opinion below in the nine cases at bar was handed to Chief
Justice Querube C. Makalintal on Monday, September 9, 1974, for
promulgation (together with the individual opinions of the Chief Justice and
the other Justices) on September 12 (today) as agreed upon by the Court.
On September 11 the petitioner Jose W. Diokno was released from military
custody. The implications of this supervening event were lengthily discussed
by the Court in its deliberations in the afternoon. Eleven members thereafter
voted to dismiss Diokno's petition as being "moot and academic;" I cast the
lone dissenting vote. Although perhaps in the strictest technical sense that
accords with conventional legal wisdom, the petition has become "moot"
because Diokno has been freed from physical confinement, I am nonetheless
persuaded that the grave issues of law he has posed and the highly insulting
and derogatory imputations made by him against the Court and its members
constitute an inescapable residue of questions of transcendental dimension to
the entire nation and its destiny and to the future of the Court questions
that cannot and should not be allowed to remain unresolved and unanswered.
I have thus not found it needful nor even advisable to recast my separate
opinion or change a word of it.
12

I invite the reader to assess my 38-page separate opinion which immediately

follows, in the light of the foregoing context and factual setting.
FRED RUIZ CASTRO
Associate Justice.
Republic of the Philippines
SUPREME COURT
Manila

SEPARATE OPINION
(written before Sept. 9, 1974)
L-35539, L-35546, L-35538, L-35540, L-35567, L-35556,
L-35571, L-35573, and L-35547

Upon review by this Court, the trial court's decision sentencing de Guzman
to suffer the penalty of life imprisonment plus payment of P20,000 fine and
costs was affirmed in toto and the appeal was dismissed with costs against
accused-appellant.

EN BANC

G.R. No. L-117376 December 8, 1994

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
OSCAR DE GUZMAN, CHAIRMAN SEDFREY A. ORDOEZ,
DIRECTOR EMMANUEL C. NERI AND THE COMMISSION ON
HUMAN RIGHTS, petitioners,
vs.
DIRECTOR VICENTE VINARAO, BUREAU OF CORRECTIONS,
respondent.

Under the provisions of Section 20, Republic Act No. 6425 as last amended
by R.A. 7659, which became effective on December 31, 1993, and as
interpreted by this Court in the case of People v. Simon, 1 if the quantity of
the marijuana involved is less than 250 grams, the imposable penalty, in the
event that the conviction should be affirmed, shall be within the range of
prision correccional (from six (6) months and one (1) day to six (6) years).
Clearly, de Guzman is entitled to benefit from the reduction of penalty
introduced by the new law.
Petitioners allege that since de Guzman has been serving sentence since July
1984 or for more than ten (10) years now, his continued detention in the
National Penitentiary is a violation of his basic human rights and that,
therefore, he should be released from prison without further delay. In aid of
judicial administration, petitioners further recommend that all prisoners
similarly situated be likewise released from prison.

ROMERO, J.:
This is an original petition for habeas corpus filed directly before this Court
in behalf of Oscar de Guzman y Enriquez, who was tried and convicted by
the Regional Trial Court of San Jose City Branch 39 in G.R. No. 76742,
"People of the Philippines v. Oscar de Guzman y Enriquez," 188 SCRA 407,
for violation of the Dangerous Drugs Act of 1972, alleging in particular the
fact that de Guzman wilfully and unlawfully sold two (2) sticks of marijuana.

The writ of habeas corpus extends to all cases of illegal confinement or

detention by which any person is deprived of his liberty upon a verified
petition setting forth:
1. that the person in whose behalf the application is made is
imprisoned or restrained of his liberty;

13

2. the officer or name of the person by whom he is so

imprisoned or restrained;
3. the place where he is imprisoned or restrained of his
liberty; and
4. a copy of the commitment or cause of detention of such
person (Section 3, Rule 102, Revised Rules of Court).
It appearing that all the above requirements have been met and finding merit
in the petition, the same is hereby GRANTED. Let a writ of habeas corpus
issue immediately.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 97906 May 21, 1992

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and MAXIMO WONG, respondents.

The Director, New Bilibid Prisons, is commanded to forthwith execute the

writ for de Guzman's discharge from confinement unless he is being detained
for some other lawful cause, to make due return of the writ, and to submit a
complete inventory of all other prisoners therein similarly situated within
thirty days, to relieve them from further confinement. With costs de oficio.
SO ORDERED.
Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Bellosillo, Melo,
Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Feliciano, J., is on leave.
his name to Maximo Alcala, Jr. which was his name prior to his adoption by
Hoong Wong and Concepcion Ty Wong.
The facts are undisputed. Private respondent Maximo Wong is the legitimate
son of Maximo Alcala, Sr. and Segundina Y. Alcala. When he was but two
and a half years old and then known as Maximo Alcala, Jr., and his sister
Margaret Alcala, was then nine years old, they were, with the consent of their
natural parents 3 and by order of the court in Special Case No. 593 4 issued on
September 9, 1967, adopted by spouses Hoong Wong and Concepcion Ty
Wong, both naturalized Filipinos. Hoong Wong, now deceased, was an
insurance agent while Concepcion Ty Wong was a high school teacher. They
decided to adopt the children as they remained childless after fifteen years of
marriage. The couples showered their adopted children with parental love
and reared them as their own children.

Public Attorney's Office for private respondent.

REGALADO, J.:
Petitioner seeks to set aside the judgment of respondent Court of
Appeals 1 in affirmance of the decision of the court a quo 2 granting the
petition filed by herein private respondent Maximo Wong for the change of

Upon reaching the age of twenty-two, herein private respondent, by then

married and a junior Engineering student at Notre Dame University, Cotabato
City, filed a petition to change his name to Maximo Alcala, Jr. It was averred
that his use of the surname Wong embarrassed and isolated him from his
relatives and friends, as the same suggests a Chinese ancestry when in truth
and in fact he is a Muslim Filipino residing in a Muslim community, and he
wants to erase any implication whatsoever of alien nationality; that he is
14

being ridiculed for carrying a Chinese surname, thus hampering his business
and social life; and that his adoptive mother does not oppose his desire to
revert to his former surname.
As earlier stated, on July 2, 1986, the matter was resolved in favor of private
respondent, the trial court decreeing that, the jurisdictional requirements
having been fully complied with, petitioner's prayer to change his name from
Maximo Wong to Maximo Alcala, Jr. was granted. 5 On appeal to respondent
court, and over the opposition of petitioner Republic through the Solicitor
General, the decision of the court below was affirmed in full, hence, this
petition for review on certiorari.
The lone issue to be settled is whether or not the reasons given by private
respondent in his petition for change of name are valid, sufficient and proper
to warrant the granting of said petition.
The Solicitor General contends that private respondent's allegations of
ridicule and/or isolation from family and friends were unsubstantiated and
cannot justify the petition for change of name. He claims that for private
respondent to cast aside the name of his adoptive father is crass ingratitude to
the memory of the latter and to his adoptive mother who is still alive, despite
her consent to the petition for change of name. Further, the Solicitor General
posits that the reversion of Maximo Wong to his old name violates Articles
341 and 365 of the Civil Code, which requires an adopted child to use the
surname of the adopter, and would identify him with his parents by nature,
thus giving the impression that he has severed his relationship with his
adoptive parents. 6
In refutation, private respondent argues that he did as the law required, that
is, upon adoption he used the surname of the adopter. However, being
already emancipated, he can now decide what is best for and by himself. It is
at this time that he realized that the Chinese name he carries causes him
undue ridicule and embarrassment and affects his business and social life. In
fact, his adoptive mother, being aware of his predicament, gave her consent
to the petition for change of name, albeit making it clear that the same shall

in no way affect the legal adoption, and even underwent the rigors of trial to
substantiate her sworn statement. If his adoptive mother does not take
offense nor feel any resentment, abhorrence or insecurity about his desire to
change his name, private respondent avers that there can be no possible
prejudice on her, much less the State. 7
We feel that we should preface our review of this case with a clear
comprehension of the legal significance of a person's name. For all practical
and legal purposes, a man's name is the designation by which he is known
and called in the community in which be lives and is best known. It is
defined as the word or combination of words by which a person is
distinguished from other individuals and, also, as the label or appellation
which he bears for the convenience of the world at large addressing him, of
in speaking of or dealing with him. 8 Names are used merely as one method
of indicating the identity of persons; they are descriptive of persons for
identification, since, the identity is the essential thing and it has frequently
been held that, when identity is certain, a variance in, or misspelling of, the
name is immaterial. 9
The names of individuals usually have two parts: the given name or proper
name, and the surname or family name. The given or proper name is that
which is given to the individual at birth or baptism, to distinguish him from
other individuals. The name or family name is that which identifies the
family to which he belongs and is continued from parent to child. The given
name may be freely selected by the parents for the child; but the surname to
which the child is entitled is fixed by law. 10
A name is said to have the following characteristics: (1) It is absolute,
intended to protect the individual from being confused with others. (2) It is
obligatory in certain respects, for nobody can be without a name. (3) It is
fixed, unchangeable, or immutable, at least at the start, and may be changed
only for good cause and by judicial proceedings. (4) It is outside the
commerce of man, and, therefore, inalienable and intransmissible by act inter
vivos or mortis causa. (5) It is imprescriptible. 11
15

Title XIII, Book I of the Civil Code, in Articles 364 to 380, provides the
substantive rules which regulate the use of surnames. Considering the subject
and personalities involved in this present review, particular attention must be
called to Article 365 which mandates that "(a)n adopted child shall bear the
surname of the adopter," in correlation with Article 341 on the effects of
adoption, among which is to"(e)ntitle the adopted person to use the adopter's
surname." This same entitlement of an adopted child is maintained in Article
39(3), Title II of Presidential Decree No. 603, otherwise known as the Child
and Youth Welfare Code. More recently, Executive Order No. 209, as
amended by Executive Order No. 227, or the Family Code, echoes the same
statutory right of an adopted child to use the surname of the adopter. 12
Clearly, from the very wordings of the law, it may be inferred that this use of
the surname of the adopter by the adopted child is both an obligation and a
right.
Under Article 376 by the Civil Code, "(n)o person can change his name or
surname without judicial authority." The application for change of name
thereunder involves a special proceeding governed by and conducted under
the strictures of Rule 103 of the Rules of Court and one which involves
substantial changes, with the declared objective of such judicial proceedings
being the prevention of fraud. The purpose of the statutory procedure
authorizing a change of personal name is simply to have, wherever possible,
a record of the change, and in keeping with the object of the statute, court to
which application is made should normally make its decree recording such
change of name. 13

To digress a little for purposes of clarification, the change of name

contemplated under Article 376 and reglementarily implemented by Rule 103
must not be confused with and cannot be effected through the summary
proceeding proposed in Article 412 of the some Code, as procedurally
regulated by Rule 108 of the Rules, which refers only to correction of clerical
errors, such as those which are visible to the eye or obvious to the
understanding, or an error made by a clerk or transcriber, or a mistake in
copying or writing, or some harmless or innocuous change, 17 and not those
which will involve substantial changes. 18
Turning now to the case at bar, we are guided by the jurisprudential dictum
that the State has an interest in the names borne by individuals and entities
for the purpose of identification, and a change of name is not a matter of
right but of sound judicial discretion, to be exercised in the light of reasons
adduced and the consequences that will likely follow; 19 it is a privilege
which may be granted only upon a showing of a proper or reasonable cause
or compelling reason therefor. 20
We find unacceptable the assertion of the Solicitor General that private
respondent's allegation of ridicule and embarrassment due to the use of his
present surname is unsubstantiated.
The testimony of private respondent in the lower court bears out the
existence of valid cause in his bid for change of name:
ATTY. DUMAMBA:

A change of name is a special proceeding to establish the status of a person

involving his relation with others, that is, his legal position in, or with regard
to, the rest of the community. It is a proceeding in rem 14 and, as such, strict
compliance with all jurisdictional requirements, particularly on publication,
is essential in order to vest the court with jurisdiction thereover. 15 For this
purpose, the only name that may be changed is the true or official name
recorded in the civil register. 16

Q Now, after adoption, when you went to

school, what did you use as your surname?
A "Wong," sir.
Q Now, after you adopted the surname
"Wong?" in your studies, what did you
observe?
16

A I observed that "Wong" as a surname

embarrassed me to my friends and when I go
with Chinese friends I cannot talk Chinese. I
am living in Campo Muslim, a Muslim
community but no one can believe that I am
Muslim. I have a little business of Furniture
but I have little (sic) customer because no
one believes me that I am Muslim.

xxx xxx xxx

COURT:
Q What is your purpose in changing your
family name from Maximo Wong to
Maximo Alcala, Jr.?
A I feel embarrassed to my friends and also
to my relatives and as I said I have a little
business of furniture and only a few
customers buying for the fact that they don't
believe I am Muslim.

Q You want to inform this Honorable Court

that this family name you are using which is
"Wong" embarrassed you from (sic) your
friends and relatives and also cause(d)
damage to your business?
A Yes sir.
xxx xxx xxx
ATTY. DUMAMBA:
Q Now, considering that according to you,
you are embarrassed because of the family
name you are using, your friends shy away
from you and it is a handicap in your
business, what is your desire for the Court to
do in order to help you?

Cross.
ATTY. SERO:
With the permission of the Honorable Court.
Q Your father's name is Maximo Alcala, Sr.,
is he still alive?
A Yes, sir.
Q And what does your father say to this
proposed changed (sic) of your name, your
family name to your real family name given
to you?

A Change my family name.

A Yes, sir.
Q From "Wong" to what do you want your
surname changed?

Q They have no objection to it?

A "Alcala, Jr.", sir.

A No, sir.

17

Q Stated before this Honorable Court, the

purpose why you wanted to change your
name from "Wong" to "Alcala" is so that to
avoid embarrassment because you are a
Muslim and your Muslim relatives think that
you are Chinese.
A Yes, sir.
Q Not for the purpose to hide anything or
what not?
A No, sir. 21
The foregoing testimony of private respondent is materially corroborated by
the testimony of private respondent's adoptive mother:
Q Now, what did you observe to (sic) your
son Maximo Wong after you and your
husband adopted him?
A When I adopted him and he used the
surname "Wong" I observed that some of his
relatives, cousins and friends seem to shy
away from him and despise him in school
that is why I agreed to change his name. 22
We uphold these observations in the decision of respondent appellate court:
The purpose of the law an allowing of change of name as
contemplated by the provisions of Rule 103 of the Rules of
Court is to give a person an opportunity to improve his
personality and to provide his best interest. (Calderon vs.
Republic, 19 SCRA 721). In granting or denying the petition
for change of name, the question of proper and reasonable

cause is left to the discretion of the court. The evidence

presented need only be satisfactory to the court and not all
the best evidence available is required. (Uy vs. Republic, L22712, Nov. 25, 1965; Nacionales vs. Republic,
L-18067, April 29, 1966; both cases cited in 1 SCRA 843).
In the present case, We believe that the court a quo had
exercised its discretion judiciously when it granted the
petition.
From the testimony of petitioner-appellee and of his adopter
mother Concepcion Ty-Wong, We discern that said appellee
was prompted to file the petition for change of name because
of the embarrassment and ridicule his family name "Wong"
brings in his dealings with his relatives and friends, he being
a Muslim Filipino and living in a Muslim community.
Another cause is his desire to improve his social and
business life. It has been held that in the absence of prejudice
to the state or any individual, a sincere desire to adopt a
Filipino name to erase signs of a former alien nationality
which only hamper(s) social and business life, is a proper
and reasonable cause for change of name (Uy vs. Republic,
L-22712, Nov. 25, 1965, Que Liong Sian vs. Republic, L23167, Aug. 17, 1967, 20 SCRA 1074). Justice dictates that a
person should be allowed to improve his social standing as
long as in doing so, he does not cause prejudice or injury to
the interest of the State or other persons (Calderon vs.
Republic, supra). Nothing whatsoever is shown in the record
of this case that such prejudice or injury to the interest of the
state or of other persons would result in the change of
petitioner's name. 23
It bears stressing at this point that to justify a request for change of name,
petitioner must show not only some proper or compelling reason therefor but
also that he will be prejudiced by the use of his true and official name. 24
Among the grounds for change of name which have been held valid are: (a)
18

When the name is ridiculous, dishonorable or extremely difficult to write or

pronounce; (b) When the change results as a legal consequence, as in
legitimation; (c) When the change will avoid confusion; 25 (d) Having
continuously used and been known since childhood by a Filipino name,
unaware of her alien parentage; 26 (e) A sincere desire to adopt a Filipino
name to erase signs of former alienage, all in good faith and without
prejudicing anybody; 27 and (f) 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 would prejudice public interest. 28
In granting or denying petitions for change of name, the question of proper
and reasonable cause is left to the sound discretion of the court. The evidence
presented need only be satisfactory to the court and not all the best evidence
available. 29 Summarizing, in special proceedings for change of name, what is
involved is not a mere matter of allowance or disallowance of the request,
but a judicious evaluation of the sufficiency and propriety of the
justifications advanced in support thereof, mindful of the consequent results
in the event of its grant and with the sole prerogative for making such
determination being lodged in the courts.

It is the usual effect of a decree of adoption to transfer from the natural

parents to the adoptive parents the custody of the child's person, the duty of
obedience owing by the child, and all other legal consequences and incidents
of the natural relation, in the same manner as if the child had been born of
such adoptive parents in lawful wedlock, subject, however, to such
limitations and restrictions as may be by statute imposed. 33 More specifically
under the present state of our law, the Family Code, superseding the pertinent
provisions of the Civil Code and of the Child and Youth Welfare Code on the
matter, 34 relevantly provides in this wise with regard to the issue involved in
this case:
Art. 189. Adoption shall have the following effects:
(1) For civil purposes, the adopted shall be deemed to be the
legitimate child of the adopters and both shall acquire the
reciprocal rights and obligations arising from the relationship
of parent and child, including the right of the adopted to use
the surname of the adopters; (Emphasis supplied.)
xxx xxx xxx

While it is true that the statutory fiat under Article 365 of the Civil Code is to
the effect that an adopted child shall bear the surname of the adopter, it must
nevertheless be borne in mind that the change of the surname of the adopted
child is more an incident rather than the object of adoption proceedings. 30
The act of adoption fixes a status, viz., that of parent and child. More
technically, it is an act by which relations of paternity and affiliation are
recognized as legally existing between persons not so related by nature. It has
been defined as the taking into one's family of the child of another as son or
daughter and heir and conferring on it a title to the rights and privileges of
such. The purpose of an adoption proceeding is to effect this new status of
relationship between the child and its adoptive parents, the change of name
which frequently accompanies adoption being more an incident than the
object of the proceeding. 31 The welfare of the child is the primary
consideration in the determination of an application for adoption. On this
point, there is unanimous agreement. 32

The Solicitor General maintains the position that to sustain the change of
name would run counter to the behest of Article 365 of the Civil Code and
the ruling in Manuel vs. Republic 35 that "one should not be allowed to use a
surname which otherwise he is not permitted to employ under the law," and
would set a bad example to other persons who might also seek a change of
their surnames on lame excuses. 36
While we appreciate the Solicitor General's apprehensions and concern, we
find the same to be unfounded. We do not believe that by reverting to his old
name, private respondent would then be using a name which he is prohibited
by law from using. True, the law prescribes the surname that a person may
employ; but the law does not go so far as to unqualifiedly prohibit the use of
any other surname, and only subjects such recourse to the obtention of the
requisite judicial sanction. What the law does not prohibit, it permits.
19

If we were to follow the argument of the Solicitor General to its conclusion,

then there will never be any possibility or occasion for any person, regardless
of status, to change his name, in view of the supposed subsequent violation
of the legal imperative on the use of surnames in the event that the petition is
granted. Rule 103 of the Rules of Court would then be rendered inutile. This
could hardly have been the intendment of the law.
A petition for change of name is a remedy allowed under our law only by
way of exception to the mandatory provisions of the Civil Code on the use of
surnames. The law fixes the surname that may be used by a person, at least
inceptively, and it may be changed only upon judicial permission granted in
the exercise of sound discretion. Section 1 of Rule 103, in specifying the
parties who may avail of said remedy, uses the generic term "persons" to
signify all natural persons regardless of status. If a legitimate person may,
under certain judicially accepted exceptional circumstances, petition the
court for a change of name, we do not see any legal basis or logic in
discriminating against the availment of such a remedy by an adopted child. In
other words, Article 365 is not an exception, much less can it bar resort, to
Rule 103.
We are of the view that the circumstances herein obtaining are within the
ambit of the established exceptions and find merit in private respondent's
submission:
Rule 103 of the Rules of Court has its primordial purpose
which (State) is to give a person in opportunity to improve
his personality and provide his best interest (Calderon vs.
Republic, 19 SCRA 721). In the instant case, the court a quo
found the petition of Maximo Wong for change of name
justifiable after due hearing, thus its factual findings and
appreciation of testimonies count heavily and need not be
disturbed unless for strong and cogent reasons because the
trial court is in a better position to examine real evidence as
well as to observe the demeanor of the witnesses while
testifying in the case (Baliwag Transit, Inc. vs. CA, 147

SCRA 82). Moreover, the trial court could take judicial

notice of other existing factors in the community where
herein respondent lives which it considers material in its
judicious determination of the case. . . .
Additionally, herein respondent is already of age and as such
he can decide what is best for him. His experience with
regards (sic) his social and business dealings is personal and
it is only him (sic) who can attest to the same. Finding his
predicament's proper remedy is solely through legal process,
herein respondent accordingly filed a petition pursuant to
Rule 103 of the Rules of Court which was granted by the
Court a quo. 37
Besides, we have faith in the circumspection of our lower courts and that, in
the exercise of their discretion, said courts shall consider petitions for change
of name only on cogent and meritorious grounds as would justify the
granting of such applications. We do not expect our trial courts to cater or
give in to the whim or caprice of an applicant, aside from the fact that there is
always the safeguard and corrective interdiction of appellate review.
It is not fair to construe the desired reversion of private respondent to the use
of the name of his parents by nature as cross ingratitude. To go by the
Solicitor General's suggestion that private respondent should have his
adoption revoked if he wants to use the surname of his natural father would
be to exact too clear a toll for making use of an appropriate and valid remedy
available under the law.
Herein private respondent, before he filed the petition for change of name,
asked for his adoptive mother's permission to do so:
Q Now, in filing this petition for change of
surname, you had talked with your adopted
mother?
20

A Yes, sir.
Q Did you ask permission from her whether
she wants you to change the surname?
A Yes, sir. 38
True enough, the above testimony of private respondent was confirmed by
his adoptive mother in this manner:
Q How are you related to Maximo Wong?
A My adopted son.
Q He is your adopted son, did your son talk
to you when he filed this petition for change
of his surname?
A Yes, he even tried to ask me and I said,
alright if you want to change.
xxx xxx xxx
Q Now, when you agreed to the filing of this
petition for change of name, did you reduce
your consent in writing?
A Yes, sir, I agreed also so that his business
will prosper because
he is already Alcila and not Wong because
Wong they said is Chinese. 39
As proof of her assent to the filing of said petition (her husband having
already passed away), Concepcion Ty Vda. de Wong executed an affidavit in
Cotabato City on May 27, 1985, with these textual declarations:

That I am the same and identical person, who is the

surviving adapted (sic) parent of Maximo Wong.
That I personally discovered it myself from the time my
adapted (sic) son Maximo used the surname of my late
husband Wong, his relatives and childhood friends shy away
from him because he is branded as a son of a chinese which
is different from them whose parents are muslim Filipinos;
That I pity my son who is often rediculed (sic) by his friends
and relatives because of his family name Wong, hence, in
order not to humper (sic) his social and business life in the
future, I am voluntarily and of my own free will without
being forced, coerced, or intimidated give (sic) my consent
to his desire to change his desire to change his surname
without affecting however the legal adoption granted by the
Court on September 9, 1967, making him as one of my legal
and compulsory heir (sic).
That I am executing this affidavit to attest to the truth of all
the above mentioned facts and for all legal intent (sic) and
purposes. 40
There could be no other plausible reason for private respondent to first secure
has adoptive mother's consent before resorting to the questioned legal
recourse other than the parental respect and reverence which is owed by and
to be expected of a dutiful child. If private respondent was such an ingrate, as
the Solicitor General would have us believe, he would not have bothered to
seek his adoptive mother's counsel. In the same breath, had his adoptive
mother regarded him as an ungrateful adoptee, she would not have executed
the affidavit above quoted, much less testify in his behalf at the hearing of his
petition.
Moreover, worthy of note is the fact that private respondent's adoptive
mother emphasized that she executed the above affidavit "without affecting
21

the legal adoption granted by the Court on September 9, 1967, making him as
one of my legal and compulsory heir(s)." This is incontrovertible proof that
she never entertained any misgivings or reservations with respect to her
consent to his petition. This likewise dispels any possible confusion as to
private respondent's legal status or adoptive paternity and his successional
rights. Concordantly, we have heretofore held that a change of name does not
define or effect a change in one's existing family relations or in the rights and
duties flowing therefrom. It does not alter one's legal capacity, civil status or
citizenship; what is altered is only the name. 41

WHEREFORE, the petition is DENIED and the decision of respondent Court

of Appeals is hereby AFFIRMED in toto.

THIRD DIVISION

The factual antecedents -

[G.R. No. 140823. October 3, 2000]

On 02 August 1999, at about 11:30 a.m., in a shootout at a sitio in Pagudpud,

Ilocos Norte, Reynolan T. Sales, incumbent town mayor of Pagudpud, fatally
shot former Mayor Rafael Benemerito. After the incident, Sales surrendered
his handgun, placed himself under the custody of the Municipal Police and
thereupon asked to be brought to the Provincial PNP headquarters in Laoag
City.

JUDGE MELVYN U. CALVAN, in his capacity as Presiding Judge,

Municipal Trial Court, Branch 127, THE PROVINCIAL WARDEN of the
Provincial Jail of Ilocos Norte, petitioners, vs. THE HONORABLE COURT
OF APPEALS and MAYOR REYNOLAN T. SALES, respondents.

SO ORDERED.
Narvasa, C.J., Paras, Padilla and Nocon, JJ., concur.

RESOLUTION
VITUG, J.:
For resolution is the motion for reconsideration filed by the Office of the
Solicitor General (for petitioners Judge Calvan, the Provincial Warden of
Ilocos Norte and the People of the Philippines) seeking the nullification of
the Court's resolution, dated 05 July 2000, that has denied the petition for
review of the decision, dated 18 November 1999, of the Court of Appeals in
CA-G.R. SP No. 54416, on a Petition for Habeas Corpus. Petitionersmovants claim that the petition which respondent Sales filed is a petition for
habeas corpus which should then be confined to an inquiry on the validity of
a person's detention at the time of the filing of the petition, and that the Court
of Appeals has thus erred in ruling on the legality of the order and warrant of
arrest which can only be a proper subject of a petition for certiorari, not a
petition for habeas corpus.
22

The next day, 03 August, Police Chief Inspector Crispin Aguno and Thelma
Benemerito, wife of the victim, lodged a criminal complaint for murder
against Mayor Reynolan Sales at the Municipal Circuit Trial Court (MCTC)
of Adams-Baagui-Dumalueg-Pagudpud, Branch 127, there docketed
Criminal Case No. 9448-P, entitled "People of the Philippines vs. Mayor
Reynolan T. Sales." Judge Melvyn U. Calvan, the Presiding Judge forthwith
conducted a "preliminary examination" of the witnesses and issued the
assailed order and warrant of arrest against the accused "with NO BAIL."
Mayor Sales was transferred, on 04 August 1999, from the Provincial PNP
headquarters to the Provincial Jail where he had since been detained under
the custody of the Provincial Warden of the Ilocos Norte Provincial Jail. On
05 August 1999, Judge Melvyn Calvan, after conducting a "preliminary
examination in accordance with Section 6(b) of Rule 112 of the 1989 Rules
in Criminal Procedure," issued a two-page resolution forwarding the records
of the case to the Office of the Provincial Prosecutor "for appropriate action."
On 10 August 1999, Sales was notified by the Provincial Prosecutor to
submit his counter-affidavit and defense evidence.
Contending that his right to due process was violated by the cavalier and
perfunctory manner by which Judge Calvan suddenly terminated and
concluded the preliminary investigation, without even allowing him to
submit counter affidavit and present his witnesses, Mayor Sales filed a
Petition For Habeas Corpus and Certiorari (CA-G.R. SP No. 54416) before
the Court of Appeals. He questioned his detention on the thesis that the Order
and Warrant of Arrest were improvidently and illegally issued by Judge
Calvan, the latter being a relative of complainant Thelma Benemerito within
the third civil degree of affinity and, therefore, disqualified from conducting
the preliminary investigation.
On 30 August 1999, the Court of Appeals dismissed the petition. On 19
September 1999 and while his motion for reconsideration was still pending,
respondent Mayor Sales withdrew the petition for certiorari, leaving the
petition for habeas corpus to be the only remaining petition. The Office of
the Solicitor General was required to comment, and a hearing was conducted
by the Court of Appeals on the habeas corpus on 05 October 1999. Oral
argument preceded the filing of the respective memoranda of the parties.
On 18 November 1999, the appellate court granted the petition for habeas
corpus and ordered the release of private respondent Mayor Sales, viz:

"WHEREFORE, the petition is GRANTED. The Court hereby orders the

release from detention of petitioner Reynolan T. Sales, subject to the
outcome of the proper preliminary investigation."i[1]
A petition for review was filed with this Court by the Office of the Solicitor
General seeking a review of the decision of the Court of Appeals. The Court
denied the petition in its resolution of 05 July 2000. In its instant motion for
reconsideration the Office of the Solicitor General would insist that the
appellate court resolved the issues beyond the basic precepts of procedure on
the theory that the determination on the legality of the order and warrant of
arrest could not be resolved in a petition for habeas corpus, the issue being
appropriate only for consideration in a petition for certiorari.
The Court of Appeals, in granting the petition for habeas corpus and in
ordering the release of Mayor Sales, ratiocinated that "Section 1, Rule 137 of the Rules of Court disqualifies a judge from sitting in
a case in which he is related to either party within the sixth degree of
consanguinity or affinity. This disqualification is mandatory, unlike an
inhibition which is discretionary. It extends to all proceedings, not just to trial
as erroneously contended by respondent Judge. Even Canon 3.12 of the Code
of Judicial Conduct mandates that a judge shall take no part in a proceeding
where the judge's impartiality might reasonably be questioned, as when he is
`related by consanguinity or affinity to a party litigant within the sixth
degree.' Due process likewise requires a hearing before an impartial and
disinterested tribunal, so that no judge shall preside in a case in which he is
not wholly free, disinterested, impartial and independent. (Gutierrez vs.
Santos, 2 SCRA 249, 254 [1961].)
"In Geotina vs. Gonzales, (41 SCRA 66 [1971]) the judge who was
admittedly related within the sixth civil degree of affinity to the private
complainant ordered the arrest of the petitioner. The Supreme Court held:
"`We therefore hold that the respondent judge is without authority to preside
over the criminal case in question. Section 1, in commanding him to
withdraw from the case herein involved, necessarily divests him of all
authority to act in any judicial capacity in connection therewith. We further
hold that where the disqualifying fact is indubitable and the parties to the
case make no waiver of such disqualification as in the case at bar, sec. 1
23

forthwith completely strips the judge of authority to proceed. All his acts in
the premises are without authority of law.' (Emphasis supplied.)
"The High Court also stated that where the judge decides in favor of his own
competency, proceeds to try a case and renders a verdict from which there is
no appeal nor plain, speedy, adequate remedy in the ordinary course of law,
resort to the extraordinary remedies, of which habeas corpus can be cited as
one, constitutes the only means available for review by a superior court.
"In the case at bench, the order and warrant of arrest issued by
respondent Judge by virtue of which the petitioner is detained offers no
speedy, adequate remedy or appeal in the ordinary course of law. Habeas
corpus is the only remedy to release him from the effects of the illegal order
or one issued without any legal authority, to use the language of Geotina vs.
Gonzales."ii[2]
The Solicitor General now contends, however, that the writ of habeas corpus
is simply a writ of inquiry, tasking the person who keeps a detainee in
custody to explain or justify the detention, conformably with Sections 1, 3
and 6, Rule 102, of the Rules of Court.
"SECTION 1. To what habeas corpus extends. - Except as otherwise
expressly provided by law, the writ of habeas corpus shall extend to all cases
of illegal confinement or detention by which any person is deprived of his
liberty, or by which the rightful custody of any person is withheld from the
person entitled thereto.
"x x x x x x

xxx

"SEC. 3. Requisites of application therefor. - 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.
"x x x x x x

xxx

"SEC. 6. To whom writ directed, and what to require. - In case of

imprisonment or restraint by an officer, the writ shall be directed to him, and
shall command him to have the body of the person restrained of his liberty
before the court or judge designated in the writ at the time and place therein
specified. In case of imprisonment or restraint by a person not an officer, the
writ shall be directed to an officer, and shall command him to take and have
the body of the person restrained of his liberty before the court or judge
designated in the writ at the time and place therein specified, and to summon
the person by whom he is restrained then and there to appear before said
court or judge to show the cause of the imprisonment or restraint."
The writ, the Solicitor General submits, should then be addressed, not to the
judge or person who issued the warrant of arrest, but to the officer or anyone
who actually detains the person in whose behalf the application is made.
Since the petition for habeas corpus concedes that Mayor Sales is in the
custody of the Provincial Warden of Laoag City, the latter, not petitioner
Judge, should be the proper party respondent.
The proceedings before the Court of Appeals being confined to the habeas
corpus case, the petition should ordinarily be addressed to the person under
whom Mayor Sales is in detention or in alleged illegal custodyiii[3] who
would thereby be in a position to produce at the hearing the body of the
person in whose behalf the petition is made,iv[4] consistently with the import
of Section 6, Rule 102, of the Rules. Judge Calvan, it might here be pointed
out, however, has constructive custody over respondent for having issued the
order and warrant for his arrest.
24

The petition filed before the Court of Appeals was originally one for habeas
corpus and certiorari. The writ of certiorari was intended to assail the Order
and Warrant of Arrest issued by Judge Melvyn Calvan while the writ of
habeas corpus was sought to relieve Mayor Sales from detention predicating
the application on the alleged illegal Order and Warrant of Arrest issued by
Judge Calvan by reason of his disqualification. Indeed, a writ of habeas
corpus could be so employed as a remedy ancillary to a proceeding in
certiorari for purposes of review.v[5] Later, however, respondent Mayor
withdrew the petition for certiorari but not the petition for habeas corpus
leaving the latter to sail alone. The withdrawal must not be deemed to affect
adversely the jurisdiction of the appellate court, already acquired, to resolve
all the issues theretofore brought before it. Procedural precepts, it must again
be stressed, are aids, not obstacles, in the achievement of substantial justice.
Judge Calvan concededly is related to the complainant, Thelma Benemerito,
within the third civil degree of affinity (his wife Susan Benemerito-Calvan
being the niece of the deceased).
Rule 137, Section 1 provides:
"SECTION 1. Disqualification of judges. - No judge or judicial officer shall
sit in any case in which he, or his wife or child, is pecuniarily interested as
heir, legatee, creditor or otherwise, or in which he is related to either party
within the sixth degree of consanguinity or affinity, or to counsel within the
fourth degree, computed according to the rules of the civil law, or in which
he has been executor, administrator, guardian, trustee or counsel, or in which
he has presided in any inferior court when his ruling or decision is the subject
of review, without the written consent of all parties in interest, signed by
them and entered upon the record.
"A judge may, in the exercise of his sound discretion, disqualify himself from
sitting in a case, for just or valid reasons other than those mentioned above."
The proscription against the judge from proceeding with the case is
predicated on the principle that no judge should preside in a case in which he
may not be wholly free, disinterested, impartial and independent. vi[6] In
Geotina vs. Gonzales,vii[7] this Court has said that where the disqualifying
fact is indubitable and the parties to the case make no waiver of such
disqualification, the Rules forthwith strips the judge of any authority to
proceed.

The inquiry on a writ of habeas corpus is addressed, not to errors committed

by a court within its jurisdiction, but to the question of whether the
proceeding or judgment under which the person has been restrained is a
complete nullity. The probe may thus proceed to check on the power and
authority, itself an equivalent test of jurisdiction, of the court or the judge to
render the order that so serves as the basis of imprisonment or detention.
Keeping in mind the limitation that in habeas corpus the concern is not
merely whether an error has been committed in ordering or holding the
petitioner in custody, but whether such error is sufficient to render void the
judgment, order, or process, an inquiry into the validity of the proceedings or
processviii[8]can be crucial in safeguarding the constitutional right of a
potential accused against an obvious and clear misjudgment. The intrinsic
right of the State to prosecute and detain perceived transgressors of the law
must be balanced with its duty to protect the innate value of individual
liberty.
Quite evidently, the circumspection and objectivity required of the judge
could not be assured in the case at bar. Stringent standard should be applied
in order to avoid hasty and improvident issuance of a warrant for the arrest of
an accused. The deprivation of liberty, regardless of its duration, is too
invaluable a price even just to stake for any wrongful prosecution and
unwarranted detention.
In Allado vs. Diokno,ix[9] the Court has cautioned:
"Clearly, probable cause may not be established simply by showing that a
trial judge subjectively believes that he has good grounds for his action.
Good faith is not enough. If subjective good faith alone were the test, the
constitutional protection would be demeaned and the people would be
`secure in their persons, houses, papers and effects' only in the fallible
discretion of the judge. (Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.
2d.142 [1964].) On the contrary, the probable cause test is an objective one,
for in order that there be probable cause the facts and circumstances must be
such as would warrant a belief by a reasonably discreet and prudent man that
the accused is guilty of the crime which has just been committed. (Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d. 889 [1968].)x[10]
In this regard, the Court of Appeals has observed that -

25

"The preliminary examination conducted by respondent Judge does not

accord with the prevailing rules. He did it under the old rules, where the
preliminary investigation by a municipal judge had two stages: (1) the
preliminary examination stage during which the investigating judge
determines whether there is reasonable ground to believe that an offense has
been committed and the accused is probably guilty thereof, so that a warrant
of arrest may be issued and the accused held for trial; and (2) the preliminary
investigation proper where the complaint or information is read to the
accused after his arrest and he is informed of the substance of the evidence
adduced against him, after which he is allowed to present evidence in his
favor if he so desires. Presidential Decree 911 (further amending Sec. 1, RA
5180, as amended by P.D. 77) upon which the present rule is based, removed
the preliminary examination stage and integrated it into the preliminary
investigation proper. Now, the proceedings consist of only one stage.
(Sangguniang Bayan vs. Albano, 260 SCRA 566 [1996].)
"Respondent Judge did not conduct the requisite investigation prior to
issuance of the arrest warrant. The Rules require an examination in writing
under oath in the form of searching questions and answers. (Roberts, Jr. vs.
CA, supra; Sec. 6 (b), Rule 112.) The statements of witnesses were not sworn
before him but before the Provincial Prosecutor. The purported transcript of
the stenographic notes do not bear the signature of the stenographer.
"Moreover, he did not complete the preliminary investigation. He
claimed to have examined only the witnesses for the complainant. He
issued a Resolution and forwarded the records to the Provincial
Prosecutor without giving the accused (petitioner) an opportunity to
submit counter-affidavits and supporting documents. (Sec. 3 (b), Rule
112.)

reinvestigation, such normal remedy would not be adequate to free petitioner

from the warrant of arrest which stemmed from that irregular investigation.
The Provincial Prosecutor has no power to recall the warrant of arrest." xi[11]
Habeas corpus, is a high prerogative writ,xii[12] which furnishes an
extraordinary remedy and may not thus be invoked under normal
circumstances but, as the Court of Appeals has so aptly explained, the illegal
order and warrant of arrest issued by petitioner Judge subsists and private
respondent is offered no speedy, adequate remedy or appeal in the ordinary
course of law. The writ of habeas corpus, although not designed to interrupt
the orderly administration of justice, can be invoked, in fine, by the
attendance of a special circumstance that requires immediate action. Such a
special circumstance is here present considering that respondent cannot resort
to the remedy of a motion to quash, the case no longer being with petitioner
judge, and neither could he ask for a reinvestigation because the preliminary
investigation for purposes of filing the information has already been taken
over by the Provincial Prosecutor. The latter, upon the other hand, does not
have the authority to lift the warrant of arrest issued by the disqualified
judge. Meantime, respondent is being held and detained under an illegal
order and warrant of arrest which has no legal standing.
WHEREFORE, the motion for reconsideration is DENIED. This denial is
final.
SO ORDERED.
Melo, (Chairman), Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.

"While it is true that the usual remedy to an irregular preliminary

investigation is to ask for a new preliminary investigation or a

26

ii

iii

iv

vi

vii

viii

ix

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-21180

March 31, 1967

IN THE MATTER OF THE CHANGE OF NAME OF ANTONINA B. OSHITA.

ANTONINA B. OSHITA, petitioner-appellee,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellant.
Office of the Solicitor General for oppositor-appellant.
L. C. Delante for petitioner-appellee.
ZALDIVAR, J.:
This is an appeal by the Solicitor General from the decision of the Court of First Instance of Davao granting the
petition of appellee, Antonina B. Oshita, for a change of name.

On February 15, 1962, Antonina B. Oshita filed with the Court of First Instance of Davao a petition to have her
name changed from "Antonina B. Oshita" to "Antonina Bartolome". The petition was signed by the petitioner
herself and was "subscribed and sworn to" by her before the Deputy Clerk of Court. The requirements for the
publication of the hearing of the petition were duly complied with. Asst. City Attorney Roque M. Barnes, acting
in behalf of the Solicitor General, filed a motion to dismiss the petition upon the grounds (1) of lack of
jurisdiction, in that although the petition was subscribed and sworn to by petitioner, it was not verified in
accordance with the provisions of Section 6, Rule 15 of the Rules of Court; and (2) that the petition does not
state a cause of action. The petitioner-appellee filed an opposition to the motion to dismiss. The lower court
denied the motion to dismiss and set the case for hearing.
As found by the lower court, the evidence has established that appellee Antonina B. Oshita is the legitimate
daughter of Kishimatsu Oshita, a Japanese citizen, now deceased, and Buena Bartolome, a Filipino; that she was
born in the City of Davao on May 9, 1940 and has since then, up to the time of the bearing, resided in said city;
that upon reaching the age of majority, appellee elected Philippine citizenship and took her oath of allegiance;
that being already a Filipino citizen she desired to have her family name changed from "Oshita" to "Bartolome",
the latter being the family name of her mother, and because she felt embarrassed when introduced as one bearing
a Japanese surname; that her older brother and sister, who had earlier elected Philippine citizenship, have been
using the surname "Bartolome"; and that she has no criminal record nor a pending tax liability.
The Assistant City Attorney of Davao City did not present any evidence in support of his opposition to the
petition, but simply reiterated his motion to dismiss. On November 12, 1962, the trial court rendered a decision
granting the petition. Hence this appeal by the Solicitor General.
In his appeal, the Solicitor General insists (1) that the lower court had no jurisdiction to take cognizance of the
case because the petition was not verified as required by Section 2 of Rule 103 of the Rules of Court, and (2) that
no sufficient reason had been shown to justify the change of the surname of the appellee.
This appeal has no merit. It is admitted that the petition is not verified in the manner as prescribed in Section 6 of
Rule 15 of the old Rules of Court (now Section 6 of Rule 7 of the new Rules of Court), because what appears is
a simple jurat by the Deputy Clerk of Court that the petitioner had subscribed and sworn to, the petition, before
him. While it is true that under Section 2, Rule 103, it is required that the petition for change of name be verified,
nevertheless, no provision exists in the rules which declares that such a requirement regarding verification is
jurisdictional. The requirement regarding verification of a pleading is simply intended to secure an assurance that
what are alleged in the pleading are true and correct and not the product of the imagination or a matter of
speculation, and that the pleading is filed in good faith. The requirement regarding verification of a pleading is
simply a condition affecting the form of pleading,1the non-compliance of which does not necessarily render the
pleading fatally defective. The court may order the correction of the pleading if the verification is lacking, or act
on the pleading although it is not verified if the attending circumstances are such that the strict compliance with
the rule may be dispensed with in order that the ends of justice or the law may thereby be served. This view finds
support in the ruling laid down by this Court in several decisions.
In the case of The Philippine Bank of Commerce vs. Macadaeg, et al., L-14174, October 31, 1960, the petition
for certiorari was attacked as fatally defective because it was not verified as required by the provision of Section
1 of Rule 67 of the Rules of Court (now Section 1, Rule 65 of the new Rules of Court). In resolving this
question, this Court held:

First, respondents claim that the petition, not being verified, is fatally defective. We do not think so. It is
true that Rule 67, sec. 1, of the Rules of Court, require that the petition for certiorari be verified, the
apparent object thereof being to insure good faith in the averments of the petition. Where, however, the
material facts alleged are a matter of record in the court below, consisting in pleadings filed or
proceedings taken therein, and the questions raised are mainly of law, a verification as to the truth of said
facts is not an absolute necessity and may be waived (42 Am. Jur., sec. 42, p. 177), as this Court has
done in this case when we gave due course to the present petition. In fact, many authorities consider the
absence of verification a mere formal, not jurisdictional, defect, the absence of which does not of itself
justify a court in refusing to allow and act in the case (71 C.J.S., 744-745). (Emphasis supplied).
Likewise, in the case of Tavera vs. El Hogar Filipino, Inc., et al., 98 Phil. 481, this Court held that "lack of
verification of a petition filed in a probate court for the sale of real property belonging to the estate of a minor is
not a jurisdictional defect."2In a land registration case, notwithstanding the provision of Section 34, Act 496,
which requires that opposition to an application for registration of land should be sworn to by oppositor, this
Court held that an "unverified opposition is sufficient to confer standing in court to oppositors." 3
In the light of the rulings laid down by this Court in the decisions afore-cited, it is clear that verification is not a
jurisdictional, but a formal, requisite. While the petition now before Us was not verified, it was, however,
subscribed and sworn to by the petitioner, and We believe that the lower court did not commit a reversible error
when it denied the motion to dismiss the petition upon the ground of lack of jurisdiction. The jurisdiction of the
court was not affected by the absence of the proper verification of the petition. It may be stated here, though, that
the lower court should have required appellee to have her petition verified before setting the case for hearing, in
order to have the petition conform with the rule.1wph1.t
The appellant also contends that no sufficient reasons had been shown to justify the grant by the lower court of
the petition for a change of name. The appellant urges that under Article 364 of the Civil Code legitimate
children shall principally use the surname of the father. This provision, however, is not absolute because under
Article 264 of the same Code, it is provided that legitimate children have the right to bear the surname of the
father and of the mother. Hence, if there is sufficient reason, the change of a child's surname from that of the
father, to that of the mother, may be authorized by the court.
In the instant case, it has been shown that the petitioner-appellee is the legitimate daughter of Buena Bartolome
and Hishimatsu Oshita; that upon reaching the age of majority she elected Philippine citizenship and took her
oath of allegiance; that being already a Filipino citizen she desires to adopt a Filipino surname; that her older
brother and sister who had also elected Philippine citizenship have been using the surname "Bartolome"; and that
she desires to have the surname "Bartolome" instead of "Oshita", because she felt embarrassed when introduced
as one bearing Japanese surname. The lower court further observed that "It cannot be denied that there had been
ill feeling among the Filipinos against the Japanese due to the last Pacific war. Although normal relations
between the Philippines and Japan have been established the ill feelings still persist among some Filipinos
especially among the less educated who had unpleasant experience during the war." There is no showing that the
appellee was motivated by any fraudulent purpose, or that the change of her surname will prejudice public
interest. We believe that the lower court acted correctly when it considered these circumstances as reasons
sufficient to justify the change of name as prayed for by the petitioner-appellee.
Moreover, the matter of whether to grant or deny a petition for a change of name is left to the sound discretion of
the court. The following, ruling of this Court is relevant:

In granting or denying petitions for change of name, the question of "proper and reasonable cause" is left
to the sound discretion of the court. The evidence presented need only be satisfactory to the Court and
not all the best evidence available.
In the present case the trial court found to its satisfaction that petitioner was in earnest in his desire to do
away with all traces of his former Chinese nationality and henceforth to be recognized as a Filipino.
Such desire is in line with the policy of our naturalization law that applicants for naturalization should
fully embrace Filipino customs and traditions and socially mingle with Filipinos.
xxx

xxx

xxx

It has not been shown that petitioner has any fraudulent intent in seeking a change of name. No criminal,
civil, tax or any other, liability on his part, which he may avoid by the change of name, has been
suggested. Nothing has been presented to show any prejudice to the Government or to any individual
should the petition be granted. In the absence of prejudice to the State or any individual, a sincere desire
to adopt a Filipino name to erase signs of a former alien nationality which unduly hamper social and
business life, is a proper and reasonable cause for a change of name. It is not trivial, whimsical or
capricious. (Uy vs. Republic. L-22712, November 29, 1965).
Wherefore, the decision appealed from is affirmed, without pronouncement as to costs. It is so ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P., Sanchez and Castro, JJ., concur.
Makalintal, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-20997

April 27, 1967

IN THE MATTER OF THE PETITION TO CHANGE NAME OF ONG HUAN TIN TO

TERESITA TAN ONG. HUAN TIN, petitioner-appellant,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellee.
J. C. Yuseco for petitioner and appellant.
Office of the Solicitor General for oppositor and appellee.
SANCHEZ, J.:
Petition to change the name of Ong Huan Tin to Teresita Tan (Special Proceeding 03521, Juvenile and
Domestic Relations Court). Due publication was had. The petition was set for hearing. But, before the
petition could be heard on the merits, the court, motu proprio, in its order of November 6, 1962
expressed the opinion "that an alien cannot avail himself of the provisions of our Rules of Court
relating to change of name" and thereupon denied the petition. A move to reconsider was rejected in the

court's order of November 24, 1962. Offshoot is the present appeal.

1. At issue is whether an alien may petition for a change of name. Primarily, this question hinges on the
proper interpretation of the word person as it is employed in Rule 103 of the Rules of Court. This
problem, by all means, is not new.
In a recent judicial test (In the Petition for the Change of Name of JOSELITO YU, G.R. L-20874, May
25, 1966)* We held that Philippine citizenship of the applicant is not a prerequisite for a petition to
change name; and, that, accordingly, an alien may petition for a change of name. There, this Court,
speaking through Mr. Justice Makalintal, declared:
Rule 103 does not say that only citizens of the Philippines may petition for a change of name.
[Neither does Public Act No. 1386 of the Philippine Commission (enacted September 1, 1905)
from which the Rule has been adopted.] Section 1 provides that "a person desiring to change his
name shall present the petition to the Court of First Instance of the province in which he resides,
or, in the City of Manila, to the Juvenile and Domestic Relations Court." Here the word
"person" is a generic term which is not limited to Filipino citizens, but embraces all natural
persons. The rule does not even require that the citizenship of the petitioner be stated in his
petition. It is enough that the petition be verified, signed by the petitioner or some other person
in his behalf, and set forth (a) that the petitioner has been a bona fide resident of the province
where the petition is filed for at least three (3) years prior to the date of filing; (b) the cause for
which the change of name is sought; and (c) the name asked for (Section 2). The rule is clear
and affords no room for interpretation. It sets forth all the requirements, and Filipino citizenship
is not one of them.
The court a quo ruled that since the use of surnames is based on family rights, and since under
Article 15 of the Civil Code laws relating to family rights and duties, or to the status, condition
and legal capacity of persons are binding upon citizens of the Philippines even though living
abroad, the converse of the principle must be recognized, that is to say, the same matters in
respect of are alien must be governed by the laws of his own country. The major premise of the
proposition may be true in a general sense: one's surname is usually that by which not only one
as an individual but one's family as well is known. Thus Title XIII of the Civil Code (Articles
364 to 373) contains provision for the use of surnames by legitimate, legitimated, illegitimate,
and adopted children, as well as by women who are married, widowed or legally separated from
their husbands. But a change of name as authorized under Rule 103 does not by itself define, or
effect a change in, one's existing family relations, or in the rights and duties flowing therefrom;
nor does it create new family rights and duties where none before were existing. It does not alter
one's legal capacity, civil status or citizenship. What is altered is only the name, which in that
word or combination of words by which a person is distinguished from others and which he
bears as the label or appellation for the convenience of the world at large in addressing him, or
in speaking of or dealing with him (38 Am. Jur. 595). The situation is no different whether the
person whose name is changed be a citizen or an alien.

To be sure, there could be instances where the change applied for maybe open to objection by parties
who already bear the surname desired by the applicant, not because he would thereby acquire certain
family ties with them but because the existence of such ties might be erroneously impressed on the
public mind. But this is precisely the purpose of the judicial application to determine whether there
is proper and reasonable cause for the change of name. As held by this Court are several cases, in
which pertinently enough the petitioners were aliens, the change is not a matter of right but of judicial
discretion, to be exercised in the light of the reasons adduced and the consequences that will likely
follow (Ong Peng Oan vs. Republic, L-8035, Nov. 1957; Tan vs. Republic, L-16384, April 26, 1962;
Ong Te vs. Republic, L-15549, June 30, 1962; Moore vs. Republic, L-18407, June 26, 1963). In not
one of those cases, however, has it been ruled that an alien is not entitled to file a petition at all."
2. Nonetheless, we pause to consider whether every alien in this country may petition for a change of
name.
Change of name under our own law is a special proceeding to establish the status of a person
involving his relations with others, that is, his legal position in, or with regard to, the rest of the
community. The petition therefor is directed against all. It is in rem. So it is, that under Section 3 of
Rule 103, publication of the petition is required.1
The broad general doctrine is that the status of an alien individual is governed and controlled by the lex
domicilii.2 Implicit in this precept is that an alien may be allowed to change his name here only if he be
domiciled in the Philippines. And "domicile" means "permanent home, the place to which, whenever
absent for business or pleasure, one intends to return, and depends on facts and circumstances, in the
sense that they disclose intent."3
An alien who temporarily stays in the Philippines may not there avail of the right to change his name.
For, what good will that be if, after all, his stay will be for a short period of time? It would not be of
much benefit to him; court proceedings for the purpose could yet be a useless ceremony; that salutary
effects flowing from a change of his social relation and condition may not thus be achieved. And then,
stock should be taken of the fact that in a change of name, third persons and the State are concerned.
Correct, then, it is to say that change of name is not temporary in nature; the new name may not be
shunted aside at will.
We, accordingly, lay down the rule that only alien domiciled in the Philippines may apply for change of
name in the courts thereof.1wph1.t
Considering that the petition herein complies with the requisites set forth in the Rules of Court, we vote
to set aside the orders of the Juvenile and Domestic Relations Court of November 6, 1962 and
November 24, 1962; and to direct said Court to proceed with the hearing and determination of Special
Proceeding 03521, entitled "In the Matter of the Petition to Change Name of Ong Huan Tin to Teresita
Tan." No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Castro, JJ.,
concur.

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