Sie sind auf Seite 1von 10

Writ of Habeas Corpus

Essentially a writ of inquiry, granted to test the right under which a person is
detained, and to relieve a person if such restrain is illegal.

Extends to all cases of illegal confinement or detention by which any person is

deprived of his liberty, or by which the rightful custody of any person is
withheld from the person entitled thereto. [Sec. 1, Rule 102]

Can only be suspended in cases of rebellion or invasion and when public

interest requires it (Art. III Sec. 15)

VITAL PURPOSES: In General (1) To obtain relief from illegal confinement (2) To
liberate those who may be imprisoned without sufficient cause (3) To deliver
them from unlawful custody [Villavicencio v. Lukban (1919)]

Prime specification of the application for a writ of habeas corpus is restraint of

liberty. [Moncupa v. Enrile (1986)]

In the case of minors (1) Prosecuted for the purpose of determining the right of
custody of a child. (2) Question of identity is relevant and material and must be
convincingly established. [Tijing v. CA (2008)]

To resolve questions of custody of a minor. The underlying rationale is not the

illegality of the restraint but the right of custody. [Tijing v. CA (2001)]

WHO MAY ISSUE THE WRIT (1) The SC,CA, and RTC have concurrent
jurisdiction to issue WHC [Sec.2, Rule 102] (2) Family courts have jurisdiction
to hear petitions for custody of minors and the issuance of the WHC in relation
to custody of minors


(a) Where a person continued to be unlawfully denied one or more of his

constitutional rights

(b) Where there is present denial of due process

(c) Where the restraint is not merely involuntary but appears to be unnecessary
(d) Where a deprivation of freedom originally valid has in light of subsequent
developments become arbitrary [Moncupa v. Enrile (1986)]

General Rule: Release of detained person, whether permanent or temporary,

makes the petition for habeas corpus moot.
Exception: (1) Doctrine of Constructive Restraint- Unless there are restraints
attached to his release which precludes freedom of action in which case the
Court can still inquire into the nature of his involuntary restraint

The essential object and purpose of the writ of habeas corpus is to inquire into
all manner of involuntary restraint. Any restraint which will preclude freedom
of action is sufficient. [Villavicencio v Lukban (1919)]

(2) Violation of freedom from threat by the apparent threat to life, liberty and
security of their person from the following facts: (a) Threat of killing their
families if they tried to escape (b) Failure of the military to protect them from
abduction (c) Failure of the military to conduct effective investigation [Secretary
of Justice v. Manalo]

NATURE Not a suit between private parties, but an inquisition by the

government, at the suggestion and instance of an individual, but still in the

Proceedings in habeas corpus are separate and distinct from the main case
from which the proceedings spring.

Ex parte Bollman: the question whether one shall be imprisoned is always

distinct from the question of whether the individual shall be convicted or
acquitted of the charge on which he is tried, and therefore these questions are
separate, and may be decided in different courts [Herrera, citing 4 Cranch, 75,

In the case of People v. Valte (1922), it was stated that the writ of habeas
corpus is not designed to interrupt the orderly administration of the laws by a
competent court acting within the limits of its jurisdiction, but is available only
for the purpose relieving from illegal restraint.

Proceedings on habeas corpus to obtain release from custody under final

judgment being in the nature of collateral attack, the writ deals only with such
radical defects as render the proceeding or judgment absolutely void, and
cannot have the effect of appeal, writ of error or certiorari, for the purpose of
reviewing mere error and irregularities in the proceedings. [People v. Valte



The two writs may be ancillary to each other where necessary to give effect to
the supervisory powers of higher courts.
WHC reaches the body of the jurisdictional matters, but not the record. Writ of
certiorari reaches the record but not the body [Galvez v. CA (1994)]

While generally, the WHC will not be granted when there is an adequate
remedy like writ of error, appeal, or certiorari, it may still be available in
exceptional cases [Herrera, citing 39 C.J.S. Habeas corpus 13, 486-488]


FACT OR LAW Exception: Error affects courts jurisdiction (making the
judgment void) [Herrera]

WHC does not lie where the petitioner has the remedy of appeal or certiorari.
[Galvez v. CA (1994)]

WHC IS NOT PROPER: (a) To assert or vindicate denial of right to bail [Galvez v.
CA (1994)] (b) For correcting errors in appreciation of fact or law [Sotto v.
Director of Prisons (1962)]

WHC IS PROPER: (a) Remedy for reviewing proceedings for deportation of aliens
[De Bisschop v. Galang, (1963)] (b) Where the court has no jurisdiction to
impose the sentence [Banayo v. President of San Pablo, 2 Phil. 413 (1903)]

CONTENTS OF THE PETITION Who May Apply (1) The party for whose relief it
is intended, or (2) By some person on his behalf [Sec. 3, Rule 102] Some
person 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 [Velasco v. CA (1995)]

REQUISITES OF APPLICATION: (1) That the person in whose behalf the

application is made is imprisoned or restrained of his liberty (2) The officer or
name of the person by whom he is so imprisoned or retrained 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 (3) The place where he is so imprisoned or restrained, if known
(4) A copy of the commitment or cause of detention of such person, if it can be
procured without any legal authority, such fact shall appear.

PROCEDURE (1) Application for the writ by petition [Sec. 3, Rule 102] (2) Grant
or disallowance by court or judge [Secs. 4 & 5, Rule 102] (3) Clerk of Court
issues the writ under the seal of court (in case of emergency, by the judge
himself) [Sec. 5. Rule 105] (4) Service: (a) By whom: sheriff or other proper
officer (b) How: leaving the original with the person to whom it is directed and
preserving a copy on which to make return (c) To whom: officer in custody or
any officer (when in custody of person other than an officer) [Sec. 7, Rule 105]
(5) Execution and return: (a) Officer brings the person before the judge, and (b)
Officer makes due return [Sec. 8, Rule 102]

CONTENTS OF THE RETURN Made by the person or officer in whose custody

the prisoner is found: (1) Whether he has or has not the party in his custody or
power, or under restraint (2) If he has the party in his custody or power, or
under restraint, the authority and the true and whole cause thereof, set forth
at large, with a copy of the writ, order execution, or other process, if any, upon
which the party is held (3) If the party is in his custody or power or is
restrained by him, and is not produced, particularly the nature and gravity of
the sickness or infirmity of such party by reason of which he cannot, without
danger, be bought before the court or judge (4) If he has had the party in his
custody or power, or under restraint, and has transferred such custody or
restraint to another, particularly to whom, at what time, for what cause, and
by what authority such transfer was made. [Sec. 10, Rule 102]

The return or statement shall be signed by the person who makes it; and shall
also be sworn by him if the prisoner is not produced, and in all other cases,
unless the return is made and signed by a sworn public officer in his official
capacity. [Sec. 11, Rule 102]

When the prisoner is in custody under a warrant of commitment in pursuance
of law, the return shall be considered prima facie evidence of the cause of
restraint. (b) If he is restrained of his liberty by any alleged private authority,
the return shall be considered only as a plea of the facts therein set forth, and
the party claiming the custody must prove such facts. [Sec. 13, Rule 102]


PRELIMINARY CITATION requires the respondent to appear and show cause
why the peremptory writ should not be granted

PEREMPTORY WRIT unconditionally commands the respondent to have the

body of the detained person before the court at a time and place therein
specified [Lee Yick Hon v. Collector of Customs, (1921)]

WHEN WRIT NOT PROPER OR APPLICABLE WHC will not issue where: (1) The
person alleged to be restrained of his liberty is in custody of an officer (2)
Under process issued by the court or judge (3) By virtue of a judgment or order
of a court of record
(4) The Court or judge had jurisdiction to issue the process, render the
judgment or make the order. [Sec. 4, Rule 102]

The operative act is detention or restraint (whether or not physical). If there is

none, no WHC will issue despite the possibility of respondent being liable to
civil, criminal, or administrative action.

Judicial discretion is exercised in the issuance of the writ, and will not issue as
a matter of course [Eugenio, Sr. v. Velez (1990)]

Improper arrest or lack of preliminary investigation is not a valid ground for the
issuance of WHC. The proper remedy is a motion to quash the warrant of arrest
and/or information before the trial court [Ilagan v. Enrile, 1985]

Posting of a bail is not a waiver of the right to challenge the validity of the
arrest, and therefore the right to resort to WHC [Sec. 26, Revised Rules of
Criminal Procedure]

A person discharged on bail is not entitled to WHC, because such person is not
imprisoned or restrained of his liberty in such a way as to entitle him to the
WHC. [Tan Me Nio v. Collector of Customs, (1916)]


NOT BE ALLOWED IF: (1) Jurisdiction appears after the writ is allowed, despite
any informality or defect in the process, judgment, or order. (2) Person is
charged with or convicted of an offense in the Philippines (3) Person is suffering
imprisonment under lawful judgment [Sec. 4, Rule 102] (4) If it appears that
the prisoner was lawfully committed, and is plainly and specifically charged in
the warrant of commitment with an offense punishable by death [Sec. 14, Rule
102] (5) Even if the arrest of a person is illegal, due to supervening events (a)
Issuance of a judicial process [Sayo v. Chief of Police of Manila (1948)]

Judicial process is defined as a writ, warrant, subpoena, or other formal

writing issued by authority of law. [Malaloan v. CA (1994)]

(b) The filing before a trial court a complaint which issued a hold departure
order and denied motion to dismiss and to grant bail [Velasco v. CA(1995)]

(c) Filing of an information for the offense for which the accused is detained
bars the availability of WHC [Velasco v. CA (1995)]






APPLICABILITY Applies to petitions for custody of minors and writs of habeas

corpus in relation thereto.

Rules of Court shall apply suppletorily. [Sec. 1]

PETITION FOR RIGHTFUL CUSTODY Verified petition for the rightful custody
of a minor may be filed by any person claiming such right.

Party against whom it may be filed shall be designated as the respondent. [Sec.

WHERE TO FILE Filed with the Family Court of the province or city where the
petitioner resides or where the minor may be found. [Sec. 3]

CONTENTS: (1) The personal circumstances of the petitioner and of the

respondent (2) The name, age and present whereabouts of the minor and his or
her relationship to the petitioner and the respondent (3) The material operative
facts constituting deprivation of custody (4) Such other matters which are
relevant to the custody of the minor [Sec. 4]

Verified and accompanied with a certificate against forum shopping signed by

the petitioner personally. [Sec. 4]

If court is satisfied that the petition is sufficient in form and substance, it shall
direct the clerk of court to issue summons, which shall be served together with
a copy of the petition personally on the respondent. [Sec. 5]

ANSWER TO THE PETITION General Rule: Motion to dismiss the petition is not
allowed. Any other ground that might warrant the dismissal of the petition may
be raised as an affirmative defense in the answer.

Exception: On the ground of lack of jurisdiction over the subject matter or over
the parties. [Sec. 6]

Verified Answer Personally verified and filed within 5 days after service of
summons. [Sec. 7]
Case study upon the filing of the verified answer or the expiration of the
period to file it, the court may order a social worker to make a case study of the
minor and the parties and to submit to the court at least 3 days before pre-
trial. [Sec. 8]

MANDATORY PRE-TRIAL Notice - 15 days after the filing of the answer or the
expiration of the period to file answer, the court shall issue an order: (1) Fixing
a date for the pre-trial conference (2) Directing the parties to file and serve
their respective pre-trial briefs (3) Requiring the respondent to present the
minor before the court.

The notice of its order shall be served separately on both the parties and their
respective counsels. [Sec. 9]

Pre-trial brief contains the following: (1) A statement of the willingness of the
parties to enter into agreements that may be allowed by law, indicating its
terms (2) A concise statement of their respective claims together with the
applicable laws and authorities (3) Admitted facts and proposed stipulations of
facts (4) The disputed factual and legal issues (5) All the evidence to be
presented (6) The number and names of the witnesses and their respective
affidavits (7) Such other matters as the court may require to be included.

Failure to file the pre-trial brief or to comply with its required contents has
same effect as failure to appear at the pre-trial. [Sec. 10]

If the petitioner fails to appear personally at the pretrial, the case shall be

Unless his counsel or a duly authorized representative appears in court and

proves a valid excuse for the non-appearance of the petitioner. [Sec. 11]

If the respondent has filed his answer but fails to appear at the pre-trial, the
petitioner shall be allowed to present his evidence ex parte. The Court shall
then render judgment on the basis of the pleadings and the evidence thus
presented. [Sec. 9]

At the pre-trial, the parties may agree on the custody of the minor. If the
parties fail to agree, the court may refer the matter to a mediator who shall
have 5 days to effect an agreement between the parties. If

the issue is not settled through mediation, the court shall proceed with the pre-
trial. [Sec. 12]
Ater an answer has been filed or after expiration of the period to file it, the
court may issue a provisional order awarding custody of the minor to: (1) Both
parents jointly (2) Either parent (3) The grandparent, or if there are several
grandparents, the grandparent chosen by the minor over 7 years of age and of
sufficient discernment (4) The eldest brother or sister over 21 years of age (5)
The actual custodian of the minor over 21 years of age (6) Any other person or
institution the court may deem suitable. [Sec. 13]

INTERIM RELIEFS Temporary visitation rights - court shall provide in its order
awarding provisional custody appropriate visitation rights to the non-custodial
parent or parents.

Unless the court finds said parent or parents unfit or disqualified.

The temporary custodian shall give the court and non custodial parent or
parents at least 5 days' notice of any plan to change the residence of the minor
or take him out of his residence for more than 3 days. [Sec. 15]

Hold Departure Order the minor child shall not be brought out of the country
without prior order from the court while the petition is pending.

The Court, motu proprio or upon application under oath, may issue ex parte a
hold departure order, addressed to the Bureau of Immigration and Deportation
(BID), directing it not to allow the departure of the minor from the Philippines
without court permission.

The Family Court issuing the hold departure order shall furnish the DFA and
the BID of the DOJ a copy of the hold departure order within 24 hours from its

The court may recall the hold departure order motu proprio or upon verified
motion of any of the parties after summary hearing. [Sec. 16]

Protection Order (PO) - court may issue a PO requiring any person: (1) To stay
away from the home, school, business, or place of employment of the minor,
other parent or any other party, or from any other specific place

(2) To cease and desist from harassing, intimidating, or threatening such

minor or the other parent or any person to whom custody of the minor is
awarded (3) To refrain from acts or omission that create an unreasonable risk
to minor (4) To permit a parent, or a party entitled to visitation by a court order
or a separation agreement, to visit the minor at stated periods (5) To permit a
designated party to enter the residence during a specified period of time in
order to take personal belongings not contested in a proceeding pending with
the Family Court (6) To comply with such other orders as are necessary for the
protection of the minor. [Sec. 17]

JUDGMENT Court shall render judgment awarding the custody of the minor to
the proper party considering the best interests of the minor.

If both parties are unfit to have the care and custody of the minor, the court
may designate either the paternal or maternal grandparent of the minor, or his
oldest brother or sister, or any reputable person to take charge of such minor,
or commit him to any suitable home.

Court may order either or both parents to give an amount necessary for the
support, maintenance and education of the minor, irrespective of

The court may also issue any order that is just and reasonable permitting the
parent who is deprived of the care and custody of the minor to visit or have
temporary custody. [Sec. 18]

Appeal Appeal from the decision shall be allowed, unless the appellant has filed
a motion for reconsideration or new trial within 15 days from notice of

An aggrieved party may appeal from the decision by filing a Notice of Appeal
within 15 days from notice of the denial of the motion for reconsideration or
new trial and serving a copy on the adverse parties. [Sec. 19] WRIT OF H A B
for a writ of habeas corpus involving custody of minors filed with the Family
Court. The writ shall be enforceable within the judicial region the Family Court

However, the petition may be filed with a regular court in the absence of the
presiding judge of the Family Court provided that the regular court shall

refer the case to the Family Court as soon as its presiding judge returns to

Petition may also be filed with the appropriate regular courts in places where
there are no Family Courts.

The petition may be filed with the SC, CA, or with any of its members and shall
be enforceable anywhere in the Philippines. The writ may be made returnable
to a Family Court or to any regular court within the region where the petitioner
resides or where the minor may be found for hearing and decision on the

Upon return of the writ, the court shall decide the issue on custody of minors.
[Sec. 20]