REPUBLIC OF THE PHILIPPINES, 
petitioner, vs. JENNIFER B. become a male person. Thus, she prayed that her birth certificate be
CAGANDAHAN,  respondent.
DECISION
QUISUMBING,  J  p:
This is a petition for review under Rule 45 of the Rules of
Court raising purely questions of law and seeking a reversal of the
Decision 1 dated January 12, 2005 of the Regional Trial Court (RTC),
Branch 33 of Siniloan, Laguna, which granted the Petition for
Correction of Entries in Birth Certificate filed by Jennifer B.
Cagandahan and ordered the following changes of entries in
Cagandahan's birth certificate: (1) the name "Jennifer Cagandahan"
changed to "Jeff Cagandahan" and (2) gender from "female" to
"male".
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan
filed a Petition for Correction of Entries in Birth Certificate 2 before
the RTC, Branch 33 of Siniloan, Laguna.
In her petition, she alleged that she was born on January 13,
1981 and was registered as a female in the Certificate of Live Birth
but while growing up, she developed secondary male characteristics
and was diagnosed to have Congenital Adrenal Hyperplasia (CAH)
which is a condition where persons thus afflicted possess both male
and female characteristics. She further alleged that she was
diagnosed to have clitoral hyperthropy in her early years and at age
six, underwent an ultrasound where it was discovered that she has
small ovaries. At age thirteen, tests revealed that her ovarian
structures had minimized, she has stopped growing and she has no
breast or menstrual development. She then alleged that for all
interests and appearances as well as in mind and emotion, she has
corrected such that her gender be changed from female to male and
her first name be changed from Jennifer to Jeff. cHaCAS
The petition was published in a newspaper of general
circulation for three (3) consecutive weeks and was posted in
conspicuous places by the sheriff of the court. The Solicitor General
entered his appearance and authorized the Assistant Provincial
Prosecutor to appear in his behalf.
To prove her claim, respondent testified and presented the
testimony of Dr. Michael Sionzon of the Department of Psychiatry,
University of the Philippines-Philippine General Hospital. Dr. Sionzon
issued a medical certificate stating that respondent's condition is
known as CAH. He explained that genetically respondent is female
but because her body secretes male hormones, her female organs
did not develop normally and she has two sex organs — female and
male. He testified that this condition is very rare, that respondent's
uterus is not fully developed because of lack of female hormones,
and that she has no monthly period. He further testified that
respondent's condition is permanent and recommended the change
of gender because respondent has made up her mind, adjusted to
her chosen role as male, and the gender change would be
advantageous to her.
The RTC granted respondent's petition in a Decision dated
January 12, 2005 which reads:
The Court is convinced that petitioner has
satisfactorily shown that he is entitled to the reliefs
prayed [for]. Petitioner has adequately presented
to the Court very clear and convincing proofs for
the granting of his petition. It was medically proven
that petitioner's body produces male hormones,
and first his body as well as his action and feelings
are that of a male. He has chosen to be male. He is
a normal person and wants to be acknowledged
and identified as a male. DHSEcI
 WHEREFORE, premises considered, the
Civil Register of Pakil, Laguna is hereby ordered to
make the following corrections in the birth
[c]ertificate of Jennifer Cagandahan upon payment
of the prescribed fees:
a) By changing the name from Jennifer
Cagandahan to JEFF CAGANDAHAN; and
b) By changing the gender from female to
MALE.
It is likewise ordered that petitioner's
school records, voter's registry, baptismal
certificate, and other pertinent records are hereby
amended to conform with the foregoing corrected
data.
SO ORDERED. 3
Thus, this petition by the Office of the Solicitor General
(OSG) seeking a reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE
PETITION CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF
THE RULES OF COURT HAVE NOT BEEN COMPLIED
WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES
NOT ALLOW CHANGE OF "SEX" OR "GENDER" IN
THE BIRTH CERTIFICATE, WHILE RESPONDENT'S
MEDICAL CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A "MALE". 4
Simply stated, the issue is whether the trial court erred in
ordering the correction of entries in the birth certificate of
respondent to change her sex or gender, from female to male, on
the ground of her medical condition known as CAH, and her name
from "Jennifer" to "Jeff", under Rules 103 and 108 of the Rules of
Court. DHECac
The OSG contends that the petition below is fatally defective
for non-compliance with Rules 103 and 108 of the Rules of Court
because while the local civil registrar is an indispensable party in a
petition for cancellation or correction of entries under Section 3,
Rule 108 of the Rules of Court, respondent's petition before the
court  a quo  did not implead the local civil registrar. 5 The OSG
further contends respondent's petition is fatally defective since it
failed to state that respondent is a  bona fide  resident of the province
where the petition was filed for at least three (3) years prior to the
date of such filing as mandated under Section 2 (b), Rule 103 of the
Rules of Court. 6 The OSG argues that Rule 108 does not allow
change of sex or gender in the birth certificate and respondent's
claimed medical condition known as CAH does not make her a
male. 7
On the other hand, respondent counters that although the
Local Civil Registrar of Pakil, Laguna was not formally named a party
in the Petition for Correction of Birth Certificate, nonetheless the
Local Civil Registrar was furnished a copy of the Petition, the Order
to publish on December 16, 2003 and all pleadings, orders or
processes in the course of the proceedings, 8 respondent is actually
a male person and hence his birth certificate has to be corrected to
reflect his true sex/gender, 9 change of sex or gender is allowed
under Rule 108, 10 and respondent substantially complied with the
requirements of Rules 103 and 108 of the Rules of Court. 11 ICTacD
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
SEC. 1. Venue. — A person desiring to
change his name shall present the petition to the
Regional Trial Court of the province in which he
resides, [or, in the City of Manila, to the Juvenile
and Domestic Relations Court].
SEC. 2. Contents of petition. — A petition for
change of name shall be signed and verified by the
person desiring his name changed, or some other
person on his behalf, and shall 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 such filing;
(b) The cause for which the change
of the petitioner's name is sought;
(c) The name asked for.
Sec. 3. Order for hearing. — If the petition
filed is sufficient in form and substance, the court,
by an order reciting the purpose of the petition,
shall fix a date and place for the hearing thereof,
and shall direct that a copy of the order be
published before the hearing at least once a week
for three (3) successive weeks in some newspaper
of general circulation published in the province, as
the court shall deem best. The date set for the
hearing shall not be within thirty (30) days prior to
an election nor within four (4) months after the last
publication of the notice.
SEC. 4. Hearing. — Any interested person
may appear at the hearing and oppose the petition.
The Solicitor General or the proper provincial or
city fiscal shall appear on behalf of the Government
of the Republic.
SEC. 5. Judgment. — Upon satisfactory
proof in open court on the date fixed in the order
that such order has been published as directed and
that the allegations of the petition are true, the
court shall, if proper and reasonable cause appears
for changing the name of the petitioner, adjudge
that such name be changed in accordance with the
prayer of the petition. AcISTE
SEC. 6. Service of judgment. — Judgments or
orders rendered in connection with this rule shall
be furnished the civil registrar of the municipality
or city where the court issuing the same is situated,
who shall forthwith enter the same in the civil
register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES IN
THE CIVIL REGISTRY
SEC. 1. Who may file petition. — Any person
interested in any act, event, order or decree
concerning the civil status of persons which has
been recorded in the civil register, may file a
verified petition for the cancellation or correction
of any entry relating thereto, with the Regional Trial
Court of the province where the corresponding civil
registry is located.
SEC. 2. Entries subject to cancellation or
correction. — Upon good and valid grounds, the
following entries in the civil register may be
cancelled or corrected: (a) births; (b) marriages; (c)
deaths; (d) legal separations; (e) judgments of
annulments of marriage; (f) judgments declaring
marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss
or recovery of citizenship; (l) civil interdiction; (m)
judicial determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of
name. TcHEaI
 SEC. 3. Parties. — When cancellation or thereby shall be made parties to the proceedings. Likewise, the local
correction of an entry in the civil register is sought, civil registrar is required to be made a party in a proceeding for the
the civil registrar and all persons who have or claim correction of name in the civil registry. He is an indispensable party
any interest which would be affected thereby shall without whom no final determination of the case can be
be made parties to the proceeding. had. 12 Unless all possible indispensable parties were duly notified
of the proceedings, the same shall be considered as falling much too
SEC. 4. Notice and publication. — Upon the
short of the requirements of the rules. 13 The corresponding
filing of the petition, the court shall, by an order, fix
petition should also implead as respondents the civil registrar and
the time and place for the hearing of the same, and
all other persons who may have or may claim to have any interest
cause reasonable notice thereof to be given to the
that would be affected thereby. 14 Respondent, however, invokes
persons named in the petition. The court shall also
Section 6, 15 Rule 1 of the Rules of Court which states that courts
cause the order to be published once a week for
shall construe the Rules liberally to promote their objectives of
three (3) consecutive weeks in a newspaper of
securing to the parties a just, speedy and inexpensive disposition of
general circulation in the province.
the matters brought before it. We agree that there is substantial
SEC. 5. Opposition. — The civil registrar and compliance with Rule 108 when respondent furnished a copy of the
any person having or claiming any interest under petition to the local civil registrar.
the entry whose cancellation or correction is
The determination of a person's sex appearing in his birth
sought may, within fifteen (15) days from notice of
certificate is a legal issue and the court must look to the statutes. In
the petition, or from the last date of publication of
this connection, Article 412 of the Civil Code provides:
such notice, file his opposition thereto. AaHTIE
ART. 412. No entry in a civil register shall
SEC. 6. Expediting proceedings. — The court
be changed or corrected without a judicial order.
in which the proceedings is brought may make
orders expediting the proceedings, and may also Together with Article 376 16 of the Civil Code, this provision
grant preliminary injunction for the preservation of was amended by Republic Act No. 9048 17 in so far as  clerical or
the rights of the parties pending such proceedings. typographical  errors are involved. The correction or change of such
matters can now be made through administrative proceedings and
SEC. 7. Order. — After hearing, the court
without the need for a judicial order. In effect, Rep. Act No.
may either dismiss the petition or issue an order
9048 removed from the ambit of Rule 108 of the Rules of Court the
granting the cancellation or correction prayed for.
correction of such errors. Rule 108 now applies only to substantial
In either case, a certified copy of the judgment shall
changes and corrections in entries in the civil register. 18 DAEIHT
be served upon the civil registrar concerned who
shall annotate the same in his record. Under Rep. Act No. 9048, a correction in the civil registry
involving the change of sex is not a mere clerical or typographical
The OSG argues that the petition below is fatally defective
error. It is a substantial change for which the applicable procedure is
for non-compliance with Rules 103 and 108 of the Rules of Court
Rule 108 of the Rules of Court. 19
because respondent's petition did not implead the local civil
registrar. Section 3, Rule 108 provides that the civil registrar and all
persons who have or claim any interest which would be affected
 The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are those provided
in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in
the civil register:
(1) Births; (2) marriages; (3) deaths; (4)
legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated under
Article 407 of the Civil Code include even those that occur after
birth. 20
Respondent undisputedly has CAH. This condition causes
the early or "inappropriate" appearance of male characteristics. A
person, like respondent, with this condition produces too much
androgen, a male hormone. A newborn who has XX chromosomes
coupled with CAH usually has a (1) swollen clitoris with the urethral
opening at the base, an ambiguous genitalia often appearing more
male than female; (2) normal internal structures of the female
reproductive tract such as the ovaries, uterus and fallopian tubes; as
the child grows older, some features start to appear male, such as
deepening of the voice, facial hair, and failure to menstruate at
puberty. About 1 in 10,000 to 18,000 children are born with
CAH. DcIHSa
CAH is one of many conditions 21 that involve intersex
anatomy. During the twentieth century, medicine adopted the term
"intersexuality" to apply to human beings who cannot be classified
as either male or female. 22 The term is now of widespread use.
According to Wikipedia, intersexuality "is the state of a living thing of
a gonochoristic species whose sex chromosomes, genitalia, and/or
secondary sex characteristics are determined to be neither
exclusively male nor female. An organism with intersex may have
biological characteristics of both male and female sexes."
Intersex individuals are treated in different ways by
different cultures. In most societies, intersex individuals have been
expected to conform to either a male or female gender
role. 23 Since the rise of modern medical science in Western
societies, some intersex people with ambiguous external genitalia
have had their genitalia surgically modified to resemble either male
or female genitals. 24 More commonly, an intersex individual is
considered as suffering from a "disorder" which is almost always
recommended to be treated, whether by surgery and/or by taking
lifetime medication in order to mold the individual as neatly as
possible into the category of either male or female.
In deciding this case, we consider the compassionate calls
for recognition of the various degrees of intersex as variations which
should not be subject to outright denial. "It has been suggested that
there is some middle ground between the sexes, a 'no-man's land'
for those individuals who are neither truly 'male' nor truly
'female'." 25 The current state of Philippine statutes apparently
compels that a person be classified either as a male or as a female,
but this Court is not controlled by mere appearances when nature
itself fundamentally negates such rigid classification.
In the instant case, if we determine respondent to be a
female, then there is no basis for a change in the birth certificate
entry for gender. But if we determine, based on medical testimony
and scientific development showing the respondent to be other than
female, then a change in the subject's birth certificate entry is in
order. IaSAHC
Biologically, nature endowed respondent with a mixed
(neither consistently and categorically female nor consistently and
categorically male) composition. Respondent has female (XX)
chromosomes. However, respondent's body system naturally
produces high levels of male hormones (androgen). As a result,
respondent has ambiguous genitalia and the phenotypic features of
a male.
Ultimately, we are of the view that where the person is
biologically or naturally intersex the determining factor in his gender
classification would be what the individual, like respondent, having
reached the age of majority, with good reason thinks of his/her sex.
Respondent here thinks of himself as a male and considering that
his body produces high levels of male hormones (androgen) there is
preponderant biological support for considering him as being male.
Sexual development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the gender of
such persons, like respondent, is fixed.
Respondent here has simply let nature take its course and
has not taken unnatural steps to arrest or interfere with what he
was born with. And accordingly, he has already ordered his life to
that of a male. Respondent could have undergone treatment and
taken steps, like taking lifelong medication, 26 to force his body into
the categorical mold of a female but he did not. He chose not to do
so. Nature has instead taken its due course in respondent's
development to reveal more fully his male characteristics. TCacIE
In the absence of a law on the matter, the Court will not
dictate on respondent concerning a matter so innately private as
one's sexuality and lifestyle preferences, much less on whether or
not to undergo medical treatment to reverse the male tendency due
to CAH. The Court will not consider respondent as having erred in
not choosing to undergo treatment in order to become or remain as
a female. Neither will the Court force respondent to undergo
treatment and to take medication in order to fit the mold of a
female, as society commonly currently knows this gender of the
human species. Respondent is the one who has to live with his
intersex anatomy. To him belongs the human right to the pursuit of
happiness and of health. Thus, to him should belong the primordial
choice of what courses of action to take along the path of his sexual
development and maturation. In the absence of evidence that
respondent is an "incompetent" 27 and in the absence of evidence
to show that classifying respondent as a male will harm other
members of society who are equally entitled to protection under the
law, the Court affirms as valid and justified the respondent's position
and his personal judgment of being a male.
In so ruling we do no more than give respect to (1) the
diversity of nature; and (2) how an individual deals with what nature
has handed out. In other words, we respect respondent's congenital
condition and his mature decision to be a male. Life is already
difficult for the ordinary person. We cannot but respect how
respondent deals with his unordinary state and thus help make his
life easier, considering the unique circumstances in this case.
As for respondent's change of name under Rule 103, this
Court has held that a change of name 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 follow. 28 The trial court's
grant of respondent's change of name from Jennifer to Jeff implies a
change of a feminine name to a masculine name. Considering the
consequence that respondent's change of name merely recognizes
his preferred gender, we find merit in respondent's change of name.
Such a change will conform with the change of the entry in his birth
certificate from female to male.
WHEREFORE, the Republic's petition is DENIED. The
Decision dated January 12, 2005 of the Regional Trial Court, Branch
33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to
costs. TcSHaD
SO ORDERED.
Carpio-Morales, Tinga, Velasco, Jr. and  Brion, JJ., concur.

[G.R. No. 216425. November 11, 2020.]
ANACLETO BALLAHO ALANIS
III, petitioner, vs. COURT OF APPEALS, Cagayan de
Oro City, and HON. GREGORIO Y. DE LA PEÑA III,
Presiding Judge, Br. 12, Regional Trial Court of
Zamboanga City, respondents.
DECISION
LEONEN,  J  p:
Reading Article 364 of the Civil Code together with the
State's declared policy to ensure the fundamental equality of women
and men before the law, 1 a legitimate child is entitled to use the
surname of either parent as a last name.
This Court resolves the Petition for Certiorari 2 assailing the
Decision 3 and Resolution 4 of the Court of Appeals, which affirmed
the Regional Trial Court Orders 5 denying Anacleto Ballaho Alanis
III's appeal to change his name to Abdulhamid Ballaho.
Petitioner filed a Petition before the Regional Trial Court of
Zamboanga City, Branch 12, to change his name. 6 He alleged that
he was born to Mario Alanis y Cimafranca and Jarmila Imelda
Ballaho y Al-Raschid, 7 and that the name on his birth certificate was
"Anacleto Ballaho Alanis III." 8 However, he wished to remove his
father's surname "Alanis III," and instead use his mother's maiden
name "Ballaho," as it was what he has been using since childhood
and indicated in his school records. 9 He likewise wished to change
his first name from "Anacleto" to "Abdulhamid" for the same
reasons. 10
During trial, petitioner testified that his parents separated
when he was five years old. His father was based in Maguindanao
while his mother was based in Basilan. His mother testified that she
single-handedly raised him and his siblings. 11
As summarized by the Regional Trial Court, petitioner
presented the following in evidence to support his claim that the
requested change would avoid confusion:
. . . a.) petitioner's photograph in what appears to
be a page of a yearbook; b.) another photograph of
the petitioner appearing in the editorial staff of ND
Beacon where he appears to be the assistant
editor-in-chief; c.) the high school diploma of the
petitioner certifying that he finished his high school
education at Notre Dame of Parang in Parang,
Maguindanao; d.) another copy of the editorial of
the ND Beacon where petitioner's name appears as
one of its editorial staff; e.) another copy of the
editorial of ND Beacon where the name of the
petitioner appears as the editor-in-chief; f.) a
certificate of participation issued to the petitioner
by the Department of [E]ducation, Culture and
Sports; g.) a CAP College Foundation, Inc., diploma
issued in the name of petitioner; h.) another CAP
College Foundation, Inc., diploma issued in the
name of petitioner; i.) a [W]estern Mindanao State
University student identification card in the name
of petitioner; j.) a non-professional driver[']s license
issued in the name of petitioner; k.) the Community
Tax Certificate of petitioner[.] 12
In its April 9, 2008 Order, 13 the Regional Trial Court denied
the Petition, holding that petitioner failed to prove any of the
grounds to warrant a change of name. 14 It noted that the mere fact
that petitioner has been using a different name and has become
known by it is not a valid ground for change of name. It also held
that to allow him to drop his last name was to disregard the
surname of his natural and legitimate father, 15 in violation of
the Family Code and Civil Code, which provide that legitimate
children shall principally use their fathers' surnames. 16
The Regional Trial Court acknowledged that confusion could
exist here, but found that granting his petition would create more
confusion:
Although it may appear that confusion
may indeed arise as to the identity of the petitioner
herein who has accordingly used the name
Abdulhamid Ballaho in all his records and is known
to the community as such person and not Anacleto
Ballaho Alanis III, his registered full name is his
Certificate of Live Birth, this Court believes that the
very change of name sought by the petitioner in
this petition would even create more confusion
since if so granted by this Court, such change
sought after could trigger much deeper inquiries
regarding her parentage and/or paternity, bearing
in mind that he is the legitimate eldest child of the
spouses Mario Alanis y Cimafranca and Jarmila
Imelda Ballaho y Al-Raschid[.] 17
Thus, the trial court concluded that, instead of seeking to
change his name in his birth certificate, petitioner should have had
the other private and public records corrected to conform to his true
and correct name:
Time and again, this Court has consistently
ruled that, in similar circumstances, the proper
remedy for the petitioner is to instead cause the
proper correction of his private and public records
to conform to his true and correct first name and
surname, which in this case is Anacleto Ballaho
Alanis, III and not to change his said official, true
and correct name as appearing in his Certificate of
Live Birth simply because either he erroneously
and inadvertently or even purposely or deliberately
used an incorrect first name and surname in his
private and public records. 18
The dispositive portion of the Order reads:
WHEREFORE, in view of the foregoing, and
finding no legal, proper, justified and reasonable
grounds to allow the change of name of the herein
petitioner from Anacleto Ballaho Alanis III as
appearing in his Certificate of Live Birth to
Abdulhamid Ballaho as prayed for by the petitioner
in his petition dated February 1, 2007 the above-
entitled petition is hereby DENIED and ordered
DISMISSED for lack of merit. No cost.
SO ORDERED. 19
Petitioner moved for reconsideration, but the Regional Trial
Court denied this in a June 2, 2008 Order. 20
It appears that on May 2, 2008, a month before the trial
court rendered this Order, petitioner's counsel, Atty. Johny Boy Dialo
(Atty. Dialo), had figured in a shooting incident and failed to report
for work. Thus, petitioner was only able to file a notice of appeal on
September 2, 2008 — months after Atty. Dialo's law office had
received the Order, beyond the filing period. He invoked his
counsel's excusable neglect for a belated appeal, alleging the
shooting incident. 21
Thereafter, with a new counsel, petitioner filed a Record on
Appeal and Notice of Appeal on September 3, 2008, 22 reiterating
his counsel's excusable negligence. 23 He added that he was set to
take the Bar Examinations and had to come home from his review,
only to find out after checking with Atty. Dialo's law office that he
had lost the case and the appeal period had lapsed. 24 However, the
Record and Notice of Appeal were denied in the Regional Trial
Court's September 16, 2008 Order for having been filed out of
time. 25
 Thus, petitioner filed a Petition for Certiorari 26 before the
Court of Appeals, providing the same reason to explain his failure to
timely appeal.
In its May 26, 2014 Decision, 27 the Court of Appeals denied
the Petition, holding that petitioner failed to show any reason to
relax or disregard the technical rules of procedure. 28 It noted that
the trial court did not gravely err in denying petitioner's Record on
Appeal for having been filed out of time. 29
Petitioner moved for reconsideration, which was also
denied in the Court of Appeals' December 15, 2014
Resolution. 30 Thus, he filed this Petition for Certiorari. 31
Petitioner insists that the serious indisposition of his
counsel after being shot and receiving death threats is excusable
negligence for a belated appeal, it not being attended by any
carelessness or inattention. 32 Delving on the substantive issue,
petitioner maintains that he has the right to use his mother's
surname despite his legitimate status, as recognized in Alfon v.
Republic. 33
In its Comment, 34 the Office of the Solicitor General
argued that this Petition should be dismissed outright for being the
wrong remedy, and that the proper course was to file a petition for
review on certiorari. 35 Further, it argues that the Court of Appeals
did not gravely abuse its discretion in upholding the trial court's
ruling. 36 It points out that since Atty. Dialo's law office has more
than one lawyer, and it had admittedly received the Order, 37 the
belated appeal was unjustified. Further, petitioner was already a law
graduate when he filed the first Petition, and was expected to be
more vigilant of his case's progress. 38 Thus, the Office of the
Solicitor General finds no "exceptionally meritorious" reason to
warrant a liberal interpretation of technical rules. In any case,
petitioner's reason is not among the grounds to warrant a change in
name. 39
In his Reply, 40 petitioner failed to address the argument
that a petition for certiorari is the wrong remedy to assail the Court
of Appeals' dismissal of his Petition for Certiorari. He only reiterated
the Court of Appeals should have discarded technicalities, because
jurisprudence on Article 364 of the Civil Code is settled in his
favor. 41
After this Court had given due course to the Petition, the
parties filed their respective memoranda. 42
The issues for this Court's resolution are:
First, whether or not the Petition should be dismissed for
petitioner's failure to show grave abuse of discretion on the part of
the Court of Appeals;
Second, whether or not legitimate children have the right to
use their mothers' surnames as their surnames; and
Finally, whether or not petitioner has established a
recognized ground for changing his name.
This Court grants the Petition.
I
The Petition was filed under Rule 65 of the Rules of Court,
but petitioner did not even attempt to show any grave abuse of
discretion on the part of the Court of Appeals. On this ground alone,
the Petition may be dismissed.
It is not disputed that the Record on Appeal was filed out of
time. The Court of Appeals could have relaxed the rules for
perfecting an appeal, but was not required, by law, to review it.
The Court of Appeals found no reason to warrant any
relaxation of the rules, after appreciating the following
circumstances: (1) petitioner did not adduce evidence to prove the
alleged shooting of his former counsel; 43 (2) petitioner was
represented by counsel belonging to a law office which had more
than one associate; 44 and (3) petitioner was a law graduate and
should have been more vigilant. 45
This Court cannot sidestep the rule on reglementary
periods for appealing decisions, except in the most meritorious
cases. 46
 Petitioner claims that the circumstances surrounding the possible procedural blunder. Knowing that the lead
failure to file the appeal are bereft of carelessness or inattention on counsel was no longer participating actively in the
the part of counsel, and thus, constitute excusable negligence. trial of the case several months before its
resolution, Atty. Alikpala who alone was left to
This is unconvincing. In Sublay v. National Labor Relations
defend petitioner should have put himself on
Commission, 47 the petitioner filed an appeal out of time because
guard and thus anticipated the release of the Labor
the counsel on record did not inform her or her other counsel that a
Arbiter's decision. Petitioner's lead counsel might
decision had been rendered in her case. This Court affirmed the
have been negligent but she was never really
denial of her appeal for having been filed out of time, explaining
deprived of proper representation. This fact alone
that:
militates against the grant of this petition. 49
The unbroken stream of judicial dicta is
Here, petitioner failed to respond to the assertion that Atty.
that clients are bound by the action of their counsel
Dialo's law office, Dialo Darunday & Associates Law Office, is a law
in the conduct of their case. Otherwise, if the
firm with more than one lawyer, as well as legal staff, who must have
lawyer's mistake or negligence was admitted as a
been aware that Atty. Dialo was not reporting to office or receiving
reason for the opening of a case, there would be
his mail sent there. Moreover, Atty. Dialo stopped reporting to office
no end to litigation so long as counsel had not
on May 2, 2008, whereas the law firm received the June 2, 2008
been sufficiently diligent or experienced or
Order more than a month later, on June 12, 2008. Without any
learned. 48 (Citation omitted)
response to this point, this Court cannot automatically excuse the
This Court noted in Sublay that the petitioner was law office and assume that it could not adjust to Atty. Dialo's
represented by more than one lawyer. The decision she wished to absence.
appeal had been duly served on one of her lawyers on record, who
The law firm was certainly negligent in how it dealt with the
failed to inform the more active counsel. This Court ruled that the
Order. Given the other circumstances of this case, petitioner would
petitioner was bound by the negligence of her counsel:
ordinarily be bound by this negligence. Consequently, petitioner had
Lastly, petitioner's claim for judicial relief the burden to sufficiently establish, by alleging and arguing, that this
in view of her counsel's alleged negligence is case is so meritorious that it warrants the relaxation of the
incongruous, to say the least, considering that she procedural rules. This, petitioner did not bother to do.
was represented by more than one (1) lawyer.
Nonetheless, in the exercise of its equity jurisdiction, 50 this
Although working merely as a collaborating counsel
Court may choose to apply procedural rules more liberally to
who entered his appearance for petitioner as early
promote substantial justice. Thus, we delve into the substantial
as May 1996, i.e., more or less six (6) months before
issues raised by petitioner.
the termination of the proceedings a quo, Atty.
Alikpala had the bounden duty to monitor the II
progress of the case. A lawyer has the
The fundamental equality of women and men before the
responsibility of monitoring and keeping track of
law shall be ensured by the State. This is guaranteed by no less than
the period of time left to file an appeal. He cannot
the Constitution, 51 a statute, 52 and an international convention to
rely on the courts to appraise him of the
which the Philippines is a party.
developments in his case and warn him against any
 In 1980, the Philippines became a signatory to SECTION 14. The State recognizes the role
the Convention on the Elimination of All Forms of Discrimination of women in nation-building, and shall ensure the
Against Women, and is thus now part of the Philippine legal system. fundamental equality before the law of women and
As a state party to the Convention, the Philippines bound itself to the men.
following:
In keeping with the Convention, Article II, Section 14 of
Article 2 the Constitution requires that the State be active in ensuring gender
equality. This provision is even more noticeably proactive than the
xxx xxx xxx
more widely-invoked equal protection and due process clauses
(f) to take all appropriate under the Bill of Rights. In Racho v. Tanaka, 54 this Court observed:
measures, including legislation, to
This constitutional provision provides a
modify or abolish existing laws,
more active application than the passive
regulations, customs and
orientation of Article III, Section 1 of
practices which constitute
the Constitution does, which simply states that no
discrimination against women;
person shall "be denied the equal protection of the
xxx xxx xxx laws." Equal protection, within the context of Article
III, Section 1 only provides that any legal burden or
Article 5
benefit that is given to men must also be given to
xxx xxx xxx women. It does not require the State to actively
pursue "affirmative ways and means to battle the
(a) To modify the social and
patriarchy — that complex of political, cultural, and
cultural patterns of conduct of
economic factors that ensure women's
men and women, with a view to
disempowerment." 55 (Citation omitted)
achieving the elimination of
prejudices and customary and all Article II, Section 14 implies the State's positive duty to
other practices which are based actively dismantle the existing patriarchy by addressing the culture
on the idea of the inferiority or that supports it.
the superiority of either of the
With the Philippines as a state party to the Convention, the
sexes or on stereotyped roles for
emerging customary norm, and not least of all in accordance with its
men and women[.] 53
constitutional duty, Congress enacted Republic Act No. 7192, or
Non-discrimination against women is also an emerging the Women in Development and Nation Building Act. Reiterating
customary norm. Thus, the State has the duty to actively modify Article II, Section 14, the law lays down the steps the government
what is in its power to modify, to ensure that women are not would take to attain this policy:
discriminated.
SECTION 2. Declaration of Policy. — The State
Accordingly, Article II, Section 14 of the 1987 recognizes the role of women in nation building
Constitution reiterated the State's commitment to ensure gender and shall ensure the fundamental equality before
equality: the law of women and men. The State shall provide
 women rights and opportunities equal to that of In the case at bar, what the petitioner
men. wishes is for this Court to allow him to legally
change is [sic] his given and registered first name
To attain the foregoing policy:
from Anacleto III to Abdulhamid and to altogether
(1) A substantial portion of official disregard or drop his registered surname, Alanis,
development assistance funds the surname of his natural and legitimate father,
received from foreign governments and for him to use as his family name the maiden
and multilateral agencies and surname of his mother Ballaho, which is his
organizations shall be set aside and registered middle name, which petitioner claims
utilized by the agencies concerned and in fact presented evidence to be the name that
to support programs and activities he has been using and is known to be in all his
for women; records.

(2) All government departments shall ensure
that women benefit equally and
participate directly in the
development programs and projects
of said department, specifically
those funded under official foreign
development assistance, to ensure
the full participation and
involvement of women in the
development process; and
(3) All government departments and
agencies shall review and revise all
their regulations, circulars,
issuances and procedures to
remove gender bias therein. 56
Courts, like all other government departments and
agencies, must ensure the fundamental equality of women and men
before the law. Accordingly, where the text of a law allows for an
Article 174 of the Family Code, which provides:
interpretation that treats women and men more equally, that is the
correct interpretation.
Thus, the Regional Trial Court gravely erred when it held
that legitimate children cannot use their mothers' surnames.
Contrary to the State policy, the trial court treated the surnames of
petitioner's mother and father unequally when it said:
In denying the herein petition, this Court
brings to the attention of the petitioner that, our
laws on the use of surnames state that legitimate
and legitimated children shall principally use the
surname of the father. The Family Code gives
legitimate children the right to bear the surnames
of the father and the mother, while illegitimate
children shall use the surname of their mother,
unless their father recognizes their filiation, in
which case they may bear the father's surname.
Legitimate children, such as the petitioner in this
case, has [sic] the right to bear the surnames of the
father and the mother, in conformity with the
provisions of the Civil Code on Surnames, and it is
so provided by law that legitimate and legitimated
children shall principally use the surname of the
father. 57 (Citations omitted)
This treatment by the Regional Trial Court was based on
ARTICLE 174. Legitimate children shall
have the right:
(1) To bear the surnames of the father and
the mother, in conformity with the
 provisions of the Civil Code on
Surnames[.]
In turn, Article 364 of the Civil Code provides:
ARTICLE 364. Legitimate and legitimated
children shall principally use the surname of the
father.
The Regional Trial Court's application of Article 364 of
the Civil Code is incorrect. Indeed, the provision states that
legitimate children shall "principally" use the surname of the father,
but "principally" does not mean "exclusively." This gives ample room
to incorporate into Article 364 the State policy of ensuring the
fundamental equality of women and men before the law, and no
discernible reason to ignore it. This Court has explicitly recognized
such interpretation in Alfon v. Republic: 58
The only reason why the lower court
denied the petitioner's prayer to change her
surname is that as legitimate child of Filomena
Duterte and Estrella Alfon she should principally
use the surname of her father invoking Art. 364 of
the Civil Code.But the word "principally" as used in
the codal-provision is not equivalent to
"exclusively" so that there is no legal obstacle if a
legitimate or legitimated child should choose to use
the surname of its mother to which it is equally
entitled. Moreover, this Court in Haw Liong vs.
Republic, G.R. No. L-21194, April 29, 1966, 16 SCRA
677, 679, said:
"The following may be
considered, among others, as
proper or reasonable causes that
may warrant the grant of a
petitioner for change of name; (1)
when the name is ridiculous,
tainted with dishonor, or is
extremely difficult to write or
pronounce; (2) when the request
for change is a consequence of a
change of status, such as when a
natural child is acknowledged or
legitimated; and (3) when the
change is necessary to avoid
confusion (Tolentino, Civil Code of
the Philippines, 1953 ed., Vol. 1, p.
660)." 59
Given these irrefutable premises, the Regional Trial Court
patently erred in denying petitioner's prayer to use his mother's
surname, based solely on the word "principally" in Article 364 of
the Civil Code.
III
Having resolved the question of whether a legitimate child
is entitled to use their mother's surname as their own, this Court
proceeds to the question of changing petitioner's first name from
"Anacleto" to "Abdulhamid."
Whether grounds exist to change one's name is a matter
generally left to the trial court's discretion. 60 Notably, the Petition is
devoid of any legal arguments to persuade this Court that the
Regional Trial Court erred in denying him this change. Nonetheless,
we revisit the ruling, and petitioner's arguments as stated in his
appeal.
The Regional Trial Court correctly cited the instances
recognized under jurisprudence as sufficient to warrant a change of
name, namely:
. . . (a) when the name is ridiculous, dishonorable or
extremely difficult to write or pronounce; (b) when
the change results as a legal consequence of
legitimation or adoption; (c) when the change will
avoid confusion; (d) when one has continuously
used and been known since childhood by a Filipino
name and was unaware of alien parentage; (e)
when the change is based on a sincere desire to
 adopt a Filipino name to erase signs of former
alienage, all in good faith and without prejudice to
anybody; 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. 61 (Citation omitted)
As summarized in the Record on Appeal, the petition to
change name was filed to avoid confusion:
Petitioner has been using the name
Abdulhamid Ballaho in all his records and
transactions. He is also known to and called by his
family and friends by such name. He has never
used the name Anacleto Ballaho Alanis III even
once in his life. To have the petitioner suddenly use
the name Anacleto Ballaho Alanis III would cause
undue embarrassment to the petitioner since he
has never been known by such name. Petitioner
has shown not only some proper or compelling
reason but also that he will be prejudiced by the
use of his true and official name. A mere correction
of his private and public records to conform to the
name stated in his Certificate of Live Birth would
create more confusion because petitioner has been
using the name Abdulhamid Ballaho since
enrollment in grade school until finishing his law
degree. The purpose of the law in allowing 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[.] There is therefore ample
justification to grant fully his petition, which is not
whimsical but on the contrary is based on a solid
and reasonable ground, i.e., to avoid
confusion[.] 62 (Citations omitted)
These arguments are well taken. That confusion could arise
is evident. In Republic v. Bolante, 63 where the respondent had been
known as "Maria Eloisa" her whole life, as evidenced by scholastic
records, employment records, and licenses, this Court found it
obvious that changing the name written on her birth certificate
would avoid confusion:
The matter of granting or denying
petitions for change of name and the corollary
issue of what is a proper and reasonable cause
therefor rests on the sound discretion of the court.
The evidence presented need only be satisfactory
to the court; it need not be the best evidence
available. What is involved in special proceedings
for change of name is, to borrow from Republic v.
Court of Appeals, . . . "not a mere matter of allowance
or disallowance of the petition, 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."
With the view we take of the case,
respondent's submission for a change of name is
with proper and reasonable reason. As it were, she
has, since she started schooling, used the given
name and has been known as Maria Eloisa, albeit
the name Roselie Eloisa is written on her birth
record. Her scholastic records, as well as records in
government offices, including that of her driver's
license, professional license as a certified public
accountant issued by the Professional Regulation
Commission, and the "Quick Count" document of
the COMELEC, all attest to her having used
practically all her life the name Maria Eloisa Bringas
Bolante.
 The imperatives of avoiding confusion
dictate that the instant petition is granted. But
beyond practicalities, simple justice dictates that
every person shall be allowed to avail himself of
any opportunity to improve his social standing,
provided he does so without causing prejudice or
injury to the interests of the State or of other
people. 64 (Emphasis in the original, citations
omitted)
This Court made a similar conclusion in Chua v. Republic: 65
The same circumstances are attendant in
the case at bar. As Eric has established, he is known
in his community as "Eric Chua," rather than "Eric
Kiat." Moreover, all of his credentials exhibited
before the Court, other than his Certificate of Live
Birth, bear the name "Eric Chua." Guilty of
reiteration, Eric's Certificate of Baptism, Voter
Certification, Police Clearance, National Bureau of
Investigation Clearance, Passport, and High School
Diploma all reflect his surname to be "Chua." Thus,
to compel him to use the name "Eric Kiat" at this
point would inevitably lead to confusion. It would
result in an alteration of all of his official
documents, save for his Certificate of Live Birth. His
children, too, will correspondingly be compelled to
have their records changed. For even their own
Certificates of Live Birth state that their father's
surname is "Chua." To deny this petition would
then have ramifications not only to Eric's identity in
his community, but also to that of his children. 66
Similarly, in this case, this Court sees fit to grant the
requested change to avoid confusion.
The Regional Trial Court itself also recognized the confusion
that may arise here. Despite this, it did not delve into the issue of
changing "Anacleto" to "Abdulhamid," but instead concluded that
granting the petition would create even more confusion, because it
"could trigger much deeper inquiries regarding [his] parentage
and/or paternity[.]" 67
This Court fails to see how the change of name would
create more confusion. Whether people inquire deeper into
petitioner's parentage or paternity because of a name is
inconsequential here, and seems to be more a matter of intrigue
and gossip than an issue for courts to consider. Regardless of which
name petitioner uses, his father's identity still appears in his birth
certificate, where it will always be written, and which can be referred
to in cases where paternity is relevant.
Aside from being unduly restrictive and highly speculative,
the trial court's reasoning is also contrary to the spirit and mandate
of the Convention, the Constitution, and Republic Act No. 7192,
which all require that the State take the appropriate measures to
ensure the fundamental equality of women and men before the law.
Patriarchy becomes encoded in our culture when it is
normalized. The more it pervades our culture, the more its chances
to infect this and future generations. 68
The trial court's reasoning further encoded patriarchy into
our system. If a surname is significant for identifying a person's
ancestry, interpreting the laws to mean that a marital child's
surname must identify only the paternal line renders the mother
and her family invisible. This, in turn, entrenches the patriarchy and
with it, antiquated gender roles: the father, as dominant, in public;
and the mother, as a supporter, in private. 69
WHEREFORE, the Petition is GRANTED. The May 26, 2014
Decision and December 15, 2014 Resolution of the Court of Appeals
in CA-G.R. SP No. 02619-MIN, as well as the April 9, 2008 and June 2,
2008 Orders of the Regional Trial Court of Zamboanga City, Branch
12 in Special Proceeding No. 5528, are REVERSED and SET ASIDE.
As prayed for in his Petition for Change of Name,
petitioner's name is declared to be ABDULHAMID BALLAHO.
Accordingly, the Civil Registrar of Cebu City is DIRECTED to make the
corresponding corrections to petitioner's name, from ANACLETO
BALLAHO ALANIS III to ABDULHAMID BALLAHO.
 SO ORDERED.
[G.R. No. 174689. October 19, 2007.]
ROMMEL JACINTO
DANTES SILVERIO,  petitioner,vs.REPUBLIC OF THE
PHILIPPINES,  respondent.
DECISION
CORONA,  J  p:
When God created man, He made him in the likeness of God;
He created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and
she heard voices coming from inside the bamboo. "Oh North Wind!
North Wind! Please let us out!," the voices said. She pecked the reed
once, then twice. All of a sudden, the bamboo cracked and slit open. Out
came two human beings; one was a male and the other was a female.
Amihan named the man "Malakas" (Strong) and the woman "Maganda"
(Beautiful).(The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In
particular, does the law recognize the changes made by a physician
using scalpel, drugs and counseling with regard to a person's sex?
May a person successfully petition for a change of name and sex
appearing in the birth certificate to reflect the result of a sex
reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto
Dantes Silverio filed a petition for the change of his first name and
sex in his birth certificate in the Regional Trial Court of Manila,
Branch 8. The petition, docketed as SP Case No. 02-105207,
impleaded the civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City
of Manila to the spouses Melecio Petines Silverio and Anita Aquino
Dantes on April 4, 1962. His name was registered as "Rommel
Jacinto Dantes Silverio" in his certificate of live birth (birth
certificate).His sex was registered as "male."
He further alleged that he is a male transsexual, that is,
"anatomically male but feels, thinks and acts as a female" and that
he had always identified himself with girls since childhood. 1 Feeling
trapped in a man's body, he consulted several doctors in the United
States. He underwent psychological examination, hormone
treatment and breast augmentation. His attempts to transform
himself to a "woman" culminated on January 27, 2001 when he
underwent sex reassignment surgery 2 in Bangkok, Thailand. He was
thereafter examined by Dr. Marcelino Reysio-Cruz, Jr.,a plastic and
reconstruction surgeon in the Philippines, who issued a medical
certificate attesting that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in fact
engaged to be married. He then sought to have his name in his birth
certificate changed from "Rommel Jacinto" to "Mely," and his sex
from "male" to "female."
 An order setting the case for initial hearing was published in
the People's Journal Tonight, a newspaper of general circulation in
Metro Manila, for three consecutive weeks. 3 Copies of the order
were sent to the Office of the Solicitor General (OSG) and the civil
registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements
were established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also
presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard P.
Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision 4 in
favor of petitioner. Its relevant portions read:
Petitioner filed the present petition not to
evade any law or judgment or any infraction thereof
or for any unlawful motive but solely for the purpose
of making his birth records compatible with his
present sex.
The sole issue here is whether or not
petitioner is entitled to the relief asked for.
The [c]ourt rules in the affirmative. SCEHaD
Firstly, the [c]ourt is of the opinion that
granting the petition would be more in consonance
with the principles of justice and equity. With his
sexual [re-assignment],petitioner, who has always
felt, thought and acted like a woman, now possesses
the physique of a female. Petitioner's misfortune to
be trapped in a man's body is not his own doing and
should not be in any way taken against him.
Likewise, the [c]ourt believes that no harm,
injury [or] prejudice will be caused to anybody or the
community in granting the petition. On the contrary,
granting the petition would bring the much-awaited
happiness on the part of the petitioner and her
[fiancé] and the realization of their dreams.
Finally, no evidence was presented to show
any cause or ground to deny the present petition
despite due notice and publication thereof. Even the
State, through the [OSG] has not seen fit to interpose
any [o]pposition.
WHEREFORE, judgment is hereby rendered
GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries appearing in
the Certificate of Birth of [p]etitioner, specifically for
petitioner's first name from "Rommel Jacinto"
to  MELY  and petitioner's gender from "Male"
to  FEMALE. 5
On August 18, 2003, the Republic of the Philippines
(Republic),thru the OSG, filed a petition for certiorari in the Court of
Appeals. 6 It alleged that there is no law allowing the change of
entries in the birth certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals 7 rendered a
decision 8 in favor of the Republic. It ruled that the trial court's
decision lacked legal basis. There is no law allowing the change of
either name or sex in the certificate of birth on the ground of sex
reassignment through surgery. Thus, the Court of Appeals granted
the Republic's petition, set aside the decision of the trial court and
ordered the dismissal of SP Case No. 02-105207. Petitioner moved
for reconsideration but it was denied. 9 Hence, this petition.
Petitioner essentially claims that the change of his name
and sex in his birth certificate is allowed under Articles 407 to 413 of
the Civil Code, Rules 103 and 108 of the Rules of Court and RA
9048. 10
The petition lacks merit. AEScHa
A PERSON'S FIRST NAME
CANNOT BE CHANGED ON THE
GROUND OF SEX REASSIGNMENT
 Petitioner invoked his sex reassignment as the ground for
his petition for change of name and sex. As found by the trial court:
Petitioner filed the present petition not to
evade any law or judgment or any infraction thereof
or for any unlawful motive but solely for the
purpose of making his birth records compatible
with his present sex.(emphasis supplied)
Petitioner believes that after having acquired the physical
features of a female, he became entitled to the civil registry changes
sought. We disagree.
The State has an interest in the names borne by individuals
and entities for purposes of identification. 11 A change of name is a
privilege, not a right. 12 Petitions for change of name are controlled
by statutes. 13 In this connection, Article 376 of the Civil
Code provides:
ART. 376. No person can change his name or
surname without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical
Error Law). In particular, Section 1 of RA 9048 provides:
SECTION 1.  Authority to Correct Clerical or
Typographical Error and Change of First Name or
Nickname.— No entry in a civil register shall be
changed or corrected without a judicial order, except
for clerical or typographical errors and change of first
name or nickname which can be corrected or
changed by the concerned city or municipal civil
registrar or consul general in accordance with the
provisions of this Act and its implementing rules and
regulations.
RA 9048 now governs the change of first name. 14 It vests
the power and authority to entertain petitions for change of first
name to the city or municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction over applications
for change of first name is now primarily lodged with the
aforementioned administrative officers. The intent and effect of the
law is to exclude the change of first name from the coverage of
Rules 103 (Change of Name) and 108 (Cancellation or Correction of
Entries in the Civil Registry) of the Rules of Court,until and unless an
administrative petition for change of name is first filed and
subsequently denied. 15 It likewise lays down the corresponding
venue, 16 form 17 and procedure. In sum, the remedy and the
proceedings regulating change of first name are primarily
administrative in nature, not judicial. AcDaEH
RA 9048 likewise provides the grounds for which change of
first name may be allowed:
SECTION 4.  Grounds for Change of First Name
or Nickname.— The petition for change of first name
or nickname may be allowed in any of the following
cases:
(1) The petitioner finds the first name or
nickname to be ridiculous, tainted
with dishonor or extremely difficult
to write or pronounce;
(2) The new first name or nickname has been
habitually and continuously used by
the petitioner and he has been
publicly known by that first name or
nickname in the community; or
(3) The change will avoid confusion.
Petitioner's basis in praying for the change of his first name
was his sex reassignment. He intended to make his first name
compatible with the sex he thought he transformed himself into
through surgery. However, a change of name does not alter one's
legal capacity or civil status. 18 RA 9048 does not sanction a change
of first name on the ground of sex reassignment. Rather than
avoiding confusion, changing petitioner's first name for his declared
purpose may only create grave complications in the civil registry and
the public interest.
 Before a person can legally change his given name, he must now applies only to substantial changes and corrections in entries in
present proper or reasonable cause or any compelling reason the civil register. 23
justifying such change. 19 In addition, he must show that he will be
Section 2 (c) of RA 9048 defines what a "clerical or
prejudiced by the use of his true and official name. 20 In this case,
typographical error" is:
he failed to show, or even allege, any prejudice that he might suffer
as a result of using his true and official name. SECTION 2.  Definition of Terms.— As used in
this Act, the following terms shall mean:
In sum, the petition in the trial court in so far as it prayed
for the change of petitioner's first name was not within that court's xxx xxx xxx
primary jurisdiction as the petition should have been filed with the
(3) "Clerical or typographical error" refers to
local civil registrar concerned, assuming it could be legally done. It
a mistake committed in the
was an improper remedy because the proper remedy was
performance of clerical work in
administrative, that is, that provided under RA 9048. It was also filed
writing, copying, transcribing or
in the wrong venue as the proper venue was in the Office of the Civil
typing an entry in the civil register
Registrar of Manila where his birth certificate is kept. More
that is harmless and innocuous,
importantly, it had no merit since the use of his true and official
such as misspelled name or
name does not prejudice him at all. For all these reasons, the Court
misspelled place of birth or the like,
of Appeals correctly dismissed petitioner's petition in so far as the
which is visible to the eyes or
change of his first name was concerned. EACTSH
obvious to the understanding, and
NO LAW ALLOWS THE can be corrected or changed only by
CHANGE OF ENTRY IN THE reference to other existing record or
BIRTH CERTIFICATE AS TO records:  Provided, however,That
SEX ON THE GROUND OF SEX no correction must involve the
REASSIGNMENT change of nationality, age, status
or sex of the petitioner. (emphasis
The determination of a person's sex appearing in his birth
supplied)
certificate is a legal issue and the court must look to the
statutes. 21 In this connection, Article 412 of the Civil Code provides: Under RA 9048, a correction in the civil registry involving the
ART. 412. No entry in the civil register shall change of sex is not a mere clerical or typographical error. It is a
be changed or corrected without a judicial order. substantial change for which the applicable procedure is Rule 108 of
the Rules of Court. AIDcTE
Together with Article 376 of the Civil Code, this provision
The entries envisaged in Article 412 of the Civil Code and
was amended by RA 9048 in so far as clerical or typographical  errors
correctable under Rule 108 of the Rules of Court are those provided
are involved. The correction or change of such matters can now be
in Articles 407 and 408 of the Civil Code: 24
made through administrative proceedings and without the need for
a judicial order. In effect, RA 9048 removed from the ambit of Rule ART. 407. Acts, events and judicial decrees
108 of the Rules of Court the correction of such errors. 22 Rule 108 concerning the civil status of persons shall be
recorded in the civil register.
 ART. 408. The following shall be entered in
the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under
Article 407 of the Civil Code include even those that occur after
birth. 25 However, no reasonable interpretation of the provision can
justify the conclusion that it covers the correction on the ground of
sex reassignment.
To correct simply means "to make or set aright; to remove
the faults or error from“ while to change means "to replace
something with something else of the same kind or with something
that serves as a substitute." 26 The birth certificate of petitioner
contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No
correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil
registry of certain acts (such as legitimations, acknowledgments of
illegitimate children and naturalization),events (such as births,
marriages, naturalization and deaths) and  judicial decrees (such as
legal separations, annulments of marriage, declarations of nullity of
marriages, adoptions, naturalization, loss or recovery of citizenship,
civil interdiction, judicial determination of filiation and changes of
name).These acts, events and judicial decrees produce legal
consequences that touch upon the legal capacity, status and
nationality of a person. Their effects are expressly sanctioned by the
laws. In contrast, sex reassignment is not among those acts or
events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal
situation (that is, the sum total of capacities and incapacities) of a
person in view of his age, nationality and his family
membership. 27 DHaEAS
The status of a person in law includes all his
personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at
his own will,such as his being legitimate or
illegitimate, or his being married or not. The
comprehensive term  status ... include such matters as
the beginning and end of legal personality, capacity
to have rights in general, family relations, and its
various aspects, such as birth, legitimation, adoption,
emancipation, marriage, divorce, and sometimes
even succession. 28 (emphasis supplied)
A person's sex is an essential factor in marriage and family
relations. It is a part of a person's legal capacity and civil status. In
this connection, Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the
registration of civil status shall be governed by special
laws.
But there is no such special law in the Philippines governing
sex reassignment and its effects. This is fatal to petitioner's cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law)
provides:
SEC. 5. Registration and certification of births.
— The declaration of the physician or midwife in
attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child,
shall be sufficient for the registration of a birth in the
civil register. Such declaration shall be exempt from
documentary stamp tax and shall be sent to the local
civil registrar not later than thirty days after the birth,
by the physician or midwife in attendance at the birth
or by either parent of the newborn child.
 In such declaration, the person above
mentioned shall certify to the following facts: (a) date
and hour of birth; (b) sex and nationality of infant;(c)
names, citizenship and religion of parents or, in case
the father is not known, of the mother alone; (d) civil
status of parents; (e) place where the infant was
born; and (f) such other data as may be required in
the regulations to be issued. AScHCD
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical
record of the facts as they existed at the time of birth. 29 Thus, the
sex of a person is determined at birth,visually done by the birth
attendant (the physician or midwife) by examining the genitals of the
infant. Considering that there is no law legally recognizing sex
reassignment, the determination of a person's sex made at the time
of his or her birth, if not attended by error, 30 is immutable. 31
When words are not defined in a statute they are to be
given their common and ordinary meaning in the absence of a
contrary legislative intent. The words "sex," "male" and "female" as
used in the Civil Register Law and laws concerning the civil registry
(and even all other laws) should therefore be understood in their
common and ordinary usage, there being no legislative intent to the
contrary. In this connection, sex is defined as "the sum of
peculiarities of structure and function that distinguish a male from a
female" 32 or "the distinction between male and female." 33 Female
is "the sex that produces ova or bears young" 34 and male is "the
sex that has organs to produce spermatozoa for fertilizing
ova." 35 Thus, the words "male" and "female" in everyday
understanding do not include persons who have undergone sex
reassignment. Furthermore, "words that are employed in a statute
which had at the time a well-known meaning are presumed to have
been used in that sense unless the context compels to the
contrary." 36 Since the statutory language of the Civil Register
Law was enacted in the early 1900s and remains unchanged, it
cannot be argued that the term "sex" as used then is something
alterable through surgery or something that allows a post-operative
male-to-female transsexual to be included in the category
"female." DCTHaS
For these reasons, while petitioner may have succeeded in
altering his body and appearance through the intervention of
modern surgery, no law authorizes the change of entry as to sex in
the civil registry for that reason. Thus, there is no legal basis for his
petition for the correction or change of the entries in his birth
certificate.
NEITHER MAY ENTRIES IN THE BIRTH
CERTIFICATE AS TO FIRST NAME OR
SEX BE CHANGED ON THE GROUND OF
EQUITY
The trial court opined that its grant of the petition was in
consonance with the principles of justice and equity. It believed that
allowing the petition would cause no harm, injury or prejudice to
anyone. This is wrong.
The changes sought by petitioner will have serious and
wide-ranging legal and public policy consequences. First, even the
trial court itself found that the petition was but petitioner's first step
towards his eventual marriage to his male fiancé. However,
marriage, one of the most sacred social institutions, is a special
contract of permanent union between a man and a woman. 37 One of
its essential requisites is the legal capacity of the contracting parties
who must be a male and a female. 38 To grant the changes sought by
petitioner will substantially reconfigure and greatly alter the laws on
marriage and family relations. It will allow the union of a man with
another man who has undergone sex reassignment (a male-to-
female post-operative transsexual). Second, there are various laws
which apply particularly to women such as the provisions of
the Labor Code on employment of women, 39 certain felonies under
the Revised Penal Code 40 and the presumption of survivorship in
case of calamities under Rule 131 of the Rules of Court,41 among
others. These laws underscore the public policy in relation to women
which could be substantially affected if petitioner's petition were to
be granted.
 It is true that Article 9 of the Civil Code mandates that "[n]o |||  (Silverio v. Republic, G.R. No. 174689, [October 19, 2007], 562 PHIL 953-
judge or court shall decline to render judgment by reason of the 974)
silence, obscurity or insufficiency of the law." However, it is not a
license for courts to engage in judicial legislation. The duty of the
courts is to apply or interpret the law, not to make or amend it.

In our system of government, it is for the legislature, should

it choose to do so, to determine what guidelines should govern the
recognition of the effects of sex reassignment. The need for
legislative guidelines becomes particularly important in this case
where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for

change of first name and for correction or change of entries in the
civil registry, where they may be filed, what grounds may be invoked,
what proof must be presented and what procedures shall be
observed. If the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change his name and
sex to conform with his reassigned sex, it has to enact legislation
laying down the guidelines in turn governing the conferment of that
privilege.

It might be theoretically possible for this Court to write a

protocol on when a person may be recognized as having
successfully changed his sex. However, this Court has no authority
to fashion a law on that matter, or on anything else. The Court
cannot enact a law where no law exists. It can only apply or interpret
the written word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled

to a life of happiness, contentment and [the] realization of their
dreams." No argument about that. The Court recognizes that there
are people whose preferences and orientation do not fit neatly into
the commonly recognized parameters of social convention and that,
at least for them, life is indeed an ordeal. However, the remedies
petitioner seeks involve questions of public policy to be addressed
solely by the legislature, not by the courts. AaCTID

WHEREFORE, the petition is hereby DENIED.


[G.R. No. 154598. August 16, 2004.]
IN THE MATTER OF APPLICATION FOR THE
ISSUANCE OF A WRIT OF HABEAS CORPUS
RICHARD BRIAN THORNTON for and in behalf of
the minor child SEQUEIRA JENNIFER DELLE
FRANCISCO THORNTON,  petitioner,  vs. ADELFA
FRANCISCO THORNTON,  respondent.
DECISION
CORONA,  J  p:
This is a petition to review, under Rule 45 of the Rules of Court,
the July 5, 2002 resolution 1 of the Court of Appeals, Sixteenth Division,
in CA G.R. SP No. 70501 dismissing the petition for habeas corpus on the
grounds of lack of jurisdiction and lack of substance. The dispositive
portion 2 read:
WHEREFORE, the Court DISMISSES the
petition for habeas corpus on the grounds that: a)
this Court has no jurisdiction over the subject matter
of the petition; and b) the petition is not sufficient in
substance.
Petitioner, an American, and respondent, a Filipino, were
married on August 28, 1998 in the Catholic Evangelical Church at United
Nations Avenue, Manila. A year later, respondent gave birth to a baby girl
whom they named Sequeira Jennifer Delle Francisco Thornton.
However, after three years, respondent grew restless and bored
as a plain housewife. She wanted to return to her old job as a "guest
relations officer" in a nightclub, with the freedom to go out with her
friends. In fact, whenever petitioner was out of the country, respondent
was also often out with her friends, leaving her daughter in the care of
the househelp.
Petitioner admonished respondent about her irresponsibility
but she continued her carefree ways. On December 7, 2001, respondent
left the family home with her daughter Sequiera without notifying her
husband. She told the servants that she was bringing Sequiera to Purok
Marikit, Sta. Clara, Lamitan, Basilan Province.
Petitioner filed a petition for habeas corpus in the designated
Family Court in Makati City but this was dismissed, presumably because
of the allegation that the child was in Basilan. Petitioner then went to
Basilan to ascertain the whereabouts of respondent and their daughter.
However, he did not find them there and the barangay office of Sta.
Clara, Lamitan, Basilan, issued a certification 3 that respondent was no
longer residing there. IEaHSD
Petitioner gave up his search when he got hold of respondent's
cellular phone bills showing calls from different places such as Cavite,
Nueva Ecija, Metro Manila and other provinces. Petitioner then filed
another petition for habeas corpus, this time in the Court of Appeals
which could issue a writ of habeas corpus enforceable in the entire
country.
However, the petition was denied by the Court of Appeals on
the ground that it did not have jurisdiction over the case. It ruled that
since RA 8369 (The Family Courts Act of 1997) gave family courts
exclusive original jurisdiction over petitions for habeas corpus, it
impliedly repealed RA 7902 (An Act Expanding the Jurisdiction of the
Court of Appeals) and Batas Pambansa 129 (The Judiciary Reorganization
Act of 1980):
Under Sec. 9(1), BP 129 (1981) the
Intermediate Appellate Court (now Court of Appeals)
has jurisdiction to issue a writ of habeas corpus
whether or not in aid of its appellate jurisdiction. This
conferment of jurisdiction was re-stated in Sec. 1, RA
7902 (1995), an act expanding the jurisdiction of this
Court. This jurisdiction finds its procedural
expression in Sec. 1, Rule 102 of the Rules of Court.
In 1997, RA 8369 otherwise known as Family
Courts Act was enacted. It provides:
Sec. 5. Jurisdiction of Family Court. —
The Family Courts shall have exclusive
original jurisdiction to hear and decide the
following cases:
xxx xxx xxx
b. Petition for guardianship, custody
of children, habeas corpus in
relation to the latter.
The vital question is, did RA 8369 impliedly
repeal BP 129 and RA 7902 insofar as the jurisdiction
of this Court to issue writ of habeas corpus in custody
of minor cases is concerned? The simple answer is,
yes, it did, because there is no other meaning of the
word "exclusive" than to constitute the Family Court
as the sole court which can issue said writ. If a court
other than the Family Court also possesses the same
competence, then the jurisdiction of the former is not
exclusive but concurrent — and such an
interpretation is contrary to the simple and clear
wording of RA 8369.
Petitioner argues that unless this Court
assumes jurisdiction over a petition for habeas
corpus involving custody of minors, a respondent can
easily evade the service of a writ of habeas corpus on
him or her by just moving out of the region over
which the Regional Trial Court issuing the writ has
territorial jurisdiction. That may be so but then
jurisdiction is conferred by law. In the absence of a
law conferring such jurisdiction in this Court, it
cannot exercise it even if it is demanded by
expediency or necessity.
Whether RA 8369 is a good or unwise law is
not within the authority of this Court — or any court
for that matter — to determine. The enactment of a
law on jurisdiction is within the exclusive domain of
the legislature. When there is a perceived defect in
the law, the remedy is not to be sought from the
courts but only from the legislature.
The only issue before us therefore is whether the Court of
Appeals has jurisdiction to issue writs of habeas corpus in cases
involving custody of minors in the light of the provision in RA 8369 giving
family courts exclusive original jurisdiction over such petitions. TIcAaH
In his comment, the Solicitor General points out that Section 20
of the Rule on Custody of Minors and Writ of Habeas Corpus in Relation
to Custody of Minors (A.M. No. 03-04-04-SC, effective May 15, 2003) has
rendered the issue moot. Section 20 of the rule provides that a petition
for habeas corpus may be filed in the Supreme Court, 4 Court of
Appeals, or with any of its members and, if so granted, the writ shall be
enforceable anywhere in the Philippines. 5
The petition is granted.
 The Court of Appeals should take cognizance of the case since
there is nothing in RA 8369 that revoked its jurisdiction to issue writs of
habeas corpus involving the custody of minors.
The Court of Appeals opines that RA 8369 impliedly repealed RA
7902 and BP 129 since, by giving family courts exclusive jurisdiction over
habeas corpus cases, the lawmakers intended it to be the sole court
which can issue writs of habeas corpus. To the court a quo, the word
"exclusive" apparently cannot be construed any other way.
We disagree with the CA's reasoning because it will result in an
iniquitous situation, leaving individuals like petitioner without legal
recourse in obtaining custody of their children. Individuals who do not
know the whereabouts of minors they are looking for would be helpless
since they cannot seek redress from family courts whose writs are
enforceable only in their respective territorial jurisdictions. Thus, if a
minor is being transferred from one place to another, which seems to be
the case here, the petitioner in a habeas corpus case will be left without
legal remedy. This lack of recourse could not have been the intention of
the lawmakers when they passed the Family Courts Act of 1997. As
observed by the Solicitor General: aECSHI
Under the Family Courts Act of 1997 , the
avowed policy of the State is to "protect the rights
and promote the welfare of children." The creation of
the Family Court is geared towards addressing three
major issues regarding children's welfare cases, as
expressed by the legislators during the deliberations
for the law. The legislative intent behind giving Family
Courts exclusive and original jurisdiction over such
cases was to avoid further clogging of regular court
dockets, ensure greater sensitivity and specialization
in view of the nature of the case and the parties, as
well as to guarantee that the privacy of the children
party to the case remains protected.
The primordial consideration is the welfare and best interests of
the child. We rule therefore that RA 8369 did not divest the Court of
Appeals and the Supreme Court of their jurisdiction over habeas corpus
cases involving the custody of minors. Again, to quote the Solicitor
General:
To allow the Court of Appeals to exercise
jurisdiction over the petition for habeas corpus
involving a minor child whose whereabouts are
uncertain and transient will not result in one of the
situations that the legislature seeks to avoid. First, the
welfare of the child is paramount. Second, the ex
parte nature of habeas corpus proceedings will not
result in disruption of the child's privacy and
emotional well-being; whereas to deprive the
appellate court of jurisdiction will result in the evil
sought to be avoided by the legislature: the child's
welfare and well being will be prejudiced.
This is not the first time that this Court construed the word
"exclusive" as not foreclosing resort to another jurisdiction. As correctly
cited by the Solicitor General, in Floresca vs. Philex Mining
Corporation, 6 the heirs of miners killed in a work-related accident were
allowed to file suit in the regular courts even if, under the Workmen's
Compensation Act, the Workmen's Compensation Commissioner had
exclusive jurisdiction over such cases.
We agree with the observations of the Solicitor General that:
While Floresca involved a cause of action
different from the case at bar, it supports petitioner's
submission that the word "exclusive" in the Family
Courts Act of 1997 may not connote automatic
foreclosure of the jurisdiction of other courts over
habeas corpus cases involving minors. In the same
manner that the remedies in the Floresca case were
selective, the jurisdiction of the Court of Appeals and
Family Court in the case at bar is concurrent. The
Family Court can issue writs of habeas corpus
enforceable only within its territorial jurisdiction. On
the other hand, in cases where the territorial
jurisdiction for the enforcement of the writ cannot be
 determined with certainty, the Court of Appeals can
issue the same writ enforceable throughout the
Philippines, as provided in Sec. 2, Rule 102 of
the Revised Rules of Court, thus:
The Writ of Habeas Corpus may be
granted by the Supreme Court, or any
member thereof, on any day and at any
time, or by the Court of Appeals or any
member thereof in the instances authorized by
law, and if so granted it shall be enforceable
anywhere in the Philippines, and may be made
returnable before the court or any member
thereof, or before a Court of First Instance,
or any judge thereof for hearing and
decision on the merits.  It may also be granted
by a Court of First Instance, or a judge thereof,
on any day and at any time, and returnable
before himself, enforceable only within his
judicial district. (Emphasis supplied)
In ruling that the Commissioner's "exclusive" jurisdiction did not
foreclose resort to the regular courts for damages, this Court, in the
same Floresca case, said that it was merely applying and giving effect to
the constitutional guarantees of social justice in the 1935 and 1973
Constitutions and implemented by the Civil Code. It also applied the well-
established rule that what is controlling is the spirit and intent, not the
letter, of the law:
"Idolatrous reverence" for the law sacrifices
the human being. The spirit of the law insures man's
survival and ennobles him. In the words of
Shakespeare, "the letter of the law killeth; its spirit
giveth life."
xxx xxx xxx
It is therefore patent that giving effect to the
social justice guarantees of the Constitution, as
implemented by the provisions of the New Civil Code,
is not an exercise of the power of law-making, but is
rendering obedience to the mandates of the
fundamental law and the implementing legislation
aforementioned.
Language is rarely so free from ambiguity as to be incapable of
being used in more than one sense. Sometimes, what the legislature
actually had in mind is not accurately reflected in the language of a
statute, and its literal interpretation may render it meaningless, lead to
absurdity, injustice or contradiction. 7 In the case at bar, a literal
interpretation of the word "exclusive" will result in grave injustice and
negate the policy "to protect the rights and promote the welfare of
children" 8 under the Constitution and the United Nations Convention
on the Rights of the Child. This mandate must prevail over legal
technicalities and serve as the guiding principle in construing the
provisions of RA 8369.
Moreover, settled is the rule in statutory construction that
implied repeals are not favored:
The two laws must be absolutely
incompatible, and a clear finding thereof must
surface, before the inference of implied repeal may
be drawn. The rule is expressed in the
maxim, interpretare et concordare leqibus est optimus
interpretendi, i.e., every statute must be so
interpreted and brought into accord with other laws
as to form a uniform system of jurisprudence. The
fundament is that the legislature should be
presumed to have known the existing laws on the
subject and not have enacted conflicting statutes.
Hence, all doubts must be resolved against any
implied repeal, and all efforts should be exerted in
order to harmonize and give effect to all laws on the
subject." 9
 The provisions of RA 8369 reveal no manifest intent to revoke which the Court of Appeals cited as a ground for dismissing the petition.
the jurisdiction of the Court of Appeals and Supreme Court to issue writs As explained by the Solicitor General: 10
of habeas corpus relating to the custody of minors. Further, it cannot be
That the serving officer will have to "search
said that the provisions of RA 8369, RA 7092 and BP 129 are absolutely
for the child all over the country" does not represent
incompatible since RA 8369 does not prohibit the Court of Appeals and
an insurmountable or unreasonable obstacle, since
the Supreme Court from issuing writs of habeas corpus in cases
such a task is no more different from or difficult than
involving the custody of minors. Thus, the provisions of RA 8369 must be
the duty of the peace officer in effecting a warrant of
read in harmony with RA 7029 and BP 129 — that family courts have
arrest, since the latter is likewise enforceable
concurrent jurisdiction with the Court of Appeals and the Supreme Court
anywhere within the Philippines.
in petitions for habeas corpus where the custody of minors is at issue.
WHEREFORE, the petition is hereby GRANTED. The petition for
In any case, whatever uncertainty there was has been settled
habeas corpus in CA-G.R.-SP-No. 70501 is hereby REINSTATED and
with the adoption of A.M. No. 03-04-04-SC Re: Rule on Custody of Minors
REMANDED to the Court of Appeals, Sixteenth Division.
and Writ of Habeas Corpus in Relation to Custody of Minors. Section 20
of the rule provides that: SO ORDERED.
Section 20. Petition for writ of habeas corpus. |||  (Thornton v. Thornton, G.R. No. 154598, [August 16, 2004], 480 PHIL
— A verified petition for a writ of habeas corpus 224-235)
involving custody of minors shall be filed with the
Family Court. The writ shall be enforceable within its
judicial region to which the Family Court belongs.

xxx xxx xxx

The petition may likewise be filed with the

Supreme Court, Court of Appeals, or with any of its
members and, if so granted, the writ 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 merits. (Emphasis Ours)

From the foregoing, there is no doubt that the Court of Appeals

and Supreme Court have concurrent jurisdiction with family courts in
habeas corpus cases where the custody of minors is involved. IEAaST

One final note. Requiring the serving officer to search for the
child all over the country is not an unreasonable availment of a remedy

[G.R. No. 210636. July 28, 2014.]
MA. HAZELINA A. TUJAN-MILITANTE IN BEHALF OF
THE MINOR CRISELDA M. CADA,  petitioner, vs.
RAQUEL M. CADA-DEAPERA,  respondent.
DECISION
VELASCO, JR., J  p:
Nature of the Case
Before Us is a petition for review on certiorari under Rule 45 of
the Rules of Court with prayer for injunctive relief seeking the reversal of
the Court of Appeals (CA) Decision 1 dated May 17, 2013 as well as its
Resolution dated December 27, 2013 in CA-G.R. SP No. 123759. In the
main, petitioner questions the jurisdiction of the Regional Trial Court,
Branch 130 in Caloocan City (RTC-Caloocan) to hear and decide a special
civil action for habeas corpus in relation to the custody of a minor
residing in Quezon City.
The Facts
On March 24, 2011, respondent Raquel M. Cada-Deapera filed
before the RTC-Caloocan a verified petition for writ of habeas corpus,
docketed as Special Civil Action Case No. C-4344. In the said petition,
respondent demanded the immediate issuance of the special writ,
directing petitioner Ma. Hazelina Tujan-Militante to produce before the
court respondent's biological daughter, minor Criselda M. Cada
(Criselda), and to return to her the custody over the child. Additionally,
respondent indicated that petitioner has three (3) known addresses
where she can be served with summons and other court processes, to
wit: (1) 24 Bangkal St., Amparo Village, Novaliches, Caloocan City; (2)
118B K9 Street, Kamias, Quezon City; and (3) her office at the
Ombudsman-Office of the Special Prosecutor, 5th Floor, Sandiganbayan,
Centennial Building, Commonwealth Avenue cor. Batasan Road, Quezon
City. 2 CaTSEA
The next day, on March 25, 2011, the RTC-Caloocan issued a writ
of habeas corpus, ordering petitioner to bring the child to court on
March 28, 2011. Despite diligent efforts and several attempts, however,
the Sheriff was unsuccessful in personally serving petitioner copies of
the habeas corpus petition and of the writ. Instead, on March 29, 2011,
the Sheriff left copies of the court processes at petitioner's Caloocan
residence, as witnessed by respondent's counsel
and barangay officials. 3 Nevertheless, petitioner failed to appear at the
scheduled hearings before the RTC-Caloocan.
Meanwhile, on March 31, 2011, petitioner filed a Petition for
Guardianship over the person of Criselda before the RTC, Branch 89 in
Quezon City (RTC-Quezon City). Respondent filed a Motion to Dismiss the
petition for guardianship on the ground of litis pendentia, among others.
Thereafter, or on June 3, 2011, respondent filed a criminal case for
kidnapping before the Office of the City Prosecutor — Quezon City
against petitioner and her counsel.
On July 12, 2011, the RTC-Quezon City granted respondent's
motion and dismissed the guardianship case due to the pendency of
the habeas corpus  petition before RTC-Caloocan. 4 The  fallo  of the Order
reads:
WHEREFORE, in view of the foregoing, the
subject motion is hereby GRANTED. Accordingly, the
case is hereby DISMISSED.
SO ORDERED. 5
Then, on August 4, 2011, Raquel moved for the ex parte issuance
of an alias writ of habeas corpus before the RTC-Caloocan, which was
granted by the trial court on August 8, 2011. On even date, the court
directed the Sheriff to serve the alias writ upon petitioner at the Office of
the Assistant City Prosecutor of Quezon City on August 10, 2011. 6 In
compliance, the Sheriff served petitioner the August 8, 2011 Order as
well as the Alias Writ during the preliminary investigation of the
kidnapping case. 7
Following this development, petitioner, by way of special
appearance, moved for the quashal of the writ and prayed before the
RTC Caloocan for the dismissal of the habeas corpus petition, 8 claiming,
among others, that she was not personally served with summons. Thus,
as argued by petitioner, jurisdiction over her and Criselda's person was
not acquired by the RTC-Caloocan.
Ruling of the Trial Court
On January 20, 2012, the RTC-Caloocan issued an Order denying
petitioner's omnibus motion, citing Saulo v. Brig. Gen. Cruz, 9 where the
Court held that a writ of habeas corpus, being an extraordinary process
requiring immediate proceeding and action, plays a role somewhat
comparable to a summons in ordinary civil actions, in that, by service of
said writ, the Court acquires jurisdiction over the person of the
respondent, as petitioner herein. 10
Moreover, personal service, the RTC said, does not necessarily
require that service be made exclusively at petitioner's given address, for
service may be made elsewhere or wherever she may be found for as
long as she was handed a copy of the court process in person by anyone
authorized by law. Since the sheriff was able to personally serve
petitioner a copy of the writ, albeit in Quezon City, the RTC-Caloocan
validly acquired jurisdiction over her person. 11 The dispositive portion
of the Order reads: aHICDc
WHEREFORE, premises considered, the Very
Urgent Motion (Motion to Quash Alias Writ; Motion to
Dismiss) filed by respondent Ma. Hazelina Tujan-
Militante dated August 11, 2011 is hereby DENIED for
lack of merit.
In the meantime, respondent Ma. Hazelina
Tujan-Militante is hereby directed to appear and
bring Criselda Martinez Cada before this Court on
February 10, 2012 at 8:30 o'clock in the morning.
SO ORDERED. 12
Aggrieved, petitioner, via certiorari to the CA, assailed the issued
Order.
Ruling of the Court of Appeals
Over a year later, the CA, in the challenged Decision dated May
17, 2013, 13 dismissed the petition for certiorari in the following wise:
WHEREFORE, the instant petition is
hereby DISMISSED for lack of merit. The Regional
Trial Court, Branch 130 of Caloocan City
is DIRECTED to proceed with due dispatch in Spec.
Proc. Case No. C-4344 for Habeas Corpus, giving
utmost consideration to the best interest of the now
nearly 14-year old child.
SO ORDERED. 14
 In so ruling, the CA held that jurisdiction was properly laid when
respondent filed the habeas corpus petition before the designated
Family Court in Caloocan City. 15 It also relied on the certification issued
by the punong barangay of Brgy. 179, Caloocan City, stating that
petitioner is a bona fide resident thereof, as well as the medical
certificate issued by Criselda's doctor on April 1, 2011, indicating that her
address is "Amparo Village, KC." 16 Anent the RTC-Caloocan's
jurisdiction, the appellate court ruled that service of summons is not
required under Section 20 of A.M. No. 03-04-04-SC, otherwise known as
the  Rules on Custody of Minors and Habeas Corpus in Relation to Custody of
Minors. According to the CA, the rules on summons contemplated in
ordinary civil actions have no place in petitions for the issuance of a writ
of habeas corpus, it being a special proceeding. 17
Petitioner sought reconsideration of the above Decision but the
same was denied by the CA in its December 27, 2013 Resolution.
Hence, this Petition.
The Issues
At the core of this controversy is the issue of whether or not the
RTC-Caloocan has jurisdiction over the habeas corpus petition filed by
respondent and, assuming arguendo it does, whether or not it validly
acquired jurisdiction over petitioner and the person of Criselda. Likewise
pivotal is the enforceability of the writ issued by RTC-Caloocan in Quezon
City where petitioner was served a copy thereof.
The Court's Ruling
The petition lacks merit. The RTC-Caloocan correctly took
cognizance of the habeas corpus petition. Subsequently, it acquired
jurisdiction over petitioner when the latter was served with a copy of the
writ in Quezon City.
The RTC-Caloocan has jurisdiction
over the habeas corpus proceeding
Arguing that the RTC-Caloocan lacked jurisdiction over the case,
petitioner relies on Section 3 of A.M. No. 03-04-04-SC and maintains that
the habeas corpus petition should have been filed before the family
court that has jurisdiction over her place of residence or that of the
minor or wherever the minor may be found. 18 As to respondent, she
asserts, among others, that the applicable rule is not Section 3 but
Section 20 of A.M. No. 03-04-04-SC. 19
We find for respondent. IcSHTA
In the case at bar, what respondent filed was a petition for the
issuance of a writ of habeas corpus under Section 20 of A.M. No. 03-04-
04-SC and Rule 102 of the Rules of Court. 20 As provided:
Section 20. Petition for writ of habeas
corpus. — A verified petition for a writ of habeas
corpus involving custody of minors shall be filed
with the Family Court. The writ shall be
enforceable within its judicial region to which the
Family Court belongs.
However, the petition may be filed with the
regular court in the absence of the presiding judge of
the Family Court, provided, however, that the regular
court shall refer the case to the Family Court as soon
as its presiding judge returns to duty.
The petition may also be filed with the
appropriate regular courts in places where there are
no Family Courts.
The writ issued by the Family Court or the
regular court shall be enforceable in the judicial
region where they belong.
The petition may likewise be filed with the
Supreme Court, Court of Appeals, or with any of its
members and, if so granted, the writ 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 merits.
 Upon return of the writ, the court shall
decide the issue on custody of minors. The appellate
court, or the member thereof, issuing the writ shall
be furnished a copy of the decision. (emphasis
added)
Considering that the writ is made enforceable within a judicial
region, petitions for the issuance of the writ of habeas corpus, whether
they be filed under Rule 102 of the Rules of Court or pursuant to Section
20 of A.M. No. 03-04-04-SC, may therefore be filed with any of the proper
RTCs within the judicial region where enforcement thereof is
sought. 21 HcTEaA
On this point, Section 13 of Batas Pambansa Blg. 129 (BP 129),
otherwise known as the  Judiciary Reorganization Act of 1980, finds
relevance. Said provision, which contains the enumeration of judicial
regions in the country, states:
Section 13. Creation of Regional Trial Courts.
— There are hereby created thirteen Regional Trial
Courts, one for each of the following judicial regions:
can still be implemented in Quezon City. Whether petitioner resides in
the former or the latter is immaterial in view of the above rule.
Anent petitioner's insistence on the application of Section 3
of A.M. No. 03-04-04-SC, a plain reading of said provision reveals that the
provision invoked only applies to petitions for custody of minors, and not
to habeas corpus petitions. Thus:
Section 3. Where to file petition. —
The petition for custody of minors shall be filed
with the Family Court of the province or city where
the petitioner resides or where the minor may be
found. (emphasis added)
Lastly, as regards petitioner's assertion that the summons was
improperly served, suffice it to state that service of summons, to begin
with, is not required in a habeas corpus petition, be it under Rule 102 of
the Rules of Court or A.M. No. 03-04-04-SC. As held in Saulo v. Cruz, a writ
of habeas corpus plays a role somewhat comparable to a summons, in
ordinary civil actions, in that, by service of said writ, the court acquires
jurisdiction over the person of the respondent. 22

xxx xxx xxx In view of the foregoing, We need not belabor the other issues
raised. cHECAS
The National Capital Judicial Region,
consisting of the cities of Manila, Quezon, WHEREFORE, the instant petition is DENIED. The Court of
Pasay, Caloocan and Mandaluyong, and the Appeals Decision dated May 17, 2013 and its Resolution dated December
municipalities of Navotas, Malabon, San Juan, Makati, 27, 2013 are AFFIRMED.
Pasig, Pateros, Taguig, Marikina, Parañaque, Las
No pronouncement as to costs.
Piñas, Muntinlupa, and Valenzuela. (emphasis ours)
SO ORDERED.
In view of the afore-quoted provision, it is indubitable that the
filing of a petition for the issuance of a writ of habeas corpus before a |||  (Tujan-Militante v. Cada-Deapera, G.R. No. 210636, [July 28, 2014])
family court in any of the cities enumerated is proper as long as the writ
is sought to be enforced within the National Capital Judicial Region, as
here.

In the case at bar, respondent filed the petition before the

family court of Caloocan City. Since Caloocan City and Quezon City both
belong to the same judicial region, the writ issued by the RTC-Caloocan

[G.R. No. 139255. November 24, 2003.]
RAYMOND MICHAEL JACKSON,  petitioner, vs. HON.
FLORITO S. MACALINO, RUFUS B. RODRIGUEZ,
BUREAU OF IMMIGRATION, JOHN DOE and JANE
DOE,  respondents.
Singson Valdez & Associates  for petitioner.
SYNOPSIS
Raymond Michael Jackson, an American national, filed a
petition for habeas corpus against the Commissioner of the
Commission on Immigration and Deportation (CID), John Doe and
Jane Doe. The trial court, however, dismissed the said petition on the
ground that based on the return of the respondents, the petitioner
was arrested and detained at the CID on the basis of the summary
deportation order issued by the Board of Commissioners (BOC) on
December 11, 1997 and of the hold departure order of the Makati
Regional Trial Court (RTC) in Criminal Case No. 98-1155, and that the
said petition for habeas corpus was premature as there was a
pending petition to lift the summary deportation order before the
BOC filed by petitioner. Dissatisfied, petitioner filed the instant
petition for  certiorari.
In dismissing the petition, the Court ruled that Section 13 of
Rule 102 of the Rules of Court, as amended; provides that if it
appears that the detained person 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. In this
case, based on the return of the writ by the respondents, the
petitioner was arrested and detained at the CID detention center at
Bicutan, Parañaque City, under Mission Order No. RBR-99-164 dated
May 21, 1999 based on the Order of the BOC dated December 11,
1997 which had become final and executory. Thus, the petitioner's
arrest and detention are in accord with Section 45(d) in relation to
Section 37 (a)(9) of the Philippine Immigration Act of 1940.
Moreover, the petitioner, in his motion for reconsideration
filed with the CID, offered to post a bail bond for his provisional
release to enable him to secure the necessary documents to
establish the appropriate grounds for his permanent stay in the
Philippines. By offering to post a bail bond, the petitioner thereby
admitted that he was under the custody of the CID and voluntarily
accepted the jurisdiction of the CID.
 SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDINGS; HABEAS CORPUS;
A WRIT OF INQUIRY AND IS GRANTED TO TEST THE RIGHT UNDER
WHICH A PERSON IS DETAINED. — Section 1, Rule 102 of the Rules of
Court, as amended, provides that "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." The ultimate purpose of the writ
of habeas corpus is to relieve a person from unlawful restraint. It is
essentially a writ of inquiry and is granted to test the right under
which he is detained.
2. ID.; ID.; ID.; EVEN IF THE ARREST OF A PERSON IS ILLEGAL,
SUPERVENING EVENTS MAY BAR HIS RELEASE OR DISCHARGE FROM
CUSTODY. — 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 same
supervening events such as the instances mentioned in Section 4,
Rule 102, be no longer illegal at the time of the filing of the
application. Any such supervening events are the issuance of a
judicial process preventing the discharge of the detained person.
3. ID.; ID.; ID.; BURDEN OF PROVING ILLEGAL RESTRAINT
RESTS ON THE PETITIONER WHO ATTACHES SUCH RESTRAINTS. —
As a general rule, the burden of proving illegal restraint by the
respondents rests on the petitioner who attaches such restraints.
Whether the return sets forth process where on its face shows good
ground for the detention of the petitioner, it is incumbent on him to
allege and prove new matter that tends to invalidate the apparent
effects of such process.
4. IID.; ID.; ID.; RETURN OF THE RESPONDENT SHALL BE
CONSIDERED PRIMA FACIE EVIDENCE OF THE CAUSE OF RESTRAINT. —
Section 13 of Rule 102 of the Rules of Court, as amended, provides
that if it appears that the detained person 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.
5. ADMINISTRATIVE LAW; PHILIPPINE IMMIGRATION ACT OF
1940; DOCUMENTS FROM FOREIGN EMBASSY ATTESTING TO THE
CANCELLATION OF THE PASSPORTS HELD BY THEIR NATIONAL,
SUFFICIENT GROUNDS FOR THE ARREST AND DEPORTATION OF
ALIENS FROM THE PHILIPPINES. — In Tung Chin Hui v. Rodriguez, this
Court held that such documents from a foreign embassy attesting to
the cancellation of the passports held by their national on the
ground that the said passports were tampered with; hence,
cancelled were sufficient grounds for the arrest and deportation of
aliens from the Philippines[.]
6. ID.; ID.; DUE PROCESS; VIOLATION THEREOF IS NEGATED
BY THE FILING OF THE MOTION FOR RECONSIDERATION BY THE
PETITIONER. — The petitioner cannot feign ignorance of the charges
against him in the CID and insist on being deprived by the BOC of his
right to due process as prescribed for in Section 37(c) of
the Philippine Immigration Act of 1940[.] . . . This is so because on
October 1, 1998, the petitioner filed a motion with the CID for the
reconsideration of the December 11, 1997 Order of the BOC. The
petitioner did not allege therein that he was not informed of the
charges against him. In fact, the petitioner did not even rebut the
claim of the U.S. Vice Consul that the passport he was carrying was
tampered and had been already cancelled. Neither did he allege that
he requested for the reinstatement of his passport with the United
States Embassy. Despite the finality of the deportation order of the
BOC, it still entertained the petitioner's motion for reconsideration
but denied the same on its findings that there were inconsistencies
in his sworn statement and the documents he presented in support
of his motion[.]
7. REMEDIAL LAW; SPECIAL PROCEEDINGS; HABEAS CORPUS;
BY OFFERING TO POST A BAIL BOND, PETITIONER VOLUNTARILY
ACCEPTED THE JURISDICTION OF THE COMMISSION ON
IMMIGRATION AND DEPORTATION; CASE AT BAR. — Moreover, the
petitioner, in his motion for reconsideration with the CID, offered to
post a bail bond for his provisional release to enable him to secure
the necessary documents to establish the appropriate grounds for
his permanent stay in the Philippines. By offering to post a bail
bond, the petitioner thereby admitted that he was under the
custody of the CID and voluntarily accepted the jurisdiction of the
CID.
DECISION
CALLEJO, SR.,  J  p:
This is a petition for certiorari under Rule 65 of the Rules of
Court, as amended, for the reversal of the Decision 1 of the Regional
Trial Court (RTC) of Pasay City, Branch 267, in Special Proceedings
No. 10948 dismissing the petition for habeas corpus filed by the
petitioner.
The Antecedents
SPO3 Rodolfo M. Villaceran of the Philippine National Police
(PNP) filed an application with the RTC of Angeles City, Pampanga,
for the issuance of a search warrant against petitioner Raymond M.
Jackson, an American citizen, a.k.a. Allen Miller, and Jaime C. Bueta
for the search of the articles listed therein at No. 17-21 Apple Street,
Hensonville Homes, Balibago, Angeles City, and the seizure thereof
for violation of Article 176 of the Revised Penal Code. 2 Judge
Bernardita G. Erum granted the application and issued Search
Warrant No. 97-29 on November 29, 1997. 3 The search was
conducted on the said date; articles were seized and the petitioner
and Bueta were apprehended and detained. Among the articles
found in the possession of the petitioner was U.S. Passport No.
Z4613110 issued on June 2, 1983 by the U.S. Embassy in Manila to
Criminal Case No.
and in the name of Raymond Michael Jackson, born on October 17,
1951 in South Dakota; and U.S. Passport No. 085238399 issued on
August 15, 1996 by the New Orleans Passport Agency, Louisiana to
and under the name of Steven Bernard Bator, born on August 20,98-1155
1949 in Detroit, Michigan. 4
Another application for a search warrant was filed by SPO3
Pedro B. Barsana, Jr. with the RTC of Makati City for violation of
Article 176 of the Revised Penal Code for the search of the premises
at No. 5518 Second Floor, Macodyn Building, South Superhighway
(corner Pasay Road), Makati City under the contract of Raymond
Jackson a.k.a. Allen Miller and Bernard Bator and for the seizure of
the articles described therein. Acting on the application on
November 28, 1997, Judge Pedro N. Laggui of Branch 60 of the RTC
issued Search Warrant No. 97-029. 5
On December 2, 1997, an Information docketed as Criminal
Case No. 97-2078 was filed with the Municipal Trial Court of Angeles
City against the petitioner and Bueta for violation of Article 176 of
the Revised Penal Code. 6
When apprised of the seizure of the aforementioned
passports from the petitioner, U.S. Vice Consul Raymond Greene of
the United States Embassy in the Philippines advised the
Department of Justice on December 10, 1997 that the said passports
had been cancelled. 7 Summary deportation proceedings were
initiated at the Commission of Immigration and Deportation (CID)
against the petitioner docketed as SDO No. BOC 97-46. On
December 11, 1997, the Board of Commissioners (BOC) issued an
Order ordering the summary deportation of the petitioner to his
country of origin and directing the Chief of Civil Security Unit to
implement the order within three days from notice thereof, subject
to compliance with the 1997 Deportation Rules of Procedures —
Office Memorandum No. ELM-97-013. 8 In the meantime, the name
of the petitioner was included in the blacklist of the CID. 9
Aside from the aforementioned criminal cases, other
criminal cases were filed against Jackson with the RTC as follows:
   
The Accused In What Court Cases
  are Pending
Raymond Michael Jackson Makati RTC —
  alias Allen Miller Branch 133
98-903 Raymond Jackson Makati RTC —
    Branch 135
97-202 Raymond M. Jackson QC RTC —
  a.k.a. Allen Miller and Branch 83
  Jaime Bueta  
98-1152 Raymond Jackson Makati RTC —
    Branch 135 10  appearing in the photographs affixed in the original applications for
On December 7, 1997, the Quezon City RTC ordered the
release of the petitioner in Criminal Case No. 97-202 after posting a
P6,000 bail. 11
On September 18, 1998, the Makati RTC issued an order in
Criminal Case No. 98-1155 directing the CID to hold the departure of
the petitioner from the Philippines in view of the pending criminal
cases against him. 12 On September 28, 1998, the Makati RTC
ordered the release of the petitioner in Criminal Case No. 98-1152
after he posted bail in the amount of P40,000. 13
On October 1, 1998, the petitioner filed a motion for
reconsideration with the CID for the reconsideration of the BOC
Order dated December 11, 1997 directing his deportation. 14 He
alleged inter alia that: (a) he was married to Lily Morales by whom he
had two children: Cristina Jackson and Judaline Jackson; (b) his status
was converted into that of a permanent resident on September 30,
1987 under Section 13-A of the Immigration Act, as amended with
Official Passport No. 3121487; (c) his deportation from the
Philippines would deprive him of the opportunity to defend himself
in the criminal cases pending against him. He appended to his
motion a copy of his marriage contract with Lily Morales and their
children's birth certificates. On October 14, 1998, the CID issued an
order denying the petitioner's motion for reconsideration for lack of
merit. 15
The petitioner could not be deported because he filed a
petition to lift the summary order of deportation with the CID which
as of December 15, 1998 had not yet been resolved, 16 pending the
issuance of clearances from the NBI and PNP, travel documents and
an airplane ticket.
On May 18, 1999, Tedd Archabal, Vice Consul of the Anti-
Fraud Unit in the U.S. Embassy in Manila, issued a certification that
U.S. Passport No. Z4613110 issued to and under the name of
"Raymond Michael Jackson" and No. 085238399 issued to Steven
Bernard Bator had been cancelled because the persons appearing in
the photographs affixed in the said passports did not match those
the issuance of the same. 17 The CID issued Mission Order No. RBR-
99-164 on May 21, 1999 for the petitioner's arrest for being an
undesirable alien under Section 37(a), paragraph 9 of the Philippine
Immigration Act of 1940, as amended, 18 based on the hold
departure order in Criminal Case No. 98-1155 and the certification of
Vice Consul Tedd Archabal. The petitioner was arrested by P/C
Inspector James B. Mejia of the Foreign Intelligence and Liaison
Office, PNP Intelligence Group, Camp Crame, Quezon City, who
turned him over to the CID on the said date. 19
The petitioner filed a petition for habeas corpus with the
Court on June 28, 1999 against the Commissioner of the CID and
John Doe and Jane Doe; and on the same date, the Court issued a
resolution (a) directing the issuance of a writ of habeas corpus and
the respondents to make a return of the writ on or before July 2,
1999 at 8:30 a.m.; (b) ordering the Pasig RTC Judge to whom the case
would be raffled to conduct a hearing of the petition, to render
judgment and to serve a copy of its decision within two days from its
promulgation. 20
In their return filed with the RTC on July 8, 1999, the
respondents alleged inter alia that the petitioner was arrested and
detained at the CID on the basis of the summary deportation order
issued by the BOC on December 11, 1997 and of the hold departure
order of the Makati RTC in Criminal Case No. 98-1155; the
petitioner's petition for habeas corpus was premature as there was a
pending petition to lift the summary deportation order before the
BOC filed by him. 21 On July 15, 1999, the RTC rendered a decision
dismissing the petition of Jackson and denied his plea for a writ
of habeas corpus. 22
The petitioner assails the decision of the RTC and prays for
the reversal thereof, contending that:
A. RODRIGUEZ CANNOT ISSUE WARRANTS OF ARREST
SINCE ONLY JUDGES CAN ISSUE THE SAME.
B. ASSUMING, WITHOUT CONCEDING, THAT
RODRIGUEZ CAN ISSUE WARRANTS OF ARREST, SUCH
CAN ONLY BE ISSUED TO ENFORCE A FINAL ORDER
OF DEPORTATION; HOWEVER, IN THE INSTANT CASE,
THERE IS NO FINAL ORDER OF DEPORTATION.
C. PETITIONER'S RIGHT TO DUE PROCESS HAS BEEN
VIOLATED. 23
The petitioner avers that under Article III, Section 2 of
the Philippine Constitution, only judges are vested with authority to
issue warrants for the arrest of persons, including aliens. Even if it is
assumed that the Commissioner of the CID is authorized to issue a
warrant of arrest, this is limited only to those cases where a final
order of deportation had already been issued by the BOC, and only
for the purpose of implementing the said order. According to the
petitioner, the order of deportation issued by the BOC on December
11, 1999 is illegal; hence, null and void. The petitioner was not
apprised of any specific charges filed against him with the CID and
was not heard on the said charges as required by law before the
order was issued. The petitioner asserts that there was no probable
cause for his arrest by the CID and that the respondents even
violated the Memorandum Circular of the Secretary of Justice dated
June 7, 1999. 24 The petitioner cited the ruling of the Court in Lao Gi
v. CA 25 to fortify his petition. EaISDC
In their comment on the petition, the respondents averred
that the CID is authorized under Section 37(a) of the Philippine
Immigration Act of 1940, as amended, to issue warrants for the
arrest of aliens on the CID's finding of the existence of a ground for
deportation. The petitioner cannot feign lack of due process because
he filed a motion for the reconsideration of the December 11, 1997
Order of the BOC ordering his summary deportation which the BOC
denied on October 14, 1998. When Mission Order RBR-99-164 was
issued on May 21, 1999 to effect the arrest of the petitioner, it was
on the basis of a final and executory order of deportation. The RTC,
for its part, held that (a) the petition was premature because the
petitioner's petition with the CID to lift the summary order of
deportation had not yet been resolved by the BOC of the CID; (b) the
petition for habeas corpus was inappropriate because the petitioner
was validly detained under a mission order issued by the
Commissioner based on the order of deportation issued by the BOC
on December 11, 1997; (c) the petitioner is estopped from assailing
his arrest and detention by the CID.
The petition is dismissed.
Section 1, Rule 102 of the Rules of Court, as amended,
provides that "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." The ultimate purpose of the writ of habeas
corpus is to relieve a person from unlawful restraint. It is essentially
a writ of inquiry and is granted to test the right under which he is
detained. 26 Section 4, Rule 102 of the said Rules provides when the
writ of habeas corpus is not allowed or discharged authorized:
Sec. 4. When writ not allowed or discharged
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.
The term "court" includes quasi-judicial bodies like the
Deportation Board of the Bureau of Immigration. 27
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 same
supervening events such as the instances mentioned in Section 4,
Rule 102, be no longer illegal at the time of the filing of the
application. Any such supervening events are the issuance of a
judicial process preventing the discharge of the detained person. 28
As a general rule, the burden of proving illegal restraint by
the respondents rests on the petitioner who attaches such
restraints. Whether the return sets forth process where on its face
shows good ground for the detention of the petitioner, it is
incumbent on him to allege and prove new matter that tends to
invalidate the apparent effects of such process. 29
Section 13 of Rule 102 of the Rules of Court, as amended,
provides that if it appears that the detained person 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:
Sec. 13. When the return evidence, and when
only a plea. — If it appears that 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; but 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.
In this case, based on the return of the writ by the
respondents, the petitioner was arrested and detained at the CID
detention center at Bicutan, Parañaque City, under Mission Order
No. RBR-99-164 dated May 21, 1999 based on the Order of the BOC
dated December 11, 1997 which had become final and executory.
The BOC found, after due proceedings, that:
Records show that on 10 December 1997,
Vice Consul Raymond Greene of the U.S. Embassy in
Manila advised the Department of Justice that the
U.S. passports which were confiscated from the
abovenamed respondent when he was arrested by
PNP operatives in Angeles City on 30 November 1997
and purportedly issued to Raymond Michael Jackson
and Steven Bernard Bator have been determined to
have been tampered. As a consequence, said
passports were cancelled by the U.S. Embassy.
In Schonemann vs. Commissioner Santiago,
et al., (G.R. No. 86461, 30 May 1989), the Supreme
Court ruled that if a foreign embassy cancels the
passport of an alien, or does not reissue a valid
passport to him, the alien loses the privilege to
remain in the country.
WHEREFORE, in view of the foregoing, the
Board of Commissioners hereby orders the summary
deportation of NORMAN LLOYD @ RAYMOND
MICHAEL JACKSON @ STEVEN BERNARD BATOR to his
country of origin subject to compliance with the 1997
Deportation Rules of Procedures-Office
Memorandum Order No. ELM-97-013.
The Chief of the Civil Security Unit is hereby
ordered to implement this Order within three (03)
days from receipt hereof.
 Include respondent's name on the Blacklist.
Give respondent a copy hereof. 30
The information relayed by U.S. Vice Consul Raymond
Greene to the DOJ on December 10, 1997 was reiterated by U.S. Vice
Consul Tedd Archabal in his certification forwarded to the DOJ on
May 18, 1999, thus:
CERTIFICATION
I, Tedd Archabal, Vice Consul of the United
States hereby certify that United States Passport
Number Z4613110 issued June 2, 1983 at the U.S.
Embassy, Manila in the name of RAYMOND MICHAEL
JACKSON, born October 17, 1951 at South Dakota is a
genuine United States Government document that
has been altered and photosubstituted.
I also certify that United States Passport
Number 085238399 issued August 15, 1996 at the
New Orleans Passport Agency, Louisiana, in the name
of STEVEN BERNARD BATOR, born August 20, 1949 at
Detroit, Michigan, is a genuine United States
Government document that has been altered and
photosubstituted, as well.
I further certify that a comparison of
photographs affixed to U.S. Passports Number
Z4613110 and 085238399 — which were seized by
Philippine National Police officers on or about
November 29, 1997 from a man claiming to be
Raymond Michael Jackson — and photographs
affixed to the original applications for passports
number Z4613110 and 085238399 in the names of
Raymond Michael Jackson and Steven Bernard Bator
on file with the U.S. Department of State,
Washington, DC, revealed that these are not/not the
same people. 31
The petitioner's arrest and detention are in accord with
Section 45(d) in relation to Section 37(a)(9) of the Philippine
Immigration Act of 1940 which respectively reads:
SEC. 45. (d) being an alien, enters the
Philippines without inspection and admission by the
immigration officials, or obtains entry into the
Philippines by willful, false, or misleading
representation or willful concealment of a material
fact;
xxx xxx xxx
SEC. 37. (a) The following aliens shall be
arrested upon the warrant of the Commissioner of
Immigration or of any other officer designated by him
for the purpose and deported upon the warrant of
the Commissioner of Immigration after a
determination by the Board of Commissioners of the
existence of the ground for deportation as charged
against the alien: HScaCT
xxx xxx xxx
(9) Any alien who commits any of the acts
described in Sections Forty-five and Forty-six of this
Act, independent of criminal action which may be
brought against him: . . .
In Tung Chin Hui v. Rodriguez, 32 this Court held that such
documents from a foreign embassy attesting to the cancellation of
the passports held by their national on the ground that the said
passports were tampered with; hence, cancelled were sufficient
grounds for the arrest and deportation of aliens from the
Philippines:
The above-quoted official letters
demonstrate the speciousness of the petitioner's
contention that his passport could not have been
cancelled in 1995, inasmuch as he was allowed to
enter the country as late as 1998. The letters show
 that the Philippine government was informed about
the cancellation only in 1998.
Furthermore, the foregoing letters of the
official representative of the Taiwanese government
belie the petitioner's submission that there was no
evidence to prove the findings of the CA and the
Board of Commissioners. Verily, these documents
constitute sufficient justification for his deportation.
As the Court held in the landmark case Forbes
v.  Chuoco Tiaco, "[t]he mere fact that a citizen or
subject is out of the territory of his country does not
relieve him from that allegiance which he owes to his
government, and his government may, under certain
conditions, properly and legally request his
return." 33
The petitioner cannot feign ignorance of the charges against
him in the CID and insist on being deprived by the BOC of his right to
due process as prescribed for in Section 37(c) of the Philippine
Immigration Act of 1940, thus:
(c) No alien shall be deported without being
informed of the specific grounds for deportation nor
without being given a hearing under rules of
procedure to be prescribed by the Commissioner of
Immigration.
This is so because on October 1, 1998, the petitioner filed a
motion with the CID for the reconsideration of the December 11,
1997 Order of the BOC. The petitioner did not allege therein that he
was not informed of the charges against him. In fact, the petitioner
did not even rebut the claim of the U.S. Vice Consul that the
passport he was carrying was tampered and had been already
cancelled. Neither did he allege that he requested for the
reinstatement of his passport with the United States Embassy.
Despite the finality of the deportation order of the BOC, it still
entertained the petitioner's motion for reconsideration but denied
the same on its findings that there were inconsistencies in his sworn
statement and the documents he presented in support of his
motion, thus:
After going over the motion, we find no valid
reason to disturb the order of 12 (sic) December
1997. Likewise, the same had long become final and
executory.
Furthermore, the grounds alleged in the
motion have no merit and are irrelevant. The alleged
marriage of respondent to a Filipina, a certain Lily
Morales, with whom respondent allegedly begot two
(2) children named Cristina and Judaline both
surnamed Jackson, and the supposed conversion of
respondent's status to permanent resident on 30
September 1987 under Section 13(a) of
the Immigration Act (CA No. 613, as amended), does
not change the fact that the two (2) US passports
purportedly issued to Raymond Michael Jackson and
Steven Bernard Bator which were used by
respondent, were tampered and subsequently
cancelled by the U.S. Embassy. Respondent already
lost the privilege to remain in the country
(Schonemann v. Comm. Santiago, G.R. No. 86461, 30
May 1989).
It is also significant to note the evident
inconsistencies in the sworn statement of respondent
conducted by Special Prosecutor Henry B. Tubban on
5 December 1997 with the documents attached in the
motion. Hereunder are the said inconsistencies:
1. Annex "A" of the Motion is an alleged
Marriage Contract between the
respondent and one Lily H. Morales
showing Manila City Hall as the place
of marriage and which was held
on 6 September 1984.
 In the Sworn Statement, the respondent IN LIGHT OF ALL THE FOREGOING, the petition is
claimed to have entered the country for the DISMISSED. The Decision of the RTC in Special Proceedings No.
first time only in 1988 (p.  1 of sworn 10948 is AFFIRMED. Costs against the petitioner.
statement), that he married a certain Lily
SO ORDERED.
Morales sometime in 1989 in Angeles
City (p.  2 of sworn statement). |||  (Jackson v. Macalino, G.R. No. 139255, [November 24, 2003], 462 PHIL
37-52)
2. The motion stated that out of the union of
the respondent with Ms.
Morales, two (2) children named
Cristina and Judaline both
surnamed Jackson, were born. In
the sworn statement of the
respondent, he stated that they
have  five (5) children.

In addition, in the marriage contract (Annex

"A" of motion), it was stated that Ms. Morales is 17
years of age, a minor. However, below the personal
circumstances of the respondent and Mrs. Morales is
a statement in bold letters that "BOTH PARTIES ARE
OF LEGAL AGES."

The foregoing creates a serious doubt on the

allegations in the motion and on the authenticity of
the documents attached thereto. With more reason
that the motion should be denied. 34

Moreover, the petitioner, in his motion for reconsideration

with the CID, offered to post a bail bond for his provisional release
to enable him to secure the necessary documents to establish the
appropriate grounds for his permanent stay in the Philippines. By
offering to post a bail bond, the petitioner thereby admitted that he
was under the custody of the CID and voluntarily accepted the
jurisdiction of the CID. 35

The present as clearly as the petitioner's petition to lift the

order of deportation was as yet unresolved by the BOC when he
filed the petition for habeas corpus.
 NURHIDA JUHURI AMPATUAN,  petitioner, vs. JUDGE
VIRGILIO V. MACARAIG, REGIONAL TRIAL COURT,
MANILA, BRANCH 37, DIRECTOR GENERAL
AVELINO RAZON, JR., DIRECTOR GEARY BARIAS,
PSSUPT. CO YEE M. CO, JR. and POLICE CHIEF
INSPECTOR AGAPITO QUIMSON,  respondents.

DECISION

PEREZ,  J  p:

Before this Court is a Petition for  Certiorari under Rule

65 1 of the Rules of Court assailing the Order dated 25 April 2008 of
the Regional Trial Court (RTC) of Manila, Branch 37, in Special
Proceeding No. 08-119132 which denied the petition for  Habeas
Corpus filed by herein Petitioner Nurhida Juhuri Ampatuan in behalf
of her husband Police Officer 1 Basser B. Ampatuan 2 (PO1
Ampatuan).

Petitioner alleged in her petition that her husband PO1

Ampatuan was assigned at Sultan Kudarat Municipal Police Station.
On 14 April 2008, he was asked by his Chief of Police to report to the
Provincial Director of Shariff Kabunsuan, Superintendent Esmael
Pua Ali (Supt. Ali). The latter brought PO1 Ampatuan to
Superintendent Piang Adam, Provincial Director of the Philippine
National Police (PNP) Maguindanao. PO1 Ampatuan was directed to
stay at the Police Provincial Office of Maguindanao without being
informed of the cause of his restraint. The next day, 15 April 2008,
PO1 Ampatuan was brought to the General Santos City Airport and
was made to board a Philippine Airlines plane bound for Manila.
Upon landing at the Manila Domestic Airport, PO1 Ampatuan was
turned over to policemen of Manila and brought to Manila Mayor
[G.R. No. 182497. June 29, 2010.]
Alfredo Lim by Police Director Geary Barias and General Roberto
Rosales. A press briefing was then conducted where it was
announced that PO1 Ampatuan was arrested for the killing of two
Commission on Elections (COMELEC) Officials. He was then detained
at the Police Jail in United Nations Avenue, Manila. Thereafter, PO1
Ampatuan was brought to inquest Prosecutor Renato Gonzaga of
the Office of the City Prosecutor of Manila due to the alleged murder
of Atty. Alioden D. Dalaig, head of the Law Department of the
COMELEC. On 20 April 2008, PO1 Ampatuan was turned-over to the
Regional Headquarters Support Group in Camp  Bagong Diwa, Taguig
City. 3 acTDCI
Petitioner continues that on 21 April 2008, Chief Inquest
Prosecutor Nelson Salva ordered the release for further
investigation of PO1 Ampatuan. 4 The Order was approved by the
City Prosecutor of Manila. But Police Senior Superintendent Co Yee
Co, Jr., and Police Chief Inspector Agapito Quimson refused to
release PO1 Ampatuan.
This prompted Petitioner to file the petition for writ
of habeas corpus in the RTC of Manila, Branch 37. 5
Private respondents had another version of the antecedent
facts. They narrated that at around 7:08 o'clock in the evening of 10
November 2007, a sixty-four-year-old man, later identified as Atty.
Alioden D. Dalaig, Head of the COMELEC Legal Department, was
killed at the corner of M.H. del Pilar and Pedro Gil Streets, Ermita,
Manila. Investigation conducted by the Manila Police District (MPD)
Homicide Section yielded the identity of the male perpetrator as PO1
Ampatuan. Consequently, PO1 Ampatuan was commanded to the
MPD District Director for proper disposition. Likewise, inquest
proceedings were conducted by the Manila Prosecutor's Office.
On 18 April 2008, Police Senior Superintendent Atty.
Clarence V. Guinto, rendered his Pre-Charge Evaluation Report
against PO1 Ampatuan, finding probable cause to charge PO1
Ampatuan with Grave Misconduct (Murder) and recommending that
said PO1 Ampatuan be subjected to summary hearing.
On even date, a charge sheet for Grave Misconduct was
executed against PO1 Ampatuan, the accusatory portion of which
reads:
CHARGE SHEET
THE UNDERSIGNED NOMINAL
COMPLAINANT hereby charges above-named
respondent of the administrative offense of Grave
Misconduct (murder) pursuant to Section 52 of R.A.
8551 6 in relation to NAPOLCOM Memorandum
Circular 93-024, committed as follows:
That on or about 7:08 in the evening of
November 10, 2007, in M.H. del Pilar and Pedro Gil
St., Ermita, Manila, above-named respondent while
being an active member of the PNP and within the
jurisdiction of this office, armed with a cal. 45 pistol,
with intent to kill, did then and there willfully,
unlawfully and feloniously, shot Atty. Alioden D.
Dalaig, Jr., COMELEC official on the different parts of
his body, thereby inflicting upon the latter mortal
gunshot wounds which directly cause (sic) his death.
Acts contrary to the existing PNP Laws Rules
and Regulations. 7
Also, through a Memorandum dated 18 April 2008, Police
Director General Avelino I. Razon, Jr. directed the Regional Director
of the National Capital Regional Police Office (NCRPO) to place PO1
Ampatuan under restrictive custody, thus: EcATDH
1. Reference: Memo from that Office dated April 15,
2008 re Arrest of PO1 Busser Ampatuan,
suspect in the killing of Atty. Alioden Dalaig
and Atty. Wynee Asdala, both COMELEC
Legal Officers.
2. This pertains to the power of the Chief, PNP
embodied in Section 52 of RA 8551, to place
police personnel under restrictive custody
during the pendency of a grave
administrative case filed against him or even
after the filing of a criminal complaint, grave
in nature, against such police personnel.
 3. In this connection, you are hereby directed to place
PO1 Busser Ampatuan, suspect in the killing
of Atty. Alioden Dalaig and Atty. Wynee
Asdala, both COMELEC Legal Officers, under
your restrictive custody.
4. For strict compliance. 8
On 19 April 2008, through a Memorandum Request dated
18 April 2008, respondent Police Director Geary L. Barias requested
for the creation of the Summary Hearing Board to hear the case of
PO1 Ampatuan. 9
On 20 April 2008, Special Order No. 921 was issued by
Police Director Edgardo E. Acuña, placing PO1 Ampatuan under
restrictive custody of the Regional Director, NCRPO, effective 19 April
2008. Said Special Order No. 921, reads:
Restrictive Custody
PO1 Basser B. Ampatuan 128677, is placed
under restrictive custody of the Regional Director,
NCRPO effective April 19, 2008. (Reference:
Memorandum from CPNP dated 18 April 2008).
BY COMMAND OF POLICE DIRECTOR
GENERAL RAZON: 10
Meanwhile, on 21 April 2008, the City Prosecutor of Manila
recommended that the case against PO1 Ampatuan be set for
further investigation and that the latter be released from custody
unless he is being held for other charges/legal grounds. 11
Armed with the 21 April 2008 recommendation of the
Manila City's Prosecution Office, petitioner, who is the wife of PO1
Ampatuan, filed a Petition for the Issuance of a Writ of Habeas
Corpus before the RTC of Manila on 22 April 2008. The petition was
docketed as Special Proceeding No. 08-119132 and was raffled to
Branch 37. aTcSID
On 24 April 2008, finding the petition to be sufficient in form
and substance, respondent Judge Virgilio V. Macaraig ordered the
issuance of a writ of habeas corpus commanding therein
respondents to produce the body of PO1 Ampatuan and directing
said respondents to show cause why they are withholding or
restraining the liberty of PO1 Ampatuan. 12
On 25 April 2008, the RTC resolved the Petition in its Order
which reads:
Essentially, counsels for petitioner insists
that PO1 Basser Ampatuan is being illegally detained
by the respondents despite the order of release of
Chief Inquest Prosecutor Nelson Salva dated April 21,
2008. They further claim that as of April 23, 2008, no
administrative case was filed against PO1 Ampatuan.
Respondents, while admitting that to date no
criminal case was filed against PO1 Ampatuan, assert
that the latter is under restrictive custody since he is
facing an administrative case for grave misconduct.
They submitted to this Court the Pre-charge
Evaluation Report and Charge Sheet. Further, in
support of their position, respondents cited the case
of SPO2 Manalo, et al. v. Hon. Calderon, G.R. No.
178920 claiming that habeas corpus will not lie for a
PNP personnel under restrictive custody. They claim
that this is authorized under Section 52, Par. 4 of R.A.
8551 authorizing the Chief of PNP to place the PNP
personnel under restrictive custody during the
pendency of administrative case for grave
misconduct.
Petitioner countered that the administrative
case filed against PO1 Ampatuan was ante-dated to
make it appear that there was such a case filed
before April 23, 2008.
The function of habeas corpus is to
determine the legality of one's detention, meaning, if
there is sufficient cause for deprivation or
confinement and if there is none to discharge him at
 once. For habeas corpus to issue, the restraint of PO1 BASSER B. AMPATUAN WAS MADE WITHOUT
liberty must be in the nature of illegal and involuntary ANY WARRANT AND THEREFORE, ILLEGAL;
deprivation of freedom which must be actual and
II. THE RESPONDENT COURT GRAVELY
effective, not nominal or moral.
ABUSED ITS DISCRETION WHEN IT CONCEDED THE
Granting arguendo that the administrative AUTHORITY OF RESPONDENT AVELINO RAZON, JR.
case was ante-dated, the Court cannot simply ignore UNDER SEC. 52, PAR. 4, R.A. 8551 TO PLACE
the filing of an administrative case filed against PO1 AMPATUAN UNDER RESTRICTIVE CUSTODY FOR
Ampatuan. It cannot be denied that the PNP has its ADMINISTRATIVE PROCEEDINGS;
own administrative disciplinary mechanism and as
III. THE RESPONDENT COURT GRAVELY
clearly pointed out by the respondents, the Chief PNP
ABUSED ITS DISCRETION WHEN IT SHIRKED FROM ITS
is authorized to place PO1 Ampatuan under
JUDICIAL DUTY TO ORDER THE RELEASE OF PO1
restrictive custody pursuant to Section 52, Par. 4
AMPATUAN FROM THE CUSTODY OF
of R.A. 8551.
RESPONDENTS  MAMANG PULIS. 14
The filing of the administrative case against
Essentially, a writ of habeas corpus applies to all cases of
PO1 Ampatuan is a process done by the PNP and this
illegal confinement or detention by which any person is deprived of
Court has no authority to order the release of the
his liberty. 15
subject police officer. TacSAE
Rule 102 of the 1997 Rules of Court sets forth the
Lastly, anent the contention of the petitioner
procedure to be followed in the issuance of the writ. The Rule
that the letter resignation of PO1 Ampatuan has
provides:
rendered the administrative case moot and
academic, the same could not be accepted by this RULE 102
Court. It must be stressed that the resignation has
HABEAS CORPUS
not been acted (sic) by the appropriate police officials
of the PNP, and that the administrative case was filed SEC. 1. To what habeas corpus extends. —
while PO1 Ampatuan is still in the active status of the Except as otherwise expressly provided by law, the
PNP. writ of habeas corpus shall extend to all cases of
illegal confinement or detention by which any person
WHEREFORE, premises considered, the
is deprived of his liberty, or by which the rightful
petition for habeas corpus is hereby DISMISSED. 13
custody of any person is withheld from the person
Distressed, petitioner is now before this Court  via a Petition entitled thereto.
for Certiorari under Rule 65 of the Rules of Court to question the
SEC. 2. Who may grant the writ. — The writ
validity of the RTC Order dated 25 April 2008. The issues are: 
of habeas corpus may be granted by the Supreme
I. THE RESPONDENT COURT GRAVELY Court, or any member thereof, on any day and at any
ABUSED ITS DISCRETION WHEN IT FAILED TO time, or by the Court of Appeals or any member
CONSIDER THAT THE ARREST AND DETENTION OF thereof in the instances authorized by law, and if so
 granted it shall be enforceable anywhere in the
Philippines, and may be made returnable before the
court or any member thereof, or before a Court of
First Instance, or any judge thereof for hearing and
decision on the merits. It may also be granted by a
Court of First Instance, or a judge thereof, on any day
and at any time, and returnable before himself,
enforceable only within his judicial district. CITaSA
xxx xxx xxx
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.
The objective of the writ is to determine whether the
confinement or detention is valid or lawful. If it is, the writ cannot be
issued. What is to be inquired into is the legality of a person's
detention as of, at the earliest, the filing of the application for the
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 application. 16
Plainly stated, the writ obtains immediate relief for those
who have been illegally confined or imprisoned without sufficient
cause. The writ, however, should not be issued when the custody
over the person is by virtue of a judicial process or a valid
judgment. 17
The most basic criterion for the issuance of the writ,
therefore, is that the individual seeking such relief is illegally
deprived of his freedom of movement or placed under some form of
illegal restraint. If an individual's liberty is restrained  via some legal
process, the writ of habeas corpus is unavailing. 18 Fundamentally, in
order to justify the grant of the writ of habeas corpus, the restraint of
liberty must be in the nature of an illegal and involuntary deprivation
of freedom of action. 19
In general, the purpose of the writ of habeas corpus is to
determine whether or not a particular person is legally held. A
prime specification of an application for a writ of habeas
corpus, in fact, is an actual and effective, and not merely
nominal or moral, illegal restraint of liberty. The writ of habeas
corpus 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. A prime
specification of an application for a writ of habeas corpus is
restraint of liberty. The essential object and purpose of the writ
of habeas corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve a
person therefrom if such restraint is illegal. Any restraint which
will preclude freedom of action is sufficient. 20 IDcAHT
In passing upon a petition for habeas corpus, a court or
judge must first inquire into whether the petitioner is being
restrained of his liberty. If he is not, the writ will be refused. Inquiry
into the cause of detention will proceed only where such restraint
exists. If the alleged cause is thereafter found to be unlawful, then
the writ should be granted and the petitioner discharged. Needless
to state, if otherwise, again the writ will be refused. 21
While habeas corpus is a writ of right, it will not issue as a
matter of course or as a mere perfunctory operation on the filing of
the petition. Judicial discretion is called for in its issuance and it must
be clear to the judge to whom the petition is presented that,  prima
facie, the petitioner is entitled to the writ. It is only if the court is
satisfied that a person is being unlawfully restrained of his liberty
will the petition for habeas corpus be granted. If the respondents are
not detaining or restraining the applicant or the person in whose
behalf the petition is filed, the petition should be dismissed. 22
Petitioner contends that when PO1 Ampatuan was placed
under the custody of respondents on 20 April 2008, there was yet no
administrative case filed against him. When the release order of
Chief Inquest Prosecutor Nelson Salva was served upon
respondents on 21 April 2008, there was still no administrative case
filed against PO1 Ampatuan. She also argues that the arrest on 14
April 2008 of PO1 Ampatuan in Shariff Kabunsuan was illegal
because there was no warrant of arrest issued by any judicial
authority against him.
On the other hand, respondents, in their Comment 23 filed
by the Office of the Solicitor General, argue that the trial court
correctly denied the subject petition. Respondents maintain that
while the Office of the City Prosecutor of Manila had recommended
that PO1 Ampatuan be released from custody, said
recommendation was made only insofar as the criminal action for
murder that was filed with the prosecution office is concerned and is
without prejudice to other legal grounds for which he may be held
under custody. In the instant case, PO1 Ampatuan is also facing
administrative charges for Grave Misconduct. They cited the case
of Manalo v. Calderon, 24 where this Court held that a petition
for habeas corpus will be given due course only if it shows that
petitioner is being detained or restrained of his liberty
unlawfully, but a restrictive custody and monitoring of
movements or whereabouts of police officers under
investigation by their superiors is not a form of illegal detention
or restraint of liberty. 25
The Solicitor General is correct.
In this case, PO1 Ampatuan has been placed under
Restrictive Custody. Republic Act No. 6975 (also known as the
Department of the Interior and Local Government Act of 1990), as
amended by Republic Act No. 8551 (also known as the Philippine
National Police Reform and Reorganization Act of 1998), clearly
provides that members of the police force are subject to the
administrative disciplinary machinery of the PNP. Section 41 (b) of
the said law enumerates the disciplinary actions,  including restrictive
custody that may be imposed by duly designated supervisors and
equivalent officers of the PNP as a matter of internal discipline. The
pertinent provision of Republic Act No. 8551 reads: AIHDcC
Sec. 52.. . . .—
xxx xxx xxx
4. The Chief of the PNP shall have the power
to impose the disciplinary punishment of dismissal
from the service; suspension or forfeiture of salary;
or any combination thereof for a period not
exceeding one hundred eighty (180) days.  Provided,
further, That the Chief of the PNP shall have the
authority to place police personnel under
restrictive custody during the pendency of a
grave administrative case filed against him or
even after the filing of a criminal complaint, grave
in nature, against such police personnel.
[Emphasis ours].
Given that PO1 Ampatuan has been placed under restrictive
custody, such constitutes a valid argument for his continued
detention. This Court has held that a restrictive custody and
monitoring of movements or whereabouts of police officers under
investigation by their superiors is not a form of illegal detention or
restraint of liberty. 26
Restrictive custody is, at best, nominal restraint which
is beyond the ambit of habeas corpus. It is neither actual nor
effective restraint that would call for the grant of the remedy
prayed for. It is a permissible precautionary measure to assure
the PNP authorities that the police officers concerned are
always accounted for. 27
 Since the basis of PO1 Ampatuan's restrictive custody is the
administrative case filed against him, his remedy is within such
administrative process.
We likewise note that PO1 Ampatuan has been under
restrictive custody since 19 April 2008. To date, the administrative
case against him should have already been resolved and the issue of
his restrictive custody should have been rendered moot and
academic, in accordance with Section 55 of Republic Act No. 8551,
which provides: 
SEC. 55. Section 47 of Republic Act No.
6975 is hereby amended to read as follows:
Sec. 47. Preventive Suspension Pending
Criminal Case. — Upon the filing of a complaint or
information sufficient in form and substance against
a member of the PNP for grave felonies where the
penalty imposed by law is six (6) years and one (1)
day or more, the court shall immediately suspend the
accused from office for a period not exceeding ninety
(90) days from arraignment:  Provided, however, That if
it can be shown by evidence that the accused is
harassing the complainant and/or witnesses, the
court may order the preventive suspension of the
accused PNP member even if the charge is
punishable by a penalty lower than six (6) years and
one (1) day:  Provided, further, That the preventive
suspension shall not be more than ninety (90) days
except if the delay in the disposition of the case is
due to the fault, negligence or petitions of the
respondent:  Provided, finally, That such preventive
suspension may be sooner lifted by the court in the
exigency of the service upon recommendation of the
Chief, PNP. Such case shall be subject to
continuous trial and shall be terminated within
ninety (90) days from arraignment of the accused.
(Emphasis supplied.) DHaEAS
Having conceded that there is no grave abuse of discretion
on the part of the trial court, we have to dismiss the petition.
In sum, petitioner is unable to discharge the burden of
showing that she is entitled to the issuance of the writ prayed for in
behalf of her husband, PO1 Ampatuan. The petition fails to show on
its face that the latter is unlawfully deprived of his liberty guaranteed
and enshrined in the Constitution.
WHEREFORE, premises considered, the instant petition
is DISMISSED for lack of merit.
Costs against petitioner.
SO ORDERED.
[G.R. No. L-30026. January 30, 1971.]
MARIO GUMABON, BLAS BAGOLBAGOL,
GAUDENCIO AGAPITO, EPIFANIO PADUA and
PATERNO PALMARES,  petitioners, vs. THE DIRECTOR
OF THE BUREAU OF PRISONS,  respondent.
Jose W. Diokno  for petitioners.
Solicitor General Felix V. Makasiar, Assistant Solicitor General
Antonio A. Torres  and  Solicitor Eduardo C. Abaya  for respondent.
DECISION
FERNANDO, J  p:
Habeas corpus, the great writ of liberty, is relied upon by
petitioners, five in number, for their release from imprisonment.
Meted out life terms for the complex crime of rebellion with murder
and other crimes, they would invoke the People v.
Hernandez 1 doctrine, negating the existence of such an offense, a
ruling that unfortunately for them was not handed down until after
their convictions had become final. Nor is this the first instance, a
proceeding this character was instituted, as in Pomeroy v. Director
of Prisons, 2 likewise a petition for habeas corpus, a similar question
was presented. The answer given was in the negative. Petitioners
plead for a new look on the matter. They would premise their stand
on the denial of equal protection if their plea would not be granted.
Moreover they did invoke the codal provision that judicial decisions
shall form part of the legal system of the Philippines, 3 necessarily
resulting in the conclusion that the Hernandez decision once
promulgated calls for a retroactive effect under the explicit mandate
of the Revised Penal Code as to penal laws having such character
even if at the time of their application a final sentence has been
rendered "and the convict is serving the same." 4 These arguments
carry considerable persuasion. Accordingly we find for petitioners,
without going so far as to overrule Pomeroy.
Petitioner Mario Gumabon, after pleading guilty, was
sentenced on May 5, 1953 to suffer reclusion perpetua for the
complex crime of rebellion with multiple murder, robbery, arson and
kidnapping. Petitioners Gaudencio Agapito, Paterno Palmares and
Epifanio Padua, likewise pleaded guilty to the complex crime of
rebellion with multiple murder and other offenses, and were
similarly made to suffer the same penalty in decisions rendered, as
to the first two, on March 8, 1954 and, as to the third, on December
15, 1955. The last petitioner, Blas Bagolbagol, stood trial also for the
complex crime of rebellion with multiple murder and other offenses
and on January 12, 1954 penalized with reclusion perpetua. Each of
the petitioners has been since then imprisoned by virtue of the
above convictions. Each of them has served more than 13 years. 5
Subsequently, in People v. Hernandez, 6 as above noted,
this Court ruled that the information against the accused in that case
for rebellion complexed with murder, arson and robbery was not
warranted under Article 134 of the Revised Penal Code, there being
no such complex offense. 7 In the recently-decided case of People
vs. Lava, 8 we expressly reaffirmed the ruling in the Hernandez case
rejecting the plea of the Solicitor General for the abandonment of
such doctrine. It is the contention of each of the petitioners that he
has served, in the light of the above, more than the maximum
penalty that could have been imposed upon him. He is thus entitled
to freedom, his continued detention being illegal. 9
The fear that the Pomeroy ruling stands as an obstacle to
their release on a habeas corpus proceeding prompted petitioners,
as had been mentioned, to ask that it be appraised anew and, if
necessary, discarded. We can resolve the present petition without
doing so. The plea there made was unconvincing, there being a
failure to invoke the contentions now pressed vigorously by their
counsel, Attorney Jose W. Diokno, as to the existence of a denial of a
constitutional right that would suffice to raise a serious jurisdictional
question and the retroactive effect to be given a judicial decision
favorable to one already sentenced to a final judgment under Art. 22
of the Revised Penal Code. To repeat, these two grounds carry
weight. We have to grant this petition.
1. The fundamental issue, to repeat, is the availability of the
writ of habeas corpus under the circumstances disclosed. Its
latitudinarian scope to assure that illegality of restraint and
detention be avoided is one of the truisms of the law. It is not known
as the writ of liberty for nothing. The writ imposes on judges the
grave responsibility of ascertaining whether there is any legal
justification for a deprivation of physical freedom. Unless there be
such a showing, the confinement must thereby cease. If there be a
valid sentence it cannot, even for a moment, be extended beyond
the period provided for by law. Any deviation from the legal norms
call for the termination of the imprisonment.
Rightly then could Chafee refer to the writ as "the most
important human rights provision" in the fundamental law. 10 Nor is
such praise unique. Cooley spoke of it as "one of the principal
safeguards to personal liberty." 11 For Willoughby, it is "the greatest
of the safeguards erected by the civil law against arbitrary and illegal
imprisonment by whomsoever detention may be exercised or
ordered." 12 Burdick echoed a similar sentiment, referring to it as
"one of the most important bulwarks of liberty." 13 Fraenkel made it
unanimous, for to him, "without it much else would be of no which is the liberation of those who may be imprisoned without
avail." 14 Thereby the rule of law is assured. sufficient cause." Then there is this affirmation from an 1869
decision 28 of the then Chief Justice Chase: "The great writ of habeas
A full awareness of the potentialities of the writ of habeas
corpus has been for centuries esteemed the best and only sufficient
corpus in the defense of liberty coupled with its limitations may be
defense of personal freedom." The passing of the years has only
detected in the opinions of former Chief Justices
served to confirm its primacy as a weapon in the cause of liberty.
Arellano, 15 Avanceña, 16 Abad
Only the other year, Justice Fortas spoke for the United States
Santos, 17 Paras, 18 Bengzon, 19 and the present Chief Justice. 20 It
Supreme Court thus: "The writ of habeas corpus is the fundamental
fell to Justice Malcolm's lot, however to emphasize quite a few times
instrument for safeguarding individual freedom against arbitrary
the breadth of its amplitude and of its reach. In Villavicencio v.
and lawless state action . . . The scope and flexibility of the writ — its
Lukban, 21 the remedy came in handy to challenge the validity of the
capacity to reach all manner of illegal detention — its ability to cut
order of the then respondent Mayor of Manila who, for the best of
through barriers of form and procedural mazes — have always been
reasons but without legal justification, ordered the transportation of
emphasized and jealously guarded by courts and lawmakers. The
more than 150 inmates of houses of ill-repute to Davao. After
very nature of the writ demands that it be administered wit the
referring to the writ of habeas corpus as having been devised and
initiative and flexibility essential to insure that miscarriages of justice
existing "as a speedy and effectual remedy to relieve persons from
within its reach are surfaced and corrected." 29 Justice Fortas
unlawful restraint" the opinion of Justice Malcolm continued: "The
explicitly made reference to Blackstone, who spoke of it as "the
essential object and purpose of the writ of habeas corpus is to
great and efficacious writ, in all manner of illegal confinement."
inquire into all manner of involuntary restraint as distinguished from
Implicit in his just estimate of its pre-eminent role is his adoption of
voluntary, and to relieve a person therefrom if such restraint is
Holmes' famous dissent in Frank v. Mangum: 30 "But habeas corpus
illegal. Any restraint which will preclude freedom of action is
cuts through all forms and goes to the very tissue of the structure."
sufficient." 22
2. Where, however, the detention complained of finds its
The liberality with which the judiciary is to construe habeas
origin in what has been judicially ordained, the range of inquiry in a
corpus petitions even if presented in pleadings on their face devoid
habeas corpus proceeding is considerably narrowed. For if "the
of merit was demonstrated in Ganaway v. Quilen, 23 where this
person alleged to be restrained of his liberty is in the custody of an
Court, again through Justice Malcolm, stated: "As standing alone the
officer under process issued by a court or judge or by virtue of a
petition for habeas corpus was fatally defective in its allegations, this
judgment or order of a court of record, and that the court or judge
court, on its motion, ordered before it the record of the lower court
had jurisdiction to issue the process, render the judgment, or make
in the case entitled Thomas Casey, et al. v. George Ganaway." 24 It is
the order," the writ does not lie. 31 That principle dates back to
to Justice Malcolm likewise in Conde v. Rivera 25 to whom is
1902, 32 when this Court announced that habeas corpus was
traceable the doctrine, one that broadens the field of the operation
unavailing where the person detained was in the custody of an
of the writ, that a disregard of the constitutional right to speedy trial
officer under process issued by a court or magistrate. This is
ousts the court of jurisdiction and entitles the accused if "restrained
understandable, as during the time the Philippines was under
of his liberty, by habeas corpus to obtain his freedom." 26
American rule, there was necessarily an adherence to authoritative
So it is in the United States. An 1830 decision 27 of Chief doctrines of constitutional law there followed.
Justice Marshall put the matter thus: "The writ of habeas corpus is a
One such principle is the requirement that there be a
high prerogative writ, known to the common law, the great object of
finding of jurisdictional defect. As summarized by Justice Bradley in
Ex parte Siebold, an 1880 decision: "The only ground on which this
court, or any court, without some special statute authorizing it, will
give relief on habeas corpus to a prisoner under conviction and
sentence of another court is the want of jurisdiction in such court
over the person or the cause, or some other matter rendering its
proceedings void." 33  only distinction lying in the finality of the conviction of one being
There is the fundamental exception though, that must ever
be kept in mind. Once a deprivation of a constitutional right is
shown to exist, the court that rendered the judgment is deemed
ousted of jurisdiction and habeas corpus is the appropriate remedy
to assail the legality of the detention. 34
3. Petitioners precisely assert a deprivation of a
constitutional right, namely, the denial of equal protection.
According to their petition: "In the case at bar, the petitioners were
convicted by Courts of First Instance for the very same rebellion for
which Hernandez, Geronimo, and others were convicted. The law
under which they were convicted is the very same law under which
the latter were convicted. It had not and has not been changed. For
the same crime, committed under the same law, how can we, in
conscience, allow petitioners to suffer life imprisonment, while
others can suffer only prision mayor?" 35
They would thus stress that, contrary to the mandate of
equal protection, people similarly situated were not similarly dealt
with. What is required under this constitutional guarantee is the
uniform operation of legal norms so that all persons under similar
circumstances would be accorded the same treatment both in the
privileges conferred and the liabilities imposed. As was noted in a
recent decision: "Favoritism and undue preference cannot be
allowed. For the principle is that equal protection and security shall
be given to every person under circumstances, which if not identical
are analogous. If law be looked upon in terms of burden or charges,
those that fall within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding on
the rest." 36
The argument of petitioners thus possesses a persuasive
ring. The continued incarceration after the twelve-year period when
such is the maximum length of imprisonment in accordance with
our controlling doctrine, when others similarly convicted have been
freed, is fraught with implications at war with equal protection. That
is not to give it life. On the contrary, it would render it nugatory.
Otherwise, what would happen is that for an identical offense, the
before the Hernandez ruling and the other after, a person duly
sentenced for the same crime would be made to suffer different
penalties. Moreover, as noted in the petition before us, after our
ruling in People v. Lava, petitioners who were mere followers would
be made to languish in jail for perhaps the rest of their natural lives
when the leaders had been duly considered as having paid their
penalty to society, and freed. Such a deplorable result is to be
avoided.
4. Petitioners likewise, as was made mention at the outset,
would rely on Article 22 of the Revised Penal Code which requires
that penal judgment be given a retroactive effect. In support of their
contention, petitioners cite U.S. v. Macasaet, 37 U.S. vs.
Parrone, 38 U.S. v. Almencion, 39 People v. Moran, 40 and People v.
Parel. 41 While reference in the above provision is made not to
judicial decisions but to legislative acts, petitioners entertain the
view that it would be merely an exaltation of the literal to deny its
application to a case like the present. Such a belief has a firmer
foundation. As was previously noted, the Civil Code provides that
judicial decisions applying or interpreting the Constitution, as well as
legislation, form part of our legal system. Petitioners would even
find support in the well-known dictum of Bishop Hoadley: "Whoever
hath an absolute authority to interpret any written or spoken laws, it
is he who is truly the law-giver to all intents and purposes, and not
the person who first thought or spoke them." It is to be admitted
that constitutional law scholars, notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial
review as well as the jurist John Chipman Gray, were much
impressed with the truth and the soundness of the above
observations. We do not have to go that far though. Enough for
present purposes that both the Civil Code and the Revised Penal
Code allow, if they do not call for, a retroactive application.
 It being undeniable that if the Hernandez ruling were to be
given a retroactive effect petitioners had served the full term for
which they could have been legally committed, is habeas corpus the
appropriate remedy? The answer cannot be in doubt. As far back as
1910 the prevailing doctrine was announced in Cruz v. Director of
Prisons. 45 Thus: "The courts uniformly hold that where a sentence
imposes a punishment in excess of the power of the court to
impose, such sentence is void as to the excess, and some of the
courts hold that the sentence is void in toto; but the weight of
authority sustains the proposition that such a sentence is void only
as to the excess imposed in case the parts are separable, the rule
being that the petitioner is not entitled to his discharge on a writ
of habeas corpus unless he has served out so much of the sentence
as was valid." 46 There is a reiteration of such a principle in Directo
v. Director of Prisons 47 where it was explicitly announced by this
Court "that the only means of giving retroactive effect to a penal
provision favorable to the accused . . . is the writ of habeas
corpus." 48 While the above decision speaks of a trial judge losing
jurisdiction over the case, insofar as the remedy of habeas corpus is
concerned, the emphatic affirmation that it is the only means of
benefiting the accused by the retroactive character of a favorable
decision holds true. Petitioners clearly have thus successfully
sustained the burden of justifying their release.
WHEREFORE, the petition for habeas corpus is granted, and
it is ordered that petitioners be forthwith set at liberty.
Dizon and Zaldivar, JJ., concur.
Concepcion, C.J., concurs in the result.
Reyes, J.B.L., J., concurs with Mr. Justice Teehankee.
Makalintal, J., concurs and also in the concurring opinion of
Mr. Justice Teehankee.
Teehankee and Barredo, JJ., concur in their respective
separate opinions.
Villamor, J., concurs in the above decision as well as in the
concurring opinion of Mr. Justice Teehankee.
Castro and Makasiar, JJ., did not take part.
Separate Opinions
TEEHANKEE, J.:
The petitioners at bar, three of whom pleaded guilty 1 and
two of whom stood trial, 2 were meted out life terms in 1953, 1954
and 1955 for the so-called complex crime of rebellion with multiple
murder and other crimes, and have served or are now entering into
their 17th year of imprisonment, save for petitioner Epifanio Padua
who was sentenced on December 15, 1955 and is completing his
15th year of imprisonment, (excluding the periods they were under
pre-conviction detention). The leaders of the rebellion who were
meted out death and life sentences for the same charge by the
Court of First Instance of Manila had their sentences reduced last
year to ten years of  prision mayor by the Court in People v.
Laval, 3 wherein the Court expressly re-affirmed the doctrine first
laid down in 1956 in People vs. Hernandez, 4 that the crime of
rebellion cannot be complexed with other common crimes since
such common crimes "assume the political complexion of the main
crime of which they are mere ingredients and consequently cannot
be punished separately from the principal offense, or complexed
with the same, to justify the imposition of a graver penalty." The
Court rejected therein the State's plea for the re-examination and
setting aside of such doctrine, declaring that "(T)his Court has given
this plea of the Solicitor General a very serious consideration, but
after a mature deliberation the members of this Court have decided
to maintain that ruling in the Hernandez case and to adhere to what
this Court said in that case." The said leaders have since been duly
freed as having served out their penalty, but their followers, herein
petitioners, are still serving their life sentences.
I concede the validity of the ruling in Pomeroy vs. Director of
Prisons 5 that "(W)ith reference to persons in custody pursuant to a
final judgment, the rule is that the writ of habeas corpus can issue
only for want of jurisdiction of the sentencing court, and cannot
function as a writ of error." "I grant, too, that at the time of the
Pomeroy decision in 1960, as noted therein, "the existence of the
'complexed' rebellion (was) still upheld by a sizable number of
lawyers, prosecutors, judges and even justices of this Court." But
with the doctrine first enunciated in 1956 in Hernandez by a bare six-
to-four majority vote having withstood the test of time 6 and having
been just last year unreservedly reaffirmed without a single dissent
in Lava, it cannot now be gainsaid that it is now part of our legal
system that the crime of "complexed" rebellion does not exist in our
Revised Penal Code. No prosecutor would now file an information
for "complexed" rebellion but simply for the offense of simple
rebellion as defined in Article 134 of the Revised Penal Code, and
even if such an information for "complexed" rebellion to be so filed,
the trial courts would be bound to quash such information as not
charging an offense on the strength of Lava and Hernandez.
Petitioners have therefore properly invoked in their favor
the provisions of Article 22 of the Revised Penal Code that:
"ART. 22. Retroactive effect of penal laws. —
Penal laws shall have a retroactive effect insofar as
they favor the person guilty of a felony, who is not a
habitual criminal, as this term is defined in rule 5 of
article 62 of this Code, although at the time of the
publication of such laws a final sentence has been
pronounced and the convict is serving the same."
in relation to the provisions of Article 8 of the Civil Code that
"(J)udicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines."
 
The situation of petitioners is no different than it would be
if, say, the penalty of reclusion perpetua were imposed by statute for
the crime of simple rebellion at the time of their conviction and they
were accordingly sentenced, and the statutory penalty were now
reduced to prision mayor or 12 years imprisonment; having served
out the maximum penalty of 12 years now imposed by the amended
statute, they would be entitled to invoke the retroactive effect of the
statute favoring them. The only difference between the situation
given and the present case is that here it is this Supreme Court,
interpreting the laws in discharge of its constitutional prerogative,
that has laid down the doctrine since Hernandez in 1956 that no
offense of "complexed" rebellion exists and petitioners should
therefore be now equally entitled to the retroactive favorable effect
of such doctrine.
The actual case of petitioners is that at the time of their
conviction, it was believed — erroneously — that the crime
committed by them was punishable by life imprisonment, but the
Court has subsequently judicially determined it not be so and that
the maximum imposable penalty is  prision mayor or 12 years.
Petitioners-convicts are entitled to the benefit of this later judicial
declaration, just as if a statutory amendment had been enacted —
not because the sentencing court had no jurisdiction or is now
ousted of jurisdiction. The writ prayed for should issue, since as held
in Directo vs. Director of Prisons, 7 "the only means of giving
retroactive effect to a penal provision favorable to the accused
where the trial judge has lost jurisdiction over the case, is the writ of
habeas corpus."
The question of jurisdiction of the sentencing court
therefore is moot, for it is universally recognized that relief
by habeas corpus may be properly sought in cases of imposition of
excessive penalty, such that the part of the sentence beyond or in
excess of the power of the court to impose is held void, the applicant
having already served out the entire part of the sentence within the
court's power. 8 As pointed out by the Court in Rodriguez vs. Director
of Prisons, 9 furthermore, "Article 22 of the Revised Penal Code . . .
extends its benefits even to convicts serving sentence, and the only
legal remedy open to them to make use of such benefits is the writ
of habeas corpus inasmuch as, if the penalty imposed upon them
under the former penal law was decreased by the revised code, the
excess has become illegal."
Regardless, therefore, of whether the trial courts that
sentenced petitioners to life sentences had jurisdiction or not to
impose such penalty, or were right or wrong in imposing such
penalty, the only relevant question now is whether petitioners have
served the maximum — and lesser — sentence of prision mayor that
this Court has by firm judicial doctrine since 1956 determined to be
the penalty that the Revised Penal Code fixes for the crime of
rebellion. Since they have actually served much more than the
maximum imposable penalty, the excess of the sentence imposed
upon them over the imposable maximum of twelve years of  prision
mayor cannot but be declared illegal and they should now be set
free.
In People vs. Parel, 10 the Court held that the provisions of a
new law (Act 3030) for the prescription of certain election offenses
(fixing the same at one year after commission) were more favorable
to the accused than those of the pre-existing law and were therefore
retroactive as to the same offenses committed before the
enactment of the new law. In meeting the objection that the reduced
prescription period was by its terms applicable only to offenses
resulting from the new law (which amended the pre-existing Election
Law) and could not be given retroactive effect, the Court found "that
practically all of the offenses defined in the former law are also
defined in the same language in Act 3030 (the new law), the only
difference being that the penalties have been increased." Holding
that the retroactivity clause of Article 22 of the Penal Code must
apply in all in which the new law is more favorable to the accused, in
the absence of any express statutory exception, the Court drew this
analogy: "Let us suppose that a statute is enacted defining the crime
of murder in the same language in which it is defined in the Penal
Code, but providing that the maximum penalty for the crime defined
in the new statute shall be life imprisonment, the statute containing
no provision that it shall not be retroactive in its effect. Would
anyone then maintain that the death penalty might still be imposed
for murder committed before the new statute was enacted?"
The case at bar for petitioners is much stronger. Here, there
is no question even as to the enactment of a new statute describing
the crime in the same language and imposing a lesser penalty, but
the settled doctrine of this Court that there does not exist in our
legal system the complex crime of rebellion of which the petitioners
stand convicted, "since rebellion cannot form a complex with
common crimes, because the latter are either absorbed by the
rebellion itself or are punishable as independent
offenses." 11 Petitioners here have been convicted for the very same
rebellion and under the very same law for which their leaders, Jose
Lava et al., have been convicted. Yet, while their leaders have since
been freed after serving their sentences of ten years of prision
mayor, petitioners as mere followers are serving out the life
sentences imposed on them, notwithstanding their already having
served out much more than the maximum penalty of twelve years
of prision mayor imposable upon them. The fact that the legal
doubts about the non-existence of the crime of "complexed"
rebellion were cleared up only in 1956 after they had already been
convicted and were serving their sentences does not make the
excess in the penalty imposed upon them beyond the maximum of
twelve years any less illegal.
The rule of prospective and non-retroactive operation of
judicial doctrines, and its corollary rule of the law of the case, have
no application here. These salutary rules decree that rights of
parties having been decisively settled and determined by final
judgment of the court of competent jurisdiction with the party
adversely affected having had the opportunity to raise in the case all
relevant questions, the decision becomes the law of the case, and
vested rights would be impaired, judicial chaos and disorder ensue
and litigation would be never-ending and would become more
intolerable than the wrongs it is intended to redress, should an
adjudicated case be reopened simply because in another and
subsequent case, this Court adopted a new or different construction
of the law under which a different result of the adjudicated case
might have been obtained. Here, the whole question turns — simply
— on the nature of the crime of rebellion as defined in section 134
of the Revised Penal Code and the maximum penalty imposable
therefor under section 135 of the same Code. As this Court had
ruled since 1956 — which is now settled doctrine — that only the
crime of simple rebellion exists in our legal system for which the
maximum penalty of  prision mayor may be imposed, the excess of
the life sentences imposed upon petitioners over the imposable
 maximum of prision mayor cannot stand and must necessarily be
declared void.

Prescinding then from the question of jurisdiction of the

sentencing courts, the case at bar presents a clear case of an excess
in penalty imposed beyond twelve years of  prision mayor which has
become illegal by virtue of this Court's settled doctrine that the
crime of rebellion cannot be complexed with other common crimes.
On this ground, as well as on the further and more fundamental
ground that to hold them liable to continue serving life sentences for
a crime that the law — at the time of their conviction as well as now
— punishes only with prision mayor which they have more than fully
served, would be to deny them their constitutional rights of due
process and equal protection of the law.

Any further detention of petitioners, in my view as above

discussed, is illegal and unconstitutional and the petition for habeas
corpus should be granted and petitioners forthwith set at liberty.

|||  (Gumabon v. Director of the Bureau of Prisons, G.R. No. L-30026,

[January 30, 1971], 147 PHIL 362-382)

[G.R. No. 184467. June 19, 2012.]

EDGARDO NAVIA, 1 RUBEN DIO, 2 and ANDREW

BUISING,  petitioners,vs.VIRGINIA PARDICO, for and
in behalf and in representation of BENHUR V.
PARDICO,  respondent.

DECISION

DEL CASTILLO,  J  p:
 For the protective writ of amparo  to issue in enforced
disappearance cases, allegation and proof that the persons subject
thereof are missing are not enough. It must also be shown by the
required quantum of proof that their disappearance was carried out by,
"or with the authorization, support or acquiescence of, [the government]
or a political organization, followed by a refusal to acknowledge [the
same or] give information on the fate or whereabouts of [said missing]
persons." 3
This petition for review on certiorari 4 filed in relation to Section
19 of A.M. No. 07-9-12-SC 5 challenges the July 24, 2008 Decision 6 of the
Regional Trial Court (RTC),Branch 20, Malolos City which granted the
Petition for Writ of Amparo 7 filed by herein respondent against the
petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m.,a vehicle of Asian Land
Strategies Corporation 8 (Asian Land) arrived at the house of Lolita M.
Lapore (Lolita) located at 7A Lot 9, Block 54, Grand Royale
Subdivision, Barangay  Lugam, Malolos City. The arrival of the vehicle
awakened Lolita's son, Enrique Lapore (Bong),and Benhur Pardico
(Ben),who were then both staying in her house. When Lolita went out to
investigate, she saw two uniformed guards disembarking from the
vehicle. One of them immediately asked Lolita where they could find her
son Bong. Before Lolita could answer, the guard saw Bong and told him
that he and Ben should go with them to the security office of Asian Land
because a complaint was lodged against them for theft of electric wires
and lamps in the subdivision. 9
Shortly thereafter, Bong, Lolita and Ben were in the office of the
security department of Asian Land also located in Grand Royale
Subdivision. 10 The supervisor of the security guards, petitioner Edgardo
Navia (Navia),also arrived thereat.
As to what transpired next, the parties' respective versions
diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office
because they received a report from a certain Mrs. Emphasis, a resident
of Grand Royale Subdivision, that she saw Bong and Ben removing a
lamp from a post in said subdivision. 11 The reported unauthorized
taking of the lamp was relayed thru radio to petitioners Ruben Dio (Dio)
and Andrew Buising (Buising),who both work as security guards at the
Asian Land security department. Following their department's standard
operating procedure, Dio and Buising entered the report in their logbook
and proceeded to the house of Mrs. Emphasis. It was there where Dio
and Buising were able to confirm who the suspects were. They thus
repaired to the house of Lolita where Bong and Ben were staying to
invite the two suspects to their office. Bong and Ben voluntarily went
with them. TDAHCS
At the security office, Dio and Buising interviewed Bong and
Ben. The suspects admitted that they took the lamp but clarified that
they were only transferring it to a post nearer to the house of
Lolita. 12 Soon, Navia arrived and Buising informed him that the
complainant was not keen in participating in the investigation. Since
there was no complainant, Navia ordered the release of Bong and Ben.
Bong then signed a statement to the effect that the guards released him
without inflicting any harm or injury to him. 13 His mother Lolita also
signed the logbook below an entry which states that she will never again
harbor or entertain Ben in her house. Thereafter, Lolita and Bong left the
security office.
Ben was left behind as Navia was still talking to him about those
who might be involved in the reported loss of electric wires and lamps
within the subdivision. After a brief discussion though, Navia allowed
Ben to leave. Ben also affixed his signature on the logbook to affirm the
statements entered by the guards that he was released unharmed and
without any injury. 14
Upon Navia's instructions, Dio and Buising went back to the
house of Lolita to make her sign the logbook as witness that they indeed
released Ben from their custody. Lolita asked Buising to read aloud that
entry in the logbook where she was being asked to sign, to which Buising
obliged. Not contented, Lolita put on her reading glasses and read the
entry in the logbook herself before affixing her signature therein. After
which, the guards left.
Subsequently, petitioners received an invitation 15 from the
Malolos City Police Station requesting them to appear thereat on April
17, 2008 relative to the complaint of Virginia Pardico (Virginia) about her
missing husband Ben. In compliance with the invitation, all three
petitioners appeared at the Malolos City Police Station. However, since
Virginia was not present despite having received the same invitation, the
meeting was reset to April 22, 2008. 16
On April 22, 2008, Virginia attended the investigation. Petitioners
informed her that they released Ben and that they have no information
as to his present whereabouts. 17 They assured Virginia though that they
will cooperate and help in the investigation of her missing husband. 18
Version of the Respondent
Upon Lolita's inquiry as to why she had to sign again, Navia explained
that they needed proof that they released her son Bong unharmed but
that Ben had to stay as the latter's case will be forwarded to
the barangay. Since she has poor eyesight, Lolita obligingly signed the
logbook without reading it and then left with Bong. 24 At that juncture,
Ben grabbed Bong and pleaded not to be left alone. However, since they
were afraid of Navia, Lolita and Bong left the security office at once
leaving Ben behind. 25 EHCcIT
Moments after Lolita and Bong reached their house, Buising
arrived and asked Lolita to sign the logbook again. Lolita asked Buising
why she had to sign again when she already twice signed the logbook at
the headquarters. Buising assured her that what she was about to sign
only pertains to Bong's release. Since it was dark and she has poor
eyesight, Lolita took Buising's word and signed the logbook without,
again, reading what was written in it. 26

According to respondent, Bong and Ben were not merely The following morning, Virginia went to the Asian Land security
invited. They were unlawfully arrested, shoved into the Asian Land office to visit her husband Ben, but only to be told that petitioners had
vehicle and brought to the security office for investigation. Upon seeing already released him together with Bong the night before. She then
Ben at the security office, Navia lividly grumbled "Ikaw na looked for Ben, asked around, and went to the barangay. Since she could
naman?" 19 and slapped him while he was still seated. Ben begged for not still find her husband, Virginia reported the matter to the police.
mercy, but his pleas were met with a flurry of punches coming from
In the course of the investigation on Ben's disappearance, it
Navia hitting him on different parts of his body. 20 Navia then took hold
dawned upon Lolita that petitioners took advantage of her poor eyesight
of his gun, looked at Bong, and said, "Wala kang nakita at wala kang
and naivete. They made her sign the logbook as a witness that they
narinig, papatayin ko na si Ben."  21
already released Ben when in truth and in fact she never witnessed his
Bong admitted that he and Ben attempted to take the lamp. He actual release. The last time she saw Ben was when she left him in
explained that the area where their house is located is very dark and his petitioners' custody at the security office. 27
father had long been asking the administrator of Grand Royale
Exasperated with the mysterious disappearance of her
Subdivision to install a lamp to illumine their area. But since nothing
husband, Virginia filed a Petition for Writ of Amparo  28 before the RTC of
happened, he took it upon himself to take a lamp from one of the posts
Malolos City. Finding the petition sufficient in form and substance,
in the subdivision and transfer it to a post near their house. However,
the amparo  court issued an Order 29 dated June 26, 2008 directing,
the lamp Bong got was no longer working. Thus, he reinstalled it on the
among others, the issuance of a writ of amparo  and the production of
post from which he took it and no longer pursued his plan. 22
the body of Ben before it on June 30, 2008. Thus:
Later on, Lolita was instructed to sign an entry in the guard's
WHEREFORE, conformably with Section 6 of
logbook where she undertook not to allow Ben to stay in her house
the Supreme Court Resolution [in] A.M. No. 07-[9]-12-
anymore. 23 Thereafter, Navia again asked Lolita to sign the logbook.
SC, also known as "The Rule on the Writ of Amparo",
let a writ of amparo be issued, as follows:
(1) ORDERING [petitioners] Edgardo Navia,
Ruben Dio and Andrew Buising of
the Asian Land Security Agency to
produce before the Court the body
of aggrieved party Benhur Pardico,
on Monday, June 30, 2008, at 10:30
a.m.;
(2) ORDERING the holding of a summary
hearing of the petition on the
aforementioned date and time, and
DIRECTING the [petitioners] to
personally appear thereat;
(3) COMMANDING [petitioners] Edgardo
Navia, Ruben Dio and Andrew
Buising to file, within a non-
extendible period of seventy-two
(72) hours from service of the writ, a
verified written return with
supporting affidavits which shall,
among other things, contain the
following:
a) The lawful defenses to show that
the [petitioners] did not
violate or threaten with
violation the right to life,
liberty and security of the
aggrieved party, through
any act or omission;
b) The steps or actions taken by the
[petitioners] to determine
the fate or whereabouts of
the aggrieved party and the
person or persons
responsible for the threat,
act or omission; and
c) All relevant information in the
possession of the
[petitioners] pertaining to
the threat, act or omission
against the aggrieved party.
(4) GRANTING, motu proprio,  a Temporary
Protection Order prohibiting the
[petitioners],or any persons acting
for and in their behalf, under pain of
contempt, from threatening,
harassing or inflicting any harm to
[respondent],his immediate family
and any [member] of his household.
The Branch Sheriff is directed to immediately
serve personally on the [petitioners],at their address
indicated in the petition, copies of the writ as well as
this order, together with copies of the petition and its
annexes. 30
A Writ of Amparo  31 was accordingly issued and served on the
petitioners on June 27, 2008. 32 On June 30, 2008, petitioners filed their
Compliance 33 praying for the denial of the petition for lack of
merit. CHIaTc
A summary hearing was thereafter conducted. Petitioners
presented the testimony of Buising, while Virginia submitted the sworn
statements 34 of Lolita and Enrique which the two affirmed on the
witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged
Decision 35 granting the petition. It disposed as follows:
 WHEREFORE, the Court hereby grants the
privilege of the writ of amparo, and deems it proper
and appropriate, as follows:
(a) To hereby direct the National Bureau of
Investigation (NBI) to immediately conduct a deep
and thorough investigation of the [petitioners]
Edgardo Navia, Ruben Dio and Andrew Buising in
connection with the circumstances surrounding the
disappearance of [Benhur] Pardico, utilizing in the
process, as part of the investigation, the documents
forming part of the records of this case;
(b) To hereby direct the NBI to extend to the
family of [Benhur] Pardico and the witnesses who
testified in this case protection as it may deem
necessary to secure their safety and security; and
(c) To hereby direct the Office of the
Provincial Prosecutor of Bulacan to investigate the
circumstances concerning the legality of the arrest of
[Benhur] Pardico by the [petitioners] in this case,
utilizing in the process, as part of said investigation,
the pertinent documents and admissions forming
part of the record of this case, and take whatever
course/s of action as may be warranted.
Furnish immediately copies of this decision
to the NBI, through the Office of Director Nestor
Mantaring, and to the Provincial Prosecutor of
Bulacan.
SO ORDERED. 36
Petitioners filed a Motion for Reconsideration 37 which was
denied by the trial court in an Order 38 dated August 29, 2008.
Hence, this petition raising the following issues for our
consideration:
4.1. WHETHER ...THE HONORABLE TRIAL
COURT GRAVELY ERRED IN RULING THAT
RESPONDENT IS ENTITLED TO THE PRIVILEGE OF THE
WRIT OF AMPARO.
4.1.1. WHETHER ...RESPONDENT
WAS ABLE TO ESTABLISH THAT PETITIONERS
HAVE COMMITTED OR ARE COMMITTING
ACTS IN VIOLATION OF HER HUSBAND'S
RIGHT TO LIFE, LIBERTY, OR SECURITY.
4.1.2. WHETHER ...RESPONDENT
SUFFICIENTLY ESTABLISHED THE FACT OF
THE DISAPPEARANCE OF BENHUR
PARDICO. cSHATC
4.1.3. WHETHER ...RESPONDENT
WAS ABLE TO ESTABLISH THAT THE ALLEGED
DISAPPEARANCE OF BENHUR PARDICO WAS
AT THE INSTANCE OF HEREIN
PETITIONERS. 39
Petitioners' Arguments
Petitioners essentially assail the sufficiency of
the amparo petition. They contend that the writ of amparo is available
only in cases where the factual and legal bases of the violation or
threatened violation of the aggrieved party's right to life, liberty and
security are clear. Petitioners assert that in the case at bench, Virginia
miserably failed to establish all these. First, the petition is wanting on its
face as it failed to state with some degree of specificity the alleged
unlawful act or omission of the petitioners constituting a violation of or a
threat to Ben's right to life, liberty and security. And second, it cannot be
deduced from the evidence Virginia adduced that Ben is missing; or that
petitioners had a hand in his alleged disappearance. On the other hand,
the entries in the logbook which bear the signatures of Ben and Lolita
are eloquent proof that petitioners released Ben on March 31, 2008 at
around 10:30 p.m. Petitioners thus posit that the trial court erred in
issuing the writ and in holding them responsible for Ben's
disappearance.
 Our Ruling
Virginia's Petition for Writ of Amparo  is fatally defective and
must perforce be dismissed, but not for the reasons adverted to by the
petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo  was
promulgated to arrest the rampant extralegal killings and enforced
disappearances in the country. Its purpose is to provide an expeditious
and effective relief "to any person whose right to life, liberty and security
is violated or threatened with violation by an unlawful act or omission of
a public official or employee, or of a private individual or entity." 40
Here, Ben's right to life, liberty and security is firmly settled as
the parties do not dispute his identity as the same person summoned
and questioned at petitioners' security office on the night of March 31,
2008. Such uncontroverted fact ipso facto  established Ben's inherent and
constitutionally enshrined right to life, liberty and security. Article 6 41 of
the International Covenant on Civil and Political Rights 42 recognizes
every human being's inherent right to life, while Article 9 43 thereof
ordains that everyone has the right to liberty and security. The right to
life must be protected by law while the right to liberty and security
cannot be impaired except on grounds provided by and in accordance
with law. This overarching command against deprivation of life, liberty
and security without due process of law is also embodied in our
fundamental law. 44
The pivotal question now that confronts us is whether Ben's
disappearance as alleged in Virginia's petition and proved during the
summary proceedings conducted before the court a quo,  falls within the
ambit of A.M. No. 07-9-12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1.  Petition.  — The petition for a writ
of amparo  is a remedy available to any person whose
right to life, liberty and security is violated or
threatened with violation by an unlawful act or
omission of a public official or employee, or of a
private individual or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.  (Emphasis
ours.)
While Section 1 provides A.M. No. 07-9-12-SC's coverage, said
Rules does not, however, define extralegal killings and enforced
disappearances. This omission was intentional as the Committee on
Revision of the Rules of Court which drafted A.M. No. 07-9-12-SC chose
to allow it to evolve through time and jurisprudence and through
substantive laws as may be promulgated by Congress. 45 Then, the
budding jurisprudence on amparo blossomed in Razon, Jr. v.
Tagitis  46 when this Court defined enforced disappearances. The Court
in that case applied the generally accepted principles of international law
and adopted the International Convention for the Protection of All
Persons from Enforced Disappearance's definition of enforced
disappearances, as "the arrest, detention, abduction or any other form
of deprivation of liberty  by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence of the
State,  followed by a refusal to acknowledge the deprivation of liberty or
by concealment of the fate or whereabouts of the disappeared person,
which place such a person outside the protection of the law." 47
Not long thereafter, another significant development
affecting A.M. No. 07-9-12-SC came about after Congress
enacted Republic Act (RA) No. 9851 48 on December 11, 2009. Section 3
(g) thereof defines enforced or involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of
persons" means the arrest, detention, or
abduction of persons by, or with the
authorization, support or acquiescence of, a
State or a political organization followed by a
refusal to acknowledge that deprivation of
freedom or to give information on the fate or
whereabouts of those persons, with the
intention of removing from the protection of
the law for a prolonged period of time.
 Then came Rubrico v. Macapagal-Arroyo 49 where Justice Arturo
D. Brion wrote in his Separate Opinion that with the enactment of RA No.
9851, "the Rule on the Writ of Amparo is now a procedural law anchored,
not only on the constitutional rights to the rights to life, liberty and
security, but on a concrete statutory definition as well of what an
'enforced or involuntary disappearance' is." 50 Therefore, A.M. No. 07-9-
12-SC's reference to enforced disappearances should be construed to
mean the enforced or involuntary disappearance of persons
contemplated in Section 3 (g) of RA No. 9851. Meaning, in probing
enforced disappearance cases, courts should read A.M. No. 07-9-12-SC in
relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus,
we can derive the following elements that constitute it: HcaDIA
(a) that there be an arrest, detention, abduction or
any form of deprivation of liberty;
(b) that it be carried out by, or with the authorization,
support or acquiescence of, the State or a
political organization;
(c) that it be followed by the State or political
organization's refusal to acknowledge or give
information on the fate or whereabouts of
the person subject of the amparo petition;
and,
(d) that the intention for such refusal is to remove
subject person from the protection of the
law for a prolonged period of time.
As thus dissected, it is now clear that for the protective writ
of amparo to issue, allegation and proof that the persons subject
thereof are missing are not enough. It must also be shown and
proved by substantial evidence that the disappearance was carried
out by, or with the authorization, support or acquiescence of, the
State or a political organization, followed by a refusal to
acknowledge the same or give information on the fate or
whereabouts of said missing persons, with the intention of
removing them from the protection of the law for a prolonged
period of time. Simply put, the petitioner in an amparo case has the
burden of proving by substantial evidence the indispensable
element of government participation.
In the present case, we do not doubt Bong's testimony that
Navia had a menacing attitude towards Ben and that he slapped and
inflicted fistic blows upon him. Given the circumstances and the
pugnacious character of Navia at that time, his threatening
statement, "Wala kang nakita at wala kang narinig, papatayin ko na si
Ben," cannot be taken lightly. It unambiguously showed his
predisposition at that time. In addition, there is nothing on record which
would support petitioners' assertion that they released Ben on the night
of March 31, 2008 unscathed from their wrath. Lolita sufficiently
explained how she was prodded into affixing her signatures in the
logbook without reading the entries therein. And so far, the information
petitioners volunteered are sketchy at best, like the alleged complaint of
Mrs. Emphasis who was never identified or presented in court and
whose complaint was never reduced in writing.
But lest it be overlooked, in an amparo petition, proof of
disappearance alone is not enough. It is likewise essential to establish
that such disappearance was carried out with the direct or indirect
authorization, support or acquiescence of the government. This
indispensable element of State participation is not present in this case.
The petition does not contain any allegation of State complicity, and
none of the evidence presented tend to show that the government or
any of its agents orchestrated Ben's disappearance. In fact, none of its
agents, officials, or employees were impleaded or implicated in
Virginia's amparo petition whether as responsible or accountable
persons. 51 Thus, in the absence of an allegation or proof that the
government or its agents had a hand in Ben's disappearance or that they
failed to exercise extraordinary diligence in investigating his case, the
Court will definitely not hold the government or its agents either as
responsible or accountable persons.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ
of amparo  may lie against a private individual or entity. But even if the
person sought to be held accountable or responsible in
an  amparo  petition is a private individual or entity, still, government
involvement in the disappearance remains an indispensable element.
Here, petitioners are mere security guards at Grand Royale Subdivision
in Brgy.  Lugam, Malolos City and their principal, the Asian Land, is a
private entity. They do not work for the government and nothing has
been presented that would link or connect them to some covert police,
military or governmental operation. As discussed above, to fall within the
ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the
disappearance must be attended by some governmental involvement.
This hallmark of State participation differentiates an enforced
disappearance case from an ordinary case of a missing person.

WHEREFORE, the July 24, 2008 Decision of the Regional Trial

Court, Branch 20, Malolos City, is REVERSED and SET ASIDE. The Petition
for Writ of Amparo  filed by Virginia Pardico is hereby DISMISSED.

SO ORDERED.

[G.R. No. 141528. October 31, 2006.]

OSCAR P. MALLION,  petitioner, vs. EDITHA

ALCANTARA,  respondent.

DECISION
AZCUNA,  J  p:
This is a petition for review on certiorari under Rule 45 of
the Rules of Court raising a question of law: Does a previous final
judgment denying a petition for declaration of nullity on the ground
of psychological incapacity bar a subsequent petition for declaration
of nullity on the ground of lack of marriage license?
The facts are not disputed:
On October 24, 1995, petitioner Oscar P. Mallion filed a
petition 1 with the Regional Trial Court (RTC), Branch 29, of San
Pablo City seeking a declaration of nullity of his marriage to
respondent Editha Alcantara under Article 36 of Executive Order No.
209, as amended, otherwise known as the Family Code, citing
respondent's alleged psychological incapacity. The case was
docketed as Civil Case No. SP 4341-95. After trial on the merits, the
RTC denied the petition in a decision 2 dated November 11, 1997
upon the finding that petitioner "failed to adduce preponderant
evidence to warrant the grant of the relief he is seeking." 3 The
appeal filed with the Court of Appeals was likewise dismissed in a
resolution 4 dated June 11, 1998 for failure of petitioner to pay the
docket and other lawful fees within the reglementary period. HDICSa
After the decision in Civil Case No. SP 4341-95 attained
finality, petitioner filed on July 12, 1999 another petition 5 for
declaration of nullity of marriage with the RTC of San Pablo City, this
time alleging that his marriage with respondent was null and void
due to the fact that it was celebrated without a valid marriage
license. For her part, respondent filed an answer with a motion to
dismiss 6 dated August 13, 1999, praying for the dismissal of the
petition on the ground of res judicata and forum shopping.
In an order 7 dated October 8, 1999, the RTC granted
respondent's motion to dismiss, the dispositive portion of which
reads:
WHEREFORE, for Forum Shopping and
Multiplicity of Suits, the Motion to Dismiss is
GRANTED. This case is DISMISSED.
SO ORDERED. 8
Petitioner's motion for reconsideration was also denied in
an order 9 dated January 21, 2000.
Hence, this petition which alleges, as follows:
A. IN DISMISSING PETITIONER'S PETITION FOR THE
DECLARATION OF HIS MARRIAGE AS NULL
AND VOID AB INITIO FOR LACK OF THE
REQUISITE MARRIAGE LICENSE BECAUSE OF
(THE) DISMISSAL OF AN EARLIER PETITION
FOR DECLARATION OF NULLITY OF THE
SAME MARRIAGE ON THE GROUND OF HIS
WIFE'S PSYCHOLOGICAL INCAPACITY UNDER
ARTICLE 36 OF THE FAMILY CODE, THE TRIAL
COURT HAD DECIDED A QUESTION OF
SUBSTANCE WHICH HAS PROBABLY NOT
HERETOFORE BEEN DETERMINED SQUARELY
AND DEFINITIVELY BY THIS COURT, OR HAD
DECIDED IT IN A WAY NOT IN ACCORD WITH
LAW. IHCSET
B. IN DISMISSING PETITIONER'S PETITION FOR THE
DECLARATION OF NULLITY OF HIS MARRIAGE
FOR LACK OF THE REQUISITE MARRIAGE
LICENSE, THE TRIAL COURT HAD CONFUSED,
DISTORTED AND MISAPPLIED THE
FUNDAMENTAL RULES AND CONCEPTS ON
RES JUDICATA, SPLITTING OF A CAUSE OF
ACTION AND FORUM SHOPPING. 10
Petitioner argues that while the relief prayed for in the two
cases was the same, that is, the declaration of nullity of his marriage
to respondent, the cause of action in the earlier case was distinct
and separate from the cause of action in the present case because
the operative facts upon which they were based as well as the
evidence required to sustain either were different. Because there is
no identity as to the cause of action, petitioner claims that res
judicata does not lie to bar the second petition. In this connection,
petitioner maintains that there was no violation of the rule on forum
shopping or of the rule which proscribes the splitting of a cause of
action.
On the other hand, respondent, in her comment dated May
26, 2000, counters that while the present suit is anchored on a
different ground, it still involves the same issue raised in Civil Case
No. SP 4341-95, that is, the validity of petitioner and respondent's
marriage, and prays for the same remedy, that is, the declaration of
nullity of their marriage. Respondent thus contends that petitioner
violated the rule on forum shopping. Moreover, respondent asserts
that petitioner violated the rule on multiplicity of suits as the ground
he cites in this petition could have been raised during the trial in Civil
Case No. SP 4341-95.
The petition lacks merit.
The issue before this Court is one of first impression.
Should the matter of the invalidity of a marriage due to the
absence of an essential requisite prescribed by Article 4 of
the Family Code be raised in the same proceeding where the
marriage is being impugned on the ground of a party's
psychological incapacity under Article 36 of the Family
Code? aIAHcE
Petitioner insists that because the action for declaration of
nullity of marriage on the ground of psychological incapacity and the
action for declaration of nullity of marriage on the ground of
absence of marriage license constitute separate causes of action,
the present case would not fall under the prohibition against
splitting a single cause of action nor would it be barred by the
principle of res judicata.
The contention is untenable.
Res judicata is defined as "a matter adjudged; a thing
judicially acted upon or decided; a thing or matter settled by
judgment. It also refers to the rule that a final judgment or decree
on the merits by a court of competent jurisdiction is conclusive of
the rights of the parties or their privies in all later suits on points and
matters determined in the former suit." 11
This doctrine is a rule which pervades every well-regulated
system of jurisprudence and is founded upon the following precepts
of common law, namely: (1) public policy and necessity, which makes
it to the interest of the State that there should be an end to
litigation, and (2) the hardship on the individual that he should be
vexed twice for the same cause. A contrary doctrine would subject
the public peace and quiet to the will and neglect of individuals and
prefer the gratification of the litigious disposition on the part of
suitors to the preservation of the public tranquility and
happiness. 12
In this jurisdiction, the concept of res judicata is embodied in
Section 47 (b) and (c) of Rule 39 of the Rules of Court, thus:
SEC. 47. Effect of judgments or final orders.
— The effect of a judgment or final order rendered by
a court of the Philippines, having jurisdiction to
pronounce the judgment or final order, may be as
follows:
(a) In case of a judgment or final order
against a specific thing or in respect to the probate of
a will, or the administration of the estate of a
deceased person, or in respect to the personal,
political, or legal condition or status of a particular
person or his relationship to another, the judgment
or final order is conclusive upon the title to the thing,
the will or administration, or the condition, status or
relationship of the person; however, the probate of a
will or granting of letters of administration shall only
be  prima facie evidence of the death of the testator
or intestate; DcAaSI
(b) In other cases, the judgment or final
order is, with respect to the matter directly
adjudged or as to any other matter that could
have been raised in relation thereto, conclusive
between the parties and their successors in
interest by title subsequent to the
commencement of the action or special
 proceeding, litigating for the same thing and
under the same title and in the same capacity;
and,
(c) In any other litigation between the
same parties or their successors in interest, that
only is deemed to have been adjudged in a former
judgment or final order which appears upon its
face to have been so adjudged, or which was
actually and necessarily included therein or
necessary thereto.
The above provision outlines the dual aspect of res
judicata. 13 Section 47 (b) pertains to it in its concept as "bar by prior
judgment" or "estoppel by verdict," which is the effect of a judgment
as a bar to the prosecution of a second action upon the same claim,
demand or cause of action. On the other hand, Section 47 (c)
pertains to res judicata in its concept as "conclusiveness of
judgment" or otherwise known as the rule of auter action
pendant which ordains that issues actually and directly resolved in a
former suit cannot again be raised in any future case between the
same parties involving a different cause of action. 14 Res
judicata in its concept as a bar by prior judgment obtains in the
present case.
Res judicata in this sense requires the concurrence of the
following requisites: (1) the former judgment is  final; (2) it is
rendered by a court having jurisdiction over the subject matter and
the parties; (3) it is a judgment or an order on the merits; and (4)
there is — between the first and the second actions — identity of
parties, of subject matter, and of causes of action. 15
Petitioner does not dispute the existence of the first three
requisites. What is in issue is the presence of the fourth requisite. In
this regard, the test to determine whether the causes of action are
identical is to ascertain whether the same evidence will sustain both
actions, or whether there is an identity in the facts essential to the
maintenance of the two actions. If the same facts or evidence would
sustain both, the two actions are considered the same, and a
judgment in the first case is a bar to the subsequent action. 16
Based on this test, petitioner would contend that the two
petitions brought by him seeking the declaration of nullity of his
marriage are anchored on separate causes of action for the
evidence necessary to sustain the first petition which was anchored
on the alleged psychological incapacity of respondent is different
from the evidence necessary to sustain the present petition which is
anchored on the purported absence of a marriage license. CScTDE
Petitioner, however, forgets that he is simply invoking
different grounds for the same cause of action. By definition, a cause
of action is the act or omission by which a party violates the right of
another. 17 In both petitions, petitioner has the same cause — the
declaration of nullity of his marriage to respondent. What differs is
the ground upon which the cause of action is predicated. These
grounds cited by petitioner essentially split the various aspects of
the pivotal issue that holds the key to the resolution of this
controversy, that is, the actual status of petitioner and respondent's
marriage.
Furthermore, the instant case is premised on the claim that
the marriage is null and void because no valid celebration of the
same took place due to the alleged lack of a marriage license. In Civil
Case No. SP 4341-95, however, petitioner impliedly conceded that
the marriage had been solemnized and celebrated in accordance
with law. Petitioner is now bound by this admission. The alleged
absence of a marriage license which petitioner raises now could
have been presented and heard in the earlier case. Suffice it to state
that parties are bound not only as regards every matter offered and
received to sustain or defeat their claims or demand but as to any
other admissible matter which might have been offered for that
purpose and of all other matters that could have been adjudged in
that case. 18
It must be emphasized that a party cannot evade or avoid
the application of res judicata by simply varying the form of his
action or adopting a different method of presenting his case. 19 As
this Court stated in Perez v. Court of Appeals: 20
. . . the statement of a different form of
liability is not a different cause of action, provided it
 grows out of the same transaction or act and seeks he is barred by law from litigating the same controversy all over
redress for the wrong. Two actions are not again. 21
necessarily for different causes of action simply
Therefore, having expressly and impliedly conceded the
because the theory of the second would not have
validity of their marriage celebration, petitioner is now deemed to
been open under the pleadings in the first. A party
have waived any defects therein. For this reason, the Court finds
cannot preserve the right to bring a second action
that the present action for declaration of nullity of marriage on the
after the loss of the first merely by having
ground of lack of marriage license is barred by the decision dated
circumscribed and limited theories of recovery
November 11, 1997 of the RTC, Branch 29, of San Pablo City, in Civil
opened by the pleadings in the first. prcd
Case No. SP 4341-95.
It bears stressing that a party cannot divide WHEREFORE, the petition is DENIED for lack of merit. Costs
the grounds for recovery. A plaintiff is mandated to against petitioner.
place in issue in his pleading, all the issues
existing when the suit began. A lawsuit cannot be |||  (Mallion v. Alcantara, G.R. No. 141528, [October 31, 2006], 536 PHIL
tried piecemeal. The plaintiff is bound to set forth 1049-1058)
in his first action every ground for relief which he
claims to exist and upon which he relied, and
cannot be permitted to rely upon them by
piecemeal in successive action to recover for the
same wrong or injury.

A party seeking to enforce a claim, legal

or equitable, must present to the court, either by
the pleadings or proofs, or both, on the grounds
upon which to expect a judgment in his favor. He
is not at liberty to split up his demands, and
prosecute it by piecemeal or present only a
portion of the grounds upon which a special relief
is sought and leave the rest to the presentment in
a second suit if the first fails. There would be no
end to litigation if such piecemeal presentation is
allowed. (Citations omitted.)

In sum, litigants are provided with the options on the

course of action to take in order to obtain judicial relief. Once an
option has been taken and a case is filed in court, the parties must
ventilate all matters and relevant issues therein. The losing party
who files another action regarding the same controversy will be
needlessly squandering time, effort and financial resources because

[G.R. No. 196049. June 26, 2013.]
MINORU FUJIKI,  petitioner, vs. MARIA PAZ GALELA
MARINAY, SHINICHI MAEKARA, LOCAL CIVIL
REGISTRAR OF QUEZON CITY, and THE
ADMINISTRATOR AND CIVIL REGISTRAR GENERAL
OF THE NATIONAL STATISTICS OFFICE,  respondents.
DECISION
CARPIO,  J  p:
The Case
This is a direct recourse to this Court from the Regional Trial
Court (RTC), Branch 107, Quezon City, through a petition for review
on certiorari  under Rule 45 of the Rules of Court on a pure question of
law. The petition assails the Order 1 dated 31 January 2011 of the RTC in
Civil Case No. Q-11-68582 and its Resolution dated 2 March 2011
denying petitioner's Motion for Reconsideration. The RTC dismissed the
petition for "Judicial Recognition of Foreign Judgment (or Decree of
Absolute Nullity of Marriage)" based on improper venue and the lack of
personality of petitioner, Minoru Fujiki, to file the petition.
The Facts
Petitioner Minoru Fujiki (Fujiki) is a Japanese national who
married respondent Maria Paz Galela Marinay (Marinay) in the
Philippines 2 on 23 January 2004. The marriage did not sit well with
petitioner's parents. Thus, Fujiki could not bring his wife to Japan where
he resides. Eventually, they lost contact with each other.
In 2008, Marinay met another Japanese, Shinichi Maekara
(Maekara). Without the first marriage being dissolved, Marinay and
Maekara were married on 15 May 2008 in Quezon City, Philippines.
Maekara brought Marinay to Japan. However, Marinay allegedly suffered
physical abuse from Maekara. She left Maekara and started to contact
Fujiki. 3
Fujiki and Marinay met in Japan and they were able to
reestablish their relationship. In 2010, Fujiki helped Marinay obtain a
judgment from a family court in Japan which declared the marriage
between Marinay and Maekara void on the ground of bigamy. 4 On 14
January 2011, Fujiki filed a petition in the RTC entitled: "Judicial
Recognition of Foreign Judgment (or Decree of Absolute Nullity of
Marriage)." Fujiki prayed that (1) the Japanese Family Court judgment be
recognized; (2) that the bigamous marriage between Marinay and
Maekara be declared void ab initio under Articles 35 (4) and 41 of
the Family Code of the Philippines; 5 and (3) for the RTC to direct the
Local Civil Registrar of Quezon City to annotate the Japanese Family
Court judgment on the Certificate of Marriage between Marinay and
Maekara and to endorse such annotation to the Office of the
Administrator and Civil Registrar General in the National Statistics Office
(NSO). 6
The Ruling of the Regional Trial Court
A few days after the filing of the petition, the RTC immediately
issued an Order dismissing the petition and withdrawing the case from
its active civil docket. 7 The RTC cited the following provisions of the Rule
on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC):
Sec. 2. Petition for declaration of absolute nullity of
void marriages. —
(a) Who may file. — A petition for declaration of
absolute nullity of void marriage may be filed solely
by the husband or the wife.
xxx xxx xxx
Sec. 4. Venue. — The petition shall be filed in the
Family Court of the province or city where the
petitioner or the respondent has been residing for
at least six months prior to the date of filing, or in
the case of a non-resident respondent, where he
may be found in the Philippines, at the election of
the petitioner. . . .
The RTC ruled, without further explanation, that the petition was in
"gross violation" of the above provisions. The trial court based its
dismissal on Section 5 (4) of A.M. No. 02-11-10-SC which provides
that "[f]ailure to comply with any of the preceding requirements may
be a ground for immediate dismissal of the petition." 8 Apparently,
the RTC took the view that only "the husband or the wife," in this
case either Maekara or Marinay, can file the petition to declare their
marriage void, and not Fujiki.
Fujiki moved that the Order be reconsidered. He argued
that A.M. No. 02-11-10-SC contemplated ordinary civil actions for
declaration of nullity and annulment of marriage. Thus, A.M. No. 02-11-
10-SC does not apply. A petition for recognition of foreign judgment is a
special proceeding, which "seeks to establish a status, a right or a
particular fact," 9 and not a civil action which is "for the enforcement or
protection of a right, or the prevention or redress of a wrong." 10 In
other words, the petition in the RTC sought to establish (1) the status and
concomitant rights of Fujiki and Marinay as husband and wife and (2) the
fact of the rendition of the Japanese Family Court judgment declaring the
marriage between Marinay and Maekara as void on the ground of
bigamy. The petitioner contended that the Japanese judgment was
consistent with Article 35 (4) of the Family Code of the Philippines 11 on
bigamy and was therefore entitled to recognition by Philippine courts. 12
In any case, it was also Fujiki's view that A.M. No. 02-11-10-
SC applied only to void marriages under Article 36 of the Family Code on
the ground of psychological incapacity. 13 Thus, Section 2 (a) of A.M. No.
02-11-10-SC provides that "a petition for declaration of absolute nullity of
void marriages may be filed solely by the husband or the wife." To apply
Section 2 (a) in bigamy would be absurd because only the guilty parties
would be permitted to sue. In the words of Fujiki, "[i]t is not, of course,
difficult to realize that the party interested in having a bigamous
marriage declared a nullity would be the husband in the prior, pre-
existing marriage." 14 Fujiki had material interest and therefore the
personality to nullify a bigamous marriage.
Fujiki argued that Rule 108 (Cancellation or Correction of Entries
in the Civil Registry) of the Rules of Court is applicable. Rule 108 is the
"procedural implementation" of the Civil Register Law (Act No.
3753) 15 in relation to Article 413 of the Civil Code.16 The Civil Register
Law imposes a duty on the "successful petitioner for divorce or
annulment of marriage to send a copy of the final decree of the court to
the local registrar of the municipality where the dissolved or annulled
marriage was solemnized." 17 Section 2 of Rule 108 provides that entries
in the civil registry relating to "marriages," "judgments of annulments of
marriage" and "judgments declaring marriages void from the beginning"
are subject to cancellation or correction. 18 The petition in the RTC
sought (among others) to annotate the judgment of the Japanese Family
Court on the certificate of marriage between Marinay and
Maekara. CaAIES
Fujiki's motion for reconsideration in the RTC also asserted that
the trial court "gravely erred" when, on its own, it dismissed the petition
based on improper venue. Fujiki stated that the RTC may be confusing
the concept of venue with the concept of jurisdiction, because it is lack of
jurisdiction which allows a court to dismiss a case on its own. Fujiki
cited  Dacoycoy v. Intermediate Appellate Court  19 which held that the "trial
court cannot pre-empt the defendant's prerogative to object to the
improper laying of the venue by motu proprio dismissing the
case." 20 Moreover, petitioner alleged that the trial court should not
have "immediately dismissed" the petition under Section 5 of A.M. No.
02-11-10-SC because he substantially complied with the provision.
On 2 March 2011, the RTC resolved to deny petitioner's motion
for reconsideration. In its Resolution, the RTC stated that A.M. No. 02-11-
10-SC applies because the petitioner, in effect, prays for a decree of
absolute nullity of marriage. 21 The trial court reiterated its two grounds
for dismissal, i.e., lack of personality to sue and improper venue under
Sections 2 (a) and 4 of A.M. No. 02-11-10-SC. The RTC considered Fujiki as
a "third person" 22 in the proceeding because he "is not the husband in
the decree of divorce issued by the Japanese Family Court, which he now
seeks to be judicially recognized, . . . ." 23 On the other hand, the RTC did
not explain its ground of impropriety of venue. It only said that
"[a]lthough the Court cited Sec. 4 (Venue) . . . as a ground for dismissal of
this case[,] it should be taken together with the other ground cited by the
Court . . . which is Sec. 2 (a) . . . ." 24
The RTC further justified its motu proprio dismissal of the
petition based on  Braza v. The City Civil Registrar of Himamaylan City,
Negros Occidental. 25 The Court in  Braza ruled that "[i]n a special
proceeding for correction of entry under Rule 108 (Cancellation or
Correction of Entries in the Original Registry), the trial court has no
jurisdiction to nullify marriages . . . ." 26 Braza emphasized that the
"validity of marriages as well as legitimacy and filiation can be
questioned only in a direct action seasonably filed by the proper party,
and not through a collateral attack such as [a] petition [for correction of
entry] . . . ." 27
The RTC considered the petition as a collateral attack on the
validity of marriage between Marinay and Maekara. The trial court held
that this is a "jurisdictional ground" to dismiss the petition. 28 Moreover,
the verification and certification against forum shopping of the petition
was not authenticated as required under Section 5 29 of A.M. No. 02-11-
10-SC. Hence, this also warranted the "immediate dismissal" of the
petition under the same provision.
The Manifestation and Motion of the Office of the Solicitor
General and
the Letters of Marinay and Maekara
On 30 May 2011, the Court required respondents to file their
comment on the petition for review. 30 The public respondents, the
Local Civil Registrar of Quezon City and the Administrator and Civil
Registrar General of the NSO, participated through the Office of the
Solicitor General. Instead of a comment, the Solicitor General filed a
Manifestation and Motion. 31
The Solicitor General agreed with the petition. He prayed that
the RTC's "pronouncement that the petitioner failed to comply
with . . . A.M. No. 02-11-10-SC . . . be set aside" and that the case be
reinstated in the trial court for further proceedings. 32 The Solicitor
General argued that Fujiki, as the spouse of the first marriage, is an
injured party who can sue to declare the bigamous marriage between
Marinay and Maekara void. The Solicitor General cited  Juliano-Llave v.
Republic  33 which held that Section 2 (a) of A.M. No. 02-11-10-SC does
not apply in cases of bigamy. In  Juliano-Llave, this Court
explained: SCHATc
[t]he subsequent spouse may only be expected to
take action if he or she had only discovered during
the connubial period that the marriage was
bigamous, and especially if the conjugal bliss had
already vanished. Should parties in a subsequent
marriage benefit from the bigamous marriage, it
 would not be expected that they would file an
action to declare the marriage void and thus, in
such circumstance, the "injured spouse" who
should be given a legal remedy is the one in a
subsisting previous marriage. The latter is clearly
the aggrieved party as the bigamous marriage not
only threatens the financial and the property
ownership aspect of the prior marriage but most of
all, it causes an emotional burden to the prior
spouse. The subsequent marriage will always be a
reminder of the infidelity of the spouse and the
disregard of the prior marriage which sanctity is
protected by the Constitution. 34
The Solicitor General contended that the petition to recognize
the Japanese Family Court judgment may be made in a Rule 108
proceeding. 35 In Corpuz v. Santo Tomas,  36  this Court held that "[t]he
recognition of the foreign divorce decree may be made in a Rule 108
proceeding itself, as the object of special proceedings (such as that in
Rule 108 of the Rules of Court) is precisely to establish the status or right
of a party or a particular fact." 37 While Corpuz concerned a foreign
divorce decree, in the present case the Japanese Family Court judgment
also affected the civil status of the parties, especially Marinay, who is a
Filipino citizen.
The Solicitor General asserted that Rule 108 of the Rules of
Court is the procedure to record "[a]cts, events and judicial decrees
concerning the civil status of persons" in the civil registry as required by
Article 407 of the Civil Code.In other words, "[t]he law requires the entry
in the civil registry of judicial decrees that produce legal consequences
upon a person's legal capacity and status . . . ." 38 The Japanese Family
Court judgment directly bears on the civil status of a Filipino citizen and
should therefore be proven as a fact in a Rule 108 proceeding.
Moreover, the Solicitor General argued that there is no
jurisdictional infirmity in assailing a void marriage under Rule 108,
citing  De Castro v. De Castro 39 and  Niñal v. Bayadog 40 which declared
that "[t]he validity of a void marriage may be collaterally attacked." 41
Marinay and Maekara individually sent letters to the Court to
comply with the directive for them to comment on the
petition. 42 Maekara wrote that Marinay concealed from him the fact
that she was previously married to Fujiki. 43 Maekara also denied that he
inflicted any form of violence on Marinay. 44 On the other hand, Marinay
wrote that she had no reason to oppose the petition. 45 She would like
to maintain her silence for fear that anything she say might cause
misunderstanding between her and Fujiki. 46 ScTaEA
The Issues
Petitioner raises the following legal issues:
(1) Whether the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC)
is applicable.
(2) Whether a husband or wife of a prior marriage can file a
petition to recognize a foreign judgment nullifying the subsequent
marriage between his or her spouse and a foreign citizen on the ground
of bigamy.
(3) Whether the Regional Trial Court can recognize the foreign
judgment in a proceeding for cancellation or correction of entries in the
Civil Registry under Rule 108 of the Rules of Court.
The Ruling of the Court
We grant the petition.
The Rule on Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC) does not
apply in a petition to recognize a foreign judgment relating to the status
of a marriage where one of the parties is a citizen of a foreign country.
Moreover, in  Juliano-Llave v. Republic, 47 this Court held that the rule
in A.M. No. 02-11-10-SC that only the husband or wife can file a
declaration of nullity or annulment of marriage "does not apply if the
reason behind the petition is bigamy." 48
I.
 For Philippine courts to recognize a foreign judgment relating to the Philippines, recognition by Philippine courts of a foreign judgment
the status of a marriage where one of the parties is a citizen of a foreign affecting its citizen, over whom it exercises personal jurisdiction relating
country, the petitioner only needs to prove the foreign judgment as a to the status, condition and legal capacity of such citizen.
fact under the Rules of Court. To be more specific, a copy of the foreign
A petition to recognize a foreign judgment declaring a marriage
judgment may be admitted in evidence and proven as a fact under Rule
void does not require relitigation under a Philippine court of the case as
132, Sections 24 and 25, in relation to Rule 39, Section 48 (b) of the Rules
if it were a new petition for declaration of nullity of marriage. Philippine
of Court. 49 Petitioner may prove the Japanese Family Court judgment
courts cannot presume to know the foreign laws under which the foreign
through (1) an official publication or (2) a certification or copy attested by
judgment was rendered. They cannot substitute their judgment on the
the officer who has custody of the judgment. If the office which has
status, condition and legal capacity of the foreign citizen who is under
custody is in a foreign country such as Japan, the certification may be
the jurisdiction of another state. Thus, Philippine courts can only
made by the proper diplomatic or consular officer of the Philippine
recognize the foreign judgment as a fact according to the rules of
foreign service in Japan and authenticated by the seal of
evidence. ECcTaS
office. 50 EaISTD
Section 48 (b), Rule 39 of the Rules of Court provides that a
To hold that A.M. No. 02-11-10-SC applies to a petition for
foreign judgment or final order against a person creates a "presumptive
recognition of foreign judgment would mean that the trial court and the
evidence of a right as between the parties and their successors in
parties should follow its provisions, including the form and contents of
interest by a subsequent title." Moreover, Section 48 of the Rules of
the petition, 51 the service of summons, 52 the investigation of the
Court states that "the judgment or final order may be repelled by
public prosecutor, 53 the setting of pre-trial, 54 the trial 55 and the
evidence of a want of jurisdiction, want of notice to the party, collusion,
judgment of the trial court. 56 This is absurd because it will litigate the
fraud, or clear mistake of law or fact." Thus, Philippine courts exercise
case anew. It will defeat the purpose of recognizing foreign judgments,
limited review on foreign judgments. Courts are not allowed to delve into
which is "to limit repetitive litigation on claims and issues." 57 The
the merits of a foreign judgment. Once a foreign judgment is admitted
interpretation of the RTC is tantamount to relitigating the case on the
and proven in a Philippine court, it can only be repelled on grounds
merits. In  Mijares v. Rañada, 58 this Court explained that "[i]f every
external to its merits, i.e., "want of jurisdiction, want of notice to the
judgment of a foreign court were reviewable on the merits, the plaintiff
party, collusion, fraud, or clear mistake of law or fact." The rule on
would be forced back on his/her original cause of action, rendering
limited review embodies the policy of efficiency and the protection of
immaterial the previously concluded litigation." 59
party expectations, 61 as well as respecting the jurisdiction of other
A foreign judgment relating to the status of a marriage affects states. 62
the civil status, condition and legal capacity of its parties. However, the
Since 1922 in  Adong v. Cheong Seng Gee, 63 Philippine courts
effect of a foreign judgment is not automatic. To extend the effect of a
have recognized foreign divorce decrees between a Filipino and a foreign
foreign judgment in the Philippines, Philippine courts must determine if
citizen if they are successfully proven under the rules of
the foreign judgment is consistent with domestic public policy and other
evidence. 64 Divorce involves the dissolution of a marriage, but the
mandatory laws. 60 Article 15 of the Civil Code provides that "[l]aws
recognition of a foreign divorce decree does not involve the extended
relating to family rights and duties, or to the status, condition and legal
procedure under A.M. No. 02-11-10-SC or the rules of ordinary trial.
capacity of persons are binding upon citizens of the Philippines, even
While the Philippines does not have a divorce law, Philippine courts may,
though living abroad." This is the rule of lex nationalii  in private
however, recognize a foreign divorce decree under the second
international law. Thus, the Philippine State may require, for effectivity in
paragraph of Article 26 of the Family Code, to capacitate a Filipino citizen
to remarry when his or her foreign spouse obtained a divorce decree
abroad. 65
There is therefore no reason to disallow Fujiki to simply prove as
a fact the Japanese Family Court judgment nullifying the marriage
between Marinay and Maekara on the ground of bigamy. While the
Philippines has no divorce law, the Japanese Family Court judgment is
fully consistent with Philippine public policy, as bigamous marriages are
declared void from the beginning under Article 35 (4) of the Family Code.
Bigamy is a crime under Article 349 of the Revised Penal Code. Thus,
Fujiki can prove the existence of the Japanese Family Court judgment in
accordance with Rule 132, Sections 24 and 25, in relation to Rule 39,
Section 48 (b) of the Rules of Court.
II.
Since the recognition of a foreign judgment only requires proof
of fact of the judgment, it may be made in a special proceeding for
cancellation or correction of entries in the civil registry under Rule 108 of
the Rules of Court. Rule 1, Section 3 of the Rules of Court provides that
"[a] special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact." Rule 108 creates a remedy to rectify
facts of a person's life which are recorded by the State pursuant to
the Civil Register Law or Act No. 3753. These are facts of public
consequence such as birth, death or marriage, 66 which the State has an
interest in recording. As noted by the Solicitor General, in Corpuz v. Sto.
Tomas  this Court declared that "[t]he recognition of the foreign divorce
decree may be made in a Rule 108 proceeding itself, as the object of
special proceedings (such as that in Rule 108 of the Rules of Court) is
precisely to establish the status or right of a party or a particular
fact." 67 AIaHES
Rule 108, Section 1 of the Rules of Court states:
Sec. 1.  Who may file petition. — Any
person interested in any act, event, order or
decree concerning the civil status of persons
which has been recorded in the civil
register, may file a verified petition for the
cancellation or correction of any entry relating
thereto, with the Regional Trial Court of the
province where the corresponding civil registry is
located. (Emphasis supplied)
Fujiki has the personality to file a petition to recognize the Japanese
Family Court judgment nullifying the marriage between Marinay and
Maekara on the ground of bigamy because the judgment concerns
his civil status as married to Marinay. For the same reason he has
the personality to file a petition under Rule 108 to cancel the entry of
marriage between Marinay and Maekara in the civil registry on the
basis of the decree of the Japanese Family Court.
There is no doubt that the prior spouse has a personal and
material interest in maintaining the integrity of the marriage he
contracted and the property relations arising from it. There is also no
doubt that he is interested in the cancellation of an entry of a bigamous
marriage in the civil registry, which compromises the public record of his
marriage. The interest derives from the substantive right of the spouse
not only to preserve (or dissolve, in limited instances) 68 his most
intimate human relation, but also to protect his property interests that
arise by operation of law the moment he contracts marriage. 69 These
property interests in marriage include the right to be supported "in
keeping with the financial capacity of the family" 70 and preserving the
property regime of the marriage. 71
Property rights are already substantive rights protected by
the Constitution, 72 but a spouse's right in a marriage extends further to
relational rights recognized under Title III ("Rights and Obligations
between Husband and Wife") of the Family Code. 73 A.M. No. 02-11-10-
SC cannot "diminish, increase, or modify" the substantive right of the
spouse to maintain the integrity of his marriage. 74 In any case, Section 2
(a) of A.M. No. 02-11-10-SC preserves this substantive right by limiting
the personality to sue to the husband or the wife of the union
recognized by law. DHSCTI
Section 2 (a) of A.M. No. 02-11-10-SC does not preclude a spouse
of a subsisting marriage to question the validity of a subsequent
marriage on the ground of bigamy. On the contrary, when Section 2 (a)
states that "[a] petition for declaration of absolute nullity of void
marriage may be filed solely by the husband or the wife" 75 — it refers
to the husband or the wife of the subsisting marriage. Under Article 35
(4) of the Family Code, bigamous marriages are void from the beginning.
Thus, the parties in a bigamous marriage are neither the husband nor
the wife under the law. The husband or the wife of the prior subsisting
marriage is the one who has the personality to file a petition for
declaration of absolute nullity of void marriage under Section 2 (a)
of A.M. No. 02-11-10-SC.
Article 35 (4) of the Family Code, which declares bigamous
marriages void from the beginning, is the civil aspect of Article 349 of
the Revised Penal Code, 76 which penalizes bigamy. Bigamy is a public
crime. Thus, anyone can initiate prosecution for bigamy because any
citizen has an interest in the prosecution and prevention of crimes. 77 If
anyone can file a criminal action which leads to the declaration of nullity
of a bigamous marriage, 78 there is more reason to confer personality to
sue on the husband or the wife of a subsisting marriage. The prior
spouse does not only share in the public interest of prosecuting and
preventing crimes, he is also personally interested in the purely civil
aspect of protecting his marriage.
When the right of the spouse to protect his marriage is violated,
the spouse is clearly an injured party and is therefore interested in the
judgment of the suit. 79 Juliano-Llave ruled that the prior spouse "is
clearly the aggrieved party as the bigamous marriage not only threatens
the financial and the property ownership aspect of the prior marriage
but most of all, it causes an emotional burden to the prior
spouse." 80 Being a real party in interest, the prior spouse is entitled to
sue in order to declare a bigamous marriage void. For this purpose, he
can petition a court to recognize a foreign judgment nullifying the
bigamous marriage and judicially declare as a fact that such judgment is
effective in the Philippines. Once established, there should be no more
impediment to cancel the entry of the bigamous marriage in the civil
registry.
III.
In  Braza v. The City Civil Registrar of Himamaylan City, Negros
Occidental, this Court held that a "trial court has no jurisdiction to nullify
marriages" in a special proceeding for cancellation or correction of entry
under Rule 108 of the Rules of Court. 81 Thus, the "validity of marriage[] .
. . can be questioned only in a direct action" to nullify the
marriage. 82 The RTC relied on  Braza in dismissing the petition for
recognition of foreign judgment as a collateral attack on the marriage
between Marinay and Maekara. EAcTDH
Braza is not applicable because  Braza does not involve a
recognition of a foreign judgment nullifying a bigamous marriage where
one of the parties is a citizen of the foreign country.
To be sure, a petition for correction or cancellation of an entry in
the civil registry cannot substitute for an action to invalidate a marriage.
A direct action is necessary to prevent circumvention of the substantive
and procedural safeguards of marriage under the Family Code, A.M. No.
02-11-10-SC and other related laws. Among these safeguards are the
requirement of proving the limited grounds for the dissolution of
marriage, 83 support  pendente lite of the spouses and children, 84 the
liquidation, partition and distribution of the properties of the
spouses, 85 and the investigation of the public prosecutor to determine
collusion. 86 A direct action for declaration of nullity or annulment of
marriage is also necessary to prevent circumvention of the jurisdiction of
the Family Courts under the Family Courts Act of 1997 (Republic Act No.
8369), as a petition for cancellation or correction of entries in the civil
registry may be filed in the Regional Trial Court "where the
corresponding civil registry is located." 87 In other words, a Filipino
citizen cannot dissolve his marriage by the mere expedient of changing
his entry of marriage in the civil registry.
However, this does not apply in a petition for correction or
cancellation of a civil registry entry based on the recognition of a foreign
judgment annulling a marriage where one of the parties is a citizen of
the foreign country. There is neither circumvention of the substantive
and procedural safeguards of marriage under Philippine law, nor of the
jurisdiction of Family Courts under R.A. No. 8369. A recognition of a
foreign judgment is not an action to nullify a marriage. It is an action for
Philippine courts to recognize the effectivity of a foreign
judgment, which presupposes a case which was already tried and
decided under foreign law. The procedure in A.M. No. 02-11-10-
SC does not apply in a petition to recognize a foreign judgment annulling
a bigamous marriage where one of the parties is a citizen of the foreign
country. Neither can R.A. No. 8369 define the jurisdiction of the foreign
court.
Article 26 of the Family Code confers jurisdiction on Philippine
courts to extend the effect of a foreign divorce decree to a Filipino
spouse without undergoing trial to determine the validity of the
dissolution of the marriage. The second paragraph of Article 26 of
the Family Code provides that "[w]here a marriage between a Filipino
citizen and a foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under
Philippine law." In  Republic v. Orbecido, 88 this Court recognized the
legislative intent of the second paragraph of Article 26 which is "to avoid
the absurd situation where the Filipino spouse remains married to the
alien spouse who, after obtaining a divorce, is no longer married to the
Filipino spouse" 89 under the laws of his or her country. The second
paragraph of Article 26 of the Family Code only authorizes Philippine
courts to adopt the effects of a foreign divorce decree precisely because
the Philippines does not allow divorce. Philippine courts cannot try the
case on the merits because it is tantamount to trying a case for divorce.
The second paragraph of Article 26 is only a corrective measure
to address the anomaly that results from a marriage between a Filipino,
whose laws do not allow divorce, and a foreign citizen, whose laws allow
divorce. The anomaly consists in the Filipino spouse being tied to the
marriage while the foreign spouse is free to marry under the laws of his
or her country. The correction is made by extending in the Philippines
the effect of the foreign divorce decree, which is already effective in the
country where it was rendered. The second paragraph of Article 26 of
the Family Code is based on this Court's decision in Van Dorn v.
Romillo 90 which declared that the Filipino spouse "should not be
discriminated against in her own country if the ends of justice are to be
served." 91 IDETCA
The principle in Article 26 of the Family Code applies in a
marriage between a Filipino and a foreign citizen who obtains a foreign
judgment nullifying the marriage on the ground of bigamy. The Filipino
spouse may file a petition abroad to declare the marriage void on the
ground of bigamy. The principle in the second paragraph of Article 26 of
the Family Code applies because the foreign spouse, after the foreign
judgment nullifying the marriage, is capacitated to remarry under the
laws of his or her country. If the foreign judgment is not recognized in
the Philippines, the Filipino spouse will be discriminated — the foreign
spouse can remarry while the Filipino spouse cannot remarry.
Under the second paragraph of Article 26 of the Family Code,
Philippine courts are empowered to correct a situation where the Filipino
spouse is still tied to the marriage while the foreign spouse is free to
marry. Moreover, notwithstanding Article 26 of the Family Code,
Philippine courts already have jurisdiction to extend the effect of a
foreign judgment in the Philippines to the extent that the foreign
judgment does not contravene domestic public policy. A critical
difference between the case of a foreign divorce decree and a foreign
judgment nullifying a bigamous marriage is that bigamy, as a ground for
the nullity of marriage, is fully consistent with Philippine public policy as
expressed in Article 35 (4) of the Family Code and Article 349 of
the Revised Penal Code. The Filipino spouse has the option to undergo
full trial by filing a petition for declaration of nullity of marriage
under A.M. No. 02-11-10-SC, but this is not the only remedy available to
him or her. Philippine courts have jurisdiction to recognize a foreign
judgment nullifying a bigamous marriage, without prejudice to a criminal
prosecution for bigamy.
In the recognition of foreign judgments, Philippine courts are
incompetent to substitute their judgment on how a case was decided
under foreign law. They cannot decide on the "family rights and duties,
or on the status, condition and legal capacity" of the foreign citizen who
is a party to the foreign judgment. Thus, Philippine courts are limited to
the question of whether to extend the effect of a foreign judgment in the
Philippines. In a foreign judgment relating to the status of a marriage
involving a citizen of a foreign country, Philippine courts only decide
whether to extend its effect to the Filipino party, under the rule of lex
nationalii  expressed in Article 15 of the Civil Code.
For this purpose, Philippine courts will only determine (1)
whether the foreign judgment is inconsistent with an overriding public
policy in the Philippines; and (2) whether any alleging party is able to |||  (Fujiki v. Marinay, G.R. No. 196049, [June 26, 2013], 712 PHIL 524-558)
prove an extrinsic ground to repel the foreign judgment, i.e., want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake
of law or fact. If there is neither inconsistency with public policy nor
adequate proof to repel the judgment, Philippine courts should, by
default, recognize the foreign judgment as part of the comity of nations.
Section 48 (b), Rule 39 of the Rules of Court states that the foreign
judgment is already "presumptive evidence of a right between the
[G.R. No. 154380. October 5, 2005.]
parties." Upon recognition of the foreign judgment, this right becomes
conclusive and the judgment serves as the basis for the correction or
cancellation of entry in the civil registry. The recognition of the foreign REPUBLIC OF THE
judgment nullifying a bigamous marriage is a subsequent event that PHILIPPINES,  petitioner,vs.CIPRIANO ORBECIDO
establishes a new status, right and fact 92 that needs to be reflected in III,  respondent.
the civil registry. Otherwise, there will be an inconsistency between the
recognition of the effectivity of the foreign judgment and the public
records in the Philippines.
DECISION
However, the recognition of a foreign judgment nullifying a
bigamous marriage is without prejudice to prosecution for bigamy under
Article 349 of the Revised Penal Code. 93 The recognition of a foreign
QUISUMBING,  J  p:
judgment nullifying a bigamous marriage is not a ground for extinction
of criminal liability under Articles 89 and 94 of the Revised Penal Code.
Given a valid marriage between two Filipino citizens, where one
Moreover, under Article 91 of the Revised Penal Code, "[t]he term of
party is later naturalized as a foreign citizen and obtains a valid divorce
prescription [of the crime of bigamy] shall not run when the offender is
decree capacitating him or her to remarry, can the Filipino spouse
absent from the Philippine archipelago." CcHDSA
likewise remarry under Philippine law?
Since A.M. No. 02-11-10-SC is inapplicable, the Court no longer
Before us is a case of first impression that behooves the Court
sees the need to address the questions on venue and the contents and
to make a definite ruling on this apparently novel question, presented as
form of the petition under Sections 4 and 5, respectively, of A.M. No. 02-
a pure question of law.
11-10-SC.
In this petition for review, the Solicitor General assails
WHEREFORE, we GRANT the petition. The Order dated 31
the Decision 1 dated May 15, 2002, of the Regional Trial Court of Molave,
January 2011 and the Resolution dated 2 March 2011 of the Regional
Zamboanga del Sur, Branch 23 and its Resolution 2 dated July 4, 2002
Trial Court, Branch 107, Quezon City, in Civil Case No. Q-11-68582
denying the motion for reconsideration. The court a quo had declared
are REVERSED and SET ASIDE. The Regional Trial Court
that herein respondent Cipriano Orbecido III is capacitated to remarry.
is ORDERED to REINSTATE the petition for further proceedings in
The  fallo of the impugned Decision reads:
accordance with this Decision.
WHEREFORE, by virtue of the provision of the
SO ORDERED.
second paragraph of Art. 26 of the Family Code and
 by reason of the divorce decree obtained against him
by his American wife, the petitioner is given the
capacity to remarry under the Philippine Law.
IT IS SO ORDERED. 3
The factual antecedents, as narrated by the trial court, are as
follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M.
Villanueva at the United Church of Christ in the Philippines in Lam-an,
Ozamis City. Their marriage was blessed with a son and a daughter,
Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.
In 1986, Cipriano's wife left for the United States bringing along
their son Kristoffer. A few years later, Cipriano discovered that his wife
had been naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife
had obtained a divorce decree and then married a certain Innocent
Stanley. She, Stanley and her child by him currently live at 5566 A.
Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for
authority to remarry invoking Paragraph 2 of Article 26 of the Family
Code. No opposition was filed. Finding merit in the petition, the court
granted the same. The Republic, herein petitioner, through the Office of
the Solicitor General (OSG), sought reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN
REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE 4
The OSG contends that Paragraph 2 of Article 26 of the Family
Code is not applicable to the instant case because it only applies to a
valid mixed marriage; that is, a marriage celebrated between a Filipino
citizen and an alien. The proper remedy, according to the OSG, is to file a
petition for annulment or for legal separation. 5 Furthermore, the OSG
argues there is no law that governs respondent's situation. The OSG
posits that this is a matter of legislation and not of judicial
determination. 6
For his part, respondent admits that Article 26 is not directly
applicable to his case but insists that when his naturalized alien wife
obtained a divorce decree which capacitated her to remarry, he is
likewise capacitated by operation of law pursuant to Section 12, Article II
of the Constitution. 7
At the outset, we note that the petition for authority to remarry
filed before the trial court actually constituted a petition for declaratory
relief. In this connection, Section 1, Rule 63 of the Rules of
Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petition  — Any
person interested under a deed, will, contract or
other written instrument, or whose rights are
affected by a statute, executive order or regulation,
ordinance, or other governmental regulation may,
before breach or violation thereof, bring an action in
the appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a
declaration of his rights or duties, thereunder.
xxx xxx xxx
The requisites of a petition for declaratory relief are: (1) there
must be a justiciable controversy; (2) the controversy must be between
persons whose interests are adverse; (3) that the party seeking the relief
has a legal interest in the controversy; and (4) that the issue is ripe for
judicial determination. 8
This case concerns the applicability of Paragraph 2 of Article 26
to a marriage between two Filipino citizens where one later acquired
alien citizenship, obtained a divorce decree, and remarried while in the
U.S.A. The interests of the parties are also adverse, as petitioner
representing the State asserts its duty to protect the institution of
marriage while respondent, a private citizen, insists on a declaration of
his capacity to remarry. Respondent, praying for relief, has legal interest
in the controversy. The issue raised is also ripe for judicial determination
inasmuch as when respondent remarries, litigation ensues and puts into
question the validity of his second marriage.
Coming now to the substantive issue, does Paragraph 2 of
Article 26 of the Family Code apply to the case of respondent?
Necessarily, we must dwell on how this provision had come about in the
first place, and what was the intent of the legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into
law Executive Order No. 209, otherwise known as the "Family Code,"
which took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the
Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there
as such, shall also be valid in this country, except
those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family
Code, Executive Order No. 227 was likewise signed into law, amending
Articles 26, 36, and 39 of the Family Code. A second paragraph was
added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside
the Philippines in accordance with the laws in force in
the country where they were solemnized, and valid
there as such, shall also be valid in this country,
except those prohibited under Articles 35(1),(4),(5)
and (6),36, 37 and 38.
Where a marriage between a Filipino citizen
and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouse
shall have capacity to remarry under Philippine law.
(Emphasis supplied)
On its face, the foregoing provision does not appear to govern
the situation presented by the case at hand. It seems to apply only to
cases where at the time of the celebration of the marriage, the parties
are a Filipino citizen and a foreigner. The instant case is one where at the
time the marriage was solemnized, the parties were two Filipino citizens,
but later on, the wife was naturalized as an American citizen and
subsequently obtained a divorce granting her capacity to remarry, and
indeed she remarried an American citizen while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings 9 on the Family
Code, the Catholic Bishops' Conference of the Philippines (CBCP)
registered the following objections to Paragraph 2 of Article 26:
1. The rule is discriminatory. It discriminates against
those whose spouses are Filipinos who divorce
them abroad. These spouses who are divorced
will not be able to re-marry, while the spouses
of foreigners who validly divorce them abroad
can.
2. This is the beginning of the recognition of the
validity of divorce even for Filipino citizens.
For those whose foreign spouses validly
divorce them abroad will also be considered
to be validly divorced here and can re-marry.
We propose that this be deleted and made
into law only after more widespread
consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations
showed that the intent of Paragraph 2 of Article 26, according to Judge
Alicia Sempio-Diy, a member of the Civil Code Revision Committee,is to
avoid the absurd situation where the Filipino spouse remains married to
the alien spouse who, after obtaining a divorce, is no longer married to
the Filipino spouse. AETcSa
Interestingly, Paragraph 2 of Article 26 traces its origin to the
1985 case of Van Dorn v. Romillo, Jr. 10 The Van Dorn case involved a
marriage between a Filipino citizen and a foreigner. The Court held
therein that a divorce decree validly obtained by the alien spouse is valid
in the Philippines, and consequently, the Filipino spouse is capacitated to
remarry under Philippine law.
Does the same principle apply to a case where at the time of the
celebration of the marriage, the parties were Filipino citizens, but later
on, one of them obtains a foreign citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v.
Court of Appeals. 11 In Quita,the parties were, as in this case, Filipino
citizens when they got married. The wife became a naturalized American
citizen in 1954 and obtained a divorce in the same year. The Court
therein hinted, by way of obiter dictum,that a Filipino divorced by his
naturalized foreign spouse is no longer married under Philippine law and
can thus remarry.
Thus, taking into consideration the legislative intent and
applying the rule of reason, we hold that Paragraph 2 of Article 26
should be interpreted to include cases involving parties who, at the time
of the celebration of the marriage were Filipino citizens, but later on, one
of them becomes naturalized as a foreign citizen and obtains a divorce
decree. The Filipino spouse should likewise be allowed to remarry as if
the other party were a foreigner at the time of the solemnization of the
marriage. To rule otherwise would be to sanction absurdity and injustice.
Where the interpretation of a statute according to its exact and literal
import would lead to mischievous results or contravene the clear
purpose of the legislature, it should be construed according to its spirit
and reason, disregarding as far as necessary the letter of the law. A
statute may therefore be extended to cases not within the literal
meaning of its terms, so long as they come within its spirit or intent. 12
If we are to give meaning to the legislative intent to avoid the
absurd situation where the Filipino spouse remains married to the alien
spouse who, after obtaining a divorce is no longer married to the Filipino
spouse, then the instant case must be deemed as coming within the
contemplation of Paragraph 2 of Article 26. AHDTIE
In view of the foregoing, we state the twin elements for the
application of Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been celebrated
between a Filipino citizen and a foreigner;
and
2. A valid divorce is obtained abroad by the alien
spouse capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the
time of the celebration of the marriage, but their citizenship at the time a
valid divorce is obtained abroad by the alien spouse capacitating the latter
to remarry.
In this case, when Cipriano's wife was naturalized as an
American citizen, there was still a valid marriage that has been
celebrated between her and Cipriano. As fate would have it, the
naturalized alien wife subsequently obtained a valid divorce capacitating
her to remarry. Clearly, the twin requisites for the application of
Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the
"divorced" Filipino spouse, should be allowed to remarry.
We are also unable to sustain the OSG's theory that the proper
remedy of the Filipino spouse is to file either a petition for annulment or
a petition for legal separation. Annulment would be a long and tedious
process, and in this particular case, not even feasible, considering that
the marriage of the parties appears to have all the badges of validity. On
the other hand, legal separation would not be a sufficient remedy for it
would not sever the marriage tie; hence, the legally separated Filipino
spouse would still remain married to the naturalized alien spouse.
However, we note that the records are bereft of competent
evidence duly submitted by respondent concerning the divorce decree
and the naturalization of respondent's wife. It is settled rule that one
who alleges a fact has the burden of proving it and mere allegation is not
evidence. 13
Accordingly, for his plea to prosper, respondent herein must
prove his allegation that his wife was naturalized as an American citizen.
Likewise, before a foreign divorce decree can be recognized by our own
courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it. 14 Such foreign
law must also be proved as our courts cannot take judicial notice of
foreign laws. Like any other fact, such laws must be alleged and
proved. 15 Furthermore, respondent must also show that the divorce
decree allows his former wife to remarry as specifically required in
Article 26. Otherwise, there would be no evidence sufficient to declare
that he is capacitated to enter into another marriage.

Nevertheless, we are unanimous in our holding that Paragraph

2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No.
227), should be interpreted to allow a Filipino citizen, who has been
divorced by a spouse who had acquired foreign citizenship and
remarried, also to remarry. However, considering that in the present
petition there is no sufficient evidence submitted and on record, we are
unable to declare, based on respondent's bare allegations that his wife,
who was naturalized as an American citizen, had obtained a divorce
decree and had remarried an American, that respondent is now
capacitated to remarry. Such declaration could only be made properly
upon respondent's submission of the aforecited evidence in his
favor. CcAHEI

ACCORDINGLY, the petition by the Republic of the Philippines is

GRANTED. The assailed Decision dated May 15, 2002, and Resolution
dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del
Sur, Branch 23, are hereby SET ASIDE.

No pronouncement as to costs.

SO ORDERED.

|||  (Republic v. Orbecido III, G.R. No. 154380, [October 5, 2005], 509 PHIL
108-117)