AMPARO

A Writ of Amparo is a remedy available to any person

1. whose right to LIFE, LIBERTY, AND SECURITY has been violated or
2. is threatened with violation

 by a public official or
 employee or
 a private individual or
 a private individual or entity.

Nature:

The Writ of Amparo is an independent and summary remedy that provides rapid judicial relief to protect the
people’s right to life, liberty, and security.

It is preventive [and also curative] i.e. Even if wala pa nahitabo, like enforced disappearances, naa pa lang
imminent threat, wala pa na siya na hitabo but you can apply for the writ of amparo. You ask these persons
involved to explain what is behind that act or you can demand na they should act legally. That is preventive.
Wala pa nahitabo pero pwede na ka mag apply.

“Extralegal killings” are killings committed without due process of law, i.e., without legal safeguard or
judicial proceedings.

Enforced Disappearances - They are attended by the following characteristics: an arrest, detention, or
abduction of a person by a government official or organized groups or private individuals acting with the
direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places
such persons outside the protection of the law.

Please take note na even if it is done by a private individual/s, it should be with the direct or indirect
acquiescence of the government. Naay participation by the government.

Government involvement in the disappearance is an indispensable element.

Elements Constituting Enforced Disappearance

1. That there be an ARREST, DETENTION, ABDUCTION or ANY FORM OF DEPRIVATION OF

LIBERTY;

2. That it be CARRIED OUT by, or with the authorization, support or of, the State or a political
organization;

3. 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

4. That the INTENTION FOR SUCH REFUSAL is to remove subject person from the protection of
the law for a prolonged period of time.

All of these elements must be present to constitute a case for a writ of amparo. If you file a petition for writ
of amparo based on enforced disappearance, you should be able to make out a case based on this or the
facts of the case must be based on these elements.

No Docket Fees. – The petitioner shall be exempted from the payment of the docket and other lawful fees
when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately.
Jurisdiction and Venue

The petition may be filed on any day and at any time with the
1. Regional Trial Court of the place where the threat, act or omission was committed or any of its
elements occurred, or
2. Sandiganbayan,
3. Court of Appeals,
4. Supreme Court, or
5. any justice of such courts. The writ shall be enforceable anywhere in the Philippines.

Who may file the petition

The petition may be filed by the

1. aggrieved party or
2. by any qualified person or entity in the following order:

a. Any MEMBER OF THE IMMEDIATE FAMILY, namely: the spouse, children and parents of
the aggrieved party;

b. Any ASCENDANT, DESCENDANT OR COLLATERAL RELATIVE of the aggrieved party

within the fourth civil degree of consanguinity or affinity, in default of those mentioned in
the preceding paragraph; or

c. Any CONCERNED CITIZEN, organization, association or institution, if there is no known

member of the immediate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar
petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party
suspends the right of all others, observing the order established herein.

NOTE:
While “any person” may file a petition for the writ of habeas corpus,
 in a petition for the writ of amparo, the order of priority on who can file the petition
should be strictly followed.

CALLO vs. COMMISSIONER MORENTE G.R. No. 230324, September 19, 2017

There was no allegation nor proof that the missing person, Parker had no immediate family members or
any ascendant, descendant, or collateral relative within the fourth civil degree of consanguinity or affinity. In
fact, no allegation was made on any of the familial relationship of Parker as only her whereabouts from
2011 were alleged and discussed. Thus, based on the order or priority, petitioner in this case had no legal
standing to file this petition.

SPOUSES SANTIAGO vs. TULFO, ET. AL. G.R. No. 205039, October 21, 2015

In this case, it is undisputed that petitioners' amparo petition before the RTC does not allege any case of
extrajudicial killing and/or enforced disappearance, or any threats thereof, in the senses above-described.
Their petition is merely anchored on a broad invocation of respondents' purported violation of their right to
life and security, carried out by private individuals without any showing of direct or indirect government
participation. Thus, it is apparent that their amparo petition falls outside the purview of A.M. No. 07-9-12-SC
and, perforce, must fail.

Hence, the RTC, through Judge Singh, properly exercised its discretion tomotu proprio dismiss the same
under this principal determination, regardless of the filing of the May 23, 2012 Motion. The court, indeed,
has the discretion to determine whether or not it has the authority to grant the relief in the first
place. And when it is already apparent that the petition falls beyond the purview of the rule, it has the duty
to dismiss the petition so as not to prejudice any of the parties through prolonged but futile litigation.
MAMBA vs. BUENO G.R. No. 191416, February 7, 2017

The writ of amparo is a protective remedy aimed at providing judicial relief consisting of the appropriate
remedial measures and directives that may be crafted by the court, in order to address specific violations or
threats of violation of the constitutional rights to life, liberty or security.

The Rule specifically delimits the coverage of the writ of amparo to extralegal killings and enforced
disappearances, viz.: In an amparo action, the parties must establish their respective claims by substantial
evidence.

Nevertheless, it is undisputed that the respondent, after four days of detention, had been released by the
members of the Task Force on June 18, 2009. This fact alone, however, does not negate the propriety of
the grant of a writ of amparo.

The writ of amparo serves both preventive and curative roles in addressing the problem of extralegal
killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the
commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators
as it will inevitably yield leads to subsequent investigation and action. Accordingly, a writ of amparo may
still issue in the respondent's favor notwithstanding that he has already been released from detention. In
such case, the writ of amparo is issued to facilitate the punishment of those behind the illegal detention
through subsequent investigation and action.

Diligence Required Of The Respondents

 If the respondent is a PRIVATE individual or entity – ORDINARY diligence

 If the respondent is a PUBLIC official or employee - EXTRAordinary diligence

INTERIM RELIEFS

Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of
the following reliefs:

(a) TEMPORARY PROTECTION ORDER. – The court, justice or judge, upon motion or motu proprio, may
order that the petitioner or the aggrieved party and any member of the immediate family be protected
in a government agency or by an accredited person or private institution capable of keeping and
securing their safety.

(b) INSPECTION ORDER. — The court, justice or judge, upon verified motion and after due hearing, may
order any person in possession or control of a designated land or other property, to permit entry for
the purpose of inspecting, measuring, surveying, or photographing the property or any relevant
object or operation thereon.

(c) PRODUCTION ORDER. – The court, justice or judge, upon verified motion and after due hearing, may
order any person in possession, custody or control of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which
constitute or contain evidence relevant to the petition or the return, to produce and permit their
inspection, copying or photographing by or on behalf of the movant.

(d) WITNESS PROTECTION ORDER. – The court, justice or judge, upon motion or motu proprio, may
refer the witnesses to the Department of Justice for admission to the Witness Protection , Security
and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the
witnesses to other government agencies, or to accredited persons or private institutions capable of keeping
and securing their safety.
Archiving and Revival of Cases

Under Section 20 of the Amparo rule, the court is mandated to archive, and not dismiss, the case should it
determine that it could not proceed for a valid cause, viz. :

Section 20. Archiving and Revival of Cases. - The court shall not dismiss the petition, but shall archive
it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or
witnesses to appear due to threats on their lives.

A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon
motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed
with prejudice upon failure to prosecute the case after the lapse of two (2) years from notice to the
petitioner of the order archiving the case.

Jurisprudence states that archiving of cases is a procedural measure designed to temporarily defer the
hearing of cases in which no immediate action is expected, but where no grounds exist for their outright
dismissal. Under this scheme, an inactive case is kept alive but held in abeyance until the situation
obtains in which action thereon can be taken. To be sure, the Amparo rule sanctions the archiving of
cases, provided that it is impelled by a valid cause, such as when the witnesses fail to appear due to
threats on their lives or to similar analogous causes that would prevent the court from effectively hearing
and conducting the amparo proceedings which, however, do not obtain in these cases.

Instances When the Writ Will Not Be Issued

1. When Petitioner voluntarily submitted himself to the custody of Respondents [from the time that he
disembarked from the aircraft, he went voluntarily with the respondents]

2. Purely property related rights or commercial rights [are not covered by the writ of amparo]

3. Claim to dwelling

4. Right to travel

5. Issue of custody and exercise of parental rights over a child

 WRIT OF HABEAS CORPUS

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

Writ of habeas corpus shall extend to all cases of:

1. ILLEGAL CONFINEMENT OR DETENTION by which any person is deprived of his liberty, or
2. by which the RIGHTFUL CUSTODY of any person IS WITHHELD from the person entitled
thereto

Thus, the most basic criterion for the issuance of the writ is that the individual seeking such relief be
illegally deprived of his freedom of movement or placed under some form of illegal restraint.

Concomitantly, if a person's liberty is restrained by some legal process, the writ of habeas corpus is
unavailing. The writ cannot be used to directly assail a judgment rendered by a competent court or tribunal
which, having duly acquired jurisdiction, was not ousted of this jurisdiction through some irregularity in the
course of the proceedings.

HABEAS CORPUS AS POST CONVICTION REMEDY

However, jurisprudence has recognized that the writ of habeas corpus may also be availed of as a post-
conviction remedy when, as a consequence sentence as to circumstance of a judicial proceeding, any of
the following exceptional circumstances is attendant:
1) there has been a DEPRIVATION OF A CONSTITUTIONAL RIGHT resulting in the restraint of a
person;
2) the court had NO JURISDICTION to impose the sentence; or
3) the imposed penalty has been EXCESSIVE, thus voiding the sentence as such excess.

Which Court Has Jurisdiction Over Writs Of Habeas Corpus?

 Supreme Court – writ is enforceable throughout the Philippines.

 Court of Appeals – writ is enforceable throughout the Philippines.
 Regional Trial Court – writ is enforceable within its judicial region.
 Municipal Trial Court – when there is no available RTC Judge.
 Sandiganbayan – only if it is in aid of its appellate jurisdiction.

SB can only entertain petitions for writ of habeas corpus in aid of its appellate jurisdiction. When you say in
aid of its appellate jurisdiction, meaning the SB has jurisdiction over appeals coming from the RTC in cases
where the RTC also has jurisdiction.

Actually, the SC, CA, RTC have concurrent jurisdiction. But you have to observe the rule on hierarchy
of courts.

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.

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.

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.
IN THE MATTER OF PETITION FOR THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS: AZUCENA
L. GARCIA 2000 Aug 30, G.R. No. 141443

It is apparent from the arguments advanced by petitioner that the purpose of this petition is to cause this
Court to once again re-examine and pass judgment upon the trial court’s appreciation of the evidence
presented, especially the credibility of Coloyan as a witness.

Court cannot, in habeas corpus proceedings, review the record in a criminal case after judgment of
conviction has been rendered, and the defendants have entered on the execution of the sentence imposed,
to ascertain whether the facts found by the trial court were in accordance with the evidence disclosed by
the record, or to pass upon the correctness of conclusions of law by the trial court based on the facts thus
found.

Under the statute, a commitment in due form based on a final judgment convicting and sentencing a
defendant in a criminal case is conclusive evidence of the legality of his detention under such commitment,
unless it appears that the court which pronounced the judgment was without jurisdiction or exceeded its
jurisdiction in imposing the penalty. Mere errors of fact or law, which did not have the effect of depriving the
trial court of its jurisdiction over the cause and the person of the defendant, if corrected at all, must be
corrected on appeal in the form and manner prescribed by law.

Requisites for the Application for the Writ of Habeas Corpus

1) That the person in whose behalf the application is made is imprisoned or restrained on his liberty.
2) The party himself or for whom it is really intended.
3) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are
unknown or uncertain, such officer or person may be described by an assumed appellation, and the
person who is served with the writ shall be deemed the person intended.
4) The place where he is so imprisoned or restrained, if known.
5) A copy of the commitment or cause of detention of such person, if it can be procured without
impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal
authority, such fact shall appear.

AMPATUAN vs. MACARAIG G.R. No. 182497, June 29, 2010

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.

In this case, PO1 Ampatuan has been placed under Restrictive Custody. Republic Act No. 6975 (also
known as the Department of 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.

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.

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 .
Note:
The writ of habeas corpus is intended only to inquire into the authority or cause for the detention. It
does not make a ruling.

When is the Writ not Allowed?

1) If it appears that the person alleged to be restrained of his liberty is IN THE CUSTODY OF AN
OFFICER UNDER PROCESS ISSUED BY A COURT OR JUDGE.

i.e. kung naay warrant of arrest for his detention, then dili na pwede ang habeas corpus. Whether that
person indeed committed a crime, it is not within the province of the writ of habeas corpus.

Or maybe in deportation proceedings, if a charge sheet had already been filed against the person sought to
be deported. Here, walay basis for the issuance. The writ will not be allowed because there is already an
authority, or a process issued for the detention of the person.

2) If it appears that the person alleged to be restrained of his liberty is IN THE CUSTODY 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.

i.e. there is already an order issued by the court or a judgement, as long as the court has jurisdiction to
render that judgement, then the detention or restraint in the liberty of the person is justified. That is not
within the province of the Writ of Habeas Corpus to inquire into.

i.e. Contempt, direct or indirect. Gi kulong ka. It is issued by virtue of an order of a court, so you cannot
secure the release of that person by habeas corpus for as long as the court has jurisdiction to issue that.

3) If it appears that the person alleged to be restrained of his liberty is CHARGED WITH OR
CONVICTED OF AN OFFENSE in the Philippines;

Naa nay charge. i.e. Convicted na ka. The imprisonment is by virtue of that judgement. You cannot secure
the release of that person by a writ of habeas corpus because naa nay authority. What we’re talking here is
just whether or not there is authority for the detention or the restraint on the liberty of the person.

Maybe at the beginning gi dakop ka without a warrant of arrest. Definitely, sa beginning, the detention or
the restraint in the liberty is without authority. But, later on there was a charge. So, naa nay commitment
order issued by the court. Even if previously walay authority because the arrest was made without a
warrant and di pud siya ma justify under the rule on warrantless arrest, but because there is already a
charge, you cannot any more secure the release by a writ of habeas corpus. Although, you have other
remedies. i.e. Motion to quash the information, but not the remedy of writ of habeas corpus.

4) If it appears that the person alleged to be restrained of his liberty is SUFFERING

IMPRISONMENT UNDER LAWFUL JUDGMENT.

You cannot secure the release of the person if there is already a lawful judgement because the authority
here for the detention is the judgement issued by the court.

Instances When A Writ Of Habeas Corpus May Be Issued Even If The Detention Is By Virtue Of A
Judgment

General Rule: You cannot any more secure the release of the detained person or one who is restrained of
his liberty by virtue of the writ of habeas corpus.

Exceptions:
[1] There was deprivation of a constitutional right resulting in the restraint of a person.
[2] The court had no jurisdiction to impose the sentence.
[3] The imposed penalty was excessive, thus voiding the sentence as to the excess.
[4] The penalty was already served but the accused remains in detention.
[5] When the act for which the accused is convicted is decriminalized and the accused remains in
detention.

IN RE: THE WRIT OF HABEAS CORPUS FOR MICHAEL LABRADOR ABELLANA vs. HON. PAREDES
G.R. No. 232006, July 10, 2019

Nevertheless, it must be noted that when the detention complained of finds its origin in what has been
judicially ordained, the range of inquiry in a habeas corpus proceeding is considerably narrowed. Whatever
situation the petitioner invokes from the exceptional circumstances listed above, the threshold remains
high. Mere allegation of a violation of one's constitutional right is not enough. The violation of constitutional
right must be sufficient to void the entire proceedings. This, petitioner failed to show.

When you say due process, in essence, procedural due process entails that a party is afforded a
reasonable opportunity to be heard in support of his case and what is prohibited is the absolute absence of
the opportunity to be heard. When the party invoking his right to due process was in fact given several
opportunities to be heard and to air his side, but it was by his own fault or choice that he squandered these
chances, then his cry for due process must fail. So, here, the petitioner failed to show why.

Clearly, petitioner lost the remedies available to him when he failed to appear at the promulgation of
judgment despite being notified of the same. He cannot shift the blame to his counsel, for while Atty. Albura
was out of line when he deliberately did not appear at the promulgation "as a sign of protest," it was still
incumbent on petitioner to attend the same.

Likewise, petitioner's claim of denial of right to competent counsel must fail. While Atty. Albura was indeed
negligent when he deliberately failed to appear at the scheduled promulgation of judgment as a sign of
protest, the same does not warrant the granting of the petition for the issuance of the writ of habeas corpus.
On the contrary, petitioner is bound by Atty. Albura's negligence. So, the petitioner is bound by his lawyer’s
negligence.

The general rule is that a client is bound by the counsel's acts, including even mistakes in the realm
of procedural technique.

A recognized exception to the rule is when the reckless or gross negligence of the counsel deprives
the client of due process of law. For the exception to apply, however, the gross negligence should
not be accompanied by the client's own negligence or malice, considering that the client has the duty
to be vigilant in respect of his interests by keeping himself up- to-date on the status of the case. Failing in
this duty, the client should suffer whatever adverse judgment is rendered against him.

Instances When Petition For Writ Of Habeas Corpus Became Moot And Academic

1. When the petitioners who were charged under the Articles of War, were ABSOLVED of the
charges and released pending the petition

2. When the petitioners who were cited in contempt by the House of Representatives and
detained, were RELEASED BY VIRTUE OF THE LIFTING OF THE CONTEMPT ORDER

So, in these cases, there is no reason to continue with the petition because the purpose of the petition was
already served. The petitioners were already released.

Period To Appeal

 48 hours from notice of the judgment appealed from

 Rule On Custody Of Minors And Writ Of Habeas Corpus In Relation To Custody Of Minors

Jurisdiction and Venue

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. (Sec. 3).

So, the jurisdiction is with the Regional Trial Court or the Family Court.

The venue is with the province or city where the petitioner resides or where the minor may be found.

Who may file?

 A VERIFIED PETITION for the rightful custody of a minor may be filed by

1. ANY PERSON CLAIMING SUCH RIGHT. The party against whom it may be filed shall be
designated as the respondent. (Sec. 2)

 Answer should also be verified.

ABANILLA, ET. AL. vs. ABANILLA G.R. No. 162734, August 29, 2006
Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled
thereto. Under Article 211 of the Family Code, respondent Loran and petitioner Marie Antonette have joint
parental authority over their son and consequently joint custody. Further, although the couple is separated
de facto, the issue of custody has yet to be adjudicated by the court. In the absence of a judicial grant of
custody to one parent, both parents are still entitled to the custody of their child. In the present case, private
respondent’s cause of action is the deprivation of his right to see his child as alleged in his petition. Hence,
the remedy of habeas corpus is available to him.

Here, the father can use this remedy as basis to insist that he should be allowed to see his child because
nothing in the law, specifically Art. 213 of the FC states that a father is disallowed from visiting or seeing his
child under 7 years of age. Art. 213 of the FC actually deals with the judicial adjudication of custody. But,
we’re not yet talking here of custody, but merely visitation rights.

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF MINOR SHANG KO VINGSON YU
SHIRLY VINGSON vs. JOVY CABCABAN UDK No. 14817, January 13, 2014

Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus is available, not only in cases of
illegal confinement or detention by which any person is deprived of his liberty, but also in cases involving
the rightful custody over a minor.

The general rule is that parents should have custody over their minor children. But the State has the right to
intervene where the parents, rather than care for such children, treat them cruelly and abusively, impairing
their growth and well-being and leaving them emotional scars that they carry throughout their lives unless
they are liberated from such parents and properly counseled.

No Motion To Dismiss Allowed

A motion to dismiss the petition is not allowed except on the ground of lack of jurisdiction over the subject
matter or over the parties. Any other ground that might warrant the dismissal of the petition may be raised
as an affirmative defense in the answer. (Sec. 6)
Effect Of Failure To Appear At The Pre-Trial

(a) If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed,
unless his counsel or a duly authorized representative appears in court and proves a valid
excuse for the non-appearance of the petitioner.

(b) If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall
be allowed to present his evidence ex parte. The court shall then render judgment on the
basis of the pleadings and the evidence thus presented. (Sec. 11)

Order Of Preference In Award Of Custody

1. Both parents jointly;

2. Either parent, taking into account all relevant considerations, especially the choice of the minor
over seven years of age and of sufficient discernment, unless the parent chosen is unfit;

3. The grandparent, or if there are several grandparents, the grandparent chosen by the minor over
seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or
disqualified;

4. The eldest brother or sister over twenty-one years of age, unless he or she is unfit or
disqualified;

5. The actual custodian of the minor over twenty-one years of age, unless the former is unfit or
disqualified; or

6. Any other person or institution the court may deem suitable to provide proper care and
guidance for the minor.

Sec. 14. Factors to consider in determining custody

The court shall also consider the following:

1. Any extrajudicial agreement which the parties may have bound themselves to comply with
respecting the rights of the minor to maintain direct contact with the non custodial parent on a
regular basis, except when there is an existing threat or danger of physical, mental, sexual or
emotional violence which endangers the safety and best interests of the minor;
2. The desire and ability of one parent to foster an open and loving relationship between the minor and
the other parent;
3. The health, safety and welfare of the minor;
4. Any history of child or spousal abuse by the person seeking custody or who has had any filial
relationship with the minor, including anyone courting the parent;
5. The nature and frequency of contact with both parents;
6. Habitual use of alcohol, dangerous drugs or regulated substances;
7. Marital misconduct;
8. The most suitable physical, emotional, spiritual, psychological and educational environment for the
holistic development and growth of the minor; and
9. The preference of the minor over seven years of age and of sufficient discernment, unless the
parent chosen is unfit.
Hold Departure Order

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

The court, motu proprio or upon application under oath, may issue ex parte a hold departure order,
addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the minor
from the Philippines without the permission of the court.
The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the
Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order
within twenty-four hours from its issuance and through the fastest available means of transmittal.

The court may recall the hold departure order motu proprio, or upon verified motion of any of the parties
after summary hearing, subject to such terms and conditions as may be necessary for the best interests of
the minor.

Protection Order

The court may issue a Protection Order requiring any person:

1. To stay away from the home, school, business, or place of employment of the minor, other parent or
any other party, or from any other specific place designated by the court;

2. To cease and desist from harassing, intimidating, or threatening such minor or the other parent or
any person to whom custody of the minor is awarded;

3. To refrain from acts of commission or omission that create an unreasonable risk to the health,
safety, or welfare of the minor;

4. To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to

visit the minor at stated periods;

5. To permit a designated party to enter the residence during a specified period of time in order to take
personal belongings not contested in a proceeding pending with the Family Court; and

6. To comply with such other orders as are necessary for the protection of the minor.

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.
MADRINAN VS. MADRINAN G.R. 159374, JULY 12, 2007

RA 8369 did not divest the CA and the SC of their jurisdiction over habeas corpus cases involving custody
of minors. Family courts have concurrent jurisdiction with the CA and the SC in petitions for habeas corpus
where the custody of minors is at issue.

Under RA 8369, the family courts are vested with original exclusive jurisdiction in custody cases, not in
habeas corpus cases. Writs of habeas corpus which may be issued exclusively by the family courts under
said law pertain to the ancillary remedy that may be availed of in conjunction with the petition for custody of
minors under Rule 99 of the Rules of Court.

In this case, after petitioner moved out of their residence, he twice transferred his sons to provinces
covered by different judicial regions. By giving the family courts exclusive jurisdiction over habeas corpus
cases will result in an iniquitous situation leaving individuals like the respondent without legal recourse in
obtaining custody of her 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. This lack of recourse could not have been the intention of RA 8369.
 WRIT OF HABEAS DATA

It is a remedy available to any person whose right to privacy in LIFE, LIBERTY, OR SECURITY is
1. violated or
2. threatened by an unlawful act or omission of a
- public official or employee, or
- private individual or entity engaged in the gathering, collecting or storing of data
or information regarding the person, family, home, and correspondence of the
aggrieved party.

By means of filing a petition of a writ of habeas data, the petitioner can ask the court for the respondent to
produce the information, the data being gathered in relation to the person of the petitioner or can even ask
the court to destroy that information or data or to suppress the data or information to protect the life, liberty
and security of the petitioner

Purpose:

It is an independent and summary remedy designed to protect the image, privacy, honor, information, and
freedom of information of individual, and to provide a forum to enforce one’s right to the truth and to
informational privacy. It seeks to protect a person’s right to control information regarding oneself,
particularly in instances in which such information is being collected through unlawful means in order to
achieve unlawful ends.

Habeas data essentially allows families of victims of enforced disappearance to petition the courts to
compel government and security officials to allow access to documents about the missing.

Habeas Data vs. Amparo

Both of them can make reference to cases of enforced disappearances.

Specifically for habeas data, it allows families of victims of enforced disappearance to petition the courts to
compel the government and security officials to allow access to documents about the missing.

Writ of Amparo denies state officials the defense of denial with which they normally evade petitions for
habeas corpus that families of missing persons file, and compels them instead to exert efforts to find these
missing persons or face sanctions.

Who Files A Petition For The Issuance Of A Writ Of Habeas Data?

General Rule: Any aggrieved party.

However, in cases of extralegal killings and enforced disappearances, the petition may be filed by these
persons:
1. Any member of the immediate family of the aggrieved party, namely: the spouse, children and
parents; or

2. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil
degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph.

To Which Court May The Petition Be Filed?

The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that
which has jurisdiction over the place where the data or information is gathered, collected or stored, at the
option of the petitioner.

The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan
when the action concerns public data files of government offices.
What Should The Respondent File After The Writ Is Served?

The respondent shall file a verified [meaning under oath] written return together with supporting affidavits
within five working days [meaning you exclude Saturdays and Sundays] from service of the writ, which
period may be reasonably extended by the Court for justifiable reason.

Lawful defenses such as national security, state secrets, privileged communication, confidentiality of the
source of information of media and others

Contempt Under Section 11 Of The Rule:

The court, justice, or judge may punish with imprisonment or fine a respondent who commits contempt by
making a false return or refusing to make a return; or any person who otherwise disobeys or resists a lawful
process or order of the court.

When the respondent fails to file a return, the court, justice, or judge shall proceed to hear the petition ex
parte, granting the petitioner such reliefs as the petition may warrant unless the court in its discretion
requires the petitioner to submit evidence.

When May The Court Hear The Petition In Chambers?

A hearing in chambers may be conducted when the respondent invokes the defense that the release of the
data or information in question shall compromise:
 national security or
 state secrets, or
 when the data or information cannot be divulged to the public due to its nature or privileged
character.

Period To Appeal?
 Five (5) working days from the date of notice of the judgment or final order.

Effect Of Filing Of The Petition On The Filing Of Separate Criminal, Civil, Or Administrative Actions:

The filing of a Petition for Writ of Habeas data does not preclude the filing of separate criminal, civil, or
administrative actions.

What will happen is that the petitions will be consolidated. And in that case, you still follow the rules of
procedure under the writ of Habeas Data insofar as to the writ of Habeas Data is concerned.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas
data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under the
Rule on the Writ of Habeas Data shall continue to govern the disposition of the reliefs in the petition.

Effect Of Pendency Of A Criminal Action

When a criminal action has been commenced, no separate petition for the writ shall be filed, but the
reliefs under the writ shall be available by motion in the criminal case, and the procedure under the Rule on
the Writ of Habeas Data shall govern the disposition of the reliefs available under the said rule.

Remedy: You can still file a motion in the same criminal case for a writ of habeas data. In the disposition of
that motion, the court will just follow the rule on habeas data.
VIVARES, ET. AL. vs. ST. THERESA'S COLLEGE, ET. AL.

STC is not a government instrumentality or a public office. It is a private entity. But, is it engaged in the
gathering, collecting or storing of data or information?

The writ of habeas data is not limited only to cases of extralegal killings or enforced disappearances.

Habeas data, to stress, was designed "to safeguard individual freedom from abuse in the
information age." The writ of habeas data can be availed of as an independent remedy to enforce one’s
right to privacy, more specifically the right to informational privacy. The remedies against the violation of
such right can include the:
 updating,
 rectification,
 suppression or
 destruction
of the database or information or files in possession or in control of respondents. Clearly then, the
privilege of the Writ of Habeas Data may also be availed of in cases outside of extralegal killings
and enforced disappearances.

Meaning of "engaged" in the gathering, collecting or storing of data or information.

Habeas data is a protection against unlawful acts or omissions of public officials and of private
individuals or entities engaged in gathering, collecting, or storing data about the aggrieved party and his or
her correspondences, or about his or her family. Such individual or entity need not be in the business
of collecting or storing data.

Did STC violate the petitioner’s daughters right to privacy? NO

STC did not violate petitioners’ daughters’ right to privacy. It does not mean that any Facebook user
automatically has a protected expectation of privacy in all of his or her Facebook activities.

Before one can have an expectation of privacy in his or her OSN [Online Social Network] activity, it is first
necessary that said user, in this case the children of petitioners, manifest the intention to keep certain posts
private, through the employment of measures to prevent access thereto or to limit its visibility. And this
intention can materialize in cyberspace through the utilization of the OSN’s privacy tools.

Considering that the default setting for Facebook posts is "Public," it can be surmised that the photographs
in question were viewable to everyone on Facebook, absent any proof that petitioners’ children positively
limited the disclosure of the photograph. If such were the case, they cannot invoke the protection attached
to the right to informational privacy.

LEE vs. ILAGAN G.R. No. 203254 October 8, 2014

In order to support a petition for the issuance of the writ of Habeas Data, the Rule essentially requires that
the petition sufficiently alleges, among others, "[t]he manner the right to privacy is violated or
threatened and how it affects the right to life, liberty or security of the aggrieved party."

In other words, the petition must adequately show that there exists a nexus between the right to privacy
on the one hand, and the right to life, liberty or security on the other.

Corollarily, the allegations in the petition must be supported by substantial evidence showing an actual or
threatened violation of the right to privacy in life, liberty or security of the victim. The writ of habeas data will
not issue to protect purely property or commercial concerns nor when the grounds invoked in support of the
petitions therefor are vague and doubt

In this case, the Court finds that Ilagan was not able to sufficiently allege that his right to privacy in life,
liberty or security was or would be violated through the supposed reproduction and threatened
dissemination of the subject sex video.
While Ilagan purports a privacy interest in the suppression of this video – which he fears would somehow
find its way to Quiapo or be uploaded in the internet for public consumption – he failed to explain the
connection between such interest and any violation of his right to life, liberty or security.

Contrastingly, Lee even made it clear in her testimony that the only reason why she reproduced the subject
video was to legitimately utilize the same as evidence in the criminal and administrative cases that she filed
against Ilagan.

MERALCO vs. LIM G.R. No. 184769 JULY 5, 2018

Lim’s plea that she be spared from complying with MERALCOs Memorandum directing her reassignment to
the Alabang Sector, under the guise of a quest for information or data allegedly in possession of
MERALCO, does not fall within the province of a writ of habeas data.

The writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor
when the grounds invoked in support of the petitions therefor are vague or doubtful.

Employment constitutes a property right under the context of the due process clause of the Constitution. It
is evident that Lim’s reservations on the real reasons for her transfer – a legitimate concern respecting the
terms and conditions of one’s employment – are what prompted her to adopt the extraordinary remedy of
habeas data. Jurisdiction over such concerns is inarguably lodged by law with the NLRC and the Labor
Arbiters

DE LIMA vs. PRESIDENT DUTERTE G.R. No. 227635 October 15, 2019

May the incumbent Chief Executive be haled to court even for the limited purpose under the Rules on the
Writ of Habeas Data?

RULING: No. The petition must be dismissed even without the President invoking the privilege of immunity
from suit.

This privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked
only by the holder of the office; not by any other person in the President's behalf.

The Constitution provides remedies for violations committed by the Chief Executive except an ordinary suit
before the courts. The Chief Executive must first be allowed to end his tenure (not his term) either through
resignation or removal by impeachment.

NUPL ET. AL vs. PRES. DUTERTE G.R. No. 246175 May 3, 2019

RULING: The Supreme Court en banc issued a writ of Amparo and habeas data in favour of the
National Union of People’s Lawyers. The court also referred the petition to the Presiding Justice of the
Court of Appeals, who was directed to hear the petition and decide within 10 days after submission of the
case for decision. The court order Pres. Duterte among others to make a verified return of the Writ of
Amparo and habeas data.

The Court also ordered respondents President Rodrigo Duterte, who was impleaded in his capacity as the
Commander-in-Chief of the Armed Forces of the Philippines, National Security Adviser (Ret.) Gen.
Hermogenes C. Esperon, Jr., et al. to make a verified return of the writ of amparo and habeas data on or
before May 8, 2019, and to comment on NUPL, et al.’s petition before the said date.