INTRODUCTION Remedial Law (BPCEW) Body of laws w/c provides means or methods whereby a cause of action may be effectuated,

, wrongs redressed and relief obtained. Substantive law (PCRLPA) Part of the law w/c creates, defines or regulate rights concerning life, liberty or prop. Or the powers of agencies or insts. for the admntn of pub. Affairs. Distinguished SL from RL SUB.LAW REM.LAW Vested rights possible No vested rights Prospective in application Cannot be enacted by SC retroactive

SC expy. empowered to prom.procl. rules Basis (art. VIII, Sec.5, subpr.5) Promulgate rules concerning the protection & enforcement of constl. rights, pleading, practice, and procedure in all courts, the admsn to the PofL, the IB, and leg. Asstce to the underprivg. Limitations Such rule shall Provide a simplified and inexpensive procedure for the speedy dispo. of cases, Shall be Uniform for all courts of the same grade, And shall not Diminish, increase, modify subv. rights. Rules of proce. Of special courts and quasi-judcl. bodies shall remain effective unless disapproved by the SC. Components of RL Civil procedure, Special proceeding, Criminal procedure, Evidence. DEFINITION OF TERMS 1. Special proceedings - a remedy by which a party seeks to estb. a status, a right, or a particular fact. 2. Probate - a special proceeding to establish the validity of a will 3. Reprobate - a special proceeding to establish the validity of a will proved in a foreign country 4. Legacy - a bequest of personal property in a will 5. Devise - a bequest of real property in a will 6. Testate estate - an estate of a deceased person which is settled or to be settled with the last will and testament of that deceased person 7. Intestate estate - the estate of a deceased person without a will [The estate is settled by the laws of intestacy provided in the Civil Code.] 8. Executor - the person named in the will who is entrusted to implement its provisions [The

executor needs to be issued letters testamentary after the court determines his or her qualifications.] 9. Administrator - the person entrusted with the care, custody and mngt. of the estate of a deceased person until the estate is partitioned and distributed to the heirs, legatees and devisees, if any. 10. Escheat - the reversion of property to the State when the title thereto fails from defect of an heir 11. Guardianship - a trust relation in which one person [guardian] acts for another [ward] whom the law regards as incapable of managing his own affairs 12. Trust - the legal relationship between one person having an equitable ownership in property and another person [cestui que trust] owning the legal title to such property 13. Trustee - a person appointed by a court to carry out the provisions of a will. 14. Fideicommissary substitution - takes place where the testator designates a person as an heir charging him to deliver to another the whole or part of the inheritance under circumstances. 15. Adoption - a juridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiations. 16. Family home - the dwelling house where a husband and wife, or an unmarried head of a family resides, and the land on which it is situated, which is now deemed constituted from the time it is occupied as a family residence, and is exempt from execution, forced sale or attachment except as provided by law and to the extent of the value allowed by law Note: Rule 106, which provides for the judicial constitution of a family home, is already extinct going by the Family Code which does not require a judicial constitution of the family home. 17. Absentee - a person whose whereabouts and existence are not known in the sense of the law allowing a subsequent marriage, and for purposes of administration of the estate of the absentee, and of succession 18. Civil registry - the public record where acts, events and judicial decrees concerning the civil status of persons are entered 19. Multiple appeals - are appeals in special proceedings where a number of appeals may be taken separately or simultaneously by different parties for different purposes [A record on appeal is necessary in order not to prejudice the proceedings that will have to continue and that may have to stop or be suspended if the entire record of the proceedings is elevated.]

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Distinguished action from SP Action SP Formal demand of Aplctn to estb. A ones right in a status or a right court of justice. Theres plaintiff and No P/D only defendant petitioner Issue stated in a pleadings of parties Commenced by pleag called the complaint Prescription applies Issues are det. By law Commenced by a petition Not generally apply

RULE 72 SUBJ.MATTER AND APPLICABILTY OF GEN.RULES Section 1. Subj. matter 1. Adoption [Rule 99]; 2. Family home, Constitution of the [Rule 106]; 3. Absence and death, Declaration of [Rule 107]; 4. Rescission and revocation of adoption [Rule 100]; 5. Trustees [Rule 98]; 6. Settlement of estate of deceased persons [Rules 73 to 90]; 7. Insane persons, Hospitalization of [Rule 101]; 8. Name, Change of [Rule 103]; 9. Cancellation or correction of entries in the civil registry [Rule 108]; 10. Habeas corpus [Rule 102]; 11. Appeals in Special Proceedings; 12. Recognition of minor natural children, Judicial approval of voluntary [Rule 105]; 13. Guardianship and [Rules 92-97]; 14. Escheat [Rule 91]; custody of children

Section 2. Applicability of gen. rules in the absence of spec. prov. The rules provided in ordinary actions shall be as far as practicable, applicable in spe.proc. RULE 102 HABEAS CORPUS Defined (DCD3SRA)

a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf. Literally means you have the body Vital purpose (Velasco v. CA) Obtain immediate relief from illegal confinement; Liberate those who may be imprisoned without sufficient cause; and Deliver them from unlawful custody. Nature WHC; it is not/no: Suit in a technical sense; Obtain redress against anybody, designed; Judgment can be entered against anybody; Real plaintiff and defendant. Constitutional Provision on HC Art.3, section 15, the privilege of the whc shall not be suspended except: In cases of invasion or rebellion, when pub. Safety requires. Kinds of WHC 1. Preliminary Citation person is detained under govtal autho. & illegality of his detention is not patent from the petition for the writ, the court issue the citation to the government officer having custody to show cause why the HC should not issue. 2. Peremptory writ the cause of the detention appears to be patently illegal. Noncompliance with this is punishable. Scope and applicability; to what extends? All cases of illegal confinement or detention by which a person is: a. Deprived of liberty; or b. Rightful custody of a person is withheld from the person entitled thereto; c. If, as a Consequence of a judcl proc: Court has no juris. to impose the sen. ( void judcl order ); or Excessive penalty was imposed, cuz the sen. Is void as to the excess (bond entitled thereto is not admitted or excessive or penalty imposed by the court is not provided by law); Deprivation of constl right resulting in the persons restraint (e.g, restraint of freedom of action , such as freedom of locomotion); There is restraint of liberty When one is deprived of freedom of action, such as the freedom of locomotion. [Villavicencio vs. Lukban, 39 Phil 778,

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1919] The writ of habeas corpus is no longer available to one who is already out on bail. [Zacarias vs. Cruz] General Rule Whc not issue if the restraint is voluntary Exception Parents to regain custody of a minor, even in the custody or 3rd person of his own free will. Minors welfare is paramount consid what matters is not the technicalities of the case but the imorl ctuatn disclosed by the rec.not allowed to continue. Actual and effective restraint Not physical restraint alone which is inquired into by the whc. Any restraint which will prejudice the freedom of action is sufficient ground. Examples: a. Freedom of speech muffled by prohi that he cannot give interviews; b. Liberty of abode restricted by need for prior approval for changing res; c. Restrict freedom of movement; d. Reg. reporting to resp. required. Release of the detained When effected, the issuance of whc becomes moot and academic (one that is free from involuntary restraints) hence, may still be applied for if: Continues denial of his contl rights; Restraint not invol but appear unnecessary; Orig. valid deprivation of liberty became arbitrary in subsq. Devt. Not a substitute for trials ord. course Not lie to correct error of facts or law, if court has juris. its judgment is not subj to collateral attack by whc. Not be validly resorted to in lieu of a lost/dismissed of appeal. Exception Whc may be used with writ of certiorari for the purpose of review. To give effect to supervisory power of higher courts. Thus, HC+Certiorari=review. WHC Purpose to inquire:

Reason for the detention or deprivation of the liberty of a person to det. Its legality; Manner of involuntary restraint; and Relieve a person therefrom if such restraint is illegal. Who May Grant the Writ [Rule 102, Section 2] a. Supreme Court, or any member thereof, on any day and at any time; or b. Court of Appeals or any member thereof in the instances authorized by law; Note [for a) and b)]: 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 the RTC, or any judge thereof for the hearing and decision on the merits. c. RTC, or a judge thereof, on any day and at any time Note: The writ is returnable before himself and enforceable only within his judicial district Requisites of Application [Rule 102, Section 3] Court must determined whether: a. Person in whose behalf the aplctnn is made is impris or restrained of his liberty; b. Officer or name of the detaining another; c. Place where he is so imprisoned or restrained, if known; d. Copy of the commitment or cause of detention of such person. When Writ Not Allowed [Rule 102, Section 4] 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 Court or judge had jurisdiction to issue the process, render the judgment, or make the order. Grounds for denying the writ: a. Juris. appears after the writ is allowed (informality/defect) b. Impri. under lawful order (insanity, leprosy) c. Custody under press/order by court with Juris. d. Charge/conviction for an offense in the phil.(com. order another) Writ not allowed or discharge 1. Supervening events may bar release

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Issuance of process Filing of information 2. Improper arrest or lack of prelim. Investigation 3. Posting of bail is not a waiver (No longer controlling) 4. Effect of filing deportation cases. Issuance of the Writ [Rule 102, Section 5] The clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it. To Whom Writ Directed [Rule 102, Section 6] In case of imprisonment or restraint by an officer: To the officer. The writ shall command him to have the body of the person restrained of his liberty before the court or judge. In case of imprisonment or restraint by a person not an officer: To an officer. The writ shall command him to take and have the body of the person restrained of his liberty before the court or judge and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint. How Prisoner Designated [Rule 102, Section 7] The person to be produced should be designated in the writ by his name, if known, but if his name is not known, he may be otherwise described or identified. Where, By Whom, How Writ Served Designated [Rule 102, Section 7] It may be served in any province. It may be served by the sheriff or other proper officer, or by a person deputed by the court or judge. I may be served by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service. If that person cannot be found, or has not the prisoner in his custody, then the service shall be made on any other person having or exercising such custody. How Writ Executed and Returned [Rule 102, Section 8] General rule:

The officer to whom the writ is directed shall convey the detained person on the day specified on the writ: a. before the judge who allow the writ, b. absence or disability, before any judge of the same court Exception: if the person to be produced has sickness or infirmity, such that he cannot be brought before the court without danger. Note: whc cannot be disobeyed for formal defect, if it sufficiently appears there from: a. who has custody of the detained; and b. judge /court before whom the detained must be produced.[Rule 102, Section 9] The return is signed by the person who made it. It shall be sworn to by him: a. if the prisoner is not produced; or b. Not made and signed by a sworn public officer in his official capacity. Contents of the return: [Rule 102, Sec. 10] 1. WON he has custody of the detained 2. Copy of the authority for the custody 3. If the person is not produced in court, the nature and gravity of sickness/infirmity; 4. If custody is transferred, the circumstances of the transfer. Return of the WHC 1. Failure to file reply to return of writ warrants dismissal of petition 2. Burden of proving release is on respondent Hearing and Adjournments [Rule 102, Section 12] When the writ is returned, the court must immediately hear the case Hearing may be adjourned for good causes, with the court making provisions for the safekeeping of the detained person. If the detained person is not produced, the court must be satisfied of the gravity of the alleged sickness/infirmity. In hearing, the court shall disregard matters of forms and technicalities of the authority/order of commitment. Burden of proof General Rule: The burden of proving illegal restraint rests on the petitioner who attacks the restraint. If the return sets forth process which prima facie shows good ground for the prisoners

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detention, petitioner must alleged and prove new matter that tends to invalidate the apparent effect of the process.[Feria v. CA (2000)] Exception: [Rule 102, Sec. 13] If custody is under If custody is by any warrant of alleged private commitment authority pursuant to law Return is Return is only a considered prima plea of the facts set facie evidence of forth therein, and the cause of the party claiming restraint custody must prove such facts Recommitment, Bail or Discharge If unlawfully If lawfully comtd for an restrained offense [Sec.14] [Sec. 15] court shall 1) if offense is order punishable by discharge death detained from person cannot be confinement; released/discharg but discharge ed. is not 2) If offense is NOT effective until punishable by copy of order death either: is served on a) recommit to detaining prison; person. If b) admit to bail. detaining person does not desire to appeal, detained person shall be released. If detained person is admitted to bail, he shall file a bond conditioned on appearance in court, otherwise, he will be recommitted (Sec.14) General Rule: Person set at liberty by the writ shall not be imprisoned for the same offense (Sec.17), State without power to reserve rearrest Toyota v. Ramos, 139 SCRA 319. The moment a person is acquitted on a criminal charge he can no longer be detained or re-arrested for the same offense Exception: If there is lawful order/process of a court having jurisdiction Punishable acts/omissions 1. If COC refuses to issue the writ after allowance by the court and demand

2. If person directed in the writ: a. Neglects/refuse to obey or make the return, b. Makes a false return c. Refuses to deliver a true copy of the warrant/order of commitment, within 6 hours after demand 3. Imprisoning a person set at liberty by the writ, for the same offense. [sec.17] 4. Removing a prisoner from one custody to another [sec.18] Penalties 1. Forfeiture of P1,000 to the aggrieved party 2. Punished for contempt. Prisoner May Be Removed from One Custody to Another [Rule 102, Sec. 18] Grounds: a. Prisoner is be delivered to an inferior officer to carry to jail, or, b. Legal process, or c. Order of the proper court or judge, be removed from one place to another within the Philippines for trial, or d. Case of fire, epidemic, insurrection, or other necessity or public calamity; and In case of violation, a person who, after such commitment, makes, signs, or countersigns any order for such removal contrary to this section, shall forfeit to the party aggrieved the sum of P1000, to be recovered in a proper action. Appeals in HC cases SC restored original rule period to appeal is 48 hrs (Sec.39 BP 129) Saulo v. Brig. Gen . Cruz time prescribe for perfection of appeals not only mandatory but jurisdictional. Kabigting v. Dir.of prisons date on which the decision was promulgated and/or served is not counted and the period starts to run the ff. day unless it is Sunday or legal holiday in which case its starts on succeeding day. To perfect appeal a notice of appeal is required to be filed with the clerk of court or judge who rendered the judgment. Relationship of WHC and Certiorari The writ of HC and certiorari may be ancillary to each other where necessary to

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give effect to the supervisory powers of the higher courts. [Regalado] Rationale: An HC writ reaches the body and the jurisdictional matters but not the record. A certiorari reaches the record, but not the body. Hence, the two may be used together for review purposes. HABEAS DATA Defined (PIPHIF) You should have the data a writ designed to protect through a petition or complaint, the image, privacy, honor, info. Self-detn. and freedom of info. Of a person.(American leg.sch) In the Philippines Prom. By SC on jan. 22, 2008, in the midst of worsening human rights conditions in the country through extra- judcl killings, enforced disappearances and torture. Nature and scope of phil. HD (sec. 1) Remedy available to any person whose right to privacy in life, lib or security is violated or threatened by an unlawful act or omission of a public official or empe, or a private indvl or entity engaged in the gathering, collecting or storing of data or info. Regarding the per,fam, home and correspondence of the aggrieved party. The respondent may be a: a. Pub. Off. Or empe; or b. Priv. indvl or entity engaged in GCSR.. Law requires that the a/o causing the vio. must be unlawful, however GCS or using data of an indvl, without consent, is presumed unlawful unless the resp. proves the data is current, accurate, its confidentiality assured, and was legally acquired or gathered for a leg.purpose. Who has standing to file the petition? (sec. 2) Aggrieved party, however, in cases of extra-judcl killings and enforced disappearances: a. Mem. Of immed. Fam of AP, namely: Spouse, child. Or parents;or b. Any ascen. Desc. Or colla.rel. of AP w/in the 4th civil deg of cons. Or aff in default of a. Where to file (sec. 3) Option of the petitioner, with:

RTC where the resp. or peti. resides ( akin to rules of argentina and any ame. Places) b. RTC which has juris. Over the place ( data or info. Is GCS) c. SC, CA or SB when the action concerns ( pub. Data files of govt. offices) Where returnable/ enforceable (sec. 4) When issued by the SC or any of its justices, it may be returnable b4 such court or any justice thereof, or b4 the C or SB, or any of its justices or to any RTC of the place where the pet./ resp. Resides, or that w/c has juris.. Notw/standing the venue chosen, the writ is enforceable anywhere in the phil. How much is the docket fee (sec. 5) No docket and other lawful fees are required from an indigent petitioner it shall be docketed and acted upon immed. w/o prejudice to the subseq. Submsn of proof of indigency not later than 15 days from the filing of petition. If court finds the proof insufficient, it is hoped that the court merely orders the payment of docket fees rather than dismissing the petition. What should the petition contain (sec. 6) A verified petition for a WHD shud contain: a. Personal circum. Of the petitioner and the resp; b. Manner the right to privacy is vio. Or thret. And how it affects the LLS of AP; c. Action and resources taken by the pet. To secure the data or info; d. Location of the files, registers or data bases, the govt. office and the person in charge, in possession or in control of the data or info., if known; e. Relief prayed for, w/c may include the updating, rectification, suppression or destruction of the database or info. Or files kept by the resp.; f. Other relevant reliefs as are just and equitable. When is a writ issued? (sec. 7) Upon filing of petition, the court, justice or judge shall immed. order the issuance of the writ if on its face it ought to issue.

a.

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The clerk shall issue the writ under the seal of the court and cause it to be served w/in 3 days from its issuance; or in case of Urgent necessity, the JJ may issue the writ under his hand and may deputize any officer or person to serve it. NOTE: The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the work of issuance. May a petition for habeas data be filed if there is a pending criminal action? (Sec. 22) No, but a motion may be filed in the court hearing the criminal case. When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available to the aggrieved party by motion in the criminal case. The procedure under this rule shall govern the disposition of the reliefs available under the writ of habeas data. NOTE: It is not clear, however, how the court may establish that the criminal case has a nexus to the issues raised under the writ. It is therefore possible that a petitioner may file a separate habeas data petition claiming that the information sought to be rectified or destroyed by the petition does not or will not prejudice the pending criminal action. From the provision, the writ may be filed and resolved independent of any civil action. What if a crim. & a separate civil action is filed after the petition is filed?(Sec.20-21) The filing of a petition for a writ does not preclude the filing of separate criminal, civil or administrative action (section 20). If a criminal action is filed subsequently to the filing of a petition for the writ, the petition shall be consolidated with the criminal action as provided under section 21. If an independent civil action is filed separate from the criminal case, the petition is consolidated with the criminal action and not with the civil action. In any case, the procedure under the rule on habeas data shall govern the disposition of the reliefs prayed for in a habeas data motion filed before the court hearing the criminal case. What should the respondents Return contain? (Sec.10) The resp. shall file a verified written return together with supporting affidavits within five work days from service of the writ, which period may be reasonably extended by the court of justifiable reasons. The

return shall, among other things, contain the following: a. The lawful defense such as national security, state secrets, privgd communictn, confidentiality of the source of info. of media and others; b. In case of resp. in charge in possession or in control of the said data or info., subj. of petn: (i) Disclosure of the data or information about the petr., the nature of such data or info, & the purpose for its collection; (ii) Steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and (iii) Currency and accuracy of the data or info; c. Other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petitions shall not be allowed. How will the hearing be conducted in cases of sensitive data? (Sec. 12) A hearing in chambers may be conducted where 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 information cannot be divulged to the public due to its nature or privileged character. What if the respondent fails to make a Return? (Sec.14) In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner submit evidence. If the respondent fails to file a return within the period allowed, the court may hear the petition ex parte and may immediately grant the relief prayed for. EXAMPLE: Pres. Gloria Arroyo does not file a verified return in the various amparo petitions filed against her. The Solicitor general, however, set up for Pres. Arroyo the affirmative defense that she is immune from suit. This may also be used in habeas data petition. Human rights lawyers must insist that Pres. Arroyo must file a verified return, and claim her immunity through that verified return. This is because the rule provides for the filing of the same. Furthermore, the privilege of immunity must be claimed by the person given such privilege. The Solicitor

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general cannot take up the cudgels for the president in this respect especially if there is no proof that the President personally informed the Solicitor General of her intention to avail of immunity. The president may waive the privilege and allow herself to be used, and it is therefore, important for the president to raise the same through a verified return. Is there a penalty for refusing to make or making a false return? (Sec. 11) 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. Can the respondent file a pleading other than a return? (Sec.13) enumerates prohibited pleadings such as, inter alia, motion to dismiss, for extension of time, dilatory motion for postponement, bill of particulars, motion to declare respondent in default, intervention, motion for reconsideration of interlocutory orders, Memorandum, counter claim, or reply. Period w/n w/c the court must decide the petition? What should the decision contain? The rule requires the immediate issuance of the writ possibly in recognition of the urgency of remedy particularly in cases involving threat to life or liberty. However, there is no period set for the resolution of the petition except that it should be resolved within ten (10) days from the time the petition is submitted for decision, to wit: (Sec. 16) NOTE: the court shall render judgment within ten days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise the privilege of the writ shall be denied. Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be designated by the court, justice or judge within five work days. Firstly, there is a distinction between the grant of the writ of habeas data - decision of the court to give due course to the petition, require respondents to file their return and set the petition for hearing. The grant of the privilege of the writ - petition is found meritorious, the prayers therein are granted and the petitioner is granted the relief sought for.

Secondary, the courts judgment ordering the deletion or rectification or destruction of the data can only be implemented once the judgment becomes final. It is possible therefore that the decision may be appealed to the Supreme Court by any of the parties. How is a decision appealed? (Sec. 19) may be appealed to the SC on questions of facts or law or both: a. Any may appeal from the judgment or final order to the Supreme Court under Rule 45. b. Raise questions of facts or law or both. c. Period of appeal shall be (5) days from the date of notice or judgment or final order. d. The appeal shall be given the same priority as habeas corpus or amaparo cases. e. The RC shall apply suppletorily insofar as it is not inconsistent with the Rule on Habeas Data (SECTION 24) Conclusion Even if the rule allows for private individuals as respondents, the writ of habeas data may be one of the main remedies for those whose right to file, liberty or security are threatened or violated by acts or omission of public officials. The Phil. HD may vary from the other Latin American habeas data precisely because it is informed by conditions obtaining in the country today. The habeas data rule, similar to the amparo rule, may be interpreted differently in the future, as jurisprudence on the same develops, but in the current context it should be used by victims of harassment and other human rights violations committed by the state and its security forces. It is hoped that the Court will give full play to the use of habeas data as a venue for victims of human rights violations seek redress for the violations and extract accountability for the abuse of information collected, stored and used by the State. THE WRIT OF AMPARO Role of Amparo Effective and inexpensive instrument for the protection of contl. Rights. Literally means to protect originated in mexico. It started as a protection against acts or omissions of public authorities in vio. Of constl rights. Later, however, the writ evolved for several purposes:

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a. b. c. d. e.

Protection of per.freedom equiv. to the habeas corpus (amparo libertad); Judcl review of the consty of statutes (amparo contra leyes); Judcl review of the consty and legality of a judcl decision (amparo casacion); Judcl review of the Admtv actions (amparo admtivo); and Protection of peasants right derived from the agrarian reform process. (amparo agrario)

Sec. 1. Petition 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. - Only covers LLS cuz other const.l rights of our people already enforced thro dif. remedies. Sec. 2. Who May File. aggrieved party or by any qualified person or entity in the following order, Any: 1. Member of the immediate family, namely: the spouse, children and parents of the aggrieved party; 2. 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 3. 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. The right to sue belongs to the person whose right to LSS being TUOPE. Sec. 3. Where to File. on any day and at any time with the RTC of the place where the threat, act or omission was committed or any of its elements occurred, or with the SB, the CA, the SC, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines.

Issued by RTC or any judge thereof, the writ shall be returnable before such court or judge. Issued by the SB or CA or any of their justices, it may be returnable before such court or any justice thereof, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred. SC or any of its justices, it may be returnable before such Court or any justice thereof or before the SB or CA or any of their justices, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred. Sec. 4. No Docket Fees 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. - LIBERALIZED DF, for this Extraord. Writs involve the protection of LSS, the enforcement of this sacrosanct rights should not be frustrated by lack of finances. Sec. 5. Contents of Petition. be signed and verified and shall allege the following: 1. Personal circumstances of the petitioner; 2. Right to LLS of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circum. detailed in supporting affidavits; 3. Actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the TAO; 4. Investigation conducted, if any, specifying the names, personal circum., and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; 5. Name and personal circumstances of the resp. responsible for the TAO, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation; 6. Relief prayed for. May include a general prayer for other just and equitable reliefs. Sec. 6. Issuance of the Writ

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Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. Also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance. The writ will require resp. to file his return (comment\ans.) Petitioner able to prove his CA after the hearing, the privilege of writ be granted. Sec. 7. Penalty for Refusing to Issue or Serve the Writ. A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. Sec. 8. How the Writ is Served. By judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. Sec. 9. Return; Contents. Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: 1. Lawful defenses to show that the respondent did not violate or threaten with violation the right to LSS of the aggrieved party, through any act or omission; 2. Steps or actions taken by the respondent to det. the fate or whereabouts of the aggrieved party and the person or persons responsible for the TAO; 3. Relevant information in the possession of the respondent pertaining to the TAO against the aggrieved party; and 4. Respondent is a public official or employee, the return shall further state the actions that have been or will still be taken to: a. Verify the identity of the aggrieved party; b. Recover and preserve evi. related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person/s responsible;

c. Identify witnesses and obtain statements from them concerning the death or disappearance; d. Determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; e. Identify and apprehend the person or persons involved in the death or disappearance; and f. Bring the suspected offenders before a competent court. The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be allowed. Sec. 10. Defenses not Pleaded Deemed Waived. All defenses shall be raised in the return, otherwise, they shall be deemed waived. In consonance with the summary nature of the proceedings and prevent its delay. Sec. 11. Prohibited Pleadings and Motions.The following pleadings and motions are prohibited: 1. Counterclaim or cross-claim; 2. Reply; 3. Reconsideration of interlocutory orders or interim relief orders; 4. Extension of time to file return, opposition, affidavit, position paper and other pleadings; 5. Motion to declare respondent in default; 6. Memorandum; 7. Dilatory motion for postponement; 8. Dismiss; 9. Intervention; 10. Petition for certiorari, mandamus or prohibition against any interlocutory order; 11. Bill of particulars; and 12. Third-party complaint. Prohibited so that the proc. In the hearing be expedited. The committee noted that since the LLS of a person is at stake the proc. should not be delayed. Sec. 12. Effect of Failure to File Return. Respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte. Sec. 13. Summary Hearing. Hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.

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From day to day until completed and given the same priority as petitions for habeas corpus. Sec. 14. Interim Reliefs. Upon filing of the petition or at any time 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. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. (b) Inspection Order. - The court, justice or judge, upon verified motion and after due hearing, may order any person in posesn or control of a designated land or other prop, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the prop or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of nat. secu. or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person/s authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other cond to protect the constl rights of all parties. The order shall expire five (5) days after the date

of its issuance, unless extended for justifiable reasons. (c) Production Order. - The court, JJ, upon verified motion and after due hearing, may order any person in possn, custody or control of any designated doc, papers, books, accounts, letters, photographs, objects or tang. things, or objc 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. The motion may be opposed on the ground of nat. secu. or of the privg nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (d) Witness Protection Order. - The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Dept of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to RA 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. Sec. 15. Availability of Interim Reliefs to Respondent. Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section. A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent. Sec. 16. Contempt. The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine. The power to cite in contempt is an inherent power of the courts to compel obedience to its order and preserve the integrity of the judiciary.

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Sec. 17. Burden of Proof and Standard of Diligence Required. The parties shall establish their claims by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. Sec. 18. Judgment. The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. Sec. 19. Appeal. Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the same priority as in habeas corpus cases. Sec. 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 proceeding. The petn shall be dismissed with prejudice upon failure to prosecute the case after the lapse of (2) years from notice to the petr of the order archiving the case. clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule not later than the first week of Jan. of every year. Sec. 21. Institution of Separate Actions. This Rule shall not preclude the filing of separate crim, civil or admintv actions. Sec. 22. Effect of Filing of a Criminal Action.

When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under this Rule shall govern the dispo. of the reliefs available under the w amparo. Sec. 23. Consolidation. When a crim. action is filed subsqnt to the filing of a petn for the writ, the latter shall be consolidated with the crim. action. When a crim action and a sepa civil action are filed subsqnt to a petn for a writ of amparo, the latter shall be consolidated with the crim action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition. Sec. 24. Substantive Rights. This Rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution. Sec. 25. Suppletory Application of the Rules of Court. The RC shall apply suppletorily insofar as it is not inconsistent with this Rule. Sec. 26. Applicability to Pending Cases. This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts. Sec. 27. Effectivity. October 24, 2007, following its publication in three (3) newspapers of GC. QUESTIONS AND ANSWERS 1. With the promulgation of WA, has the WHC been rendered superfluous? No, cuz it is available not only when one has deprived of his liberty but even when such deprvn is threatened. In fact, it is avail in all encompassing situation as regards to the right to LLS. In short it provides for a broader and wider protection to an indvl, unlike the HC w/c affords protection only to the right to liberty. 2. If the WA is issued, what does it do? It does two things, like: a. Allows the court to grant the aggrieved party or the petitioner interim reliefs provided for under Sec. 14 which is not available when the writ of HC is filed.

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It sets the date and time for summary hearing of the petition. 3. What actions may the court do when a petition for a writ of amparo is filed? The court may issue the writ when the petition is filed and when it is warranted; and render a judgment after summary hearing. 4. If a person files a petition for HC, may the court declare the law unconstitutional? Yes, the WHC not only directs the production of the body of the person detained or held in custody; it also allows the judge to inquire into the legality of the detention and, when necessary to the resolution of the issue declare the law under w/c he is detained unconstitutional. This is so coz the hearing in a petition for HC is not summary in nature but a full-blown one, unlike in a petition for a writ of amparo. 5. How about is a petition for a writ of amparo is filed, may the court declare the law unconstitutional? No, the court merely grants the individual denied of his constitutional rights by govt action relief , but not to declare the law behind the state action void or unconstitutional. 6. Why cannot the court declare the law unconstitutional? because section 13 provides for a summary hearing and has a number of motions commonly barred in summary proceedings (sec.17).Section 17 requires more than substantial evidence to support the petition. Hence, an amparo proceeding cannot pass upon constitutionality of a law that has been raised as a defense in cases where the aggrieved party is deprived of liberty. 7. What is then the basic function of the writ of amparo? Is to cause the disclosure of the place of detention or incarceration of the aggrieved party, and to pass upon the issue of arbitrary or illegal detention. Hence, it cannot be an amparo contra leges. 8. Is there a need for a hearing for the issuance of the writ of amparo?

b.

No, because it can be issued ex parte. Under Sec.6 the court shall issue the writ immediately upon the filing of the petition if warrant on the basis of the allegations. 9. Does the constitution provide for the writ of amparo? No, there is no express provision on the writ of amparo 10. If the WA is not exprey provdd 4 in the consti., cn it be sed dat 8s impliedly provided therein? Yes, it is deemed provided/including in the provision empowering the SC to promulgate rules concerning the protection and enforcement of constitutional rights. 11. Can the WA be both a HR protector and a justice tool? Explain. Yes for some reason: 1. Covers not only govt officials but also private individuals or entities 2. Remedy avail to any person where right to LLS is violated or threatened. 3. Exempted from the paymt of the DF and other fees when filing the petition. 4. Abandons tradnl leg.docts and princ that are not helpful to the objv. of writ. 5. Petn may be filed not only by AP but also by concrnd cit. org, assoc or instn 6. Adopts new legal paradigms that will enhance the protective charc of writ. 7. Discourg puboff to make blankets denials of custody of victims of enforced disappearances.

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