spec pro may 2 full cases

SPEC PRO May 2 2016 Full Cases Atty Arcena

Pag

e1

EN BANC

[G.R. No. 149240. July 11, 2002.]

SOCIAL SECURITY SYSTEM, Petitioner, v. COMMISSION ON AUDIT, Respondent.

D E C I S I O N

BELLOSILLO, J.: THE FUNDS contributed to the Social Security System (SSS) are not only imbued with public interest, they are part and parcel of the fruits of the workers’ labors pooled into one enormous trust fund under the administration of the System designed to insure against the vicissitudes and hazards of their working lives. In a very real sense, the trust funds are the workers’ property which they could turn to when necessity beckons and are thus more personal to them than the taxes they pay. It is therefore only fair and proper that charges against the trust fund be strictly scrutinized for every lawful and judicious opportunity to keep it intact and viable in the interest of enhancing the welfare of their true and ultimate

beneficiaries.chanrob1es virtua1 1aw 1ibrary This is a petition for certiorari under Rule 64 of the 1997 Rules of Civil Procedure praying that this Court assess against the workers’ social security fund the amount of P5,000.00 as contract signing bonus of each official and employee of the SSS. The gratuity emanated from the collective negotiation agreement (CNA) executed on 10 July 1996 between the Social Security Commission (SSC) in behalf of the SSS and the Alert and Concerned Employees for Better SSS (ACCESS), the sole and exclusive negotiating agent for employees of the SSS. 1 In particular, Art. XIII of the CNA provided —chanrob1es virtua1 1aw 1ibrary As a gesture of good will and benevolence, the Management agrees that once the Collective Negotiation Agreement is approved and signed by the parties, Management shall grant each official and employee of the SYSTEM the amount of P5,000.00 as contract signing bonus. 2 To fund this undertaking, the SSC allocated P15,000,000.00 in the budgetary appropriation of the SSS. 3 On 18 February 1997 the Department of Budget and Management (DBM) declared as illegal the contract signing bonus which the CNA authorized to be distributed among the personnel of the SSS. 4 On 1 July 1997 the SSS Corporate Auditor disallowed fund releases for the signing bonus since it was "an allowance in the form of additional compensation prohibited by the

Constitution." 5 Two (2) years later, in a letter dated 29 September 1999, ACCESS appealed the disallowance to the Commission on Audit (COA). 6 On 5 July 2001 despite the delay in the filing of the appeal, a procedural matter which COA considered to be inconsequential, 7 COA affirmed the disallowance and ruled that the grant of the signing bonus was improper. 8 It held that the provision on the signing bonus in the CNA had no legal basis since Sec. 16 of RA 7658 (1989) 9 had repealed the authority of the SSC to fix the compensation of its personnel. 10 Hence the instant petition which, curiously, was filed in the name of the Social Security System (and not ACCESS) by authority of the officer-in-charge for the SSS 11 through its legal staff. 12 Petitioner SSS argues that a signing bonus may be granted upon the conclusion of negotiations leading to the execution of a CNA where it is specifically authorized by law and that in the case at bar such legal authority is found in Sec. 3, par. (c), of RA 1161 as amended (Charter of the SSS) which allows the SSC to fix the compensation of its personnel. On the other hand, respondent COA asserts that the authority of the SSC to fix the compensation of its personnel has been repealed by Secs. 12 and 16 of RA 6758 and is therefore no longer effective.

We find no legitimate and compelling reason to reverse the COA. To begin with, the instant petition is fatally defective. It was filed in the name of the SSS although no directive from the SSC authorized the instant suit and only the officer-in-charge in behalf of petitioner executed the purported directive. Clearly, this is irregular since under Sec. 4, par. 10, in relation to par. 7, 13 RA 1161 as amended by RA 8282 (The Social Security Act of 1997, which was already effective 14 when the instant petition was filed), it is the SSC as a collegiate body which has the power to approve, confirm, pass upon or review the action of the SSS to sue in court. Moreover, the appearance of the internal legal staff of the SSS as counsel in the present proceedings is similarly questionable because under both RA 1161 and RA 8282 it is the Department of Justice (DOJ) that has the authority to act as counsel of the SSS. 15 It is well settled that the legality of the representation of an unauthorized counsel may be raised at any stage of the proceedings 16 and that such illicit representation produces no legal effect. 17 Since nothing in the case at bar shows that the approval or ratification of the SSC has been undertaken in the manner prescribed by law and that the DOJ has not delegated the authority to act as counsel and appear herein, the instant petition must necessarily fail. These procedural deficiencies are serious matters which this Court cannot take lightly and simply ignore since the SSS is in reality confessing judgment to charge expenditure against the trust fund under its custodianship. In Premium Marble Resources v. Court of Appeals 18 we held that no person, not even its officers, could validly sue in behalf of a corporation in


Pag

e2

the absence of any resolution from the governing body authorizing the filing of such suit. Moreover, where the corporate officer’s power as an agent of the corporation did not derive from such resolution, it would nonetheless be necessary to show a clear source of authority from the charter, the by-laws or the implied acts of the governing body. 19 Unfortunately there is no palpable evidence in the records to show that the officer-in-charge could all by himself order the filing of the instant petition without the intervention of the SSC, nor that the legal staff of SSS could act as its counsel and appear therein without the intervention of the DOJ. The power of attorney supposedly authorizing this suit as well as the signature of the legal counsel appearing on the signing page of the instant petition is therefore ineffectual. Indeed we find no merit in the claim that the employees and officers of SSS are entitled to the signing bonus provided for in the CNA. In the first place, the process of collective negotiations in the public sector does not encompass terms and conditions of employment requiring the appropriation of public funds — Sec. 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be the subject of negotiations between duly recognized employees’ organizations and appropriate government authorities. 20

More particularly — Sec. 3. Those that require appropriation of funds, such as the following, are not negotiable: (a) Increase in salary emoluments and other allowances not presently provided for by law; (b) Facilities requiring capital outlays; (c) Car plan; (d) Provident fund; (e) Special hospitalization, medical and dental services; (f) Rice/sugar/other subsidies; (g) Travel expenses; (h) Increase in retirement benefits. Sec. 4. Matters that involve the exercise of management prerogatives, such as the following, are likewise not subject to negotiation: (a) Appointment; (b) Promotion; (c) Assignment/Detail; (d) Reclassification/upgrading of position; (e) Revision of compensation structure; (f) Penalties imposed as a result of disciplinary actions; (g) Selection of personnel to attend seminar, trainings, study grants; (h) Distribution of work load; (i) External communication linkages. 21 Petitioner however argues that the charter of SSS authorizes the SSC to fix the compensation of its employees and officers so that in reality the signing bonus is merely the fruit of the exercise of such fundamental power. On this issue, we have to explain the relevant amendments to the SSS charter in relation to the passage of RA 6758 (1989) entitled "An Act Prescribing a Revised Compensation and Position Classification in the Government and for other Purposes."cralaw virtua1aw library

When the signing bonus was bestowed upon each employee and officer of the SSS on 10 July 1996, which was earlier approved by the SSC on 3 July 1996, the governing charter of the SSS was RA 1161 as amended by Sec. 1, RA 2658, and Sec. 1, PD 735. Under this amended statute, the SSC was empowered to "appoint an actuary, and such other personnel as may be deemed necessary" and to "fix their compensation." 22 The law also provided that "the personnel of the SSS shall be selected only from civil service eligibles and be subject to civil service rules and regulations." 23 On 9 August 1989 Congress passed RA 6758 which took effect on 1 July 1989. 24 Its goal was to "provide equal pay for substantially equal work and to base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions." 25 Towards this end, RA 6758 provided for the consolidation of allowances and compensation in the prescribed standardized salary rates except certain specified allowances 26 and such other additional compensation as may be determined by the Department of Budget and Management. 27 The law also repealed" [a]ll laws, decrees, executive orders, corporate charters, and other issuances or parts thereof, that exempt agencies from the coverage of the System, or that authorize and fix position classification, salaries, pay rates or allowances of specified positions, or groups of officials and employees or of agencies, which are inconsistent with the System,

including the proviso under Section 2 and Section 16 of Presidential Decree No. 985." 28 Although it was the clear policy intent of RA 6758 to standardize salary rates among government personnel, the Legislature under Secs. 12 29 and 17 30 of the law nonetheless saw the need for equity and justice in adopting the policy of non-diminution of pay when it authorized incumbents as of 1 July 1989 to receive salaries and/or allowances over and above those authorized by RA 6758. In Philippine Ports Authority v. Commission on Audit 31 we held that no financial or non-financial incentive could be awarded to employees of government owned and controlled corporations aside from benefits which were being received by incumbent officials and employees as of 1 July 1989. This Court also observed — The consequential outcome, under sections 12 and 17, is that if the incumbent resigns or is promoted to a higher position, his successor is no longer entitled to his predecessor’s RATA privilege . . . or to the transition allowance . . . [A]fter July 1, 1989, additional financial incentives such as RATA may no longer be given by GOCCs with the exception of those which were authorized to be continued under Section 12 of RA 6758. Evidently, while RA 6758 intended to do away with multiple allowances and other incentive packages and the resulting differences in compensation among government personnel, the statute clearly did not revoke existing benefits being enjoyed by incumbents of government positions at the time


Pag

e3

of the passage of RA 6758 by virtue of Secs. 12 and 17 thereof. In previous rulings of this Court, among the financial and non-financial incentives which we allowed certain government employees to enjoy after the effectivity of RA 6758 were car plan benefits 32 and educational funding assistance 33 for incumbents of existing positions as of 1 July 1989 until such gratuity packages were gradually phased out. We have no doubt that RA 6758 modified, if not repealed, Sec. 3, par. (c), of RA 1161 as amended, at least insofar as it concerned the authority of SSC to fix the compensation of SSS employees and officers. This means that whatever salaries and other financial and non-financial inducements that the SSC was minded to fix for them, the compensation must comply with the terms of RA 6758. Consequently, only the remuneration which was being offered as of 1 July 1989, and which was then being enjoyed by incumbent SSS employees and officers, could be availed of exclusively by the same employees and officers separate from and independent of the prescribed standardized salary rates. Unfortunately, however, the signing bonus in question did not qualify under Secs. 12 and 17 of RA 6758. It was non-existent as of 1 July 1989 as it accrued only in 1996 when the CNA was entered into by and between SSC and ACCESS. The signing bonus therefore could not have been included in the salutary provisions of the statute nor would it be legal to disburse to the intended recipients.

Philippine International Trading Corporation v. Commission on Audit 34 is instructive on this point. Like the SSS, the Philippine International Trading Corporation (PITC) is a government-owned and controlled corporation which was created under PD 252 (1973) primarily for the purpose of promoting and developing Philippine trade in pursuance of national economic development. In the same judgment which affirmed the car financing program and allied incentives being implemented prior to 1 July 1989 we held that the charter of PITC was impliedly repealed by RA 6758 — We deem it necessary though to resolve the third issue as to whether PITC is exempt from PD 985 as subsequently amended by RA 6758. According to petitioner, PITC’s Revised Charter, PD 1071 dated January 25, 1977, as amended by EO 756 dated December 29, 1981, and further amended by EO 1067 dated November 25, 1985, expressly exempted PITC from the Office of the Compensation and Position Classification (OCPC) rules and regulations. Petitioner cites Section 28 of P.D. 1071; Section 6 of EO 756; and Section 3 of EO 1067. According to the COA in its Decision No. 98-048 dated January 27, 1998, the exemption granted to the PITC has been repealed and revoked by the repealing provisions of RA 6758, particularly Section 16 thereof which provides:chanrob1es virtual 1aw library Sec. 16. Repeal of Special Salary Laws and Regulations. — All laws, decrees, executive orders, corporate charters, and other issuances or parts thereof, that exempt agencies from the coverage of the System, or that

authorize and fix position classifications, salaries, pay rates or allowances of specified positions, or groups of officials, and employees or of agencies, which are inconsistent with the System, including the proviso under Section 2 and Section 16 of PD No. 985 are hereby repealed. To this, [PITC] argues that RA 6758 which is a law of general application cannot repeal provisions of the Revised Charter of PITC and its amendatory laws expressly exempting PITC from OCPC coverage being special laws . . . In the case at bar, the repeal by Section 16 of RA 6758 of "all corporate charters that exempt agencies from the coverage of the System" was clear and expressed necessarily to achieve the purposes for which the law was enacted, that is, the standardization of salaries of all employees in government owned and/or controlled corporations to achieve "equal pay for substantially equal work." Henceforth, PITC should now be considered as covered by laws prescribing a compensation and position classification system in the government including RA 6758. This is without prejudice, however, as discussed above, to the non-diminution of pay of incumbents as of July 1, 1989 as provided in Sections 12 and 17 of said law. So we also rule in the instant case involving the charter of the SSS or RA 1161 as amended. The enactment of RA 8282 entitled "The Social Security Act of 1997" does

not change our holding. While it is true that Sec. 3, par. (c), of RA 8282 expressly exempted the SSS from the provisions of RA 6758 and RA 7430 (The Attrition Law of 1992) thus — The Commission, upon the recommendation of the SSS President, shall appoint an actuary and such other personnel as may be deemed necessary; fix their reasonable compensation, allowances and other benefits . . . [t]hat the personnel of the SSS shall be selected only from civil service eligibles and be subject to civil service rules and regulations: Provided, finally, That the SSS shall be exempt from the provisions of Republic Act No. 6758 and Republic Act No. 7430, it bears emphasis that RA 8282 took effect only on 23 May 1997, i.e., fifteen (15) days after its complete publication in two (2) newspapers of general circulation on 7 May 1997 35 and 8 May 1997. 36 It holds to reason that the prospective application of the statute renders irrelevant to the case at bar whatever effects this exemption may have on the power of the SSC to fix the compensation of SSS personnel. Ironically, RA 8282 in fact buttresses our ruling that the signing bonus cannot escape the provisions of RA 6758. The need to expressly stipulate the exemption of the SSS can only mean that prior to the effectivity of RA 8282, the SSS was subject to RA 6758 and even RA 7430 for, otherwise, there would have been no reason to rope in such provision in RA 8282. This Court has been very consistent in characterizing the funds being


Pag

e4

administered by SSS as a trust fund for the welfare and benefit of workers and employees in the private sector. 37 In United Christian Missionary v. Social Security Commission 38 we were unequivocal in declaring the funds contributed to the Social Security System by compulsion of law as funds belonging to the members which were merely held in trust by the government, and resolutely imposed the duty upon the trustee to desist from any and all acts which would diminish the property rights of owners and beneficiaries of the trust fund. Consistent with this declaration, it would indeed be very reasonable to construe the authority of the SSC to provide for the compensation of SSS personnel in accordance with the established rules governing the remuneration of trustees — . . . the modern rule is to give the trustee a reasonable remuneration for his skill and industry . . . In deciding what is a reasonable compensation for a trustee the court will consider the amount of income and capital received and disbursed, the pay customarily given to agents or servants for similar work, the success or failure of the work of the trustee, any unusual skill which the trustee had and used, the amount of risk and responsibility, the time consumed, the character of the work done (whether routine or of unusual difficulty) and any other factors which prove the worth of the trustee’s services to the cestus . . . The court has power to make extraordinary compensation allowances, but will not do so unless the trustee can prove that he has performed work beyond the ordinary duties

of his office and has engaged in especially arduous work. 39 On the basis of the foregoing pronouncement, we do not find the signing bonus to be a truly reasonable compensation. The gratuity was of course the SSC’s gesture of good will and benevolence for the conclusion of collective negotiations between SSC and ACCESS, as the CNA would itself state, but for what objective? Agitation and propaganda which are so commonly practiced in private sector labor-management relations have no place in the bureaucracy and that only a peaceful collective negotiation which is concluded within a reasonable time must be the standard for interaction in the public sector. This desired conduct among civil servants should not come, we must stress, with a price tag which is what the signing bonus appears to be.chanrob1es virtua1 1aw 1ibrary WHEREFORE, the instant Petition for Certiorari under Rule 64, 1997 Rules of Civil Procedure, is DISMISSED. The Decision No. 2001-123 of the Commission on Audit and the Notice of Disallowance No. 97-002-0101 (96) of the Social Security System Corporate Auditor prohibiting the payment of P5,000.00 signing bonus to each employee and officer of the Social Security System as stipulated in Art. XIII of the Collective Negotiation Agreement and as approved in Resolution No. 593 of the Social Security Commission are AFFIRMED. No pronouncement as to costs.chanrob1es virtua1 1aw 1ibrary SO ORDERED.

FIRST DIVISION

[G.R. NO. 164948 : June 27, 2006]

DIWATA RAMOS LANDINGIN Petitioner, v. REPUBLIC OF THE PHILIPPINES, Respondent.

D E C I S I O N

CALLEJO, SR., J.:

Assailed in this Petition for Review on Certiorari under Rule 45 of the Rules of Court is the Decision1of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision2 of the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner herein.

The Antecedents

On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition3 for the adoption of minors Elaine Dizon Ramos who was born on August 31, 1986;4 Elma Dizon Ramos, who was born on September 7, 1987;5 and Eugene Dizon Ramos who was born on August 5, 1989.6 The minors are the natural children of Manuel Ramos, petitioner's brother, and Amelia Ramos.

Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,7 the children were left to their paternal grandmother, Maria Taruc Ramos; their biological mother, Amelia, went to Italy, re-married there and now has two children by her second marriage and no longer communicated with her children by Manuel Ramos nor with her in-laws from the time she left up to the institution of the adoption; the minors are being financially supported by the petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the children; the minors have given their written consent8 to the adoption; she is qualified to adopt as shown by the fact that she is a 57-year-old widow, has children of her own who are already married, gainfully employed and have their respective families; she lives alone in her own

http://www.chanrobles.com/cralaw/2006junedecisions.php?id=745#fnt1









Pag

e5

home in Guam, USA, where she acquired citizenship, and works as a restaurant server. She came back to the Philippines to spend time with the minors; her children gave their written consent9 to the adoption of the minors. Petitioner's brother, Mariano Ramos, who earns substantial income, signified his willingness and commitment to support the minors while in petitioner's custody.

Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows:

WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor children's name follow the family name of petitioner.

Petitioner prays for such other reliefs, just and equitable under the premises.10

On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition.11 The Office of the Solicitor General (OSG) entered its appearance12 but deputized the City Prosecutor of Tarlac to appear in its behalf.13 Since her petition was unopposed, petitioner was allowed to present her evidence ex parte.14

The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to testify on the written consent executed by her and her siblings.15 The petitioner marked in evidence the Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent.16

On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac, submitted a Child Study Report, with the following recommendation:

In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible for adoption because of the following reasons:

1. Minors' surviving parent, the mother has voluntarily consented to their adoption by the paternal aunt, Diwata Landingin this is in view of her

inability to provide the parental care, guidance and support they need. An Affidavit of Consent was executed by the mother which is hereto attached.

2. The three minors subject for adoption have also expressed their willingness to be adopted and joins the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto attached. The minors developed close attachment to the petitioners and they regarded her as second parent.

3. The minors are present under the care of a temporary guardian who has

also family to look after. As young adolescents they really need parental love, care, guidance and support to ensure their protection and well being.

In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial custody is hereby further recommended to be dispensed with considering that they are close relatives and that close attachments was already developed between the petitioner and the 3 minors.17

Pagbilao narrated what transpired during her interview, as follows:

The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks vacation. This is to enable her appear for the personal interview concerning the adoption of her children.

The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after the death of their paternal grandmother and guardian. The paternal relatives including the petitioner who attended the wake of

their mother were very much concerned about the well-being of the three minors. While preparing for their adoption, they have asked a cousin who has a family to stay with minors and act as their temporary guardian.

The mother of minors was consulted about the adoption plan and after weighing the benefits of adoption to her children, she voluntarily consented. She realized that her children need parental love, guidance and support which she could not provide as she already has a second family & residing in Italy. Knowing also that the petitioners & her children have been supporting her children up to the present and truly care for them, she believes her children will be in good hands. She also finds petitioners in a better position to provide a secured and bright future to her children.18

However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent of Amelia Ramos to the adoption;












Pag

e6

petitioner, likewise, failed to present any documentary evidence to prove that Amelia assents to the adoption.

On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision granting said petition. The dispositive portion reads:

WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance from their natural parents and that

they be declared for all legal intents and purposes the children of Diwata Ramos Landingin. Trial custody is dispensed with considering that parent-children relationship has long been established between the children and the adoptive parents. Let the surnames of the children be changed from "Dizon-Ramos" to "Ramos-Landingin."

Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect the corresponding changes/amendment in the birth certificates of the above-mentioned minors.

SO ORDERED.19

The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its brief21 for the oppositor-appellant, the OSG raised the following arguments:

I

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF CONSENT OF THE PROPOSED ADOPTEES' BIOLOGICAL MOTHER.

II

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF THE WRITTEN CONSENT OF THE PETITIONER'S CHILDREN AS REQUIRED BY LAW.

III

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONER'S FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED ADOPTEES.

On April 29, 2004, the CA rendered a decision22 reversing the ruling of the RTC. It held that petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the children's natural mother. Moreover, the affidavit of consent of the petitioner's children could not also be admitted in evidence as the same was executed in Guam, USA and was not authenticated or acknowledged before a Philippine consular office, and although petitioner has a job, she was not stable enough to support the children. The dispositive portion of the CA decision reads:

WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and SET ASIDE.

SO ORDERED.23

Petitioner filed a Motion for Reconsideration24 on May 21, 2004, which the CA denied in its Resolution dated August 12, 2004.25

Petitioner, thus, filed the instant Petition for Review on Certiorari 26 on September 7, 2004, assigning the following errors:

1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED THE RESULT OF THE CASE.

2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE CHILDREN.27

The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is entitled to adopt the minors without the written consent of their biological mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed by the petitioner-adopter's children sufficiently complies with the law; and (c) whether or not petitioner is financially capable of supporting the adoptees.

The Court's Ruling

The petition is denied for lack of merit.

It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,28 that adoption statutes, being humane and












Pag

e7

salutary, hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should thus be sustained to promote and fulfill these noble and compassionate objectives of the law.29

However, in Cang v. Court of Appeals,30 the Court also ruled that the liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Court's position should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child.31

Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides:

Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly

counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;

(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;

(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;

(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living with said adopter and the latter's souse, if any;

(e) The spouse, if any, of the person adopting or to be adopted.

The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption.32

Clearly, the written consent of the biological parents is indispensable for the validity of a decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and re-established in adoptive parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the adoption.

We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is incredible that the latter would not require Amelia Ramos to execute a Written Consent to the adoption of her minor children. Neither did the petitioner bother to present Amelia Ramos as witness in support of the petition.

Petitioner, nonetheless, argues that the written consent of the biological mother is no longer necessary because when Amelia's husband died in 1990, she left for Italy and never came back. The children were then left to the guidance and care of their paternal grandmother. It is the paternal relatives, including petitioner, who provided for the children's financial needs. Hence, Amelia, the biological mother, had effectively abandoned the

children. Petitioner further contends that it was by twist of fate that after 12 years, when the petition for adoption was pending with the RTC that Amelia and her child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD social worker, was able to meet her, and during the meeting, Amelia intimated to the social worker that she conformed to the adoption of her three children by the petitioner.

Petitioner's contention must be rejected. When she filed her petition with the trial court, Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written consent of the biological parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother of the minors had indeed abandoned them, she should, thus have adduced the written consent of their legal guardian.

Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct which evinces a settled purpose to forego all parental duties.33 The term means neglect and refusal to perform the filial and legal obligations of love and support. If a parent withholds







Pag

e8

presence, love, care, the opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in effect, abandons the child.34

Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.35 To dispense with the requirement of consent, the abandonment must be shown to have existed at the time of adoption.36

In this case, petitioner relied solely on her testimony and that of Elaine

Ramos to prove her claim that Amelia Ramos had abandoned her children. Petitioner's testimony on that matter follows:

Q Where is the mother of these three children now?cralawlibrary

A She left for Italy on November 20, 1990, sir.

Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated with the family?cralawlibrary

A None, sir.

Q How about with her children?cralawlibrary

A None, sir.

Q Do you know what place in Italy did she reside?cralawlibrary

A I do not know, sir.

Q Did you receive any news about Amelia Ramos?cralawlibrary

A What I know, sir, was that she was already married with another man.

Q From whom did you learn that?cralawlibrary

A From others who came from Italy, sir.

Q Did you come to know whether she has children by her second marriage?cralawlibrary

A Yes, sir, she got two kids.37

Elaine, the eldest of the minors, testified, thus:

Q Where is your mother now?cralawlibrary

A In Italy, sir.

Q When did your mother left for Italy?cralawlibrary

A After my father died, sir.

Q How old were you when your mother left for Italy in 1990?cralawlibrary

A Two years old, sir.

Q At the time when your mother left for Italy, did your mother communicate with you?cralawlibrary

A No, sir.38

However, the Home Study Report of the DSWD Social Worker also stated the following:

IV. Background of the Case:

x x x x

Since the mother left for Italy, minors siblings had been under the care and custody of their maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves as their guardian. The petitioner, together with her children and other relatives abroad have been supporting the minor children financially, even during the time that they were still living with their natural parents. Their mother also sends financial support but very minimal.39

x x x x

V. Background Information about the Minors Being Sought for Adoption:

x x x x








Pag

e9

As the eldest she tries her best to be a role model to her younger siblings. She helps them in their lessons, works and has fun with them. She also encourages openness on their problems and concerns and provides petty counseling. In serious problems she already consult (sic) her mother and petitioner-aunt.40

x x x x

In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy and comfortable life. After the death

of her husband, her in-laws which include the petitioner had continued providing support for them. However being ashamed of just depending on the support of her husband's relatives, she decided to work abroad. Her parents are also in need of financial help as they are undergoing maintenance medication. Her parents mortgaged their farm land which she used in going to Italy and worked as domestic helper.

When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her mother-in-law who returned home for good, however she died on November 2000.

While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in partners since 1995 and have a son John Mario who is now 2 years old. The three of them are considered Italian residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is amenable to it. He is providing his legitimate family regular support.

Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other paternal relatives are continuously providing support for most of the needs & education of minors up to present.41

Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently sever their mother-child relationship. She was

merely impelled to leave the country by financial constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly

obligations of rearing the children to her now deceased mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for serious personal problems. Likewise, Amelia continues to send financial support to the children, though in minimal amounts as compared to what her affluent

in-laws provide.

Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing all legal ties between the biological mother, Amelia, and the adoptees, and that the same shall then be vested on the adopter.42 It would thus be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his/her children. More proof has to be adduced that Amelia has emotionally abandoned the children, and that the latter will not miss her guidance and counsel if they are given to an adopting parent.43 Again, it is the best interest of the child that takes precedence in adoption.

Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. The offer of evidence is necessary because it is the duty of the Court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such document is offered, the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings thereof as exhibits do not confer any evidentiary weight on documents unless formally offered.44

Petitioner failed to offer in evidence Pagbilao's Report and of the Joint Affidavit of Consent purportedly executed by her children; the authenticity of which she, likewise, failed to prove. The joint written consent of petitioner's children45 was notarized on January 16, 2002 in Guam, USA; for it to be treated by the Rules of Court in the same way as a document notarized in this country it needs to comply with Section 2 of Act No. 2103,46 which states:

Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be considered authentic if the acknowledgment and authentication are made in accordance with the following requirements:

(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, chargé d affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done.

(b) The person taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him, and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be under his official seal, if he is by









Pag

e10

law required to keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister, secretary of legation, chargé de affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited. The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and seal, if any, are genuine.

As the alleged written consent of petitioner's legitimate children did not comply with the afore-cited law, the same can at best be treated by the Rules as a private document whose authenticity must be proved either by anyone who saw the document executed or written; or by evidence of the genuineness of the signature or handwriting of the makers.47

Since, in the instant case, no further proof was introduced by petitioner to authenticate the written consent of her legitimate children, the same is inadmissible in evidence.

In reversing the ruling of the RTC, the CA ruled that petitioner was not

stable enough to support the children and is only relying on the financial backing, support and commitment of her children and her siblings.48 Petitioner contradicts this by claiming that she is financially capable as she has worked in Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children and siblings have likewise committed themselves to provide financial backing should the need arise. The OSG, again in its comment, banks on the statement in the Home Study Report that "petitioner has limited income." Accordingly, it appears that she will rely on the financial backing of her children and siblings in order to support the minor adoptees. The law, however, states that it is the adopter who should be in a position to provide support in keeping with the means of the family.

Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in

a position to support the would-be adopted child or children, in keeping with the means of the family.

According to the Adoption Home Study Report49 forwarded by the Department of Public Health & Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting her legitimate children, as the latter are already adults, have individual lives and families. At the time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioner's main intention in adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption proceedings.

Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the financial aspect of rearing the three children in the US. She only has a part-time job, and she is rather of age. While petitioner claims that she has the financial support and backing of her children and siblings, the OSG is correct in stating that the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the latter. Moreover, the records do not prove nor support petitioner's allegation that her siblings and her children are financially able and that they are willing to support the minors herein. The Court, therefore, again sustains the ruling of the CA on this issue.

While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew, there are legal infirmities that militate against reversing the ruling of the CA. In any case, petitioner is not prevented from filing a new petition for adoption of the herein minors.

WHEREFORE, premises considered, the petition is hereby DENIED.

SO ORDERED.





Pag

e11

THIRD DIVISION

[G.R. NO. 148311. March 31, 2005]

IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA

HONORATO B. CATINDIG, Petitioner.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

May an illegitimate child, upon adoption by her natural father, use the

surname of her natural mother as her middle name? This is the issue raised in the instant case.

The facts are undisputed.

On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition1 to adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26, 1994;2 that her mother is Gemma Astorga Garcia; that Stephanie has been using her mother's middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanie's middle name Astorga be changed to "Garcia," her mother's surname, and that her surname "Garcia" be changed to "Catindig," his surname.

On March 23, 2001,3 the trial court rendered the assailed Decision granting the adoption, thus:

"After a careful consideration of the evidence presented by the petitioner,

and in the absence of any opposition to the petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification provided for by law as an adoptive parent, and that as such he is qualified to maintain, care for and educate the child to be adopted; that the grant of this petition would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioner's care and custody of the child since her birth up to the present constitute more than enough compliance with the requirement of Article 35 of Presidential Decree No. 603.

WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the petitioner's legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG.

Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the Rules of Court.

Let copy of this Decision be furnished the National Statistics Office for record purposes.

SO ORDERED."4

On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration5 praying that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle name.

On May 28, 2001,6 the trial court denied petitioner's motion for reconsideration holding that there is no law or jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name.

Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as her middle name when she is subsequently adopted by her natural father.

Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption because: (1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; (2) it is customary for every Filipino to have as middle name the surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle name "Garcia" (her mother's surname) avoids the stigma of her illegitimacy; and; (6) her continued use of "Garcia" as her middle name is not opposed by either the Catindig or Garcia families.

The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be permitted to use, as her middle name, the surname of her natural mother for the following reasons:

http://www.chanrobles.com/cralaw/2005marchdecisions.php?id=279#fnt1







Pag

e12

First, it is necessary to preserve and maintain Stephanie's filiation with her natural mother because under Article 189 of the Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained.

Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What the law does not prohibit, it allows.

Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed that "the initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother."7

We find merit in the petition.

Use Of Surname Is Fixed By Law '

For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him.8 It is both of personal as well as public interest that every person must have a name.

The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law.9

Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname10 of an individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow, thus:

"Art. 364. Legitimate and legitimated children shall principally use the surname of the father.

Art. 365. An adopted child shall bear the surname of the adopter.

x x x

Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use thesurname of the father.

Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or

(2) Her maiden first name and her husband's surname or

(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as 'Mrs.'

Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married again to another person.

Art. 372. When legal separation has been granted, the wife shall continue using her name andsurname employed before the legal separation.

Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370.

Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion.

Art. 375. In case of identity of names and surnames between ascendants and descendants, the word 'Junior' can be used only by a son. Grandsons and other direct male descendants shall either:






Pag

e13

(1) Add a middle name or the mother's surname,

(2) Add the Roman numerals II, III, and so on.

x x x"

Law Is Silent As To The Use Of

Middle Name '

As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 17611 of the Family Code, as amended by Republic Act No. 9255, otherwise known as "An Act Allowing Illegitimate

Children To Use The Surname Of Their Father," is silent as to what middle name a child may use.

The middle name or the mother's surname is only considered in Article 375(1), quoted above, in case there is identity of names and surnames between ascendants and descendants, in which case, the middle name or the mother's surname shall be added.

Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that "an adopted child shall bear the surname of the adopter." Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter, thus:

"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adoptersand both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters;

x x x"

However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname of the child's mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus

"Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child because the father's surname indicates the family to which he belongs, for which reason he would insist on the use of the father's surname by the child but that, if he wants to, the child may also use the surname of the mother.

Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written? Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother.

Prof. Baviera remarked that Justice Caguioa's point is covered by the present Article 364, which reads:

Legitimate and legitimated children shall principally use the surname of the father.

Justice Puno pointed out that many names change through no choice of the person himself precisely because of this misunderstanding. He then cited the following example: Alfonso Ponce Enrile's correct surname is Ponce since the mother's surname is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez David's family name is Gutierrez and his mother's surname is David but they all call him Justice David.

Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on the child to use the surname of the father but he may use the surname of the mother by way of an initial or a middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the appropriate chapter.

x x x

Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father should always be last because there are so many traditions like the American tradition where they like to use their second given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name.

x x x



Pag

e14

Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother. Prof. Balane added that this is really the Filipino way. The Committee approved the suggestion."12 (Emphasis supplied)Ï‚rÎ±lÎ±Ï‰lÎ¹brÎ±rÃ¿

In the case of an adopted child, the law provides that "the adopted shall bear the surname of the adopters."13 Again, it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree of adoption.14

The Underlying Intent of

Adoption Is In Favor of the

Adopted Child '

Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.15 It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.16 The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.17 This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor the adopted child.18 Republic Act No. 8552, otherwise known as the "Domestic Adoption Act of 1998,"19 secures these rights and privileges for the adopted.20

One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 18921 of the Family Code and Section 1722 Article V of RA 8552.23

Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is

a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father.

Additionally, as aptly stated by both parties, Stephanie's continued use of her mother's surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section 1824, Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future.

Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her mother and father. She calls them "Mama" and "Papa". Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mother's surname as her middle name will not only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy.

Liberal Construction of

Adoption Statutes In Favor Of

Adoption '

It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption.25 The interests and welfare of the adopted child are of primary

and paramount consideration,26 hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.27

Lastly, Art. 10 of the New Civil Code provides that:

"In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail."

This provision, according to the Code Commission, "is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law."28



















Pag

e15

Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mother's surname, we find no reason why she should not be allowed to do so.

WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie should be allowed to use her mother's surname "GARCIA" as her middle name.

Let the corresponding entry of her correct and complete name be entered in the decree of adoption.

SO ORDERED.

Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.


Pag

e16

[G.R. No. L-63345. January 30, 1986.]

EFREN C. MONCUPA, Petitioner, v. JUAN PONCE ENRILE, FABIAN C. VER, GALILEO KINTANAR, FERNANDO GOROSPE, AND JOSE

CASTRO, Respondents.

Lorenzo M. Tañada, Jose W. Diokno and Joker Arroyo for petitioner.

D E C I S I O N

GUTIERREZ, JR., J.: As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil. 778, 790), this Court ruled:jgc:chanrobles.com.ph "A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient . . ."cralaw

virtua1aw library This latitudinarian scope of the writ of habeas corpus has, in law, remained undiminished up to the present. The respondents’ contention that the petition has become moot and academic must necessarily be denied. Efren C. Moncupa may have been released from his detention cell. The restraints attached to his temporary release, however, preclude freedom of action and under the Villavicencio v. Lukban rule warrant this Court’s inquiry into the nature of his involuntary restraint and our relieving him of such restraints as may be illegal. Petitioner Efren C. Moncupa, together with others, was arrested on April 22, 1982 at about 10:50 P.M., at the corner of D. Tuazon Street and Quezon Avenue, Quezon City. Moncupa was brought to MIG-15 Camp Bago Bantay, Quezon City where he was detained. On April 23, 1982, on the allegation that he was a National Democratic Front (NDF) staff member, a Presidential Commitment Order (PCO) was issued against him and eight (8) other persons. After two separate investigations, conducted first, by Lieutenant Colonel Gerardo Lantoria, Jr., Chief of Task Force Makabansa Investigation Group and second, by Investigating Fiscal Amado Costales of Quezon City, it was ascertained that the petitioner was not a member of any subversive organization. Both investigators recommended the prosecution of the petitioner only for illegal possession of firearms and illegal possession of

subversive documents under Presidential Decree No. 33. Consequently, two separate informations were filed against the petitioner, one, for illegal possession of firearms before the Court of First Instance of Rizal and the other for violation of P.D. 33 before the City Court of Quezon City. against the other accused, however, the cases filed were for violation of P.D. 885 as amended. Significantly, the petitioner was excluded from the charge under the Revised Anti-Subversion Law. During the pendency of this petition, it is significant that his arraignment and further proceedings have not been pursued. and yet, the petitioner’s motions for bail were denied by the lower court.chanrobles law library Hence, the petitioner filed the instant petition. The respondents, in their return of the writ justified the validity of petitioner’s detention on the ground that the privilege of the writ had been suspended as to the petitioner. However, on August 30, 1983, the respondents filed a motion to dismiss stating that on May 11, 1983, the petitioner was temporarily released from detention on orders of the Minister of National Defense with the approval of the President. The respondents stated — "Since the petitioner is free and no longer under the custody of the respondents, the present petition for habeas corpus may be deemed moot and academic as in similar cases."cralaw virtua1aw library

The issue to be resolved is whether or not the instant petition has become moot and academic in view of the petitioner’s temporary release. It is to be noted that attached to the petitioner’s temporary release are restrictions imposed on him. These are:chanrob1es virtual 1aw library 1) His freedom of movement is curtailed by the condition that petitioner gets the approval of respondents for any travel outside Metro Manila. 2) His liberty of abode is restricted because prior approval of respondents is also required in case petitioner wants to change his place of residence. 3) His freedom of speech is muffled by the prohibition that he should not "participate in any interview conducted by any local or foreign mass media representatives nor give any press release or information that is inimical to the interest of national security."cralaw virtua1aw library 4) He is required to report regularly to respondents or their representatives. The petitioner argues that although admittedly his temporary release is an improvement upon his actual detention, the restrictions imposed by the respondents constitute an involuntary and illegal restraint on his freedom.


Pag

e17

The petitioner stresses that his temporary release did not render the instant petitioner moot and academic but that "it merely shifted the inquiry from the legality of his actual detention to the legality of the conditions imposed by the respondents."cralaw virtua1aw library We agree with the petitioner. The reservation of the military in the form of restrictions attached to the temporary release of the petitioner constitute restraints on the liberty of Mr. Moncupa. Such restrictions limit the freedom of movement of the petitioner. It is not physical restraint alone which is inquired into by the writ ofhabeas corpus. In Villavicencio v. Lukban, the women who had been illegally seized and transported against their will to Davao were no longer under any official restraint. Unlike petitioner Moncupa, they were free to change their domicile without asking for official permission. Indeed, some of them managed to return to Manila. Yet, the Court condemned the involuntary restraints caused by the official action, fined the Mayor of Manila and oppressed the hope that its "decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal encroachment."cralaw virtua1aw library

In the light of the above ruling, the present petition for habeas corpus has not become moot and academic. Other precedents for such a conclusion are not wanting.chanrobles.com.ph : virtual law library The decision in Caunca v. Salazar (82 Phil. 851) states:jgc:chanrobles.com.ph "An employment agency, regardless of the amount it may advance to a prospective employee or maid, has absolutely no power to curtail her freedom of movement. The fact that no physical force has been exerted to keep her in the house of the respondent does not make less real the deprivation of her personal freedom of movement, freedom to transfer from one place to another, freedom to choose one’s residence. Freedom may be lost due to external moral compulsion to founded or groundless fear, to erroneous belief in the existence of the will. If the actual effect of such psychological spell is to place a person at the mercy of another, the victim is entitled to the protection of courts of justice as much as the individual who is illegally deprived of liberty by duress or physical coercion."cralaw virtua1aw library In Tibo v. The Provincial Commander (85 SCRA 564), this Court ruled:jgc:chanrobles.com.ph "Although the release in the custody of the Deputy Minister did not signify that petitioners could once again enjoy their full freedom, the application

could have been dismissed, as it could be withdrawn by the parties themselves. That is a purely voluntary act. When the hearing was held on September 7, 1978, it turned out that counsel for petitioner Bonifacio V. Tupaz could have acted in a hasty manner when he setforth the above allegations in his manifestation of August 30, 1978, for Attorney Jose C. Espinas, who appeared for petitioners, while conceding that there was such a release from confinement, also alleged that it was conditioned on their restricting their activities as labor union leaders to the premises of the Trade Unions of the Philippines and Allied Services, presumably in Manila, as well as the Ministry of Labor. As the voting was to take place in the business firm in Bataan, the limits set would nullify whatever efforts they could have exerted. To that extent, and with the prohibition against their going to Bataan, the restraint on liberty was undeniable. If so, the moot and academic character of the petition was far from clear."cralaw virtua1aw library More recently, we had occasion to rule squarely on whether or not a temporary release from detention renders the petition for writ of habeas corpus moot and academic. As in this case of Moncupa, the petitioners in Toyoto, Et. Al. v. Hon. Fidel Ramos, Et Al., G.R. No. 69270, October 15, 1985, were temporarily released from detention. The respondents filed a motion to dismiss the petition for habeas corpus on the ground that the petitioners had been temporarily released and their case had, therefore,

become moot and academic. The petitioners insisted, however, that their case may be considered moot and academic only "if their release would be permanent." In ruling for the petitioners, we said:chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph "Ordinarily, a petition for habeas corpus becomes moot and academic when the restraint on the liberty of the petitioners is lifted either temporarily or permanently. We have so held in a number of cases. But the instant case presents a different situation. The question to be resolved is whether the State can reserve the power to re-arrest a person for an offense after a court of competent jurisdiction has absolved him of the offense. An affirmative answer is the one suggested by the respondents because the release of the petitioners being merely ‘temporary’ it follows that they can be re-arrested at anytime despite their acquittal by a court of competent jurisdiction. We hold that such a reservation is repugnant to the government of laws and not of men principle. Under this principle the moment a person is acquitted on a criminal charge he can no longer be detained or re-arrested for the same offense. This concept is so basic and elementary that it needs no elaboration."cralaw virtua1aw library In effect the principle is clear. A release that renders a petition for a writ of habeas corpus moot and academic must be one which is free from involuntary restraints. Where a person continues to be unlawfully denied one or more of his constitutional freedoms, where there is present a denial of due process, where the restraints are not merely involuntary but appear


Pag

e18

to be unnecessary, and where a deprivation of freedom originally valid has, in the light of subsequent developments, become arbitrary, the person concerned or those applying in his behalf may still avail themselves of the privilege of the writ. The respondents have failed to show why the writ may not issue and why the restraints on the petitioner’s freedom of movement should not be lifted. WHEREFORE, the PETITION is GRANTED. The conditions attached to the temporary release of the petitioner are declared null and void. The temporary release of the petitioner is declared ABSOLUTE. No costs.chanrobles law library SO ORDERED. Teehankee, Concepcion Jr., Abad Santos, Melencio-Herrera, Escolin De la Fuente, Cuevas, Alampay and Patajo, JJ., concur. Aquino, C.J., took no part. Plana, J., I reserve my vote.


Pag

e19

SECOND DIVISION

[G.R. NO. 163108 : February 23, 2005]

GLENN CABALLES y CHUA, Petitioner, v. COURT OF APPEALS, HON. EMMANUEL D. LAUREA, HON. BENJAMIN T. ANTONIO, and PEOPLE

OF THE PHILIPPINES, Respondents.

D E C I S I O N

CALLEJO, SR., J.:

Before us is a Petition for Certiorari under Rule 65 of the Revised Rules of

Court filed by the petitioner for the nullification of the Resolution of the Court of Appeals1 which dismissed his petition for the issuance of a writ of habeas corpus for his release from detention despite the pendency ofPeople of the Philippines v. Glenn Caballes2 for rape, and its resolution denying his motion for reconsideration thereof.

The antecedents are as follows:

On November 19, 2001, petitioner Glenn Chua Caballes was charged with rape of a minor in the Regional Trial Court (RTC) of Malabon City. The case was docketed as Criminal Case No. 25756-MN and raffled to Branch 169, presided by Judge Emmanuel D. Laurea. Because the petitioner was charged with a non-bailable offense, he was detained.

The petitioner was arraigned on February 7, 2002 and pleaded not guilty to the offense charged. The prosecution presented two (2) witnesses, namely, Venice Vera Pio, the private complainant, and her mother. The petitioner, through counsel, commenced his cross-examination of Pio, but failed to complete the same. In January 2003, the petitioner engaged the services of a new counsel, Atty. Noel S. Sorreda, who entered his appearance as defense counsel.3

During the trial of February 26, 2003, the petitioner continued his cross-examination of Pio but still failed to terminate the same. The trial was set on March 6, 2003 for the petitioner to terminate his cross-examination of Pio. However, due to the illness of the private prosecutor, the trial on the said date did not proceed. The trial was further reset to March 17, 2003 during which the petitioner continued with his cross-examination of the private complainant. Thereafter, the continuation of trial was set on April 3, 21, and 30, 2003. On April 3, 2003, the petitioner concluded his cross-examination of Pio. The prosecution declared that its next witness would be

Dr. Jose Arnel Marquez, the Medico-Legal Officer of the Philippine National Police (PNP) Crime Laboratory, who had conducted a medico-legal examination of the private complainant, but stated that he had not been subpoenad. The prosecution prayed for the cancellation of the trial scheduled on April 21, 2003 to give the prosecution time to secure and cause the service of a subpoena duces tecum on him. The petitioner conformed to the motion of the prosecution.

On April 28, 2003, the petitioner filed a petition for bail.4

The trial of April 30, 2003 did not proceed because the petitioner's counsel filed a Manifestation5 that his presence was required in an execution sale in Cavite. The said counsel manifested that he reserved his right to cross-examine any witness the prosecution would present in case trial would proceed on that date; on the other hand, in the event that the trial court would cancel the trial, he would be available in May 2003 and during the first half of June 2003.

The trial court reset the hearing of the case to 8:30 a.m. of June 19, 2003 and gave the prosecution ten (10) days to file its opposition6 to the petitioner's petition for bail. It likewise ordered the issuance of a subpoena to Dr. Jose Arnel Marquez to require him to attend the trial on the said date.

On May 5, 2003, the petitioner filed a motion7 seeking an earlier trial date, invoking his right to speedy trial under the Speedy Trial Act of 1998. He also filed a motion for the urgent resolution of his petition for bail.8

On May 12, 2003, the petitioner filed another motion9 praying that the hearing scheduled on June 19, 2003 be moved to an earlier date, preferably on May 26, 28 or 29, 2003. In the meantime, the prosecution filed its comment/opposition10 to the petitioner's petition for bail.

On May 13, 2003, the court issued an Order11 declaring that the petition for bail was submitted for its resolution and denying the petitioner's motion for an earlier trial date. On June 16, 2003, the trial court issued its Order12 denying the petition for bail, on its finding that the evidence of guilt against the petitioner was strong.

During the trial of June 19, 2003, Dr. Marquez failed to appear before the court because, in the meantime, he had been assigned to the Eastern Police District and failed to receive the subpoenaissued to him by the court. The prosecution prayed for continuance, but the petitioner objected and invoked his right to speedy trial. The court, nevertheless, granted the motion and reset the trial to July 17, 2003.

http://www.chanrobles.com/cralaw/2005februarydecisions.php?id=186#fnt1













Pag

e20

On June 27, 2003, the court issued a subpoena duces tecum/ad testificandum to Dr. Jose Arnel Marquez requiring him to appear for the trial set on July 17, 2003.13

On July 4, 2003, the petitioner filed a Motion for Reconsideration of the court's Order dated June 16, 2003 denying his petition for bail. His motion was set for hearing, also on July 17, 2003. However, the petitioner preempted the resolution of his motion for reconsideration and filed a Motion to Dismiss14the case on July 11, 2003 on the ground that his right to speedy trial had been violated. He made the following allegations:

1. The hearings in the instant case have more often than not been scheduled more than one month apart;

2. In the hearing on April 30, 2003, in particular, the day before undersigned counsel had filed a Manifestation stating inter alia that his available dates for the next hearing may be "any Monday, Wednesday or Thursday for the whole of May 2003 and the first half of June 2003, except on May 14 and 21" - yet Atty. Manalaysay asked for the next hearing on June 19 which is already outside or beyond the dates mentioned in the manifestation, and which was more than 1-1/2 months away, but which the Honorable Court nonetheless granted;

3. Atty. Manalaysay has never been able to present any "good cause" as to how come he was not able to present Dr. Marquez on April 30, 2003, and then again on June 19, 2003; and as aforesaid, his absence on March 6, 2003 has not been supported by any medical certificate;

4. The first hearing in the instant case was held on June 13, 2002, thus it has now been more than one year, or close to 400 days ago since trial started; neither has there been any authorization from the Supreme Court that the trial period may exceed 180 days;

5. There has been no statement by the Honorable Court in any of its orders granting continuance that "the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial;"

6. As above stated, it appears that the prosecution made a false statement before the Honorable Court in claiming they had asked Dr. Marquez to testify in the June 19, 2003 hearing, when in fact they had not.15

Dr. Jose Arnel Marquez had apparently still not received the subpoena issued by the trial court, because of which the prosecution again failed to present him as a witness during the trial of July 17, 2003.

The prosecution prayed for continuance, to which the petitioner vigorously objected. The court, however, granted the motion and reset the trial to August 11, 2003.16

On July 24, 2003, Judge Laurea issued an Order17 inhibiting himself from hearing the case "to avoid being misunderstood, to preserve his reputation for probity and objectivity and to live up to the ideal impartial administration of justice." The case was re-raffled to Branch 170, presided by Judge Benjamin T. Antonio, who calendared the case for trial on September 8, 2003. Nevertheless, on August 11, 2003, the petitioner filed a Motion for Reconsideration18 of Judge Laurea's Order dated July 24, 2003, which the latter denied, on the finding that no cogent reason was presented to reconsider the same.19

During the hearing on September 8, 2003, Judge Antonio granted the private prosecutor's motion to be given five (5) days within which to oppose the petitioner's motion to dismiss. Judge Antonio also set the trial on September 18, 2003.20 On the latter date, the trial court issued an Omnibus Order21denying the petitioner's motion to dismiss. The trial court reasoned that there was no violation of the petitioner's right to speedy trial, considering that the apparent delays could not be attributed to the fault of the prosecution alone. The trial court noted that the petitioner also sought Postponements of the trials.

Anent the motion for reconsideration of the court's Order dated June 16, 2003 which denied the petition for bail, the trial court considered the same

as having been abandoned by the petitioner upon the filing of his motion to dismiss the case without waiting for the resolution of his motion for reconsideration on his petition for bail.

The petitioner then filed with the Court of Appeals (CA) a "Petition for Habeas Corpus and/orCertiorari and Prohibition."22 On October 2, 2003, the CA issued a Resolution requiring the petitioner to inform the court of his choice of remedy within five (5) days from notice thereof. In compliance therewith, the petitioner filed a manifestation with the appellate court that he had chosen his petition to be treated as a petition for habeas corpus without prejudice "to the concomitant application ofcertiorari if the court considered the same necessary or appropriate to give effect to the writ ofhabeas corpus."

The petitioner averred that (a) he was deprived of his right to a speedy trial and his constitutional right to a speedy disposition of the case; (b) Judge Laurea erred in inhibiting himself from the case; (c) the trial court committed grave abuse of its discretion in denying his petition for bail; and (d) Judge Antonio had prejudged the case against him.












Pag

e21

On December 9, 2003, the CA issued its assailed Resolution dismissing the petition, viz:

WHEREFORE, for being the wrong or improper remedy, the PETITION FOR HABEAS CORPUS is DISMISSED.

SO ORDERED.23

According to the appellate court, while the petitioner manifested his preference that his petition be treated as a petition for habeas corpus, the same was not the proper remedy to review and examine the proceedings before the trial court and as a relief from the petitioner's perceived oppressive situation in the trial court. The CA further emphasized that a writ of habeas corpus is not a writ of error; that it could not exercise its certiorari jurisdiction over the acts or omission of the respondent judge as a concomitant remedy; and that the remedy for habeas corpus and certiorari are different in nature, scope and purpose. The appellate court declared that the petitioner failed to present any evidence to prove that there was any intentional or deliberate delay caused to prejudice him; nor was there any malice in the failure of the prosecution to promptly serve the subpoena duces tecum/ad testificandum to its witnesses. The court also noted that the resetting of petitioner's case may also be attributed to the voluminous work of the RTC involved.

The petitioner filed a motion for reconsideration of the said decision contending that (a) the congestion of the trial court's calendar is not a valid ground for continuance of the trial; (b) the trial court failed to secure an extension of time of the trial period from the Supreme Court; (c) the trial court should have given a precedence to the case, the charge therein being a heinous crime; (d) his petition for a writ of habeas corpus was proper because his continued detention had become illegal, following the prosecutor and the trial court's violation of his right to a speedy trial, and the trial court's denial of his motion to dismiss the case and his petition for bail which was tainted with grave abuse of discretion; and (e) a writ of habeas corpus may be issued with the writ of certiorari for the purpose of review. However, the CA denied the petitioner's motion for lack of merit.

The petitioner filed a petition for certiorari in this Court under Rule 65 of the Rules of Court reiterating the grounds contained in his motion for reconsideration of the CA decision. The petitioner averred that the appellate court committed grave abuse of discretion amounting to excess or lack of jurisdiction in rendering its resolution, as well as the resolution denying his motion for reconsideration thereof.

In its comment on the petition, the Office of the Solicitor General submits that a petition for a writ ofhabeas corpus is not the proper remedy to assail the trial court's order denying his petition for bail, motion to dismiss the case, and Judge Laurea's order of inhibition. The OSG posits that the petitioner was not deprived of his constitutional right to a speedy disposition of his case as well as under the Speedy Trial Act.

The issues for resolution are the following: (a) whether or not the decision of the CA is already final and executory; (b) whether the proper remedy from the appellate court's denial of a petitioner for a writ if habeas corpus is a petition for certiorari under Rule 65 of the Rules of Court; and (c) if in the affirmative, whether or not the petitioner is entitled to the issuance of the writ.

On the first issue, we find and so rule that the petitioner's recourse to this Court via a petition forcertiorari from the decision of the CA dismissing his petition for a writ of habeas corpus is inappropriate. Section 39 of Batas Pambansa Blg. 129 provides that the period for appeal from the judgment of any court in habeas corpus cases shall be forty-eight (48) hours from notice of the judgment appealed from. While the said provision was not incorporated in the 1997 Rules of Civil Procedure, this Court approved Administrative Matter No. 01-1-03-SC amending Section 3, Rule 41of the said Rules, which took effect on July 15, 2001, thus:

SEC. 3. Period of ordinary appeal; appeal in habeas corpus cases. The appeal shall be taken within fifteen (15) days from notice of the judgment

or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. However, an appeal in habeas corpus cases shall be taken within forty-eight (48) hours from notice of the judgment or final order appealed from.

The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

Following the rule, the petitioner should have appealed to this Court from the CA decision denying his petition for a writ of habeas corpus, as well as the denial of his motion for reconsideration thereof; instead, the petitioner filed a petition for certiorari under Rule 65 of the Rules of Court, as amended. The well-settled rule is that certiorari is not available where the aggrieved party's remedy of appeal is plain, speedy and adequate in the ordinary course, the reason being that certiorari cannot co-exist with an appeal or any other adequate remedy. The existence and availability of the right to appeal are antithetical to the availment of the special civil action



Pag

e22

for certiorari . These two remedies are mutually exclusive.24 An appeal in this case would still have been a speedy and adequate remedy. Consequently, when the petitioner filed his petition in this Court, the decision of the CA was already final and executory.

It bears stressing that a decision in a habeas corpus action stands in no different position than with any other proceeding and if the appealed decision is to be reviewed by an appellate court, the remedy is by writ of error because the error committed by the court is an error of judgment and not an error of jurisdiction.25

Besides, as correctly held by the CA, a writ of habeas corpus is not the proper remedy to assail the trial court's denial of the petitioner's motion to dismiss the case, the denial of the petition for bail, as well as the voluntary inhibition of Judge Laurea.

A petition for the issuance of a writ of habeas corpus is a special proceeding governed by Rule 102 of the Rules of Court, as amended. In Ex Parte Billings,26 it was held that habeas corpus is that of a civil proceeding in character. It seeks the enforcement of civil rights. Resorting to the writ is not to inquire into the criminal act of which the complaint is made, but into the right of liberty, notwithstanding the act and the immediate purpose to be served is relief from illegal restraint. The rule applies even when instituted to arrest a criminal prosecution and secure freedom. When a prisoner petitions for a writ of habeas corpus, he thereby commences a suit and prosecutes a case in that court.27

Habeas corpus is not in the nature of a writ of error; nor intended as substitute for the trial court's function.28 It cannot take the place of appeal, certiorari or writ of error. The writ cannot be used to investigate and consider questions of error that might be raised relating to procedure or on the merits. The inquiry in a habeas corpus proceeding is addressed to the question of whether the proceedings and the assailed order are, for any reason, null and void.29 The writ is not ordinarily granted where the law provides for other remedies in the regular course, and in the absence of exceptional circumstances. Moreover, habeas corpus should not be granted in advance of trial.30 The orderly course of trial must be pursued and the usual remedies exhausted before resorting to the writ where exceptional circumstances are extant. In another case, it was held that habeas corpus cannot be issued as a writ of error or as a means of reviewing errors of law and irregularities not involving the questions of jurisdiction occurring during the course of the trial, subject to the caveat that

constitutional safeguards of human life and liberty must be preserved, and not destroyed.31 It has also been held that where restraint is under legal process, mere errors and irregularities, which do not render the

proceedings void, are not grounds for relief by habeas corpus because in such cases, the restraint is not illegal.32

Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when instituted for the sole purpose of having the person of restraint presented before the judge in order that the cause of his detention may be inquired into and his statements final.33 The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be the unlawful authority.34 Hence, the only parties before the court are the petitioner (prisoner) and the person holding the petitioner in custody, and the only question to be resolved is whether the custodian has authority to deprive the petitioner of his liberty.35 The writ may be denied if the petitioner fails to show facts that he is entitled thereto ex merito justicias.36

A writ of habeas corpus, which is regarded as a "palladium of liberty" is a prerogative writ which does not issue as a matter of right but in the sound discretion of the court or judge. It, is, however, a writ of right on proper formalities being made by proof.37 Resort to the writ is to inquire into the criminal act of which a complaint is made but unto the right of liberty, notwithstanding the act, and the immediate purpose to be served is relief from illegal restraint.38 The primary, if not the only object of the writ of habeas corpus ad subjuciendum is to determine the legality of the restraint under which a person is held.39

Our review of the petitioner's material averments in his petition before the

CA reveals that it was a "petition for habeas corpus or, in the alternative, a petition for a writ of certiorari " The petitioner assailed therein the orders of the trial court denying his petition for bail and his motion to dismiss on the ground that he was deprived of his right to a speedy disposition of the case against him, and questioned Judge Laurea's order of inhibition. We agree with the CA that a petition for a writ ofhabeas corpus cannot be joined with the special civil action for certiorari because the two remedies are governed by a different set of rules. Rule 2, Section 5(b) of the Rules of Court mandates that the joinder of causes of action shall not include special actions or actions governed by special rules, thus proscribing the joinder of a special proceeding with a special civil action.

We also agree with the ruling of the CA that a petition for a writ of habeas corpus is a remedy different from the special civil action of certiorari under Rule 65 of the Rules of Court, as amended. The writ of habeas corpus is a collateral attack on the processes, orders, or judgment of the trial court,

while certiorari is a direct attack of said processes, orders, or judgment on the ground of lack of jurisdiction or grave abuse of discretion amounting to excess or lack of jurisdiction. A writ ofcertiorari reaches only jurisdictional errors. It has no other use, except to bring before the court a record


















Pag

e23

material to be considered in exercising jurisdiction. A writ of certiorari reaches the record. On the other hand, a writ of habeas corpus reaches the body but not the record; it also reaches jurisdictional matters but does not reach the record. However, when jurisdiction is obtained by the issuance of a writ of habeas corpus, to bring the body of the person whose liberty is involved into court, and if it is necessary, to provide the record upon which the detention is based, that may be accomplished by using a writ of certiorari as an ancillary proceeding, i.e., it is subordinate to or in aid of the primary action for the purpose of impeaching the record. When a writ of certiorari is issued as the foundation of jurisdiction to bring it and direct upon the validity of a judicial determination by any body or officer, jurisdictional questions only are reached, and such questions pertaining to the detention made by the officer or body particularly complained of.40

The petitioner manifested to the appellate court that his petition should be treated as a petition forhabeas corpus. Even then, the CA rightly dismissed the petition because the petitioner failed to establish his right to the writ. The records show that the petitioner was charged with rape punishable by reclusion perpetua and was detained based on the said charge; hence, if the evidence of his guilt is strong, he shall not be admitted to bail regardless of the stage of the criminal prosecution.41 There is no question that the trial court had jurisdiction over the offense charged and over the person of the petitioner. The jail warden has the authority and, in fact, is mandated to detain the petitioner until granted bail by the court, or the case against him dismissed, or until he is acquitted after trial. The petitioner failed to establish that his incarceration pendente lite was illegal, and likewise failed to establish exceptional circumstances warranting the issuance of a writ of habeas corpus by the appellate court.Ï‚Î·Î±Ã±rÎ¿blÎµÅ¡ Î½Î¹râ€ Ï…Î±l lÎ±Ï‰ lÎ¹brÎ±rÃ¿

In Galvez v. Court of Appeals,42 the Court ruled that a petition for habeas corpus is not the proper remedy to assail the denial thereof:

'The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bailper se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there.43

The remedy of the petitioner from the Order of the trial court denying his petition for bail was to file a petition for certiorari in the CA if the trial court committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the said order.44 If the petitioner had done so, his

petition would have been granted because as gleaned from the assailed order of the trial court, it failed to summarize the testimonies of the private complainant and that of her mother. Hence, such order is invalid.45 The trial court would have had to issue another order containing the summary of the testimonies of the private complainant and her mother, including its findings and conclusions. However, the petitioner would still not be entitled to be released from detention in the meantime.

It bears stressing that under the second paragraph of Section 1, Rule 13746 of the Rules of Court, the voluntary inhibition of a Judge is addressed to his sound discretion for just or valid reasons, the primary consideration being that the people's faith in the courts of justice is not impaired.47 The petitioner should have thus filed a petition for certiorari and/or prohibition in the CA, instead of a petition for habeas corpus.

In cases where the right of the accused to a speedy trial is violated by the prosecution, the remedy lies in the procedure provided for under Republic Act No. 8493, as implemented by Rule 119 of the 2000 Rules of Criminal Procedure. Section 8 of the said Rule provides:

SEC. 8. Sanctions. - In any case in which private counsel for the accused, the public attorney, or the prosecutor:

(a) Knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial;

(b) Files a motion solely for delay which he knows is totally frivolous and without merit;

(c) Makes a statement for the purpose of obtaining continuance which he knows to be false and which is material to the granting of a continuance; or

(d) Willfully fails to proceed to trial without justification consistent with the provisions hereof, the court may punish such counsel, attorney, or prosecutor, as follows:

(1) By imposing on a counsel privately retained in connection with the defense of an accused, a fine not exceeding twenty thousand pesos (P20,000.00);

(2) By imposing on any appointed counsel de oficio, public attorney, or prosecutor a fine not exceeding five thousand pesos (P5,000.00); andcralawlibrary










Pag

e24

(3) By denying any defense counsel or prosecutor the right to practice before the court trying the case for a period not exceeding thirty (30) days. The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authorized under these Rules.

If the trial court acted with grave abuse of its discretion amounting to excess of lack of jurisdiction in granting the prosecution's motion for the resetting of the trial over the petitioner's objections, the more appropriate remedy would have been to file a petition for certiorari and/or a petition formandamus to compel the trial court to comply with the timeline provided for by the said Rule for trial and termination of the case.

It was inappropriate for the petitioner to file a petition for habeas corpus assailing the trial court's order denying his motion to dismiss the case for failure to comply with the timeline provided for by the said Rules. Reading and evaluating the assailed Order of the trial court dated September 18, 2000, it cannot be gainsaid that the court violated the right of the petitioner to speedy trial. Thus:

The instant motion is anchored on the alleged violation of and/or to enforce the right of the accused to speedy trial. In invoking such right, the accused contends that the failure of the prosecution to present the medico-legal officer who examined the victim on two (2) occasions, and the non-appearance of the private prosecutor on one occasion caused undue delay in the proceedings of this case.

The prosecution vigorously opposed the Motion to Dismiss and claimed that since the prosecution has not yet rested its case, the Court may not be able to appreciate the merits of the instant motion in the light of the unfinished presentation of evidence for the prosecution and that the grounds relied by the defense do not touch on the sufficiency of the prosecution's evidence to prove the guilt of the accused beyond reasonable doubt, but rather on the alleged delay and failure to present Dr. Jose Arnel Marquez of the PNP Crime Laboratory.

After due consideration, the Court finds the instant motion untenable.Ï‚Î·Î±Ã±rÎ¿blÎµÅ¡ Î½Î¹râ€ Ï…Î±l lÎ±Ï‰ lÎ¹brÎ±rÃ¿

The alleged delay and failure to present the medico-legal officer cannot be attributed to the fault of the prosecution and/or the Court. The prosecution and the Court cannot encroach on the right of the medico-legal officer to appear inasmuch as his schedule conflicted with the hearings set for his appearance. Moreover, delays assailed by defense counsel that violated accused' right to speedy trial are not all at the instance of the prosecution.

In fact, the defense, contributed to the delay since the former defense counsel and even the present defense counsel sought postponements of the hearings.

Be that as it may, despite the non-presentation of the medico-legal officer, the Court (Branch 169) proceeded in resolving the Petition for Bail of the accused (albeit unfavorable to the cause of the accused) on the basis of the sole testimony of the complainant, which is backed up by several jurisprudence to this effect. The defense, filed a Motion for Reconsideration of said denial after he has filed a Motion to Dismiss. The filing of these pleadings adds to the delay until the Presiding Judge who denied the Petition for Bail voluntarily inhibited himself from this case. Then when the Motion to Dismiss was set for hearing, the Court, in an attempt to expedite the proceedings, suggested for the parties to stipulate on the medical findings of the medico-legal officer so as to dispense with his presentation. Defense counsel, however, would not want to enter into such a stipulation. Hence, another delay.48

We agree with the petitioner that a petition for the issuance of a writ of habeas corpus may be filed if one is deprived of his right to a speedy disposition of the case under Article IV, Section 16 of the 1987 Constitution and of his right to due process.49 However, the petitioner never invoked in the trial court his constitutional right to a speedy disposition of the case against him. What he invoked was his right to a speedy trial under Rule 119 of the 2000 Rules of Criminal Procedure. He invoked his constitutional right to a speedy disposition of the case against him, for the first time, only in the Court of Appeals when he filed his petition for habeas corpus.

Even then, the petitioner failed to establish his claim that he was deprived of his right to a speedy disposition of the case. In Marilyn Corpuz, et al., v. Sandiganbayan,50 the Court had the occasion to state'

The right of the accused to a speedy trial and to a speedy disposition of the case against him was designed to prevent the oppression of the citizen by holding criminal prosecution suspended over him for an indefinite time, and to prevent delays in the administration of justice by mandating the courts to proceed with reasonable dispatch in the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a case is violated only when the proceeding is attended by vexatious, capricious and oppressive delays. The inquiry as to whether or not an accused has been denied such right is not susceptible by precise qualification. The concept of a speedy disposition is a relative term and must necessarily be a flexible concept.

While justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere speed. It cannot be definitely said how



http://www.chanrobles.com/scdecisions/jurisprudence2004/nov2004/gr_162214_2004.php

http://www.chanrobles.com/scdecisions/jurisprudence2004/nov2004/gr_162214_2004.php



Pag

e25

long is too long in a system where justice is supposed to be swift, but deliberate. It is consistent with delays and depends upon circumstances. It secures rights to the accused, but it does not preclude the rights of public justice. Also, it must be borne in mind that the rights given to the accused by the Constitution and the Rules of Court are shields, not weapons; hence, courts are to give meaning to that intent.

The Court emphasized in the same case that:

A balancing test of applying societal interests and the rights of the accused

necessarily compels the court to approach speedy trial cases on an ad hoc basis.

In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendant's assertion of his right; and (d) prejudice to the defendant. Prejudice should be assessed in the light of the interest of the defendant that the speedy trial was designed to protect, namely: to prevent oppressive pre-trial incarceration; to minimize anxiety and concerns of the accused to trial; and to limit the Possibility that his defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. There is also prejudice if the defense witnesses are unable to recall accurately the events of the distant past. Even if the accused is not imprisoned prior to trial, he is still disadvantaged by restraints on his

liberty and by living under a cloud of anxiety, suspicion and often, hostility. His financial resources may be drained, his association is curtailed, and he is subjected to public obloquy.

Delay is a two-edged sword. It is the government that bears the burden of proving its case beyond reasonable doubt. The passage of time may make it difficult or impossible for the government to carry its burden. The Constitution and the Rules do not require impossibilities or extraordinary efforts, diligence or exertion from courts or the prosecutor, nor contemplate that such right shall deprive the State of a reasonable opportunity of fairly prosecuting criminals. As held in Williams v. United States, for the government to sustain its right to try the accused despite a delay, it must show two things: (a) that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay; and (b) that there was no more delay than is reasonably attributable to the ordinary processes of justice.

Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different

reasons or justifications invoked by the State. For instance, a deliberate attempt to delay the trial in order to hamper or prejudice the defense should be weighted heavily against the State. Also, it is improper for the prosecutor to intentionally delay to gain some tactical advantage over the defendant or to harass or prejudice him. On the other hand, the heavy case load of the prosecution or a missing witness should be weighted less heavily against the State.

In this case, the petitioner was arraigned on February 7, 2002. In the meantime, he was able to present only two witnesses. The petitioner failed to terminate the cross-examination of the private complainant by the year 2002. The Court cannot determine the reason for the delay because the records of the RTC are not before it. Neither of the parties made any explanation for the delay; nor is there any showing that the counsel of the petitioner complained about the delay. Aside from the petitioner's claim that the private prosecutor failed to give good cause for his failure to present Dr. Jose Arnel Marquez during the trial dates April 30, 2003 and June 19, 2003, as well as to substantiate his absence during the trial of March 6, 2003 with a medical certificate, the petitioner failed to support his claim in his pleadings before the CA and in this Court. On the other hand, the counsel of the petitioner was absent during the trial on April 30, 2003 because he had to attend an execution sale in Cavite. The petitioner's counsel gave priority to the execution sale and asked for a resetting despite the fact that his client, the petitioner, was detained for a quasi - heinous crime. While it is true that the trial was reset to June 19, 2003, or more than one month from April 30, 2003, the petitioner's counsel himself manifested that he was available for trial during the first half of June 2003. There was a difference of only four (4) days from the trial date set by the court and the available dates suggested by the petitioner's counsel. It bears stressing that trial dates cannot be set solely at the convenience of the petitioner's counsel. The trial dates available in the calendar of the court and of the prosecutor must also be taken into account.Ï‚Î·Î±Ã±rÎ¿blÎµÅ¡ Î½Î¹râ€ Ï…Î±l lÎ±Ï‰ lÎ¹brÎ±rÃ¿

Hence, it cannot be said that the petitioner was deprived of his right to a speedy disposition of the case simply because the private prosecutor failed to submit a medical certificate for his absence during the trial of March 6, 2003. The petitioner could have asked the court to cite the private prosecutor in contempt of court for his failure to submit the said certificate; he failed to do so. Moreover, the petitioner failed to establish any serious prejudice by the delay of the trial, and that the State deliberately delayed the trial to prejudice him.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No costs


Pag

e26

THIRD DIVISION

[G.R. NO. 154598 : August 16, 2004]

IN THE MATTER OF APPLICATION FOR THE ISSUANCE OF A WRIT OF HABEAS CORPUS

RICHARD BRIAN THORNTON for and in behalf of the minor child SEQUEIRA JENNIFER DELLE FRANCISCO

THORNTON, Petitioner, v. ADELFA FRANCISCO THORNTON, Respondent.

D E C I S I O N

CORONA, J.:

This is a petition to review, under Rule 45 of the Rules of Court, the July 5, 2002 resolution1 of the Court of Appeals, Sixteenth Division, in CA G.R. SP No. 70501 dismissing the petition for habeas corpus on the grounds of lack of jurisdiction and lack of substance. The dispositive portion2 read:

WHEREFORE, the Court DISMISSES the petition for habeas corpus on the grounds that: a) this Court has no jurisdiction over the subject matter of the petition; and b) the petition is not sufficient in substance.

Petitioner, an American, and respondent, a Filipino, were married on August 28, 1998 in the Catholic Evangelical Church at United Nations Avenue, Manila. A year later, respondent gave birth to a baby girl whom they named Sequeira Jennifer Delle Francisco Thornton.

However, after three years, respondent grew restless and bored as a plain housewife. She wanted to return to her old job as a "guest relations officer" in a nightclub, with the freedom to go out with her friends. In fact, whenever petitioner was out of the country, respondent was also often out with her friends, leaving her daughter in the care of the househelp.

Petitioner admonished respondent about her irresponsibility but she continued her carefree ways. On December 7, 2001, respondent left the family home with her daughter Sequiera without notifying her husband. She told the servants that she was bringing Sequiera to Purok Marikit, Sta. Clara, Lamitan, Basilan Province.

Petitioner filed a petition for habeas corpus in the designated Family Court in Makati City but this was dismissed, presumably because of the allegation

that the child was in Basilan. Petitioner then went to Basilan to ascertain the whereabouts of respondent and their daughter. However, he did not find them there and the barangay office of Sta. Clara, Lamitan, Basilan, issued a certification3 that respondent was no longer residing there.

Petitioner gave up his search when he got hold of respondent's cellular phone bills showing calls from different places such as Cavite, Nueva Ecija, Metro Manila and other provinces. Petitioner then filed another petition for habeas corpus, this time in the Court of Appeals which could issue a writ ofhabeas corpus enforceable in the entire country.

However, the petition was denied by the Court of Appeals on the ground that it did not have jurisdiction over the case. It ruled that since RA 8369 (The Family Courts Act of 1997) gave family courts exclusive original jurisdiction over petitions for habeas corpus, it impliedly repealed RA 7902 (An Act Expanding the Jurisdiction of the Court of Appeals) and Batas Pambansa 129 (The Judiciary Reorganization Act of 1980):

Under Sec. 9 (1), BP 129 (1981) the Intermediate Appellate Court (now Court of Appeals) has jurisdiction to issue a writ of habeas corpus whether or not in aid of its appellate jurisdiction. This conferment of jurisdiction was re-stated in Sec. 1, RA 7902 (1995), an act expanding the jurisdiction of this Court. This jurisdiction finds its procedural expression in Sec. 1, Rule 102 of the Rules of Court.

In 1997, RA 8369 otherwise known as Family Courts Act was enacted. It provides:

Sec. 5. Jurisdiction of Family Court. - The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:

xxx xxx xxx

b. Petition for guardianship, custody of children, habeas corpus in relation to the latter.

The vital question is, did RA 8369 impliedly repeal BP 129 and RA 7902 insofar as the jurisdiction of this Court to issue writ of habeas corpus in custody of minor cases is concerned? The simple answer is, yes, it did, because there is no other meaning of the word "exclusive" than to constitute the Family Court as the sole court which can issue said writ. If a court other than the Family Court also possesses the same competence, then the jurisdiction of the former is not exclusive but concurrent - and

http://www.chanrobles.com/cralaw/2004augustdecisions.php?id=662#fnt1




Pag

e27

such an interpretation is contrary to the simple and clear wording of RA 8369.

Petitioner argues that unless this Court assumes jurisdiction over a petition for habeas corpus involving custody of minors, a respondent can easily evade the service of a writ of habeas corpus on him or her by just moving out of the region over which the Regional Trial Court issuing the writ has territorial jurisdiction. That may be so but then jurisdiction is conferred by law. In the absence of a law conferring such jurisdiction in this Court, it cannot exercise it even if it is demanded by expediency or necessity.

Whether RA 8369 is a good or unwise law is not within the authority of this Court - or any court for that matter - to determine. The enactment of a law on jurisdiction is within the exclusive domain of the legislature. When there is a perceived defect in the law, the remedy is not to be sought form the courts but only from the legislature.

The only issue before us therefore is whether the Court of Appeals has jurisdiction to issue writs ofhabeas corpus in cases involving custody of minors in the light of the provision in RA 8369 giving family courts exclusive original jurisdiction over such petitions.

In his comment, the Solicitor General points out that Section 20 of the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-04-04-SC, effective May 15, 2003) has rendered the issue moot. Section 20 of the rule provides that a petition for habeas corpusmay be filed in the Supreme Court,4 Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines.5

The petition is granted.

The Court of Appeals should take cognizance of the case since there is nothing in RA 8369 that revoked its jurisdiction to issue writs of habeas corpus involving the custody of minors.

The Court of Appeals opines that RA 8369 impliedly repealed RA 7902 and BP 129 since, by giving family courts exclusive jurisdiction over habeas corpus cases, the lawmakers intended it to be the sole court which can issue writs of habeas corpus. To the court a quo, the word "exclusive" apparently cannot be construed any other way.

We disagree with the CA's reasoning because it will result in an iniquitous situation, leaving individuals like petitioner without legal recourse in

obtaining custody of their children. Individuals who do not know the whereabouts of minors they are looking for would be helpless since they cannot seek redress from family courts whose writs are enforceable only in their respective territorial jurisdictions. Thus, if a minor is being transferred from one place to another, which seems to be the case here, the petitioner in a habeas corpus case will be left without legal remedy. This lack of recourse could not have been the intention of the lawmakers when they passed the Family Courts Act of 1997. As observed by the Solicitor General:

Under the Family Courts Act of 1997, the avowed policy of the State is to "protect the rights and promote the welfare of children." The creation of the Family Court is geared towards addressing three major issues regarding children's welfare cases, as expressed by the legislators during the deliberations for the law. The legislative intent behind giving Family Courts exclusive and original jurisdiction over such cases was to avoid further clogging of regular court dockets, ensure greater sensitivity and specialization in view of the nature of the case and the parties, as well as to guarantee that the privacy of the children party to the case remains protected.

The primordial consideration is the welfare and best interests of the child. We rule therefore that RA 8369 did not divest the Court of Appeals and the Supreme Court of their jurisdiction over habeas corpus cases involving the custody of minors. Again, to quote the Solicitor General:

To allow the Court of Appeals to exercise jurisdiction over the petition for habeas corpus involving a minor child whose whereabouts are uncertain and transient will not result in one of the situations that the legislature seeks to avoid. First, the welfare of the child is paramount. Second, the ex parte nature of habeas corpus proceedings will not result in disruption of the child's privacy and emotional well-being; whereas to deprive the appellate court of jurisdiction will result in the evil sought to be avoided by the legislature: the child's welfare and well being will be prejudiced.

This is not the first time that this Court construed the word "exclusive" as not foreclosing resort to another jurisdiction. As correctly cited by the Solicitor General, in Floresca v. Philex Mining Corporation,6 the heirs of miners killed in a work-related accident were allowed to file suit in the regular courts even if, under the Workmen's Compensation Act, the Workmen's Compensation Commissioner had exclusive jurisdiction over such cases.

We agree with the observations of the Solicitor General that:





Pag

e28

While Floresca involved a cause of action different from the case at bar. it supports petitioner's submission that the word "exclusive" in the Family Courts Act of 1997 may not connote automatic foreclosure of the jurisdiction of other courts over habeas corpuscases involving minors. In the same manner that the remedies in the Floresca case were selective, the jurisdiction of the Court of Appeals and Family Court in the case at bar is concurrent. The Family Court can issue writs of habeas corpus enforceable only within its territorial jurisdiction. On the other hand, in cases where the territorial jurisdiction for the enforcement of the writ cannot be determined with certainty, the Court of Appeals can issue the same writ enforceable throughout the Philippines, as provided in Sec. 2, Rule 102 of the Revised Rules of Court, thus:

The Writ of Habeas Corpus may be granted by the Supreme Court, or any member thereof, on any day and at any time, or by the Court of Appeals or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a Court of First Instance, or any judge thereof for hearing and decision on the merits. It may also be granted by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district. (Emphasis supplied)cralawlibrary

In ruling that the Commissioner's "exclusive" jurisdiction did not foreclose resort to the regular courts for damages, this Court, in the same Floresca case, said that it was merely applying and giving effect to the constitutional guarantees of social justice in the 1935 and 1973 Constitutions and implemented by the Civil Code. It also applied the well-established rule that what is controlling is the spirit and intent, not the letter, of the law:

"Idolatrous reverence" for the law sacrifices the human being. The spirit of the law insures man's survival and ennobles him. In the words of Shakespeare, "the letter of the law killeth; its spirit giveth life."

xxx xxx xxx

It is therefore patent that giving effect to the social justice guarantees of the Constitution, as implemented by the provisions of the New Civil Code, is not an exercise of the power of law-making, but is rendering obedience to the mandates of the fundamental law and the implementing legislation aforementioned.

Language is rarely so free from ambiguity as to be incapable of being used in more than one sense. Sometimes, what the legislature actually had in mind is not accurately reflected in the language of a statute, and its literal interpretation may render it meaningless, lead to absurdity, injustice or contradiction.7 In the case at bar, a literal interpretation of the word "exclusive" will result in grave injustice and negate the policy "to protect the rights and promote the welfare of children"8 under the Constitution and the United Nations Convention on the Rights of the Child. This mandate must prevail over legal technicalities and serve as the guiding principle in construing the provisions of RA 8369.

Moreover, settled is the rule in statutory construction that implied repeals are not favored:

The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare leqibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be presumed to have known the existing laws on the subject and not have enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all laws on the subject."9

The provisions of RA 8369 reveal no manifest intent to revoke the

jurisdiction of the Court of Appeals and Supreme Court to issue writs of habeas corpus relating to the custody of minors. Further, it cannot be said that the provisions of RA 8369, RA 7092 and BP 129 are absolutely incompatible since RA 8369 does not prohibit the Court of Appeals and the Supreme Court from issuing writs of habeas corpus in cases involving the custody of minors. Thus, the provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 â€• that family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue.

In any case, whatever uncertainty there was has been settled with the adoption of A.M. No. 03-03-04-SC Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. Section 20 of the rule provides that:

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.





Pag

e29

xxx xxx xxx

The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. (Emphasis Ours)

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

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

One final note. Requiring the serving officer to search for the child all over the country is not an unreasonable availment of a remedy which the Court of Appeals cited as a ground for dismissing the petition. As explained by the Solicitor General:10

That the serving officer will have to "search for the child all over the country" does not represent an insurmountable or unreasonable obstacle, since such a task is no more different from or difficult than the duty of the peace officer in effecting a warrant of arrest, since the latter is likewise enforceable anywhere within the Philippines.

WHEREFORE, the petition is hereby GRANTED. The petition for habeas corpus in CA-G.R.-SP-No. 70501 is hereby REINSTATED and REMANDED to the Court of Appeals, Sixteenth Division.

SO ORDERED.



Pag

e30

FELIPE N. MADRIAN, G.R. No. 159374 Petitioner, Present:

PUNO, C.J., Chairperson, SANDOVAL-GUTIERREZ,*

- v e r s u s - CORONA, AZCUNA and

GARCIA,** JJ. FRANCISCA R. MADRIAN,

Respondent. Promulgated: July 12, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N CORONA, J.:

When a family breaks up, the children are always the victims. The

ensuing battle for custody of the minor children is not only a thorny issue

but also a highly sensitive and heart-rending affair. Such is the case here.

Even the usually technical subject of jurisdiction became emotionally

charged.

Petitioner Felipe N. Madrian and respondent Francisca R. Madrian were

married on July 7, 1993 in Paraaque City. They resided in San Agustin

Village, Brgy. Moonwalk, Paraaque City.

Their union was blessed with three sons and a daughter: Ronnick,

born on January 30, 1994; Phillip, born on November 19, 1996; Francis

Angelo, born on May 12, 1998 and Krizia Ann, born on December 12, 2000.

After a bitter quarrel on May 18, 2002, petitioner allegedly left their

conjugal abode and took their three sons with him to Ligao City, Albay and

subsequently to Sta. Rosa, Laguna. Respondent sought the help of her

parents and parents-in-law to patch things up between her and petitioner

to no avail. She then brought the matter to the Lupong Tagapamayapa in

their barangay but this too proved futile.

Thus respondent filed a petition for habeas corpus of Ronnick,

Phillip and Francis Angelo in the Court of Appeals, alleging that petitioners

act of leaving the conjugal dwelling and going to Albay and then to Laguna

disrupted the education of their children and deprived them of their

mothers care. She prayed that petitioner be ordered to appear and produce

their sons before the court and to explain why they should not be returned

to her custody.

Petitioner and respondent appeared at the hearing on September 17, 2002.

They initially agreed that petitioner would return the custody of their three

http://sc.judiciary.gov.ph/jurisprudence/2007/july2007/159374.htm#_ftn1



Pag

e31

sons to respondent. Petitioner, however, had a change of heart[1] and

decided to file a memorandum.

On September 3, 2002, petitioner filed his memorandum[2] alleging that

respondent was unfit to take custody of their three sons because she was

habitually drunk, frequently went home late at night or in the wee hours of

the morning, spent much of her time at a beer house and neglected her

duties as a mother. He claimed that, after their squabble on May 18, 2002,

it was respondent who left, taking their daughter with her. It was only then

that he went to Sta. Rosa, Laguna where he worked as a tricycle driver. He

submitted a certification from the principal of the Dila Elementary School in

Sta. Rosa, Laguna that Ronnick and Phillip were enrolled there. He also

questioned the jurisdiction of the Court of Appeals claiming that under

Section 5(b) of RA 8369 (otherwise known as the Family Courts Act of

1997) family courts have exclusive original jurisdiction to hear and decide

the petition for habeas corpus filed by respondent.[3]

For her part, respondent averred that she did not leave their

home on May 18, 2002 but was driven out by petitioner. She alleged that it

was petitioner who was an alcoholic, gambler and drug addict. Petitioners

alcoholism and drug addiction impaired his mental faculties, causing him to

commit acts of violence against her and their children. The situation was

aggravated by the fact that their home was adjacent to that of her in-laws

who frequently meddled in their personal problems.[4]

On October 21, 2002, the Court of Appeals[5] rendered a

decision[6] asserting its authority to take cognizance of the petition and

ruling that, under Article 213 of the Family Code, respondent was entitled

to the custody of Phillip and Francis Angelo who were at that time aged six

and four, respectively, subject to the visitation rights of petitioner. With

respect to Ronnick who was then eight years old, the court ruled that his

custody should be determined by the proper family court in a special

proceeding on custody of minors under Rule 99 of the Rules of Court.

Petitioner moved for reconsideration of the Court of Appeals

decision but it was denied. Hence, this recourse.

Petitioner challenges the jurisdiction of the Court of Appeals over

the petition for habeas corpus and insists that jurisdiction over the case is

lodged in the family courts under RA 8369. He invokes Section 5(b) of RA

8369:








Pag

e32

Section 5. Jurisdiction of Family Courts. The

Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:

x x x x x x x x x

b) Petitions for guardianship, custody of

children, habeas corpus in relation to the latter;

x x x x x x x x x

Petitioner is wrong.

In Thornton v. Thornton,[7] this Court resolved the issue of the Court of

Appeals jurisdiction to issue writs of habeas corpus in cases involving

custody of minors in the light of the provision in RA 8369 giving family

courts exclusive original jurisdiction over such petitions:

The Court of Appeals should take

cognizance of the case since there is nothing in RA 8369 that revoked its jurisdiction to issue writs of habeas corpusinvolving the custody of minors.

x x x x x x x x x

We rule therefore that RA 8369 did not divest the Court of Appeals and the Supreme Court of their jurisdiction over habeas corpus cases involving the custody of minors.

x x x x x x x x x

The provisions of RA 8369 reveal no manifest

intent to revoke the jurisdiction of the Court of Appeals and Supreme Court to issue writs of habeas

corpus relating to the custody of minors. Further, it cannot be said that the provisions of RA 8369, RA 7092 [An Act Expanding the Jurisdiction of the Court of Appeals] and BP 129 [The Judiciary Reorganization Act of 1980] are absolutely incompatible since RA 8369 does not prohibit the Court of Appeals and the Supreme Court from issuing writs of habeas corpus in cases involving the custody of minors. Thus, the provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 that family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue.[8] (emphases supplied)

The jurisdiction of the Court of Appeals over petitions for habeas

corpus was further affirmed by A.M. No. 03-03-04-SC (April 22, 2004) in

Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to

Custody of Minors: In any case, whatever uncertainty there

was has been settled with the adoption of A.M. No. 03-03-04-SC Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. Section 20 of the rule provides that:

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.

x x x x x x x x x 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




Pag

e33

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.[9] (emphases supplied)

We note that after petitioner moved out of their Paraaque residence on

May 18, 2002, he twice transferred his sons to provinces covered by

different judicial regions. This situation is what the Thornton interpretation

of RA 8369s provision on jurisdiction precisely addressed: [The reasoning that by giving family courts exclusive jurisdiction over habeas corpus cases, the lawmakers intended them to be the sole courts which can issue writs of habeas corpus] will result in an iniquitous situation, leaving individuals like [respondent] without legal recourse in obtaining custody of their children. Individuals who do not know the whereabouts of minors they are looking for would be helpless since they cannot seek redress from family courts whose writs are enforceable only in their respective territorial jurisdictions. Thus, if a minor is being transferred from one place to another, which seems to be the

case here, the petitioner in a habeas corpus case will be left without legal remedy. This lack of recourse could not have been the intention of the lawmakers when they passed [RA 8369].[10]

Moreover, a careful reading of Section 5(b) of RA 8369 reveals

that 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 family courts under Section 5(b) of RA 8369 pertain

to the ancillary remedy that may be availed of in conjunction with a

petition for custody of minors under Rule 99 of the Rules of Court. In other

words, the issuance of the writ is merely ancillary to the custody case

pending before the family court. The writ must be issued by the same court

to avoid splitting of jurisdiction, conflicting decisions, interference by a co-

equal court and judicial instability.

The rule therefore is: when by law jurisdiction is conferred on a

court or judicial officer, all auxiliary writs, processes and other means

necessary to carry it into effect may be employed by such court or

officer.[11] Once a court acquires jurisdiction over the subject matter of a

case, it does so to the exclusion of all other courts, including related

incidents and ancillary matters.

Accordingly, the petition is hereby DENIED. Costs against petitioner.

SO ORDERED.





Pag

e34

FIRST DIVISION

[G.R. NO. 168728 : August 2, 2007]

SAMUEL BARREDO y GOLANI, Petitioner, v. HON. VICENTE VINARAO, Director, Bureau of Corrections, Respondent.

D E C I S I O N

CORONA, J.:

This is a petition for the issuance of a writ of habeas corpus. Petitioner Samuel Barredo y Golani prays for his release from the maximum security

compound of the New Bilibid Prison in Muntinlupa City on the ground that he has already served the sentence imposed on him in Criminal Case Nos. Q-92-38559 and Q-92-38560.

Criminal Case No. Q-92-385591 was for carnapping2 while Criminal Case No. Q-92-38560 was for illegal possession of firearms.3 Both cases were filed in the Regional Trial Court (RTC) of Quezon City, Branch 103.4

The cases were tried jointly. After trial, the court rendered a joint decision finding petitioner guilty of both charges. Relevant parts of the dispositive portion read:

ACCORDINGLY, judgment is hereby rendered in Q-92-38559 finding Samuel Barredo,5 xxx GUILTY beyond reasonable doubt xxx of the crime of Carnapping aggravated and qualified by the frustrated killing of Ciriaco Rosales and [he is] hereby sentenced to undergo an imprisonment term of THIRTY (30) YEARS;

x x x x x x x x x

In Q-92-38560, Samuel Barredo is hereby found GUILTY as principal beyond reasonable doubt of the crime of violation of P.D. 1866 and he is hereby sentenced to an imprisonment term of EIGHTEEN (18) YEARS and ONE (1) DAY of Reclusion Temporal.

x x x x x x x x x

SO ORDERED.6

No appeal was made, hence, the decision became final and executory.

Petitioner was committed to the custody of the Quezon City Jail (as detention prisoner) on March 15, 1993.7 After conviction, he was transferred to and confined at the maximum security compound of the New Bilibid Prison in Muntinlupa City on July 23, 19948 where he is now still detained.

According to petitioner, as of August 2, 2004, he already served a total of 18 years. He claims that, on October 9, 2001, the Board of Pardons and

Parole passed a resolution recommending the commutation of his sentence to a period of from 15 to 20 years. He further points out that, based on the Bureau of Corrections' revised computation table for determining the time to be credited prisoners for good conduct while serving sentence, he should only serve 14 years, 9 months and 18 days. Thus, this petition.

Is petitioner entitled to the writ of habeas corpus? No.

Writ of Habeas Corpus Will Not Issue If Detention Is By Virtue Of Valid Judgment

The writ of habeas corpus applies to all cases of illegal confinement, detention or deprivation of liberty.9 It was devised as a speedy and effective remedy to relieve persons from unlawful restraint.10 More specifically, it is a remedy to obtain immediate relief for those who may have been illegally confined or imprisoned without sufficient cause and thus deliver them from unlawful custody.11 It is therefore a writ of inquiry intended to test the circumstances under which a person is detained.12

The writ may not be availed of when the person in custody is under a judicial process or by virtue of a valid judgment.13 However, the writ may be allowed as a post-conviction remedy when the proceedings leading to the conviction were attended by any of the following exceptional circumstances:

(1) there was 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 was excessive, thus voiding the sentence as to such excess.14
















Pag

e35

The rule is that if a person alleged to be restrained of his liberty is in 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 the writ ofhabeas corpus will not be allowed.15 Thus, Section 4, Rule 102 of the Rules of Court provides:

Sec. 4. When writ not allowed or discharge authorized. - If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. (emphasis supplied)

Petitioner was detained pursuant to a final judgment of the Quezon City RTC convicting him for the crimes of carnapping and illegal possession of firearms. He is therefore not entitled to the writ ofhabeas corpus.

Sentence is Void Insofar As It Failed to Impose an Indeterminate Sentence

As correctly pointed out by the Solicitor General, however, the trial court erred in imposing a straight penalty of imprisonment for 30 years in the carnapping case. The sentence imposed by the trial court deprived petitioner of the benefits of the Indeterminate Sentence Law.16 Hence, it was void insofar as it failed to impose an indeterminate sentence.

Since the crime was committed by means of violence against or intimidation of persons, the imposable penalty under the Anti-Carnapping Act of 1972 was imprisonment for not less than 17 years and 4 months and not more than 30 years.17 Furthermore, pursuant to the Indeterminate Sentence Law, the court should have imposed an indeterminate sentence with a maximum term not exceeding the maximum fixed by the special penal law and a minimum term not less than the minimum term prescribed by the same law.18 Therefore, the proper imposable penalty is imprisonment not for 30 years but for an indeterminate sentence of 17 years and 4 months as minimum to 30 years as maximum.19

Reduction of Penalty Under Amendatory Law Should be Applied Retroactively

Petitioner is likewise entitled to a reduction of the penalty imposed upon him in the illegal possession of firearms case in view of the passage of RA 8294. The law reduced the penalty for simple illegal possession of firearms to prision correccional in its maximum period and a fine of not less thanP15,000. Being favorable to petitioner, RA 8294 should be applied retroactively to benefit him.20Further applying the Indeterminate Sentence Law, the proper imposable penalty is imprisonment for 4 years, 2 months and 1 day as minimum to 6 years as maximum.21

Petitioner Has Not Yet Served The Penalties Imposed on Him

Petitioner has to serve the penalties imposed on him successively in the order of their severity.22Hence, he has to first serve the more severe penalty, i.e., that imposed in the carnapping case: imprisonment for 17 years and 4 months as minimum to 30 years as maximum. Only after he has served this will he commence serving the less severe penalty imposed in the illegal possession of firearms case: imprisonment for 4 years, 2 months and 1 day as minimum to 6 years as maximum.23

Per the certification issued by the Bureau of Corrections,24 as of April 3, 2007, petitioner has served a total of 18 years, 4 months and 26 days, inclusive of his good conduct time allowance and preventive imprisonment. Thus, while he has already served the minimum penalty in the carnapping case, he has not yet served the minimum penalty in the illegal possession of firearms case. Consequently, petitioner is not entitled to the issuance of a writ of habeas corpus. Neither is he eligible for parole because only

prisoners who have served the minimum penalty imposed on them may be released on parole on such terms and conditions as may be prescribed by the Board of Pardons and Parole.25

Petitioner's claim that the Board of Pardons and Parole passed a resolution recommending the commutation of his sentence does not justify the issuance of the writ of habeas corpus. Commutation of sentence is a prerogative of the Chief Executive.26 Hence, even if petitioner's claim were true, the recommendation of the Bureau of Pardons and Parole was just that, a mere recommendation. Until and unless approved by the President, there is no commutation to speak of.

Accordingly, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.














Pag

e36

SECOND DIVISION

[G.R. NO. 167193 : April 19, 2006]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS ENGR. ASHRAF KUNTING, Petitioner.

D E C I S I O N

AZCUNA, J.:

This is a petition for the issuance of a writ of habeas corpus directing Police Chief Superintendent Ismael R. Rafanan and General Robert Delfin,1 Philippine National Police (PNP) Intelligence Chief, to bring petitioner Ashraf Kunting before this Court and show cause why he is illegally detained.

The antecedents are as follows:

On October 19, 2001, petitioner Kunting was arrested in Malaysia for violation of the Malaysian Internal Security Act. On June 12, 2003, the Royal Malaysian Police in Kuala Lumpur, Malaysia, turned over Kunting to the PNP-IG and Task Force Salinglahi pursuant to warrants for his arrest issued by the Regional Trial Court (RTC) of Isabela City, Basilan, Branch 2, Ninth Judicial Region. Kunting was charged with four counts of Kidnapping for Ransom and Serious Illegal Detention with the RTC under separate Amended Informations, docketed as Criminal Case Nos. 3674-1187, 3537-1129, 3608-1164, and 3611-1165.

Petitioner was immediately flown to the Philippines and brought to the PNP-IG at Camp Crame for booking and custodial investigation.

In a letter dated July 3, 2003, Atty. Guillermo G. Danipog, Jr., Police Superintendent and Chief of the Legal Affairs Division, PNP-IG, informed the Branch Clerk of Court of the RTC that Kunting was already in the custody of the PNP-IG. Atty. Danipog requested for Kunting's temporary detention at the PNP-IG, Camp Crame, Quezon City due to the high security risks involved and prayed for the issuance of a corresponding commitment order.

In a letter dated July 9, 2003, Emilio F. Enriquez, Acting Clerk of Court of the RTC, replied to the request of Atty. Danipog, thus:

x x x

The undersigned referred the matter to Hon. Danilo M. Bucoy, Presiding Judge of this Court, who issued the Alias Warrant of Arrest in the herein mentioned case (Criminal Case No. 3674-1187) and per his instruction, accused As[h]raf Kunting y Barreto [may be] temporarily detained thereat by virtue of the Alias Warrant of Arrest issued in this case, however considering that the accused is a high security risk, he should be brought to Isabela, Basilan as soon as the necessary security escort can be provided for his transfer, where the proper commitment order can be issued as the herein mentioned case is about to be submitted by the prosecution.

Thank you ever so much for your usual cooperation extended to the Court.2

On September 15, 2003, the RTC issued an Order directing the Police Superintendent and Chief, Legal Affairs Division, PNP-IG, to immediately turn over Kunting to the trial court since Kunting filed an Urgent Motion for Reinvestigation.

On November 5, 2003, PNP-IG Director Arturo C. Lomibao wrote a letter to Chief State Prosecutor Jovencito R. ZuÃ±o, Department of Justice (DOJ), requesting for representation and a motion to be filed for the transfer of the venue of the trial from Isabela City, Basilan to Pasig City, for the following reasons: (1) Several intelligence reports have been received by the PNP-IG stating that utmost effort will be exerted by the Abu Sayyaf Group (ASG) to recover the custody of

Kunting from the PNP considering his importance to the ASG; and (2) there is a big possibility that Kunting may be recovered by the ASG if he will be detained in Basilan due to inadequate security facility in the municipal jail and its proximity to the area of operation of the ASG.

On August 13, 2004, the RTC rendered a decision against petitioner's co-accused in the consolidated Criminal Case Nos. 3608-1164, 3537-1129, 3674-1187, and 3611-1165, finding 17 of the accused, who were tried, guilty of the crime/s charged.

http://www.chanrobles.com/cralaw/2006aprildecisions.php?id=532#fnt1



Pag

e37

On February 11, 2005, the RTC issued an Order denying Kunting's Motion to Set Case for Preliminary Investigation since the PNP-IG has not turned over Kunting. The trial court reiterated its Order dated September 15, 2003, directing the Police Superintendent and Chief, Legal Affairs Division, PNP-IG, to turn over Kunting to the court.Ï‚Î·Î± Ã±rÎ¿blÎµÅ¡ Î½Î¹râ€ Ï…Î±l lÎ±Ï‰ lÎ¹brÎ± rÃ¿

In a letter dated February 22, 2005, Police Chief Superintendent Ismael R. Rafanan reiterated the request to Chief State Prosecutor Jovencito R. ZuÃ±o to facilitate the transfer of the venue of the trial of Kunting's case, citing the same grounds in the previous letter. He added that if Kunting had been transferred to Isabela City, Basilan, he

could have been one of the escapees in a jail break that occurred on April 10, 2004 as suspected ASG members were able to go scot-free.

On March 15, 2005, Police Inspector Amado L. Barbasa, Jr., OIC, Legal Affairs Division, PNP-IG, filed with the RTC a Motion to Defer

Implementation of the Order dated February 11, 2005, citing, among other grounds, the existence of a pending motion for the transfer of the venue of the trial of Criminal Case No. 3537-1129 against Kunting, which was allegedly filed by the DOJ before this Court. Police Inspector Barbasa prayed that the Order of the RTC dated February 11, 2005, directing the turnover of Kunting to the court, be suspended until the motion for the transfer of venue is resolved.

On March 14, 2005, Kunting, by counsel, filed this petition for the issuance of a writ of habeas corpus. Kunting stated that he has been restrained of his liberty since June 12, 2003 by the PNP-IG led by Police Chief Superintendent Ismael Rafanan and assisted by PNP Intelligence Chief, General Robert Delfin. He alleged that he was never informed of the charges filed against him until he requested his family to research in Zamboanga City. It was discovered in the RTC of Isabela City, Basilan that his name appeared in the list of accused who allegedly participated in the kidnapping incident which occurred on June 2, 2001 in Lamitan, Basilan.

Kunting asserted that he never participated in the kidnapping incident, so he promptly filed an Urgent Motion for Reinvestigation on

September 8, 2003. He was aware that the PNP-IG requested Chief State Prosecutor Jovencito R. ZuÃ±o for representation to file a motion with this Court for the transfer of venue of his case from Isabela City, Basilan to Pasig City. Having no further information on the status of his case, he filed a Motion to Set Case for Preliminary Investigation on January 26, 2005. He stated that since no action was taken by the trial

court or the DOJ, he filed this petition to put an end to his illegal detention classified in the records as "for safekeeping purposes only."

The main issue is whether the petition for habeas corpus can prosper.

Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpusextends to "all case of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person,3 and if found illegal, the court orders the release of the detainee.4 If, however, the detention is proven lawful, then thehabeas corpus proceedings terminate.5

Section 4, Rule 102 of the Rules of Court provides when the writ is not allowed:

SEC. 4. When writ not allowed or discharge authorized. If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judgeor by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of

a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.6

In this case, Kunting's detention by the PNP-IG was under process

issued by the RTC. He was arrested by the PNP by virtue of the alias order of arrest issued by Judge Danilo M. Bucoy, RTC, Branch 2, Isabela City, Basilan. His temporary detention at PNP-IG, Camp Crame, Quezon City, was thus authorized by the trial court.Ï‚Î· Î±Ã±rÎ¿blÎµÅ¡ Î½Î¹râ€ Ï…Î±l lÎ±Ï‰ lÎ¹brÎ± rÃ¿

Moreover, Kunting was charged with four counts of Kidnapping for Ransom and Serious Illegal Detention in Criminal Case Nos. 3608-1164, 3537-1129, 3674-1187, and 3611-1165. In accordance with the last sentence of Section 4 above, the writ cannot be issued and Kunting cannot be discharged since he has been charged with a criminal offense. Bernarte v. Court of Appeals7 holds that "once the







Pag

e38

person detained is duly charged in court, he may no longer question his detention by a petition for the issuance of a writ of habeas corpus."

Nevertheless, this Court notes that the RTC in its Order dated February 11, 2005 reiterated its Order dated September 15, 2003, directing the Police Superintendent and Chief, Legal Affairs Division, PNP-IG, Camp Crame, Quezon City, to turn over Kunting to the court. TThe trial court has been waiting for two years for the PNP-IG to turn over the person of Kunting for the trial of his case. The PNP-IG has delayed the turn over because it is waiting for the DOJ to request for the transfer of venue of the trial of the case from Isabela City, Basilan to Pasig City.

In the absence of evidence that the DOJ has indeed filed a motion for the transfer of venue, In its Comment, the Office of the Solicitor General stated that the PNP-IG is presently awaiting the resolution of the Motion for Transfer of Venue it requested from the DOJ. In this regard, t the Police Chief Superintendent is, therefore, directed to take positive steps towards action on said motion.comply with the Order of the trial court, dated February 11, 2005, to turn over the body of petitioner Kunting to the trial court..

WHEREFORE, the instant petition for habeas corpus is hereby DISMISSED.

No costs.

SO ORDERED.


Pag

e39

THIRD DIVISION

[G.R. NO. 162734 : August 29, 2006

MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO B. SALIENTES, and ROSARIO C. SALIENTES, Petitioners, v. LORAN S.D. ABANILLA, HONORABLE JUDGE PEDRO SABUNDAYO, JR.,

REGIONAL TRIAL COURT, BRANCH 203, MUNTINLUPA CITY, Respondents.

D E C I S I O N

QUISUMBING, J.:

The instant petition assails the Decision 1 dated November 10, 2003 of the Court of Appeals in CA-G.R. SP No. 75680, which dismissed the petition for certiorari against the orders of the Regional Trial Court in Special Proceedings No. 03-004. Likewise assailed is the Court of Appeals' Resolution 2dated March 19, 2004 denying reconsideration.

The facts of the case are as follows:

Private respondent Loran S.D. Abanilla and petitioner Marie Antonette Abigail C. Salientes are the parents of the minor Lorenzo Emmanuel S. Abanilla. They lived with Marie Antonette's parents, petitioners Orlando B. Salientes and Rosario C. Salientes. Due to in-laws problems, private respondent suggested to his wife that they transfer to their own house, but Marie Antonette refused. So, he alone left the house of the Salientes. Thereafter, he was prevented from seeing his son.

Later, Loran S.D. Abanilla in his personal capacity and as the representative of his son, filed a Petition for Habeas Corpus and Custody, 3 docketed as Special Proceedings No. 03-004 before the Regional Trial Court of Muntinlupa City. On January 23, 2003, the trial court issued the following order:

Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the Respondents Marie Antonette Abigail C. Salientes, Orlando B. Salientes and Rosario C. Salientes are hereby directed to produce and bring

before this Court the body of minor Lorenzo Emmanuel Salientes Abanilla on January 31, 2003 at 1:00 o'clock in the afternoon and to show cause why the said child should not be discharged from restraint.

Let this Writ be served by the Sheriff or any authorized representative of this Court, who is directed to immediately make a return.

SO ORDERED.4

Petitioners moved for reconsideration which the court denied.

Consequently, petitioners filed a petition for certiorari with the Court of Appeals, but the same was dismissed on November 10, 2003. The

appellate court affirmed the February 24, 2003 Order of the trial court holding that its January 23, 2003 Order did not award the custody of the 2-year-old child to any one but was simply the standard order issued for the production of restrained persons. The appellate court held that the trial court was still about to conduct a full inquiry, in a summary proceeding, on the cause of the minor's detention and the matter of his custody. The Court of Appeals ruled thus:

WHEREFORE, the petition is hereby DISMISSED for lack of merit.

SO ORDERED.5

Petitioners moved for reconsideration, which was denied on March 19, 2004.

Hence, petitioners interposed this appeal by certiorari anchored on the following grounds:

1. The Court of Appeals erred in not pronouncing the respondent judge gravely abused his discretion, amounting to lack or in excess of jurisdiction in issuing an order for the petitioner-mother to first show cause why her own three-year old child in her custody should not be discharged from a so-called "restraint" despite no evidence at all of restraint and no evidence of compelling reasons of maternal unfitness to deprive the petitioner-mother of her minor son of tender years. The

assailed orders, resolutions and decisions of the lower court and the Court of Appeals are clearly void;

2. The Court of Appeals erred in not pronouncing that the respondent judge gravely abused his discretion in issuing a writ of habeas

corpus which clearly is not warranted considering that there is no unlawful restraint by the mother and considering further that the law presumes the fitness of the mother, thereby negating any notion of







Pag

e40

such mother illegally restraining or confining her very own son of tender years. The petition is not even sufficient in substance to warrant the writ. The assailed orders are clearly void.

3. Contrary to the Court of Appeals decision, the "Sombong v. CA" case supports rather than negates the position of the petitioners.

4. Contrary to the Court of Appeals decision, summary proceeding does violence to the tender-years-rule

5. The Court of Appeals failed to consider that the private respondent failed to present prima facieproof of any compelling reason of the unfitness of the petitioner-mother;

6. The Court of Appeals failed to see that the New Rules on Custody SUFFICES AS REMEDY.6

Plainly put, the issue is: Did the Court of Appeals err when it dismissed the petition for certiorariagainst the trial court's orders dated January 23, 2003 and February 24, 2003?cralawlibra ry

Petitioners contend that the order is contrary to Article 213 7 of the Family Code, which provides that no child under seven years of age shall be separated from the mother unless the court finds compelling

reasons to order otherwise. They maintain that herein respondent Loran had the burden of showing any compelling reason but failed to present even a prima facie proof thereof.

Petitioners posit that even assuming that there were compelling

reasons, the proper remedy for private respondent was simply an action for custody, but not habeas corpus. Petitioners assert thathabeas corpus is unavailable against the mother who, under the law, has the right of custody of the minor. They insist there was no illegal or involuntary restraint of the minor by his own mother. There was no need for the mother to show cause and explain the custody of her very own child.

Private respondent counters that petitioners' argument based on Article 213 of the Family Code applies only to the second part of his petition regarding the custody of his son. It does not address the first part, which pertains to his right as the father to see his son. He asserts that the writ ofhabeas corpus is available against any person who

restrains the minor's right to see his father andvice versa. He avers that the instant petition is merely filed for delay, for had petitioners really intended to bring the child before the court in accordance with the new rules on custody of minors, they would have done so on the dates specified in the January 23, 2003 and the February 24, 2003 orders of the trial court.

Private respondent maintains that, under the law, he and petitioner Marie Antonette have shared custody and parental authority over their son. He alleges that at times when petitioner Marie Antonette is out of the country as required of her job as an international flight

stewardess, he, the father, should have custody of their son and not the maternal grandparents.

As correctly pointed out by the Court of Appeals, the assailed January 23, 2003 Order of the trial court did not grant custody of the minor to

any of the parties but merely directed petitioners to produce the minor in court and explain why they are restraining his liberty. The assailed order was an interlocutory order precedent to the trial court's full inquiry into the issue of custody, which was still pending before it.

Under Rule 41, Section 1 8 of the Rules of Court, an interlocutory order is not appealable but the aggrieved party may file an appropriate special action under Rule 65. The aggrieved party must show that the court gravely abused its discretion in issuing the interlocutory order. In the present case, it is incumbent upon petitioners to show that the trial court gravely abused its discretion in issuing the order.

Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto.9 Under Article 211 10 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.11 Hence, the remedy of habeas corpusis available to him.

In a petition for habeas corpus, the child's welfare is the supreme consideration. The Child and Youth Welfare Code 12 unequivocally









Pag

e41

provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration.13

Again, it bears stressing that the order did not grant custody of the minor to any of the parties but merely directed petitioners to produce the minor in court and explain why private respondent is prevented from seeing his child. This is in line with the directive in Section 9 14 of A.M. 03-04-04-SC15 that within fifteen days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order requiring the respondent (herein petitioners) to present the minor before the court. This was exactly what the court did.

Moreover, Article 213 of the Family Code deals with the judicial adjudication of custody and serves as a guideline for the proper award of custody by the court. Petitioners can raise it as a counter argument for private respondent's petition for custody. But it is not a basis for

preventing the father to see his own child. Nothing in the said provision disallows a father from seeing or visiting his child under seven years of age.

In sum, the trial court did not err in issuing the orders dated January

23, 2003 and February 24, 2003. Hence, the Court of Appeals properly dismissed the petition for certiorari against the said orders of the trial court.

WHEREFORE, the petition is DENIED. The Decisiondated November

10, 2003 and the Resolutiondated March 19, 2004 of the Court of Appeals in CA-G.R. SP No. 75680 are AFFIRMED. Costs against petitioners.

SO ORDERED.




spec pro may 2 full cases

Documents