61568099 writ of habeas corpus and writ of amparo

7/28/2019 61568099 Writ of Habeas Corpus and Writ of Amparo

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WRIT OF HABEAS DATA

[A.M. No. 08-1-16-SCdated 22 January 2008. This Resolution shall take effect on February 2,2008 following its publication in three (3) newspapers of general circulation.]

SECTION 1.Habeas Data. The writ of habeas data is a remedy available to any person whoseright to privacy in life, liberty or security is violated or threatened by an unlawful act or omission

of a public official or employee, or of a private individual or entity engaged in the gathering,collecting or storing of data or information regarding the person, family, home and

correspondence of the aggrieved party.

SEC. 2.Who May File. -Any aggrieved party may file a petition for the writ of habeas data.However, in cases of extralegal killings and enforced disappearances, the petition may be filed

by:

(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children

and parents; or(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civildegree of consanguinity or affinity, in default of those mentioned in the preceding paragraph.

SEC. 3.Where to File. The petition may be filed with the Regional Trial Court where thepetitioner or respondent resides, or that which has jurisdiction over the place where the data or

information is gathered, collected or stored, at the option of the petitioner.

The petition may also be filed with the Supreme Court or the Court of Appeals or theSandiganbayan when the action concerns public data files of government offices.

SEC. 4.Where Returnable; Enforceable. When the writ is issued by a Regional Trial Court orany judge thereof, it shall be returnable before such court or judge.

When issued by the Court of Appeals orthe Sandiganbayan orany ofits justices, it may be

returnable before such court or any justice thereof, or to any Regional Trial Court of the placewhere the petitioner or respondent resides, or that which has jurisdiction over the place where the

data or information is gathered, collected or stored.

When issued by the Supreme Court or any ofits justices, it may be returnable before suchCourt or any justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its

justices, or to any Regional Trial Court of the place where the petitioner or respondent resides, or

that which has jurisdiction over the place where the data or information is gathered, collected orstored.

The writ of habeas data shall be enforceable anywhere in the Philippines.

SEC. 5.Docket Fees. No docket and other lawful fees shall be required from an indigent

petitioner. The petition of the indigent shall be docketed and acted upon immediately, without


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prejudice to subsequent submission of proof of indigency not later than fifteen (15) days fromthe filing of the petition.

SEC. 6.Petition. A verified written petition for a writ of habeas data should contain:

(a) The personal circumstances of the petitioner and the respondent;

(b) The manner the right to privacy is violated or threatened and how it affects the right to life,liberty or security of the aggrieved party;

(c) The actions and recourses taken by the petitioner to secure the data or information;

(d) The location of the files, registers or databases, the government office, and the person in

charge, in possession or in control of the data or information, if known;

(e) The reliefs prayed for, which may include the updating, rectification, suppression or

destruction of the database or information or files kept by the respondent.

In case of threats, the relief may include a prayer for an order enjoining the act complained of;and

(f) Such other relevant reliefs as are just and equitable.

SEC. 7Issuance of the Writ. Upon the filing of the petition, the court, justice or judge shallimmediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall

issue the writ under the seal of the court and cause it to be served within three (3) days from itsissuance; or in case of urgent necessity, the justice or judge may issue the writ under his or her

own hand, and may deputize any officer or person to serve it.

The writ shall also set the date and time for summary hearing of the petition which shall not belater than ten (10) work days from the date of its issuance.

SEC. 8.Penalty for Refusing to Issue or Serve the Writ. A clerk of court who refuses to issue

the writ after its allowance, or a deputized person who refuses to serve the same, shall bepunished by the court, justice or judge for contempt without prejudice to other disciplinary

actions.

SEC. 9.How the Writ Is Served. The writ shall be served upon the respondent by the officer or

person deputized by the court, justice or judge who shall retain a copy on which to make a returnof service. In case the writ cannot be served personally on the respondent, the rules on

substituted service shall apply.

SEC. 10.Return; Contents. The respondent shall file a verified written return together withsupporting affidavits within five (5) work days from service of the writ, which period may be

reasonably extended by the Court for justifiable reasons. The return shall, among other things,contain the following:


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(a) The lawful defenses such as national security, state secrets, privileged communication,confidentiality of the source of information of media and others;

(b) In case of respondent in charge, in possession or in control of the data or information subject

of the petition:

(i) a disclosure of the data or information about the petitioner, the nature of such data orinformation, and the purpose for its collection;

(ii) the steps or actions taken by the respondent to ensure the security and confidentiality of thedata or information; and

(iii) the currency and accuracy of the data or information held; and

(c) Other allegations relevant to the resolution of the proceeding.

A general denial of the allegations in the petition shall not be allowed.

SEC. 11.Contempt. The court, justice or judge may punish with imprisonment or fine a

respondent who commits contempt by making a false return, or refusing to make a return; or anyperson who otherwise disobeys or resists a lawful process or order of the court.

SEC. 12.When Defenses May Be Heard in Chambers. A hearing in chambers may be

conducted where the respondent invokes the defense that the release of the data or information inquestion shall compromise national security or state secrets, or when the data or information

cannot be divulged to the public due to its nature or privileged character.

SEC. 13.ProhibitedPleadings and Motions. The following pleadings and motions are

prohibited:

(a) Motion to dismiss;(b) Motion for extension of time to file opposition, affidavit, position paper and other pleadings;

(c) Dilatory motion for postponement;(d) Motion for a bill of particulars;

(e) Counterclaim or cross-claim;(f) Third-party complaint;

(g) Reply;(h) Motion to declare respondent in default;

(i) Intervention;

(j) Memorandum;(k) Motion for reconsideration of interlocutory orders or interim relief orders; and(l) Petition forcertiorari, mandamus or prohibition against any interlocutory order.

SEC. 14.Return; Filing. In case the respondent fails to file a return, the court, justice or judge

shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition maywarrant unless the court in its discretion requires the petitioner to submit evidence.


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SEC. 15.Summary Hearing. The hearing on the petition shall be summary. However, the court,justice or judge may call for a preliminaryconference to simplify the issues and determine the

possibility of obtaining stipulations and admissions from the parties.

SEC. 16.Judgment. The court shall render judgment within ten (10) days from the time the

petition is submitted for decision. If the allegations in the petition are proven by substantialevidence, the court shall enjoin the act complained of, or order the deletion, destruction, orrectification of the erroneous data or information and grant other relevant reliefs as may be just

and equitable; otherwise, the privilege of the writ shall be denied.

Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may bedesignated by the court, justice or judge within five (5) work days.

SEC. 17.Return of Service. The officer who executed the final judgment shall, within three (3)days from its enforcement, make a verified return to the court. The return shall contain a full

statement of the proceedings under the writ and a complete inventory of the database or

information, or documents and articles inspected, updated, rectified, or deleted, with copiesserved on the petitioner and the respondent.

The officer shall state in the return how the judgment was enforced and complied with by therespondent, as well as all objections of the parties regarding the manner and regularity of the

service of the writ.

SEC. 18.Hearing on Officers Return. The court shall set the return for hearing with due noticeto the parties and act accordingly.

SEC. 19.Appeal. Any party may appeal from the judgment or final order to the Supreme Court

under Rule 45. The appeal may raise questions of fact or law or both.

The period of appeal shall be five (5) work days from the date of notice of the judgment or final

order.

The appeal shall be given the same priority as habeas corpus and amparo cases.

SEC. 20.Institution of Separate Actions. The filing of a petition for the writ of habeas data shall

not preclude the filing of separate criminal, civil or administrative actions.

SEC. 21.Consolidation. When a criminal action is filed subsequent to the filing of a petition for

the writ, the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of

habeas data, the petition shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to govern the disposition of the

reliefs in the petition.


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SEC. 22.Effect of Filing of a Criminal Action. When a criminal action has been commenced,no separate petition for the writ shall be filed. The reliefs under the writ shall be available to an

aggrieved party by motion in the criminal case.

The procedure under this Rule shall govern the disposition of the reliefs available under the writ

ofhabeas data.

SEC. 23.Substantive Rights. This Rule shall not diminish, increase or modify substantive

rights.

SEC. 24.Suppletory Application of the Rules of Court. The Rules of Court shall apply

suppletorily insofar as it is not inconsistent with this Rule.

SEC. 25.Effectivity. This Rule shall take effect on February 2, 2008 following its publication inthree (3) newspapers of general circulation.

Whatis the writ of habeas data?

It is a remedy available to any person whose right to privacy in life, liberty or security is violated

or threatened by an unlawful act or omission of a public official or employee, or of a privateindividual or entity engaged in the gathering, collecting or storing of data or information

regarding the person, family, home and correspondence of the aggrieved party.

Whatrule governs petitions for and the issuance of a writ of habeas data?

It is governed by The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC full text), whichwas approved by the Supreme Court on 22 January 2008. That Rule shall not diminish, increaseor modify substantive rights.

Whatis the Supreme Courts basis in issuingthe Rule?

The Rule was drafted pursuant to the Supreme Courts constitutional power to promulgate

rules for the protection and enforcement of constitutional rights (Constitution, Art. VIII, Sec.5[5]).

When does the Rule take effect?

The Rule takes effect on 2 February 2008, following its publication in three (3) newspapers ofgeneral circulation.

Who may file a petition forthe issuance of a writ of habeas data?

The petition may be filed by the aggrieved party. However, in cases of extralegal killings andenforced disappearances, the petition may be filed by:


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(a) Any member of the immediate family of the aggrieved party, namely: the spouse, childrenand parents; or

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civildegree of consanguinity or affinity, in default of those mentioned in the preceding paragraph.

Where can the petition be filed?

a. Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction

over the place where the data or information is gathered, collected or stored, at the option of thepetitioner.

b. Supreme Court;c. Court of Appeals; or

d. Sandiganbayan, when the action concerns public data files of government offices.

How much is the docket or filing fees forthe petition?

No docket and other lawful fees shall be required from an indigent petitioner. The petition of theindigent shall be docketed and acted upon immediately, without prejudice to subsequentsubmission of proof of indigency not later than 15 days from the filing of the petition.

What are the required contents ofthe petition?

The verified written petition shall allege the following:

(a) The personal circumstances of the petitioner and the respondent;

(b) The manner the right to privacy is violated or threatened and how it affects the right to life,

liberty or security of the aggrieved party;

(c) The actions and recourses taken by the petitioner to secure the data or information;

(d) The location of the files, registers or databases, the government office, and the person incharge, in possession or in control of the data or information, if known;

(e) The reliefs prayed for, which may include the updating, rectification, suppression or

destruction of the database or information or files kept by the respondent. In case of threats, therelief may include a prayer for an order enjoining the act complained of; and

(f) Such other relevant reliefs as are just and equitable.

When is the writ of habeas data issued?

Upon the filing of the petition, the court, justice or judge shall immediately order the issuance ofthe writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the

court and cause it to be served within three (3) days from its issuance; or, in case of urgentnecessity, the justice or judge may issue the writ under his or her own hand, and may deputize


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any officer or person to serve it. The writ shall also set the date and time for summary hearing ofthe petition which shall not be later than ten (10) work days from the date of its issuance.

Is there any penalty in case ofrefusal to issue or serve the writ?

Yes. A clerk of court who refuses to issue the writ after its allowance, or a deputized person whorefuses to serve the same, shall be punished by the court, justice or judge for contempt withoutprejudice to other disciplinary actions.

Howis the writ of habeas data served?

The writ shall be served upon the respondent by the officer or person deputized by the court,justice or judge who shall retain a copy on which to make a return of service. In case the writ

cannot be served personally on the respondent, the rules on substituted service shall apply.

Afterthe writis served, what should the respondent do?

The respondent shall file a verified written return together with supporting affidavits within five

(5) work days from service of the writ, which period may be reasonably extended by the Courtfor justifiable reasons.

What are the contents ofthe written return?

The return shall, among other things, contain the following:

(a) The lawful defenses such as national security, state secrets, privileged communication,confidentiality of the source of information of media and others;

(b) In case of respondent in charge, in possession or in control of the data or information subject

of the petition:

(i) a disclosure of the data or information about the petitioner, the nature of such data orinformation, and the purpose for its collection;

(ii) the steps or actions taken by the respondent to ensure the security and confidentiality of thedata or information; and

(iii) the currency and accuracy of the data or information held; and

(c) Other allegations relevant to the resolution of the proceeding.



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What happens ifthe respondent makes a false return orrefuses to make a return; orif anyperson who disobeys orresists a lawful process or order ofthe court?

That person may be punished with imprisonment or fine.

Also, when the respondent fails to file a return, the court, justice or judge shall proceed to hearthe petition ex parte, granting the petitioner such relief as the petition may warrant unless thecourt in its discretion requires the petitioner to submit evidence.

Instead of havingthe hearingin open court, can it be done in chambers?

Yes. It can be done when the respondent invokes the defense that the release of the data orinformation in question shall compromise national security or state secrets, or when the data or

information cannot be divulged to the public due to its nature or privileged character.

Whatis the nature ofthe hearing on the petition?

The hearing on the petition shall be summary. However, the court, justice or judge may call for apreliminary conference to simplify the issues and determine the possibility of obtaining

stipulations and admissions from the parties.

How long does the court have in decidingthe petition?

The court shall render judgment within ten (10) days from the time the petition is submitted for

decision. If the allegations in the petition are proven by substantial evidence, the court shallenjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous

data or information and grant other relevant reliefs as may be just and equitable; otherwise, the

privilege of the writ shall be denied.

What happens afterthe finality ofthe judgment?

Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may bedesignated by the court, justice or judge within five (5) work days.

The officer who executed the final judgment shall, within three (3) days from its enforcement,

make a verified return to the court. The return shall contain a full statement of the proceedingsunder the writ and a complete inventory of the database or information, or documents and

articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the

respondent.

The officer shall state in the return how the judgment was enforced and complied with by the

respondent, as well as all objections of the parties regarding the manner and regularity of theservice of the writ.

The court shall set the return for hearing with due notice to the parties and act accordingly.


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Does the filing ofthe petition preclude the filing of separate criminal, civil oradministrative actions?

No. However, when a criminal action has been commenced, no separate petition for the writ

shall be filed, but the reliefs under the writ shall be available by motion in the criminal case, and

the procedure under this Rule shall govern the disposition of the reliefs available under the writof habeas data.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ ofhabeas data, the petition shall be consolidated with the criminal action. After consolidation, the

procedure under this Rule shall continue to govern the disposition of the reliefs in the petition.

Whatis the difference between writ of habeas corpus and writ of amparo,

then give a differentiating example?

Habeas corpus is a Latin phrase which literally means you have the body. Basically, it is a

writ directed to the person detaining another, commanding him to produce the body of theprisoner at a designated time and place, with the day and cause of his capture and detention, to

do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in thatbehalf.

The Writs of Amparo and Habeas Data areprerogative writs to supplement the inefficacy of

Philippine habeas corpus (Rule 102, Revised Rules of Court). Amparo means protection, whilehabeas data is access to information. Both writs were conceived to solve the extensive Philippine

extrajudicial killings and forced disappearances since 1999.[1]

On July 16, 2007, Philippine Chief Justice Reynato Puno and Justice Adolfo Azcuna officially

declared the legal conception of the Philippine Writ of Amparo "Recurso de Amparo", at thehistoric Manila Hotel National Summit on Extrajudicial Killings and EnforcedDisappearances.[2][3]

On August 25, 2007, Reynato Puno (at the College of Law ofSilliman University in Dumaguete

City) declared the legal conception of amparo's twin, the supplemental Philippine Habeas Data.Puno by judicial fiat proclaimed the legal birth of these twin peremptory writs on October, 2007,

as his legacy to the Filipino nation. Puno admitted the inefficacy of Habeas Corpus, under Rule102, Rules of Court, since government officers repeatedly failed to produce the body upon mere

submission of the defense of alibi.

By invoking the truth, Habeas Data will not only compel military and government agents torelease information about the desaparecidos but require access to military and police files.Reynato Puno's writ of amparo -- Spanish for protection -- will bar military officers in judicial

proceedings to issue denial answers regarding petitions on disappearances or extrajudicialexecutions, which were legally permitted in Habeas corpus proceedings.[4]

The Supreme Court of the Philippines announced that the draft guidelines (Committee onRevision of Rules) for the writ of amparo were approved on September 23, to be deliberated by

the En Banc Court on September 25.


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(The Supreme Court already approved the Rule on the Writ of Amparo [A.M. No. 07-9-12-SC, 25September 2007], which is a remedy available to any person whose right to life, liberty, and

security has been violated or is threatened with violation by an unlawful act or omission of apublic official or employee, or of a private individual or entity. Ittook effect on 24 October

2007.)

THE RULE ON THE WRIT OF AMPARO

SECTION 1.Petition. The petition for a writ of amparo is a remedy available to any person

whose right to life, liberty and security is violated or threatened with violation by an unlawful actor omission of a public official or employee, or of a private individual or entity. The writ shall

cover extralegal killings and enforced disappearances or threats thereof.

SEC. 2.Who May File. The petition may be filed by the aggrieved party or by any qualifiedperson or entity in the following order:

(a) Any member of the immediate family, namely: the spouse, children and parents of theaggrieved party;

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil

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

(c) Any concerned citizen, organization, association or institution, if there is no known memberof the immediate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to

file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of theaggrieved party suspends the right of all others, observing the order established herein.

SEC. 3.Where to File. The petition may be filed on any day and at any time with theRegional Trial Court of the place where the threat, act or omission was committed or any of its

elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or anyjustice of such courts. The writ shall be enforceable anywhere in the Philippines.

When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before

such court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may bereturnable before such court or any justice thereof, or to any Regional Trial Court of the placewhere the threat, act or omission was committed or any of its elements occurred.

When issued by the Supreme Court or any of its justices, it may be returnable before such Court

or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of theirjustices, or to any Regional Trial Court of the place where the threat, act or omission was

committed or any of its elements occurred.


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SEC. 4.No Docket Fees. The petitioner shall be exempted from the payment of the docketand other lawful fees when filing the petition. The court, justice or judge shall docket the petition

and act upon it immediately.

SEC. 5.Contents ofPetition. The petition shall be signed and verified and shall allege the

following:

(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat, act oromission, or, if the name is unknown or uncertain, the respondent may be described by an

assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened withviolation by an unlawful act or omission of the respondent, and how such threat or violation is

committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, andaddresses of the investigating authority or individuals, as well as the manner and conduct of the

investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the

aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for the petition may include a general prayer for other just and equitablereliefs.

SEC

. 6.Issuance of theW

rit. Upon the filing of the petition, the court, justice or judge shallimmediately order the issuance of the writ if on its face it ought to issue. The clerk of court shallissue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge

may issue the writ under his or her own hand, and may deputize any officer or person to serve it.

The writ shall also set the date and time for summary hearing of the petition which shall not be

later than seven (7) days from the date of its issuance.

SEC. 7.Penalty for Refusing to Issue or Serve the Writ. A clerk of court who refuses to issuethe writ after its allowance, or a deputized person who refuses to serve the same, shall be

punished by the court, justice or judge for contempt without prejudice to other disciplinary

actions.

SEC. 8.How the Writ is Served. The writ shall be served upon the respondent by a judicial

officer or by a person deputized by the court, justice or judge who shall retain a copy on which tomake a return of service. In case the writ cannot be served personally on the respondent, the rules

on substituted service shall apply.


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SEC. 9.Return Contents. Within seventy-two (72) hours after service of the writ, therespondent shall file a verified written return together with supporting affidavits which shall,

among other things, contain the following:

(a) The lawful defenses to show that the respondent did not violate or threaten with violation the

right to life, liberty and security of the aggrieved party, through any act or omission;

(b) The steps or actions taken by the respondent to determine the fate or whereabouts of the

aggrieved party and the person or persons responsible for the threat, act or omission;

(c) All relevant information in the possession of the respondent pertaining to the threat, act or

omission against the aggrieved party; and

(d) If the respondent is a public official or employee, the return shall further state the actions thathave been or will still be taken:

(i) to verify the identity of the aggrieved party;(ii) to recover and preserve evidence related to the death or disappearance of the personidentified in the petition which may aid in the prosecution of the person or persons responsible;

(iii) to identify witnesses and obtain statements from them concerning the death ordisappearance;

(iv) to determine the cause, manner, location and time of death or disappearance as well as anypattern or practice that may have brought about the death or disappearance;

(v) to identify and apprehend the person or persons involved in the death or disappearance; and(vi) to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and the

prosecution of the case.


SEC. 10.Defenses notPleaded DeemedWaived. All defenses shall be raised in the return,

otherwise, they shall be deemed waived.

SEC. 11.ProhibitedPleadings and Motions. The following pleadings and motions are

prohibited:

(a) Motion to dismiss;

(b) Motion for extension of time to file return, opposition, affidavit, position paper and otherpleadings;(c) Dilatory motion for postponement;

(d) Motion for a bill of particulars;(e) Counterclaim or cross-claim;

(f) Third-party complaint;(g) Reply;

(h) Motion to declare respondent in default;


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(i) Intervention;(j) Memorandum;

(k) Motion for reconsideration of interlocutory orders or interim relief orders; and(l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

SEC

. 12.Effect of Failure to File Return. In case the respondent fails to file a return, thecourt, justice or judge shall proceed to hear the petition ex parte.

SEC. 13.Summary Hearing. The hearing on the petition shall be summary. However, thecourt, justice or judge may call for a preliminary conference to simplify the issues and determine

the possibility of obtaining stipulations and admissions from the parties.

The hearing shall be from day to day until completed and given the same priority as petitions for

habeas corpus.

SEC. 14.Interim Reliefs. Upon filing of the petition or at anytime before final judgment, the

court, justice or judge may grant any of the following reliefs:

(a) Temporary Protection Order. The court, justice or judge, upon motion or motuproprio,

may order that the petitioner or the aggrieved party and any member of the immediate family beprotected in a government agency or by an accredited person or private institution capable of

keeping and securing their safety. If the petitioner is an organization, association or institutionreferred to in Section 3(c) of this Rule, the protection may be extended to the officers involved.

The Supreme Court shall accredit the persons and private institutions that shall extend temporaryprotection to the petitioner or the aggrieved party and any member of the immediate family, in

accordance with guidelines which it shall issue.

The accredited persons and private institutions shall comply with the rules and conditions thatmay be imposed by the court, justice or judge.

(b)Inspection Order. The court, justice or judge, upon verified motion and after due hearing,

may order any person in possession or control of a designated land or other property, to permitentry for the purpose of inspecting, measuring, surveying, or photographing the property or any

relevant object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by

affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance

or whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the

information, the court, justice or judge may conduct a hearing in chambers to determine the meritof the opposition.

The movant must show that the inspection order is necessary to establish the right of the

aggrieved party alleged to be threatened or violated.


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The inspection order shall specify the person or persons authorized to make the inspection andthe date, time, place and manner of making the inspection and may prescribe other conditions to

protect the constitutional rights of all parties. The order shall expire five (5) days after the date ofits issuance, unless extended for justifiable reasons.

(c)P

roduction Order. The court, justice or judge, upon verified motion and after duehearing, may order any person in possession, custody or control of any designated documents,papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or

electronic form, which constitute or contain evidence relevant to the petition or the return, toproduce and permit their inspection, copying or photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or of the privileged nature of the

information, in which case the court, justice or judge may conduct a hearing in chambers todetermine the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional rights of

all the parties.

(d) Witness Protection Order. The court, justice or judge, upon motion or motuproprio, may

refer the witnesses to the Department of Justice for admission to the Witness Protection, Securityand Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also

refer the witnesses to other government agencies, or to accredited persons or private institutionscapable of keeping and securing their safety.

SEC. 15.Availability of Interim Reliefs to Respondent. Upon verified motion of the

respondent and after due hearing, the court, justice or judge may issue an inspection order orproduction order under paragraphs (b) and (c) of the preceding section.

A motion for inspection order under this section shall be supported by affidavits or testimoniesof witnesses having personal knowledge of the defenses of the respondent.

SEC. 16.Contempt. The court, justice or judge may order the respondent who refuses to

make a return, or who makes a false return, or any person who otherwise disobeys or resists alawful process or order of the court to be punished for contempt. The contemnor may be

imprisoned or imposed a fine.

SEC. 17.Burden ofProof and Standard of Diligence Required. The parties shall establishtheir claims by substantial evidence. The respondent who is a private individual or entity must

prove that ordinary diligence as required by applicable laws, rules and regulations was observedin the performance of duty. The respondent who is a public official or employee must prove that

extraordinary diligence as required by applicable laws, rules and regulations was observed in theperformance of duty. The respondent public official or employee cannot invoke the presumption

that official duty has been regularly performed to evade responsibility or liability.

SEC. 18.Judgment. The court shall render judgment within ten (10) days from the time the

petition is submitted for decision. If the allegations in the petition are proven by substantial


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evidence, the court shall grant the privilege of the writ and such reliefs as may be proper andappropriate; otherwise, the privilege shall be denied.

SEC. 19.Appeal. Any party may appeal from the final judgment or order to the Supreme

Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal

shall be five (5) working days from the date of notice of the adverse judgment. The appeal shallbe given the same priority as in habeas corpus cases.

SEC. 20.Archiving and Revival of Cases. The court shall not dismiss the petition, but shallarchive it, if upon its determination it cannot proceed for a valid cause such as the failure of

petitioner or witnesses to appear due to threats on their lives.

A periodic review of the archived cases shall be made by the amparo court that shall,

motuproprio or upon motion by any party, order their revival when ready for further proceedings.The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of

two (2) years from notice to the petitioner of the order archiving the case.

The clerks of court shall submit to the Office of the Court Administrator a consolidated list ofarchived cases under this Rule not later than the first week of January of every year.

SEC. 21.Institution of Separate Actions. This Rule shall not preclude the filing of separate

criminal, civil or administrative actions.

SEC. 22.Effect of Filing of a Criminal Action. When a criminal action has been commenced,

no separate petition for the writ shall be filed. The reliefs under the writ shall be available bymotion in the criminal case.

The procedure under this Rule shall govern the disposition of the reliefs available under the writof amparo.

SEC. 23.Consolidation. When a criminal action is filed subsequent to the filing of a petitionfor the writ, the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ ofamparo, the latter shall be consolidated with the criminal action. After consolidation, the

procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

SEC. 24.Substantive Rights. This Rule shall not diminish, increase or modify substantive

rights recognized and protected by the Constitution.

SEC. 25.Suppletory Application of theRules of Court. The Rules of Court shall apply

suppletorily insofar as it is not inconsistent with this Rule.

SEC. 26.Applicability to Pending Cases. This Rule shall govern cases involving extralegal

killings and enforced disappearances or threats thereof pending in the trial and appellate courts.


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SEC. 27.Effectivity. This Rule shall take effect on October 24, 2007, following its publicationin three (3) newspapers of general circulation.

Whatis the writ of amparo?

It is a remedy available to any person whose right to life, liberty, and security has been violatedor is threatened with violation by an unlawful act or omission of a public official or employee, or

of a private individual or entity. The writ covers extralegal killings and enforced disappearancesor threats thereof.

Whatrule governs petitions for and the issuance of a writ of amparo?

It is governed by The Rule on the Writ of Amparo (A.M. No. 07-9-12-SC full text), which wasapproved by the Supreme Court on 25 September 2007. This Rule also governs existing cases

involving extralegal killings and enforced disappearances or threats thereof.

Whatis the Supreme Courts basis in issuingthe Rule?

The Rule was drafted pursuant to the Supreme Courts constitutional power to promulgaterules for the protection and enforcement of constitutional rights (Constitution, Art. VIII, Sec.

5[5]).

When does the Rule take effect?

The Rule takes effect on 24 October 2007, following its publication in three (3) newspapers of

general circulation.

Who may file a petition forthe issuance of a writ of amparo?

The petition may be filed by the aggrieved party or by any qualified person or entity in the

following order:

(a) Any member of the immediate family, namely: the spouse, children and parents of theaggrieved party;

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civildegree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or

(c) Any concerned citizen, organization, association or institution, if there is no known memberof the immediate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other authorized parties tofile similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the

aggrieved party suspends the right of all others, observing the order established herein.


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Where can the petition be filed?

The petition may be filed on any day and at any time with the Regional Trial Court of the placewhere the threat, act or omission was committed or any of its elements occurred, or with the

Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ

shall be enforceable anywhere in the Philippines.

When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before

such court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be

returnable before such court or any justice thereof, or to any Regional Trial

Court of the place where the threat, act or omission was committed or any of its elementsoccurred.

When issued by the Supreme Court or any of its justices, it may be returnable before such Courtor any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of theirjustices, or to any Regional Trial Court of the place where the threat, act or omission was

committed or any of its elements occurred.

How much is the docket or filing fees forthe petition?

There is NO docket and other lawful fees for the petition. The court, justice or judge shall docket

the petition and act upon it immediately.

What are the required contents ofthe petition?

The petition shall be signed and verified and shall allege the following:

(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat, act or

omission, or, if the name is unknown or uncertain, the respondent may be described by anassumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened withviolation by an unlawful act or omission of the respondent, and how such threat or violation is

committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, andaddresses of the investigating authority or individuals, as well as the manner and conduct of the

investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of theaggrieved party and the identity of the person responsible for the threat, act or omission; and


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(f) The relief prayed for the petition may include a general prayer for other just and equitablereliefs.

When is the writ of amparo issued?

Upon the filing of the petition, the court, justice or judge shall immediately order the issuance ofthe writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of thecourt; or in case of urgent necessity, the justice or the judge may issue the writ under his or her

own hand, and may deputize any officer or person to serve it. The writ shall also set the date andtime for summary hearing of the petition which shall not be later than seven (7) days from the

date of its issuance.

Is there any penalty in case ofrefusal to issue or serve the writ?

Yes. A clerk of court who refuses to issue the writ after its allowance, or a deputized person who

refuses to serve the same, shall be punished by the court, justice or judge for contempt without

prejudice to other disciplinary actions.

Howis the writ of amparo served?

The writ is served on the respondent by a judicial officer or by a person deputized by the court,justice or judge who shall retain a copy on which to make a return of service. In case the writ

cannot be served personally on the respondent, the rules on substituted service shall apply.

Afterthe writis served, what should the respondent do?

Within seventy-two (72) hours after service of the writ, the respondent shall file a verified

written return together with supporting affidavits which shall, among other things, contain thefollowing:

(a) The lawful defenses to show that the respondent did not violate or threaten with violation the

right to life, liberty and security of the aggrieved party, through any act or omission;

(b) The steps or actions taken by the respondent to determine the fate or whereabouts of theaggrieved party and the person or persons responsible for the threat, act or omission;

(c) All relevant information in the possession of the respondent pertaining to the threat, act or

omission against the aggrieved party; and

(d) If the respondent is a public official or employee, the return shall further state the actions that

have been or will still be taken:

(i) to verify the identity of the aggrieved party;(ii) to recover and preserve evidence related to the death or disappearance of the person

identified in the petition which may aid in the prosecution of the person or persons responsible;(iii) to identify witnesses and obtain statements from them concerning the death or


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disappearance;(iv) to determine the cause, manner, location and time of death or disappearance as well as any

pattern or practice that may have brought about the death or disappearance;(v) to identify and apprehend the person or persons involved in the death or disappearance; and

(vi) to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and theprosecution of the case. A general denial of the allegations in the petition shall not be allowed.

All defenses shall be raised in the return, otherwise, they shall be deemed waived.

What happens ifthe respondent fails to file return?

The court, justice or judge shall proceed to hear the petition ex parte or even without the

appearance of the respondent.

Whatis the nature ofthe hearing on the petition?

The hearing on the petition shall be summary. However, the court, justice or judge may call for apreliminary conference to simplify the issues and determine the possibility of obtaining

stipulations and admissions from the parties. The hearing shall be from day to day untilcompleted and given the same priority as petitions for habeas corpus.

What are the interim reliefs available to the petitioner?

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

(a) TemporaryP

rotection Order. The court, justice or judge, upon motion ormotuproprio,may order that the petitioner or the aggrieved party and any member of the immediate family beprotected in a government agency or by an accredited person or private institution capable of

keeping and securing their safety. If the petitioner is an organization, association or institutionreferred to in Section 3(c) of the Rule, the protection may be extended to the officers involved.

The Supreme Court shall accredit the persons and private institutions that shall extend temporaryprotection to the petitioner or the aggrieved party and any member of the immediate family, in

accordance with guidelines which it shall issue. The accredited persons and private institutionsshall comply with the rules and conditions that may be imposed by the court, justice or judge.

(b)Inspection Order. The court, justice or judge, upon verified motion and after due hearing,

may order any person in possession or control of a designated land or other property, to permitentry for the purpose of inspecting, measuring, surveying, or photographing the property or anyrelevant object or operation thereon. The motion shall state in detail the place or places to be

inspected. It shall be supported by affidavits or testimonies of witnesses having personalknowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is

opposed on the ground of national security or of the privileged nature of the information, thecourt, justice or judge may conduct a hearing in chambers to determine the merit of the

opposition. The movant must show that the inspection order is necessary to establish the right of


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the aggrieved party alleged to be threatened or violated. The inspection order shall specify theperson or persons authorized to make the inspection and the date, time, place and manner of

making the inspection and may prescribe other conditions to protect the constitutional rights ofall parties. The order shall expire five (5) days after the date of its issuance, unless extended for

justifiable reasons.

(c) Production Order. The court, justice or judge, upon verified motion and after duehearing, may order any person in possession, custody or control of any designated documents,

papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized orelectronic form, which constitute or contain evidence relevant to the petition or the return, to

produce and permit their inspection, copying or photographing by or on behalf of the movant.The motion may be opposed on the ground of national security or of the privileged nature of the

information, in which case the court, justice or judge may conduct a hearing in chambers todetermine the merit of the opposition. The court, justice or judge shall prescribe other conditions

to protect the constitutional rights of all the parties.

(d)W

itnessP

rotection Order. The court, justice or judge, upon motion ormotuproprio, mayrefer the witnesses to the Department of Justice for admission to the Witness Protection, Security

and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may alsorefer the witnesses to other government agencies, or to accredited persons or private institutions

capable of keeping and securing their safety.

Are these interim reliefs also available to the respondent?

Yes, but only the interim reliefs ofInspection Orderand the Production Order. These interim

orders may be issued only after a verified motion is filed by the respondent, supported byaffidavits or testimonies of witnesses having personal knowledge of the defenses of the

respondent, and after due hearing.

Whatis the required burden of proof?

The parties shall establish their claims by substantial evidence. The respondent who is a private

individual or entity must prove that ordinary diligence as required by applicable laws, rules andregulations was observed in the performance of duty. The respondent who is a public official or

employee must prove that extraordinary diligence as required by applicable laws, rules andregulations was observed in the performance of duty.

Can the respondentinvoke the legal presumption (Rules ofCourt, Rule 131, Sec. 3[m]) that

official duty has been regularly performed?

No. The respondent public official or employee cannot invoke the presumption that official dutyhas been regularly performed to evade responsibility or liability.


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How long does the court have in decidingthe petition?

The court shall render judgment within ten (10) days from the time the petition is submitted fordecision. If the allegations in the petition are proven by substantial evidence, the court shall grant

the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the

privilege shall be denied.

What happens ifthe court determines thatitcannot proceed for a valid cause, such as the

failure of petitioner orwitnesses to appear due to threats on their lives?

The court shall not dismiss the petition, but shall archive it. The amparo court may, on its own orupon motion by any party, order the revival of the petition when ready for further proceedings.

The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse oftwo (2) years from notice to the petitioner of the order archiving the case.

Does the filing ofthe petition preclude the filing of separate criminal, civil or

administrative actions?

No. However, when a criminal action has been commenced, no separate petition for the writ

shall be filed, but the reliefs under the writ shall be available by motion in the criminal case, andthe procedure under this Rule shall govern the disposition of the reliefs available under the writ

of amparo.

When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shallbe consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of

amparo, the latter shall be consolidated with the criminal action. After consolidation, theprocedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.


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Whatis a writ of habeas corpus?

Habeas corpus is a Latin phrase which literally means you have the body. Basically, it is a

writ directed to the person detaining another, commanding him to produce the body of theprisoner at a designated time and place, with the day and cause of his capture and detention, to

do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in thatbehalf.

Whatis the scope ofthe writ of habeas corpus?

The writ of habeas corpus generally extends to all cases of illegal confinement or detention by

which a person is deprived of liberty, or the rightful custody of a person is withheld from theperson entitled thereto.

Who may issue the writ of habeas corpus?

The writ may be issued by the Supreme Court or by the Court of Appeals or any member thereof,enforceable anywhere in the Philippines.

It may also be issued by the Regional Trial Cout (RTC) or any judge thereof, enforceable only

within the judicial district.

To whom is the writ directed?

If the detention is by an officer, the writ shall be directed to him, commanding him to bring the

body of the person restrained of liberty before the court at the time and place specified. If thedetention is by a person other than an officer, then the writ shall be directed to an officer

commanding him to the same effect and to summon the person restraining. The respondent willbe asked to explain the cause of the detention.

When shall the subject person be released?

When the prisoner is unlawfully restrained, the court or judge shall order his discharge whichshall not be effective until a copy of the order is served on the officer or person detaining the

prisoner. If such officer or person does not desire to appeal, the prisoner shall be forthwithreleased.


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REVISED RULE ON CHILDREN IN CONFLICT WITH THE LAW

Section 1.Applicability of the Rule. This Rule shall apply to all criminal cases involvingchildren in conflict with the law.

A child in conflict with the law is a person who at the time of the commission of the offense isbelow eighteen years old but not less than fifteen (15) years and one (1) day old.

This Rule shall not apply to a person who at the time of the initial contact as defined in Sec. 4(q)

of this Rule shall have reached the age of eighteen (18) in which case, the regular rules oncriminal procedure shall apply without prejudice to the rights granted under Secs. 53, 54, 55 and

56 of this Rule.

Section 2.Objective. The objective of this Rule is to ensure that the justice system treats everychild in conflict with the law in a manner that recognizes and upholds human dignity and worth,

and instills in the child respect for the fundamental rights and freedom of others. The Rule

considers the developmental age of the child and the desirability of the childs reintegration inand assumption of aconstructive role in society in accordance with the principles of balanced andrestorative justice.

To attain this objective, the Rule seeks:

(a) To provide child-appropriate proceedings, including programs and services for crimeprevention, diversion, rehabilitation, re-integration and aftercare to ensure the normal growth and

development of the child in conflict with the law;

(b) To provide procedural rules dealing with children in conflict with the law that take into

account their distinct circumstances, assure all parties of a fair hearing with each partysconstitutional and statutory rights recognized and respected, and ensure that appropriatedisposition measures are implemented by law enforcers, social services and the courts;

(c) To divert from the formal justice system children in conflict with the law who can be cared

for or placed under community continuum alternative programs of treatment, training andrehabilitation in conformity with the principles of balanced and restorative justice;

(d) To deal with the child in a family environment whenever possible, and to separate the childfrom the parents only when necessary for the childs welfare or in the interest of public safety;

(e) To remove from children in conflict with the law the stigma of criminality and criminalbehavior;

(f) To promote, facilitate and implement in administrative and judicial proceedings respect forthe views of the child;

(g) To provide for the care, protection and wholesome moral, mental, and physical developmentof children in conflict with the law; and


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(h) To promote and protect the rights and interest of children as zones of peace in situations ofarmed conflict, but who are alleged to be in conflict with the law. (a)

Section 3.Interpretation. This Rule shall be interpreted liberally to promote the best interest of

the child in conformity with Philippine laws, the United Nations Convention on the Rights of

the Child and relevant international treaties and protocols.

Section 4.Definitions. As used in this Rule,

(a)Age of criminal responsibility is the age when a child, fifteen (15) years and one (1) day oldor above but below eighteen (18) years of age, commits an offense with discernment.

(b)Bailrefers to the security given for the release of the child in custody of the law, furnished by

the child, the childs parent, guardian, or a bondsman, to guarantee the childs appearance beforeany court. Bail may be posted in a form such as corporate security, property bond or cash

deposit.

(c)Balanced and Restorative Justice is a principle in juvenile justice that requires a process ofresolving conflicts with the participation of the victim, the child in conflict with the law, and the

community. It seeks to obtain reparation for the victim; reconciliation of the victim, the child inconflict with the law, and the community, and the reassurance that the child in conflict with the

law can be reintegrated into society. It also enhances public safety by involving the victim, thechild in conflict with the law, and the community in prevention strategies. (a)

(d)Best interest of the childrefers to the totality of the circumstances and conditions that aremost congenial to the survival, protection and feelings of security of the child and most

encouraging to the childs physical, psychological and emotional development. It also means the

least detrimental available alternative for safeguarding the growth and development of the child.

(e) Case study reportis a written report on the social case inquiry conducted by the social worker

of the local government unit or the Department of Social Welfare and Development or by thesocial worker designated by the court on the social, cultural, economic and legal status or

condition of the child in conflict with the law. It shall include, among other matters, the childsdevelopmental age; educational attainment; family and social relationships; the quality ofthe

childs peer group; the strengths and weaknesses of the family; parental control; the childsattitude towards the offense; the harm or damage done to others resulting from the offense;

record of prior offenses, if any; and the attitude of the parents towards the childs responsibilityfor the offense. The social worker shall also include an initial determination of the childs

discernment in the commission of the offense. (a)

(f) Community continuum refers to the after-care of a child in conflict with the law and is acommunity-based group therapy process that provides continuous guidance and support to the

child in conflict with the law upon release from rehabilitation and subsequent reintegration intosociety. Community continuum for the child includes timely release, suitable residence, food,clothing, available employment and sufficient means to facilitate successful reintegration in


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society which shall be provided by the concerned local government unit and other appropriateagencies. (n)

(g) Corporal punishmentis any kind of physical punishment inflicted on the body as

distinguished from pecuniary punishment or fine.

(h) Courtrefers to a designated family court or in places where there are no designated familycourts, any regional trial court hearing family and youth cases. (a)

(i)Deprivation of Liberty refers to any form of detention or imprisonment, or to the placement ofa child in conflict with the law in a public or private custodial setting, from which the child in

conflict with the law is not permitted to leave at will except by order of any judicial oradministrative authority. (a)

(j)Discernmentmeans the capacity of the child at the time of the commission of the offense to

understand the difference between right and wrong and the consequences of the wrongful act.

(k)Disposition conference is a meeting held by the court with the social worker who preparedthe case study report, together with the child in conflict with the law and the parents or guardian

ad litem, and the childs counsel for the purpose of determining the disposition measuresappropriate to the personal and special circumstances of the child.

(l)Diversion refers to an alternative child-appropriate process of determining the responsibilityand treatment of a child in conflict with the law on the basis of the childs social, cultural,

economic, psychological or educational background without resorting to formal courtadjudication.

(m)Diversion programs refer to programs the child in conflict the law is required to undergo inlieu of formal court proceedings.

(n)Expedited Transfer of a Childis a process where a child who commits an offense isimmediately brought by the apprehending officer or private individual to a social worker for

preliminary determination of discernment. (n)

(o) Guardian Ad Litem is a person appointed by the court to protect the best interest of the child.

(a)

(p)In conflict with the law means taken into custody, detained, or charged with the commission

of an act defined and punished as a crime or offense under the law, including violations of trafficlaws, rules and regulations, and ordinances of local government units. (a)

(q)Initial contactrefers to the apprehension or taking into custody of a child in conflict with thelaw by law enforcement officers or private citizens. It includes the time the child alleged to be in

conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules ofCriminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases


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that do not require preliminary investigation, or where there is no necessity to place the childalleged to be in conflict with the law under immediate custody. (n)

(r)Intake reportis the initial written report containing the personal and other circumstances of

the child in conflict with the law prepared by the social worker assigned to assist the child

entering the justice system.

(s)Intervention programs refer to a series of individualized treatment activities or programs

designed to address issues that caused the child to commit an offense. These may includecounseling, skills training, education, and other activities that are aimed to improve and enhance

the childs psychological, emotional and psycho-social wellbeing. (n)

(t)Law Enforcement Officerrefers to the person in authority or an agent as defined in Article

152 of the Revised Penal Code, including a barangay tanod. (n)

(u)Non-Serious Offense refers to an offense where the imposable penalty for the crime

committed is not more than six (6) years imprisonment. (n)

(v) Probation is an alternative disposition, ordered by the court, under which a child in conflict

with the law is released after conviction and sentence and permitted to remain at home or with anappropriate custodian, subject to certain terms and conditions imposed by the court.

(w)Recognizance is an undertaking in lieu of a bond, assumed by a mother or father, orappropriate guardian or custodian, or in their absence, the nearest relative, or any responsible

member of the community to assume custody of a child in conflict with the law and beresponsible for the appearance of the child in court whenever required during the pendency of

the case. (a)

(x) Segregation refers to the procedure where, upon initial contact with a child alleged to havecommitted an offense, the law enforcer places the child in a separate and different area from

adult detention prisoners, and ensures that female children are separated from male children. (n)

(y) Serious offense refers to an offense where the imposable penalty for the offense committedexceeds six (6) years imprisonment. (a)

(z) Status offenses refer to offenses that discriminate only against a child, such as curfewviolations, truancy, parental disobedience and the like. (n)

(aa) Suspended sentence is the holding in abeyance of the service of the sentence imposed by thecourt upon a finding of guilt of the child in conflict with the law, whereby the child undergoesrehabilitation within a fixed period under such terms and conditions as may be ordered by the

court. (n)

(bb) Victimless Crimes refer to offenses where there are no private offended parties. (n)


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(cc) Youth detention home refers to a 24-hour child-caring institution managed by accreditedlocal government units and licensed and/or accredited non-government organizations providing

short-term residential care for children in conflict with the law and where the child may bephysically restricted by order of any judicial, administrative or other public authority, and from

which the child is not permitted to leave at will, pending court disposition of the charge or

transfer to other agencies or jurisdiction. (a)

(dd) Youth rehabilitation centerrefers to a 24-hour residential care facility managed by the

Department of Social Welfare and Development, local government units, licensed and/oraccredited nongovernment organizations monitored by the Department of Social Welfare and

Development. The Center provides care, treatment and rehabilitation services for children inconflict with the law under a structured therapeutic environment through the guidance of a

trained staff, where the physical mobility of the children may be restricted pending courtdisposition of their cases. (a)

Section 5.Determination of Age. The child in conflict with the law shall enjoy the presumption

of minority and shall enjoy all therights of a child in conflict with the law until proven to be eighteen years old or older at the time

of the commission of the offense. The age of the child shall be determined according to thefollowing rules:

(1) The best evidence to prove the age of a child is an original or certified true copy of thecertificate of live birth;

(2) In the absence of a certificate of live birth, similar authentic documents such as baptismal

certificates and school records or any pertinent document that shows the date of birth of thechild;

(3) In the absence of the documents under paragraphs 1 and 2 of this section due to loss,

destruction or unavailability, the testimony of the child, the testimony of a member of the familyrelated to the child by affinity or consanguinity who is qualified to testify on matters respecting

pedigree such as the exact age or date of birth of the child pursuant to Sec. 40, Rule 130 of theRules on Evidence, the testimonies of other persons, the physical appearance of the child and

other relevant evidence, shall suffice.

Section 6.Burden ofProof of Age. Any person alleging the age of the child in conflict with the

law has the burden of proving the age of such child.

If the age of the child is contested prior to the filing of the information in court, a case fordetermination of age under summary proceeding may be filed before a court which shall render

its decision within 24 hours from receipt of the appropriate pleadings of all the parties. (n)

In all cases involving a child, the court shall make a categorical finding as to the age of the child.

Section 7.Exemption from Criminal Liability. A child fifteen years of age or under at the time

of the commission of the offense shall be exempt from criminal liability. However, the child


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shall be subjected to an intervention program as provided for in Republic Act No. 9344 whenconsented to by the child and the parents. (a)

Exemption from criminal liability does not include exemption from civil liability which shall be

enforced in accordance with the provisions of Article 221 of the Family Code in relation to

Article 101 of the Revised Penal Code and Rule 111 of the Revised Rules of Criminal Procedure.If the act or omission of the child involves a quasi-delict, Article 2180 of the Civil Code shallapply.

Section 8.Procedure forHandling Children Exempted from Criminal Liability. If it is

determined at the initial contact that the child is 15 years of age or below, the procedure providedin Section 20, Republic Act No. 9344 shall be observed as follows:

(a) The authority who had the initial contact with the child shall immediately release the child tothe custody of the mother or father, or the appropriate guardian or custodian, or in their absence,

the nearest relative.

(b) The authority shall immediately notify the local social welfare and development officer of thetaking of the child into custody.

(c) The local social welfare and development officer shall, with the consent of the child and the

person having custody over the child, determine the appropriate intervention programs for thechild.

(d) If the childs parents, guardians or nearest relatives cannot be located, or if they refuse to takecustody, the child may be released to any of the following: a duly registered nongovernmental or

religious organization; a barangay official or a member of the Barangay Council for the

Protection of Children; a local social welfare and development officer; or, when and whereappropriate, the Department of Social Welfare and Development.

(e) If the child has been found by the local social welfare and development office to beabandoned, neglected or abused by the parents, or if the parents and the child do not consent to

or do not comply with the prevention program, the Department of Social Welfare andDevelopment or the Local Social Welfare and Development Office shall file before the court a

petition for involuntary commitment pursuant to Presidential Decree No. 603, otherwise knownas The Child and Youth Welfare Code. (a)

Section 9.Procedure for Children Not Exempted from Criminal Liability. A child fifteen (15)

years and one (1) day old or above but below eighteen (18) years of age at the time of thecommission of the offense shall, at the sound discretion of the court and subject to its

supervision, be released on recognizance to the care of the willing and responsible mother orfather, or appropriate guardian or custodian, or, in their absence, the nearest relative. However, if

the prosecution determines that the child acted with discernment, the child shall be proceededagainst in accordance with Secs. 25 to 29 or, in case of diversion, Secs.31 to 38 of this Rule.


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Section 10.Determination of Discernment. Discernment is preliminarily determined by a socialworker and finally by the court in the case of a child charged with a non-serious offense. In all

other cases, discernment is determined by the court.

The determination of discernment shall take into account the ability of a child to understand the

moral and psychological components of criminal responsibility and the consequences of thewrongful act; and whether a child can be held responsible for essentially antisocial behavior.

Section 11.Duties of a Person in Authority Taking a Child into Custody. Any person taking intocustody a child in conflict with the law shall:

(a) Assign an alias to the child;

(b) Ensure that the blotter details containing the true name of the child, if any, are modified, toreflect the alias by which the child shall be known throughout the proceedings;

(c) Explain to the child in simple language and in a dialect that can be understood the reason forplacing the child under custody, and the offense allegedly committed;

(d) Advise the child of his/her constitutional rights in a language or dialect understandable to the

child;

(e) Present proper identification to the child;

(f) Refrain from using vulgar or profane words and from sexually harassing or abusing, ormaking sexual advances on the child;

(g) Avoid displaying or using any firearm, weapon, handcuffs or other instrument of force orrestraint, unless absolutely necessary and only after all methods of control have been exhausted

and have failed;

(h) Avoid violence or unnecessary force and refrain from subjecting the child to greater restraintthan is necessary for apprehension and custody;

(i) Ensure that a body search of the child is done only by a law enforcement officer of the same

gender as that of the child;

(j) Ensure expedited transfer of the child by immediately, or not later than eight (8) hours after

apprehension, turning over custody of the child to the local social welfare and developmentoffice or other accredited non-government organizations;

(k) Notify the childs parents, guardians or custodians or in their absence, the childs nearest

relative and the Public Attorneys Office of the childs apprehension;

(l) Ensure that the child is not locked up in a jail or detention cell during the investigation;


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(m) Bring the child immediately to an available government medical or health officer for athorough physical and mental examination;

(n) Ensure that should detention of the child in conflict with the law be necessary, the

segregation of the child be secured in quarters separate from that of the opposite sex and adult

offenders, except where a child is taken into custody for reasons related to armed conflict, eitheras combatant, courier, guide or spy, and families are accommodated as family units in whichcase, the child shall not be separated from the family;

(o) Record all the procedures undertaken in the initial investigation including the following:

whether handcuffs or other instruments of restraint were used, and if so, the reason for such use;that the parents or guardian of the child, the Department of Social Welfare and Development,

and the Public Attorneys Office were informed of the taking into custody of the child and thedetails thereof; the measures that were undertaken to determine the age of the child, and the

precise details of the physical and medical examination or in case of failure to submit a child tosuch examination, the reason therefor; and

(p) Ensure that all statements signed by the child during the investigation are witnessed andsigned by the childs parents or guardian, social worker or legal counsel in attendance. (n)

Section 12.Rights of a Child Under Custody. At the custodial investigation, a child who has

been taken into custody shall have the following rights:

(a) At the police station, to be immediately assisted by a lawyer and a social worker who shallmake sure that the child is effectively informed of his/her rights, as far as the childs maturity

and discernment allow;

(b) To demand that the questioning or interrogation take place in conditions that respect therights of the child and are compliant with child-sensitive procedural rules;

(c) To have the childs family located and notified with dispatch;

(d) To be informed, together with the parents, guardians or custodians or nearest relatives, by thesocial welfare and development officer of the local government unit or of the Department of

Social Welfare and Development of the consequences of the offense alleged to have beencommitted with a view towards counseling and rehabilitation, diversion from criminal justice

system and reparation if appropriate;

(e) To have the results of the childs medical and dental examination kept confidential unlessotherwise ordered by the court. Whenever medical treatment for any physical or mental defect isnecessary, to demand that steps must be immediately taken by the medical officer to provide the

child with the necessary and proper treatment;

(f) To have the right of privacy respected and protected at all times, including the utilization ofall measures necessary to promote this right, including the exclusion of the media; and


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(g) While under investigation, not to be fingerprinted or photographed in a humiliating anddegrading manner.

Section 13.Taking Custody of a ChildWithout a Warrant. The law enforcement officer or a

private person taking into custody a child in conflict with the law without a warrant shall observe

the provisions in Sections 5, 8 and 9 of Rule 113 of the Revised Rules of Criminal Procedure andshall forthwith deliver the child to the nearest police station. The child shall be proceeded againstin accordance with Section 7 of Rule 112 of the Rules of Criminal Procedure.

Section 14.Conduct of Initial Investigation by the Police. The police officer conducting the

initial investigation of a child in conflict with the law shall do so in the presence of either or bothof the parents, guardian or custodian, or in their absence, the nearest relative of the child, the

childs counsel of choice, or a lawyer from the Public Attorneys Office, and the local socialwelfare officer. A representative of a non-government organization, religious group, or member

of the Barangay Council for the Protection of Children shall be allowed to be present at theinvestigation in the absence of the parents, guardian, relative, or social welfare officer. (a)

Section 15.Guidelines for Fingerprinting andPhotographing of the Child. The followingguidelines shall be observed when fingerprinting or photographing the child:

(a) The childs fingerprint and photograph files shall be kept separate from those of adults and

shall be kept confidential. They may be inspected by law enforcement officers only whennecessary for the effective discharge of their duties and upon prior authority of the court; and

(b) The fingerprints and photograph shall be removed from the files and destroyed: (1) if the case

against the child is not filed, or is dismissed; or (2) when the child reaches twenty-one (21) yearsof age and there is no record that the child committed an offense after reaching eighteen (18)

years of age.

Section 16.Intake Report by the SocialWelfare Officer. Upon the taking into custody of a child

in conflict with the law, the social welfare officer assigned to the child shall immediatelyundertake a preliminary background investigation of the child and, should a case be filed in

court, submit to the court the corresponding intake report prior to the arraignment.

Section 17.Filing of Criminal Action. A criminal action may be instituted against a child inconflict with the law by filing a complaint with the prosecutor.

All criminal actions commenced by complaint or information shall be prosecuted under the

direction and control of the public prosecutor assigned to the court.

Petitions for confinement of a child drug dependent shall be filed under Section 21 of the Rule

on Children Charged under Republic ActNo. 9165. (n)


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Section 18.Prosecution of Civil Action. When a criminal action is instituted against a child inconflict with the law, the action for recovery of civil liability arising from the offense charged

shall be governed by Rule 111 of the Revised Rules of Criminal Procedure.

Section 19.Preliminary Investigation. As far as consistent with this Rule, the preliminary

investigation of a child in conflict with the law shall be governed by Section 3 of Rule 112 of theRevised Rules of Criminal Procedure. A specially trained prosecutor shall be assigned to conductthe inquest, preliminary investigation and prosecution of the case involving a child in conflict

with the law. The child, on the other hand, shall be assisted by a private lawyer or if none, alawyer from the Public Attorneys Office. If there is an allegation or evidence of torture or ill-

treatment of a child in conflict with the law during custody or detention, it shall be the duty ofthe prosecutor to investigate the same. (n)

Section 20.Conduct ofPreliminary Investigation. Preliminary investigation shall be conducted

in the following instances: (a) when the child in conflict with the law does not qualify fordiversion; (b) when the child, the parents or guardian do not agree to diversion as provided in

Sections 27 and 28 of Republic Act No. 9344; or (c) when, after considering the assessment andrecommendation of the social worker, the prosecutor determines that diversion is not appropriate

for the child in conflict with the law. (n)

At the preliminary investigation, should there arise a need for clarificatory questions to be

propounded on the child, the Rule on Examination of a Child Witness shall apply.

Section 21.Filing of Information. If the investigating prosecutor finds probable cause to holdthe child in conflict with the law for trial, there being discernment, the corresponding Resolution

and Information shall be prepared for the approval by the provincial or city prosecutor, as thecase may be. The child and the mother or father, or appropriate guardian or custodian, or in the

absence thereof, the nearest relative, and the childs private counsel or lawyer from the PublicAttorneys Office shall be furnished forthwith a copy of the approved resolution and the

Information.

The Information shall be filed with the court within forty-five (45) days from the start of thepreliminary investigation. (n)

No Information shall be filed against a child for the commission of the following:

a) status offenses;

(b) vagrancy and prostitution under Section 202 of the Revised Penal Code;

(c) mendicancy under Presidential Decree No. 1563; and

(d) sniffing of rugby under Presidential Decree No. 1619.

Children taken into custody for the foregoing shall, with their consent and that of their parents,

guardian or custodian, instead undergo appropriate counseling and treatment program. (n)


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Section 22. Duties of the Clerk of Court Upon Receipt of Information. The Clerk of Court,upon receipt of the Information, shall:

(1) Maintain a separate case docket or logbook for cases involving children in conflict with the

law. Whenever possible, the Clerk of Court shall use color coding or other method to easily

distinguish the records of children in conflict with the law from the other case records;

(2) Determine whether the offense charged qualifies for diversion, that is, it is punishable by

imprisonment of not more th

61568099 writ of habeas corpus and writ of amparo

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