Assignment No. 10
V. Trustees – Rule 98
RULE 98: TRUSTEES
SECTION 1. Where trustee appointed.—A trustee necessary to carry into effect the provisions of a will or written instrument shall be appointed by the Regional Trial Court in which the will was allowed, if it be a will allowed in the Philippines, otherwise by the Regional Trial Court of the province in which the property, or some portion thereof, affected by the trust is situated.
SEC. 2. Appointment and powers of trustee under will. Executor of former trustee need not administer trust.—If a testator has omitted in his will to appoint a trustee in the Philippines, and if such appointment is necessary to carry into effect the provisions of the will, the proper Regional Trial Court may, after notice to all persons interested, appoint a trustee who shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. No person succeeding to a trust as executor or administrator of a former trustee shall be required to accept such trust.
SEC. 3. Appointment and powers of new trustee under written instrument.—When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy, the proper Regional Trial Court may, after due notice to all persons interested, appoint a new trustee to act alone or jointly with the others, as the case may be. Such new trustee shall have and exercise the same powers, rights, and duties as if he had been originally appointed, and the trust estate shall vest in him in like manner as it had vested or would have vested, in the trustee in whose place he is substituted; and the court may order such conveyance to be made by the former trustee or his representatives, or by the other remaining trustees, as may be necessary or proper to vest the trust estate in the new trustee, either alone or jointly with the others.
SEC. 4. Proceedings where trustee- appointed abroad.— When land in the Philippines is held in trust for persons resident here by a trustee who derives his authority from without the Philippines, such trustee shall, on petition filed in the Regional Trial Court of the province where the land is situated, and after due notice to all persons interested, be ordered to apply to the court for appointment as trustee; and upon his neglect or refusal to comply with such order, the court shall declare such trust vacant, and shall appoint a new trustee in whom the trust estate shall vest in like manner as if he had been originally appointed by such court.
SEC. 5. Trustee must file bond.—Before entering on the duties of his trust, a trustee shall file with the clerk of the court having jurisdiction of the trust a bond in the amount fixed by the judge of said court, payable to the Government of the Philippines and sufficient and available for the protection of any party in interest, and a trustee who neglects to file such bond shall be considered to have declined or resigned the trust; but the court may, until further order exempt a trustee under a will from giving a bond when the testator has directed or requested such exemption, and may so exempt any trustee when all persons beneficially interested in the trust, being of full age, request the exemption. Such exemption may be cancelled by the court at any time, and the trustee required to forthwith file a bond.
SEC. 6. Conditions included in bond.—The following conditions shall be deemed to be a part of the bond whether written therein or not:
(a) That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge;
(b) That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed;
(c) That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by the court, a true account of the property in his hands and of the management and disposition thereof, and will render such other accounts as the court may order;
(d) That at the expiration of his trust he will settle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled thereto.
But when the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory, if one has already been filed, and in such case the condition of the bond shall be deemed to be altered accordingly.
SEC. 7. Appraisal. Compensation of trustee.—When an inventory is required to be returned by a trustee, the estate and effects belonging to the trust shall be appraised and the court may order one or more inheritance tax appraisers to assist in the appraisement. The compensation of the trustee shall be fixed by the court, if it be not determined in the instrument creating the trust.
SEC. 8. Removal or resignation of trustee.—The proper Regional Trial Court may, upon petition of the parties beneficially interested and after due notice to the trustee and hearing, remove a trustee if such removal appears essential in the interests of the petitioners. The court may also, after due notice to all persons interested, remove a trustee who is insane or otherwise incapable of discharging his trust or evidently unsuitable therefor. A trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court proper to allow such resignation.
SEC. 9. Proceedings for sale or encumbrance of trust estate.—When the sale or encumbrance of any real or personal estate held in trust is necessary or expedient, the court having jurisdiction of the trust may, on petition and after due notice and hearing, order such sale or encumbrance to be made, and the reinvestment and application of the proceeds thereof in such manner as will best effect the objects of the trust. The petition, notice, hearing, order of sale or encumbrance, and record of proceedings, shall conform as nearly as may be to the provisions concerning the sale or encumbrance by guardians of the property of minors or other wards.
Lorenzo vs. Posadas (1937)
PABLO LORENZO, as trustee of the estate of Thomas Hanley, deceased, plaintiff-appellant,
vs.
JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellant.
Pablo Lorenzo and Delfin Joven for plaintiff-appellant.
Office of the Solicitor-General Hilado for defendant-appellant.
LAUREL, J.:
On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee of the estate of Thomas Hanley, deceased, brought this action in the Court of First Instance of Zamboanga against the defendant, Juan Posadas, Jr., then the Collector of Internal Revenue, for the refund of the amount of P2,052.74, paid by the plaintiff as inheritance tax on the estate of the deceased, and for the collection of interst thereon at the rate of 6 per cent per annum, computed from September 15, 1932, the date when the aforesaid tax was [paid under protest. The defendant set up a counterclaim for P1,191.27 alleged to be interest due on the tax in question and which was not included in the original assessment. From the decision of the Court of First Instance of Zamboanga dismissing both the plaintiff's complaint and the defendant's counterclaim, both parties appealed to this court.
It appears that on May 27, 1922, one Thomas Hanley died in Zamboanga, Zamboanga, leaving a will (Exhibit 5) and considerable amount of real and personal properties. On june 14, 1922, proceedings for the probate of his will and the settlement and distribution of his estate were begun in the Court of First Instance of Zamboanga. The will was admitted to probate. Said will provides, among other things, as follows:
4. I direct that any money left by me be given to my nephew Matthew Hanley.
5. I direct that all real estate owned by me at the time of my death be not sold or otherwise disposed of for a period of ten (10) years after my death, and that the same be handled and managed by the executors, and proceeds thereof to be given to my nephew, Matthew Hanley, at Castlemore, Ballaghaderine, County of Rosecommon, Ireland, and that he be directed that the same be used only for the education of my brother's children and their descendants.
6. I direct that ten (10) years after my death my property be given to the above mentioned Matthew Hanley to be disposed of in the way he thinks most advantageous.
x x x x x x x x x
8. I state at this time I have one brother living, named Malachi Hanley, and that my nephew, Matthew Hanley, is a son of my said brother, Malachi Hanley.
The Court of First Instance of Zamboanga considered it proper for the best interests of ther estate to appoint a trustee to administer the real properties which, under the will, were to pass to Matthew Hanley ten years after the two executors named in the will, was, on March 8, 1924, appointed trustee. Moore took his oath of office and gave bond on March 10, 1924. He acted as trustee until February 29, 1932, when he resigned and the plaintiff herein was appointed in his stead.
During the incumbency of the plaintiff as trustee, the defendant Collector of Internal Revenue, alleging that the estate left by the deceased at the time of his death consisted of realty valued at P27,920 and personalty valued at P1,465, and allowing a deduction of P480.81, assessed against the estate an inheritance tax in the amount of P1,434.24 which, together with the penalties for deliquency in payment consisting of a 1 per cent monthly interest from July 1, 1931 to the date of payment and a surcharge of 25 per cent on the tax, amounted to P2,052.74. On March 15, 1932, the defendant filed a motion in the testamentary proceedings pending before the Court of First Instance of Zamboanga (Special proceedings No. 302) praying that the trustee, plaintiff herein, be ordered to pay to the Government the said sum of P2,052.74. The motion was granted. On September 15, 1932, the plaintiff paid said amount under protest, notifying the defendant at the same time that unless the amount was promptly refunded suit would be brought for its recovery. The defendant overruled the plaintiff's protest and refused to refund the said amount hausted, plaintiff went to court with the result herein above indicated.
In his appeal, plaintiff contends that the lower court erred:
I. In holding that the real property of Thomas Hanley, deceased, passed to his instituted heir, Matthew Hanley, from the moment of the death of the former, and that from the time, the latter became the owner thereof.
II. In holding, in effect, that there was deliquency in the payment of inheritance tax due on the estate of said deceased.
III. In holding that the inheritance tax in question be based upon the value of the estate upon the death of the testator, and not, as it should have been held, upon the value thereof at the expiration of the period of ten years after which, according to the testator's will, the property could be and was to be delivered to the instituted heir.
IV. In not allowing as lawful deductions, in the determination of the net amount of the estate subject to said tax, the amounts allowed by the court as compensation to the "trustees" and paid to them from the decedent's estate.
V. In not rendering judgment in favor of the plaintiff and in denying his motion for new trial.
The defendant-appellant contradicts the theories of the plaintiff and assigns the following error besides:
The lower court erred in not ordering the plaintiff to pay to the defendant the sum of P1,191.27, representing part of the interest at the rate of 1 per cent per month from April 10, 1924, to June 30, 1931, which the plaintiff had failed to pay on the inheritance tax assessed by the defendant against the estate of Thomas Hanley.
The following are the principal questions to be decided by this court in this appeal: (a) When does the inheritance tax accrue and when must it be satisfied? (b) Should the inheritance tax be computed on the basis of the value of the estate at the time of the testator's death, or on its value ten years later? (c) In determining the net value of the estate subject to tax, is it proper to deduct the compensation due to trustees? (d) What law governs the case at bar? Should the provisions of Act No. 3606 favorable to the tax-payer be given retroactive effect? (e) Has there been deliquency in the payment of the inheritance tax? If so, should the additional interest claimed by the defendant in his appeal be paid by the estate? Other points of incidental importance, raised by the parties in their briefs, will be touched upon in the course of this opinion.
(a) The accrual of the inheritance tax is distinct from the obligation to pay the same. Section 1536 as amended, of the Administrative Code, imposes the tax upon "every transmission by virtue of inheritance, devise, bequest, gift mortis causa, or advance in anticipation of inheritance,devise, or bequest." The tax therefore is upon transmission or the transfer or devolution of property of a decedent, made effective by his death. (61 C. J., p. 1592.) It is in reality an excise or privilege tax imposed on the right to succeed to, receive, or take property by or under a will or the intestacy law, or deed, grant, or gift to become operative at or after death. Acording to article 657 of the Civil Code, "the rights to the succession of a person are transmitted from the moment of his death." "In other words", said Arellano, C. J., ". . . the heirs succeed immediately to all of the property of the deceased ancestor. The property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death." (Bondad vs. Bondad, 34 Phil., 232. See also, Mijares vs. Nery, 3 Phil., 195; Suilong & Co., vs. Chio-Taysan, 12 Phil., 13; Lubrico vs. Arbado, 12 Phil., 391; Innocencio vs. Gat-Pandan, 14 Phil., 491; Aliasas vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil., 434; Bowa vs. Briones, 38 Phil., 27; Osario vs. Osario & Yuchausti Steamship Co., 41 Phil., 531; Fule vs. Fule, 46 Phil., 317; Dais vs. Court of First Instance of Capiz, 51 Phil., 396; Baun vs. Heirs of Baun, 53 Phil., 654.) Plaintiff, however, asserts that while article 657 of the Civil Code is applicable to testate as well as intestate succession, it operates only in so far as forced heirs are concerned. But the language of article 657 of the Civil Code is broad and makes no distinction between different classes of heirs. That article does not speak of forced heirs; it does not even use the word "heir". It speaks of the rights of succession and the transmission thereof from the moment of death. The provision of section 625 of the Code of Civil Procedure regarding the authentication and probate of a will as a necessary condition to effect transmission of property does not affect the general rule laid down in article 657 of the Civil Code. The authentication of a will implies its due execution but once probated and allowed the transmission is effective as of the death of the testator in accordance with article 657 of the Civil Code. Whatever may be the time when actual transmission of the inheritance takes place, succession takes place in any event at the moment of the decedent's death. The time when the heirs legally succeed to the inheritance may differ from the time when the heirs actually receive such inheritance. "Poco importa", says Manresa commenting on article 657 of the Civil Code, "que desde el falleimiento del causante, hasta que el heredero o legatario entre en posesion de los bienes de la herencia o del legado, transcurra mucho o poco tiempo, pues la adquisicion ha de retrotraerse al momento de la muerte, y asi lo ordena el articulo 989, que debe considerarse como complemento del presente." (5 Manresa, 305; see also, art. 440, par. 1, Civil Code.) Thomas Hanley having died on May 27, 1922, the inheritance tax accrued as of the date.
From the fact, however, that Thomas Hanley died on May 27, 1922, it does not follow that the obligation to pay the tax arose as of the date. The time for the payment on inheritance tax is clearly fixed by section 1544 of the Revised Administrative Code as amended by Act No. 3031, in relation to section 1543 of the same Code. The two sections follow:
SEC. 1543. Exemption of certain acquisitions and transmissions. — The following shall not be taxed:
(a) The merger of the usufruct in the owner of the naked title.
(b) The transmission or delivery of the inheritance or legacy by the fiduciary heir or legatee to the trustees.
(c) The transmission from the first heir, legatee, or donee in favor of another beneficiary, in accordance with the desire of the predecessor.
In the last two cases, if the scale of taxation appropriate to the new beneficiary is greater than that paid by the first, the former must pay the difference.
SEC. 1544. When tax to be paid. — The tax fixed in this article shall be paid:
(a) In the second and third cases of the next preceding section, before entrance into possession of the property.
(b) In other cases, within the six months subsequent to the death of the predecessor; but if judicial testamentary or intestate proceedings shall be instituted prior to the expiration of said period, the payment shall be made by the executor or administrator before delivering to each beneficiary his share.
If the tax is not paid within the time hereinbefore prescribed, interest at the rate of twelve per centum per annum shall be added as part of the tax; and to the tax and interest due and unpaid within ten days after the date of notice and demand thereof by the collector, there shall be further added a surcharge of twenty-five per centum.
A certified of all letters testamentary or of admisitration shall be furnished the Collector of Internal Revenue by the Clerk of Court within thirty days after their issuance.
It should be observed in passing that the word "trustee", appearing in subsection (b) of section 1543, should read "fideicommissary" or "cestui que trust". There was an obvious mistake in translation from the Spanish to the English version.
The instant case does fall under subsection (a), but under subsection (b), of section 1544 above-quoted, as there is here no fiduciary heirs, first heirs, legatee or donee. Under the subsection, the tax should have been paid before the delivery of the properties in question to P. J. M. Moore as trustee on March 10, 1924.
(b) The plaintiff contends that the estate of Thomas Hanley, in so far as the real properties are concerned, did not and could not legally pass to the instituted heir, Matthew Hanley, until after the expiration of ten years from the death of the testator on May 27, 1922 and, that the inheritance tax should be based on the value of the estate in 1932, or ten years after the testator's death. The plaintiff introduced evidence tending to show that in 1932 the real properties in question had a reasonable value of only P5,787. This amount added to the value of the personal property left by the deceased, which the plaintiff admits is P1,465, would generate an inheritance tax which, excluding deductions, interest and surcharge, would amount only to about P169.52.
If death is the generating source from which the power of the estate to impose inheritance taxes takes its being and if, upon the death of the decedent, succession takes place and the right of the estate to tax vests instantly, the tax should be measured by the vlaue of the estate as it stood at the time of the decedent's death, regardless of any subsequent contingency value of any subsequent increase or decrease in value. (61 C. J., pp. 1692, 1693; 26 R. C. L., p. 232; Blakemore and Bancroft, Inheritance Taxes, p. 137. See also Knowlton vs. Moore, 178 U.S., 41; 20 Sup. Ct. Rep., 747; 44 Law. ed., 969.) "The right of the state to an inheritance tax accrues at the moment of death, and hence is ordinarily measured as to any beneficiary by the value at that time of such property as passes to him. Subsequent appreciation or depriciation is immaterial." (Ross, Inheritance Taxation, p. 72.)
Our attention is directed to the statement of the rule in Cyclopedia of Law of and Procedure (vol. 37, pp. 1574, 1575) that, in the case of contingent remainders, taxation is postponed until the estate vests in possession or the contingency is settled. This rule was formerly followed in New York and has been adopted in Illinois, Minnesota, Massachusetts, Ohio, Pennsylvania and Wisconsin. This rule, horever, is by no means entirely satisfactory either to the estate or to those interested in the property (26 R. C. L., p. 231.). Realizing, perhaps, the defects of its anterior system, we find upon examination of cases and authorities that New York has varied and now requires the immediate appraisal of the postponed estate at its clear market value and the payment forthwith of the tax on its out of the corpus of the estate transferred. (In re Vanderbilt, 172 N. Y., 69; 69 N. E., 782; In re Huber, 86 N. Y. App. Div., 458; 83 N. Y. Supp., 769; Estate of Tracy, 179 N. Y., 501; 72 N. Y., 519; Estate of Brez, 172 N. Y., 609; 64 N. E., 958; Estate of Post, 85 App. Div., 611; 82 N. Y. Supp., 1079. Vide also, Saltoun vs. Lord Advocate, 1 Peter. Sc. App., 970; 3 Macq. H. L., 659; 23 Eng. Rul. Cas., 888.) California adheres to this new rule (Stats. 1905, sec. 5, p. 343).
But whatever may be the rule in other jurisdictions, we hold that a transmission by inheritance is taxable at the time of the predecessor's death, notwithstanding the postponement of the actual possession or enjoyment of the estate by the beneficiary, and the tax measured by the value of the property transmitted at that time regardless of its appreciation or depreciation.
(c) Certain items are required by law to be deducted from the appraised gross in arriving at the net value of the estate on which the inheritance tax is to be computed (sec. 1539, Revised Administrative Code). In the case at bar, the defendant and the trial court allowed a deduction of only P480.81. This sum represents the expenses and disbursements of the executors until March 10, 1924, among which were their fees and the proven debts of the deceased. The plaintiff contends that the compensation and fees of the trustees, which aggregate P1,187.28 (Exhibits C, AA, EE, PP, HH, JJ, LL, NN, OO), should also be deducted under section 1539 of the Revised Administrative Code which provides, in part, as follows: "In order to determine the net sum which must bear the tax, when an inheritance is concerned, there shall be deducted, in case of a resident, . . . the judicial expenses of the testamentary or intestate proceedings, . . . ."
A trustee, no doubt, is entitled to receive a fair compensation for his services (Barney vs. Saunders, 16 How., 535; 14 Law. ed., 1047). But from this it does not follow that the compensation due him may lawfully be deducted in arriving at the net value of the estate subject to tax. There is no statute in the Philippines which requires trustees' commissions to be deducted in determining the net value of the estate subject to inheritance tax (61 C. J., p. 1705). Furthermore, though a testamentary trust has been created, it does not appear that the testator intended that the duties of his executors and trustees should be separated. (Ibid.; In re Vanneck's Estate, 161 N. Y. Supp., 893; 175 App. Div., 363; In reCollard's Estate, 161 N. Y. Supp., 455.) On the contrary, in paragraph 5 of his will, the testator expressed the desire that his real estate be handled and managed by his executors until the expiration of the period of ten years therein provided. Judicial expenses are expenses of administration (61 C. J., p. 1705) but, in State vs. Hennepin County Probate Court (112 N. W., 878; 101 Minn., 485), it was said: ". . . The compensation of a trustee, earned, not in the administration of the estate, but in the management thereof for the benefit of the legatees or devises, does not come properly within the class or reason for exempting administration expenses. . . . Service rendered in that behalf have no reference to closing the estate for the purpose of a distribution thereof to those entitled to it, and are not required or essential to the perfection of the rights of the heirs or legatees. . . . Trusts . . . of the character of that here before the court, are created for the the benefit of those to whom the property ultimately passes, are of voluntary creation, and intended for the preservation of the estate. No sound reason is given to support the contention that such expenses should be taken into consideration in fixing the value of the estate for the purpose of this tax."
(d) The defendant levied and assessed the inheritance tax due from the estate of Thomas Hanley under the provisions of section 1544 of the Revised Administrative Code, as amended by section 3 of Act No. 3606. But Act No. 3606 went into effect on January 1, 1930. It, therefore, was not the law in force when the testator died on May 27, 1922. The law at the time was section 1544 above-mentioned, as amended by Act No. 3031, which took effect on March 9, 1922.
It is well-settled that inheritance taxation is governed by the statute in force at the time of the death of the decedent (26 R. C. L., p. 206; 4 Cooley on Taxation, 4th ed., p. 3461). The taxpayer can not foresee and ought not to be required to guess the outcome of pending measures. Of course, a tax statute may be made retroactive in its operation. Liability for taxes under retroactive legislation has been "one of the incidents of social life." (Seattle vs. Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup. Ct. Rep., 44.) But legislative intent that a tax statute should operate retroactively should be perfectly clear. (Scwab vs. Doyle, 42 Sup. Ct. Rep., 491; Smietanka vs. First Trust & Savings Bank, 257 U. S., 602; Stockdale vs. Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247 U. S., 221.) "A statute should be considered as prospective in its operation, whether it enacts, amends, or repeals an inheritance tax, unless the language of the statute clearly demands or expresses that it shall have a retroactive effect, . . . ." (61 C. J., P. 1602.) Though the last paragraph of section 5 of Regulations No. 65 of the Department of Finance makes section 3 of Act No. 3606, amending section 1544 of the Revised Administrative Code, applicable to all estates the inheritance taxes due from which have not been paid, Act No. 3606 itself contains no provisions indicating legislative intent to give it retroactive effect. No such effect can begiven the statute by this court.
The defendant Collector of Internal Revenue maintains, however, that certain provisions of Act No. 3606 are more favorable to the taxpayer than those of Act No. 3031, that said provisions are penal in nature and, therefore, should operate retroactively in conformity with the provisions of article 22 of the Revised Penal Code. This is the reason why he applied Act No. 3606 instead of Act No. 3031. Indeed, under Act No. 3606, (1) the surcharge of 25 per cent is based on the tax only, instead of on both the tax and the interest, as provided for in Act No. 3031, and (2) the taxpayer is allowed twenty days from notice and demand by rthe Collector of Internal Revenue within which to pay the tax, instead of ten days only as required by the old law.
Properly speaking, a statute is penal when it imposes punishment for an offense committed against the state which, under the Constitution, the Executive has the power to pardon. In common use, however, this sense has been enlarged to include within the term "penal statutes" all status which command or prohibit certain acts, and establish penalties for their violation, and even those which, without expressly prohibiting certain acts, impose a penalty upon their commission (59 C. J., p. 1110). Revenue laws, generally, which impose taxes collected by the means ordinarily resorted to for the collection of taxes are not classed as penal laws, although there are authorities to the contrary. (SeeSutherland, Statutory Construction, 361; Twine Co. vs. Worthington, 141 U. S., 468; 12 Sup. Ct., 55; Rice vs. U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs. Standard Oil Co., 101 Pa. St., 150; State vs. Wheeler, 44 P., 430; 25 Nev. 143.) Article 22 of the Revised Penal Code is not applicable to the case at bar, and in the absence of clear legislative intent, we cannot give Act No. 3606 a retroactive effect.
(e) The plaintiff correctly states that the liability to pay a tax may arise at a certain time and the tax may be paid within another given time. As stated by this court, "the mere failure to pay one's tax does not render one delinqent until and unless the entire period has eplased within which the taxpayer is authorized by law to make such payment without being subjected to the payment of penalties for fasilure to pay his taxes within the prescribed period." (U. S. vs. Labadan, 26 Phil., 239.)
The defendant maintains that it was the duty of the executor to pay the inheritance tax before the delivery of the decedent's property to the trustee. Stated otherwise, the defendant contends that delivery to the trustee was delivery to the cestui que trust, the beneficiery in this case, within the meaning of the first paragraph of subsection (b) of section 1544 of the Revised Administrative Code. This contention is well taken and is sustained. The appointment of P. J. M. Moore as trustee was made by the trial court in conformity with the wishes of the testator as expressed in his will. It is true that the word "trust" is not mentioned or used in the will but the intention to create one is clear. No particular or technical words are required to create a testamentary trust (69 C. J., p. 711). The words "trust" and "trustee", though apt for the purpose, are not necessary. In fact, the use of these two words is not conclusive on the question that a trust is created (69 C. J., p. 714). "To create a trust by will the testator must indicate in the will his intention so to do by using language sufficient to separate the legal from the equitable estate, and with sufficient certainty designate the beneficiaries, their interest in the ttrust, the purpose or object of the trust, and the property or subject matter thereof. Stated otherwise, to constitute a valid testamentary trust there must be a concurrence of three circumstances: (1) Sufficient words to raise a trust; (2) a definite subject; (3) a certain or ascertain object; statutes in some jurisdictions expressly or in effect so providing." (69 C. J., pp. 705,706.) There is no doubt that the testator intended to create a trust. He ordered in his will that certain of his properties be kept together undisposed during a fixed period, for a stated purpose. The probate court certainly exercised sound judgment in appointment a trustee to carry into effect the provisions of the will (see sec. 582, Code of Civil Procedure).
P. J. M. Moore became trustee on March 10, 1924. On that date trust estate vested in him (sec. 582 in relation to sec. 590, Code of Civil Procedure). The mere fact that the estate of the deceased was placed in trust did not remove it from the operation of our inheritance tax laws or exempt it from the payment of the inheritance tax. The corresponding inheritance tax should have been paid on or before March 10, 1924, to escape the penalties of the laws. This is so for the reason already stated that the delivery of the estate to the trustee was in esse delivery of the same estate to the cestui que trust, the beneficiary in this case. A trustee is but an instrument or agent for the cestui que trust (Shelton vs. King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed., 1086). When Moore accepted the trust and took possesson of the trust estate he thereby admitted that the estate belonged not to him but to his cestui que trust (Tolentino vs. Vitug, 39 Phil.,126, cited in 65 C. J., p. 692, n. 63). He did not acquire any beneficial interest in the estate. He took such legal estate only as the proper execution of the trust required (65 C. J., p. 528) and, his estate ceased upon the fulfillment of the testator's wishes. The estate then vested absolutely in the beneficiary (65 C. J., p. 542).
The highest considerations of public policy also justify the conclusion we have reached. Were we to hold that the payment of the tax could be postponed or delayed by the creation of a trust of the type at hand, the result would be plainly disastrous. Testators may provide, as Thomas Hanley has provided, that their estates be not delivered to their beneficiaries until after the lapse of a certain period of time. In the case at bar, the period is ten years. In other cases, the trust may last for fifty years, or for a longer period which does not offend the rule against petuities. The collection of the tax would then be left to the will of a private individual. The mere suggestion of this result is a sufficient warning against the accpetance of the essential to the very exeistence of government. (Dobbins vs. Erie Country, 16 Pet., 435; 10 Law. ed., 1022; Kirkland vs. Hotchkiss, 100 U. S., 491; 25 Law. ed., 558; Lane County vs. Oregon, 7 Wall., 71; 19 Law. ed., 101; Union Refrigerator Transit Co. vs. Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 Law. ed., 150; Charles River Bridge vs. Warren Bridge, 11 Pet., 420; 9 Law. ed., 773.) The obligation to pay taxes rests not upon the privileges enjoyed by, or the protection afforded to, a citizen by the government but upon the necessity of money for the support of the state (Dobbins vs. Erie Country, supra). For this reason, no one is allowed to object to or resist the payment of taxes solely because no personal benefit to him can be pointed out. (Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43 Law. ed., 740.) While courts will not enlarge, by construction, the government's power of taxation (Bromley vs. McCaughn, 280 U. S., 124; 74 Law. ed., 226; 50 Sup. Ct. Rep., 46) they also will not place upon tax laws so loose a construction as to permit evasions on merely fanciful and insubstantial distictions. (U. S. vs. Watts, 1 Bond., 580; Fed. Cas. No. 16,653; U. S. vs. Wigglesirth, 2 Story, 369; Fed. Cas. No. 16,690, followed in Froelich & Kuttner vs. Collector of Customs, 18 Phil., 461, 481; Castle Bros., Wolf & Sons vs. McCoy, 21 Phil., 300; Muñoz & Co. vs. Hord, 12 Phil., 624; Hongkong & Shanghai Banking Corporation vs. Rafferty, 39 Phil., 145; Luzon Stevedoring Co. vs. Trinidad, 43 Phil., 803.) When proper, a tax statute should be construed to avoid the possibilities of tax evasion. Construed this way, the statute, without resulting in injustice to the taxpayer, becomes fair to the government.
That taxes must be collected promptly is a policy deeply intrenched in our tax system. Thus, no court is allowed to grant injunction to restrain the collection of any internal revenue tax ( sec. 1578, Revised Administrative Code; Sarasola vs. Trinidad, 40 Phil., 252). In the case of Lim Co Chui vs. Posadas (47 Phil., 461), this court had occassion to demonstrate trenchment adherence to this policy of the law. It held that "the fact that on account of riots directed against the Chinese on October 18, 19, and 20, 1924, they were prevented from praying their internal revenue taxes on time and by mutual agreement closed their homes and stores and remained therein, does not authorize the Collector of Internal Revenue to extend the time prescribed for the payment of the taxes or to accept them without the additional penalty of twenty five per cent." (Syllabus, No. 3.)
". . . It is of the utmost importance," said the Supreme Court of the United States, ". . . that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is developed of collecting the taxes, may derange the operations of government, and thereby, cause serious detriment to the public." (Dows vs. Chicago, 11 Wall., 108; 20 Law. ed., 65, 66; Churchill and Tait vs. Rafferty, 32 Phil., 580.)
It results that the estate which plaintiff represents has been delinquent in the payment of inheritance tax and, therefore, liable for the payment of interest and surcharge provided by law in such cases.
The delinquency in payment occurred on March 10, 1924, the date when Moore became trustee. The interest due should be computed from that date and it is error on the part of the defendant to compute it one month later. The provisions cases is mandatory (see and cf. Lim Co Chui vs. Posadas, supra), and neither the Collector of Internal Revenuen or this court may remit or decrease such interest, no matter how heavily it may burden the taxpayer.
To the tax and interest due and unpaid within ten days after the date of notice and demand thereof by the Collector of Internal Revenue, a surcharge of twenty-five per centum should be added (sec. 1544, subsec. (b), par. 2, Revised Administrative Code). Demand was made by the Deputy Collector of Internal Revenue upon Moore in a communiction dated October 16, 1931 (Exhibit 29). The date fixed for the payment of the tax and interest was November 30, 1931. November 30 being an official holiday, the tenth day fell on December 1, 1931. As the tax and interest due were not paid on that date, the estate became liable for the payment of the surcharge.
In view of the foregoing, it becomes unnecessary for us to discuss the fifth error assigned by the plaintiff in his brief.
We shall now compute the tax, together with the interest and surcharge due from the estate of Thomas Hanley inaccordance with the conclusions we have reached.
At the time of his death, the deceased left real properties valued at P27,920 and personal properties worth P1,465, or a total of P29,385. Deducting from this amount the sum of P480.81, representing allowable deductions under secftion 1539 of the Revised Administrative Code, we have P28,904.19 as the net value of the estate subject to inheritance tax.
The primary tax, according to section 1536, subsection (c), of the Revised Administrative Code, should be imposed at the rate of one per centum upon the first ten thousand pesos and two per centum upon the amount by which the share exceed thirty thousand pesos, plus an additional two hundred per centum. One per centum of ten thousand pesos is P100. Two per centum of P18,904.19 is P378.08. Adding to these two sums an additional two hundred per centum, or P965.16, we have as primary tax, correctly computed by the defendant, the sum of P1,434.24.
To the primary tax thus computed should be added the sums collectible under section 1544 of the Revised Administrative Code. First should be added P1,465.31 which stands for interest at the rate of twelve per centum per annum from March 10, 1924, the date of delinquency, to September 15, 1932, the date of payment under protest, a period covering 8 years, 6 months and 5 days. To the tax and interest thus computed should be added the sum of P724.88, representing a surhcarge of 25 per cent on both the tax and interest, and also P10, the compromise sum fixed by the defendant (Exh. 29), giving a grand total of P3,634.43.
As the plaintiff has already paid the sum of P2,052.74, only the sums of P1,581.69 is legally due from the estate. This last sum is P390.42 more than the amount demanded by the defendant in his counterclaim. But, as we cannot give the defendant more than what he claims, we must hold that the plaintiff is liable only in the sum of P1,191.27 the amount stated in the counterclaim.
The judgment of the lower court is accordingly modified, with costs against the plaintiff in both instances. So ordered.
Avanceña, C.J., Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.
Villa-Real, J., concurs.
De Leon vs. Molo-Peckson (1962)
RESURRECCION DE LEON, ET AL., plaintiffs-appellees,
vs.
EMILIANA MOLO-PECKSON, ET AL., respondents-appellants.
Cornelio R. Magsarili for plaintiffs-appellees.
Sycip, Salazar, Luna and Associates for respondents-appellants.
BAUTISTA ANGELO, J.:
Resurreccion De Leon, et al. filed on November 13, 1958 before the Court of First Instance of Rizal a complaint seeking to compel Emiliana Molo-Peckson, et al. to convey to the former ten parcel of land located in Pasay City with an area of 1,749 sq. m. upon payment of P1.00 per parcel upon the plea that said lots were willed or donated in 1948 to the latter by their foster parents Mariano Molo y Legaspi and Juana Juan with the understanding that they should sell them to the plaintiffs under the terms above-stated.
Defendants, in their answer, disclaimed any legal obligation on their part to sell the above properties to the plaintiffs for the nominal consideration of P1.00 per lot alleging that if they executed the document on which the complaint is predicated it was on the mistaken assumption that their foster parents had requested them that they executed on August 9, 1956 a document revoking said donation which was acknowledged before Notary Public Leoncio C. Jimenez.
No testimonial evidence was presented by either party. Instead, both agreed to submit the case upon the presentation of their respective exhibits which were all admitted by the trial court.
After trial on the merits, the court a quo rendered on September 21, 1960 a decision wherein it held that, under the facts established by the evidence, trust has been constituted by the late spouses Mariano Molo and Juana Juan over the ten parcels of land in question in favor plaintiffs as beneficiaries and, as a consequence concluded:
Considering all the foregoing, the Court orders:
1. The defendants, jointly and severally to free the said ten (10) parcels of land from the mortgage lien in favor of the Rehabilitation Finance Corporation (now Development Bank of the Philippines) and Claro Cortez, and thereafter to sign and execute in favor of the plaintiffs a deed of absolute sale of the said properties for and in consideration of TEN (P10.00) PESOS already deposited in Court after all conditions imposed in Exhibit A have been complied with;
2. That in the event the defendants shall refuse to execute and perform the above, they are ordered, jointly and severally, to pay the plaintiffs the value of said ten (10) parcels of land in question, the amount to be assessed by the City of Pasay City as the fair market value of the same, upon orders of the Court to assess said value;
3. The defendants jointly and severally to pay the plaintiffs' Attorney's fees in the amount of P3,000.00, as defendants acted in gross and evident bad faith in refusing to satisfy the plaintiffs' plainly valid, just and demandable claim, under Article 2208 sub-paragraph 5 of the New Civil Code;
4. The defendants to render an accounting of the fruits of said ten (10) parcels of land from the time plaintiffs demanded the conveyance of said parcels of land on August 11, 1956 as per Exhibits B and C, in accordance with the provisions of Article 1164, New Civil Code which provides that the creditor has a right to the fruit of the thing from the time the obligation to deliver it arises; and
5. The defendants to pay the costs.
Defendants took the present appeal.
On January 24, 1941, Mariano Molo y Legaspi died leaving a will wherein he bequeathed his entire estate to his wife, Juana Juan. This will was probated in the Court of First Instance of Pasay City, Rizal, which was affirmed by the Supreme Court on November 26, 1956 (G.R. No. L-8774). On May 11, 1948, Juana Juan in turn executed a will naming therein many devisees and legatees, one of whom is Guillermo San Rafael, mother of the plaintiffs and defendant Pilar Perez Nable. On June 7, 1948, however, Juana Juan executed a donation inter vivos in favor of Emiliana Molo-Peckson and Pilar Perez Nable of almost all of her entire property leaving only about P16,000.00 worth of property for the devisees mentioned in the will. Among the properties conveyed to the donees are the ten parcels of land subject of the present action. Juana Juan died on May 28, 1950.
On December 5, 1950, Emiliana Molo-Peckson and Pilar Perez Nable executed a document which they called "MUTUAL AGREEMENT" the pertinent provisions of which are:
That the above named parties hereby mutually agree by these presents . . . that the following lots should be sold at ONE (1) PESO each to the following persons and organization:
TO — JUSTA DE LEON and RESURRECCION DE LEON, several parcels of land located at Calle Tolentino (South of Tenorio and Kapitan Magtibay), Pasay City, share and share alike or half and half of TEN (10) LOTS described in:
Transfer Certificate of Title No. 28157 — and allocated as follows:
(a) To JUSTA DE LEON Five (5) Lots.
(b) To RESURRECCION DE LEON, the remaining Five (5) Lots.
That this agreement is made in conformity with the verbal wish of the late Don Mariano Molo y Legaspi and the late Dona Juana Francisco Juan y Molo. These obligations were repeatedly told to Emiliana Molo Peckson, before their death and that same should be fulfilled after their death.
On August 9, 1956, however, the same defendants, assisted by their husbands, executed another document in which they revoked the so-called mutual agreement mentioned above, and another relating to the same subject matter, stating therein that the parties, "after matured and thorough study, realized that the above-mentioned public instruments . . . do not represent their true and correct interpretation of the verbal wishes of the late spouses Don Mariano Molo y Legaspi and Dona Juana Francisco Juan y Molo." But after the execution of this document, that is, on August 11, 1956, the beneficiary Resurreccion de Leon and Justa de Leon, thru their counsel demanded the conveyance to them of the ten parcels of land for the consideration of P1.00 per parcel as stated in the document of December 5, 1950. And having the defendants refused to do so, said beneficiaries consigned on July 8, 1957 the amount of P10.00 as the consideration of the ten parcels of land.lawphil.net
In this appeal, appellants assign the following errors:
I
THE LOWER COURT ERRED IN HOLDING THAT THE SPOUSES, MARIANO MOLO AND JUANA JUAN, CONSTITUTED A TRUST OVER THE PROPERTIES IN QUESTION PETITION WITH PLAINTIFFS-APPELLEES AS BENEFICIARIES.
II
THE LOWER COURT ERRED IN APPLYING ARTICLE 1440, 1441, 1449, 1453 AND 1457 OF THE NEW CIVIL CODE TO THE CASE AT BAR.
III
THE LOWER COURT ERRED IN HOLDING PLAINTIFFS-APPELLEES' EXHIBIT "A" TO BE A DECLARATION AGAINST INTEREST AND AN ADMISSION BY DEFENDANTS-APPELLANTS.
IV
THE LOWER COURT ERRED IN HOLDING THAT DEFENDANTS-APPELLANTS HAD NO RIGHT TO REVOKE EXHIBIT "A".
V
THE LOWER COURT ERRED, IN ORDERING APPELLANTS TO RENDER AN ACCOUNTING OF THE FRUIT OF THE PROPERTIES IN QUESTION.
VI
THE LOWER COURT ERRED IN ORDERING APPELLANTS TO FREE THE PROPERTIES FROM THE MORTGAGE LIENS IN FAVOR OF THE DEVELOPMENT BANK OF THE PHILIPPINES AND CLARO CORTEZ.
VII
THE LOWER COURT ERRED IN AWARDING ATTORNEY'S FEES TO THE APPELLEES.
VIII
THE LOWER COURT ERRED IN NOT DISMISSING THE COMPLAINT.
There is no merit in the claim that the document executed on December 5, 1950 does not represent the true and correct interpretation by appellants of the verbal wish of their foster parents relative to the conveyance for a nominal consideration to appellees of the ten parcels of land in question considering the circumstances obtaining in the present case. To begin with, this document was executed by appellants on December 5, 1950, or about two years and six months from the time they acquired title to the lands by virtue of the donation inter vivos executed in their favor by their foster mother Juana Juan and six months after the death of the donor. There is nobody who could cajole them to execute it, nor is there any force that could corce them to make the declaration therein expressed, except the constraining mandat of their conscience to comply with "the obligations repeatedly told to Emiliana Molo Peckson," one of appellants, before their death, epitomized inthe "verbal wish of the late Don Mariano Molo y Legaspi and the late Doña Juana Francisco Juan y Molo" to convey after their death said ten parcelsof land at P1.00 a parcel to appellees. In fact, the acknowledgement appended to the document they subscribed states that it was "their own free act andvoluntary deed."1awphi1.net
Indeed, it is to be supposed that appellants understood and comprehended the legal import of said documents when they executed it more so when bothof them had studied in reputable centers of learning, one being a pharmacist and the other a member of the bar. Moreover, they have more than ample time — the six months intervening betwen the death of the donor and the execution of the document — to ponder not only wish of their predecessors-in-interest but also on the propriety of putting in writing the mandate they have received. It is, therefore, reasonable to presume that that document represents the real wish of appellants' predecessors-in-interest and that the only thing to be determinedis its real import and legal implications.
That the document represents a recognition of pre-existing trust or a declaration of an express trust impressed on the ten parcels of land in question is evident. A declaration of trust has been defined as an act by which a person acknowledges that the property, title to which he holds, is held by him for the use of another (Griffith v. Maxfield, 51 S.W. 832, 66Ark. 513, 521). This is precisely the nature of the will of the donor: to convey the titles of the lands to appellants with the duty to hold them intrust for the appellees. Appellants oblingly complied with this duty byexecuting the document under consideration.
True it is that to establish a trust the proof must be clear, satisfactory and convincing. It cannot rest on vague, uncertain evidence, or on a loose,equivocal or indefinite declaration (In re Tuttle's Estate, 200 A. 921, 132 Pa. Super 356); but here the document in question clearly and unequivocallydeclares the existence of the trust even if the same was executed subsequent to the death of the trustor, Juana Juan, for it has been held that the right creating or declaring a trust need not be contemporaneous or inter-parties (Stephenson v. Stephenson, 171 S.W. 2d 265, 351 Mo. 8; In re Corbin's Trust Orhp., 57 York Leg. Rec. 201). It was even held that an express trust maybe declared by a writing made after the legal estate has been vested in the trustee (Kurtz v. Robinson, Tex. Civ. App. 256 S.W. 2d 1003). The contention, therefore, of appellants that the will and the donation executed by their predecessors-in-interest were absolute for it did not contain a hint that the lots in question will be held in trust by them does not merit weight because the fact that an express trust was created by a deed which was absolute on its face may be shown by a writing separate from the deed itself (Mugan v. Wheeler, 145 S.W. 462, 241 Mo. 376).
The fact that the beneficiaries were not notified of the existence of the trust or that the latter have not been given an opportunity to accept it isof no importance, for it is not essential to the existence of a valid trustand to the right of the beneficiaries to enforce the same that they had knowledge thereof the time of its creation (Stoehr v. Miller, 296 F. 414).Neither is it necessary that the beneficiary should consent to the creation of the trust (Wockwire-Spencer Steel Corporation v. United Spring Mfg. Co.,142 N.E. 758, 247 Mass. 565). In fact it has been held that in case of a voluntary trust the assent of the beneficiary is not necessary to render itvalid because as a general rule acceptance by the beneficiary is presumed (Article 1446, new Civil Code; Cristobal v. Gomez, 50 Phil. 810).
It is true, as appellants contend, that the alleged declaration of trust was revoked, and having been revoked it cannot be accepted, but the attempted revocation did not have any legal effect. The rule is that in the absence of any reservation of the power to revoke a voluntary trust is irrevocable without the consent of the beneficiary (Allen v. Safe Deposit and Trust Co.of Baltimore, 7 A. 2d 180, 177 Md. 26). It cannot be revoked by the creatoralone, nor by the trustee (Fricke v. Weber, C.C.A. Ohio, 145 F. 2d 737;Hughes v. C.I.R., C.C.A. 9, 104 F. 2d 144; Ewing v. Shannahan, 20 S.W. 1065,113 Mo. 188). Here, there is no such reservation.
Appellants contend that the lower court erred in applying the provisions of the new Civil Code on trust. This is correct. The express trust was constituted during the lifetime of the predecessor-in-interest of appellants,that is, before the effectivity of the new Civil Code, although the instrumentrecognizing and declaring such trust was executed on December 5, 1950, afterthe effectivity of said Code. The Civil Code of 1889 and previous laws andauthorities on the matter, therefore, should govern the herein trust under the provisions of Article 2253 of the new Civil code.
But the Civil Code of 1889 contains no specific provisions on trust as doesthe new Civil Code. Neither does the Code of Civil Procedure of 1901 for thesame merely provides for the proceeding to be followed relative to trustsand trustees (Chapter XVIII). This silence, however, does not mean that thejuridical institution of trust was then unknown in this jurisdiction, for theprinciples relied upon by the Supreme Court before the effectivity of thenew Civil Code were those embodied in Anglo-American jurisprudence as derivedfrom the Roman and Civil Law principles (Government v. Abadilla, 46 Phil. 42).And these are the same principles on which we predicate our ruling heretoforestated and on which we now rely for the validity of trust in question.
The trial court ordered appellants to render an accounting of the fruits of the properties in question even if appellees did not expressly ask for it intheir prayer for relief. We, however, believe that this is covered by the general prayer "for such other relief just and equitable under the premises."What is important is to know from what what date the accounting should bemade. The trial court ordered that the accounting be made from the time appellees demanded the conveyance of the ten parcels of land on August 11, 1956, in accordance with Article 1164 of the new Civil Code which provides that the creditor has a right to the fruit of the thing from thetime the obligation to deliver it arises. But this cannot be done without first submitting proof that the conditions stated in the mutual agreement hadbeen complied with. And this only happened when the decision of the Supreme Court in G.R. No. L-8774 became final and executory. The ruling of the trialcourt in this respect should therefore be modified in the sense that the accounting should be made from the date of the finality of the said decision.
We find no error in the directive of the trial court that appellants shouldfree the lands in question from the encumbrance that was created thereon by them in favor of the Development Bank of the Philippines and one Claro cortez, for as trustees it is their duty to deliver the properties to the cestui que trust free from all liens and encumbrances.
To recapitulate, we hold: (1) that the document executed on December 5, 1950 creates an express trust in favor of appellees; (2) that appellants had no right to revoke it without the consent of the cestui que trust; (3) that appellants must render an accounting of the fruits of the lands from the datethe judgement rendered in G.R. No. L-8774 became final and executory; and (4)that appellants should free said lands from all liens and encumbrances.
WHEREFORE, with the modification as above indicated with regard to accounting,we hereby affirm the decision appealed from, without pronouncement as to costs.
Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.
Padilla and Concepcion, JJ., took no part.
VI. Adoption and Custody of Minors
RULE 99-100: ADOPTION (note however that this has been Expressly repealed)
SECTION 1. Venue.— A person desiring to adopt another or have the custody of a minor shall present his petition to the Regional Trial Court of the province, or the city or municipal court of the city or municipality in which he resides.
In the City of Manila, the proceedings shall be instituted in the Juvenile and Domestic Relations Court.
SEC. 2. Contents of petition.—The petition for adoption shall contain the same allegations required in a petition for guardianship, to wit:
(a) The jurisdictional facts;
(b) The qualifications of the adopter;
(c) That the adopter is not disqualified by law;
(d) The name, age, and residence of the person to be adopted and of his relatives or of the persons who have him under their care;
(e) The probable value and character of the estate of the person to be adopted.
SEC. 3. Consent to adoption.—There shall be filed with the petition a written consent to the adoption signed by the child, if fourteen years of age or over and not incompetent, and by the child's spouse, if any, and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned such child, or if there are no such parents by the general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan asylum, children's home, or benevolent society or person, by the proper officer or officers of such asylum, home, or society, or by such person; but if the child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be required.
If the person to be adopted is of age, only his or her consent and that of the spouse, if any, shall be required.
SEC. 4. Order for hearing.—If the petition and consent filed are sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, which date shall not be more than six (6) months after the entry of the order, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best.
SEC. 5. Hearing and judgment.—Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed, that the allegations of the petition are true, and that it is a proper case for adoption and the petitioner or petitioners are able to bring up and educate the child properly, the court shall adjudge that thenceforth the child is freed from all legal obligations of obedience and maintenance with respect to its natural parents, except the mother when the child is adopted by her husband, and is, to all legal intents and purposes, the child of the petitioner or petitioners, and that its surname is changed to that of the petitioner or petitioners. The adopted person or child shall thereupon become the legal heir of his parents by adoption and shall also remain the legal heir of his natural parents. In case of the death of the adopted person or child, his parents and relatives by nature, and not by adoption, shall be his legal heirs.
SEC. 6. Proceedings as to child whose parents are separated. Appeal.—When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody, and control of a child or children of their marriage is brought before a Regional Trial Court by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody, and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with it be over ten years of age, unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. If, upon such hearing, it appears that both parents are improper persons to have the care, custody, and control of the child, the court may either designate the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum, children's home, or benevolent society. The court may in conformity with the provisions of the Civil Code order either or both parents to support or help support said child, irrespective of who may be its custodian, and may make any order that is just and reasonable permitting the parent who is deprived of its care and custody to visit the child or have temporary custody thereof. Either parent may appeal from an order made in accordance with the provisions of this section. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor.
SEC. 7. Proceedings as to vagrant or abused child.—When the parents of any minor child are dead, or by reason of long absence or legal or physical disability have abandoned it, or cannot support it through vagrancy, negligence, or misconduct, or neglect or refuse to support it, or treat it with excessive harshness or give it corrupting orders, counsels, or examples, or cause or allow it to engage in begging, or to Commit offenses against the law, the proper Regional Trial Court, upon petition filed by some reputable resident of the province setting forth the facts, may issue an order requiring such parents for show cause, or, if the parents are dead or cannot be found, requiring the fiscal of the province to show cause, at a time and place fixed in the order, why the child should not be taken from its parents, if living; and if upon the hearing it appears that the allegations of the petition are true, and that it is for the best interest of the child, the court may make an order taking it from its parents, if living; and committing it to any suitable orphan asylum, children's home, or benevolent society or person to be ultimately placed, by adoption or otherwise, in a home found for it by such asylum, children's home, society, or person.
SEC. 8. Service of judgment.—Final orders or judgments under this rule shall be served by the clerk upon the civil registrar of the city or municipality wherein the court issuing the same is situated.
RULE 100: RESCISSION AND REVOCATION OF ADOPTION
SECTION 1. Who may file petition; grounds.—A minor or other incapacitated person may, through a guardian or guardian ad litem, petition for the rescission or revocation of his or her adoption for the same causes that authorize the deprivation of parental authority.
The adopter may, likewise petition the court for the rescission or revocation of the adoption in any of these cases:
(a) If the adopted person has attempted against the life of the adopter;
(b) When the adopted minor has abandoned the home of the adopter for more than three (3) years;
(c) When by other acts the adopted person has repudiated the adoption.
SEC. 2. Order to answer.—The court in which the petition is filed shall issue and order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof. The order and a copy of the petition shall be served on the adverse party in such manner as the court may direct.
SEC. 3. Judgment.—If upon trial, on the day set therefor, the court finds that the allegations of the petition are true, it shall render judgment ordering the rescission or revocation of the adoption, with or without costs, as justice requires.
SEC. 4. Service of judgment.—A certified copy of the judg ment rendered in accordance with the next preceding section shall be served upon the civil registrar concerned; within thirty (30) days from rendition thereof, who shall forthwith enter the action taken by the court in the register.
SEC. 5. Time within which to file petition.—A minor or other incapacitated person must file the petition for rescission or revocation of adoption within the five (5) years following his majority, or if he was incompetent at the time of the adoption, within the five (5) years following the recovery from such incompetency.
The adopter must also file the petition to set aside the adoption within five (5) years from the time the cause or causes giving rise to the rescission or revocation of the same took place.
[A.m. No. 02-6-02-SC 2002-08-02]: RULE ON ADOPTION
(just look at Herrera notes)
VII.Proceeding for Hospitalization of Insane Person
RULE 101: PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSONS
SECTION 1. Venue. Petition for commitment.—A petition for the commitment of a person to a hospital or other place for the insane may be filed with the Regional Trial Court of the province where the person alleged to be insane is found. The petition shall be filed by the Director of Health in all cases where, in his opinion, such commitment is for the public welfare, or for the welfare of said person who, in his judgment, is insane, and such person or the one having charge of him is opposed to his being taken to a hospital or other place for the insane.
SEC. 2. Order for hearing.—If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date for the hearing thereof, and copy of such order shall be served on the person alleged to be insane, and to the one having charge of him, or on such of his relatives residing in the province or city as the judge may deem proper. The court shall furthermore order the sheriff to produce the alleged insane person, if possible, on the date of the hearing.
SEC. 3. Hearing and judgment.—Upon satisfactory proof, in open court on the date fixed in the order, that the commitment applied for is for the public welfare or for the welfare of the insane person, and that his relatives are unable for any reason to take proper custody and care of him, the court shall order his commitment to such hospital or other place for the insane as may be recommended by the Director of Health. The court shall make proper provisions for the custody of property or money belonging to the insane until a guardian be properly appointed.
SEC. 4. Discharge of insane.—When, in the opinion of the Director of Health, the person ordered to be committed to a hospital or other place for the insane is temporarily or permanently cured, or may be released without danger he may file the proper petition with the Regional Trial Court which ordered the commit ment.
SEC. 5. Assistance of fiscal in the proceeding.—It shall be the duty of the provincial fiscal or in the City of Manila the fiscal of the city, to prepare the petition for the Director of Health and represent him in court in all proceedings arising under the provisions of this rule.
Chin Ah Foo v. Concepcion (1930)
CHIN AH FOO (alias CHAN FOO WOO) and YEE SHEE (alias YEE SUI YENG), widow of Chin Ah Kim, petitioners,
vs.
PEDRO CONCEPCION, Judge of First Instance of Manila, and LEE VOO, respondents.
Harvey and O'Brien for petitioners.
Lazaro Pormarejo for respondent Lee Voo.
J. A. Wolfson for respondent judge.
MALCOLM, J.:
The question for decision in this certiorari proceeding concerns the power of a Judge of First Instance, who has in effect acquitted a man charged with murder on the plea of insanity, and who has ordered the confinement of the insane person in an asylum, subsequently to permit the insane person to leave the asylum without the acquiescence of the Director of Health. Otherwise stated, the factor determinative of the question has to do with the effect, if any, of section 1048 of the Administrative Code on article 8 of the Penal Code.
On November 15, 1927, one Chan Sam (alias Chin Ah Woo), was charged in the Court of First Instance of Manila with the murder of Chin Ah Kim. Thereafter, the trial judge rendered judgment declaring the accused not responsible for the crime, and dismissing the case, but requiring the reclusion of the accused for treatment in San Lazaro Hospital, in accordance with article 8 of the Penal Code, with the admonition that the accused be not permitted to leave the said institution without first obtaining the permission of the court. In compliance with this order, Chan Sam was confined for approximately two years in San Lazaro Hospital. During this period, efforts to obtain his release were made induced by the desire of his wife and father-in-law to have him proceed to Hongkong. Opposition to the allowance of the motions came from the wife and children of the murdered man, who contended that Chan Sam was still insane, and that he had made threats that if he ever obtained his liberty he would kill the wife and the children of the deceased and probably other members of his own family who were living in Hongkong. These various legal proceedings culminated in Doctors Domingo and De los Angeles being delegated to examine and certify the mental condition of Chan Sam, which they did. After this report had been submitted, counsel for the oppositors challenged the jurisdiction of the court. However, the respondent judge sustained the court's right to make an order in the premises and allowed Chan Sam to leave the San Lazaro Hospital to be turned over to the attorney-in-fact of his wife so that he might be taken to Hongkong to join his wife in that city.
Article 8 of the Penal Code, pursuant to which the trial judge purported to act in issuing his order of release, provides that among those exempt from criminal liability are:
1. An imbecile or lunatic, unless the latter has acted during the lucid interval.
When the imbecile or lunatic has committed an act which the law defines as a grave felony, the court shall order his confinement in one of the asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court.
Section 1048 of the Administrative Code, which, it is argued, has superseded or supplemented article 8 of the Penal Code, provides as to the discharge of a patient from custody from a hospital for the insane the following:
When in the opinion of the Director of Health any patient in any Government hospital or other place for the insane is temporarily or permanently cured, or may be released without danger, he may discharge such patient, and shall notify the Judge of the Court of First Instance who ordered the commitment, in case the patient is confined by order of the court.
An examination of article 8, paragraph 1, of the Penal Code discloses that the permission of the court who orders the confinement of one accused of a grave felony in an insane asylum is a prerequisite for obtaining release from the institution. The respondent judge has based his action in this case on this provision of the law. On the other hand, section 1048 of the Administrative Code grants to the Director of Health authority to say when a patient may be discharged from an insane asylum. There is no pretense that the Director of Health has exercised his authority in this case, or that the head of the Philippine Health Service has been asked to express his opinion.
Contrasting the two provisions of Philippine law which have been mentioned, it is self-evident that for section 1048 of the Administrative Code to prevail exclusively it would be necessary to find an implied repeal of a portion of article 8 of the Penal Code. But it is a well-known rule of statutory construction that when there is no express repeal none is presumed to be intended. The most reasonable supposition is that when the Legislature placed the provision, from which section 1048 of the Administrative Code was derived, on the statute books, it did so without any consideration as to the effect of the new law on article 8 of the Penal Code. It is likewise a canon of statutory construction that when two portions of the law can be construed so that both can stand together, this should be done. In this respect, we believe that the authority of the courts can be sustained in cases where the courts take action, while the authority of the Director of Health can be sustained in other cases not falling within the jurisdiction of the courts. This latter construction is reinforced by that portion of section 1048 of the Administrative Code which requires the Director of Health to notify the Judge of First Instance who ordered the commitment, in case the patients is confined by order of the court.
In 1916, the Director of Health raised this same question. He then took the view that section 7 of Act No. 2122, now incorporated in the Administrative Code as section 1048, applied to all cases of confinement of persons adjudged to be insane in any Government hospital or other places for the insane, and that the entire discretion as to the sanity of any patient whatever was vested by this section exclusively in the Director of Health. The Attorney-General, who at that time was Honorable Ramon Avanceña, ruled against the Director of Health, saying that "the Legislature could not have intended to vest in the Director of Health the power to release, without proper judicial authority, any person confined by order of the court in an asylum pursuant to the provisions of article 8 of the Penal Code."
In at least two cases, United States vs. Guendia ([1917], 37 Phil., 337), and People vs. Bascos ([1922], 44 Phil., 204), this court has relied on article 8, paragraph 1, of the Penal Code. The judgments in the cited cases concluded with this order: "The defendant shall be kept in confinement in the San Lazaro Hospital, or such other hospital for the insane as the Director of Health may direct, and shall not be permitted to depart therefrom without the prior approval of the Court of First Instance of the Province of Iloilo (Pangasinan)."
Due to differences in statutory provisions, the American authorities on the question are not very helpful. However, one case has been found where the facts were practically identical with the ones before us, where the law is much the same as Philippine Law, and where the procedure which should be followed was outlined by the Supreme Court of the State of Washington. We refer to the case of State vs. Snell ([1908], 49 Wash., 177). In the decision in the cited case, the court, speaking through Justice Rudkin, said:
On the 7th day of July, 1906, the relator, Chester Thompson, killed George Meade Emory in the City of Seattle, and by reason thereof was informed against in the superior court of King county for the crime of murder. A plea of not guilty was interposed, and the place of trial was changed to the superior court of Pierce county. The relator was tried in the latter court before the respondent as presiding judge, and the jury be returned a verdict of not guilty by reason of insanity. On the 3rd day of May, 1907, the respondent entered an order reciting that the relator was then insane; that he had been acquitted of the crime of murder by reason of insanity; that his discharge or going at large would be manifestly dangerous to the peace and safety of the community; and committed him to the county jail of Pierce county. It was further ordered that, on the 12th day of June, 1907, the relator should be taken from the county jail of Pierce county and transferred to the state penitentiary at Walla Walla, to be there confined in the ward set apart for the confinement, custody, and keeping of the criminal insane until the further order of the court and until discharge therefrom by due process of law. The relator was committed to the county jail and thereafter transferred to the insane ward of the penitentiary in obedience to this order, and is now confined in the latter institution. On the 19th day of February, 1908, he applied to the physician in charge of the criminal insane at the state penitentiary for an examination of his mental condition and fitness to be at large, as provided in section 6 of the act of February 21, 1907, entitled, "An act relating to the criminal insane, their trial, commitment, and custody." Laws of 1907, page 33. After such examination, the physician certified to the warden of the penitentiary that he had reasonable cause to believe that the relator had become sane since his commitment, and was a safe person to be at large. The warden thereupon granted the relator permission to present a petition to the court that committed him, setting up the facts leading to his commitment, and that he had become sane and mentally responsible, and in such condition that he is a safe person to be at large, and praying for his discharge from custody. A petition in due form was thereupon presented to the respondent judge, after service thereof upon the prosecuting attorney of Pierce county, but the respondent refused to set the matter down for hearing or to entertain jurisdiction of the proceeding,. . . . Application was there-upon made to this court for a writ of mandamus, requiring the respondent to set the petition down for hearing, and the case is now before us on the return to the alternative writ.
x x x x x x x x x
We are of opinion, therefore, that the procedure adopted by the relator is in conformity with the law, and the writ will issues as prayed.
The foregoing is our understanding of the law on the subject. The following represents our deductions and conclusions. Article 8 of the Penal Code has not been impliedly repealed by section 1048 of the Administrative Code. Article 8 of the Penal Code and section 1048 of the Administrative Code can be construed so that both can stand together. Considering article 8 of the Penal Code as in force and construing this article and section 1048 of the Administrative Code, we think that the Attorney-General was right in expressing the opinion that the Director of Health was without power to release, without proper judicial authority, any person confined by order of the court in an asylum pursuant to the provisions of article 8 of the Penal Code. We think also that the converse proposition is equally tenable, and is that any person confined by order of the court in an asylum in accordance with article 8 of the Penal Code cannot be discharged from custody in an insane asylum until the views of the Director of Health have been ascertained as to whether or not the person is temporarily or permanently cured or may be released without danger. In other words, the powers of the courts and the Director of Health are complementary each with the other. As a practical observation, it may further be said that it is well to adopt all reasonable precautions to ascertain if a person confined in an asylum as insane should be permitted to leave the asylum, and this can best be accomplished through the joint efforts of the courts and the Director of Health in proper cases.
Various defenses were interposed by the respondents to the petition, but we have not been impressed with any of them except the ones which go to the merits. After thorough discussion, our view is that while the respondent Judge acted patiently and cautiously in the matters which came before him, yet he exceeded his authority when he issued his orders of December 26, 1929, and March 17, 1930, without first having before him the opinion of the Director of Health.
The writ prayed for will issue and the temporary restraining order will be made permanent, without costs.
Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.
VII. Habeas Corpus – Rule 102, Section 1-19
RULE 102: HABEAS CORPUS
SECTION 1. To what habeas corpus extends.—Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.
SEC. 2. Who may grant the writ.—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 Regional Trial Court, or any judge thereof for hearing and decision on the merits. It may also be granted by a Regional Trial Court, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district.
SEC. 3. Requisites of application therefor.—Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth:
(a) That the person in whose behalf the application is made is imprisoned or restrained of his liberty;
(b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended;
(c) The place where he is so imprisoned or restrained, if known;
(d) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear.
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.
SEC. 5. When the writ must be granted and issued.—A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it.
SEC. 6. To whom writ directed, and what to require.—In case of imprisonment or restraint by an officer, the writ shall be directed to him, and shall command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to an officer, and shall command him to take and have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint.
SEC. 7. How prisoner designated and writ served.—The person to be produced should be designated in the writ by his name, if known, but if his name is not known he may be otherwise described or identified. The writ may be served in any province by the sheriff or other proper officer, or by a person deputed by the court or judge. Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service. If that person cannot be found, or has not the prisoner in his custody, then the service shall be made on any other person having or exercising such custody.
SEC. 8. How writ executed and returned.—The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or, in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be brought before the court or judge; and the officer shall make due return of the writ, together with the day and the cause of the caption and restraint of such person according to the command thereof.
SEC. 9. Defect of form.—No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in whose custody or under whose restraint the party imprisoned or restrained is held and the court or judge before whom he is to be brought.
SEC. 10 Contents of return.—When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably:
(a) Whether he has or has not the party in his custody or power, or under restraint;
(b) If he has the party in his- custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held;
(c) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge;
(d) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made.
SEC. 11. Return to be signed and sworn to.—The return or statement shall be signed by the person who makes it; and shall also be sworn to by him if the prisoner is not produced, and in all other cases unless the return is made and signed by a sworn public officer in his official capacity.
SEC. 12. Hearing on return. Adjournments.—When the writ is returned before one judge, at a time when the court is in session, he may forthwith adjourn the case into the court, there to be heard and determined. The court or judge before whom the writ is returned or adjourned must immediately proceed to hear and examine the return, and such other matters as are properly submitted for consideration, unless for good cause shown the hearing is adjourned, in which event the court or judge shall make such order for the safekeeping of the person imprisoned or restrained as the nature of the case requires. If the person imprisoned or restrained is not produced because of his alleged sickness or infirmity, the court or judge must be satisfied that it is so grave that such person cannot be produced without danger, before proceeding to hear and dispose of the matter. On the hearing the court or judge shall disregard matters of form and technicalities in respect to any warrant or order of commitment of a court or officer authorized to commit by law.
SEC. 13. When the return evidence, and when only a plea.— If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint; but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts.
SEC. 14. When person lawfully imprisoned recommitted, and when let to bail.—If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge. If he be admitted to bail, he shall forthwith file a bond in such sum as the court or judge deems reasonable, considering the circumstances of the prisoner and the nature of the offense charged, conditioned for his appearance before the court where the offense is properly cognizable to abide its order or judgment; and the court or judge shall certify the proceedings, together with the bond, forthwith to the proper court. If such bond is not so filed, the prisoner shall be recommitted to confinement.
SEC. 15. When prisoner discharged if no appeal.—When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confine ment, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released.
SEC. 16. Penalty for refusing to issue writ, or for disobeying the same.—A clerk of a court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, and may also be punished by the court or judge as for contempt.
SEC. 17. Person discharged not to be again imprisoned.—A person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful order or process of a court having jurisdiction of the cause or offense; and a person who knowingly, contrary to the provisions of this rule, recommits or imprisons, or causes to be committed or imprisoned, for the same offense, or pretended offense, any person so set at liberty, or knowingly aids or assists therein, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, notwithstanding any colorable pretense or variation in the warrant of commitment, and may also be punished by the court or judge granting the writ as for contempt.
SEC. 18. When prisoner may be removed from one custody to another.—A person committed to prison, or in custody of an officer, for any criminal matter, shall not be removed therefrom into the custody of another officer unless by legal process, or the prisoner be delivered to an inferior officer to carry to jail or by order of the proper court or judge, be removed from one place to another within the Philippines for trial, or in case of fire, epidemic, insurrection, or other necessity or public calamity; and a person who, after such commitment, makes, signs, or countersigns any order for such removal contrary to this section, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action.
SEC. 19. Record of writ, fees and costs.—The proceedings upon a writ of habeas corpus shall be recorded by the clerk of the court, and upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires. The fees of officers and witnesses shall be included in the costs taxed, but no officer or person shall have the right to demand payment in advance of any fees to which he is entitled by virtue of the proceedings. When a person confined under color of proceedings in a criminal case is discharged, the costs shall be taxed against the Republic of the Philippines, and paid out of its Treasury; when a person in custody by virtue or under color of proceedings in a civil case is discharged, the costs shall be taxed against him, or against the person who signed the application for the writ, or both, as the court shall direct.
Writ of Amparo
A.M. No. 07-9-12-SC
(25 September 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 act or omission of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof.
SEC. 2. Who May File. – 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 the aggrieved party;
b. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or
c. Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.
The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein.
SEC. 3. Where to File. – The petition may be filed on any day and at any time with the Regional 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 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 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 their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.
SEC. 4. No Docket Fees. – The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately.
SEC. 5. Contents of 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 an assumed appellation;
c. The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;
d. The investigation conducted, if any, specifying the names, personal circumstances, and addresses 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 equitable reliefs.
SEC. 6. Issuance of the Writ. – Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it.
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 issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions.
SEC. 8. How the Writ is Served. – 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 to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply.
Sec. 9. Return; Contents. - Within FIVE (5) WORKING DAYS after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following:
(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 possession 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 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 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 PERIOD TO FILE A RETURN CANNOT BE EXTENDED EXCEPT ON HIGHLY MERITORIOUS GROUND.
The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case.
A general denial of the allegations in the petition shall not be allowed:
SEC. 10. Defenses not Pleaded Deemed Waived. — All defenses shall be raised in the return, otherwise, they shall be deemed waived.
Sec. 11. Prohibited Pleadings and Motions.- The following pleadings and motion 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 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, the court, justice or judge shall proceed to hear the petition ex parte.
SEC. 13. Summary Hearing. — The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.
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 motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved.
The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue.
The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge.
(b) Inspection Order. — The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.
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 merit of the opposition.
The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated.
The inspection order shall specify the person 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 of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons.
(c) Production Order. – The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.
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 to determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.
(d) Witness Protection Order. – The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.
SEC. 15. Availability of Interim Reliefs to Respondent. – Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section.
A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent.
SEC. 16. Contempt. – The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine.
SEC. 17. Burden of Proof and Standard of Diligence Required. – The parties shall establish their claims by substantial evidence.
The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.
The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability.
SEC. 18. Judgment. — The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.
SEC. 19. Appeal. – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.
The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.
The appeal shall be given the same priority as in habeas corpus cases.
SEC. 20. Archiving and Revival of Cases. – The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives.
A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further 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 of archived 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 by motion in the criminal case.
The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.
SEC. 23. 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 amparo, 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 the Rules 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.
SEC. 27. Effectivity. – This Rule shall take effect on October 24, 2007, following its publication in three (3) newspapers of general circulation.
Writ of Habeas Data
THE RULE ON THE WRIT OF HABEAS DATA
SECTION 1. Habeas Data. - The writ of habeas data 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 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 civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or
SEC. 3. Where to File. - The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner.
The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices.
SEC. 4. Where Returnable; Enforceable. - When the writ is issued by a Regional Trial Court or any judge thereof, it shall be returnable before such court or judge.
When issued by the Court of Appeals or the Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, 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 or stored.
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 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 or stored.
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 docked and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the 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. 7. Issuance of the Writ. - Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from the issuance; 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 serve it.
The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the 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 be punished 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 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.
SEC. 10. Return; Contents. - The respondent shall file a verified written return together with supporting affidavits within five (5) working 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:
(a) The lawful defenses such as national security, state secrets, privileged communications, 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 or information, and the purpose for its collection;
(ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data 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 any person who otherwise disobeys or resist 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 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.
Sec. 13. Prohibited Pleadings 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 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 for certiorari, 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 may warrant unless the court in its discretion requires the petitioner to submit evidence.
SEC. 15. Summary Hearing. - The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.
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 substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied.
Upon its finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within five (5) working 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 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 the service of the writ.
SEC. 18. Hearing on Officer’s Return. - The court shall set the return for hearing with due notice to the parties and act accordingly.
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 judgment or final order.
The appeal shall be given the same priority as in 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.
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 relief 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 of habeas 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 in three (3) newspapers of general circulation.
[PUBLISHED IN THE MANILA BULLETIN, THE PHILIPPINE STAR AND THE PHILIPPINE DAILY INQUIRER ON 25 JANUARY 2008]
Republic vs. CA (2005), supra
Facts:
-Apolinaria Malinao Jomoc wanted a declaration of the presumptive death of her husband Clemente Jomoc, who has been absent for 9 years, to be able to marry again.
-RTC: granted it, declared her husband presumptively dead
…basis: Article 41,par2, FC: four consecutive years only required; must institute a summary proceeding for the declaration of presumptive death of absentee spouse
-Republic, through OSG, sought to appeal by filing ONLY A NOTICE OF APPEAL
-TC disapporved the Notice of appeal: based on Rule 41, Section 2(a), there should also be a RECORD OF APPEAL filed and served as the present case was a special proceeding
-OSG filed MR: denied
-OSG filed Petition for certiorari before CA: declaration of presumptive death is NOT A SPECIAL PROCEEDING or a case of multiple or separate appeals which would require a record on appeal
-CA: denied Petition for certiorari:
(1) OSG failed to attach CTC of assailed order (TC's denial of MR)
(2) OSG failed to attach a copy of the order declaring Clemente Jomoc presumptively dead
---based on (1) and (2) alone + Rule 46.3: the case should have been dismissed!
(2) Declaration of presumptive death is a SPECIAL PROCEEDING as it merely seeks for a declaration of the trial court of the presumptive death of the absentee spouse. It does not seek enforcement or protection of a right or the prevention or redress of a wrong. Neither does it involve a demand of a right or a COA that can be enforced
WON THE DECLARATION OF PRESUMPTIVE DEATH OF AN ABSENTEE SPOUSE IS A SPECIAL PROCEEDIGN OR A SUMMARY PROCEEDING (IF NOT A SPECIAL PROCEEDING, DOES NOT NEED A RECORD ON APPEAL)
HELD: it is NOT A SPECIAL RPOCEEDING!
RULE 72: SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
Section 1. Subject matter of special proceedings. – Rules of special proceedings are provided for in the following:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation or correction of entries in the civil registry.
Sec. 2. Applicability of rules of civil actions. – In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. (Underscoring supplied)
CIVIL CODE
Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.
x x x (Emphasis and underscoring supplied)
FAMILY CODE
Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouses had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouses was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose pf contracting the subsequent marriage under the preceding paragraph, the spouses present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of a reappearance of the absent spouse. (Emphasis and underscoring supplied)
RULES OF COURT ON WHEN RECORD ON APPEAL REQUIRED
Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court in disapproving petitioner’s Notice of Appeal, provides:
Sec. 2. Modes of appeal. -
(a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (Emphasis and underscoring supplied)
By the trial court’s citation of Article 41 of the Family Code, it is gathered that the petition of Apolinaria Jomoc to have her absent spouse declared presumptively dead had for its purpose her desire to contract a valid subsequent marriage. Ergo, the petition for that purpose is a "summary proceeding," following above-quoted Art. 41, paragraph 2 of the Family Code.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the following provision, inter alia:
x x x
Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Codes requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. (Emphasis and underscoring supplied)
x x x,
there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary proceeding under the Family Code, not a special proceeding under the Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial court’s order sufficed.
That the Family Code provision on repeal, Art. 254, provides as follows:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders, proclamations rules and regulations, or parts thereof, inconsistent therewith are hereby repealed, (Emphasis and underscoring supplied),
seals the case in petitioner’s favor.
*IN SHORT, SINCE THE TRIAL COURT USED THE FAMILY CODE, AND THE FAMILY CODE DESIGNATES SUCH CASES AS A SUMMARY PROCEEDING AND NOT A SPECIAL PROCEEDING, IT IS NOT A SPECIAL PROCEEDING…
Finally, on the alleged procedural flaw in petitioner’s petition before the appellate court. Petitioner’s failure to attach to his petition before the appellate court a copy of the trial court’s order denying its motion for reconsideration of the disapproval of its Notice of Appeal is not necessarily fatal, for the rules of procedure are not to be applied in a technical sense. Given the issue raised before it by petitioner, what the appellate court should have done was to direct petitioner to comply with the rule.
As for petitioner’s failure to submit copy of the trial court’s order granting the petition for declaration of presumptive death, contrary to the appellate court’s observation that petitioner was also assailing it, petitioner’s 8-page petition filed in said court does not so reflect, it merely having assailed the order disapproving the Notice of Appeal.
Martinez vs. Mendoza (2006)
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 153795 August 17, 2006
MA. ESTRELITA D. MARTINEZ, Petitioner,
vs.
Director General LEANDRO MENDOZA, Chief Superintendent NESTORIO GUALBERTO, SR., Superintendent LEONARDO ESPINA, SR., Superintendent JESUS VERSOZA, and JOHN DOES, Respondents.
D E C I S I O N
PANGANIBAN, CJ.:
When respondents deny custody of an allegedly detained person, petitioners have the duty of establishing the fact of detention by competent and convincing evidence; otherwise, the writ of habeas corpus cannot be issued. Nonetheless, when the disappearance of a person is indubitable, the law enforcement authorities are duty-bound to investigate it with due diligence and to locate the missing person. When the wrongdoing is attributable to the police agencies and/or their agents, the aggrieved may secure the assistance of the People’s Law Enforcement Board or the Commission on Human Rights.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to reverse the March 22, 2002 Decision2 and the May 30, 2002 Resolution3 of the Court of Appeals (CA) in CA-GR SP No. 68170. The assailed Decision disposed as follows:
"WHEREFORE, the decision of the court a quo is REVERSED and the petition for habeas corpus is DISMISSED."4
The assailed Resolution denied reconsideration.
The Facts
The antecedent facts are narrated by the CA in this wise:
"Petitioners are the mother and wife, respectively, of Michael Martinez, a resident of 4570 Cattleya Road, Sun Valley Subdivision, Parañaque City, who was allegedly abducted and taken away by seven (7) persons around 7:30 in the morning of November 19, 2001 while he was walking along Magnolia Street, on his way to his mother's house at 3891 Marigold Street of the same subdivision. The abduction was reported by petitioners to the Barangay, the Parañaque Police and the Anti-Kidnapping Task Force at Camp Crame.
"It appears that in the evening of November 19, 2001, the Criminal Investigation and Detection Group (CIDG) of the Philippine National Police (PNP) presented before the media a certain Phillip Medel, Jr., who allegedly executed a statement confessing to his participation in the killing of Dorothy Jones, a.k.a. Nida Blanca, naming Michael Martinez as the person who introduced him to Rod Lauren Strunk, the husband of Nida Blanca and alleged mastermind in her killing. In a televised interview with a media reporter on November 26, 2001, Medel narrated that he saw Michael Martinez at the CIDG at Camp Crame where he was being detained, and which the former allegedly reiterated when he talked to Robert Paul Martinez, a brother of Michael, on November 27, 2001 and he even described the clothes Michael was then wearing, which were the same clothes worn by him when he was abducted. Petitioners then made representations with CIDG for the release of Michael Martinez or that they be allowed to see him, but the same were not granted.
"In view thereof, petitioners filed a petition for habeas corpus with the Regional Trial Court, Branch 78, Quezon City against respondents PNP Director General Leandro Mendoza; Chief Superintendent Nestorio Gualberto, Sr., Chief of the CIDG; Senior Superintendent Leonardo Espina, Sr. and Senior Superintendent Jesus Versoza of the CIDG and members of Task Force Marsha, which is investigating the Nida Blanca murder case, for them to produce before said court the person of Michael Martinez or to justify the continued detention of his liberty.
"In an Order dated November 29, 2001, the court a quo set the petition for hearing on December 3, 2001 and directed respondents to show cause why the writ of habeas corpusshould not issue.
"At the hearing on December 3, 2001, respondents submitted a RETURN wherein they vehemently and categorically denied any participation or involvement in the alleged abduction or disappearance of Michael Martinez as the latter was never confined and detained by them or in their custody at any given time. Respondents thus prayed for the dismissal of the petition for habeas corpus.
"At the hearing conducted by the court a quo, respondents reiterated their claim that Michael Martinez is not and was never in their custody. On the other hand, petitioners presented Phillip Medel, Jr. who insisted that he saw Michael Martinez inside a room at the CIDG where he was brought before midnight of November 19, 2001 or the wee hours of November 20, 2001, that Sr. Supts. Verzosa (sic) and Espina were also in said room and that the latter even boxed Michael in the stomach.
"Finding that respondents denial pale beside Medel's positive assertion that Michael Martinez is in their custody, the court a quo, in a Decision dated December 10, 2001 directed respondents to produce the body of Michael Martinez before it on December 11, 2001 at 2:00 o'clock in the afternoon. A copy of said decision was received by respondents on December 10, 2001
"On December 11, 2001, respondents filed a notice of appeal on the ground that the Decision is contrary to law and the evidence."5
Ruling of the Court of Appeals
The CA agreed with the Office of the Solicitor General (OSG) that Medel’s credibility was highly suspect. The appellate court opined that he had contradicted himself as to material facts. Further negating his testimony was Superintendent Espina’s positive testimony that he was at home between midnight of November 19, 2001, and early morning of November 20, 2001.
The CA relied on the presumption of regularity in the performance of official duties. It held that, "[a]s aptly pointed out by respondents, ‘the CIDG itself is equally concerned with the safety of Michael Martinez relative to the final resolution of the Nida Blanca slay. For he is definitely a vital witness to his case. The PNP-CIDG has no motive whatsoever to abduct him as it never did.’"6
Hence, this Petition.7
Issue
Petitioner has failed to make a categorical statement of the issues for the Court’s consideration. She has also failed to state what relief she prays for.
Nonetheless, the Court will resolve the case on the issue of whether the CA erred in reversing the trial court and dismissing the Petition for habeas corpus.
The Court’s Ruling
The present Petition for Review has no merit.
Sole Issue:
Reversible Error of the Court of Appeals
Petitioner contends that it is the evaluation of the RTC -- not the CA -- that should be upheld, because the trial court had the opportunity to observe the witnesses and to determine whether they were telling the truth when they testified.
On the other hand, respondents aver that their candor and the veracity of their denial of the custody or detention of Michael cannot be doubted by the Court. Their argument is even strengthened in the face of the incredible and contradictory testimony of petitioner’s witness, Phillip Medel Jr.
Propriety of
Habeas Corpus
At the outset, it must be stressed that petitioner’s anchor for the present case is the disappearance of Michael. The matter of his alleged detention is, at best, merely consequential to his disappearance.
Ostensibly, his disappearance has been established. However, the grant of relief in a habeas corpus proceeding is not predicated on the disappearance of a person, but on his illegal detention. Habeas corpus generally applies to "all cases of illegal confinement or detention by which any person is deprived of his liberty or by which the rightful custody of any person is withheld from the person entitled thereto."8
Said this Court in another case:
"The ultimate purpose of the writ of habeas corpus is to relieve a person from unlawful restraint. It is devised as a speedy relief from unlawful restraint. It is a remedy intended to determine whether the person under detention is held under lawful authority."9
If the respondents are neither detaining nor restraining the applicant or the person on whose behalf the petition for habeas corpus has been filed, then it should be dismissed. This Court has ruled that this remedy has one objective -- to inquire into the cause of detention of a person:
"The purpose of the writ is to determine whether a person is being illegally deprived of his liberty. If the inquiry reveals that the detention is illegal, the court orders the release of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus very limited."10
Habeas corpus may not be used as a means of obtaining evidence on the whereabouts of a person,11 or as a means of finding out who has specifically abducted or caused the disappearance of a certain person.
When respondents making the return of the writ state that they have never had custody over the person who is the subject of the writ, the petition must be dismissed, in the absence of definite evidence to the contrary. "The return of the writ must be taken on its face value considering that, unless it is in some way [convincingly] traversed or denied, the facts stated therein must be taken as true"12 for purposes of the habeas corpus proceedings.
Forcible Taking and Disappearance
When forcible taking and disappearance -- not arrest and detention -- have been alleged, the proper remedy is not habeas corpus proceedings, but criminal investigation and proceedings.
Abduction or kidnapping is a crime punishable by law. Investigations with regard to crimes are first and foremost the duty of the Philippine National Police (PNP) and the National Bureau of Investigation (NBI), not the courts. There are instances when members of the PNP -- the agency tasked with investigating crimes -- are suspected of being responsible for the disappearance of a person, who is the subject of habeas corpus proceedings. This fact will not convert the courts into -- or authorize them through habeas corpus proceedings to be -- forefront investigators, prosecutors, judges and executioners all at the same time. Much as this Court would want to resolve these disappearances speedily -- as in the present case, when it is interested in determining who are responsible for the disappearance and detention of Michael (if, indeed, he is being detained) -- it would not want to step beyond its reach and encroach on the duties of other duly established agencies. Instead of rendering justice to all,13 it may render injustice if it resorts to shortcuts through habeas corpus proceedings. In fine, this proceeding for habeas corpus cannot be used as a substitute for a thorough criminal investigation.
The Department of Interior and Local Government (DILG), specifically the People’s Law Enforcement Board (PLEB),14 is tasked to investigate abuses or wrongdoings by members of the PNP. Thus, if they or the NBI abuse or fail to perform their duties, as indicated in this case, people may refer their complaints to the PLEB, which should be part of their arsenal in the battle to resolve cases in which members of the PNP are suspected of having caused the disappearance of anyone. Removing criminals from the ranks of those tasked to promote peace and order and to ensure public safety would be a big axe blow to the mighty oak of lawlessness. Let each citizen contribute a blow, puny though it may be when done alone; but collectively we can, slowly but surely, rid our society of disorder and senseless disappearances.
Going back to the present case, petitioner must establish by competent and convincing evidence that the missing person, on whose behalf the Petition was filed, is under the custody of respondents. Unfortunately, her evidence is insufficient to convince the Court that they have Michael in their custody. Moreover, "a writ of habeas corpus should not issue where it is not necessary to afford the petitioner relief or where it would be ineffective."15
Considering that respondents have persistently denied having Michael in their custody, and absent any decisive proof to rebut their denial, the Court is constrained to affirm the CA’s dismissal of the Petition for habeas corpus.
In view of the established fact of Michael’s suspiciously felonious disappearance, we exhort the NBI and the National Anti-Kidnapping Task Force (NAKTAF) to continue their investigation into the matter, so that all persons responsible can be prosecuted for whatever crime they have committed.
WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED. No costs in this instance.
Let a copy of this Decision be furnished the Commission on Human Rights and the Department of Interior and Local Government for appropriate action.
SO ORDERED.
Footnotes
1 Rollo, pp. 4-31.
2 Annex "A" of the Petition; id. at 34-35. Penned by Justice Marina L. Buzon and concurred in by Justices Cancio C. Garcia (Division chair) and Eliezer E. de los Santos.
3 Annex "C" of the Petition; id. at 55-59.
4 Assailed CA Decision, p. 11; rollo, p. 44.
5 Assailed CA Decision, pp. 1-3; rollo, pp. 34-36.
6 Id. at 11; id. at 44.
7 To resolve old cases, the Court created the Committee on Zero Backlog of Cases on January 26, 2006. Consequently, the Court resolved to prioritize the adjudication of long-pending cases by redistributing them among all the justices. This case was recently re-raffled and assigned to the undersigned ponente for study and report.
8 Rules of Court, Rule 102, Sec. 1.
9 Ngaya-an v. Balweg, 200 SCRA 149, 154-155, August 5, 1991, per Paras, J.
10 Alejano v. Cabuay, 468 SCRA 188, 200, August 25, 2005, per Carpio, J.
11 Subayno v. Ponce Enrile, 145 SCRA 282, October 28, 1986.
12 Id. at 288. Unsigned Resolution. Italics supplied.
13 All parties -- not only petitioner, but even respondents -- are entitled to justice, which includes the constitutionally enshrined right to due process.
14 Republic Act No. 6975 (1990), Secs. 41 and 43.
15 Subayno v. Ponce Enrile, supra note 11 at 288.
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS ENGR. ASHRAF KUNTING (2006)
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. Zuño, 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.
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.1avvphil.net
In a letter dated February 22, 2005, Police Chief Superintendent Ismael R. Rafanan reiterated the request to Chief State Prosecutor Jovencito R. Zuño 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. Zuño 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 corpus extends 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 the habeas 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 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.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.1avvphil.net
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 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.
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