Rule 112 – Preminary Investigation 2

PP vs. Judge Gabo (GR: 161083)

Justice Peralta:

Based on Section 6, Rule 112 of the Rules of Court, the RTC judge, upon the filing of an Information, has the following options: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) if he or she finds probable cause, issue a warrant of arrest; and (3) in case of doubt as to the existence of probable cause, order the prosecutor to present additional evidence within five days from notice, the issue to be resolved by the court within thirty days from the filing of the information.

The judge is required to personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. To this Courts mind, the RTC had complied with its duty of personally evaluating the supporting evidence of the prosecution before arriving at its decision of dismissing the case against respondents.

Tolentino vs. Judge Paqueo, Jr (GR: 150606)

Justice Azcuna:

Since the Regional State Prosecutor is not included among the law officers authorized to approve the filing or dismissal of the Information of the investigating prosecutor, the Information filed by petitionerState Prosecutor Tolentino did not comply with the requirement of Sec. 4, Rule 112 of the Revised Rules of Criminal Procedure. Consequently, the non-compliance was a ground to quash the Information under Sec. 3 (d), Rule 117 of the Revised Rules of Criminal Procedure.

Okabe vs. Judge Gutierrez (GR: 150185)

Justice Callejo:

Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor, in conducting a preliminary investigation of a case cognizable by the RTC, is tasked to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent therein is probably guilty thereof and should be held for trial. A preliminary investigation is for the purpose of securing the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial.

If the investigating prosecutor finds probable cause for the filing of the Information against the respondent, he executes a certification at the bottom of the Information that from the evidence presented, there is a reasonable ground to believe that the offense charged has been committed and that the accused is probably guilty thereof. Such certification of the investigating prosecutor is, by itself, ineffective. It is not binding on the trial court. Nor may the RTC rely on the said certification as basis for a finding of the existence of probable cause for the arrest of the accused.

In contrast, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested. In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion, it requires less than evidence which would justify conviction.

The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged of crimes from the tribulations, expenses and anxiety of a public trial.

Santos-Concio vs. Hon. Raul M Gonzalez (GR: 175057)

Justice Carpio-Morales:

A preliminary investigation can thus validly proceed on the basis of an affidavit of any competent person,without the referral document, like the NBI-NCR Report, having been sworn to by the law enforcer as the nominal complainant. To require otherwise is a needless exercise. The cited case of Oporto, Jr. v. Judge Monserate does not appear to dent this proposition. After all, what is required is to reduce the evidence into affidavits, for while reports and even raw information may justify the initiation of an investigation, the preliminary investigation stage can be held only after sufficient evidence has been gathered and evaluated which may warrant the eventual prosecution of the case in court.

Artillero vs. Casimiro (GR: 190569)

Justice Sereno:

A complainant in a preliminary investigation does not have a vested right to file a Reply.  This right should be granted to him by law. There is no provision in Rule 112 of the Rules of Court that gives the Complainant or requires the prosecutor to observe the right to file a Reply to the accused’ counter-affidavit. To illustrate the non-mandatory nature of filing a Reply in preliminary investigations, Section 3 (d) of Rule 112 gives the prosecutor, in certain instances, the right to resolve the Complaint even without a counter-affidavit, viz:

(d) If the respondent cannot be subpoenaed, of if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

Provincial Prosecutor Dusaban correctly claims that it is discretionary on his part to require or allow the filing or submission of reply-affidavits.

Rule 112- Preliminary Investigation

Leviste vs. Hon. Alameda (GR: 182677)

Justice Carpio-Morales:

A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to fine. As an exception, the rules provide that there is no need for a preliminary investigation in cases of a lawful arrest without a warrant involving such type of offense, so long as an inquest, where available, has been conducte

Inquest is defined as an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly be charged in court.

Contreras vs. Judge Monserate 

Justice Quisumbing:

Respondent judge asserts that the Provincial Prosecution Office has no authority to order him to conduct a preliminary investigation inasmuch as the courts primary duty is to hold trial and render decisions, and not to conduct preliminary investigations. His assertion is far from accurate. Respondent judge must be reminded of the duty imposed upon him by Section 1(a), Rule 110 of the Revised Rules on Criminal Procedure. Said provision speaks of the proper officer who shall conduct the requisite preliminary investigation. Under Section 2, Rule 112 of the Revised Rules on Criminal Procedure, a municipal court judge, like herein respondent, is a proper officer authorized to conduct a preliminary investigation. Further, a preliminary investigation is not a judicial function, and as such the findings of the investigating judge are subject to the oversight powers of the public prosecutor. Thus, in we held that:

When a municipal judge conducts a preliminary investigation, he performs a non-judicial function. His function is merely executive in nature. As such, the findings of an investigating judge are subject to review by the Provincial Fiscal whose findings in turn may also be reviewed by the Secretary of Justice in appropriate cases.

Clearly, therefore, Provincial Prosecutor Agapito B. Rosales, through his Second Asst. Provincial Prosecutor, had the authority to compel respondent judge to conduct a preliminary investigation in Criminal Case No. 3222.

PP vs. Hon. Garfin (GR:  153176)

Justice Puno:

Rule 112, Section 4, paragraph 3 provides, viz:

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Private respondent and the OSG take the position that the lack of prior authority or approval by the city or provincial prosecutor or chief state prosecutor is an infirmity in the information that prevented the court from acquiring jurisdiction over the case. Since lack of jurisdiction is a defect that may be raised as an objection anytime even after arraignment, the respondent judge did not err in granting the motion to dismiss based on this ground.

Pen vs. Hon. De Castro (GR: 104645)

Justice Purisima:

xxxx As succinctly rationalized by the then Justice, now Chief Justice Andres R. Narvasa, in the germane case of Hadji Ibrahim Solay Pangandaman, et al. vs. Dimaporo T. Casar, as Municipal Circuit Trial Judge of Poonabayabao, et al., L-71782, April 14, 1988, 159 SCRA 599, the procedure prescribed for the conduct of preliminary investigation consists of two (2) phases or stages.

The first phase or stage of the investigation consists of an ex parte inquiry of the sufficiency of the complaint and the affidavits and other documents offered in support thereof, and ends with the determination by the judge either: (1)that there is no ground to continue with the inquiry, in which case he dismisses the complaint and transmits the order of dismissal, together with the records of the case, to the Provincial Fiscal (now Provincial Prosecutor); or (2) that the complaint and the supporting documents show sufficient cause to continue with the inquiry, which finding ushers in the second phase.

The second phase or stage is designed to afford the respondent notice of the Complaint, access to complainants evidence and an opportunity to submit counter-affidavits and supporting documents. In such a scenario, the Judge may conduct a hearing and propound to the parties and their witnesses questions on matters that, in his view, should be clarified. The second phase concludes with the Judge rendering his resolution, either for dismissal of the complaint or finding a prima facie case, and holding the respondent for trial which shall be transmitted, together with the pertinent records, to the provincial prosecutor for appropriate action.

It is thus decisively clear that the rule does not require that preliminary investigation be first completed before a warrant of arrest may issue. What the rule simply provides is that no complaint or information for an offense cognizable by the Regional Trial Court may be filed without completing the preliminary investigation. But nowhere is it mandated that preliminary investigation must be completed before a warrant of arrest may issue.

Rule – 111 Prosecution of civil Action

Casupanan vs. Laroya (GR: 145391)

Justice Carpio:


Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation. The commencement of the criminal action does not suspend the prosecution of the independent civil action under these articles of the Civil Code. The suspension in Section 2 of the present Rule 111 refers only to the civil action arising from the crime, if such civil action is reserved or filed before the commencement of the criminal action.

Thus, the offended party can file two separate suits for the same act or omission. The first a criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a civil case for quasi-delict – without violating the rule on non-forum shopping. The two cases can proceed simultaneously and independently of each other. The commencement or prosecution of the criminal action will not suspend the civil action for quasi-delict. The only limitation is that the offended party cannot recover damages twice for the same act or omission of the defendant. In most cases, the offended party will have no reason to file a second civil action since he cannot recover damages twice for the same act or omission of the accused. In some instances, the accused may be insolvent, necessitating the filing of another case against his employer or guardians.

San Ildefonso Lines vs. CA (GR:119771)

Justice Martinez:

The two (2) crucial issues to be resolved, as posited by petitioners, are:

1) If a criminal case was filed, can an independent civil action based on quasi-delict under Article 2176 of the Civil Code be filed if no reservation was made in the said criminal case?

2) Can a subrogee of an offended party maintain an independent civil action during the pendency of a criminal action when no reservation of the right to file an independent civil action was made in the criminal action and despite the fact that the private complainant is actively participating through a private prosecutor in the aforementioned criminal case?

We rule for petitioners.

On the chief issue of “reservation”, at the fore is Section 3, Rule 111 of the Rules of Court which reads:

“Sec. 3. When civil action may proceed independently. — In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action which has been reserved may be brought by the offended party, shall proceed independently of the criminal action, and shall require only a preponderance of evidence.”

There is no dispute that these so-called “independent civil actions” based on the aforementioned Civil Code articles are the exceptions to the primacy of the criminal action over the civil action as set forth in Section 2 of Rule 111. However, it is easily deducible from the present wording of Section 3 as brought about by the 1988 amendments to the Rules on Criminal Procedure — particularly the phrase ” which has been reserved” — that the “independent” character of these civil actions does not do away with the reservation requirement. In other words, prior reservation is a condition sine qua non before any of these independent civil actions can be instituted and thereafter have a continuous determination apart from or simultaneous with the criminal action. That this should now be the controlling procedural rule is confirmed by no less than retired Justice Jose Y. Feria, remedial law expert and a member of the committee which drafted the 1988 amendments, whose learned explanation on the matter was aptly pointed out by petitioners.

Simon vs. Chan, CA (GR: 157547)

Justice Bersamin:

There is no independent civil action to recover the civil liability arising from the issuance of an unfunded check prohibited and punished under Batas Pambansa Bilang 22 (BP 22).


The lone issue is whether or not Chan’s civil action to recover the amount of the unfunded check (Civil Case No. 915-00) was an independent civil action.


Supreme Court Circular 57-97 states:


  1. The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to necessarily include the corresponding civil action, and no reservation to file such civil action separately shall be allowed or recognized.


The CA’s reliance on DMPI Employees Credit Association v. Velez to give due course to the civil action of Chan independently and separately of Criminal Case No. 275381 was unwarranted. DMPI Employees, which involved a prosecution for estafa, is not on all fours with this case, which is a prosecution for a violation of BP 22. Although the Court has ruled that the issuance of a bouncing check may result in two separate and distinct crimes of estafa and violation of BP 22, the procedures for the recovery of the civil liabilities arising from these two distinct crimes are different and non-interchangeable. In prosecutions of estafa, the offended party may opt to reserve his right to file a separate civil action, or may institute an independent action based on fraud pursuant to Article 33 of the Civil Code, as DMPI Employees has allowed. In prosecutions of violations of BP 22, however, the Court has adopted a policy to prohibit the reservation or institution of a separate civil action to claim the civil liability arising from the issuance of the bouncing check upon the reasons delineated in (the case of) Hyatt Industrial Manufacturing Corporation.

Rule 110-Prosecution of Offenses

Ricarze vs. CA (GR: 160451)

Justice Callejo:

Under Section 5, Rule 110 of the Revised Rules of Rules, all criminal actions covered by a complaint or information shall be prosecuted under the direct supervision and control of the public prosecutor.  Thus, even if the felonies or delictual acts of the accused result in damage or injury to another, the civil action for the recovery of civil liability based on the said criminal acts is impliedly instituted, and the offended party has not waived the civil action, reserved the right to institute it separately or instituted the civil action prior to the criminal action, the prosecution of the action (including the civil) remains under the control and supervision of the public

prosecutor. The prosecution of offenses is a public function. Under Section 16, Rule 110 of the Rules of Criminal Procedure, the offended party may intervene in the criminal action personally or by counsel, who will act as private prosecutor for the protection of his interests and in the interest of the speedy and inexpensive administration of justice.  A separate action for the purpose would only prove to be costly, burdensome and time-consuming for both parties and further delay the final disposition of the case.  The multiplicity of suits must be avoided. With the implied institution of the civil action in the criminal action, the two actions are merged into one composite proceeding, with the criminal action predominating the civil.  The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order.

On the other hand, the sole purpose of the civil action is for the resolution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the accused.


Amendment or Substitution (Rule 110, sec.14)

Thus, before the accused enters his plea, a formal or substantial amendment of the complaint or information may be made without leave of court.  After the entry of a plea, only a formal amendment may be made but with leave of court and if it does not prejudice the rights of the accused.  After arraignment, a substantial amendment is proscribed except if the same is beneficial to the accused.

A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court.  All other matters are merely of form.  The following have been held to be mere formal amendments: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; (2) an amendment which does not charge another offense different or distinct from that charged in the original one; (3) additional allegations which do not alter the prosecutions theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; (4) an amendment which does not adversely affect any substantial right of the accused; and (5) an amendment that merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision something which is already contained in the original information and which adds nothing essential for conviction for the crime charged.

The test as to whether a defendant is prejudiced by the amendment is whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other.  An amendment to an information which does not change the nature of the crime alleged therein does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance.

Pacoy vs. Hon. Cajigal (GR: 157472)

Justice Austria-Martinez:

While the amended Information was for Murder, a reading of the Information shows that the only change made was in the caption of the case; and in the opening paragraph or preamble of the Information, with the crossing out of word Homicide and its replacement by the word Murder. There was no change in the recital of facts constituting the offense charged or in the determination of the jurisdiction of the court. The averments in the amended Information for Murder are exactly the same as those already alleged in the original Information for Homicide, as there was not at all any change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta without any qualifying circumstance. Thus, we find that the amendment made in the caption and preamble from Homicide to Murder as purely formal.

Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has already pleaded, it is necessary that the amendments do not prejudice the rights of the accused. The test of whether the rights of an accused are prejudiced by the amendment of a complaint or information is whether a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and when any evidence the accused might have would be inapplicable to the complaint or information. Since the facts alleged in the accusatory portion of the amended Information are identical with those of the original Information for Homicide, there could not be any effect on the prosecution’s theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner.

Calme vs. CA (GR: 116688)

Justice Kapunan:


Petitioner thus claims that the proper venue is Siquijor because, according to the Marine Protest filed by the vessels captain, Elmer Magallanes, the ship was 8.0 miles off Minalonan Point, Siquijor Island, when he (Capt. Magallanes) received the report that a passenger jumped overboard.

Petitioners contention is unmeritorious. The exact location where the alleged offense was committed was not duly established. The Marine protest simply adverted that the vessel was within the waters of Siquijor Island when the captain was informed of the incident, which does not necessarily prove that the alleged murder took place in the same area. In any case, where the crime was actually committed is immaterial since it is undisputed that it occurred while the vessel was in transit. In transit simply means on the way or passage; while passing from one person or place to another. In the course of transportation. Hence, undoubtedly, the applicable provision is par. (c) of Sec. 15 (now Section 14), Rule 110 which provides that (w)here an offense is committed on board a vessel in the course of its voyage, the criminal action may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage subject to the generally accepted principles of international law.

Petitioner further contends that even if Sec. 15(c), Rule 110 governs, Oroquieta City would still be excluded as a proper venue because the reckoning point for determining the venue under the aforementioned paragraph is the first port of entry or the municipalities/territories through which the ship passed after the discovery of the crime, relying on Act No. 400.

We disagree. Obviously, Act No. 400 was amended by Sec. 15(c), Rule 110 of the Revised Rules of Court in that under the former law, jurisdiction was conferred to the CFI of any province into which the ship or water craft upon which the crime or offense was committed shall come after the commission thereof, while the present rule provides that jurisdiction is vested in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage x x x. This is the applicable provision and since it does not contain any qualification, we do not qualify the same.

Rule 103-Change of Name

Republic vs. coseteng-Magpayo(GR: 189476)

Justice Carpio-Morales:

A person can effect a change of name under Rule 103 (CHANGE OF NAME) using valid and meritorious grounds including (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence such as legitimation; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; and (f) when the surname causes embarrassment and there is no showing that the desired  change  of name was for a fraudulent purpose or that the change of name would prejudice public interest.

Wang vs. Cebu City Civil registrar (GR: 159966)

Justice Tinga:

The petition before us is unlike other petitions for change of name, as it does not simply seek to change the name of the minor petitioner and adopt another, but instead seeks to drop the middle name altogether. Decided cases in this jurisdiction involving petitions for change of name usually deal with requests for change of surname. There are only a handful of cases involving requests for change of the given name and none on requests for changing or dropping of the middle name. Does the law allow one to drop the middle name from his registered name? We have to answer in the negative.


In the case at bar, the only reason advanced by petitioner for the dropping his middle name is convenience. However, how such change of name would make his integration into Singaporean society easier and convenient is not clearly established. That the continued use of his middle name would cause confusion and difficulty does not constitute proper and reasonable cause to drop it from his registered complete name.

In addition, petitioner is only a minor. Considering the nebulous foundation on which his petition for change of name is based, it is best that the matter of change of his name be left to his judgment and discretion when he reaches the age of majority. As he is of tender age, he may not yet understand and appreciate the value of the change of his name and granting of the same at this point may just prejudice him in his rights under our laws.

Republic vs. Hernandez (GR: 117209)

Justice Regalado:

It must likewise be stressed once again that a change of name is a privilege, not a matter of right, addressed to the sound discretion of the court which has the duty to consider carefully the consequences of a change of name and to deny the same unless weighty reasons are shown. Before a person can be authorized to change his name, that is, his true or official name or that which appears in his birth certificate or is entered in the civil register, he must show proper and reasonable cause or any convincing reason which may justify such change.


Contrarily, a petition for change of name grounded on the fact that one was baptized by another name, under which he has been known and which he used, has been denied inasmuch as the use of baptismal names is not sanctioned. For, in truth, baptism is not a condition sine qua non to a change of name. Neither does the fact that the petitioner has been using a different name and has become known by it constitute proper and reasonable cause to legally authorize a change of name. A name given to a person in the church records or elsewhere or by which he is known in the community – when at variance with that entered in the civil register – is unofficial and cannot be recognized as his real name.

The instant petition does not sufficiently persuade us to depart from such rulings of long accepted wisdom and applicability. The only grounds offered to justify the change of name prayed for was that the adopted child had been baptized as Aaron Joseph in keeping with the religious faith of private respondents and that it was the name by which he had been called and known by his family, relatives and friends from the time he came to live with private respondents. Apart from suffusing their pleadings with sanctimonious entreaties for compassion, none of the justified grounds for a change of name has been alleged or established by private respondents. The legal bases chosen by them to bolster their cause have long been struck down as unavailing for their present purposes. For, to allow the adoptee herein to use his baptismal name, instead of his name registered in the civil register, would be to countenance or permit that which has always been frowned upon.

Republic vs. Bringas (GR:160597)

Justice Garcia:

In the context of Section 3, Rule 103 of the Rules, publication is valid if the following requisites concur: (1) the petition and the copy of the order indicating the date and place for the hearing must be published; (2) the publication must be at least once a week for three successive weeks; and, (3) the publication must be in some newspaper of general circulation published in the province, as the court shall deem best. Another validating ingredient relates to the caveat against the petition being heard within 30 days prior to an election or within four (4) months after the last publication of the notice of the hearing.


The matter of granting or denying petitions for change of name and the corollary issue of what is a proper and reasonable cause therefor rests on the sound discretion of the court. The evidence presented need only be satisfactory to the court; it need not be the best evidence available.  What is involved in special proceedings for change of name is, to borrow from Republic v. Court of Appeals not a mere matter of allowance or disallowance of the petition, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in support thereof, mindful of the consequent results in the event of its grant and with the sole prerogative for making such determination being lodged in the courts.

With the view we take of the case, respondent’s submission for a change of name is with proper and reasonable reason. As it were, she has, since she started schooling, used the given name and has been known as Maria Eloisa, albeit the name Roselie Eloisa is written on her birth record. Her scholastic records, as well as records in government offices, including that of her driver’s license, professional license as a certified public accountant issued by the Professional Regulation Commission, and the “Quick Count” document of the COMELEC, all attest to her having used practically all her life the name Maria Eloisa Bringas Bolante.

Silverio vs. Republic (GR: 174689)

Justice Corona:

May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?


A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment


RA 9048 now governs the change of first name. It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied. It likewise lays down the corresponding venue, form and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial.


Petitioners basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter ones legal capacity or civil status. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioners first name for his declared purpose may only create grave complications in the civil registry and the public interest.


In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was not within that courts primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioners petition in so far as the change of his first name was concerned.


Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioners first step towards his eventual marriage to his male fiancee. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman. One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female. To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women, certain felonies under the Revised Penal Code and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court, among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioners petition were to be granted.



Writ of Habeas Data

Rodriguez vs. Gloria Macapagal Arroyo (GR: 191805)

The writ of habeas data provides a judicial remedy to protect a persons right to control information regarding oneself, particularly in instances where such information is being collected through unlawful means in order to achieve unlawful ends. As an independent and summary remedy to protect the right to privacy especially the right to informational privacy the proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (c) in case the database or information contains erroneous data or information, order its deletion, destruction or rectification.

Roxas vs. Gloria Macapagal Arroyo (GR: 189155)

Justice Perez:

The writ of habeas data was conceptualized as a judicial remedy enforcing the right to privacy, most especially the right to informational privacy of individuals. The writ operates to protect a persons right to control information regarding himself, particularly in the instances where such information is being collected through unlawful means in order to achieve unlawful ends.

Needless to state, an indispensable requirement before the privilege of the writ may be extended is the showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of the victim.

Meralco vs. Lim (GR: 184769)

Justice Carpio-Morales:

Petitioners go on to point out that the Rule on the Writ of Habeas Data directs the issuance of the writ only against public officials or employees, or private individuals or entities engaged in the gathering, collecting or storing of data or information regarding an aggrieved partys person, family or home; and that MERALCO (or its officers) is clearly not engaged in such activities.

The petition is impressed with merit.

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

Section 1 of the Rule on the Writ of Habeas Data provides:

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.

The habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce ones right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a persons right to life, liberty and security against abuse in this age of information technology.

It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing Rules.

Castillo v. Cruz underscores the emphasis laid down in Tapuz v. del Rosario that the writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property right under the context of the due process clause of the Constitution. It is evident that respondents reservations on the real reasons for her transfer – a legitimate concern respecting the terms and conditions of ones employment – are what prompted her to adopt the extraordinary remedy of habeas data. Jurisdiction over such concerns is inarguably lodged by law with the NLRC and the Labor Arbiters.

Castillo vs. Cruz (GR: 182165)

Justice Carpio-Morales:

Before the filing of the petition for writs of amparo and habeas data, or on February 22, 2008, petitioners even instituted a petition for habeas corpus which was considered moot and academic by Branch 14 of the Malolos RTC and was accordingly denied by Order of April 8, 2008.

More. Respondent Amanda and one of her sons, Francisco Jr., likewise filed a petition for writs of amparo and habeas data before the Sandiganbayan, they alleging the commission of continuing threats by petitioners after the issuance of the writs by the RTC, which petition was dismissed for insufficiency and forum shopping.

It thus appears that respondents are not without recourse and have in fact taken full advantage of the legal system with the filing of civil, criminal and administrative charges.

It need not be underlined that respondents petitions for writs of amparo and habeas data are extraordinary remedies which cannot be used as tools to stall the execution of a final and executory decision in a property dispute.

At all events, respondents filing of the petitions for writs of amparo and habeas data should have been barred, for criminal proceedings against them had commenced after they were arrested in flagrante delicto and proceeded against in accordance with Section 6, Rule 112 of the Rules of Court. Validity of the arrest or the proceedings conducted thereafter is a defense that may be set up by respondents during trial and not before a petition for writs of amparo and habeas data. The reliefs afforded by the writs may, however, be made available to the aggrieved party by motion in the criminal proceedings.



Writ of Amparo

Tapuz vs. Judge Del Rosario (GR: 182484)

To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands requires that every petition for the issuance of the Pwrit must be supported by justifying allegations of fact, to wit:

(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.

The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed.

Roxas vs. Gloria Macapagal Arroyo (GR: 189155)

It must be stated at the outset that the use by the petitioner of the doctrine of command responsibility as the justification in impleading the public respondents in her amparo petition, is legally inaccurate, if not incorrect. The doctrine of command responsibility is a rule of substantive law that establishes liability and, by this account, cannot be a proper legal basis to implead a party-respondent in an amparo petition.


It must be clarified, however, that the inapplicability of the doctrine of command responsibility in an amparo proceeding does not, by any measure, preclude impleading military or police commanders on the ground that the complained acts in the petition were committed with their direct or indirect acquiescence. In which case, commanders may be impleadednot actually on the basis of command responsibilitybut rather on the ground of their responsibility, or at least accountability.

Lozada, Jr. vs. Gloria Macapagal Arroyo (GR: 184379-80)

The writ of amparo is an independent and summary remedy that provides rapid judicial relief to protect the peoples right to life, liberty and security. Having been originally intended as a response to the alarming cases of extrajudicial killings and enforced disappearances in the country, it serves both preventive and curative roles to address the said human rights violations. It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.

As it stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced disappearances, or to threats thereof. Considering that this remedy is aimed at addressing these serious violations of or threats to the right to life, liberty and security, it cannot be issued on amorphous and uncertain grounds, or in cases where the alleged threat has ceased and is no longer imminent or continuing. Instead, it must be granted judiciously so as not to dilute the extraordinary and remedial character of the writ.

Navia vs. Pardico (GR: 184467)

From the statutory definition of enforced disappearance, thus, we can derive the following elements that constitute it:

  • that there be an arrest, detention, abduction or any form of deprivation of liberty;
  • that it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization;
  • that it be followed by the State or political organizations refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition; and,
  • that the intention for such refusal is to remove subject person from the protection of the law for a prolonged period of time.

As thus dissected, it is now clear that for the protective writ of amparo to issue, allegation and proof that the persons subject thereof are missing are not enough. It must also be shown and proved by substantial evidence that the disappearance was carried out by, or with the authorization, support or acquiescence of, the State or a political organization, followed by a refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons, with the intention of removing them from the protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo case has the burden of proving by substantial evidence the indispensable element of government participation.


But lest it be overlooked, in an amparo petition, proof of disappearance alone is not enough. It is likewise essential to establish that such disappearance was carried out with the direct or indirect authorization, support or acquiescence of the government. This indispensable element of State participation is not present in this case. The petition does not contain any allegation of State complicity, and none of the evidence presented tend to show that the government or any of its agents orchestrated Bens disappearance. In fact, none of its agents, officials, or employees were impleaded or implicated in Virginias amparo petition whether as responsible or accountable persons.  Thus, in the absence of an allegation or proof that the government or its agents had a hand in Bens disappearance or that they failed to exercise extraordinary diligence in investigating his case, the Court will definitely not hold the government or its agents either as responsible or accountable persons.

Razon vs. Tagitis (GR: 182498)

As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws.  The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal and what the corresponding penalty these criminal acts should carry are matters of substantive law that only the Legislature has the power to enact under the country’s constitutional scheme and power structure.

Rodriguez vs. Gloria Macapagal Arroyo (GR: 191805)

The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner. It is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. Rather, it serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances.  It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.