[G.R. NO. 151876 : June 21, 2005]

SUSAN GO and the PEOPLE OF THE PHILIPPINES, Petitioners, v. FERNANDO L. DIMAGIBA, Respondent.

Administrative Circular 12-2000, as clarified by Administrative Circular 13-2001, merely establishes a rule of preference in imposing

penalties for violations of Batas Pambansa Blg. 22 (BP 22), the "Bouncing Checks Law." When the circumstances of both the offense and the

offender indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone - - instead of imprisonment -

- is the preferred penalty. As the Circular requires a review of the factual circumstances of a given case, it applies only to pending or future

litigations. It is not a penal law; hence, it does not have retroactive effect. Neither may it be used to modify final judgments of conviction.

The Case

Before us is a Petition for Review1 under Rule 45 of the Rules of Court, assailing the October 10, 20012 and the October 11, 20013 Orders of

the Regional Trial Court (RTC) (Branch 5), Baguio City.4 The October 10, 2001 Order released Respondent Fernando L. Dimagiba from

confinement and required him to pay a fine of P100,000 in lieu of imprisonment. The October 11, 2001 Order disposed as follows:

"WHEREFORE, [in] applying the doctrine as held in the above-entitled cases in this case, the instant petition for Habeas Corpus should be, as

it is hereby, GRANTED. The Baguio City Jail Warden is hereby ordered to IMMEDIATELY RELEASE the petitioner from confinement unless he is

being held for some other lawful cause other than by virtue of the Sentence Mittimus dated September 28, 2001 issued by CESAR S. VIDUYA,

Clerk of Court, MTC 4, Baguio City. Further, the petitioner is required to pay a fine in the amount ofP100,000.00 in lieu of his imprisonment,

in addition to the civil aspect of the Joint Judgment rendered by MTC 4 dated July 16, 1999."5

The Facts

The pertinent facts are not disputed. Respondent Fernando L. Dimagiba issued to Petitioner Susan Go thirteen (13) checks which, when

presented to the drawee bank for encashment or payment on the due dates, were dishonored for the reason "account closed."6 Dimagiba

was subsequently prosecuted for 13 counts of violation of BP 227 under separate Complaints filed with the Municipal Trial Court in Cities

(MTCC) in Baguio City.8 After a joint trial, the MTCC (Branch 4) rendered a Decision on July 16, 1999, convicting the accused in the 13 cases.

The dispositive portion reads as follows:

"WHEREFORE, in view of the foregoing disquisition, this Court finds the evidence of the prosecution to have established the guilt of the

accused beyond reasonable doubt of the offenses charged and imposes upon the accused the penalty of 3 months imprisonment for each

count (13 counts) and to indemnify the offended party the amount of One Million Two Hundred Ninety Five Thousand Pesos (P1,295,000.00)

with legal interest per annum commencing from 1996 after the checks were dishonored by reason 'ACCOUNT CLOSED' on December 13,

1995, to pay attorney's fees of P15,000.00 and to pay the costs."9

The appeal of Dimagiba was raffled to Branch 4 of the RTC in Baguio City.10 On May 23, 2000, the RTC denied the appeal and sustained his

conviction.11 There being no further appeal to the Court of Appeals (CA), the RTC issued on February 1, 2001, a Certificate of Finality of the

Decision.12

Thus, on February 14, 2001, the MTCC issued an Order directing the arrest of Dimagiba for the service of his sentence as a result of his

conviction. The trial court also issued a Writ of Execution to enforce his civil liability.13

On February 27, 2001, Dimagiba filed a Motion for Reconsideration of the MTCC Order. He prayed for the recall of the Order of Arrest and the

modification of the final Decision, arguing that the penalty of fine only, instead of imprisonment also, should have been imposed on

him.14 The arguments raised in that Motion were reiterated in a Motion for the Partial Quashal of the Writ of Execution filed on February 28,

2001.15

In an Order dated August 22, 2001, the MTCC denied the Motion for Reconsideration and directed the issuance of a Warrant of Arrest against

Dimagiba.16 On September 28, 2001, he was arrested and imprisoned for the service of his sentence.

On October 9, 2001, he filed with the RTC of Baguio City a Petition17 for a writ of habeas corpus. The case was raffled to Branch 5, which

scheduled the hearing for October 10, 2001. Copies of the Order were served on respondent's counsels and the city warden.18

Ruling of the Regional Trial Court

Right after hearing the case on October 10, 2001, the RTC issued an Order directing the immediate release of Dimagiba from confinement

and requiring him to pay a fine ofP100,000 in lieu of imprisonment. However, the civil aspect of the July 16, 1999 MTCC Decision was not

touched upon.19 A subsequent Order, explaining in greater detail the basis of the grant of the writ of habeas corpus, was issued on October

11, 2001.20

In justifying its modification of the MTCC Decision, the RTC invoked Vaca v. Court of Appeals21 and Supreme Court Administrative Circular

(SC-AC) No. 12-2000,22 which allegedly required the imposition of a fine only instead of imprisonment also for BP 22 violations, if the accused

was not a recidivist or a habitual delinquent. The RTC held that this rule should be retroactively applied in favor of Dimagiba.23 It further

noted that (1) he was a first-time offender and an employer of at least 200 workers who would be displaced as a result of his imprisonment;

and (2) the civil liability had already been satisfied through the levy of his properties.24

On October 22, 2001, Petitioner Go filed a Motion for Reconsideration of the RTC Orders dated October 10 and 11, 2001.25 That Motion was

denied on January 18, 2002.26

Hence, this Petition filed directly with this Court on pure questions of law.27

The Issues

Petitioner raises the following issues for this Court's consideration:

"1. [The RTC] Judge was utterly devoid of jurisdiction in amending a final and conclusive decision of the Municipal Trial Court, Branch 4,

dated July 16, 1999, in nullifying the Sentence Mittimus, dated September 28, 2001, issued by x x x [the] Municipal Trial Court, Branch 4,

Baguio City, and in ordering the release of [Dimagiba] from confinement in jail for the service of his sentence under the said final and

conclusive judgment;

"2. Assuming only for the sake of argument that habeas corpus is the proper remedy, the Petition for Habeas Corpus is utterly devoid of

merit as [Dimagiba was] not entitled to the beneficent policy enunciated in the Eduardo Vaca and Rosa Lim cases and reiterated in the

Supreme Court Circular No. 12-2000; x x x

"3. Granting for the sake of argument that [Dimagiba was] entitled to the beneficent policy enunciated in the Eduardo Vaca and Rosa Lim

cases and reiterated in the Supreme Court Circular No. 12-2000, the minimum fine that should be imposed on [Dimagiba] is one million and

two hundred ninety five thousand pesos (P1,295,000.00) up to double the said amount or (P2,590,000), not just the measly amount

of P100,000; andcralawlibrary

"4. [The RTC] judge committed grave abuse of discretion amounting to lack or excess of jurisdiction in hearing and deciding [Dimagiba's]

Petition for Habeas Corpus without notice and without affording procedural due process to the People of the Philippines through the Office of

[the] City Prosecutor of Baguio City or the Office of the Solicitor General."28

In the main, the case revolves around the question of whether the Petition for habeas corpus was validly granted. Hence, the Court will

discuss the four issues as they intertwine with this main question.29

The Court's Ruling

The Petition is meritorious.

Main Issue:

Propriety of the Writ of Habeas Corpus

The writ of habeas corpus applies to all cases of illegal confinement or detention in which individuals are deprived of liberty.30 It was devised

as a speedy and effectual remedy to relieve persons from unlawful restraint; or, more specifically, to obtain immediate relief for those who

may have been illegally confined or imprisoned without sufficient cause and thus deliver them from unlawful custody.31 It is therefore a writ

of inquiry intended to test the circumstances under which a person is detained.32

The writ may not be availed of when the person in custody is under a judicial process or by virtue of a valid judgment.33 However, as a post-

conviction remedy, it may be allowed when, as a consequence of a judicial proceeding, any of the following exceptional circumstances is

attendant: (1) there has been a deprivation of a constitutional right resulting in the restraint of a person; (2) the court had no jurisdiction to

impose the sentence; or (3) the imposed penalty has been excessive, thus voiding the sentence as to such excess.34

In the present case, the Petition for a writ of habeas corpus was anchored on the ruling in Vaca and on SC-AC No. 12-2000, which allegedly

prescribed the imposition of a fine, not imprisonment, for convictions under BP 22. Respondent sought the retroactive effect of those rulings,

thereby effectively challenging the penalty imposed on him for being excessive. From his allegations, the Petition appeared sufficient in form

to support the issuance of the writ.

However, it appears that respondent has previously sought the modification of his sentence in a Motion for Reconsideration35 of the MTCC's

Execution Order and in a Motion for the Partial Quashal of the Writ of Execution.36 Both were denied by the MTCC on the ground that it had no

power or authority to amend a judgment issued by the RTC.

In his Petition for habeas corpus, respondent raised the same arguments that he had invoked in the said Motions. We believe that his resort

to this extraordinary remedy was a procedural infirmity. The remedy should have been an appeal of the MTCC Order denying his Motions, in

which he should have prayed that the execution of the judgment be stayed. But he effectively misused the action he had chosen, obviously

with the intent of finding a favorable court. His Petition for a writ of habeas corpus was clearly an attempt to reopen a case that had already

become final and executory. Such an action deplorably amounted to forum shopping. Respondent should have resorted to the proper,

available remedy instead of instituting a different action in another forum.

The Court also finds his arguments for his release insubstantial to support the issuance of the writ of habeas corpus.

Preference in the Application of Penalties for Violation of BP 22

The following alternative penalties are imposable under BP 22: (1) imprisonment of not less than 30 days, but not more than one year; (2) a

fine of not less or more than double the amount of the check, a fine that shall in no case exceed P200,000; or (3) both such fine and

imprisonment, at the discretion of the court.37

SC-AC No. 12-2000, as clarified by SC-AC No. 13-2001,38 established a rule of preference in imposing the above penalties.39 When the

circumstances of the case clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone may

be considered as the preferred penalty.40 The determination of the circumstances that warrant the imposition of a fine rests upon the trial

judge only.41 Should the judge deem that imprisonment is appropriate, such penalty may be imposed.42

SC-AC No. 12-2000 did not delete the alternative penalty of imprisonment. The competence to amend the law belongs to the legislature, not

to this Court.43

Inapplicability of SC-AC No. 12-2000

Petitioners argue that respondent is not entitled to the benevolent policy enunciated in SC-AC No. 12-2000, because he is not a "first time

offender."44 This circumstance is, however, not the sole factor in determining whether he deserves the preferred penalty of fine alone. The

penalty to be imposed depends on the peculiar circumstances of each case.45 It is the trial court's discretion to impose any penalty within the

confines of the law. SC-AC No. 13-2001 explains thus:

"x x x. Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of BP 22 such that

where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of

negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of

whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. x x x.

It is, therefore, understood that:

"2. The Judges concerned, may in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case,

determine whether the imposition of a fine alone would best serve the interests of justice, or whether forbearing to impose imprisonment

would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice;"

The Court notes that the Petition for a writ of habeas corpus relied mainly on the alleged retroactivity of SC-AC No. 12-2000, which

supposedly favored BP 22 offenders.46 On this point, Dimagiba contended that his imprisonment was violative of his right to equal protection

of the laws, since only a fine would be imposed on others similarly situated.47

The rule on retroactivity states that criminal laws may be applied retroactively if favorable to the accused. This principle, embodied in the

Revised Penal Code,48 has been expanded in certain instances to cover special laws.49

The issue of retroactivity of SC-AC No. 12-2000 was settled in De Joya v. Jail Warden of Batangas City,50 which we quote:

"Petitioner's reliance of our ruling in Ordoñez v. Vinarao that a convicted person is entitled to benefit from the reduction of penalty

introduced by the new law, citing People v. Simon, is misplaced. Thus, her plea that as provided for in Article 22 of the Revised Penal Code,

SC Admin. Circular No. 12-2000 as modified by SC Admin. Circular No. 13-2001 should benefit her has no basis.

"First. SC Admin. Circular No. 12-2000 is not a penal law; hence, Article 22 of the Revised Penal Code is not applicable. The circular applies

only to those cases pending as of the date of its effectivity and not to cases already terminated by final judgment.

"Second. As explained by the Court in SC Admin. Circular No. 13-2001, SC Admin. Circular No. 12-2000 merely lays down a rule of preference

in the application of the penalties for violation of B.P. Blg. 22. It does not amend B.P. Blg. 22, nor defeat the legislative intent behind the law.

SC Admin. Circular No. 12-2000 merely urges the courts to take into account not only the purpose of the law but also the circumstances of

the accused - - whether he acted in good faith or on a clear mistake of fact without taint of negligence - - and such other circumstance which

the trial court or the appellate court believes relevant to the penalty to be imposed."51

Because the Circular merely lays down a rule of preference, it serves only as a guideline for the trial courts. Thus, it is addressed to the

judges, who are directed to consider the factual circumstances of each case prior to imposing the appropriate penalty. In other words, the

Administrative Circular does not confer any new right in favor of the accused, much less those convicted by final judgment.

The competence to determine the proper penalty belongs to the court rendering the decision against the accused.52 That decision is subject

only to appeal on grounds of errors of fact or law, or grave abuse of discretion amounting to lack or excess of jurisdiction. Another trial court

may not encroach upon this authority. Indeed, SC-AC No. 12-2000 necessarily requires a review of all factual circumstances of each case.

Such a review can no longer be done if the judgment has become final and executory.

In the present case, the MTCC of Baguio City had full knowledge of all relevant circumstances from which respondent's conviction and

sentence were based. The penalty imposed was well within the confines of the law. Upon appeal, the conviction was sustained by RTC-

Branch 4 of Baguio City. Eventually, the Decision attained finality. Hence, RTC-Branch 5 did not have the jurisdiction to modify the lawful

judgment in the guise of granting a writ of habeas corpus.

The doctrine of equal protection of laws53 does not apply for the same reasons as those on retroactivity. Foremost of these reasons is that the

Circular is not a law that deletes the penalty of imprisonment. As explained earlier, it is merely a rule of preference as to which penalty

should be imposed under the peculiar circumstances of a case. At any rate, this matter deserves scant consideration, because respondent

failed to raise any substantial argument to support his contention.54

Modification of Final Judgment Not Warranted

The Court is not unmindful of So v. Court of Appeals,55 in which the final judgment of conviction for violation of BP 22 was modified by the

deletion of the sentence of imprisonment and the imposition of a fine. That case proceeded from an "Urgent Manifestation of an

Extraordinary Supervening Event,"56 not from an unmeritorious petition for a writ of habeas corpus, as in the present case. The Court

exercised in that case its authority to suspend or to modify the execution of a final judgment when warranted or made imperative by the

higher interest of justice or by supervening events.57 The supervening event in that case was the petitioner's urgent need for coronary

rehabilitation for at least one year under the direct supervision of a coronary care therapist; imprisonment would have been equivalent to a

death sentence.58

The peculiar circumstances of So do not obtain in the present case. Respondent's supposed "unhealthy physical condition due to a triple by-

pass operation, and aggravated by hypertension," cited by the RTC in its October 10, 2001 Order,59 is totally bereft of substantial proof. The

Court notes that respondent did not make any such allegation in his Petition for habeas corpus. Neither did he mention his physical state in

his Memorandum and Comment submitted to this Court.

Respondent seeks the retroactive application of SC-AC No. 12-2000 in his favor on the basis alone of the alleged settlement of his civil

liability.60 Citing Griffith v. Court of Appeals,61 he theorizes that answering for a criminal offense is no longer justified after the settlement of

the debt.

Respondent, however, misreads Griffith. The Court held in that case that convicting the accused who, two years prior to the filing of the BP

22 cases, had already paid his debt (from which the checks originated) was contrary to the basic principles of fairness and

justice.62 Obviously, that situation is not attendant here.

The civil liability in the present case was satisfied through the levy and sale of the properties of respondent only after the criminal case had

been terminated with his conviction.63 Apparently, he had sufficient properties that could have been used to settle his liabilities prior to his

conviction. Indeed, such an early settlement would have been an indication that he was in good faith, a circumstance that could have been

favorably considered in determining his appropriate penalty.

At any rate, civil liability differs from criminal liability.64 What is punished in the latter is not the failure to pay the obligation, but the issuance

of checks that subsequently bounced or were dishonored for insufficiency or lack of funds.65 The Court reiterates the reasons why the

issuance of worthless checks is criminalized:

"The practice is prohibited by law because of its deleterious effects on public interest. The effects of the increase of worthless checks

transcend the private interest of the parties directly involved in the transaction and touches the interest of the community at large. The

mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful practice of putting valueless

commercial papers in circulation multiplied a thousand-fold can very well pollute the channels of trade and commerce, injure the banking

system and eventually hurt the welfare of society and the public interest. The law punishes the act not as an offense against property but an

offense against public order."66

WHEREFORE, the Petition is GRANTED and the assailed Orders NULLIFIED. Respondent's Petition for habeas corpus is hereby DENIED. Let

this case be REMANDED to MTCC of Baguio City for the re-arrest of respondent and the completion of his sentence.

[G.R. NO. 174689 : October 22, 2007]

ROMMEL JACINTO DANTES SILVERIO, Petitioner, v. REPUBLIC OF THE PHILIPPINES, Respondent.

When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel,

drugs and counseling with regard to a person's sex? 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?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth

certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of

Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on

April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was

registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always

identified himself with girls since childhood.1 Feeling trapped in a man's body, he consulted several doctors in the United States. He

underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman"

culminated on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr.

Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he

(petitioner) had in fact undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate

changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."

An order setting the case for initial hearing was published in the People's Journal Tonight, a newspaper of general circulation in Metro Manila,

for three consecutive weeks.3Copies of the order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the

purpose of making his birth records compatible with his present sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his

sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female.

Petitioner's misfortune to be trapped in a man's body is not his own doing and should not be in any way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the

contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her [fiancé] and the realization of

their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and publication thereof.

Even the State, through the [OSG] has not seen fit to interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing

in the Certificate of Birth of [p]etitioner, specifically for petitioner's first name from "Rommel Jacinto" to MELY and petitioner's gender from

"Male" to FEMALE.5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged

that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial court's decision lacked legal

basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through

surgery. Thus, the Court of Appeals granted the Republic's petition, set aside the decision of the trial court and ordered the dismissal of SP

Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code,

Rules 103 and 108 of the Rules of Court and RA 9048.10

The petition lacks merit.

A Person's First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the

purpose of making his birth records compatible with his present sex. (emphasis supplied)

Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry changes sought. We

disagree.

The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of name is a privilege, not

a right.12 Petitions for change of name are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. - No entry in a civil register shall be

changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be

corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its

implementing rules and regulations.

RA 9048 now governs the change of first name.14 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.15 It likewise lays down the corresponding

venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in

nature, not judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. - The petition for change of first name or nickname may be allowed in any of the

following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;(2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or(3) The change will avoid confusion.

Petitioner's 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 one's legal capacity or civil

status.18 RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing

petitioner's first name for his declared purpose may only create grave complications in the civil registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such

change.19 In addition, he must show that he will be prejudiced by the use of his true and official name.20 In this case, he failed to show, or

even allege, any prejudice that he might suffer as a result of using his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of petitioner's first name was not within that court's 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

petitioner's petition in so far as the change of his first name was concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment

The determination of a person's sex appearing in his birth certificate is a legal issue and the court must look to the statutes.21 In this

connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical errors are involved.

The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In

effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to

substantial changes and corrections in entries in the civil register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. - As used in this Act, the following terms shall mean:

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or

typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is

visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or

records: Provided, however, That no correction must involve the change of nationality, age, status or sexof the petitioner. (emphasis

supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial

change for which the applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407

and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the

beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of

citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.25 However, no

reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with

something else of the same kind or with something that serves as a substitute."26 The birth certificate of petitioner contained no error. All

entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate

children and naturalization), events(such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations,

annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction,

judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon

the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not

among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of

his age, nationality and his family membership.27

The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status' include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied)

A person's sex is an essential factor in marriage and family relations. It is a part of a person's legal capacity and civil status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioner's cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. - The declaration of the physician or midwife in attendance at the birth or, in default

thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such

declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the

birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of

infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e)

place where the infant was born; and (f) such other data as may be required in the regulations to be issued.

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29 Thus, the sex of a

person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant.

Considering that there is no law legally recognizing sex reassignment, the determination of a person's sex made at the time of his or her

birth, if not attended by error,30 is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative

intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws)

should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex

is defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32or "the distinction between male and

female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing

ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment.

Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that

sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s

and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that

allows a post-operative male-to-female transsexual to be included in the category "female."

For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no

law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction

or change of the entries in his birth certificate.

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 petitioner's first step towards his eventual marriage to his male fiancé. However, marriage, one of the most

sacred social institutions, is a special contract of permanent unionbetween a man and a woman.37 One of its essential requisites is the legal

capacity of the contracting parties who must be a male and a female.38 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,39 certain felonies under the Revised Penal Code40 and the presumption of

survivorship in case of calamities under Rule 131 of the Rules of Court,41among others. These laws underscore the public policy in relation to

women which could be substantially affected if petitioner's petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence,

obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply

or interpret the law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition

of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted

are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry,

where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the

legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his

reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his

sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law

exists. It can only apply or interpret the written word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No

argument about that. The Court recognizes that there are people whose preferences and orientation do not fit neatly into the commonly

recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks

involve questions of public policy to be addressed solely by the legislature, not by the courts. WHEREFORE, the petition is hereby DENIED.

[G.R. NO. 164041. July 29, 2005]

ROSENDO ALBA v. COURT OF APPEALS and ROSENDO C. HERRERA, Respondents.

Assailed in this Petition for Certiorari1 are the February 27, 2004 decision2 and the May 14, 2004 resolution3 of the Court of Appeals in CA-G.R.

SP No. 61883, which dismissed petitioner's original action for annulment of judgment4 of the Regional Trial Court of Manila, Branch 37, and

denied the motion for reconsideration, respectively.

The antecedent facts show that on October 21, 1996, private respondent Rosendo C. Herrera filed a petition5 for cancellation of the following

entries in the birth certificate of "Rosendo Alba Herrera, Jr.", to wit: (1) the surname "Herrera" as appended to the name of said child; (2) the

reference to private respondent as the father of Rosendo Alba Herrera, Jr.; and (3) the alleged marriage of private respondent to the child's

mother, Armi A. Alba (Armi) on August 4, 1982 in Mandaluyong City. He claimed that the challenged entries are false and that it was only

sometime in September 1996 that he learned of the existence of said birth certificate.

Private respondent alleged that he married only once, i.e., on June 28, 1965 with Ezperanza C. Santos and never contracted marriage with

Armi nor fathered Rosendo Alba Herrera, Jr. In support thereof, he presented certifications from the Civil Registrar of Mandaluyong City6 and

the National Statistics Office,7 both stating that they have no record of marriage between private respondent and Armi.

On November 12, 1996, private respondent filed an amended petition,8 impleading Armi and "all the persons who have or claim any interest

in th[e] petition."9

On November 27, 1996, the trial court issued an Order setting the petition for hearing on January 24, 1997, and directed the publication and

service of said order to Armi at her address appearing in the birth certificate which is No. 418 Arquiza St., Ermita, Manila, and to the Civil

Registrar of the City of Manila and the Solicitor General. The full text of the order, reads:

In a verified Amended Petition for Correction of Entry, the Petitioner prays, inter alia, that the following entries appearing in the subject

Certificate of Live Birth be deleted:

1. All informations having reference to him as the father of the child mentioned therein;2. The surname "Herrera" appended to the child's name;

3. His alleged marriage with the natural mother of the child.

Finding the Petition to be sufficient in form and substance, let the Petition be set for hearing on January 24, 1997 at nine o'clock in the

morning before this Branch at Rooms 447-449, Fourth Floor, Manila City Hall. All interested parties are hereby notified of the said hearing

and are ordered to show cause why the Petition should not be granted.

Let a copy of this Order be published at the expense of the Petitioner, once a week for three (3) consecutive weeks, in a newspaper of

general circulation in the City of Manila, and raffled pursuant to P.D. 1079.

Furnish the Office of the Solicitor General and the Office of the Local Civil Registrar of the City of Manila with copies of the Petition and of this

Order.

Let the same be likewise furnished the Private Respondent Armi Alba Herrera at the address indicated in the subject Certificate of Live Birth.

SO ORDERED.10

On January 13, 1997, before the scheduled January 24, 1997 hearing, the trial court issued an Amended Order11 with substantially the same

contents, except that the hearing was re-scheduled to February 26, 1997. A copy of said Amended Order was published in "Today", a

newspaper of general circulation in Manila in its January 20, 27, and February 3, 1997 issues. Copies thereof were also sent to Armi at No.

418 Arquiza St., Ermita, Manila, on January 17, 1997, the Local Civil Registrar of Manila and the Solicitor General.

At the scheduled hearing on February 26, 1997, the counsel from the Office of the Solicitor General appeared but filed no opposition to the

petition. Armi, on the other hand was not present. The return of the notice sent to her had the following notation:

This is to certify that on January 17, 1997, the undersigned [process server] personally served a copy of the Amended Order in Sp. Proc. No.

96-80512 dated January 13, 1997 to the private respondent, Armi Alba Herrera at - 418 Arquiza St., Ermita, Manila, but failed and

unavailing for reason that (sic), private respondent is no longer residing at said given address.12

On April 1, 1997, the court a quo rendered a decision which became final and executory on June 2, 1997.13 The dispositive portion thereof,

states:

ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of Court, judgment is hereby rendered ordering the correction of the entries in

the Certificate of Live Birth of Rosendo Alba Herrera, Jr., in such a way that the entry under the name of the child, the surname Herrera, Jr.[,]

is ordered deleted, and the child shall be known as ROSENDO ALBA; and that the entry under the date and place of marriage, the date

August 4, 1982, Mandaluyong, MM is likewise ordered deleted or cancelled.

Let a copy of this Decision be furnished the Local Civil Registrar of Manila for proper correction and entry. SO ORDERED.14

Private respondent filed a motion15 for amendment of the decretal portion of the decision to include the cancellation of all entries having

reference to him as the father of petitioner minor. This was granted in the August 11, 1997 order of the trial court as follows:

ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of Court, judgment is hereby rendered ordering the correction of the entries in

the Certificate of Live Birth of Rosendo Alba Herrera, Jr., in such a way that the entries under the name of the child, the surname Herrera,

Jr., and the name of the father Rosendo Caparas Herrera are ordered deleted, and the child shall be known as ROSENDO ALBA; and the entry

under the date and place of marriage, the date August 4, 1982, Mandaluyong, MM is likewise ordered deleted or cancelled.

SO ORDERED.16

On November 24, 2000, Armi and petitioner minor filed a petition for annulment of judgment before the Court of Appeals on the grounds of

extrinsic fraud and lack of jurisdiction over their person. She allegedly came to know of the decision of the trial court only on February 26,

1998, when San Beda College, where her son was enrolled as a high school student, was furnished by private respondent with a copy of a

court order directing the change of petitioner minor's surname from Herrera to Alba.

Armi averred that private respondent was aware that her address is at Unit 302 Plaza Towers Condominium, 1175 Lorenzo Guerrero St.,

Ermita, Manila, because such was her residence when she and private respondent cohabited as husband and wife from 1982 to 1988; and

her abode when petitioner minor was born on March 8, 1985. Even after their separation, private respondent continued to give support to

their son until 1998; and that Unit 302 was conveyed to her by private respondent on June 14, 1991 as part of his support to petitioner

minor. According to Armi, her address i.e., No. 418 Arquiza St., Ermita, Manila, as appearing in the birth certificate of their son, was entered

in said certificate through the erroneous information given by her sister, Corazon Espiritu. She stressed that private respondent knew all

along that No. 418 Arquiza St., is the residence of her sister and that he deliberately caused the service of notice therein to prevent her from

opposing the petition.

In his answer, private respondent denied paternity of petitioner minor and his purported cohabitation with Armi. He branded the allegations

of the latter as "false statements coming from a polluted source."17

On February 27, 2004, the Court of Appeals dismissed the petition holding, among others, that petitioner failed to prove that private

respondent employed fraud and purposely deprived them of their day in court. It further held that as an illegitimate child, petitioner minor

should bear the surname of his mother.18 Petitioners filed a motion for reconsideration but was denied.

Hence, the instant petition.

Under Section 2, Rule 47 of the 1997 Revised Rules of Civil Procedure, judgments may be annulled on the grounds of lack of jurisdiction and

extrinsic fraud.19

Whether or not the trial court acquired jurisdiction over the person of petitioner and her minor child depends on the nature of private

respondent's action, that is, in personam,in rem or quasi in rem. An action in personam is lodged against a person based on personal

liability; an action in rem is directed against the thing itself instead of the person; while an action quasi in rem names a person as defendant,

but its object is to subject that person's interest in a property to a corresponding lien or obligation.20

Hence, petitions directed against the "thing" itself or the res,21 which concerns the status of a person,22 like a petition for

adoption,23 annulment of marriage,24 or correction of entries in the birth certificate,25 as in the instant case, are actions in rem.

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. In a

proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court,

provided that the latter has jurisdiction over the res. Jurisdiction over theres is acquired either (a) by the seizure of the property under legal

process, whereby it is brought into actual custody of the law; or (b) as a result of the institution of legal proceedings, in which the power of

the court is recognized and made effective.26 The service of summons or notice to the defendant is not for the purpose of vesting the court

with jurisdiction but merely for satisfying the due process requirements.27

In the case at bar, the filing with the trial court of the petition for cancellation vested the latter jurisdiction over the res. Substantial

corrections or cancellations of entries in civil registry records affecting the status or legitimacy of a person may be effected through the

institution of a petition under Rule 108 of the Revised Rules of Court, with the proper Regional Trial Court.28 Being a proceeding in rem,

acquisition of jurisdiction over the person of petitioner is therefore not required in the present case. It is enough that the trial court is vested

with jurisdiction over the subject matter.

The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication thereof in a newspaper of general circulation in Manila,

sufficiently complied with the requirement of due process, the essence of which is an opportunity to be heard. Said address appeared in the

birth certificate of petitioner minor as the residence of Armi. Considering that the Certificate of Birth bears her signature, the entries

appearing therein are presumed to have been entered with her approval. Moreover, the publication of the order is a notice to all

indispensable parties, including Armi and petitioner minor, which binds the whole world to the judgment that may be rendered in the

petition. An in rem proceeding is validated essentially through publication.29 The absence of personal service of the order to Armi was

therefore cured by the trial court's compliance with Section 4, Rule 108, which requires notice by publication, thus:

SEC. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the

same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be

published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province.

In Barco v. Court of Appeals, the trial court granted a petition for correction/change of entries in a minor's birth certificate to reflect the

name of the minor's real father as well as to effect the corresponding change of her surname. In seeking to annul said decision, the other

children of the alleged father claimed that they are indispensable parties to the petition for correction, hence, the failure to implead them is

a ground to annul the decision of the trial court. The Court of Appeals denied the petition which was sustained by this Court on the

ground, inter alia, that while petitioner is indeed an indispensable party, the failure to implead her was cured by the publication of the order

of hearing. Thus'

Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108. Her interest was affected by the petition for correction, as any

judicial determination that June was the daughter of Armando would affect her ward's share in the estate of her father. It cannot be

established whether Nadina knew of Mary Joy's existence at the time she filed the petition for correction. Indeed, doubt may always be cast

as to whether a petitioner under Rule 108 would know of all the parties whose interests may be affected by the granting of a petition. For

example, a petitioner cannot be presumed to be aware of all the legitimate or illegitimate offsprings of his/her spouse or paramour. The fact

that Nadina amended her petition to implead Francisco and Gustilo indicates earnest effort on her part to comply with Section 3 as quoted

above.

Yet, even though Barco was not impleaded in the petition, the Court of Appeals correctly pointed out that the defect was cured by

compliance with Section 4, Rule 108, which requires notice by publication, thus:

Section 4. Upon the filing of the petition, the court shall, by order, fix the time and place for the hearing of the same, and cause reasonable

notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three

(3) consecutive weeks in a newspaper of general circulation in the province.

The purpose precisely of Section 4, Rule 108 is to bind the whole world to the subsequent judgment on the petition. The

sweep of the decision would cover even parties who should have been impleaded under Section 3, Rule 108, but were

inadvertently left out. The Court of Appeals correctly noted:

The publication being ordered was in compliance with, and borne out by the Order of January 7, 1985. The actual publication of the

September 22, 1983 Order, conferred jurisdiction upon the respondent court to try and decide the case. While "nobody appeared to oppose

the instant petition" during the December 6, 1984 hearing, that did not divest the court from its jurisdiction over the case and of its authority

to continue trying the case. For, the rule is well-settled, that jurisdiction, once acquired continues until termination of the case.

Verily, a petition for correction is an action in rem, an action against a thing and not against a person. The decision on the petition binds not

only the parties thereto but the whole world. An in rem proceeding is validated essentially through publication. Publication is notice to the

whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the

right sought to be established. It is the publication of such notice that brings in the whole world as a party in the case and vests the court

with jurisdiction to hear and decide it.30

Furthermore, extrinsic fraud, which was private respondent's alleged concealment of Armi's present address, was not proven. Extrinsic fraud

exists when there is a fraudulent act committed by the prevailing party outside of the trial of the case, whereby the defeated party was

prevented from presenting fully his side of the case by fraud or deception practiced on him by the prevailing party. Here, Armi contended

that private respondent is aware of her present address because they lived together as husband and wife in the condominium unit from

1982 to 1988 and because private respondent continued to give support to their son until 1998. To prove her claim, she presented (1)

private respondent's title over the condominium unit; (2) receipts allegedly issued to private respondent for payment of homeowner's or

association dues; (2) a photocopy of a January 14, 1991 deed of sale of the subject unit in favor of Armi; and (3) the subsequent title issued

to the latter. However, these documents only tend to prove private respondent's previous ownership of the unit and the subsequent transfer

thereof to Armi, but not the claimed live-in relationship of the parties. Neither does the sale prove that the conveyance of the unit was part

of private respondent's support to petitioner minor. Indeed, intimate relationships and family relations cannot be inferred from what appears

to be an ordinary business transaction.

Although the January 14, 1991 deed of sale31 stated that Armi resides at 1175 L. Guerrero St., Ermita, Manila, the same is not sufficient to

prove that private respondent has knowledge of Armi's address because the former objected to the offer of the deed for being a mere

photocopy.32 The counsel for petitioners even admitted that they do not have the original of the deed and that per certification of the Clerk of

Court, the Notary Public who notarized the deed of sale did not submit a copy of the notarized document as required by the rules.33 The deed

cannot thus be the basis of ascribing knowledge of Armi's address to private respondent inasmuch as the authenticity thereof was neither

admitted by private respondent nor proven by petitioners.

While Armi presented the alleged love letters/notes from private respondent, they were only attached as annexes to the petition and not

formally offered as evidence before the Court of Appeals. More importantly, said letters/notes do not have probative value because they

were mere photocopies and never proven to be an authentic writing of private respondent. In the same vein, the affidavits34 of Armi and her

sister, Corazon Espiritu, are of no evidentiary weight. The basic rule of evidence is that unless the affiants themselves are placed on the

witness stand to testify on their affidavits, such affidavits must be rejected for being hearsay. Stated differently, the declarants of written

statements pertaining to disputed facts must be presented at the trial for cross-examination.35 Inasmuch as Armi and her sister were not

presented before the Court of Appeals to affirm the veracity of their affidavits, the same are considered hearsay and without probative

value.

Ei incumbit probotio qui dicit, non qui negat. He who asserts, not he who denies, must prove.36 Armi's claim that private respondent is aware

of her present address is anchored on the assertion of a live-in relationship and support to her son. Since the evidence presented by Armi is

not sufficient to prove the purported cohabitation and support, it follows that private respondent's knowledge of Armi's address was likewise

not proven. Thus, private respondent could not have deliberately concealed from the court that which was not shown to be known to him.

The Court of Appeals therefore correctly dismissed the petition for annulment of judgment on the ground of failure to establish extrinsic

fraud.

The proper remedy of a party aggrieved by a decision of the Court of Appeals in an action to annul a judgment of a Regional Trial Court is a

Petition for Review on Certiorariunder Rule 45 of the Revised Rules of Civil Procedure, where only questions of law may be raised. The resort

of petitioner to the instant civil action for certiorari under Rule 65 is therefore erroneous. The special civil action of certiorari will not be

allowed as a substitute for failure to timely file a Petition for Review under Rule 45, which should be instituted within 15 days37 from receipt

of the assailed decision or resolution. The wrong choice of remedy thus provides another reason to dismiss this petition.38

Finally, petitioner failed to establish the merits of her petition to annul the trial court's decision. In an action for annulment of judgment, the

petitioner must convince the court that something may indeed be achieved should the assailed decision be annulled.39 Under Article 17640 of

the Family Code as amended by Republic Act (RA) No. 9255, which took effect on March 19, 2004, illegitimate children shall use the surname

of their mother, unless their father recognizes their filiation, in which case they may bear the father's surname. In Wang v. Cebu Civil

Registrar,41 it was held that an illegitimate child whose filiation is not recognized by the father, bears only a given name and his mother's

surname. The name of the unrecognized illegitimate child identifies him as such. It is only when said child is recognized that he may use his

father's surname, reflecting his status as an acknowledged illegitimate child.

In the present case, it is clear from the allegations of Armi that petitioner minor is an illegitimate child because she was never married to

private respondent. Considering that the latter strongly asserts that he is not the father of petitioner minor, the latter is therefore an

unrecognized illegitimate child. As such, he must bear the surname of his mother.

In sum, the substantive and procedural aspects of the instant controversy do not warrant the annulment of the trial court's decision.

WHEREFORE, the petition is DISMISSED. The February 27, 2004 decision and the May 14, 2004 resolution of the Court of Appeals in CA-G.R.

SP No. 61883 are AFFIRMED.

[A.M. NO. RTJ-02-1698. June 23, 2005]

DANTE VICENTE, Petitioner, v. . JUDGE JOSE S. MAJADUCON, Respondent.

In a letter-complaint dated July 21, 2000, addressed to then Court Administrator Alfredo L. Benipayo, Dante Vicente charged respondent

Judge Jose S. Majaducon of the Regional Trial Court (RTC) of General Santos City, Branch 23, with gross ignorance of the law, grave abuse of

authority and manifest partiality, praying that he be administratively disciplined and terminated from the service.

The instant administrative complaint stemmed from a series of criminal cases involving a certain Evelyn Te of General Santos City. The

factual and procedural antecedents leading to the instant administrative case is summarized in this Court's Resolution of February 19, 2001,

in G.R. NOS. 145715-18 entitled, People of the Philippines v. Evelyn Te, pertinent portions of which read as follows: ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

In a joint decision dated May 31, 1995, the Regional Trial Court, Branch 23, General Santos City, found Evelyn Te guilty on four counts of

violation of B. P. Blg. 22, otherwise known as the Bouncing Checks Law, and sentenced her to two (2) months of imprisonment on each

count. The decision became final and executory after this Court had denied Te's Petition for Review from the affirmance of the trial court's

decision by the Court of Appeals.

On March 11, 2000, Te sought clarification from the trial court whether she should serve her sentences successively or simultaneously. In an

order, dated May 25, 2000, the trial court clarified that she should serve her sentences successively, but 'for humanitarian reason and in

accordance with Art. 70 of the Revised Penal Code, it held that 'instead of serving imprisonment of EIGHT months, the prisoner EVELYN TE

should serve only six months.

On June 2, 2000, Te filed a motion for reconsideration, which she prayed be also considered as a petition for issuance of the writ of habeas

corpus. Citing Vaca v. Court of Appeals, 298 SCRA 656 (1998), in which the sentence of imprisonment of a party found guilty of violation of

B.P. Blg. 22 was reduced to a fine equal to double the amount of the check involved, Te prayed that her sentence be similarly modified and

that she be immediately released from detention. In a supplemental motion, Te argued that she had been denied equal protection of the law

because the trial judge in another case involving multiple counts of robbery directed the accused to simultaneously serve his sentences.

On June 20, 2000, the trial court denied Te's petition for issuance of the writ of habeas corpus on the ground that Te was detained by virtue

of a final judgment.

On June 22, 2000, Te filed an omnibus motion praying for her release on the ground that she had been in jail since March 15, 2000 and had

fully served the three months minimum of her total sentence under the Indeterminate Sentence Law. In the alternative, Te prayed for

release on recognizance.

On June 23, 2000, Te moved for reconsideration of the trial court's order of June 20, 2000, alleging that the finality of the joint decision

against her did not bar her application for the writ of habeas corpus. She prayed that pending determination as to whether the Vaca ruling

applied to her, she also be allowed to post bail pursuant to Rule 102, '14.

On July 5, 2000, the trial court allowed Te to post bail in the amount of one million pesos, holding that it would order her release upon the

approval of her bail bond and thereafter certify the proceedings to the Court as the latter has concurrent jurisdiction over proceedings

for habeas corpus.

On July 7, 2000, the trial court approved Te's bail bonds in the reduced amount of P500,000.00 and ordered her release. The trial court also

directed its clerk of court to certify the proceedings to the Court.

On July 11, 2000, Assistant City Prosecutor Marie Ellengred L. Baliguiat moved for reconsideration of the trial court's resolution of July 5,

2000.

On July 18, 2000, Te filed a notice of appeal from the order, dated June 20, 2000, and the resolution, dated July 5, 2000, of the trial court.

On July 31, 2000, the trial court denied the motion for reconsideration of the Assistant City Prosecutor. It also denied due course to Te's

notice of appeal on the ground that there was no necessity for the appeal to the Court of Appeals because it had already ordered that the

whole records be forwarded to this Court pursuant to Rule 102, '14.1 Ï‚rνll

In the present case, complainant, who claims to be the station manager of Radyo Bombo, General Santos City, alleges that while Te was in

prison, respondent judge allowed her to be released and confined at a local hospital in the guise that she was suffering from certain

illnesses. Complainant further alleges that respondent judge approved Te's application for bail as part of habeas corpus proceedings even

though no petition for habeas corpus in favor of Te was filed and docketed. As a result of respondent judge's order allowing the provisional

liberty of Te, the local media in General Santos City made an uproar and criticized respondent judge for his action on the said case. In

retaliation, respondent judge cited for indirect contempt a group of mediamen who published a critical article against him. Complainant

contends that respondent judge will not hesitate to use his clout and power to stifle criticism and dissent. In addition, complainant alleges

that in a separate case, respondent judge allowed the release of the accused without the posting of the necessary bail. On the basis of the

above allegations, complainant prays that respondent judge be investigated and if warranted, be terminated and removed from service.2 Ï‚rνll

In his Comment, dated October 17, 2000, respondent judge submitted the following contentions which we quote verbatim: ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

1. The certified records of the above-mentioned cases against Evelyn Te were forwarded to the Supreme Court on August 5, 2000, upon the

order of undersigned by the Branch Clerk of Court for review of our questioned Order (attached as ANNEX '1 of letter Complaint); chanroblesvirtuallawlibrary

2. On June 2, 2000, Evelyn Te's counsel filed not only a motion for reconsideration denying our previous order denying her motion for release

from detention but also a petition for Habeas Corpus in the same cases;c

3. In the exercise of sound discretion and after hearing the comment of the public prosecutor, we issued the questioned Order, which is self-

explanatory;

4. We believed then that we had the discretion to allow her to be released on bail, based on Sec. 14, Rule 102 of the Revised Rules of Court;

5. We were thinking then that in such a dilemma, whether or not to release her on bail, it was a better judgment to release her from bail on a

writ of habeas corpus, because, Evelyn Te might be right in her contention that she is considered to have served her sentences

simultaneously. If we denied her petition for Habeas Corpus, and on appeal, she could get a favorable decision from the Supreme Court,

surely, she could return and charge us with a graver offense of ignorance of the law and abuse of discretion. She could even file other cases

against us under the Revised Penal Code, such as rendering an unjust order, or under the Civil Code for moral damages in millions of

pesos;chanroblesvirtuallawlibrary

6. To obviate such a possible move on Te's part, we opted to allow her release on bail through the writ of habeas corpus proceedings.

Anyway, the Supreme Court has the last say on that matter; c

7. Therefore, we are of the view that the letter complaint of Mr. Dante Vicente is legally premature as it concerned cases which are

still subjudice;chanroblesvirtuallawlibrary

8. Besides, we are of the opinion that Mr. Vicente has no personality as a third party to charge us with anything as he has not shown any

damage that he could have suffered because of our Order; ch

9. We are convinced that Mr. Vicente is trying to pre-empt our move to charge his radio station for libel or cite the announcer for indirect

contempt of Court when his radio station and announcer had been reviling and attacking us for many days on the air for having allowed

Evelyn Te to be treated and confined in a hospital upon recommendation of a government doctor and for having allowed her release from

imprisonment on bail; a certified Xerox copy of the letter of the Regional Director of the Department of Transportation and Communication

(National Telecommunications Commission) dated August 9, 2000, in reply to our request for copies of the broast tapes, is attached herewith

as ANNEX '1;chanroblesvirtuallawlibrary

10. As to the charge that we are stifling criticism by the print and broast media, we are of the view that if media has the privilege to criticize

the Courts and the Judges, we have also the right to charge them for indirect contempt of Court and libel, because there are laws regarding

this matter. The article of a certain Joseph Jubelag is now a subject of an indirect contempt charge before us, which we are about to

resolve;chanroblesvirtuallawlibrary

11. Regarding our Order in Criminal Case No. 14072 in the case of 'People v. Jhoyche Gersonin-Palma', RTC Br. 36, it was done with sound

discretion on our part because it was already 6:30 in the evening and the offices were closed and being a Friday, the accused would be

detained for two days and three nights, unless we accepted and approved the bail bond. Besides, the law requires judges to approve bail

even during the holidays. Immediately, on Monday, the money in the amount of P6,000.00 was deposited with the Clerk of Court as shown in

the official receipt (ANNEX '6 of letter complaint); chanroblesvirtuallawlibrary

12. Regarding our competence, honesty and integrity, modesty aside, as a judge for the last thirteen years in General Santos City, the

records of the Municipal Trial Court and RTC, Branches 23 and 22 (being a pairing judge of the latter court since October last year) show that

most of our decisions appealed to the Court of Appeals and the Supreme Court have been sustained or affirmed; chanroblesvirtuallawlibrary

13. As to our reputation in the community, let other members of the media and a member of the Philippine Bar speak about it. We are

enclosing herewith a Xerox copy of a news clipping of Philippine Daily Inquirer, July 8, 2000 issue (attached herewith as ANNEX '2'), about

how we tried and decided the celebrated case of People v. Castracion, et. al. when the Supreme Court assigned us to hear the evidence of

the defense and decide the case. We did our work in that case as best we could as we have done in all cases being tried and decided by us,

mindful of our duty to do our work with faithful diligence, honesty, and integrity. We do not expect praises from others as we do not also

wish to be criticized or attacked by Radio Bombo station in General Santos City especially by its manager, Mr. Dante Vicente, without basis

or competent proof and evidence. Atty. Rogelio Garcia, who vouched for our honesty, competence and integrity is a former assemblyman of

South Cotabato and General Santos City, and an ex-Assistant Minister of Labor. He has known us in the community for almost twenty five

years;chanroblesvirtuallawlibrary

14. Complainant Dante Vicente is just a newcomer to General Santos and he and his radio station have a bad and notorious reputation of

attacking the character and good name of some people here as shown by cases for libel filed in our courts.3 Ï‚rνll

In its Report dated March 11, 2002, the Office of the Court Administrator (OCA) confirmed that Criminal Cases Nos. 9456-9460 were indeed

certified by respondent to this Court.4 However, this Court in its Resolution of February 19, 2001 in G.R. NOS. 145715-18, resolved to return

the records of the consolidated cases to the RTC of General Santos City, Branch 23, and to order the said court to give due course to Evelyn

Te's notice of appeal from the Order denying her petition forhabeas corpus and from the Order requiring her to post bail in the amount of

one million pesos for her release from detention. This Court made the following pronouncements: Ï‚Î

Rule 102, '14 provides:

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.

The foregoing provision, however, applies to cases where the applicant for the writ of habeas corpus is restrained by virtue of a criminal

charge against him, not where, as here, he is serving sentence by reason of a final judgment. Indeed, Rule 102, '4 disallows issuance of the

writ where the person alleged to be restrained of his liberty is 'suffering imprisonment under lawful judgment.

The certification of a case under Rule 102, '14, moreover, refers to cases where the habeas corpus court finds that the applicant is charged

with the noncapital offense in another court. Thus, the certification of this case to this Court is clearly erroneous.5 Ï‚rνll

On the basis of the above-quoted Resolution and the provisions of Section 24, Rule 114 of the Rules of Court, the OCA, in its Report in the

present case, found respondent judge guilty of gross ignorance of the law and recommended that he be fined in the amount of P20,000.00.6 Ï‚rνll

The Court agrees with the findings of the OCA except for the recommended penalty.

Section 24, Rule 114 of the Rules of Court is plain and clear in prohibiting the grant of bail after conviction by final judgment and after the

convict has started to serve sentence. It provides: ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

SEC. 24. No bail after final judgment; exception. - An accused shall not be allowed bail after the judgment has become final, unless

he has applied for probation before commencing to serve sentence, the penalty and the offense being within the purview of

the Probation Law. In case the accused has applied for probation, he may be allowed temporary liberty under his bail, but if no bail was

filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the

community. In no case shall bail be allowed after the accused has commenced to serve sentence. (Emphasis supplied)

The only exception to the above-cited provision of the Rules of Court is when the convict has applied for probation before he commences to

serve sentence, provided the penalty and the offense are within the purview of the Probation Law.

In the case of Evelyn Te, the judgment finding her guilty of violation of B.P. Blg. 22 on four counts and imposing upon her the penalty of

imprisonment for two months on each count has already become final and executory. She did not apply for probation. At the time

respondent judge granted her bail she was already serving her sentence.

From the foregoing, it is evident that Te is not entitled to bail. Respondent judge contends that under Section 14, Rule 102 of the Rules of

Court, he has the discretion to allow Te to be released on bail. However, the Court reiterates its pronouncement in its Resolution of February

19, 2001 in G.R. NOS. 145715-18 that Section 14, Rule 102 of the Rules of Court applies only to cases where the applicant for the writ

of habeas corpus is restrained by virtue of a criminal charge against him and not in an instance, as in the case involved in the present

controversy, where the applicant is serving sentence by reason of a final judgment.

The Court agrees with the observation of the OCA that respondent judge's ignorance or disregard of the provisions of Section 24, Rule 114

and Section 14, Rule 102 of the Rules of Court is tantamount to gross ignorance of the law and procedure. A judge is called upon to exhibit

more than just a cursory acquaintance with statutes and procedural rules.7 It is imperative that he be conversant with basic legal principles

and be aware of well-settled authoritative doctrines.8 He should strive for excellence exceeded only by his passion for truth, to the end that

he be the personification of justice and the Rule of Law.9 When the law is sufficiently basic, a judge owes it to his office to simply apply it;

anything less than that would be gross ignorance of the law.10 Ï‚rνll

In the present case, considering that the granting of bail is common in the litigation of criminal cases before trial courts, we are not

impressed with the explanation of respondent judge in granting bail to Te. Respondent judge contends that he was caught in a dilemma

whether or not to grant bail in favor of Te. However, he thought that it would be better for him to release Te on bail rather than deny her

application; for if such denial is later found out by the appellate courts to be erroneous, Te could charge him with gross ignorance of the law

and abuse of discretion, or hold him liable for rendering an unjust order or for damages. Hence, to obviate such possible move on Te's part,

he simply allowed her to be released on bail and relieved himself of any burden brought about by the case of Te by certifying the same to

this Court contending that, '[a]nyway, the Supreme Court has the last say on (the) matter.

The Court finds respondent's reasoning shallow and unjustified. He cannot simply shirk responsibility by conveniently passing the buck, so to

speak, to this Court on the pretext that we have the final say on the matter. This is hardly the kind of trait expected of a judge. Rule 3.02,

Canon 3 of the Code of Judicial Conduct provides that in every case, a judge shall endeavor diligently to ascertain the facts and the

applicable law unswayed by partisan interests, public opinion or fear of criticism. In Dimatulac v. Villon ,11 we held that:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

The judge, on the other hand, 'should always be imbued with a high sense of duty and responsibility in the discharge of his obligation to

promptly and properly administer justice. He must view himself as a priest for the administration of justice is akin to a religious crusade.

Thus, exerting the same devotion as a priest 'in the performance of the most sacred ceremonies of religious liturgy, the judge must render

service with impartiality commensurate with public trust and confidence reposed in him.12 Ï‚rνll

In the present case, respondent judge fell short of the above-cited ideals expected of a magistrate.

Complainant's allegation that no petition for habeas corpuswas filed does not hold water. As borne by the records, the Certification issued by

one Atty. Elmer D. Lastimosa, Clerk of Court of the Regional Trial Court of General Santos City, shows that Evelyn Te's petition for habeas

corpuswas incorporated in the pleadings she filed in Criminal Cases Nos. 9456-9460, although no docket fees and other charges were

paid.13 There is no showing that respondent should be held administratively liable for the non-payment of docket and other lawful fees. At

any rate, the matter may be considered in the appeal taken by Te, as earlier adverted to in G.R. NOS. 145715-18.

Complainant further claims that on several occasions, respondent judge allowed Te to be released and confined at a local hospital on

account of false illnesses. However, the Court does not find sufficient evidence to prove this charge. On the contrary, records on hand show

that the confinement of Te in the hospital is recommended by a panel of government doctors and that such confinement is made without the

objection of the public prosecutor.14 Hence, the Court finds respondent judge's act of allowing the temporary confinement of Te in the

hospital as justified. The Court agrees with the observation of the OCA that in the absence of contradictory evidence, the presumption of

regularity in the performance of official duty should be upheld in favor of respondent judge.15 Ï‚rνll

The Court likewise finds no sufficient evidence to find respondent judge guilty of the charge that he uses his clout and power to stifle

criticism and dissent. In the present case, the Court finds nothing irregular or arbitrary in his act of requiring a number of journalists to show

cause why they should not be cited for indirect contempt. Freedom of speech and of expression, as guaranteed by the Constitution, is not

absolute.16 Freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public

interests such as the maintenance of the integrity of courts and orderly functioning of the administration of justice.17 In the instant case, the

Court finds nothing whimsical or despotic in respondent judge's act of issuing the subject show-cause order. Instead, respondent is merely

exercising his right to protect his honor and, more importantly, the integrity of the court which he represents.

As to the issue that respondent judge allowed the release of an accused in Criminal Case No. 14072, entitled People v. Jhoyce Gersonin-

Palma, without the required bail bond being posted, it is not within the jurisdiction of this Court to resolve the same on the basis of the OCA

Report as it is already the subject of a separate administrative case against respondent.18 Ï‚rνll

Having found respondent guilty of gross ignorance of the law, as discussed earlier, the Court now determines the proper imposable penalty.

Section 8(9), Rule 140 of the Rules of Court, as amended, classifies gross ignorance of the law or procedure as a serious charge. Under

Section 11(A) of the same Rule, the imposable penalties, in case the respondent is found culpable of a serious charge, range from a fine of

not less than P20,000.00 but not more than P40,000.00 to dismissal from the service with forfeiture of all or part of the benefits as the Court

may determine, except accrued leaves, and disqualification from reinstatement or appointment to any public office including government-

owned or controlled corporations.

However, on February 24, 2002, respondent retired upon reaching the compulsory retirement age of 70.19 Considering that respondent can

no longer be dismissed or suspended, the Court is left with no recourse but to impose the penalty of fine.

Further, it is noted that on July 8, 2002, the Third Division of this Court, in Administrative Matter No.10874-Ret., concerning the compulsory

retirement of respondent, resolved to release his retirement benefits but set aside P100,000.00 thereof in view of several administrative

cases still pending against him.20 Ï‚rνll

In the administrative complaints filed against respondent, two cases have, so far, resulted in his being fined. In Chan v.

Majaducon ,21 respondent was found guilty of violating among others, Rules 1.01 and 2.01 and Canon 2 of the Code of Judicial conduct and

was meted the penalty of fine in the amount of P10,000.00. In the more recent case ofAlconera v. Majaducon,22 respondent was found guilty

of gross ignorance of procedure and was fined P40,000.00. In view of the foregoing, it is proper to impose the maximum fine of P40,000.00

to be deducted from the P100,000.00 set aside from respondent's retirement benefits in A.M. No. 10874-Ret.

WHEREFORE, respondent judge is found GUILTY of gross ignorance of the law or procedure. He is ordered to pay a FINE of P40,000.00 to be

deducted from the P100,000.00 set aside from his retirement benefits in A.M. No. 10874-Ret.

[G.R. NO. 160792 : August 25, 2005]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF CAPT. GARY ALEJANO v. GEN. PEDRO CABUAY, GEN. NARCISO

ABAYA, SEC. ANGELO REYES, and SEC. ROILO GOLEZ

The Case

This Petition for Review 1 seeks to nullify the Decision2 of the Court of Appeals dated 17 September 2003 and Resolution dated 13 November

2003 in CA-G.R. SP No. 78545. The Court of Appeals' Decision and Resolution dismissed the petition for habeas corpus filed by lawyers

Homobono Adaza and Roberto Rafael Pulido ("Petitioners") on behalf of their detained clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor

Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV

(PN) ("detainees").

Petitioners named as respondent Gen. Pedro Cabuay ("Gen. Cabuay"), Chief of the Intelligence Service of the Armed Forces of the Philippines

("ISAFP"), who has custody of the detainees. Petitioners impleaded Gen. Narciso Abaya ("Gen. Abaya"), Sec. Angelo Reyes and Roilo Golez,

who are respectively the Chief of Staff of the Armed Forces of the Philippines ("AFP"), Secretary of National Defense and National Security

Adviser, because they have command responsibility over Gen. Cabuay.

Antecedent Facts

Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior officers, entered and took control of the Oakwood

Premier Luxury Apartments ("Oakwood"), an upscale apartment complex, located in the business district of Makati City. The soldiers

disarmed the security officers of Oakwood and planted explosive devices in its immediate surroundings. The junior officers publicly

renounced their support for the administration and called for the resignation of President Gloria Macapagal-Arroyo and several cabinet

members.

Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities after several negotiations with government

emissaries. The soldiers later defused the explosive devices they had earlier planted. The soldiers then returned to their barracks.

On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the Major Service Commanders to turn over custody of

ten junior officers to the ISAFP Detention Center. The transfer took place while military and civilian authorities were investigating the

soldiers' involvement in the Oakwood incident.

On 1 August 2003, government prosecutors filed an Information for coup-d-etat with the Regional Trial Court of Makati City, Branch 61,

against the soldiers involved in the 27 July 2003 Oakwood incident. The government prosecutors accused the soldiers of coup d etat as

defined and penalized under Article 134-A of the Revised Penal Code of the Philippines, as amended. The case was docketed as Criminal

Case No. 03-2784. The trial court later issued the Commitment Orders giving custody of junior officers Lt. SG Antonio Trillanes IV ("Trillanes")

and Capt. Gerardo Gambala to the Commanding Officers of ISAFP.

On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take into custody the military personnel under their

command who took part in the Oakwood incident except the detained junior officers who were to remain under the custody of ISAFP.

On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme Court.

On 12 August 2003, the Court issued a Resolution, which resolved to:

(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make a RETURN of the writ on Monday, 18 August 2003, at 10:00

a.m. before the Court of Appeals; (c) refer the case to the Court of Appeals for RAFFLE among the Justices thereof for hearing, further

proceedings and decision thereon, after which a REPORT shall be made to this Court within ten (10) days from promulgation of the

decision.3

Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing respondents to make a return of the writ and to appear and

produce the persons of the detainees before the Court of Appeals on the scheduled date for hearing and further proceedings.

On the same date, the detainees and their other co-accused filed with the Regional Trial Court of Makati City a Motion for Preliminary

Investigation, which the trial court granted.

On 18 August 2003, pursuant to the directives of the Court, respondents submitted their Return of the Writ and Answer to the petition and

produced the detainees before the Court of Appeals during the scheduled hearing. After the parties filed their memoranda on 28 August

2003, the appellate court considered the petition submitted for decision.

On 17 September 2003, the Court of Appeals rendered its decision dismissing the petition. Nonetheless, the appellate court ordered Gen.

Cabuay, who was in charge of implementing the regulations in the ISAFP Detention Center, to uphold faithfully the rights of the detainees in

accordance with Standing Operations Procedure No. 0263-04. The appellate court directed Gen. Cabuay to adhere to his commitment made

in court regarding visiting hours and the detainees' right to exercise for two hours a day.

The Ruling of the Court of Appeals

The Court of Appeals found the petition bereft of merit. The appellate court pointed out that the detainees are already charged of coup d

etat before the Regional Trial Court of Makati. Habeas corpus is unavailing in this case as the detainees' confinement is under a valid

indictment, the legality of which the detainees and petitioners do not even question.

The Court of Appeals recognized that habeas corpusmay also be the appropriate remedy to assail the legality of detention if there is a

deprivation of a constitutional right. However, the appellate court held that the constitutional rights alleged to have been violated in this

case do not directly affect the detainees' liberty. The appellate court ruled that the regulation of the detainees' right to confer with their

counsels is reasonable under the circumstances.

The appellate court declared that while the opening and reading of Trillanes' letter is an abhorrent violation of his right to privacy of

communication, this does not justify the issuance of a writ of habeas corpus. The violation does not amount to illegal restraint, which is the

proper subject of habeas corpus proceedings.

The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the promise he made in open court to uphold the visiting

hours and the right of the detainees to exercise for two hours a day. The dispositive portion of the appellate court's decision reads:

WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED. Respondent Cabuay is hereby ORDERED to faithfully

adhere to his commitment to uphold the constitutional rights of the detainees in accordance with the Standing Operations Procedure No.

0263-04 regarding visiting hours and the right of the detainees to exercise for two (2) hours a day. SO ORDERED.4

The Issues

Petitioners raise the following issues for resolution:

A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A DECISION OF THE SUPREME COURT;B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and cralawlibrary

C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE CONDITIONS OF THE DETAINED JUNIOR OFFICERS' DETENTION.5

The Ruling of the Court

The petition lacks merit.

Petitioners claim that the Court's 12 August 2003 Order granted the petition and the Court remanded the case to the Court of Appeals only

for a factual hearing. Petitioners thus argue that the Court's Order had already foreclosed any question on the propriety and merits of their

petition.

Petitioners' claim is baseless. A plain reading of the 12 August 2003 Order shows that the Court referred to the Court of Appeals the duty to

inquire into the cause of the junior officers' detention. Had the Court ruled for the detainees' release, the Court would not have referred the

hearing of the petition to the Court of Appeals. The Court would have forthwith released the detainees had the Court upheld petitioners'

cause.

In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the hearing of the petition.6 The

respondent must produce the person and explain the cause of his detention.7 However, this order is not a ruling on the propriety of the

remedy or on the substantive matters covered by the remedy. Thus, the Court's order to the Court of Appeals to conduct a factual hearing

was not an affirmation of the propriety of the remedy of habeas corpus.

For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes the determination of the propriety of the remedy. If

a court finds the alleged cause of the detention unlawful, then it should issue the writ and release the detainees. In the present case, after

hearing the case, the Court of Appeals found that habeas corpus is inapplicable. After actively participating in the hearing before the Court

of Appeals, petitioners are estopped from claiming that the appellate court had no jurisdiction to inquire into the merits of their petition.

The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper remedy to address the detainees' complaint against

the regulations and conditions in the ISAFP Detention Center. The remedy of habeas corpus has one objective: to inquire into the cause of

detention of a person.8 The purpose of the writ is to determine whether a person is being illegally deprived of his liberty.9 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. It is not a writ of error.10 Neither can it substitute for an

appeal.11

Nonetheless, case law has expanded the writ's application to circumstances where there is deprivation of a person's constitutional rights.

The writ is available where a person continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of

due process, where the restraints are not merely involuntary but are also unnecessary, and where a deprivation of freedom originally valid

has later become arbitrary.12

However, a mere allegation of a violation of one's constitutional right is not sufficient. The courts will extend the scope of the writ only if any

of the following circumstances is present: (a) there is a deprivation of a constitutional right resulting in the unlawful restraint of a person; (b)

the court had no jurisdiction to impose the sentence; or (c) an excessive penalty is imposed and such sentence is void as to the

excess.13 Whatever situation the petitioner invokes, the threshold remains high. The violation of constitutional right must be sufficient to void

the entire proceedings.14

Petitioners admit that they do not question the legality of the detention of the detainees. Neither do they dispute the lawful indictment of the

detainees for criminal and military offenses. What petitioners bewail is the regulation adopted by Gen. Cabuay in the ISAFP Detention Center

preventing petitioners as lawyers from seeing the detainees - their clients - any time of the day or night. The regulation allegedly curtails the

detainees' right to counsel and violates Republic Act No. 7438 ("RA 7438").15 Petitioners claim that the regulated visits made it difficult for

them to prepare for the important hearings before the Senate and the Feliciano Commission.

Petitioners also point out that the officials of the ISAFP Detention Center violated the detainees' right to privacy of communication when the

ISAFP officials opened and read the personal letters of Trillanes and Capt. Milo Maestrecampo ("Maestrecampo"). Petitioners further claim

that the ISAFP officials violated the detainees' right against cruel and unusual punishment when the ISAFP officials prevented the detainees

from having contact with their visitors. Moreover, the ISAFP officials boarded up with iron bars and plywood slabs the iron grills of the

detention cells, limiting the already poor light and ventilation in the detainees' cells.

Pre-trial detainees do not forfeit their constitutional rights upon confinement.16 However, the fact that the detainees are confined makes their

rights more limited than those of the public.17 RA 7438, which specifies the rights of detainees and the duties of detention officers, expressly

recognizes the power of the detention officer to adopt and implement reasonable measures to secure the safety of the detainee and prevent

his escape. Section 4(b) of RA 7438 provides:

Section 4. Penalty Clause. - a) x x x

b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under

custodial investigation, or any medical doctor or priest or religious minister or by his counsel, from visiting and conferring privately chosen

by him or by any member of his immediate family with him, or from examining and treating him, or from ministering to his spiritual

needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years

nor more than six (6) years, and a fine of four thousand pesos (P4,000.00).

The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner

may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape. (Emphasis

supplied)ςrαlαωlιbrαrÿ

True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a detainee client "at any hour of the day or, in urgent

cases, of the night." However, the last paragraph of the same Section 4(b) makes the express qualification that "notwithstanding" the

provisions of Section 4(b), the detention officer has the power to undertake such reasonable measures as may be necessary to secure the

safety of the detainee and prevent his escape.

The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The regulations governing a detainee's confinement must be

"reasonable measures x x x to secure his safety and prevent his escape." Thus, the regulations must be reasonably connected to the

government's objective of securing the safety and preventing the escape of the detainee. The law grants the detention officer the authority

to "undertake such reasonable measures" or regulations.

Petitioners contend that there was an actual prohibition of the detainees' right to effective representation when petitioners' visits were

limited by the schedule of visiting hours. Petitioners assert that the violation of the detainees' rights entitle them to be released from

detention.

Petitioners' contention does not persuade us. The schedule of visiting hours does not render void the detainees' indictment for criminal and

military offenses to warrant the detainees' release from detention. The ISAFP officials did not deny, but merely regulated, the detainees'

right to counsel. The purpose of the regulation is not to render ineffective the right to counsel, but to secure the safety and security of all

detainees. American cases are instructive on the standards to determine whether regulations on pre-trial confinement are permissible.

In Bell v. Wolfish,18 the United States (U.S.) Supreme Court held that regulations must be reasonably related to maintaining security and

must not be excessive in achieving that purpose. Courts will strike down a restriction that is arbitrary and purposeless.19 However, Bell v.

Wolfish expressly discouraged courts from skeptically questioning challenged restrictions in detention and prison facilities.20 The U.S.

Supreme Court commanded the courts to afford administrators "wide-ranging deference" in implementing policies to maintain institutional

security.21

In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to make regulations in detention centers allowable:

"such reasonable measures as may be necessary to secure the detainee's safety and prevent his escape." In the present case,

the visiting hours accorded to the lawyers of the detainees are reasonably connected to the legitimate purpose of securing the safety and

preventing the escape of all detainees.

While petitioners may not visit the detainees any time they want, the fact that the detainees still have face-to-face meetings with their

lawyers on a daily basis clearly shows that there is no impairment of detainees' right to counsel. Petitioners as counsels could visit their

clients between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business hours, the same hours

when lawyers normally entertain clients in their law offices. Clearly, the visiting hours pass the standard of reasonableness. Moreover, in

urgent cases, petitioners could always seek permission from the ISAFP officials to confer with their clients beyond the visiting hours.

The scheduled visiting hours provide reasonable access to the detainees, giving petitioners sufficient time to confer with the detainees. The

detainees' right to counsel is not undermined by the scheduled visits. Even in the hearings before the Senate and the Feliciano

Commission,22 petitioners were given time to confer with the detainees, a fact that petitioners themselves admit.23 Thus, at no point were the

detainees denied their right to counsel.

Petitioners further argue that the bars separating the detainees from their visitors and the boarding of the iron grills in their cells with

plywood amount to unusual and excessive punishment. This argument fails to impress us. Bell v. Wolfish pointed out that while a detainee

may not be punished prior to an adjudication of guilt in accordance with due process of law, detention inevitably interferes with a detainee's

desire to live comfortably.24 The fact that the restrictions inherent in detention intrude into the detainees' desire to live comfortably does not

convert those restrictions into punishment.25 It is when the restrictions are arbitrary and purposeless that courts will infer intent to

punish.26 Courts will also infer intent to punish even if the restriction seems to be related rationally to the alternative purpose if the

restriction appears excessive in relation to that purpose.27 Jail officials are thus not required to use the least restrictive security

measure.28 They must only refrain from implementing a restriction that appears excessive to the purpose it serves.29

We quote Bell v. Wolfish:

One further point requires discussion. The petitioners assert, and respondents concede, that the "essential objective of pretrial confinement

is to insure the detainees' presence at trial." While this interest undoubtedly justifies the original decision to confine an individual in some

manner, we do not accept respondents' argument that the Government's interest in ensuring a detainee's presence at trial is

the only objective that may justify restraints and conditions once the decision is lawfully made to confine a person. "If the government could

confine or otherwise infringe the liberty of detainees only to the extent necessary to ensure their presence at trial, house arrest would in the

end be the only constitutionally justified form of detention." The Government also has legitimate interests that stem from its need to

manage the facility in which the individual is detained. These legitimate operational concerns may require administrative measures that go

beyond those that are, strictly speaking, necessary to ensure that the detainee shows up at trial. For example, the Government must be able

to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees. Restraints that

are reasonably related to the institution's interest in maintaining jail security do not, without more, constitute unconstitutional punishment,

even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial.

We need not here attempt to detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of

pretrial detention. It is enough simply to recognize that in addition to ensuring the detainees' presence at trial, the effective management of

the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial

detention and dispel any inference that such restrictions are intended as punishment.30

An action constitutes a punishment when (1) that action causes the inmate to suffer some harm or "disability," and (2) the purpose of the

action is to punish the inmate.31Punishment also requires that the harm or disability be significantly greater than, or be independent of, the

inherent discomforts of confinement.32

Block v. Rutherford,33 which reiterated Bell v. Wolfish, upheld the blanket restriction on contact visits as this practice was reasonably

related to maintaining security. The safety of innocent individuals will be jeopardized if they are exposed to detainees who while not yet

convicted are awaiting trial for serious, violent offenses and may have prior criminal conviction.34 Contact visits make it possible for the

detainees to hold visitors and jail staff hostage to effect escapes.35 Contact visits also leave the jail vulnerable to visitors smuggling in

weapons, drugs, and other contraband.36 The restriction on contact visits was imposed even on low-risk detainees as they could also

potentially be enlisted to help obtain contraband and weapons.37 The security consideration in the imposition of blanket restriction on contact

visits was ruled to outweigh the sentiments of the detainees.38

Block v. Rutherford held that the prohibition of contact visits bore a rational connection to the legitimate goal of internal security.39 This

case reaffirmed the "hands-off" doctrine enunciated in Bell v. Wolfish, a form of judicial self-restraint, based on the premise that courts

should decline jurisdiction over prison matters in deference to administrative expertise.40

In the present case, we cannot infer punishment from the separation of the detainees from their visitors by iron bars, which is merely a

limitation on contact visits. The iron bars separating the detainees from their visitors prevent direct physical contact but still allow the

detainees to have visual, verbal, non-verbal and limited physical contact with their visitors. The arrangement is not unduly restrictive. In

fact, it is not even a strict non-contact visitation regulation like in Block v. Rutherford. The limitation on the detainees' physical contacts

with visitors is a reasonable, non-punitive response to valid security concerns.

The boarding of the iron grills is for the furtherance of security within the ISAFP Detention Center. This measure intends to fortify the

individual cells and to prevent the detainees from passing on contraband and weapons from one cell to another. The boarded grills ensure

security and prevent disorder and crime within the facility. The diminished illumination and ventilation are but discomforts inherent in the

fact of detention, and do not constitute punishments on the detainees.

We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP Detention Center are not inhuman, degrading and

cruel. Each detainee, except for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is confined in separate cells, unlike ordinary cramped

detention cells. The detainees are treated well and given regular meals. The Court of Appeals noted that the cells are relatively clean and

livable compared to the conditions now prevailing in the city and provincial jails, which are congested with detainees. The Court of Appeals

found the assailed measures to be reasonable considering that the ISAFP Detention Center is a high-risk detention facility. Apart from the

soldiers, a suspected New People's Army ("NPA") member and two suspected Abu Sayyaf members are detained in the ISAFP Detention

Center.

We now pass upon petitioners' argument that the officials of the ISAFP Detention Center violated the detainees' right to privacy when the

ISAFP officials opened and read the letters handed by detainees Trillanes and Maestrecampo to one of the petitioners for mailing. Petitioners

point out that the letters were not in a sealed envelope but simply folded because there were no envelopes in the ISAFP Detention Center.

Petitioners contend that the Constitution prohibits the infringement of a citizen's privacy rights unless authorized by law. The Solicitor

General does not deny that the ISAFP officials opened the letters.

Courts in the U.S. have generally permitted prison officials to open and read all incoming and outgoing mail of convicted prisoners to prevent

the smuggling of contraband into the prison facility and to avert coordinated escapes.41 Even in the absence of statutes specifically allowing

prison authorities from opening and inspecting mail, such practice was upheld based on the principle of "civil deaths."42 Inmates were

deemed to have no right to correspond confidentially with anyone. The only restriction placed upon prison authorities was that the right of

inspection should not be used to delay unreasonably the communications between the inmate and his lawyer.43

Eventually, the inmates' outgoing mail to licensed attorneys, courts, and court officials received respect.44 The confidential correspondences

could not be censored.45 The infringement of such privileged communication was held to be a violation of the inmates' First Amendment

rights.46 A prisoner has a right to consult with his attorney in absolute privacy, which right is not abrogated by the legitimate interests of

prison authorities in the administration of the institution.47 Moreover, the risk is small that attorneys will conspire in plots that threaten prison

security.48

American jurisprudence initially made a distinction between the privacy rights enjoyed by convicted inmates and pre-trial detainees. The

case of Palmigiano v. Travisono49recognized that pre-trial detainees, unlike convicted prisoners, enjoy a limited right of privacy in

communication. Censorship of pre-trial detainees' mail addressed to public officials, courts and counsel was held impermissible. While

incoming mail may be inspected for contraband and read in certain instances, outgoing mail of pre-trial detainees could not be inspected or

read at all.

In the subsequent case of Wolff v. McDonnell,50 involving convicted prisoners, the U.S. Supreme Court held that prison officials could open

in the presence of the inmates incoming mail from attorneys to inmates. However, prison officials could not read such mail from attorneys.

Explained the U.S. Supreme Court:

The issue of the extent to which prison authorities can open and inspect incoming mail from attorneys to inmates, has been considerably

narrowed in the course of this litigation. The prison regulation under challenge provided that '(a)ll incoming and outgoing mail will be read

and inspected,' and no exception was made for attorney-prisoner mail. x x x

Petitioners now concede that they cannot open and read mail from attorneys to inmates, but contend that they may open all letters from

attorneys as long as it is done in the presence of the prisoners. The narrow issue thus presented is whether letters determined or found to be

from attorneys may be opened by prison authorities in the presence of the inmate or whether such mail must be delivered unopened if

normal detection techniques fail to indicate contraband.

x x x If prison officials had to check in each case whether a communication was from an attorney before opening it for inspection, a near

impossible task of administration would be imposed. We think it entirely appropriate that the State require any such communications to be

specially marked as originating from an attorney, with his name and address being given, if they are to receive special treatment. It would

also certainly be permissible that prison authorities require that a lawyer desiring to correspond with a prisoner, first identify himself and his

client to the prison officials, to assure that the letters marked privileged are actually from members of the bar. As to the ability to open the

mail in the presence of inmates, this could in no way constitute censorship, since the mail would not be read. Neither could it chill such

communications, since the inmate's presence insures that prison officials will not read the mail. The possibility that contraband will be

enclosed in letters, even those from apparent attorneys, surely warrants prison officials' opening the letters. We disagree with the Court of

Appeals that this should only be done in 'appropriate circumstances. 'Since a flexible test, besides being unworkable, serves no arguable

purpose in protecting any of the possible constitutional rights enumerated by respondent, we think that petitioners, by acceding to a rule

whereby the inmate is present when mail from attorneys is inspected, have done all, and perhaps even more, than the Constitution

requires.51

In Hudson v. Palmer,52 the U.S. Supreme Court ruled that an inmate has no reasonable expectation of privacy inside his cell. The U.S.

Supreme Court explained that prisoners necessarily lose many protections of the Constitution, thus:

However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the

circumscription or loss of many significant rights. These constraints on inmates, and in some cases the complete withdrawal of certain rights,

are "justified by the considerations underlying our penal system." The curtailment of certain rights is necessary, as a practical matter, to

accommodate a myriad of "institutional needs and objectives" of prison facilities, chief among which is internal security. Of course, these

restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in

addition to correction.53

The later case of State v. Dunn,54 citing Hudson v. Palmer, abandoned Palmigiano v. Travisono and made no distinction as to the

detainees' limited right to privacy. State v. Dunn noted the considerable jurisprudence in the United States holding that inmate mail may

be censored for the furtherance of a substantial government interest such as security or discipline. State v. Dunn declared that if complete

censorship is permissible, then the lesser act of opening the mail and reading it is also permissible. We quoteState v. Dunn:

[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of

inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the

prisoner's expectation of privacy always yield to what must be considered a paramount interest in institutional security. We believe that it is

accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement."

The distinction between the limited privacy rights of a pre-trial detainee and a convicted inmate has been blurred as courts in the U.S. ruled

that pre-trial detainees might occasionally pose an even greater security risk than convicted inmates. Bell v. Wolfish reasoned that those

who are detained prior to trial may in many cases be individuals who are charged with serious crimes or who have prior records and may

therefore pose a greater risk of escape than convicted inmates.55 Valencia v. Wiggins56 further held that "it is impractical to draw a line

between convicted prisoners and pre-trial detainees for the purpose of maintaining jail security."

American cases recognize that the unmonitored use of pre-trial detainees' non-privileged mail poses a genuine threat to jail

security.57 Hence, when a detainee places his letter in an envelope for non-privileged mail, the detainee knowingly exposes his letter to

possible inspection by jail officials.58 A pre-trial detainee has no reasonable expectation of privacy for his incoming mail.59 However, incoming

mail from lawyers of inmates enjoys limited protection such that prison officials can open and inspect the mail for contraband but could not

read the contents without violating the inmates' right to correspond with his lawyer.60 The inspection of privileged mail is limited to physical

contraband and not to verbal contraband.61

Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees' letters in the present case violated the

detainees' right to privacy of communication. The letters were not in a sealed envelope. The inspection of the folded letters is a valid

measure as it serves the same purpose as the opening of sealed letters for the inspection of contraband.

The letters alleged to have been read by the ISAFP authorities were not confidential letters between the detainees and their lawyers. The

petitioner who received the letters from detainees Trillanes and Maestrecampo was merely acting as the detainees' personal courier and not

as their counsel when he received the letters for mailing. In the present case, since the letters were not confidential communication

between the detainees and their lawyers, the officials of the ISAFP Detention Center could read the letters. If the letters are

marked confidential communication between the detainees and their lawyers, the detention officials should not read the letters but only

open the envelopes for inspection in the presence of the detainees.

That a law is required before an executive officer could intrude on a citizen's privacy rights62 is a guarantee that is available only to the public

at large but not to persons who are detained or imprisoned. The right to privacy of those detained is subject to Section 4 of RA 7438, as well

as to the limitations inherent in lawful detention or imprisonment. By the very fact of their detention, pre-trial detainees and convicted

prisoners have a diminished expectation of privacy rights.

In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on the constitutional rights of the detainees

and convicted prisoners, U.S. courts "balance the guarantees of the Constitution with the legitimate concerns of prison administrators."63 The

deferential review of such regulations stems from the principle that:

[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to

anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.64

The detainees in the present case are junior officers accused of leading 300 soldiers in committing coup d etat, a crime punishable

with reclusion perpetua.65 The junior officers are not ordinary detainees but visible leaders of the Oakwood incident involving an armed

takeover of a civilian building in the heart of the financial district of the country. As members of the military armed forces, the detainees are

subject to the Articles of War.66

Moreover, the junior officers are detained with other high-risk persons from the Abu Sayyaf and the NPA. Thus, we must give the military

custodian a wider range of deference in implementing the regulations in the ISAFP Detention Center. The military custodian is in a better

position to know the security risks involved in detaining the junior officers, together with the suspected Abu Sayyaf and NPA members. Since

the appropriate regulations depend largely on the security risks involved, we should defer to the regulations adopted by the military

custodian in the absence of patent arbitrariness.

The ruling in this case, however, does not foreclose the right of detainees and convicted prisoners from petitioning the courts for the redress

of grievances. Regulations and conditions in detention and prison facilities that violate the Constitutional rights of the detainees and

prisoners will be reviewed by the courts on a case-by-case basis. The courts could afford injunctive relief or damages to the detainees and

prisoners subjected to arbitrary and inhumane conditions. However, habeas corpus is not the proper mode to question conditions of

confinement.67 The writ of habeas corpuswill only lie if what is challenged is the fact or duration of confinement.68

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals in CA-G.R. SP No. 78545.

[G.R. NO. 140305 December 9, 2005]

PLATON AND LIBRADA CERUILA, Petitioners, v. ROSILYN DELANTAR, represented by her guardian, DEPARTMENT OF SOCIAL

WELFARE and DEVELOPMENT, Respondent.

Petitioners-spouses Platon Ceruila and Librada D. Ceruila (Ceruilas) filed an action with the Regional Trial Court (RTC) of Manila, docketed as

Spec. Proc. No. 97-818932, for the annulment and cancellation of the birth certificate of Maria Rosilyn Telin Delantar (Rosilyn), the child-

victim in the rape case involving Romeo Jaloslos.1 The RTC granted the Ceruilas' petition in its decision dated April 11, 19972 which was

nullified, however, by the Court of Appeals (CA) on June 10, 1999.3 The CA denied petitioners' motion for reconsideration.4 Hence the present

petition.

The antecedents are as follows:

Sometime in 1996, Rosilyn complained against her father, Simplicio Delantar (Simplicio) for child abuse, particularly prostitution. Simplicio

was incarcerated at the Pasay City Jail starting August 22, 1996 which prompted the filing of a petition for involuntary commitment of

Rosilyn in favor of the Department of Social Welfare and Development (DSWD), as the whereabouts of the mother, Librada Ceruila, was

unknown. The petition was granted by the RTC of Pasay City, Branch 119 on November 9, 1996 and Simplicio's motion to vacate said

judgment was denied by said court on January 20, 1997.5

On February 3, 1997, the Ceruilas filed a petition before the RTC of Manila, entitled "IN THE MATTER OF CANCELLATION AND ANNULMENT OF

THE BIRTH CERTIFICATE OF MARIA ROSILYN TELIN DELANTAR," praying that the birth certificate of Rosilyn be canceled and declared null and

void for the reasons that said birth certificate was made an instrument of the crime of simulation of birth and therefore invalid and spurious,

and it falsified all material entries therein, as follows:

A. The name of her mother which should not be petitioner Librada A. Telin;

b. The signature of informant referring to 'Librada T. Delantar' being a forgery;

c. The name of Simplicio Delantar as the biological father, considering that, as already mentioned, he is merely the foster father and co-

guardian in fact of Maria Rosilyn and the name of the natural father in (sic) unknown;

d. The date of marriage of the supposed parents, since the parents reflected in said certificate were (sic) actually full blood brother and

sister and therefore marriage between the two is virtually impossible;

e. The status of Maria Rosilyn as a legitimate child as the same (sic) is actually not legitimate;

f. The date of actual birth of Marial (sic) Rosilyn, since the known father merely made it appear that she was born at the time the

informations for the birth certificate were supplied by him to the civil registrar or (sic) proper recording;

g. The name of the physician who allegedly attended at the time of birth of Maria Rosilyn, being a fictitious 'Dr. Santos'.6

On February 7, 1997, the RTC issued an Order setting the case for hearing on March 19, 1997 and directed the publication of said order once

a week for three consecutive weeks in a newspaper of general circulation. The Order also stated that any person who is interested in the

petition may interpose his/her comment or opposition thereto on or before the scheduled hearing.7

Summons was sent to the Civil Register of Manila.8 However, no representative appeared during the scheduled hearing.9

On April 11, 1997, the RTC rendered its decision granting the petition of the Ceruilas as follows:

WHEREFORE, judgment is hereby rendered:

1. DECLARING the certificate of live birth of the Minor Maria Rosilyn Telin Delantar as registered under the Local Civil Registry No. 85-27325

of the office of the City Civil Registrar of Manila as null and void ab initio: and

2. ORDERING the City Civil Registrar of Manila and the National Statistics Office, Manila, to expunge from their respective marriage registers

the entry of the birth of said minor and such other documents pertaining thereto, if any.

Let a copy of this Decision be served on the Office of the City Civil Registrar of Manila and the National Statistics Office for record purposes.

SO ORDERED.10

The RTC explained in its Decision thus:

During the initial trial, the petition was read aloud in open court to find out if there is any opposition thereto. There being none, the

petitioner's counsel, Atty. Goering G.C. Paderanga, then established the jurisdictional requirements (Exhibits "A" to "E").11 Thereafter,

petitioner husband Platon Ceruila was placed on the stand as the lone witness for the petitioner and after he completed his testimony, Atty.

Paderanga formally offered his evidence and rested his case.

The evidence on record reveals the following:

On May 11, 1985, a child was born at the Dr. Jose Fabella Memorial Hospital in Sta. Cruz, Manila. The name of the child was entered in her

birth certificate as Maria Rosilyn Telin Delantar (Exhibit "I"). In the said birth certificate the name of the child's mother appear as Librada A.

Telin (Entry No. 6) while that of her father as Simplicio R. Delantar (Entry No. 9). The birth certificate likewise shows that the parents of the

child, Simplicio R. Delantar and Librada A. Telin, were married on February 14, 1977 in Manila (Entry No. 12). Likewise, in Entry No. 21 of the

same document, it is made to appear that the mother of the child was 27 years old when the child was born and that she was attended in

her delivery thereof by Dr. Santos (Entry No. 13). The birth certificate was signed by one Librada T. delos Santos as the informant and

mother of the child with her given address as 2165 P. Burgos St., Pasay City (Entry No. 14). This is the very certificate of live birth that is

being seriously impugned by the herein petitioners.

In support of their petition, the petitioners submitted the baptismal certificates of Simplicio Delantar (Exhibit "J") and Librada Delantar

(Exhibit "K") to prove that they are full blood brother and sister and could not have been possible for them to have sired Rosilyn (sic). In the

said baptismal certificates, the names of the parents of Simplicio and Librada are similarly entered as Juan Delantar and Carila Telen (Exhibit

"J-1" and "K-1"). The Court is inclined to concur with the observation of the petitioner that it is highly unlikely that the alleged parents of

Rosilyn would commit an incestuous act and proclaim to the whole world that they are the parents of the herein minor. The court has also

observed that in the baptismal certificate of Librada Delantar, it is entered therein that she was born on January 8, 1940 in Tubod,

Manglanilla, Cebu (Exhibit "K-2"). Such being the case, then Librada must have been 45 years of age at the time of the birth of Rosilyn in

stark contrast to her age appearing in Entry No. 27 (sic) of the birth certificate of the latter which shows that Librada was 27 years old at the

time of her delivery. The presentation of the baptismal certificate of Librada Delantar as secondary evidence of her birth certificate was

resorted to after the Office of the Local Civil Registrar of Minglanilla, Cebu gave a certification to the effect that the records of birth on file

with the office for the period January, 1940 to April, 1945 were all destroyed by WORLD WAR II (Exhibit "L"). And going for the jugular, so to

speak, the signature of the person named Librada T. delos Santos in the birth certificate (Exhibit "I") purporting to be that of the petitioner

wife and the signature of the latter appearing in the verification of the petitioner (sic) (Exhibit "A-6") are so strikingly dissimilar that they

could not have but proceeded from two different hands. For it does not require the trained eye of an expert calligrapher to discern such

discrepancy in the writing style.

In fine, there being an abundance of evidence to support the petitioner's claim that the birth certificate is indeed a falsified document, the

Court is left with no other alternative but to grant the relief prayed for in the petition. To let the birth certificate reamin (sic) as it is would

adversely affect the rights and interests of the herein petitioners.12

On July 15, 1997, Rosilyn, represented by her legal guardian, the DSWD, filed, with the CA, a petition for the annulment of judgment in the

petition for cancellation of entry of her birth certificate.13 She claimed that she and her guardian were not notified of the petition and the

subsequent judgment and learned about the same only from the news on May 16, 1997.14 She argued that the RTC decision was issued

without jurisdiction and in violation of her right to due process; that the Judge did not have authority to declare her to be illegitimate; and

that mere correction of entries, not cancellation of the entire certificate, is the appropriate remedy.15

Rosilyn further argued that: granting, without admitting that Librada is not her mother, still it was erroneous to cancel or annul her entire

birth certificate; Librada is not an interested party concerning the issue of whether Simplicio is the father, the date of actual birth, and the

name of the physician who attended to the birth;16 Librada's allegations are also contradicted by (a) the "Records Based on Cord Dressing

Room Book - dated April 13-May 29, 1985," issued by Emelita H. Avinante, Head of the Medical Records Section and Admitting Unit of the

Fabella Hospital, which is attached to the petition for annulment as Annex "E" and which states that Maria Rosilyn Delantar was born on May

11, 1985 at the Fabella Hospital and that her parents are Librada Telin and Simplicio Delantar;17 and (b) the admission of Simplicio in his

Motion to Vacate Judgment18 in Sp. Proc. No. 96-41919 regarding the custody of Rosilyn, which is attached to the petition to annul as Annex

"F," where he stated that he, as the rightful parent of Rosilyn, should not be deprived of his parental authority.20

On June 10, 1999, the CA rendered the herein assailed decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the instant Petition is GRANTED .

Judgment is hereby rendered DECLARING NULL and VOID the decision of the respondent Regional Trial Court dated April 11, 1997 in Special

Proceedings No. 97-81893.

With costs against private respondents.

SO ORDERED.21

The CA reasoned that:

As shown in the caption of the petition in Special Proceedings No. 97-81893 entitled "In the Matter of Cancellation and Annulment of the

Birth Certificate of Maria Rosilyn Telin Delantar", herein petitioner Rosilyn Delantar represented by her legal guardian, DSWD, was not made

a party-respondent therein, contrary to the mandatory provision of Section 3 of Rule 108 of the Rules of Court'

In the said Special Proceeding No. 97-81893, petitioners therein, Platon Ceruila and Librada D. Ceruila, sought not only a cancellation or

correction of an entry in the birth certificate of Rosilyn Telin Delantar but in effect sought to annul, cancel or expunge from the Civil Register

the subject birth certificate. With more reasons, therefore, that all parties, particularly Rosilyn Telin Delantar, or thru her legal guardian, the

DSWD, whose birth certificate was sought to be annulled or cancelled from the Civil Register must not only be notified but must be made a

party in the said petition.

Petitioner and her guardian are undoubtedly persons who have interest which would be affected by the petition for the obvious reason that it

is the entry of her birth which is being sought to be annulled and cancelled.

In a similar case, the Supreme Court ruled that corrections of substantial entries in the certificate other than mere clerical errors, should be

passed upon in an appropriate adversary proceedings with all the persons interested are made parties therein' Republic v. Valencia (141

SCRA 462; 468-469; 470-474).

The proceedings undertaken in said Special Proceedings No. 97-81893 is indeed wanting of the required notice to all the parties having claim

or interest which would be affected thereby, and of the adversarial proceedings, as disclosed in the decision dated April 11, 1997'

With the foregoing disquisitions, We find that the decision dated April 11, 1997 null and void for want of jurisdiction over the person of herein

petitioner Rosilyn Delantar and the DSWD as her legal guardian and all persons who have or claim any interest which would be affected by

the said decision. Also, the said decision dated April 11, 1997 is considered null and void for lack of due process there being no adversarial

proceedings (was) conducted by the public respondent Regional Trial Court.

And, even if the same judgment had already become final and executory, and had in fact been executed, as in the instant case, still the

execution thereof produces no legal effects.22

The CA denied the motion for reconsideration of petitioners.23 Hence, the present petition raising the following issues:

I

WHETHER OR NOT THE COURT OF APPEALS ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION

IN DECLARING NULL AND VOID THE DECISION RENDERED BY THE REGIONAL TRIAL COURT OF MANILA BRANCH 38 DATED APRIL 11, 1997 IN

SPEC. PROCEEDING NO. 97-81893 ENTITLED: IN THE MATTER OF CANCELLATION AND ANNULMENT OF THE BIRTH CERTIFICATE OF MARIA

ROSILYN TELIN DELANTAR

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS SHOULD HAVE EXERCISED ITS PEREMPTORY POWER TO DECLARE THE SUBJECT

BIRTH CERTIFICATE NULL AND VOID AB INITIO.24

As to the first issue, petitioners argue that: since the falsification of the entries in the birth certificate of Rosilyn renders the same void ab

initio, the case should be liberally construed as an ordinary civil action for declaration of nullity of falsified documents based on Article 5 of

the Civil Code25 and Section 15, Rule 6 of the Rules of Court26 and not as a special proceeding; petitioners were only constrained to utilize the

provisions of Rule 108 of the Rules of Court on the Cancellation or Correction of Entries in the Civil Registry since Article 5 of the Civil Code

provides no procedure for the nullification of void documents which happens to be a birth certificate in this case; since the present case

involves an ordinary civil action, the cases relied upon by the CA which are applicable only to special proceedings should not be applied

herein; the civil registrar, which is an indispensable party, was duly served summons by mail; respondent, meanwhile, is not an

indispensable party and granting that she is, she was deemed duly impleaded as her name was clearly stated in the caption of the case;

respondent's location could not be determined as she was reported to have ran away from the custody of Simplicio, thus the publication of

the petition and the order of the RTC setting the case for hearing once a week for three consecutive weeks in a newspaper of general

circulation should be considered substantial notice and the requirements of due process deemed substantially complied with; there was no

adversarial proceeding in court because the parties were declared in general default thus, just like an ordinary civil case, the court should

receive evidence ex parte.27

As to the second issue, petitioners claim that: the CA should have exercised its peremptory power to declare the birth certificate of Rosilyn

as null and void ab initio following the doctrine that where an instrument is void ab initio for being contrary to law, no amount of

technicalities could correct its inherent nullity; otherwise, there will be multiplicity of actions as the parties will have to file cases anew to

annul respondent's birth certificate.28

They then pray that the CA decision dated June 10, 1999 be reversed and that the RTC judgment dated April 11, 1997 be reinstated.29

Anent the first issue, the Solicitor General, for the respondent, contends that: since the petitioners chose to file a petition under Rule 108

they cannot in the present action turn around and claim that their case is not a special proceeding; in any case, due process was not

complied with rendering the proceedings a quo annullable; petitioners sought to establish Librada Ceruila's status, i.e., whether or not she is

the mother of respondent, thus, the action falls within the ambit of Sec. 3(c), Rule 1 of the Rules of Court;30petitioners did not allege that they

are bringing the suit to enforce or protect their right or to prevent or redress a wrong, for their case to be categorized as an ordinary civil

action; Art. 5 of the Civil Code which is being invoked by petitioners is a general provision, while entries of record of birth in the civil register

are governed by Republic Act No. 3753 (Civil Registry Law) as amended, and Presidential Decree No. 651; since the law provides for a

remedy when an entry in a record found in the civil registry is erroneous or falsified, petitioners cannot, by their mere allegation, transport

their case from the realm of the rules on special proceedings for the correction of entry to that of an ordinary civil case for annulment of a

falsified document; in Republic v. Valencia,31 it was held that the parties who must be made parties to a proceeding concerning the

cancellation or correction of an entry in the civil register are the civil registrar and all persons who have or who are claiming interests who

would be affected thereby; respondent, being a person whose interests would be adversely affected by the petition, is an indispensable

party to the case; publication cannot be substituted for notice; respondent cannot be declared in default since she was not properly

notified.32

Anent the second issue, respondent contends that the CA has no authority to rule on the merits of the case since in a petition for annulment

of judgment on the ground of lack of jurisdiction, its authority is limited to ruling on whether or not the petitioner was denied due process of

law; that if the CA were to rule on the merits of the case, it would have deprived respondent of due process; and that in any case,

respondent's record of birth is not void as Librada was only able to prove that she is not the mother of respondent.33

Preliminarily, this Court notes that while the petition states that it is one for review on certiorari, it claimed at the same time that the CA

committed grave abuse of discretion amounting to lack of jurisdiction, which is properly a ground for a petition for certiorari under Rule 65

and not for a petition for review on certiorari under Rule 45. Considering however the substance of the issues raised herein, we shall treat

the present petition, as it claims, to be a Petition for Review on Certiorari .34

Is the petition for annulment and cancellation of the birth certificate of Rosilyn an ordinary civil action or a special proceeding? Considering

that the petition, based on its allegations, does not question the fact of birth of Rosilyn, all matters assailing the truthfulness of any entry in

the birth certificate properly, including the date of birth, fall under Rule 108 of the Rules of Court which governs cancellation or correction of

entries in the Civil Registry. Thus, the petition filed by the Ceruilas, alleging material entries in the certificate as having been falsified, is

properly considered as a special proceeding pursuant to Section 3(c), Rule 1 and Rule 108 of the Rules of Court.

Did the Ceruilas comply with the requirements of Rule 108? We answer in the negative.

Sec. 3, Rule 108 of the Rules of Court, expressly states that:

SEC. 3. Parties. - - - When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or

claim any interest which would be affected thereby shall be made parties to the proceeding.

Indeed, not only the civil registrar but also all persons who have or claim any interest which would be affected by a proceeding concerning

the cancellation or correction of an entry in the civil register must be made parties thereto.35 As enunciated in Republic v.

Benemerito,36 unless all possible indispensable parties were duly notified of the proceedings, the same shall be considered as falling much

too short of the requirements of the rules.37

Here, it is clear that no party could be more interested in the cancellation of Rosilyn's birth certificate than Rosilyn herself. Her filiation,

legitimacy, and date of birth are at stake.

Petitioners claim that even though Rosilyn was never made a party to the proceeding, it is enough that her name was included in the caption

of the petition. Such reasoning is without merit.

As we pronounced in Labayo-Rowe v. Republic38 where the mother sought changes in the entries of her two children's birth certificates:

'since only the Office of the Solicitor General was notified through the Office of the Provincial Fiscal, representing the Republic of the

Philippines as the only respondent, the proceedings taken, which is summary in nature, is short of what is required in cases where

substantial alterations are sought. Aside from the Office of the Solicitor General, all other indispensable parties should have

been made respondents. They include not only the declared father of the child but the child as well, together with the

paternal grandparents, if any, as their hereditary rights would be adversely affected thereby. All other persons who may be affected

by the change should be notified or represented . . ..39 (Emphasis supplied)Ï‚rαlαωlιbrαrÿ

In the present case, only the Civil Registrar of Manila was served summons, who, however, did not participate in the proceedings. This alone

is clearly not sufficient to comply with the requirements laid down by the rules.

Petitioners further claim that the lack of summons on Rosilyn was cured by the publication of the order of the trial court setting the case for

hearing for three consecutive weeks in a newspaper of general circulation.

We do not agree. Summons must still be served, not for the purpose of vesting the courts with jurisdiction, but to comply with the

requirements of fair play and due process.40 This is but proper, to afford the person concerned the opportunity to protect her interest if she

so chooses.

Indeed, there were instances when we ruled that even though an interested party was not impleaded in the petition, such defect was cured

by compliance with Sec. 4, Rule 108 on publication. In said cases, however, earnest efforts were made by the petitioners in bringing to court

all possible interested parties.41

Such is not the case at bar. Rosilyn was never made a party at all to the proceedings seeking the cancellation of her birth certificate. Neither

did petitioners make any effort to summon the Solicitor General.

It does not take much to deduce the real motive of petitioners in seeking the cancellation of Rosilyn's birth certificate and in not making her,

her guardian, the DSWD, and the Republic of the Philippines, through the Solicitor General, parties to the petition. Rosilyn was involved in

the rape case against Romeo Jalosjos, where her father, as appearing in the birth certificate, was said to have pimped her into prostitution.

In the criminal case, the defense contended that the birth certificate of Rosilyn should not have been considered by the trial court to prove

Rosilyn's age and thus find basis for statutory rape, as said birth certificate has been cancelled by the RTC of Manila, Branch 38, in the

special proceeding antecedent to this petition. Their efforts in this regard, however, were thwarted when the CA overturned Branch 38's

decision, and the Court, in G.R. NOS. 132875-7642 considered other evidence as proof of Rosilyn's age at the time of the commission of the

crime.

There is also no merit in the contention of petitioners that because of the false entries in the birth certificate of Rosilyn, the same is void ab

initio, hence should be nullified under Art. 5 of the Civil Code, or should be nullified by the CA in exercise of its peremptory power to declare

null and void the said certificate.

The function of a petition for annulment of judgment, under Rule 47 of the Rules of Court, is not to replace the trial court's decision sought to

be annulled. The action under Sections 1, 2 and 7 of said Rule, to wit:

Section. 1. Coverage. - - - This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil

actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no

longer available through no fault of the petitioner.

Sec. 2. Grounds for annulment. - - - The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction.

Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief.

Sec. 7. Effect of judgment. - - - A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the

same null and void, without prejudice to the original action being refiled in the proper court. However, where the judgment or final order or

resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for

new trial had been granted therein.

is merely for the annulment of the RTC Decision on grounds of extrinsic fraud and lack of jurisdiction, nothing more. The Rules do not allow

the CA to resolve the merits of the petition for the amendment and cancellation of the birth certificate of Rosilyn or to substitute its own

findings thereon.

WHEREFORE, the petition is DENIED for lack of merit.

[G.R. NO. 157043 : February 2, 2007]

REPUBLIC OF THE PHILIPPINES, Petitioner, v. TRINIDAD R.A. CAPOTE, Respondent.

This Petition for Review on Certiorari 1 seeks to set aside the Court of Appeals (CA) decision2 dated January 13, 2003 in CA-G.R. CV No. 66128,

which affirmed the decision of the Regional Trial Court (RTC), Branch 23 of San Juan, Southern Leyte dated September 14, 1999 granting a

petition for change of name.

Respondent Trinidad R. A. Capote filed a petition for change of name of her ward from Giovanni N. Gallamaso to Giovanni Nadores on

September 9, 1998. In Special Proceeding No. R-481,3 Capote as Giovanni's guardian ad litem averred:

1. [Respondent] is a Filipino citizen, of legal age, married, while minor GIOVANNI N. GALLAMASO, is also a Filipino citizen, sixteen (16) years

old and both are residents of San Juan, Southern Leyte where they can be served with summons and other court processes;

2. [Respondent] was appointed guardian [ad litem] of minor Giovanni N. Gallamaso by virtue of a court order in Special [Proc.] No. R-459,

dated [August 18, 1998] xxx xxx authorizing her to file in court a petition for change of name of said minor in accordance with the desire of

his mother [who is residing and working abroad];

3. Both [respondent] and minor have permanently resided in San Juan, Southern Leyte, Philippines for more than fifteen (15) years prior to

the filing of this instant petition, the former since 1970 while the latter since his birth [in 1982];

4. The minor was left under the care of [respondent] since he was yet nine (9) years old up to the present;

5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of Corazon P. Nadores and Diosdado Gallamaso. [He] was born on July 9,

1982 [,] prior to the effectivity of the New Family Code and as such, his mother used the surname of the natural father despite the absence

of marriage between them; and [Giovanni] has been known by that name since birth [as per his birth certificate registered at the Local Civil

Register of San Juan, Southern Leyte];

6. The father, Diosdado Gallamaso, from the time [Giovanni] was born and up to the present, failed to take up his responsibilities [to him] on

matters of financial, physical, emotional and spiritual concerns. [Giovanni's pleas] for attention along that line [fell] on deaf ears xxx xxx

7. [Giovanni] is now fully aware of how he stands with his father and he desires to have his surname changed to that of his mother's

surname;

8. [Giovanni's] mother might eventually petition [him] to join her in the United States and [his] continued use of the surname Gallamaso, the

surname of his natural father, may complicate [his] status as natural child; and cralawlibrary

9. The change of name [from] GIOVANNI N. GALLAMASO to GIOVANNI NADORES will be for the benefit of the minor.

Respondent prayed for an order directing the local civil registrar to effect the change of name on Giovanni's birth certificate. Having found

respondent's petition sufficient in form and substance, the trial court gave due course to the petition.5 Publication of the petition in a

newspaper of general circulation in the province of Southern Leyte once a week for three consecutive weeks was likewise ordered.6 The trial

court also directed that the local civil registrar be notified and that the Office of the Solicitor General (OSG) be sent a copy of the petition and

order.7

Since there was no opposition to the petition, respondent moved for leave of court to present her evidence ex parte before a court-appointed

commissioner. The OSG, acting through the Provincial Prosecutor, did not object; hence, the lower court granted the motion.

After the reception of evidence, the trial court rendered a decision ordering the change of name from Giovanni N. Gallamaso to Giovanni

Nadores.8

From this decision, petitioner Republic of the Philippines, through the OSG, filed an appeal with a lone assignment of error: the court a

quo erred in granting the petition in a summary proceeding.

Ruling that the proceedings were sufficiently adversarial in nature as required, the CA affirmed the RTC decision ordering the change of

name.9

In this petition, the Republic contends that the CA erred in affirming the trial court's decision which granted the petition for change of name

despite the non-joinder of indispensable parties.10 Petitioner cites Republic of the Philippines v. Labrador11 and claims that the purported

parents and all other persons who may be adversely affected by the child's change of name should have been made respondents to make

the proceeding adversarial.12

We deny the petition.

"The subject of rights must have a fixed symbol for individualization which serves to distinguish him from all others; this symbol is his

name."13 Understandably, therefore, no person can change his name or surname without judicial authority.14 This is a reasonable requirement

for those seeking such change because a person's name necessarily affects his identity, interests and interactions. The State must be

involved in the process and decision to change the name of any of its citizens.

The Rules of Court provides the requirements and procedure for change of name. Here, the appropriate remedy is covered by Rule 103,15 a

separate and distinct proceeding from Rule 108 on mere cancellation and correction of entries in the civil registry (usually dealing only with

innocuous or clerical errors thereon).16

The issue of non-joinder of alleged indispensable parties in the action before the court a quo is intertwined with the nature of the

proceedings there. The point is whether the proceedings were sufficiently adversarial.

Summary proceedings do not extensively address the issues of a case since the reason for their conduct is expediency. This, according to

petitioner, is not sufficient to deal with substantial or contentious issues allegedly resulting from a change of name, meaning, legitimacy as

well as successional rights.17 Such issues are ventilated only in adversarial proceedings wherein all interested parties are impleaded and due

process is observed.18

When Giovanni was born in 1982 (prior to the enactment and effectivity of the Family Code of the Philippines),19 the pertinent provision of

the Civil Code then as regards his use of a surname, read:

Art. 366. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the

parents, a natural child shall employ the surname of the recognizing parent. (emphasis ours)

Based on this provision, Giovanni should have carried his mother's surname from birth. The records do not reveal any act or intention on the

part of Giovanni's putative father to actually recognize him. Meanwhile, according to the Family Code which repealed, among others, Article

366 of the Civil Code:

Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to

support in conformity with this Code. xxx xxx xxx (emphasis ours)

Our ruling in the recent case of In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin

Carulasan Wang20 is enlightening:

Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father. The Family

Code gives legitimate children the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname

of their mother, unless their father recognizes their filiation, in which case they may bear the father's surname.

Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his

mother' surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him

as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a

public document or private handwritten instrument that he bears both his mother's surname as his middle name and his father's surname as

his surname, reflecting his status as a legitimated child or an acknowledged child. ςηÎ

The foregoing discussion establishes the significant connection of a person's name to his identity, his status in relation to his parents and his

successional rights as a legitimate or illegitimate child. For sure, these matters should not be taken lightly as to deprive those who may, in

any way, be affected by the right to present evidence in favor of or against such change.

The law and facts obtaining here favor Giovanni's petition. Giovanni availed of the proper remedy, a petition for change of name under Rule

103 of the Rules of Court, and complied with all the procedural requirements. After hearing, the trial court found (and the appellate court

affirmed) that the evidence presented during the hearing of Giovanni's petition sufficiently established that, under Art. 176 of the Civil Code,

Giovanni is entitled to change his name as he was never recognized by his father while his mother has always recognized him as her child. A

change of name will erase the impression that he was ever recognized by his father. It is also to his best interest as it will facilitate his

mother's intended petition to have him join her in the United States. This Court will not stand in the way of the reunification of mother and

son.

Moreover, it is noteworthy that the cases cited by petitioner22 in support of its position deal with cancellation or correction of entries in the

civil registry, a proceeding separate and distinct from the special proceedings for change of name. Those cases deal with the application and

interpretation of Rule 108 of the Rules of Court while this case was correctly filed under Rule 103. Thus, the cases cited by petitioner are

irrelevant and have no bearing on respondent's case. While the OSG is correct in its stance that the proceedings for change of name should

be adversarial, the OSG cannot void the proceedings in the trial court on account of its own failure to participate therein. As the CA correctly

ruled:

The OSG is correct in stating that a petition for change of name must be heard in an adversarial proceeding. Unlike petitions for the

cancellation or correction of clerical errors in entries in the civil registry under Rule 108 of the Rules of Court, a petition for change of name

under Rule 103 cannot be decided through a summary proceeding. There is no doubt that this petition does not fall under Rule 108 for it is

not alleged that the entry in the civil registry suffers from clerical or typographical errors. The relief sought clearly goes beyond correcting

erroneous entries in the civil registry, although by granting the petition, the result is the same in that a corresponding change in the entry is

also required to reflect the change in name. In this regard, [appellee] Capote complied with the requirement for an adversarial

proceeding by posting in a newspaper of general circulation notice of the filing of the petition. The lower court also

furnished the OSG a copy thereof. Despite the notice, no one came forward to oppose the petition including the OSG. The

fact that no one opposed the petition did not deprive the court of its jurisdiction to hear the same nor does it make the

proceeding less adversarial in nature. The lower court is still expected to exercise its judgment to determine whether the petition is

meritorious or not and not merely accept as true the arguments propounded. Considering that the OSG neither opposed the petition nor the

motion to present its evidence ex parte when it had the opportunity to do so, it cannot now complain that the proceedings in the lower court

were not adversarial enough.23 (emphasis supplied)

A proceeding is adversarial where the party seeking relief has given legal warning to the other party and afforded the latter an opportunity

to contest it.24 Respondent gave notice of the petition through publication as required by the rules.25 With this, all interested parties were

deemed notified and the whole world considered bound by the judgment therein. In addition, the trial court gave due notice to the OSG by

serving a copy of the petition on it. Thus, all the requirements to make a proceeding adversarial were satisfied when all interested parties,

including petitioner as represented by the OSG, were afforded the opportunity to contest the petition.

WHEREFORE, the petition is hereby DENIED and the January 13, 2003 decision of the Court of Appeals in CA-G.R. CV No.

66128 AFFIRMED.