Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

G.R. No. 118644 July 7, 1995

DIRECTOR EPIMACO A. VELASCO, as Director of the National Bureau of Investigation (NBI), NATIONAL BUREAU OF INVESTIGATION SPECIAL OPERATIONS GROUP (SOG), SPECIAL INVESTIGATORS III FLOR L. RESURRECCION and ANTONIO M. ERUM, JR., and THE PEOPLE OF THE PHILIPPINES, petitioners, vs.COURT OF APPEALS, FELICITAS S. CUYAG, for and in behalf of LAWRENCE A. LARKINS, respondents.

 

DAVIDE, JR., J.:

The high prerogative writ of habeas corpus, whose origin is lost in antiquity,

1 was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint and as the best and only sufficient defense of personal freedom. 2 More specifically, its vital purposes are to obtain immediate relief from illegal confinement, to liberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody. It is then essentially a writ of inquiry and is granted to test the right under which a person is detained. 3

Under our Constitution, the privilege of the writ of habeas corpus cannot be suspended except in cases of invasion or rebellion when the public safety requires it. 4 Pursuant to Section 1, Rule 102 of the Rules of Court, it extends, except as otherwise provided by law, to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. It

is not available, however, under the instances enumerated in Section 4 of the said Rule which reads:

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

In this petition for review, the petitioners want us to set aside and reverse the decision of 1 February 1995 of the Court of Appeals in CA-G.R. SP No. 36273, 5 a petition for habeas corpus and certiorari with a prayer for a temporary restraining order, ordering the herein petitioners to immediately release Lawrence A. Larkins from their custody and declaring moot the alternative relief of certiorari.

The antecedent facts of the case as culled from the challenged decision and the pleadings of the parties are neither complicated nor disputed.

On 16 September 1993, a warrant of arrest was issued by Judge Manuel Padolina of Branch 162 of the Regional Trial Court (RTC) of Pasig, Metro Manila, against accused Lawrence Larkins in Criminal Cases Nos. 101189-92 for violations of B.P. Blg. 22.

On 20 November 1994, a certain Desiree Alinea executed and filed before the National Bureau of Investigation (NBI) a complaint-affidavit accusing Larkins of the crime of rape allegedly committed against her on 19 November 1994 at 2:00 a.m. in Victoria Valley Subdivision, Valley Golf, Antipolo, Rizal. 6

1

Acting on the basis of the complaint of Alinea, petitioners Special Investigators Flor L. Resurreccion and Antonio M. Erum, Jr. proceeded to the office of Larkins in Makati, Metro Manila, on 21 November 1994 and arrested the latter, who was thereupon positively identified by Alinea as her rapist. 7 Larkins was then detained at the Detention Cell of the NBI, Taft Avenue, Manila.

On 22 November 1994, Larkins posted his bail of P4,000.00 in Criminal Cases Nos. 101189-92. Judge Padolina forthwith issued an order recalling and setting aside the warrant of arrest issued on 16 September 1993 and directing the Jail Warden of the NBI Detention Cell to release Larkins from confinement "unless otherwise detained for some other cause."

Special Investigators Resurreccion and Erum refused to release Larkins because he was still detained for another cause, specifically for the crime of rape for which he would be held for inquest.

On 23 November 1994, a complaint against Larkins for rape was executed by Alinea. 8 It contains a certification by Assistant Provincial Prosecutor Ma. Paz Reyes Yson that it is "filed pursuant to Section 7, Rule 112 of the 1985 Rules on Criminal Procedure, as amended, the accused not having opted to avail of his right to preliminary investigation and not having executed a waiver pursuant to Article 125 of the RPC. . . ." The complaint was filed with the RTC of Antipolo on 2 December 1994, docketed therein as Criminal Case No. 94-11794, and assigned to Branch 71 of the court, presided by Judge Felix S. Caballes.

On 2 December 1994, Larkins, through his counsel Mauricio C. Ulep, filed an Urgent Motion for Bail 9 wherein he alleged, inter alia, that the evidence of guilt against him for rape is not strong, as he had no carnal knowledge of the complainant and the medical report indicates that her hymen was neither lacerated nor ruptured; that he is entitled as a matter of right to bail; and that he has no intention of going out of the country or hiding away from the law.

On 6 December 1994, Larkins, through his new counsel, Atty. Theodore O. Te, filed in Criminal Case No. 94-11794 an Urgent Omnibus Motion for the Dismissal of the Complaint and for Immediate Release, 10 principally based on the alleged illegality of his warrantless arrest. This motion met vigorous opposition from the private complainant. 11

In the order of 5 January 1995, 12 the trial court denied the aforesaid motions, thus:

After a careful appreciation of the arguments of the prosecution and the defense, the Court finds no legal or valid grounds to dismiss the complaint or release the accused, or to grant him bail. The filing of this case against the accused, which is [a] very serious offense, justifies the grant of the motion of the prosecution for the issuance of a hold departure order.

WHEREFORE, the motions of the accused are hereby denied for lack of merit, and as prayed for by the prosecution the Bureau of Immigration and Deportation is hereby directed to include the name of the accused, Lawrence A. Larkins, in its hold order departure list until further order from this Court.

Unable to accept the ruling, Larkins' common-law wife, Felicitas S. Cuyag, filed before the Court of Appeals a petition for habeas corpus with certiorari. Impleaded as respondents were the herein petitioners and Judge Felix S. Caballes.

Subsequently, the Court of Appeals issued a resolution 13 ordering the respondents therein to appear and produce Lawrence A. Larkins before the court on 31 January 1995 at 10:30 a.m. and to show cause why Larkins' liberty is being restrained.

On the said date, Special Investigators Resurreccion and Erum appeared and produced Larkins at the hearing. Atty. Orlando Dizon of the NBI acted as their counsel. 14 The Office of the Solicitor General representing the People of the Philippines made no appearance. 15 Neither did Judge Caballes, for he had not received a copy of the resolution. On the other hand, the petitioner therein, Felicitas S. Cuyag, appeared with her counsel, who manifested that should the court order the release of Larkins the alternative prayer for certiorari would be deemed abandoned. 16

After hearing the arguments of the parties, the Court of Appeals rendered the challenged decision, holding that:

2

From the arguments presented by the parties, we resolve to order the immediate release of Larkins from his present confinement on the ground that the complaint presented to the NBI by complainant Desiree Alinea on the basis of which Larkins was detained without a warrant of arrest for rape did not meet the legal requirements provided for in Rule 113 of the Rules of Court.

Furthermore, on the day the detention of Larkins commenced, i.e., immediately after the NBI was served with the Order of the Pasig RTC for his release on bail in connection with the BP 22 cases, no other criminal complaint or information had been filed or pending in any court. It was only sometime between November 25, 1994 (when filing of the complaint was approved by the Rizal Provincial Prosecutor) and November 29, 1994 (the date appearing on the Urgent Motion for Bail filed by Larkins's former counsel, said Atty. Ulep) that the complaint for rape was filed with the Antipolo RTC.

The petitioners insist that the respondent court erred in granting the petition for habeas corpus because Larkins had already been charged with the crime of rape and the trial court had denied his application for bail. They further claim that the warrantless arrest in this case is valid for it was made under Section 5(b), Rule 113 of the Rules of Court.

On the other hand, the private respondent contends that habeas corpus is rendered unavailing not by the mere filing of an information, but by the issuance of a warrant of arrest or warrant of commitment, which are the only two processes recognized by law to justify deprivation of liberty, and the order of Judge Caballes of 5 January 1995 denying the petition for bail does not qualify as such. She asserts that the petitioners have miscomprehended Paredes vs. Sandiganbayan 17 because that case did not rule that the writ is no longer available after an information (or criminal complaint for rape as in this case) is filed against the person detained; what it stated is that the writ of habeas corpus will not issue when the person alleged to be restrained of his liberty is in the custody of an officer under a process issued by the court which has jurisdiction to do so. She submits that the controlling doctrine is that enunciated in Ilagan vs. Ponce Enrile, 18 adverted to in Sanchez vs. Demetriou, 19 that "[t]he filing of charges, and the issuance of the

corresponding warrant of arrest, against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect."

We find for the petitioners.

But, before we take up the substantive merits of this petition, we shall first delve into the propriety of the petition for habeas corpus and certiorari filed by private respondent Cuyag with the Court of Appeals.

Concededly, the private respondent has the personality to institute on behalf of her common-law spouse, Lawrence Larkins, the habeas corpus aspect of the petition, as she falls within the purview of the term "some person" under Section 3, Rule 102 of the Rules of Court, which means any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application. 20 She is not, however, the real party in interest in the certiorari aspect of the petition. Only Larkins could institute a petition for certiorari to set aside the order denying his motions for bail and for the dismissal of the complaint against him.

It does not, however, follow that if certiorari is available to Larkins, an application for a writ of habeas corpus will absolutely be barred. While ordinarily, the writ of habeas corpus will not be granted when there is an adequate remedy by writ of error or appeal or by writ of certiorari, it may, nevertheless, be available in exceptional cases, for the writ should not be considered subservient to procedural limitations which glorify form over substance. 21 It must be kept in mind that although the question most often considered in both habeas corpus and certiorari proceedings is whether an inferior court has exceeded its jurisdiction, the former involves a collateral attack on the judgment and "reaches the body but not the record," while the latter assails directly the judgment and "reaches the record but not the body."

22

And now on the merits of the petition.

The Court of Appeals granted the writ of habeas corpus because it found that the warrantless arrest of Larkins for the crime of rape "did not meet the legal

3

requirements provided for in Rule 113 of the Rules of Court." It could have in mind Section 5 thereof on lawful warrantless arrest.

Even if the arrest of a person is illegal, supervening events may bar his release or discharge from custody. What is to be inquired into is the legality of his detention as of, at the earliest, the filing of the application for a writ of habeas corpus, for even if the detention is at its inception illegal, it may, by reason of some supervening events, such as the instances mentioned in Section 4 of Rule 102, be no longer illegal at the time of the filing of the application. Among such supervening events is the issuance of a judicial process preventing the discharge of the detained person. Thus, in Sayo vs. Chief of Police of Manila, 23 this Court held:

[W]e hold that petitioners are being illegally restrained of their liberty, and their release is hereby ordered unless they are now detained by virtue of a process issued by a competent court of justice. (emphasis supplied)

Another is the filing of a complaint or information for the offense for which the accused is detained, as in the instant case. By then, the restraint of liberty is already by virtue of the complaint or information and, therefore, the writ of habeas corpus is no longer available. Section 4 of Rule 102 reads in part as follows: "Nor shall anything in this rule be held to authorize the discharge of a person charged with . . . an offense in the Philippines."

Thus, in Matsura vs. Director of Prisons, 24 where petitioners Macario Herce and Celso Almadovar claimed to have been illegally detained for more than one year without any complaint or information filed against them, this Court denied the petition for a writ of habeas corpus, for at the time they filed the petition they had already been charged with the crime of treason and confined by reason thereof. Harvey vs. Defensor-Santiago 25 reiterates Matsura.

In Cruz vs. Montoya, 26 this Court dismissed the petition for habeas corpus for having become academic because the information for estafa against the party whose liberty was allegedly illegally restrained had already been filed and a warrant for his arrest had been issued, and whatever illegality might have originally infected his detention had been cured.

In Umil vs. Ramos 27 this Court, applying the last sentence of Section 4 of Rule 102, held that the writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. Thus:

It is to be noted that, in all the petitions here considered, criminal charges have been filed in the proper courts against the petitioners. The rule is, that if a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, and that the court or judge had jurisdiction to issue the process or make the order, or if such person is charged before any court, the writ of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing that:

Sec. 4. . . . Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines or of a person suffering from imprisonment under lawful judgment. 28 (emphasis supplied)

It may also be said that by filing his motion for bail, Larkins admitted that he was under the custody of the court and voluntarily submitted his person to its jurisdiction. In De Asis vs. Romero, 29 this Court stated:

De Asis could have, right after his arrest, objected to the regularity of the issuance of the warrant of arrest in question. Instead he not only filed a petition for bail with the lower court, thereby accepting the court's jurisdiction over his person, but he also pleaded, on arraignment, to the information filed against him. (emphasis supplied)

The filing of a petition or motion for bail in cases where no bail is recommended has the same legal import and effect as the posting of bail in cases where bail is recommended. It is settled that the giving or posting of bail by the accused is tantamount to submission of his person to the jurisdiction of the court. In the case of Carrington vs. Peterson, 30 this Court declared:

4

When a defendant in a criminal case is brought before a competent court by virtue of a warrant of arrest or otherwise, in order to avoid the submission of his body to the jurisdiction of the court he must raise the question of the court's jurisdiction over his person at the very earliest opportunity. If he gives bail, demurs to the complaint or files any dilatory plea or pleads to the merits, he thereby gives the court jurisdiction over his person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)

In United States vs. Grant, 31 this Court held:

Conceding again that the warrant issued in this case was void for the reason that no probable cause was found by the court before issuing it, the defendant waived all his rights to object to the same by appearing and giving bond.

While it may be true that on 6 December 1994, or four days after the filing of the Urgent Motion for Bail, Larkins, thru a new counsel, filed an Urgent Omnibus Motion for Dismissal of the Complaint and for Immediate Release based on the alleged illegality of his warrantless arrest, the said motion was a mere afterthought which came too late in the day. By then, the trial court had firmly acquired jurisdiction over his person.

Moreover, the trial court's order of 5 January 1995 denying the urgent motion for bail was an unequivocal assertion of its authority to keep in custody the person of Larkins. This order comes under the purview of the word order under the first sentence of Section 4 of Rule 102 reading: "If it appears that the person alleged to be restrained of his liberty is in the custody of an officer . . . by virtue of [an] order of a court of record, and that the court or judge had jurisdiction to . . . make the order, the writ shall not be allowed. . . ."

The foregoing renders untenable the private respondent's claim that it is the rule in Ilagan vs. Enrile 32 which must govern, that the writ may not be allowed only where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by the court or judge, and that there are only two recognized processes which justify deprivation of liberty, viz., (1) commitment order and (2) warrant of arrest. The contention is not only a deliberate misreading of Section 4 of Rule 102 limiting its application

to the first part of the first sentence and disregarding the rest, but is also an undue and unwarranted restriction of the term process. A commitment order and a warrant of arrest are but species of judicial process.

In Malaloan vs. Court of Appeals, 33 this Court stated:

Invariably a judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law; also, the means of accomplishing an end, including judicial proceedings, or all writs, warrants, summonses and orders of courts of justice or judicial officers. It is likewise held to include a writ, summons or order issued in a judicial proceeding to acquire jurisdiction of a person or his property, to expedite the cause or enforce the judgment, or a writ, warrant, mandate or other process issuing from a court of justice.

In Macondray & Co., Inc. vs. Bernabe, 34 this Court quoted Corpus Juris' definition of the term "process," to wit:

As a legal term, process is a generic word of very comprehensive signification and many meanings. In its broadest sense, it is equivalent to, or synonymous with "proceedings" or procedure and embraces all the steps and proceedings in a cause from its commencement to its conclusion. Sometimes the term is also broadly defined as the means whereby a court compels a compliance with its demands. (50 C.J. 441)

We thus rule that the order of 5 January 1995 of the trial court also qualifies as a process within the meaning of Section 4 of Rule 102.

Hence, even granting that Larkins was illegally arrested, still the petition for a writ of habeas corpus will not prosper because his detention has become legal by virtue of the filing before the trial court of the complaint against him and by the issuance of the 5 January 1995 order.

Even as we thus decide in favor of the petitioners, we are, nevertheless, disturbed by certain incidents relative to the warrantless arrest of Larkins.

5

Firstly, assuming that it was lawful, the facts before us disclose that the arresting officers failed to strictly comply with (1) the last paragraph of Section 5, Rule 113 of the Rules of Court requiring that the person lawfully arrested without a warrant shall forthwith be delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7, Rule 112; and (2) Article 125 of the Revised Penal Code, as amended, providing that he be delivered to the proper judicial authorities within thirty-six hours, the crime with which Larkins was charged being punishable by an afflictive penalty. Although the arrest was made in Makati where there is a police station and a municipal (now city) jail, Larkins was brought to the NBI Detention Cell at Taft Avenue, Manila, and though the complaint of the offended party was executed on 23 November 1994, it was not until 2 December 1994 that the said complaint was actually filed in court.

Unless satisfactorily explained, the non-compliance by the arresting officers with the said provisions merits nothing but disapproval from the Court. In the performance of their duty and in their commendable pursuit to stamp out crimes and bring criminals to the bar of justice, law enforcement authorities should make no shortcuts, but must comply with all procedures to safeguard the constitutional and statutory rights of accused persons. The rule of law must always be upheld. What this Court said in Beltran vs. Garcia 35 needs to be repeated:

It certainly does not speak well of officialdom, whether civilian or military, if a person deprived of his liberty had to go to court before his rights are respected. The good name of the administration is jeopardized, without any fault on its part, by such inefficiency or inattention to duty. Every precaution should be taken against its repetition. Otherwise, the parties responsible for this state of affairs would justly lay themselves open to the accusation that the greatest danger to constitutional rights comes from public officials, men of zeal, concededly well-meaning, but without sufficient understanding of the implication of the rule of law.

We also note that the trial court did not conduct a hearing of the urgent motion for bail, as required under Section 5, Rule 114 of the Rules of Court. The grant or denial of bail must be based upon the court's determination as to whether or not the evidence of guilt is strong. This discretion may only be exercised after evidence is submitted at the hearing conducted for that

purpose. 36 The court's order granting or refusing bail must contain a summary of the evidence for the prosecution followed by its conclusion whether or not the evidence of guilt is strong; otherwise, the order would be defective and voidable. 37 In fact, even if the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the State's evidence or judge the adequacy of the amount of bail. 38 It was thus incumbent upon the trial court to receive the evidence for the prosecution on the urgent motion for bail. For this procedural shortcoming, Larkins should also be partly blamed. He did not press for a hearing after the scheduled hearing on 5 December 1994 was cancelled because, as he claimed, the presiding Judge was out of the country. 39

WHEREFORE, the instant petition is GRANTED, and the decision of the Court of Appeals of 1 February 1995 in CA-G.R. SP No. 36273 is hereby SET ASIDE and ANNULLED.

No pronouncement as to costs.

SO ORDERED.

Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

6

G.R. No. L-35546 September 17, 1974

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENIGNO S. AQUINO, JR., RAMON MITRA, JR., FRANCISCO RODRIGO, AND NAPOLEON RAMA, petitioners, vs.HON JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY, respondents.

These cases are all petitions for habeas corpus, the petitioners having been arrested and detained by the military by virtue of the President's Proclamation No. 1081, dated September 21, 1972.

At the outset a word of clarification is in order. This is not the decision of the Court in the sense that a decision represents a consensus of the required majority of its members not only on the judgment itself but also on the rationalization of the issues and the conclusions arrived at. On the final result the vote is practically unanimous; this is a statement of my individual opinion as well as a summary of the voting on the major issues. Why no particular Justice has been designated to write just one opinion for the entire Court will presently be explained.

At one point during our deliberations on these cases it was suggested that as Chief Justice I should write that opinion. The impracticability of the suggestion shortly became apparent for a number of reasons, only two of which need be mentioned. First, the discussions, as they began to touch on particular issues, revealed a lack of agreement among the Justices as to whether some of those issues should be taken up although it was not necessary to do so, they being merely convenient for the purpose of ventilating vexing questions of public interest, or whether the decision should be limited to those issues which are really material and decisive in these cases. Similarly, there was no agreement as to the manner the issues should be treated and developed. The same destination would be reached, so to speak, but through different routes and by means of different vehicles of approach. The writing of separate opinions by individual Justices was thus unavoidable, and understandably so for still another reason, namely, that although little overt reference to it was made at the time, the future verdict of

history was very much a factor in the thinking of the members, no other case of such transcendental significance to the life of the nation having before confronted this Court. Second — and this to me was the insuperable obstacle — I was and am of the opinion, which was shared by six other Justices 1 at the time the question was voted upon, that petitioner Jose W. Diokno's motion of December 28, 1973 to withdraw his petition (G.R. No. L-35539) should be granted, and therefore I was in no position to set down the ruling of the Court on each of the arguments raised by him, except indirectly, insofar as they had been raised likewise in the other cases.

It should be explained at this point that when the Court voted on Diokno's motion to withdraw his petition he was still under detention without charges, and continued to remain so up to the time the separate opinions of the individual Justices were put in final form preparatory to their promulgation on September 12, which was the last day of Justice Zaldivars tenure in the Court. 2 Before they could be promulgated, however, a major development supervened: petitioner Diokno was released by the President in the morning of September 11, 1974. In view thereof all the members of this Court except Justice Castro agreed to dismiss Diokno's petition on the ground that it had become moot, with those who originally voted to grant the motion for withdrawal citing said motion as an additional ground for such dismissal.

The petitioners in the other cases, except Benigno Aquino, Jr. (G.R. No. L-35546), either have been permitted to withdraw their petitions or have been released from detention subject to certain restrictions. 3 In the case of Aquino, formal charges of murder, subversion and illegal possession of firearms were lodged against him with a Military Commission on August 11, 1973; and on the following August 23 he challenged the jurisdiction of said Commission as well as his continued detention by virtue of those charges in a petition for certiorari and prohibition filed in this Court (G.R. No. L-37364). The question came up as to whether or not Aquino's petition for habeas corpus should be dismissed on the ground that the case as to him should more appropriately be resolved in this new petition. Of the twelve Justices, however, eight voted against such dismissal and chose to consider the case on the merits. 4

On Diokno's motion to withdraw his petition I voted in favor of granting it for two reasons. In the first place such withdrawal would not emasculate the decisive and fundamental issues of public interest that demanded to be

7

resolved, for they were also raised in the other cases which still remained pending. Secondly, since it was this petitioner's personal liberty that was at stake, I believed he had the right to renounce the application for habeas corpus he initiated. Even if that right were not absolute I still would respect his choice to remove the case from this Court's cognizance, regardless of the fact that I disagreed with many of his reasons for so doing. I could not escape a sense of irony in this Court's turning down the plea to withdraw on the ground, so he alleges among others, that this is no longer the Court to which he originally applied for relief because its members have taken new oaths of office under the 1973 Constitution, and then ruling adversely to him on the merits of his petition.

It is true that some of the statements in the motion are an affront to the dignity of this Court and therefore should not be allowed to pass unanswered. Any answer, however, would not be foreclosed by allowing the withdrawal. For my part, since most of those statements are of a subjective character, being matters of personal belief and opinion, I see no point in refuting them in these cases. Indeed my impression is that they were beamed less at this Court than at the world outside and designed to make political capital of his personal situation, as the publicity given to them by some segments of the foreign press and by local underground propaganda news sheets subsequently confirmed. It was in fact from that perspective that I deemed it proper to respond in kind, that is, from a non-judicial forum, in an address I delivered on February 19, 1974 before the LAWASIA, the Philippine Bar Association and the Philippine Lawyers' Association. Justice Teehankee, it may be stated, is of the opinion that a simple majority of seven votes out of twelve is legally sufficient to make the withdrawal of Diokno's petition effective, on the theory that the requirement of a majority of eight votes applies only to a decision on the merits.

In any event, as it turned out, after petitioner Diokno was released by the President on September 11 all the members of this Court except Justice Castro were agreed that his petition had become moot and therefore should no longer be considered on the merits. This notwithstanding, some of the opinions of the individual members, particularly Justices Castro and Teehankee, should be taken in the time setting in which they were prepared, that is, before the order for the release of Diokno was issued.

The Cases.

The events which form the background of these nine petitions are related, either briefly or in great detail, in the separate opinions filed by the individual Justices. The petitioners were arrested and held pursuant to General Order No. 2 of the President (September 22, 1972), "for being participants or for having given aid and comfort in the conspiracy to seize political and state power in the country and to take over the Government by force ..."

General Order No. 2 was issued by the President in the exercise of the powers he assumed by virtue of Proclamation No. 1081 (September 21, 1972) placing the entire country under martial law. The portions of the proclamation immediately in point read as follows:

xxx xxx xxx

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.

In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree,

8

order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered released by me or by my duly designated representative.

The provision of the 1935 Constitution referred to in the proclamation reads: "the President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law."

1. The first major issue raised by the parties is whether this Court may inquire into the validity of Proclamation No. 1081. Stated more concretely, is the existence of conditions claimed to justify the exercise of the power to declare martial law subject to judicial inquiry? Is the question political or justiciable in character?

Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino hold that the question is political and therefore its determination is beyond the jurisdiction of this Court. The reasons are given at length in the separate opinions they have respectively signed. Justice Fernandez adds that as a member of the Convention that drafted the 1973 Constitution he believes that "the Convention put an imprimatur on the proposition that the validity of a martial law proclamation and its continuation is political and non-justiciable in character."

Justice Barredo, on the other hand, believes that political questions are not per se beyond the Court's jurisdiction, the judicial power vested in it by the Constitution being plenary and all-embracing, but that as a matter of policy implicit in the Constitution itself the Court should abstain from interfering with the Executive's Proclamation, dealing as it does with national security, for which the responsibility is vested by the charter in him alone. But the Court should act, Justice Barredo opines, when its abstention from acting would result in manifest and palpable transgression of the Constitution proven by facts of judicial notice, no reception of evidence being contemplated for purposes of such judicial action.

It may be noted that the postulate of non-justiciability as discussed in those opinions involves disparate methods of approach. Justice Esguerra maintains that the findings of the President on the existence of the grounds for the declaration of martial law are final and conclusive upon the Courts. He disagrees vehemently with the ruling in Lansang vs. Garcia, 42 SCRA 448, December 11, 1971, and advocates a return to Barcelon vs. Baker, 5 Phil. 87 (1905), and Montenegro vs. Castañeda, 91 Phil. 882 (1952). Justice Barredo, for his part, holds that Lansang need not be overturned, indeed does not control in these cases. He draws a distinction between the power of the President to suspend the privilege of the writ of habeas corpus, which was the issue in Lansang, and his power to proclaim martial law, calling attention to the fact that while the Bill of Rights prohibits suspension of the privilege except in the instances specified therein, it places no such prohibition or qualification with respect to the declaration of martial law.

Justice Antonio, with whom Justices Makasiar, Fernandez and Aquino concur, finds that there is no dispute as to the existence of a state of rebellion in the country, and on that premise emphasizes the factor of necessity for the exercise by the President of his power under the Constitution to declare martial law, holding that the decision as to whether or not there is such necessity is wholly confided to him and therefore is not subject to judicial inquiry, his responsibility being directly to the people.

Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee and Muñoz Palma. They hold that the constitutional sufficiency of the proclamation may be inquired into by the Court, and would thus apply the principle laid down in Lansang although that case refers to the power of the President to suspend the privilege of the writ of habeas corpus. The recognition of justiciability accorded to the question in Lansang, it should be emphasized, is there expressly distinguished from the power of judicial review in ordinary civil or criminal cases, and is limited to ascertaining "merely whether he (the President) has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act." The test is not whether the President's decision is correct but whether, in suspending the writ, he did or did not act arbitrarily. Applying this test, the finding by the Justices just mentioned is that there was no arbitrariness in the President's proclamation of martial law pursuant to the 1935 Constitution; and I concur with them in that finding. The factual bases for the suspension of the privilege of the writ of habeas corpus, particularly in regard to the existence of a state of rebellion in the country, had not

9

disappeared, indeed had been exacerbated, as events shortly before said proclamation clearly demonstrated. On this Point the Court is practically unanimous; Justice Teehankee merely refrained from discussing it.

Insofar as my own opinion is concerned the cleavage in the Court on the issue of justiciability is of not much more than academic interest for purposes of arriving at a judgment. I am not unduly exercised by Americas decisions on the subject written in another age and political clime, or by theories of foreign authors in political science. The present state of martial law in the Philippines is peculiarly Filipino and fits into no traditional patterns or judicial precedents.

In the first place I am convinced (as are the other Justices), without need of receiving evidence as in an ordinary adversary court proceeding, that a state of rebellion existed in the country when Proclamation No. 1081 was issued. It was a matter of contemporary history within the cognizance not only of the courts but of all observant people residing here at the time. Many of the facts and events recited in detail in the different "Whereases" of the proclamation are of common knowledge. The state of rebellion continues up to the present. The argument that while armed hostilities go on in several provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain martial law all over the country, ignores the sophisticated nature and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes between organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through printed news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of funds, procurement of arms and material, fifth-column activities including sabotage and intelligence — all these are part of the rebellion which by their nature are usually conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt with in that context.

Secondly, my view, which coincides with that of other members of the Court as stated in their opinions, is that the question of validity of Proclamation No. 1081 has been foreclosed by the transitory provision of the 1973 Constitution [Art. XVII, Sec. 3(2)] that "all proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land and shall remain valid, legal, binding and effective

even after ... the ratification of this Constitution ..." To be sure, there is an attempt in these cases to resuscitate the issue of the effectivity of the new Constitution. All that, however, is behind us now. The question has been laid to rest by our decision in Javellana vs. Executive Secretary (L-36142, 50 SCRA 30, March 31, 1973), and of course by the existing political realities both in the conduct of national affairs and in our relations with other countries.

On the effect of the transitory provision Justice Muñoz Palma withholds her assent to any sweeping statement that the same in effect validated, in the constitutional sense, all "such proclamations, decrees, instructions, and acts promulgated, issued, or done by the incumbent President." All that she concedes is that the transitory provision merely gives them "the imprimatur of a law but not of a constitutional mandate," and as such therefore "are subject to judicial review when proper under the Constitution.

Finally, the political-or-justiciable question controversy indeed, any inquiry by this Court in the present cases into the constitutional sufficiency of the factual bases for the proclamation of martial law — has become moot and purposeless as a consequence of the general referendum of July 27-28, 1973. The question propounded to the voters was: "Under the (1973) Constitution, the President, if he so desires, can continue in office beyond 1973. Do you want President Marcos to continue beyond 1973 and finish the reforms he initiated under Martial Law?" The overwhelming majority of those who cast their ballots, including citizens between 15 and 18 years, voted affirmatively on the proposal. The question was thereby removed from the area of presidential power under the Constitution and transferred to the seat of sovereignty itself. Whatever may be the nature of the exercise of that power by the President in the beginning — whether or not purely political and therefore non-justiciable — this Court is precluded from applying its judicial yardstick to the act of the sovereign.

2. With respect to the petitioners who have been released from detention but have not withdrawn their petitions because they are still subject to certain restrictions, 5 the ruling of the Court is that the petitions should be dismissed. The power to detain persons even without charges for acts related to the situation which justifies the proclamation of martial law, such as the existence of a state of rebellion, necessarily implies the power (subject, in the opinion of the Justices who consider Lansang applicable, to the same test of arbitrariness laid down therein), to impose upon the released detainees

10

conditions or restrictions which are germane to and necessary to carry out the purposes of the proclamation. Justice Fernando, however, "is for easing the restrictions on the right to travel of petitioner Rodrigo" and others similarly situated and so to this extent dissents from the ruling of the majority; while Justice Teehankee believes that those restrictions do not constitute deprivation of physical liberty within the meaning of the constitutional provision on the privilege of the writ of habeas corpus.

It need only be added that, to my mind, implicit in a state of martial law is the suspension of the said privilege with respect to persons arrested or detained for acts related to the basic objective of the proclamation, which is to suppress invasion, insurrection, or rebellion, or to safeguard public safety against imminent danger thereof. The preservation of society and national survival take precedence. On this particular point, that is, that the proclamation of martial law automatically suspends the privilege of the writ as to the persons referred to, the Court is practically unanimous. Justice Fernando, however, says that to him that is still an open question; and Justice Muñoz Palma qualifiedly dissents from the majority in her separate opinion, but for the reasons she discusses therein votes for the dismissal of the petitions.

IN VIEW OF ALL THE FOREGOING AND FOR THE REASONS STATED BY THE MEMBERS OF THE COURT IN THEIR SEPARATE OPINIONS, JUDGMENT IS HEREBY RENDERED DISMISSING ALL THE PETITIONS, EXCEPT THOSE WHICH HAVE BEEN PREVIOUSLY WITHDRAWN BY THE RESPECTIVE PETITIONERS WITH THE APPROVAL OF THIS COURT, AS HEREINABOVE MENTIONED. NO COSTS.

Makasiar, Esguerra, Fernandez, Muñoz Palma and Aquino, JJ., concur.

Prefatory Note

(written on September 12, 1974)

My separate opinion below in the nine cases at bar was handed to Chief Justice Querube C. Makalintal on Monday, September 9, 1974, for promulgation (together with the individual opinions of the Chief Justice and the other Justices) on September 12 (today) as agreed upon by the Court.

On September 11 the petitioner Jose W. Diokno was released from military custody. The implications of this supervening event were lengthily discussed by the Court in its deliberations in the afternoon. Eleven members thereafter voted to dismiss Diokno's petition as being "moot and academic;" I cast the lone dissenting vote. Although perhaps in the strictest technical sense that accords with conventional legal wisdom, the petition has become "moot" because Diokno has been freed from physical confinement, I am nonetheless persuaded that the grave issues of law he has posed and the highly insulting and derogatory imputations made by him against the Court and its members constitute an inescapable residue of questions of transcendental dimension to the entire nation and its destiny and to the future of the Court — questions that cannot and should not be allowed to remain unresolved and unanswered.

I have thus not found it needful nor even advisable to recast my separate opinion or change a word of it.

I invite the reader to assess my 38-page separate opinion which immediately follows, in the light of the foregoing context and factual setting.

FRED RUIZ CASTRO Associate Justice.

SEPARATE OPINION (written before Sept. 9, 1974) L-35539, L-35546, L-35538, L-35540, L-35567, L-35556, L-35571, L-35573, and L-35547

11

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. L-117376 December 8, 1994

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF OSCAR DE GUZMAN, CHAIRMAN SEDFREY A. ORDOÑEZ, DIRECTOR EMMANUEL C. NERI AND THE COMMISSION ON HUMAN RIGHTS, petitioners, vs.DIRECTOR VICENTE VINARAO, BUREAU OF CORRECTIONS, respondent.

 

ROMERO, J.:

This is an original petition for habeas corpus filed directly before this Court in behalf of Oscar de Guzman y Enriquez, who was tried and convicted by the Regional Trial Court of San Jose City — Branch 39 in G.R. No. 76742, "People of the Philippines v. Oscar de Guzman y Enriquez," 188 SCRA 407, for violation of the Dangerous Drugs Act of 1972, alleging in particular the fact that de Guzman wilfully and unlawfully sold two (2) sticks of marijuana.

Upon review by this Court, the trial court's decision sentencing de Guzman to suffer the penalty of life imprisonment plus payment of P20,000 fine and costs was affirmed in toto and the appeal was dismissed with costs against accused-appellant.

Under the provisions of Section 20, Republic Act No. 6425 as last amended by R.A. 7659, which became effective on December 31, 1993, and as interpreted by this Court in the case of People v. Simon, 1 if the quantity of the marijuana involved is less than 250 grams, the imposable penalty, in the

event that the conviction should be affirmed, shall be within the range of prision correccional (from six (6) months and one (1) day to six (6) years). Clearly, de Guzman is entitled to benefit from the reduction of penalty introduced by the new law.

Petitioners allege that since de Guzman has been serving sentence since July 1984 or for more than ten (10) years now, his continued detention in the National Penitentiary is a violation of his basic human rights and that, therefore, he should be released from prison without further delay. In aid of judicial administration, petitioners further recommend that all prisoners similarly situated be likewise released from prison.

The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty upon a verified petition setting forth:

1. that the person in whose behalf the application is made is imprisoned or restrained of his liberty;

2. the officer or name of the person by whom he is so imprisoned or restrained;

3. the place where he is imprisoned or restrained of his liberty; and

4. a copy of the commitment or cause of detention of such person (Section 3, Rule 102, Revised Rules of Court).

It appearing that all the above requirements have been met and finding merit in the petition, the same is hereby GRANTED. Let a writ of habeas corpus issue immediately.

The Director, New Bilibid Prisons, is commanded to forthwith execute the writ for de Guzman's discharge from confinement unless he is being detained for some other lawful cause, to make due return of the writ, and to submit a complete inventory of all other prisoners therein similarly situated within thirty days, to relieve them from further confinement. With costs de oficio.

12

SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

Feliciano, J., is on leave.

13

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

 

G.R. No. 97906 May 21, 1992

REPUBLIC OF THE PHILIPPINES, petitioner, vs.COURT OF APPEALS and MAXIMO WONG, respondents.

Public Attorney's Office for private respondent.

 

REGALADO, J.:

Petitioner seeks to set aside the judgment of respondent Court of Appeals 1 in affirmance of the decision of the court a quo 2 granting the petition filed by herein private respondent Maximo Wong for the change of his name to Maximo Alcala, Jr. which was his name prior to his adoption by Hoong Wong and Concepcion Ty Wong.

The facts are undisputed. Private respondent Maximo Wong is the legitimate son of Maximo Alcala, Sr. and Segundina Y. Alcala. When he was but two and a half years old and then known as Maximo Alcala, Jr., and his sister Margaret Alcala, was then nine years old, they were, with the consent of their natural parents 3 and by order of the court in Special Case No. 593 4 issued on September 9, 1967, adopted by spouses Hoong Wong and Concepcion Ty Wong, both naturalized Filipinos. Hoong Wong, now deceased, was an insurance agent while Concepcion Ty Wong was a high school teacher. They decided to adopt the children as they remained childless after fifteen years of marriage. The couples showered their adopted children with parental love and reared them as their own children.

Upon reaching the age of twenty-two, herein private respondent, by then married and a junior Engineering student at Notre Dame University, Cotabato City, filed a petition to change his name to Maximo Alcala, Jr. It was averred that his use of the surname Wong embarrassed and isolated him from his relatives and friends, as the same suggests a Chinese ancestry when in truth and in fact he is a Muslim Filipino residing in a Muslim community, and he wants to erase any implication whatsoever of alien nationality; that he is being ridiculed for carrying a Chinese surname, thus hampering his business and social life; and that his adoptive mother does not oppose his desire to revert to his former surname.

As earlier stated, on July 2, 1986, the matter was resolved in favor of private respondent, the trial court decreeing that, the jurisdictional requirements having been fully complied with, petitioner's prayer to change his name from Maximo Wong to Maximo Alcala, Jr. was granted. 5 On appeal to respondent court, and over the opposition of petitioner Republic through the Solicitor General, the decision of the court below was affirmed in full, hence, this petition for review on certiorari.

The lone issue to be settled is whether or not the reasons given by private respondent in his petition for change of name are valid, sufficient and proper to warrant the granting of said petition.

The Solicitor General contends that private respondent's allegations of ridicule and/or isolation from family and friends were unsubstantiated and cannot justify the petition for change of name. He claims that for private respondent to cast aside the name of his adoptive father is crass ingratitude to the memory of the latter and to his adoptive mother who is still alive, despite her consent to the petition for change of name. Further, the Solicitor General posits that the reversion of Maximo Wong to his old name violates Articles 341 and 365 of the Civil Code, which requires an adopted child to use the surname of the adopter, and would identify him with his parents by nature, thus giving the impression that he has severed his relationship with his adoptive parents. 6

In refutation, private respondent argues that he did as the law required, that is, upon adoption he used the surname of the adopter. However, being already emancipated, he can now decide what is best for and by himself. It is at this time that he realized that the Chinese name he carries causes him

14

undue ridicule and embarrassment and affects his business and social life. In fact, his adoptive mother, being aware of his predicament, gave her consent to the petition for change of name, albeit making it clear that the same shall in no way affect the legal adoption, and even underwent the rigors of trial to substantiate her sworn statement. If his adoptive mother does not take offense nor feel any resentment, abhorrence or insecurity about his desire to change his name, private respondent avers that there can be no possible prejudice on her, much less the State. 7

We feel that we should preface our review of this case with a clear comprehension of the legal significance of a person's name. For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which be lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, of in speaking of or dealing with him. 8 Names are used merely as one method of indicating the identity of persons; they are descriptive of persons for identification, since, the identity is the essential thing and it has frequently been held that, when identity is certain, a variance in, or misspelling of, the name is immaterial. 9

The names of individuals usually have two parts: the given name or proper name, and the surname or family name. The given or proper name is that which is given to the individual at birth or baptism, to distinguish him from other individuals. The name or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child; but the surname to which the child is entitled is fixed by law. 10

A name is said to have the following characteristics: (1) It is absolute, intended to protect the individual from being confused with others. (2) It is obligatory in certain respects, for nobody can be without a name. (3) It is fixed, unchangeable, or immutable, at least at the start, and may be changed only for good cause and by judicial proceedings. (4) It is outside the commerce of man, and, therefore, inalienable and intransmissible by act inter vivos or mortis causa. (5) It is imprescriptible. 11

Title XIII, Book I of the Civil Code, in Articles 364 to 380, provides the substantive rules which regulate the use of surnames. Considering the subject

and personalities involved in this present review, particular attention must be called to Article 365 which mandates that "(a)n adopted child shall bear the surname of the adopter," in correlation with Article 341 on the effects of adoption, among which is to"(e)ntitle the adopted person to use the adopter's surname." This same entitlement of an adopted child is maintained in Article 39(3), Title II of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code. More recently, Executive Order No. 209, as amended by Executive Order No. 227, or the Family Code, echoes the same statutory right of an adopted child to use the surname of the adopter. 12 Clearly, from the very wordings of the law, it may be inferred that this use of the surname of the adopter by the adopted child is both an obligation and a right.

Under Article 376 by the Civil Code, "(n)o person can change his name or surname without judicial authority." The application for change of name thereunder involves a special proceeding governed by and conducted under the strictures of Rule 103 of the Rules of Court and one which involves substantial changes, with the declared objective of such judicial proceedings being the prevention of fraud. The purpose of the statutory procedure authorizing a change of personal name is simply to have, wherever possible, a record of the change, and in keeping with the object of the statute, court to which application is made should normally make its decree recording such change of name. 13

A change of name is a special proceeding to establish the status of a person involving his relation with others, that is, his legal position in, or with regard to, the rest of the community. It is a proceeding in rem 14 and, as such, strict compliance with all jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction thereover. 15 For this purpose, the only name that may be changed is the true or official name recorded in the civil register. 16

To digress a little for purposes of clarification, the change of name contemplated under Article 376 and reglementarily implemented by Rule 103 must not be confused with and cannot be effected through the summary proceeding proposed in Article 412 of the some Code, as procedurally regulated by Rule 108 of the Rules, which refers only to correction of clerical errors, such as those which are visible to the eye or obvious to the understanding, or an error made by a clerk or transcriber, or a mistake in

15

copying or writing, or some harmless or innocuous change, 17 and not those which will involve substantial changes. 18

Turning now to the case at bar, we are guided by the jurisprudential dictum that the State has an interest in the names borne by individuals and entities for the purpose of identification, and a change of name is not a matter of right but of sound judicial discretion, to be exercised in the light of reasons adduced and the consequences that will likely follow; 19 it is a privilege which may be granted only upon a showing of a proper or reasonable cause or compelling reason therefor. 20

We find unacceptable the assertion of the Solicitor General that private respondent's allegation of ridicule and embarrassment due to the use of his present surname is unsubstantiated.

The testimony of private respondent in the lower court bears out the existence of valid cause in his bid for change of name:

ATTY. DUMAMBA:

Q Now, after adoption, when you went to school, what did you use as your surname?

A "Wong," sir.

Q Now, after you adopted the surname "Wong?" in your studies, what did you observe?

A I observed that "Wong" as a surname embarrassed me to my friends and when I go with Chinese friends I cannot talk Chinese. I am living in Campo Muslim, a Muslim community but no one can believe that I am Muslim. I have a little business of Furniture but I have little (sic) customer because no one believes me that I am Muslim.

Q You want to inform this Honorable Court that this family name you are using which is "Wong" embarrassed you from (sic) your friends and relatives and also cause(d) damage to your business?

A Yes sir.

xxx xxx xxx

ATTY. DUMAMBA:

Q Now, considering that according to you, you are embarrassed because of the family name you are using, your friends shy away from you and it is a handicap in your business, what is your desire for the Court to do in order to help you?

A Change my family name.

Q From "Wong" to what do you want your surname changed?

A "Alcala, Jr.", sir.

xxx xxx xxx

COURT:

Q What is your purpose in changing your family name from Maximo Wong to Maximo Alcala, Jr.?

A I feel embarrassed to my friends and also to my relatives and as I said I have a little business of furniture and only a few customers buying for the fact that they don't believe I am Muslim.

16

Cross.ATTY. SERO:

With the permission of the Honorable Court.

Q Your father's name is Maximo Alcala, Sr., is he still alive?

A Yes, sir.

Q And what does your father say to this proposed changed (sic) of your name, your family name to your real family name given to you?

A Yes, sir.

Q They have no objection to it?

A No, sir.

Q Stated before this Honorable Court, the purpose why you wanted to change your name from "Wong" to "Alcala" is so that to avoid embarrassment because you are a Muslim and your Muslim relatives think that you are Chinese.

A Yes, sir.

Q Not for the purpose to hide anything or what not?

A No, sir. 21

The foregoing testimony of private respondent is materially corroborated by the testimony of private respondent's adoptive mother:

Q Now, what did you observe to (sic) your son Maximo Wong after you and your husband adopted him?

A When I adopted him and he used the surname "Wong" I observed that some of his relatives, cousins and friends seem to shy away from him and despise him in school that is why I agreed to change his name. 22

We uphold these observations in the decision of respondent appellate court:

The purpose of the law an allowing of change of name as contemplated by the provisions of Rule 103 of the Rules of Court is to give a person an opportunity to improve his personality and to provide his best interest. (Calderon vs. Republic, 19 SCRA 721). In granting or denying the petition for change of name, the question of proper and reasonable cause is left to the discretion of the court. The evidence presented need only be satisfactory to the court and not all the best evidence available is required. (Uy vs. Republic, L-22712, Nov. 25, 1965; Nacionales vs. Republic, L-18067, April 29, 1966; both cases cited in 1 SCRA 843). In the present case, We believe that the court a quo had exercised its discretion judiciously when it granted the petition.

From the testimony of petitioner-appellee and of his adopter mother Concepcion Ty-Wong, We discern that said appellee was prompted to file the petition for change of name because of the embarrassment and ridicule his family name "Wong" brings in his dealings with his relatives and friends, he being a Muslim Filipino and living in a Muslim community. Another cause is his desire to improve his social and business life. It has been held that in the absence of prejudice to the state or any individual, a sincere desire to adopt a Filipino name to erase signs of a former alien nationality which only hamper(s) social and business life, is a proper and reasonable cause for change of name (Uy vs. Republic, L-22712, Nov. 25, 1965, Que Liong Sian vs. Republic, L-

17

23167, Aug. 17, 1967, 20 SCRA 1074). Justice dictates that a person should be allowed to improve his social standing as long as in doing so, he does not cause prejudice or injury to the interest of the State or other persons (Calderon vs. Republic, supra). Nothing whatsoever is shown in the record of this case that such prejudice or injury to the interest of the state or of other persons would result in the change of petitioner's name. 23

It bears stressing at this point that to justify a request for change of name, petitioner must show not only some proper or compelling reason therefor but also that he will be prejudiced by the use of his true and official name. 24 Among the grounds for change of name which have been held valid are: (a) When the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) When the change results as a legal consequence, as in legitimation; (c) When the change will avoid confusion; 25 (d) Having continuously used and been known since childhood by a Filipino name, unaware of her alien parentage; 26 (e) A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; 27 and (f) When the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest. 28

In granting or denying petitions for change of name, the question of proper and reasonable cause is left to the sound discretion of the court. The evidence presented need only be satisfactory to the court and not all the best evidence available. 29 Summarizing, in special proceedings for change of name, what is involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in support thereof, mindful of the consequent results in the event of its grant and with the sole prerogative for making such determination being lodged in the courts.

While it is true that the statutory fiat under Article 365 of the Civil Code is to the effect that an adopted child shall bear the surname of the adopter, it must nevertheless be borne in mind that the change of the surname of the adopted child is more an incident rather than the object of adoption proceedings. 30 The act of adoption fixes a status, viz., that of parent and child. More technically, it is an act by which relations of paternity and affiliation are recognized as legally existing between persons not so related by nature. It has

been defined as the taking into one's family of the child of another as son or daughter and heir and conferring on it a title to the rights and privileges of such. The purpose of an adoption proceeding is to effect this new status of relationship between the child and its adoptive parents, the change of name which frequently accompanies adoption being more an incident than the object of the proceeding. 31 The welfare of the child is the primary consideration in the determination of an application for adoption. On this point, there is unanimous agreement. 32

It is the usual effect of a decree of adoption to transfer from the natural parents to the adoptive parents the custody of the child's person, the duty of obedience owing by the child, and all other legal consequences and incidents of the natural relation, in the same manner as if the child had been born of such adoptive parents in lawful wedlock, subject, however, to such limitations and restrictions as may be by statute imposed. 33 More specifically under the present state of our law, the Family Code, superseding the pertinent provisions of the Civil Code and of the Child and Youth Welfare Code on the matter, 34 relevantly provides in this wise with regard to the issue involved in this case:

Art. 189. Adoption shall have the following effects:

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

xxx xxx xxx

The Solicitor General maintains the position that to sustain the change of name would run counter to the behest of Article 365 of the Civil Code and the ruling in Manuel vs. Republic 35 that "one should not be allowed to use a surname which otherwise he is not permitted to employ under the law," and would set a bad example to other persons who might also seek a change of their surnames on lame excuses. 36

While we appreciate the Solicitor General's apprehensions and concern, we find the same to be unfounded. We do not believe that by reverting to his old

18

name, private respondent would then be using a name which he is prohibited by law from using. True, the law prescribes the surname that a person may employ; but the law does not go so far as to unqualifiedly prohibit the use of any other surname, and only subjects such recourse to the obtention of the requisite judicial sanction. What the law does not prohibit, it permits.

If we were to follow the argument of the Solicitor General to its conclusion, then there will never be any possibility or occasion for any person, regardless of status, to change his name, in view of the supposed subsequent violation of the legal imperative on the use of surnames in the event that the petition is granted. Rule 103 of the Rules of Court would then be rendered inutile. This could hardly have been the intendment of the law.

A petition for change of name is a remedy allowed under our law only by way of exception to the mandatory provisions of the Civil Code on the use of surnames. The law fixes the surname that may be used by a person, at least inceptively, and it may be changed only upon judicial permission granted in the exercise of sound discretion. Section 1 of Rule 103, in specifying the parties who may avail of said remedy, uses the generic term "persons" to signify all natural persons regardless of status. If a legitimate person may, under certain judicially accepted exceptional circumstances, petition the court for a change of name, we do not see any legal basis or logic in discriminating against the availment of such a remedy by an adopted child. In other words, Article 365 is not an exception, much less can it bar resort, to Rule 103.

We are of the view that the circumstances herein obtaining are within the ambit of the established exceptions and find merit in private respondent's submission:

Rule 103 of the Rules of Court has its primordial purpose which (State) is to give a person in opportunity to improve his personality and provide his best interest (Calderon vs. Republic, 19 SCRA 721). In the instant case, the court a quo found the petition of Maximo Wong for change of name justifiable after due hearing, thus its factual findings and appreciation of testimonies count heavily and need not be disturbed unless for strong and cogent reasons because the trial court is in a better position to examine real evidence as well as to observe the demeanor of the witnesses while

testifying in the case (Baliwag Transit, Inc. vs. CA, 147 SCRA 82). Moreover, the trial court could take judicial notice of other existing factors in the community where herein respondent lives which it considers material in its judicious determination of the case. . . .

Additionally, herein respondent is already of age and as such he can decide what is best for him. His experience with regards (sic) his social and business dealings is personal and it is only him (sic) who can attest to the same. Finding his predicament's proper remedy is solely through legal process, herein respondent accordingly filed a petition pursuant to Rule 103 of the Rules of Court which was granted by the Court a quo. 37

Besides, we have faith in the circumspection of our lower courts and that, in the exercise of their discretion, said courts shall consider petitions for change of name only on cogent and meritorious grounds as would justify the granting of such applications. We do not expect our trial courts to cater or give in to the whim or caprice of an applicant, aside from the fact that there is always the safeguard and corrective interdiction of appellate review.

It is not fair to construe the desired reversion of private respondent to the use of the name of his parents by nature as cross ingratitude. To go by the Solicitor General's suggestion that private respondent should have his adoption revoked if he wants to use the surname of his natural father would be to exact too clear a toll for making use of an appropriate and valid remedy available under the law.

Herein private respondent, before he filed the petition for change of name, asked for his adoptive mother's permission to do so:

Q Now, in filing this petition for change of surname, you had talked with your adopted mother?

A Yes, sir.

19

Q Did you ask permission from her whether she wants you to change the surname?

A Yes, sir. 38

True enough, the above testimony of private respondent was confirmed by his adoptive mother in this manner:

Q How are you related to Maximo Wong?

A My adopted son.

Q He is your adopted son, did your son talk to you when he filed this petition for change of his surname?

A Yes, he even tried to ask me and I said, alright if you want to change.

xxx xxx xxx

Q Now, when you agreed to the filing of this petition for change of name, did you reduce your consent in writing?

A Yes, sir, I agreed also so that his business will prosper because he is already Alcila and not Wong because Wong they said is Chinese. 39

As proof of her assent to the filing of said petition (her husband having already passed away), Concepcion Ty Vda. de Wong executed an affidavit in Cotabato City on May 27, 1985, with these textual declarations:

That I am the same and identical person, who is the surviving adapted (sic) parent of Maximo Wong.

That I personally discovered it myself from the time my adapted (sic) son Maximo used the surname of my late

husband Wong, his relatives and childhood friends shy away from him because he is branded as a son of a chinese which is different from them whose parents are muslim Filipinos;

That I pity my son who is often rediculed (sic) by his friends and relatives because of his family name Wong, hence, in order not to humper (sic) his social and business life in the future, I am voluntarily and of my own free will without being forced, coerced, or intimidated give (sic) my consent to his desire to change his desire to change his surname without affecting however the legal adoption granted by the Court on September 9, 1967, making him as one of my legal and compulsory heir (sic).

That I am executing this affidavit to attest to the truth of all the above mentioned facts and for all legal intent (sic) and purposes. 40

There could be no other plausible reason for private respondent to first secure has adoptive mother's consent before resorting to the questioned legal recourse other than the parental respect and reverence which is owed by and to be expected of a dutiful child. If private respondent was such an ingrate, as the Solicitor General would have us believe, he would not have bothered to seek his adoptive mother's counsel. In the same breath, had his adoptive mother regarded him as an ungrateful adoptee, she would not have executed the affidavit above quoted, much less testify in his behalf at the hearing of his petition.

Moreover, worthy of note is the fact that private respondent's adoptive mother emphasized that she executed the above affidavit "without affecting the legal adoption granted by the Court on September 9, 1967, making him as one of my legal and compulsory heir(s)." This is incontrovertible proof that she never entertained any misgivings or reservations with respect to her consent to his petition. This likewise dispels any possible confusion as to private respondent's legal status or adoptive paternity and his successional rights. Concordantly, we have heretofore held that a change of name does not define or effect a change in one's existing family relations or in the rights and duties flowing therefrom. It does not alter one's legal capacity, civil status or citizenship; what is altered is only the name. 41

20

WHEREFORE, the petition is DENIED and the decision of respondent Court of Appeals is hereby AFFIRMED in toto.

SO ORDERED.

Narvasa, C.J., Paras, Padilla and Nocon, JJ., concur.

 

 

21

THIRD DIVISION

[G.R. No. 140823. October 3, 2000]

JUDGE MELVYN U. CALVAN, in his capacity as Presiding Judge, Municipal Trial Court, Branch 127, THE PROVINCIAL WARDEN of the Provincial Jail of Ilocos Norte, petitioners, vs. THE HONORABLE COURT OF APPEALS and MAYOR REYNOLAN T. SALES, respondents.

R E S O L U T I O N

VITUG, J.:

For resolution is the motion for reconsideration filed by the Office of the Solicitor General (for petitioners Judge Calvan, the Provincial Warden of Ilocos Norte and the People of the Philippines) seeking the nullification of the Court's resolution, dated 05 July 2000, that has denied the petition for review of the decision, dated 18 November 1999, of the Court of Appeals in CA-G.R. SP No. 54416, on a Petition for Habeas Corpus. Petitioners-movants claim that the petition which respondent Sales filed is a petition for habeas corpus which should then be confined to an inquiry on the validity of a person's detention at the time of the filing of the petition, and that the Court of Appeals has thus erred in ruling on the legality of the order and warrant of arrest which can only be a proper subject of a petition for certiorari, not a petition for habeas corpus.

The factual antecedents -

On 02 August 1999, at about 11:30 a.m., in a shootout at a sitio in Pagudpud, Ilocos Norte, Reynolan T. Sales, incumbent town mayor of Pagudpud, fatally shot former Mayor Rafael Benemerito. After the incident, Sales surrendered his handgun, placed himself under the custody of the Municipal Police and thereupon asked to be brought to the Provincial PNP headquarters in Laoag City.

The next day, 03 August, Police Chief Inspector Crispin Aguno and Thelma Benemerito, wife of the victim, lodged a criminal complaint for murder against Mayor Reynolan Sales at the Municipal Circuit Trial Court (MCTC)

of Adams-Baagui-Dumalueg-Pagudpud, Branch 127, there docketed Criminal Case No. 9448-P, entitled "People of the Philippines vs. Mayor Reynolan T. Sales." Judge Melvyn U. Calvan, the Presiding Judge forthwith conducted a "preliminary examination" of the witnesses and issued the assailed order and warrant of arrest against the accused "with NO BAIL." Mayor Sales was transferred, on 04 August 1999, from the Provincial PNP headquarters to the Provincial Jail where he had since been detained under the custody of the Provincial Warden of the Ilocos Norte Provincial Jail. On 05 August 1999, Judge Melvyn Calvan, after conducting a "preliminary examination in accordance with Section 6(b) of Rule 112 of the 1989 Rules in Criminal Procedure," issued a two-page resolution forwarding the records of the case to the Office of the Provincial Prosecutor "for appropriate action." On 10 August 1999, Sales was notified by the Provincial Prosecutor to submit his counter-affidavit and defense evidence.

Contending that his right to due process was violated by the cavalier and perfunctory manner by which Judge Calvan suddenly terminated and concluded the preliminary investigation, without even allowing him to submit counter affidavit and present his witnesses, Mayor Sales filed a Petition For Habeas Corpus and Certiorari (CA-G.R. SP No. 54416) before the Court of Appeals. He questioned his detention on the thesis that the Order and Warrant of Arrest were improvidently and illegally issued by Judge Calvan, the latter being a relative of complainant Thelma Benemerito within the third civil degree of affinity and, therefore, disqualified from conducting the preliminary investigation.

On 30 August 1999, the Court of Appeals dismissed the petition. On 19 September 1999 and while his motion for reconsideration was still pending, respondent Mayor Sales withdrew the petition for certiorari, leaving the petition for habeas corpus to be the only remaining petition. The Office of the Solicitor General was required to comment, and a hearing was conducted by the Court of Appeals on the habeas corpus on 05 October 1999. Oral argument preceded the filing of the respective memoranda of the parties.

On 18 November 1999, the appellate court granted the petition for habeas corpus and ordered the release of private respondent Mayor Sales, viz:

22

"WHEREFORE, the petition is GRANTED. The Court hereby orders the release from detention of petitioner Reynolan T. Sales, subject to the outcome of the proper preliminary investigation."i[1]

A petition for review was filed with this Court by the Office of the Solicitor General seeking a review of the decision of the Court of Appeals. The Court denied the petition in its resolution of 05 July 2000. In its instant motion for reconsideration the Office of the Solicitor General would insist that the appellate court resolved the issues beyond the basic precepts of procedure on the theory that the determination on the legality of the order and warrant of arrest could not be resolved in a petition for habeas corpus, the issue being appropriate only for consideration in a petition for certiorari.

The Court of Appeals, in granting the petition for habeas corpus and in ordering the release of Mayor Sales, ratiocinated that -

"Section 1, Rule 137 of the Rules of Court disqualifies a judge from sitting in a case in which he is related to either party within the sixth degree of consanguinity or affinity. This disqualification is mandatory, unlike an inhibition which is discretionary. It extends to all proceedings, not just to trial as erroneously contended by respondent Judge. Even Canon 3.12 of the Code of Judicial Conduct mandates that a judge shall take no part in a proceeding where the judge's impartiality might reasonably be questioned, as when he is `related by consanguinity or affinity to a party litigant within the sixth degree.' Due process likewise requires a hearing before an impartial and disinterested tribunal, so that no judge shall preside in a case in which he is not wholly free, disinterested, impartial and independent. (Gutierrez vs. Santos, 2 SCRA 249, 254 [1961].)

"In Geotina vs. Gonzales, (41 SCRA 66 [1971]) the judge who was admittedly related within the sixth civil degree of affinity to the private complainant ordered the arrest of the petitioner. The Supreme Court held:

"`We therefore hold that the respondent judge is without authority to preside over the criminal case in question. Section 1, in commanding him to withdraw from the case herein involved, necessarily divests him of all authority to act in any judicial capacity in connection therewith. We further hold that where the disqualifying fact is indubitable and the parties to the case make no waiver of such disqualification as in the case at bar, sec. 1

forthwith completely strips the judge of authority to proceed. All his acts in the premises are without authority of law.' (Emphasis supplied.)

"The High Court also stated that where the judge decides in favor of his own competency, proceeds to try a case and renders a verdict from which there is no appeal nor plain, speedy, adequate remedy in the ordinary course of law, resort to the extraordinary remedies, of which habeas corpus can be cited as one, constitutes the only means available for review by a superior court.

"In the case at bench, the order and warrant of arrest issued by respondent Judge by virtue of which the petitioner is detained offers no speedy, adequate remedy or appeal in the ordinary course of law. Habeas corpus is the only remedy to release him from the effects of the illegal order or one issued without any legal authority, to use the language of Geotina vs. Gonzales."ii[2]

The Solicitor General now contends, however, that the writ of habeas corpus is simply a writ of inquiry, tasking the person who keeps a detainee in custody to explain or justify the detention, conformably with Sections 1, 3 and 6, Rule 102, of the Rules of Court.

"SECTION 1. To what habeas corpus extends. - Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.

"x x x x x x x x x

"SEC. 3. Requisites of application therefor. - Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth:

"(a) That the person in whose behalf the application is made is imprisoned or restrained of his liberty;

23

"(b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended;

"(c) The place where he is so imprisoned or restrained, if known;

"(d) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear.

"x x x x x x x x x

"SEC. 6. To whom writ directed, and what to require. - In case of imprisonment or restraint by an officer, the writ shall be directed to him, and shall command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to an officer, and shall command him to take and have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint."

The writ, the Solicitor General submits, should then be addressed, not to the judge or person who issued the warrant of arrest, but to the officer or anyone who actually detains the person in whose behalf the application is made. Since the petition for habeas corpus concedes that Mayor Sales is in the custody of the Provincial Warden of Laoag City, the latter, not petitioner Judge, should be the proper party respondent.

The proceedings before the Court of Appeals being confined to the habeas corpus case, the petition should ordinarily be addressed to the person under whom Mayor Sales is in detention or in alleged illegal custodyiii[3] who would thereby be in a position to produce at the hearing the body of the person in whose behalf the petition is made,iv[4] consistently with the import of Section 6, Rule 102, of the Rules. Judge Calvan, it might here be pointed

out, however, has constructive custody over respondent for having issued the order and warrant for his arrest.

The petition filed before the Court of Appeals was originally one for habeas corpus and certiorari. The writ of certiorari was intended to assail the Order and Warrant of Arrest issued by Judge Melvyn Calvan while the writ of habeas corpus was sought to relieve Mayor Sales from detention predicating the application on the alleged illegal Order and Warrant of Arrest issued by Judge Calvan by reason of his disqualification. Indeed, a writ of habeas corpus could be so employed as a remedy ancillary to a proceeding in certiorari for purposes of review.v[5] Later, however, respondent Mayor withdrew the petition for certiorari but not the petition for habeas corpus leaving the latter to sail alone. The withdrawal must not be deemed to affect adversely the jurisdiction of the appellate court, already acquired, to resolve all the issues theretofore brought before it. Procedural precepts, it must again be stressed, are aids, not obstacles, in the achievement of substantial justice.

Judge Calvan concededly is related to the complainant, Thelma Benemerito, within the third civil degree of affinity (his wife Susan Benemerito-Calvan being the niece of the deceased).

Rule 137, Section 1 provides:

"SECTION 1. Disqualification of judges. - No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.

"A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above."

The proscription against the judge from proceeding with the case is predicated on the principle that no judge should preside in a case in which he

24

may not be wholly free, disinterested, impartial and independent.vi[6] In Geotina vs. Gonzales,vii[7] this Court has said that where the disqualifying fact is indubitable and the parties to the case make no waiver of such disqualification, the Rules forthwith strips the judge of any authority to proceed.

The inquiry on a writ of habeas corpus is addressed, not to errors committed by a court within its jurisdiction, but to the question of whether the proceeding or judgment under which the person has been restrained is a complete nullity. The probe may thus proceed to check on the power and authority, itself an equivalent test of jurisdiction, of the court or the judge to render the order that so serves as the basis of imprisonment or detention. Keeping in mind the limitation that in habeas corpus the concern is not merely whether an error has been committed in ordering or holding the petitioner in custody, but whether such error is sufficient to render void the judgment, order, or process, an inquiry into the validity of the proceedings or processviii[8]can be crucial in safeguarding the constitutional right of a potential accused against an obvious and clear misjudgment. The intrinsic right of the State to prosecute and detain perceived transgressors of the law must be balanced with its duty to protect the innate value of individual liberty.

Quite evidently, the circumspection and objectivity required of the judge could not be assured in the case at bar. Stringent standard should be applied in order to avoid hasty and improvident issuance of a warrant for the arrest of an accused. The deprivation of liberty, regardless of its duration, is too invaluable a price even just to stake for any wrongful prosecution and unwarranted detention.

In Allado vs. Diokno,ix[9] the Court has cautioned:

"Clearly, probable cause may not be established simply by showing that a trial judge subjectively believes that he has good grounds for his action. Good faith is not enough. If subjective good faith alone were the test, the constitutional protection would be demeaned and the people would be `secure in their persons, houses, papers and effects' only in the fallible discretion of the judge. (Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed. 2d.142 [1964].) On the contrary, the probable cause test is an objective one, for in order that there be probable cause the facts and circumstances must be such as would warrant a belief by a reasonably discreet and prudent man that

the accused is guilty of the crime which has just been committed. (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d. 889 [1968].)x[10]

In this regard, the Court of Appeals has observed that -

"The preliminary examination conducted by respondent Judge does not accord with the prevailing rules. He did it under the old rules, where the preliminary investigation by a municipal judge had two stages: (1) the preliminary examination stage during which the investigating judge determines whether there is reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof, so that a warrant of arrest may be issued and the accused held for trial; and (2) the preliminary investigation proper where the complaint or information is read to the accused after his arrest and he is informed of the substance of the evidence adduced against him, after which he is allowed to present evidence in his favor if he so desires. Presidential Decree 911 (further amending Sec. 1, RA 5180, as amended by P.D. 77) upon which the present rule is based, removed the preliminary examination stage and integrated it into the preliminary investigation proper. Now, the proceedings consist of only one stage. (Sangguniang Bayan vs. Albano, 260 SCRA 566 [1996].)

"Respondent Judge did not conduct the requisite investigation prior to issuance of the arrest warrant. The Rules require an examination in writing under oath in the form of searching questions and answers. (Roberts, Jr. vs. CA, supra; Sec. 6 (b), Rule 112.) The statements of witnesses were not sworn before him but before the Provincial Prosecutor. The purported transcript of the stenographic notes do not bear the signature of the stenographer.

"Moreover, he did not complete the preliminary investigation. He claimed to have examined only the witnesses for the complainant. He issued a Resolution and forwarded the records to the Provincial Prosecutor without giving the accused (petitioner) an opportunity to submit counter-affidavits and supporting documents. (Sec. 3 (b), Rule 112.)

"While it is true that the usual remedy to an irregular preliminary investigation is to ask for a new preliminary investigation or a reinvestigation, such normal remedy would not be adequate to free petitioner from the warrant of arrest which stemmed from that irregular investigation. The Provincial Prosecutor has no power to recall the warrant of arrest."xi[11]

25

Habeas corpus, is a high prerogative writ,xii[12] which furnishes an extraordinary remedy and may not thus be invoked under normal circumstances but, as the Court of Appeals has so aptly explained, the illegal order and warrant of arrest issued by petitioner Judge subsists and private respondent is offered no speedy, adequate remedy or appeal in the ordinary course of law. The writ of habeas corpus, although not designed to interrupt the orderly administration of justice, can be invoked, in fine, by the attendance of a special circumstance that requires immediate action. Such a special circumstance is here present considering that respondent cannot resort to the remedy of a motion to quash, the case no longer being with petitioner judge, and neither could he ask for a reinvestigation because the preliminary investigation for purposes of filing the information has already been taken over by the Provincial Prosecutor. The latter, upon the other hand, does not have the authority to lift the warrant of arrest issued by the disqualified judge. Meantime, respondent is being held and detained under an illegal order and warrant of arrest which has no legal standing.

WHEREFORE, the motion for reconsideration is DENIED. This denial is final.

SO ORDERED.

Melo, (Chairman), Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.

26

i

ii

iii

iv

v

vi

vii

viii

ix

x

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-21180             March 31, 1967

IN THE MATTER OF THE CHANGE OF NAME OF ANTONINA B. OSHITA. ANTONINA B. OSHITA, petitioner-appellee, vs.REPUBLIC OF THE PHILIPPINES, oppositor-appellant.

Office of the Solicitor General for oppositor-appellant.L. C. Delante for petitioner-appellee.

ZALDIVAR, J.:

This is an appeal by the Solicitor General from the decision of the Court of First Instance of Davao granting the petition of appellee, Antonina B. Oshita, for a change of name.

On February 15, 1962, Antonina B. Oshita filed with the Court of First Instance of Davao a petition to have her name changed from "Antonina B. Oshita" to "Antonina Bartolome". The petition was signed by the petitioner herself and was "subscribed and sworn to" by her before the Deputy Clerk of Court. The requirements for the publication of the hearing of the petition were duly complied with. Asst. City Attorney Roque M. Barnes, acting in behalf of the Solicitor General, filed a motion to dismiss the petition upon the grounds (1) of lack of jurisdiction, in that although the petition was subscribed and sworn to by petitioner, it was not verified in accordance with the provisions of Section 6, Rule 15 of the Rules of Court; and (2) that the petition does not state a cause of action. The petitioner-appellee filed an opposition to the motion to dismiss. The lower court denied the motion to dismiss and set the case for hearing.

As found by the lower court, the evidence has established that appellee Antonina B. Oshita is the legitimate daughter of Kishimatsu Oshita, a Japanese citizen, now deceased, and Buena Bartolome, a Filipino; that she was born in the City of Davao on May 9, 1940 and has since then, up to the time of the bearing, resided in said city; that upon reaching the age of majority, appellee elected Philippine citizenship and took her oath of allegiance; that being already a Filipino citizen she desired to have her family name changed from "Oshita" to "Bartolome", the latter being the family name of her mother, and because she felt embarrassed when introduced as one bearing a Japanese surname; that her older brother and sister, who had earlier elected Philippine citizenship, have been using the surname "Bartolome"; and that she has no criminal record nor a pending tax liability.

The Assistant City Attorney of Davao City did not present any evidence in support of his opposition to the petition, but simply reiterated his motion to dismiss. On November 12, 1962, the trial court rendered a decision granting the petition. Hence this appeal by the Solicitor General.

In his appeal, the Solicitor General insists (1) that the lower court had no jurisdiction to take cognizance of the case because the petition was not verified as required by Section 2 of Rule 103 of the Rules of Court, and (2) that

no sufficient reason had been shown to justify the change of the surname of the appellee.

This appeal has no merit. It is admitted that the petition is not verified in the manner as prescribed in Section 6 of Rule 15 of the old Rules of Court (now Section 6 of Rule 7 of the new Rules of Court), because what appears is a simple jurat by the Deputy Clerk of Court that the petitioner had subscribed and sworn to, the petition, before him. While it is true that under Section 2, Rule 103, it is required that the petition for change of name be verified, nevertheless, no provision exists in the rules which declares that such a requirement regarding verification is jurisdictional. The requirement regarding verification of a pleading is simply intended to secure an assurance that what are alleged in the pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The requirement regarding verification of a pleading is simply a condition affecting the form of pleading,1the non-compliance of which does not necessarily render the pleading fatally defective. The court may order the correction of the pleading if the verification is lacking, or act on the pleading although it is not verified if the attending circumstances are such that the strict compliance with the rule may be dispensed with in order that the ends of justice or the law may thereby be served. This view finds support in the ruling laid down by this Court in several decisions.

In the case of The Philippine Bank of Commerce vs. Macadaeg, et al., L-14174, October 31, 1960, the petition for certiorari was attacked as fatally defective because it was not verified as required by the provision of Section 1 of Rule 67 of the Rules of Court (now Section 1, Rule 65 of the new Rules of Court). In resolving this question, this Court held:

First, respondents claim that the petition, not being verified, is fatally defective. We do not think so. It is true that Rule 67, sec. 1, of the Rules of Court, require that the petition for certiorari be verified, the apparent object thereof being to insure good faith in the averments of the petition. Where, however, the material facts alleged are a matter of record in the court below, consisting in pleadings filed or proceedings taken therein, and the questions raised are mainly of law, a verification as to the truth of said facts is not an absolute necessity and may be waived (42 Am. Jur., sec. 42, p. 177), as this Court has done in this case when we gave due course to the present petition. In fact, many authorities consider the absence of verification a mere formal, not jurisdictional, defect, the absence of which does not of itself justify a court in refusing to allow and act in the case (71 C.J.S., 744-745). (Emphasis supplied).

Likewise, in the case of Tavera vs. El Hogar Filipino, Inc., et al., 98 Phil. 481, this Court held that "lack of verification of a petition filed in a probate court for the sale of real property belonging to the estate of a minor is not a jurisdictional defect."2In a land registration case, notwithstanding the provision of Section 34, Act 496, which requires that opposition to an application for registration of land should be sworn to by oppositor, this Court held that an "unverified opposition is sufficient to confer standing in court to oppositors."3

In the light of the rulings laid down by this Court in the decisions afore-cited, it is clear that verification is not a jurisdictional, but a formal, requisite. While the petition now before Us was not verified, it was, however, subscribed and sworn to by the petitioner, and We believe that the lower court did not commit a reversible error when it denied the motion to dismiss the petition upon the ground of lack of jurisdiction. The jurisdiction of the court was not affected by the absence of the proper verification of the petition. It may be stated here, though, that the lower court should have required appellee to have her petition verified before setting the case for hearing, in order to have the petition conform with the rule.1äwphï1.ñët

The appellant also contends that no sufficient reasons had been shown to justify the grant by the lower court of the petition for a change of name. The appellant urges that under Article 364 of the Civil Code legitimate children shall principally use the surname of the father. This provision, however, is not absolute because under Article 264 of the same Code, it is provided that legitimate children have the right to bear the surname of the father and of the mother. Hence, if there is sufficient reason, the change of a child's surname from that of the father, to that of the mother, may be authorized by the court.

In the instant case, it has been shown that the petitioner-appellee is the legitimate daughter of Buena Bartolome and Hishimatsu Oshita; that upon reaching the age of majority she elected Philippine citizenship and took her oath of allegiance; that being already a Filipino citizen she desires to adopt a Filipino surname; that her older brother and sister who had also elected Philippine citizenship have been using the surname "Bartolome"; and that she desires to have the surname "Bartolome" instead of "Oshita", because she felt embarrassed when introduced as one bearing Japanese surname. The lower court further observed that "It cannot be denied that there had been ill feeling among the Filipinos against the Japanese due to the last Pacific war. Although normal relations between the Philippines and Japan have been established the ill feelings still persist among some Filipinos especially among the less educated who had unpleasant experience during the war." There is no showing that the appellee was motivated by any fraudulent purpose, or that the change of her surname will prejudice public interest. We believe that the lower court acted correctly when it considered these circumstances as reasons sufficient to justify the change of name as prayed for by the petitioner-appellee.

Moreover, the matter of whether to grant or deny a petition for a change of name is left to the sound discretion of the court. The following, ruling of this Court is relevant:

In granting or denying petitions for change of name, the question of "proper and reasonable cause" is left to the sound discretion of the court. The evidence presented need only be satisfactory to the Court and not all the best evidence available.

In the present case the trial court found to its satisfaction that petitioner was in earnest in his desire to do away with all traces of his former Chinese nationality and henceforth to be recognized as a Filipino. Such desire is in line with the policy of our naturalization law that applicants for naturalization should fully embrace Filipino customs and traditions and socially mingle with Filipinos.

x x x           x x x           x x x

It has not been shown that petitioner has any fraudulent intent in seeking a change of name. No criminal, civil, tax or any other, liability on his part, which he may avoid by the change of name, has been suggested. Nothing has been presented to show any prejudice to the Government or to any individual should the petition be granted. In the absence of prejudice to the State or any individual, a sincere desire to adopt a Filipino name to erase signs of a former alien nationality which unduly hamper social and business life, is a proper and reasonable cause for a change of name. It is not trivial, whimsical or capricious. (Uy vs. Republic. L-22712, November 29, 1965).

Wherefore, the decision appealed from is affirmed, without pronouncement as to costs. It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P., Sanchez and Castro, JJ., concur.Makalintal, J., took no part.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-20997             April 27, 1967

IN THE MATTER OF THE PETITION TO CHANGE NAME OF ONG HUAN TIN TO TERESITA TAN ONG. HUAN TIN, petitioner-appellant, vs.REPUBLIC OF THE PHILIPPINES, oppositor-appellee.

J. C. Yuseco for petitioner and appellant.Office of the Solicitor General for oppositor and appellee.

SANCHEZ, J.:

Petition to change the name of Ong Huan Tin to Teresita Tan (Special Proceeding 03521, Juvenile and Domestic Relations Court). Due publication was had. The petition was set for hearing. But, before the petition could be heard on the merits, the court, motu proprio, in its order of November 6, 1962 expressed the opinion "that an alien cannot avail himself of the provisions of our Rules of Court relating to change of name" and thereupon denied the petition. A move to reconsider was rejected in the court's order of November 24, 1962. Offshoot is the present appeal.

1. At issue is whether an alien may petition for a change of name. Primarily, this question hinges on the proper interpretation of the word person as it is employed in Rule 103 of the Rules of Court. This problem, by all means, is not new.

In a recent judicial test (In the Petition for the Change of Name of JOSELITO YU, G.R. L-20874, May 25, 1966)* We held that Philippine citizenship of the applicant is not a prerequisite for a petition to change name; and, that, accordingly, an alien may petition for a change of name. There, this Court, speaking through Mr. Justice Makalintal, declared:

Rule 103 does not say that only citizens of the Philippines may petition for a change of name. [Neither does Public Act No. 1386 of the Philippine Commission (enacted September 1, 1905) from which the Rule has been adopted.] Section 1 provides that "a person desiring to change his name shall present the petition to the Court of First Instance of the province in which he resides, or, in the City of Manila, to the Juvenile and Domestic Relations Court." Here the word "person" is a generic term which is not limited to Filipino citizens, but embraces all natural persons. The rule does not even require that the citizenship of the petitioner be stated in his petition. It is enough that the petition be verified, signed by the petitioner or some other person in his behalf, and set forth (a) that the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of filing; (b) the cause for which the change of name is sought; and (c) the name asked for (Section 2). The rule is clear and affords no room for interpretation. It sets forth all the requirements, and Filipino citizenship is not one of them.

The court a quo ruled that since the use of surnames is based on family rights, and since under Article 15 of the Civil Code laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines even though living abroad, the converse of the principle must be recognized, that is to say, the same matters in respect of are alien must be governed by the laws of his own country. The major premise of the proposition may be true in a general sense: one's surname is usually that by which not only one as an individual but one's family as well is known. Thus Title XIII of the Civil Code (Articles 364 to 373) contains provision for the use of surnames by legitimate, legitimated, illegitimate, and adopted children, as well as by women who are married, widowed or legally separated from their husbands. But a change of name as authorized under Rule 103 does not by itself define, or effect a change in, one's existing family relations, or in the rights and duties flowing therefrom; nor does it create new family rights and duties where none before were existing. It does not alter one's legal capacity, civil status or citizenship. What is altered is only the name, which in that word or combination of words by which a person is distinguished from others and which he bears as the label or appellation for the convenience of the world at large in addressing him, or in speaking of or dealing with him (38 Am. Jur. 595). The situation is no different whether the person whose name is changed be a citizen or an alien.

To be sure, there could be instances where the change applied for maybe open to objection by parties who already bear the surname desired by the applicant, not because he would thereby acquire certain family ties with them but because the existence of such ties might be erroneously impressed on the public mind. But this is precisely the purpose of the judicial application — to determine whether there is proper and reasonable cause for the change of name. As held by this Court are several cases, in which pertinently enough the petitioners were aliens, the change is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will likely follow (Ong Peng Oan vs. Republic, L-8035, Nov. 1957; Tan vs. Republic, L-16384, April 26, 1962; Ong Te vs. Republic, L-15549, June 30, 1962; Moore vs. Republic, L-18407, June 26, 1963). In not one of those cases, however, has it been ruled that an alien is not entitled to file a petition at all."

2. Nonetheless, we pause to consider whether every alien in this country may petition for a change of name.

Change of name — under our own law — is a special proceeding to establish the status of a person involving his relations with others, that is, his legal position in, or with regard to, the rest of the community. The petition therefor is directed against all. It is in rem. So it is, that under Section 3 of Rule 103, publication of the petition is required.1

The broad general doctrine is that the status of an alien individual is governed and controlled by the lex domicilii.2 Implicit in this precept is that an alien may be allowed to change his name here only if he be domiciled in the Philippines. And "domicile" means "permanent home, the place to which, whenever absent for business or pleasure, one intends to return, and depends on facts and circumstances, in the sense that they disclose intent."3

An alien who temporarily stays in the Philippines may not there avail of the right to change his name. For, what good will that be if, after all, his stay will be for a short period of time? It would not be of much benefit to him; court proceedings for the purpose could yet be a useless ceremony; that salutary effects flowing from a change of his social relation and condition may not thus be achieved. And then, stock should be taken of the fact that in a change of name, third persons and the State are concerned. Correct, then, it is to say that change of name is not temporary in nature; the new name may not be shunted aside at will.

We, accordingly, lay down the rule that only alien domiciled in the Philippines may apply for change of name in the courts thereof.1äwphï1.ñët

Considering that the petition herein complies with the requisites set forth in the Rules of Court, we vote to set aside the orders of the Juvenile and Domestic Relations Court of November 6, 1962 and November 24, 1962; and to direct said Court to proceed with the hearing and determination of Special Proceeding 03521, entitled "In the Matter of the Petition to Change Name of Ong Huan Tin to Teresita Tan." No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Castro, JJ., concur.

xi

xii