ISABELITA C. VINUYA, VICTORIA G.R. No.

162230
C. DELA PEA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA
L. QUILANTANG, MARIA L. MAGISA,
NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO,
ERLINDA MANALASTAS, TARCILA
M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A.
SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PEA, Present:
EUGENIA M. LALU, JULIANA G.
MAGAT, CECILIA SANGUYO, ANA PUNO, C. J.,
ALONZO, RUFINA P. MALLARI, CARPIO,
ROSARIO M. ALARCON, RUFINA C. CORONA,
GULAPA, ZOILA B. MANALUS, CARPIO MORALES,
CORAZON C. CALMA, MARTA A. VELASCO, JR.,
GULAPA, TEODORA M. HERNANDEZ, NACHURA,
FERMIN B. DELA PEA, MARIA DELA LEONARDO-DE CASTRO,
PAZ B. CULALA, ESPERANZA BRION,
MANAPOL, JUANITA M. BRIONES, PERALTA,
VERGINIA M. GUEVARRA, MAXIMA BERSAMIN,
ANGULO, EMILIA SANGIL, TEOFILA DEL CASTILLO,
R. PUNZALAN, JANUARIA G. GARCIA, ABAD,
PERLA B. BALINGIT, BELEN A. VILLARAMA, JR.,
CULALA, PILAR Q. GALANG, PEREZ, and
ROSARIO C. BUCO, GAUDENCIA C. MENDOZA, JJ.
DELA PEA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C.
GUEVARRA, VICTORIA M. DELA
CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON
M. SUBA, EMERINCIANA A. VINUYA,
LYDIA A. SANCHEZ, ROSALINA M.
BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA
LIWAG, ESTER C. BALINGIT, JOVITA
A. DAVID, EMILIA C. MANGILIT,
VERGINIA M. BANGIT, GUILLERMA
S. BALINGIT, TERECITA PANGILINAN,
MAMERTA C. PUNO, CRISENCIANA
C. GULAPA, SEFERINA S. TURLA, Promulgated:
MAXIMA B. TURLA, LEONICIA G. April 28, 2010
GUEVARRA, ROSALINA M. CULALA,
CATALINA Y. MANIO, MAMERTA T.
SAGUM, CARIDAD L. TURLA, et al.
In their capacity and as members of the
Malaya Lolas Organization,
Petitioners,

- versus -

THE HONORABLE EXECUTIVE

SECRETARY ALBERTO G.
ROMULO, THE HONORABLE
SECRETARY OF FOREIGN
AFFAIRS DELIA DOMINGO-
ALBERT, THE HONORABLE
SECRETARY OF JUSTICE
MERCEDITAS N. GUTIERREZ,
and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO,
Respondents.
x--------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

The Treaty of Peace with Japan, insofar as it barred future claims such as those
asserted by plaintiffs in these actions, exchanged full compensation of plaintiffs
for a future peace. History has vindicated the wisdom of that bargain. And while
full compensation for plaintiffs' hardships, in the purely economic sense, has
been denied these former prisoners and countless other survivors of the war, the
immeasurable bounty of life for themselves and their posterity in a free society
and in a more peaceful world services the debt.[1]
There is a broad range of vitally important areas that must be regularly decided by the
Executive Department without either challenge or interference by the Judiciary. One such
area involves the delicate arena of foreign relations. It would be strange indeed if the courts
and the executive spoke with different voices in the realm of foreign policy. Precisely
because of the nature of the questions presented, and the lapse of more than 60 years since
the conduct complained of, we make no attempt to lay down general guidelines covering
other situations not involved here, and confine the opinion only to the very questions
necessary to reach a decision on this matter.

Factual Antecedents

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with
an application for the issuance of a writ of preliminary mandatory injunction against the
Office of the Executive Secretary, the Secretary of the Department of Foreign Affairs
(DFA), the Secretary of the Department of Justice (DOJ), and the Office of the Solicitor
General (OSG).

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit

organization registered with the Securities and Exchange Commission, established
for the purpose of providing aid to the victims of rape by Japanese military forces in
the Philippines during the Second World War.

Petitioners narrate that during the Second World War, the Japanese army attacked
villages and systematically raped the women as part of the destruction of the village. Their
communities were bombed, houses were looted and burned, and civilians were publicly
tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women and held
them in houses or cells, where they were repeatedly raped, beaten, and abused by Japanese
soldiers. As a result of the actions of their Japanese tormentors, the petitioners have spent
their lives in misery, having endured physical injuries, pain and disability, and mental and
emotional suffering.[2]
Petitioners claim that since 1998, they have approached the Executive Department
through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the
Japanese officials and military officers who ordered the establishment of the comfort
women stations in the Philippines. However, officials of the Executive Department
declined to assist the petitioners, and took the position that the individual claims of the
comfort women for compensation had already been fully satisfied by Japans compliance
with the Peace Treaty between the Philippines and Japan.

Issues

Hence, this petition where petitioners pray for this court to (a) declare that
respondents committed grave abuse of discretion amounting to lack or excess of discretion
in refusing to espouse their claims for the crimes against humanity and war crimes
committed against them; and (b) compel the respondents to espouse their claims for official
apology and other forms of reparations against Japan before the International Court of
Justice (ICJ) and other international tribunals.

Petitioners arguments

Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the comfort women
system established by Japan, and the brutal rape and enslavement of petitioners constituted
a crime against humanity,[3] sexual slavery,[4] and torture.[5] They allege that the prohibition
against these international crimes is jus cogens norms from which no derogation is
possible; as such, in waiving the claims of Filipina comfort women and failing to espouse
their complaints against Japan, the Philippine government is in breach of its legal
obligation not to afford impunity for crimes against humanity. Finally, petitioners assert
that the Philippine governments acceptance of the apologies made by Japan as well as
funds from the Asian Womens Fund (AWF) were contrary to international law.

Respondents Arguments

Respondents maintain that all claims of the Philippines and its nationals relative to the
war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations
Agreement of 1956.[6]
Article 14 of the Treaty of Peace[7] provides:

Article 14. Claims and Property

a) It is recognized that Japan should pay reparations to the Allied Powers for the
damage and suffering caused by it during the war. Nevertheless it is
 also recognized that the resources of Japan are not presently
sufficient, if it is to maintain a viable economy, to make complete
reparation for all such damage and suffering and at the present time
meet its other obligations.

b) Except as otherwise provided in the present Treaty, the Allied

Powers waive all reparations claims of the Allied Powers, other
claims of the Allied Powers and their nationals arising out of any
actions taken by Japan and its nationals in the course of the
prosecution of the war, and claims of the Allied Powers for direct
military costs of occupation.

In addition, respondents argue that the apologies made by Japan[8] have been
satisfactory, and that Japan had addressed the individual claims of the women through the
atonement money paid by the Asian Womens Fund.
Historical Background

The comfort women system was the tragic legacy of the Rape of Nanking. In
December 1937, Japanese military forces captured the city of Nanking in China and began
a barbaric campaign of terror known as the Rape of Nanking, which included the rapes and
murders of an estimated 20,000 to 80,000 Chinese women, including young girls, pregnant
mothers, and elderly women.[9]

In reaction to international outcry over the incident, the Japanese government sought
ways to end international condemnation[10] by establishing the comfort women
system. Under this system, the military could simultaneously appease soldiers' sexual
appetites and contain soldiers' activities within a regulated environment.[11] Comfort
stations would also prevent the spread of venereal disease among soldiers and discourage
soldiers from raping inhabitants of occupied territories.[12]

Daily life as a comfort woman was unmitigated misery.[13] The military forced victims
into barracks-style stations divided into tiny cubicles where they were forced to live, sleep,
and have sex with as many 30 soldiers per day.[14] The 30 minutes allotted for sexual
relations with each soldier were 30-minute increments of unimaginable horror for the
women.[15] Disease was rampant.[16] Military doctors regularly examined the women, but
these checks were carried out to prevent the spread of venereal diseases; little notice was
taken of the frequent cigarette burns, bruises, bayonet stabs and even broken bones inflicted
on the women by soldiers.

Fewer than 30% of the women survived the war.[17] Their agony continued in having to
suffer with the residual physical, psychological, and emotional scars from their former
lives. Some returned home and were ostracized by their families. Some committed
suicide.Others, out of shame, never returned home.[18]

Efforts to Secure Reparation

The most prominent attempts to compel the Japanese government to accept legal
responsibility and pay compensatory damages for the comfort women system were
through a series of lawsuits, discussion at the United Nations (UN), resolutions by various
nations, and the Womens International Criminal Tribunal. The Japanese government, in
turn, responded through a series of public apologies and the creation of the AWF.[19]

Lawsuits

In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit
in Japan by former comfort women against the Japanese government. The Tokyo District
Court however dismissed their case.[20] Other suits followed,[21] but the Japanese
government has, thus far, successfully caused the dismissal of every case.[22]

Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of

the comfort women system brought their claims before the United States (US). On
September 18, 2000, 15 comfort women filed a class action lawsuit in the US District Court
for the District of Columbia[23] "seeking money damages for [allegedly] having been
subjected to sexual slavery and torture before and during World War II," in violation of
"both positive and customary international law." The case was filed pursuant to the Alien
Tort Claims Act (ATCA),[24] which allowed the plaintiffs to sue the Japanese government
in a US federal district court.[25] On October 4, 2001, the district court dismissed the lawsuit
due to lack of jurisdiction over Japan, stating that [t]here is no question that this court is not
the appropriate forum in which plaintiffs may seek to reopen x x x discussions nearly half
a century later x x x [E]ven if Japan did not enjoy sovereign immunity, plaintiffs' claims
are non-justiciable and must be dismissed.
 The District of Columbia Court of Appeals affirmed the lower court's dismissal of
the case.[26] On appeal, the US Supreme Court granted the womens petition for writ of
certiorari, vacated the judgment of the District of Columbia Court of Appeals, and
remanded the case.[27] On remand, the Court of Appeals affirmed its prior decision, noting
that much as we may feel for the plight of the appellants, the courts of the US simply are
not authorized to hear their case.[28] The women again brought their case to the US Supreme
Court which denied their petition for writ of certiorari on February 21, 2006.

Efforts at the United Nations

In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by
Japan (KCWS), submitted a petition to the UN Human Rights Commission (UNHRC),
asking for assistance in investigating crimes committed by Japan against Korean women
and seeking reparations for former comfort women.[29] The UNHRC placed the issue on
its agenda and appointed Radhika Coomaraswamy as the issue's special investigator. In
1996, Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing Korean
women to act as sex slaves for the imperial army, and made the
following recommendations:

A. At the national level

137. The Government of Japan should:

(a) Acknowledge that the system of comfort stations set up by the Japanese
Imperial Army during the Second World War was a violation of its
obligations under international law and accept legal responsibility for
that violation;

(b) Pay compensation to individual victims of Japanese military sexual slavery

according to principles outlined by the Special Rapporteur of the Sub-
Commission on Prevention of Discrimination and Protection of
Minorities on the right to restitution, compensation and rehabilitation for
victims of grave violations of human rights and fundamental freedoms.
A special administrative tribunal for this purpose should be set up with a
limited time-frame since many of the victims are of a very advanced age;

(c) Make a full disclosure of documents and materials in its possession with
regard to comfort stations and other related activities of the Japanese
Imperial Army during the Second World War;
 (d) Make a public apology in writing to individual women who have come
forward and can be substantiated as women victims of Japanese military
sexual slavery;

(e) Raise awareness of these issues by amending educational curricula to reflect

historical realities;

(f) Identify and punish, as far as possible, perpetrators involved in the

recruitment and institutionalization of comfort stations during the
Second World War.

Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of

Discrimination and Protection of Minorities, also presented a report to the Sub-Committee
on June 22, 1998 entitled Contemporary Forms of Slavery: Systematic Rape, Sexual
Slavery and Slavery-like Practices During Armed Conflict. The report included an
appendix entitled An Analysis of the Legal Liability of the Government of Japan for
'Comfort Women Stations' established during the Second World War,[30] which contained
the following findings:

68. The present report concludes that the Japanese Government remains liable
for grave violations of human rights and humanitarian law, violations that
amount in their totality to crimes against humanity. The Japanese Governments
arguments to the contrary, including arguments that seek to attack the
underlying humanitarian law prohibition of enslavement and rape, remain as
unpersuasive today as they were when they were first raised before
the Nuremberg war crimes tribunal more than 50 years ago. In addition, the
Japanese Governments argument that Japan has already settled all claims from
the Second World War through peace treaties and reparations agreements
following the war remains equally unpersuasive. This is due, in large part, to the
failure until very recently of the Japanese Government to admit the extent of the
Japanese militarys direct involvement in the establishment and maintenance of
these rape centres. The Japanese Governments silence on this point during the
period in which peace and reparations agreements between Japan and other
Asian Governments were being negotiated following the end of the war must,
as a matter of law and justice, preclude Japan from relying today on these peace
treaties to extinguish liability in these cases.
 69. The failure to settle these claims more than half a century after the cessation
of hostilities is a testament to the degree to which the lives of women continue
to be undervalued. Sadly, this failure to address crimes of a sexual nature
committed on a massive scale during the Second World War has added to the
level of impunity with which similar crimes are committed today. The
Government of Japan has taken some steps to apologize and atone for the rape
and enslavement of over 200,000 women and girls who were brutalized in
comfort stations during the Second World War. However, anything less than
full and unqualified acceptance by the Government of Japan of legal liability
and the consequences that flow from such liability is wholly inadequate. It must
now fall to the Government of Japan to take the necessary final steps to provide
adequate redress.

The UN, since then, has not taken any official action directing Japan to provide the
reparations sought.
Women's International War Crimes

Tribunal

The Women's International War Crimes Tribunal (WIWCT) was a people's tribunal
established by a number of Asian women and human rights organizations, supported by an
international coalition of non-governmental organizations.[31] First proposed in 1998, the
WIWCT convened in Tokyo in 2000 in order to adjudicate Japan's military sexual
violence, in particular the enslavement of comfort women, to bring those responsible for it
to justice, and to end the ongoing cycle of impunity for wartime sexual violence against
women.

After examining the evidence for more than a year, the tribunal issued its verdict
on December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty
of crimes against humanity for the rape and sexual slavery of women.[32] It bears stressing,
however, that although the tribunal included prosecutors, witnesses, and judges, its
judgment was not legally binding since the tribunal itself was organized by private citizens.

Action by Individual Governments

On January 31, 2007, US Representative Michael Honda of California, along with six co-
sponsor representatives, introduced House Resolution 121 which called for Japanese action
in light of the ongoing struggle for closure by former comfort women. The Resolution was
formally passed on July 30, 2007,[33] and made four distinct demands:

[I]t is the sense of the House of Representatives that the Government of Japan
(1) should formally acknowledge, apologize, and accept historical responsibility
in a clear and unequivocal manner for its Imperial Armed Forces' coercion of
young women into sexual slavery, known to the world as comfort women,
during its colonial and wartime occupation of Asia and the Pacific Islands from
the 1930s through the duration of World War II; (2) would help to resolve
recurring questions about the sincerity and status of prior statements if the Prime
Minister of Japan were to make such an apology as a public statement in his
official capacity; (3) should clearly and publicly refute any claims that the sexual
enslavement and trafficking of the comfort women for the Japanese Imperial
Army never occurred; and (4) should educate current and future generations
about this horrible crime while following the recommendations of the
international community with respect to the comfort women.[34]

In December 2007, the European Parliament, the governing body of the European
Union, drafted a resolution similar to House Resolution 121.[35] Entitled, Justice for
Comfort Women, the resolution demanded: (1) a formal acknowledgment of responsibility
by the Japanese government; (2) a removal of the legal obstacles preventing compensation;
and (3) unabridged education of the past. The resolution also stressed the urgency with
which Japan should act on these issues, stating: the right of individuals to claim reparations
against the government should be expressly recognized in national law, and cases for
reparations for the survivors of sexual slavery, as a crime under international law, should
be prioritized, taking into account the age of the survivors.

The Canadian and Dutch parliaments have each followed suit in drafting resolutions
against Japan. Canada's resolution demands the Japanese government to issue a formal
apology, to admit that its Imperial Military coerced or forced hundreds of thousands of
women into sexual slavery, and to restore references in Japanese textbooks to its war
crimes.[36] The Dutch parliament's resolution calls for the Japanese government to uphold
the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono.
 The Foreign Affairs Committee of the United Kingdoms Parliament also produced
a report in November, 2008 entitled, "Global Security: Japan and Korea" which concluded
that Japan should acknowledge the pain caused by the issue of comfort women in order to
ensure cooperation between Japan and Korea.

Statements of Remorse made by representatives

of the Japanese government

Various officials of the Government of Japan have issued the following public
statements concerning the comfort system:

a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:

The Government of Japan has been conducting a study on the issue of wartime
"comfort women" since December 1991. I wish to announce the findings as a
result of that study.

As a result of the study which indicates that comfort stations were operated in
extensive areas for long periods, it is apparent that there existed a great number
of comfort women. Comfort stations were operated in response to the request
of the military authorities of the day. The then Japanese military was, directly or
indirectly, involved in the establishment and management of the comfort
stations and the transfer of comfort women. The recruitment of the comfort
women was conducted mainly by private recruiters who acted in response to the
request of the military. The Government study has revealed that in many cases
they were recruited against their own will, through coaxing coercion, etc., and
that, at times, administrative/military personnel directly took part in the
recruitments. They lived in misery at comfort stations under a coercive
atmosphere.

As to the origin of those comfort women who were transferred to the war areas,
excluding those from Japan, those from the Korean Peninsula accounted for a
large part. The Korean Peninsula was under Japanese rule in those days, and
their recruitment, transfer, control, etc., were conducted generally against their
will, through coaxing, coercion, etc.

Undeniably, this was an act, with the involvement of the military authorities of
the day, that severely injured the honor and dignity of many women. The
 Government of Japan would like to take this opportunity once again to extend
its sincere apologies and remorse to all those, irrespective of place of origin, who
suffered immeasurable pain and incurable physical and psychological wounds
as comfort women.

It is incumbent upon us, the Government of Japan, to continue to consider

seriously, while listening to the views of learned circles, how best we can
express this sentiment.

We shall face squarely the historical facts as described above instead of evading
them, and take them to heart as lessons of history. We hereby reiterated our firm
determination never to repeat the same mistake by forever engraving such issues
in our memories through the study and teaching of history.

As actions have been brought to court in Japan and interests have been shown
in this issue outside Japan, the Government of Japan shall continue to pay full
attention to this matter, including private researched related thereto.

b) Prime Minister Tomiichi Murayamas Statement in 1994

On the issue of wartime comfort women, which seriously stained the honor and
dignity of many women, I would like to take this opportunity once again to
express my profound and sincere remorse and apologies

c) Letters from the Prime Minister of Japan to Individual Comfort Women

The issue of comfort women, with the involvement of the Japanese military
authorities at that time, was a grave affront to the honor and dignity of a large
number of women.

As Prime Minister of Japan, I thus extend anew my most sincere apologies and
remorse to all the women who endured immeasurable and painful experiences
and suffered incurable physical and psychological wounds as comfort women.

I believe that our country, painfully aware of its moral responsibilities, with
feelings of apology and remorse, should face up squarely to its past history and
accurately convey it to future generations.
 d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005

Solemnly reflecting upon the many instances of colonial rule and acts of
aggression that occurred in modern world history, and recognizing
that Japan carried out such acts in the past and inflicted suffering on the people
of other countries, especially in Asia, the Members of this House hereby express
deep remorse. (Resolution of the House of Representatives adopted on June 9,
1995)

e) Various Public Statements by Japanese Prime Minister Shinzo Abe

I have talked about this matter in the Diet sessions last year, and recently as
well, and to the press. I have been consistent. I will stand by the Kono Statement.
This is our consistent position. Further, we have been apologizing sincerely to
those who suffered immeasurable pain and incurable psychological wounds as
comfort women. Former Prime Ministers, including Prime Ministers Koizumi
and Hashimoto, have issued letters to the comfort women. I would like to be
clear that I carry the same feeling. This has not changed even slightly. (Excerpt
from Remarks by Prime Minister Abe at an Interview by NHK, March 11,
2007).

I am apologizing here and now. I am apologizing as the Prime Minister and it is

as stated in the statement by the Chief Cabinet Secretary Kono. (Excerpt from
Remarks by Prime Minister Abe at the Budget Committee, the House of
Councilors, the Diet of Japan, March 26, 2007).

I am deeply sympathetic to the former comfort women who suffered hardships,

and I have expressed my apologies for the extremely agonizing circumstances
into which they were placed. (Excerpt from Telephone Conference by Prime
Minister Abe to President George W. Bush, April 3, 2007).

I have to express sympathy from the bottom of my heart to those people who
were taken as wartime comfort women. As a human being, I would like to
express my sympathies, and also as prime minister of Japan I need to apologize
to them. My administration has been saying all along that we continue to stand
by the Kono Statement. We feel responsible for having forced these women to
go through that hardship and pain as comfort women under the circumstances
at the time. (Excerpt from an interview article "A Conversation with Shinzo
Abe" by the Washington Post, April 22, 2007).
 x x x both personally and as Prime Minister of Japan, my heart goes out in
sympathy to all those who suffered extreme hardships as comfort women; and
I expressed my apologies for the fact that they were forced to endure such
extreme and harsh conditions. Human rights are violated in many parts of the
world during the 20th Century; therefore we must work to make the 21st
Century a wonderful century in which no human rights are violated. And the
Government of Japan and I wish to make significant contributions to that end.
(Excerpt from Prime Minister Abe's remarks at the Joint Press Availability after
the summit meeting at Camp David between Prime Minister Abe and President
Bush, April 27, 2007).

The Asian Women's Fund

Established by the Japanese government in 1995, the AWF represented the

government's concrete attempt to address its moral responsibility by offering monetary
compensation to victims of the comfort women system.[37] The purpose of the AWF was
to show atonement of the Japanese people through expressions of apology and remorse to
the former wartime comfort women, to restore their honor, and to demonstrate Japans
strong respect for women.[38]

The AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying 2 million (approximately $20,000) to each
woman; (2) medical and welfare support programs, paying 2.5-3 million ($25,000-
$30,000) for each woman; and (3) a letter of apology from the Japanese Prime Minister to
each woman. Funding for the program came from the Japanese government and private
donations from the Japanese people. As of March 2006, the AWF provided 700 million
(approximately $7 million) for these programs in South Korea, Taiwan, and
the Philippines; 380 million (approximately $3.8 million) in Indonesia; and 242 million
(approximately $2.4 million) in the Netherlands.

On January 15, 1997, the AWF and the Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for former comfort
women. Over the next five years, these were implemented by the Department of Social
Welfare and Development.

Our Ruling
 Stripped down to its essentials, the issue in this case is whether the Executive
Department committed grave abuse of discretion in not espousing petitioners claims for
official apology and other forms of reparations against Japan.

The petition lacks merit.

From a Domestic Law Perspective, the

Executive Department has the exclusive
prerogative to determine whether to espouse
petitioners claims against Japan.

Baker v. Carr[39] remains the starting point for analysis under the political question
doctrine. There the US Supreme Court explained that:

x x x Prominent on the surface of any case held to involve a political question is

found a textually demonstrable constitutional commitment of the issue to a
coordinate political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion; or
the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious pronouncements by
various departments on question.

In Taada v. Cuenco,[40] we held that political questions refer "to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon
the wisdom, not legality of a particular measure."

Certain types of cases often have been found to present political questions.[41] One such
category involves questions of foreign relations. It is well-established that "[t]he conduct
of the foreign relations of our government is committed by the Constitution to the executive
and legislative--'the political'--departments of the government, and the propriety of what
may be done in the exercise of this political power is not subject to judicial inquiry or
decision."[42] The US Supreme Court has further cautioned that decisions relating to foreign
policy

are delicate, complex, and involve large elements of prophecy. They are and
should be undertaken only by those directly responsible to the people whose
welfare they advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility.[43]

To be sure, not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive
agreements.[44] However, the question whether the Philippine government should espouse
claims of its nationals against a foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our Constitution not to the courts but to
the political branches. In this case, the Executive Department has already decided that it is
to the best interest of the country to waive all claims of its nationals for reparations
against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme Court held
that [t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations.

It is quite apparent that if, in the maintenance of our international relations,

embarrassment -- perhaps serious embarrassment -- is to be avoided and success
for our aims achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must often accord
to the President a degree of discretion and freedom from statutory restriction
which would not be admissible where domestic affairs alone involved.
Moreover, he, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this true in time
of war. He has his confidential sources of information. He has his agents in the
form of diplomatic, consular and other officials. x x x

This ruling has been incorporated in our jurisprudence through Bayan v.

Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching principle
was, perhaps, best articulated in (now Chief) Justice Punos dissent in Secretary of Justice
v. Lantion:[48]

x x x The conduct of foreign relations is full of complexities and consequences,

sometimes with life and death significance to the nation especially in times of
war. It can only be entrusted to that department of government which can act on
the basis of the best available information and can decide with decisiveness. x x
x It is also the President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and consular
officials regularly brief him on meaningful events all over the world. He has
also unlimited access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign affairs. The
regularity, nay, validity of his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally undesirable
consequences.

The Executive Department has determined that taking up petitioners cause would be
inimical to our countrys foreign policy interests, and could disrupt our relations with Japan,
thereby creating serious implications for stability in this region. For us to overturn the
Executive Departments determination would mean an assessment of the foreign policy
judgments by a coordinate political branch to which authority to make that judgment has
been constitutionally committed.

In any event, it cannot reasonably be maintained that the Philippine government was
without authority to negotiate the Treaty of Peace with Japan. And it is equally true that,
since time immemorial, when negotiating peace accords and settling international claims:

x x x [g]overnments have dealt with x x x private claims as their own, treating

them as national assets, and as counters, `chips', in international bargaining.
Settlement agreements have lumped, or linked, claims deriving from private
debts with others that were intergovernmental in origin, and concessions in
regard to one category of claims might be set off against concessions in the
other, or against larger political considerations unrelated to debts.[49]
Indeed, except as an agreement might otherwise provide, international settlements
generally wipe out the underlying private claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton,[50] a case brought by a British subject to recover a debt
confiscated by the Commonwealth of Virginia during the war, Justice Chase wrote:

I apprehend that the treaty of peace abolishes the subject of the war, and that
after peace is concluded, neither the matter in dispute, nor the conduct of either
party, during the war, can ever be revived, or brought into contest again. All
violences, injuries, or damages sustained by the government, or people of either,
during the war, are buried in oblivion; and all those things are implied by the
very treaty of peace; and therefore not necessary to be expressed. Hence it
follows, that the restitution of, or compensation for, British property confiscated,
or extinguished, during the war, by any of the United States, could only be
provided for by the treaty of peace; and if there had been no provision,
respecting these subjects, in the treaty, they could not be agitated after the treaty,
by the British government, much less by her subjects in courts of justice.
(Emphasis supplied).

This practice of settling claims by means of a peace treaty is certainly

nothing new. For instance, in Dames & Moore v. Regan,[51] the US Supreme Court held:

Not infrequently in affairs between nations, outstanding claims by nationals of

one country against the government of another country are sources of friction
between the two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct.
552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have often
entered into agreements settling the claims of their respective nationals. As one
treatise writer puts it, international agreements settling claims by nationals of
one state against the government of another are established international
practice reflecting traditional international theory. L. Henkin, Foreign Affairs
and the Constitution 262 (1972). Consistent with that principle, the United
States has repeatedly exercised its sovereign authority to settle the claims of its
nationals against foreign countries. x x x Under such agreements, the President
has agreed to renounce or extinguish claims of United States nationals against
foreign governments in return for lump-sum payments or the establishment of
arbitration procedures. To be sure, many of these settlements were encouraged
by the United States claimants themselves, since a claimant's only hope of
obtaining any payment at all might lie in having his Government negotiate a
diplomatic settlement on his behalf. But it is also undisputed that the United
 States has sometimes disposed of the claims of its citizens without their consent,
or even without consultation with them, usually without exclusive regard for
their interests, as distinguished from those of the nation as a whole.
Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations
Law of the United States 213 (1965) (President may waive or settle a claim
against a foreign state x x x [even] without the consent of the [injured] national).
It is clear that the practice of settling claims continues today.

Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the suffering caused by Japanese aggression
during the war, not for the payment of adequate reparations, but for security purposes. The
treaty sought to prevent the spread of communism in Japan, which occupied a strategic
position in the Far East. Thus, the Peace Treaty compromised individual claims in the
collective interest of the free world.

This was also the finding in a similar case involving American victims of Japanese slave
labor during the war.[52] In a consolidated case in the Northern District of California,[53] the
court dismissed the lawsuits filed, relying on the 1951 peace treaty with Japan,[54]because
of the following policy considerations:

The official record of treaty negotiations establishes that a fundamental goal of

the agreement was to settle the reparations issue once and for all. As the
statement of the chief United States negotiator, John Foster Dulles, makes clear,
it was well understood that leaving open the possibility of future claims
would be an unacceptable impediment to a lasting peace:

Reparation is usually the most controversial aspect of

peacemaking. The present peace is no exception.

On the one hand, there are claims both vast and just. Japan's
aggression caused tremendous cost, losses and suffering.

On the other hand, to meet these claims, there stands

a Japan presently reduced to four home islands which are unable
to produce the food its people need to live, or the raw materials
they need to work. x x x
 The policy of the United States that Japanese liability for reparations should be
sharply limited was informed by the experience of six years of United States-
led occupation of Japan. During the occupation the Supreme Commander of the
Allied Powers (SCAP) for the region, General Douglas MacArthur, confiscated
Japanese assets in conjunction with the task of managing the economic affairs
of the vanquished nation and with a view to reparations payments. It soon
became clear that Japan's financial condition would render any aggressive
reparations plan an exercise in futility. Meanwhile, the importance of a
stable, democratic Japan as a bulwark to communism in the region
increased. At the end of 1948, MacArthur expressed the view that [t]he use of
reparations as a weapon to retard the reconstruction of a viable economy in
Japan should be combated with all possible means and recommended that the
reparations issue be settled finally and without delay.

That this policy was embodied in the treaty is clear not only from the
negotiations history but also from the Senate Foreign Relations Committee
report recommending approval of the treaty by the Senate. The committee
noted, for example:

Obviously insistence upon the payment of reparations in any

proportion commensurate with the claims of the injured countries
and their nationals would wreck Japan's economy, dissipate any
credit that it may possess at present, destroy the initiative of its
people, and create misery and chaos in which the seeds of
discontent and communism would flourish. In short, [it] would
be contrary to the basic purposes and policy of x x x the United
States x x x.

We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general
principle and particularly here, where such an extraordinary length of time has lapsed
between the treatys conclusion and our consideration the Executive must be given ample
discretion to assess the foreign policy considerations of espousing a claim against Japan,
from the standpoint of both the interests of the petitioners and those of the Republic, and
decide on that basis if apologies are sufficient, and whether further steps are appropriate or
necessary.

The Philippines is not under any international

obligation to espouse petitioners claims.
In the international sphere, traditionally, the only means available for individuals to bring
a claim within the international legal system has been when the individual is able to
persuade a government to bring a claim on the individuals behalf.[55] Even then, it is not the
individuals rights that are being asserted, but rather, the states own rights. Nowhere is this
position more clearly reflected than in the dictum of the Permanent Court of International
Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:

By taking up the case of one of its subjects and by resorting to diplomatic action
or international judicial proceedings on his behalf, a State is in reality asserting
its own right to ensure, in the person of its subjects, respect for the rules of
international law. The question, therefore, whether the present dispute originates
in an injury to a private interest, which in point of fact is the case in many
international disputes, is irrelevant from this standpoint. Once a State has taken
up a case on behalf of one of its subjects before an international tribunal, in the
eyes of the latter the State is sole claimant.[56]
Since the exercise of diplomatic protection is the right of the State, reliance on the
right is within the absolute discretion of states, and the decision whether to exercise the
discretion may invariably be influenced by political considerations other than the legal
merits of the particular claim.[57] As clearly stated by the ICJ in
Barcelona Traction:

The Court would here observe that, within the limits prescribed by international
law, a State may exercise diplomatic protection by whatever means and to
whatever extent it thinks fit, for it is its own right that the State is asserting.
Should the natural or legal person on whose behalf it is acting consider that
their rights are not adequately protected, they have no remedy in
international law. All they can do is resort to national law, if means are
available, with a view to furthering their cause or obtaining redress. The
municipal legislator may lay upon the State an obligation to protect its citizens
abroad, and may also confer upon the national a right to demand the
performance of that obligation, and clothe the right with corresponding
sanctions. However, all these questions remain within the province of municipal
law and do not affect the position internationally.[58] (Emphasis supplied)

The State, therefore, is the sole judge to decide whether its protection will be
granted, to what extent it is granted, and when will it cease. It retains, in this respect, a
discretionary power the exercise of which may be determined by considerations of a
political or other nature, unrelated to the particular case.

The International Law Commissions (ILCs) Draft Articles on Diplomatic

Protection fully support this traditional view. They (i) state that "the right of diplomatic
protection belongs to or vests in the State,[59] (ii) affirm its discretionary nature by clarifying
that diplomatic protection is a "sovereign prerogative" of the State;[60] and (iii) stress that
the state "has the right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do so."[61]

It has been argued, as petitioners argue now, that the State has a duty to protect its
nationals and act on his/her behalf when rights are injured.[62] However, at present, there is
no sufficient evidence to establish a general international obligation for States to exercise
diplomatic protection of their own nationals abroad.[63] Though, perhaps desirable, neither
state practice nor opinio juris has evolved in such a direction. If it is a duty internationally,
it is only a moral and not a legal duty, and there is no means of enforcing its fulfillment.[64]

We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international
law.[65] However, petitioners take quite a theoretical leap in claiming that these
proscriptions automatically imply that that the Philippines is under a non-derogable
obligation to prosecute international crimes, particularly since petitioners do not demand
the imputation of individual criminal liability, but seek to recover monetary reparations
from the state of Japan. Absent the consent of states, an applicable treaty regime, or a
directive by the Security Council, there is no non-derogable duty to institute proceedings
against Japan. Indeed, precisely because of states reluctance to directly prosecute
claims against another state, recent developments support the modern trend to
empower individuals to directly participate in suits against perpetrators of
international crimes.[66] Nonetheless, notwithstanding an array of General Assembly
resolutions calling for the prosecution of crimes against humanity and the strong policy
arguments warranting such a rule, the practice of states does not yet support the present
existence of an obligation to prosecute international crimes.[67] Of course a customary duty
of prosecution is ideal, but we cannot find enough evidence to reasonably assert its
existence. To the extent that any state practice in this area is widespread, it is in the practice
of granting amnesties, immunity, selective prosecution, or de facto impunity to those who
commit crimes against humanity.[68]
Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty
to prosecute perpetrators of international crimes is an erga omnes obligation or has attained
the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as
a legal term describing obligations owed by States towards the community of states as a
whole. The concept was recognized by the ICJ in Barcelona Traction:

x x x an essential distinction should be drawn between the obligations of a State

towards the international community as a whole, and those arising vis--vis
another State in the field of diplomatic protection. By their very nature, the
former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they
are obligations erga omnes.

Such obligations derive, for example, in contemporary international law, from

the outlawing of acts of aggression, and of genocide, as also from the principles
and rules concerning the basic rights of the human person, including protection
from slavery and racial discrimination. Some of the corresponding rights of
protection have entered into the body of general international law others are
conferred by international instruments of a universal or quasi-universal
character.

The Latin phrase, erga omnes, has since become one of the rallying cries of those sharing
a belief in the emergence of a value-based international public order. However, as is so
often the case, the reality is neither so clear nor so bright. Whatever the relevance of
obligations erga omnes as a legal concept, its full potential remains to be realized in
practice.[69]
The term is closely connected with the international law concept of jus cogens. In
international law, the term jus cogens (literally, compelling law) refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus
cogens norms are considered peremptory in the sense that they are mandatory, do not admit
derogation, and can be modified only by general international norms of equivalent
authority.[70]

Early strains of the jus cogens doctrine have existed since the 1700s,[71] but peremptory
norms began to attract greater scholarly attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden Treaties in International Law.[72] The
recognition of jus cogens gained even more force in the 1950s and 1960s with the ILCs
preparation of the Vienna Convention on the Law of Treaties (VCLT).[73] Though there
was a consensus that certain international norms had attained the status of jus cogens,[74] the
ILC was unable to reach a consensus on the proper criteria for identifying peremptory
norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that there is not as yet any generally accepted criterion by which to identify
a general rule of international law as having the character of jus cogens.[75] In a
commentary accompanying the draft convention, the ILC indicated that the prudent course
seems to be to x x x leave the full content of this rule to be worked out in State practice and
in the jurisprudence of international tribunals.[76] Thus, while the existence of jus cogens in
international law is undisputed, no consensus exists on its substance,[77] beyond a tiny core
of principles and rules.[78]

Of course, we greatly sympathize with the cause of petitioners, and we cannot begin
to comprehend the unimaginable horror they underwent at the hands of the Japanese
soldiers. We are also deeply concerned that, in apparent contravention of fundamental
principles of law, the petitioners appear to be without a remedy to challenge those that have
offended them before appropriate fora. Needless to say, our government should take the
lead in protecting its citizens against violation of their fundamental human
rights.Regrettably, it is not within our power to order the Executive Department to take up
the petitioners cause. Ours is only the power to urge and exhort the Executive Department
to take up petitioners cause.

WHEREFORE, the Petition is hereby DISMISSED.

SO ORDERED.
G.R. No. 173520 January 30, 2013

NATIONAL POWER CORPORATION, Petitioner,

vs.
SPOUSES RODOLFO ZABALA and LILIA BAYLON, Respondents.

DECISION

DEL CASTILLO, J.:

Legislative enactments, as well as executive issuances, fixing or providing fix the method of
computing just compensation are tantamount to impermissible encroachment on judicial
prerogatives.1 Thus they are not binding on courts and, at best, are treated as mere guidelines in
ascertaining the amount of just compensation.2

This Petition for Review on Certiorari3 assails the July 10, 2006 Decision4 of the Court of Appeals
(CA) in CA-G.R. CV No. 85396 which affirmed the June 28, 2004 Partial Decision5 of the Regional
Trial Court (RTC), Branch 2, Balanga City in an eminent domain case,6 ordering petitioner National
Power Corporation ( Napocor) to pay respondents spouses Rodolfo Zabala and Lilia Baylon
(spouses Zabala) just compensation ofP-150.00 per square meter for the 6,820-square meter
portion of the spouses' property which was traversed by transmission lines of Napocor under its 230
KV Limay-Hermosa Permanent Transmission Lines Project.

Factual Antecedents

The facts of this case as found by the CA and adopted by Napocor are as follows:

On October 27, 1994, plaintiff-appellant National Power Corporation ("Napocor" x x x) filed a

complaint for Eminent Domain against defendants-appellees Sps. R. Zabala & L. Baylon, Tomas
Aguirre, Generosa de Leon and Leonor Calub ("Spouses Zabala", "Aguirre" "de Leon", and "Calub,"
respectively x x x) before the Regional Trial Court, Balanga City, Bataan alleging that: defendants-
appellees Spouses Zabala and Baylon, Aguirre, de Leon, and Calub own parcels of land located in
Balanga City, Bataan; it urgently needed an easement of right of way over the affected areas for its
230 KV Limay-Hermosa Transmission Line[s]; the said parcels of land have neither been applied nor
expropriated for any public use, and were selected in a manner compatible with the greatest public
good and the least private injury; it repeatedly negotiated with the defendants-appellees for the
acquisition of right of way easement over the said parcels of land but failed to reach an agreement
with the latter; it has the right to take or enter upon the possession of the subject properties pursuant
to Presidential Decree No. 42, which repealed Section 2, Rule 67 of the Rules of Court upon the
filing of the expropriation complaint before the proper court or at anytime thereafter, after due notice
to defendants-appellees, and upon deposit with the Philippine National Bank of the amount equal to
the assessed value of the subject properties for taxation purposes which is to be held by said bank
subject to the orders and final disposition of the court; and it is willing to deposit the provisional value
representing the said assessed value of the affected portions of the subject property x x x. It prayed
for the issuance of a writ of possession authorizing it to enter and take possession of the subject
property, to demolish all the improvements x x x thereon, and to commence with the construction of
the transmission lines project on the subject properties, and to appoint not more than three (3)
commissioners to ascertain and report the just compensation for the said easement of right of way.

xxxx
On January 11, 1995, defendant-appellee Spouses Zabala moved to dismiss the complaint averring
that: the Balanga City proper is already crowded and x x x needs additional space to meet the
housing requirements of the growing population; the only direction the city proper could expand is
the side where their subject property is located; they incurred a considerable expense in the
preparatory development of the subject property into a subdivision to serve the interest and well
being of the growing population of Balanga; the said growing need for housing and said preparatory
development would necessarily increase the value of the said property; the just compensation would
be higher if the proposed transmission lins of plaintiff-appellant Napocor is installed or made to pass
or traverse through their property rather than through the parcels of land farther from the existing city
proper and away from their property which was tapped to meet the expansion requirements of the
Balanga City proper; the transfer of the proposed transmission lines from their property to a farther
location is more economical and less expensive to plaintiff-appellant Napocor and it would better
serve the interest of the people of Balanga because said location is less developed, not needed for
the expansion requirements of Balanga City proper, the lots that would be traversed command a
lower price and less compensation would be paid by plaintiff-appellant Napocor; the traversing of the
transmission lines through their property would impact negatively on the housing expansion in
Balanga, the high tension wires would endanger the life and limb of the inhabitants within the area,
and decrease the value of their subject property; the complaint does not show that the installation of
the proposed transmission wires on their property is the most direct, practical and least burdensome
means to achieve public good; the assessed value of ₱1,636.89 stated in Tax Declaration No. 1646
is insufficient because it has been revised and cancelled by Tax Declaration No. 11052 which shows
a higher assessment value for the said property; and plaintiff-appellant Napocor did not exert
earnest efforts toward the direct purchase of the needed portion of their property before filing a
complaint before the lower court.

On March 4, 1996 and March 7, 1996 plaintiff-appellant Napocor and defendants-appellees Spouses
Zabala filed their respective Pre-Trial Briefs.

On December 4, 1997, the Commissioners submitted their Report/Recommendation fixing the just
compensation for the use of defendants-appellees Spouses Zabala’s property as easement of right
of way at ₱150.00 per square meter without considering the consequential damages.

Plaintiff-appellant Napocor prayed in its Comment to the commissioners’ report, that the report be
recommitted to the commissioners for the modification of the report and the substantiation of the
same with reliable and competent documentary evidence based on the value of the property at the
time of its taking. On their part, defendants-appellees Spouses Zabala prayed, in the Comments, for
the fixing of the just compensation at ₱250.00 per square meter.

On February 25, 1998, the lower court recommitted the report to the Commissioners for further
report on the points raised by the parties.

On August 20, 2003, the Commissioners submitted their Final Report fixing the just compensation at
₱500.00 per square meter.7

Since the Commissioners had already submitted their Final Report8 on the valuation of the subject
property, spouses Zabala moved for the resolution of the case insofar as their property was
concerned. Thus, on June 28, 2004, the RTC rendered its Partial Decision,9 ruling that Napocor has
the lawful authority to take for public purpose and upon payment of just compensation a portion of
spouses Zabala’s property. The RTC likewise ruled that since the spouses Zabala were deprived of
the beneficial use of their property, they are entitled to the actual or basic value of their property.
Thus, it fixed the just compensation at ₱150.00 per square meter. The dispositive portion of the
RTC’s Partial Decision reads:
WHEREFORE, premises considered, the Court having determined that Napocor has a lawful right to
take the subject properties in the exercise of the power of eminent domain upon payment of just
compensation, the petition is hereby granted.

Accordingly, Napocor is hereby ordered to pay defendant Spouses Rodolfo Zabala and Lilia Baylon
the amount of Php 150.00 per square meter for the 6,820 square meters taken from the latter’s
property, as the just compensation fixed and recommended by the commissioners determined as of
the date of the taking of the property.

As regards x x x the properties of the other defendants, the determination of x x x just compensation
is hereby held in abeyance until the submission of the commissioners’ report.

SO ORDERED.10

Napocor appealed to the CA. It argued that the Commissioners’ reports upon which the RTC based
the just compensation are not supported by documentary evidence. Necessarily, therefore, the just
compensation pegged by the RTC at ₱150.00 per square meter also lacked basis. Napocor likewise
imputed error on the part of the RTC in not applying Section 3A of Republic Act (RA) No.
639511 which limits its liability to easement fee of not more than 10% of the market value of the
property traversed by its transmission lines.

On July 10, 2006, the CA rendered the assailed Decision affirming the RTC’s Partial Decision.

Issue

Hence, this Petition anchored on the ground that:

THE COURT OF APPEALS ERRED IN AFFIRMING THE PARTIAL DECISION DATED JUNE 28,
2004 AND THE ORDER DATED FEBRUARY 7, 2005 OF THE TRIAL COURT FIXING THE
AMOUNT OF ₱150.00 PER SQUARE METER AS THE FAIR MARKET VALUE OF THE SUBJECT
PROPERTY SINCE THE SAME IS NOT SUPPORTED BY DOCUMENTARY EVIDENCE. 12

Napocor contends that under Section 3A of RA No. 6395, it is not required to pay the full market
value of the property when the principal purpose for which it is actually devoted will not be impaired
by its transmission lines. It is enough for Napocor to pay easement fee which, under the
aforementioned law, should not exceed 10% of the market value of the affected property. Napocor
argues that when it installed its transmission lines, the property of spouses Zabala was classified as
riceland and was in fact devoted to the cultivation of palay. Its transmission lines will not, therefore,
affect the primary purpose for which the subject land is devoted as the same only pass through it.
The towers to which such lines are connected are not even built on the property of spouses Zabala,
who will remain the owner of and continue to enjoy their property. Hence, the RTC and the CA,
according to Napocor, both erred in not applying Section 3A of RA No. 6395.

Napocor further argues that even assuming that spouses Zabala are entitled to the full market value
of their property, the award of ₱150.00 per square meter as just compensation lacks basis because
the recommendation of the Commissioners is not supported by documentary evidence.

Our Ruling

The petition is partially meritorious.

Section 3A of RA No. 6395 cannot

restrict the constitutional power of the

courts to determine just compensation.

In insisting that the just compensation cannot exceed 10% of the market value of the affected
property, Napocor relies heavily on Section 3A of RA No. 6395, the pertinent portions of which read:

Sec. 3A. In acquiring private property or private property rights through expropriation proceedings
where the land or portion thereof will be traversed by the transmission lines, only a right-of-way
easement thereon shall be acquired when the principal purpose for which such land is actually
devoted will not be impaired, and where the land itself or portion thereof will be needed for the
projects or works, such land or portion thereof as necessary shall be acquired.

In determining the just compensation of the property or property sought to be acquired through
expropriation proceedings, the same shall:

(a) With respect to the acquired land or portion thereof, not to exceed the market value
declared by the owner or administrator or anyone having legal interest in the property, or
such market value as determined by the assessor, whichever is lower.

(b) With respect to the acquired right-of-way easement over the land or portion thereof, not to
exceed ten percent (10%) of the market value declared by the owner or administrator or
anyone having legal interest in the property, or such market value as determined by the
assessor whichever is lower.

xxxx

Just compensation has been defined as "the full and fair equivalent of the property taken from its
owner by the expropriator. The measure is not the taker's gain, but the owner’s loss. The word ‘just’
is used to qualify the meaning of the word ‘compensation’ and to convey thereby the idea that the
amount to be tendered for the property to be taken shall be real, substantial, full and ample."13 The
payment of just compensation for private property taken for public use is guaranteed no less by our
Constitution and is included in the Bill of Rights.14 As such, no legislative enactments or executive
issuances can prevent the courts from determining whether the right of the property owners to just
compensation has been violated. It is a judicial function that cannot "be usurped by any other branch
or official of the government."15 Thus, we have consistently ruled that statutes and executive
issuances fixing or providing for the method of computing just compensation are not binding on
courts and, at best, are treated as mere guidelines in ascertaining the amount thereof.16 In National
Power Corporation v. Bagui,17 where the same petitioner also invoked the provisions of Section 3A of
RA No. 6395, we held that:

Moreover, Section 3A-(b) of R.A. No. 6395, as amended, is not binding on the Court. It has been
repeatedly emphasized that the determination of just compensation in eminent domain cases is a
judicial function and that any valuation for just compensation laid down in the statutes may serve
only as a guiding principle or one of the factors in determining just compensation but it may not
substitute the court’s own judgment as to what amount should be awarded and how to arrive at such
amount.18
This ruling was reiterated in Republic v. Lubinao,19 National Power Corporation v. Tuazon20 and
National Power Corporation v. Saludares21 and continues to be the controlling doctrine. Notably, in
all these cases, Napocor likewise argued that it is liable to pay the property owners for the easement
of right-of-way only and not the full market value of the land traversed by its transmission lines. But
we uniformly held in those cases that since the high-tension electric current passing through the
transmission lines will perpetually deprive the property owners of the normal use of their land, it is
only just and proper to require Napocor to recompense them for the full market value of their
property.

The just compensation of ₱150.00 per

square meter as fixed by the RTC is not
supported by evidence.

It has likewise been our consistent ruling that just compensation cannot be arrived at arbitrarily.
Several factors must be considered, such as, but not limited to, acquisition cost, current market
value of like properties, tax value of the condemned property, its size, shape, and location. But
before these factors can be considered and given weight, the same must be supported by
documentary evidence.

In the case before us, it appears that the Commissioners’ November 28, 1997
Report/Recommendation22 is not supported by any documentary evidence. There is nothing therein
which would show that before arriving at the recommended just compensation of ₱150.00, the
Commissioners considered documents relevant and pertinent thereto. Their
Report/Recommendation simply states that on November 17, 1997, the Commissioners conducted
an ocular inspection; that they interviewed persons in the locality; that the adjacent properties have
market value of ₱150.00 per square meter; and, that the property of Nobel Philippine which is farther
from the Roman Expressway is being sold for ₱200.00 per square meter. No documentary evidence
whatsoever was presented to support their report that indeed the market value of the adjacent
properties are ₱150.00 and that of Nobel Philippine is ₱200.00.

Napocor objected to the Report/Recommendation of the Commissioners and pointed out that the
same is not supported by documentary evidence.23 spouses Zabala likewise commented thereon
and argued that their property should be valued at ₱250.00 per square meter.24 Accordingly, the
RTC recommitted the Report/Recommendation to the Commissioners for further evaluation of the
points raised by the parties.25

In April 1998, the Commissioners submitted a Supplemental Report.26 Then on August 20, 2003, the
Commissioners submitted their Final Report27 recommending a compensation of ₱500.00 per square
meter. But like their earlier reports, the Commissioners’ Final Report lacks documentary support. It
reads:

1. Further ocular inspection was conducted on the property under consideration of the
Honorable Court.

2. To date the land is properly secured, contained and fenced with concrete hollow blocks.

3. The property is not tenanted and the area covered and affected by the transmission lines
has not been tilled and planted x x x.

4. Upon inquiry from the landowners, the Sps. Rodolfo and Lilia Zabala, they intimated that
they are proposing to develop the property into a subdivision, as they already fenced and
contained the area.
 5. At present, another property which is very far from the Roman Expressway was
subdivided, known as the St. Elizabeth Country Homes. Lots are being sold there at
₱1,700.00 per square meter.

6. The property of the Sps. Zabala is only some meters away from the Roman Expressway
compared to the St. Elizabeth Country Homes which is very far from the highway.

7. Moreover, the other subdivisions, Maria Lourdes and Vicarville which are within the vicinity
sell their lots now ranging from ₱1,800.00 per square meter to ₱2,500.00.

8. As already stated, the property of the Sps. Zabala is within the built-up area classified as
residential, commercial and industrial.

9. In its earlier reports in 1998, the commission recommended a just compensation of

₱150.00 per square meter.

10. But considering the considerable lapse of time and increase in the valuation of the
properties within the area, the commissioners are impelled to increase the recommended
valuation to ₱500.00 per square meter.

WHEREFORE, it is recommended to the Honorable Court that the owners of the property affected
and traversed by the transmission lines of the NPC be compensated at ₱500.00 per square meter.28

In Republic v. Santos,29 we ruled that a commissioners’ land valuation which is not based on any
documentary evidence is manifestly hearsay and should be disregarded by the court, viz:

The statement in the 1970 report of the commissioners that according to the owners of adjoining lots
the prices per square meter ranged from ₱150 to ₱200 and that subdivision lots in the vicinity were
being sold at ₱85 to ₱120 a square meter was not based on any documentary evidence. It is
manifestly hearsay. Moreover, those prices refer to 1970 or more than a year after the expropriation
was effected.30

The same ruling was arrived at in National Power Corporation v. Diato-Bernal,31 where we
overturned the ruling of the trial court and the CA adopting the findings of the commissioners sans
supporting documentary evidence therefor. Thus:

It is evident that the above conclusions are highly speculative and devoid of any actual and reliable
basis. First, the market values of the subject property’s neighboring lots were mere estimates and
unsupported by any corroborative documents, such as sworn declarations of realtors in the area
concerned, tax declarations or zonal valuation from the Bureau of Internal Revenue for the
contiguous residential dwellings and commercial establishments. The report also failed to elaborate
on how and by how much the community centers and convenience facilities enhanced the value of
respondent’s property. Finally, the market sales data and price listings alluded to in the report were
not even appended thereto.32

Under Section 8,33 Rule 67 of the Rules of Court, the trial court may accept or reject, whether in
whole or in part, the commissioners’ report which is merely advisory and recommendatory in
character. It may also recommit the report or set aside the same and appoint new commissioners. In
the case before us, however, in spite of the insufficient and flawed reports of the Commissioners and
Napocor’s objections thereto, the RTC eventually adopted the same. It shrugged off Napocor’s
protestations and limited itself to the reports submitted by the Commissioners. It neither considered
nor required the submission of additional evidence to support the recommended ₱150.00 per square
meter just compensation. Ergo, insofar as just compensation is concerned, we cannot sustain the
RTC’s Partial Decision for want of documentary support. 1âw phi1

Lastly, it should be borne in mind that just compensation should be computed based on the fair
value of the subject property at the time of its taking or the filing of the complaint, whichever came
first.34 Since in this case the filing of the eminent domain case came ahead of the taking, just
compensation should be based on the fair market value of spouses Zabala’s property at the time of
the filing of Napocor’s Complaint on October 27, 1994 or thereabouts.

WHEREFORE, the instant Petition is PARTIALLY GRANTED. This case is REMANDED to the
Regional Trial Court, Branch 2, Balanga City for the proper determination of just compensation.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

G.R. No. 179267 June 25, 2013

JESUS C. GARCIA, Petitioner,

vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41,
Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children,
namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93
percent of a total population of 93.3 million – adhering to the teachings of Jesus Christ.1 Yet, the
admonition for husbands to love their wives as their own bodies just as Christ loved the church and
gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence against
Filipino women. The National Commission on the Role of Filipino Women (NCRFW) reported that,
for the years 2000-2003, "female violence comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases were committed by the women's intimate
partners such as their husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress
enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for
Other Purposes." It took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and
their children (VAWC) perpetrated by women's intimate partners, i.e, husband; former husband; or
any person who has or had a sexual or dating relationship, or with whom the woman has a common
child.5 The law provides for protection orders from the barangay and the courts to prevent the
commission of further acts of VAWC; and outlines the duties and responsibilities of barangay
officials, law enforcers, prosecutors and court personnel, social workers, health care providers, and
other local government officials in responding to complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of
the equal protection and due process clauses, and an undue delegation of judicial power to
barangay officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her
minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of
Bacolod City for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus C.
Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse; emotional,
psychological, and economic violence as a result of marital infidelity on the part of petitioner, with
threats of deprivation of custody of her children and of financial support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven
years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the
natural child of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years
old; and Joseph Eduard J. Garcia, 3 years old.8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling,
and demands absolute obedience from his wife and children. He forbade private respondent to pray,
and deliberately isolated her from her friends. When she took up law, and even when she was
already working part time at a law office, petitioner trivialized her ambitions and prevailed upon her
to just stay at home. He was often jealous of the fact that his attractive wife still catches the eye of
some men, at one point threatening that he would have any man eyeing her killed.9

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's
Bank, Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair when
private respondent confronted him about it in 2004. He even boasted to the household help about
his sexual relations with said bank manager. Petitioner told private respondent, though, that he was
just using the woman because of their accounts with the bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on both arms
and shook her with such force that caused bruises and hematoma. At another time, petitioner hit
private respondent forcefully on the lips that caused some bleeding. Petitioner sometimes turned his
ire on their daughter, Jo-Ann, who had seen the text messages he sent to his paramour and whom
he blamed for squealing on him. He beat Jo-Ann on the chest and slapped her many times. When
private respondent decided to leave petitioner, Jo-Ann begged her mother to stay for fear that if the
latter leaves, petitioner would beat her up. Even the small boys are aware of private respondent's
sufferings. Their 6-year-old son said that when he grows up, he would beat up his father because of
his cruelty to private respondent.11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by
her son bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital.
Private respondent was hospitalized for about seven (7) days in which time petitioner never bothered
to visit, nor apologized or showed pity on her. Since then, private respondent has been undergoing
therapy almost every week and is taking anti-depressant medications.12

When private respondent informed the management of Robinson's Bank that she intends to file
charges against the bank manager, petitioner got angry with her for jeopardizing the manager's job.
He then packed his things and told private respondent that he was leaving her for good. He even
told private respondent's mother, who lives with them in the family home, that private respondent
should just accept his extramarital affair since he is not cohabiting with his paramour and has not
sired a child with her.13

Private respondent is determined to separate from petitioner but she is afraid that he would take her
children from her and deprive her of financial support. Petitioner had previously warned her that if
she goes on a legal battle with him, she would not get a single centavo.14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is the
President of three corporations – 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
Trading Corporation – of which he and private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private respondent merely draws a monthly
salary of ₱20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household
expenses amounting to not less than ₱200,000.00 a month are paid for by private respondent
through the use of credit cards, which, in turn, are paid by the same corporation together with the
bills for utilities.15

On the other hand, petitioner receives a monthly salary of ₱60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands of
pesos from the corporations.16 After private respondent confronted him about the affair, petitioner
forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of the
corporations are conducted, thereby depriving her of access to full information about said
businesses. Until the filing of the petition a quo, petitioner has not given private respondent an
accounting of the businesses the value of which she had helped raise to millions of pesos.17

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private
respondent and her children exists or is about to recur, the RTC issued a TPO18 on March 24, 2006
effective for thirty (30) days, which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family home
within 24 hours from receipt of the Temporary Restraining Order and if he refuses, ordering
that he be removed by police officers from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236 Realty Holdings Inc. (Republic Act
No. 9262 states "regardless of ownership"), this is to allow the Petitioner (private respondent
herein) to enter the conjugal dwelling without any danger from the Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the
Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner shall be
assisted by police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March
2006 because of the danger that the Respondent will attempt to take her children from her
when he arrives from Manila and finds out about this suit.

b) To stay away from the petitioner and her children, mother and all her household help and
driver from a distance of 1,000 meters, and shall not enter the gate of the subdivision where
the Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner,
directly or indirectly, or through other persons, or contact directly or indirectly her children,
mother and household help, nor send gifts, cards, flowers, letters and the like. Visitation
rights to the children may be subject of a modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and
ordering the Philippine National Police Firearms and Explosives Unit and the Provincial
Director of the PNP to cancel all the Respondent's firearm licenses. He should also be
ordered to surrender any unlicensed firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a house
for them, and educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received
from all the corporations from 1 January 2006 up to 31 March 2006, which himself and as
President of the corporations and his Comptroller, must submit to the Court not later than 2
April 2006. Thereafter, an accounting of all these funds shall be reported to the court by the
Comptroller, copy furnished to the Petitioner, every 15 days of the month, under pain of
Indirect Contempt of Court.

h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the Petitioner
sues she will not get a single centavo, the Respondent is ordered to put up a BOND TO
KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended
TPO,20 effective for thirty (30) days, which included the following additional provisions:

i) The petitioners (private respondents herein) are given the continued use of the Nissan
Patrol and the Starex Van which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Parañaque, the
continued use of the Starex van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient
sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred
Fifty Thousand Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand
Pesos (Php 50,000.00) per month until the matter of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that the
TPO be modified by (1) removing one vehicle used by private respondent and returning the same to
its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the
bond from ₱5,000,000.00 to a more manageable level at ₱100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him
visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following
modifications prayed for by private respondent:

a) That respondent (petitioner herein) return the clothes and other personal belongings of
Rosalie and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours
from receipt of the Temporary Protection Order by his counsel, otherwise be declared in
Indirect Contempt of Court;

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal
house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the
Temporary Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to
remove Respondent from the conjugal dwelling within eight (8) hours from receipt of the
Temporary Protection Order by his counsel, and that he cannot return until 48 hours after the
petitioners have left, so that the petitioner Rosalie and her representatives can remove things
from the conjugal home and make an inventory of the household furniture, equipment and
other things in the conjugal home, which shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from receipt of
the Temporary Protection Order by his counsel, otherwise be declared in indirect contempt of
Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of
Court within 24 hours from receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment against her and their children, private respondent
filed another application24 for the issuance of a TPO ex parte. She alleged inter

alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter
was purportedly no longer president, with the end in view of recovering the Nissan Patrol and Starex
Van used by private respondent and the children. A writ of replevin was served upon private
respondent by a group of six or seven policemen with long firearms that scared the two small boys,
Jessie Anthone and Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to
kidnap him, which incident traumatized the boy resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann subsequently filed a criminal complaint
against her father for violation of R.A. 7610, also known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and illegal detention against private respondent. This
came about after private respondent, armed with a TPO, went to said home to get her and her
children's belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the
maids' room, private respondent filed a case for qualified theft against Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or through another, acts

of violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating

in any form with the offended party, either directly or indirectly;

3) Required to stay away, personally or through his friends, relatives, employees or agents,
from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers,
her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo Hontiveros,
laundrywoman Mercedita Bornales, security guard Darwin Gayona and the petitioner's other
household helpers from a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioners are temporarily residing, as well as from the schools of the
three children; Furthermore, that respondent shall not contact the schools of the children
directly or indirectly in any manner including, ostensibly to pay for their tuition or other fees
directly, otherwise he will have access to the children through the schools and the TPO will
be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to
the Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00

for rental for the period from August 6 to September 6, 2006; and support in arrears from
March 2006 to August 2006 the total amount of Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and
Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a
Starex van with Plate No. FFD 991 and should the respondent fail to deliver said vehicles,
respondent is ordered to provide the petitioner another vehicle which is the one taken by J
Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the
conjugal assets, or those real properties in the name of Jesus Chua Garcia only and those in
 which the conjugal partnership of gains of the Petitioner Rosalie J. Garcia and respondent
have an interest in, especially the conjugal home located in No. 14, Pitimini St., Capitolville
Subdivision, Bacolod City, and other properties which are conjugal assets or those in which
the conjugal partnership of gains of Petitioner Rosalie J. Garcia and the respondent have an
interest in and listed in Annexes "I," "I-1," and "I-2," including properties covered by TCT
Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a
copy of this TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer,
sale, encumbrance or disposition of these above-cited properties to any person, entity or
corporation without the personal presence of petitioner Rosalie J. Garcia, who shall affix her
signature in the presence of the Register of Deeds, due to the fear of petitioner Rosalie that
her signature will be forged in order to effect the encumbrance or sale of these properties to
defraud her or the conjugal partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another
ten (10) days, and gave petitioner a period of five (5) days within which to show cause why the TPO
should not be renewed, extended, or modified. Upon petitioner's manifestation,30 however, that he
has not received a copy of private respondent's motion to modify/renew the TPO, the trial court
directed in its Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion.
Nonetheless, an Order32 dated a day earlier, October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted hereunder:

xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary
Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days and
continuously extended and renewed for thirty (30) days, after each expiration, until further orders,
and subject to such modifications as may be ordered by the court.

After having received a copy of the foregoing Order, petitioner no longer submitted the required
comment to private respondent's motion for renewal of the TPO arguing that it would only be an
"exercise in futility."33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a
petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due
process and the equal protection clauses, and (2) the validity of the modified TPO issued in the civil
case for being "an unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO) against
the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for failure
of petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case,
which is clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity

of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the
trial court constituted a collateral attack on said law.
His motion for reconsideration of the foregoing Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now before us alleging that –

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE
ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND
THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE
LAW.

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT

R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.

III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262
RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE
POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID
AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL
POWER TO THE BARANGAY OFFICIALS.38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of R.A.
9262, we shall first tackle the propriety of the dismissal by the appellate court of the petition for
prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if
not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial
court, it will not be considered on appeal.39 Courts will not anticipate a question of constitutional law
in advance of the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City,
petitioner argues that the Family Court has limited authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality."41

We disagree.
Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family
courts have exclusive original jurisdiction to hear and decide cases of domestic violence against
women and children.42 In accordance with said law, the Supreme Court designated from among the
branches of the Regional Trial Courts at least one Family Court in each of several key cities
identified.43 To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now provides
that Regional Trial Courts designated as Family Courts shall have original and exclusive jurisdiction
over cases of VAWC defined under the latter law, viz:

SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall have original and
exclusive jurisdiction over cases of violence against women and their children under this law. In the
absence of such court in the place where the offense was committed, the case shall be filed in the
Regional Trial Court where the crime or any of its elements was committed at the option of the
complainant. (Emphasis supplied)

Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority
as a court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization, admiralty or insolvency.44 It is
settled that RTCs have jurisdiction to resolve the constitutionality of a statute,45 "this authority being
embraced in the general definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law."46The Constitution vests the power of
judicial review or the power to declare the constitutionality or validity of a law, treaty, international or
executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in this
Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of
any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where
such constitutionality happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in
part as follows:

SEC. 5. The Supreme Court shall have the following powers:

xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have
been raised at the earliest opportunity in his Opposition to the petition for protection order before the
RTC of Bacolod City, which had jurisdiction to determine the same, subject to the review of this
Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays
down a new kind of procedure requiring the respondent to file an opposition to the petition and not
an answer.49 Thus:
SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition which he
himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why
a temporary or permanent protection order should not be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject thereof may be litigated in a separate
civil action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim
and third-party complaint are to be excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim for money or other relief which a
defending party may have against an opposing party.50 A cross-claim, on the other hand, is any
claim by one party against a co-party arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counterclaim therein.51Finally, a third-party complaint is a
claim that a defending party may, with leave of court, file against a person not a party to the action
for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.52As
pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a
cause of action that could be the subject of a counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the opposition in view of the familiar maxim
expressio unius est exclusio alterius.

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the
right of private respondent to a protection order is founded solely on the very statute the validity of
which is being attacked53 by petitioner who has sustained, or will sustain, direct injury as a result of
its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid
cause for the non-issuance of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred
petitioner from raising the same in his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by evidence.54 Be that as it may, Section
25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine legal issues,
among others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may
issue an order containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the form of
affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one day,
to the extent possible, within the 30-day period of the effectivity of the temporary protection
order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order
issued is due to expire, the trial court may extend or renew the said order for a period of thirty (30)
days each time until final judgment is rendered. It may likewise modify the extended or renewed
temporary protection order as may be necessary to meet the needs of the parties. With the private
respondent given ample protection, petitioner could proceed to litigate the constitutional issues,
without necessarily running afoul of the very purpose for the adoption of the rules on summary
procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with
prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may
have proceeded upon an honest belief that if he finds succor in a superior court, he could be granted
an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of
a petition for certiorari, mandamus or prohibition against any interlocutory order issued by the trial
court. Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of
the TPO, the amended TPOs and other orders pursuant thereto was improper, and it effectively
hindered the case from taking its normal course in an expeditious and summary manner.

As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited.
Moreover, if the appeal of a judgment granting permanent protection shall not stay its
enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days at a
time,56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United
States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their
separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the community is immune from prosecution, in good
faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations
omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the
merits of the case. It bears stressing, however, that protection orders are granted ex parte so as to
protect women and their children from acts of violence. To issue an injunction against such orders
will defeat the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching implications. We have, time and again,
discharged our solemn duty as final arbiter of constitutional issues, and with more reason now, in
view of private respondent's plea in her Comment59 to the instant Petition that we should put the
challenge to the constitutionality of R.A. 9262 to rest. And so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child
abuse, which could very well be committed by either the husband or the wife, gender alone is not
enough basis to deprive the husband/father of the remedies under the law.60

A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A. 9262,
reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a "synthesized measure"62 – an amalgamation of
two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate
Relationships Act"63 – providing protection to "all family members, leaving no one in isolation" but at
the same time giving special attention to women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be denied protection under the same
measure. We quote pertinent portions of the deliberations:

Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to me that if we are to include domestic violence
apart from against women as well as other members of the household, including children or the
husband, they fear that this would weaken the efforts to address domestic violence of which the
main victims or the bulk of the victims really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does the good Senator respond to this kind
of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR"
Women in Intimate Relationship. They do not want to include men in this domestic violence. But
plenty of men are also being abused by women. I am playing safe so I placed here members of the
family, prescribing penalties therefor and providing protective measures for victims. This includes the
men, children, live-in, common-law wives, and those related with the family.65

xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether to limit this to women
and not to families which was the issue of the AWIR group. The understanding that I have is that we
would be having a broader scope rather than just women, if I remember correctly, Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong.
However, I believe that there is a need to protect women's rights especially in the domestic
environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity
to file a case against their spouses, their live-in partners after years, if not decade, of battery and
abuse. If we broaden the scope to include even the men, assuming they can at all be abused by the
women or their spouses, then it would not equalize the already difficult situation for women, Mr.
President.
I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that
the men in this Chamber who love their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world. Whether we like it or not, no matter
how empowered the women are, we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that he is stronger, more superior to
the Filipino woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because
the family members have been included in this proposed measure since the other members of the
family other than women are also possible victims of violence. While women are most likely the
intended victims, one reason incidentally why the measure focuses on women, the fact remains that
in some relatively few cases, men also stand to be victimized and that children are almost always
the helpless victims of violence. I am worried that there may not be enough protection extended to
other family members particularly children who are excluded. Although Republic Act No. 7610, for
instance, more or less, addresses the special needs of abused children. The same law is
inadequate. Protection orders for one are not available in said law.

I am aware that some groups are apprehensive about granting the same protection to men, fearing
that they may use this law to justify their abusive behavior against women. However, we should also
recognize that there are established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family as the
basic social institution. Though I recognize the unequal power relations between men and women in
our society, I believe we have an obligation to uphold inherent rights and dignity of both husband
and wife and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a
critical input arrived at after a series of consultations/meetings with various NGOs, experts, sports
groups and other affected sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill and focus specifically on women alone. That
will be the net effect of that proposed amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined
to accept the proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I will
propose an amendment to the amendment rather than object to the amendment, Mr. President.
xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished
proponent of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas
malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi
iyan. Okey lang iyan. But I cannot agree that we remove the children from this particular measure.

So, if I may propose an amendment –

The President Pro Tempore. To the amendment.

Senator Sotto. – more than the women, the children are very much abused. As a matter of fact, it is
not limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15-
year-old children being abused by their fathers, even by their mothers. And it breaks my heart to find
out about these things.

Because of the inadequate existing law on abuse of children, this particular measure will update that.
It will enhance and hopefully prevent the abuse of children and not only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but
not the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as
amended, is approved.66
It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real motivations and wisdom of the members of
Congress in limiting the protection against violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may be entertained in this proceeding. Congress
has made its choice and it is not our prerogative to supplant this judgment. The choice may be
perceived as erroneous but even then, the remedy against it is to seek its amendment or repeal by
the legislative. By the principle of separation of powers, it is the legislative that determines the
necessity, adequacy, wisdom and expediency of any law.68 We only step in when there is a violation
of the Constitution. However, none was sufficiently shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early
case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which are
different in fact be treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that are different. It does not prohibit legislation which is limited
either in the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law,
as in the other departments of knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable, which means that the classification should
be based on substantial distinctions which make for real differences; that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably
arbitrary. (Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and, as such, did not violate the equal protection
clause by favoring women over men as victims of violence and abuse to whom the State extends its
protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely than
men to be victims of violence; and the widespread gender bias and prejudice against women all
make for real differences justifying the classification under the law. As Justice McIntyre succinctly
states, "the accommodation of differences ... is the essence of true equality."70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender Equality and
Women's Empowerment), violence against women (VAW) is deemed to be closely linked with the
unequal power relationship between women and men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to think men are the leaders, pursuers, providers, and
take on dominant roles in society while women are nurturers, men's companions and supporters,
and take on subordinate roles in society. This perception leads to men gaining more power over
women. With power comes the need to control to retain that power. And VAW is a form of men's
expression of controlling women to retain power.71

The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution
48/104 on the Declaration on Elimination of Violence Against Women on December 20, 1993 stating
that "violence against women is a manifestation of historically unequal power relations between men
and women, which have led to domination over and discrimination against women by men and to the
prevention of the full advancement of women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based
violence and developments in advocacies to eradicate VAW, in his remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent
portions of which are quoted hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch of a
family was accorded the right to use force on members of the family under his control. I quote the
early studies:

Traditions subordinating women have a long history rooted in patriarchy – the institutional rule of
men. Women were seen in virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave, concubine or wife, were under the
authority of men. In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism, Christianity and other religions oriented towards
the patriarchal family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying husband and wife were one and that one was the
husband. However, in the late 1500s and through the entire 1600s, English common law began to
limit the right of husbands to chastise their wives. Thus, common law developed the rule of thumb,
which allowed husbands to beat their wives with a rod or stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict
corporeal punishment ceased. Even then, the preservation of the family was given more importance
than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English common
law. In 1871, the Supreme Court of Alabama became the first appellate court to strike down the
common law right of a husband to beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her,
spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now
acknowledged by our law... In person, the wife is entitled to the same protection of the law that the
husband can invoke for himself.
As time marched on, the women's advocacy movement became more organized. The temperance
leagues initiated it. These leagues had a simple focus. They considered the evils of alcoholism as
the root cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and their
husbands' other watering holes. Soon, however, their crusade was joined by suffragette movements,
expanding the liberation movement's agenda. They fought for women's right to vote, to own
property, and more. Since then, the feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public gaze.
They succeeded in transforming the issue into an important public concern. No less than the United
States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are the victims of
severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every
eight husbands had assaulted their wives during the past year. The [American Medical Association]
views these figures as "marked underestimates," because the nature of these incidents discourages
women from reporting them, and because surveys typically exclude the very poor, those who do not
speak English well, and women who are homeless or in institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on family violence agree that the true incidence of
partner violence is probably double the above estimates; or four million severely assaulted women
per year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically
assaulted by a partner or ex-partner during their lifetime... Thus on an average day in the United
States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents
involve sexual assault... In families where wife beating takes place, moreover, child abuse is often
present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced social and economic isolation of women, is also
common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no
superior alternative...Many abused women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of income... Returning to one's abuser
can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all
homicide victims in the United States are killed by their spouses...Thirty percent of female homicide
victims are killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United
States Charter and the Universal Declaration of Human Rights affirmed the equality of all human
beings. In 1979, the UN General Assembly adopted the landmark Convention on the Elimination of
all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also
adopted the Declaration on the Elimination of Violence Against Women. World conferences on the
role and rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing.
The UN itself established a Commission on the Status of Women.

The Philippines has been in cadence with the half – and full – steps of all these women's
movements. No less than Section 14, Article II of our 1987 Constitution mandates the State to
recognize the role of women in nation building and to ensure the fundamental equality before the law
of women and men. Our Senate has ratified the CEDAW as well as the Convention on the Rights of
the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No.
9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties therefor and for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women
and children show that –

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total
cases reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out of
4,354 cases which represent 54.31%. xxx (T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare and Development (DSWD) for the year
2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx
(T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the first semester of 2003.
Female violence comprised more than 90% of all forms of abuse and violence and more than 90% of
these reported cases were committed by the women's intimate partners such as their husbands and
live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence

against women across an eight-year period from 2004 to August of 2011 with violations under R.A.
9262 ranking first among the different VAW categories since its implementation in 2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported 200 200 200 200 200 200

2010 2011
Cases 4 5 6 7 8 9

Rape 997 927 659 837 811 770 1,042 832

Incestuous
38 46 26 22 28 27 19 23
Rape

Attempted
194 148 185 147 204 167 268 201
Rape

Acts of
Lasciviousne 580 536 382 358 445 485 745 625
ss

Physical 3,55 2,33 1,89 1,50 1,30 1,49

2,018 1,588
Injuries 3 5 2 5 7 8
 Sexual
53 37 38 46 18 54 83 63
Harassment

1,26 2,38 3,59 5,28

RA 9262 218 924 9,974 9,021
9 7 9 5

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubinag
121 102 93 109 109 99 158 128
e

RA 9208 17 11 16 24 34 152 190 62

Abduction
/Kidnapping 16 34 23 28 18 25 22
29

Unjust
90 50 59 59 83 703 183 155
Vexation

6,27 5,37 4,88 5,72 6,90 9,48 15,10 12,94

Total
1 4 1 9 5 5 4 8

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against
men in the Philippines because incidents thereof are relatively low and, perhaps, because many
men will not even attempt to report the situation. In the United Kingdom, 32% of women who had
ever experienced domestic violence did so four or five (or more) times, compared with 11% of the
smaller number of men who had ever experienced domestic violence; and women constituted 89%
of all those who had experienced 4 or more incidents of domestic violence.75Statistics in Canada
show that spousal violence by a woman against a man is less likely to cause injury than the other
way around (18 percent versus 44 percent). Men, who experience violence from their spouses are
much less likely to live in fear of violence at the hands of their spouses, and much less likely to
experience sexual assault. In fact, many cases of physical violence by a woman against a spouse
are in self-defense or the result of many years of physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles
to pick up, gather and deposit in receptacles the manure emitted or discharged by their vehicle-
drawing animals in any public highways, streets, plazas, parks or alleys, said ordinance was
challenged as violative of the guaranty of equal protection of laws as its application is limited to
owners and drivers of vehicle-drawing animals and not to those animals, although not utilized, but
similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-
vehicle-drawing animals that also traverse the city roads, "but their number must be negligible and
their appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a
menace to the health of the community."77 The mere fact that the legislative classification may result
in actual inequality is not violative of the right to equal protection, for every classification of persons
or things for regulation by law produces inequality in some degree, but the law is not thereby
rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against women
are often treated differently and less seriously than other crimes. This was argued by then United
States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against
Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal Protection Clauses. He stressed that the widespread
gender bias in the U.S. has institutionalized historic prejudices against victims of rape or domestic
violence, subjecting them to "double victimization" – first at the hands of the offender and then of the
legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police treat it as a private matter and advise the
parties to settle the conflict themselves. Once the complainant brings the case to the prosecutor, the
latter is hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or
reluctance to be involved by the police and prosecution reinforces the escalating, recurring and often
serious nature of domestic violence."80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and irreverent language in reference to the
complainant in a petition for TPO and PPO under R.A. 9262, calling her as "only a live-in partner"
and presenting her as an "opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila
even called her a "prostitute," and accused her of being motivated by "insatiable greed" and of
absconding with the contested property.81 Such remarks betrayed Judge Amila's prejudices and lack
of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and
prejudices against women. As emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting discrimination through specific measures
focused on women does not discriminate against men.82Petitioner's contention,83 therefore, that R.A.
9262 is discriminatory and that it is an "anti-male," "husband-bashing," and "hate-men" law deserves
scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take all
appropriate measures "to modify the social and cultural patterns of conduct of men and women, with
a view to achieving the elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for
men and women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing the
character of domestic violence from a private affair to a public offense will require the development
of a distinct mindset on the part of the police, the prosecution and the judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to
address violence committed against women and children, spelled out in its Declaration of Policy, as
follows:

SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity of women and
children and guarantees full respect for human rights. The State also recognizes the need to protect
the family and its members particularly women and children, from violence and threats to their
personal safety and security.

Towards this end, the State shall exert efforts to address violence committed against women and
children in keeping with the fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August
5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on
October 6, 2003.86 This Convention mandates that State parties shall accord to women equality with
men before the law87 and shall take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the Rights of the Child and its two
protocols.89 It is, thus, bound by said Conventions and their respective protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women and
their children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3
thereof defines VAWC as:

x x x any act or a series of acts committed by any person against a woman who is his wife, former
wife, or against a woman with whom the person has or had a sexual or dating relationship, or with
whom he has a common child, or against her child whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment
or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her
child. It includes, but is not limited to:
 a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as
a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by
force, threat of force, physical or other harm or threat of physical or other harm or
coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional
suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes
causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of
the family to which the victim belongs, or to witness pornography in any form or to witness abusive
injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of
common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent
which includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any

legitimate profession, occupation, business or activity, except in cases wherein the
other spouse/partner objects on valid, serious and moral grounds as defined in
Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the use
and enjoyment of the conjugal, community or property owned in common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the conjugal
money or properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to
research that has exposed the dimensions and dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination of Violence Against Women.90 Hence, the
argument advanced by petitioner that the definition of what constitutes abuse removes the difference
between violent action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in
his defense. The acts enumerated above are easily understood and provide adequate contrast
between the innocent and the prohibited acts. They are worded with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited, and need not guess at
its meaning nor differ in its application.91 Yet, petitioner insists92that phrases like "depriving or
threatening to deprive the woman or her child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and "causing mental or emotional anguish" are so
vague that they make every quarrel a case of spousal abuse. However, we have stressed that the
"vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld –
not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather
than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the
culprit. As defined above, VAWC may likewise be committed "against a woman with whom the
person has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word
"person" who has or had a sexual or dating relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender be related or connected to the
victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised Penal Code (RPC). Thus, in the case of
Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be
proper respondents in the case filed by the latter upon the allegation that they and their son (Go-
Tan's husband) had community of design and purpose in tormenting her by giving her insufficient
financial support; harassing and pressuring her to be ejected from the family home; and in
repeatedly abusing her verbally, emotionally, mentally and physically.

R.A. 9262 is not violative of the

due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections
afforded by the due process clause of the Constitution. Says he: "On the basis of unsubstantiated
allegations, and practically no opportunity to respond, the husband is stripped of family, property,
guns, money, children, job, future employment and reputation, all in a matter of seconds, without an
inkling of what happened."95

A protection order is an order issued to prevent further acts of violence against women and their
children, their family or household members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life.96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing
acts that jeopardize the employment and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from violence, to prevent their abduction
by the perpetrator and to ensure their financial support."97

The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further violence is to be prevented,"99 the court is
authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or
property of the victim is in jeopardy and there is reasonable ground to believe that the order is
necessary to protect the victim from the immediate and imminent danger of VAWC or to prevent
such violence, which is about to recur.100

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The
victim is required not only to verify the allegations in the petition, but also to attach her witnesses'
affidavits to the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process.
Just like a writ of preliminary attachment which is issued without notice and hearing because the
time in which the hearing will take could be enough to enable the defendant to abscond or dispose of
his property,102 in the same way, the victim of VAWC may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even death, if notice and hearing were
required before such acts could be prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities of protecting vital public
interests,103among which is protection of women and children from violence and threats to their
personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that
notice be immediately given to the respondent directing him to file an opposition within five (5) days
from service. Moreover, the court shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30)
days from service on the respondent.104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
service of the notice upon the respondent requiring him to file an opposition to the petition within five
(5) days from service. The date of the preliminary conference and hearing on the merits shall
likewise be indicated on the notice.105

The opposition to the petition which the respondent himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent protection order should
not be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, the
fear of petitioner of being "stripped of family, property, guns, money, children, job, future employment
and reputation, all in a matter of seconds, without an inkling of what happened" is a mere product of
an overactive imagination. The essence of due process is to be found in the reasonable opportunity
to be heard and submit any evidence one may have in support of one's defense. "To be heard" does
not only mean verbal arguments in court; one may be heard also through pleadings. Where
opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial
of procedural due process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise,
on May 23, 2006, petitioner filed a motion for the modification of the TPO to allow him visitation
rights to his children. Still, the trial court in its Order dated September 26, 2006, gave him five days
(5) within which to show cause why the TPO should not be renewed or extended. Yet, he chose not
to file the required comment arguing that it would just be an "exercise in futility," conveniently
forgetting that the renewal of the questioned TPO was only for a limited period (30 days) each time,
and that he could prevent the continued renewal of said order if he can show sufficient cause
therefor. Having failed to do so, petitioner may not now be heard to complain that he was denied due
process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the
residence of the victim, regardless of ownership of the residence, is virtually a "blank check" issued
to the wife to claim any property as her conjugal home.108

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that
this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or
all of the following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the offended party, regardless of
ownership of the residence, either temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to accompany the respondent to
the residence, remain there until the respondent has gathered his things and escort him from the
residence;

xxxx

Indubitably, petitioner may be removed and excluded from private respondent's residence,
regardless of ownership, only temporarily for the purpose of protecting the latter. Such removal and
exclusion may be permanent only where no property rights are violated. How then can the private
respondent just claim any property and appropriate it for herself, as petitioner seems to suggest?

The non-referral of a VAWC case

to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation
and counseling, the law has done violence to the avowed policy of the State to "protect and
strengthen the family as a basic autonomous social institution."109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof
to a mediator. The reason behind this provision is well-explained by the Commentary on Section 311
of the Model Code on Domestic and Family Violence as follows:110

This section prohibits a court from ordering or referring parties to mediation in a proceeding for an
order for protection. Mediation is a process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject
for compromise. A process which involves parties mediating the issue of violence implies that the
victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection
is problematic because the petitioner is frequently unable to participate equally with the person
against whom the protection order has been sought. (Emphasis supplied)

There is no undue delegation of

judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and such other lower courts as may be established
by law" and, thus, protests the delegation of power to barangay officials to issue protection
orders.111 The pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection
Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator
to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who
1âwphi1

receives applications for a BPO shall issue the protection order to the applicant on the date of filing
after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to
act on the application for a BPO, the application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an
attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of
an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the
same on the respondent, or direct any barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.112 On the other hand, executive power "is generally defined as
the power to enforce and administer the laws. It is the power of carrying the laws into practical
operation and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her
child physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in
pursuance of his duty under the Local Government Code to "enforce all laws and ordinances," and to
"maintain public order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of
certain facts and to apply the law thereto in order to determine what his official conduct shall be and
the fact that these acts may affect private rights do not constitute an exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding
"whether there is reasonable ground to believe that an offense has been committed and the accused
is probably guilty thereof," the Punong Barangay must determine reasonable ground to believe that
an imminent danger of violence against the woman and her children exists or is about to recur that
would necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor
is, concededly, an executive, not a judicial, function. The same holds true with the issuance of a
BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other law
enforcement agencies are required to extend assistance to victims of violence and abuse, it would
be very unlikely that they would remain objective and impartial, and that the chances of acquittal are
nil. As already stated, assistance by barangay officials and other law enforcement agencies is
consistent with their duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear
conflict with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of the Court. In other words, the grounds for nullity
must be beyond reasonable doubt.116 In the instant case, however, no concrete evidence and
convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality
of R.A. 9262, which is an act of Congress and signed into law by the highest officer of the co-equal
executive department. As we said in Estrada v. Sandiganbayan, 117 courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and passed laws with
full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare
of the majority.

We reiterate here Justice Puno's observation that "the history of the women's movement against
domestic violence shows that one of its most difficult struggles was the fight against the violence of
law itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for
equality but will be its fulfillment."118 Accordingly, the constitutionality of R.A. 9262 is, as it should be,
sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

G.R. No. 179736 June 26, 2013

SPOUSES BILL AND VICTORIA HING, Petitioners,

vs.
ALEXANDER CHOACHUY, SR. and ALLAN CHOACHUY, Respondents.

DECISION

DEL CASTILLO, J.:

"The concept of liberty would be emasculated if it does not likewise compel respect for one's
personality as a unique individual whose claim to privacy and non-interference demands respect."1

This Petition for Review on Certiorari2 under Rule 45 of the Rules of Court assails the July 10, 2007
Decision3 and the September 11, 2007 Resolution4 of the Court of Appeals (CA) in CA-G.R. CEB-SP
No. 01473.

Factual Antecedents

On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with the Regional Trial Court
(RTC) of Mandaue City a Complaint5 for Injunction and Damages with prayer for issuance of a Writ
of Preliminary Mandatory Injunction/Temporary Restraining Order (TRO), docketed as Civil Case
MAN-5223 and raffled to Branch 28, against respondents Alexander Choachuy, Sr. and Allan
Choachuy.

Petitioners alleged that they are the registered owners of a parcel of land (Lot 1900-B) covered by
Transfer Certificate of Title (TCT) No. 42817 situated in Barangay Basak, City of Mandaue,
Cebu;6 that respondents are the owners of Aldo Development & Resources, Inc. (Aldo) located at
Lots 1901 and 1900-C, adjacent to the property of petitioners;7 that respondents constructed an
auto-repair shop building (Aldo Goodyear Servitec) on Lot 1900-C; that in April 2005, Aldo filed a
case against petitioners for Injunction and Damages with Writ of Preliminary Injunction/TRO,
docketed as Civil Case No. MAN-5125;8 that in that case, Aldo claimed that petitioners were
constructing a fence without a valid permit and that the said construction would destroy the wall of its
building, which is adjacent to petitioners’ property;9 that the court, in that case, denied Aldo’s
application for preliminary injunction for failure to substantiate its allegations;10 that, in order to get
evidence to support the said case, respondents on June 13, 2005 illegally set-up and installed on the
building of Aldo Goodyear Servitec two video surveillance cameras facing petitioners’ property;11 that
respondents, through their employees and without the consent of petitioners, also took pictures of
petitioners’ on-going construction;12 and that the acts of respondents violate petitioners’ right to
privacy.13 Thus, petitioners prayed that respondents be ordered to remove the video surveillance
cameras and enjoined from conducting illegal surveillance.14

In their Answer with Counterclaim,15 respondents claimed that they did not install the video
surveillance cameras,16nor did they order their employees to take pictures of petitioners’
construction.17 They also clarified that they are not the owners of Aldo but are mere stockholders.18

Ruling of the Regional Trial Court

On October 18, 2005, the RTC issued an Order19 granting the application for a TRO. The dispositive
portion of the said Order reads:

WHEREFORE, the application for a Temporary Restraining Order or a Writ of Preliminary Injunction
is granted. Upon the filing and approval of a bond by petitioners, which the Court sets at ₱50,000.00,
let a Writ of Preliminary Injunction issue against the respondents Alexander Choachuy, Sr. and Allan
Choachuy. They are hereby directed to immediately remove the revolving camera that they installed
at the left side of their building overlooking the side of petitioners’ lot and to transfer and operate it
elsewhere at the back where petitioners’ property can no longer be viewed within a distance of about
2-3 meters from the left corner of Aldo Servitec, facing the road.

IT IS SO ORDERED.20

Respondents moved for a reconsideration21 but the RTC denied the same in its Order22 dated
February 6, 2006.23Thus:

WHEREFORE, the Motion for Reconsideration is hereby DENIED for lack of merit. Issue a Writ of
Preliminary Injunction in consonance with the Order dated 18 October 2005.

IT IS SO ORDERED.24

Aggrieved, respondents filed with the CA a Petition for Certiorari25 under Rule 65 of the Rules of
Court with application for a TRO and/or Writ of Preliminary Injunction.

Ruling of the Court of Appeals

On July 10, 2007, the CA issued its Decision26 granting the Petition for Certiorari. The CA ruled that
the Writ of Preliminary Injunction was issued with grave abuse of discretion because petitioners
failed to show a clear and unmistakable right to an injunctive writ.27 The CA explained that the right
to privacy of residence under Article 26(1) of the Civil Code was not violated since the property
subject of the controversy is not used as a residence.28 The CA alsosaid that since respondents are
not the owners of the building, they could not have installed video surveillance cameras.29 They are
mere stockholders of Aldo, which has a separate juridical personality.30 Thus, they are not the proper
parties.31 The fallo reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING

the petition filed in this case. The assailed orders dated October 18, 2005 and February 6, 2006
issued by the respondent judge are hereby ANNULLED and SET ASIDE.
SO ORDERED.32

Issues

Hence, this recourse by petitioners arguing that:

I.

THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT ANNULLED AND SET ASIDE THE
ORDERS OF THE RTC DATED 18 OCTOBER 2005 AND 6 FEBRUARY 2006 HOLDING THAT
THEY WERE ISSUED WITH GRAVE ABUSE OF DISCRETION.

II.

THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT PETITIONER

SPOUSES HING ARE NOT ENTITLED TO THE WRIT OF PRELIMINARY INJUNCTION ON THE
GROUND THAT THERE IS NO VIOLATION OF THEIR CONSTITUTIONAL AND CIVIL RIGHT TO
PRIVACY DESPITE THE FACTUAL FINDINGS OF THE RTC, WHICH RESPONDENTS
CHOACHUY FAILED TO REFUTE, THAT THE ILLEGALLY INSTALLED SURVEILLANCE
CAMERAS OF RESPONDENTS CHOACH[U]Y WOULD CAPTURE THE PRIVATE ACTIVITIES OF
PETITIONER SPOUSES HING, THEIR CHILDREN AND EMPLOYEES.

III.

THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT SINCE THE

OWNER OF THE BUILDING IS ALDO DEVELOPMENT AND RESOURCES, INC. THEN TO SUE
RESPONDENTS CHOACHUY CONSTITUTES A PURPORTEDLY UNWARRANTED PIERCING
OF THE CORPORATE VEIL.

IV.

THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT IGNORED THE SERIOUS

FORMAL DEFICIENCIES OF BOTH THE PETITION AND THE MOTION FOR
RECONSIDERATION DATED 15 MARCH 2006 OF RESPONDENTS CHOACHUY AND GAVE X X
X THEM DUE COURSE AND CONSIDERATION.33

Essentially, the issues boil down to (1) whether there is a violation of petitioners’ right to privacy, and
(2) whether respondents are the proper parties to this suit.

Petitioners’ Arguments

Petitioners insist that they are entitled to the issuance of a Writ of Preliminary Injunction because
respondents’ installation of a stationary camera directly facing petitioners’ property and a revolving
camera covering a significant portion of the same property constitutes a violation of petitioners’ right
to privacy.34 Petitioners cite Article 26(1) of the Civil Code, which enjoins persons from prying into the
private lives of others.35 Although the said provision pertains to the privacy of another’s residence,
petitioners opine that it includes business offices, citing Professor Arturo M. Tolentino.36 Thus, even
assuming arguendo that petitioners’ property is used for business, it is still covered by the said
provision.37
As to whether respondents are the proper parties to implead in this case, petitioners claim that
respondents and Aldo are one and the same, and that respondents only want to hide behind Aldo’s
corporate fiction.38 They point out that if respondents are not the real owners of the building, where
the video surveillance cameras were installed, then they had no business consenting to the ocular
inspection conducted by the court.39

Respondents’ Arguments

Respondents, on the other hand, echo the ruling of the CA that petitioners cannot invoke their right
to privacy since the property involved is not used as a residence.40 Respondents maintain that they
had nothing to do with the installation of the video surveillance cameras as these were installed by
Aldo, the registered owner of the building,41as additional security for its building.42 Hence, they were
wrongfully impleaded in this case.43

Our Ruling

The Petition is meritorious.

The right to privacy is the right to be let alone.

The right to privacy is enshrined in our Constitution44 and in our laws. It is defined as "the right to be
free from unwarranted exploitation of one’s person or from intrusion into one’s private activities in
such a way as to cause humiliation to a person’s ordinary sensibilities."45 It is the right of an
individual "to be free from unwarranted publicity, or to live without unwarranted interference by the
public in matters in which the public is not necessarily concerned."46 Simply put, the right to privacy is
"the right to be let alone."47

The Bill of Rights guarantees the people’s right to privacy and protects them against the State’s
abuse of power. In this regard, the State recognizes the right of the people to be secure in their
houses. No one, not even the State, except "in case of overriding social need and then only under
the stringent procedural safeguards," can disturb them in the privacy of their homes.48

The right to privacy under Article 26(1)

of the Civil Code covers business offices

where the public are excluded

therefrom and only certain individuals

are allowed to enter.

Article 26(1) of the Civil Code, on the other hand, protects an individual’s right to privacy and
provides a legal remedy against abuses that may be committed against him by other individuals. It
states:

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons. The following and similar acts, though they may not constitute a
criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of another’s residence;

 xxxx

This provision recognizes that a man’s house is his castle, where his right to privacy cannot be
denied or even restricted by others. It includes "any act of intrusion into, peeping or peering
inquisitively into the residence of another without the consent of the latter."49 The phrase "prying into
the privacy of another’s residence," however, does not mean that only the residence is entitled to
privacy. As elucidated by Civil law expert Arturo M. Tolentino:

Our Code specifically mentions "prying into the privacy of another’s residence." This does not mean,
however, that only the residence is entitled to privacy, because the law covers also "similar acts." A
business office is entitled to the same privacy when the public is excluded therefrom and only such
individuals as are allowed to enter may come in. x x x50 (Emphasis supplied)

Thus, an individual’s right to privacy under Article 26(1) of the Civil Code should not be confined to
his house or residence as it may extend to places where he has the right to exclude the public or
deny them access. The phrase "prying into the privacy of another’s residence," therefore, covers
places, locations, or even situations which an individual considers as private. And as long as his
right is recognized by society, other individuals may not infringe on his right to privacy. The CA,
therefore, erred in limiting the application of Article 26(1) of the Civil Code only to residences.

The "reasonable expectation of

privacy" test is used to determine
whether there is a violation of the right
to privacy.

In ascertaining whether there is a violation of the right to privacy, courts use the "reasonable
expectation of privacy" test. This test determines whether a person has a reasonable expectation of
privacy and whether the expectation has been violated.51 In Ople v. Torres,52 we enunciated that "the
reasonableness of a person’s expectation of privacy depends on a two-part test: (1) whether, by his
conduct, the individual has exhibited an expectation of privacy; and (2) this expectation is one that
society recognizes as reasonable." Customs, community norms, and practices may, therefore, limit
or extend an individual’s "reasonable expectation of privacy."53 Hence, the reasonableness of a
person’s expectation of privacy must be determined on a case-to-case basis since it depends on the
factual circumstances surrounding the case.54

In this day and age, video surveillance cameras are installed practically everywhere for the
protection and safety of everyone. The installation of these cameras, however, should not cover
places where there is reasonable expectation of privacy, unless the consent of the individual, whose
right to privacy would be affected, was obtained. Nor should these cameras be used to pry into the
privacy of another’s residence or business office as it would be no different from eavesdropping,
which is a crime under Republic Act No. 4200 or the Anti-Wiretapping Law.

In this case, the RTC, in granting the application for Preliminary Injunction, ruled that:

After careful consideration, there is basis to grant the application for a temporary restraining order.
The operation by respondents of a revolving camera, even if it were mounted on their building,
violated the right of privacy of petitioners, who are the owners of the adjacent lot. The camera does
not only focus on respondents’ property or the roof of the factory at the back (Aldo Development and
Resources, Inc.) but it actually spans through a good portion of the land of petitioners.

Based on the ocular inspection, the Court understands why petitioner Hing was so unyielding in
asserting that the revolving camera was set up deliberately to monitor the on[-]going construction in
his property. The monitor showed only a portion of the roof of the factory of Aldo. If the purpose of
respondents in setting up a camera at the back is to secure the building and factory premises, then
the camera should revolve only towards their properties at the back. Respondents’ camera cannot
be made to extend the view to petitioners’ lot. To allow the respondents to do that over the objection
of the petitioners would violate the right of petitioners as property owners. "The owner of a thing
cannot make use thereof in such a manner as to injure the rights of a third person."55

The RTC, thus, considered that petitioners have a "reasonable expectation of privacy" in their
property, whether they use it as a business office or as a residence and that the installation of video
surveillance cameras directly facing petitioners’ property or covering a significant portion thereof,
without their consent, is a clear violation of their right to privacy. As we see then, the issuance of a
preliminary injunction was justified. We need not belabor that the issuance of a preliminary injunction
is discretionary on the part of the court taking cognizance of the case and should not be interfered
with, unless there is grave abuse of discretion committed by the court.56 Here, there is no indication
of any grave abuse of discretion. Hence, the CA erred in finding that petitioners are not entitled to an
injunctive writ.

This brings us to the next question: whether respondents are the proper parties to this suit.

A real party defendant is one who has a

correlative legal obligation to redress a
wrong done to the plaintiff by reason of
the defendant's act or omission which
had violated the legal right of the
former.

Section 2, Rule 3 of the Rules of Court provides:

SEC. 2. Parties-in-interest. — A real party-in-interest is the party who stands to be benefited or

injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or defended in the name of the
real party-in-interest.

A real party defendant is "one who has a correlative legal obligation to redress a wrong done to the
plaintiff by reason of the defendant’s act or omission which had violated the legal right of the
former."57

In ruling that respondents are not the proper parties, the CA reasoned that since they do not own the
building, they could not have installed the video surveillance cameras.58 Such reasoning, however, is
erroneous. The fact that respondents are not the registered owners of the building does not
automatically mean that they did not cause the installation of the video surveillance cameras.

In their Complaint, petitioners claimed that respondents installed the video surveillance cameras in
order to fish for evidence, which could be used against petitioners in another case.59 During the
hearing of the application for Preliminary Injunction, petitioner Bill testified that when respondents
installed the video surveillance cameras, he immediately broached his concerns but they did not
seem to care,60 and thus, he reported the matter to the barangay for mediation, and eventually, filed
a Complaint against respondents before the RTC.61 He also admitted that as early as 1998 there has
already been a dispute between his family and the Choachuy family concerning the boundaries of
their respective properties.62 With these factual circumstances in mind, we believe that respondents
are the proper parties to be impleaded.
Moreover, although Aldo has a juridical personality separate and distinct from its stockholders,
records show that it is a family-owned corporation managed by the Choachuy family.63

Also quite telling is the fact that respondents, notwithstanding their claim that they are not owners of
the building, allowed the court to enter the compound of Aldo and conduct an ocular inspection. The
counsel for respondents even toured Judge Marilyn Lagura-Yap inside the building and answered all
her questions regarding the set-up and installation of the video surveillance cameras.64 And when
respondents moved for reconsideration of the Order dated October 18, 2005 of the RTC, one of the
arguments they raised is that Aldo would suffer damages if the video surveillance cameras are
removed and transferred.65 Noticeably, in these instances, the personalities of respondents and Aldo
seem to merge.

All these taken together lead us to the inevitable conclusion that respondents are merely using the
corporate fiction of Aldo as a shield to protect themselves from this suit. In view of the foregoing, we
find that respondents are the proper parties to this suit.

WHEREFORE, the Petition is hereby GRANTED. The Decision dated July 10, 2007 and the
Resolution dated September 11, 2007 of the Court of Appeals in CA-G.R. CEB-SP No. 01473 are
hereby REVERSED and SET ASIDE. The Orders dated October 18,2005 and February 6, 200[6] of
Branch 28 of the Regional Trial Court of Mandaue City in Civil Case No. MAN-5223 are hereby
REINSTATED and AFFIRMED.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice