benchmark a year after 9262
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For BENCHMARK
Supreme Court
March April 2005 issue
A YEARAFTERR.A. NO. 9262
By: Rowena Villena Guanzon, LLB, MPA*
A year after the effectivity of Republic Act No. 9262 otherwise
known as the Anti-Violence Against Women and their Children Act of 2004,
the wheels of justice grind too slowly for many women. While the intent of
the law is to give women and their children immediate relief through
Temporary Protection Orders (TPOs), the TPOs can be deliberately ignored
by respondents, and some judges do not issue TPOs notwithstanding Article
4 which provides that the law shall be liberally construed to ensure the safety
and protection of women and their children. Many other issues hound the
courts, and a year after may be a good time for the Supreme Court to review
the judicial practice on Republic Act No. 9262, not only to identify problems
and issues for reform, but also to ensure that judges have undergone
seminars on the law as well as gender sensitivity trainings.
Many women complain that the judicial process is too slow especially
when the remedy includes support for the wife and children. In one of the
____________________________________________________________* Atty. Rowena V. Guanzon is the Co-Project Leader of the Gender Justice Awards. As former
Consultant to Senate President Franklin M. Drilon, she helped draft R.A. No. 9262. She is a
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graduate of the U.P. College of Law (1984) and has a Masters degree in Public Administration
from Harvard University (1995). She is a Founding Member of Gender Watch Coalition.
first cases to be filed under this law, the petitioner did not receive a single
centavo of support which was ordered in the TPO. After the TPO was
issued, the respondent filed a Petition for Certiorari. The Court of Appeals
issued a Temporary Restraining Order notwithstanding the argument of the
counsel for the petitioner that a TPO cannot be appealed much less be issued
against a TPO, otherwise it will defeat the intent and spirit of the law, which
is to give women and their children immediate relief. After more than 200
days, the Court of Appeals finally dismissed the Petition for Certiorari, not
because under the Rule on Anti-Violence Against Women and their Children
a TPO cannot be appealed but because it found no justiciable controversy
since the TPO was not extended by the new presiding judge.
Republic Act No. 9262 is catching a lot of attention because no other
law comes closer to our homes. The law provides for the relief of a
Temporary and Permanent Protection Order, a criminal action, and a
Barangay Protection Order (BPO). Although the criminal action is an
option for the complainant, the focus of this law is the civil action for a
Temporary and Permanent Protection Order because it can provide
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immediate relief to protect the woman and her children, and give the woman
an opportunity to have some control over her life. The BPO is provided also
as a remedy for those who do not want to bring the respondent to court.
Through the BPO, which is issued ex parte and effective for 15 days,
barangay officials can give immediate response to the victims cry for help.
A Temporary and Permanent Protection Order is the favored remedy
compared to criminal actions because it is faster, and the court can grant
custody of minor children to the woman, order the respondent to stay away
from her to prevent further violence, and pay support to his lawful wife and
his legitimate and illegitimate minor children. A TPO can also order the
respondent to leave the conjugal home regardless of ownership temporarily,
or permanently where there is no issue of ownership; give one vehicle to the
woman regardless of ownership; and grant temporary custody and support of
minor children to the woman, including an automatic remittance of the
respondents salary to the petitioner. Unlike an action for support which can
take months for supportpendent elite to be granted, a TPO which includes
support can be issued exparte on the same day that the petition is filed.
Such is the promise of the law, but if the courts cannot enforce their
protection orders, the TPO may just be but a brief and empty victory for
victims.
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To guide the judges and lawyers, the Supreme Court adopted the Rule
on Anti-Violence Against Women and their Children which took effect on
November 15, 2004. Under this Rule, the Supreme Court emphasizes the
urgency of a TPO, which may be issued ex parte on the same day of filing of
the petition, which under the law shall be continuously extended or renewed
until final judgment. The salient features of the Rule are: 1) it applies to
protection orders under R.A. 9262 as a separate petition without claiming
damages, as incident in criminal action, and as incident in a civil action; 2) it
is liberally construed to promote its objectives pursuant to the principles of
restorative justice; 3) the clerk of court has a duty to assist petitioner in filing
up the form for petition for protection order, advising her of availability of
free legal aid; 4) the Revised Rule on Summary Procedure applies as far as
practicable; 5) hearings shall be conducted in a manner consistent with the
dignity of women and their children and respect for their privacy; 6) the
hearing shall be conducted within one day if possible, and the court shall
decide within 30 days after termination of hearing on the merits; 7) live-link
testimony to eyewitnesses or victims shall be available; 8) history of abusive
conduct of respondent is admissible, if relevant; 9) a TPO cannot be
appealed on certiorari; no petition for certiorari, mandamus or prohibition
against interlocutory order issued by the court; 10) it provides for prohibited
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pleadings to prevent delay, which are: motion to dismiss except lack of
jurisdiction, intervention, motion for new trial, or for reconsideration of a
( temporary) protection order, or reopening of trial, and petition for relief
from judgment.
When the Rule was adopted, litigants and their lawyers gave a sigh of
relief because there were many judges who were tentative about their steps.
But even with the Rule, womens rights lawyers raise many issues, among
them, the lack of urgency on the part of many judges which stems from their
lack of gender sensitivity and understanding of the problem of violence
against women, the problem of weak implementation of TPOs, and legal
issues. Among these issues are whether or not a TPO must be renewed or
extended while hearings are going on, whether or not a TPO should include
that the respondent file a bond to keep the peace, and whether or not a TPO
or a denial of a TPO may be appealed on Certiorari. Foremost of the legal
issues is the constitutionality issue raised in at least two pending cases,
specifically, whether or not the law is unconstitutional because it protects
women only, thereby violating the right of men to equal protection of the
law. This issue is the crux of the resistance against R.A. No. 9262, but until
such time that it is brought to the Supreme Court, the law stands as it is,
protecting women and children only.
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The Anti-Violence Against Women and their Children Act of 2004 is
a challenge for the judiciary, for it is with this law more than others that the
gender sensitivity of judges will be tested and their gender bias subjected to
public scrutiny. Without a keen understanding of the situation of abused
women and their children, and without throwing away all gender
stereotyping of roles of women and men, a judge can only apply the law in
its technical sense, lacking in the understanding of violence against women
and why women and their children need urgent and full protection of the
law. In that unfortunate situation, the judge will have no appreciation of the
rationale and spirit of the law, and can even ignore the provision on
liberality of construction in favor of ensuring the safety and protection of the
petitioner.
Although R.A. No. 9262 was passed only after a decade of advocacy
by women legislators and womens rights advocates and is certainly long
overdue, it could not have come at a better time for the judiciary. Under
Chief Justice Hilario G. Davide, Jr. gender mainstreaming is now a byword
in the Judiciary. No other Chief Justice has been as vocal about his desire
for the courts to be a vehicle for ending violence against women. Under his
leadership, the Supreme Court has a continuing gender sensitivity training
program for judges, although its benefits may not be seen in the short term.
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The Chief Justice has hit the mark. Republic Act No. 9262 can only work if
we have gender sensitive judges and gender-responsive courts.
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