Benchmark a Year After 9262

8/8/2019 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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Benchmark a Year After 9262