G.R. No. 170701, January 22, 2014
RALPH P. TUA, Petitioner, v. HON. CESAR A. MANGROBANG, PRESIDING JUDGE, BRANCH 22, REGIONAL TRIAL COURT, IMUS, CAVITE; AND ROSSANA HONRADO-TUA, Respondents.
D E C I S I O N
Pursuant to the provisions of R.A. 9262, otherwise known as the “Anti-Violence Against Women and their Children Act of 2004, a Temporary Protection Order (TPO) effective for thirty (30) days from date of receipt is hereby issued against respondent Ralph P. Tua.
For the purpose of the implementation of the Temporary Protection Order, the respondent (herein petitioner Ralph) is hereby ordered to:chanRoblesVirtualawlibrary1. Enjoin from committing and threatening to commit personally or through another, physical, verbal and emotional harm or abuse against the herein petitioner (respondent) and other family and household members;
2. Restrain from harassing, annoying, texting, telephoning, contacting or otherwise communicating with the petitioner (respondent) whether directly or indirectly or engaged in any psychological form of harassment;
3. Stay away from the petitioner (respondent) and other family and household members at a distance of 100 meters radius from the place of residence of the plaintiff and likewise to stay away from the residence, school, place of employment and other places frequented by the herein petitioner (respondent), and other family and household members.
4. Give and deliver the three (3) minor children of the petitioner (respondent) to the [latter] who shall have their temporary custody pending the determination of whether or not a permanent protection order shall issue.VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW.
The Sheriff of this Court, the PNP Imus, Cavite, or any Officers of the Law are hereby commanded to effect this Order immediately and to use necessary force and measures under the law to implement this Order.
Let the hearing for Permanent Protection Order be set on June 9, 2005 at 2:00 o’clock in the afternoon.
WHEREFORE, based on the foregoing premises, the instant petition is hereby DENIED for lack of merit. Accordingly, the assailed Temporary Protection Order dated May 23, 2002 (sic) issued by the Regional Trial Court of Imus, Cavite, Branch 22 in Civil Case No. 0464-05 is UPHELD.10
THE HONORABLE COURT OF APPEALS WITH DUE RESPECT SERIOUSLY ERRED IN HOLDING AND FINDING IN A MANNER CONTRARY TO ESTABLISHED RULES AND JURISPRUDENCE THAT PUBLIC RESPONDENT COMMITTED NO GRAVE ABUSE OF DISCRETION WHEN THE LATTER ISSUED THE TEMPORARY PROTECTIVE ORDER (TPO) DATED 23 MAY 2005 WITHOUT OBSERVING DUE PROCESS OF LAW AND CONSIDERATIONS OF JUSTICE AND BASIC HUMAN RIGHTS.
THE HONORABLE COURT OF APPEALS IN REFUSING TO RULE ON THE CONSTITUTIONALITY OF THE PROVISIONS OF RA 9262 HAS DECIDED THE CASE IN A MANNER NOT IN ACCORD WITH ESTABLISHED LAWS AND JURISPRUDENCE CONSIDERING THAT CONTRARY TO ITS FINDINGS THE CONSTITUTIONALITY OF THE SAID LAW IS THE LIS MOTA OF THE CASE.11
SECTION 15. Temporary Protection Orders. - Temporary Protection Orders (TPOs) refers to the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued. A court may grant in a TPO any, some or all of the reliefs mentioned in this Act and shall be effective for thirty (30) days. The court shall schedule a hearing on the issuance of a [Permanent Protection Order] PPO prior to or on the date of the expiration of the TPO. The court shall order the immediate personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO shall include notice of the date of the hearing on the merits of the issuance of a PPO.
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.
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.
The rules require that petitions for protection order be in writing, signed and verified by the petitioner 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,’ 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.
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.
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, 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, among 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.
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.
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.
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. x x x. 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.14
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 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.
SECTION 15. Temporary Protection Orders. - Temporary Protection Orders (TPOs) refers to the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued. A court may grant in a TPO any, some or all of the reliefs mentioned in this Act and shall be effective for thirty (30) days. The court shall schedule a hearing on the issuance of a PPO prior to or on the date of the expiration of the TPO. The court shall order the immediate personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO shall include notice of the date of the hearing on the merits of the issuance of a PPO.
SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts:chanRoblesVirtualawlibrary(a) Causing physical harm to the woman or her child;
(b) Threatening to cause the woman or her child physical harm;
(c) Attempting to cause the woman or her child physical harm;
(d) Placing the woman or her child in fear of imminent physical harm;
(e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman’s or her child’s freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman’s or her child’s movement or conduct:chanRoblesVirtualawlibrary(1) Threatening to deprive or actually depriving the woman or her child of custody to her/his family;
(2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman’s children insufficient financial support;
(3) Depriving or threatening to deprive the woman or her child of a legal right;
(4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim’s own money or properties, or solely controlling the conjugal or common money, or properties;(f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions;
(g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family;
(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts:chanRoblesVirtualawlibrary(1) Stalking or following the woman or her child in public or private places;
(2) Peering in the window or lingering outside the residence of the woman or her child;
(3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will;
(4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and
(5) Engaging in any form of harassment or violence;(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman’s child/children.
1 Penned by Associate Justice Elvi John S. Asuncion, with Associate Justices Noel G. Tijam and Arturo G. Tayag, concurring; rollo, pp. 54-58.
2Rollo, pp. 129-132.
3Id. at 133-136.
4Id. at 60-61; per Judge Cesar A. Mangrobang.
5Id. (Emphasis in the original)
6Id. at 62-66.
7 Penned by Associate Justice Elvi John S. Asuncion, with Associate Justices Hakim S. Abdulhawid and Lucenito N. Tagle, concurring; CA rollo, pp. 86-87.
8Id. at 93-94.
9Id. at 144-177; In attendance were Associate Justices Elvi John S. Asuncion, Hakim S. Abdulhawid and Estela M. Perlas-Bernabe (now a member of the Supreme Court).
10Rollo, p. 58. (Emphasis in the original)
11Id. at 25.
12Garcia v. Drilon, G. R. No. 179267, June 25, 2013, 699 SCRA 352, 401.
14Id. at 426-429. (Emphasis in the original; citations omitted)
15NPC Employees Consolidated Union v. National Power Corporation, 550 Phil. 199, 208-209 (2007).
16 Philippine Constitution, Art. VIII, Sec. 1.
17Garcia v. Drilon, supra note 12, at 432.
18Chua Huat v. Court of Appeals, 276 Phil. 1, 18 (1991).