Professional Documents
Culture Documents
* Same; Securities and Exchange Commission; The Securities and Exchange Commission (SEC) is vested with the power and
WILSON P. GAMBOA, petitioner, vs. FINANCE SECRETARY MARGARITO B. TEVES, FINANCE UNDERSECRETARY JOHN P. function to suspend or revoke, after proper notice and hearing, the franchise or certificate of registration of corporations, partnerships
SEVILLA, AND COMMISSIONER RICARDO ABCEDE OF THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT or associations, upon any of the grounds provided by law.—Under Section 5(m) of the Securities Regulation Code, the SEC is vested
(PCGG) IN THEIR CAPACITIES AS CHAIR AND MEMBERS, RESPECTIVELY, OF THE PRIVATIZATION COUNCIL, with the “power and function” to “suspend or revoke, after proper notice and hearing, the franchise or certificate of
CHAIRMAN ANTHONI SALIM OF FIRST PACIFIC CO., LTD. IN HIS CAPACITY AS DIRECTOR OF METRO PACIFIC ASSET
registration of corporations, partnerships or associations, upon any of the grounds provided by law.” The SEC is
HOLDINGS INC., CHAIRMAN MANUEL V. PANGILINAN OF PHILIPPINE LONG DISTANCE TELEPHONE COMPANY (PLDT)
mandated under Section 5(d) of the same Code with the “power and function” to “investigate x x x the activities of persons to
IN HIS CAPACITY AS MANAGING DIRECTOR OF FIRST PACIFIC CO., LTD., PRESIDENT NAPOLEON L. NAZARENO OF
ensure compliance” with the laws and regulations that SEC administers or enforces. The GIS that all corporations are required to
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, CHAIR FE BARIN OF THE SECURITIES EXCHANGE COMMISSION,
submit to SEC annually should put the SEC on guard against violations of the nationality requirement prescribed in the Constitution
and PRESIDENT FRANCIS LIM OF THE PHILIPPINE STOCK EXCHANGE, respondents.
and existing laws. This Court can compel the SEC, in a petition for declaratory relief that is treated as a petition for mandamus as in
PABLITO V. SANIDAD and ARNO V. SANIDAD, petitionersinintervention.
the present case, to hear and decide a possible violation of Section 11, Article XII of the Constitution in view of the ownership
Special Civil Actions; Declaratory Relief; Mandamus; Court treats the petition for declaratory relief as one for mandamus if structure of PLDT’s voting shares, as admitted by respondents and as stated in PLDT’s 2010 GIS that PLDT submitted to SEC.
the issue involved has farreaching implications.—In short, it is wellsettled that this Court may treat a petition for declaratory relief VELASCO, JR., J., Separate Dissenting Opinion:
as one for mandamus if the issue involved has farreaching implications. As this Court held in Salvacion: The Court has no original Actions; Locus Standi; Petitioner has not shown any real interest substantial enough to give him the requisite locus standi to
and exclusive jurisdiction over a petition for declaratory relief. However, exceptions to this rule have been recognized. Thus,
question the sale of the government’s PTIC shares to First Pacific. —The Rules of Court specifically requires that “[e]very action must
where the petition has farreaching implications and raises questions that should be resolved, it may be treated as one be prosecuted or defended in the name of the real party in interest.” A real party in interest is defined as the “party who stands to be
for mandamus. (Emphasis supplied) benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.” Petitioner has failed to allege any
Actions; Locus Standi; Petitioner being a stockholder of Philippine Long Distance Telephone (PLDT) has the right to question interest in the 111,415 PTIC shares nor in any of the previous purchase contracts he now seeks to annul. He is neither a shareholder
the subject sale which he claims to violate the nationality requirement prescribed in Section 11, Article XII of the Constitution; Court of PTIC nor of First Pacific. Also, he has not alleged that he was an interested bidder in the government’s auction sale of the PTIC
upheld the right of a citizen to bring a suit on matters of transcendental importance to the public.—There is no dispute that petitioner shares. Finally, he has not shown how, as a nominal shareholder of PLDT, he stands to benefit from the annulment of the sale of the
is a stockholder of PLDT. As such, he has the right to question the subject sale, which he claims to violate the nationality requirement 111,415 PTIC shares or of any of the sales of the PLDT common shares held by foreigners. In fine, petitioner has not shown any real
prescribed in Section 11, Article XII of the Constitution. If the sale indeed violates the Constitution, then there is a possibility that interest substantial enough to give him the requisite locus standi to question the sale of the government’s PTIC shares to First
PLDT’s franchise could be revoked, a dire consequence directly affecting petitioner’s interest as a stockholder. More importantly, there Pacific.
is no question that the instant petition raises matters of transcendental importance to the public. The fundamental and threshold Same; Same; A taxpayer is deemed to have the standing to raise a constitutional issue when it is established that public funds
legal issue in this case, involving the national economy and the economic welfare of the Filipino people, far outweighs any perceived have been disbursed in alleged contravention of the law or the Constitution. —Likewise, petitioner’s assertion that he has standing to
impediment in the legal personality of the petitioner to bring this action. In Chavez v. PCGG, 299 SCRA 744 (1998), the Court upheld bring the suit as a “taxpayer” must fail. In Gonzales v. Narvasa, We discussed that “a taxpayer is deemed to have the standing to
the right of a citizen to bring a suit on matters of transcendental importance to the public. raise a constitutional issue when it is established that public funds have been disbursed in alleged contravention of the law
Corporation Law; Words and Phrases; “Capital”; The term “capital” in Section 11, Article XII of the Constitution refers only to or the Constitution.” In this case, no public funds have been disbursed. In fact, the opposite has happened—there is an inflow of
shares of stock entitled to vote in the election of directors, and thus in the present case only to common shares, and not to the total funds into the government coffers.
outstanding capital stock comprising both common and nonvoting preferred shares.—We agree with petitioner and petitionersin Same; Jurisdiction; Declaratory Relief; Petitions for declaratory relief, annulment of sale and injunction do not fall within the
intervention. The term “capital” in Section 11, Article XII of the Constitution refers only to shares of stock entitled to vote in the exclusive jurisdiction of this Court; The proper jurisdiction for declaratory relief is the Regional Trial Court (RTC); Requisites for an
election of directors, and thus in the present case only to common shares, and not to the total outstanding capital stock comprising Action for Declaratory Relief.—Based on the foregoing provisos, it is patently clear that petitions for declaratory relief, annulment of
both common and nonvoting preferred shares.
sale and injunction do not fall within the exclusive original jurisdiction of this Court. First, the court with the proper jurisdiction for
Same; Capital; Common shares cannot be deprived of the right to vote in any corporate meeting, and any provision in the
declaratory relief is the Regional Trial Court (RTC). Sec. 1, Rule 63 of the Rules of Court stresses that an action for declaratory relief
articles of incorporation restricting the right of common shareholders to vote is invalid. —Indisputably, one of the rights of a is within the exclusive original jurisdiction of the RTC, viz.: Any person interested under a deed, will, contract or other written
stockholder is the right to participate in the control or management of the corporation. This is exercised through his vote in the
instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation
election of directors because it is the board of directors that controls or manages the corporation. In the absence of provisions in the
may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of
articles of incorporation denying voting rights to preferred shares, preferred shares have the same voting rights as common shares.
construction or validity arising, and for a declaration of his rights or duties, thereunder.
However, preferred shareholders are often excluded from any control, that is, deprived of the right to vote in the election of directors
(Emphasis supplied.) An action for declaratory relief also requires the following: (1) a justiciable controversy between
and on other matters, on the theory that the preferred shareholders are merely investors in the corporation for income in the same
persons whose interests are adverse; (2) the party seeking the relief has a legal interest in the controversy; and (3) the issue is ripe for
manner as bondholders. In fact, under the Corporation Code only preferred or redeemable shares can be deprived of the right to vote.
judicial determination. As previously discussed, petitioner lacks any real interest in this action; thus, no justiciable controversy
Common shares cannot be deprived of the right to vote in any corporate meeting, and any provision in the articles of incorporation
between adverse interests exists.
restricting the right of common shareholders to vote is invalid.
Same; Same; Same; The exercise of such discretion, whether to treat a petition for declaratory relief as one for mandamus,
Same; Same; The term “capital” in Section 11, Article XII of the Constitution refers only to shares of stock that can vote in the
presupposes that the petition is otherwise viable or meritorious.—Despite this, the ponencia decided to treat the petition for declaratory
election of directors.—Considering that common shares have voting rights which translate to control, as opposed to preferred shares
relief as one for mandamus, citing the rule that “where the petition has farreaching implications and raises questions that should be
which usually have no voting rights, the term “capital” in Section 11, Article XII of the Constitution refers only to common shares.
resolved, it may be treated as one for mandamus.” However, such rule is not absolute. In Macasiano v. National Housing Authority,
However, if the preferred shares also have the right to vote in the election of directors, then the term “capital” shall include such
preferred shares because the right to participate in the control or management of the corporation is exercised through the right to vote 224 SCRA 236 (1993), the Court explicitly stated that the exercise of such discretion, whether to treat a petition for declaratory relief
in the election of directors. In short, the term “capital” in Section 11, Article XII of the Constitution refers only to shares of as one for mandamus, presupposes that the petition is otherwise viable or meritorious . As I shall discuss subsequently in the
stock that can vote in the election of directors. substantive portion of this opinion, the petition in this case is clearly not viable or meritorious.
Same; Mandamus; A petition for mandamus is premature if there are administrative remedies available to petitioner. —A
Same; Same; The term “capital” in Section 11, Article XII of the Constitution to include both voting and nonvoting shares
petition for mandamus is premature if there are administrative remedies available to petitioner. Under the doctrine of primary
will result in the abject surrender of our telecommunications industry to foreigners, amounting to a clear abdication of the State’s
administrative jurisdiction, “courts cannot or will not determine a controversy where the issues for resolution demand the exercise of
constitutional duty to limit control of public utilities to Filipino citizens; The Court should never open to foreign control what the sound administrative discretion requiring the special knowledge, experience, and services of the administrative tribunal to determine
Constitution has expressly reserved to Filipinos for that would be a betrayal of the Constitution and of the national interest. — technical and intricate matters of fact. In other words, if a case is such that its determination requires the expertise, specialized
Indisputably, construing the term “capital” in Section 11, Article XII of the Constitution to include both voting and nonvoting shares training and knowledge of an administrative body, relief must first be obtained in an administrative proceeding before resort to the
will result in the abject surrender of our telecommunications industry to foreigners, amounting to a clear abdication of the State’s courts is had even if the matter may well be within their proper jurisdiction.” Along with this, the doctrine of exhaustion of
constitutional duty to limit control of public utilities to Filipino citizens. Such an interpretation certainly runs counter to the administrative remedies also requires that where an administrative remedy is provided by statute relief must be sought by
constitutional provision reserving certain areas of investment to Filipino citizens, such as the exploitation of natural resources as well exhausting this remedy before the courts will act.
as the ownership of land, educational institutions and advertising businesses. The Court should never open to foreign control what the Same; Hierarchy of Courts; The doctrine dictates that when jurisdiction is shared concurrently with different courts, the
Constitution has expressly reserved to Filipinos for that would be a betrayal of the Constitution and of the national interest. The proper suit should first be filed with the lowerranking court.—Although this Court, the CA, and the RTC have “concurrent jurisdiction
Court must perform its solemn duty to defend and uphold the intent and letter of the Constitution to ensure, in the words of the
to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give
Constitution, “a selfreliant and independent national economy effectively controlled by Filipinos.”
the petitioner unrestricted freedom of choice of court forum.” The doctrine of hierarchy of courts dictates that when jurisdiction is
shared concurrently with different courts, the proper suit should first be filed with the lowerranking court. Failure to do so is This is an original petition for prohibition, injunction, declaratory relief and declaration of nullity of the sale of shares of stock of
sufficient cause for the dismissal of a petition. Philippine Telecommunications Investment Corporation (PTIC) by the government of the Republic of the Philippines to Metro Pacific
Corporation Law; Capital; The intent of the framers of the Constitution was not to limit the application of the word “capital” Assets Holdings, Inc. (MPAH), an affiliate of First Pacific Company Limited (First Pacific).
to voting or common shares alone.—Contrary to pronouncement of the ponencia, the intent of the framers of the Constitution was not
to limit the application of the word “capital” to voting or common shares alone. In fact, the Records of the Constitutional Commission The Antecedents
reveal that even though the UP Law Center proposed the phrase “voting stock or controlling interest,” the framers of the Constitution
did not adopt this but instead used the word “capital.”
Same; Same; Stockholders, whether holding voting or nonvoting stocks, have all the rights, powers and privileges of The facts, according to petitioner Wilson P. Gamboa, a stockholder of Philippine Long Distance Telephone Company (PLDT), are
ownership over their stocks; Control is another inherent right of ownership. —Stockholders, whether holding voting or nonvoting as follows:1
stocks, have all the rights, powers and privileges of ownership over their stocks. This necessarily includes the right to vote because On 28 November 1928, the Philippine Legislature enacted Act No. 3436 which granted PLDT a franchise and the right to
such is inherent in and incidental to the ownership of corporate stocks, and as such is a property right. Additionally, control is engage in telecommunications business. In 1969, General Telephone and Electronics Corporation (GTE), an American company and a
another inherent right of ownership. The circumstances enumerated in Sec. 6 of the Corporation Code clearly evince this. It gives major PLDT stockholder, sold 26 percent of the outstanding common shares of PLDT to PTIC. In 1977, Prime Holdings, Inc. (PHI)
voting rights to the stocks deemed as nonvoting as to fundamental and major corporate changes. Thus, the issue should not was incorporated by several persons, including Roland Gapud and Jose Campos, Jr. Subsequently, PHI became the owner of 111,415
shares of stock of PTIC by virtue of three Deeds of Assignment executed by PTIC stockholders Ramon Cojuangco and Luis Tirso
only dwell on the daily management affairs of the corporation but also on the equally important fundamental changes that may need
Rivilla. In 1986, the 111,415 shares of stock of PTIC held by PHI were sequestered by the Presidential Commission on Good
to be voted on. On this, the “nonvoting” shares also exercise control, together with the voting shares.
Government (PCGG). The 111,415 PTIC shares, which represent about 46.125 percent of the outstanding capital stock of PTIC, were
Same; Same; Securities and Exchange Commission; Securities and Exchange Commission (SEC) defined “capital” as to
later declared by this Court to be owned by the Republic of the Philippines. 2
include both voting and nonvoting in the determination of the nationality of a corporation.—More importantly, the SEC defined In 1999, First Pacific, a Bermudaregistered, Hong Kongbased investment firm, acquired the remaining 54 percent of the
“capital” as to include both voting and nonvoting in the determination of the nationality of a corporation, to wit: In view of the outstanding capital stock of PTIC. On 20 November 2006, the InterAgency Privatization Council (IPC) of the Philippine Government
foregoing, it is opined that the term “capital” denotes the sum total of the shares subscribed and paid by the shareholders, or secured announced that it would sell the 111,415 PTIC shares, or 46.125 percent of the outstanding capital stock of PTIC, through a public
to be paid, irrespective of their nomenclature to be issued by the corporation in the conduct of its operation. Hence, nonvoting bidding to be conducted on 4 December 2006. Subsequently, the public bidding was reset to 8 December 2006, and only two bidders,
preferred shares are considered in the computation of the 6040% Filipinoalien equity requirement of certain Parallax Venture Fund XXVII (Parallax) and PanAsia Presidio Capital, submitted their bids. Parallax won with a bid of P25.6 billion
economic activities under the Constitution. (Emphasis supplied.) or US$510 million.
Same; Same; Outstanding Capital Stock; The Corporation Code defines “outstanding capital stock” as the “total shares of Thereafter, First Pacific announced that it would exercise its right of first refusal as a PTIC stockholder and buy the 111,415
stock issued”; It includes all types of shares.—Similarly, the Corporation Code defines “outstanding capital stock” as the “total shares PTIC shares by matching the bid price of Parallax. However, First Pacific failed to do so by the 1 February 2007 deadline set by IPC
of stock issued.” It does not distinguish between common and preferred shares. It includes all types of shares. and instead, yielded its right to PTIC itself which was then given by IPC until 2 March 2007 to buy the PTIC shares. On 14 February
2007, First Pacific, through its subsidiary, MPAH, entered into a Conditional Sale and Purchase Agreement of the 111,415 PTIC
ABAD, J., Dissenting Opinion:
shares, or 46.125 percent of the outstanding capital stock of PTIC, with the Philippine Government for the price of P25,217,556,000 or
Remedial Law; Actions; Jurisdiction; Gamboa actions for injunction, declaratory relief, and declaration of nullity of sale are
US$510,580,189. The sale was completed on 28 February 2007.
not among the cases that can be initiated before the Supreme Court; Only exceptional and compelling circumstances such as cases of Since PTIC is a stockholder of PLDT, the sale by the Philippine Government of 46.125 percent of PTIC shares is actually an
national interest and of serious implications justify direct resort to the Supreme Court for the extraordinary remedy of writ of certiorari, indirect sale of 12 million shares or about 6.3 percent of the outstanding common shares of PLDT. With the sale, First Pacific’s
prohibition, or mandamus.—Strictly speaking, Gamboa actions for injunction, declaratory relief, and declaration of nullity of sale are common shareholdings in PLDT increased from 30.7 percent to 37 percent, thereby increasing the common
not among the cases that can be initiated before the Supreme Court. Those actions belong to some other tribunal. And, although the shareholdings of foreigners in PLDT to about 81.47 percent. This violates Section 11, Article XII of the 1987 Philippine
Court has original jurisdiction in prohibition cases, the Court shares this authority with the Court of Appeals and the Regional Trial Constitution which limits foreign ownership of the capital of a public utility to not more than 40 percent. 3
Courts. But this concurrence of jurisdiction does not give the parties absolute and unrestrained freedom of choice on which court the On the other hand, public respondents Finance Secretary Margarito B. Teves, Undersecretary John P. Sevilla, and PCGG
remedy will be sought. They must observe the hierarchy of courts. As a rule, the Supreme Court will not entertain direct resort to it Commissioner Ricardo Abcede allege the following relevant facts:
unless the remedy desired cannot be obtained in other tribunals. Only exceptional and compelling circumstances such as cases of On 9 November 1967, PTIC was incorporated and had since engaged in the business of investment holdings. PTIC held
national interest and of serious implications justify direct resort to the Supreme Court for the extraordinary remedy of writ 26,034,263 PLDT common shares, or 13.847 percent of the total PLDT outstanding common shares. PHI, on the other hand, was
of certiorari, prohibition, or mandamus. incorporated in 1977, and became the owner of 111,415 PTIC shares or 46.125 percent of the outstanding capital stock of PTIC by
Corporation Law; Capital; The Constitution fails to provide for the meaning of the term “capital” considering that the shares virtue of three Deeds of Assignment executed by Ramon Cojuangco and Luis Tirso Rivilla. In 1986, the 111,415 PTIC shares held by
of stock of a corporation vary in kinds.—The Constitution fails to provide for the meaning of the term “capital,” considering that the PHI were sequestered by the PCGG, and subsequently declared by this Court as part of the illgotten wealth of former President
shares of stock of a corporation vary in kinds. The usual classification depends on how profits are to be distributed and which Ferdinand Marcos. The sequestered PTIC shares were reconveyed to the Republic of the Philippines in accordance with this Court’s
stockholders have the right to vote the members of the corporation’s board of directors. decision4 which became final and executory on 8 August 2006.
The Philippine Government decided to sell the 111,415 PTIC shares, which represent 6.4 percent of the outstanding common
Same; Same; The Court should not leave the matter of compliance with the constitutional limit on foreign ownership in public
shares of stock of PLDT, and designated the InterAgency Privatization Council (IPC), composed of the Department of Finance and
utilities, a matter of transcendental importance, to judicial legislation especially since any ruling the Court makes on the matter could the PCGG, as the disposing entity. An invitation to bid was published in seven different newspapers from 13 to 24 November 2006. On
have deep economic repercussions; It is apt for Congress to build up on this framework by defining the meaning of “capital.” —Under 20 November 2006, a prebid conference was held, and the original deadline for bidding scheduled on 4 December 2006 was reset to 8
this confusing legislative signals, the Court should not leave the matter of compliance with the constitutional limit on foreign December 2006. The extension was published in nine different newspapers.
ownership in public utilities, a matter of transcendental importance, to judicial legislation especially since any ruling the Court makes During the 8 December 2006 bidding, Parallax Capital Management LP emerged as the highest bidder with a bid of
on the matter could have deep economic repercussions. This is not a concern over which the Court has competence. The 1987 P25,217,556,000. The government notified First Pacific, the majority owner of PTIC shares, of the bidding results and gave First
Constitution laid down the general framework for restricting foreign ownership of public utilities. It is apt for Congress to build up on Pacific until 1 February 2007 to exercise its right of first refusal in accordance with PTIC’s Articles of Incorporation. First Pacific
this framework by defining the meaning of “capital,” establishing rules for the implementation of the State policy, providing sanctions announced its intention to match Parallax’s bid.
for its violation, and vesting in the appropriate agency the responsibility for carrying out the purposes of such policy. On 31 January 2007, the House of Representatives (HR) Committee on Good Government conducted a public hearing on the
ORIGINAL ACTION in the Supreme Court. Prohibition, Injunction, Declaratory Relief and Declaration of Nullity of Sale of Shares of particulars of the then impending sale of the 111,415 PTIC shares. Respondents Teves and Sevilla were among those who attended
Stock. the public hearing. The HR Committee Report No. 2270 concluded that: (a) the auction of the government’s 111,415 PTIC shares bore
The facts are stated in the opinion of the Court. due diligence, transparency and conformity with existing legal procedures; and (b) First Pacific’s intended acquisition of the
Edgar D. Dumlao for China Banking Corporation. government’s 111,415 PTIC shares resulting in First Pacific’s 100% ownership of PTIC will not violate the 40 percent
Office of the General Counsel for respondent Francis Ed Lim. constitutional limit on foreign ownership of a public utility since PTIC holds only 13.847 percent of the total
Sycip, Salazar, Hernandez and Gatmaitan for respondent Manuel V. Pangilinan Angara, Abello, Concepcion, Regala outstanding common shares of PLDT. 5 On 28 February 2007, First Pacific completed the acquisition of the 111,415 shares of stock
and Cruz for Napoleon L. Nazareno. of PTIC.
CARPIO, J.: Respondent Manuel V. Pangilinan admits the following facts: (a) the IPC conducted a public bidding for the sale of 111,415
PTIC shares or 46 percent of the outstanding capital stock of PTIC (the remaining 54 percent of PTIC shares was already owned by
First Pacific and its affiliates); (b) Parallax offered the highest bid amounting to P25,217,556,000; (c) pursuant to the right of first
The Case refusal in favor of PTIC and its shareholders granted in PTIC’s Articles of Incorporation, MPAH, a First Pacific affiliate, exercised its
right of first refusal by matching the highest bid offered for PTIC shares on 13 February 2007; and (d) on 28 February 2007, the sale Bank of the Philippines, the local bank, and the accused to comply with the writ of execution issued in the civil case for damages and
was consummated when MPAH paid IPC P25,217,556,000 and the government delivered the certificates for the 111,415 PTIC shares. to release the dollar deposit of the accused to satisfy the judgment.
Respondent Pangilinan denies the other allegations of facts of petitioner. In Alliance of Government Workers v. Minister of Labor,14 the Court similarly brushed aside the procedural infirmity of the
On 28 February 2007, petitioner filed the instant petition for prohibition, injunction, declaratory relief, and declaration of petition for declaratory relief and treated the same as one for mandamus. In Alliance, the issue was whether the government
nullity of sale of the 111,415 PTIC shares. Petitioner claims, among others, that the sale of the 111,415 PTIC shares would result in unlawfully excluded petitioners, who were government employees, from the enjoyment of rights to which they were entitled under the
an increase in First Pacific’s common shareholdings in PLDT from 30.7 percent to 37 percent, and this, combined with Japanese NTT law. Specifically, the question was: “Are the branches, agencies, subdivisions, and instrumentalities of the Government, including
DoCoMo’s common shareholdings in PLDT, would result to a total foreign common shareholdings in PLDT of 51.56 percent which is government owned or controlled corporations included among the four ‘employers’ under Presidential Decree No. 851 which are
over the 40 percent constitutional limit. 6 Petitioner asserts: required to pay their employees x x x a thirteenth (13th) month pay x x x ?” The Constitutional principle involved therein affected all
“If and when the sale is completed, First Pacific’s equity in PLDT will go up from 30.7 percent to 37.0 percent of its common—or government employees, clearly justifying a relaxation of the technical rules of procedure, and certainly requiring the interpretation of
votingstockholdings, x x x. Hence, the consummation of the sale will put the two largest foreign investors in PLDT—First Pacific and the assailed presidential decree.
Japan’s NTT DoCoMo, which is the world’s largest wireless telecommunications firm, owning 51.56 percent of PLDT common equity. In short, it is wellsettled that this Court may treat a petition for declaratory relief as one for mandamus if the issue involved
x x x With the completion of the sale, data culled from the official website of the New York Stock Exchange ( www.nyse.com) showed
has farreaching implications. As this Court held in Salvacion:
that those foreign entities, which own at least five percent of common equity, will collectively own 81.47 percent of PLDT’s common
“The Court has no original and exclusive jurisdiction over a petition for declaratory relief. However, exceptions to this rule
equity. x x x
have been recognized. Thus, where the petition has farreaching implications and raises questions that should be
x x x as the annual disclosure reports, also referred to as Form 20K reports x x x which PLDT submitted to the New York Stock
Exchange for the period 20032005, revealed that First Pacific and several other foreign entities breached the constitutional limit of resolved, it may be treated as one for mandamus.”15 (Emphasis supplied)
40 percent ownership as early as 2003. x x x”7 In the present case, petitioner seeks primarily the interpretation of the term “capital” in Section 11, Article XII of the
Petitioner raises the following issues: (1) whether the consummation of the then impending sale of 111,415 PTIC shares to First Constitution. He prays that this Court declare that the term “capital” refers to common shares only, and that such shares constitute
Pacific violates the constitutional limit on foreign ownership of a public utility; (2) whether public respondents committed grave abuse “the sole basis in determining foreign equity in a public utility.” Petitioner further asks this Court to declare any ruling inconsistent
of discretion in allowing the sale of the 111,415 PTIC shares to First Pacific; and (3) whether the sale of common shares to foreigners with such interpretation unconstitutional.
in excess of 40 percent of the entire subscribed common capital stock violates the constitutional limit on foreign ownership of a public The interpretation of the term “capital” in Section 11, Article XII of the Constitution has farreaching implications to the
utility.8 national economy. In fact, a resolution of this issue will determine whether Filipinos are masters, or second class citizens, in their own
On 13 August 2007, Pablito V. Sanidad and Arno V. Sanidad filed a Motion for Leave to Intervene and Admit Attached Petition country. What is at stake here is whether Filipinos or foreigners will have effective control of the national economy. Indeed, if ever
inIntervention. In the Resolution of 28 August 2007, the Court granted the motion and noted the PetitioninIntervention. there is a legal issue that has farreaching implications to the entire nation, and to future generations of Filipinos, it is the threshhold
Petitionersinintervention “join petitioner Wilson Gamboa x x x in seeking, among others, to enjoin and/or nullify the sale by legal issue presented in this case.
respondents of the 111,415 PTIC shares to First Pacific or assignee.” Petitionersinintervention claim that, as PLDT subscribers, they The Court first encountered the issue on the definition of the term “capital” in Section 11, Article XII of the Constitution in the
have a “stake in the outcome of the controversy x x x where the Philippine Government is completing the sale of government owned case of Fernandez v. Cojuangco, docketed as G.R. No. 157360. 16 That case involved the same public utility (PLDT) and substantially
assets in [PLDT], unquestionably a public utility, in violation of the nationality restrictions of the Philippine Constitution.” the same private respondents. Despite the importance and novelty of the constitutional issue raised therein and despite the fact that
the petition involved a purely legal question, the Court declined to resolve the case on the merits, and instead denied the same for
disregarding the hierarchy of courts. 17 There, petitioner Fernandez assailed on a pure question of law the Regional Trial Court’s
The Issue
Decision of 21 February 2003 via a petition for review under Rule 45.
The Court’s Resolution, denying the petition, became final on 21 December 2004.
This Court is not a trier of facts. Factual questions such as those raised by petitioner, 9 which indisputably demand a thorough The instant petition therefore presents the Court with another opportunity to finally settle this purely legal issue which is of
examination of the evidence of the parties, are generally beyond this Court’s jurisdiction. Adhering to this wellsettled principle, the transcendental importance to the national economy and a fundamental requirement to a faithful adherence to our Constitution. The
Court shall confine the resolution of the instant controversy solely on the threshold and purely legal issue of whether the term Court must forthwith seize such opportunity, not only for the benefit of the litigants, but more significantly for the benefit of the
“capital” in Section 11, Article XII of the Constitution refers to the total common shares only or to the total outstanding capital stock entire Filipino people, to ensure, in the words of the Constitution, “a selfreliant and independent national economy effectively
(combined total of common and nonvoting preferred shares) of PLDT, a public utility. controlled by Filipinos.”18 Besides, in the light of vague and confusing positions taken by government agencies on this purely legal
issue, present and future foreign investors in this country deserve, as a matter of basic fairness, a categorical ruling from this Court
on the extent of their participation in the capital of public utilities and other nationalized businesses.
The Ruling of the Court Despite its farreaching implications to the national economy, this purely legal issue has remained unresolved for over 75 years
since the 1935 Constitution. There is no reason for this Court to evade this ever recurring fundamental issue and delay again defining
the term “capital,” which appears not only in Section 11, Article XII of the Constitution, but also in Section 2, Article XII on co
The petition is partly meritorious.
production and joint venture agreements for the development of our natural resources, 19 in Section 7, Article XII on ownership of
private lands,20 in Section 10, Article XII on the reservation of certain investments to Filipino citizens, 21 in Section 4(2), Article XIV on
Petition for declaratory relief treated as petition for mandamus the ownership of educational institutions, 22 and in Section 11(2), Article XVI on the ownership of advertising companies. 23
At the outset, petitioner is faced with a procedural barrier. Among the remedies petitioner seeks, only the petition for Petitioner has locus standi
prohibition is within the original jurisdiction of this court, which however is not exclusive but is concurrent with the Regional Trial
Court and the Court of Appeals. The actions for declaratory relief, 10 injunction, and annulment of sale are not embraced within the
There is no dispute that petitioner is a stockholder of PLDT. As such, he has the right to question the subject sale, which he
original jurisdiction of the Supreme Court. On this ground alone, the petition could have been dismissed outright.
claims to violate the nationality requirement prescribed in Section 11, Article XII of the Constitution. If the sale indeed violates the
While direct resort to this Court may be justified in a petition for prohibition, 11 the Court shall nevertheless refrain from
Constitution, then there is a possibility that PLDT’s franchise could be revoked, a dire consequence directly affecting petitioner’s
discussing the grounds in support of the petition for prohibition since on 28 February 2007, the questioned sale was consummated
interest as a stockholder.
when MPAH paid IPC P25,217,556,000 and the government delivered the certificates for the 111,415 PTIC shares.
More importantly, there is no question that the instant petition raises matters of transcendental importance to the public. The
However, since the threshold and purely legal issue on the definition of the term “capital” in Section 11, Article XII of the
fundamental and threshold legal issue in this case, involving the national economy and the economic welfare of the Filipino people, far
Constitution has farreaching implications to the national economy, the Court treats the petition for declaratory relief as one for
outweighs any perceived impediment in the legal personality of the petitioner to bring this action.
mandamus.12
In Chavez v. PCGG,24 the Court upheld the right of a citizen to bring a suit on matters of transcendental importance to the
In Salvacion v. Central Bank of the Philippines,13 the Court treated the petition for declaratory relief as one for mandamus
public, thus:
considering the grave injustice that would result in the interpretation of a banking law. In that case, which involved the crime of rape
“In Tañada v. Tuvera, the Court asserted that when the issue concerns a public right and the object of mandamus is to
committed by a foreign tourist against a Filipino minor and the execution of the final judgment in the civil case for damages on the
tourist’s dollar deposit with a local bank, the Court declared Section 113 of Central Bank Circular No. 960, exempting foreign obtain the enforcement of a public duty, the people are regarded as the real parties in interest; and because it is
currency deposits from attachment, garnishment or any other order or process of any court, inapplicable due to the peculiar sufficient that petitioner is a citizen and as such is interested in the execution of the laws, he need not show that he has
circumstances of the case. The Court held that “injustice would result especially to a citizen aggrieved by a foreign guest like accused any legal or special interest in the result of the action. In the aforesaid case, the petitioners sought to enforce their right to be
x x x” that would “negate Article 10 of the Civil Code which provides that ‘in case of doubt in the interpretation or application of laws, informed on matters of public concern, a right then recognized in Section 6, Article IV of the 1973 Constitution, in connection with the
it is presumed that the lawmaking body intended right and justice to prevail.’ ” The Court therefore required respondents Central rule that laws in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated. In
ruling for the petitioners’ legal standing, the Court declared that the right they sought to be enforced ‘is a public right recognized by is undisputed that PLDT’s nonvoting preferred shares are held mostly by Filipino citizens. 30 This arose from Presidential Decree No.
no less than the fundamental law of the land.’ 217,31 issued on 16 June 1973 by then President Ferdinand Marcos, requiring every applicant of a PLDT telephone line to subscribe to
Legaspi v. Civil Service Commission, while reiterating Tañada, further declared that ‘when a mandamus proceeding involves the nonvoting preferred shares to pay for the investment cost of installing the telephone line. 32
assertion of a public right, the requirement of personal interest is satisfied by the mere fact that petitioner is a citizen Petitionersinintervention basically reiterate petitioner’s arguments and adopt petitioner’s definition of the term
and, therefore, part of the general ‘public’ which possesses the right.’ “capital.”33Petitionersinintervention allege that “the approximate foreign ownership of common capital stock of PLDT x x x already
amounts to at least 63.54% of the total outstanding common stock,” which means that foreigners exercise significant control over
Further, in Albano v. Reyes, we said that while expenditure of public funds may not have been involved under the questioned
PLDT, patently violating the 40 percent foreign equity limitation in public utilities prescribed by the Constitution.
contract for the development, management and operation of the Manila International Container Terminal, ‘public interest [was]
Respondents, on the other hand, do not offer any definition of the term “capital” in Section 11, Article XII of the Constitution.
definitely involved considering the important role [of the subject contract] . . . in the economic development of the
More importantly, private respondents Nazareno and Pangilinan of PLDT do not dispute that more than 40 percent of the common
country and the magnitude of the financial consideration involved.’ We concluded that, as a consequence, the disclosure shares of PLDT are held by foreigners.
provision in the Constitution would constitute sufficient authority for upholding the petitioner’s standing.” (Emphasis supplied) In particular, respondent Nazareno’s Memorandum, consisting of 73 pages, harps mainly on the procedural infirmities of the
Clearly, since the instant petition, brought by a citizen, involves matters of transcendental public importance, the petitioner has petition and the supposed violation of the due process rights of the “affected foreign common shareholders.” Respondent Nazareno
the requisite locus standi. does not deny petitioner’s allegation of foreigners’ dominating the common shareholdings of PLDT. Nazareno stressed mainly that the
petition “seeks to divest foreign common shareholders purportedly exceeding 40% of the total common shareholdings in
PLDT of their ownership over their shares.” Thus, “the foreign natural and juridical PLDT shareholders must be impleaded in
Definition of the Term “Capital” in
this suit so that they can be heard.” 34 Essentially, Nazareno invokes denial of due process on behalf of the foreign common
Section 11, Article XII of the 1987 Constitution
shareholders.
While Nazareno does not introduce any definition of the term “capital,” he states that “among the factual assertions that
Section 11, Article XII (National Economy and Patrimony) of the 1987 Constitution mandates the Filipinization of public need to be established to counter petitioner’s allegations is the uniform interpretation by government agencies (such as
utilities, to wit: the SEC), institutions and corporations (such as the Philippine National Oil CompanyEnergy Development
“Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be Corporation or PNOCEDC) of including both preferred shares and common shares in “controlling interest” in view of
granted except to citizens of the Philippines or to corporations or associations organized under the laws of the testing compliance with the 40% constitutional limitation on foreign ownership in public utilities.”35
Philippines, at least sixty per centum of whose capital is owned by such citizens ; nor shall such franchise, certificate, or Similarly, respondent Manuel V. Pangilinan does not define the term “capital” in Section 11, Article XII of the Constitution.
authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted Neither does he refute petitioner’s claim of foreigners holding more than 40 percent of PLDT’s common shares. Instead, respondent
except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so Pangilinan focuses on the procedural flaws of the petition and the alleged violation of the due process rights of foreigners. Respondent
requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors Pangilinan emphasizes in his Memorandum (1) the absence of this Court’s jurisdiction over the petition; (2) petitioner’s lack of
in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive standing; (3) mootness of the petition; (4) nonavailability of declaratory relief; and (5) the denial of due process rights. Moreover,
and managing officers of such corporation or association must be citizens of the Philippines.” (Emphasis supplied) respondent Pangilinan alleges that the issue should be whether “owners of shares in PLDT as well as owners of shares in companies
The above provision substantially reiterates Section 5, Article XIV of the 1973 Constitution, thus: holding shares in PLDT may be required to relinquish their shares in PLDT and in those companies without any law requiring them
“Section 5. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be to surrender their shares and also without notice and trial.”
granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Respondent Pangilinan further asserts that “Section 11, [Article XII of the Constitution] imposes no nationality
Philippines at least sixty per centum of the capital of which is owned by such citizens , nor shall such franchise, certificate, requirement on the shareholders of the utility company as a condition for keeping their shares in the utility company. ”
or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted According to him, “Section 11 does not authorize taking one person’s property (the shareholder’s stock in the utility company) on the
except under the condition that it shall be subject to amendment, alteration, or repeal by the National Assembly when the public basis of another party’s alleged failure to satisfy a requirement that is a condition only for that other party’s retention of another piece
interest so requires. The State shall encourage equity participation in public utilities by the general public. The participation of of property (the utility company being at least 60% Filipinoowned to keep its franchise).” 36
foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in the capital The OSG, representing public respondents Secretary Margarito Teves, Undersecretary John P. Sevilla, Commissioner Ricardo
thereof.” (Emphasis supplied) Abcede, and Chairman Fe Barin, is likewise silent on the definition of the term “capital.” In its Memorandum 37 dated 24 September
The foregoing provision in the 1973 Constitution reproduced Section 8, Article XIV of the 1935 Constitution, viz.: 2007, the OSG also limits its discussion on the supposed procedural defects of the petition, i.e. lack of standing, lack of jurisdiction,
“Section 8. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be noninclusion of interested parties, and lack of basis for injunction. The OSG does not present any definition or interpretation of the
granted except to citizens of the Philippines or to corporations or other entities organized under the laws of the term “capital” in Section 11, Article XII of the Constitution. The OSG contends that “the petition actually partakes of a collateral
Philippines sixty per centum of the capital of which is owned by citizens of the Philippines, nor shall such franchise, attack on PLDT’s franchise as a public utility,” which in effect requires a “fullblown trial where all the parties in interest are given
certificate, or authorization be exclusive in character or for a longer period than fifty years. No franchise or right shall be granted to their day in court.”38
any individual, firm, or corporation, except under the condition that it shall be subject to amendment, alteration, or repeal by the Respondent Francisco Ed Lim, impleaded as President and Chief Executive Officer of the Philippine Stock Exchange (PSE),
Congress when the public interest so requires.” (Emphasis supplied) does not also define the term “capital” and seeks the dismissal of the petition on the following grounds: (1) failure to state a cause of
Father Joaquin G. Bernas, S.J., a leading member of the 1986 Constitutional Commission, reminds us that the Filipinization action against Lim; (2) the PSE allegedly implemented its rules and required all listed companies, including PLDT, to make proper
provision in the 1987 Constitution is one of the products of the spirit of nationalism which gripped the 1935 Constitutional and timely disclosures; and (3) the reliefs prayed for in the petition would adversely impact the stock market.
Convention.25 The 1987 Constitution “provides for the Filipinization of public utilities by requiring that any form of authorization for In the earlier case of Fernandez v. Cojuangco, petitioner Fernandez who claimed to be a stockholder of record of PLDT,
the operation of public utilities should be granted only to ‘citizens of the Philippines or to corporations or associations organized under contended that the term “capital” in the 1987 Constitution refers to shares entitled to vote or the common shares. Fernandez
the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens.’ The provision is [an express] explained thus:
recognition of the sensitive and vital position of public utilities both in the national economy and for national “The forty percent (40%) foreign equity limitation in public utilities prescribed by the Constitution refers to ownership of shares
security.”26 The evident purpose of the citizenship requirement is to prevent aliens from assuming control of public utilities, which of stock entitled to vote, i.e., common shares, considering that it is through voting that control is being exercised. x x x
may be inimical to the national interest. 27 This specific provision explicitly reserves to Filipino citizens control of public utilities, Obviously, the intent of the framers of the Constitution in imposing limitations and restrictions on fully nationalized and
pursuant to an overriding economic goal of the 1987 Constitution: to “conserve and develop our patrimony” 28 and ensure “a selfreliant partially nationalized activities is for Filipino nationals to be always in control of the corporation undertaking said activities.
and independent national economy effectively controlled by Filipinos.”29 Otherwise, if the Trial Court’s ruling upholding respondents’ arguments were to be given credence, it would be possible for the
Any citizen or juridical entity desiring to operate a public utility must therefore meet the minimum nationality requirement ownership structure of a public utility corporation to be divided into one percent (1%) common stocks and ninetynine percent (99%)
prescribed in Section 11, Article XII of the Constitution. Hence, for a corporation to be granted authority to operate a public utility, at preferred stocks. Following the Trial Court’s ruling adopting respondents’ arguments, the common shares can be owned entirely by
least 60 percent of its “capital” must be owned by Filipino citizens. foreigners thus creating an absurd situation wherein foreigners, who are supposed to be minority shareholders, control the public
The crux of the controversy is the definition of the term “capital.” Does the term “capital” in Section 11, Article XII of the utility corporation.
x x x x
Constitution refer to common shares or to the total outstanding capital stock (combined total of common and nonvoting preferred
Thus, the 40% foreign ownership limitation should be interpreted to apply to both the beneficial ownership and the controlling
shares)?
interest.
Petitioner submits that the 40 percent foreign equity limitation in domestic public utilities refers only to common shares
x x x x
because such shares are entitled to vote and it is through voting that control over a corporation is exercised. Petitioner posits that the
Clearly, therefore, the forty percent (40%) foreign equity limitation in public utilities prescribed by the Constitution refers to
term “capital” in Section 11, Article XII of the Constitution refers to “the ownership of common capital stock subscribed and
outstanding, which class of shares alone, under the corporate setup of PLDT, can vote and elect members of the board of directors.” It ownership of shares of stock entitled to vote, i.e., common shares. Furthermore, ownership of record of shares will not suffice but it
must be shown that the legal and beneficial ownership rests in the hands of Filipino citizens. Consequently, in the case of petitioner 2. Adoption and amendment of bylaws;
PLDT, since it is already admitted that the voting interests of foreigners which would gain entry to petitioner PLDT by the acquisition 3. Sale, lease, exchange, mortgage, pledge or other disposition of all or substantially all of the corporate property;
of SMART shares through the Questioned Transactions is equivalent to 82.99%, and the nominee arrangements between the foreign 4. Incurring, creating or increasing bonded indebtedness;
principals and the Filipino owners is likewise admitted, there is, therefore, a violation of Section 11, Article XII of the Constitution. 5. Increase or decrease of capital stock;
Parenthetically, the Opinions dated February 15, 1988 and April 14, 1987 cited by the Trial Court to support the proposition 6. Merger or consolidation of the corporation with another corporation or other corporations;
that the meaning of the word “capital” as used in Section 11, Article XII of the Constitution allegedly refers to the sum total of the 7. Investment of corporate funds in another corporation or business in accordance with this Code; and
shares subscribed and paidin by the shareholder and it allegedly is immaterial how the stock is classified, whether as common or 8. Dissolution of the corporation.
preferred, cannot stand in the face of a clear legislative policy as stated in the FIA which took effect in 1991 or way after said opinions Except as provided in the immediately preceding paragraph, the vote necessary to approve a particular corporate act as provided in
were rendered, and as clarified by the abovequoted Amendments. In this regard, suffice it to state that as between the law and an this Code shall be deemed to refer only to stocks with voting rights.”
opinion rendered by an administrative agency, the law indubitably prevails. Moreover, said Opinions are merely advisory and cannot Indisputably, one of the rights of a stockholder is the right to participate in the control or management of the corporation. 43 This
prevail over the clear intent of the framers of the Constitution. is exercised through his vote in the election of directors because it is the board of directors that controls or manages the
In the same vein, the SEC’s construction of Section 11, Article XII of the Constitution is at best merely advisory for it is the corporation.44 In the absence of provisions in the articles of incorporation denying voting rights to preferred shares, preferred shares
courts that finally determine what a law means.”39 have the same voting rights as common shares. However, preferred shareholders are often excluded from any control, that is, deprived
On the other hand, respondents therein, Antonio O. Cojuangco, Manuel V. Pangilinan, Carlos A. Arellano, Helen Y. Dee, of the right to vote in the election of directors and on other matters, on the theory that the preferred shareholders are merely investors
Magdangal B. Elma, Mariles CachoRomulo, Fr. Bienvenido F. Nebres, Ray C. Espinosa, Napoleon L. Nazareno, Albert F. Del Rosario, in the corporation for income in the same manner as bondholders.45
and Orlando B. Vea, argued that the term “capital” in Section 11, Article XII of the Constitution includes preferred shares since the In fact, under the Corporation Code only preferred or redeemable shares can be deprived of the right to vote. 46 Common shares cannot
Constitution does not distinguish among classes of stock, thus: be deprived of the right to vote in any corporate meeting, and any provision in the articles of incorporation restricting the right of
16. The Constitution applies its foreign ownership limitation on the corporation’s “capital,” without distinction as to classes of common shareholders to vote is invalid.47
shares. Considering that common shares have voting rights which translate to control, as opposed to preferred shares which usually
x x x have no voting rights, the term “capital” in Section 11, Article XII of the Constitution refers only to common shares. However, if the
In this connection, the Corporation Code—which was already in force at the time the present (1987) Constitution was drafted— preferred shares also have the right to vote in the election of directors, then the term “capital” shall include such preferred shares
defined outstanding capital stock as follows: because the right to participate in the control or management of the corporation is exercised through the right to vote in the election of
Section 137. Outstanding capital stock defined.—The term “outstanding capital stock”, as used in this Code, means the directors. In short, the term “capital” in Section 11, Article XII of the Constitution refers only to shares of stock that can
total shares of stock issued under binding subscription agreements to subscribers or stockholders, whether or not fully or vote in the election of directors.
partially paid, except treasury shares. This interpretation is consistent with the intent of the framers of the Constitution to place in the hands of Filipino citizens the
Section 137 of the Corporation Code also does not distinguish between common and preferred shares, nor exclude either class of control and management of public utilities. As revealed in the deliberations of the Constitutional Commission, “capital” refers to the
shares, in determining the outstanding capital stock (the “capital”) of a corporation. Consequently, petitioner’s suggestion to reckon voting stock or controlling interest of a corporation, to wit:
PLDT’s foreign equity only on the basis of PLDT’s outstanding common shares is without legal basis. The language of the Constitution MR. NOLLEDO.In Sections 3, 9 and 15, the Committee stated local or Filipino equity and foreign equity; namely, 6040 in
should be understood in the sense it has in common use. Section 3, 6040 in Section 9 and 2/31/3 in Section 15.
x x x x MR. VILLEGAS.That is right.
17. But even assuming that resort to the proceedings of the Constitutional Commission is necessary, there is nothing in the Record MR. NOLLEDO.In teaching law, we are always faced with this question: “Where do we base the equity requirement, is it
of the Constitutional Commission (Vol. III)—which petitioner misleadingly cited in the Petition x x x—which supports petitioner’s on the authorized capital stock, on the subscribed capital stock, or on the paidup capital stock of a corporation”? Will the
view that only common shares should form the basis for computing a public utility’s foreign equity. Committee please enlighten me on this?
x x x x MR. VILLEGAS.We have just had a long discussion with the members of the team from the UP Law Center who provided
18. In addition, the SEC—the government agency primarily responsible for implementing the Corporation Code, and which also has us a draft. The phrase that is contained here which we adopted from the UP draft is “60 percent of voting
the responsibility of ensuring compliance with the Constitution’s foreign equity restrictions as regards nationalized activities x x x— stock.”
has categorically ruled that both common and preferred shares are properly considered in determining outstanding capital stock and MR. NOLLEDO.That must be based on the subscribed capital stock, because unless declared delinquent, unpaid capital
the nationality composition thereof.40 stock shall be entitled to vote.
We agree with petitioner and petitionersinintervention. The term “capital” in Section 11, Article XII of the Constitution refers MR. VILLEGAS.That is right.
only to shares of stock entitled to vote in the election of directors, and thus in the present case only to common shares, 41 and not to the MR. NOLLEDO.Thank you.
total outstanding capital stock comprising both common and nonvoting preferred shares. With respect to an investment by one corporation in another corporation, say, a corporation with 6040 percent
The Corporation Code of the Philippines42 classifies shares as common or preferred, thus: equity invests in another corporation which is permitted by the Corporation Code, does the Committee adopt the
Sec. 6. Classification of shares.—The shares of stock of stock corporations may be divided into classes or series of shares, or both, grandfather rule?
any of which classes or series of shares may have such rights, privileges or restrictions as may be stated in the articles of MR. VILLEGAS.Yes, that is the understanding of the Committee.
incorporation: Provided, That no share may be deprived of voting rights except those classified and issued as “preferred” MR. NOLLEDO.Therefore, we need additional Filipino capital?
or “redeemable” shares, unless otherwise provided in this Code: Provided, further, That there shall always be a class or series MR. VILLEGAS.Yes.48
of shares which have complete voting rights. Any or all of the shares or series of shares may have a par value or have no par value as x x x x
MR. AZCUNA.May I be clarified as to that portion that was accepted by the Committee.
may be provided for in the articles of incorporation: Provided, however, That banks, trust companies, insurance companies, public
MR. VILLEGAS.The portion accepted by the Committee is the deletion of the phrase “voting stock or controlling interest.”
utilities, and building and loan associations shall not be permitted to issue nopar value shares of stock.
MR. AZCUNA.Hence, without the Davide amendment, the committee report would read: “corporations or associations at
Preferred shares of stock issued by any corporation may be given preference in the distribution of the assets of the corporation in case
least sixty percent of whose CAPITAL is owned by such citizens.”
of liquidation and in the distribution of dividends, or such other preferences as may be stated in the articles of incorporation which are
MR. VILLEGAS.Yes.
not violative of the provisions of this Code: Provided, That preferred shares of stock may be issued only with a stated par value. The MR. AZCUNA.So if the Davide amendment is lost, we are stuck with 60 percent of the capital to be owned by citizens.
Board of Directors, where authorized in the articles of incorporation, may fix the terms and conditions of preferred shares of stock or MR. VILLEGAS.That is right.
any series thereof: Provided, That such terms and conditions shall be effective upon the filing of a certificate thereof with the MR. AZCUNA. But the control can be with the foreigners even if they are the minority. Let us say 40
Securities and Exchange Commission. percent of the capital is owned by them, but it is the voting capital, whereas, the Filipinos own the nonvoting
Shares of capital stock issued without par value shall be deemed fully paid and nonassessable and the holder of such shares shall not shares. So we can have a situation where the corporation is controlled by foreigners despite being the
be liable to the corporation or to its creditors in respect thereto: Provided, That shares without par value may not be issued for a minority because they have the voting capital. That is the anomaly that would result here.
consideration less than the value of five (P5.00) pesos per share: Provided, further, That the entire consideration received by the MR. BENGZON. No, the reason we eliminated the word “stock” as stated in the 1973 and 1935
corporation for its nopar value shares shall be treated as capital and shall not be available for distribution as dividends. Constitutions is that according to Commissioner Rodrigo, there are associations that do not have stocks.
A corporation may, furthermore, classify its shares for the purpose of insuring compliance with constitutional or legal requirements. That is why we say “CAPITAL.”
Except as otherwise provided in the articles of incorporation and stated in the certificate of stock, each share shall be equal in all MR. AZCUNA. We should not eliminate the phrase “controlling interest.”
respects to every other share. Where the articles of incorporation provide for nonvoting shares in the cases allowed by this Code, the
MR. BENGZON. In the case of stock corporations, it is assumed. 49 (Emphasis supplied)
holders of such shares shall nevertheless be entitled to vote on the following matters:
1. Amendment of the articles of incorporation;
Thus, 60 percent of the “capital” assumes, or should result in, “controlling interest” in the corporation. Reinforcing this The example given is not theoretical but can be found in the real world, and in fact exists in the present case.
interpretation of the term “capital,” as referring to controlling interest or shares entitled to vote, is the definition of a “Philippine Holders of PLDT preferred shares are explicitly denied of the right to vote in the election of directors. PLDT’s Articles of
national” in the Foreign Investments Act of 1991,50 to wit: Incorporation expressly state that “the holders of Serial Preferred Stock shall not be entitled to vote at any meeting of the
SEC. 3. Definitions.—As used in this Act: stockholders for the election of directors or for any other purpose or otherwise participate in any action taken by the
a. The term “Philippine national” shall mean a citizen of the Philippines; or a domestic partnership or association wholly owned by corporation or its stockholders, or to receive notice of any meeting of stockholders.” 51
citizens of the Philippines; or a corporation organized under the laws of the Philippines of which at least sixty percent On the other hand, holders of common shares are granted the exclusive right to vote in the election of directors. PLDT’s Articles of
(60%) of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines; or a Incorporation52 state that “each holder of Common Capital Stock shall have one vote in respect of each share of such stock held by him
corporation organized abroad and registered as doing business in the Philippines under the Corporation Code of which one hundred on all matters voted upon by the stockholders, and the holders of Common Capital Stock shall have the exclusive right
percent (100%) of the capital stock outstanding and entitled to vote is wholly owned by Filipinos or a trustee of funds for pension or to vote for the election of directors and for all other purposes.”53
other employee retirement or separation benefits, where the trustee is a Philippine national and at least sixty percent (60%) of the In short, only holders of common shares can vote in the election of directors, meaning only common shareholders exercise
fund will accrue to the benefit of Philippine nationals: Provided, That where a corporation and its nonFilipino stockholders own control over PLDT. Conversely, holders of preferred shares, who have no voting rights in the election of directors, do not have any
stocks in a Securities and Exchange Commission (SEC) registered enterprise, at least sixty percent (60%) of the capital stock control over PLDT. In fact, under PLDT’s Articles of Incorporation, holders of common shares have voting rights for all purposes,
outstanding and entitled to vote of each of both corporations must be owned and held by citizens of the Philippines and at least sixty while holders of preferred shares have no voting right for any purpose whatsoever.
percent (60%) of the members of the Board of Directors of each of both corporations must be citizens of the Philippines, in order that It must be stressed, and respondents do not dispute, that foreigners hold a majority of the common shares of PLDT. In fact,
the corporation, shall be considered a “Philippine national.” (Emphasis supplied) based on PLDT’s 2010 General Information Sheet (GIS), 54 which is a document required to be submitted annually to the Securities
In explaining the definition of a “Philippine national,” the Implementing Rules and Regulations of the Foreign Investments Act and Exchange Commission,55 foreigners hold 120,046,690 common shares of PLDT whereas Filipinos hold only 66,750,622 common
of 1991 provide: shares.56 In other words, foreigners hold 64.27% of the total number of PLDT’s common shares, while Filipinos hold only 35.73%. Since
“b. “Philippine national” shall mean a citizen of the Philippines or a domestic partnership or association wholly owned by the holding a majority of the common shares equates to control, it is clear that foreigners exercise control over PLDT. Such amount of
citizens of the Philippines; or a corporation organized under the laws of the Philippines of which at least sixty percent control unmistakably exceeds the allowable 40 percent limit on foreign ownership of public utilities expressly mandated in Section 11,
Article XII of the Constitution.
[60%] of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines ; or a trustee of
Moreover, the Dividend Declarations of PLDT for 2009, 57 as submitted to the SEC, shows that per share the SIP 58 preferred
funds for pension or other employee retirement or separation benefits, where the trustee is a Philippine national and at least sixty
shares earn a pittance in dividends compared to the common shares. PLDT declared dividends for the common shares at P70.00 per
percent [60%] of the fund will accrue to the benefit of the Philippine nationals; Provided, that where a corporation its nonFilipino
share, while the declared dividends for the preferred shares amounted to a measly P1.00 per share. 59 So the preferred shares not only
stockholders own stocks in a Securities and Exchange Commission [SEC] registered enterprise, at least sixty percent [60%] of the cannot vote in the election of directors, they also have very little and obviously negligible dividend earning capacity compared to
capital stock outstanding and entitled to vote of both corporations must be owned and held by citizens of the Philippines and at least common shares.
sixty percent [60%] of the members of the Board of Directors of each of both corporation must be citizens of the Philippines, in order As shown in PLDT’s 2010 GIS, 60 as submitted to the SEC, the par value of PLDT common shares is P5.00 per share, whereas
that the corporation shall be considered a Philippine national. The control test shall be applied for this purpose. the par value of preferred shares is P10.00 per share. In other words, preferred shares have twice the par value of common shares but
Compliance with the required Filipino ownership of a corporation shall be determined on the basis of cannot elect directors and have only 1/70 of the dividends of common shares. Moreover, 99.44% of the preferred shares are owned by
outstanding capital stock whether fully paid or not, but only such stocks which are generally entitled to vote are Filipinos while foreigners own only a minuscule 0.56% of the preferred shares. 61 Worse, preferred shares constitute 77.85% of the
considered. authorized capital stock of PLDT while common shares constitute only 22.15%. 62 This undeniably shows that beneficial interest in
For stocks to be deemed owned and held by Philippine citizens or Philippine nationals, mere legal title is not PLDT is not with the nonvoting preferred shares but with the common shares, blatantly violating the constitutional requirement of
enough to meet the required Filipino equity. Full beneficial ownership of the stocks, coupled with appropriate voting 60 percent Filipino control and Filipino beneficial ownership in a public utility.
rights is essential. Thus, stocks, the voting rights of which have been assigned or transferred to aliens cannot be The legal and beneficial ownership of 60 percent of the outstanding capital stock must rest in the hands of Filipinos in
considered held by Philippine citizens or Philippine nationals. accordance with the constitutional mandate. Full beneficial ownership of 60 percent of the outstanding capital stock, coupled with 60
Individuals or juridical entities not meeting the aforementioned qualifications are considered as nonPhilippine percent of the voting rights, is constitutionally required for the State’s grant of authority to operate a public utility. The undisputed
nationals.” (Emphasis supplied) fact that the PLDT preferred shares, 99.44% owned by Filipinos, are nonvoting and earn only 1/70 of the dividends that PLDT
Mere legal title is insufficient to meet the 60 percent Filipinoowned “capital” required in the Constitution. Full beneficial common shares earn, grossly violates the constitutional requirement of 60 percent Filipino control and Filipino beneficial ownership of
ownership of 60 percent of the outstanding capital stock, coupled with 60 percent of the voting rights, is required. The legal and a public utility.
beneficial ownership of 60 percent of the outstanding capital stock must rest in the hands of Filipino nationals in accordance with the In short, Filipinos hold less than 60 percent of the voting stock, and earn less than 60 percent of the dividends, of
constitutional mandate. Otherwise, the corporation is “considered as nonPhilippine national[s].” PLDT. This directly contravenes the express command in Section 11, Article XII of the Constitution that “[n]o franchise, certificate,
Under Section 10, Article XII of the Constitution, Congress may “reserve to citizens of the Philippines or to corporations or or any other form of authorization for the operation of a public utility shall be granted except to x x x corporations x x x organized
associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens x x x.”
certain areas of investments.” Thus, in numerous laws Congress has reserved certain areas of investments to Filipino citizens or to To repeat, (1) foreigners own 64.27% of the common shares of PLDT, which class of shares exercises the sole right to vote in the
corporations at least sixty percent of the “capital” of which is owned by Filipino citizens. Some of these laws are: (1) Regulation of election of directors, and thus exercise control over PLDT; (2) Filipinos own only 35.73% of PLDT’s common shares, constituting a
Award of Government Contracts or R.A. No. 5183; (2) Philippine Inventors Incentives Act or R.A. No. 3850; (3) Magna Carta for minority of the voting stock, and thus do not exercise control over PLDT; (3) preferred shares, 99.44% owned by Filipinos, have no
Micro, Small and Medium Enterprises or R.A. No. 6977; (4) Philippine Overseas Shipping Development Act or R.A. No. 7471; (5) voting rights; (4) preferred shares earn only 1/70 of the dividends that common shares earn; 63 (5) preferred shares have twice the par
Domestic Shipping Development Act of 2004 or R.A. No. 9295; (6) Philippine Technology Transfer Act of 2009 or R.A. No. 10055; and value of common shares; and (6) preferred shares constitute 77.85% of the authorized capital stock of PLDT and common shares only
(7) Ship Mortgage Decree or P.D. No. 1521. Hence, the term “capital” in Section 11, Article XII of the Constitution is also used in the 22.15%. This kind of ownership and control of a public utility is a mockery of the Constitution.
same context in numerous laws reserving certain areas of investments to Filipino citizens. Incidentally, the fact that PLDT common shares with a par value of P5.00 have a current stock market value of P2,328.00 per
share,64 while PLDT preferred shares with a par value of P10.00 per share have a current stock market value ranging from only
To construe broadly the term “capital” as the total outstanding capital stock, including both common and nonvoting preferred
P10.92 to P11.06 per share,65 is a glaring confirmation by the market that control and beneficial ownership of PLDT rest with the
shares, grossly contravenes the intent and letter of the Constitution that the “State shall develop a selfreliant and independent
common shares, not with the preferred shares.
national economy effectively controlled by Filipinos.” A broad definition unjustifiably disregards who owns the allimportant voting
Indisputably, construing the term “capital” in Section 11, Article XII of the Constitution to include both voting and nonvoting
stock, which necessarily equates to control of the public utility.
shares will result in the abject surrender of our telecommunications industry to foreigners, amounting to a clear abdication of the
We shall illustrate the glaring anomaly in giving a broad definition to the term “capital.” Let us assume that a corporation has
State’s constitutional duty to limit control of public utilities to Filipino citizens. Such an interpretation certainly runs counter to the
100 common shares owned by foreigners and 1,000,000 nonvoting preferred shares owned by Filipinos, with both classes of share
constitutional provision reserving certain areas of investment to Filipino citizens, such as the exploitation of natural resources as well
having a par value of one peso (P1.00) per share. Under the broad definition of the term “capital,” such corporation would be
as the ownership of land, educational institutions and advertising businesses. The Court should never open to foreign control what the
considered compliant with the 40 percent constitutional limit on foreign equity of public utilities since the overwhelming majority, or
Constitution has expressly reserved to Filipinos for that would be a betrayal of the Constitution and of the national interest. The
more than 99.999 percent, of the total outstanding capital stock is Filipino owned. This is obviously absurd.
Court must perform its solemn duty to defend and uphold the intent and letter of the Constitution to ensure, in the words of the
In the example given, only the foreigners holding the common shares have voting rights in the election of directors, even if they
Constitution, “a selfreliant and independent national economy effectively controlled by Filipinos.”
hold only 100 shares. The foreigners, with a minuscule equity of less than 0.001 percent, exercise control over the public utility. On
Section 11, Article XII of the Constitution, like other provisions of the Constitution expressly reserving to
the other hand, the Filipinos, holding more than 99.999 percent of the equity, cannot vote in the election of directors and hence, have
no control over the public utility. This starkly circumvents the intent of the framers of the Constitution, as well as the clear language Filipinos specific areas of investment, such as the development of natural resources and ownership of land, educational institutions
of the Constitution, to place the control of public utilities in the hands of Filipinos. It also renders illusory the State policy of an and advertising business, is selfexecuting. There is no need for legislation to implement these selfexecuting provisions of the
independent national economy effectively controlled by Filipinos.
Constitution. The rationale why these constitutional provisions are selfexecuting was explained in Manila Prince Hotel v. Securities and Exchange Commission is DIRECTED to apply this definition of the term “capital” in determining the extent of
GSIS,66 thus: allowable foreign ownership in respondent Philippine Long Distance Telephone Company, and if there is a violation of Section 11,
“x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the Article XII of the Constitution, to impose the appropriate sanctions under the law.
presumption now is that all provisions of the constitution are selfexecuting. If the constitutional provisions are treated as requiring SO ORDERED.
legislation instead of selfexecuting, the legislature would have the power to ignore and practically nullify the mandate of the LeonardoDe Castro, Brion, Peralta, Bersamin, Del
fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been, that — Castillo, Villarama, Jr., Perez, Mendoza and Sereno, JJ., concur.
. . . in case of doubt, the Constitution should be considered selfexecuting rather than nonselfexecuting. . . . Unless the Corona, J., I join the dissent of Mr. Justice Velasco.
contrary is clearly intended, the provisions of the Constitution should be considered selfexecuting, as a Velasco, Jr., J., I Dissent. (Please see Dissenting Opinion).
contrary rule would give the legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely
meaningless by simply refusing to pass the needed implementing statute.” (Emphasis supplied)
In Manila Prince Hotel, even the Dissenting Opinion of then Associate Justice Reynato S. Puno, later Chief Justice, agreed that
constitutional provisions are presumed to be selfexecuting. Justice Puno stated:
“Courts as a rule consider the provisions of the Constitution as selfexecuting, rather than as requiring future legislation for
their enforcement. The reason is not difficult to discern. For if they are not treated as selfexecuting, the mandate of the
fundamental law ratified by the sovereign people can be easily ignored and nullified by Congress. Suffused with
wisdom of the ages is the unyielding rule that legislative actions may give breath to constitutional rights but
congressional inaction should not suffocate them.
Thus, we have treated as selfexecuting the provisions in the Bill of Rights on arrests, searches and seizures, the rights of a
person under custodial investigation, the rights of an accused, and the privilege against selfincrimination. It is recognized that
legislation is unnecessary to enable courts to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty
and the protection of property. The same treatment is accorded to constitutional provisions forbidding the taking or damaging of
property for public use without just compensation.” (Emphasis supplied)
Thus, in numerous cases,67 this Court, even in the absence of implementing legislation, applied directly the provisions of the
1935, 1973 and 1987 Constitutions limiting land ownership to Filipinos. In Soriano v. Ong Hoo,68 this Court ruled:
“x x x As the Constitution is silent as to the effects or consequences of a sale by a citizen of his land to an alien, and as both the
citizen and the alien have violated the law, none of them should have a recourse against the other, and it should only be the State that
should be allowed to intervene and determine what is to be done with the property subject of the violation. We have said that what the
State should do or could do in such matters is a matter of public policy, entirely beyond the scope of judicial authority. (Dinglasan, et
al. vs. Lee Bun Ting, et al., 6 G.R. No. L5996, June 27, 1956.) While the legislature has not definitely decided what policy
should be followed in cases of violations against the constitutional prohibition, courts of justice cannot go beyond by
declaring the disposition to be null and void as violative of the Constitution . x x x” (Emphasis supplied) To treat Section 11,
G.R. No. 179267. June 25, 2013.*
Article XII of the Constitution as not selfexecuting would mean that since the 1935 Constitution, or over the last 75 years, not one of JESUS C. GARCIA, petitioner, vs. THE HONORABLE RAY ALAN T. DRILON,
the constitutional provisions expressly reserving specific areas of investments to corporations, at least 60 percent of the “capital” of
which is owned by Filipinos, was enforceable. In short, the framers of the 1935, 1973 and 1987 Constitutions miserably failed to Presiding Judge, Regional Trial CourtBranch 41, Bacolod City, and ROSALIE
effectively reserve to Filipinos specific areas of investment, like the operation by corporations of public utilities, the exploitation by
corporations of mineral resources, the ownership by corporations of real estate, and the ownership of educational institutions. All the
JAYPEGARCIA, for herself and in behalf of minor children, namely: JOANN,
legislatures that convened since 1935 also miserably failed to enact legislations to implement these vital constitutional provisions that JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, respondents.
determine who will effectively control the national economy, Filipinos or foreigners. This Court cannot allow such an absurd
interpretation of the Constitution. Remedial Law; Civil Procedure; Courts; Family Courts; Family Courts Act of 1997
This Court has held that the SEC “has both regulatory and adjudicative functions.” 69 Under its regulatory functions, the SEC
can be compelled by mandamus to perform its statutory duty when it unlawfully neglects to perform the same. Under its adjudicative (R.A. No. 8369); It must be stressed that Family Courts are special courts, of the same level
or quasijudicial functions, the SEC can be also be compelled by mandamus to hear and decide a possible violation of any law it as Regional Trial Courts. Under R.A. 8369, otherwise known as the “Family Courts Act of
administers or enforces when it is mandated by law to investigate such violation.
Under Section 17(4)70 of the Corporation Code, the SEC has the regulatory function to reject or disapprove the Articles of 1997,” family courts have exclusive original jurisdiction to hear and decide cases of domestic
Incorporation of any corporation where “the required percentage of ownership of the capital stock to be owned by citizens
of the Philippines has not been complied with as required by existing laws or the Constitution.” Thus, the SEC is the
violence against women and children.—At the outset, it must be stressed that Family
government agency tasked with the statutory duty to enforce the nationality requirement prescribed in Section 11, Article XII of the Courts are special courts, of the same level as Regional Trial Courts. Under R.A. 8369,
Constitution on the ownership of public utilities. This Court, in a petition for declaratory relief that is treated as a petition for
mandamus as in the present case, can direct the SEC to perform its statutory duty under the law, a duty that the SEC has apparently
otherwise known as the “Family Courts Act of 1997,” family courts have exclusive original
unlawfully neglected to do based on the 2010 GIS that respondent PLDT submitted to the SEC. jurisdiction to hear and decide cases of domestic violence against women and children. In
Under Section 5(m) of the Securities Regulation Code, 71 the SEC is vested with the “power and function” to “suspend or accordance with said law, the Supreme Court designated from among the branches of the
revoke, after proper notice and hearing, the franchise or certificate of registration of corporations, partnerships
or associations, upon any of the grounds provided by law.” The SEC is mandated under Section 5(d) of the same Code with the Regional Trial Courts at least one Family Court in each of several key cities identified. To
“power and function” to “investigate x x x the activities of persons to ensure compliance” with the laws and regulations that achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now provides that
SEC administers or enforces. The GIS that all corporations are required to submit to SEC annually should put the SEC on guard
against violations of the nationality requirement prescribed in the Constitution and existing laws. This Court can compel the SEC, in
Regional Trial Courts designated as Family Courts shall have original and exclusive
a petition for declaratory relief that is treated as a petition for mandamus as in the present case, to hear and decide a possible jurisdiction over cases of VAWC defined under the latter law.
violation of Section 11, Article XII of the Constitution in view of the ownership structure of PLDT’s voting shares, as admitted by
respondents and as stated in PLDT’s 2010 GIS that PLDT submitted to SEC.
Same; Same; Same; Regional Trial Courts; It is settled that Regional Trial Courts have
WHEREFORE, we PARTLY GRANT the petition and rule that the term “capital” in Section 11, Article XII of the 1987 jurisdiction to resolve the constitutionality of a statute, “this authority being embraced in the
Constitution refers only to shares of stock entitled to vote in the election of directors, and thus in the present case only to common
shares, and not to the total outstanding capital stock (common and nonvoting preferred shares). Respondent Chairperson of 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.”—Inspite of its designation as a Same; Evidence; Constitutional Law; The question relative to the constitutionality of a
family court, the RTC of Bacolod City remains possessed of authority as a court of general statute is one of law which does not need to be supported by evidence.—That the proceedings
original jurisdiction to pass upon all kinds of cases whether civil, criminal, special in Civil Case No. 06797 are summary in nature should not have deterred petitioner from
proceedings, land registration, guardianship, naturalization, admiralty or insolvency. It is raising the same in his Opposition. The question relative to the constitutionality of a statute
settled that RTCs have jurisdiction to re solve the constitutionality of a statute, “this is one of law which does not need to be supported by evidence.
authority being embraced in the general definition of the judicial power to determine what Same; Temporary Protection Order (TPO); If a temporary protection order issued is
are the valid and binding laws by the criterion of their conformity to the fundamental law.”
due to expire, the trial court may extend or renew the said order for a period of thirty (30)
The Constitution vests the power of judicial review or the power to declare the
days each time until final judgment is rendered.—To obviate potential dangers that may
constitutionality or validity of a law, treaty, international or executive agreement,
arise concomitant to the conduct of a hearing when necessary, Section 26 (b) of A.M. No. 04
presidential decree, order, instruction, ordinance, or regulation not only in this Court, but in
1011SC provides that if a temporary protection order issued is due to expire, the trial
all RTCs. We said in J.M. Tuason and Co., Inc. v. CA, 3 SCRA 696 (1961), that, “[p]lainly
court may extend or renew the said order for a period of thirty (30) days each time until
the Constitution contemplates that the inferior courts should have jurisdiction in cases
final judgment is rendered. It may likewise modify the extended or renewed temporary
involving constitutionality of any treaty or law, for it speaks of appellate review of final protection order as may be necessary to meet the needs of the parties. With the private
judgments of inferior courts in cases where such constitutionality happens to be in issue.” respondent given ample protection, petitioner could proceed to litigate the constitutional
Same; Violence Against Women and Children; Section 20 of A.M. No. 041011SC, the issues, without necessarily running afoul of the very purpose for the adoption of the rules on
Rule on Violence Against Women and Their Children, lays down a new kind of procedure summary procedure.
requiring the respondent to file an opposition to the petition and not an answer.—Section 20 Same; Provisional Remedies; Injunction; Temporary Protection Order (TPO); It
of A.M. No. 041011SC, the Rule on Violence Against Women and Their Children, lays bears stressing that protection orders are granted ex parte so as to protect women
down a new kind of procedure requiring the respondent to file an opposition to the petition
and their children from acts of violence. To issue an injunction against such
and not an answer. 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 orders will defeat the very purpose of the law against Violence Against Women and
affidavits of witnesses and shall show cause why a temporary or permanent protection order Children.—As the rules stand, a review of the case by appeal or certiorari before
should not be issued; (b) Respondent shall not include in the opposition any judgment is prohibited. Moreover, if the appeal of a judgment granting
counterclaim, crossclaim or thirdparty complaint, but any cause of action which permanent protection shall not stay its enforcement, with more reason that a TPO,
could be the subject thereof may be litigated in a separate civil action. which is valid only for thirty (30) days at a time, should not be enjoined. The mere fact that
Same; Civil Procedure; Cause of Action; The unconstitutionality of a statute is not a statute is alleged to be unconstitutional or invalid, does not of itself entitle a litigant to
a cause of action that could be the subject of a counterclaim, crossclaim or a have the same enjoined. In Younger v. Harris, Jr., 27 L.Ed.2d 669 (1971), the Supreme
Court of the United States declared, thus: Federal injunctions against state criminal
thirdparty complaint.—We cannot subscribe to the theory espoused by petitioner
statutes, either in their entirety or with respect to their separate and distinct prohibitions,
that, since a counterclaim, crossclaim and thirdparty complaint are to be are not to be granted as a matter of course, even if such statutes are unconstitutional. No
excluded from the opposition, the issue of constitutionality cannot likewise be citizen or member of the community is immune from prosecution, in good faith, for his
raised therein. A counterclaim is defined as any claim for money or other relief alleged criminal acts. The imminence of such a prosecution even though alleged to be
which a defending party may have against an opposing party. A crossclaim, on unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its
the other hand, is any claim by one party against a coparty arising out of the extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.
transaction or occurrence that is the subject matter either of the original action or (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
of a counterclaim therein. Finally, a thirdparty complaint is a claim that a defending
party may, with leave of court, file against a person not a party to the action for orders are granted ex parte so as to protect women and their children from acts of violence.
contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim. To issue an injunction against such orders will defeat the very purpose of the law against
As pointed out by Justice Teresita J. LeonardoDe Castro, the unconstitutionality of a VAWC.
statute is not a cause of action that could be the subject of a counterclaim, crossclaim or a Constitutional Law; Separation of Powers; Courts are not concerned with the wisdom,
thirdparty complaint. Therefore, it is not prohibited from being raised in the opposition in justice, policy, or expediency of a statute; By the principle of separation of powers, it is the
view of the familiar maxim expressio unius est exclusio alterius. legislative that determines the necessity, adequacy, wisdom and expediency of any law.—It is
settled that courts are not concerned with the wisdom, justice, policy, or expediency of a violence; and the widespread gender bias and prejudice against women all make
statute. Hence, we dare not venture into the real motivations and wisdom of the members of for real differences justifying the classification under the law. As Justice McIntyre
Congress in limiting the protection against violence and abuse under R.A. 9262 to women succinctly states, “the accommodation of differences ... is the essence of true equality.”
and children only. No proper challenge on said grounds may be entertained in this Same; Same; GenderBased Violence; According to the Philippine Commission on
proceeding. Congress has made its choice and it is not our prerogative to supplant this
Women (the National Machinery for Gender Equality and Women’s Empowerment), violence
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, against women (VAW) is deemed to be closely linked with the unequal power relationship
it is the legislative that determines the necessity, adequacy, wisdom and expediency of any between women and men otherwise known as “genderbased violence.”—According to the
law. We only step in when there is a violation of the Constitution. However, none was Philippine Commission on Women (the National Machinery for Gender Equality and
sufficiently shown in this case. 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
Same; Equal Protection of the Laws; Equal protection simply requires that all
“genderbased violence.” Societal norms and traditions dictate people to think men are the
persons or things similarly situated should be treated alike, both as to rights leaders, pursuers, providers, and take on dominant roles in society while women are
conferred and responsibilities im posed.—Equal protection simply requires that all nurturers, men’s companions and supporters, and take on subordinate roles in society. This
persons or things similarly situated should be treated alike, both as to rights conferred and perception leads to men gaining more power over women. With power comes the need to
responsibilities imposed. The oftrepeated disquisition in the early case of Victoriano v. control to retain that power. And VAW is a form of men’s expression of controlling women to
Elizalde Rope Workers’ Union, 59 SCRA 54 (1974), is instructive: The guaranty of equal retain power.
protection of the laws is not a guaranty of equality in the application of the laws upon all Same; Same; The enactment of R.A. 9262 aims to address the discrimination
citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional brought about by biases and prejudices against women.—The enactment of R.A.
prohibition against inequality, that every man, woman and child should be affected alike by 9262 aims to address the discrimination brought about by biases and prejudices
a statute. Equality of operation of statutes does not mean indiscriminate operation on
against women. As emphasized by the CEDAW Committee on the Elimination of
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 Discrimination against Women, addressing or correcting discrimination through
which are different in fact be treated in law as though they were the same. The equal specific measures focused on women does not discriminate against men.
protection clause does not forbid discrimination as to things that are different. It does not Petitioner’s contention, therefore, that R.A. 9262 is discriminatory and that it is
prohibit legislation which is limited either in the object to which it is directed or by the an “antimale,” “husbandbashing,” and “hatemen” law deserves scant
territory within which it is to operate. The equal protection of the laws clause of the consideration. As a State Party to the CEDAW, the Philippines bound itself to
Constitution allows classification. Classification in law, as in the other departments of
take all appropriate measures “to modify the social and cultural patterns 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 conduct of men and women, with a view to achieving the elimination of prejudices
inequality. The very idea of classification is that of inequality, so that it goes without saying and customary and all other practices which are based on the idea of the
that the mere fact of inequality in no manner determines the matter of constitutionality. All inferiority or the superiority of either of the sexes or on stereotyped roles for men
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; and women.” Justice Puno correctly pointed out that “(t)he paradigm shift
that it must be germane to the purpose of the law; that it must not be limited to changing the character of domestic violence from a private affair to a public
existing conditions only; and that it must apply equally to each member of the offense will require the development of a distinct mindset on the part of the police, the
class. This Court has held that the standard is satisfied if the classification or distinction is prosecution and the judges.”
based on a reasonable foundation or rational basis and is not palpably arbitrary. Same; Same; The distinction between men and women is germane to the purpose of
Same; Same; The unequal power relationship between women and men; the fact R.A. 9262, which is to address violence committed against women and children, spelled out
that women are more likely than men to be victims of violence; and the widespread in its Declaration of Policy.—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,
gender bias and prejudice against women all make for real differences justifying
spelled out in its Declaration of Policy, as follows: SEC. 2. Declaration of Policy.—It is
the classification under the law.—The unequal power relationship between hereby declared that the State values the dignity of women and children and guarantees
women and men; the fact that women are more likely than men to be victims of 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 allegation that they and their son (GoTan’s husband) had community of design and purpose
safety and security. Towards this end, the State shall exert efforts to address violence in tormenting her by giving her insufficient financial support; harassing and pressuring her
committed against women and children in keeping with the fundamental freedoms to be ejected from the family home; and in repeatedly abusing her verbally, emotionally,
guaranteed under the Constitution and the provisions of the Universal Declaration of mentally and physically.
Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Remedial Law; Temporary Protection Order; Words and Phrases; A protection
Women, Convention on the Rights of the Child and other international human rights
order is an order issued to prevent further acts of violence against women and
instruments of which the Philippines is a party.
Same; Same; The application of R.A. 9262 is not limited to the existing conditions their children, their family or household members, and to grant other necessary
when it was promulgated, but to future conditions as well, for as long as the safety and reliefs; The rules require that petitions for protection order be in writing, signed
security of women and their children are threatened by violence and abuse.—The application and verified by the petitioner thereby undertaking full responsibility, criminal or
of R.A. 9262 is not limited to the existing conditions when it was promulgated, but to future civil, for every allegation therein.—A protection order is an order issued to prevent
conditions as well, for as long as the safety and security of women and their children are further acts of violence against women and their children, their family or household
threatened by violence and abuse. R.A. 9262 applies equally to all women and children who members, and to grant other necessary reliefs. Its purpose is to safeguard the offended
suffer violence and abuse. parties from further harm, minimize any disruption in their daily life and facilitate the
Statutes; An act will not be held invalid merely because it might have been more 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
explicit in its wordings or detailed in its provisions.—There is nothing in the
necessary to curtail access by a perpetrator to the victim. This serves to safeguard the
definition of VAWC that is vague and ambiguous that will confuse petitioner in
victim from greater risk of violence; to accord the victim and any designated family or
his defense. The acts enumerated above are easily understood and provide household member safety in the family residence, and to prevent the perpetrator from
adequate contrast between the innocent and the prohibited acts. They are worded committing acts that jeopardize the employment and support of the victim. It also enables
with sufficient definiteness that persons of ordinary intelligence can understand the court to award temporary custody of minor children to protect the children from
what conduct is prohibited, and need not guess at its meaning nor differ in its violence, to prevent their abduction by the perpetrator and to ensure their financial
application. Yet, petitioner insists that phrases like “depriving or threatening to support.” The rules require that petitions for protection order be in writing, signed and
deprive the woman or her child of a legal right,” “solely controlling the conjugal or common verified by the petitioner thereby undertaking full responsibility, criminal or civil, for every
money or properties,” “marital infidelity,” and “causing mental or emotional anguish” are so allegation therein. Since “time is of the essence in cases of VAWC if further violence is to be
vague that they make every quarrel a case of spousal abuse. However, we have stressed prevented,” the court is authorized to issue ex parte a TPO after raffle but before notice and
that the “vagueness” doctrine merely requires a reasonable degree of certainty for the hearing when the life, limb or property of the victim is in jeopardy and there is reasonable
statute to be upheld — not absolute precision or mathematical exactitude, as petitioner ground to believe that the order is necessary to protect the victim from the immediate and
seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as imminent danger of VAWC or to prevent such violence, which is about to recur.
the metes and bounds of the statute are clearly delineated. An act will not be held invalid Same; Same; Just like a writ of preliminary attachment which is issued without
merely because it might have been more explicit in its wordings or detailed in its provisions.
notice and hearing because the time in which the hearing will take could be
Criminal Law; Violence Against Women and Children; Conspiracy; While the law
enough to enable the defendant to abscond or dispose of his property, in the same
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 way, the victim of Violence Against Women and Children may already have
principle of conspiracy under the Revised Penal Code (RPC).—VAWC may likewise be suffered harrowing experiences in the hands of her tormentor, and possibly even
committed “against a woman with whom the person has or had a sexual or dating death, if notice and hearing were required before such acts could be prevented.—
relationship.” Clearly, the use of the genderneutral word “person” who has or had a sexual The grant of a TPO ex parte cannot, therefore, be challenged as violative of the
or dating relationship with the woman encompasses even lesbian relationships. Moreover, right to due process. Just like a writ of preliminary attachment which is issued
while the law provides that the offender be related or connected to the victim by marriage,
without notice and hearing because the time in which the hearing will take could
former marriage, or a sexual or dating relationship, it does not preclude the application of
be enough to enable the defendant to abscond or dispose of his property, in the
the principle of conspiracy under the Revised Penal Code (RPC). Thus, in the case of Go
same way, the victim of VAWC may already have suffered harrowing experiences
Tan v. Spouses Tan, 567 SCRA 231 (2008), the parentsinlaw of Sharica Mari L. GoTan,
in the hands of her tormentor, and possibly even death, if notice and hearing were
the victim, were held to be proper respondents in the case filed by the latter upon the
required before such acts could be pre vented. It is a constitutional commonplace that removal and exclusion may be permanent only where no property rights are violated. How
the ordinary requirements of procedural due process must yield to the necessities of then can the private respondent just claim any property and appropriate it for herself, as
protecting vital public interests, among which is protection of women and children from petitioner seems to suggest?
violence and threats to their personal safety and security. It should be pointed out that Same; Same; Under Section 23(c) of A.M. No. 041011SC, the court shall not refer
when the TPO is issued ex parte, the court shall likewise order that notice be immediately the Violence Against Women and Children case or any issue thereof to a mediator.—Under
given to the respondent directing him to file an opposition within five (5) days from service. Section 23(c) of A.M. No. 041011SC, the court shall not refer the case or any issue thereof
Moreover, the court shall order that notice, copies of the petition and TPO be served to a mediator. The reason behind this provision is wellexplained by the Commentary on
immediately on the respondent by the court sheriffs. The TPOs are initially effective for Section 311 of the Model Code on Domestic and Family Violence as follows: This section
thirty (30) days from service on the respondent. Where no TPO is issued ex parte, the court prohibits a court from ordering or referring parties to mediation in a proceeding for an order
will nonetheless order the immediate issuance and service of the notice upon the respondent for protection. Mediation is a process by which parties in equivalent bargaining positions
requiring him to file an opposition to the petition within five (5) days from service. The date voluntarily reach consensual agreement about the issue at hand. Violence, however, is
of the preliminary conference and hearing on the merits shall likewise be indicated on the
not a subject for compromise. A process which involves parties mediating the issue of
notice.
violence implies that the victim is somehow at fault. In addition, mediation of issues in a
Same; Same; The respondent of a petition for protection order should be apprised of proceeding for an order of protection is problematic because the petitioner is frequently
the charges imputed to him and afforded an opportunity to present his side; “To be heard” unable to participate equally with the person against whom the protection order has been
does not only mean verbal arguments in court; one may be heard also through pleadings. —It sought.
is clear from the foregoing rules that the respondent of a petition for protection order should Same; Same; Barangay Protection Order (BPO); The Barangay Protection Order
be apprised of the charges imputed to him and afforded an opportunity to present his side.
issued by the Punong Barangay or, in his unavail ability, by any available Barangay
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 Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the
happened” is a mere product of an overactive imagination. The essence of due process is to woman or her child; and (2) threatening to cause the woman or her child physical harm.
be found in the reasonable opportunity to be heard and submit any evidence one may have Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance of
in support of one’s defense. “To be heard” does not only mean verbal arguments in court; one his duty under the Local Government Code to “enforce all laws and ordinances,” and to
may be heard also through pleadings. Where opportunity to be heard, either through oral “maintain public order in the barangay.”—Judicial power includes the duty of the courts of
arguments or pleadings, is accorded, there is no denial of procedural due process. justice to settle actual controversies involving rights which are legally demandable and
Same; Same; Indubitably, petitioner may be removed and excluded from private enforceable, and to determine whether or not there has been a grave abuse of discretion
respondent’s residence, regardless of ownership, only temporarily for the purpose amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government. On the other hand, executive power “is generally defined as the power to
of protecting the latter. Such removal and exclusion may be permanent only where
enforce and administer the laws. It is the power of carrying the laws into practical operation
no property rights are violated.—Petitioner next laments that the removal and and enforcing their due observance.” As clearly delimited by the aforequoted provision, the
exclusion of the respondent in the VAWC case from the residence of the victim, BPO issued by the Punong Barangay or, in his unavailability, by any available Barangay
regardless of ownership of the residence, is virtually a “blank check” issued to the wife to Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the
claim any property as her conjugal home. The wording of the pertinent rule, however, does woman or her child; and (2) threatening to cause the woman or her child physical harm.
not by any stretch of the imagination suggest that this is so. It states: SEC. 11. Reliefs Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance of
available to the offended party.—The protection order shall include any, some or all of the his duty under the Local Government Code to “enforce all laws and ordinances,” and to
following reliefs: x x x x (c) Removing and excluding the respondent from the residence of “maintain public order in the barangay.” We have held that “(t)he mere fact that an officer
the offended party, regardless of ownership of the residence, either temporarily for the is required by law to inquire into the existence of certain facts and to apply the law thereto
purpose of protecting the offended party, or permanently where no property rights are in order to determine what his official conduct shall be and the fact that these acts may
violated. If the respondent must remove personal effects from the residence, the court shall affect private rights do not constitute an exercise of judicial powers.”
direct a law enforcement agent to accompany the respondent to the residence, remain there
Statutes; Before a statute or its provisions duly challenged are voided, an unequivocal
until the respondent has gathered his things and escort him from the residence; x x x x
Indubitably, petitioner may be removed and excluded from private respondent’s residence, breach or a clear conflict with the Constitution, not merely a doubtful or argumentative one,
regardless of ownership, only temporarily for the purpose of protecting the latter. Such must be demonstrated in such a manner as to leave no doubt in the mind of the Court.—
Before a statute or its provisions duly challenged are voided, an unequivocal breach or a
clear conflict with the Constitution, not merely a doubtful or argumentative one, must be personnel, social workers, health care providers, and other local government
demonstrated in such a manner as to leave no doubt in the mind of the Court. In other officials in responding to complaints of VAWC or requests for assistance.
words, the grounds for nullity must be beyond reasonable doubt. In the instant case, A husband is now before the Court assailing the constitutionality of R.A.
however, no concrete evidence and convincing arguments were presented by petitioner to
9262 as being violative of the equal protection and due process clauses, and an
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 coequal undue delegation of judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie JaypeGarcia (private respondent) filed, for
herself and in behalf of her minor children, a verified petition (Civil Case No. 06
6
ETITION for review on certiorari of the decision and resolution of the Court of 797) before the Regional Trial Court (RTC) of Bacolod City for the issuance of a
Appeals. Temporary Protection Order (TPO) against her husband, Jesus C. Garcia
The facts are stated in the opinion of the Court. (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse;
Roland G. Ravina for petitioner. emotional, psychological, and economic violence as a result of marital infidelity on
Ma. Rowena Amelia V. Guanzon for private respondents. the part of petitioner, with threats of deprivation of custody of her children and of
Mae Niña ReyesGallos for private respondents. financial support. 7
Claire Angeline P. Luczon cocounsel for private respondents.
Private respondent’s claims
PERLASBERNABE, J.:
Private respondent married petitioner in 2002 when she was 34 years old and
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8
the former was eleven years her senior. They have three (3) children, namely: Jo
million Filipinos — or 93 percent of a total population of 93.3 million adhering to
Ann J. Garcia, 17 years old, who is the natural child of petitioner but whom
the teachings of Jesus Christ. Yet, the admonition for husbands to love their
1
private respondent adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph
wives as their own bodies just as Christ loved the church and gave himself up for
Eduard J. Garcia, 3 years old. 8
Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes.” It Things turned for the worse when petitioner took up an affair with a bank
took effect on March 27, 2004. 4
manager of Robinson’s Bank, Bacolod City, who is the godmother of one of their
R.A. 9262 is a landmark legislation that defines and criminalizes acts of sons. Petitioner admitted to the affair when private respondent confronted him
violence against women and their children (VAWC) perpetrated by women’s about it in 2004. He even boasted to the household help about his sexual relations
intimate partners, i.e., husband; former husband; or any person who has or had a with said bank manager. Petitioner told private respondent, though, that he was
sexual or dating relationship, or with whom the woman has a common child. The 5 just using the woman because of their accounts with the bank. 10
law provides for protection orders from the barangay and the courts to prevent Petitioner’s infidelity spawned a series of fights that left private respondent
the commission of further acts of VAWC; and outlines the duties and physically and emotionally wounded. In one of their quarrels, petitioner grabbed
responsibilities of barangay officials, law enforcers, prosecutors and court private respondent on both arms and shook her with such force that caused
bruises and hematoma. At another time, petitioner hit private respondent respondent confronted him about the affair, petitioner forbade her to hold office at
forcefully on the lips that caused some bleeding. Petitioner sometimes turned his JBTC Building, Mandalagan, where all the businesses of the corporations are
ire on their daughter, JoAnn, who had seen the text messages he sent to his conducted, thereby depriving her of access to full information about said
paramour and whom he blamed for squealing on him. He beat JoAnn on the businesses. Until the filing of the petition a quo, petitioner has not given private
chest and slapped her many times. When private respondent decided to leave respondent an accounting of the businesses the value of which she had helped
petitioner, JoAnn begged her mother to stay for fear that if the latter leaves, raise to millions of pesos. 17
petitioner would beat her up. Even the small boys are aware of private
respondent’s sufferings. Their 6yearold son said that when he grows up, he Action of the RTC of Bacolod City
would beat up his father because of his cruelty to private respondent. 11
Finding reasonable ground to believe that an imminent danger of violence
All the emotional and psychological turmoil drove private respondent to the against the private respondent and her children exists or is about to recur, the
brink of despair. On December 17, 2005, while at home, she attempted suicide by RTC issued a TPO on March 24, 2006 effective for thirty (30) days, which is
18
cutting her wrist. She was found by her son bleeding on the floor. Petitioner quoted hereunder:
simply fled the house instead of taking her to the hospital. Private respondent Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
was hospitalized for about seven (7) days in which time petitioner never bothered a) Ordered to remove all his personal belongings from the conjugal dwelling or
to visit, nor apologized or showed pity on her. Since then, private respondent has family home within 24 hours from receipt of the Temporary Restraining Order and
been undergoing therapy almost every week and is taking antidepressant if he refuses, ordering that he be removed by police officers from the conjugal
medications. 12 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
When private respondent informed the management of Robinson’s Bank that
ownership”), this is to allow the Petitioner (private respondent herein) to enter the
she intends to file charges against the bank manager, petitioner got angry with conjugal dwelling without any danger from the Respondent.
her for jeopardizing the manager’s job. He then packed his things and told private After the Respondent leaves or is removed from the conjugal dwelling, or anytime
respondent that he was leaving her for good. He even told private respondent’s the Petitioner decides to return to the conjugal dwelling to remove things, the
mother, who lives with them in the family home, that private respondent should Petitioner shall be assisted by police officers when reentering the family home.
just accept his extramarital affair since he is not cohabiting with his paramour The Chief of Police shall also give the Petitioner police assistance on Sunday, 26
and has not sired a child with her. 13 March 2006 because of the danger that the Respondent will attempt to take her
Private respondent is determined to separate from petitioner but she is afraid 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
that he would take her children from her and deprive her of financial support.
household help and driver from a distance of 1,000 meters, and shall not enter the
Petitioner had previously warned her that if she goes on a legal battle with him, gate of the subdivision where the Petitioner may be temporarily residing.
she would not get a single centavo. 14
c) Not to harass, annoy, telephone, contact or otherwise communicate with the
Petitioner controls the family businesses involving mostly the construction of Petitioner, directly or indirectly, or through other persons, or contact directly or
deep wells. He is the President of three corporations — 326 Realty Holdings, Inc., indirectly her children, mother and household help, nor send gifts, cards, flowers,
Negros Rotadrill Corporation, and JBros Trading Corporation — of which he and letters and the like. Visitation rights to the children may be subject of a modified
private respondent are both stockholders. In contrast to the absolute control of TPO in the future.
petitioner over said corporations, private respondent merely draws a monthly 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
salary of P20,000.00 from one corporation only, the Negros Rotadrill Corporation.
the Provincial Director of the PNP to cancel all the Respondent’s firearm licenses.
Household expenses amounting to not less than P200,000.00 a month are paid for He should also be ordered to surrender any unlicensed firearms in his possession or
by private respondent through the use of credit cards, which, in turn, are paid by control.
the same corporation together with the bills for utilities. 15
e) To pay full financial support for the Petitioner and the children, including
On the other hand, petitioner receives a monthly salary of P60,000.00 from rental of a house for them, and educational and medical expenses.
Negros Rotadrill Corporation, and enjoys unlimited cash advances and other f) Not to dissipate the conjugal business.
benefits in hundreds of thousands of pesos from the corporations. After private 16
g) To render an accounting of all advances, benefits, bonuses and other cash he c) Ordering the Chief of the Women’s Desk of the Bacolod City Police
received from all the corporations from 1 January 2006 up to 31 March 2006, which Headquarters to remove Respondent from the conjugal dwelling within eight (8)
himself and as President of the corporations and his Comptroller, must submit to hours from receipt of the Temporary Protection Order by his counsel, and that he
the Court not later than 2 April 2006. Thereafter, an accounting of all these funds cannot return until 48 hours after the petitioners have left, so that the petitioner
shall be reported to the court by the Comptroller, copy furnished to the Petitioner, Rosalie and her representatives can remove things from the conjugal home and
every 15 days of the month, under pain of Indirect Contempt of Court. make an inventory of the household furniture, equipment and other things in the
h) To ensure compliance especially with the order granting support pendente lite, conjugal home, which shall be submitted to the Court.
and considering the financial resources of the Respondent and his threat that if the d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Petitioner sues she will not get a single centavo, the Respondent is ordered to put Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from
up a BOND TO KEEP THE PEACE in the amount of FIVE MILLION PESOS, in receipt of the Temporary Protection Order by his counsel, otherwise be declared in
two sufficient sureties. indirect contempt of Court;
On April 24, 2006, upon motion of private respondent, the trial court issued
19 e) That respondent surrender his two firearms and all unlicensed firearms to the
an amended TPO, effective for thirty (30) days, which included the following
20 Clerk of Court within 24 hours from receipt of the Temporary Protection Order by
additional provisions: his counsel;
i) The petitioners (private respondents herein) are given the continued use of the f) That respondent shall pay petitioner educational expenses of the children upon
Nissan Patrol and the Starex Van which they are using in Negros Occidental. presentation of proof of payment of such expenses. 23
j) The petitioners are given the continued use and occupation of the house in Claiming that petitioner continued to deprive them of financial support; failed to
Parañaque, the continued use of the Starex van in Metro Manila, whenever they go faithfully comply with the TPO; and committed new acts of harassment against
to Manila. her and their children, private respondent filed another application for the
24
k) Respondent is ordered to immediately post a bond to keep the peace, in two issuance of a TPO ex parte. She alleged inter alia that petitioner contrived a
sufficient sureties.
replevin suit against himself by JBros Trading, Inc., of which the latter was
l) To give monthly support to the petitioner provisionally fixed in the sum of One
purportedly no longer president, with the end in view of recovering the Nissan
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 Patrol and Starex Van used by private respondent and the children. A writ of
be finally resolved. replevin was served upon private respondent by a group of six or seven policemen
Two days later, or on April 26, 2006, petitioner filed an Opposition to the with long firearms that scared the two small boys, Jessie Anthone and Joseph
Urgent ExParte Motion for Renewal of the TPO seeking the denial of the
21 Eduard. 25
renewal of the TPO on the grounds that it did not (1) comply with the threeday While Joseph Eduard, then three years old, was driven to school, two men
notice rule, and (2) contain a notice of hearing. He further asked that the TPO be allegedly attempted to kidnap him, which incident traumatized the boy resulting
modified by (1) removing one vehicle used by private respondent and returning in his refusal to go back to school. On another occasion, petitioner allegedly
the same to its rightful owner, the JBros Trading Corporation, and (2) cancelling grabbed their daughter, JoAnn, by the arm and threatened her. The incident 26
or reducing the amount of the bond from P5,000,000.00 to a more manageable was reported to the police, and JoAnn subsequently filed a criminal complaint
level at P100,000.00.Subsequently, on May 23, 2006, petitioner moved for the 22 against her father for violation of R.A. 7610, also known as the “Special Protection
modification of the TPO to allow him visitation rights to his children. of Children Against Child Abuse, Exploitation and Discrimination Act.”
On May 24, 2006, the TPO was renewed and extended yet again, but subject Aside from the replevin suit, petitioner’s lawyers initiated the filing by the
only to the following modifications prayed for by private respondent: housemaids working at the conjugal home of a complaint for kidnapping and
a) That respondent (petitioner herein) return the clothes and other personal illegal detention against private respondent. This came about after private
belongings of Rosalie and her children to Judge Jesus Ramos, cocounsel for respondent, armed with a TPO, went to said home to get her and her children’s
Petitioner, within 24 hours from receipt of the Temporary Protection Order by his belongings. Finding some of her things inside a housemaid’s (Sheryl Jamola) bag
counsel, otherwise be declared in Indirect Contempt of Court; in the maids’ room, private respondent filed a case for qualified theft against
b) Respondent shall make an accounting or list of furniture and equipment in the
Jamola. 27
another, acts of violence against the offended party; aforequoted TPO for another ten (10) days, and gave petitioner a period of five (5)
2) Prohibited from harassing, annoying, telephoning, contacting or otherwise days within which to show cause why the TPO should not be renewed, extended,
communicating in any form with the offended party, either directly or indirectly; or modified. Upon petitioner’s manifestation, however, that he has not received a
30
3) Required to stay away, personally or through his friends, relatives, employees copy of private respondent’s motion to modify/renew the TPO, the trial court
or agents, from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. directed in its Order dated October 6, 2006 that petitioner be furnished a copy of
31
Garcia’s three brothers, her mother Primitiva Jaype, cook Novelita Caranzo, driver
said motion. Nonetheless, an Order dated a day earlier, October 5, had already
32
support in arrears from March 2006 to August 2006 the total amount of Proceedings before the CA
Php1,312,000.00;
During the pendency of Civil Case No. 06797, petitioner filed before the
6) Directed to deliver educational expenses for 20062007 the amount of
Court of Appeals (CA) a petition for prohibition (CAG.R. CEBSP. No. 01698),
34
Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 with prayer for injunction and temporary restraining order, challenging (1) the
and a Starex van with Plate No. FFD 991 and should the respondent fail to deliver constitutionality of R.A. 9262 for being violative of the due process and the equal
said vehicles, respondent is ordered to provide the petitioner another vehicle which protection clauses, and (2) the validity of the modified TPO issued in the civil case
is the one taken by J Bros Tading; for being “an unwanted product of an invalid law.”
On May 26, 2006, the appellate court issued a 60day Temporary Restraining
8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of
Order (TRO) against the enforcement of the TPO, the amended TPOs and other
35
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. orders pursuant thereto.
Garcia and respondent have an interest in, especially the conjugal home located in
No. 14, Pitimini St., Capitolville Subdivision, Bacolod City, and other properties Subsequently, however, on January 24, 2007, the appellate court
which are conjugal assets or those in which the conjugal partnership of gains of dismissed the petition for failure of petitioner to raise the constitutional issue in
36
Petitioner Rosalie J. Garcia and the respondent have an interest in and listed in his pleadings before the trial court in the civil case, which is clothed with
Annexes “I,” “I1,” and “I2,” including properties covered by TCT Nos. T186325 jurisdiction to resolve the same. Secondly, the challenge to the validity of R.A.
and T168814;
9262 through a petition for prohibition seeking to annul the protection orders
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be
issued by the trial court constituted a collateral attack on said law.
served a copy of this TEMPORARY PROTECTION ORDER and are ordered not to
allow the transfer, sale, encumbrance or disposition of these abovecited properties His motion for reconsideration of the foregoing Decision having been denied in
to any person, entity or corporation without the personal presence of petitioner the Resolution dated August 14, 2007, petitioner is now before us alleging that—
37
Rosalie J. Garcia, who shall affix her signature in the presence of the Register of The Issues
I. hear and decide cases of domestic violence against women and children. In 42
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY accordance with said law, the Supreme Court designated from among the
THAT THE ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST branches of the Regional Trial Courts at least one Family Court in each of several
OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK
key cities identified. To achieve harmony with the first mentioned law, Section 7
43
ON THE VALIDITY OF THE LAW.
II.
of R.A. 9262 now provides that Regional Trial Courts designated as Family
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO Courts shall have original and exclusive jurisdiction over cases of VAWC defined
CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF under the latter law, viz.:
THE EQUAL PROTECTION CLAUSE. SEC. 7. Venue.—The Regional Trial Court designated as a Family
III. Court shall have original and exclusive jurisdiction over cases of violence against
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT women and their children under this law. In the absence of such court in the place
R.A. 9262 RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION. 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
IV. complainant. (Emphasis supplied)
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES
Inspite of its designation as a family court, the RTC of Bacolod City remains
VIOLENCE TO THE POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC
possessed of authority as a court of general original jurisdiction to pass upon all
SOCIAL INSTITUTION.
V. kinds of cases whether civil, criminal, special proceedings, land registration,
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS guardianship, naturalization, admiralty or insolvency. It is settled that RTCs
44
INVALID AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE have jurisdiction to resolve the constitutionality of a statute, “this authority
45
DELEGATION OF JUDICIAL POWER TO THE BARANGAY OFFICIALS. 38
being embraced in the general definition of the judicial power to determine what
The Ruling of the Court are the valid and binding laws by the criterion of their conformity to the
Before delving into the arguments propounded by petitioner against the fundamental law.” The Constitution vests the power of judicial review or the
46
constitutionality of R.A. 9262, we shall first tackle the propriety of the dismissal power to declare the constitutionality or validity of a law, treaty, international or
by the appellate court of the petition for prohibition (CAG.R. CEBSP. No. 01698) executive agreement, presidential decree, order, instruction, ordinance, or
filed by petitioner. regulation not only in this Court, but in all RTCs. We said in J.M. Tuason and
47
As a general rule, the question of constitutionality must be raised at the Co., Inc. v. CA that, “[p]lainly the Constitution contemplates that the inferior
48
earliest opportunity so that if not raised in the pleadings, ordinarily it may not be courts should have jurisdiction in cases involving constitutionality of any treaty
raised in the trial, and if not raised in the trial court, it will not be considered on
or law, for it speaks of appellate review of final judgments of inferior courts in
appeal. Courts will not anticipate a question of constitutional law in advance of
39
cases where such constitutionality happens to be in issue.” Section 5, Article VIII
the necessity of deciding it. 40
of the 1987 Constitution reads in part as follows:
In defending his failure to attack the constitutionality of R.A. 9262 before the
SEC. 5. The Supreme Court shall have the following powers:
RTC of Bacolod City, petitioner argues that the Family Court has limited
x x x
authority and jurisdiction that is “inadequate to tackle the complex issue of
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as
constitutionality.” 41
the law or the Rules of Court may provide, final judgments and
We disagree.
orders of lower courts in:
Family Courts have authority
a. All cases in which the constitutionality or validity of any
and jurisdiction to consider the
treaty, international or executive agreement, law,
constitutionality of a statute.
presidential decree, proclamation, order, instruction,
At the outset, it must be stressed that Family Courts are special courts, of the
ordinance, or regulation is in question.
same level as Regional Trial Courts. Under R.A. 8369, otherwise known as the
x x x x
“Family Courts Act of 1997,” family courts have exclusive original jurisdiction to
Thus, contrary to the posturing of petitioner, the issue of constitutionality of evidence. Be that as it may, Section 25 of A.M. No. 041011SC nonetheless
54
R.A. 9262 could have been raised at the earliest opportunity in his Opposition to allows the conduct of a hearing to determine legal issues, among others, viz.:
the petition for protection order before the RTC of Bacolod City, which had SEC. 25. Order for further hearing.—In case the court determines the need for
jurisdiction to determine the same, subject to the review of this Court. further hearing, it may issue an order containing the following:
Section 20 of A.M. No. 041011SC, the Rule on Violence Against Women and (a) Facts undisputed and admitted;
Their Children, lays down a new kind of procedure requiring the respondent to (b) Factual and legal issues to be resolved;
file an opposition to the petition and not an answer. Thus: 49 (c) Evidence, including objects and documents that have been marked and will be
presented;
SEC. 20. Opposition to petition.—(a) The respondent may file an opposition to the
(d) Names of witnesses who will be ordered to present their direct testimonies in
petition which he himself shall verify. It must be accompanied by the affidavits of
the form of affidavits; and
witnesses and shall show cause why a temporary or permanent protection order
(e) Schedule of the presentation of evidence by both parties which shall be done in
should not be issued.
one day, to the extent possible, within the 30day period of the effectivity of the
(b) Respondent shall not include in the opposition any counterclaim, cross
temporary protection order issued. (Emphasis supplied)
claim or thirdparty complaint, but any cause of action which could be the
To obviate potential dangers that may arise concomitant to the conduct of a
subject thereof may be litigated in a separate civil action. (Emphasis supplied)
hearing when necessary, Section 26 (b) of A.M. No. 041011SC provides that if a
temporary protection order issued is due to expire, the trial court may extend or
We cannot subscribe to the theory espoused by petitioner that, since a
renew the said order for a period of thirty (30) days each time until final
counterclaim, crossclaim and thirdparty complaint are to be excluded from the
judgment is rendered. It may likewise modify the extended or renewed temporary
opposition, the issue of constitutionality cannot likewise be raised therein.
protection order as may be necessary to meet the needs of the parties. With the
A counterclaim is defined as any claim for money or other relief which a
private respondent given ample protection, petitioner could proceed to litigate the
defending party may have against an opposing party. A crossclaim, on the other
50
constitutional issues, without necessarily running afoul of the very purpose for
hand, is any claim by one party against a coparty arising out of the transaction
the adoption of the rules on summary procedure.
or occurrence that is the subject matter either of the original action or of a
In view of all the foregoing, the appellate court correctly dismissed the
counterclaim therein. Finally, a thirdparty complaint is a claim that a
51
petition for prohibition with prayer for injunction and temporary restraining
defending party may, with leave of court, file against a person not a party to the order (CAG.R. CEB SP. No. 01698). Petitioner may have proceeded upon an
action for contribution, indemnity, subrogation or any other relief, in respect of honest belief that if he finds succor in a superior court, he could be granted an
his opponent’s claim. As pointed out by Justice Teresita J. LeonardoDe Castro,
52
valid cause for the nonissuance of a protection order.That the proceedings in
TPO, which is valid only for thirty (30) days at a time, should not be
56
Civil Case No. 06797 are summary in nature should not have deterred petitioner
enjoined.The mere fact that a statute is alleged to be unconstitutional or invalid,
from raising the same in his Opposition. The question relative to the
does not of itself entitle a litigant to have the same enjoined. In Younger v.
57
constitutionality of a statute is one of law which does not need to be supported by
Harris, Jr., the Supreme Court of the United States declared, thus:
58
Federal injunctions against state criminal statutes, either in their entirety or denied protection under the same measure. We quote pertinent portions of the
with respect to their separate and distinct prohibitions, are not to be granted as a deliberations:
matter of course, even if such statutes are unconstitutional. No citizen or member of Wednesday, December 10, 2003
the community is immune from prosecution, in good faith, for his alleged criminal
Senator Pangilinan. I just wanted to place this on record, Mr. President. Some
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
women’s groups have expressed concerns and relayed these concerns to me
extraordinary powers only to prevent irreparable injury to the plaintiff who seeks that if we are to include domestic violence apart from against women as
its aid. (Citations omitted) well as other members of the household, including children or the
The sole objective of injunctions is to preserve the status quo until the trial husband, they fear that this would weaken the efforts to address domestic
court hears fully the merits of the case. It bears stressing, however, that 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
protection orders are granted ex parte so as to protect women and their children
to place that on record. How does the good Senator respond to this kind of
from acts of violence. To issue an injunction against such orders will defeat the
observation?
very purpose of the law against VAWC.
Senator Estrada. Yes, Mr. President, there is this group of women who call
Notwithstanding all these procedural flaws, we shall not shirk from our
themselves “WIIR” Women in Intimate Relationship. They do not want to
obligation to determine novel issues, or issues of first impression, with far
include men in this domestic violence. But plenty of men are also being
reaching implications. We have, time and again, discharged our solemn duty as
abused by women. I am playing safe so I placed here members of the
final arbiter of constitutional issues, and with more reason now, in view of private
family, prescribing penalties therefor and providing protective measures
respondent’s plea in her Comment to the instant Petition that we should put the
59
for victims. This includes the men, children, livein, commonlaw wives,
challenge to the constitutionality of R.A. 9262 to rest. And so we shall.
and those related with the family.65
Intent of Congress in
x x x x
enacting R.A. 9262.
Wednesday, January 14, 2004
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize
x x x x
spousal and child abuse, which could very well be committed by either the
The President Pro Tempore. x x x
husband or the wife,
_______________
Also, may the Chair remind the group that there was the discussion
58 27 L.Ed.2d 669 (1971), cited in The Executive Secretary v. Court of Appeals, 473 Phil. 27, 5657; 429 whether to limit this to women and not to families which was the issue of
SCRA 81, 102 (2004). the AWIR group. The understanding that I have is that we would be
59 Rollo, pp. 214240, 237.
having a broader scope rather than just women, if I remember correctly,
404
Madam sponsor.
404 SUPREME COURT REPORTS ANNOTATED Senator Estrada. Yes, Mr. President.
Garcia vs. Drilon As a matter of fact, that was brought up by Senator Pangilinan during the
gender alone is not enough basis to deprive the husband/father of the remedies interpellation period.
under the law. 60
I think Senator Sotto has something to say to that.
A perusal of the deliberations of Congress on Senate Bill No. 2723, which 61
Senator Legarda. Mr. President, the reason I am in support of the measure.
became R.A. 9262, reveals that while the sponsor, Senator Luisa Pimentel Do not get me wrong. However, I believe that there is a need to protect
Ejercito (better known as Senator Loi Estrada), had originally proposed what she women’s rights especially in the domestic environment.
called a “synthesized measure” — an amalgamation of two measures, namely,
62
As I said earlier, there are nameless, countless, voiceless women who have
the “AntiDomestic Violence Act” and the “AntiAbuse of Women in Intimate not had the opportunity to file a case against their spouses, their livein
Relationships Act” — providing protection to “all family members, leaving no one
63
partners after years, if not decade, of battery and abuse. If we broaden the scope
in isolation” but at the same time giving special attention to women as the “usual to include even the men, assuming they can at all be abused by the women or
victims” of violence and abuse, nonetheless, it was eventually agreed that men be
64
their spouses, then it would not equalize the already difficult situation for women, consultations/meetings with various NGOs, experts, sports groups and
Mr. President. other affected sectors, Mr. President.
I think that the sponsor, based on our earlier conversations, concurs with Senator Sotto. Mr. President.
this position. I am sure that the men in this Chamber who love their The President Pro Tempore. Yes, with the permission of the other senators.
women in their lives so dearly will agree with this representation. Senator Sotto. Yes, with the permission of the two ladies on the Floor.
Whether we like it or not, it is an unequal world. Whether we like it or not, The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
no matter how empowered the women are, we are not given equal Senator Sotto. I presume that the effect of the proposed amendment of
opportunities especially in the domestic environment where the macho Senator Legarda would be removing the “men and children” in this
Filipino man would always feel that he is stronger, more superior to the particular bill and focus specifically on women alone. That will be the net
Filipino woman. effect of that proposed amendment. Hearing the rationale mentioned by
x x x x the distinguished sponsor, Sen. Luisa “Loi” Ejercito Estrada, I am not sure
The President Pro Tempore. What does the sponsor say? now whether she is inclined to accept the proposed amendment of Senator
Senator Estrada. Mr. President, before accepting this, the committee came up Legarda.
with this bill because the family members have been included in this I am willing to wait whether she is accepting this or not because if she is
proposed measure since the other members of the family other than going to accept this, I will propose an amendment to the amendment
women are also possible victims of violence. While women are most likely rather than object to the amendment, Mr. President.
the intended victims, one reason incidentally why the measure focuses on
women, the fact remains that in some relatively few cases, men also stand xxxx
to be victimized and that children are almost always the helpless victims Senator Estrada. The amendment is accepted, Mr. President.
of violence. I am worried that there may not be enough protection The President Pro Tempore. Is there any objection?
extended to other family members particularly children who are excluded. xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
Although Republic Act No. 7610, for instance, more or less, addresses the
The President Pro Tempore. Before we act on the amendment?
special needs of abused children. The same law is inadequate. Protection Senator Sotto. Yes, Mr. President.
orders for one are not available in said law. The President Pro Tempore. Yes, please proceed.
I am aware that some groups are apprehensive about granting the same Senator Sotto. Mr. President, I am inclined to believe the rationale used by the
protection to men, fearing that they may use this law to justify their distinguished proponent of the amendment. As a matter of fact, I tend to agree. Kung
abusive may maaabuso, mas malamang iyong babae kaysa sa lalake. At saka iyong mga
behavior against women. However, we should also recognize that there are lalake, puwede na talagang magulpi iyan. Okey lang iyan. But I cannot agree that we
established procedures and standards in our courts which give credence to remove the children from this particular measure.
So, if I may propose an amendment—
evidentiary support and cannot just arbitrarily and whimsically entertain
The President Pro Tempore. To the amendment.
baseless complaints. Senator Sotto.—more than the women, the children are very much abused. As a matter of
Mr. President, this measure is intended to harmonize family relations and fact, it is not limited to minors. The abuse is not limited to seven, six, 5-year-old
to protect the family as the basic social institution. Though I recognize the children. I have seen 14, 15-year-old children being abused by their fathers, even by
unequal power relations between men and women in our society, I believe their mothers. And it breaks my heart to find out about these things.
we have an obligation to uphold inherent rights and dignity of both Because of the inadequate existing law on abuse of children, this
husband and wife and their immediate family members, particularly particular measure will update that. It will enhance and hopefully prevent
children. the abuse of children and not only women.
While I prefer to focus mainly on women, I was compelled to include other SOTTOLEGARDA AMENDMENTS
family members as a critical input arrived at after a series of 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. of classification is that of inequality, so that it goes without saying that the mere
The President Pro Tempore. Effectively then, it will be women AND fact of inequality in no manner determines the matter of constitutionality. All that
CHILDREN. 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
Senator Sotto. Yes, Mr. President.
differences; that it must be germane to the purpose of the law; that it must not
Senator Estrada. It is accepted, Mr. President.
be limited to existing conditions only; and that it must apply equally to each
The President Pro Tempore. Is there any objection? [Silence] There member of the class. This Court has held that the standard is satisfied if the
being none, the amendment, as amended, is approved.66 classification or distinction is based on a reasonable foundation or rational basis
It is settled that courts are not concerned with the wisdom, justice, policy, or and is not palpably arbitrary. (Emphasis supplied)
expediency of a statute. Hence, we dare not venture into the real motivations and
67
Measured against the foregoing jurisprudential yardstick, we find that R.A.
wisdom of the members of Congress in limiting the protection against violence 9262 is based on a valid classification as shall hereinafter be discussed and, as
and abuse under R.A. 9262 to women and children only. No proper challenge on such, did not violate the equal protection clause by favoring women over men as
said grounds may be entertained in this proceeding. Congress has made its choice victims of violence and abuse to whom the State extends its protection.
and it is not our prerogative to supplant this judgment. The choice may be I. R.A. 9262 rests on substantial distinctions.
perceived as erroneous but even then, the remedy against it is to seek its The unequal power relationship between women and men; the fact that
amendment or repeal by the legislative. By the principle of separation of powers, women are more likely than men to be victims of violence; and the widespread
it is the legislative that determines the necessity, adequacy, wisdom and gender bias and prejudice against women all make for real
expediency of any law. We only step in when there is a violation of the
68
differences justifying the classification under the law. As Justice McIntyre
Constitution. However, none was sufficiently shown in this case.
succinctly states, “the accommodation of differences ... is the essence of true
R.A. 9262 does not violate the equality.” 70
and traditions dictate people to think men are the leaders, pursuers, providers,
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
and take on dominant roles in society while women are nurturers, men’s
requirement, in order to avoid the constitutional prohibition against inequality, that companions and supporters, and take on subordinate roles in society. This
every man, woman and child should be affected alike by a statute. Equality of perception leads to men gaining more power over women. With power comes the
operation of statutes does not mean indiscriminate operation on persons merely as need to control to retain that power. And VAW is a form of men’s expression of
such, but on persons according to the circumstances surrounding them. It controlling women to retain power. 71
guarantees equality, not identity of rights. The Constitution does not require that The United Nations, which has long recognized VAW as a human rights issue,
things which are different in fact be treated in law as though they were the same. passed its Resolution 48/104 on the Declaration on Elimination of Violence
The equal protection clause does not forbid discrimination as to things that are
Against Women on December 20, 1993 stating that “violence against women is a
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.
manifestation of historically unequal power relations between men and
The equal protection of the laws clause of the Constitution allows classification. women, which have led to domination over and discrimination against women by
Classification in law, as in the other departments of knowledge or practice, is the men and to the prevention of the full advancement of women, and that violence
grouping of things in speculation or practice because they agree with one another in against women is one of the crucial social mechanisms by which women are forced
certain particulars. A law is not invalid because of simple inequality. The very idea into subordinate positions, compared with men.” 72
Then Chief Justice Reynato S. Puno traced the historical and social context of public concern. No less than the United States Supreme Court, in 1992
genderbased violence and developments in advocacies to eradicate VAW, in his case Planned Parenthood v. Casey, noted:
remarks delivered during the Joint Launching of R.A. 9262 and its Implementing In an average 12month period in this country, approximately two million
Rules last October 27, 2004, the pertinent portions of which are quoted 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
hereunder:
assaulted their wives during the past year. The [American Medical
History reveals that most societies sanctioned the use of violence against
Association] views these figures as “marked underestimates,” because the
women. The patriarch of a family was accorded the right to use force on members of
nature of these incidents discourages women from reporting them, and
the family under his control. I quote the early studies:
because surveys typically exclude the very poor, those who do not speak
Traditions subordinating women have a long history rooted in patriarchy—the
English well, and women who are homeless or in institutions or hospitals
institutional rule of men. Women were seen in virtually all societies to be naturally
when the survey is conducted. According to the AMA, “researchers on
inferior both physically and intellectually. In ancient Western societies, women
family violence agree that the true incidence of partner violence is
whether slave, concubine or wife, were under the authority of men. In law, they
were treated as property. probably double the above estimates; or four million severely assaulted
women per year.”
The Roman concept of patria potestas allowed the husband to beat, or even kill,
Studies on prevalence suggest that from onefifth to onethird of all women
his wife if she endangered his property right over her. Judaism, Christianity and
will be physically assaulted by a partner or expartner during their
other religions oriented towards the patriarchal family strengthened the male
lifetime... Thus on an average day in the United States, nearly 11,000
dominated structure of society.
women are severely assaulted by their male partners. Many of these
English feudal law reinforced the tradition of male control over women. Even
incidents involve sexual assault... In families where wife beating takes
the eminent Blackstone has been quoted in his commentaries as saying husband
place, moreover, child abuse is often present as well.
and wife were one and that one was the husband. However, in the late 1500s and
Other studies fill in the rest of this troubling picture. Physical violence is
through the entire 1600s, English common law began to limit the right of husbands
only the most visible form of abuse. Psychological abuse, particularly forced
to chastise their wives. Thus, common law developed the rule of thumb, which
social and economic isolation of women, is also common.
allowed husbands to beat their wives with a rod or stick no thicker than their
Many victims of domestic violence remain with their abusers, perhaps
thumb.
because they perceive no superior alternative...Many abused women who
In the later part of the 19th century, legal recognition of these rights to chastise
find temporary refuge in shelters return to their husbands, in large part
wives or inflict corporeal punishment ceased. Even then, the preservation of the
because they have no other source of income... Returning to one’s abuser
family was given more importance than preventing violence to women.
can be dangerous. Recent Federal Bureau of Investigation statistics disclose
The metamorphosis of the law on violence in the United States followed that of
that 8.8 percent of all homicide victims in the United States are killed by
the English common law. In 1871, the Supreme Court of Alabama became the first
their spouses...Thirty percent of female homicide victims are killed by their
appellate court to strike down the common law right of a husband to beat his wife:
male partners.
The privilege, ancient though it may be, to beat one’s wife with a stick, to
Finally in 1994, the United States Congress enacted the Violence Against
pull her hair, choke her, spit in her face or kick her about the floor, or to
Women Act.
inflict upon her like indignities, is not now acknowledged by our law... In
In the International front, the women’s struggle for equality was no less
person, the wife is entitled to the same protection of the law that the
successful. The United States Charter and the Universal Declaration of Human
husband can invoke for himself.
Rights affirmed the equality of all human beings. In 1979, the UN General
As time marched on, the women’s advocacy movement became more organized.
Assembly adopted the landmark Convention on the Elimination of all Forms of
The temperance leagues initiated it. These leagues had a simple focus. They
Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also
considered the evils of alcoholism as the root cause of wife abuse. Hence, they
adopted the Declaration on the Elimination of Violence Against Women. World
demonstrated and picketed saloons, bars and their husbands’ other watering holes.
conferences on the role and rights of women have been regularly held in Mexico
Soon, however, their crusade was joined by suffragette movements, expanding the
City, Copenhagen, Nairobi and Beijing. The UN itself established a Commission on
liberation movement’s agenda. They fought for women’s right to vote, to own
the Status of Women.
property, and more. Since then, the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the domestic violence The Philippines has been in cadence with the half — and full — steps of
to the public gaze. They succeeded in transforming the issue into an important 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
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*
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 RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021
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
Threats 319 223 199 182 220 208 374 213
Violence Against Women and Their Children, Providing for Protective Measures for
Victims, Prescribing Penalties therefor and for other Purposes.” (Citations omitted)
Seduction 62 19 29 30 19 19 25 15
B. Women are the “usual” and “most likely” victims of violence.
Concubinage 121 102 93 109 109 99 158 128
At the time of the presentation of Senate Bill No. 2723, official statistics on
violence against women and children show that — RA 9208 17 11 16 24 34 152 190 62
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
Abduction / Kidnapping 29 16 34 23 28 18 25 22
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 Unjust Vexation 90 50 59 59 83 703 183 155
semester of 2003. Female violence comprised more than 90% of all forms of abuse
*2011 report covers only from January to August
and violence and more than 90% of these reported cases were committed by the Source: Philippine National Police – Women and Children Protection Center (WCPC)
women’s intimate partners such as their husbands and livein partners. 73
On the other hand, no reliable estimates may be obtained on domestic abuse and
Recently, the Philippine Commission on Women presented comparative violence against men in the Philippines because incidents thereof are relatively
statistics on violence against women across an eightyear period from 2004 to low and, perhaps, because many men will not even attempt to report the
August of 2011 with violations under R.A. 9262 ranking first among the different situation. In the United Kingdom, 32% of women who had ever experienced
VAW categories since its implementation in 2004, thus: 74
domestic violence did so four or five (or more) times, compared with 11% of the
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*
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
Reported Cases 2004 2005 2006 2007 2008 2009 2010 2011 violence. Statistics in Canada show that spousal violence by a woman against a
75
man is less likely to cause injury than the other way around (18 percent versus 44
Rape 997 927 659 837 811 770 1,042 832 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
Incestuous Rape 38 46 26 22 28 27 19 23 experience sexual assault. In fact, many cases of physical violence by a woman
against a spouse are in selfdefense or the result of many years of physical or
Attempted Rape 194 148 185 147 204 167 268 201 emotional abuse. 76
While there are, indeed, relatively few cases of violence and abuse perpetrated
Acts of Lasci-viousness 580 536 382 358 445 485 745 625
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
Physical Injuries 3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
animaldrawn vehicles to pick up, gather and deposit in receptacles the manure
emitted or discharged by their vehicledrawing animals in any public highways,
Sexual Harassment 53 37 38 46 18 54 83 63
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 vehicledrawing animals and not to those animals, although not The enactment of R.A. 9262 aims to address the discrimination brought about by
utilized, but similarly pass through the same streets. biases and prejudices against women. As emphasized by the CEDAW Committee
The ordinance was upheld as a valid classification for the reason that, while there on the Elimination of Discrimination against Women, addressing or correcting
may be nonvehicledrawing animals that also traverse the city roads, “but their discrimination through specific measures focused on women
number must be negligible and their appearance therein merely does not discriminate against men. Petitioner’s contention, therefore, that R.A.
82 83
sentencing, crimes against women are often treated differently and less seriously
“(t)he paradigm shift changing the character of domestic violence from a private
than other crimes. This was argued by then United States Senator Joseph R.
affair to a public offense will require the development of a distinct mindset on the
Biden, Jr., now Vice President, chief sponsor of the Violence Against Women Act
part of the police, the prosecution and the judges.” 85
(VAWA), in defending the civil rights remedy as a valid exercise of the U.S.
II. The classification is germane to the purpose of the law.
Congress’ authority under the Commerce and Equal Protection Clauses. He
stressed that the widespread gender bias in the U.S. has institutionalized 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
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 out in its Declaration of Policy, as follows:
system. 79 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
Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill
State also recognizes the need to protect the family and its members particularly
No. 2723 that “(w)henever violence occurs in the family, the police treat it as a women and children, from violence and threats to their personal safety and
private matter and advise the parties to settle the conflict themselves. Once the security.
complainant brings the case to the prosecutor, the latter is hesitant to file the Towards this end, the State shall exert efforts to address violence committed
complaint for fear that it might later be withdrawn. This lack of response or against women and children in keeping with the fundamental freedoms guaranteed
reluctance to be involved by the police and prosecution reinforces the escalating, under the Constitution and the provisions of the Universal Declaration of Human
recurring and often serious nature of domestic violence.” 80 Rights, the Convention on the Elimination of All Forms of Discrimination Against
Sadly, our own courts, as well, have exhibited prejudices and biases against Women, Convention on the Rights of the Child and other international human
rights instruments of which the Philippines is a party.
our women.
In 1979, the U.N. General Assembly adopted the CEDAW, which the
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J.
Philippines ratified on August 5, 1981. Subsequently, the Optional Protocol to the
Amila for Conduct Unbecoming of a Judge. He used derogatory and irreverent
CEDAW was also ratified by the Philippines on October 6, 2003. This Convention 86
language in reference to the complainant in a petition for TPO and PPO under
mandates that State parties shall accord to women equality with men before the
R.A. 9262, calling her as “only a livein partner” and presenting her as an
law and shall take all appropriate measures to eliminate discrimination against
87
“opportunist” and a “mistress” in an “illegitimate relationship.” Judge Amila even
women in all matters relating to marriage and family relations on the basis of
called her a “prostitute,” and accused her of being motivated by “insatiable greed”
equality of men and women. The Philippines likewise ratified the Convention on
88
and of absconding with the contested property. Such remarks betrayed Judge
81
the Rights of the Child and its two protocols. It is, thus, bound by said
89
Amila’s prejudices and lack of gender sensitivity.
Conventions and their respective protocols.
III. The classification is not limited to existing conditions only, and except in cases wherein the other spouse/partner objects on valid, serious
apply equally to all members and moral grounds as defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right
Moreover, the application of R.A. 9262 is not limited to the existing conditions
to the use and enjoyment of the conjugal, community or property owned in
when it was promulgated, but to future conditions as well, for as long as the common;
safety and security of women and their children are threatened by violence and 3. destroying household property;
abuse. 4. controlling the victims’ own money or properties or solely controlling
R.A. 9262 applies equally to all women and children who suffer violence and the conjugal money or properties.
abuse. Section 3 thereof defines VAWC as: It should be stressed that the acts enumerated in the aforequoted provision
x x x any act or a series of acts committed by any person against a woman who is are attributable to research that has exposed the dimensions and dynamics of
his wife, former wife, or against a woman with whom the person has or had a sexual battery. The acts described here are also found in the U.N. Declaration on the
or dating relationship, or with whom he has a common child, or against her child Elimination of Violence Against Women. Hence, the argument advanced by
90
whether legitimate or illegitimate, within or without the family abode, which result petitioner that the definition of what constitutes abuse removes the difference
in or is likely to result in physical, sexual, psychological harm or suffering, or
between violent action and simple marital tiffs is tenuous.
economic abuse including threats of such acts, battery, assault, coercion, harass
ment or arbitrary deprivation of liberty. It includes, but is not limited to, the There is nothing in the definition of VAWC that is vague and ambiguous that will
following acts: confuse petitioner in his defense. The acts enumerated above are easily
A. “Physical Violence” refers to acts that include bodily or physical harm; understood and provide adequate contrast between the innocent and the
B. “Sexual violence” refers to an act which is sexual in nature, committed against a prohibited acts. They are worded with sufficient definiteness that persons of
woman or her child. It includes, but is not limited to: ordinary intelligence can understand what conduct is prohibited, and need not
a) rape, sexual harassment, acts of lasciviousness, treating a woman or guess at its meaning nor differ in its application. Yet, petitioner insists that
91 92
her child as a sex object, making demeaning and sexually suggestive phrases like “depriving or threatening to deprive the woman or her child of a legal
remarks, physically attacking the sexual parts of the victim’s body, forcing right,” “solely controlling the conjugal or common money or properties,” “marital
her/him to watch obscene publications and indecent shows or forcing the infidelity,” and “causing mental or emotional anguish” are so vague that they
woman or her child to do indecent acts and/or make films thereof, forcing
make every quarrel a case of spousal abuse. However, we have stressed that the
the wife and mistress/lover to live in the conjugal home or sleep together in
the same room with the abuser;
“vagueness” doctrine merely requires a reasonable degree of certainty for the
b) acts causing or attempting to cause the victim to engage in any sexual statute to be upheld — not absolute precision or mathematical exactitude, as
activity by force, threat of force, physical or other harm or threat of physical petitioner seems to suggest. Flexibility, rather than meticulous specificity, is
or other harm or coercion; permissible as long as the metes and bounds of the statute are clearly delineated.
c) Prostituting the woman or child. An act will not be held invalid merely because it might have been more explicit in
C. “Psychological violence” refers to acts or omissions causing or likely to cause its wordings or detailed in its provisions. 93
mental or emotional suffering of the victim such as but not limited to intimidation, There is likewise no merit to the contention that R.A. 9262 singles out the
harassment, stalking, damage to property, public ridicule or humiliation, repeated husband or father as the culprit. As defined above, VAWC may likewise be
verbal abuse and marital infidelity. It includes causing or allowing the victim to
committed “against a woman with whom the person has or had a sexual or dating
witness the physical, sexual or psychological abuse of a member of the family to
relationship.” Clearly, the use of the genderneutral word “person” who has or had
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 a sexual or dating relationship with the woman encompasses even lesbian
and/or visitation of common children. relationships. Moreover, while the law provides that the offender be related or
D. “Economic abuse” refers to acts that make or attempt to make a woman connected to the victim by marriage, former marriage, or a sexual or dating
financially dependent which includes, but is not limited to the following: relationship, it does not preclude the application of the principle of
1. withdrawal of financial support or preventing the victim from conspiracy under the Revised Penal Code (RPC). Thus, in the case of GoTan v.
engaging in any legitimate profes ion, occupation, business or activity, Spouses Tan, the parentsinlaw of Sharica Mari L. GoTan, the victim, were
94
held to be proper respondents in the case filed by the latter upon the allegation The grant of a TPO ex parte cannot, therefore, be challenged as violative of the
that they and their son (GoTan’s husband) had community of design and purpose right to due process. Just like a writ of preliminary attachment which is issued
in tormenting her by giving her insufficient financial support; harassing and without notice and hearing because the time in which the hearing will take could
pressuring her to be ejected from the family home; and in repeatedly abusing her be enough to enable the defendant to abscond or dispose of his property, in the 102
verbally, emotionally, mentally and physically. 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
R.A. 9262 is not violative of the due required before such acts could be prevented. It is a constitutional commonplace
process clause of the Constitution. that the ordinary requirements of procedural due process must yield to the
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of necessities of protecting vital public interests, among which is protection of
103
POs, of all protections afforded by the due process clause of the Constitution. Says women and children from violence and threats to their personal safety and
he: “On the basis of unsubstantiated allegations, and practically no opportunity to security.
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 It should be pointed out that when the TPO is issued ex parte, the court shall
of what happened.” 95
likewise order that notice be immediately given to the respondent directing him to
A protection order is an order issued to prevent further acts of violence file an opposition within five (5) days from service. Moreover, the court shall order
against women and their children, their family or household members, and to that notice, copies of the petition and TPO be served immediately on the
grant other necessary reliefs. Its purpose is to safeguard the offended parties from respondent by the court sheriffs. The TPOs are initially effective for thirty (30)
further harm, minimize any disruption in their daily life and facilitate the days from service on the respondent. 104
opportunity and ability to regain control of their life. “The scope of reliefs in
96
Where no TPO is issued ex parte, the court will nonetheless order the
protection orders is broadened to ensure that the victim or offended party is immediate issuance and service of the notice upon the respondent requiring him
afforded all the remedies necessary to curtail access by a perpetrator to the to file an opposition to the petition within five (5) days from service. The date of
victim. This serves to safeguard the victim from greater risk of violence; to accord the preliminary conference and hearing on the merits shall likewise be indicated
the victim and any designated family or household member safety in the family on the notice. 105
residence, and to prevent the perpetrator from committing acts that jeopardize The opposition to the petition which the respondent himself shall verify, must
the employment and support of the victim. It also enables the court to award be accompanied by the affidavits of witnesses and shall show cause why a
temporary custody of minor children to protect the children from violence, to temporary or permanent protection order should not be issued. 106
prevent their abduction by the perpetrator and to ensure their financial It is clear from the foregoing rules that the respondent of a petition for protection
support.” 97
order should be apprised of the charges imputed to him and afforded an
The rules require that petitions for protection order be in writing, signed and opportunity to present his side. Thus, the fear of petitioner of being “stripped of
verified by the petitioner thereby under taking full responsibility, criminal or
98
family, property, guns, money, children, job, future employment and reputation,
civil, for every allegation therein. Since “time is of the essence in cases of VAWC if all in a matter of seconds, without an inkling of what happened” is a mere product
further violence is to be prevented,” the court is authorized to issue ex parte a
99
of an overactive imagination. The essence of due process is to be found in the
TPO after raffle but before notice and hearing when the life, limb or property of reasonable opportunity to be heard and submit any evidence one may have in
the victim is in jeopardy and there is reasonable ground to believe that the order support of one’s defense. “To be heard” does not only mean verbal arguments in
is necessary to protect the victim from the immediate and imminent danger of court; one may be heard also through pleadings. Where opportunity to be heard,
VAWC or to prevent such violence, which is about to recur. 100
either through oral arguments or pleadings, is accorded, there is no denial of
There need not be any fear that the judge may have no rational basis to issue procedural due process. 107
an ex parte order. The victim is required not only to verify the allegations in the It should be recalled that petitioner filed on April 26, 2006 an Opposition to
petition, but also to attach her witnesses’ affidavits to the petition. 101
the Urgent ExParte 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 Under Section 23(c) of A.M. No. 041011SC, the court shall not refer the case
motion for the modification of the TPO to allow him visitation rights to his or any issue thereof to a mediator. The reason behind this provision is well
children. Still, the trial court in its Order dated September 26, 2006, gave him explained by the Commentary on Section 311 of the Model Code on Domestic and
five days (5) within which to show cause why the TPO should not be renewed or Family Violence as follows: 110
extended. Yet, he chose not to file the required comment arguing that it would This section prohibits a court from ordering or referring parties to mediation in a
just be an “exercise in futility,” conveniently forgetting that the renewal of the proceeding for an order for pro tection. Mediation is a process by which parties in
questioned TPO was only for a limited period (30 days) each time, and that he equivalent bargaining positions voluntarily reach consensual agreement about the
issue at hand. Violence, however, is not a subject for compromise. A process
could prevent the continued renewal of said order if he can show sufficient cause
which involves parties mediating the issue of violence implies that the victim is
therefor. Having failed to do so, petitioner may not now be heard to complain that
somehow at fault. In addition, mediation of issues in a proceeding for an order of
he was denied due process of law. protection is problematic because the petitioner is frequently unable to participate
Petitioner next laments that the removal and exclusion of the respondent in equally with the person against whom the protection order has been sought.
the VAWC case from the residence of the victim, regardless of ownership of the (Emphasis supplied)
residence, is virtually a “blank check” issued to the wife to claim any property as There is no undue delegation of
her conjugal home. 108
judicial power to barangay officials.
The wording of the pertinent rule, however, does not by any stretch of the Petitioner contends that protection orders involve the exercise of judicial
imagination suggest that this is so. It states: power which, under the Constitution, is placed upon the “Supreme Court and
SEC. 11. Reliefs available to the offended party.—The protection order shall such other lower courts as may be established by law” and, thus, protests the
include any, some or all of the following reliefs: delegation of power to barangay officials to issue protection orders. The 111
x x x x
pertinent provision reads, as follows:
(c) Removing and excluding the respondent from the residence of the offended
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How.—
party, regardless of owner ship of the residence, either temporarily for the purpose
Barangay Protection Orders (BPOs) refer to the protection order issued by
of protecting the offended party, or permanently where no property rights are
violated. If the respondent must remove personal effects from the residence, the the Punong Barangay ordering the perpetrator to desist from committing acts
court shall direct a law enforcement agent to accompany the respondent to the under Section 5 (a) and (b) of this Act. A Punong Barangay who receives
residence, remain there until the respondent has gathered his things and escort him applications for a BPO shall issue the protection order to the applicant on the date
from the residence; of filing after ex parte determination of the basis of the application. If the Punong
x x x x Barangay is unavailable to act on the application for a BPO, the application shall be
Indubitably, petitioner may be removed and excluded from private acted upon by any available Barangay Kagawad. If the BPO is issued by
respondent’s residence, regardless of ownership, only temporarily for the purpose a Barangay Kagawad, the order must be accompanied by an attestation by the
of protecting the latter. Such removal and exclusion may be permanent Barangay Kagawad that the Punong Barangay was unavailable at the time of the
only where no property rights are violated. How then can the private respondent issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after
just claim any property and appropriate it for herself, as petitioner seems to the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall
suggest? personally serve a copy of the same on the respondent, or direct any barangay
official to effect its personal service.
The nonreferral of a VAWC case
The parties may be accompanied by a nonlawyer advocate in any proceeding before
to a mediator is justified.
the Punong Barangay.
Petitioner argues that “by criminalizing runofthemill arguments, instead of
encouraging mediation and counseling, the law has done violence to the avowed
Judicial power includes the duty of the courts of justice to settle actual
policy of the State to “protect and strengthen the family as a basic autonomous
controversies involving rights which are legally demandable and enforceable, and
social institution.” 109
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. On the other hand, executive power “is generally defined as the
112
conscious of the borders and edges of its plenary powers, and passed laws with
power to enforce and administer the laws. It is the power of carrying the laws into full knowledge of the facts and for the purpose of promoting what is right and
practical operation and enforcing their due observance.” 113
advancing the welfare of the majority.
As clearly delimited by the aforequoted provision, the BPO issued by We reiterate here Justice Puno’s observation that “the history of the women’s
the Punong Barangay or, in his unavailability, by any available Barangay movement against domestic violence shows that one of its most difficult struggles
Kagawad, merely orders the perpetrator to desist from (a) causing physical harm was the fight against the violence of law itself. If we keep that in mind, law will
to the woman or her child; and (2) threatening to cause the woman or her child not again be a hindrance to the struggle of women for equality but will be its
fulfillment.” Accordingly, the constitutionality of R.A. 9262 is, as it should be,
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physical harm. Such function of the Punong Barangay is, thus, purely executive
sustained.
in nature, in pursuance of his duty under the Local Government Code to “enforce
WHEREFORE, the instant petition for review on certiorari is
all laws and ordinances,” and to “maintain public order in the barangay.” 114
hereby DENIED for lack of merit.
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 SO ORDERED.
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
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 coequal executive department. As we said
in Estrada v. Sandiganbayan, courts must assume that the legislature is ever
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