CASE DIGEST: Garcia v. Drilon (G.R. No. 179267)

G.R. No. 179267 : June 25, 2013 Constitutionality of 9262 Case) | JESUS C. GARCIA, Petitioner ,v. THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children, namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents. PERLAS-BERNABE, J.:

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her minor children, a verified petition(Civil Case No. 06-797) before the Regional Trial Court (RTC) of Bacolod City for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse; emotional, psychological, and economic violence as a result of marital infidelity on the part of petitioner, with threats of deprivation of custody of her children and of financial support.Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the natural child of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J. Garcia, 3 years old.

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

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for Renewal of the TPOseeking the denial of the renewal of the TPO. Subsequently, on May 23, 2006, petitioner movedfor the modification of the TPO to allow him visitation rights to his children.

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

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

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

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

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

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

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

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

Subsequently, however, on January 24, 2007, the appellate court dismissed the petition for failure of petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case, which is clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the trial court constituted a collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the Resolutiondated August 14, 2007, petitioner is now the Supreme Court.


1. Whether or not the issue of constitutionality was not raised at the earliest possible opportunity?

2. Whether or not RA 9262 is violative of the equal protection clause?

3. Whether or not RA 9262 is violative of the due process clause of the constitution?

4. Whether or not the law is violative of the policy to protect the family as a basic social institution?

5. Whether or not the law is an undue delegation of judicial power to the barangay officials?

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

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

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

REMEDIAL LAW: Family Court's jurisdiction to consider the constitutionality of a statute.

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

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

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

SEC. 5. The Supreme Court shall have the following powers:
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: 
a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have been raised at the earliest opportunity in his Opposition to the petition for protection order before the RTC of Bacolod City, which had jurisdiction to determine the same, subject to the review of this Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays down a new kind of procedure requiring the respondent to file an opposition to the petition and not an answer.Thus:

SEC. 20. Opposition to petition. (a) The respondent may file an opposition to the petition which he himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why a temporary or permanent protection order should not be issued.

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

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

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

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

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

(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked and will be presented;
(d) Names of witnesses who will be ordered to present their direct testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both parties which shall be done in one day, to the extent possible, within the 30-day period of the effectivity of the temporary protection order issued.

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

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

CIVIL LAW: no injunctions against Temporary Protection Orders

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

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

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

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

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

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

POLITICAL LAW: equal protection of the laws in relation to RA 9262

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

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

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

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

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

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

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

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

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

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

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August 5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on October 6, 2003.This Convention mandates that State parties shall accord to women equality with men before the lawand shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations on the basis of equality of men and women.The Philippines likewise ratified the Convention on the Rights of the Child and its two protocols.It is, thus, bound by said Conventions and their respective protocols.

III. The classification is not limited to existing conditions only, and apply equally to all members

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

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

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

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

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;

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

c) Prostituting the woman or child.

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

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

1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely controlling the conjugal money or properties.

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

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

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the culprit. As defined above, VAWC may likewise be committed "against a woman with whom the person has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word "person" who has or had a sexual or dating relationship with the woman encompasses even lesbian relationships. Moreover, while the law provides that the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the Revised Penal Code.

POLITICAL LAW: due process clause of the Constitution in relation to RA 9262; characteristics of a Temporary Protection Order

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

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

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

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

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The victim is required not only to verify the allegations in the petition, but also to attach her witnesses' affidavits to the petition.

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. Just like a writ of preliminary attachment which is issued without notice and hearing because the time in which the hearing will take could be enough to enable the defendant to abscond or dispose of his property,in the same way, the victim of VAWC may already have suffered harrowing experiences in the hands of her tormentor, and possibly even death, if notice and hearing were required before such acts could be prevented. It is a constitutional commonplace that the ordinary requirements of procedural due process must yield to the necessities of protecting vital public interests,among which is protection of women and children from violence and threats to their personal safety and security.

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

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

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

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

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

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

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or all of the following reliefs:

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

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

The non-referral of a VAWC case to a mediator is justified.

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

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

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

POLITICAL LAW: undue delegation of judicial power to barangay officials in relation to RA 9262

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

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. Barangay Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act.A Punong Barangay who receives applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to act on the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time of the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay official to effect its personal service.

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

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

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

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

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

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

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