Hope and help for the battered woman (3): Protection Orders under RA 9262 "Anti-Violence Against Women and their Children Act of 2004"

Related posts: Hope and help for the battered woman (2): ntial provisions of RA 9262 Hope and help for the battered woman (4): Emotional abuse or psychological violence Hope and help for the battered woman (5): Biblical response to abuse; evangelical Christians are best husbands – University of Virginia study The “Battered Woman Syndrome” as defense Mediation not applicable to domestic violence cases Update: Supreme Court upholds Constitutionality of protection orders under  RA 9262 (Garcia vs. Drilon, G.R. No. 179267, June 25, 2013) The grant of a TPO (Temporary Protection Order) without a hearing does not violate the Constitutional right to due process. RA 9262 does not unduly delegate judicial power to barangay officials. The BPO (Barangay Protection Order) is purely executive in nature in keeping with the barangay captain’s duty under the Local Government Code to “enforce all laws and ordinances,” and to “maintain public order in the barangay.”

The provisions of RA 9262 on protection orders are discussed below in question and answer format.

What is a protection order?

Section 8 of RA 9262 defines “protection order” as an order issued for the purpose of preventing further acts of violence against a woman or her children specified in Section 5 and granting other necessary relief.

The provisions of the protection orders must be enforced by law enforcement agencies.

What are the different kinds of protection orders under RA 9262?

The three kinds of protection orders under RA 9262 are:

BPO (Barangay Protection Order);

TPO (Temporary Protection Order) issued by the court; and

PPO (Permanent Protection Order) issued by the court.

What court has jurisdiction over RA 9262 cases?

The Regional Trial Court designated as a Family Court has original and exclusive jurisdiction over cases of violence against women and their children.

In the absence of a Family Court in the place where the offense was committed, the case can be filed in the Regional Trial Court where the crime or any of its elements was committed, at the option of the complainant.

What are the purposes of a protection order?

The reliefs granted under a protection order are for:

1. safeguarding the victim from further harm,

2. minimizing any disruption in the victim’s daily life, and

3. providing the opportunity and ability of the victim to independently regain control over her life.

What are the reliefs or remedies under a protection order?

The protection orders that may be issued under Section 8 of RA 9262 include any, some, or all of the following reliefs:

[a] Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act;

[b] Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly;

[c] Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership of the residence, either temporarily for the purpose or protecting the petitioner, or permanently where no property rights are violated, and if respondents must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent has gathered his things and escort respondent from the residence;

[d] Directing the respondent to stay away from petitioner and designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member;

[e] Directing lawful possession and use by petitioner of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to the possession of the automobile and other essential personal effects, or to supervise the petitioner’s or respondent’s removal of personal belongings;

[f] Granting temporary or permanent custody of a child or children to the petitioner;

[g] Directing the respondent to provide support to the woman or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent’s employer for the same to be automatically remitted directly to the woman.

Failure to remit or withhold or any delay in the remittance of support to the woman or her children without justifiable cause will render the respondent or his employer liable for indirect contempt of court;

[h] Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply fore any license to use or possess a firearm. If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate on the offender and take appropriate action on the matter;

[i] Restitution for actual damages caused by the violence inflicted, including but not limited to, property damage, medical expenses, childcare expenses and loss of income;

[j] Directing the DSWD or any appropriate agency to provide what the petitioner may need; and

k] Provision of such other forms of relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member, provided petitioner and any designated family or household member consents to such relief.

Any of the reliefs provided above shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage.

Is it only the woman-victim or her children who can ask for the issuance of a protection order?

No. Violence against women or their children is considered as a public offense under Section 25 of RA 9262. Section 9 of RA 9262 enumerates the persons, besides the woman or her children, who can file the petition for a protection order. These persons are:

• parents or guardians of the offended party;
• ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity or affinity;
• officers or social workers of the DSWD or social workers of local government units (LGUs);
• police officers, preferably those in charge of women and children’s desks;
• Punong Barangay or Barangay Kagawad;
• lawyer, counselor, therapist or healthcare provider of the petitioner; or
• at least two concerned responsible citizens of the city or municipality where the violence against women and their children took place and who have personal knowledge of the offense committed.

What are the procedures in applying for a protection order?

Section 11 of RA 9262 provides the steps in applying for a protection order:

The application for a protection order must be in writing, signed and verified under oath by the applicant.

It may be filed as an independent action or as incidental relief in any civil or criminal case the subject matter or issues thereof partakes of violence as described in this Act.

A standard protection order application form, written in English with translation to the major local languages, is available to facilitate applications for protection order, and contains, among others, the following information:

[1] names and addresses of the petitioner and respondent

[2] description of relationships between petitioner and respondent;

[3] a statement of the circumstances of the abuse;description of the reliefs requested by petitioner as specified in Section 8 herein;

[4] request for counsel and reasons for such;

[5] request for waiver of application fees until hearing; and

[6] an attestation that there is no pending application for a protection order in another court.

If the applicant is not the victim, the application must be accompanied by an affidavit of the applicant certifying to (a) the circumstances of the abuse suffered by the victim and (b) the circumstances of consent given by the victim for the filing of the application. When disclosure of the address of the victim will pose danger to her life, it must be so stated in the application. In such a case, the applicant shall attest that the victim is residing in the municipality or city over which the court has territorial jurisdiction, and must provide a mailing address for purpose of service processing.

An application for protection order filed with a court is an application for both a TPO and PPO.

Barangay officials and court personnel must assist applicants in the preparation of the application. Law enforcement agents must also extend assistance in the application for protection orders in cases brought to their attention.

Does the TPO or PPO have valid effect only within the jurisdiction of the court that issued the order?

Section 12 of RA 9262 provides: “All TPOs and PPOs issued under this Act shall be enforceable anywhere in the Philippines and a violation thereof shall be punishable with a fine ranging from Five Thousand pesos (P5,000.00) to Fifty Thousand Pesos (P50,000.00) and/or imprisonment of six (6) months.”

What are the procedures in the issuance of a Barangay Protection Order?

Section 14 of RA 9262 provides for the following procedures:

A Punong Barangay who receives applications for a BPO must issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application.

[1] If the Punong Barangay is unavailable to act on the application for a BPO, the application must be acted upon by any available Barangay Kagawad.

[2] 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 a BPO.

[3] BPOs are effective for fifteen days.

[4] Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad must personally serve a copy of the same on the respondent, or direct any barangay official to effect its personal service.

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

The BPO is limited only to the following reliefs or remedies:

[a] Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act;

[b] Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly.

If the barangay issued a BPO, will this prevent the woman-victim or her children from going to court and asking for a TPO or a PPO?

The issuance of a Barangay Protection Order or the pendency of an application for BPO does not prevent a petitioner from applying for, or the court from granting a TPO or PPO.

What is a Temporary Protection Order (TPO)?

Section 15 of RA 9262 defines a TPO as the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued.

Ex parte determination means that the offender does not need to be notified of the hearing or to be present during the hearing for the issuance of a TPO.

What can the court provide for in a TPO?

A court may grant in a TPO any, some or all of all the reliefs mentioned in Section 8 of RA 9262. The TPO is effective for thirty days. The court must schedule a hearing on the issuance of a PPO on or before the date of the expiration of the TPO.

The court must order the immediate personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO must include notice of the date of the hearing on the merits of the issuance of a PPO.

What is a Permanent Protection Order (PPO)?

Section 16 of RA 9262 defines “Permanent Protection Order” (PPO) as the protection order issued by the court after notice and hearing.

While a TPO may be decided ex parte, notice to the alleged offender and due hearing are necessary for the issuance of a PPO.

What if the offender refuses or fails to appear during the hearing for the issuance of a PPO?

The alleged offender cannot frustrate justice by refusing or failing to appear during the hearing. RA 9262 provides for the following:

[1] Respondent’s non-appearance despite proper notice, or his lack of a lawyer, or the non-availability of his lawyer shall not be a ground for rescheduling or postponing the hearing on the merits of the issuance of a PPO.

[2] If the respondent appears without counsel on the date of the hearing on the PPO, the court shall appoint a lawyer for the respondent and immediately proceed with the hearing.

[3] In case the respondent fails to appear despite proper notice, the court shall allow ex parte presentation of the evidence by the applicant and render judgment on the basis of the evidence presented.

What are the procedures to be followed by the court in the hearing for the issuance of a PPO?

RA 9262 provides for the following procedures:

[1] The court shall allow the introduction of any history of abusive conduct of a respondent even if the same was not directed against the applicant or the person for whom the application is made.

[2] The court shall, to the extent possible, conduct the hearing on the merits of the issuance of a PPO in one day.

[3] Where the court is unable to conduct the hearing within one day and the TPO issued is due to expire, the court must continuously extend or renew the TPO for a period of thirty days at each particular time until a final judgment is issued. The extended or renewed TPO may be modified by the court as may be necessary or applicable to address the needs of the applicant.

[4] The court may grant any, some or all of the reliefs specified in Section 8 hereof in a PPO. A PPO is effective until revoked by a court upon application of the person in whose favor the order was issued.

[5] The court must ensure immediate personal service of the PPO on respondent.

[6] The court must not deny the issuance of protection order on the basis of the lapse of time between the act of violence and the filing of the application.

[7] Regardless of the conviction or acquittal of the respondent, the Court must determine whether or not the PPO should become final. Even in a dismissal, a PPO must be granted as long as there is no clear showing that the act from which the order might arise did not exist.

What should the copy of the protection order contain?

Section 17 of RA 9262 provides that the following statement must be printed in boldfaced type or in capital letters on the protection order issued by the Punong Barangay or Court: “VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW”

What will happen if the barangay or the court fails to observe the periods mentioned in RA 9262?

Section 18 provides that failure to act on an application for a protection order within the prescribed period without justifiable cause will render the official or judge administratively liable.

What if the barangay council or the judges are busy with other matters?

Section 20 provides that application for a protection order must have priority:

[1] Barangay officials and the courts must schedule and conduct hearings on applications for a protection order under this Act above all other business and, if necessary, suspend other proceedings in order to hear applications for a protection order.

[2] Ex parte and adversarial hearings to determine the basis of applications for a protection order under RA 9262 must have priority over all other proceedings.

What if the barangay issued a BPO but the woman’s intimate partner violates it by inflicting harm or threatening the woman and/or her child?

Under Section 21, violation of a BPO is punishable by imprisonment of thirty days without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed.

[1] A complaint for a violation of a BPO issued under this Act must be filed directly with any municipal trial court, metropolitan trial court, or municipal circuit trial court that has territorial jurisdiction over the barangay that issued the BPO.

[2] A judgment of violation of a BPO may be appealed according to the Rules of Court. During trial and upon judgment, the trial court may on its own issue a protection order as it deems necessary without need of an application.

What are the consequences if a TPO or a PPO is violated?

Violation of any provision of a TPO or a PPO issued under this Act constitutes contempt of court punishable under Rule 71 of the Rules of Court, without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed.

What consequences, if any, are there if barangay or police officials refuse to act on a complaint filed by an abused woman or her children?

Any barangay official or law enforcer who fails to report the incident is liable for a fine not exceeding ten thousand pesos or whenever applicable criminal, civil or administrative liability.

Are complaints for violations of RA 9262 covered by the barangay justice system, or by mediation and conciliation?

No. Section 33 provides that the following are prohibited acts:

[1] A Punong Barangay, Barangay Kagawad or the court hearing an application for a protection order must not order, direct, force or in any way unduly influence the applicant for a protection order to compromise or abandon any of the reliefs sought in the application for protection under RA 9262.

[2] Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government Code of 1991 do not apply in proceedings where relief is sought under RA 9262.

[3] Failure to comply with this Section will render the official or judge administratively liable.