G.R. No.

179267, June 25, 2013

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 IN BEHALF OF MINOR CHILDREN, NAMELY: JO-ANN, JOSEPH AND
EDUARD, JESSE ANTHONE, ALL SURNAMED GARCIA, Respondents.

DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos -or 93 percent of a total population of 93.3 million -
adhering to the teachings of Jesus Christ.1 Yet, the admonition for husbands to love their wives as their own bodies just as Christ loved the church
and gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence against Filipino women. The National Commission on
the Role of Filipino Women (NCRFW) reported that, for the years 2000-2003, "female violence comprised more than 90% of all forms of abuse and
violence and more than 90% of these reported cases were committed by the women's intimate partners such as their husbands and live-in
partners.”3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress enacted Republic Act (R.A.) No. 9262, entitled “An
Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for
Other Purposes.” It took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and their children (VAWC) perpetrated by women's
intimate partners, i.e, husband; former husband; or any person who has or had a sexual or dating relationship, or with whom the woman has a
common child.5 The law provides for protection orders from the barangay and the courts to prevent the commission of further acts of VAWC; and
outlines the duties and responsibilities of barangay officials, law enforcers, prosecutors and court personnel, social workers, health care providers,
and other local government officials in responding to complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of the equal protection and due process clauses,
and an undue delegation of judicial power to barangay officials.
The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her minor children, a verified petition6 (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.7

Private respondent's claims

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.8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around her husband. On the other hand, petitioner, who is of
Filipino-Chinese descent, is dominant, controlling, and demands absolute obedience from his wife and children. He forbade private respondent to
pray, and deliberately isolated her from her friends. When she took up law, and even when she was already working part time at a law office,
petitioner trivialized her ambitions and prevailed upon her to just stay at home. He was often jealous of the fact that his attractive wife still catches the
eye of some men, at one point threatening that he would have any man eyeing her killed.9

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's Bank, Bacolod City, who is the godmother of one of
their sons. Petitioner admitted to the affair when private respondent confronted him about it in 2004. He even boasted to the household help about
his sexual relations with said bank manager. Petitioner told private respondent, though, that he was just using the woman because of their accounts
with the bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and emotionally wounded. In one of their quarrels, petitioner
grabbed private respondent on both arms and shook her with such force that caused bruises and hematoma. At another time, petitioner hit private
respondent forcefully on the lips that caused some bleeding. Petitioner sometimes turned his ire on their daughter, Jo-Ann, who had seen the text
messages he sent to his paramour and whom he blamed for squealing on him. He beat Jo-Ann on the chest and slapped her many times. When
private respondent decided to leave petitioner, Jo-Ann begged her mother to stay for fear that if the latter leaves, petitioner would beat her up. Even

1
the small boys are aware of private respondent's sufferings. Their 6- year-old son said that when he grows up, he would beat up his father because
of his cruelty to private respondent.11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On December 17, 2005, while at home, she attempted
suicide by cutting her wrist. She was found by her son bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital.
Private respondent was hospitalized for about seven (7) days in which time petitioner never bothered to visit, nor apologized or showed pity on her.
Since then, private respondent has been undergoing therapy almost every week and is taking anti-depressant medications.12

When private respondent informed the management of Robinson's Bank that she intends to file charges against the bank manager, petitioner got
angry with her for jeopardizing the manager's job. He then packed his things and told private respondent that he was leaving her for good. He even
told private respondent's mother, who lives with them in the family home, that private respondent should just accept his extramarital affair since he is
not cohabiting with his paramour and has not sired a child with her.13

Private respondent is determined to separate from petitioner but she is afraid that he would take her children from her and deprive her of financial
support. Petitioner had previously warned her that if she goes on a legal battle with him, she would not get a single centavo.14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is the President of three corporations – 326 Realty
Holdings, Inc., Negros Rotadrill Corporation, and J-Bros Trading Corporation – of which he and private respondent are both stockholders. In contrast
to the absolute control of petitioner over said corporations, private respondent merely draws a monthly salary of P20,000.00 from one corporation
only, the Negros Rotadrill Corporation. Household expenses amounting to not less than P200,000.00 a month are paid for by private respondent
through the use of credit cards, which, in turn, are paid by the same corporation together with the bills for utilities.15

On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros Rotadrill Corporation, and enjoys unlimited cash advances and
other benefits in hundreds of thousands of pesos from the corporations.16 After private respondent confronted him about the affair, petitioner
forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of the corporations are conducted, thereby depriving her of
access to full information about said businesses. Until the filing of the petition a quo, petitioner has not given private respondent an accounting of the
businesses the value of which she had helped raise to millions of pesos.17

Action of the RTC of Bacolod City

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 TPO18 on March 24, 2006 effective for thirty (30) days, which is quoted hereunder:cralavvonlinelawlibrary

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:cralavvonlinelawlibrary

a) Ordered to remove all his personal belongings from the conjugal dwelling or family home within 24 hours from receipt of the Temporary
Restraining Order and if he refuses, ordering that he be removed by police officers from the conjugal 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 ownership”), this is to
allow the Petitioner (private respondent herein) to enter the conjugal dwelling without any danger from the Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the Petitioner decides to return to the conjugal dwelling to remove
things, the Petitioner shall be assisted by police officers when re-entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March 2006 because of the danger that the Respondent will
attempt to take her 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 household help and driver from a distance of 1,000 meters, and shall not
enter the gate of the subdivision where the Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner, directly or indirectly, or through other persons, or contact
directly or indirectly her children, mother and household help, nor send gifts, cards, flowers, letters and the like. Visitation rights to the children may
be subject of a modified TPO in the future.

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 the Provincial Director of the PNP to cancel all the Respondent's firearm licenses. He should also be ordered to surrender any
unlicensed firearms in his possession or control.

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e) To pay full financial support for the Petitioner and the children, including rental of a house for them, and educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received from all the corporations from 1 January 2006 up to 31
March 2006, which himself and as President of the corporations and his Comptroller, must submit to the Court not later than 2 April 2006. Thereafter,
an accounting of all these funds shall be reported to the court by the Comptroller, copy furnished to the Petitioner, every 15 days of the month, under
pain of Indirect Contempt of Court.

h) To ensure compliance especially with the order granting support pendente lite, and considering the financial resources of the Respondent and his
threat that if the Petitioner sues she will not get a single centavo, the Respondent is ordered to put up a BOND TO KEEP THE PEACE in the amount
of FIVE MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended TPO,20 effective for thirty (30) days, which included the
following additional provisions:cralavvonlinelawlibrary
i) The petitioners (private respondents herein) are given the continued use of the Nissan Patrol and the Starex Van which they are using in Negros
Occidental.

j) The petitioners are given the continued use and occupation of the house in Parañaque, the continued use of the Starex van in Metro Manila,
whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One 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 be finally resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for Renewal of the TPO21 seeking the denial of the
renewal of the TPO on the grounds that it did not (1) comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that
the TPO be modified by (1) removing one vehicle used by private respondent and returning the same to its rightful owner, the J-Bros Trading
Corporation, and (2) cancelling or reducing the amount of the bond from P5,000,000.00 to a more manageable level at P100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for 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:cralavvonlinelawlibrary
a) That respondent (petitioner herein) return the clothes and other personal belongings of Rosalie and her children to Judge Jesus Ramos, co-
counsel for Petitioner, within 24 hours from receipt of the Temporary Protection Order by his counsel, otherwise be declared in Indirect Contempt of
Court;chanroblesvirtualawlibrary

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal house in Pitimini St., Capitolville Subdivision, Bacolod City
within 24 hours from receipt of the Temporary Protection Order by his counsel;chanroblesvirtualawlibrary

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to remove Respondent from the conjugal dwelling within eight
(8) hours from receipt of the Temporary Protection Order by his counsel, and that he cannot return until 48 hours after the petitioners have left, so
that the petitioner Rosalie and her representatives can remove things from the conjugal home and make an inventory of the household furniture,
equipment and other things in the conjugal home, which shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and Php25,000.00 for clothes of the three petitioners (sic) children
within 24 hours from receipt of the Temporary Protection Order by his counsel, otherwise be declared in indirect contempt of
Court;chanroblesvirtualawlibrary

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of Court within 24 hours from receipt of the Temporary
Protection Order by his counsel;chanroblesvirtualawlibrary

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f) That respondent shall pay petitioner educational expenses of the children upon presentation of proof of payment of such expenses.23

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 application24 for the issuance of a TPO ex parte. She alleged inter alia
that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter was purportedly no longer president, with the end in
view of recovering the Nissan Patrol and Starex Van used by private respondent and the children. A writ of replevin was served upon private
respondent by a group of six or seven policemen with long firearms that scared the two small boys, Jessie Anthone and Joseph Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to kidnap him, which incident traumatized the boy
resulting in his refusal to go back to school. On another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann subsequently filed a criminal complaint against her father for violation of R.A. 7610, also
known as the “Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act.”

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the conjugal home of a complaint for kidnapping and
illegal detention against private respondent. This came about after private respondent, armed with a TPO, went to said home to get her and her
children's belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the maids' room, private respondent filed a case for
qualified theft against Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:cralavvonlinelawlibrary
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:cralavvonlinelawlibrary

1) Prohibited from threatening to commit or committing, personally or through another, acts of violence against the offended
party;chanroblesvirtualawlibrary

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating in any form with the offended party, either directly or
indirectly;chanroblesvirtualawlibrary

3) Required to stay away, personally or through his friends, relatives, employees or agents, from all the Petitioners Rosalie J. Garcia and her
children, Rosalie J. Garcia's three brothers, her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman Mercedita
Bornales, security guard Darwin Gayona and the petitioner's other household helpers from a distance of 1,000 meters, and shall not enter the gate of
the subdivision where the Petitioners are temporarily residing, as well as from the schools of the three children; Furthermore, that respondent shall
not contact the schools of the children directly or indirectly in any manner including, ostensibly to pay for their tuition or other fees directly, otherwise
he will have access to the children through the schools and the TPO will be rendered nugatory;chanroblesvirtualawlibrary

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to the Court;chanroblesvirtualawlibrary

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00 for rental for the period from August 6 to September 6,
2006; and support in arrears from March 2006 to August 2006 the total amount of Php1,312,000.00;chanroblesvirtualawlibrary

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and Php25,000.00;chanroblesvirtualawlibrary

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a Starex van with Plate No. FFD 991 and should the
respondent fail to deliver said vehicles, respondent is ordered to provide the petitioner another vehicle which is the one taken by J Bros
Tading;chanroblesvirtualawlibrary

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of 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. Garcia and respondent have an interest in,
especially the conjugal home located in No. 14, Pitimini St., Capitolville Subdivision, Bacolod City, and other properties which are conjugal assets or
those in which the conjugal partnership of gains of Petitioner Rosalie J. Garcia and the respondent have an interest in and listed in Annexes “I,” “I-1,”
and “I-2,” including properties covered by TCT Nos. T-186325 and T-168814;chanroblesvirtualawlibrary

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a copy of this TEMPORARY PROTECTION ORDER and
are ordered not to allow the transfer, sale, encumbrance or disposition of these above-cited properties to any person, entity or corporation without
the personal presence of petitioner Rosalie J. Garcia, who shall affix her signature in the presence of the Register of Deeds, due to the fear of

4
petitioner Rosalie that her signature will be forged in order to effect the encumbrance or sale of these properties to defraud her or the conjugal
partnership of gains.

In its Order29 dated 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,30 however, that
he has not received a copy of private respondent's motion to modify/renew the TPO, the trial court directed in its Order31 dated October 6, 2006 that
petitioner be furnished a copy of said motion. Nonetheless, an Order32 dated a day earlier, October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted hereunder:cralavvonlinelawlibrary
xxxx

x x x 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.”33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a petition34 for 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 Order35 (TRO) against the enforcement of the TPO, the amended
TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed36 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 Resolution37 dated August 14, 2007, petitioner is now before us
alleging that –
The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE ISSUE OF CONSTITUTIONALITY WAS NOT
RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE
LAW.
II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY, UNJUST, AND
VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.
III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE PROCESS
CLAUSE OF THE CONSTITUTION.
IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE POLICY OF THE STATE TO PROTECT THE
FAMILY AS A BASIC SOCIAL INSTITUTION.
V.

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THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID AND UNCONSTITUTIONAL BECAUSE IT
ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE BARANGAY OFFICIALS.38nadcralavvonlinelawlibrary

The Ruling of the Court

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.39 Courts will not anticipate a question of constitutional law
in advance of the necessity of deciding it.40

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.”41

We disagree.

Family Courts have authority and 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.42 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.43 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, viz:cralavvonlinelawlibrary
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. (Emphasis supplied)

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.44 It is
settled that RTCs have jurisdiction to resolve the constitutionality of a statute,45 “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.”46 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.47 We said in J.M. Tuason and Co., Inc. v. CA48 that,
“[p]lainly 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:cralavvonlinelawlibrary
SEC. 5. The Supreme Court shall have the following powers:cralavvonlinelawlibrary

xxx

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:cralavvonlinelawlibrary

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.

xxxx

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.

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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.49 Thus:cralavvonlinelawlibrary
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.50 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.51 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.52 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 attacked53 by 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.54 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, viz:cralavvonlinelawlibrary
SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may issue an order containing the
following:cralavvonlinelawlibrary

(a) Facts undisputed and admitted;chanroblesvirtualawlibrary

(b) Factual and legal issues to be resolved;chanroblesvirtualawlibrary

(c) Evidence, including objects and documents that have been marked and will be presented;chanroblesvirtualawlibrary

(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. (Emphasis supplied)

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.

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,55 with more reason that a TPO, which is valid only for thirty (30) days at a time,56 should not be
enjoined.

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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.57 In Younger v.
Harris, Jr.,58 the Supreme Court of the United States declared, thus:cralavvonlinelawlibrary
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. (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 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 Comment59 to the instant Petition that we should put the challenge to the constitutionality of R.A. 9262 to
rest. And so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child abuse, which could very well be committed by either
the husband or the wife, gender alone is not enough basis to deprive the husband/father of the remedies under the law.60

A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A. 9262, reveals that while the sponsor, Senator Luisa
Pimentel-Ejercito (better known as Senator Loi Estrada), had originally proposed what she called a “synthesized measure”62 – an amalgamation of
two measures, namely, the “Anti-Domestic Violence Act” and the “Anti- Abuse of Women in Intimate Relationships Act”63 – providing protection to
“all family members, leaving no one in isolation” but at the same time giving special attention to women as the “usual victims” of violence and
abuse,64 nonetheless, it was eventually agreed that men be denied protection under the same measure. We quote pertinent portions of the
deliberations:cralavvonlinelawlibrary
Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have expressed concerns and relayed these
concerns to me that if we are to include domestic violence apart from against women as well as other members of the household, including children
or the husband, they fear that this would weaken the efforts to address domestic 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 to place that on record. How does the good Senator respond to
this kind of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves “WIIR” Women in Intimate Relationship. They do not want to
include men in this domestic violence. But plenty of men are also being abused by women. I am playing safe so I placed here members of the family,
prescribing penalties therefor and providing protective measures for victims. This includes the men, children, live-in, common-law wives, and those
related with the family.65

xxxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether to limit this to women and not to families which was the issue of the
AWIR group. The understanding that I have is that we would be having a broader scope rather than just women, if I remember correctly, Madam
sponsor.

Senator Estrada. Yes, Mr. President.

8
As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong. However, I believe that there is a need to protect
women's rights especially in the domestic environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity to file a case against their spouses, their live-in
partners after years, if not decade, of battery and abuse. If we broaden the scope to include even the men, assuming they can at all be abused by
the women or their spouses, then it would not equalize the already difficult situation for women, Mr. President.

I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that the men in this Chamber who love their women
in their lives so dearly will agree with this representation. Whether we like it or not, it is an unequal world. Whether we like it or not, no matter how
empowered the women are, we are not given equal opportunities especially in the domestic environment where the macho Filipino man would
always feel that he is stronger, more superior to the Filipino woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because the family members have been included in this
proposed measure since the other members of the family other than women are also possible victims of violence. While women are most likely the
intended victims, one reason incidentally why the measure focuses on women, the fact remains that in some relatively few cases, men also stand to
be victimized and that children are almost always the helpless victims of violence. I am worried that there may not be enough protection extended to
other family members particularly children who are excluded. Although Republic Act No. 7610, for instance, more or less, addresses the special
needs of abused children. The same law is inadequate. Protection orders for one are not available in said law.

I am aware that some groups are apprehensive about granting the same protection to men, fearing that they may use this law to justify their abusive
behavior against women. However, we should also recognize that there are established procedures and standards in our courts which give credence
to evidentiary support and cannot just arbitrarily and whimsically entertain baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family as the basic social institution. Though I recognize the
unequal power relations between men and women in our society, I believe we have an obligation to uphold inherent rights and dignity of both
husband and wife and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a critical input arrived at after a series of
consultations/meetings with various NGOs, experts, sports groups and other affected sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor. The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of

Senator Legarda would be removing the “men and children” in this particular bill and focus specifically on women alone. That will be the net effect of
that proposed amendment. Hearing the rationale mentioned by the distinguished sponsor, Sen. Luisa “Loi” Ejercito Estrada, I am not sure now
whether she is inclined to accept the proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I will propose an amendment to the amendment rather
than object to the amendment, Mr. President.

xxxx

9
Senator Estrada. The amendment is accepted, Mr. President. The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment. The President Pro Tempore. Before we act on the amendment? Senator
Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished proponent of the amendment. As a matter of fact, I tend
to agree. Kung may maaabuso, mas malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi iyan. Okey
lang iyan. But I cannot agree that we remove the children from this particular measure.

So, if I may propose an amendment –

The President Pro Tempore. To the amendment.

Senator Sotto. – more than the women, the children are very much abused. As a matter of fact, it is not limited to minors. The abuse is not limited to
seven, six, 5-year-old children. I have seen 14, 15-year-old children being abused by their fathers, even by their mothers. And it breaks my heart to
find out about these things.

Because of the inadequate existing law on abuse of children, this particular measure will update that. It will enhance and hopefully prevent the abuse
of children and not only women.
SOTTO-LEGARDA AMENDMENTS

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.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a statute.67 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.68

We only step in when there is a violation of the Constitution. However, none was sufficiently shown in this case.

R.A. 9262 does not violate the

guaranty of equal protection
of the laws.

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' Union69 is instructive:cralavvonlinelawlibrary
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

10
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. (Emphasis supplied)

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.”70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender Equality and 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 “gender-based
violence”. Societal norms and traditions dictate people to think men are the leaders, pursuers, providers, and take on dominant roles in society while
women are nurturers, men's companions and supporters, and take on subordinate roles in society. This perception leads to men gaining more power
over women. With power comes the need to control to retain that power. And VAW is a form of men's expression of controlling women to retain
power.71

The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution 48/104 on the Declaration on Elimination of
Violence Against Women on December 20, 1993 stating that “violence against women is a manifestation of historically unequal power relations
between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full
advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into subordinate
positions, compared with men.”72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based violence and developments in advocacies to eradicate
VAW, in his remarks delivered during the Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent portions of
which are quoted hereunder:cralavvonlinelawlibrary
History reveals that most societies sanctioned the use of violence against women. The patriarch of a family was accorded the right to use force on
members of the family under his control. I quote the early studies:cralavvonlinelawlibrary
Traditions subordinating women have a long history rooted in patriarchy – the institutional rule of men. Women were seen in virtually all societies to
be naturally inferior both physically and intellectually. In ancient Western societies, women whether slave, concubine or wife, were under the
authority of men. In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she endangered his property right over her. Judaism,
Christianity and other religions oriented towards the patriarchal family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone has been quoted in his commentaries as saying
husband and wife were one and that one was the husband. However, in the late 1500s and through the entire 1600s, English common law began to
limit the right of husbands to chastise their wives. Thus, common law developed the rule of thumb, which allowed husbands to beat their wives with a
rod or stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict corporeal punishment ceased. Even then, the

11
preservation of the family was given more importance than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English common law. In 1871, the Supreme Court of Alabama
became the first appellate court to strike down the common law right of a husband to beat his wife:cralavvonlinelawlibrary
The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her, spit in her face or kick her about the floor, or to
inflict upon her like indignities, is not now acknowledged by our law... In person, the wife is entitled to the same protection of the law that the husband
can invoke for himself.

As time marched on, the women's advocacy movement became more organized. The temperance leagues initiated it. These leagues had a simple
focus. They considered the evils of alcoholism as the root cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and their
husbands' other watering holes. Soon, however, their crusade was joined by suffragette movements, expanding the liberation movement's agenda.
They fought for women's right to vote, to own property, and more. Since then, the feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public gaze. They succeeded in transforming the issue into an
important public concern. No less than the United States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:cralavvonlinelawlibrary
In an average 12-month period in this country, approximately two million 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 assaulted their wives during the past year. The [American Medical Association]
views these figures as “marked underestimates,” because the nature of these incidents discourages women from reporting them, and because
surveys typically exclude the very poor, those who do not speak English well, and women who are homeless or in institutions or hospitals when the
survey is conducted. According to the AMA, “researchers on family violence agree that the true incidence of partner violence is probably double the
above estimates; or four million severely assaulted women per year.”

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted by a partner or ex-partner during their
lifetime... Thus on an average day in the United States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents
involve sexual assault... In families where wife beating takes place, moreover, child abuse is often present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of abuse. Psychological abuse, particularly forced
social and economic isolation of women, is also common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior alternative...Many abused women who find
temporary refuge in shelters return to their husbands, in large part because they have no other source of income... Returning to one's abuser can be
dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all homicide victims in the United States are killed by their
spouses...Thirty percent of female homicide victims are killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United States Charter and the Universal Declaration of
Human Rights affirmed the equality of all human beings. In 1979, the UN General Assembly adopted the landmark Convention on the Elimination of
all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also adopted the Declaration on the Elimination of
Violence Against Women. World conferences on the role and rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and
Beijing. The UN itself established a Commission on the Status of Women.

The Philippines has been in cadence with the half – and full – steps of 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 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 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 Violence Against Women and Their Children, Providing for Protective Measures
for Victims, Prescribing Penalties therefor and for other Purposes.” (Citations omitted)

B. Women are the “usual” and “most likely”

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women and children show that –
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 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 are 1,417 physically

12
abused/maltreated cases out of the total of 5,608 cases. xxx (T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the first
semester of 2003. Female violence comprised more than 90% of all forms of abuse and violence and more than 90% of these reported cases were
committed by the women's intimate partners such as their husbands and live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence against women across an eight-year period from 2004
to August of 2011 with violations under R.A. 9262 ranking first among the different VAW categories since its implementation in 2004,74
thus:cralavvonlinelawlibrary
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*
Reported Cases 2004 2005 2006 2007 2008 2009 2010 2011
Rape 997 927 659 837 811 770 1,042 832
Incestuous Rape 38 46 26 22 28 27 19 23
Attempted Rape 194 148 185 147 204 167 268 201
Acts of Lasciviousness 580 536 382 358 445 485 745 625
Physical Injuries 3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
Sexual Harassment 53 37 38 46 18 54 83 63
RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021
Threats 319 223 199 182 220 208 374 213
Seduction 62 19 29 30 19 19 25 15
Concubinage 121 102 93 109 109 99 158 128
RA 9208 17 11 16 24 34 152 190 62
Abduction /Kidnapping 29 16 34 23 28 18 25 22
Unjust Vexation 90 50 59 59 83 703 183 155
Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948
*2011 report covers only from January to August
Source: Philippine National Police – Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against men in the Philippines because incidents thereof
are relatively low and, perhaps, because many men will not even attempt to report the situation. In the United Kingdom, 32% of women who had ever
experienced domestic violence did so four or five (or more) times, compared with 11% of the 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 violence.75 Statistics in Canada
show that spousal violence by a woman against a man is less likely to cause injury than the other way around (18 percent versus 44 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
experience sexual assault. In fact, many cases of physical violence by a woman against a spouse are in self-defense or the result of many years of
physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated 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 animal-drawn vehicles to pick up, gather and deposit in receptacles the
manure emitted or discharged by their vehicle-drawing animals in any public highways, 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 vehicle-drawing animals and
not to those animals, although not utilized, but similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-vehicle-drawing animals that also traverse the city
roads, “but their number must be negligible and their appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a
menace to the health of the community.”77 The mere fact that the legislative classification may result in actual inequality is not violative of the right to
equal protection, for every classification of persons or things for regulation by law produces inequality in some degree, but the law is not thereby
rendered invalid.78

C. Gender bias and prejudices

13
From the initial report to the police through prosecution, trial, and sentencing, crimes against women are often treated differently and less seriously
than other crimes. This was argued by then United States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against
Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress' authority under the Commerce and Equal
Protection Clauses. He stressed that the widespread gender bias in the U.S. has institutionalized 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 system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that “(w)henever violence occurs in the family, the police
treat it as a private matter and advise the parties to settle the conflict themselves. Once the complainant brings the case to the prosecutor, the latter
is hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or reluctance to be involved by the police and
prosecution reinforces the escalating, recurring and often serious nature of domestic violence.”80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct Unbecoming of a Judge. He used derogatory and
irreverent language in reference to the complainant in a petition for TPO and PPO under R.A. 9262, calling her as “only a live-in partner” and
presenting her as an “opportunist” and a “mistress” in an “illegitimate relationship.” Judge Amila even called her a “prostitute,” and accused her of
being motivated by “insatiable greed” and of absconding with the contested property.81 Such remarks betrayed Judge Amila's prejudices and lack of
gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and prejudices against women. As emphasized by the
CEDAW Committee on the Elimination of Discrimination against Women, addressing or correcting discrimination through specific measures focused
on women does not discriminate against men.82 Petitioner's contention,83 therefore, that R.A. 9262 is discriminatory and that it is an “anti-male,”
“husband-bashing,” and “hate-men” law deserves scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take all
appropriate measures “to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices
and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for
men and women.”84 Justice Puno correctly pointed out that “(t)he paradigm shift changing the character of domestic violence from a private affair to
a public offense will require the development of a distinct mindset on the part of the police, the prosecution and the judges.”85

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:cralavvonlinelawlibrary
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, 2003.86 This Convention mandates that State parties shall accord to women equality
with men before the law87 and 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.88 The Philippines likewise ratified the Convention on the Rights of the Child and its two
protocols.89 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:cralavvonlinelawlibrary

14
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:cralavvonlinelawlibrary
A. "Physical Violence" refers to acts that include bodily or physical harm;chanroblesvirtualawlibrary

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:cralavvonlinelawlibrary
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;chanroblesvirtualawlibrary

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;chanroblesvirtualawlibrary

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 mental 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;chanroblesvirtualawlibrary

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;chanroblesvirtualawlibrary

3. destroying household property;chanroblesvirtualawlibrary

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.90 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.91 Yet,
petitioner insists92 that 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.93

15
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 (RPC). Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari
L. Go- Tan, the victim, were held to be proper respondents in the case filed by the latter upon the allegation that they and their son (Go-Tan's
husband) had community of design and purpose in tormenting her by giving her insufficient financial support; harassing and pressuring her to be
ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally and physically.

R.A. 9262 is not violative of the due

process clause of the Constitution.

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.”95

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.96

“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.”97

The rules require that petitions for protection order be in writing, signed and verified by the petitioner98 thereby undertaking full responsibility,
criminal or civil, for every allegation therein. Since “time is of the essence in cases of VAWC if further violence is to be prevented,”99 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.100

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.101

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,102 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,103 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.104

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.105

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.106

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

16
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.107

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.108

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that this is so. It states:cralavvonlinelawlibrary
SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or all of the following reliefs:cralavvonlinelawlibrary

xxxx

(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;chanroblesvirtualawlibrary

xxxx

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.”109

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:110
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. (Emphasis supplied)

There is no undue delegation of judicial

power to barangay officials.

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.111 The pertinent provision reads, as follows:cralavvonlinelawlibrary
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

17
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.112 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."113

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.”114

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.”115

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.
Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach otor 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. 116 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,117 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.

We reiterate here Justice Puno's observation that "the history of the women's movement against domestic violence shows that one of its most
difficult struggles was the fight against the violence oflaw itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for
equality but will be its fulfillment."118 Accordingly, the constitutionality of R.A. 9262 is, as it should be, sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 213181 August 19, 2014
FRANCIS H. JARDELEZA Petitioner,
vs.

18
CHIEF JUSTICE MARIA LOURDES P. A. SERENO, THE JUDICIAL AND BAR COUNCIL AND EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR., Respondents.
DECISION
MENDOZA, J.:
Once again, the Couii is faced with a controversy involving the acts of an independent body, which is considered as a constitutional innovation the
Judicial and Bar Council (JBC). It is not the first time that the Court is called upon to settle legal questions surrounding the JBC's exercise of its
constitutional mandate. In De Castro v. JBC,1 the Court laid to rest issues such as the duty of the JBC to recommend prospective nominees for the
position of Chief Justice vis-à-vis the appointing power of the President, the period within which the same may be exercised, and the ban on midnight
appointments as set forth in the Constitution. In Chavez v. JBC,2 the Court provided an extensive discourse on constitutional intent as to the JBC’s
composition and membership.
This time, however, the selection and nomination process actually undertaken by the JBC is being challenged for being constitutionally infirm. The
heart of the debate lies not only on the very soundness and validity of the application of JBC rules but also the extent of its discretionary power. More
significantly, this case of first impression impugns the end-result of its acts - the shortlistfrom which the President appoints a deserving addition to the
Highest Tribunal of the land.
To add yet another feature of noveltyto this case, a member of the Court, no less than the Chief Justice herself, was being impleaded as party
respondent.
The Facts
The present case finds its genesis from the compulsory retirement of Associate Justice Roberto Abad (Associate Justice Abad) last May 22, 2014.
Before his retirement, on March 6, 2014, in accordance with its rules,3 the JBC announced the opening for application or recommendation for the
said vacated position.
On March 14, 2014, the JBC received a letter from Dean Danilo Concepcion of the University of the Philippines nominating petitioner Francis H.
Jardeleza (Jardeleza), incumbent Solicitor General of the Republic, for the said position. Upon acceptance of the nomination, Jardeleza was
included in the names of candidates, as well as in the schedule of public interviews. On May 29, 2014, Jardeleza was interviewed by the JBC.
It appears from the averments in the petition that on June 16 and 17, 2014, Jardeleza received telephone callsfrom former Court of Appeals
Associate Justice and incumbent JBC member, Aurora Santiago Lagman (Justice Lagman), who informed him that during the meetings held on June
5 and 16, 2014, Chief Justice and JBC ex-officioChairperson, Maria Lourdes P.A. Sereno (Chief Justice Sereno),manifested that she would be
invoking Section 2, Rule 10 of JBC-0094 against him. Jardeleza was then directed to "make himself available" before the JBC on June 30, 2014,
during which he would be informed of the objections to his integrity.
Consequently, Jardeleza filed a letter-petition (letter-petition)5 praying that the Court, in the exercise of itsconstitutional power of supervision over the
JBC, issue an order: 1) directing the JBC to give him at least five (5) working days written notice of any hearing of the JBC to which he would be
summoned; and the said notice to contain the sworn specifications of the charges against him by his oppositors, the sworn statements of supporting
witnesses, if any, and copies of documents in support of the charges; and notice and sworn statements shall be made part of the public record of the
JBC; 2) allowing him to cross-examine his oppositors and supporting witnesses, if any, and the cross-examination to be conducted in public, under
the same conditions that attend the publicinterviews held for all applicants; 3) directing the JBC to reset the hearing scheduled on June 30, 2014 to
another date; and 4) directing the JBC to disallow Chief Justice Sereno from participating in the voting on June 30,2014 or at any adjournment
thereof where such vote would be taken for the nominees for the position vacated by Associate Justice Abad.
During the June 30, 2014 meeting of the JBC, sansJardeleza, incumbent Associate Justice Antonio T. Carpio (Associate Justice Carpio) appeared
as a resource person to shed light on a classified legal memorandum (legal memorandum) that would clarify the objection to Jardeleza’s integrity as
posed by Chief Justice Sereno. According to the JBC, Chief Justice Sereno questioned Jardeleza’s ability to discharge the duties of his office as
shown in a confidential legal memorandum over his handling of an international arbitration case for the government.
Later, Jardeleza was directed to one of the Court’s ante-rooms where Department of Justice Secretary Leila M. De Lima (Secretary De Lima)
informed him that Associate Justice Carpio appeared before the JBC and disclosed confidential information which, to Chief Justice Sereno,
characterized his integrity as dubious. After the briefing, Jardeleza was summoned by the JBC at around 2:00o’clock in the afternoon.
Jardeleza alleged that he was asked by Chief Justice Sereno if he wanted to defend himself against the integrity issues raised against him. He
answered that he would defend himself provided that due process would be observed. Jardeleza specifically demanded that Chief Justice Sereno
execute a sworn statement specifying her objectionsand that he be afforded the right to cross-examine her in a public hearing. He requested that the
same directive should also be imposed on Associate Justice Carpio. As claimed by the JBC, Representative Niel G. Tupas Jr. also manifested that
he wanted to hear for himself Jardeleza’s explanation on the matter. Jardeleza, however, refused as he would not be lulled intowaiving his rights.
Jardeleza then put into record a written statement6 expressing his views on the situation and requested the JBC to defer its meeting considering that
the Court en banc would meet the next day to act on his pending letter-petition. At this juncture, Jardeleza was excused.
Later in the afternoon of the sameday, and apparently denying Jardeleza’s request for deferment of the proceedings, the JBC continued its
deliberations and proceeded to vote for the nominees to be included in the shortlist. Thereafter, the JBC releasedthe subject shortlist of four (4)
nominees which included: Apolinario D. Bruselas, Jr. with six (6) votes, Jose C. Reyes, Jr. with six (6) votes, Maria Gracia M. Pulido Tan with five (5)
votes, and Reynaldo B. Daway with four (4) votes.7

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As mentioned in the petition, a newspaper article was later published in the online portal of the Philippine Daily Inquirer, stating that the Court’s
Spokesman, Atty. Theodore Te, revealed that there were actually five (5) nominees who made it to the JBC shortlist, but one (1) nominee could not
be included because of the invocation of Rule 10, Section 2 of the JBC rules.
In its July 8, 2014 Resolution, the Court noted Jardeleza’s letterpetition in view of the transmittal of the JBC list of nominees to the Office of the
President, "without prejudice to any remedy available in law and the rules that petitioner may still wish to pursue."8 The said resolution was
accompanied by an extensive Dissenting Opinion penned by Associate Justice Arturo D. Brion,9 expressing his respectful disagreement as to the
position taken by the majority.
The Petition
Perceptibly based on the aforementioned resolution’s declaration as to his availment of a remedy in law, Jardeleza filed the present petition for
certiorari and mandamus under Rule 65 of the Rules of Court with prayer for the issuance of a Temporary Restraining Order (TRO), seeking to
compel the JBC to include him in the list ofnominees for Supreme Court Associate Justice viceAssociate Justice Abad, on the grounds that the JBC
and Chief Justice Sereno acted in grave abuse of discretion amounting to lack or excess of jurisdiction in excluding him, despite having garnered a
sufficient number of votes to qualify for the position.
Notably, Jardeleza’s petition decries that despite the obvious urgency of his earlier letter-petition and its concomitant filing on June 25, 2014, the
same was raffled only on July 1, 2014 or a day after the controversial JBC meeting. By the time that his letter-petition was scheduled for deliberation
by the Court en bancon July 8, 2014, the disputedshortlist had already been transmitted to the Office of the President. He attributedthis belated
action on his letter-petition to Chief Justice Sereno, whose action on such matters, especially those impressed withurgency, was discretionary.
An in-depth perusal of Jardeleza’s petition would reveal that his resort to judicial intervention hinges on the alleged illegality of his exclusion from the
shortlist due to: 1) the deprivation of his constitutional right to due process; and 2) the JBC’s erroneous application, if not direct violation, of its own
rules. Suffice it to say, Jardelezadirectly ascribes the supposed violation of his constitutional rights tothe acts of Chief Justice Sereno in raising
objections against his integrity and the manner by which the JBC addressed this challenge to his application, resulting in his arbitrary exclusion from
the list of nominees.
Jardeleza’s Position
For a better understanding of the above postulates proffered in the petition, the Court hereunder succinctlysummarizes Jardeleza’s arguments, as
follows:
A. Chief Justice Sereno and the JBC violated Jardeleza’s right to due process in the events leading up to and during the vote on the shortlist last
June 30, 2014. When accusations against his integrity were made twice, ex parte, by Chief Justice Sereno, without informing him of the nature and
cause thereof and without affording him an opportunity to be heard, Jardeleza was deprived of his right to due process. In turn, the JBC violated his
right to due process when he was simply ordered to make himself available on the June 30, 2014 meeting and was told that the objections to his
integrity would be made known to him on the same day. Apart from mere verbal notice (by way of a telephone call) of the invocation of Section 2,
Rule 10 of JBC-009 against his application and not on the accusations against him per se, he was deprived of an opportunity to mount a proper
defense against it. Not only did the JBC fail to ventilate questions on his integrity during his public interview, he was also divested of his rights as an
applicant under Sections 3 and 4, Rule 4, JBC-009, to wit:
Section 3. Testimony of parties. – The Council may receive written opposition to an applicant on the ground of his moral fitness and, at its discretion,
the Council may receive the testimony of the oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be allowed
to cross-examine the oppositor and to offer countervailing evidence.
Section 4. Anonymous Complaints. – Anonymous complaints against an applicant shall not be given due course, unless there appears on its face a
probable cause sufficient to engender belief that the allegations may be true. In the latter case, the Council may direct a discreet investigation or
require the applicant to comment thereon in writing or during the interview.
His lack of knowledge as to the identity of his accusers (except for yet again, the verbalinformation conveyed to him that Associate Justice Carpio
testified against him) and as to the nature of the very accusations against him caused him to suffer from the arbitrary action by the JBC and Chief
Justice Sereno. The latter gravely abused her discretion when she acted as prosecutor, witness and judge,thereby violating the very essence of fair
play and the Constitution itself. In his words: "the sui generis nature of JBC proceedings does not authorize the Chief Justice to assume these roles,
nor does it dispense with the need to honor petitioner’s right to due process."10
B. The JBC committed grave abuse of discretion in excluding Jardeleza from the shortlist of nominees, in violation of its own rules. The "unanimity
requirement" provided under Section 2, Rule10 of JBC-009 does not find application when a member of the JBC raises an objection to an applicant’s
integrity. Here, the lone objector constituted a part of the membership of the body set to vote. The lone objector could be completely capable oftaking
hostage the entire voting process by the mere expediency of raising an objection. Chief Justice Sereno’s interpretation of the rule would allow a
situation where all thata member has to do to veto other votes, including majority votes, would be to object to the qualification of a candidate, without
need for factual basis.
C. Having secured the sufficient number of votes, it was ministerial on the part of the JBC to include Jardeleza in the subject shortlist.Section 1, Rule
10 of JBC-009 provides that a nomination for appointment to a judicial position requires the affirmative vote of at least a majority of all members of
the JBC. The JBC cannot disregard its own rules. Considering that Jardeleza was able to secure four (4) out of six (6) votes, the only conclusion is
that a majority of the members of the JBC found him to be qualified for the position of Associate Justice.

20
D. The unlawful exclusion ofthe petitioner from the subject shortlist impairs the President’s constitutional power to appoint.Jardeleza’s exclusion from
the shortlist has unlawfully narrowed the President’s choices. Simply put, the President would be constrained to choose from among four (4)
nominees, when five (5) applicants rightfully qualified for the position. This limits the President to appoint a member of the Court from a list generated
through a process tainted with patent constitutional violations and disregard for rules of justice and fair play. Until these constitutional infirmities are
remedied, the petitioner has the right to prevent the appointment of an Associate Justice viceAssociate Justice Abad.
Comment of the JBC
On August 11, 2014, the JBC filed its comment contending that Jardeleza’s petition lacked proceduraland substantive bases that would warrant
favorable action by the Court. For the JBC, certiorariis only available against a tribunal, a board or an officer exercising judicial or quasijudicial
functions.11 The JBC, in its exercise of its mandate to recommend appointees to the Judiciary, does not exercise any of these functions. In a
pending case,12 Jardeleza himself, as one of the lawyers for the government, argued in this wise: Certioraricannot issue against the JBC in the
implementation of its policies.
In the same vein, the remedy of mandamusis incorrect. Mandamus does not lie to compel a discretionary act. For it to prosper, a petition for
mandamus must, among other things, show that the petitioner has a clear legal right to the act demanded. In Jardeleza’s case, there is no legal right
to be included in the list of nominees for judicial vacancies. Possession of the constitutional and statutory qualifications for appointment to the
Judiciary may not be used to legally demand that one’s name be included in the list of candidates for a judicial vacancy. One’s inclusion in the
shortlist is strictly within the discretion of the JBC.
Anent the substantive issues, the JBC mainly denied that Jardeleza was deprived of due process. The JBC reiterated that Justice Lagman, on behalf
of the JBC en banc, called Jardeleza and informed him that Chief Justice Sereno would be invoking Section 2, Rule 10 of JBC-009 due to a question
on his integrity based on the way he handled a very important case for the government. Jardeleza and Justice Lagman spoke briefly about the case
and his general explanation on how he handled the same. Secretary De Lima likewise informed him about the content of the impending objection
against his application. On these occasions, Jardeleza agreed to explain himself. Come the June 30, 2014 meeting, however, Jardeleza refused to
shed light on the allegations against him,as he chose to deliver a statement, which, in essence, requested that his accuser and her witnesses file
sworn statements so that he would know of the allegations against him, that he be allowed to cross-examine the witnesses;and that the procedure
be done on record and in public.
In other words, Jardeleza was given ample opportunity to be heard and to enlighten each member of the JBC on the issues raised against him prior
to the voting process. His request for a sworn statement and opportunity to cross-examine is not supported by a demandable right. The JBC is not a
fact-finding body. Neitheris it a court nor a quasi-judicial agency. The members are notconcerned with the determination of his guilt or innocence of
the accusations against him. Besides, Sections 3 and 4, Rule 10,JBC-009 are merely directory as shown by the use of the word "may." Even the
conduct of a hearing to determine the veracity of an opposition is discretionary on the JBC. Ordinarily, if there are other ways of ascertaining the truth
or falsity of an allegation or opposition, the JBC would not call a hearing in order to avoid undue delay of the selection process. Each member of the
JBC relies on his or her own appreciation of the circumstances and qualifications of applicants.
The JBC then proceeded to defend adherence to its standing rules. As a general rule, an applicant is included in the shortlist when he or she obtains
an affirmative vote of at least a majority of all the members of the JBC. When Section 2, Rule 10 of JBC-009,however, is invoked because an
applicant’s integrity is challenged, a unanimous vote is required. Thus, when Chief Justice Sereno invoked the saidprovision, Jardeleza needed the
affirmative vote of all the JBC members tobe included in the shortlist. In the process, Chief Justice Sereno’s vote against Jardeleza was not counted.
Even then, he needed the votes of the five(5) remaining members. He only got four (4) affirmative votes. As a result,he was not included in the
shortlist. Applicant Reynaldo B. Daway, who gotfour (4) affirmative votes, was included in the shortlist because his integrity was not challenged. As
to him, the "majority rule" was considered applicable.
Lastly, the JBC rued that Jardeleza sued the respondents in his capacity as Solicitor General. Despiteclaiming a prefatory appearance in propria
persona, all pleadings filed with the Court were signed in his official capacity. In effect, he sued the respondents to pursue a purely private interest
while retaining the office of the Solicitor General. By suing the very parties he was tasked by law to defend, Jardeleza knowingly placed himself in a
situation where his personal interests collided against his public duties, in clear violation of the Code of Professional Responsibility and Code of
Professional Ethics. Moreover, the respondents are all public officials being sued in their official capacity. By retaining his title as Solicitor General,
and suing in the said capacity, Jardeleza filed a suit against his own clients, being the legal defender of the government and its officers. This runs
contrary to the fiduciary relationship sharedby a lawyer and his client.
In opposition to Jardeleza’s prayer for the issuance of a TRO, the JBC called to mind the constitutional period within which a vacancy in the Court
must be filled. As things now stand, the President has until August 20, 2014 to exercise his appointment power which cannot be restrained by a TRO
or an injunctive suit.
Comment of the Executive Secretary
In his Comment, Executive Secretary Paquito N. Ochoa Jr. (Executive Secretary)raised the possible unconstitutionality of Section 2, Rule 10 of JBC-
009, particularly the imposition ofa higher voting threshold in cases where the integrity of an applicant is challenged. It is his position that the subject
JBC rule impairs the body’s collegial character, which essentially operates on the basis of majority rule. The application of Section 2, Rule 10 of JBC-
009 gives rise to a situation where all that a member needs to do, in order to disqualify an applicant who may well have already obtained a majority
vote, is to object to his integrity. In effect, a member who invokes the said provision is given a veto powerthat undermines the equal and full
participation of the other members in the nomination process. A lone objector may then override the will ofthe majority, rendering illusory, the

21
collegial nature of the JBC and the very purpose for which it was created— to shield the appointment process from political maneuvering. Further,
Section 2, Rule 10 of JBC-009 may beviolative of due process for it does not allow an applicant any meaningful opportunity to refute the challenges
to his integrity. While other provisions of the JBC rules provide mechanisms enabling an applicant to comment on an opposition filed against him, the
subject rule does not afford the same opportunity. In this case, Jardeleza’s allegations as to the events which transpired on June 30, 2014 obviously
show that he was neither informed ofthe accusations against him nor given the chance to muster a defense thereto.
The Executive Secretary then offered a supposition: granting that the subject provision is held to be constitutional, the "unanimity rule" would only be
operative when the objector is not a member of the JBC. It is only in this scenario where the voting ofthe body would not be rendered
inconsequential. In the event that a JBC member raised the objection, what should have been applied is the general rule of a majority vote, where
any JBC member retains their respective reservations to an application with a negative vote. Corollary thereto, the unconstitutionality of the said rule
would necessitate the inclusion of Jardeleza in the shortlist submitted to the President.
Other pleadings
On August 12, 2014, Jardeleza was given the chance to refute the allegations of the JBC in its Comment. He submitted his Reply thereto on August
15, 2014. A few hours thereafter, orbarely ten minutes prior to the closing of business, the Court received the Supplemental Comment-Reply of the
JBC, this time with the attached minutes of the proceedings that led to the filing of the petition,and a detailed "Statementof the Chief Justice on the
Integrity Objection."13 Obviously, Jardeleza’s Reply consisted only of his arguments against the JBC’s original Comment, as it was filed prior to the
filing of the Supplemental Comment-Reply.
At the late stage of the case, two motions to admit comments-inintervention/oppositions-in-intervention were filed. One was by Atty. Purificacion S.
Bartolome-Bernabe, purportedly the President of the Integrated Bar of the Philippines-Bulacan Chapter. This pleading echoed the position of the
JBC.14
The other one was filed by Atty. Reynaldo A. Cortes, purportedly a former President of the IBP Baguio-Benguet Chapter and former Governor of the
IBP-Northern Luzon. It was coupled with a complaint for disbarment against Jardeleza primarily for violations of the Code of Professional
Responsibility for representing conflicting interests.15
Both motions for intervention weredenied considering that time was of the essence and their motions were merely reiterative of the positions of the
JBC and were perceived to be dilatory. The complaint for disbarment, however, was re-docketed as a separate administrative case.
The Issues
Amidst a myriad of issues submitted by the parties, most of which are interrelated such that the resolution of one issue would necessarily affect the
conclusion as to the others, the Court opts to narrow down the questions to the very source of the discord - the correct application of Section 2, Rule
10 JBC-009 and its effects, if any, on the substantive rights of applicants.
The Court is not unmindful of the fact that a facial scrutiny of the petition does not directly raise the unconstitutionality of the subject JBC rule.
Instead, it bewails the unconstitutional effects of its application. It is only from the comment of the Executive Secretary where the possible
unconstitutionality of the rulewas brought to the fore. Despite this milieu, a practical approach dictatesthat the Court must confront the source of the
bleeding from which the gaping wound presented to the Court suffers.
The issues for resolution are:
I.
WHETHER OR NOT THE COURT CAN ASSUME JURISDICTION AND GIVE DUECOURSE TO THE SUBJECT PETITION FOR CERTIORARI
AND MANDAMUS (WITH APPLICATION FOR A TEMPORARY RESTRAINING ORDER).
II
WHETHER OR NOT THE ISSUES RAISED AGAINST JARDELEZA BEFIT "QUESTIONS OR CHALLENGES ON INTEGRITY" AS
CONTEMPLATED UNDER SECTION 2, RULE 10 OF JBC-009.
II.
WHETHER OR NOT THE RIGHT TO DUE PROCESS IS AVAILABLE IN THE COURSE OF JBC PROCEEDINGS IN CASES WHERE AN
OBJECTION OR OPPOSITION TO AN APPLICATION IS RAISED.
III.
WHETHER OR NOT PETITIONER JARDELEZA MAY BE INCLUDED IN THE SHORTLIST OF NOMINEES SUBMITTED TO THE PRESIDENT.
The Court’s Ruling
I – Procedural Issue: The Court has constitutional bases to assume jurisdiction over the case
A - The Court’s Power of Supervision over the JBC
Section 8, Article VIII of the 1987 Constitution provides for the creation of the JBC. The Court was given supervisory authority over it. Section 8
reads:
Section 8.
A Judicial and Bar Council is hereby created under the supervision of the Supreme Courtcomposed of the Chief Justice as ex officio Chairman, the
Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private sector. [Emphasis supplied]
As a meaningful guidepost, jurisprudence provides the definition and scope of supervision. It is the power of oversight, or the authority to see that
subordinate officers perform their duties.It ensures that the laws and the rules governing the conduct of a government entity are observed and

22
complied with. Supervising officials see to it that rules are followed, but they themselves do not lay down such rules, nor do they have the discretion
to modify or replace them. If the rules are not observed, they may order the work done or redone, but only to conform to such rules. They may not
prescribe their own manner of execution of the act. They have no discretion on this matter except to see to it that the rules are followed.16
Based on this, the supervisory authority of the Court over the JBC covers the overseeing of compliance with its rules. In this case, Jardeleza’s
principal allegations in his petition merit the exercise of this supervisory authority.
B- Availability of the Remedy of Mandamus
The Court agrees with the JBC that a writ of mandamus is not available. "Mandamuslies to compel the performance, when refused, of a ministerial
duty, but not to compel the performance of a discretionary duty. Mandamuswill not issue to control or review the exercise of discretion of a public
officer where the law imposes upon said public officer the right and duty to exercise his judgment in reference to any matter in which he is required to
act. It is his judgment that is to be exercised and not that of the court.17 There is no question that the JBC’s duty to nominate is discretionary and it
may not becompelled to do something.
C- Availability of the Remedy of Certiorari
Respondent JBC opposed the petition for certiorarion the ground that it does not exercise judicial or quasi-judicial functions. Under Section 1 of Rule
65, a writ of certiorariis directed against a tribunal exercising judicial or quasi-judicial function. "Judicial functions are exercised by a body or officer
clothed with authority to determine what the law is and what the legal rights of the parties are with respect to the matter in controversy. Quasijudicial
function is a term that applies to the action or discretion of public administrative officers or bodies given the authority to investigate facts or ascertain
the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action using discretion of a judicial nature."18 It
asserts that in the performance of its function of recommending appointees for the judiciary, the JBC does not exercise judicial or quasijudicial
functions. Hence, the resort tosuch remedy to question its actions is improper.
In this case, Jardeleza cries that although he earned a qualifying number of votes in the JBC, it was negated by the invocation of the "unanimity rule"
on integrity in violation of his right to due process guaranteed not only by the Constitution but by the Council’s own rules. For said reason, the Court
is of the position that it can exercise the expanded judicial power of review vestedupon it by the 1987 Constitution. Thus:
Article VIII.
Section 1. The judicial power is vested in one Supreme Court and in such lower courts as may be established by law.
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.
It has been judicially settled that a petition for certiorari is a proper remedy to question the act of any branch or instrumentality of the government on
the ground of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch orinstrumentality of the government, even if the
latter does not exercise judicial, quasi-judicial or ministerial functions.19
In a case like this, where constitutional bearings are too blatant to ignore, the Court does not find passivity as an alternative. The impassemust be
overcome.
II – Substantial Issues
Examining the Unanimity Rule of the JBC in cases where an applicant’s integrity is challenged
The purpose of the JBC’s existence is indubitably rooted in the categorical constitutional declaration that"[a] member of the judiciary must be a
person of proven competence, integrity, probity, and independence." To ensure the fulfillment of these standards in every member of the Judiciary,
the JBC has been tasked toscreen aspiring judges and justices, among others, making certain that the nominees submitted to the President are all
qualified and suitably best for appointment. In this way, the appointing process itself is shieldedfrom the possibility of extending judicial appointment
to the undeserving and mediocre and, more importantly, to the ineligible or disqualified.
In the performance of this sacred duty, the JBC itself admits, as stated in the "whereas clauses" of JBC-009, that qualifications such as
"competence, integrity, probity and independence are not easily determinable as they are developed and nurtured through the years." Additionally, "it
is not possible or advisable to lay down iron-clad rules to determine the fitness of those who aspire to become a Justice, Judge, Ombudsman or
Deputy Ombudsman." Given this realistic situation, there is a need "to promote stability and uniformity in JBC’s guiding precepts and principles." A
set of uniform criteria had to be established in the ascertainment of "whether one meets the minimum constitutional qualifications and possesses
qualities of mind and heart expected of him" and his office. Likewise for the sake oftransparency of its proceedings, the JBC had put these criteria in
writing, now in the form of JBC-009. True enough, guidelines have been set inthe determination of competence,"20 "probity and independence,"21
"soundness of physical and mental condition,22 and "integrity."23
As disclosed by the guidelines and lists of recognized evidence of qualification laid down in JBC-009, "integrity" is closely related to, or if not,
approximately equated to an applicant’s good reputation for honesty, incorruptibility, irreproachableconduct, and fidelity to sound moral and ethical
standards. That is why proof of an applicant’s reputation may be shown in certifications or testimonials from reputable government officials and non-
governmental organizations and clearances from the courts, National Bureau of Investigation, and the police, among others. In fact, the JBC may
even conduct a discreet background check and receive feedback from the public on the integrity, reputation and character of the applicant, the merits
of which shall be verifiedand checked. As a qualification, the term is taken to refer to a virtue, such that, "integrity is the quality of person’s
character."24

23
The foregoing premise then begets the question: Does Rule 2, Section 10 of JBC-009, in imposing the "unanimity rule," contemplate a doubt on the
moral character of an applicant? Section 2, Rule 10 of JBC-009 provides:
SEC. 2. Votes required when integrity of a qualified applicant is challenged. - In every case where the integrity of an applicant who is not otherwise
disqualified for nomination is raised or challenged, the affirmative vote of all the Members of the Council must be obtained for the favorable
consideration of his nomination.
A simple reading of the above provision undoubtedly elicits the rule that a higher voting requirement is absolute in cases where the integrity of an
applicant is questioned. Simply put, when an integrity question arises, the voting requirement for his or her inclusion as a nominee to a judicial post
becomes "unanimous" instead of the "majority vote" required in the preceding section.25 Considering that JBC-009 employs the term "integrity" as
an essential qualification for appointment, and its doubtful existence in a person merits a higher hurdle to surpass, that is, the unanimous vote of all
the members of the JBC, the Court is of the safe conclusion that "integrity" as used in the rules must be interpreted uniformly. Hence, Section 2, Rule
10 of JBC-009 envisions only a situation where an applicant’s moral fitness is challenged. It follows then that the "unanimity rule" only comes into
operation when the moral character of a person is put in issue. It finds no application where the question is essentially unrelated to an applicant’s
moral uprightness.
Examining the "questions of integrity" made against Jardeleza
The Court will now examine the propriety of applying Section 2, Rule 10 of JBC-009 to Jardeleza’s case.
The minutes of the JBC meetings, attached to the Supplemental Comment-Reply, reveal that during the June 30, 2014 meeting, not only the
question on his actuations in the handling of a case was called for explanation by the Chief Justice, but two other grounds as well tending to show
his lack of integrity: a supposed extra-marital affair in the past and alleged acts of insider trading.26
Against this factual backdrop, the Court notes that the initial or original invocation of Section 2, Rule 10 of JBC-009 was grounded on Jardeleza’s
"inability to discharge the duties of his office" as shown in a legal memorandum related to Jardeleza’s manner of representing the government in a
legal dispute. The records bear that the "unanimity rule" was initially invoked by Chief Justice Sereno during the JBC meeting held on June 5, 2014,
where she expressed her position that Jardeleza did not possess the integrity required tobe a member of the Court.27 In the same meeting, the
Chief Justice shared withthe other JBC members the details of Jardeleza’s chosen manner of framing the government’s position in a case and how
this could have been detrimental to the national interest.
In the JBC’s original comment, the details of the Chief Justice’s claim against Jardeleza’s integrity were couched in general terms. The particulars
thereof were only supplied to the Court in the JBC’s Supplemental Comment-Reply. Apparently, the JBC acceded to Jardeleza’s demand to make
the accusations against him public. At the outset, the JBC declined to raise the fine points of the integrity question in its original Comment due to its
significant bearing on the country’s foreign relations and national security. At any rate, the Court restrains itself from delving into the details thereof in
this disposition. The confidential nature of the document cited therein, which requires the observance of utmost prudence, preclude a discussion that
may possibly affect the country’s position in a pending dispute.
Be that as it may, the Court has to resolve the standing questions: Does the original invocation of Section 2, Rule 10 of JBC-009 involve a question
on Jardeleza’s integrity? Doeshis adoption of a specific legal strategy in the handling of a case bring forth a relevant and logical challenge against his
moral character? Does the "unanimity rule" apply in cases where the main point of contention is the professional judgment sans charges or
implications of immoral or corrupt behavior?
The Court answers these questions in the negative.
While Chief Justice Sereno claims that the invocation of Section 2, Rule 10 of JBC-009 was not borne out ofa mere variance of legal opinion but by
an "act of disloyalty" committed by Jardeleza in the handling of a case, the fact remains that the basis for her invocation of the rule was the
"disagreement" in legal strategy as expressed by a group of international lawyers. The approach taken by Jardeleza in that case was opposed to that
preferred by the legal team. For said reason, criticism was hurled against his "integrity." The invocation of the "unanimity rule" on integrity traces its
roots to the exercise ofhis discretion as a lawyer and nothing else. No connection was established linking his choice of a legal strategy to a
treacherous intent to trounce upon the country’s interests or to betray the Constitution.
Verily, disagreement in legal opinion is but a normal, if not an essential form of, interaction among members of the legal community. A lawyer has
complete discretion on whatlegal strategy to employ in a case entrusted to him28 provided that he lives up tohis duty to serve his client with
competence and diligence, and that he exert his best efforts to protect the interests of his client within the bounds of the law. Consonantly, a lawyer
is not an insurer of victory for clients he represents. An infallible grasp of legal principles and technique by a lawyer is a utopian ideal. Stripped of a
clear showing of gross neglect, iniquity, or immoral purpose, a strategy of a legal mind remains a legal tactic acceptable to some and deplorable to
others. It has no direct bearing on his moral choices.
As shown in the minutes, the other JBC members expressed their reservations on whether the ground invoked by Chief Justice Sereno could be
classified as a "question of integrity" under Section 2, Rule 10 of JBC-009.29 These reservations were evidently sourced from the factthat there was
no clear indication that the tactic was a "brainchild" of Jardeleza, as it might have been a collective idea by the legal team which initially sought a
different manner of presenting the country’s arguments, and there was no showing either of a corrupt purpose on his part.30 Even Chief Justice
Sereno was not certain that Jardeleza’s acts were urged by politicking or lured by extraneous promises.31 Besides, the President, who has the final
say on the conduct of the country’s advocacy in the case, has given no signs that Jardeleza’s action constituted disloyalty or a betrayal of the
country’s trust and interest. While this point does notentail that only the President may challenge Jardeleza’s doubtful integrity, itis commonsensical

24
to assume that he is in the best position to suspect a treacherous agenda. The records are bereft of any information that indicatesthis suspicion. In
fact, the Comment of the Executive Secretary expressly prayed for Jardeleza’s inclusion in the disputed shortlist.
The Court notes the zeal shown by the Chief Justice regarding international cases, given her participation in the PIATCO case and the Belgian
Dredging case. Her efforts inthe determination of Jardeleza’s professional background, while commendable, have not produced a patent
demonstration of a connection betweenthe act complained of and his integrity as a person. Nonetheless, the Court cannot consider her invocation of
Section 2, Rule 10 of JBC-009 as conformably within the contemplation of the rule. To fall under Section 2, Rule 10 of JBC-009, there must be a
showing that the act complained of is, at the least, linked to the moral character of the person and not to his judgment as a professional. What this
disposition perceives, therefore, is the inapplicability of Section 2, Rule 10 of JBC-009 to the original ground of its invocation.
As previously mentioned, Chief Justice Sereno raised the issues of Jardeleza’s alleged extra-marital affair and acts of insider-trading for the first time
onlyduring the June 30, 2014 meeting of the JBC. As can be gleaned from the minutes of the June 30, 2014 meeting, the inclusion of these issues
had its origin from newspaper reports that the Chief Justice might raise issues of "immorality" against Jardeleza.32 The Chief Justice then deduced
that the "immorality" issue referred to by the media might have been the incidents that could have transpired when Jardeleza was still the General
Counsel of San Miguel Corporation. She stated that inasmuch as the JBC had the duty to "take every possible step to verify the qualification of the
applicants," it might as well be clarified.33
Do these issues fall within the purview of "questions on integrity" under Section 2, Rule 10 of JBC-009? The Court nods in assent. These are valid
issues.
This acquiescence is consistent with the Court’s discussion supra. Unlike the first ground which centered onJardeleza’s stance on the tactical
approach in pursuing the case for the government, the claims of an illicit relationship and acts of insider trading bear a candid relation to his moral
character. Jurisprudence34 is replete with cases where a lawyer’s deliberate participation in extra-marital affairs was considered as a disgraceful
stain on one’s ethical and moral principles. The bottom line is that a lawyer who engages in extra-marital affairs is deemed to have failed to adhere to
the exacting standards of morality and decency which every member of the Judiciary is expected to observe. In fact, even relationships which have
never gone physical or intimate could still be subject to charges of immorality, when a lawyer, who is married, admits to having a relationship which
was more than professional, more than acquaintanceship, more than friendly.35 As the Court has held: Immorality has not been confined to sexual
matters, but includes conduct inconsistentwith rectitude, or indicative of corruption, indecency, depravity and dissoluteness; or is willful, flagrant, or
shameless conduct showing moral indifference to opinions of respectable members of the communityand an inconsiderate attitude toward good
order and public welfare.36 Moral character is not a subjective term but one that corresponds to objective reality.37 To have a good moral character,
a person must have the personal characteristic ofbeing good. It is not enough that he or she has a good reputation, that is, the opinion generally
entertained about a person or the estimate in which he or she is held by the public in the place where she is known.38 Hence, lawyers are at all
times subject to the watchful public eye and community approbation.39
The element of "willingness" to linger in indelicate relationships imputes a weakness in one’s values, self-control and on the whole, sense of honor,
not only because it is a bold disregard of the sanctity of marriage and of the law, but because it erodes the public’s confidence in the Judiciary. This
is no longer a matter of an honest lapse in judgment but a dissolute exhibition of disrespect toward sacredvows taken before God and the law.
On the other hand, insider trading is an offense that assaults the integrity of our vital securities market.40 Manipulative devices and deceptive
practices, including insider trading, throw a monkey wrench right into the heart of the securities industry. Whensomeone trades inthe market with
unfair advantage in the form of highly valuable secret inside information, all other participants are defrauded. All of the mechanisms become
worthless. Given enough of stock marketscandals coupled with the related loss of faith in the market, such abuses could presage a severe drain of
capital. And investors would eventuallyfeel more secure with their money invested elsewhere.41 In its barest essence, insider trading involves the
trading of securities based on knowledge of material information not disclosed to the public at the time. Clearly, an allegation of insider trading
involves the propensity of a person toengage in fraudulent activities that may speak of his moral character.
These two issues can be properly categorized as "questions on integrity" under Section 2, Rule 10 of JBC-009. They fall within the ambit of
"questions on integrity." Hence, the "unanimity rule" may come into operation as the subject provision is worded.
The Availability of Due Process in the
Proceedings of the JBC
In advocacy of his position, Jardeleza argues that: 1] he should have been informed of the accusations against him in writing; 2] he was not
furnished the basis of the accusations, that is, "a very confidential legal memorandum that clarifies the integrityobjection"; 3] instead of heeding his
request for an opportunity to defend himself, the JBC considered his refusal to explain, during the June 30, 2014 meeting, as a waiver of his right to
answer the unspecified allegations; 4] the voting of the JBC was railroaded; and 5] the alleged "discretionary" nature of Sections 3 and 4 of JBC-009
is negated by the subsequent effectivity of JBC-010, Section 1(2) of which provides for a 10-day period from the publication of the list of candidates
within which any complaint or opposition against a candidate may be filed with the JBC Secretary; 6] Section 2 of JBC-010 requires complaints and
oppositions to be in writing and under oath, copies of which shall be furnished the candidate in order for him to file his comment within five (5) days
from receipt thereof; and 7] Sections 3 to 6 of JBC-010 prescribe a logical, reasonable and sequential series of steps in securing a candidate’s right
to due process.
The JBC counters these by insisting that it is not obliged to afford Jardeleza the right to a hearing in the fulfillment of its duty to recommend. The
JBC, as a body, is not required by law to hold hearings on the qualifications of the nominees. The process by which an objection is made based on
Section 2, Rule 10 of JBC-009 is not judicial, quasi-judicial, or fact-finding, for it does not aim to determine guilt or innocence akin to a criminal or

25
administrative offense but toascertain the fitness of an applicant vis-à-vis the requirements for the position. Being sui generis, the proceedings of the
JBC do not confer the rights insisted upon by Jardeleza. He may not exact the application of rules of procedure which are, at the most, discretionary
or optional. Finally, Jardeleza refused to shed light on the objections against him. During the June 30, 2014 meeting, he did not address the issues,
but instead chose totread on his view that the Chief Justice had unjustifiably become his accuser, prosecutor and judge.
The crux of the issue is on the availability of the right to due process in JBC proceedings. After a tedious review of the parties’ respective arguments,
the Court concludes that the right to due process is available and thereby demandable asa matter of right.
The Court does not brush aside the unique and special nature of JBC proceedings. Indeed, they are distinct from criminal proceedings where the
finding of guilt or innocence of the accused is sine qua non. The JBC’s constitutional duty to recommend qualified nominees to the President cannot
be compared to the duty of the courts of law to determine the commission of an offense and ascribe the same to an accused, consistent with
established rules on evidence. Even the quantum ofevidence required in criminal cases is far from the discretion accorded to the JBC.
The Court, however, could not accept, lock, stock and barrel, the argument that an applicant’s access tothe rights afforded under the due process
clause is discretionary on the part of the JBC. While the facets of criminal42 and administrative43 due process are not strictly applicable to JBC
proceedings, their peculiarity is insufficient to justify the conclusion that due process is not demandable.
In JBC proceedings, an aspiring judge or justice justifies his qualifications for the office when he presents proof of his scholastic records, work
experience and laudable citations. His goal is to establish that he is qualified for the office applied for. The JBC then takes every possible step to
verify an applicant's trackrecord for the purpose ofdetermining whether or not he is qualified for nomination. It ascertains the factors which entitle an
applicant to become a part of the roster from which the President appoints.
The fact that a proceeding is sui generisand is impressed with discretion, however, does not automatically denigrate an applicant’s entitlement to due
process. It is well-established in jurisprudence that disciplinary proceedings against lawyers are sui generisin that they are neither purely civil nor
purely criminal; they involve investigations by the Court into the conduct of one of its officers, not the trial of an action or a suit.44 Hence, in the
exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to accountfor his actuations as an officer of the Court with the
end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members
who, by their misconduct, have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an
attorney. In such posture, there can be no occasion to speak of a complainant or a prosecutor.45 On the whole, disciplinary proceedings are actually
aimed to verifyand finally determine, if a lawyer charged is still qualifiedto benefit from the rights and privileges that membership in the legal
profession evoke.
Notwithstanding being "a class of itsown," the right to be heard and to explain one’s self is availing. The Court subscribes to the view that in cases
where an objection to an applicant’s qualifications is raised, the observance of due process neither negates nor renders illusory the fulfillment of the
duty of JBC torecommend. This holding is not an encroachment on its discretion in the nomination process. Actually, its adherence to the precepts of
due process supports and enriches the exercise of its discretion. When an applicant, who vehemently denies the truth of the objections, is afforded
the chance to protest, the JBC is presented with a clearer understanding of the situation it faces, thereby guarding the body from making an unsound
and capriciousassessment of information brought before it. The JBC is not expected to strictly apply the rules of evidence in its assessment of an
objection against an applicant. Just the same, to hear the side of the person challenged complies with the dictates of fairness for the only test that an
exercise of discretion must surmount is that of soundness.
A more pragmatic take on the matter of due process in JBC proceedings also compels the Court to examine its current rules. The pleadings of the
parties mentioned two: 1] JBC-009 and 2] JBC-010. The former provides the following provisions pertinent to this case:
SECTION 1. Evidence of integrity. - The Council shall take every possible step to verify the applicant's record of and reputation for honesty, integrity,
incorruptibility, irreproachable conduct, and fidelity to sound moral and ethical standards. For this purpose, the applicant shall submit to the Council
certifications or testimonials thereof from reputable government officials and non-governmental organizations, and clearances from the courts,
National Bureau of Investigation, police, and from such other agencies as the Council may require.
SECTION 2. Background check. - The Council mayorder a discreet background check on the integrity, reputation and character of the applicant, and
receive feedback thereon from the public, which it shall check or verify to validate the merits thereof.
SECTION 3. Testimony of parties.- The Council may receive written opposition to an applicant on groundof his moral fitness and, at its discretion, the
Council mayreceive the testimony of the oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be allowed to
cross-examine the oppositor and to offer countervailing evidence.
SECTION 4. Anonymous complaints. - Anonymous complaints against an applicant shall not begiven due course, unless there appears on its face a
probable cause sufficient to engender belief that the allegations may be true. In the latter case, the Council may either direct a discreet investigation
or require the applicant to comment thereon in writing or during the interview. [Emphases Supplied]
While the "unanimity rule" invoked against him is found in JBC-009, Jardeleza urges the Court to hold that the subsequent rule, JBC-010,46 squarely
applies to his case. Entitled asa "Rule to Further Promote Public Awareness of and Accessibility to the Proceedings of the Judicial and Bar Council,"
JBC-010 recognizes the needfor transparency and public awareness of JBC proceedings. In pursuance thereof, JBC-010 was crafted in this wise:
SECTION 1. The Judicial and Bar Council shall deliberate to determine who of the candidates meet prima facie the qualifications for the
positionunder consideration. For this purpose, it shall prepare a long list of candidates who prima facieappear to have all the qualifications.
The Secretary of the Council shall then cause to be published in two (2) newspapers of general circulation a notice of the long list of candidates in
alphabetical order.

26
The notice shall inform the public that any complaint or opposition against a candidate may be filed with the Secretary within ten (10) days thereof.
SECTION 2.The complaint or opposition shall be in writing, under oath and in ten (10) legible copies, together with its supporting annexes. It shall
strictly relate to the qualifications of the candidate or lack thereof, as provided for in the Constitution, statutes, and the Rules of the Judicial and Bar
Council, as well as resolutions or regulations promulgated by it.
The Secretary of the Council shallfurnish the candidate a copy of the complaint or opposition against him. The candidate shall have five (5) days
from receipt thereof within which to file his comment to the complaint or opposition, if he so desires.
SECTION 3.The Judicial and Bar Council shall fix a date when it shall meet in executive session to consider the qualification of the long list of
candidates and the complaint or opposition against them, if any. The Council may, on its own, conduct a discreet investigation of the background of
the candidates.
On the basis of its evaluationof the qualification of the candidates, the Council shall prepare the shorter list of candidates whom it desires to interview
for its further consideration.
SECTION 4.The Secretary of the Council shall again cause to be published the dates of the interview of candidates in the shorter list in two (2)
newspapers of general circulation. It shall likewise be posted in the websites of the Supreme Court and the Judicial and Bar Council.
The candidates, as well as their oppositors, shall be separately notified of the dateand place of the interview.
SECTION 5.The interviews shall be conducted in public. During the interview, only the members ofthe Council can ask questions to the candidate.
Among other things, the candidate can be made to explain the complaint or opposition against him.
SECTION 6. After the interviews, the Judicial and Bar Council shall again meet in executive session for the final deliberation on the short list of
candidates which shall be sent to the Office of the President as a basis for the exercise of the Presidential power of appointment. [Emphases
supplied]
Anent the interpretation of these existing rules, the JBC contends that Sections 3 and 4, Rule 10 of JBC-009 are merely directory in nature as can be
gleaned from the use of the word "may." Thus, the conduct of a hearing under Rule 4 of JBC-009 is permissive and/or discretionary on the part of the
JBC. Even the conduct of a hearing to determine the veracity of an opposition is discretionary for there are ways, besides a hearing, to ascertain the
truth or falsity of allegations. Succinctly, this argument suggests that the JBC has the discretion to hold or not to hold a hearing when an objection to
an applicant’s integrity is raised and that it may resort to other means to accomplish its objective. Nevertheless, JBC adds, "what is mandatory,
however, is that if the JBC, in its discretion, receives a testimony of an oppositor in a hearing, due notice shall be given to the applicant and that shall
be allowed to cross-examine the oppositor."47 Again, the Court neither intends to strip the JBC of its discretion to recommend nominees nor
proposes thatthe JBC conduct a full-blown trial when objections to an application are submitted. Still, it is unsound to say that, all together, the
observance of due process is a part of JBC’s discretion when an opposition to an application is made of record. While it may so rely on "other
means" such as character clearances, testimonials, and discreet investigation to aid it in forming a judgment of an applicant’s qualifications, the
Court cannot accept a situation where JBC is given a full rein on the application of a fundamental right whenever a person’s integrity is put to
question. In such cases, an attack on the person of the applicant necessitates his right to explain himself.
The JBC’s own rules convince the Court to arrive at this conclusion. The subsequent issuance of JBC-010 unmistakably projects the JBC’s
deference to the grave import of the right of the applicant to be informed and corollary thereto, the right to be heard. The provisions of JBC-010, per
se, provide that: any complaint or opposition against a candidate may be filed with the Secretary within ten (10) days thereof; the complaint or
opposition shall be in writing, under oath and in ten (10) legible copies; the Secretary of the Council shall furnish the candidate a copy of the
complaint or opposition against him; the candidate shall have five (5) days from receipt thereof within which to file his comment to the complaint or
opposition, if he so desires; and the candidate can be made to explain the complaint or opposition against him.
The Court may not close its eyes to the existence of JBC-010 which, under the rules of statutory construction,bears great weight in that: 1] it covers
"any" complaint or opposition; 2] it employs the mandatory term, "shall"; and 3] most importantly, it speaks of the very essence of due process. While
JBC-010 does not articulate a procedure that entails a trialtype hearing, it affords an applicant, who faces "any complaint or opposition," the right to
answer the accusations against him. This constitutes the minimum requirements of due process.
Application to Jardeleza’s Case
Nearing the ultimate conclusion of this case, the Court is behooved to rule on whether Jardeleza was deprived of his right to due process in the
events leading up to, and during, the vote on the shortlist last June 30, 2014.
The JBC gives great weight and substance to the fact that it gave Jardeleza the opportunity to answer the allegations against him. It underscores the
fact that Jardeleza was asked to attend the June 30, 2014 meeting so that he could shed light on the issues thrown at him. During the said meeting,
Chief Justice Sereno informed him that in connection with his candidacy for the position of Associate Justice of the Supreme Court, the Council
would like to propound questions on the following issues raised against him: 1] his actuations in handling an international arbitration case not
compatible with public interest;48 2] reports on his extra-marital affair in SMC; and 3] alleged insider trading which led to the "show cause" order
from the Philippine Stock Exchange.49
As Jardeleza himself admitted, he declined to answer or to explain his side, as he would not want to be "lulled into waiving his rights." Instead, he
manifested that his statement be put on record and informed the Council of the then pendency of his letter-petition with the Court en banc. When
Chief Justice Sereno informed Jardeleza that the Council would want to hear from him on the three (3) issues against him,Jardeleza reasoned out
that this was precisely the issue. He found it irregular that he was not being given the opportunity to be heard per the JBC rules.He asserted that a
candidate must be given the opportunity to respond to the charges against him. He urged the Chief Justice to step down from her pedestal and

27
translate the objections in writing. Towards the end of the meeting, the Chief Justice said that both Jardeleza’s written and oral statements would be
made part of the record. After Jardeleza was excused from the conference, Justice Lagman suggested that the voting be deferred, but the Chief
Justice ruled that the Council had already completed the process required for the voting to proceed.
After careful calibration of the case, the Court has reached the determination that the application of the "unanimity rule" on integrity resulted in
Jardeleza’s deprivation of his right to due process.
As threshed out beforehand, due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. Due
process is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself.50 Even as Jardeleza
was verbally informed of the invocation of Section 2, Rule 10 of JBC-009 against him and was later asked to explain himself during the meeting,
these circumstances still cannot expunge an immense perplexity that lingers in the mind of the Court. What is to become of the procedure laid down
in JBC-010 if the same would be treated with indifference and disregard? To repeat, as its wording provides, any complaint or opposition against a
candidate may be filed with the Secretary withinten (10) days from the publication of the notice and a list of candidates. Surely, this notice is all the
more conspicuous to JBC members. Granting ex argumenti, that the 10-day period51 is only applicable to the public, excluding the JBC members
themselves, this does not discount the fact that the invocation of the first ground in the June 5, 2014 meeting would have raised procedural issues.
To be fair, several members of the Council expressed their concern and desire to hear out Jardeleza but the application of JBC-010 did not form part
of the agenda then. It was only during the next meeting on June 16, 2014, that the Council agreed to invite Jardeleza, by telephone, to a meeting
that would be held on the same day when a resource person would shed light on the matter.
Assuming again that the classified nature of the ground impelled the Council to resort to oral notice instead of furnishing Jardeleza a written
opposition, why did the JBC not take into account its authority to summon Jardeleza in confidence at an earlier time? Is not the Council empowered
to "take every possible step to verify the qualification of the applicants?" It would not be amiss to state, at this point, that the confidential legal
memorandum used in the invocation ofthe "unanimity rule" was actually addressed to Jardeleza, in his capacity as Solicitor General. Safe to assume
is his knowledge of the privileged nature thereof and the consequences of its indiscriminate release to the public. Had he been privately informed of
the allegations against him based on the document and had he been ordered to respond thereto in the same manner, Jardeleza’s right to be
informed and to explain himself would have been satisfied.
What precisely set off the protest of lack of due process was the circumstance of requiring Jardeleza to appear before the Council and to
instantaneously provide those who are willing to listen an intelligent defense. Was he given the opportunity to do so? The answer is yes, in the
context of his physical presence during the meeting. Was he given a reasonable chance to muster a defense? No, because he was merely asked to
appear in a meeting where he would be, right then and there, subjected to an inquiry. It would all be too well to remember that the allegations of his
extra-marital affair and acts of insider trading sprung up only during the June 30, 2014 meeting. While the said issues became the object of the JBC
discussion on June 16, 2014, Jardeleza was not given the idea that he should prepare to affirm or deny his past behavior. These circumstances
preclude the very idea of due process in which the right to explain oneself is given, not to ensnare by surprise, but toprovide the person a reasonable
opportunity and sufficient time to intelligently muster his response. Otherwise, the occasion becomes anidle and futile exercise.
Needless to state, Jardeleza’s grievance is not an imagined slight but a real rebuff of his right to be informed of the charges against him and his right
to answer the same with vigorouscontention and active participation in the proceedings which would ultimately decide his aspiration to become a
magistrate of this Court.
Consequences
To write finisto this controversy and in view of the realistic and practical fruition of the Court’s findings, the Court now declares its position on whether
or not Jardeleza may be included in the shortlist, just in time when the period to appoint a member of the Court is about to end.
The conclusion of the Court is hinged on the following pivotal points:
1. There was a misapplication of the "unanimity rule" under Section 2, Rule 10 of JBC-009 as to Jardeleza’s legal strategy in handling a case for the
government.
2. While Jardeleza’s alleged extra-marital affair and acts of insider trading fall within the contemplation of a "question on integrity" and would have
warranted the application of the "unanimity rule," he was notafforded due process in its application.
3. The JBC, as the sole body empowered to evaluate applications for judicial posts, exercises full discretion on its power to recommend nomineesto
the President. The sui generischaracter of JBC proceedings, however, is not a blanket authority to disregard the due process under JBC-010.
4. Jardeleza was deprived of his right to due process when, contrary to the JBC rules, he was neither formally informed of the questions on his
integrity nor was provided a reasonable opportunity to prepare his defense.
With the foregoing, the Court is compelled to rule that Jardeleza should have been included in the shortlist submitted to the President for the vacated
position of Associate Justice Abad. This consequence arose not from the unconstitutionality of Section 2, Rule 10 of JBC-009, per se, but from the
violation by the JBC of its own rules of procedure and the basic tenets of due process. By no means does the Court intend to strike down the
"unanimity rule" as it reflects the JBC’s policy and, therefore, wisdom in its selection of nominees. Even so, the Court refuses to turn a blind eye on
the palpable defects in its implementation and the ensuing treatment that Jardeleza received before the Council. True, Jardeleza has no vested right
to a nomination, but this does not prescind from the fact that the JBC failed to observe the minimum requirements of due process.
In criminal and administrative cases, the violation of a party’s right to due process raises a serious jurisdictional issue which cannot be glossed over
or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for
lack of jurisdiction.52 This rule may well be applied to the current situation for an opposing view submits to an undue relaxation of the Bill of Rights.

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To this, the Court shall not concede. Asthe branch of government tasked to guarantee that the protection of due process is available to an individual
in proper cases, the Court finds the subject shortlist as tainted with a vice that it is assigned to guard against. Indeed, the invocation of Section 2,
Rule 10 of JBC-009 must be deemed to have never come into operation in light of its erroneous application on the original ground against
Jardeleza’s integrity. At the risk of being repetitive, the Court upholds the JBC’s discretion in the selection of nominees, but its application of the
"unanimity rule" must be applied in conjunction with Section 2, Rule 10 of JBC-010 being invoked by Jardeleza. Having been able to secure four (4)
out of six (6) votes, the only conclusion left to propound is that a majority of the members of the JBC, nonetheless, found Jardeleza to be qualified for
the position of Associate Justice and this grants him a rightful spot in the shortlist submitted to the President. Need to Revisit JBC’s
Internal Rules
In the Court’s study of the petition,the comments and the applicable rules of the JBC, the Court is of the view that the rules leave much to be desired
and should be reviewed and revised. It appears that the provision on the "unanimity rule" is vagueand unfair and, therefore, can be misused or
abused resulting in the deprivation of an applicant’s right to due process.
Primarily, the invocation of the "unanimity rule" on integrity is effectively a veto power over the collective will of a majority. This should be clarified.
Any assertion by a member aftervoting seems to be unfair because it effectively gives him or her a veto power over the collective votes of the other
members in view of the unanimous requirement. While an oppositor-member can recuse himself orherself, still the probability of annulling the
majority vote ofthe Council is quite high.
Second, integrity as a ground has not been defined. While the initial impression is that it refers to the moral fiber of a candidate, it can be, as it has
been, used to mean other things. Infact, the minutes of the JBC meetings n this case reflect the lack of consensus among the members as to its
precise definition. Not having been defined or described, it is vague, nebulous and confusing. It must be distinctly specified and delineated.
Third, it should explicitly provide who can invoke it as a ground against a candidate. Should it be invoked only by an outsider as construed by the
respondent Executive Secretary or also by a member?
Fourth, while the JBC vetting proceedings is "sui generis" and need not be formal or trial type, they must meet the minimum requirements of due
process. As always, an applicant should be given a reasonable opportunity and time to be heard on the charges against him or her, if there are any.
At any rate, it is up to the JBC to fine-tune the rules considering the peculiar nature of its function. It need not be stressed that the rules to be
adopted should be fair, reasonable, unambiguous and consistent with the minimum requirements of due process.
One final note.
The Court disclaims that Jardeleza's inclusion in the shortlist is an endorsement of his appointment as a member of the Court.1âwphi1 In deference
to the Constitution and his wisdom in the exercise of his appointing power, the President remains the ultimate judge of a candidate's worthiness.
WHEREFORE, the petition is GRANTED. Accordingly, it is hereby declared that Solicitor General Francis I-I. Jardeleza is deemed INCLUDED in the
shortlist submitted to the President for consideration as an Associate Justice of the Supreme Court vice Associate Justice Roberto A. Abad.
The Court further DIRECTS that the Judicial and Bar Council REVIEW, and ADOPT, rules relevant to the observance of due process in its
proceedings, particularly JBC-009 and JBC-010, subject to the approval of the Court.
This Decision is immediately EXECUTORY. Immediately notify the Office of the President of this Decision.
SO ORDERED.

G.R. No. 203302 April 11, 2013

MAYOR EMMANUEL L. MALIKSI, Petitioner,
vs.
COMMISSION ON ELECTIONS AND HOMER T. SAQUILAVAN, Respondents.
RESOLUTION
BERSAMIN, J.:
The Court hereby resolves the Extremely Urgent Motion for Reconsideration tiled by petitioner Emmanuel L. Maliksi against the Court's decision
promulgated on March 12, 2013, dismissing his petition for certiorari assailing the resolution dated September 14, 2012 of the Commission on
Elections (COMELEC) En Bane that sustained the declaration of respondent Homer T. Saquilayan as the duly elected Mayor of Imus, Cavite.
For clarity, we briefly restate the factual antecedents.
During the 2010 Elections, the Municipal Board of Canvassers proclaimed Saquilayan the winner for the position of Mayor of Imus, Cavite. Maliksi,
the candidate who garnered the second highest number of votes, brought an election protest in the Regional Trial Court (RTC) in Imus, Cavite
alleging that there were irregularities in the counting of votes in 209 clustered precincts. Subsequently, the RTC held a revision of the votes, and,
based on the results of the revision, declared Maliksi as the duly elected Mayor of Imus commanding Saquilayan to cease and desist from
performing the functions of said office. Saquilayan appealed to the COMELEC. In the meanwhile, the RTC granted Maliksi’s motion for execution
pending appeal, and Maliksi was then installed as Mayor.
In resolving the appeal, the COMELEC First Division, without giving notice to the parties, decided to recount the ballots through the use of the
printouts of the ballot images from the CF cards. Thus, it issued an order dated March 28, 2012 requiring Saquilayan to deposit the amount
necessary to defray the expenses for the decryption and printing of the ballot images. Later, it issued another order dated April 17, 2012 for
Saquilayan to augment his cash deposit.
On August 15, 2012, the First Division issued a resolution nullifying the RTC’s decision and declaring Saquilayan as the duly elected Mayor.1

29
Maliksi filed a motion for reconsideration, alleging that he had been denied his right to due process because he had not been notified of the
decryption proceedings. He argued that the resort to the printouts of the ballot images, which were secondary evidence, had been unwarranted
because there was no proof that the integrity of the paper ballots had not been preserved.
On September 14, 2012, the COMELEC En Banc resolved to deny Maliksi’s motion for reconsideration.2
Maliksi then came to the Court via petition for certiorari, reiterating his objections to the decryption, printing, and examination of the ballot images
without prior notice to him, and to the use of the printouts of the ballot images in the recount proceedings conducted by the First Division.1âwphi1
In the decision promulgated on March 12, 2013, the Court, by a vote of 8-7, dismissed Maliksi’s petition for certiorari. The Court concluded that
Maliksi had not been denied due process because: (a) he had received notices of the decryption, printing, and examination of the ballot images by
the First Division — referring to the orders of the First Division directing Saquilayan to post and augment the cash deposits for the decryption and
printing of the ballot images; and (b) he had been able to raise his objections to the decryption in his motion for reconsideration. The Court then
pronounced that the First Division did not abuse its discretion in deciding to use the ballot images instead of the paper ballots, explaining that the
printouts of the ballot images were not secondary images, but considered original documents with the same evidentiary value as the official ballots
under the Rule on Electronic Evidence; and that the First Division’s finding that the ballots and the ballot boxes had been tampered had been fully
established by the large number of cases of double-shading discovered during the revision.
In his Extremely Urgent Motion for Reconsideration, Maliksi raises the following arguments, to wit:
I.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED IN DISMISSING THE INSTANT PETITION
DESPITE A CLEAR VIOLATION OF PETITIONER’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW CONSIDERING THAT
DECRYPTION, PRINTING AND EXAMINATION OF THE DIGITAL IMAGES OF THE BALLOTS, WHICH IS THE BASIS FOR THE ASSAILED 14
SEPTEMBER 2012 RESOLUTION OF THE PUBLIC RESPONDENT, WHICH IN TURN AFFIRMED THE 15 AUGUST 2012 RESOLUTION OF THE
COMELEC FIRST DIVISION, WERE DONE INCONSPICUOUSLY UPON A MOTU PROPRIO DIRECTIVE OF THE COMELEC FIRST DIVISION
SANS ANY NOTICE TO THE PETITIONER, AND FOR THE FIRST TIME ON APPEAL.
II.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED IN UPHOLDING THE COMELEC FIRST
DIVISION’S RULING TO DISPENSE WITH THE PHYSICAL BALLOTS AND RESORT TO THEIR DIGITAL IMAGES NOTWITHSTANDING THE
FACT THAT THE BALLOTS ARE THE BEST AND MOST CONCLUSIVE EVIDENCE OF THE VOTERS’ WILL, AND THAT BALLOT IMAGES CAN
BE RESORTED TO ONLY IF THE OFFICIAL BALLOTS ARE LOST OR THEIR INTEGRITY WAS COMPROMISED AS DETERMINED BY THE
RECOUNT/REVISION COMMITTEE, CIRCUMSTANCES WHICH ARE WANTING IN THIS CASE, AND IN FACT THE INTEGRITY OF THE
BALLOT BOXES AND ITS CONTENTS WAS PRESERVED AND THE ISSUE OF TAMPERING WAS ONLY BELATEDLY RAISED BY THE
PRIVATE RESPONDENT AFTER THE REVISION RESULTS SHOWED THAT HE LOST.
III.
WITH ALL DUE RESPECT, IT IS THE HUMBLE SUBMISSION OF THE PETITIONER-MOVANT THAT THE 12 MARCH 2013 RESOLUTION
ISSUED BY THE HONORABLE SUPREME COURT EN BANC IS NULL AND VOID AB INITIO AND THEREFORE OF NO FORCE AND EFFECT,
FOR HAVING BEEN PROMULGATED DESPITE THE ABSENCE OF HONORABLE SUPREME COURT JUSTICE JOSE PORTUGAL PEREZ AT
THE TIME OF THE DELIBERATION AND VOTING ON THE 12 MARCH 2013 RESOLUTION IN THE INSTANT CASE.3
Maliksi insists: (a) that he had the right to be notified of every incident of the proceedings and to be present at every stage thereof; (b) that he was
deprived of such rights when he was not informed of the decryption, printing, and examination of the ballot images by the First Division; (c) that the
March 28, 2012 and April 17, 2012 orders of the First Division did not sufficiently give him notice inasmuch as the orders did not state the date, time,
and venue of the decryption and printing of the ballot images; and (d) that he was thus completely deprived of the opportunity to participate in the
decryption proceedings.
Maliksi contends that the First Division’s motu proprio directive for the decryption, printing, and examination of the ballot images was highly irregular.
In this regard, he asserts: (a) that the decryption, printing, and examination should have taken place during the revision before the trial court and
after the revision committee had determined that the integrity of the official ballots had not been preserved; (b) that the trial court did not make such
determination; (c) that, in fact, Saquilayan did not allege or present any proof in the RTC to show that the ballots or the ballot boxes had been
tampered, and had, in fact, actively participated in the revision proceedings; (d) that the First Division should not have entertained the allegation of
ballot tampering belatedly raised on appeal; (e) that the First Division should have limited itself to reviewing the evidence on record; and (f) that the
First Division did not even explain how it had arrived at the conclusion that the integrity of the ballots had not been preserved.
Maliksi submits that the decision promulgated on March 12, 2013 is null and void for having been promulgated despite the absence from the
deliberations and lack of signature of Justice Jose Portugal Perez.
Ruling
The Court grants Maliksi’s Extremely Urgent Motion for Reconsideration, and reverses the decision promulgated on March 12, 2013 on the ground
that the First Division of the COMELEC denied to him the right to due process by failing to give due notice on the decryption and printing of the ballot
images. Consequently, the Court annuls the recount proceedings conducted by the First Division with the use of the printouts of the ballot images.
It bears stressing at the outset that the First Division should not have conducted the assailed recount proceedings because it was then exercising
appellate jurisdiction as to which no existing rule of procedure allowed it to conduct a recount in the first instance. The recount proceedings

30
authorized under Section 6, Rule 15 of COMELEC Resolution No. 8804, as amended, are to be conducted by the COMELEC Divisions only in the
exercise of their exclusive original jurisdiction over all election protests involving elective regional (the autonomous regions), provincial and city
officials.4
As we see it, the First Division arbitrarily arrogated unto itself the conduct of the recount proceedings, contrary to the regular procedure of remanding
the protest to the RTC and directing the reconstitution of the Revision Committee for the decryption and printing of the picture images and the
revision of the ballots on the basis thereof. Quite unexpectedly, the COMELEC En Banc upheld the First Division’s unwarranted deviation from the
standard procedures by invoking the COMELEC’s power to "take such measures as the Presiding Commissioner may deem proper," and even citing
the Court’s minute resolution in Alliance of Barangay Concerns (ABC) Party-List v. Commission on Elections5 to the effect that the "COMELEC has
the power to adopt procedures that will ensure the speedy resolution of its cases. The Court will not interfere with its exercise of this prerogative so
long as the parties are amply heard on their opposing claims."
Based on the pronouncement in Alliance of Barangay Concerns (ABC) v. Commission on Elections, the power of the COMELEC to adopt
procedures that will ensure the speedy resolution of its cases should still be exercised only after giving to all the parties the opportunity to be heard
on their opposing claims. The parties’ right to be heard upon adversarial issues and matters is never to be waived or sacrificed, or to be treated so
lightly because of the possibility of the substantial prejudice to be thereby caused to the parties, or to any of them. Thus, the COMELEC En Banc
should not have upheld the First Division’s deviation from the regular procedure in the guise of speedily resolving the election protest, in view of its
failure to provide the parties with notice of its proceedings and an opportunity to be heard, the most basic requirements of due process.
I.
Due process requirements
The picture images of the ballots are electronic documents that are regarded as the equivalents of the original official ballots themselves.6 In
Vinzons-Chato v. House of Representatives Electoral Tribunal,7 the Court held that "the picture images of the ballots, as scanned and recorded by
the PCOS, are likewise ‘official ballots’ that faithfully capture in electronic form the votes cast by the voter, as defined by Section 2(3) of R.A. No.
9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of
revision of votes in an electoral protest."
That the two documents—the official ballot and its picture image—are considered "original documents" simply means that both of them are given
equal probative weight. In short, when either is presented as evidence, one is not considered as weightier than the other.
But this juridical reality does not authorize the courts, the COMELEC, and the Electoral Tribunals to quickly and unilaterally resort to the printouts of
the picture images of the ballots in the proceedings had before them without notice to the parties. Despite the equal probative weight accorded to the
official ballots and the printouts of their picture images, the rules for the revision of ballots adopted for their respective proceedings still consider the
official ballots to be the primary or best evidence of the voters’ will. In that regard, the picture images of the ballots are to be used only when it is first
shown that the official ballots are lost or their integrity has been compromised.
For instance, the aforesaid Section 6, Rule 15 of COMELEC Resolution No. 8804 (In Re: Comelec Rules of Procedure on Disputes In An Automated
Election System in Connection with the May 10, 2010 Elections), as amended by COMELEC Resolution No. 9164, itself requires that "the Recount
Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and otherwise in such a condition that
(the ballots) cannot be recounted" before the printing of the image of the ballots should be made, to wit:
xxxx
(g) Only when the Recount Committee, through its chairman, determines that the integrity of the ballots has been preserved or that no signs of
tampering of the ballots are present, will the recount proceed. In case there are signs that the ballots contained therein are tampered, compromised,
wet or are otherwise in such a condition that it could not be recounted, the Recount Committee shall follow paragraph (l) of this rule.
xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and
otherwise in such a condition that it cannot be recounted, the Chairman of the Committee shall request from the Election Records and Statistics
Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in the May 10, 2010 elections in the
presence of the parties. Printing of the ballot images shall proceed only upon prior authentication and certification by a duly authorized personnel of
the Election Records and Statistics Department (ERSD) that the data or the images to be printed are genuine and not substitutes. (Emphases
supplied.)
xxxx
Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for Municipal Election Contests, which governs the proceedings in the
Regional Trial Courts exercising original jurisdiction over election protests, provides:
xxxx
(m) In the event that the revision committee determines that the integrity of the ballots and the ballot box have not been preserved, as when proof of
tampering or substitution exists, it shall proceed to instruct the printing of the picture image of the ballots stored in the data storage device for the
precinct. The court shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or
image stored is genuine and not a substitute. Only after this determination can the printed picture image be used for the recount. (Emphases
supplied.)
xxxx

31
A similar procedure is found in the 2010 Rules of the Presidential Electoral Tribunal, to wit:
Rule 43. Conduct of the revision. – The revision of votes shall be done through the use of appropriate PCOS machines or manually and visually, as
the Tribunal may determine, and according to the following procedures:
xxxx
(q) In the event that the RC determines that the integrity of the ballots and the ballot box was not preserved, as when there is proof of tampering or
substitution, it shall proceed to instruct the printing of the picture image of the ballots of the subject precinct stored in the data storage device for the
same precinct. The Tribunal may avail itself of the assistance of the COMELEC for the service of a non-partisan technical person who shall conduct
the necessary authentication process to ensure that the data or images stored are genuine and not merely substitutes. It is only upon such
determination that the printed picture image can be used for the revision of votes. (Emphases supplied.)
xxxx
Also, the House of Representative Electoral Tribunal’s Guidelines on the Revision of Ballots requires a preliminary hearing to be held for the purpose
of determining whether the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of
tampering or substitutions, to wit:
Section 10. Revision of Ballots
xxxx
(d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that the integrity of the ballots and ballot boxes used in the
May 10, 2010 elections was not preserved, as when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture
images of the ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal shall provide a non-partisan
technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. It is
only upon such determination that the printed picture image can be used for the revision. (As amended per Resolution of February 10, 2011;
Emphases supplied.)
xxxx
All the foregoing rules on revision of ballots stipulate that the printing of the picture images of the ballots may be resorted to only after the proper
Revision/Recount Committee has first determined that the integrity of the ballots and the ballot boxes was not preserved.
The foregoing rules further require that the decryption of the images stored in the CF cards and the printing of the decrypted images take place
during the revision or recount proceedings. There is a good reason for thus fixing where and by whom the decryption and the printing should be
conducted. It is during the revision or recount conducted by the Revision/Recount Committee when the parties are allowed to be represented, with
their representatives witnessing the proceedings and timely raising their objections in the course of the proceedings. Moreover, whenever the
Revision/Recount Committee makes any determination that the ballots have been tampered and have become unreliable, the parties are
immediately made aware of such determination.
When, as in the present case, it was not the Revision/Recount Committee or the RTC exercising original jurisdiction over the protest that made the
finding that the ballots had been tampered, but the First Division in the exercise of its appellate jurisdiction, the parties should have been given a
formal notice thereof.
Maliksi was not immediately made aware of that crucial finding because the First Division did not even issue any written resolution stating its reasons
for ordering the printing of the picture images. The parties were formally notified that the First Division had found that the ballots had been tampered
only when they received the resolution of August 15, 2012, whereby the First Division nullified the decision of the RTC and declared Saquilayan as
the duly elected Mayor. Even so, the resolution of the First Division to that effect was unusually mute about the factual bases for the finding of ballot
box tampering, and did not also particularize how and why the First Division was concluding that the integrity of the ballots had been compromised.
All that the First Division declared as justification was a simple generalization of the same being apparent from the allegations of ballot and ballot box
tampering and upon inspection of the ballot boxes, viz:
xxxx
The Commission (First Division) took into consideration the allegations of ballot and ballot box tampering and upon inspecting the ballot boxes, it is
apparent that the integrity of the ballots had been compromised so, to be able to best determine the true will of the electorate, we decided to go over
the digital image of the appealed ballots.8 (Emphasis supplied)
xxxx
It was the COMELEC En Banc’s assailed resolution of September 14, 2012 that later on provided the explanation to justify the First Division’s resort
to the picture images of the ballots, by observing that the "unprecedented number of double-votes" exclusively affecting the position of Mayor and
the votes for Saquilayan had led to the belief that the ballots had been tampered. However, that explanation by the COMELEC En Banc did not cure
the First Division’s lapse and did not erase the irregularity that had already invalidated the First Division’s proceedings.
In his dissenting opinion, Justice Antonio T. Carpio advances the view that the COMELEC’s finding of ballot tampering was a mere surplusage
because there was actually no need for such finding before the ballots’ digital counterparts could be used. He cites Section 3, Rule 16 of COMELEC
Resolution No. 8804, as amended by Resolution No. 9164, which states:
Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may file a motion to be approved by the Division of the
Commission requesting for the printing of ballot images in addition to those mentioned in the second paragraph of item (e). Parties concerned shall
provide the necessary materials in the printing of images such as but not limited to copying papers, toners and printers. Parties may also secure,

32
upon prior approval by the Division of the Commission, a soft copy of the ballot images contained in a secured/hashed disc on the condition that the
ballot images be first printed, at the expense of the requesting party, and that the printed copies be signed by the parties’ respective revisors or
representatives and by an ERSD IT-capable representative and deposited with the Commission.
The Over-all chairman shall coordinate with the Director IV, Election Records and Statistics Department (ERSD), for the printing of images. Said
director shall in turn designate a personnel who will be responsible in the printing of ballot images.
Justice Carpio posits that when a party files a motion for the printing of the ballots that he or she deems necessary, there is actually no need for a
finding of tampering of the ballots or the ballot boxes before the COMELEC Division may grant the motion. He states that a determination by the
parties that the printing is necessary under Section 3 is a ground separate from Section 6(e), which in turn pertinently states that:
Section 6. Conduct of the Recount –
xxxx
(e) Before the opening of the ballot box, the Recount Committee shall note its condition as well as that of the locks or locking mechanism and record
the condition in the recount report. From its observation, the Recount Committee must also make a determination as to whether the integrity of the
ballot box has been preserved.
In the event that there are signs of tampering or if the ballot box appears to have been compromised, the Recount Committee shall still proceed to
open the ballot box and make a physical inventory of the contents thereof. The committee shall, however, record its general observation of the
ballots and other documents found in the ballot box.
The application of Section 3 to this case is inappropriate, considering that the First Division did not in any way suggest in its decision dated August
15, 2010 that it was resolving Saquilayan’s motion to print the ballot images. Instead, the First Division made therein a finding of tampering, thus:
The COMELEC (First Division) took into consideration the allegations of ballot and ballot box tampering and upon inspecting the ballot boxes, it is
apparent that the integrity of the ballots had been compromised so, to be able to best determine the true will of the electorate, we decided to go over
the digital images of the appealed ballots.
Even the COMELEC En Banc did not indicate in its decision dated September 14, 2012 that the First Division merely resolved Saquilayan’s motion
for the printing of the ballot images; instead, it reinforced the First Division’s finding that there was tampering of the ballots. The non-mention of
Saquilayan’s motion was a clear indication of the COMELEC’s intention to act motu proprio; and also revealed its interpretation of its very own rules,
that there must be justifiable reason, i.e. tampering, before the ballot images could be resorted to.
The application of Section 3 would only highlight the First Division’s denial of Maliksi’s right to due process. For, if the First Division was really only
acting on a motion to allow the printing of the ballot images, there was a greater reason for the First Division to have given the parties notice of its
ruling thereon. But, as herein noted, the First Division did not issue such ruling.
To interpret Section 3 as granting to any one of the parties the right to move for the printing of the ballot images should such party deem it
necessary, and the COMELEC may grant such motion, is contrary to its clear wording. Section 3 explicitly states: "in case the parties deem it
necessary, they may file a motion." The provision really envisions a situation in which both parties have agreed that the ballot images should be
printed. Should only one of the parties move for the printing of the ballot images, it is not Section 3 that applies but Section 6(e), which then requires
a finding that the integrity of the ballots has been compromised.
The disregard of Maliksi’s right to be informed of the decision to print the picture images of the ballots and to conduct the recount proceedings during
the appellate stage cannot be brushed aside by the invocation of the fact that Maliksi was able to file, after all, a motion for reconsideration. To be
exact, the motion for reconsideration was actually directed against the entire resolution of the First Division, while Maliksi’s claim of due process
violation is directed only against the First Division’s recount proceedings that resulted in the prejudicial result rendered against him. Notably, the First
Division did not issue any order directing the recount. Without the written order, Maliksi was deprived of the chance to seek any reconsideration or
even to assail the irregularly-held recount through a seasonable petition for certiorari in this Court. In that context, he had no real opportunity to
assail the conduct of the recount proceedings.
The service of the First Division orders requiring Saquilayan to post and augment the cash deposits for the printing of the picture images did not
sufficiently give Maliksi notice of the First Division’s decision to print the picture images. The said orders did not meet the requirements of due
process because they did not specifically inform Maliksi that the ballots had been found to be tampered. Nor did the orders offer the factual bases for
the finding of tampering. Hence, to leave for Maliksi to surmise on the factual bases for finding the need to print the picture images still violated the
principles of fair play, because the responsibility and the obligation to lay down the factual bases and to inform Maliksi as the party to be potentially
prejudiced thereby firmly rested on the shoulders of the First Division.
Moreover, due process of law does not only require notice of the decryption, printing, and recount proceedings to the parties, but also demands an
opportunity to be present at such proceedings or to be represented therein. Maliksi correctly contends that the orders of the First Division simply
required Saquilayan to post and augment his cash deposit. The orders did not state the time, date, and venue of the decryption and recount
proceedings. Clearly, the First Division had no intention of giving the parties the opportunity to witness its proceedings.
Mendoza v. Commission on Elections9 instructs that notice to the parties and their participation are required during the adversarial aspects of the
proceedings. In that case, after the revision of the ballots and after the election protest case was submitted for decision, the ballots and ballot boxes
were transferred to the Senate Electoral Tribunal (SET) in connection with a protest case pending in the SET. Mendoza later learned that the
COMELEC, with the permission of the SET, had meanwhile conducted proceedings within the SET’s premises. Mendoza then claimed that his right

33
to due process was violated because he had not been given notice by the COMELEC that it would be conducting further proceedings within the SET
premises. The Court did not sustain his claim, however, and pointed out:
After consideration of the respondents’ Comments and the petitioner’s petition and Reply, we hold that the contested proceedings at the SET
("contested proceedings") are no longer part of the adversarial aspects of the election contest that would require notice of hearing and the
participation of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim in the petitioner’s Reply:
"However, contrary to the claim of petitioner, public respondent in the appreciation of the contested ballots in EPC No. 2007-44 simultaneously with
the SET in SET Case No. 001-07 is not conducting "further proceedings" requiring notice to the parties. There is no revision or correction of the
ballots because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating with the SET, is simply resolving the
submitted protest case before it. The parties necessarily take no part in said deliberation, which require utmost secrecy. Needless to state, the actual
decision-making process is supposed to be conducted only by the designated members of the Second Division of the public respondent in strict
confidentiality."
In other words, what took place at the SET were the internal deliberations of the COMELEC, as a quasi-judicial body, in the course of appreciating
the evidence presented and deciding the provincial election contest on the merits. These deliberations are no different from judicial deliberations
which are considered confidential and privileged. We find it significant that the private respondent’s Comment fully supported the COMELEC’s
position and disavowed any participation in the contested proceeding the petitioner complained about. The petitioner, on the other hand, has not
shown that the private respondent was ever present in any proceeding at the SET relating to the provincial election contest.1âwphi1
To conclude, the rights to notice and to be heard are not material considerations in the COMELEC’s handling of the Bulacan provincial election
contest after the transfer of the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET
that would require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is under no legal obligation to notify
either party of the steps it is taking in the course of deliberating on the merits of the provincial election contest. In the context of our standard of
review for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation
on the Bulacan election contest and the appreciation of ballots this deliberation entailed.10 (Emphasis supplied.)
Here, the First Division denominated the proceedings it had conducted as an "appreciation of ballots" like in Mendoza. But unlike in Mendoza, the
proceedings conducted by the First Division were adversarial, in that the proceedings included the decryption and printing of the picture images of
the ballots and the recount of the votes were to be based on the printouts of the picture images. The First Division did not simply review the findings
of the RTC and the Revision Committee, but actually conducted its own recount proceedings using the printouts of the picture image of the ballots.
As such, the First Division was bound to notify the parties to enable them to participate in the proceedings.
Significantly, Section 6(l), Rule 15 of COMELEC Resolution No, 8804, as amended by COMELEC Resolution No. 9164, requires the parties’
presence during the printing of the images of the ballots, thus:
xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and
otherwise in such a condition that it cannot be recounted, the Chairman of the Committee shall request from the Election Records and Statistics
Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in the May 10, 2010 elections in the
presence of the parties. Printing of the ballot images shall proceed only upon prior authentication and certification by a duly authorized personnel of
the Election Records and Statistics Department (ERSD) that the data or the images to be printed are genuine and not substitutes.
xxxx
We should not ignore that the parties’ participation during the revision and recount proceedings would not benefit only the parties, but was as vital
and significant for the COMELEC as well, for only by their participation would the COMELEC’s proceedings attain credibility as to the result. The
parties’ presence would have ensured that the requisite procedures have been followed, including the required authentication and certification that
the images to be printed are genuine. In this regard, the COMELEC was less than candid, and was even cavalier in its conduct of the decryption and
printing of the picture images of the ballots and the recount proceedings. The COMELEC was merely content with listing the guidelines that the First
Division had followed in the appreciation of the ballots and the results of the recount. In short, there was vagueness as to what rule had been
followed in the decryption and printing proceeding.
II.
Remand to the COMELEC
We are mindful of the urgent need to speedily resolve the election protest because the term of the position involved is about to end. Thus, we
overlook pro hac vice the lack of factual basis for the COMELEC’s decision to use the digital images of the ballots and sustain its decision thereon.
Although a remand of the election protest to the RTC would have been the appropriate procedure, we direct the COMELEC En Banc instead to
conduct the decryption and printing of the digital images of the ballots and to hold recount proceedings, with due notice to all the parties and
opportunity for them to be present and to participate during such proceedings. Nothing less serves the ideal objective safeguarded by the
Constitution.
In the absence of particular rules to govern its proceedings in accordance with this disposition, the COMELEC is urged to follow and observe Rule 15
of COMELEC Resolution No. 8804, as amended by COMELEC Resolution No. 9164.

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The Court, by this resolution, does not intend to validate the victory of any of the parties in the 2010 Elections. That is not the concern of the Court as
yet. The Court simply does not want to countenance a denial of the fundamental right to due process, a cornerstone of our legal system.11 After all,
it is the Court’s primary duty to protect the basic rights of the people vis-à-vis government actions, thus:
It cannot be denied that most government actions are inspired with noble intentions, all geared towards the betterment of the nation and its people.
But then again, it is important to remember this ethical principle: "The end does not justify the means." No matter how noble and worthy of admiration
the purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still
be allowed. The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined principles.12
WHEREFORE, the Court PARTIALLY GRANTS the Extremely Urgent Motion for Reconsideration of petitioner Emmanuel Maliksi; REVERSES the
Court's decision promulgated on March 12, 2013; and DIRECTS the Commission on Elections En Bane to conduct proceedings for the decryption of
the picture images of the ballots involved in the protest after due authentication, and for the recount of ballots by using the printouts of the ballot
images, with notice to and in the presence of the parties or their representatives in accordance with the procedure laid down by Rule 15 of
COMELEC Resolution No. 8804, as amended by Resolution No. 9164.
No pronouncement on costs of suit.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-34915 June 24, 1983
CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY, petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon City, Branch XVIII; HIMLAYANG PILIPINO, INC.,
respondents.
City Fiscal for petitioners.
Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the Court of First Instance of Rizal, Branch XVIII declaring Section 9 of
Ordinance No. 6118, S-64, of the Quezon City Council null and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF
PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES
FOR THE VIOLATION THEREOF" provides:
Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall be set aside for charity burial of deceased persons who are
paupers and have been residents of Quezon City for at least 5 years prior to their death, to be determined by competent City Authorities. The area

35
so designated shall immediately be developed and should be open for operation not later than six months from the date of approval of the
application.
For several years, the aforequoted section of the Ordinance was not enforced by city authorities but seven years after the enactment of the
ordinance, the Quezon City Council passed the following resolution:
RESOLVED by the council of Quezon assembled, to request, as it does hereby request the City Engineer, Quezon City, to stop any further selling
and/or transaction of memorial park lots in Quezon City where the owners thereof have failed to donate the required 6% space intended for paupers
burial.
Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S-64
would be enforced
Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch XVIII at Quezon City, a petition for declaratory relief,
prohibition and mandamus with preliminary injunction (Sp. Proc. No. Q-16002) seeking to annul Section 9 of the Ordinance in question The
respondent alleged that the same is contrary to the Constitution, the Quezon City Charter, the Local Autonomy Act, and the Revised Administrative
Code.
There being no issue of fact and the questions raised being purely legal both petitioners and respondent agreed to the rendition of a judgment on the
pleadings. The respondent court, therefore, rendered the decision declaring Section 9 of Ordinance No. 6118, S-64 null and void.
A motion for reconsideration having been denied, the City Government and City Council filed the instant petition.
Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of police power and that the land is taken for a public
use as it is intended for the burial ground of paupers. They further argue that the Quezon City Council is authorized under its charter, in the exercise
of local police power, " to make such further ordinances and resolutions not repugnant to law as may be necessary to carry into effect and discharge
the powers and duties conferred by this Act and such as it shall deem necessary and proper to provide for the health and safety, promote the
prosperity, improve the morals, peace, good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property
therein."
On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of property is obvious because the questioned
ordinance permanently restricts the use of the property such that it cannot be used for any reasonable purpose and deprives the owner of all
beneficial use of his property.
The respondent also stresses that the general welfare clause is not available as a source of power for the taking of the property in this case because
it refers to "the power of promoting the public welfare by restraining and regulating the use of liberty and property." The respondent points out that if
an owner is deprived of his property outright under the State's police power, the property is generally not taken for public use but is urgently and
summarily destroyed in order to promote the general welfare. The respondent cites the case of a nuisance per se or the destruction of a house to
prevent the spread of a conflagration.
We find the stand of the private respondent as well as the decision of the respondent Judge to be well-founded. We quote with approval the lower
court's ruling which declared null and void Section 9 of the questioned city ordinance:
The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power?
An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision that would justify the ordinance in question except
the provision granting police power to the City. Section 9 cannot be justified under the power granted to Quezon City to tax, fix the license fee, and
regulate such other business, trades, and occupation as may be established or practised in the City.' (Subsections 'C', Sec. 12, R.A. 537).
The power to regulate does not include the power to prohibit (People vs. Esguerra, 81 PhiL 33, Vega vs. Municipal Board of Iloilo, L-6765, May 12,
1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to regulate does not include the power to confiscate. The ordinance in question not only
confiscates but also prohibits the operation of a memorial park cemetery, because under Section 13 of said ordinance, 'Violation of the provision
thereof is punishable with a fine and/or imprisonment and that upon conviction thereof the permit to operate and maintain a private cemetery shall be
revoked or cancelled.' The confiscatory clause and the penal provision in effect deter one from operating a memorial park cemetery. Neither can the
ordinance in question be justified under sub- section "t", Section 12 of Republic Act 537 which authorizes the City Council to-
'prohibit the burial of the dead within the center of population of the city and provide for their burial in such proper place and in such manner as the
council may determine, subject to the provisions of the general law regulating burial grounds and cemeteries and governing funerals and disposal of
the dead.' (Sub-sec. (t), Sec. 12, Rep. Act No. 537).
There is nothing in the above provision which authorizes confiscation or as euphemistically termed by the respondents, 'donation'
We now come to the question whether or not Section 9 of the ordinance in question is a valid exercise of police power. The police power of Quezon
City is defined in sub-section 00, Sec. 12, Rep. Act 537 which reads as follows:
(00) To make such further ordinance and regulations not repugnant to law as may be necessary to carry into effect and discharge the powers and
duties conferred by this act and such as it shall deem necessary and proper to provide for the health and safety, promote, the prosperity, improve the
morals, peace, good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein; and enforce
obedience thereto with such lawful fines or penalties as the City Council may prescribe under the provisions of subsection (jj) of this section.
We start the discussion with a restatement of certain basic principles. Occupying the forefront in the bill of rights is the provision which states that 'no
person shall be deprived of life, liberty or property without due process of law' (Art. Ill, Section 1 subparagraph 1, Constitution).

36
On the other hand, there are three inherent powers of government by which the state interferes with the property rights, namely-. (1) police power,
(2) eminent domain, (3) taxation. These are said to exist independently of the Constitution as necessary attributes of sovereignty.
Police power is defined by Freund as 'the power of promoting the public welfare by restraining and regulating the use of liberty and property' (Quoted
in Political Law by Tanada and Carreon, V-11, p. 50). It is usually exerted in order to merely regulate the use and enjoyment of property of the owner.
If he is deprived of his property outright, it is not taken for public use but rather to destroy in order to promote the general welfare. In police power,
the owner does not recover from the government for injury sustained in consequence thereof (12 C.J. 623). It has been said that police power is the
most essential of government powers, at times the most insistent, and always one of the least limitable of the powers of government (Ruby vs.
Provincial Board, 39 PhiL 660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power embraces the whole system of public regulation (U.S. vs.
Linsuya Fan, 10 PhiL 104). The Supreme Court has said that police power is so far-reaching in scope that it has almost become impossible to limit
its sweep. As it derives its existence from the very existence of the state itself, it does not need to be expressed or defined in its scope. Being
coextensive with self-preservation and survival itself, it is the most positive and active of all governmental processes, the most essential insistent and
illimitable Especially it is so under the modern democratic framework where the demands of society and nations have multiplied to almost
unimaginable proportions. The field and scope of police power have become almost boundless, just as the fields of public interest and public welfare
have become almost all embracing and have transcended human foresight. Since the Courts cannot foresee the needs and demands of public
interest and welfare, they cannot delimit beforehand the extent or scope of the police power by which and through which the state seeks to attain or
achieve public interest and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).
The police power being the most active power of the government and the due process clause being the broadest station on governmental power, the
conflict between this power of government and the due process clause of the Constitution is oftentimes inevitable.
It will be seen from the foregoing authorities that police power is usually exercised in the form of mere regulation or restriction in the use of liberty or
property for the promotion of the general welfare. It does not involve the taking or confiscation of property with the exception of a few cases where
there is a necessity to confiscate private property in order to destroy it for the purpose of protecting the peace and order and of promoting the
general welfare as for instance, the confiscation of an illegally possessed article, such as opium and firearms.
It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere police regulation but an outright confiscation.
It deprives a person of his private property without due process of law, nay, even without compensation.
In sustaining the decision of the respondent court, we are not unmindful of the heavy burden shouldered by whoever challenges the validity of duly
enacted legislation whether national or local As early as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250) that the courts resolve every
presumption in favor of validity and, more so, where the ma corporation asserts that the ordinance was enacted to promote the common good and
general welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of Manila (20 SCRA 849) the Court speaking through
the then Associate Justice and now Chief Justice Enrique M. Fernando stated
Primarily what calls for a reversal of such a decision is the a of any evidence to offset the presumption of validity that attaches to a statute or
ordinance. As was expressed categorically by Justice Malcolm 'The presumption is all in favor of validity. ... The action of the elected representatives
of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular ...
municipality and with all the facts and lances which surround the subject and necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are essential to the well-being of the people. ... The Judiciary should not lightly set aside
legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation. (U.S. v. Salaveria (1918], 39
Phil. 102, at p. 111. There was an affirmation of the presumption of validity of municipal ordinance as announced in the leading Salaveria decision in
Ebona v. Daet, [1950]85 Phil. 369.)
We have likewise considered the principles earlier stated in Case v. Board of Health supra :
... Under the provisions of municipal charters which are known as the general welfare clauses, a city, by virtue of its police power, may adopt
ordinances to the peace, safety, health, morals and the best and highest interests of the municipality. It is a well-settled principle, growing out of the
nature of well-ordered and society, that every holder of property, however absolute and may be his title, holds it under the implied liability that his use
of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the
community. An property in the state is held subject to its general regulations, which are necessary to the common good and general welfare. Rights
of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from
being injurious, and to such reasonable restraints and regulations, established by law, as the legislature, under the governing and controlling power
vested in them by the constitution, may think necessary and expedient. The state, under the police power, is possessed with plenary power to deal
with all matters relating to the general health, morals, and safety of the people, so long as it does not contravene any positive inhibition of the organic
law and providing that such power is not exercised in such a manner as to justify the interference of the courts to prevent positive wrong and
oppression.
but find them not applicable to the facts of this case.
There is no reasonable relation between the setting aside of at least six (6) percent of the total area of an private cemeteries for charity burial
grounds of deceased paupers and the promotion of health, morals, good order, safety, or the general welfare of the people. The ordinance is actually
a taking without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of
building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries.

37
The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of Republic Act 537, the Revised Charter
of Quezon City which empowers the city council to prohibit the burial of the dead within the center of population of the city and to provide for their
burial in a proper place subject to the provisions of general law regulating burial grounds and cemeteries. When the Local Government Code, Batas
Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial of the dead in such place and in such
manner as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or to buy or expropriate private properties
to construct public cemeteries. This has been the law and practise in the past. It continues to the present. Expropriation, however, requires payment
of just compensation. The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set aside certain areas for
streets, parks, playgrounds, and other public facilities from the land they sell to buyers of subdivision lots. The necessities of public safety, health,
and convenience are very clear from said requirements which are intended to insure the development of communities with salubrious and
wholesome environments. The beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when individual lots are sold to
home-owners.
As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal corporation, not on any express
provision of law as statutory basis of their exercise of power. The clause has always received broad and liberal interpretation but we cannot stretch it
to cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated. received necessary
licenses and permits and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as having been
impliedly acknowledged by the private respondent when it accepted the permits to commence operations.
WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is affirmed.
SO ORDERED.

38