The Rome Statute of the International Criminal Court (the Rome Statute or the Statute)

entered into force on 1 July 2002, with the satisfaction of Article 126 of the Statute. 1
Up until 24 September 2004, 139 States have signed the Statute and 97 States have
become the Parties. Under such circumstances, China, as one of the permanent members of
the Security Council of the United Nations and a non-party State playing a great role in
international affairs, needs to acquire a better understanding and also makes a detailed
study on the Statute. One of the most unique characters of the International Criminal Court
(the ICC or the Court)as reflected in the principle of complentaritywill be discussed and
analysed in the following essay.
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I.The meaning and the roles of the principle of complementarity
Paragraph 10 of the preamble of the Rome Statute emphasizes that the International
Criminal Court established under this Statute shall be complementary to national criminal
jurisdictions; and Article 1 of the Rome Statue provides An International Criminal Court is
hereby established. It shall be a permanent institution and shall have the power to exercise
its jurisdiction over persons for the most serious crimes of international concern, as referred
to in this Statute, and shall be complementary to national criminal jurisdictions. The
jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
As the ICC was established through an international treatythe Rome Statuteand most of
the countries in the world involved in its drafting, the Court, on the one hand, has
jurisdiction over the core crimes of international concern and, on the other, its power is
limited by complementarity, i.e. the national jurisdiction comes first and ICC's jurisdiction
second. In the preamble of the Statute, the States Parties declare that they wish to establish
a permanent court to put an end to impunity for the perpetrators of these crimes and thus
to contribute to the prevention of such crimes2 and to ensure their effective prosecution by
taking measures at the national level and by enhancing international cooperation 3 and that
the permanent court shall be complementary to national criminal jurisdictions 4 in case trial
procedures may not be available or may be ineffective. Thus, the basic idea for the
complementarity is to maintain State sovereignty, under which it is the duty of every State
to exercise its criminal jurisdiction over those responsible for international crimes, 5 to
enhance the national jurisdiction over the core crimes prohibited in the Statute, and to
perfect a national legal system so as to meet the needs of investigating and prosecuting
persons who committed the international crimes listed in the Statute. Since the international
criminal institutions and national courts have concurrent jurisdiction over the most serious
crimes in violation of international criminal law and humanitarian law, there inevitably will be
conflicts between the two jurisdictions. However, no such conflicts would occur in the case of
the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International
Criminal Tribunal for Rwanda (ICTR), as the establishment of the two Tribunals is a measure
taken by the Security Council of the UN. The Statutes of the two Tribunals provide that the
International Tribunal shall have primacy over national courts. 6Whereas the principle of
complementary provided in the Rome Statute means that national courts have the priority to
exercise jurisdiction over the crimes prohibited in the Statute, i.e. the ICC cannot exercise its
jurisdiction over the crimes unless the State concerned is unable or unwilling to investigate
or prosecute the crimes.7
There are four scenarios in accordance with Article 17(1) in which the ICC cannot admit a
case: (a) the case is being investigated or prosecuted by a State which has jurisdiction over
it; (b) the case has been investigated by a State which has jurisdiction over it and the State
has decided not to prosecute the person concerned (in these two cases, the ICC has to
preclude the possibility that the State is unwilling or unable genuinely to carry out the
investigation or prosecution before it can admit the case); (c) the person concerned has
already been tried for conduct which is the subject of the complaint (the principle of ne bis
in idem); and (d) the case is not of sufficient gravity to justify further action by the Court.
Thus, the key consideration for the Court to admit a case is whether a State is unable or

unwilling to investigate or prosecute a case. The criteria for inability are clearly provided in
Article 17(3) in a more objective way:In order to determine inability in a particular case, the
Court shall consider whether, due to a total or substantial collapse or unavailability of its
national judicial system, the State is unable to obtain the accused or the necessary evidence
and testimony or otherwise unable to carry out its proceedings.The situation of inability does
not only refer to the situation of national armed conflicts running for years or natural
disasters causing the total or substantial collapse of its national judicial system, e.g. the
chaos and war on the territory of the former Yugoslavia and of Rwanda during the 1990s, but
also to that in which the national judicial systems have totally or substantially collapsed or
are unavailable so that States are unable to carry out criminal proceedings. The inability in
the latter case may refer to the lack of substantive law or the existing legislation that does
not meet the standards of the recognized international human rights.
There are three types of unwillingness mentioned in Article 17. The first is that the
proceedings were or are being undertaken or the national decision was made for the
purpose of shielding the person concerned from criminal responsibility for crimes within the
jurisdiction of the Court. When determining whether a State is unwilling, the ICC will mainly
make a judgment on the intention of a State behind its trial procedure or decision-making.
The second is that there has been an unjustified delay in the proceedings which in the
circumstances is inconsistent with an intent to bring the person concerned to justice.
However, the Statute does not give a definition on what an unjustified delay is but leaves it
to the ICC to make a decision. The third is that the proceedings were not or are not being
conducted independently or impartially, and they were or are being conducted in a manner
which, in the circumstances, is inconsistent with an intent to bring the person concerned to
justice. This is because the Rome Statute requires all the States concerned, including nonparty States, to follow the human rights standards and proceedings provided in the Statute,
including the presumption of innocent, non-retroactivity ratione personae, ne bis in idem,
the rights to have public hearings, choose lawyers at the accused's free will and obtain legal
assistance free of charge, and the rights to be informed, examine the witness, remain silent,
not to be compelled to self-incrimination, etc.
One of the most important roles of the principle of complementarity is to encourage the
State Party to implement the provisions of the Statute, strengthening the national
jurisdiction over those serious crimes listed in the Statute. So long as the legal system of a
State can efficiently investigate and prosecute the serious crimes prohibited in the Statute,
the sovereignty of the State will remain unaffected, free of any interference by the ICC. But if
a State is unwilling or unable to investigate or prosecute a case, the ICC will invoke the
principle of complementarity to admit any case concerned and exercise jurisdiction over it.
Therefore, the principle of complementarity has impact on a State's implementation of
international substantive criminal law, as well as on its exercise of jurisdiction in many
aspects. First, a State Party should adopt legislation according to the requirement of
complementarity so as to allow its national courts to have jurisdiction over the crimes
prohibited by the Statute. Generally speaking, if a State is preparing to ratify the Statute, it
should examine its national legal system first, curing the defects of the system so that it is
applicable to the international crimes prohibited in the Statute. In other words, in order to
guarantee its basic rights to investigate and prosecute the crimes, as well as to avoid being
declared as a State of inability, a State has to establish a legal system in conformity with the
requirements of the Statute. Some of the State's legislations and statements may be of good
help in better understanding of the real role of complementarity. The German Government
proclaimed in the Code of Crimes against International Law, that one of the aims of the
legislation of such a Code is to ensure, in the light of the complementary prosecutorial
competence of the International Criminal Court, that Germany is always able to prosecute
crimes within the jurisdiction of the ICC .8 In its Progress Report on the ratification and
implementation of the Rome Statute to the Council of Europe, the Spanish Government
stated:Above all, if a State Party wishes successfully to invoke the principle of
complementary recognized by the Statute, according to which States have the primary

responsibility to prosecute international crimes, then it has to ensure that its law includes
these crimes and that its courts have jurisdiction to deal over them. 9
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II.Complementarity requires the amendment of national legislation
Before the adoption and entry into force of the Rome Statute, a number of crimes and legal
principles that were embodied in the Statute had been recognized under international law,
international treaties, conventions and customary law. For example, the crime of genocide is
prohibited in Article 5 of the 1948 Genocide Convention. War crimes are prohibited in
Articles 49/ 50/ 129/146 of the Four 1949 Geneva Conventions and Articles 85-87 of the
1977 First Additional Protocol to the Geneva Conventions, and some of the crimes as
components in crime against humanity are prohibited in Article 4 of the 1973 Apartheid
Convention and Article 6 of the 1984 UN Torture Convention. Therefore, for these crimes,
according to the principle of pacta sunt servanda, all State parties to the treaties mentioned
above, no matter whether they are Parties to the Rome Statute or not, are clearly of
obligation to adopt necessary and corresponding national legislations in conformity with
these treaties.
As for the rest of the crimes, principles and jurisdictional regimes which are not included in
the previous international treaties but included in the Statute, States also have obligation to
adopt necessary and corresponding legislations under the principle of complementarity.
Theoretically speaking, the thrust of the principle of complementarity also demands States
to punish the crimes listed in the Rome Statute by adopting the same substantive law of the
Statute. Paragraph 4 of the Statute's Preamble affirms that the most serious crimes of
concern to the international community as a whole must not go unpunished and that their
effective prosecution must be ensured by taking measures at the national level and by
enhancing international cooperation. It is known to all that the Rome Statute is a
codification of the existing customary international law. The Crimes of genocide, crime
against humanity and war crimes have shocked the consciousness of mankind and affected
the interests of the international community as a whole. Therefore, the prohibition of these
crimes has become part of jus congens and every State has an obligatia erga omnes to
punish them. From the point of view of naturalist theory of international law, a State also has
the obligation to act in accordance with the customary international law. In this sense,
Paragraph 6 in the Preamble of the Statute recalls that it is the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes, and such
duty means the obligation for every State to establish jurisdiction over the crimes listed in
the Rome Statute, disregarding whether this State is a contracting party to the Rome Statute
or not.
Practically speaking, it is obvious that the ICC cannot prosecute all crimes committed. It is
entirely necessary to obtain effective prosecution through the national level. Due to its
restricted capacity and resources, the ICC can only deal with limited cases and has to rely on
the direct enforcement through State Parties. From the judicial experience in the past, with
the adequate law enforcement, the national prosecution is the most effective way to address
issues of the punishment of international crimes, if the State has the political will to do so.
In order to ensure the implement of the Rome Statute, the principle of complementarity is
actually an approach of encouragement and punishment, as put in a Chinese saying by
Xian Li Hou Bing, which means courtesy first and penalty second. If there is an allegation
that the crimes listed in the Statute happen, the ICC shall let the States which have the
jurisdiction over the crimes address the issue first by prosecuting and punishing those who
are responsible for the crimes. By doing so, the ICC put national judicial sovereignty at the
first place so as to encourage the States to exercise their national criminal jurisdiction.
However if the States concerned fail to do so or are unable or unwilling to do so, the ICC has
the right to exercise its own jurisdiction over the crime in accordance with the principle of
complementarity, acting against the will of the States. Therefore, the principle of

complementarity only respects the judicial sovereignty of the willing and able States. At the
same time, whenever the ICC exercises its jurisdiction, it implies a declaration of
unwillingness and inability of the States with the jurisdiction over the crimes.
The precondition for a State to exercise her national criminal jurisdiction is to recognize that
the crimes listed in the Rome Statute are crimes also punishable under her national
legislation. If a State refuses to adopt national law by following the substantial law of the
Statue and fails to punish the alleged offenders, the purpose and aims of the ICC will be
defeated and the penalty side of the principle of complementarity will be applicable to the
State concerned. If a State believes that the result of applying the substantive law of the
Rome Statute is the same as that of applying the domestic law, this is a very unsafe and
misleading conception.
In order to avoid especially being blamed with inability or unwillingness and to meet the
requirement of the principle of complementarity, a State is of the obligation to amend both
its national substantive law and procedure law.
As for the implementation of the substantive law, there are mainly three ways in the recent
States' practices:

(1) Drafting a new legislation, which is the safest and easiest way.

(2) Changing its existing criminal law by adopting the definitions of the crimes in the
Statute.

(3) Applying the domestic law in prosecuting international crimes as ordinary

offences.
It is submitted that, theoretically speaking, the standard to determine whether a State is
unwilling is mainly judged from its subjective consciousness. Thus, if a State prosecutes a
person who committed crimes prohibited by the Statute under ordinary domestic offences,
and during the trial, the procedure is undertaken independently and fairly, without any
unduly delay nor any subjective purpose of shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the Court referred to in Article 5, the ICC
could not made a decision saying that such a State is unwilling to investigate or prosecute.
However, in considering to meet the standards of complementarity, such an approach is
more risky than the first two in the sense of the possibility of being named as a State of
inability or unwillingness, since the degrees of condemnation and gravity between
international crimes and ordinary crimes in domestic law are totally different.
As to procedure law, Article 17(2)(c) provides The proceedings were not or are not being
conducted independently or impartially, and they were or are being conducted in a manner
which, in the circumstance, is inconsistent with an intent to bring the person concerned to
justice. The ICC will decide whether the situation of unwillingness exists having regard to
the principles of due process recognized by international law.
The term due process, with its special meaning in common law, has to be that recognized
by international law, i.e. the procedure that is only in conformity with national procedural law
cannot be regarded as a due process, and it is the ICC that will determine whether a State's
criminal procedure, including non-party States' criminal procedures, is in conformity with the
principles of due process or not. The standards adopted by the ICC for its determination
are the minimum guarantees provided by the International Covenant on Civil and Political
Rights (ICCPR).10
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III.A brief examination on China's criminal law and criminal procedural law

It is necessary to look at the decision made by the Senegal Court of Appeal in Dakar
quashing the indictment against Hissene Habre first, prior to the examination on the
domestic law of China. In the case, the court pronounced that The subject matter of this
case is criminal justice, which is built on two basic sets of rules: firstly, substantive rules
which define crimes and fix their penalties and secondly, procedural rules which determine
jurisdiction, the institution of proceedings and the functioning of courts, and that
Senegalese law does not at present contain any provision for the punishment of crimes
against humanity, pursuant to the principle enshrined in Article 4 of the Criminal Code that
crimes and punishments must be laid down by law; the Senegalese courts have no
jurisdiction over the acts at issue.11
A Chinese court will face exactly the same situation as the Senegalese Court, without
amending her domestic laws, when a case related to charges of international crimes is
brought to its attention. Article 9 of the Criminal Law of the People's Republic of China (CCL)
reads: This Law shall be applicable to crimes which are stipulated in international treaties
concluded or acceded to by the People's Republic of China and over which the People's
Republic of China exercises criminal jurisdiction within the scope of obligations, prescribed in
these treaties, it agrees to perform.12There are a lot of debates and controversies over the
true meaning of this article. Some claim that it is the basis for China to exercise the so-called
universal jurisdiction over international crimes; some believe that it is just a modality to
carry out the obligations of the conventions to which China is a contracting party. The
jurisdiction of a court, in simplest terms, is the capability to entertain a case. Even if China is
a Contracting Party to the ICC Statute and tries to exercise her jurisdiction by invoking this
article of the CCL, China is still facing the problem of amending her domestic law. The
essential issue lies in the capability to hear a case.
As for the substantive law, the core crimes, such as crimes of genocide, crimes against
humanity, war crimes and crimes of aggression, have not yet been incorporated into China's
criminal law. If China became a Contracting Party to the Statute without amending her
substantive laws and would try the above-mentioned crimes as ordinary crimes in her
criminal code, she should be very careful with her trials and sentences. For instance, if a
Chinese court tries rape committed in war time, which is characterized by the ICC as a crime
against humanity according to Article 7(1)(g) of the ICC Statute, as the ordinary domestic
crime of rape, the sentence of the latter crime will be much lighter than for a crime
considered by the ICC to be most serious; in such a situation, degradation of the sentence
would prove the inadequacy of the Chinese court to deal with the crime with the most
serious crimes of international concern regulated in the Rome Statute. Therefore, the ICC is
very likely to determine that China's courts are unable to prosecute a perpetrator
committing international crimes and takes over the jurisdiction. For another example, if a
Chinese court tries genocide as an ordinary crime of murder in her domestic law, the degree
of condemnation of the crime would be greatly reduced, since the victims of the crime are
not only those in a particular case, but humankind as a whole. In Prosecutor v. Erdemovic,
the Trial Chamber of the ICTY held in its Judgment that core crimes transcend the individual
because when the individual is assaulted, humanity comes under attack and is negated. 13
Thus, it is important to recognize the distinctive characters of international crimes and
incorporate them into the domestic laws, for only in this way can those core crimes be
properly prosecuted within the system and meaning of international criminal law and the
national court be effectively functioning under the Statute.
As for the criminal procedure, the minimum guarantees in determination of any criminal
charge against the accused embodied in Article 14(3) of the ICCPR as mentioned above are
not a part of the Criminal Procedural Law of the People's Republic of China (CCPL), since
China is not yet a party to the Covenant. If a Chinese court tries the case in accordance with
its domestic law, China might be regarded as an unable or unwilling State because of
the consideration of having no proper due process of law. If China adopts a new procedure
with the minimum guarantees for entertaining cases related to international crimes, there
will be different treatments between the accused alleged of committing international crimes

and of ordinary crimes in China's domestic law. An absurd result might be that the more
serious the crimes, the more favourable treatment one may get. For instance, China's
procedural law does not recognize the principle of non-self-incrimination. If the accused is
alleged of committing an ordinary crime, he or she has to confess his or her own crime
truthfully according to Article 93 of the CCPL.14 If he or she refuses to do so, there might be
an aggravating factor in his or her sentence, whereas the one who is accused of committing
international crimes shall enjoy the human right standard of non-self-incrimination and
therefore receive better treatment.
Thus, if China is preparing to ratify the Rome Statute, she shall not only examine her
substantive criminal law, but also her constitutional law and criminal procedural law. The
most proper way to deal with such a matter for China would be to criminalize the acts within
the jurisdiction of the ICC as genocide, crimes against humanity and war crimes, according
to the definitions of the Statute. If her constitutional law or criminal procedure law is unable
to ensure the minimum guarantees in the ICCPR, she will be more likely to be declared as
a State unable or unwilling to investigate or prosecute and, consequently, the principle of
complementarity will not apply to her.
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IV.Complementary and jurisdiction over senior State officials
The Rome Statute requests States to remove criminal immunity under national law from
government officials, including a head of State or government, a member of a Government
or parliament, an elected representative or a government official. Article 27(1) provides:
This Statute shall apply equally to all persons without any distinction based on official
capacity. In particular, official capacity as a Head of State or Government, a member of a
Government or parliament, an elected representative or a government official shall in no
case exempt a person from criminal responsibility under this Statute, nor shall it, in and of
itself, constitute a ground for reduction of sentence.15 However, current general
international law is still likely to provide immunity to incumbent government officials. The
International Court of Justice (ICJ), in its Judgment in the Case Concerning the Arrest Warrant
of 11 April 2000 (Democratic Republic of the Congo v. Belgium) on 14 February 2002
(paragraph 58), maintains, on the one hand, the functional immunity of the official capacity
and, on the other, proposes that there are exceptions to such immunity in four
circumstances.16 The examples provided by the ICJ include cases before the ICTY, the ICTR
and the Statute of ICC. The ICJ also quotes Article 27(2) of the Rome Statute, which provides
the immunities or special procedural rules which may attach to the official capacity of a
person, whether under national or international law, shall not bar the Court from exercising
its jurisdiction over such a person. Thus, the judgment of the ICJ only reaffirms the
restrictions on national jurisdiction over government officials, without any limitations to the
ICC's jurisdiction.17
On the issue of privilege and immunity of persons with official capacity, Chinese law grants
them absolute immunity. As for the diplomats, Article 11 of the CCL reads the problem of
the criminal responsibility of foreigners who enjoy diplomatic privileges and immunities shall
be resolved through diplomatic channels, 18 which means there might be no criminal
proceedings against them in China's domestic court, even if they are charged with very
serious international crimes. Article 23 of the Regulations of the People's Republic of China
concerning Diplomatic Privilege and Immunity stipulates that visiting heads of States or
government, foreign ministers and other officials of comparable status from foreign States
shall enjoy the privilege and immunities specified in the Regulation. 19 This article might be
interpreted in such a way that visiting heads of States or government foreign ministers, as
well as other officials of comparable status from foreign States, still enjoy immunity from
China's courts, even if they are charged with genocide, torture, crimes against humanity and
war crimes. This might go contrary to Article 27 of the ICC Statute.
The principle of complementarity requires States to amend their national laws by rejecting
immunity of government officials. If a State follows such request by adopting a procedure

law to investigate and prosecute incumbent senior government officials in its national legal
system, the ICC would not exercise its jurisdiction over a case concerned. If a State selects
to do the opposite based on immunity, the relevant case would be admitted before the ICC
for the reason of inability or unwillingness to investigate or prosecute. Since the ICC has
jurisdiction over non-party States, China, as a non-party State who has no duty to amend her
national law on immunity, might be regarded as a State of inability.
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V.Complementarity and the procedure of challenges to the jurisdiction of the Court
China, on the one hand, welcomes the principle of complementarity in the Rome Statute,
making national jurisdiction a priority and regarding the principle of complementarity as the
most important guiding principle in the Statute of the ICC which should be reflected in all the
substantive provisions of the Statute.20 On the other, China is very much concerned with the
procedure of challenges to the jurisdiction of the Court. Her major concern on the principle of
complementarity is with the challenges to the jurisdiction of the Court or the admissibility of
a case provided in Article 19. If the application of complementarity is under controversy, or a
State is determined as the one of inability or unwillingness, the State may challenge the
jurisdiction of the Court or the admissibility of a case before the ICC. However, China
believes such procedure of challenges may cause problems.
Article 19(1) provides that The Court shall satisfy itself that it has jurisdiction in any case
brought before it. The Court may, on its own motion, determine the admissibility of a case in
accordance with Article 17. If determined by the ICC to be unable or unwilling, a State may
go to the Court, challenging its determination. Usually, in an ordinary criminal case, if
jurisdiction of the court or the admissibility of a case is challenged in the court, the issue will
be contested between the two partiesdefendant and prosecutor. But in the procedure
provided in Article 19, the subjects of the procedure will be the ICC as one party and a
Sovereign State as another. It is true that every court shall have inherent power to decide its
own jurisdiction, yet the case is not only related to the matter of jurisdiction, but also to the
inability or unwillingness of a State. It is a dispute between a sovereign State and an
international organization. Strictly speaking, it is a question of public international law, not
international criminal law.
According to Article 19, the challenges may be made by an accused or a suspect, a State
which has jurisdiction over a case and a State from which acceptance of jurisdiction is
required under Article 12, i.e. a non-party State. As Article 19(3) provides that the Prosecutor
may seek a ruling from the Court regarding a question of jurisdiction or admissibility, the
Prosecutor may also be a party of the litigation. It is not clear in the provisions of the Statute
whothe Prosecutor or the State challenging the jurisdictionwill be responsible for the
burden of proof. If the State is responsible for adducing evidence, then will the presumption
that every State is supposed to be able and willing to investigate and prosecute the serious
international crimes still be tenable?
The main purpose of the procedure of challenges is to find out whether the State concerned
is able or willing to investigate and prosecute a suspect. In this circumstance, the State has
to subject her whole legal system to the review by the Court, including substantive and
procedure law. Some States, like China, may regard this proceeding as an interference with
its criminal judicial sovereignty, since China always regards her legal system as a matter
within her absolute sovereignty. As for the aspect of substantial law, if a State uses the
approach of ordinary domestic offences to prosecute the crimes within the jurisdiction of the
ICC, there is a great possibility that the case will be admitted by the ICC. As to the
procedural law, if a State is not a party of the ICCPR, it has no obligation to legislate in her
national law in accordance with the Convenant. Therefore, the criteria of human rights
applied to defendants in its national proceedings will not meet the needs of the minimum
guarantee of the Convention. If the challenging procedure of the ICC becomes a discussion

on the situation of a State's human rights, it would be a disaster for both the State itself and
the ICC.
Under the principle of complementarity, the admissibility of each case by the ICC, not
including the cases referred by the UN Security Council, implies that the State which has
jurisdiction over the case is unable or unwilling to investigate or prosecute the suspect. The
ICC will review the whole legal system of the State, including her substantive law and
procedural law. Some States might regard this procedure as that she herself is under trial,
rather than an individual. Such a decision will have a great impact on the international
image of the State and cause damage to the State politically, legally, diplomatically and
economically. For a State, the consequence of such impacts and damage would be much
greater than bringing a person to justice.
In summary, if China would like to become a Contracting Party to the Rome Statute, she has
to review and revise her domestic law in a comprehensive way, especially her criminal law
and criminal procedural law. As for the substantial law, the crimes of genocide, crimes
against humanity and war crimes should be incorporated into China's criminal law, since
China has become a Contracting Party to many conventions of international criminal law,
such as the Genocide Convention, Torture Convention, Four Geneva Conventions and their
two Protocols. As for the procedural law, China has signed the ICCPR, though not yet ratified
it. It is submitted that until China becomes a Contracting Party to the ICCPR, it is futile to talk
about becoming a Contracting Party to the Rome Statute. At the same time, the ICC should
be very cautious when dealing with the issue of a State's inability or unwillingness,
especially towards a non-party State. To be on the safe side, the ICC should not declare a
State, especially a non-party State, to be one of inability or unwillingness unless absolutely
necessary.
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Footnotes

1 Article 126(1) provides that This Statute shall enter into force on the first day of
the month after the 60th day following the date of the deposit of the 60th instrument of
ratification, acceptance, approval or accession with the Secretary-General of the United
Nations.
2 Paragraph 5, Preamble of the Rome Statute, A/Conf. 193/9.
3 Ibid., para.4.
4 Ibid., para.10.
5 Ibid., para.6.
6 Article 9(2) of the Statute of the ICTY and Art.8 of the ICTR Statute.
7 Cf. Art.17.
8 Gesetzentwurf der Budesregierung-Entwurf eines Gesetzes zur Einfuhrung des
Volkerstrafgesetzbuchs (EGVStGB) (http://www.bmj.bund.de/images/11222.pdf), 25.
9 http://www.legal.coe.int/criminal/icc/docs/ConsultICC(2001)/ConsultICC(2001)28E.pdf.
10 Cf. Arts 9 and 14 of the International Covenant of the Civil and Political Rights.
These are as follows: Right to liberty: Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived
of his liberty except on such grounds and in accordance with such procedure as are
established by law; Right to be informed: Anyone who is arrested shall be informed, at the
time of arrest, of the reason for his arrest and shall be promptly informed of any charges
against him. During the trial, he is entitled to be informed promptly and in detail in a
language which he understands of the nature and cause of the charge against him; He has
the right to have the free assistance of an interpreter if he cannot understand or speak the

language used in court; Right to be brought before a judge: Anyone arrested or detained on
a criminal charge shall be entitled to be brought promptly before a judge or other officer
authorized by law to exercise judicial power; Right to be tried without undue delay: the
accused shall be entitled to trial within a reasonable time or to release. It shall be the
general rule that persons awaiting trial shall be detained in custody, but release may be
subject to guarantees to appear for trial, at any other stage of the judicial proceedings and
to guarantees of the security of victims and witnesses as well. Right to have a public
hearing: the accused shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. But for the reasons of morals, public
order (order public or national security in a democratic society, or the interest of the private
lives, the press and the public may be excluded from all or part of a trial. However, public
hearing shall always be a general rule and a closed trial shall be an exception. Right to
defend: the accused shall be entitled to defend himself in person or through legal assistance
of his own choosing and to examine a witness. If he does not have sufficient means to pay
for the legal assistance, the court will pay for him. The accused shall have the privilege to
communicate with counsel of his own choosing without being interfered by anybody; Right
to remain silent: the accused has right to remain silent, not to be compelled to testify
against himself or to confess guilt. The confession of the accused shall not be taken as the
only evidence to conviction; Right to appeal: everyone convicted of a crime shall have the
right to his conviction and sentence being reviewed by a higher tribunal according to law;
Right to compensation: anyone who has been the victim of unlawful arrest or detention shall
have an enforceable right to compensation; All persons shall be equal before law: everyone
shall be equal before the courts and tribunals, in particular, the prosecutors and the accused
shall be equal during the trial. The prosecutor shall not be entitled to any privilege in the
course of the whole trial; Right to be presumed innocent until proved guilty: everyone
charged with a criminal offence shall have the right to be presumed innocent until proved
guilty according to law; Right of ne bis in idem: no one shall be liable to be tried or punished
again for an offence for which he has already been finally convicted or acquitted in
accordance with the law and penal procedure of each country.
11 Habre, Hissene, Senegal, Supreme Court, 20 March 2001 (www.icrc.org/ihlnat.nsf).
12 Criminal Law of the People's Republic of China, Law Press China, First Edition,
2002.
13 ICTY, Judgment (Case IT-9622-T), Trial Chamber, 29 November 1996, para.28.
14 Article 93 of the CCPL reads: When interrogating a criminal suspect, the
investigators shall first ask the criminal suspect whether or not he has committed any
criminal act, and let him state the circumstances of his guilt or explain his innocence; then
they may ask him questions. The criminal suspect shall answer the investigators' question
truthfully, but he shall have the right to refuse to answer any questions that are irrelevant to
the case.
15 Ibid., n.1.
16 First, such persons enjoy no criminal immunity under international law in their
own countries, and may thus be tried by those countries' courts in accordance with the
relevant rules of domestic law. Secondly, they will cease to enjoy immunity from foreign
jurisdiction if the State they represent or have represented decides to waive that immunity.
Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will
no longer enjoy all of the immunities accorded by international law in other States. Provided
that it has jurisdiction under international law, a court of one State may try a former Minister
of Foreign Affairs of another State in respect of acts committed prior or subsequent to his or
her period of office, as well as in respect of acts committed during that period of office in a
private capacity. Fourthly, the incumbent or former Minister for Foreign Affairs may be
subject to criminal proceedings before certain international criminal courts, where they have
jurisdiction.
17 Judgment, para.61.

18 Ibid., n.17.
19 The Regulations of the People's Republic of China concerning Diplomatic Privilege
and Immunity (Law Press China, 2001).
20 Speech by H.E. Mr Wang Guangya, Head of the Chinese Delegation to the Rome
Conference, Vice-Minister of the Foreign Affairs of China. He said: As the most important
guiding principle of the Statute for the International Criminal Court, the principle of
complementarity should be fully reflected in all substantive provisions of the statute. The
ICC should also carry out its future work in strict accordance with this principle. The court
can exercise its jurisdiction only with the consent of the countries concerned and should
refrain from exercising such jurisdiction when a case is already being investigated,
prosecuted or tried by a relevant country.
* Associate professor, the International Law Center (formerly International Law
Section of the Law Institute) of the Chinese Academy of Social Sciences. This paper is an
expression of the author's own view and does not represent that of any organizations.

What is the Rome Statute?

On 17 July 1998, a conference of 160 States established the first treaty-based permanent
international criminal court. The treaty adopted during that conference is known as
the Rome Statute of the International Criminal Court. Among other things, it sets out the
crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms
for States to cooperate with the ICC. The countries which have accepted these rules are
known as States Parties and are represented in the Assembly of States Parties.
The Assembly of States Parties, which meets at least once a year, sets the general policies
for the administration of the Court and reviews its activities. During those meetings, the
States Parties review the activities of the working groups established by the States and any
other issues relevant to the ICC, discuss new projects and adopt the ICCs annual budget.

ESTABLISHMENT OF THE ICC

The Rome Statute of the International Criminal Court (ICC) was adopted at a United Nations
(UN) diplomatic conference on July 17, 1998 by 120 countries after several years of UN
negotiations. The ICC treaty entered into force on July 1, 2002, following the required 60th
ratification. 139 countries ultimately signed the ICC treaty, and over 120 states have ratified
or acceded to it.
Support for the ICC has been led by a coalition of America's friends and allies, including all
members of the European Union and all members of NATO except the US and Turkey.
The ICC is supported by many states that have recently experienced severe crises as a
result of ongoing impunity or attempts to try human rights violators within their domestic
systems. Such states include: Argentina, Cambodia, Colombia, Croatia, the Democratic
Republic of the Congo, Nigeria, Paraguay, Peru, Sierra Leone, South Africa and Uganda.
The US was involved with the ICC negotiations until early 2002 and made extensive
contributions to the Rome Statute and its indispensable supplemental documents. These

include provisions giving strong deference to national courts, an important role for the
Security Council, due process rights drawn from the US Bill of Rights, and the definitions
and elements of the ICC crimes.
AN INDEPENDENT COURT
The ICC is an independent judicial institution governed by the treaty that established it. It is
accountable to the Assembly of States Parties (ASP) to the Rome Statute of the ICC, which
is responsible for managing and overseeing the Court, including approving its annual budget
as well as electing and disciplining ICC officials. The ICC is located in The Hague, the
Netherlands.
The ICC is not a UN body; it is not under the jurisdiction of the General Assembly or the
Secretary-General. It is not administered or paid for through the UN. The Court is linked to
the UN in at least one crucial respect: the Security Council has the authority to refer
investigations to it, or to temporarily suspend them.

THE NEED FOR A PERMANENT ICC

There is no other court like the ICC. The ICC was formed as a universal response to past
and present atrocities. Its creation is the culmination of fifty years of international efforts
through the United Nations to create a permanent international judicial institution to try
heinous crimes that are condemned by all governments, religions, cultures and peoples.

Unlike the International Court of Justice or "World Court," which is a UN organ and
can only decide disputes between states, the ICC is a treaty-based criminal court that
can only try individuals for designated atrocity crimes.

Unlike the two ad hoc International Criminal Tribunals for the former
Yugoslavia and Rwanda, which were created by the UN Security Council to deal with
atrocity crimes in those regions during specific conflicts, the ICC is a permanent court
that could, depending on the circumstances, investigate and prosecute any individual
accused of committing an atrocity crime within the ICC's jurisdiction after July 1, 2002.

JURISDICTION OF THE ICC

The ICC is the world's first permanent court with jurisdiction to try individuals accused of
some of the most serious international crimes, as detailed in the ICC's Rome
Statute and Elements of Crimes:

Genocide: Intentionally committing an "act of genocide" in order to destroy, in

whole or in part, a national, ethnical, racial or religious group. Acts of genocide include
killing members of a group, seriously wounding members of a group, deliberately
inflicting on a group conditions of life calculated to bring about its physical destruction
in whole or in part, imposing measures to prevent births, and forcibly transferring
children of a group to another group (for example, the mass murder of Jews during the
Holocaust and of Tutsis in Rwanda in 1994).

Crimes Against Humanity: Acts involving the multiple commission of one or more
acts such as murder, extermination, enslavement, persecution, the forcible transfer of
a population, torture, or rape. Such acts must be part of a) a widespread or systematic
attack against any civilian population, and b) in adherence with a State or
organizational policy to commit such attack (for example, the ethnic cleansing of
Bosnia and Herzegovina and of Kosovo in the 1990's included crimes against
humanity).

War Crimes: Crimes in violation of well-accepted laws of war, in particular when

committed as part of a plan or policy or as part of a large-scale commission of such
crimes (for example, the targeting of civilians in Sarajevo by snipers during the
Bosnian conflict).

The Rome Statute also includes the crime of aggression but did not initially provide a
definition of the crime or the conditions under which the Court would exercise jurisdiction
over it. The 2010 Review Conference, held in Kampala, Uganda, agreed on a definition and
decided how the ICC could initiate and try cases.
The Court could exercise its jurisdiction over the crime of aggression as early as January 1,
2017 on the agreement of the Court's governing body, the Assembly of States Parties (ASP),
provided that certain other conditions are met. The aggression amendment does not apply
to countries that have not joined the ICC.
HOW CASES QUALIFY FOR THE ICC
The Rome Statute of the International Criminal Court, a treaty negotiated at the United
Nations, established the ICC and now governs it. The ICC has jurisdiction over nationals and
the territory of countries that have ratified the Rome Statute. The ICC's jurisdiction over
territory and people can also extend beyond those of States Parties if the UN Security
Council adopts a resolution referring a situation to the Court or if a non-State Party lodges a
declaration of acceptance of jurisdiction with the ICC Registrar.

The ICC does not have retroactive jurisdiction - it can only hear cases alleging crimes that
took place after July 1, 2002.
The Court's Prosecutor may begin an investigation when:

An ICC State Party refers a situation to the Court;

The UN Security Council refers a situation to the Court; or

A Pre-Trial Chamber of ICC judges grants an application of the Prosecutor to open an

investigation on her own initiative.

The ICC can only look into situations that are "the most serious crimes of concern to the
international community as a whole." In general, this means that the ICC will only take a
case if multiple or very massive atrocities have been deliberately planned.
Universal jurisdiction is a legal doctrine which permits domestic courts to try and punish perpetrators of
some crimes so heinous that they amount to crimes against the whole of humanity, regardless of where
they occurred or the nationality of the victim or perpetrator
The Doctrine of Superior/Command Responsibility
Command or superior responsibility is often misunderstood. First, it is not a form of objective
liability whereby a superior could be held criminally responsible for crimes committed by
subordinates of the accused regardless of his conduct and regardless of what his knowledge of
these crimes. Nor is it a form of complicity whereby the superior is held criminally responsible for
some sort of assistance that he has given to the principal perpetrators. Instead, superior
responsibility is a form of responsibility for omission to act: a superior may be held criminally
responsible under that doctrine where, despite his awareness of the crimes of subordinates, he
culpably fails to fulfill his duties to prevent and punish these crimes.

The commission of one or more crimes attributable to a subordinate is a pre-requisite for the
application of that doctrine. In addition, the following requirements have been identified as forming
part of the doctrine of superior responsibility under customary international law:

(i) A relationship of superior-subordinate linking the accused and those who committed the
underlying offences at the time of the commission of the crime;

(ii) The knowledge on the part of the superior that his subordinates have committed or taken a
culpable part in the commission of a crime or are about to do so; and

(iii) A failure on the part of the superior to take necessary and reasonable measures to prevent or
to punish those crimes.

This doctrine might apply, in principle, to military commander (at whatever level in the military
structure), civilian officials (regardless of the nature of their function, including heads of state or
ministers) or paramilitary leaders. Whilst, under customary international law, the elements of the
doctrine are the same as a matter of law (though not necessarily at the evidential level)
regardless of the nature of the authority which the superior exercised, the ICC Statute is drawing
certain differences between military and non-military superiors.

The person to whom the doctrine is relevant must be superior, hierarchically, to those who have
committed the crimes in the sense that there must have existed between them a hierarchical
relationship within a common chain of authority or command. That relationship may be de
jure (i.e., it is recognised and sanctioned in the relevant internal or domestic legal regime)
or de facto (where the relationship of authority is one based, not on legal regulations, but on a
state of affair). There is contradictory jurisprudence as to the time that is relevant to establishing
the existence of such a link (the time when the crimes were committed or the time when the
superior is said to have failed in his duty).
Superior responsibility could apply, in theory, to any person who is able to exercise effective
control over one or more people. The requirement of effective control, which must be met in
relation to all and any sort of superior means that he must have had the material ability, at the
time relevant to the charges, to prevent or punish the crimes of subordinates. Mere influence or
charisma, even if significant, would not meet that standard. In all cases, there must be an
expectation of obedience to orders on the part of the superior and a parallel expectation of
subjection to his authority on the part of those who are under his authority.

The superior must also have been sufficiently aware of the commission of a crime by subordinates
and/or of the real and concrete likelihood that a crime was about to be committed. Under
customary law, the superior must be shown to have known (i.e., he actually knew) or had
reason to know (i.e. the superior possessed some general information putting him on notice of
the commission of crimes of his subordinates or that such information as was available to him put
him on notice of the strong likelihood that they were about to be committed) of the underlying
crimes. The ICC Statute has added one form of culpable mens rea(owing to the circumstances at
the time, should have known) for military or military-like superiors, whereby a superior might be

liable where he might not have known of the crimes (whether in actual or had reason to know
form) but should have known of those. The exact scope of this new form of mens rea is uncertain
and has been subject to serious criticism, although it could be constructed in such a way as to
reduce the risks involved with this form of mens rea.
To be liable under that doctrine, the superior must also have failed to prevent or punish crimes
committed by subordinates. A failure to fulfil either or both of these separate obligations (duty to
prevent and duty to punish) could render a superior liable. Not every sort of failure would trigger
his superior liability. To meet his obligations, a superior is required to adopt necessary and
reasonable measures. The dereliction of duty attributable to the superior must be gross so that
not any kind of failure to fulfil his duty would automatically render a superior responsible under
that doctrine. There is some doubt in the literature and jurisprudence as to whether the dereliction
must be causally linked in some ways with the crimes of the subordinates. The text of the ICC
Statute makes it clear, however, that liability would be engaged where the crimes have been
committed as a result of the superiors failure.

In sum, the doctrine of superior or command responsibility could be defined as follows: A superior,
whether de jure or de facto, may be held criminally responsible under that doctrine in relation to
crimes committed by subordinates where, at the time relevant to the charges, he was in a
relationship of superior-subordinate with the perpetrators, knew or had reason to know (or, in the
case of military superiors at the ICC, should have known) that these crimes had been committed
or were about to be committed and, with and despite that knowledge, wilfully and culpably failed
to prevent or punish these crimes.

What is the difference between

humanitarian law and human rights law?
01-01-2004
Extract from ICRC publication "International humanitarian law: answers to your questions"

International humanitarian law and international human rights law (hereafter referred to as human rights) are
complementary. Both strive to protect the lives, health and dignity of individuals, albeit from a different angle.
Humanitarian law applies in situations of armed conflict (see Q7), whereas human rights, or at least some of them,
protect the individual at all times, in war and peace alike. However, some human rights treaties permit governments

to derogate from certain rights in situations of public emergency. No derogations are permitted under IHL because it
was
conceived for emergency situations, namely armed conflict.
Humanitarian law aims to protect people who do not or are no longer taking part in hostilities. The rules embodied in
IHL impose duties on all parties to a conflict. Human rights, being tailored primarily for peacetime, apply to
everyone. Their principal goal is to protect individuals from arbitrary behaviour by their own governments. Human
rights law does not deal with the conduct of hostilities.
The duty to implement IHL and human rights lies first and foremost with States. Humanitarian law obliges States to
take practical and legal measures, such as enacting penal legislation and disseminating IHL. Similarly, States are
bound by human rights law to accord national law with international obligations. IHL provides for several specific
mechanisms that help its implementation. Notably, States are required to ensure respect also by other States.
Provision is also made for an enquiry procedure, a Protecting Power mechanism, and the International Fact-Finding
Commission. In addition, the ICRC is given a key role in ensuring respect for the humanitarian rules.
Human rights implementing mechanisms are complex and, contrary to IHL, include regional systems. Supervisory
bodies, such as the UN Commission on Human Rights, are either based on the UN Charter or provided for in specific
treaties (for example the Human Rights Committee, which is rooted in the International Covenant on Civil and
Political Rights of 1966). The Human Rights Commission and its Subcommissions have developed a mechanism of
special rapporteurs and working groups, whose task is to monitor and report on human rights situations either by
country or by topic. Six of the main human rights treaties also provide for the establishment of committees (e.g. the
Human Rights Committee) of independent experts charged with monitoring their implementation. Certain regional
treaties (European and American) also establish human rights courts. The Office of the UN High Commissioner for
Human Rights (UNHCHR) plays a key part in the overall protection and promotion of human rights. Its role is to
enhance the effectiveness of the UN human rights machinery and to build up national, regional and international
capacity to promote and protect human rights and to disseminate human rights texts and information.

Human rights instruments

The many texts now in force include:
a) Universal instruments

the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948

the Convention on the Prevention and Punishment of the Crime of Genocide of 1948

the International Covenant on Civil and Political Rights of 19 66 o the International Covenant on Social and
Economic Rights of 1966

the Convention on the Elimination of All Forms of Discrimination against Women of 1981

the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment of 1984 o
the Convention on the Rights of the Child of 1989
b) Regional instruments

the European Convention on Human Rights of 1950

the American Convention on Human Rights of 1969

the African Charter of Human and Peoples Rights of 1981

The hard core

The international human rights instruments contain clauses that authorize States confronted with a serious public
threat to suspend the rights enshrined in them. An exception is made for certain fundamental rights laid down in each
treaty, which must be respected in all circumstances and may never be waived regardless of the treaty. In particular,
these include the right to life, the prohibition of torture and inhuman punishment or treatment, slavery and servitude,
and the principle of legality and non-retroactivity of the law. These fundamental rights that States are bound to
respect in all circumstances even in the event of a conflict or disturbances are known as the hard core of human
rights.

Points of convergence
Since humanitarian law applies precisely to the exceptional situations which constitute armed conflicts, the content of
human rights law that States must respect in all circumstances (i.e. the hard core) tends to converge with the
fundamental and legal guarantees provided by humanitarian law, e.g. the prohibition of torture and summary
executions (see p. 21; Art. 75, Protocol I; and Art. 6, Protocol II).

International human rights law (IHRL) and international humanitarian law (IHL) are often perceived as
legally synonymous, aiming to achieve similar objectives through legal protection. Yet while they share
important features, these two bodies of law have distinct origins and in many ways constitute distinct
projects.
At its core, IHRL seeks to regulate the relationship of the government to its population in order to spur the
government to do what is necessary to ensure the safety and well-being of its population while allowing
the population to pursue their desires unencumbered by unwarranted government intrusion. IHL also
known as the law of armed conflict is more limited, applying only during armed conflict and seeking
generally to inject a modicum of humanity into wartime by regulating the means and methods of warfare
and protecting those not, or no longer, directly participating in hostilities. While IHRL has a fundamental
mission of transforming the relationship between the government and the population, IHL aims primarily to
limit the effects of hostilities on populations, whether civilians, detainees, the wounded, the sick, or those
otherwise hors de combat. In contradistinction to IHRL, IHL continually weighs the humanitarian interests
of the population against the interests of parties to armed conflict attempting to achieve their military
objectives.
These fundamental distinctions between IHL and IHRL can confuse and confound humanitarians
operating in armed conflicts, natural disasters, and other emergency situations. Some of the difficulty may
result from the turn by many humanitarian organizations whose initial ambit was limited to emergency
relief amid the tumult of armed conflict to incorporate (often vague) human rights approaches into their
work without identifying the short- and long-term costs and benefits of doing so. Adopting a dual-hat
approach to humanitarian action, these organizations attempt to combine life-saving assistance alongside
building the states capacity to promote and protect rights.

Programming that blends humanitarian and human rights objectives is on its face laudable, yet it raises
strategic issues for humanitarian policy-makers. As Naz K. Modirzadeh recently argued, the coapplication of IHL and IHRL during armed conflict could have significant deleterious effects for civilian
protection, including diluting the clarity of IHL, reintroducing a hierarchy of rights, and undermining
sovereignty and long-term rights development. Balancing these considerations is one of the many
challenges facing humanitarian actors today.

Republic of the Philippines

SUPREME COURT
Manila
A.M. No. 07-9-12-SC
(25 September 2007)
THE RULE ON THE WRIT OF AMPARO
SECTION 1. Petition. The petition for a writ of amparo is a remedy available to any person whose
right to life, liberty and security is violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof.
SEC. 2. Who May File. The petition may be filed by the aggrieved party or by any qualified person
or entity in the following order:
a. Any member of the immediate family, namely: the spouse, children and parents of the
aggrieved party;
b. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil
degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph;
or
c. Any concerned citizen, organization, association or institution, if there is no known member
of the immediate family or relative of the aggrieved party.
The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file
similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved
party suspends the right of all others, observing the order established herein.
SEC. 3. Where to File. The petition may be filed on any day and at any time with the Regional
Trial Court of the place where the threat, act or omission was committed or any of its elements
occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of
such courts. The writ shall be enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such
court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be
returnable before such court or any justice thereof, or to any Regional Trial Court of the place where
the threat, act or omission was committed or any of its elements occurred.
When issued by the Supreme Court or any of its justices, it may be returnable before such Court or
any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or
to any Regional Trial Court of the place where the threat, act or omission was committed or any of its
elements occurred.
SEC. 4. No Docket Fees. The petitioner shall be exempted from the payment of the docket and
other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act
upon it immediately.
SEC. 5. Contents of Petition. The petition shall be signed and verified and shall allege the
following:
a. The personal circumstances of the petitioner;
b. The name and personal circumstances of the respondent responsible for the threat, act or
omission, or, if the name is unknown or uncertain, the respondent may be described by an
assumed appellation;
c. The right to life, liberty and security of the aggrieved party violated or threatened with
violation by an unlawful act or omission of the respondent, and how such threat or violation is
committed with the attendant circumstances detailed in supporting affidavits;
d. The investigation conducted, if any, specifying the names, personal circumstances, and
addresses of the investigating authority or individuals, as well as the manner and conduct of
the investigation, together with any report;
e. The actions and recourses taken by the petitioner to determine the fate or whereabouts of
the aggrieved party and the identity of the person responsible for the threat, act or omission;
and
f.

The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs.
SEC. 6. Issuance of the Writ. Upon the filing of the petition, the court, justice or judge shall
immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue
the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue
the writ under his or her own hand, and may deputize any officer or person to serve it.
The writ shall also set the date and time for summary hearing of the petition which shall not be later
than seven (7) days from the date of its issuance.
SEC. 7. Penalty for Refusing to Issue or Serve the Writ. A clerk of court who refuses to issue
the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished
by the court, justice or judge for contempt without prejudice to other disciplinary actions.
SEC. 8. How the Writ is Served. The writ shall be served upon the respondent by a judicial officer
or by a person deputized by the court, justice or judge who shall retain a copy on which to make a

return of service. In case the writ cannot be served personally on the respondent, the rules on
substituted service shall apply.
SEC. 9. Return; Contents. Within seventy-two (72) hours after service of the writ, the respondent
shall file a verified written return together with supporting affidavits which shall, among other things,
contain the following:
a. The lawful defenses to show that the respondent did not violate or threaten with violation the
right to life, liberty and security of the aggrieved party, through any act or omission;
b. The steps or actions taken by the respondent to determine the fate or whereabouts of the
aggrieved party and the person or persons responsible for the threat, act or omission;
c. All relevant information in the possession of the respondent pertaining to the threat, act or
omission against the aggrieved party; and
d. If the respondent is a public official or employee, the return shall further state the actions that
have been or will still be taken:
i.

to verify the identity of the aggrieved party;

ii.

to recover and preserve evidence related to the death or disappearance of the

person identified in the petition which may aid in the prosecution of the person or
persons responsible;

iii.

to identify witnesses and obtain statements from them concerning the death or
disappearance;

iv.

to determine the cause, manner, location and time of death or disappearance as well
as any pattern or practice that may have brought about the death or disappearance;

v.

to identify and apprehend the person or persons involved in the death or

disappearance; and

vi.

to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and the
prosecution of the case.
A general denial of the allegations in the petition shall not be allowed.
SEC. 10. Defenses not Pleaded Deemed Waived. All defenses shall be raised in the return,
otherwise, they shall be deemed waived.
SEC. 11. Prohibited Pleadings and Motions. The following pleadings and motions are prohibited:
a. Motion to dismiss;
b. Motion for extension of time to file return, opposition, affidavit, position paper and other
pleadings;
c. Dilatory motion for postponement;

d. Motion for a bill of particulars;

e. Counterclaim or cross-claim;
f.

Third-party complaint;

g. Reply;
h. Motion to declare respondent in default;
i.

Intervention;

j.

Memorandum;

k. Motion for reconsideration of interlocutory orders or interim relief orders; and

l.

Petition for certiorari, mandamus or prohibition against any interlocutory order.

SEC. 12. Effect of Failure to File Return. In case the respondent fails to file a return, the court,
justice or judge shall proceed to hear the petition ex parte.
SEC. 13. Summary Hearing. The hearing on the petition shall be summary. However, the court,
justice or judge may call for a preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the parties.
The hearing shall be from day to day until completed and given the same priority as petitions for
habeas corpus.
SEC. 14. Interim Reliefs. Upon filing of the petition or at anytime before final judgment, the court,
justice or judge may grant any of the following reliefs:
(a) Temporary Protection Order. The court, justice or judge, upon motion or motu proprio,
may order that the petitioner or the aggrieved party and any member of the immediate family
be protected in a government agency or by an accredited person or private institution
capable of keeping and securing their safety. If the petitioner is an organization, association
or institution referred to in Section 3(c) of this Rule, the protection may be extended to the
officers involved.
The Supreme Court shall accredit the persons and private institutions that shall extend
temporary protection to the petitioner or the aggrieved party and any member of the
immediate family, in accordance with guidelines which it shall issue.
The accredited persons and private institutions shall comply with the rules and conditions
that may be imposed by the court, justice or judge.
(b) Inspection Order. The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession or control of a designated land or other
property, to permit entry for the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by
affidavits or testimonies of witnesses having personal knowledge of the enforced
disappearance or whereabouts of the aggrieved party.
If the motion is opposed on the ground of national security or of the privileged nature of the
information, the court, justice or judge may conduct a hearing in chambers to determine the
merit of the opposition.
The movant must show that the inspection order is necessary to establish the right of the
aggrieved party alleged to be threatened or violated.
The inspection order shall specify the person or persons authorized to make the inspection
and the date, time, place and manner of making the inspection and may prescribe other
conditions to protect the constitutional rights of all parties. The order shall expire five (5) days
after the date of its issuance, unless extended for justifiable reasons.
(c) Production Order. The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession, custody or control of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or contain evidence relevant to the
petition or the return, to produce and permit their inspection, copying or photographing by or
on behalf of the movant.
The motion may be opposed on the ground of national security or of the privileged nature of
the information, in which case the court, justice or judge may conduct a hearing in chambers
to determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to protect the constitutional rights
of all the parties.
(d) Witness Protection Order. The court, justice or judge, upon motion or motu proprio, may
refer the witnesses to the Department of Justice for admission to the Witness Protection,
Security and Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses to other government agencies, or to
accredited persons or private institutions capable of keeping and securing their safety.
SEC. 15. Availability of Interim Reliefs to Respondent. Upon verified motion of the respondent
and after due hearing, the court, justice or judge may issue an inspection order or production order
under paragraphs (b) and (c) of the preceding section.
A motion for inspection order under this section shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the defenses of the respondent.
SEC. 16. Contempt. The court, justice or judge may order the respondent who refuses to make a
return, or who makes a false return, or any person who otherwise disobeys or resists a lawful
process or order of the court to be punished for contempt. The contemnor may be imprisoned or
imposed a fine.
SEC. 17. Burden of Proof and Standard of Diligence Required. The parties shall establish their
claims by substantial evidence.

The respondent who is a private individual or entity must prove that ordinary diligence as required by
applicable laws, rules and regulations was observed in the performance of duty.
The respondent who is a public official or employee must prove that extraordinary diligence as
required by applicable laws, rules and regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the presumption that official duty has been
regularly performed to evade responsibility or liability.
SEC. 18. Judgment. The court shall render judgment within ten (10) days from the time the
petition is submitted for decision. If the allegations in the petition are proven by substantial evidence,
the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate;
otherwise, the privilege shall be denied.
SEC. 19. Appeal. Any party may appeal from the final judgment or order to the Supreme Court
under Rule 45. The appeal may raise questions of fact or law or both.
The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.
The appeal shall be given the same priority as in habeas corpus cases.
SEC. 20. Archiving and Revival of Cases. The court shall not dismiss the petition, but shall
archive it, if upon its determination it cannot proceed for a valid cause such as the failure of
petitioner or witnesses to appear due to threats on their lives.
A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio
or upon motion by any party, order their revival when ready for further proceedings. The petition shall
be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from
notice to the petitioner of the order archiving the case.
The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived
cases under this Rule not later than the first week of January of every year.
SEC. 21. Institution of Separate Actions. This Rule shall not preclude the filing of separate
criminal, civil or administrative actions.
SEC. 22. Effect of Filing of a Criminal Action. When a criminal action has been commenced, no
separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in
the criminal case.
The procedure under this Rule shall govern the disposition of the reliefs available under the writ of
amparo.
SEC. 23. Consolidation. When a criminal action is filed subsequent to the filing of a petition for
the writ, the latter shall be consolidated with the criminal action.
When a criminal action and a separate civil action are filed subsequent to a petition for a writ of
amparo, the latter shall be consolidated with the criminal action.
After consolidation, the procedure under this Rule shall continue to apply to the disposition of the
reliefs in the petition.

SEC. 24. Substantive Rights. This Rule shall not diminish, increase or modify substantive rights
recognized and protected by the Constitution.
SEC. 25. Suppletory Application of the Rules of Court. The Rules of Court shall apply
suppletorily insofar as it is not inconsistent with this Rule.
SEC. 26. Applicability to Pending Cases. This Rule shall govern cases involving extralegal
killings and enforced disappearances or threats thereof pending in the trial and appellate courts.
SEC. 27. Effectivity. This Rule shall take effect on October 24, 2007, following its publication in
three (3) newspapers of general circulation.

Case Digest: Navia, et al. v. Pardico

G.R. No. 184467 : June 19, 2012
EDGARDO NAVIA,RUBEN DIO,and ANDREW BUISING, Petitioners, v. VIRGINIA
PARDICO, for and in behalf and in representation of BENHUR V. PARDICO,
Respondent.
DEL CASTILLO, J.:
FACTS:
A vehicle of Asian Land Strategies Corporation (Asian Land) arrived at the house of Lolita
M. Lapore. The arrival of the vehicle awakened Lolitas son, Enrique Lapore (Bong), and
Benhur Pardico (Ben), who were then both staying in her house. When Lolita went out to
investigate, she saw two uniformed guards disembarking from the vehicle. One of them
immediately asked Lolita where they could find her son Bong. Before Lolita could answer,
the guard saw Bong and told him that he and Ben should go with them to the security office
of Asian Land because a complaint was lodged against them for theft of electric wires and
lamps in the subdivision. Shortly thereafter, Bong, Lolita and Ben were in the office of the
security department of Asian Land also located in Grand Royale Subdivision.
Exasperated with the mysterious disappearance of her husband, Virginia filed a Petition for
Writ of Amparobefore the RTC of Malolos City. A Writ of Amparo was accordingly issued and
served on the petitioners. The trial court issued the challenged Decision granting the
petition. Petitioners filed a Motion for Reconsideration which was denied by the trial court.
Petitioners essentially assail the sufficiency of the amparo petition. They contend that the
writ of amparo is available only in cases where the factual and legal bases of the violation or
threatened violation of the aggrieved partys right to life, liberty and security are clear.
Petitioners assert that in the case at bench, Virginia miserably failed to establish all these.
First, the petition is wanting on its face as it failed to state with some degree of specificity

the alleged unlawful act or omission of the petitioners constituting a violation of or a threat to
Bens right to life, liberty and security. And second, it cannot be deduced from the evidence
Virginia adduced that Ben is missing; or that petitioners had a hand in his alleged
disappearance. On the other hand, the entries in the logbook which bear the signatures of
Ben and Lolita are eloquent proof that petitioners released Ben on March 31, 2008 at
around 10:30 p.m. Petitioners thus posit that the trial court erred in issuing the writ and in
holding them responsible for Bens disappearance.
ISSUE: Whether or not the issuance of A Writ of Amparo is proper?
HELD: RTCs decision is reversed and set aside.
CONSTITUTIONAL LAW: writ of amparo
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to arrest the
rampant extralegal killings and enforced disappearances in the country. Its purpose is to
provide an expeditious and effective relief "to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity."
Article 6 of the International Covenant on Civil and Political Rights recognizes every human
beings inherent right to life, while Article 9 thereof ordains that everyone has the right to
liberty and security. The right to life must be protected by law while the right to liberty and
security cannot be impaired except on grounds provided by and in accordance with law.
This overarching command against deprivation of life, liberty and security without due
process of law is also embodied in our fundamental law.
The budding jurisprudence on amparo blossomed in Razon, Jr. v. Tagitis when this Court
defined enforced disappearances. The Court in that case applied the generally accepted
principles of international law and adopted the International Convention for the Protection of
All Persons from Enforced Disappearances definition of enforced disappearances, as "the
arrest, detention, abduction or any other form of deprivation of liberty by agents of the State
or by persons or groups of persons acting with the authorization, support or acquiescence
of the State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place such a
person outside the protection of the law."
From the statutory definition of enforced disappearance, thus, we can derive the following
elements that constitute it:
(a) that there be an arrest, detention, abduction or any form of deprivation of liberty;

(b) that it be carried out by, or with the authorization, support or acquiescence of, the State
or a political organization;
(c) that it be followed by the State or political organizations refusal to acknowledge or give
information on the fate or whereabouts of the person subject of the amparo petition; and,
(d) that the intention for such refusal is to remove subject person from the protection of the
law for a prolonged period of time.
As thus dissected, it is now clear that for the protective writ of amparo to issue, allegation
and proof that the persons subject thereof are missing are not enough. It must also be
shown and proved by substantial evidence that the disappearance was carried out by, or
with the authorization, support or acquiescence of, the State or a political organization,
followed by a refusal to acknowledge the same or give information on the fate or
whereabouts of said missing persons, with the intention of removing them from the
protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo
case has the burden of proving by substantial evidence the indispensable element of
government participation.
But lest it be overlooked, in an amparo petition, proof of disappearance alone is not enough.
It is likewise essential to establish that such disappearance was carried out with the direct
or indirect authorization, support or acquiescence of the government. This indispensable
element of State participation is not present in this case. The petition does not contain any
allegation of State complicity, and none of the evidence presented tend to show that the
government or any of its agents orchestrated Bens disappearance. In fact, none of its
agents, officials, or employees were impleaded or implicated in Virginia's amparo petition
whether as responsible or accountable persons.51 Thus, in the absence of an allegation or
proof that the government or its agents had a hand in Bens disappearance or that they
failed to exercise extraordinary diligence in investigating his case, the Court will definitely
not hold the government or its agents either as responsible or accountable persons.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may lie against
a private individual or entity. But even if the person sought to be held accountable or
responsible in an amparo petition is a private individual or entity, still, government
involvement in the disappearance remains an indispensable element. Here, petitioners are
mere security guards at Grand Royale Subdivision in Brgy. Lugam, Malolos City and their
principal, the Asian Land, is a private entity. They do not work for the government and
nothing has been presented that would link or connect them to some covert police, military
or governmental operation. As discussed above, to fall within the ambit of A.M. No. 07-9-12SC in relation to RA No. 9851, the disappearance must be attended by some governmental
involvement. This hallmark of State participation differentiates an enforced disappearance
case from an ordinary case of a missing person.

DISMISSED

Garcia vs. J. Drilon and Garcia, G. R. No. 179267, 25 June 2013

posted in RESWRI2 cases by katcobing
Nature of the Case: Petition for Review of Republic Act (R.A.) 9262
Facts:
Private respondent Rosalie filed a petition before the RTC of Bacolod City a
Temporary Protection Order against her husband, Jesus, pursuant to R.A. 9262, entitled An
Act Defining Violence Against Women and Their Children, Providing for Protective Measures
for Victims, Prescribing Penalties Therefor, and for Other Purposes. She claimed to be a
victim of physical, emotional, psychological and economic violence, being threatened of
deprivation of custody of her children and of financial support and also a victim of marital
infidelity on the part of petitioner.
The TPO was granted but the petitioner failed to faithfully comply with the conditions set
forth by the said TPO, private-respondent filed another application for the issuance of a TPO
ex parte. The trial court issued a modified TPO and extended the same when petitioner
failed to comment on why the TPO should not be modified. After the given time allowance
to answer, the petitioner no longer submitted the required comment as it would be an
axercise in futility.
Petitioner filed before the CA a petition for prohibition with prayer for injunction and TRO on,
questioning the constitutionality of the RA 9262 for violating the due process and equal
protection clauses, and the validity of the modified TPO for being an unwanted product of
an invalid law.
The CA issued a TRO on the enforcement of the TPO but however, denied the petition for
failure to raise the issue of constitutionality in his pleadings before the trial court and the
petition for prohibition to annul protection orders issued by the trial court constituted
collateral attack on said law.
Petitioner filed a motion for reconsideration but was denied. Thus, this petition is filed.
Issues: WON the CA 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.
WON the CA committed serious error in failing to conclude that RA 9262 is discriminatory,
unjust and violative of the equal protection clause.
WON the CA committed grave mistake in not finding that RA 9262 runs counter to the due
process clause of the Constitution
WON the CA erred in not finding that the law does violence to the policy of the state to
protect the family as a basic social institution

WON the CA seriously erredin declaring RA 9262 as invalid and unconstitutional because it
allows an undue delegation of judicial power to Brgy. Officials.
Decision:
1. Petitioner contends that the RTC has limited authority and jurisdiction,
inadequate to tackle the complex issue of constitutionality. Family Courts have authority and
jurisdiction to consider the constitutionality of a statute. The question of constitutionality
must be raised at the earliest possible time so that if not raised in the pleadings, it may not
be raised in the trial and if not raised in the trial court, it may not be considered in appeal.
2. RA 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. In Victoriano v. Elizalde Rope Workerkers
Union, the Court ruled that 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; not
limited to existing conditions only; and apply equally to each member of the class.
Therefore, RA9262 is based on a valid classification and did not violate the equal protection
clause by favouring women over men as victims of violence and abuse to whom the Senate
extends its protection.
3. RA 9262 is not violative of the due process clause of the Constitution. The essence of due
process is in the reasonable opportunity to be heard and submit any evidence one may have
in support of ones defense. The grant of the TPO exparte cannot be impugned as violative
of the right to due process.
4. The non-referral of a VAWC case to a mediator is justified. Petitioners contention that by
not allowing mediation, the law violated the policy of the State to protect and strengthen the
family as a basic autonomous social institution cannot be sustained. In a memorandum of
the Court, it ruled that the court shall not refer the case or any issue therof to a mediator.
This is so because violence is not a subject for compromise.
5. There is no undue delegation of judicial power to Barangay officials. 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 any part of any
branch of the Government while executive power is the power to enforce and administer the
laws. The preliminary investigation conducted by the prosecutor is an executive, not a
judicial, function. The same holds true with the issuance of BPO. Assistance by Brgy.
Officials and other law enforcement agencies is consistent with their duty executive function.
The petition for review on certiorari is denied for lack of merit.

Garcia vs. Drilon on the Constitutionality of RA

9262
Constitutionality of RA 9262 " Anti-Violence Against Women and Their Children

Act of 2004"

Digested/Summarized/Consolidated by Olive Cachapero

JESUS C. GARCIA vs.THE HONORABLE RAY ALAN T. DRILON, Presiding Judge,

Regional Trial Court-Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA,
for herself and in behalf of minor children, namely: JO-ANN, JOSEPH
EDUARD, JESSE ANTHONE, all surnamed GARCIA
G.R. No. 179267
June 25, 2013

CONCURRING OPINIONS

LEONARDO-DE CASTRO, J.:

ISSUE: Constitutionality of RA 9262
WON R.A. NO. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE.

FACTS:
Petitioner Jesus Garcia (husband) appears to have inflicted violence against private
respondents. Petitioner admitted having an affair with a bank manager. He callously
boasted about their sexual relations to the household help. His infidelity emotionally
wounded private respondent. Their quarrels left her with bruises and hematoma.
Petitioner also unconscionably beat up their daughter, Jo-ann, whom he blamed for
squealing on him.

All these drove respondent Rosalie Garcia(wife) to despair causing her to attempt
suicide on December 17, 2005 b y slitting her wrist. Instead of taking her to the
hospital, petitioner left the house. He never visited her when she was confined for
seven (7) days. He even told his mother-in-law that respondent should just accept
his extramarital affair since he is not cohabiting with his paramour and has not sired
a child with her.

The private respondent was determined to separate from petitioner. But she was
afraid he would take away their children and deprive her of financial support. He
warned her that if she pursued legal battle, she would not get a single centavo from
him. After she confronted him of his affair, he forbade her to hold office. This
deprived her of access to full information about their businesses.

Thus, the RTC found reasonable ground to believe there was imminent danger of
violence against respondent and her children and issued a series of Temporary
Protection Orders (TPO) ordering petitioner, among other things, to surrender all his
firearms including a .9MM caliber firearm and a Walther PPK.

Petitioner challenges the constitutionality of RA 9262 for

1.

making a gender-based classification,

wives/women and not to husbands/men.

thus,

providing

2.

He claims that even the title of the law, "An Act Defining Violence Against Women
and Their Children" is already sex-discriminatory because it means violence by men
against women.

3.

The law also does not include violence committed by women against children and
other women.

4.

He adds that gender alone is not enough basis to deprive the husband/father of
the remedies under it because its avowed purpose is to curb and punish spousal
violence. The said remedies are discriminatory against the husband/male gender.

5.

There being no reasonable difference between an abused husband and an abused

wife, theequal protection guarantee is violated.

Important and Essential Governmental Objectives:

1. Safeguard Human Rights,
2. Ensure Gender Equality and
3. Empower Women

International Laws

remedies

only

to

By constitutional mandate, the Philippines is committed to ensure that human rights

and fundamental freedoms are fully enjoyed by everyone.
1.

2.
3.

It was one of the countries that voted in favor of the Universal Declaration of
Human Rights (UDHR). In addition, the Philippines is a signatory to many United
Nations human rights treaties such as the
Convention on the Elimination of All Forms of Racial Discrimination,
the International Covenant on Economic, Social and Cultural Rights, the
International Covenant on Civil and Political Rights, the

4.

Convention Against Torture, and the

5.

Convention on the Rights of the Child, among others.

UDHR
As a signatory to the UDHR, the Philippines pledged itself to achieve the promotion
of universal respect for and observance of human rights and fundamental
freedoms, keeping in mind the standards under the Declaration. Among the
standards under the UDHR are the following:
Article 1. All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a spirit
of brotherhood.
xxxx
Article 7. All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal
protection against any discrimination in violation of this Declaration and against any
incitement to such discrimination.

Article 8. Everyone has the right to an effective remedy by the competent

national tribunals for acts violating the fundamental rights granted him by the
constitution or by law.

Declaration of Policy in RA 9262

enunciates the purpose of the said law, which is to fulfill the governments
obligation to safeguard the dignity and human rights of women and children by
providing effective remedies against domestic violence or physical, psychological,

and other forms of abuse perpetuated by the husband, partner, or father of the
victim.

The said law is also viewed within the context of the constitutional mandate
to ensure gender equality, which is quoted as follows:
Section 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men.

HELD:
RA 9262 is NOT UNCONSITUTIONAL.

1.

RA 9262 - compliance with the CEDAW

It has been acknowledged that "gender-based violence is a form of discrimination

that seriously inhibits women's ability to enjoy rights and freedoms on a basis of
equality with men." RA 9262 can be viewed therefore as the Philippines compliance
with the CEDAW, which is committed to condemn discrimination against women
and directs its members to undertake, without delay, all appropriate means to
eliminate discrimination against women in all forms both in law and in practice.

CEDAW
Known as the International Bill of Rights of Women, the CEDAW is the central and
most comprehensive document for the advancement of the welfare of women. The
CEDAW, in its preamble, explicitly acknowledges the existence of extensive
discrimination against women, and emphasized that such is a violation of the
principles of equality of rights and respect for human dignity.

2.

Philippines obligation as state-party to CEDAW

The Philippines is under legal obligation to ensure their development and

advancement for the improvement of their position from one of de jure as well
as de facto equality with men. The CEDAW, going beyond the concept of
discrimination used in many legal standards and norms, focuses on discrimination
against women, with the emphasis that women have suffered and are continuing to
suffer from various forms of discrimination on account of their biological sex.

The governmental objectives of protecting human rights and fundamental

freedoms, which includespromoting gender equality and empowering women, as
mandated not only by our Constitution, but also by commitments we have made
in the international sphere, are undeniably important and essential.

RA 9262 provides the widest range of reliefs for women and children who are
victims of violence, which are often reported to have been committed not by
strangers, but by a father or a husband or a person with whom the victim has or
had a sexual or dating relationship.

3.

The Gender-Based Classification in RA 9262 is Substantially Related to

the Achievement of Governmental Objectives

Historical Perspective:

A foreign history professor noted that: "from the earliest civilizations on,
the subjugation of women, in the form of violence, were facts of life,

Judeo-Christian religious ideas; Greek philosophy; and the Common Law Legal
Code: all "assumed patriarchy as natural; that is, male domination stemming
from the view of male superiority."

18th century legal expert William Blackstone, reflected the theological

assumption that: husband and wife were one body before God; thus "they were
one person under the law, and that one person was the husband," a concept that
evidently found its way in some of our Civil Code provisions prior to the enactment
of the Family Code.

Society and tradition dictate that the culture of patriarchy continues. Men are
expected to take on the dominant roles both in the community and in the family.

This perception naturally leads to men gaining more power over women power,
which must necessarily be controlled and maintained. Violence against women is
one of the ways men control women to retain such power.

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

family strengthened the male dominated structure of society.

the

patriarchal

English feudal law reinforced the tradition of male control over women.
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.

Statistics:
The enactment of RA 9262 was in response to the undeniable numerous cases
involving violence committed against women in the Philippines.

In 2012, the Philippine National Police (PNP) reported that 65% or 11,531 out of
15,969 cases involving violence against women were filed under RA 9262.

From 2004 to 2012, violations of RA. 9262 ranked first among the different
categories of violence committed against women. The number of reported cases
showed an increasing trend from 2004 to 2012,

The law recognizes, with valid factual support based on statistics that
women and children are the most vulnerable victims of violence, and
therefore need legal intervention. On the other hand, there is a dearth of
empirical basis to anchor a conclusion that men need legal protection
from violence perpetuated by women.

4.

Different treatment of women and men based on biological, social, and

cultural differences

The persistent and existing biological, social, and cultural differences between
women and men prescribe that they be treated differently under particular
conditions in order to achieve substantive equality for women. Thus, the
disadvantaged position of a woman as compared to a man requires the special
protection of the law, as gleaned from the following recommendations of
the CEDAWCommittee:

The Convention requires that women be given an equal start and that they be
empowered by an enabling environment to achieve equality of results. It is not
enough to guarantee women treatment that is identical to that of men. Rather,
biological as well as socially and culturally constructed differences between women
and men must be taken into account. Under certain circumstances, non-identical
treatment of women and men will be required in order to address such differences.
Pursuit of the goal of substantive equality also calls for an effective strategy aimed
at overcoming under representation of women and a redistribution of resources and
power between men and women.

Equality of results is the logical corollary of de facto or substantive equality. These

results may be quantitative and/or qualitative in nature; that is, women enjoying
their rights in various fields in fairly equal numbers with men, enjoying the same
income levels, equality in decision-making and political influence, and women
enjoying freedom from violence.

The governments commitment to ensure that the status of a woman in all spheres
of her life are parallel to that of a man, requires the adoption and implementation of
ameliorative measures, such as RA 9262. Unless the woman is guaranteed that the
violence that she endures in her private affairs will not be ignored by the
government, which is committed to uplift her to her rightful place as a human
being, then she can neither achieve substantive equality nor be empowered.

5.

RA 9262 justified under the Constitution

The Constitution abundantly authorize Congress or the government to actively
undertake ameliorative action that would remedy existing inequalities and
inequities experienced by women and children brought about by years of
discrimination. The equal protection clause when juxtaposed to this provision
provides a stronger mandate for the government to combat such discrimination.
Indeed, these provisions order Congress to "give highest priority to the enactment
of measures that protect and enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities and remove cultural inequities."

RA 9262 is THE ameliorative action

In enacting R.A. 9262, Congress has taken an ameliorative action that would
address the evil effects of the social model of patriarchy, a pattern that is deeply
embedded in the societys subconscious, on Filipino women and children and
elevate their status as human beings on thesame level as the father or the
husband.

R.A. 9262 aims to put a stop to the cycle of male abuses borne of discrimination
against women. It is an ameliorative measure, not a form of "reverse discrimination"
against.Ameliorative action "is not an exception to equality, but an expression
and attainment of de facto equality, the genuine and substantive equality which the
Filipino people themselves enshrined as a goal of the 1987 Constitution."
Ameliorative measures are necessary as a redistributive mechanism in an unequal
society to achieve substantive equality.

Ameliorative measures to achieve substantive equality

In the context of womens rights, substantive equality has been defined by the
Convention on the Elimination of all forms of Discrimination Against Women
(CEDAW) as equality which requires that women be given an equal start and that
they be empowered by an enabling environment to achieve equality of results. It is
not enough to guarantee women treatment that is identical to that of men.
Rather, biological as well as socially and culturally constructed differences between
women and men must be taken into account. Under certain circumstances, nonidentical treatment of women and men will be required in order to address such
differences.

Womens struggle for equality with men has evolved under three models:
1. Formal equality - women and men are to be regarded and treated as the same.
But this model does not take into account biological and socially constructed
differences between women and men. By failing to take into account these
differences, a formal equality approach may in fact perpetuate discrimination and
disadvantage.
2. Protectionist model this recognizes differences between women and men but
considerswomens weakness as the rationale for different treatment. This approach
reinforces the inferior status of women and does not address the issue of
discrimination of women on account of their gender.
3. Substantive equality model this assumes that women are "not vulnerable by
nature, but suffer from imposed disadvantage" and that "if these imposed

disadvantages were eliminated, there was no further need for protection." Thus, the
substantive equality model gives prime importance to womens contexts, realities,
and experiences, and the outcomes or results of acts and measures directed, at or
affecting them, with a view to eliminating the disadvantages they experience as
women.

6.

The gender-based classification of RA 9262 does not violate the Equal

Protection Clause(application of the substantive equality model)

The equal protection clause in our Constitution does not guarantee an absolute
prohibition against classification. The non-identical treatment of women and men
under RA 9262 is justified to put them on equal footing and to give substance to the
policy and aim of the state to ensure the equality of women and men in light of
the biological, historical, social, and culturally endowed differences
between men and women.

RA 9262, by affording special and exclusive protection to women and children, who
are vulnerable victims of domestic violence, undoubtedly serves the important
governmental objectives of protecting human rights, insuring gender equality, and
empowering women. The gender-based classification and the special remedies
prescribed by said law in favor of women and children are substantially related, in
fact essentially necessary, to achieve such objectives. Hence, said Act survives the
intermediate review or middle-tier judicial scrutiny. The gender-based classification
therein is therefore not violative of the equal protection clause embodied in the
1987 Constitution.

Justice Brion: As traditionally viewed, the constitutional provision of equal

protection simply requires that similarly situated persons be treated in the same
way. It does not connote identity of rights among individuals, nor does it require that
every person is treated identically in all circumstances. It acts as a safeguard to
ensure that State-drawn distinctions among persons are based on reasonable
classifications and made pursuant to a proper governmental purpose. In short,
statutory classifications are not unconstitutional when shown to be reasonable and
made pursuant to a legitimate government objective.

R.A. No. 9262 as a measure intended to strengthen the family. Congress found
that domestic and other forms of violence against women and children contribute to
the failure to unify and strengthen family ties, thereby impeding the States
mandate to actively promote the familys total development. Congress also found,
as a reality, that women and children are more susceptible to domestic and
other forms of violence due to, among others, the pervasive bias and prejudice
against women and the stereotyping of roles within the family environment that
traditionally exist in Philippine society. On this basis, Congress found it necessary to
recognize the substantial distinction within the family between men, on the one
hand, and women and children, on the other hand. This recognition, incidentally, is
not the first to be made in the laws as our law on persons and family under the Civil
Code also recognize, in various ways, the distinctions between men and women in
the context of the family.

Justice Leonen: It may be said that violence in the context of intimate

relationships should not be seen and encrusted as a gender issue; rather, it is a
power issue.

By concurring with these statements I express a hope: that the normative

constitutional requirements of human dignity and fundamental equality can become
descriptive reality. The socially constructed distinctions between women and men
that have afflicted us and spawned discrimination and violence should be
eradicated sooner. Power and intimacy should not co-exist.

The intimate spaces created by our human relationships are our safe havens from
the helter skelter of this world. It is in that space where we grow in the safety of the
special other who we hope will be there for our entire lifetime. If that is not possible,
then for such time as will be sufficient to create cherished memories enough to last
for eternity.

I concur in the ponencia. Against abominable acts, let this law take its full course.

Justice Abad: RA 9262 is a historic step in the Filipino women's long struggle to be
freed from a long-held belief that men are entitled, when displeased or minded, to
hit their wives or partners and their children. This law institutionalizes prompt

community response to this violent behavior through barangay officials who can
command the man to immediately desist from harming his home partner and their
children. It also establishes domestic violence as a crime, not only against its
victims but against society as well. No longer is domestic violence lightly dismissed
as a case of marital dispute that law enforcers ought not to get into.

Chief Justice Puno on Expanded Equal protection and Substantive Equality

Chief Justice Reynato S. Puno espouses that the equal protection clause can no
longer be interpreted as only a guarantee of formal equality but of substantive
equality. "It ought to be construed in consonance with social justice as the heart
particularly of the 1987 Constitutiona transformative covenant in which the
Filipino people agreed to enshrine asymmetrical equality to uplift disadvantaged
groups and build a genuinely egalitarian democracy." This means that the weak,
including women in relation to men, can be treated with a measure of bias that they
may cease to be weak.

Chief Justice Puno goes on: "The Expanded Equal Protection Clause, anchored on
the human rights rationale, is designed as a weapon against the indignity of
discrimination so that in the patently unequal Philippine society, each person
may be restored to his or her rightful position as a person with equal moral status."

CONCURRING OPINION
LEONEN, J.:
I join the ponencia in denying the challenge to the constitutionality of Republic Act No. 9262
otherwise known as the "Anti-Violence against Women and their Children Act of 2004" at least for
this case. I write separately to clarify the basis of my agreement.
The petitioner is not the victim in this case. He does not have legal standing to raise the
constitutional issue.
He appears to have inflicted violence against private respondents. Petitioner admitted having an
affair with a bank manager. He callously boasted about their sexual relations to the household help.
His infidelity emotionally wounded private respondent. Their quarrels left her with bruises and
hematoma. Petitioner also unconscionably beat up their daughter, Jo-ann, whom he blamed for
squealing on him.
All these drove respondent to despair causing her to attempt suicide on December 17, 2005 by
slitting her wrist. Instead of taking her to the hospital, petitioner left the house. He never visited her
when she was confined for seven (7) days. He even told his mother-in-law that respondent should

just accept his extramarital affair since he is not cohabiting with his paramour and has not sired a
child with her.
The private respondent was determined to separate from petitioner. But she was afraid he would
take away their children and deprive her of financial support. He warned her that if she pursued legal
battle, she would not get a single centavo from him. After she confronted him of his affair, he forbade
her to hold office at JBTC Building. This deprived her of access to full information about their
businesses.
Thus, the Regional Trial Court found reasonable ground to believe there was imminent danger of
violence against respondent and her children and issued a series of Temporary Protection Orders
(TPO) ordering petitioner, among other things, to surrender all his firearms including a .9MM caliber
firearm and a Walther PPK.
This is the quintessential case where the full effects of Republic Act No. 9262 or the "VAWC" should
take effect.
Seen in this light, petitioners belated challenge to the law is nothing but a cheap attempt to raise
cherished fundamental constitutional principles to escape legal responsibility for causing indignities
in another human being. There is enough in our legal order to prevent the abuse of legal principles
to condone immoral acts.
For us to proceed to rule on Constitutional issues, we have required that: (1) there must be an actual
case or controversy calling for the exercise of judicial power; (2) the person challenging the act must
have "standing" to challenge; he must have a personal and substantial interest in the case, such that
he has sustained or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.1
Legal standing in cases that raise constitutional issues is essential. Locus standi is defined as "a
right of appearance in a court of justice on a given question." 2 The fundamental question is "whether
a party alleges such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions. 3
In private suits, standing is governed by the "real-parties-in-interest" rule under Section 2, Rule 3 of
the 1997 Rules of Civil Procedure in that "every action must be prosecuted or defended in the name
of the real party-in-interest."4 "Interest" means material interest or an interest in issue to be affected
by the judgment of the case, as distinguished from mere curiosity about the question involved. 5
Thus, there must be a present substantial interest as distinguished from a mere inchoate expectancy
or a future, contingent, subordinate, or consequential interest. 6 Standing is based on ones own right
to the relief sought.
The doctrine of locus standi in cases raising constitutional issues frames the power of judicial review
that we wield. This is the power "to settle actual controversies involving rights which are legally
demandable and enforceable" as well as "to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess jurisdiction on the part of any branch or instrumentality of
the Government."7

The presence of an "actual case" prevents this Court from providing advisory opinions or using its
immense power of judicial review absent the presence of a party with real and substantial interests
to clarify the issues based upon his/her experience and standpoint. It prevents this Court from
speculating and rendering rulings on the basis of pure theory. Our doctrines on justiciability are selfimposed applications of a fundamental view that we accord a presumption of constitutionality to acts
done by the other constitutional organs and departments of government. Generally, we do not strike
down acts done by co-equal departments until their repugnancy to the Constitution can be shown
clearly and materially.
I am aware of our precedents where this Court has waived questions relating to the justiciability of
the constitutional issues raised when they have "transcendental importance" to the public. 8 In my
view, this accommodates our power to promulgate guidance "concerning the protection and
enforcement of constitutional rights". 9 We choose to rule squarely on the constitutional issues in a
petition wanting all or some of the technical requisites to meet our general doctrines on justiciability
but raising clear conditions showing imminent threat to fundamental rights. The imminence and
clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. In a
sense, our exceptional doctrine relating to constitutional issues of "transcendental importance"
prevents courts from the paralysis of procedural niceties when clearly faced with the need for
substantial protection.
That necessity is wanting in this case.
The extraordinary discretion to move beyond the well established doctrines on justiciability must be
carefully exercised in cases involving social legislation that seeks to rectify historical and cultural
injustices present in our communities and societies. As carefully pointed out in the erudite ponencia
of Justice Perlas-Bernabe, Republic Act No. 9262 was borne out of the struggles of countless
women who suffered indignities. It cannot be undone by a petition filed by someone who cannot, by
any stretch of the most fertile imagination, be considered the victim.
Nevertheless, in a future case more deserving of our attention, we should be open to realities which
may challenge the dominant conception that violence in intimate relationships only happens to
women and children. This may be predominantly true, but even those in marginal cases deserve
fundamental constitutional and statutory protection. We should be careful that in correcting historical
and cultural injustices, we may typecast all women as victims, stereotype all men as tormentors or
make invisible the possibility that in some intimate relationships, men may also want to seek succor
against acts defined in Section 5 of Republic Act No. 9262 10 in an Husband abuse may be an
underreported form of family violence. 11 According to a Quezon City Police District Crime Laboratory
chief, in his 10 years as medico-legal officer, he had only received three cases of men complaining
of spousal abuse.12
Another recent study found the same underreporting but explored the experiences of abuse in
intimate relationships of six Filipino husbands.13 Their experiences were described as follows:
All the participants acknowledged that they experienced abuse, but the forms differed from one
husband to another. Four out of the six participants admitted that their spouses abusive behavior
would initially start with verbal attacks and put-downs then would shift to physical abuse as their
verbal tussle intensified. Most of the abuses cited by the participants happened in the confines of
their home, but could also happen in public places.
The constant threats, in the long term, affected the emotional and psychological well being of the
participants. Four of the husbands felt that their spouses were capable of carrying out their threats.
The frequent and long fights could be emotionally draining. Throughout the duration of marriage, EC

suffered emotionally from the "weird" marital set-up. For TG, emotional abuse was associated with
shattered trust.
The physical abuse for some participants became life-threatening to the extent that the injury
incurred needed medical attention. Their spouses could use weapons against them. Four
participants described the incidents that led to their injuries. Coming home one night, RE saw "this
mono block chair flyinghit meright on the nose." DL narrated "pumunta ako ng doctor on my
own para ipalinis yung sugat ko." According to HM, his wound from a knife attack was wide and deep
and needed "some stiches." JL had to contend with the long scratches in his chest and back. RE
almost lost an eye when he was hit with a straight punch of the spouse. JL, RE, and DL would lie to
colleagues to avoid being laughed at. DL had to be absent from his work after being hit by a flying de
lata (canned good) thrown at him during a fight.
Emotional abuse co-existed with verbal and/or physical abuse. The participants who were recipients
of physical abuse were also emotionally abused when they became susceptible to stress and threats
of the abuser. JL felt guilty when the spouse carried out her threat of killing herself by intentionally
taking an overdose of pills in the middle of an intense disagreement.
Emotional abuse could occur without physical abuse and yet its effects were still devastating. For
instance, EC and TG were devastated by the lies and deceit of their spouses. The spouses threats
of suicide (JL), abandonment (RE), or taking their children away after a fight (DL) were as
distressing as the other forms of abuse experienced by the participants. 14
Social and cultural expectations on masculinity and male dominance urge men to keep quiet about
being a victim, adding to the unique experience of male victims of domestic abuse. 15 This leads to
latent depression among boys and men. 16 In a sense, patriarchy while privileging men also victimizes
them.
It is true that numerous literature relate violence against women with the historically unequal power
relations between men and women, leading to domination over and discrimination against the
latter.17 Sociologists cite the 18th-century English legal tradition on the "rule of thumb" giving
husbands the right to beat their wives with a stick no thicker than a thumb. 18 In America, women were
regarded as property until the latter half of the 19th century with marital violence considered a
husband's privilege and men, as of right, exercised physical domination over women. 19
The perspective portraying women as victims with a heritage of Victimization 20 results in the
unintended consequence of permanently perceiving all women as weak. This has not always been
accepted by many other strands in the Feminist Movement.
As early as the 70s, the nationalist movement raised questions on the wisdom of a womens
movement and its possible divisive effects, as "class problems deserve unified and concentrated
attention while the women question is vague, abstract, and does not have material base." 21
In the early 80s, self-identifying feminist groups were formed. 22 The "emancipation theory" posits that
female crime has increased and has become more masculine in character as a result of the
women's liberation movement.23
Feminism also has its variants among Muslims. In 2009, Musawah ("equality" in Arabic) was
launched as a global movement for equity and justice in the Muslim family. It brought together
activists, scholars, legal practitioners, policy makers, and grassroots women and men from all over
the world.24 Their belief is that there cannot be justice without equality, and its holistic framework

integrates Islamic teachings, universal human rights, national constitutional guarantees of equality,
and the lived realities of women and men. 25
There is now more space to believe that portraying only women as victims will not always promote
gender equality before the law. It sometimes aggravates the gap by conceding that women have
always been dominated by men. In doing so, it renders empowered women invisible; or, in some
cases, that men as human beings can also become victims.
In this light, it may be said that violence in the context of intimate relationships should not be seen
and encrusted as a gender issue; rather, it is a power issue. 26 Thus, when laws are not genderneutral, male victims of domestic violence may also suffer from double victimization first by their
abusers and second by the judicial system. 27Incidentally, focusing on women as the victims
entrenches some level of heteronormativity.28 It is blind to the possibility that, whatever moral
positions are taken by those who are dominant, in reality intimate relationships can also happen
between men.29
I accept that for purposes of advocacy and for a given historical period, it may be important to
highlight abuse of women qua women. 30 This strategy was useful in the passing of Republic Act No.
9262. It was a strategy that assured that the problem of battered women and children in the context
of various intimate relationships becomes publicly visible. However, unlike advocacy, laws have the
tendency to be resilient and permanent. Its existence may transcend historical periods that dictate
effective advocacy. Laws also have a constitutive function - the tendency to create false
consciousness when the labels and categories it mandates succeed in reducing past evils but turn a
blind eye to other issues.
For instance, one of the first cases that laid down the requisites for determining whether there was a
violation of the equal protection of the law clause of the Constitution was the 1939 case of People v.
Cayat.31 It laid down the requirements of reasonable classification which requires that it (a) must rest
on substantial distinctions, (b) must be germane to the purposes of the law, (c) must not be limited to
existing conditions only, and (d) must apply equally to all members of the same class. 32 Even as early
as 1919, the Court in Rubi v. Provincial Board of Mindoro 33 recognized the concept of reasonable
classification holding that "the pledge that no person shall be denied the equal protection of the laws
is not infringed by a statute which is applicable to all of a class. The classification must have a
reasonable basis and cannot be purely arbitrary in nature." 34
Yet, it is in these two cases that the Court concluded the following:
As authority of a judicial nature is the decision of the Supreme Court in the case of United States vs.
Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a tribal marriage
in connection with article 423 of the Penal Code concerning the husband who surprises his wife in
the act of adultery. In discussing the point, the court makes use of the following language:
x x x we are not advised of any provision of law which recognizes as legal a tribal marriage of socalled non-Christians or members of uncivilized tribes, celebrated within that province without
compliance with the requisites prescribed by General Orders No. 68 x x x. We hold also that the fact
that the accused is shown to be a member of an uncivilized tribe, of a low order of intelligence,
uncultured and uneducated, should be taken into consideration as a second marked extenuating
circumstance...35 (Emphasis supplied)
The description of the label and the stereotype of "non-Christian tribe" would later on be corrected by
the Constitution,36 law,37 and jurisprudence.38

The description of the label and the stereotype that only women can be considered victims may also
evolve in the same way. We should hope that the situation of patriarchy will not be permanent.
Better cultural structures more affirming of human dignity should evolve. 39
1wphi1

In a future case, the fact that there may be battered men should not cause the nullification of
protections given to women and children.
The Constitution states that: "the State values the dignity of every human person and guarantees full
respect for human rights."40 The guarantee of full respect should not mean that protections already
given to those who suffer historical or cultural prejudices should be automatically rescinded if only
the scope of the law is found wanting.
Our Constitution also mandates that the State "shall ensure the fundamental equality before the law
of women and men."41 This is similar to the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW)42 which requires that the Philippines as state party 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."43 The use of affirmative language should imply that in the proper suit, a
declaration of unconstitutionality on the ground of the equal protection should not automatically
mean that the entire social legislation that provides effective and efficient protection of women be set
aside.
We have declared that "an unconstitutional act is not a law; it confers no rights; it imposes no duties;
it affords no protection; it creates no office; it is x x x as inoperative as though it had never been
passed."44 However, the seemingly all-inclusive statement of absolute retroactive invalidity may not
always be justified.45 One established exception is the doctrine of operative fact.
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration.
The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on
those who have relied on the invalid law.46
The possibility that the constitutionality of Republic Act No. 9262 may be challenged by male victims
of abuse in intimate relationships ventures to carve another exception if this court is to ensure the
guarantee of fundamental equality before the law of women and men 47 as well as value the dignity of
every human person.48 Applying the general rule or the existing doctrine of operative facts would
mean removing the protection afforded to women. It will thus contradict the very reason it is being
assailed and result to an even worse state of laws where none is protected from intimate violence.
But again, it is not in this case that we consider these possibilities.
By concurring with these statements I express a hope: that the normative constitutional requirements
of human dignity and fundamental equality can become descriptive reality. The socially constructed
distinctions between women and men that have afflicted us and spawned discrimination and
violence should be eradicated sooner. Power and intimacy should not co-exist.

The intimate spaces created by our human relationships are our safe havens from the helter skelter
of this world. It is in that space where we grow in the safety of the special other who we hope will be
there for our entire lifetime. If that is not possible, then for such time as will be sufficient to create
cherished memories enough to last for eternity.
I concur in the ponencia. Against abominable acts, let this law take its full course.
MARVIC MARIO VICTOR FAMORCA LEONEN
Associate Justice