Incompetent or vicious

When a law is sufficiently basic, a judge owes it to his office to simply apply it; anything less than that would constitute gross ignorance of the law. This is the rule applied in this case of a Regional Trial Court (RTC) Lady Judge (Judge AC).

One of the cases assigned to Judge AC involves R.A. 9262 also known as the “Anti Violence against Women and their Children Act of 2004” particularly about the issuance of a Temporary Protective Order (TPO). The case is between husband and wife, Al and Ana and their daughter Rina who is in the custody of Ana.

On May 7, 2007, upon a complaint filed by Al against Ana, Judge AC issued a TPO against Ana granting the temporary custody of Rina to Al after considering the psychological evaluation report of the doctor, the statements of Rina’s yaya and of Rina herself showing that Ana was not really the ideal person to whom custody of Rina should be awarded.

The same TPO issued against Ana also directed her to stay away from the home and office of Al, to cease and desist from harassing, intimidating or threatening Al and to refrain from acts or omissions that create an unreasonable risk to the health, safety or welfare of Al.

Per the Sherriff’s return on May 8, 2007 however, the TPO was not fully implemented insofar as the turning over of Rina’s custody to Al. This irked Al resulting in a heated argument between him and the Clerk of Court. Al insisted that a break open order be issued or that the Sherriff be permitted to enter the premises of Ana to search for the child then bring her to the court. On the same day Judge AC issued an order authorizing the Sherriff granting Al’s demand.

The Office of the Court Administrator found that Judge AC’s speedy issuance of the orders dated May 7 and May 8, 2007 not only showed her unusual interest in the case but it also appeared to be tailor fitted to suit Al’s wishes as expressed in the latter’s heated argument with the Branch Clerk of Court. And because of reports of rampant selling of TPOs at that time, the OCA recommended that Judge AC be administratively charged, among others, for gross ignorance of the law because under R.A. 9262, the TPO is issued only if the applicant is a woman and not a man like Al. Was the OCA correct?

Yes. Under R.A. 6292, a TPO cannot be issued in favor of a man against his wife. It is specifically applicable to “women and their children” not to men. As a family court judge, Judge AC is expected to know the correct implementation of said law. She should be the last person to err in the application of R.A. 9262 by issuing a TPO in favor of a man purportedly to protect him against his wife. Certainly such a TPO is absurd and anomalous. Thus while the TPO may be justified with respect to the protection accorded to their minor daughter, Rina, the same is not legally feasible with respect to Al.

When the inefficiency in the discharge of a duty springs from a failure to consider a rule, a law or a principle that is so basic and elementary, a judge is either too incompetent and undeserving of the position or title he holds or is too vicious that the oversight or omission can be considered as deliberately done in bad faith and in grave abuse of judicial authority.

Hence Judge AC’s error in this regard is gross ignorance of the law for which she should be punished with suspension from office for six months without salary and other benefits (OCA vs. Arcaya-Chua, A.M. RTJ-07-2049, consolidated with Ocampo vs. Arcaya-Chua, A.M. OCA I.P.I. 07-2630-RTJ, 619 SCRA, 59, 69, 93).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call Tel. 7249445.

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