SPL NOTES

MALA IN SE VS. MALA PROHIBITA Mala in se Mala prohibita

Mitigating andMitigating and

Mala in se Mala prohibita aggravating aggravating
circumstances arecircumstances are
Wrong from its veryWrong because it is taken into account ingenerally not taken
nature, such as theft,prohibited by statute, imposing the penalty into account
rape, homicide, etc such as illegal
possession of firearms When there is moreDegree of participation
than one offender, theis generally not taken
degree of participationinto account. All who
So serious in theirViolations of mere of each in theparticipated in the act
effects on society asrules of convenience commission of theare punished to the
to call for almostdesigned to secure a crime is taken intosame extent
unanimous more orderly account
condemnation of itsregulation of the affairs
members of society Penalty is computedThe penalty imposed
on the basis ofon the offenders are
Good faith is a validGood faith is not a whether he is athe same whether they
defense; unless thedefense principal offender, orare merely
crime is the result of merely an accompliceaccomplices or
culpa or accessory accessories

Intent is an element Criminal intent is

immaterial; the only
inquiry is: has the law
been violated?;
criminal intent not
necessary where the
acts are prohibited for
reasons of public
policy, as in illegal
possession of firearms
Term refers generallyTerm refers generally
to felonies defined andto acts made criminal
penalized by the RPC by special laws
There are crimes in the RPC which were
originally defined and penalized by special
laws. Among them are possession of opium,
malversation, brigandage and libel.
The degree ofThe act gives rise to a
accomplishment of thecrime only when it is
crime is taken intoconsummated
account in punishing
the offender
Complied and Transcribed by STEPHANIE NARVAEZ
WHEN THE ACTS ARE INHERENTLY
IMMORAL, THEY ARE MALA IN SE, EVEN IF
PUNISHED UNDER SPECIAL LAW.
People vs. Sunico, et al
(C.A., 50 o.g. 5880)
Facts: The accused were election inspectors
and poll clerks whose duty among others was
to transfer the names of excess voters in other
precincts to the list of a newly created precinct.
Several voters were omitted in the list.
Because their names were not in the list, some
of them were not allowed to vote. The accused
were prosecuted for violation of Secs. 101 and
103 of the Revised Election Code. The
accused claimed that they made the omission
in good faith.
The trial court seemed to believe that
notwithstanding the fact that the accused
committed in good faith the serious offense
charged, the latter are criminally responsible
therefor, because such offense is malum
prohibitum, and, consequently, the act
constituting the same need not be committed
with malice or criminal intent to be punishable.
Held: The acts of the accused cannot be
merely mala prohibita - they are mala per se .
1
 SPL NOTES
The omission or failure to include a voters
name in the registry list of voters is not only
wrong because it is prohibited; it is wrong per
se because it disenfranchises a voter and
violates one of his fundamental rights. Hence,
for such act to be punishable, it must be shown
that it has been committed with malice. There
is no clear showing in the instant case that the
accused intentionally, willfully and maliciously
omitted or failed to include in the registry list of
voters the names of those voters. They cannot
be punished criminally.
* the Revised Election Code, as far as its penal
provisions are concerned, is a special law, it
being not a part of the RPC or its amendments.
ACT 3326 - AN ACT TO ESTABLISH
PERIODS OF PRESCRIPTION FOR
VIOLATIONS PENALIZED BY SPECIAL
ACTS AND MUNICIPAL ORDINANCES AND
TO PROVIDE WHEN PRESCRIPTION SHALL
BEGIN TO RUN
Section 1. Violations penalized by special acts
shall, unless otherwise provided in such acts,
prescribe in accordance with the following
rules:
(a) after a year for offenses punished only by a
fine or by imprisonment for not more than one
month, or both;
(b) after four years for those punished by
imprisonment for more than one month, but
less than two years;
(c) after eight years for those punished by
imprisonment for two years or more, but less
than six years; and
(d) after twelve years for any other offense
punished by imprisonment for six years or
more, except the crime of treason, which shall
prescribe after twenty years. Provided,
however, That all offenses against any law or
part of law administered by the Bureau of
Internal Revenue shall prescribe after five
years. Violations penalized by municipal
ordinances shall prescribe after two months.
(As amended by Act No. 3585 and by Act No.
3763, approved November 23, 1930.)
Sec. 2. Prescription shall begin to run from the
day of the commission of the violation of the
law, and if the same be not known at the time,
from the discovery thereof and the institution of
Complied and Transcribed by STEPHANIE NARVAEZ
judicial proceeding for its investigation and
punishment.
The prescription shall be interrupted
when proceedings are instituted against the
guilty person, and shall begin to run again if
the proceedings are dismissed for reasons not
constituting jeopardy.
Sec. 3. For the purposes of this Act, special
acts shall be acts defining and penalizing
violations of the law not included in the Penal
Code.
Sec. 4. This Act shall take effect on its
approval.
Approved: December 4, 1926
Panaguiton Jr vs Department of Justice
G.R. No. 167571
November 25, 2008
Facts:
Based from the facts culled from the records, in
1992, Rodrigo Cawili borrowed various sums of
money amounting to P1,979,459.00 from
petitioner. On 8 January 1993, Cawili and his
business associate, Ramon C. Tongson, jointly
issued in favor of petitioner three (3) checks in
payment of the said loans. Significantly, all
three (3) checks bore the signatures of both
Cawili and Tongson. Upon presentment for
payment on 18 March 1993, the checks were
dishonored, either for insufficiency of funds or
by the closure of the account. Petitioner made
formal demands to pay the amounts of the
checks upon Cawili on 23 May 1995 and upon
Tongson on 26 June 1995, but to no avail.
On 24 August 1995, petitioner filed a
complaint against Cawili and Tongson for
violating Batas Pambansa Bilang 22 (B.P. Blg.
22) before the Quezon City Prosecutor's
Office. During the preliminary investigation,
only Tongson appeared and filed his counter-
affidavit. However, Tongson claimed that he
had been unjustly included as party-
respondent in the case since petitioner had lent
money to Cawili in the latter's personal
capacity. Tongson averred that he was not
Cawili's business associate; in fact, he himself
had filed several criminal cases against Cawili
for violation of B.P. Blg. 22. Tongson denied
that he had issued the bounced checks and
pointed out that his signatures on the said
checks had been falsified.
2
SPL NOTES
To counter these allegations,
petitioner presented several documents
showing Tongson's signatures, which were
purportedly the same as those appearing on
the checks. He also showed a copy of an
affidavit of adverse claim wherein Tongson
himself had claimed to be Cawili's business
associate.
In a resolution dated 6 December
1995, City Prosecutor III Eliodoro V. Lara found
probable cause only against Cawili and
dismissed the charges against Tongson.
Petitioner filed a partial appeal before the
Department of Justice (DOJ) even while the
case against Cawili was filed before the proper
court. In a letter-resolution dated 11 July 1997,
after finding that it was possible for Tongson to
co-sign the bounced checks and that he had
deliberately altered his signature in the
pleadings submitted during the preliminary
investigation, Chief State Prosecutor Jovencito
R. Zuo directed the City Prosecutor of
Quezon City to conduct a reinvestigation of the
case against Tongson and to refer the
questioned signatures to the National Bureau
of Investigation (NBI).
Tongson moved for the
reconsideration of the resolution, but his
motion was denied for lack of merit.
On 15 March 1999, Assistant City
Prosecutor Ma. Lelibet S. Sampaga (ACP
Sampaga) dismissed the complaint against
Tongson without referring the matter to the NBI
per the Chief State Prosecutor's resolution. In
her resolution, ACP Sampaga held that the
case had already prescribed pursuant to Act
No. 3326, as amended, which provides that
violations penalized by B.P. Blg. 22 shall
prescribe after four (4) years.
Petitioner appealed to the DOJ. But the DOJ,
through Undersecretary Manuel A.J.
Teehankee, dismissed the same, stating that
the offense had already prescribed pursuant to
Act No. 3326. Petitioner filed a motion for
reconsideration of the DOJ resolution.
On 3 April 2003, the DOJ, this time
through then Undersecretary Ma. Merceditas
N. Gutierrez, ruled in his favor and declared
that the offense had not prescribed and that
the filing of the complaint with the prosecutor's
office interrupted the running of the prescriptive
period citing Ingco v. Sandiganbayan.
However, in a resolution dated 9
August 2004, the DOJ, presumably acting on a
Complied and Transcribed by STEPHANIE NARVAEZ
motion for reconsideration filed by Tongson,
ruled that the subject offense had already
prescribed and ordered "the withdrawal of the
three (3) informations for violation of B.P. Blg.
22" against Tongson. In justifying its sudden
turnabout, the DOJ explained that Act No.
3326 applies to violations of special acts that
do not provide for a prescriptive period for the
offenses thereunder. Since B.P. Blg. 22, as a
special act, does not provide for the
prescription of the offense it defines and
punishes, Act No. 3326 applies to it, and not
Art. 90 of the Revised Penal Code which
governs the prescription of offenses penalized
thereunder.
Petitioner thus filed a petition for
certiorari before the Court of Appeals assailing
the 9 August 2004 resolution of the DOJ. The
petition was dismissed by the Court of Appeals
in view of petitioner's failure to attach a proper
verification and certification of non-forum
shopping. In the instant petition, petitioner
claims that the Court of Appeals committed
grave error in dismissing his petition on
technical grounds and in ruling that the petition
before it was patently without merit and the
questions are too unsubstantial to require
consideration.
The DOJ, in its comment, states that
the Court of Appeals did not err in dismissing
the petition for non-compliance with the Rules
of Court. It also reiterates that the filing of a
complaint with the Office of the City Prosecutor
of Quezon City does not interrupt the running
of the prescriptive period for violation of B.P.
Blg. 22. It argues that under B.P. Blg. 22, a
special law which does not provide for its own
prescriptive period, offenses prescribe in four
(4) years in accordance with Act No. 3326.
Issue:
Whether there is prescriptive period upon
violating B.P. Blg. 22 per Act No. 3326 and not
Art. 90 of the RPC, on the institution of judicial
proceedings for investigation and punishment?
Held:
It must be pointed out that when Act No. 3326
was passed on 4 December 1926, preliminary
investigation of criminal offenses was
conducted by justices of the peace, thus, the
phraseology in the law, "institution of judicial
3
SPL NOTES
proceedings for its investigation and
punishment," and the prevailing rule at the time
was that once a complaint is filed with the
justice of the peace for preliminary
investigation, the prescription of the offense is
halted.
Although, Tongson went through the proper
channels, within the prescribed periods.
However, from the time petitioner filed his
complaint-affidavit with the Office of the City
Prosecutor (24 August 1995) up to the time the
DOJ issued the assailed resolution, an
aggregate period of nine (9) years had
elapsed. Clearly, the delay was beyond
petitioner's control. After all, he had already
initiated the active prosecution of the case as
early as 24 August 1995, only to suffer
setbacks because of the DOJ's flip-flopping
resolutions and its misapplication of Act No.
3326.
Aggrieved parties, especially those
who do not sleep on their rights and actively
pursue their causes, should not be allowed to
suffer unnecessarily further simply because of
circumstances beyond their control, like the
accused's delaying tactics or the delay and
inefficiency of the investigating agencies.
The court rules and so hold that the
offense has not yet prescribed. Petitioners
filing of his complaint-affidavit before the Office
of the City Prosecutor on 24 August 1995
signified the commencement of the
proceedings for the prosecution of the accused
and thus effectively interrupted the prescriptive
period for the offenses they had been charged
under B.P. Blg. 22. Moreover, since there is a
definite finding of probable cause, with the
debunking of the claim of prescription there is
no longer any impediment to the filing of the
information against petitioner.
WHEREFORE, the petition
GRANTED. The resolutions of the Court of
Appeals dated 29 October 2004 and 21 March
2005 are REVERSED and SET ASIDE. The
resolution of the Department of Justice dated 9
August 2004 is also ANNULLED and SET
ASIDE. The Department of Justice is
ORDERED to REFILE the information against
the petitioner. No costs.
P.D. NO. 1866, as amended by R.A. NO.
8294, otherwise known as AN ACT
AMENDING THE PROVISIONS OF
Complied and Transcribed by STEPHANIE NARVAEZ
PRESIDENTIAL DECREE NO. 1866, AS
AMENDED, ENTITLED CODIFYING THE
LAWS ON ILLEGAL/UNLAWFUL
POSSESSION, MANUFACTURE, DEALING
IN, ACQUISITION OR DISPOSITION OF
FIREARMS, AMMUNITION OR EXPLOSIVES
OR INSTRUMENTS USED IN THE
MANUFACTURE OF FIREARMS,
AMMUNITION OR EXPLOSIVES, AND
IMPOSING STIFFER PENALTIES FOR
CERTAIN VIOLATIONS THEREOF, AND FOR
RELEVANT PURPOSES
CHANGES MADE BY R.A. NO. 8294 on P.D.
NO. 1866:
The new law made the following
changes:
1. The use of unlicensed firearm to commit
homicide or murder is now an aggravating
circumstance hence only one crime is
committed. I.e., homicide or murder and
therefore only one information shall be filed.
2. Violation of Section 3 in furtherance of or
incident to, or in connection with the crime of
rebellion, insurrection, sedition or attempted
coup detat, shall be absorbed as an element
of the crime of rebellion or insurrection,
sedition or attempted coup, thus such use has
no effect on the penalty.
3. The penalty for mere possession of
unlicensed firearm shall be based on whether
the firearm is low-powered or high-powered.
High-powered firearms are those with bores
bigger than .38 cal. And 9 mm and those with
lesser bores but considered as powerful, such
as a .357 cal. And .22 center-fire magnum, and
firearms with firing capability of full automatic
or by a burst of two or three.
4. Unlicensed firearm shall include:
is a. Firearms with expired license; or
b. Unauthorized use of licensed firearm in
the commission of the crime.
5. Simple illegal possession of firearms can
only be committed if no other crime was
committed with such firearm by the possessor.
Unlicensed firearm no longer simply
means a firearm without a license duly issued
by lawful authority. The scope of the term has
been expanded in Section 5 of R.A. 8294 to
include unauthorized use of a weapon which
4
 SPL NOTES
has been duly licensed in the name of its
owner/possessor, thus may still aggravate the
resultant crime. In the case at bar, although
appellants may have been issued their
respective licenses to possess firearms, their
carrying of such weapons outside their
residences and their unauthorized use thereof
in the killing of Bonifacio may be appreciated
as a special aggravating circumstance in
imposing the proper penalty for murder (People
v. Castillo).
Only one offense should be punished,
viz: either homicide or murder, and the use of
the unlicensed firearm should only be
considered as an aggravating circumstance.
Being a favorable statute, this provision may be
given retroactive application. Considering that
accused in fact was convicted for parricide, it
follows that he should be acquitted in the case
for illegal possession of firearm (People v.
Nepomuceno, G.R. No. 130800, June 29,
1999) (NOTE: although the law specified
murder or homicide, the SC applied the same
to parricide. By parity of reasoning, it appears
that the provision should as well apply to
infanticide)
UNLICENSED FIREARM shall include:
(a) firearms with expired license; or
(b) Unauthorized use of licensed firearm in the
commission of the crime.
In a case, the accused committed
homicide and frustrated homicide with the use
of unlicensed firearm but was charged for
illegal possession of firearm under an
information separate from the charges for
homicide and frustrated homicide which were
raffled to different branches. The cases were
tried separately because they were not
consolidated. Thus, the accused can be
convicted for simple illegal possession of
firearm because the evidence as to the
homicide was neither presented nor adopted in
the trial court trying the illegal possession case
(People vs. Nunez, G.R. No. 112092, March 1,
2001). In other words, for the use of unlicensed
firearm to be merely an aggravating
circumstance, only one information should be
filed and the trial should be joint for both the
homicide/murder and the illegal possession. If
two informations were filed and tried
separately, the accused can be convicted for
both.
Complied and Transcribed by STEPHANIE NARVAEZ
P.D. 1866, which codified the laws on
illegal possession of firearms, was amended
on June 6, 1997 by R.A no. 8294. Aside from
lowering the penalty for said crime, RA 8294
also provided that if homicide or murder is
committed with the use of an unlicensed
firearm, such use shall be considered as a
special aggravating circumstance. This
amendment has two implications:
1) the use of an unlicensed firearm in the
commission of homicide or murder shall not be
treated as a separate offense, but merely as a
special aggravating circumstance;
2) As only a single crime (homicide or murder
with the aggravating circumstance of illegal
possession of firearm) is committed under the
law, only one penalty shall be imposed on the
accused (People vs. Castillo. G.R. Ons.
131592-93, February 15, 2000).
* Murder and homicide, as defined and
penalized under the RPC as crimes against
persons, are mala in se because malice or
dolo is a necessary ingredient therefor.
* Illegal possession of firearm is defined and
punished by a special penal law, PD No. 1866.
It is a malum prohibitum which the lawmaker
so condemned not only because of its nature
but also because of the larger policy
consideration of containing or reducing, if not
eliminating, the upsurge of crimes vitally
affecting public order and safety due to the
proliferation of illegally possessed and
manufactured firearms, ammunition and
explosives. If intent to commit the crime were
required, enforcement of the decree and its
policy or purpose would be difficult to achieve.
Hence there is conceded wisdom in punishing
illegal possession of firearm without taking into
account the criminal intent of possessor. All
that is needed is intent to perpetrate the act
prohibited by law, coupled by animus
possidendi. However, it must be clearly
understood that this animus possidendi is
without regard to any other criminal or
felonious intent which an accused may have
harbored in possessing the firearm (People v.
Quijada, G.R. Nos. 115008-09, July 24, 1996).
In crimes involving illegal possession
of firearm, the prosecution has the burden of
proving the elements thereof, viz:
5
 SPL NOTES
1. The existence of the subject firearm; and
2. The fact that the accused who owned or
possessed it does not have the corresponding
license or permit to possess the same.
The latter is a negative fact, which
constitutes an essential ingredient of the
offense of illegal possession, and it is the duty
of the prosecution not only to allege it but also
to prove it beyond reasonable doubt (People
vs. Tiozon, GR 89823).
* Even if accused cannot explain why he
The testimony of a representative of,
or a certification from the PNP-FEU that
offender was not a licensee of the said firearm
would suffice for the prosecution to prove
beyond reasonable donut the second element
of the crime of illegal possession (People vs.
Salayao, gr. No. 119220). The absence of the
testimony or certification is fatal to the
prosecutions case and renders the conviction
erroneous (Mallari vs. CA).
* the essence of the crime is the lack of license
or permit to carry or possess firearm,
ammunition or explosive. Possession by itself
is not prohibited by law.
* To consider the firearm used in a homicide as
illegally possessed and thus aggravating, the
fact that the accused who used the gun did not
have the corresponding license or permit to
carry it outside his residence, must be
established beyond reasonable doubt by the
prosecution. Although the accused himself
admitted that he had no license for the gun
recovered from him, his admission will not
relieve the prosecution of its duty to establish
beyond reasonable doubt the lack of license or
permit to possess the gun. The admission is
extrajudicial and thus insufficient to prove
beyond doubt the commission of the crime.
Hence, the accused may only be held liable for
simple homicide (People vs. Castillo).
* it is really doubtful that paltik can be licensed
because it has no serial number, it is
homemade, hence, the maker will not issue an
official receipt for its sale which is indeed illegal
sale.
* The essence of the crime is primarily the lack
of license or permit to carry or possess the
Complied and Transcribed by STEPHANIE NARVAEZ
firearm, explosive or ammunition for
possession by itself is not prohibited by law. In
the case of an explosive, a permit or license to
possess is usually granted to mining
corporations, military personnel and other
legitimate users. As the prosecution failed to
discharge its burden of proving that appellant
was not authorized to possess the grenade
seized from his house, his acquittal for illegal
possession of explosive is inevitable (People
vs. Cortez, 334 SCRA 334).
possessed such firearm or explosive, since the
burden is with the prosecution to prove the guilt
of the accused and not vice versa, acquittal is
still in order under the system of criminal
justice in this jurisdiction. To hold otherwise is
speculative, i.e., the court would be
speculating that the accused is not authorized
to possess firearm, whereas what is required in
conviction is proof beyond reasonable doubt.
The philosophy behind this is the oft-quoted
principle that courts would rather free ten guilty
persons than convict and send to the dungeon
one innocent individual. Hence, the rule is that
all doubts must be construed in favor of the
accused.
KINDS OF POSSESSION
The unvarying rule is that ownership
is not an essential element of illegal
possession of firearms and ammunition. What
the law requires is merely possession which
includes not only actual possession, but also
constructive possession or the subjection of
the thing to ones control and management
(Gonzales vs. CA, GR no. 95523, August 18,
1997).
PD 1866, which was passed to curb
criminality affecting public order and safety
punishes, inter alia, both actual and physical
possession and constructive possession of
firearms, ammunition and explosives without
authority or license therefor. Ownership is thus
not an essential element. In the case of
constructive possession, it refers to the
subjection of the articles in question to ones
control and management. Once the evidence
indubitably point to possession without the
requisite authority or license, coupled with
animus possidendi or intent to possess on the
part of the accused, conviction for violation of
the said law must follow.
6
 SPL NOTES
1.
EFFECTIVITY OF THE LAW
2.
In parricide, the application of RA 8294
would not be beneficial to the accused, as it
would increase the penalty for parricide from
reclusion perpetual to death. Hence, the new
law will NOT BE GIVEN RETROACTIVE
APPLICATION, as otherwise it would acquire
the character of an ex post facto law (People v.
Macoy, GR 126253, August 16, 2000).
3.
The crime was committed before July 6,
1997, when RA 8294 took effect. This law is
advantageous to the accused as it spares him
from a separate conviction for the crime of
4.
illegal possession of firearm. Hence said law
should be APPLIED RETROACTIVELY
(People vs. Lazaro, GR 112090, October 26,
1999).
Being favorable to the accused, this
provision may be given retroactive effect
pursuant to Article 22 of the RPC, he not being
a habitual criminal (People vs. Bergante, GR
Nos. 120369-70, February 27, 1998).
APPLICABILITY OF INDETERMINATE
SENTENCE LAW
The amendatory law has both
beneficial and prejudicial provisions thus its
applicability shall be either prospective or
retroactive depending upon the effect on the
offender.
* In accordance with the doctrine regarding
special laws, People vs. Simon said that
although PD 1866 is a special law, penalties
therein were taken from the RPC hence the
rules in said Code for graduating by degrees or
determining the proper period should be
applied.
* All pending cases involving illegal possession
of firearm should continue to be prosecuted
and tried if no other crime expressly indicated
in RA 8294 is involved (murder or homicide
pursuant to Macoy, parricide); rebellion,
insurrection, sedition or attempted coup dteat)
(People vs. Lazaro).
POSSIBLE CRIMINAL LIABILITIES
INVOLVING UNLICENSED FIREARMS:
The use of unlicensed forearms carries the
following liabilities:
Complied and Transcribed by STEPHANIE NARVAEZ
Mere possession of unlicensed firearm -
simple illegal possession of firearm.
Unjustified killing of another - one crime of
homicide or murder (or parricide) with the
aggravating circumstance of use of unlicensed
firearm, unless the informations for the
homicide or murder and the illegal possession
were filed separately and separate trials were
held, in which case, the accused can be
convicted for both crimes.
Rebellion, insurrection, sedition or
attempted coup detat - use of unlicensed
firearm is absorbed as an element. There is no
effect on the penalty for the rebellion, etc.
Any other crimes committed such as alarms
and scandals - only for that other crime and the
use of unlicensed firearm is absolved, i.e., no
liability for such use and neither does it serve
as an aggravating circumstance.
PEOPLE VS. LADJAALAM, G.R. NOS.
136149-51, September 19, 2000
The court expounded on the fourth
situation (above). Duly proved were the two
elements of the crime of illegal possession of
firearms. Undoubtedly, the established fact that
appellant had fired an M-14 rifle upon the
approaching police officers clearly showed the
existence of the firearm or weapon and his
possession thereof. Sufficing to satisfy the
second element was prosecutions Certification
stating that he had not been given authority to
carry any outside his residence. Further, it
should be pointed out that his possession and
use of an M-14 rifle were obviously
unauthorized because this weapon could not
be licensed in favor or, or carried by, a private
individual.
The trial court was also correct in
convicting appellant of direct assault with
multiple counts of attempted homicide. It found
that the act of the accused of firing an M-14
rifle at the policemen who were about to enter
his house to serve a search warrant constituted
such complex crime.
If an unlicensed firearm is used in the
commission of any crime, there can be no
separate offense of simple illegal possession
of firearms. Hence, if the other crime is
murder or homicide, illegal possession of
firearms becomes merely an aggravating
circumstance, not a separate offense. Since
direct assault with multiple attempted homicide
7
SPL NOTES
was committed in this case, appellant can no
longer be held liable for illegal possession of
firearms, neither can it serve as an aggravating
circumstance.
Moreover, penal laws are construed
liberally in favor of the accused. In this case,
the plain meaning of the statutes simple
language is most favorable to herein appellant.
Verily, no other interpretation is justified, for the
language of the new law demonstrates the
legislative intent to favor the accused.
Accordingly, appellant cannot be convicted of
two separate offenses of illegal possession of
firearms and direct assault with attempted
homicide or murder. Since the crime committed
was not murder or homicide, illegal possession
of firearms cannot be deemed an aggravating
circumstance.
There is no justification for limiting the
proviso in the second paragraph to murder and
homicide. The law is clear: the accused can be
convicted of simple illegal possession of
firearms, provided that no other crime was
committed by the person arrested. If the
intention of the law in the second paragraph
were to refer only to homicide and murder, it
should have expressly said so, as it did in the
third paragraph. Verily, where the law does not
distinguish, neither should the courts.
The ruling effectively exonerates
appellant of illegal possession of an M-14 rifle,
an offense which normally carries a penalty
heavier than that for direct assault. While the
penalty for illegal possession of M-14 rifle is
prison mayor, for direct assault it is only prison
correctional. Indeed, the accused may evade
conviction for illegal possession of firearms by
using such weapons in committing an even
lighter offense, like alarm and scandal or slight
physical injuries, both of which are punishable
by arresto menor. This consequence, however,
necessarily arises from the language of RA
8294, whose wisdom is not subject to judicial
review. Any perception that the result reached
here appears unwise should be addressed to
Congress. Indeed the Court has no discretion
to give statutes a new meaning detached from
the manifest intendment and language of the
legislature. Its task is constitutionally confined
only to apply the law/jurisprudence to the facts.
PEOPLE VS. MOLINA, 292 SCRA 742 (1998)
The court held that the use of an
unlicensed weapon in the commission of
Complied and Transcribed by STEPHANIE NARVAEZ
murder or homicide should now be considered
simply as an aggravating circumstance and no
longer a separate offense. Therein, separate
informations for murder, frustrated murder and
illegal possessions were filed, but the case
eventually consolidated and jointly tried and
decided. The Molina ruling however is NOT
APPLICABLE where the cases filed were all
separately tried. Hence, the evidence as to the
homicide and frustrated homicide cases were
neither adopted nor presented before the trial
court trying the illegal possession case. For
this reason, there is a dearth of evidence to
support the finding of homicide and.or
frustrated homicide in the illegal possession
case. Accordingly, conviction should not only
be for simple possession of firearms (People
vs. Nunez, 2001).
PADILLA VS. CA, GR NO 121917, March 12.
1997
Padilla contents that he could not be
convicted of violating PD 1866 because he is
an appointed civilian agent authorized to
possess and carry the subject firearms and
ammunition as evidenced by a Mission Order
(MO) and Memorandum Receipt (MR) duly
issued by the PNP deputy commander of Task
Force Aguila, Lianga, Surge del Sur.
The contention lacks merit.
In crimes involving illegal possession
of firearms, two requisites must be established,
viz:
(1) the existence of the subject firearm; and
(2) The fact that the accused who owned or
possessed the firearm does not have the
corresponding license of permit to possess.
The first element is beyond dispute as
the subject firearms and ammunitions were
seized from Padillas possession via a valid
warrantless search, identified and offered in
evidence during trial. As to the second
element, the prosecution convincingly proved
the same. Indeed, Padillas purported MO and
MR are inferior in the face of the more
formidable evidence for the prosecution as the
MO and MR were afterthoughts contrived and
issued under suspicious circumstances.
Padilla failed to produce and present
the MO and MR if they were really issued and
existing before his apprehension. His
alternative excuses that the subject firearms
8
 SPL NOTES
were intended for theatrical purposes, or that
they were owned by the Presidential Security
Group, or that his MO and MR were left at
home, further compound their irregularity. As to
be reasonably expected, an accused claiming
innocence would grab the earliest opportunity
to present the MO and MR in question and
save himself from the long and agonizing
public trial and spare him from proffering
inconsistent excuses.
The authenticity and validity of the
MO and MR, moreover, were ably
controverted. Police Supt. Direness denied
under oath his signature on the dorsal side of
the MO and declared further that he did not
authorize anyone to sign in his behalf. His
surname thereon was glaringly misspelled as
Durembes. In addition, only Unit
Commanders and Chief of Offices have the
authority to issue MO and MR under the
guidelines on the Issuance of MOs, MRs and
PCFORs. The PNP supt. Who issued Padillas
MO and MR is neither a Unit Commander nor
the Chief of Police, but merely a deputy
commander. Having emanated from an
unauthorized source, the MO and MR are
infirm and lacking in force and effect. Besides,
the MO covers Recom 1-12 Baguio City areas
outside the issuers area of responsibility
needing prior approval by next higher
Headquarters which is absent in this case.
The MR is also unsupported by a certification
as required by the March 5, 1988
Memorandum of the Secretary of Defense.
OTHER OFFENDERS OF THE LAW
1. Any person who shall unlawfully
manufacture, deal in, acquire, dispose or
possess:
a. Any low-powered firearm, part of
firearm, ammunition, or machinery, tool
or instrument used or intended to be
used in the manufacture of any firearm
or ammunition
b. Any high powered firearm and lesser
calibered firearms but considered
powerful such as rimfire handgun, .380
or .32 and other firearms with firing
capability of full automatic and by burst
of two or three
2. The owner, president, manager, director or
other responsible officer of any public or
Complied and Transcribed by STEPHANIE NARVAEZ
private firm, company, corporation or entity,
who shall willfully or knowingly allow:
a. Any of the firearms owned by such
entities to be used by any person found
guilty of no. 1 above; or
b. The use of unlicensed firearms or
firearms without any legal authority to
be carried outside of residence in the
course of their employment.
3. Any person who shall carry any licensed
firearm outside his residence without legal
authority therefor.
4. Any person who shall unlawfully
manufacture, assemble, deal in, acquire,
dispose, or possess hand grenade, rifle
grenade, and other explosives or other
incendiary device capable of producing
destructive effect on contiguous objects for
causing injury or death to any person;
5. The owner, president, manager, director or
other responsible officer of any public or
private firm, company, corporation or entity
who shall willfully or knowingly allow any of the
explosives owned by such entities to be used
by any person found guilty of no. 4 above.
PRESUMPTIONS IN THE LAW
1. Presumption of illegal manufacture of
firearms or ammunition by mere possession of
any machinery, tool or instrument used directly
in the manufacture of firearms or ammunition.
2. Presumption of unlawful manufacture of
explosives by mere possession of any
machinery, tool or instrument directly used in
the manufacture of explosives by any person
whose business or employment does not
lawfully deal with the manufacture of
explosives.
9
SPL NOTES
C.A. NO. 142 - REGULATING THE USE OF
ALIASES as amended by R.A. NO. 6085
Sec. 1. Except as a pseudonym solely for
literary, cinema, television, radio or other
entertainment purposes and in athletic events
where the use of pseudonym is a normally
accepted practice, no person shall use any
name different from the one with which he was
registered at birth in the office of the local civil
registry, or with which he was baptized for the
first time, or, in case of an alien, with which he
was registered in the bureau of immigration
upon entry; or such substitute name as may
have been authorized by a competent court:
Provided, That persons, whose births have not
been registered in any local civil registry and
who have not been baptized, have one year
from the approval of this act within which to
register their names in the civil registry of their
residence. The name shall comprise the
patronymic name and one or two surnames.
Sec. 2. Any person desiring to use an alias
shall apply for authority therefor in proceedings
like those legally provided to obtain judicial
authority for a change of name, and no person
shall be allowed to secure such judicial
authority for more than one alias. The petition
for an alias shall set forth the person's
baptismal and family name and the name
recorded in the civil registry, if different, his
immigrant's name, if an alien, and his
pseudonym, if he has such names other than
his original or real name, specifying the reason
or reasons for the use of the desired alias. The
judicial authority for the use of alias the
Christian name and the alien immigrant's name
shall be recorded in the proper local civil
registry, and no person shall use any name or
names other, than his original or real name
unless the same is or are duly recorded in the
proper local civil registry.
Sec. 3. No person having been baptized with a
name different from that with which he was
registered at birth in the local civil registry, or in
case of an alien, registered in the bureau of
immigration upon entry, or any person who
obtained judicial authority to use an alias, or
who uses a pseudonym, shall represent
himself in any public or private transaction or
shall sign or execute any public or private
document without stating or affixing his real or
Complied and Transcribed by STEPHANIE NARVAEZ
original name and all names or aliases or
pseudonym he is or may have been authorized
to use.
Sec. 4. Six months from the approval of this act
and subject to the provisions of section 1
hereof, all persons who have used any name
and/or names and alias or aliases different
from those authorized in section one of this act
and duly recorded in the local civil registry,
shall be prohibited to use such other name or
names and/or alias or aliases.
Sec. 5. Any violation of this Act shall be
punished with imprisonment of from one year
to five years and a fine of P5,000 to P10,000.
Section 6. This Act shall take effect upon its
approval, and all Acts, rules or regulations of
laws inconsistent herewith are hereby repealed
CIVIL CODE PROVISIONS:
ART. 379. The employment of pen names or
stage names is permitted, provided it is done in
good faith and there is no injury to third
persons. Pen names and stage names cannot
be usurped.
ART. 380. Except as provided in the preceding
article, no person shall use different names
and surnames.
RATIONALE FOR LAW:
The enactment of CA 142 as
amended was made primarily to curb the
practice among the Chinese of adopting scores
of different names and aliases which created
tremendous confusion in the field of trade.
Such a practice almost bordered on the crime
of using fictitious names which for obvious
reasons cannot be successfully maintained
against the Chinese who rightly or wrongly
claim they possessed a thousand and one
names. CA No 142 thus penalized the act of
using an alias unless the use of such alias was
duly authorized by proper juridical proceedings
and registered in the civil register.
RULE OF CONSTRUCTION
CA NO 142 is a penal statute. It
should be construed strictly against the State
and in favor of the accused. The reason for this
principle is the tenderness of the law for the
10
SPL NOTES

rights of the individuals and the object is to An individual can make use of a
establish a certain rule by conformity by which second name without infringing upon the law in
mankind would be safe and the discretion of the following instances:
the court limited. One cannot rest easy on the 1. As a pseudonym solely for literary, cinema,
proposition that the petitioner should be television, radio or other entertainment
convicted on a law that does not clearly purposes and in athletic events where the use
penalize the act done by him. There exists a of pseudonym is a normally accepted practice;
valid presumption that undesirable
consequences were never intended by a
2. When the use of the second name or alias
legislative measure and that a construction for is judicially authorized and duly recorded in the
which will avoid all objectionable, mischievous, proper local civil registry;
indefensible, wrongful, evil and injurious 3. The use of a fictitious name or a different
consequences (Ursua vs. CA, April 10, 1996). name belonging to a single person in a single
instance without any sign or indication that the
WHAT IS CONSIDERED AN ALIAS? user intends to be known by this name in
ALIAS- is a name or names used by a person addition to his real name from that day forth.
or intended to be used by him publicly and
habitually usually in business transactions in
addition to his real name by which he is
registered at birth or baptized the first time or
substitute name authorized by a competent
authority.
A mans NAME is simply the sound or
sounds by which he is commonly designated
by others and by which they distinguish him but
sometimes a man is known by several different
names and these are known as aliases.
Hence, the use of a fictitious name or a
different name belonging to a single person in
a single instance without any sign or indication
that the user intends to be known by this name
in addition to his real name from that day forth
does not fall within the prohibition contained in
CA 142.
Oscar Perez is not an alias name of
petitioner. There is no showing that he had
used or intends to use that name as his second
name or in addition to his real name. The use
of the name Oscar Perez was an isolated
transaction where he is not even required to
expose his real identity. For, even if he had
identified himself properly at the Office of the
Ombudsman, petitioner would still be able to
get a copy of the complaint as a matter of right,
and the Office of the Ombudsman could not
refuse him because the complaint was part of
the public record hence open to inspection and
examination by anyone under the proper
circumstances. (Id).

INSTANCES WHEN A SECOND NAME CAN

BE USED:

Complied and Transcribed by STEPHANIE NARVAEZ 11

SPL NOTES
P.D. NO. 1613 - AMENDING THE LAW ON
ARSON
WHEREAS, findings of the police and
intelligence agencies of the government reveal
that fires and other crimes involving destruction
in Metro Manila and other urban centers in the
country are being perpetrated by criminal
syndicates, some of which have foreign
connections;
WHEREAS, the current law on arson suffers
from certain inadequacies that impede the
successful enforcement and prosecution of
arsonists;
WHEREAS, it is imperative that the high
incidence of fires and other crimes involving
destruction be prevented to protect the national
economy and preserve the social, economic
and political stability of the country;
NOW, THEREFORE, I, FERDINAND E.
MARCOS, President of the Philippines, by
virtue of the powers vested in me by the
Constitution, do hereby order and decree as
part of the law of the land, the following:
Section 1. Arson. Any person who burns or
sets fire to the property of another shall be
punished by Prision Mayor.
The same penalty shall be imposed when a
person sets fire to his own property under
circumstances which expose to danger the life
or property of another.
Section 2. Destructive Arson. The penalty of
Reclusion Temporal in its maximum period to
Reclusion Perpetua shall be imposed if the
property burned is any of the following:
1. Any ammunition factory and other
establishment where explosives, inflammable
or combustible materials are stored.
2. Any archive, museum, whether public or
private, or any edifice devoted to culture,
education or social services.
3. Any church or place of worship or other
building where people usually assemble.
4. Any train, airplane or any aircraft, vessel or
watercraft, or conveyance for transportation of
persons or property
4. Any building where evidence is kept for use
in any legislative, judicial, administrative or
other official proceedings.
5. Any hospital, hotel, dormitory, lodging
house, housing tenement, shopping center,
public or private market, theater or movie
house or any similar place or building.
Complied and Transcribed by STEPHANIE NARVAEZ
6. Any building, whether used as a dwelling or
not, situated in a populated or congested area.
Section 3. Other Cases of Arson. The penalty
of Reclusion Temporal to Reclusion Perpetua
shall be imposed if the property burned is any
of the following:
1. Any building used as offices of the
government or any of its agencies;
2. Any inhabited house or dwelling;
3. Any industrial establishment, shipyard, oil
well or mine shaft, platform or tunnel;
4. Any plantation, farm, pastureland, growing
crop, grain field, orchard, bamboo grove or
forest;
4. Any rice mill, sugar mill, cane mill or mill
central; and
5. Any railway or bus station, airport, wharf or
warehouse.
Section 4. Special Aggravating Circumstances
in Arson. The penalty in any case of arson
shall be imposed in its maximum period;
1. If committed with intent to gain;
2. If committed for the benefit of another;
3. If the offender is motivated by spite or hatred
towards the owner or occupant of the property
burned;
4. If committed by a syndicate.
The offense is committed by a syndicate if its is
planned or carried out by a group of three (3)
or more persons.
Section 5. Where Death Results from Arson. If
by reason of or on the occasion of the arson
death results, the penalty of Reclusion
Perpetua to death shall be imposed.
Section 6. Prima Facie evidence of Arson. Any
of the following circumstances shall constitute
prima facie evidence of arson:
1. If the fire started simultaneously in more
than one part of the building or establishment.
2. If substantial amount of flammable
substances or materials are stored within the
building note necessary in the business of the
offender nor for household us.
3. If gasoline, kerosene, petroleum or other
flammable or combustible substances or
materials soaked therewith or containers
thereof, or any mechanical, electrical,
chemical, or electronic contrivance designed to
start a fire, or ashes or traces of any of the
foregoing are found in the ruins or premises of
the burned building or property.
4. If the building or property is insured for
substantially more than its actual value at the
time of the issuance of the policy.
12
SPL NOTES
4. If during the lifetime of the corresponding fire
insurance policy more than two fires have
occurred in the same or other premises owned
or under the control of the offender and/or
insured.
5. If shortly before the fire, a substantial portion
of the effects insured and stored in a building
or property had been withdrawn from the
premises except in the ordinary course of
business.
6. If a demand for money or other valuable
consideration was made before the fire in
exchange for the desistance of the offender or
for the safety of the person or property of the
victim.
Section 7. Conspiracy to commit Arson.
Conspiracy to commit arson shall be punished
by Prision Mayor in its minimum period.
Section 8. Confiscation of Object of Arson. The
building which is the object of arson including
the land on which it is situated shall be
confiscated and escheated to the State, unless
the owner thereof can prove that he has no
participation in nor knowledge of such arson
despite the exercise of due diligence on his
part.
Section 9. Repealing Clause. The provisions of
Articles 320 to 326-B of the Revised Penal
Code and all laws, executive orders, rules and
regulations, or parts thereof, inconsistent with
the provisions of this Decree are hereby
repealed or amended accordingly.
Section 10. Effectivity. This Decree shall take
effect immediately upon publication thereof at
least once in a newspaper of general
circulation.
Done in the City of Manila, this 7th day of
March, in the year of Our Lord, nineteen
hundred and seventy-nine.
DEFINITION, NATURE AND ELEMENTS
ARSON is the destruction of property by
means of fire or pyrotechnic materials. In
arson, the corpus delicti rule is generally
satisfied by proof of the bare occurrence of the
fire and of its having been intentionally caused.
Even if the whole house has not been
completely gutted by the fire, the crime is still
consummated arson. It is enough that a portion
thereof is shown to have been destroyed
(People vs. Gutierrez).
As long as fire or pyrotechnic is used
to destroy any property it is arson because the
Complied and Transcribed by STEPHANIE NARVAEZ
original provision under Art. 323 of the RPC
which regarded burning of property less than
P25 as malicious mischief was expressly
repealed by PD 1613. This will also affect Art.
332 on exemption of certain relatives from
criminal liability for the crimes dealt therein are
theft, estate and malicious mischief. Therefore,
there is no exemption from criminal liability of
relatives for arson of property under P25.00.
* Proof of corpus delicti is indispensable
in prosecutions for felonies and
offenses. CORPUS DELICTI is the
body or substance of the crime. It
refers to the fact that a crime has been
actually committed. CORPUS
DELICTI is the fact of the commission
of the crime that may be proved by the
testimonies of witnesses. In murder,
the fact of death is the corpus delicti.
In arson, the corpus delicti rule is
generally satisfied by proof of the bare
occurrence of the fire and of its having
been intentionally caused, and the
uncorroborated testimony of a single
eyewitness, if credible, may be enough
to prove the corpus delicti and to
warrant conviction.
* Under Art. 320 of the Code as well as
PD no. 1613, if a person impelled by a
single criminal impulse burned several
buildings, the crime is not distinct
arsons but one crime of destructive
arson akin to a continued crime on
delito continuado.
ELEMENTS OF ARSON UNDER SECTION 3
OF PD 1613 ARE:
1. There is intentional burning; and
2. What is intentionally burned is an inhabited
house or dwelling (People vs. Agguihao, GR
No. 104725, March 10, 1994).
* Even if offender burned his own
property if the burning was made
under circumstances which exposed
the property or life of another to
danger, arson is committed (Section 1,
par. 2, PD No. 1613). Even if the
owners of properties burned are
different. There is only one crime of
arson.
13
SPL NOTES

* If the information charges accused with

violation of PD 1613 without
specifying the particular provision
breached, and the information failed to
allege whether the burnt house is
inhabited or not, and it has not been
established that the house is situated
in a populated or congested area, he
should be deemed to have been
charged only with plain arson under
Section 1 of the Decree. Kalookan City
might be a densely populated part of
the metropolis but its entire territory
cannot be said to be congested.

AGGRAVATING CIRCUMSTANCES
The special aggravating circumstance
of spite under section 4(3) of the decree, that
the offender have been motivated by spite or
hatred towards the owner or occupant of the
property, should not be appreciated where it
appears to be more of impulse, heat of anger
or risen temper rather than real spite or hatred
that impelled the accused to give vent to his
wounded ego.
PD 1613 pronounces as guilty of
arson any person who deliberately burns
another persons property, wherever located.
The circumstance that the property burned is
located in an urban, congested or populated
area qualifies the offense and converts it into
destructive arson punishable under Sec. 2(7)
of the law, by reclusion temporal in its max to
reclusion perpetual. On the other hand, Sec.
4(4), the circumstance that the perpetrator of
the arson is a criminal syndicate serves as a
special aggravating circumstance.

Complied and Transcribed by STEPHANIE NARVAEZ 14

SPL NOTES

P.D. NO. 1689 - INCREASING THE PENALTY Section 2. This decree shall take effect
FOR CERTAIN FORMS OF SWINDLING OR immediately.
ESTAFA DONE in the City of Manila, this 6th day of
April, in the year of Our Lord, nineteen hundred
WHEREAS, there is an upsurge in the and eighty.
commission of swindling and other forms of
frauds in rural banks, cooperatives, "samahang
nayon (s)", and farmers' associations or CAPITAL PUNISHMENT ( life imprisonment to
corporations/associations operating on funds death) FOR SYNDICATED ESTAFA;
solicited from the general public; RECLUSION TEMPORAL to PERPETUA if the
WHEREAS, such defraudation or amount of the fraud exceeds P100,000.00.
misappropriation of funds contributed by
stockholders or members of such rural banks, In the instant case, a syndicate
cooperatives, "samahang nayon(s)", or perpetrated the Ponzi scheme. The evidence
farmers' associations, or of funds solicited by shows that at least five persons x x x
corporations/associations from the general collaborated, confederated and mutually
public, erodes the confidence of the public in helped one another in directing the
the banking and cooperative system, foundations activities (People vs. Balasa,
contravenes the public interest, and constitutes G.R. No. 106357, September 3, 1998).
economic sabotage that threatens the stability
of the nation; ELEMENTS:
WHEREAS, it is imperative that the resurgence 1. Commission of estafa or other forms of
of said crimes be checked, or at least swindling as defined in Article 315 and 316 of
minimized, by imposing capital punishment on the Revised Penal Code, as amended;
certain forms of swindling and other frauds
2. by a syndicate consisting of five or more
involving rural banks, cooperatives, "samahang
persons formed with the intention of carrying
nayon(s)", farmers' associations or
out the unlawful or illegal act, transaction,
corporations/associations operating on funds
enterprise or scheme, and the defraudation;
solicited from the general public;
NOW, THEREFORE, I, FERDINAND E. 3. Which results in the
MARCOS, President of the Philippines, by defraudation/misappropriation of
virtue of the powers vested in me by the a. funds contribute by members or
Constitution, do hereby decree and order as stockholders of:
follows:
i. Rural banks
Section 1. Any person or persons who shall
commit estafa or other forms of swindling as ii. Cooperatives
defined in Article 315 and 316 of the Revised iii. samahang nayons or
Penal Code, as amended, shall be punished by
iv. Farmers associations; or
life imprisonment to death if the swindling
(estafa) is committed by a syndicate consisting b. Funds solicited by
of five or more persons formed with the corporations/associations from the
intention of carrying out the unlawful or illegal general public.
act, transaction, enterprise or scheme, and the
defraudation results in the misappropriation of TWO OTHER INGREDIENTS (not really
money contributed by stockholders, or elements of the crime):
members of rural banks, cooperative, 1. Erodes confidence of the public in the
"samahang nayon(s)", or farmers association, banking and cooperative system, contravenes
or of funds solicited by the public interest; and
corporations/associations from the general
2. Constitutes economic sabotage that
public.
threatens the stability of the nation.
When not committed by a syndicate as above
defined, the penalty imposable shall be
ECONOMIC SABOTAGE; PREAMBLE OF
reclusion temporal to reclusion perpetua if the
STATUTE:
amount of the fraud exceeds 100,000 pesos.

Complied and Transcribed by STEPHANIE NARVAEZ 15

SPL NOTES

The two other ingredients added by return to early investors, thereby inducing more
appellants to constitute the cime of economic investors to place their money with him in the
sabotage under PD 1689 have been taken from false hope of realizing this same extravagant
the whereas clause or preamble of the law. A rate of return themselves. This was the very
preamble is not exactly an essential part of an same scheme practiced by the Panata
act as it is an introductory or preparatory Foundation (People vs. Balasa, G.R. No.
clause that explains the reason for the 106357, September 3, 1998).
enactment, usually introduced by the word
whereas. x x x
Assuming arguendo that the preamble
was part of the statute, appellants contention
that they should not be held criminally liable
because it was not proven that their acts
constituted economic sabotage threatening the
stability of the nation remains too flimsy for
extensive discussion. As the preamble of PD
1689 shows, the act prohibited therein need
not necessarily threaten the stability of the
nation. It is sufficient that it contravenes public
interest. Public interest was affected by the
solicitation of deposits under a promise of
substantial profits, as it was people coming
from the lower income brackets who were
victimized by the illegal scheme (People vs.
Balasa, G.R. No. 106357, September 3, 1998).

FOUNDATION; FITS IN SECOND

CATEGORY
Similarly, the fact that the entity
involved was not a rural bank, cooperative,
samahang nayon or farmers association does
not take the case out of the coverage of PD
1689. Its thrid whereas clause states that it
also applies to other corporations/associations
operating on funds solicited from the general
public. To construe the law otherwise would
sanction the proliferation of minor-league
schemers who opeate in the countryside. To
allow these crimes to go unabated could spell
disaster for people from the lower income
bracket, the primary target of swindlers (People
vs. Balasa, G.R. No. 106357, September 3,
1998).

PONZI SCHEME - is an investment program

that offers impossibly high returns and pays
these returns to early investors out of the
capital contributed by later investors. Named
after Charles Ponzi who promoted the scheme
in the 1920s, the original scheme involved the
issuance of bonds which offered 50% interest
in 45 days or a 100% profit if held for 90 days.
Basically, Ponzi used the money he received
from later investors to pay extravagant rates of

Complied and Transcribed by STEPHANIE NARVAEZ 16

SPL NOTES
B.P. 22 - AN ACT PENALIZING THE MAKING
OR DRAWING AND ISSUANCE OF A
CHECK WITHOUT SUFFICIENT FUNDS OR
CREDIT AND FOR OTHER PURPOSES
and ESTAFA under Art. 315 No. 2(d), RPC
Section 1. Checks without sufficient funds. -
Any person who makes or draws and issues
any check to apply on account or for value,
knowing at the time of issue that he does not
have sufficient funds in or credit with the
drawee bank for the payment of such check in
full upon its presentment, which check is
subsequently dishonored by the drawee bank
for insufficiency of funds or credit or would
have been dishonored for the same reason had
not the drawer, without any valid reason,
ordered the bank to stop payment, shall be
punished by imprisonment of not less than
thirty days but not more than one (1) year or by
a fine of not less than but not more than double
the amount of the check which fine shall in no
case exceed Two Hundred Thousand Pesos, or
both such fine and imprisonment at the
discretion of the court.
The same penalty shall be imposed upon any
person who, having sufficient funds in or credit
with the drawee bank when he makes or draws
and issues a check, shall fail to keep sufficient
funds or to maintain a credit to cover the full
amount of the check if presented within a
period of ninety (90) days from the date
appearing thereon, for which reason it is
dishonored by the drawee bank.
Where the check is drawn by a corporation,
company or entity, the person or persons who
actually signed the check in behalf of such
drawer shall be liable under this Act.
Section 2. Evidence of knowledge of
insufficient funds. - The making, drawing and
issuance of a check payment of which is
refused by the drawee because of insufficient
funds in or credit with such bank, when
presented within ninety (90) days from the date
of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or
credit unless such maker or drawer pays the
holder thereof the amount due thereon, or
makes arrangements for payment in full by the
drawee of such check within (5) banking days
after receiving notice that such check has not
been paid by the drawee.
Section 3. Duty of drawee; rules of evidence. -
It shall be the duty of the drawee of any check,
Complied and Transcribed by STEPHANIE NARVAEZ
when refusing to pay the same to the holder
thereof upon presentment, to cause to be
written, printed, or stamped in plain language
thereon, or attached thereto, the reason for
drawee's dishonor or refusal to pay the same:
Provided, That where there are no sufficient
funds in or credit with such drawee bank, such
fact shall always be explicitly stated in the
notice of dishonor or refusal. In all prosecutions
under this Act, the introduction in evidence of
any unpaid and dishonored check, having the
drawee's refusal to pay stamped or written
thereon or attached thereto, with the reason
therefor as aforesaid, shall be prima facie
evidence of the making or issuance of said
check, and the due presentment to the drawee
for payment and the dishonor thereof, and that
the same was properly dishonored for the
reason written, stamped or attached by the
drawee on such dishonored check.
Not with standing receipt of an order to stop
payment, the drawee shall state in the notice
that there were no sufficient funds in or credit
with such bank for the payment in full of such
check, if such be the fact.
Section 4. Credit construed. - The word "credit"
as used herein shall be construed to mean an
arrangement or understanding with the bank
for the payment of such check.
Section 5. Liability under the Revised Penal
Code. - Prosecution under this Act shall be
without prejudice to any liability for violation of
any provision of the Revised Penal Code.
Section 6. Separability clause. - If any
separable provision of this Act be declared
unconstitutional, the remaining provisions shall
continue to be in force.
Section 7. Effectivity. - This Act shall take effect
fifteen days after publication in the Official
Gazette.
Approved: April 3, 1979.
ART. 315 NO. 2(d), RPC:
ELEMENTS:
1. That the offender postdated a check, OR
issued a check in payment of an obligation
2. That such postdating or issuing a check was
done when the offender had no funds in the
bank, or his funds deposited therein were not
sufficient to cover the amount of the check.
* The issuance by the offender of
the check (whether postdated
17
 SPL NOTES
or not), prior to or simultaneous
with the transaction, must be
for the purpose of contracting
the obligation, otherwise if the
check is issued in payment of a
preexisting obligation no estafa
is committed, only a civil
obligation
* NOTE: defraudation must be
prior to, or simultaneous with,
the transaction.
* If the check was issued by the
debtor only for security of the
creditor, as in the nature of
promissory notes but not to be
encashed, no estafa will be
involved
* Good faith is a defense in a
charge of estafa by postdating
or issuing a check (People v.
Villapando)
* Estafa by issuing a bad check
is a continuing offense
* There is a prima facie evidence
of deceit when the drawer fails
to pay or make arrangement for
payment three days after
receiving notice of dishonor
BOUNCING CHECKS LAW (BP 22)
OFFENSES PUNISHED:
A. Making or Drawing and issuing a check
knowing at the time of issue that he does not
have sufficient funds.
ELEMENTS:
1. That a person makes or draws and issues
any check to apply on account or for value
2. That the person knows that at the time of
issue he does not have sufficient funds or
credit with the drawee bank for the payment of
such check upon its presentment
3. That the check is subsequently dishonored
by the drawee bank for insufficiency of funds or
credit, or would have been dishonored for the
same reason had not the drawer, without any
valid reason, ordered the bank to stop
payment.
REQUISITES FOR CRIMINAL LIABILITY
UNDER BP 22:
Complied and Transcribed by STEPHANIE NARVAEZ
1. A person makes, draws, or issues a check
as payment for account or for value.
2. That the check was dishonored by the bank
due to a lack of funds, insufficiency of funds or
account already closed.
3. The payee or holder of such check gives a
written notice of dishonor and demand for
payment.
4. That the maker, drawer or issuer, after
receiving such notice and demand, refuses or
fails to pay the value of the check within FIVE
BANKING DAYS
* it is not the making, drawing or
issuance, nor the dishonor of
the check which gives rise to a
violation of BP 22, but rather
the failure to make good the
check within FIVE BANKING
DAYS from receipt of the
NOTICE OF DISHONOR AND
DEMAND FOR PAYMENT.
NOTE: While the written notice of dishonor and
demand is not an element in the violation of BP
22, the failure to give such notice to the maker,
drawer or issuer of the bouncing check is
FATAL to an action to hold the latter criminally
liable.
The full payment of the amount appearing in
the check within FIVE BANKING DAYS from
notice of dishonor is a complete defense
against BP 22. The absence of a notice of
dishonor necessarily deprives an accused an
opportunity to preclude criminal prosecution.
Accordingly, procedural due process clearly
enjoins that a notice of dishonor be actually
served on the maker, drawer, or issuer of the
check. He has a right to demand that the notice
of dishonor be actually sent to and received by
him to afford him the opportunity to avert
prosecution under BP 22 (Lina Lim Lao vs.
People, GR No. 119178, June 20, 1997).
B. Failing to keep sufficient funds to cover the
full amount of the check.
ELEMENTS:
1. That a person has sufficient funds with the
drawee bank when he makes or draws and
issues a check
18
 SPL NOTES
2. That he fails to keep sufficient funds or to
maintain a credit to cover the full amount if
presented within a period of 90 days from the
date of appearing thereon
3. That the check is dishonored by the drawee
bank
NOTE: the 90 day period stated above is NOT
an element of the violation of BP 22 by failing
to keep sufficient funds. As such, the maker,
drawer or issuer of the check is not discharged
from his duty to maintain a sufficient balance in
his account for a reasonable time even beyond
the 90 day period. A reasonable time
according to current banking practice is 6
months or 180 days, after which the check
becomes stale.
Thus, where a check is presented beyond the
90-day period, but within 180 days from the
date indicated therein, and it is dishonored due
to a failure to maintain a sufficient balance, the
maker, drawer or issuer shall still be liable for
violation of BP 22 (Wong v. CA, GR No.
117857, February 2, 2001).
Gravamen of BP 22 is the issuance of a
worthless or bum check.
EVIDENCE OF KNOWLEDGE OF
INSUFFICIENT FUNDS:
* Refusal of drawee bank to pay
the check due to insufficiency
of funds when presented within
90 days from the date of the
check shall be prima facie
knowledge of insufficiency of
funds, unless the drawer or
maker pays the holder the
amount due thereon or makes
arrangements for the payment
thereof by the drawee within
five (5) banking days after
receipt of notice that the check
was dishonored.
UNDER SC ADMINISTRATIVE CIRCULAR 12-
2000, AS CLARIFIED BY A.C. 13-2001:
Where the circumstances of both the offense
and the offender clearly indicated good faith or
a clear mistake of fact without taint of
intelligence, the imposition of fine alone should
be considered as the more appropriate penalty.
Complied and Transcribed by STEPHANIE NARVAEZ
The administrative circular merely lays down a
RULE OF PREFERENCE in the application of
the penalties provided for in BP 22. The
circular does not delete the penalty of
imprisonment, for should the judge decide that
imprisonment is the more appropriate penalty,
the circular ought not to be a hindrance.
* Prosecution under BP 22 shall be
without prejudice toa ny liability for
any violation in the RPC.
* The fine under BP 22 is based on
the amount of the check and is
without regard to the amount of
damage caused.
* The accused will be liable for the
dishonor of the check even if it was
issued in payment of a preexisting
legal obligation as he issued that
check to apply on account.
SOME IMPORTANT POINTS/PRINCIPLES TO
CONSIDER:
1. JURISDICTION OVER THE OFFENSE:
Estafa and violation of the Bouncing
Checks Law are 2 different offenses having
different elements and necessarily, for a court
to acquire jurisdiction each of the essential
ingredients of each crime has to be satisfied. In
estafa, deceit and damage are essential
elements of the offense. For violation of the
Bouncing Checks Law, on the other hand, the
elements of deceit and damage are neither
essential nor required. Hence, it is incorrect for
respondent People to conclude that inasmuch
as the RTC of Manila acquired jurisdiction over
the estafa case, then it also acquired
jurisdiction over the violations of BP 22. The
two crimes have to be treated as SEPARATE
OFFENSES and therefore, the essential
ingredients of each have to be satisfied. (Uy vs.
CA, GR No. 119000, July 28, 1997).
2. RULE 111, Section 1(b) on Prosecution of
Civil Action, Rules of Criminal Procedure
The criminal action for violation of BP
Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file
such civil action separately shall be allowed.
19
 SPL NOTES

3. Prosecution for violations of BP 22 are

covered under the REVISED RULES OF
SUMMARY PROCEDURE.

DEFENSES AGAINST BP 22:

1. The check was not issued to apply to an
account or for value but as a guarantee deposit
(Magno vs.CA).
2. The required notice of dishonor had not
been given. The drawer should be given notice
of dishonor to give him the opportunity to make
good the value of the check within 5 banking
days. Under the RPC, for purposes of estafa,
the notice should be given within 3 days.
3. The dishonor of the check was not due to
the insufficiency of funds.
4. The check was presented for payment
beyond 90 (destroys prima facie presumption)
or 180 (stale check) days from maturity thereof.
5. Valid cause to stop payment such as the
right of installment of buyer under the law (PD
no. 957 - buyers right to suspend payment
until such time as the owner or developer had
fulfilled its obligations to the buyer).
6. Complainant was informed by the issuer
beforehand that the account had been closed.
Petitioner openly disclosed
that they no longer had funds in the bank then,
knowledge by the complainant that the drawer
does not have sufficient funds in the bank at
the time the check was issued does not give
rise to a case of estafa through bouncing
checks (Pacheco vs. CA).

Complied and Transcribed by STEPHANIE NARVAEZ 20

 SPL NOTES
RA 9262 - AN ACT DEFINING VIOLENCE
AGAINST WOMEN AND THEIR CHILDREN,
PROVIDING FOR PROTECTIVE MEASURES
FOR VICTIMS, PRESCRIBING PENALTIES 2.
THEREFORE, AND FOR OTHER PUPOSES
(Approved: March 8, 2004)
DEFINITION OF TERMS (Section 3) 3.
A. Violence against women and their
childre - any act or a series of acts
committed by any person against a
woman who is his:
1. Wife;
2. Former wife; or 1.
3. Against a woman with whom the person has 2.
or had a sexual or dating relationship; or 3.
4. With whom he has a common child, or 4.
against her child whether legitimate or
illegitimate,
5.
within or without the family abode, which result 6.
in or is likely to result in physical, sexual, 7.
psychological harm or suffering, or economic
abuse including threats of such act, battery,
8.
assault, coercion, harassment or arbitrary
deprivation of liberty.
* Rustan argues that the one act of 9.
sending an offensive picture should not be 10.
considered a form of harassment. He claims
that such would unduly ruin him personally and
11.
set a very dangerous precedent. But Section
3(a) of RA 9262 punishes any act or series of
acts that constitute/s violence against women.
This means that a single act of harassment,
which translates into violence, would be
enough. The object of the law is to protect
women and children. Punishing only violence
that is repeatedly committed would license 1.
isolated ones (Rustan Ang vs. CA).
B. Sexual Violence - includes, but is not
limited to:
Rape, sexual harassment, acts of
lasciviousness, treating a woman or:
1. Her child as a sex object, making 2.
demeaning and sexually suggestive remarks,
physically attacking the sexual parts of the
victims body, forcing her/him to watch obscene 3.
publications and indecent shows or forcing the
woman or her child to do indecent acts and/or
4.
make films thereof, forcing the wife and
Complied and Transcribed by STEPHANIE NARVAEZ
mistress/lover to live in the conjugal home or
sleep together in the same room with the
abuser;
Acts causing or attempting to cause the
victim to engage in any sexual activity by force,
threat of force, physical or other harm or threat
of physical or other harm or coercion;
Prostituting the woman or child.
C. Psychological violence - acts or
omissions causing or likely to cause
mental or emotional suffering of the
victim such as but not limited to:
Intimidation;
Harassment;
Stalking;
Damage to property;
Public ridicule or humiliation;
Repeated verbal abuse;
Mental infidelity;
Causing or allowing the victim to witness the
physical, sexual or psychological abuse of a
member of the family to which the victim
belongs; or
To witness pornography in any form;
To witness abusive injury to pets; or
Unlawful or unwanted deprivation of the
right to custody and/or visitation of common
children.
D. Economic abuse - acts that make or
attempt to make a woman financially
dependent which includes, but is not
limited to the following:
Withdrawal of financial support or preventing
the victim from engaging in any legitimate
profession, occupation, business or activity
except in cases wherein the other
spous/partner objects on valid serious and
moral grounds as defined in Article 73 of the
Family Code;
Deprivation or threat of deprivation of the
use of financial resources and the right to use
and enjoyment of property owned in common;
Destroying household property;
Controlling the victims own money or
properties or solely controlling the conjugal
money or properties.
21
SPL NOTES
E. Physical abuse -refers to acts that
include bodily or physical harm
F. Dating Relationship - situation wherein
the parties live as husband and wife
without the benefit of marriage or are
romantically involved over time and on a
continuing basis during the course of the
relationship. A casual acquiantance or
ordinary socialization between two
individuals in a business or social context
is not a dating relationship.
* An away-bati or a fight-and-kiss thing
between two lovers is a common
occurrence. Their taking place does
not mean that the romantic
relationship between the two should
be deemed broken up during periods
of misunderstandings (Rustan Ang vs.
CA).
G. Sexual relations - refers to a single
sexual act which may or may not result in
the bearing of a common child.
H. Children - refers to those below 18
years of age or older but are incapable of
taking care of themselves as defined
under RA 7610. Under this Act, it
includes the biological children of the
victim and other children under her care.
I. Battered Woman Syndrome - refers to
a scientifically defined pattern of
psychological and behavioral symptoms
found in women living in battering
relationships as a result of cumulative
abuse.
Acts Punishable (Section 5)
The crime of violence against women and their
children is committed through any of the
following acts:
(a) Causing physical harm to the woman
or her child;
(b) Threatening to cause the woman or
her child physical harm;
(c) Attempting to cause the woman or her
child physical harm;
Complied and Transcribed by STEPHANIE NARVAEZ
(d) Placing the woman or her child in fear
of imminent physical harm;
(e) Attempting to compel or compelling
the woman or her child to engage in
conduct which the woman or her child
has the right to desist from or desist
from conduct which the woman or her
child has the right to engage in, or
attempting to restrict or restricting the
woman's or her child's freedom of
movement or conduct by force or threat
of force, physical or other harm or threat
of physical or other harm, or intimidation
directed against the woman or child.
This shall include, but not limited to, the
following acts committed with the purpose or
effect of controlling or restricting the woman's
or her child's movement or conduct:
(1) Threatening to deprive or actually
depriving the woman or her child
of custody to her/his family;
(2) Depriving or threatening to deprive
the woman or her children of
financial support legally due her
or her family, or deliberately
providing the woman's children
insufficient financial support;
(3) Depriving or threatening to deprive
the woman or her child of a legal
right;
(4) Preventing the woman in engaging
in any legitimate profession,
occupation, business or activity
or controlling the victim's own
mon4ey or properties, or solely
controlling the conjugal or
common money, or properties;
(f) Inflicting or threatening to inflict physical
harm on oneself for the purpose of
controlling her actions or decisions;
(g) Causing or attempting to cause the
woman or her child to engage in any
sexual activity which does not constitute
rape, by force or threat of force, physical
harm, or through intimidation directed
against the woman or her child or
her/his immediate family;
(h) Engaging in purposeful, knowing, or
reckless conduct, personally or through
another, that alarms or causes
22
 SPL NOTES
substantial emotional or psychological
distress to the woman or her child. This
shall include, but not be limited to, the
following acts:
(1) Stalking or following the
woman or her child in
public or private places;
(2) Peering in the window or
lingering outside the
residence of the woman
or her child;
(3) Entering or remaining in the
dwelling or on the
property of the woman or
her child against her/his
will;
(4) Destroying the property and
personal belongings or
inflicting harm to animals
or pets of the woman or
her child; and
(5) Engaging in any form of
harassment or violence;
(i)Causing mental or emotional anguish,
public ridicule or humiliation to the
woman or her child, including, but not
limited to, repeated verbal and emotional
abuse, and denial of financial support or
custody of minor children of access to
the woman's child/children.
Venue for action (Section 7)
The RTC designated as a Family Court shall
have original and exclusive jurisdiction over
cases of violence against women and their
children under this law.
In the absence of such court in the
place where the offense was committed, the
case shall be filed in the RTC where the crime
or any of its elements was committed at the
option of the compliant.
Protection order (Section 8)
- an order issued under this act for the purpose
of preventing further acts of violence against a
woman or her child specified in Section 5 of
this Act and granting other necessary relief.
- The relief granted under a protection order
serve the purpose of safeguarding the victim
from further harm, minimizing any disruption in
the victim's daily life, and facilitating the
Complied and Transcribed by STEPHANIE NARVAEZ
opportunity and ability of the victim to
independently regain control over her life.
- The law helps the woman to move
on
- The provisions of the protection order shall be
enforced by law enforcement agencies.
- The protection orders that may be issued
under this Act are:
- the barangay protection order
(BPO);
- temporary protection order (TPO);
and
- permanent protection order (PPO)
- All TPOs and PPOs issued under this Act
shall be enforceable anywhere in the
Philippines and a violation thereof shall be
punishable with a fine ranging from Five
Thousand Pesos (P5,000.00) to Fifty
Thousand Pesos (P50,000.00) and/or
imprisonment of six (6) months (section 12).
- A complaint for a violation of a BPO issued
under this Act must be filed directly with any
municipal trial court, metropolitan trial court, or
municipal circuit trial court that has territorial
jurisdiction over the barangay that issued the
BPO. Violation of a BPO shall be punishable
by imprisonment of thirty (30) days without
prejudice to any other criminal or civil action
that the offended party may file for any of the
acts committed.
- A judgement of violation of a BPO ma be
appealed according to the Rules of Court.
During trial and upon judgment, the trial court
may motu proprio issue a protection order as it
deems necessary without need of an
application.
- Violation of any provision of a TPO or PPO
issued under this Act shall constitute contempt
of court punishable under Rule 71 of the Rules
of Court, without prejudice to any other criminal
or civil action that the offended party may file
for any of the acts committed. (section 21)
Other reliefs granted through a protection
order:
(a) Prohibition of the respondent from
threatening to commit or committing,
personally or through another, any of the acts
mentioned in Section;
23
SPL NOTES

(b) Prohibition of the respondent from remitted directly to the

harassing, annoying, telephoning, contacting or woman. Failure to
otherwise communicating with the petitioner, remit and/or withhold
directly or indirectly; or any delay in the
(c) Removal and exclusion of the respondent remittance of support
from the residence of the petitioner, regardless to the woman and/or
of ownership of the residence, either her child without
temporarily for the purpose of protecting the justifiable cause shall
petitioner, or permanently where no property render the respondent
rights are violated or his employer liable
* if respondent must for indirect contempt of
remove personal court;
effects from the (h) Prohibition of the respondent from any use
residence, the court or possession of any firearm or deadly weapon
shall direct a law and order him to surrender the same to the
enforcement agent to court for appropriate disposition by the court,
accompany the including revocation of license and
respondent has disqualification to apply for any license to use
gathered his things or possess a firearm
and escort respondent * If the offender is a law
from the residence; enforcement agent,
(d) Directing the respondent to stay away from the court shall order
petitioner and designated family or household the offender to
member at a distance specified by the court, surrender his firearm
and to stay away from the residence, school, and shall direct the
place of employment, or any specified place appropriate authority
frequented by the petitioner and any to investigate on the
designated family or household member; offender and take
(e) Directing lawful possession and use by appropriate action on
petitioner of an automobile and other essential matter;
personal effects, regardless of ownership, and (i) Restitution for actual damages caused by
directing the appropriate law enforcement the violence inflicted, including, but not limited
officer to accompany the petitioner to the to, property damage, medical expenses,
residence of the parties to ensure that the childcare expenses and loss of income;
petitioner is safely restored to the possession (j) Directing the DSWD or any appropriate
of the automobile and other essential personal agency to provide petitioner may need; and
effects, or to supervise the petitioner's or (k) Provision of such other forms of relief as the
respondent's removal of personal belongings; court deems necessary to protect and provide
(f) Granting a temporary or permanent custody for the safety of the petitioner and any
of a child/children to the petitioner; designated family or household member,
(g) Directing the respondent to provide support provided petitioner and any designated family
to the woman and/or her child if entitled to legal or household member consents to such relief.
support.
* Notwithstanding other - Any of the reliefs provided under this section
laws to the contrary, shall be granted even in the absence of a
the court shall order decree of legal separation or annulment or
an appropriate declaration of absolute nullity of marriage.
percentage of the
income or salary of the - The issuance of a BPO or the pendency of an
respondent to be application for BPO shall not preclude a
withheld regularly by petitioner from applying for, or the court from
the respondent's granting a TPO or PPO.
employer for the same
to be automatically
Complied and Transcribed by STEPHANIE NARVAEZ 24
 SPL NOTES
Who may file petition for protection orders
(Section 9):
(a) the offended party;
(b) parents or guardians of the offended party;
(c) ascendants, descendants or collateral
relatives within the fourth civil degree of
consanguinity or affinity;
(d) officers or social workers of the DSWD or
social workers of local government units
(LGUs);
(e) police officers, preferably those in charge of
women and children's desks;
(f) Punong Barangay or Barangay Kagawad;
(g) lawyer, counselor, therapist or healthcare
provider of the petitioner;
(h) At least two (2) concerned responsible
citizens of the city or municipality where the
violence against women and their children
occurred and who has personal knowledge of
the offense committed.
Under Section 11 (How to file PO):
If the applicants is not the victim, the
application must be accompanied by an
affidavit of the applicant attesting to:
(a) the circumstances of the
abuse suffered by the victim; and
(b) the circumstances of
consent given by the victim for the
filling of the application.
When disclosure of the address of the victim
will pose danger to her life, it shall be so stated
in the application. In such a case, the applicant
shall:
1. Attest that the victim is residing in the
municipality or city over which court has
territorial jurisdiction; and
2. shall provide a mailing address for purpose
of service processing.
- An application for protection order filed with a
2.
court shall be considered an application for
both a TPO and PPO.
- Barangay officials and court personnel shall
assist applicants in the preparation of the
application.
- Law enforcement agents shall also extend
assistance in the application for protection
orders in cases brought to their attention.
Complied and Transcribed by STEPHANIE NARVAEZ
Venue for protection order (section 10)
1. Applications for BPOs - follow the rules on
venue under Section 409 of the Local
Government Code of 1991 and its
implementing rules and regulations;
SEC. 409, LGC:
(a) Disputes between persons
actually residing in the same
barangay shall be brought for
amicable settlement before the
lupon of said barangay;
(b) Those involving actual
residents of different barangays
within the same city or municipality
shall be brought in the barangay
where the respondent or any of the
respondents actually resides, at the
election of the complaint;
(c) All disputes involving real
property or any interest therein shall
be brought in the barangay where
the real property or the larger portion
thereof is situated;
(d) Those arising at the
workplace where the contending
parties are employed or at the
institution where such parties are
enrolled for study, shall be brought in
the barangay where such workplace
or institution is located.
Objections to venue shall be raised in the
mediation proceedings before the punong
barangay; otherwise, the same shall be
deemed waived. Any legal question which may
confront the punong barangay in resolving
objections to venue herein referred to may be
submitted to the Secretary of Justice, or his
duly designated representative, whose ruling
thereon shall be binding.
Application for a TPO or PPO; Where:
GENERAL RULE: TPO and PPO are filed in
the family court at the place of residence of the
petitioner.
EXCEPTION: In the absence of a family court,
with the regional trial court, metropolitan trial
court, municipal trial court, municipal circuit
trial court with territorial jurisdiction over the
place of residence of the petitioner
25
 SPL NOTES
KINDS OF PROTECTION ORDERS (sections
14, 15 and 16):
1.Barangay Protection Orders (BPOs):
- Refer to the protection order issued by the
Punong Barangay ordering the perpetrator to
desist from committing acts under Section 5 (a)
and (b) of this Act.
- A Punong Barangay who receives
applications for a BPO shall issue the
protection order to the applicant on the date of
filing after ex parte determination of the basis
of the application.
- If the Punong Barangay is unavailable to act
on the application for a BPO, the application
shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay
Kagawad the order must be accompanied by
an attestation by the Barangay Kagawad that
the Punong Barangay was unavailable at the
time for the issuance of the BPO.
- BPOs shall be effective for fifteen (15) days.
- Immediately after the issuance of an ex parte
BPO, the Punong Barangay or Barangay
Kagawad shall personally serve a copy of the
same on the respondent, or direct any
barangay official to effect is personal service.
- The parties may be accompanied by a non-
lawyer advocate in any proceeding before the
Punong Barangay.
2.Temporary Protection Orders (TPOs):
- Refers to the protection order issued by the
court on the date of filing of the application
after ex parte determination that such order
should be issued.
- A court may grant in a TPO any, some or all
of the reliefs mentioned in this Act and shall be
effective for thirty (30) days.
- The court shall schedule a hearing on the
issuance of a PPO prior to or on the date of the
expiration of the TPO.
- The court shall order the immediate personal
service of the TPO on the respondent by the
court sheriff who may obtain the assistance of
law enforcement agents for the service.
- The TPO shall include notice of the date of
the hearing on the merits of the issuance of a
PPO.
3.Permanent Protection Order (PPO):
- Refers to protection order issued by the court
after notice and hearing.
Complied and Transcribed by STEPHANIE NARVAEZ
- Respondents non-appearance
despite proper notice, or his lack of a
lawyer, or the non-availability of his
lawyer shall NOT be a ground for
rescheduling or postponing the
hearing on the merits of the
issuance of a PPO.
- If despite due notice respondent fails
to appear - court shall allow ex parte
presentation of evidence by the
applicant and render judgment on
the basis of the evidence presented.
The court shall allow the introduction
of any history of abusive conduct of
a respondent even if the same was
not directed against the applicant or
the person for whom the applicant is
made.
- If depsite due notice respondent
appears without counsel - court shall
appoint a lawyer for the respondent
and immediately proceed with the
hearing.
GENERAL RULE: The court shall, to the extent
possible, conduct the hearing on the merits of
the issuance of a PPO in one (1) day.
EXCEPTION: Where the court is unable to
conduct the hearing within one (1) day and the
TPO issued is due to expire, the court shall
continuously extend or renew the TPO for a
period of thirty (30) days at each particular time
until final judgment is issued. The extended or
renewed TPO may be modified by the court as
may be necessary or applicable to address the
needs of the applicant.
- The court may grant any, some or all of the
reliefs specified in Section 8 hereof in a PPO.
- A PPO shall be effective until revoked by a
court upon application of the person in whose
favor the order was issued. The court shall
ensure immediate personal service of the PPO
on respondent.
- The court shall not deny the issuance of
protection order on the basis of the lapse of
time between the act of violence and the filing
of the application.
- Regardless of the conviction or acquittal of
the respondent, the Court must determine
whether or not the PPO shall become final.
- Even in a dismissal, a PPO shall be granted
as long as there is no clear showing that the
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 SPL NOTES
act from which the order might arise did not
exist.
* The issuance of a BPO or the
pendency of an application
for BPO shall not preclude a
petitioner from applying for, or
the court from, granting a
TPO or PPO.
* An application for protection
order filed with a court shall
be considered an application
for both TPO and PPO.
Prescriptive periods (section 24)
Acts falling under Sections 5(a) to 5(f) shall
prescribe in twenty (20) years. Acts falling
under Sections 5(g) to 5(I) shall prescribe in
ten (10) years.
SOME FEATURES OF THE VAWC LAW:
1. Prohibited Defense.
Being under the influence of alcohol, any illicit
drug, or any other mind-altering substance
shall not be a defense under this Act (section
27).
2. Custody of children.
The woman victim of violence shall be entitled
to the custody and support of her
child/children. Children below seven (7) years
old older but with mental or physical disabilities
shall automatically be given to the mother, with
right to support, unless the court finds
compelling reasons to order otherwise.
A victim who is suffering from
battered woman syndrome shall not be
disqualified from having custody of her
children. In no case shall custody of minor
children be given to the perpetrator of a woman
who is suffering from Battered woman
syndrome.(section 28)
3. Persons Intervening Exempt from
Liability.
In every case of violence against women and
their children as herein defined, any person,
private individual or police authority or
barangay official who, acting in accordance
with law, responds or intervenes without using
violence or restraint greater than necessary to
ensure the safety of the victim, shall not be
Complied and Transcribed by STEPHANIE NARVAEZ
liable for any criminal, civil or administrative
liability resulting therefrom (section 34).
4. Exemption from Payment of Docket Fee
and Other Expenses.
If the victim is:
(a) an indigent;
(b) or there is an immediate
necessity due to imminent danger or
threat of danger to act on an
application for a protection order,
the court shall accept the application without
payment of the filing fee and other fees and of
transcript of stenographic notes.(section 38)
5. Battered Woman Syndrome as a
Defense. Victim-survivors who are found by
the courts to be suffering from battered woman
syndrome do not incur any criminal and civil
liability notwithstanding the absence of any of
the elements for justifying circumstances of
self-defense under the Revised Penal Code.
In the determination of the state of
mind of the woman who was suffering from
battered woman syndrome at the time of the
commission of the crime, the courts shall be
assisted by expert psychiatrists/ psychologists
(section 26).
Battered Woman - one who is repeatedly
subjected to any forceful physical or
psychological behavior by a man in order to
coerce her to do something he wants her to do,
without concern for her rights. Battered women
include wives or women in any form of intimate
relationship with men. Furthermore, in order to
be classified as a battered woman, the couple
must go through the battering cycle at least
twice. Any woman may find herself in an
abusive relationship with a man once. If it
occurs a second time, and she remains in the
situation, she is defined as a battered woman.
(People of the Philippines V. Marivic Genosa
G.R. No. 135981, 15 January 2004).
Acute battering must precede the killing
*The existence of the syndrome in a
relationship does not in itself establish the legal
right of the woman to kill her abusive partner.
Evidence must still be considered in the
context of self-defense. Crucial to the BWS
defense is the state of mind of the battered
woman at the time of the offense she must
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 SPL NOTES
have actually feared imminent harm from her
batterer and honestly believed in the need to
kill him in order to save her life. X x x Unlawful
aggression is the most essential element of
self-defense. It presupposes actual, sudden
and unexpected attackor an imminent
danger thereofon the life or safety of a
person. In the present case, however,
according to the testimony of Marivic herself,
there was a sufficient time interval between the
unlawful aggression of Ben and her fatal attack
upon him. She had already been able to
withdraw from his violent behavior and escape
to their childrens bedroom. During that time,
he apparently ceased his attack and went to
bed. The reality or even the imminence of the
danger he posed had ended altogether. He
was no longer in a position that presented an
actual threat on her life or safety. X x x The
aggression if not continuous, does not warrant
self-defense. In the absence of such
aggression, there can be no self-defense
complete or incompleteon the part of the
victim. Thus, Marivics killing of Ben was not
completely justified under the circumstances.
(People of the Philippines V. Marivic Genosa
G.R. No. 135981, 15 January 2004)
Cycle of Violence; three phases:
(1) The Tension-building Phase
- minor battering occurs, either verbal or
physical or other form of hostile behavior. The
woman usually tries to pacify the batterer
through a show of kind, nurturing behavior; or
by simply staying out of his way.
- What actually happens is that she allows
herself to be abused in ways that to her, are
comparatively minor. All she wants is to
prevent the escalation of the violence exhibited
by the batterer. This wish however proves to be
double-edged, because her placatory and
passive behavior legitimizes his belief that he
has the right to abuse her in the first place.
- However, the techniques adopted by the
woman in her effort to placate him are not
usually successful, and the verbal and/or
physical abuse worsens. Each partner senses
the imminent loss of control and the growing
tension and despair. Exhausted from the
persistent stress, the battered woman soon
withdraws emotionally. But the more she
becomes emotionally unavailable, the more the
batterer becomes angry, oppressive and
abusive. Often, at some unpredictable point,
Complied and Transcribed by STEPHANIE NARVAEZ
the violence spirals out of control and leads to
an acute battering incident.
(2) The Acute Battering Incident
- Characterized by brutality, destructiveness
and sometimes, death. The battered woman
deems this incident as unpredictable, yet also
inevitable.
- During this phase, she has no control; only
the batterer may put an end to the violence. Its
nature can be as unpredictable as the time of
its explosion, and so are his reasons for ending
it.
- The battered woman usually realizes that she
cannot reason with him, and that resistance
would only exacerbate her condition.
- At this stage, she has a sense of detachment
from the attack and the terrible pain, although
she may later clearly remember every detail.
Her apparent passivity in the face of acute
violence may be rationalized thus: the batterer
is almost always much stronger physically, and
she knows from her past painful experience
that it is futile to fight back. Acute battering
incidents are often very savage and out of
control, such that innocent bystanders or
intervenors are likely to get hurt.
(3) The Tranquil, Loving (or, at least,
nonviolent) Phase
- The final phase of the cycle of violence
begins when the acute battering incident ends.
During this tranquil period, the couple
experience profound relief. On the one hand,
the batterer may show a tender and nurturing
behavior towards his partner. He knows that he
has been viciously cruel and tries to make up
for it, begging for her forgiveness and
promising never to beat her again. On the
other hand, the battered woman also tries to
convince herself that the battery will never
happen again; that her partner will change for
the better; and that this good, gentle and
caring man is the real person whom she loves.
- A battered woman usually believes that she is
the sole anchor of the emotional stability of the
batterer. Sensing his isolation and despair, she
feels responsible for his well-being. The truth,
though, is that the chances of his reforming, or
seeking or receiving professional help, are very
slim, especially if she remains with him.
Generally, only after she leaves him does he
seek professional help as a way of getting her
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SPL NOTES

back. Yet, it is in this phase of remorseful

reconciliation that she is most thoroughly
tormented psychologically.

Complied and Transcribed by STEPHANIE NARVAEZ 29