Criminal Law II TSN
Updated lectures of Judge Rowena Apao- Adlawan based on 2015 4th year review
Original TSN from 2012- 2013 Uno Manresa lectures
(August 11, 2015)
CRIMES AGAINST NATIONAL SECURITY AND THE
LAW OF NATIONS
Under the crimes against national security we have 4
crimes:
1. Treason (114)
2. Conspiracy and proposal to commit treason (115)
3. Misprision of treason (116)
4. Espionage (117)
We also include here under RA 9372:
5. Terrorism
6. Conspiracy to commit terrorism
Under the crimes against the law of nations, we have:
1. Inciting to war or giving motives for reprisals
(118)
2. Violation of neutrality (119)
3. Correspondence with hostile country (120)
4. Flight to enemy’s country (121)
5. Piracy in general and mutiny on the high seas or
in Philippine waters (122)
REMEMBER: Crimes against national security and the law
of nations have extra- teritorial application. Even if the
criminal act is committed outside of the Philippine
territorial jurisdiction, the offender can still be charged and
prosecuted in due course. Remember article 2 of RPC.
Take note of the characteristics of criminal law which are:
1. Principle of generality, 2. Principle of prospectivity and
principle of territoriality.
What is included in the principle of territoriality?
- article 2 is provides that our criminal law can only
be enforced within our territorial jursdiction. It
cannot enforce it outside our territorial jurisdiction
because if we do, we will be violating the
territoriality principle.
- However, there are EXCEPTIONS in the application
of territoriality principle under article 2 of the RPC
which enumerates the extra- territorial application
of our laws. It enumerates of 5 exceptions under
RPC.
- The sixth exception of the application of
territoriality principle is under the HUMAN
SECURITY ACT.
- Before the enactment of RA 9372 or the Human
Security Act, we cannot try crimes which are
commited inside Philippine embassies or its
diplomatic premises in other countries.
- The seventh exception is under RA 9208 or the
Anti- Human Trafficking Act. If you commit human
trafficking abroad, walay jurisdiction ang Philipinas
pero pagka- amend niya under RA 10364. The
impact of this amendment is that under Sec. 26- A
of this RA 10364, it says, “ Should a commit a
crime even if commited outside the Philippines and
whether or not such acts constitute an offense at
1
“When your resources are down to nothing, believe that God is up to something =)”
the place of comission, the crime being a
continuing offense, having been commenced in
the Philippines or having been committed in
another country, if the suspects or accused is a
Filipino citizen, or a permanent resident in the
Philippines or the crime is commited against any
citizen of the Philippines”
So there are 7 exceptions (1 st 5 exceptions found in Art. 2,
RPC) to the application of territoriality principle:
1. should commit an offense while on a Philippine ship or
airship;
2.should forge or counterfeit any coin or currency note of
the Philippine Islands or obligation and securities issued by
the Government of the Philippine Islands;
3. should be liable for acts connected with the introduction
into these islands of the obligations and securities
mentioned in the preceding number;
4. while being public officers or employees, should commit
an offense in the exercise of their functions;
5. should commit any of the crimes against national
security and the law of nations, defined in Title One of
Book Two of the RPC;
6. Under HUMAN SECURITY ACT “should commit any
offense inside the consulate or embassy or diplomatic
premises belonging to or occupied by the Republic of the
Philippines in its official capacity”
7. ANTI- HUMAN TRAFFICKING ACT as amended by RA
10364.
Again, Crimes against National Security has extra-
territoriality principle that is even if it is committed outside
of Philippine jurisdiction, the offender can still be charged
and prosecuted by our laws.
What if you committed a crime under the Human Security
Act inside the embassy of the Philippines in Korea. Can
you be prosecuted under Philippine laws? OF COURSE!
Remember the application of extra- territoriality principle.
But what if, you committed a crime in Korea and you were
arrested in the Philippines, can you be prosecuted in the
Philippines? YES because of the application of RA 9372.
in case of crimes against law of nations, the offender can
be prosecuted wherever he is found because the crimes
commited is regarded as commited against humanit in
general.
These crimes are regarded as crimes against humanity or
crimes against mankind. Almost all of these crimes
committed are crimes against national security, and are
mostly committed in times of war, except of the following
which can be committed in times of peace:
1. espionage
2. inciting to war or giving motives for reprisals
3. violation of neutrality
Crimes against national security, specifically treason under
Article 114, these crimes are considered crimes that can
be committed when our country is at war. When our
country is at war with another country, these crimes
specifically these crimes under 114, 115, 116, 117, is
 Criminal Law II TSN
Updated lectures of Judge Rowena Apao- Adlawan based on 2015 4th year review
Original TSN from 2012- 2013 Uno Manresa lectures
already operational because the country is at war with
another, an enemy country. But when our country is not at
war with any other country, these particular crimes under
crimes against national security are considered dormant.
They become active only when the Philippines is at war.
Until our country will be at war with any other country like
China, these crimes enumerated as crimes against national
security shall remain dormant.
So in one specific period in our history, when did we have
these crimes? When were these crimes active? During
World War II, when the Japanese invaded our country.
<JRAA jokes about when will we be invaded by another
country>
Almost all of these crimes are committed during times of
war, except the following which can be committed during
times of peace:
 Espionage
 Inciting to war or giving motives for reprisals
 Violation of neutrality
These particular crimes can be committed even during
peace time.
Article 114. Treason. – Any Filipino citizen who levies
war against the Philippines or adheres to her enemies,
giving them aid or comfort within the Philippines or
elsewhere, shall be punished by reclusion perpetua to
death and shall pay a fine not to exceed 100,000 pesos.
No person shall be convicted of treason unless on the
testimony of two witnesses at least to the same overt act
or on confession of the accused in open court.
Likewise, an alien, residing in the Philippines, who
commits acts of treason as defined in paragraph 1 of this
article shall be punished by reclusion temporal to death
and shall pay a fine not to exceed 100,000 pesos. (As
amended by Sec 2, R.A. No. 7659)
Elements of treason:
1. Offender owes allegiance to the Republic of the
Philippines
2. The Philippines is at war with another country
3. The offender does any of the following overt acts:
a. Levies war against the duly constituted
authorities or against the forces of the
government
b. Adheres to the enemy country, giving said
enemy country aid or comfort
When one lives in the Philippines either as a citizen or a
resident alien, said individual owes allegiance to the
Republic of the Philippines. Either as a citizen or a resident
alien, said individual is presumed to owe allegiance to the
government of the Philippines. The individual is under
obligation to remain faithful and loyal to the government.
When that individual fights the forces of the government
of the Republic of the Philippines, by levying war or
adheres to the enemy by giving the enemy aid or comfort,
the effect is, he has breached his allegiance to the
Republic of Philippines and such infidelity is called
treason.
Infidelity does not only refer to your spouse, husband or
wife. Or kung mangita ug lain inyong girlfriend/ boyfriend,
2
“When your resources are down to nothing, believe that God is up to something =)”
making- ger2x xa sa lain, it’s a treasoneous act! It’s a
betrayal of trust. There is premeditation in that sense.
There is also infidelity with reference to our relationship
with our country. If you breach that allegiance and you
commit infidelity, that infidelity is called treason <layman’s
term for treason, traitor, traydor>. That’s why during the
Japanese time, if you are traitor, there is a stigma to your
name including your children. It is carried over by the
family name. <JRAA story about Laurel as traitor during
Japanese time, changes of time and Japanese
descendants> Treason, therefore is a breach of allegiance
committed by a person against the government.
Originally, treason is committed only by a Filipino citizen.
The original concept is to the effect that only Filipino
citizens owe their country allegiance. But in the course of
time, history has taught mankind, in particular the
Filipinos, that such theory is impractical and has not
pragmatic value. So as of May of 1945, E.O. 14 was
promulgated introducing an amendment to Article 114
declaring that resident aliens shall henceforth be liable for
the crime of treason. Because of the amendment,
allegiance has earned a secondary meaning. It used to be
that there is only permanent allegiance, now allegiance
can be temporary. While permanent allegiance is
demanded from Filipino citizens such temporary allegiance
is required from resident aliens for staying in the
Philippines as they owe permament allegiance to their
mother country. Temporary allegiance is required from
resident aliens for the protection extended by the
Philippine government to them.
Permanent Temporary Allegiance
Allegiance
It is demanded But resident aliens are required to
from us as citizens owe temporary allegiance for as
that we owe long as:
permanent
 they are here in the Philippines,
allegiance to the
government.  receiving the same benefits as
that of an ordinary Filipino
citizen,
then, therefore, they owe temporary
allegiance to the Philippines.
By its very nature, Treason cannot be committed in times
of peace. It is not an all-time offense. It is seasonal as it
can be committed only during war time where the
Philippines must necessarily be involved, just like the
Japanese times. As treason is basically a war crime, it is
made punishable by the state as a measure of self-
defense and self-preservation. Meaning the theory of
self-defense is not only available to an individual who is
being attacked, can also be applicable even to states.
Q: is there a need for formal declaration of war by the
Philippine government before treason can be committed?
A: NO! there is no need for a formal declaration of war
before treason can be committed.
It is essential to note that as it can be committed only
during war time where the Philippines must be necessarily
involved. As treason is basically considered a war crime, it
is made punishable by the state as a measure of self-
defense and self-preservation. In the old case of Laurel
 Criminal Law II TSN
Updated lectures of Judge Rowena Apao- Adlawan based on 2015 4th year review
Original TSN from 2012- 2013 Uno Manresa lectures
vs. Misa (77 P 865), the SC declared that “the law on
treason is an emergency measure. It remains dormant
until the emergency arises, but as soon as the war starts it
is relentlessly put into effect. While in a state of
hibernation during peace time, it asserts its authority as a
self-preserving measure when actual hostilities begin.”
This is the reason why all our decided cases in the SC
involve acts committed by the accused during WWII
between 1941-1945, acts committed during this period,
mao ni atong tutukan ug basa.
Take note, the first element says the offender owes
allegiance to the Republic of the Philippines. As I have said
earlier, allegiance may either be permanent or temporary.
Where does permanent allegiance require? Who is
required? Filipino Citizens. What about temporary
allegiance? Resident Aliens. So if you are an American
residing here in the Philippines and you owe permanent
allegiance to your country, since you are residing here in
the Philippines, then you owe temporary allegiance.
Why is it that treason is punishable? It is made
punishable by the state as a measure of self-defense and
self-preservation.
The ways of committing the crime of treason:
1. By levying war against the duly constituted
authorities or against the forces of the
government
2. By adhering to the enemies of the Philippines,
giving them aid or comfort
Let’s go first to the first way of committing treason.
The term “levies war” means overt acts which translate
into action emotional or intellectual sympathies of the
offender towards the enemy country. It is manifested by
the actual assembly of men who will engage the forces of
the government. The war effort here must be to overthrow
the government. It matters not how they carry out the
attempt maybe. Success is not important. What matters is
the actual asembly of men with treasonable desire triable
by the court. Murag rebellion ba. Meaning multitude of
men will rise up, they will rise against the forces of the
government just like rebellion.
The levying of war by the offenders must be to overthrow
the government. It matters not how vain or futile the
attempt may be, success is not important here. What
matter is:
1. the actual assembly of men and
2. the execution of reasonable design by force.
That is on the first type of committing the crime of
treason, by levying war against the government.
What is the end-purpose of levying war/ multitude of men
assembling themselves in order to replace the government
and overthrow the existing government? The end-purpose
is to deliver the country in whole or in part to the foreign
country.
In levying war, the example here is Filipinos would take up
arms against the Philippine government for the purpose of
helping the enemy country. This first type of committing
treason cannot be performed by one person only, it is
committed by multitude of men. There is no levying war
3
“When your resources are down to nothing, believe that God is up to something =)”
by himself, even rebellion, always committed by multitude
of men.
The second mode is the most common. Most of the
cases of treason are committed by way of the second
mode. If the first mode is committed by multitude of men,
the second type or mode can be committed by an
individual.
The second mode is by adhering to the enemies of the
Philippines, giving them aid or comfort. Now, the two must
go together:
1. by adherence
2. giving aid and comfort to the enemy.
This is where the bulk of cases of treason lie. Most of the
cases of treason deals on the second type, so this is the
most common of the 2 type.
First Type Second Type
Committed by multitude of Can be committed only by
men an individual
Adherence must be understood to mean that there is
intent to betray. If I have the intention to betray this
country, but I did nothing, am I criminally liable? No.
Bisag pag sige kag huna2x nga imung supportahan ang
China pero wa kay gibuhat, you cannot be liable for
treason. Even if there is intnet to betray but there is no
physical act to commit it, there is no liability for treason.
That’s basic, we have learned in book 1, if there is only an
intent but no physical act of giving aid or comfort, it does
not make one a criminal. Unless you put this into action,
you are not criminally liable. Definitely, adherence is a
preparatory act- it is therefore, not punishable by itself.
Furthermore, under article 8, mere preparatory acts are
not punishable. Adherence is a preparatory act, happening
in the mind and not necessarily happening in the realm of
criminal law. Remember, preparatory acts are not
punishbale except if provided by law like possession of
picklocks. But when this adherence or these sympathies
are converted into aid and comfort, only then do they take
the material form. This material form is only what is made
punishable under the law.
It is usually manifested by the offender:
1. giving information
2. commandeering the people
3. giving food stocks
4. serving as a spy
5. supplying the enemy with war materials
These are examples of giving aid or comfort.
Q: China and the Philippines are at war. China invaded the
Philippines and subjugated resistance in Palawan. Chinese
armed forces occupied Palawan. B, a Filipino citizen,
publicly declared that he is supporting the regime of
China. He gave financial support to China and its armed
forces instead of giving information. Is B liable?
A: Yes, B is liable because he adhered to the aid of the
enemy by giving financial support to the Chinese forces.
 Criminal Law II TSN
Updated lectures of Judge Rowena Apao- Adlawan based on 2015 4th year review
Original TSN from 2012- 2013 Uno Manresa lectures
Q: China invaded the Phils. A is a Filipino citizen and he
got so sick and tired of the government of the Philippines.
He publicly announced that he is in favor of the military
operation of China and he is supporting it. Is he liable for
treason?
A: No, A is not liable for treason. Mere adherence to the
enemy without giving aid or comfort does not amount to
treason. Remember, adherence and giving aid and comfort
must come together in the second mode. Adherence
without giving aid or comfort, there is no criminal liability
of treason.
It is different if the situation is like this:
Q: China invaded Philippines. Chinese forces went to the
house of A. They compelled A to give them food otherwise
they will kill him. He is constrained to give them food. Is A
laible for treason?
A: No. Although A gave aid and comfort to the enemy by
giving food, he did not adhere to them. Compulsion under
irrestible force is a justifying circumstance.
Now, is treason a continuing offense? Just like the crime of
rebellion, is it a continuing offense? YES!
Because of the nature of the crime of treason, it is a
continuing offense. It can be committed in a single act or
by series of acts. It can be committed in one single time or
different times but one crime is committed. It is because
there is only one or same criminal intent. It is important
that in construing the provisions pertaining to the
commission different acts the same must be done in
pursuance of furtherance of the act of treason.
So if robbery and killing are committed personally not in
persuance to the act of treason or any connection to it,
the crime of robbery and killing must be treated as
separate and distinct offenses. Even if the offender
commits several acts of treason, he can only be charged
with one count of treason.
Just like rebellion, wherever you go and you are a rebel,
you are the commander of Front 69 of Davao Region unya
ning-adto kag Bacolod without bringing arms, can you be
arrested? OF COURSE! Even if your rebellion is committed
in Davao City because rebellion is a continuing crime If
you are a rebel, be sure na ikaw lang gyud nakabalo.
SO remember, because of the nature of the crime of
treason which is to fight the forces of government in order
to bring its downfall, necessarily the offender must commit
some common crimes- common crimes against persons,
property and public interest. So in the act of levying war,
or giving aid or comfort to the enemy, and murder,
robbery, homicide are committed:
 Can these common crimes be treated separately
from that of treason?
o No. We have already learned
Hernandez doctrine (under Art 48).
 Can the crime of rebellion be complexed with
ordinary crimes?
o No. In the crime of treason, common
crimes cannot be complexed with the
crime of treason because these common
crimes are inherent in the commission of
“When your resources are down to nothing, believe that God is up to something =)”
the crime of treason. These are
considered indispensible elements of
committing the crime- by levying war, by
giving aid or comfort.
So, therefore, these ordinary crimes cannot be separated
from the crime of treason. So meaning, in the commission
of the crime of treason, you committed the crime of
murder, robbery, rape, arson, these crimes cannot be
separated from that of treason. So there can be no
complex crime of treason with ordinary crimes.
 Is treason a continuing offense? Just like
rebellion? Yes. So if Commander Parago is walking
around in Ateneo, can we arrest him? Yes. Even if
Parago is in his house, can we arrest him? Yes
because rebellion is a continuing offense.
o Treason also is a continuing offense. It
can be committed by a single act, or a
series of acts. It can be committed in one
single time, or different times. And only
one crime is committed because the
offender only has one criminal intent.
It is important to note, however, that in construing the
provision relating to the commission of several acts, the
same must be done in pursuance or furtherance of the act
of treason. So if the killing or robbery is committed by the
offender in order to avenge a purely personal grudge
which has no connection whatsoever with the crime of
treason, such killing or robbery shall be treated as a
separate and distinct offense. That is the rule.
Supposing, in one case decided by the SC under
adherence involving the Makapili, (which is an organization
consisting of Filipino allies to the Japanese imperial forces)
when you join the Makapili, this organization is considered
as allies (mao ni ang espiya sa mga Japanese during the
time) this is a manifestation of your adherence to the
enemy country. So when one is prosecuted for treason
because of his membership with the organization during
WWII:
 Can you be liable for the crime of treason? When
you are only a member of an organization? Is your
membership in that organization considered
adherence to the Japanese imperial army, making
you liable for the crime of treason?
o SC said YES. The fact of joining into that
organization, your membership is already
an act of giving aid or comfort. So it will
now be already under the second type of
committing the crime of treason. So your
mere joining of an organization which is
considered as an ally of the Japanese is
already a manifestation of your adherence
of giving aid or comfort.
the
 Why?
o It helps boost the morale of the enemy.
Aah, naa diay tay ally na nadungagan, naa
man diay mi ally. That’s the point; there is
an impact on the part of the invading
country.
 Supposing during the time, I supplied the
Japanese soldiers prostitutes for their recreation to
4
 Criminal Law II TSN
Updated lectures of Judge Rowena Apao- Adlawan based on 2015 4th year review
Original TSN from 2012- 2013 Uno Manresa lectures
satisfy their lust. Is my act of giving comfort
women to these soldiers already considered as
giving aid or comfort?
o NO. The act contemplated by law is that
which tends to strengthen the capability of
the military [of the enemy country], or
that which tends to weaken the military
capability of the country invaded to resist
the invaders. (People vs. Perez, 83 P
314) The SC held that it doesn’t
strengthen their military prowess.
Whatever advantage that it gave to the
enemy country was trivial, imperceptible
and unintentional. <JRAA jokes, so it
might have strengthen some other aspect
noh? *laughs*>
In the case of People vs. Manayao (78 P 721), the
accused joined the Japanese imperial forces. He was
charged with treason. His contention is he is not liable for
the crime of treason because he has already lost his
Filipino citizenship when he joined the imperial forces.
Because he is no longer a Filipino citizen, he doesn’t owe
allegiance to the Philippines, and since he does not owe
allegiance, he cannot be held liable for treason. Upon
joining the forces, he lost his citizenship, and upon losing
his Filipino citizenship, he does not anymore owe
allegiance to the Philippines, and therefore, he is not liable
for treason. Held: SC said the accused cannot divest
himself of his Philippine citizenship by the simple,
expedience of accepting a commission in the military,
naval, or air service of such country. IF the contention of
the accused will be sustained, your own crime becomes
your own defense. Here in treason, you are prosecuted
precisely because you joined the enemy. Your joining the
enemy cannot be used as a valid defense.
How do we find a person guilty for treason? What are the
requirements in proving treason?
The principle under [2nd par.] of Art. 114 is that no person
shall be convicted of treason unless:
1. on the testimony of 2 witnesses (two-witness rule
) at least to the same overt act or
2. on confession of the accused in open court.
But before that, what do you mean by SEVERELY
RESTRICTIVE RULE?
- it is the other term for TWO- WITNESS RULE
mura lang nag terms sa 2 kinds of rape. Sa una ang kinds
are: 1. Rape by sexual intercourse and 2. Rape by sexual
assault. But the terminologies evolve. Now, ang justices,
ang ilang gamit: 1. If rape by sexual assault, they call it
gender- free rape. In the case of sexual intercourse, they
call it organ rape.
1. Two-witness rule:
Treason is not an ordinary crime. In order to prove the
same or secure a conviction, the testimony of 2 witnesses
at least to the same overt act must be presented and
proven by the prosecution. 2 witnesses must be able to
identify the act of treason committed by the accused and
the 2 witnesses must testify separately.
5
“When your resources are down to nothing, believe that God is up to something =)”
Therefore, the principle we must not forget in treason: “
No person shall be convicted with the crime of treason
unless with the testimony of 2 witnesses at least over the
same overt act or with the confession of the accused in
open court.”
The two-witness rule must be observed for each and every
external act performed by the offender. This was
emphasized by the SC when it ruled the case of People
vs. Agpangan (79 P 334). In this case, the overt act
consisted of doing guard duty in a Japanese garrison
during the time when the Philippines was occupied by the
Japanese imperial forces. The SC ruled that the 2
witnesses must be presented to prove that on the specific
date, the accused was seen doing guard duty in the
Japanese garrison. In other words, the testimony must
refer to the same act placed at a moment in time. Simply
stated, treason cannot be proved by circumstantial
evidence. The two-witness rule is very restrictive. Our
law on treason was borrowed from the American
Constitution. The law theoretically assumes that treason is
committed during abnormal times. In order to avoid
miscarriage of justice, the two-witness rule was adapted.
Why is it severely restrictive?
 the law theoretically assumes that the crime of
treason is committed during amoral times and in
order to avoid miscourage of justice, the two
witness rule must be adopted.
What is the purpose [of the two-witness rule]?
o The purpose is to prevent mortal enemies
from resorting to unscrupulous means to
get even with enemies taking advantage
of an extremely brawl times. That was the
language of SC used in the case of
People vs. Escleto (84 P 121).
 Why do we have this rule? Why is the two-witness
rule very restrictive?
o This is a crime very serious in nature. The
stigma of you being a traitor to the
country will be laid down from one
generation to another. So that’s why we
have that very restrictive rule on the two-
witness rule.
In order to prove or in order to secure conviction, the
testimony of 2 witnesses at least on the same overt act
that is being presented by the prosecution.
An overt act means a physical activity which translates into
action the intellectual or emotional sympathies of the
accused towards the enemy. Another term given by the
law to this is “ giving aid or comfort”. So that is the
principle we must not forget when we prosecute a person
for the crime of treason- the two-witness rule.
Supposing, when 1st witness of the prosecution testified
that accused committed this particular act on November 9,
2nd witness testified that accused did a particular act on
November 10. Based on the testimony of the 2 witnesses,
can we convict the accused of the crime of treason?
o NO. Because the rule says these two
witnesses must testify on the same overt
act. There can be no same overt act there
 Criminal Law II TSN
Updated lectures of Judge Rowena Apao- Adlawan based on 2015 4th year review
Original TSN from 2012- 2013 Uno Manresa lectures
because one witness testified on the act
committed on November 9, the 2 ndtestified
on the act committed by the accused on
November 10. The two witnesses must
testify on the same overt act.
Q: Supposing China invaded the Philippines. A is a Filipino
citizen. A publicly declared that he admires the cause of
China and is supporting it. A gave financial support to the
Chinese. After the war, A was prosecuted for treason. One
witness is presented to prove his act of adherence to the
enemies, 2 witnesses were presented to prove his giving
aid and comfort to the enemies. If you were the judge
trying the case, will you convict or not?
NB by JRAA: I WILL NOT GIVE OUT THE ANSWER
OF THIS BECAUSE I WANT YOU TO ANSWER THIS
DURING YOUR EXAM. SAYON LANG NI BONUS NA
HA. IN BONUS QUESTIONS, IF CRIMINAL LAW, IN
CASE OF DOUBT, RULE IN FAVOR OF THE ACCUSED.
IF TAXATION, IF THE GOVERNMENT IS GIVING
OUT AN EXEMPTION, IT IS TO BE APPLIED
RESTRICTIVELY. SO, IN BONUS QUESTIONS, IT
WILL BE READ AND CORRECTED STRICTLY. BONUS
EH. BANTAY HA…
ANOTHER QUESTION:
King kong is a Chinese citizen residing in Sta. Mesa, Rizal
for 30 years. When China declared a war against the
Philippines, Kingkong and many of his Chinese friends
have attacked a military detachment run by the Philippine
Army and killed 15 soldiers. Did kingkong commit treason
and why?
A: Yes, Kingkong committed treason because he is a
resident in the Philippines even if he is an alien. Being a
resident alien, he owes temporary allegiance to the
government of the Philippines. Considering that the
Philippines is in war with China, his act of attacking the
military detachment of the Philippine Army, he breached
such temporary allegiance he owes.
Now, Kingkong argues that he is not liable for treason
since he is a Chinese citizen, he became an enemy of the
Philippines. Is your answer still the same?
A: Yes. Even if he is an enemy, he did not lose his
temporary allegiance to the government of the Philippines
being a resident in the Philippines. The fact remains that
all the elements of treason are committed.
ANOTHER:
Can treason be committed through negligence?
A: No. Treason is always committed by means of dolo. It
must be intentional. There must be intent to betray. It
cannot be culpa. It is just like rebellion.
Can treason be complexed with ordinary crimes?
A: No. Ordinary crimes are inherent in the commission of
treason. PROVIDED, it can be proven that it is connected
to the crime of treason. This is just like in the cases of Pp
v Geronimo and Pp v Hernandez.
ANOTHER:
After the war, X was charged for treason. A testified that
on June 1 1945, X executed 20 Filipino soldiers. On July 4,
1944 the Japanese soldiers executed 44 Filipino soldiers. A
6
“When your resources are down to nothing, believe that God is up to something =)”
testified that he saw X together with the same Japanese
soldiers who executed the Filipinos. If you were the
judge, what is your ruling?
Q: I will acquit X. There were two acts of treason
committed which are on June 1 1944 and on July 4 1944.
The prosecution only presented one witness in each
separate act of treason.
2. Confession in open court:
It refers to that stage in the hearing of the criminal case
when the accused in brought to court for arraignment.
During arraignment, the court interpreter would say the
charge and ask the accused, “What do you say about the
charge, are you guilty or not guilty?”; and the accused
says he’s guilty.
During the review of the information and the accused is
informed of the nature and the cause of the accusation
against him, he is asked to enter into a plea- guilty or not
guilty. So if he enters into a plea of guilty, that is
considered as an open court admission. And by that alone,
we can prove your criminal liability for the crime of
treason.
Review:
The crime of treason is a war crime.
Elements of treason.
Ways of committing treason like levying war against the
government and by adhering to the enemies by giving
them aid and comfort.
Two ways of proving treason:
1. Testimony of two witnesses to the same overt act
- must be on the same overt act.
Why? Because this is a crime that is very serious
in nature. The stigma will affect one generation
from another that’s why we have a restrictive two-
witness rule.
2. Confession of the accused in an open court.
Common crimes committed while treason is being
committed. How do we treat them? The commission of
common crimes like robbery, murder etc. are they
complexed in accordance with Article 48? The SC in the
case of People V Prieto under Article 48 of complex crime
it appear that the commission of the aforesaid common
crimes would be necessary to commit treason. If such is
the case it is proper for the crimes treason, murder and
other ordinary crimes and that the common crimes
committed while treason was being committed are
deemed absorb because they are inherent in the
commission of such crime of treason. In other words, if
the common crime is an element of the crime charged it
should not be treated as a separate offense. There is
therefore no complex crime of treason with murder and
other common crimes.
Can the crime of treason be committed by means of
culpa? Or treason can be committed by mere negligence?
Example I am not a spy but I handed materials which
contain information vital to the defense of the enemy and
because what I did in effect I help the enemy country so
there is the element of lack of foresight or lack of skill. Can
there be treason thru negligence? SC said NO. Treason is
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always committed by means of dolo. It is an intentional Yes. It may be committed by executing a single act or a
felony. The intent is to betray. It cannot be committed by series of acts. A person who performs several acts in
means of culpa. The government cannot the claim that the committing a crime of treason is not criminally responsible
person lack the foresight or that he lack skill when he for its separate act but should be liable from one single
committed the act and that he should be liable through offense of treason. It is a continuing offense like rebellion.
culpa or negligence.
Distinguish treason from rebellion.
If you are accuse to the crime of treason, what would be
Treason Rebellion
the possible defenses? The accused may invoke duress,
uncontrollable fear of immediate death, lawful obedience Manner to Levying war The purpose is to
to a de facto government, change of sovereignty, which against the forces substitute the
suspended allegiance, loss of citizenship. crime is of government the government to their
committed purpose is to own form of
How did the SC rule on theses defenses? Are these
deliver the government. Sample
tenable or not?
government to the NPA’s mission is to
On change of sovereignty – for example I was accused by enemy country or substitute our
the crime of treason and I claimed that I should not be in foreign power. democratic form of
held liable because there was already a change of government to
sovereignty and that I should not be held liable so where communism. No
the sovereignty is loss, I no longer owe allegiance to the foreign power is
government. Is this valid? In the case of Laurel V Misa (77 involved.
Phil 856), a citizen owes not a qualified and temporary
allegiance because we owe permanent and absolute Distinguish treason from sedition.
allegiance which consists an obligation of fidelity and Treason Sedition
obedience to his government or sovereign. This duty of
absolute and permanent allegiance to the government Manner to By means of force The offender
concurred by the enemy state is not a abrogated by a which and intimidation. disagrees with
simple expedient occupation of the enemy country. Why? crime is He does not certain policies of
Because the sovereignty of the government is not committed recognize the the State and seek
transferred by the occupier. It is just there. Hence, if not supreme authority to destroy public
transferred to the enemy occupant it must be necessarily of the State. He peace by raising a
vested in the government. violates his commotion or public
allegiance by uprising.
Loss of citizenship – fighting the forces
People V Manayao (78 Phil 721). of the duly
constituted
Manayao was charged with treason because he joined the authorities.
Japanese army because the Makapili group joined forces
with the Japanese. By that, he killed so many people. The Crime against the Against public order
accused said he cannot be charged for treason because national security like rebellion
when he joined the Japanese forces he already loss his Remember:
citizenship and when he loss his citizenship he is no longer
liable for treason because he owes no more allegiance. SC 1. Treason is only committed in times of war.
said that it is a queer defense. 2. No matter how many acts of treason are
He would shut the conscience of any enlightened citizenry committed by the offender he will only be liable
to say that this appellant by the very fact of committing for one crime of treason. The series of acts
the treasonous acts charged against him the doing of performed by offender are considered as
which under the circumstances of record does not deny indispensable element of the crime hence,
that it divested himself with Philippine citizenship and absorbed in the crime of treason.
thereby claims himself beyond the arm of our treason law. 3. No complex crime of treason with murder and
For it were so, his cry would become a shield that will ordinary crimes because these are inherent in the
protect him from punishment. crime of treason.
Duress – force find in Article 12 (exempting 4. In the imposition of penalty in the crime of
circumstance). The irresistible force. treason, the court may disregard the presence of
If you invoke uncontrollable fear of immediate death, SC mitigating and aggravating circumstances. It may
said in People V Villanueva. consider only the number, nature and gravity of
the act as established during trial and the
He joined the Makapili because he was threatened by the imposition of penalties rest largely on the exercise
Japanese and that if he will not follow the Japanese will of judicial discretion.
take him away to them. SC said that the claim of
irresistible cannot be sustained. The vague fear which he 5. Treachery, evident premeditation and abuse of
claims has no basis. This is not the fear required by the superior strength are absorbed in the crime of
law. What is required by law? Fear of death. treason.

Is treason a continuing offense? Article 115. Conspiracy and proposal to commit

treason; Penalty. - The conspiracy or proposal
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to commit the crime of treason shall be
punished respectively, by prision mayor and a
fine not exceeding P10,000 pesos, and prision
correccional and a fine not exceeding P5,000
pesos.
There are 2 crimes that can be found under this Article:
1. Elements of the crime of proposal to commit
treason:
a. There is a war in which the Philippines is involved.
b. At least one person decided war against the
government or to adhere to the enemies and to
give them aid or comfort.
c. He proposes its execution to some other person/s
2. Elements of the crime of conspiracy to commit
treason:
a. There is a war in which the Philippines is involved.
b. Persons come to an agreement to levy war against
the government or to adhere to the enemies and
to give them aid or comfort.
c. They decide to commit it.
Remember in Art8, proposal and conspiracy to commit
felony is not punishable that’s the general rule unless
there’s a law that specifically provides for a penalty
therefor. Remember Art8 in proposal and conspiracy to
commit felony or a special law is not a crime. But under
A115 the mere conspiracy and proposal to commit treason
is already punishable therefore, it is one of the exceptions
laid down in Art8. The mere proposal/conspiracy to
commit treason is also a felony. Art. 115 is the exception
to the general rule that conspiracy by itself is not a crime.
But why, to think these are just mere preparatory acts?
Remember proposal to commit a felony (eg murder) is not
yet a crime unless or until the specific task is performed
that lead to murder. But in treason, mere proposal liable
ka na.
Why? Because it is justified under the police power of the
State for reasons of public policy because it is the very
existence of the State is endangered that’s why mere
proposal or conspiracy is already punishable.
Supposed, I decided to commit a felony and proposes it to
X, what crime did I commit? Nothing.
Supposed, I decided to commit treason and proposes it to
X, what crime did I commit? Proposal to commit treason
under A115.
Supposed, A and B decided to commit treason, what crime
is committed? Conspiracy to commit treason.
Supposed, A propose to B that they commit treason, B
agreed, A and B committed acts of treason. What would
be the liability of A and B? They are liable for treason.
What happened to the proposal and conspiracy? They are
absorbed. Since they already performed the acts of
treason they are then liable. The proposal and conspiracy
are absorbed in the crime of treason. There is only 1 crime
here. The proposal and conspiracy are no longer treated
as a felony but it becomes a manner in incurring criminal
liability of treason.
8
“When your resources are down to nothing, believe that God is up to something =)”
At this conjuncture, it must be remembered that while
treason must be established by two witness rule, the same
is not observed if the crime committed is conspiracy to
commit treason and proposal to commit treason. Two
witness rule is not applicable in Art. 115. It is only
applicale in Art. 114.
Case: US V Bautista et al (6 Phil 581)
A number of Filipinos in Hong Kong entered to junta for
the purpose of overthrowing the government established
by the US here in the Philippines. One Primo Ruiz was
elected as the head of the junta and Artemio Ricarte as
the chief military arm to be organized in the Philippines.
General Ricarte returned to Phil from HK and held several
meetings with other people sympathetically cause one
Francisco Bautista actively participated to perfect the
conspiracy. In one particular meeting he assured Ricarte
that all necessary preparations had been made and that
held the people in readiness. Bautista together with the
other conspirators where apprehended and tried to the
crime of conspiracy to commit treason with only one
witness. After trial, the trial court convicted them. On
appeal, the conviction was affirmed. They said that they
should not be convicted because there are only 1 witness.
It is worthy to know that treason as a crime should be
established by the two-witness rule the same is not
observed when the crime committed is conspiracy to
commit treason. So therefore, two-witness rule will only be
liable when one is charge with treason. Thus, not
applicable when you are only charge for proposal or
conspiracy to commit treason.
Note, if the conspiracy is already carried out, meaning the
overt acts are already performed, translating into action,
the crime committed is not anymore conspiracy or
proposal to commit treason but already treason.
Remember in your crim 1 pertaining to art. 8, distinguish
conspiracy incurring criminal liability and conspiracy as a
crime? Art. 115 is a concrete example of conspiracy as a
crime itself. But always remember that when the acts of
treason is already carried out, conspiracy becomes a
means to commit treason and thus, it is absorb as a crime
of treason.
So when asked in the exam, what is conspiracy as a crime,
art. 115 should come into mind because the law says so
that it is a crime itself.
But when you say conspiracy as a means incurring criminal
liability, once conspiracy is used to carry out into action,
we do not say, “ah you are liable of two crimes which are:
article 114 and art 115” but rather, you will be charged of
treason.
What about conspiracy? Remember, it was a vehicle that
was being used to carry out and commit treason.
Parehas anang murder, malagot ko anang information na
usa lang ang accused pero ang ingon, “conspiring,
conflagrating xxx” unsa pwede ba diay ka magconspire
with your own self? There must be something wrong with
you kung ingana man. Conspiracy gani there must be 2 or
more persons involved. You cannot conspire with your
own self just like I proposal also. In proposal you propose
to other person. Alangan nman you propose it to your own
self. Nabuang naka kung ingana!
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Example: there are 5 persons who committed murder. 1 is
punished as principal by inducement, the other is by direct
participation, ang uban kay mga look out. They still part of
conspiracy. What about if magplano ta na patayon nato si
Fr. Tabora after our class tonight. Pwede ba ta dakpon or
kasuhan? Of course not kay wala man tay gibuhat. Wala
pa man xa namatay! As long as our conspiracy remains as
conspiracy, we do not commit the crime since there is no
crime as conspiracy to commit murder. But if we carry out
our plan na patyon si Fr. Tabora, then we commit murder.
How do we incur murder? By involving ourselves in a
conspiracy. That is what we mean as conspiracy as means
by incurring criminal liability.
What are punishable conspiracies by law? (pang-
top na ni sa bar!)
1. conspiracy to commit treason (art.115)
2. conspiracy to commit coup d’ etat (art.136)
3. conspiracy to commit rebellion (art. 1360
4. conspiracy to commit insurrection
5. conspiracy to commit sedition
6. conspiracy to commit arson
7. conspiracy to commit terrorism
8. conspiracy to violate RA 9165 (sec. 26 of the
Dangerous Drugs Law)
Article 116. Misprision of treason. - Every person
owing allegiance to (the United States) the
Government of the Philippine Islands, without
being a foreigner, and having knowledge of any
conspiracy against them, conceals or does not
disclose and make known the same, as soon as
possible to the governor or fiscal of the
province, or the mayor or fiscal of the city in
which he resides, as the case may be, shall be
punished as an accessory to the crime of
treason.
Elements:
1. That the offender owes allegiance to the
Government and is not a foreigner.
2. He has knowledge of nay conspiracy (to commit
treason) against the Government.
3. He conceals or does not disclose and make known
the same as soon as possible to the governor or
fiscal of the province etc.
Misprision of treason is a felony by omission (culpable
felony). This is an exception of the general rule that mere
silence of one knowing the commission of the felony does
not commit a crime under RPC.
Example, you witness murder and you do not want say
something nagpakahilom ka lang you do not commit a
crime? No. the government cannot force you to speak.
BUT this is an exception here you are liable. In the crime
of misprison of treason, once you have knowledge of an
existence of a conspiracy to commit treason, you are
obligated to report the matter to the government. If not,
9
“When your resources are down to nothing, believe that God is up to something =)”
you are liablie of a felony by ommission. This is a culpable
felony. The offender is liable due to his failure to do an
act.
The scenario is that the offender has knowledge to commit
treason against the Phil govt and he fails to report such
knowledge to the authorities as mentioned on A116. What
is required is for the conspiracy is to be reported to the
authority. Otherwise you will be held liable. The offender
must not wait or allow time to pass as conspiracy might
ripen to an act of treason. It is made obligatory to all the
citizens to report to the govt any conspiracy to commit
treason so that the govt may take action to prevent its
occurrence. But the obligation to report does not include
foreigners even if they are residents in the Philippines.
Misprision of treason is only applicable to the Filipino
citizens.
Misprision is only committed by the citizens of the phil.
Because of the language of the law “without being a
foreigner”. Criminal liability arises even if it is still in the
conspiratorial stage. Because if treason already erupted
into an overt act, the implication is that the govt has
already have known of it. There’s no need to report the
same because committed na siya. This is a felony by
omission.
The enumeration provided under A116 is not limited on
governor, fiscal, mayor any person in authority having
jurisdiction like regional trial court, pnp. What makes one
liable under A116 because the offender having knowledge
of the existence of the felony fails to report to the proper
authorities note, you must not be in conspiracy with the
other otherwise you will be liable under A115. You must
not be in conspiracy with the other. There are
conspirators, you are a stranger. You are not part of them
but you have learnt of it.
Supposed, I have knowledge that A giving aid and comfort
to the enemy but I didn’t report the matter to the
authorities. Am I liable to misprision of treason? No. the
rule is that I only have knowledge of the conspiracy. What
is only required is that you have knowledge of the
conspiracy and you failed to report it. When there is
already treason the act of giving aid or comfort is already
an act of treason therefore you are not liable. Why?
Because I failed to report it. The act of A is already giving
aid and comfort which is already a conspiracy that is
already an act of treason. Since the act is already
committed you are no longer liable for misprision of
treason.
If you are a parent of a co-conspirator to commit treason
and you parent overheard it that they are in conspiracy to
commit treason. Are you liable? (Ma’am: This will be asked
during the exam)
Another example: A and B are husband and wife. B, came
to know of the conspiracy to commit treason by her
husband, A. Fearing that her husband goes to jail, she
decided not to disclose it to the authorities. Does she incur
the liability of concealment of the conspiracy or misprison
of treason?
Q: B is not an accessory under Art. 19 of the RPC but a
principal to the crime of misprion of treason. B cannot
even claim under Art. 20 of the RPC which exempts
relatives as accessories from criminal liability. This is
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because in Art. 117 or misprison of treason, you are
charged as a principal and not as an accessory. So the fact
that you are the wife, the husband or children will not
exempt you from the criminal liability of misprison of
treason. You cannot invoke Art. 20 in relation to Art. 19
because you are not charged as an accessory but as a
principal to the crime of misprison of treason.
(August 14, 2015)
Article 117. Espionage. - The penalty of prision
correccional shall be inflicted upon any person
who:
1. Without authority therefor, enters a warship,
fort, or naval or military establishment or
reservation to obtain any information, plans,
photographs, or other data of a confidential nature
relative to the defense of the Philippine
Archipelago; or
2. Being in possession, by reason of the public
office he holds, of the articles, data, or information
referred to in the preceding paragraph, discloses
their contents to a representative of a foreign
nation.
The penalty next higher in degree shall be imposed
if the offender be a public officer or employee.
NB: there espionage punishable under the special law and
there is espionage punishable under the Revised Penal
Code.
There are 2 ways of committing espionage under Art 117:
1. By entering, without any therefore, a warship,
fort, or naval or military establishment or
reservation to obtain any information, plans,
photographs or other data of a confidential nature
relative to the defense of the phils
2. By disclosing to the representative of a foreign
nation the contents of the articles, data or
information referred to in par 1 of A117, which he
had in his possession by reason of the public office
he holds.
Note, espionage is not conditioned by the citizenship of
the offender. Therefore, this is committed in times of war
and time so peace. Sa treason in times of war, here in
espionage war and peace.
Under the 1st mode, the offender must have the intention
to obtain information relative to the defense of the Phils. It
is not necessary that the offender have obtained the
information it is sufficient that he entered the prohibited
premises. The offender here is any private individual
whether an alien or a citizen of the phils or public officer.
ELEMENTS (according to Reyes)
1. that the offender enters any of the places mentione
therein;
2. that he has no authority therefor;
3. that his purpose is to obtain information, palns,
photographs or other data of a confidential nature
relative to the defense of the Philippines
Example: Mario surreptiously entered the security room of
Fort Bonifacio without the knowledge of the officer in duty.
10
“When your resources are down to nothing, believe that God is up to something =)”
He obtained plans, maps, photographs and other data of
confidential nature relative to the defense of the
Philippines. Did he commit the crime of espionage?
A: Yes. It is not necessary that he have obtained any
information, plans, etc., mentioned in Par. 1, Art. 117. It is
sufficient that he has the purpose obtain any of them
when he entered the security facility.
Under the 2nd mode, by disclosing, the offender who has in
his possession the articles, data, or information by reason
of the office he holds taking advantage of his official
position that reveals or discloses any information
confidential and relevant to the defense of the Phils.
ELEMENTS (according to Reyes)
1. that the offender is a public officer;
2. that he has in his possession the articles, data or
information referred to im Par. 1, Art. 117, by
reason of the public office he holds;
3. that he discloses their contents to a representative
of a foreign nation.
Generally, if the public officer is not the custodian of the
said information, he is not liable for espionage but for
violation of CA 616. This was enacted to reinforce
espionage under the RPC.
In relation to Espionage we also have CA 616 (An Act to
Punish Espionage and Other Offenses against National
Security) and BP 39.
Acts punish under CA 616
1. Unlawful obtaining of information affecting the defense
of the Philippines.
2. The unlawful disclosure of such information in a foreign
country whether in times of peace or in time of war.
3. Disloyal acts or words in times of peace which causes
insubordination, mutiny of the armed forces of the
Philippines.
4. Disloyal acts or words in times of war like conveying
false report with intent to interfere with the operation of
the AFP.
5. Conspiracy to commit any of the said acts.
6. Harboring or concealing violators of the law
7. Photographing vital military information
NB: There is only few cases involving espionage.
Distinction between Treason and Espionage
Treason Espionage
Offender is a Filipino Can be committed by a Filipino
citizen or a resident citizen or an alien because
alien. committing the crime is not
conditioned by the citizenship of
the offender.
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Committed during Committed during war time or
war time peace time
There are 2 ways in There are several ways under Art.
committing the act 117 and CA 616
Mala in se Can be mala in se or mala prohibita
Section Two. - Provoking war and disloyalty in case of
war
Article 118. Inciting to war or giving motives for
reprisals. - The penalty of reclusion temporal shall
be imposed upon any public officer or employee,
and that of prision mayor upon any private
individual, who, by unlawful or unauthorized acts
provokes or gives occasion for a war involving or
liable to involve the Philippine Islands or exposes
Filipino citizens to reprisals on their persons or
property.
Elements:
1. The offender performs unlawful or unauthorized
acts.
2. Such acts provoke or give occasion for a war
involving or liable to involve the Philippines or
expose Filipino to reprisals o their perosnds or
property.
Take note of the penalty, if it is a public officer it is
reclusion temporal. If it is a private individual prision
mayor.
This is committed in times of peace. What is important
here is the effect of what you did.
Why prohibited? Because it distorts the prime relation that
our country have with the other country. This is committed
by public officer or private individual.
Examples of inciting to war or giving motives for reprisals?
The Flor Contemplacion story, Duterte burned the flag of
Singapore in a public place. The burning was protested by
the government of Singapore. The act is an example
inciting to war or giving motives for reprisals.
Another example is the recruitment or mobility of troops in
the Philippines to foreign country to fight another. Kanang
mangrecruit ka na mag- join sa ISIS. The mere recruiting
will make you criinally liable under this article.
Article 119. Violation of neutrality. - The penalty of
prision correccional shall be inflicted upon anyone
who, on the occasion of a war in which the
Government is not involved, violates any regulation
issued by competent authority for the purpose of
enforcing neutrality.
Elements:
1. There is a war in which the Phils is not involved.
2. There is a regulation issued by competent
authority for the purpose of enforcing neutrality.
3. The offender violates such regulation.
11
“When your resources are down to nothing, believe that God is up to something =)”
The scenario here is that there is a war on-going between
nations but the Philippines is not a party to the war. To
maintain its neutrality the government issues proclamation
and rules to protect its interests but the offender violates
any of the rules promulgated. The violation can be done
by means of dolo or culpa. So violation here can also be
committed by reckless imprudence.
EX: Japan and China are at war. China invaded Japan.
The Philippine Government doesn’t want to involve itself in
war. The President of the Philippines upon due
consultation with the Houses, adopted a policy to maintain
neutrality and disemiated the information for its
enforcement. A, a Filipino businessman, violated the policy
of neutrality by giving financial and material aid to China.
Thus, A is liable for violation of neutrality.
Article 120. Correspondence with hostile
country. - Any person who in time of war, shall
have correspondence with an enemy country
or territory occupied by enemy troops shall be
punished:
1. By prision correccional, if the correspondence
has been prohibited by the Government;
2. By prision mayor, if such correspondence be
carried on in ciphers or conventional signs; and
3. By reclusion temporal, if notice or information be
given thereby which might be useful to the enemy.
If the offender intended to aid the enemy by giving
such notice or information, he shall suffer the
penalty of reclusion temporal to death.
ELEMENTS:
1. that it is in time of war in which the Philippines is
involved;
2. that the offender makes correspondence with
enemy country or territory occupied by enemy
troops;
3. that the correspondence is either—
a. prohibited by the government;
b. carried on in ciphers or conventional signs;
c. containing notice or information which might
be useful to the enemy.
Is this applicable nowadays with the advent of emails?
Diba our emails are monitered by the CIA or KGB!
Correspondence is communication by means of letters bet
people. The letter must be sent without any intention on
the part of the writer to give information to the enemy. If
the correspondence has the intention to aid the enemy the
crime is tantamount to treason and the penalty of such will
be imposed upon the offender. In par 1 in A120 there
must be a prohibition. It doesn’t matter what is the
content of the letter as long as there is prohibition.
Remember, imitation games na movie? 
The correspondence is either:
1. Prohibited by the government.
2. Carried on in ciphers or conventional signs.
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3. Containing notice or information which might be
useful to the enemy.
What if we have a war against China and you have a ka-
penpal there and the Phil govt imposed na bawal
magsulat-sulat and nagsulat ka sa imong ka-penpal tapos
ang letter contained “bayot si Justin Bieber or satanic si
lady gaga”. Did I commit a crime? Yes. Because you
violated the prohibition. This is for you to prevent giving
information because you might share something to the
enemy country.
Article 121. Flight to enemy country. - The penalty
of arresto mayor shall be inflicted upon any person
who, owing allegiance to the Government,
attempts to flee or go to an enemy country when
prohibited by competent authority.
JRAA: this crime is committed by mere attempt. There is
no attempted flight to enemy country or frustrated flight
to enemy country.
Elements:
1. There is a war in which the Phils is involved.
2. The offender must be owing allegiance to the
govt.
3. The offender attempts to flee or go to enemy
country.
4. That going to enemy country is prohibited by
competent authority.
EX: China declared war against the Philippines. War rage
on. X, a Filipino citizen, boarded the plane bound to China
but before the plane could take off, X was arrested by the
authorities. Is X liable under Art. 121?
A: Yes, X is liable under Art. 121 because he attempted to
fly to enemy country. This crime is consummated by the
mere attempt.
(discussion in 2013 TSN) When the crime of treason is
discussed it was said that it can be committed by a
resident alien. He can be held liable because of his
temporary allegiance to the phil govt. a Filipino citizen
owes permanent allegiance to the Phils. Allegiance
therefor is a principal element of the crime whether
temporary or permanent that is in treason. Flight to the
enemy’s country as a felony can be committed not only by
a fil citizen but also by a resident alien. However, the law
is explicit that the going or the flight in an enemy country
must be prohibited by the govt. the govt must implement
the provision by promulgating rules and regulation to such
effect. Otherwise without such proscription no crime is
committed. Take note in this article mere attempt already
constitute a crime. Mere attempt already consummate a
crime to flight to one’s enemy’s country. Attempted stage
pa lang consummnated na.
Section Three. - Piracy and mutiny on the high seas or
in Philippine waters
Article 122. Piracy in general and mutiny on the
high seas. - The penalty of reclusion temporal shall
be inflicted upon any person who, on the high seas,
shall attack or seize a vessel or, not being a
member of its complement nor a passenger, shall
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seize the whole or part of the cargo of said vessel,
its equipment, or personal belongings of its
complement or passengers.
The same penalty shall be inflicted in case of
mutiny on the high seas or in Philippine waters.
How do you distinguish piracy from mutiny?
A: Piracy is considered a crime to the whole world. It is a
crime against the mankind. Along this line, pirates can be
prosecuted wherever they go and wherever they are
arrested. The pirates violate not the law of a country but
the law of nations.
3 kinds of piracy:
1. piracy in high seas or open seas;
2. piracy in Philippine waters;
3. Air piracy under RA 6235
Two ways of committing piracy in high seas or open seas:
1. By attacking or seizing a vessel on the high seas
or in open seas;
2. By seizing in the vessel while on the high seas
waters the whole or part of its cargo, its
equipment or personal belongings of its
complement or passengers.
Elements of these 2 acts:
1. The vessel is on the high seas or in Phil waters.
2. The offenders are not members of its complement
or passengers of the vessel.
3. The offenders (a) attack or seize that vessel, or
(b) seize the whole part of the cargo of said
vessel.
4. There is intent to gain (animus lucrandi)
Before piracy and mutiny can only be committed while in
high seas ie., outside the Phil territorial waters before the
amendment. But in august 1974, PD 532 or the Anti-Piracy
and Anti-highway robbery law was issued punishing piracy
(but not mutiny) in Phil territorial waters. Thus came 2
types of piracy. That punished under the RPC (if
committed in the high seas) and under PD 532 (if
committed under Phil territorial waters).
Amending Art122, RA 7659 (the heinous crime law)
included piracy in Phil territorial waters. Thus, superseding
PD 532. As amended, the article now punishes piracy as
well as mutiny whether committed in the high seas or in
Phil territorial waters. The penalty has been increased to
reclusion perpetua (before temporal).
When we say high seas, it refers to the body of water
which are outside of our territorial waters. When we say
COMPLEMENT, it means the whole number of officers and
members of the crew needed to alight the ship.
WHO CAN COMMIT PIRACY IN HIGH SEAS OR OPEN
SEAS?
As a rule, it is only the outsiders. It cannot be committed
by the passengers or members of the crew or complement
of the vessel. Remember, pirates in the high seas or open
seas are outsiders of the vessel. They should not be
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members of the crew or complement or passengers of the
vessel. They should not be insiders. Example ani the
movie, “Capt. Philips”. Under PD 532 piracy can only be
committed by a person who is not a passenger nor a
member of the complement of the vessel. So before a
person committing robbery in the high seas the crime is
robbery not piracy (before the amendment).
2008 Bar Q: If the passenger is lawfully admitted to the
vessel other than the crew or complement of the vessel,
then he is to be considered as passenger. So if he
(passenger) gets the property of other passenger or
complement of the vessel in the high or open seas by
means of force or intimidation, what is his crime?
A: the crime is robbery because the person who deprived
others of their properties is a passenger. He cannot be
charged of piracy.
Under PD 532 as superseded by RA 7659, piracy in Phil
territorial waters (internal waters) can be committed by
any person including the passenger or member of the
complement of the vessel.
So with the amendment who can commit the crime of
piracy?
1. Outsiders
2. Insiders, whether passenger or members of the
complement or crew of the vessel.
Originally, piracy and mutiny can only be committed in
high seas or outside the Philippine waters. But with the
amendments, piracy can now be committed in high seas
(RPC) and in internal waters or Philippine waters (PD532).
As I said, PD 532 was been superseded by RA 7659. This
pro tanto superseded PD 532. Piracy as well as mutiny,
whether committed in high seas or in Philippine territorial
waters, the penalty was increased from reclusion temporal
to reclusion perpetua. Thus, right now, piracy can be
committed in high seas or even in internal waters
(Philippine waters). Also, mutiny can be committed in the
high seas or in Philippine waters.
EX: M/V Princess is an inter-island vessel. On its way to
Gensan, A, a passenger of the vessel, took the wallet of B,
another passenger, without his knowledge and consent.
What crime did A commit?
A: the crime committed is Theft under Art. 308, since it
was taken without the use of force and intimidation. It
cannot be piracy because the essence of piracy is robbery.
Another example: While X is on board in the Agno River, Y
attacked him with the use of a gun and seized his personal
belongings. What crime did Y commit?
A: Under PD 532 as superseded by RA 7659, the crime
committed is piracy. Piracy under the amendment can now
be committed in internal waters by outsider of the vessel
or outsiders or those not passengers of the vessel. Pirates
are considered outsider of the vessel.
Another example: X and Y are passengers of an interisland
vessel. While the vessel is in the waters of Cebu, X took
the watch of Y by means of threats and intimidation. What
crime did X commit?
A: with the amendment under RA 7659, X committed the
crime of piracy. Under PD 532 as superseded by RA 7659,
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piracy can now be committed by a passenger of the
vessel, a member of the crew or complement of the
vessel.
Take note, in the earlier example, the crime committed
was theft because there was no threat or intimidation.
When outsiders attack the passengers or crew of a vessel,
the crime committed is piracy. Before the amendment, if
the passenger attacks another passenger with threat or
intimidation, the crime committed is robbery. But now
given the amendment, even if passenger basta nay threat
or intimidation, the crime is piracy gihapon.
If M/V Pamana, a Panamanian vessel, was forced to take
refuge near the island of Taiwan to avoid the wrath of the
thunderstorm. While it was in the territorial waters of
Taiwan, a fast motor boat, manned by A, B and C,
attacked the Panamanian vessel by firing at it. What crime
is committed?
A: The crime committed by A, B and C is piracy in high or
open seas. This is because it was committed outside the
territorial waters of the Philippines.
Now on ABETTING PIRACY:
3 ACTS CONSTITUTE AS ABETTING PIRACY:
1. By giving pirates of information about the
movement of the police or other authorities of the
govt.
2. By acquiring or receiving properties taken by the
pirates or derives benefit from it
3. By any person who directly or indirectly abets the
commission of piracy
PD 532, Section 4. Aiding pirates or highway
robbers/brigands or abetting piracy or highway
robbery/brigandage. Any person who knowingly and in
any manner aids or protects pirates or highway
robbers/brigands, such as giving them information
about the movement of police or other peace officers of
the government, or acquires or receives property taken
by such pirates or brigands or in any manner derives
any benefit therefrom; or any person who directly or
indirectly abets the commission of piracy or highway
robbery or brigandage, shall be considered as an
accomplice of the principal offenders and be punished in
accordance with the Rules prescribed by the Revised
Penal Code.
It shall be presumed that any person who does
any of the acts provided in this Section has
performed knowingly, unless the contrary is
proven.
EX: X,a friend of Pirate Capt John Long. The pirate has
been sought by the Philippine Coast Guard and there has
been information that capt. Long and his men sought
refuge in Roblon. X adviced Capt. Long to leave the
Philippines before the Coast Guard can apprehend him.
What crime did X commit?
A: X committed the crime of abetting piracy for giving
information to Capt. Long about the plan of the Coast
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Guard. He alerted the captain to afford him time to
escape.
(from 2013 TSN) Also in the same section provided that
the offender is also considered as an accomplice of the
principal offenders and punish in accordance with the RPC.
This provision of PD 532 with respect to piracy in the Phil
water has not been incorporated in the RPC. It is
considered not repealed in the RA 7659 since there is
nothing in the amendatory law which is said to be
inconsistent with the amendatory law. Apparently, there is
still a crime of abetting piracy in Phil waters under PD 532.
Consider the essence of piracy as one of a robbery, any
taking in the vessel with force or violence against the
person employed will always be piracy. It cannot consist in
the crime of robbery. Robbery therefor cannot be
committed on board a vessel. But if the taking of personal
property is without violence, intimidation the crime of
piracy cannot be committed. That is theft. The law says
that piracy is committed in high seas or phil waters so
what is high seas? That refers to international waters. It is
not within the phil territory. For example if the vessel is
attacked in the middle of the Pacific Ocean we do not have
jurisdiction on that because it is not within our territory.
But supposing these pirates went to our shores can we
prosecute them for piracy? Yes. Because it is a crime of
against the law of nations and humanity. Wherever you
will go, come etc. any country who would first get in touch
with these people maski na-commit pa na sa Pacific Ocean
pa na and ni-dunggo sila diri sa Pilipinas we can prosecute
them even if the crime is not committed within our
jurisdiction because that is the exception to the general
rule that is the principle of extra-territorial application.
We have defined piracy last time based on the case of PP.
V. Lolo and tan that we have said it is the forcible
depredation on the high seas without lawful authority and
done with animu furandi in the spirit and intention of
universal hostility. We have said that under Article 122,
there are two acts that are punishable here:
1. the act of attacking or seizing a vessel on the high seas
or in the Philippine waters
2. by seizing in the vessel while on the high seas or in
Philippine waters the whole or part of its cargo, its
equipment or personal belongings of its complement or
passengers.
Alright now, the essence of Piracy as what we
have said before is robbery, thus a taking of vessel with
force upon things so with violence or intimidation in his
person is employed will always be considered as piracy.
However take note that piracy as a crime cannot co –exist
with the crime of robbery. Robbery therefore, cannot be
committed on board a vessel but if taking is without
violence or intimidation on person or force upon things,
the crime of piracy cannot be committed but instead the
crime of theft. Alright, take note the law says piracy is
committed on high seas or in Philippine waters. What is
high seas? We call it the international waters, res
communes.
Now how about mutiny?
Mutiny is the unlawful resistance to a superior officer, or
the raising of commotions and disturbance on board a ship
against the authority of the commander.
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“When your resources are down to nothing, believe that God is up to something =)”
What are the elements of mutiny?
1. the vessel is on the high seas or in the Philippine waters
2. the offender are either members of the complement or
passengers of the vessel and
3. the offenders either attack or seize the vessel or simply
hold the part of the cargo or personal belongings of the
crew or the passengers.
2 kinds of mutiny:
1. Mutiny in the high seas or open seas
2. Mutiny within the Philippine waters
Example of mutiny in high seas:
- M/V Panama, is registered under the laws of
Panama. The vessel is in the Pacific ocean and the
crews rebelled against the internal management of
the vessel. They defied the captain and controlled
the vessel. The members of the crew is liable for
mutiny in high or open seas.
Example of mutiny inside Philippine waters:
- M/V Princess Stars is registered merchant ship in
Poland, anchored into Manila Bay. The members
of the crew and the passengers attacked the
captain of the ship to seize control of the vessel.
the crime committed was mutiny inside the
Philippine waters.
How do we distinguish the crime of piracy from the crime
of mutiny?
1. as the offender was concerned, mutiny is
committed by members of complement or
passengers of the vessel. Piracy can be committed
by persons who are not members of the
complement or passengers of the vessel.
2. as to criminal intent, in mutiny there is no
criminal intent to gain because their purpose is to
seize control of the ship however in piracy there is
criminal intent to gain.
ARTICLE 123. Qualified Piracy. — The penalty of
reclusión temporal to death shall be imposed upon
those who commit any of the crimes referred to in
the preceding article, under any of the following
circumstances:
1. Whenever they have seized a vessel by boarding
or firing upon the same;
2. Whenever the pirates have abandoned their
victims without means of saving themselves; or
3. Whenever the crime is accompanied by murder,
homicide, physical injuries, or rape.
What are the elements of qualified Piracy? Again just like
in piracy in article 122
1. the vessel is on the high seas or in Philippine waters
2. the offenders may or may not be members of its
complement or passengers of the vessel
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3. the acts complained of are attacking, seizing the vessel,
in part or as a whole the cargo, etc.
4. that piracy is committed boarding or firing upon the
ship or whenever the pirates have abandoned the victims
without means of saving themselves.
5. whenever the crime is accompanied by murder,
homicide physical injuries or rape.
Take note that RA 9346 obliterated the distinction
between simple and qualified piracy and mutiny. These
crimes are now the same.
EX: a passenger of an inter-island vessel robbed and killed
another passenger by stabbing him at the back several
times. The prosecutor’s office filed a complex crime of
piracy with murder. Is the charge correct?
A: the charge is not correct. Murder, rape, homicide or
physical injuries are mere circumstances in a qualified
piracy. Any of these crimes cannot be complexed with
piracy. A special law cannot be complexed with any other
felonies under the RPC. Only felonies can be complexed
with one another.
Why? Remember, in the elements of the crime, when the
crime is accompanied by murder, homicide, rape or
physical injuries, these are circumstances which will qualify
piracy and cannot be punished as separate crimes nor can
be complexed with piracy.
Another point, when any of the said crimes such ad
murder, homicide, physical injuries, rape etc, there is no
complex crime instead there is only one crime committed
which is qualified piracy.
Q: what if the prosecutor’s office files two separate crimes
which is piracy and the other is murder. Is it still qualified
piracy?
A: Yes, the crime committed is still qualified piracy. Any
act of homicide, murder, physcial injuries or rape are
circumstances which qualify piracy. The RULE IS there is
no such thing as complex crime of piracy with murder or
homicide, etc.
Pp v Timon Nov. 12, 1997, remember the rule? THERE IS
NO COMPLEX CRIME OF PIRACY WITH MURDER.
Facts: M/V Cali, a fishing boat, left Navotas to Palawan,
with its owner Modesto on board. Before leaving Navotas,
8 armed men boarded M/V Cali. They killed Modesto and
robbed the money to be used to buy fish.
Held: the case was piracy with homicide.
JRAA: This is a stray decision because most of the
decisions would really say qualified piracy. So, if ask in the
bar, stick with the rule that there is no complex crime of
piracy with murder, piracy with homicide, piracy with
robbery etc.
What about qualified mutiny?
Art. 123, it only talks about qualified piracy but now there
is a crime of qualified mutiny.
Mutiny is qualified under these circumstances:
1. when the offenders abandon the victims without
means of saving themselves;
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2. when the mutiny is accompanied with rape,
murder, homicide or physical injuries.
Ex: when a merchant vessel registered in Alaska was in
the Arabian Seas, the crews rebelled against the ship
captain by defying orders, etc. they threw the captain into
the turbulent waters and they did not heed to his plea to
take him on board. What crime did the crew commit?
A: they committed qualified mutiny because the captain
has no means of saving himself.
Another example: a group of passengers violently took
over the ship. They have tied the captain and the
complement of the ship. They raped 5 female passengers
inside the ship. What crime did they commit?
A: The crime committed was qualified mutiny since they
commited raoe during the course of mutiny. Rape cannot
be complexed with the crime of mutiny. Art. 48 of the RPC
is not applicable. Just like in piracy, there is no such thing
as complex crime of mutiny with rape, mutiny with murder
and etc.
JRRA: this is like carnapping. If during the course of
carnapping, there was killed, there is no complex crime of
carnapping with murder or homicide. It should be qualified
carnapping. Only one crime with is carnapping but
because of the circumstance of murder of homicide, it
becomes qualified carnapping.
(FROM 2013 TSN) Now what is the penalty by the way
under article 123? Reclusion Perpetua to death, take note.
It is timely to discuss the meaning of Article 63 when we
talk about Art. 63 concerning the imposition of the
penalty. The article provides that in all cases in which the
law prescribes a single indivisible penalty, it shall be
applied by the force regardless the mitigating or
aggravating circumstances that may have attended the
commission of the offense. So in piracy where murder,
homicide is committed, the mandatory penalty of death is
imposable. However, if there is the crime of qualified
piracy, you cannot impose the penalty of death because of
the prohibition. Take note whenever a particular crime
exists and you have to impose a death penalty… If the
accused enters a plea of guilty, the penalty of death will
still be imposed because here death is a single and
indivisible penalty, that’s the ruling of the Supreme Court
in the case of PP. VS. Rodriguez and again PP. V Siyop.
Now there is another kind of piracy in the Philippines
which have defined under RA 6235, AN ACT PROHIBITING
CERTAIN ACTS INIMICAL TO CIVIL AVIATION.
This is what we call air piracy but popularly known as
hijacking.
There are four situations covered by anti hijacking law:
1. the act of usurping or seizing control of an aircraft of
Philippine Registry within the Philippine territory while it is
in flight compel the pilot thereof to change the course or
destination of the aircraft.
2. usurping or seizing control of an aircraft of foreign
registry within the Philippine territory compelling the pilots
thereof to land in any part of Philippine territory
3. the carrying or loading on board a aircraft operating as
a public utility within the Philippines any flammable,
corrosive, explosive or poisonous substance.
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4. The loading, shipping or transporting on board a cargo
of the aircraft operating as a public utility in the Philippines
inflammable, corrosive, explosive or poisonous substance.
If this was done not in accordance with the rules and
regulations and promulgated by the Air Transportation
Office.
Now these particular four acts are qualified when:
1. whenever transpired upon by the pilot, members of the
crew of passenger of the aircraft.
2. whenever he has exploded or attempted to explode any
bomb, explosive to destroy the aircraft.
3. whenever the crime is accompanied by murder,
homicide, serious physical injuries or rape.
Now, between numbers 1 and 2, the point of distinction is
whether the aircraft is a Philippine registry or foreign
registry.
The common bar question on this law RA6235 is more on
number 1, usurping or seizing control any aircraft of
Philippine Registry while it is in flight compelling the pilots
thereof to change the course of the destination of the
aircraft. Now the important thing is that before the Anti-
hijacking law can apply, the aircraft must be in flight. If
not in flight, whatever crimes committed shall be governed
by the RPC. The law makes a distinction between an
aircraft of Philippine registry and an aircraft of foreign
registry. If an aircraft is subject of hijacking is a Philippine
registry, it should be in flight at the time of the hijacking
take note. Otherwise, the anti hijacking law will not apply
and the crime would only be punishable by the RPC. So
here there maybe grave threats or grave coercion. If
somebody is killed, the aircraft is not yet in flight and the
crime committee is homicide or murder, as the case
maybe, we will only apply the provisions of the RPC. Now
if there are some explosives that are being carried on and
the aircraft is not yet in flight and the hijacking is done,
then the crime would be one of arson. Destruction of
property with the use of pyrotechnics is destructive arson.
Explosives or use of destructive pyrotechnics is destructive
arson, thus the special law on arson applies. Now, if there
is illegally possessed of a firearm ofcourse the other
special laws will apply, the law on illegal possession of
firearms.
On the other hand, is of foreign registry, the law does
not require that the aircraft be in flight before the anti-
hijacking law can apply. So even if it is not in flight, we
can already use R.A. 6235. This is because aircrafts of
foreign registry are considered in transit while they are in
foreign countries. Although they may have been in foreign
country technically, they are still in flight because they
have to move out of that foreign country. So even if any of
the acts mentioned were committed while the exterior
doors of foreign aircrafts were still open, the anti hijacking
law will already govern the act. Take note of that.
Now, when do we say that the aircraft is in flight? An
aircraft is considered in flight from the moment all the
exterior doors are closed following the embarkation until
such time when the same doors are already open for
disembarkation. This means that there are passengers that
already boarded the aircraft. So if the doors are closed to
bring the aircraft to the hanger, the aircraft is not
considered as in flight. The aircraft shall be deemed to be
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already in flight even if it’s engine has not yet been the
moment closing the doors ready for embarkation, that’s
the reckoning point is considered to be whether the
aircraft is in flight or not.
There was one bar question that goes like this, the Pilots
of the PAN AM aircrafts were accosted by some armed
men and were told to proceed to the aircraft to fly to a
foreign destination. The armed men walked with the pilot
and went on board the aircraft but before they could do
anything to the aircraft, the alert marshalls arrested them.
Question, what crime was committed by the armed men?
The criminal intent definitely is to take control of the
aircraft which is hijacking. It is a question now whether
the anti-hijacking law shall govern. The anti hijacking law
is applicable in this case. Even if the aircraft is not yet
about to flight, the requirement that it be in flight does not
hold true when it comes an aircraft of foreign registry.
Since the aircraft of foreign registry, under the law, simply
usurping or seizing control is enough as long as the
aircraft is within the Philippine territory without the
requirement that it be in flight.
Now, can hijacking can be committed in an attempted
stage? There is no attempted stage or frustrated in the
anti hijacking law. Remember that this is a special law,
except when the law specially provides for its attempted or
frustrated stge. We cannot apply the stages of execution
under article 6 in this Anti-hijacking law. Is there any
special law that defines that mere attempt is already a
crime? There is one under RA9165, attempt to sell illegal
drugs pwede because the law defines it. The law provides
a penalty in an attempted stage but in the anti-hijacking
law, the law does not provide for any attempt or
frustration. So its either consummated or nothing.
Now another problem that was also asked in the bar
exam, a Philippine airlines aircraft is boud for Davao while
the pilot and the co-pilot are taking their snacks at the
airport lounge. Some of the armed men were also there,
the pilots were followed by the men on their way to the
aircraft as soon as the pilots entered into the cockpit, and
they pulled their firearms and gave instructions where to
fly the aircraft. Does the anti hijacking law apply?
A: No. the passengers have yet to board the aircraft, take
note the problem, its only the pilots who boarded the
aircraft. If at the time the offended are boarded, the law
cannot apply because the aircraft is not yet in flight. Note
the example here is that the aircraft is of Philippine
registry, a requirement is that it should be in flight. The
provisions of the Revised Penal Code applies.
Another, while the stewardess of a Philippine Airlines Plane
bound for Cebu while waiting the passengers manifest,
two of its passengers seated near the pilot, susceptitiuosly
entered the pilot cockpit. With that at gunpoint they
directed the pilot to fly the aircraft towards the middle
east, the offenders were subdued and the aircraft landed.
What crime was committed?
A:Considering the stewardess as still waiting for passenger
manifest, the doors were still open. The plane is still not in
flight. Hence, the Anti hijacking law is not applicable
instead that would be grave coercion or grave threat
under the RPC depending upon WON a serious offense or
violence was inflicted upon against the pilot. However, if
that aircraft was of foreign registry, the act would already
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be subjected to anti hijacking law because there is no
requirement for a foreign aircraft to be in flight before R.A.
6235 COULD APPLY. The reason for the distinction is that
as long as such aircraft has not returned to its home based
technically, it’s still considered in transit or in flight.
Another example: in the course of the flight, a passenger
was shot and killed. What was the crime committed?
A: the crime committed was the violation of the Anti-
Hijacking Act but the penalty must be higher since there
was a passenger killed in the course of hijacking. Thus, it
is considered QUALIFIED HIJACKING. We do not say that
the crime committed is high jacking with murder. It’s only
a pure and simple hijacking qualified by the presence of
this murder or homicide.
Another. During the random inspection before take off, Mr.
X was found to be in possession of explosives and
flammable substance. He was arrested. What crime did he
commit and why?
A: Mr. X is punished under the anti- hijacking act which
provides that the carrying or loading on board any
prohibited, flammable, corrosive or explosive or poisonous
substance in a public utility aircraft.
(FROM 2013 TSN) Now, the carrying of any prohibited,
flammable, corrosive or explosive substance is a crime
under RA 6235. A distinction should be made whether the
aircraft isa passenger aircraft or a cargo aircraft. In both
cases however the law applies only to public utility aircraft
in the Philippines, like PAL. Private aircrafts are not subject
to anti hijacking law insofar as transporting prohibited
explosive substance is concerned. Now, if the aircraft is a
passenger aircraft, you know the prohibition is absolute.
Carrying any prohibited, flammable, corrosive or explosive
substance is a crime under RA 6235. But if the aircraft is
only a cargo aircraft, the law is violated only when the
transporting of the prohibited substance was not done in
accordance with the rules and regulations prescribed by
the ATO.
Another example: the hijackers tend to detonate a bomb
in the course of hijacking. What crime or crimes are
committed?
A: Violation of Anti- Hijacking Act qualified by grave
threats. It shall serve to increase the penalty. There is no
separate crime of grave threat.
Lets now go to RA 9372 or the Human Security Act. Asked
during the 2013 Bar Exam.
What is TERRORISM?
- acts intended or calculated to provoke a state of
terror in the general public. A group of persons or
particular persons for political purposes are in any
circumstance acts unjustifiable whatever are the
reasons- political, philosophical, ideological, racial,
ethnic, indigenous,religious or etc., cannot be
invoke to justify them.
- calculated use of unlawful violence or threat of
unlawful violence to inculcate fear; intended to
coerce or to intimidate governments or societies in
the pursuit of goals that are generally political,
religious, or ideological.
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“When your resources are down to nothing, believe that God is up to something =)”
- Remember, any act to cause death or bodily harm
to civilians or non- combatants with the purpose
of intimidating the population with serious bodily
harm, compelling the government or international
organization to do or abstain doing any act.
What is terrorism under RA 9372?
SEC. 3. Terrorism.- Any person who commits an act
punishable under any of the following provisions of
the Revised Penal Code:
a. Article 122 (Piracy in General and Mutiny in the
High Seas or in the Philippine Waters);
b. Article 134 (Rebellion or Insurrection);
c. Article 134-a (Coup d' Etat), including acts
committed by private persons;
d. Article 248 (Murder);
e. Article 267 (Kidnapping and Serious Illegal
Detention);
f. Article 324 (Crimes Involving Destruction), or
under
1. Presidential Decree No. 1613 (The Law on
Arson);
2. Republic Act No. 6969 (Toxic Substances and
Hazardous and Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207, (Atomic Energy
Regulatory and Liability Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
5. Presidential Decree No. 532 (Anti-Piracy and
Anti-Highway Robbery Law of 1974); and,
6. Presidential Decree No. 1866, as amended
(Decree Codifying the Laws on Illegal and Unlawful
Possession, Manufacture, Dealing in, Acquisition or
Disposition of Firearms, Ammunitions or
Explosives)
thereby sowing and creating a condition of
widespread and extraordinary fear and panic
among the populace, in order to coerce the
government to give in to an unlawful demand shall
be guilty of the crime of terrorism and shall suffer
the penalty of forty (40) years of imprisonment,
without the benefit of parole as provided for under
Act No. 4103, otherwise known as the
Indeterminate Sentence Law, as amended.
PROVIDED, the following requisites are met:
1. the acts committed sow and create a condition of
widespread and extraordinaryfear and panic
among the populace,
2. in order to coerce the government to give in to
unlawful demand
what is the motive of terrorism?
- it is to coerce the government to give in to
unlawful demand.
Penalty for Terrorism: 40 years of imprisonment without
the benefit of Parole or ISL.
Q: are the acts mentioned in Sec. 3 deemed repealed?
A: NO. A careful scrutiny of the provisions of RA 9372 and
the acts enumerated therein, it only becomes an act of
terrorism has reached the condition to sow or create
widespread and extraordinary fear and panic to the public
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with the purpose of coercing the government to give in to
unlawful demands. Terrorism is a crime of result.
Q: X killed Y with evident premeditation. Thus, it is
murder. Can it be terrorism?
A: No. Although it is one of the crimes enumerated under
Sec. 3 of RA 9372, it did not sow or create widespred and
extraordinay fear and panic among the public. Bisag pag
daghan xag gipatay as long as it did not sow and create
widespread panic to coerce the government to give in to
unlawful demand, there is no terrorism.
Q: what if X is a serial rapist. Because of fear, wala nay
mga babae na maglakaw2x sa dalan. Is X liable for
terrorism?
A: NO. Even if the series of rape created and sowed
widespread panic among the public, rape, is not among
the acts covered under terrorism.
Q: A,B, C and D, organized themselves to commit a big
time robbery. They rob banks and mercilessly kill people.
The crimes committed by them have reached garguant
proportion and created a widespread fear and panic
among the populace. They became a notorious gang. Are
they laible for terrorism?
A: NO. Even if the crimes they committed are covered
under RA 9372, terrorism is committed only if the acts
committed is to coerce the government to give in to
unlawful demand. This element is absent in the case at
bar.
Q: A, B, C and D hijacked a plane. On board is the VP of
the Philippines, 15 high ranking officials and 250 other
passengers. They threatened that they will blow off the
plane unless they release from captivity Al- Saud. It
created widespread fear. Are they liable for terrorism?
A: Yes. Hijacking is included in the definition of terrorism.
The act of hijacking sought and created widespread fear
and panic to coerce the government to give in to their
demand. It is immaterial if the terrorist obtained their
demand or not.
Q: How about the Maguindanao Massacre, is it considered
terrorism?
A: NO. Even if it created widespread panic and fear, there
is no showing that it was committed to coerce the
government to give in to any demands.
SO what do you understand with unlawful demands? This
element is important because without this, there is no
crime of terrorism.
Can crime of conspiracy to commit terrorism be
committed?
YES. Sec.4 provides:
SEC. 4. Conspiracy to Commit Terrorism. - Persons
who conspire to commit the crime of terrorism shall
suffer the penalty of forty (40) years of
imprisonment.
There is conspiracy when two or more persons
come to an agreement concerning the commission
of the crime of terrorism as defined in Section 3
hereof and decide to commit the same.
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“When your resources are down to nothing, believe that God is up to something =)”
MERE CONSPIRACY TO COMMIT TERRORISM IS
PUNISHABLE. This was asked in the mcq bar exam.
Who are liable to commit terrorism?
1. Principal (sec3)
2. Accomplice
SEC. 5. Accomplice. - Any person who, not
being a principal under Article 17 of the
Revised Penal Code or a conspirator as
defined in Section 4 hereof, cooperates in
the execution of either the crime of
terrorism or conspiracy to commit terrorism
by previous or simultaneous acts shall suffer
the penalty of from seventeen (17) years,
four months one day to twenty (20) years of
imprisonment.
3. Accessory
SEC. 6. Accessory. - Any person who, having
knowledge of the commission of the crime
of terrorism or conspiracy to commit
terrorism, and without having participated
therein, either as principal or accomplice
under Articles 17 and 18 of the Revised
Penal Code, takes part subsequent to its
commission in any of the following manner:
(a) by profiting himself or assisting the
offender to profit by the effects of the
crime; (b) by concealing or destroying the
body of the crime, or the effects, or
instruments thereof, in order to prevent its
discovery; (c) by harboring, concealing, or
assisting in the escape of the principal or
conspirator of the crime, shall suffer the
penalty of ten (10) years and one day to
twelve (12) years of imprisonment.
Notwithstanding the above paragraph, the
penalties prescribed for accessories shall
not be imposed upon those who are such
with respect to their spouses, ascendants,
descendants, legitimate, natural, and
adopted brothers and sisters, or relatives by
affinity within the same degrees, with the
single exception of accessories falling within
the provisions of subparagraph (a).
Ex: A is a member of a terrorist group kidnapping well
to do scions. He amassed millions because of their
activities. A gave his bestfriend, B, 500,000php and he
accepted it despite the knowledge that the money
came from terrorist activities. Is B liable? Yes! He is
laible as an accessory.
Is he also liable for Anti- Fencing Law?
A: No. He cannot be liable for the crime of fencing is
only applicable for the crimes of theft and robbery.
RULE: TERRORISM IS A CRIME OF RESULT
What do you mean by that?
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If kunwari naay murder dira, daghan tao nangamatay pero
it did not create a widespread panic, it will never fall under
terrorism.
CASE: Southern Hemisphere Engagment Network, Inc v
ATC, Oct 5, 2010
There is no merit in the claim that RA 9732
regulates speech so as to permit facial analysis of
its validity
From the definition of the crime of terrorism in the earlier
cited Section 3 of RA 9372, the following elements may be
culled: (1) the offender commits an act punishable under
any of the cited provisions of the Revised Penal Code, or
under any of the enumerated special penal laws; (2) the
commission of the predicate crime sows and creates a
condition of widespread and extraordinary fear and panic
among the populace; and (3) the offender is actuated by
the desire to coerce the government to give in to an
unlawful demand.
In insisting on a facial challenge on the invocation that the
law penalizes speech, petitioners contend that the element
of unlawful demand in the definition of terrorism must
necessarily be transmitted through some form of
expression protected by the free speech clause.
The argument does not persuade. What the law seeks to
penalize is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372,
there must first be a predicate crime actually committed to
trigger the operation of the key qualifying phrases in the
other elements of the crime, including the coercion of the
government to accede to an unlawful demand. Given the
presence of the first element, any attempt at singling out
or highlighting the communicative component of the
prohibition cannot recategorize the unprotected conduct
into a protected speech.
Petitioners notion on the transmission of message is
entirely inaccurate, as it unduly focuses on just one
particle of an element of the crime. Almost every
commission of a crime entails some mincing of words on
the part of the offender like in declaring to launch overt
criminal acts against a victim, in haggling on the amount
of ransom or conditions, or in negotiating a deceitful
transaction. An analogy in one U.S. caseillustrated that the
fact that the prohibition on discrimination in hiring on the
basis of race will require an employer to take down a sign
reading White Applicants Only hardly means that the law
should be analyzed as one regulating speech rather than
conduct.
Utterances not elemental but inevitably incidental to the
doing of the criminal conduct alter neither the intent of the
law to punish socially harmful conduct nor the essence of
the whole act as conduct and not speech. This holds true
a fortiori in the present case where the expression figures
only as an inevitable incident of making the element of
coercion perceptible.
[I]t is true that the agreements and course of conduct
here were as in most instances brought about through
speaking or writing. But it has neverbeen deemed an
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abridgement of freedom of speech or press to make a
course of conduct illegal merely because the conduct was,
in part, initiated, evidenced, or carried out by means of
language, either spoken, written, or printed . Such an
expansive interpretation of the constitutional guaranties of
speech and press would make it practically impossible ever
to enforce laws against agreements in restraint of trade as
well as many other agreements and conspiracies deemed
injurious to society. (italics and underscoring supplied)
Certain kinds of speech have been treated as unprotected
conduct, because they merely evidence a prohibited
conduct. Since speech is not involved here, the Court
cannot heed the call for a facial analysis.
IN FINE, Estrada and the other cited authoritiesengaged in
a vagueness analysis of the therein subject penal statute
as appliedto the therein petitioners inasmuch as they were
actually charged with the pertinent crimes challenged
on vagueness grounds. The Court in said cases, however,
found no basis to review the assailed penal statute on its
face and in its entirety.
In Holder, on the other hand, the US Supreme
Courtallowedthe pre-enforcement review of a criminal
statute, challenged on vagueness grounds, since the
therein plaintiffs faced a credible threat of prosecution
and should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief.
As earlier reflected, petitioners have established
neitheran actual charge nor a credible threat of
prosecution under RA 9372. Even a limited vagueness
analysis of the assailed definition of terrorism is thus
legally impermissible. The Court reminds litigants that
judicial power neither contemplates speculative counseling
on a statutes future effect on hypothetical scenarios nor
allows the courts to be used as an extension of a failed
legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
August 18, 2015
What are the specific acts that are being authorized
in RA 9372?
1. Tracking down, tapping, listening to,
interception and recording of messages,
communications, conversations, discussions,
spoken or written words of any person(s)
suspected of the crime of terrorism or the
crime of conspiracy to commit terrorism.
2. The other is the apprehension and detention
without a warrant of a person suspected of
the crime of terrorism or the crime of
conspiracy to commit terrorism.
3. Judicial authorization to examine bank
deposits, accounts and records.
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May an organization, association or group of persons
be declared as a terrorist and outlawed organization,
association or group of persons organized actually
uses the acts to terrorize, to sow and to create a
condition of widespread and extraordinary fear
among the populace in order to coerce the
government to give in an unlawful demand? YES.
This has been answered in the case of Southern
Hemisphere Engagement Network, Inc. v.
Anti-Terrorism Council, October 5, 2010.
SEC. 17. Proscription of Terrorist
Organizations, Association, or Group of
Persons. - Any organization, association, or group of
persons organized for the purpose of engaging in
terrorism, or which, although not organized for that
purpose, actually uses the acts to terrorize
mentioned in this Act or to sow and create a
condition of widespread and extraordinary fear and
panic among the populace in order to coerce the
government to give in to an unlawful demand shall,
upon application of the Department of Justice before
a competent Regional Trial Court, with due notice
and opportunity to be heard given to the
organization, association, or group of persons
concerned, be declared as a terrorist and outlawed
organization, association, or group of persons by the
said Regional Trial Court.
We will proceed in Crimes against the Fundamental
Law of the State. They are:
 Arbitrary Detention
 Delay in the delivery of detained persons to
the proper judicial authorities
 Delaying release
 Expulsion
 Violation of domicile
 Search warrants maliciously obtained and
abuse in the service of those legally obtained
 Searching domicile without witnesses
 Prohibition, interruption, and dissolution of
peaceful meetings
 Interruption of religious worship
 Offending the religious feelings
Now let’s all go to title 2, crimes against fundamental
laws of the state.
The title 2 by the way there are so many crimes
against fundamental laws on the state, there are at
least ten.
The most common crime violated is Art. 124, the
crime of arbitrary detention.
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“When your resources are down to nothing, believe that God is up to something =)”
As we have said that there are at least 10 crimes
against the fundamental law on the sate. Now crimes
by the way under this title are those which violate
the bill of rights accorded to the citizens under the
1987 constitution. Under this title the offenders here
are public officers except as to the last crime,
offending the religious feelings which refer to a
person, the crime is committed by any person. The
public officers who may have liable are only those
acting under the suppose exercise of their official
functions.
We have a counterpart of this Title 2 which is found
under title 9, against personal liberty and security,
the offenders are private person. However, in title 2
the offenders are public officers but private persons
may also be liable under this title when the said
private person conspires with the public officers.
What is required is that the principal offender must
be a public officer thus, if a private person conspires
with a public officer or becomes an accessory or
accomplice that private person also becomes liable
for the crime BUT a private person acting alone
cannot commit a crime against Art. 124 – Art. 133.
Basically, the private offenders here are public
officers. So its not absolute to say that only public
officers because private individuals are also liable
when when they are found to be in conspiracy with
public officers because private individuals are also
liable when they are found to be in conspiracy with
public officers in committing with these crimes.
Article 124. Arbitrary detention. - Any public officer
or employee who, without legal grounds, detains a
person, shall suffer;
1. The penalty of arresto mayor in its
maximum period to prision correccional in its
minimum period, if the detention has not
exceeded three days;
2. The penalty of prision correccional in its
medium and maximum periods, if the
detention has continued more than three but
not more than fifteen days;
3. The penalty of prision mayor, if the
detention has continued for more than fifteen
days but not more than six months; and
4. That of reclusion temporal, if the detention
shall have exceeded six months.
The commission of a crime, or violent insanity or any
other ailment requiring the compulsory confinement
of the patient in a hospital, shall be considered legal
grounds for the detention of any person.
What are the elements?
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1. the offender is a public officer or employee
2. he detains a person
3. the detention is without legal ground
“Without legal grounds.”
(1) When he has not committed any crime or, at
least, there is no reasonable ground for
suspicion that he has committed a crime, or
(2) When he is not suffering from violent insanity
or any other ailment requiring compulsory
confinement in a hospital.
The following are the legal grounds for the detention
of any person:
a) The commission of a crime;
b) Violent insanity or any other ailment requiring
the compulsory confinement of the patient in
a hospital.
Now the usual cause of arbitrary detention is when a
public officer arrests and detained somebody without
a warrant. A person is considered detained when he
is placed in confinement or when there is restraint on
his person. His detention is without legal ground if he
has not committed any crime or there is no
reasonable ground of suspicion that he has
committed a crime or when he is not suffering from
any violent insanity or any other ailment requiring his
compulsory confinement. If there is a warrant, you
do not commit Art. 124. When a person has not
committed a crime and you detain him, you become
liable under Art. 124.
What is the meaning of absence of legal grounds? No
crime was committed by a person and you detained
him. The usual cause of arbitrary detention is when
the public officer arrests or detains somebody. Under
the guise of invitation, the police invites you. Last
year I acquitted someone, the alleged crime
committed was robbery with homicide. He was
arrested by the policeman. How was he arrested?
The policemen narrated that he merely invited him. I
asked what the reason for bringing him in the prison
is. He said for invitation. There is a violation there for
the rights of the accused. He is not supposed to be
detained and arrested.
Again the usual cause of arbitrary detention is that
public officer arresting or detaining somebody
without a warrant. A person is considered detaining
when he is placed in a confinement or where there is
restraint in his person. His detention is without legal
ground if he has not committed any crime or there is
no reasonable ground or suspicion in committing the
crime, or he has suffered from violent insanity.
Now, if there is warrant, ofcourse there is no crime
of arbitrary detention. When a person has not
committed a crime and you detained him, you are
liable.
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“When your resources are down to nothing, believe that God is up to something =)”
Who are the officers who are likely to commit the
particular crime? They are those who are vested with
the authority to detain or order the detention of
person like the policemen, mayors and judges.
Take note that in the crime of arbitrary detention,
although the offender is a public officer, not any
public officers can commit this crime. Only those
public officers whose official duties imbued or carry
with it the authority to order the detention can
commit this crime. So it is not automatic that you are
a public officer you can commit this crime, only
policemen, mayors, and judges who have the powers
to detain a person or to order the arrest or detain a
person. So if the offender does not possess the
authority, the crime committed by him is Illegal
Detention - ART.267. If you are a municipal
treasurer, and you detained somebody, do not
expect that you will be charged under Article 124.
Now a public officer who is acting outside his official
duty is no better than a private citizen.
Under Rule 113 of the rules of criminal procedure,
the ff. are considered as legal grounds for a
warrantless arrest and for detaining a person without
violating the law on arbitrary detention alright. These
rules enumerate those instances that a person may
be detained even if without a warrant.
1. When a person to be arrested has committed, is
already committing or is attempting to commit an
offense in the presence of a public officer like a
policeman.
2. when the offense has in fact commit, committed
or he has personal knowledge to the fact that the
person to be arrested has committed it or the person
to be arrested is an escaped prisoner.
RULE 113, Sec. 5
Section 5. Arrest without warrant; when lawful. — A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense;
(b) When an offense has just been
committed, and he has probable cause to
believe based on personal knowledge of facts
or circumstances that the person to be
arrested has committed it; and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or is temporarily confined
while his case is pending, or has escaped
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while being transferred from one confinement
to another.
In cases falling under paragraph (a) and (b) above,
the person arrested without a warrant shall be
forthwith delivered to the nearest police station or
jail and shall be proceeded against in accordance
with section 7 of Rule 112.
Can arbitrary detention be committed by simple
imprudence or simple negligence?
A. PP v. Misa – The chief of police rearrested a
woman who had been released by means of a verbal
order of the justice of peace. The accused acted
without malice, but he should have verified the order
of release before proceeding to make the re-arrest.
The crime committed by the chief of police is
arbitrary detention through simple imprudence
provided for and punished under Art 365, par 2 of
the RPC, in consonance with Art 124, par 1 of the
same Code.
Example. You committed a crime in presence
(policeman). Question, Do I have the right to arrest
you or detain you? Yes, I have the right, in fact it is
my duty to arrest you.
A good example of the application of Rule 113, is the
use of a distressed wife who calls the police by
phone and she tells the policeman, she has locked
herself inside the master’s bedroom, together with
her paramour because her husband caught them in
cohabitation. His husband is trying to open the
locked door holding a .45 caliber. He told the
policeman, help us because her husband is outside
the room………the wife gives her name, Heart
Escudero alright. Now what’s the name of your
husband? Chiz Escudero. The policeman immediately
responded, upon arrival of the house, he met by a
man who introduced himself as Chiz Escudero. Chiz
Escudero had said that Mr. policeman, let’s go to the
room, now when they arrived at the master’s
bedroom, the policeman found the lifeless body of
heart and Jericho. The two victims found out to have
sustained gun shot wounds in different parts of the
bodies. The door appears to have been forcibly
destroyed and the piston was found on top of the
bed. When asked if he has knowledge to what had
happened, Chiz replied that both victims committed
suicide with the use of .45 caliber pistol. Under the
facts given, can the policeman place Chiz under
arrest and detain him? Under RULE 113 yes.
Ofcourse. The policeman is justified in placing the
Chiz under arrest because while he was not present
in the commission of the crime, he has the personal
knowledge to the facts indicating to the person to be
arrested has committed the crime.
22
“When your resources are down to nothing, believe that God is up to something =)”
Alright, now you know the crime of arbitrary
detention can be committed through reckless
imprudence. Just like what happened in PP v. Misa as
cited in your book. Alright now, there was one bar
question again, the janitor of Quezon City Municipal
Hall was assigned in cleaning the men’s room. One
day he caught his fellow urinating recklessly, the
janitor resented this. He stepped out the men’s room
and locked the same. The fellow was able to come
out only after several hours when the people from
the outside forcibly open the door. Is the janitor
liable for the crime of arbitrary detention? NO. Even
if he is public officer or employee whatever, he is not
permitted by his official function to arrest or detain a
person. What is his official function? To clean the
restroom, not to detain a person. Therefore, the
person here is guilty of illegal detention not of
arbitrary detention. While the offender here is a
pub;ic officer or employee, his duty does not include
the authority to arrest. The crime was committed is
only illegal detention.
Another, a municipal treasurer has been courting
G his secretary, however, the secretary always
turned him down. The municipal treasurer has a face
only the mother can love. So one afternoon the
treasurer locked the secretary inside her office and
started crying. The treasurer opened the door and
allowed her to go home. Is the municipal treasurer
liable under art. 124 of arbitrary detention? No, the
crime committed is only illegal detention. This is
because the municipal treasurer has no authority to
detain a person although he is a public officer.
Alright let us try to make a distinction between
arbitrary detention and illegal detention. Arbitrary
detention, the offender must be a public officer.
Civilian cannot commit the crime of arbitrary
detention except when they conspire the public
officers in the commission of the crime or an
accomplice or an accessory to the public officer or
employee. The offender is a public officer who has a
duty which carries with it the authority to detain a
person under arbitrary detention. In illegal detention,
the principal offender here is a private person but a
public officer can commit the crime of illegal
detention when he is acting in a private capacity
being in the scope of his official duty or becomes an
accomplice or accessory to the crime committed by a
private person. Now the offender even if he is a
public officer does not include as his function the
power to arrest or detain a person unless he
conspires with the public officer in committing the
crime of arbitrary detention.
Whether the crime of arbitrary detention or illegal
detention, it is necessary that there must be an
actual restraint of liberty of the offended party. If
there’s no actual restraint, as the offended party may
still go to the place where he wants to go. The crime
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of arbitrary detention or illegal detention has not without legal grounds.

been committed. It is either grave or light threat.
Now what about if the victim is under guard in his
Article 125. Delay in the delivery of detained
moment, such that there is still restraint of liberty.
persons to the proper judicial authorities. - The
Can arbitrary detention be committed? Yes, if the
penalties provided in the next preceding article shall
restraint is present then arbitrary detention is
be imposed upon the public officer or employee who
committed.
shall detain any person for some legal ground and
ARBITRARY ILLEGAL DETENTION shall fail to deliver such person to the proper judicial
DETENTION authorities within the period of; twelve (12) hours,
The principal The offender is a private for crimes or offenses punishable by light penalties,
offender must be a person or a public officer or their equivalent; eighteen (18) hours, for crimes
public officer. whose function does not or offenses punishable by correctional penalties, or
include the power to arrest their equivalent and thirty-six (36) hours, for crimes,
and detain a person. or offenses punishable by afflictive or capital
The public officer The private person or even if penalties, or their equivalent. In every case, the
has the duty to he is a public officer does not person detained shall be informed of the cause of his
arrest and detain a have the power to arrest and detention and shall be allowed upon his request, to
person. detain a person. communicate and confer at any time with his
Whether the crime is arbitrary detention or illegal attorney or counsel. (As amended by E.O. Nos. 59
detention, it is necessary that there must be an and 272, Nov. 7, 1986 and July 25, 1987,
actual restraint of liberty of the offended party. respectively).
Elements:
Now, let us try to distinguish arbitrary detention and 1) That the offender is a public officer or employee;
unlawful arrest. In so far as the offender is
concerned, I arbitrary detention the offender is a 2) That he has detained a person for some legal
public officer who carries with a duty to arrest. In ground;
unlawful arrest the offender may still detain a 3) That he fails to deliver such person to the proper
person. The distinction as far as criminal intent is judicial authorities within:
concerned. In arbitrary detention, the main reason
for detaining the offended party is to deny him of his a) 12 hours, for crimes or offenses
liberty while in an unlawful arrest, the purpose is to punishable by light penalties, or their
accuse the offended party of the crime he did not equivalent; or
commit to deliver the person in the proper authority b) 18 hours, for crimes or offenses
and to file the necessary charges in the way trying punishable by correctional penalties, or
to incriminate her. When a person is unlawfully their equivalent; or
arrested the subsequent detention is also unlawful.
When the arrest is unlawful anything, any evidence c) 36 hours, for crimes or offenses
or things consficated becomes in admissible in punishable by afflictive or capital
evidence, that is the doctrine of poisonous tree take penalties, or their equivalent.
note of that. Remember that Art 125 is a felony by omission.
Under this article, the detention of the offended party
ARBITRARY UNLAWFUL ARREST
is with legal grounds unlike in Art 124. In art 125 the
DETENTION
detention is with legal ground but only there is delay
The offender is a The offender may be any
in the delivery of the detained person to the proper
public officer who person.
judicial authority. The initial detention of the person
has the authority to
is lawful unlike in 124 as discussed earlier. It covers
make arrest and
a situation wherein a person detained and has been
detain.
arrested without a warrant but his warrantless arrest
The main reason The purpose is to accuse the
is lawful. It is a felony committed by omission
for detaining the offended party with a crime he
because of the failure of the offender to deliver the
offended party is to did not commit, to deliver the
detained person to the proper judicial authority
deny him of his person to the proper authority
within 12, 18 or 36 hours. Remember the figure –
liberty. and to file the necessary
12,18,36!
charges in a way trying to
incriminate him. Under this article, the detention of the offended party
Remember the rule that when is with legal ground. What about Art. 124? The
a person is unlawfully arrested, detention is without a legal ground. In this offense
his subsequent detention is under Art. 125, the initial detention of a person is
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lawful unlike in the situation contemplated in ART.
124 wherein the detention of a person is unlawful
from the very beginning. The only reason by the
offender under ART. 125 focuses situation wherein
the person detained has been arrested without a
warrant but his arrest again is lawful.
Probably, he was arrested because the policeman
who arrested him personally sees him committing the
crime or he is personally attempting to commit the
crime. Again, under Article 125 his arrest or
detention is lawful or the public officer failed to
deliver the detained person or arrested person to the
proper judicial authorities within the prescribe period
of time.
Alright now, this is a felony committed by omission
because of the failure of the offender to deliver the
detained person to the proper judicial authorities.
When the person is detained, it is charged by the
crime punishable by the light penalty. It should be
referred to the proper judicial authorities.
Now what do we mean by judicial authorities?
Judicial authority refers to the judges or justices.
What do we mean by the delivery of a detained
person? It means failure to deliver or delay in the
delivery of a detained person. Like, the policeman
arrested somebody and that arrest is legal. He
detained him under Art. 124, he is supposed to
deliver the detained person to the proper judicial
authorities within the period prescribed by law.
(actual delivery ha)
Delivery of a detained person consists in making a
charge of filing a complaint against the prisoner to
the proper judicial authorities. It simply means
putting the arrested person under the jurisdiction of
the court. It does not involve the physical delivery of
the detained person or prisoner before the judge.
This is done by the filing of the necessary complaint
or information against the person to be arrested. The
purpose of this is to report or determine whether the
offense is bailable or not.
What is required of him to avail of right to have a
preliminary investigation? He will waive. He will be
signing a waiver assisted by counsel as a waiver on
his part so that the policemen will not be liable for
violation of Art 125 including the fiscal who is
resolving it. The preliminary investigation must be
terminated within a period of 15 days from its
inception. This is a requirement under Rule 112 of
the Revised Rules on CrimPro.
BQ – Within what period should a police officer who
has arrested a person under a warrant of arrest turn
over the arrested person to a judicial authority?
There is no time limit specified. Except that the
return must be made within a reasonable time. The
period under Art 125 does not apply because the
arrest was done by virtue of a warrant of arrest.
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Have you heard an inquest proceeding? This is done
by the prosecutor or fiscal. So meaning, mag-aresto
ning tawhana sa pakibato…supposing you are a
policeman there, and you witness the commission of
the crime of murder, syempre you are going o arrest
that person whom you personally saw the
commission of the crime. Alright, the problem is that
the place is very far. Let us say, it would take 5 days
to travel by foot. Supposing, wala pay existing nga
trak or mobile car. Crime happened there, it would
take 5 days for the policeman to reach. By the time
he arrives the prosecution office…… humana ang 36
hours under art. 125. Alright, question, can the
policeman be liable? He can be charged under art.
125 but what would be his defense? An exempting
circumstance. What ground specifically? He was
prevented by an insuperable cause. That is an
insuperable cause. The fact that the farthest
barangay would make 5 days to arrive at the
prosecution office to file the complaint. While it is
true he may be charged under article 125, but he can
invoke as defense the exempting circumstance that
he was prevented by an insuperable cause.
When the person is detained for a commission of the
crime, his arrest having been effected without a
warrant and his care is within the jurisdiction of the
RTC, under the rule of criminal procedure, he may
ask for a preliminary investigation. But he must sign
a waiver of the provisions of article 125 as amended.
Art. 125 always comes in especially, if there is an
inquest proceeding. What will happen? The
policeman will bring the accused to the prosecutor’s
office. It is the prosecutor who will determine to that
particular crime did the accused commit and after
that he will file a case in court. Now, within what
period should a police officer arrest a person under a
warrant? By the way, Article 125 deals on the
situation where there is no warrant and yet the
arrest is lawful, take note ha. No warrant. Under art.
125, the policeman is obliged to deliver him in the
proper judicial authorities within a specified period of
time as provided by law. What about if the arrest is
with warrant? The policeman arrested him and by
the time of his arrest, he was armed with a warrant
of arrest. I s he obliged to comply art. 125. The
answer is no. There is no obligation for him because
art. 125 comprises only when the arrest is lawful but
without a warrant. If the policeman has a warrant of
arrest at the time he arrested the peron, he is under
no obligation to follow the mandate of art. 125.
There is no time limit except the policeman there is
obliged to return a reasonable time. The period fixed
by law under article 125 does not apply if there
exists a warrant of arrest. Now when the person is
arrested without a warrant. It means there is no case
filed in court yet. So if the arresting officer will hold
the arrested person, he is actually depriving the
person his right to bail. For ex. You saw him
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committed theft. You are supposed to deliver him to
the proper judicial authorities within a period of 18
years. Now supposing, the person said sir kanus a ko
nimo dalahon sa piskal sir? The police said paghulat
diha. Hangtod niabot and 5 days, the police did not
do anything. Did the policeman commit crime? Yes
even if the arrest is lawful, even if the detention is
lawful but you are only given a period of time
otherwise you should become liable. There are
instances that even if the case is undergoing a
preliminary investigation or inquest proceeding. Do
you have the right to bail? You know if you are
reading your books, if the case is not filed in court
meaning it still in the prosecution office, it means it
discusses that you have no right to file or post a bail
because the case has not yet been filed in court. But
right now, under the amended rules of crim pro,
even if the case has not yet reach the court, meaning
the case is still in the prosecution office, undergoing
preliminary investigation, you can file now or post a
bail. So that is the significant amendment. Take note
ha.
Under the RPC, when the person is arrested for a
crime, he has the right to demand for a preliminary
investigation. So let us say you are arrested for a
crime of murder and brought to a fiscal’s office for
inquest proceeding. Can you say piskal kadali lang, I
want to file my counter affidavit. I want to exercise
my right for preliminary investigation. Under the
rules, can you do that? Yes, provided you sign a
waiver of art. 125. By the time you will become
lawyers, you will be asked by the prosecutors,
panero na paman day ka diha, pwedi mi muhangyo
kay can you assist this person who undergoes
preliminary investigation, meaning while there is a
preliminary investigation you will not hold the piskal
or policeman liable for detention under rt. 125
because of your waiver.
The arrest of the suspect, one bar question was done
in baguio city on the way to Manila when the crime
was committed there was a typhoon. So the suspect
could not be brought to Manila until 3 days later. The
question is was there a violation of art. 125? That in
the exempting circumstance, he will be exempted
from criminal liability because of the insuperable
cause.
A. Of course, there was. The crime committed was
arbitrary detention in the form of delay in the
delivery of an arrested person to the proper judicial
authority. The typhoon or flood is a matter of
defense to be proved by the accused or the arresting
officer as whether or not he is liable. In this situation,
he may be exempted under Art. 12, par 7 –
insuperable cause.
Before art. 125 may be applied. It is necessary that
initially the detention of the arrested person must be
lawful because the arrest is based on legal ground. If
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the arrest is made without a warrant, this constitutes
an unlawful arrest. Art. 269 not art. 125 will apply. If
the arrest is not based on legal ground, the arrest is
still and simple arbitrary detention. Art. 125
contemplates a situation where the arrest is made
without a warrant base on legal ground. By the way,
is the arrest of a person who committed a crime
limited only to a policeman? No, even if he is not a
policeman, he was only a private individual and he
personally witnesses the commission of the crime.
Can he make arrest? Yes it is called the citizen’s
arrest.
What if the law violated is a special law? What is the
allowable period that the said person be detained in
by the policemen? In case the law violated is a
special law, check the penalty imposable by the
special law and determine if it is grave, less grave or
light felony. That is the basis for determining the
period of time during which an arresting officer that
legally called on the person arrested with legal
ground and without a warrant of arrest.
What should be done by the arresting officer? Having
the person arrested charge in court within the proper
period – 12,18 or 36.
Example:
A police officer arrested a person without a warrant
of arrest with legal ground in a far flung place for a
crime of attempted homicide. Let us suppose the
crime happened in Paradise Imba (bayntsingko
centavos na lang kulang sa pamasahe para
makaadto nakag langit ) In bringing the person
arrested in the municipality, you have to cross 7 hills
and 7 seas. Murag si Ali Baba noh? Under the law,
attempted homicide is punishable with prision
correccional. Since the penalty is correctional the
arresting officer should file the case within 18 hours
from the time he arrested the person.
What if the arresting officer fails to file a case within
the time provided by law? Was there a violation of
Art 125? Yes, there is violation of Art 125 and the
arresting officer may be criminally liable.
If you are the counsel for the arresting officer, what
would be your defense? INSUPERABLE CAUSE under
Art 12, par 7 of the RPC.
By the way, before I will leave Art. 125, I want you
to take hold of a Copy of RA 9372. Did you discuss
this? 9372 or human security act of 2007. What is
that law? The law on anti terrorism. By the way
under that law what is terrorism. Terrorism under
sec. 3 of that law defines any person who commits
an act punishable under any ff. the provisions of the
rpc. In fact art. 122 is even included. What particular
act must be due to constitute terrorism?
1. sowing and creating a condition of widespread and
extraordinary fear and panic among the populace in
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order to coerce the government to give in to an
unlawful demand shall be guilty of the rime of
terrorism and shall suffer the penalty of 40 years of
imprisonment without the benefit of parole as
provided under the indeterminate sentence law. Now
why I am dealing on that? It is because under sec.
18 of that law, the period of detention without
judicial warrant of arrest.
SEC. 18. Period of Detention Without Judicial
Warrant of Arrest. - The provisions of Article 125 of the
Revised Penal Code to the contrary notwithstanding, any
police or law enforcement personnel, who, having been
duly authorized in writing by the Anti-Terrorism Council
has taken custody of a person charged with or suspected
of the crime of terrorism or the crime of conspiracy to
commit terrorism shall, without incurring any criminal
liability for delay in the delivery of detained persons to the
proper judicial authorities, deliver said charged or
suspected person to the proper judicial authority within a
period of three days counted from the moment the said
charged or suspected person has been apprehended or
arrested, detained, and taken into custody by the said
police, or law enforcement personnel: Provided, That the
arrest of those suspected of the crime of terrorism or
conspiracy to commit terrorism must result from the
surveillance under Section 7 and examination of bank
deposits under Section 27 of this Act.
The police or law enforcement personnel concerned shall,
before detaining the person suspected of the crime of
terrorism, present him or her before any judge at the
latter's residence or office nearest the place where the
arrest took place at any time of the day or night. It shall
be the duty of the judge, among other things, to ascertain
the identity of the police or law enforcement personnel
and the person or persons they have arrested and
presented before him or her, to inquire of them the
reasons why they have arrested the person and determine
by questioning and personal observation whether or not
the suspect has been subjected to any physical, moral or
psychological torture by whom and why. The judge shall
then submit a written report of what he/she had observed
when the subject was brought before him to the proper
court that has jurisdiction over the case of the person thus
arrested. The judge shall forthwith submit his/her report
within three calendar days from the time the suspect was
brought to his/her residence or office.
Immediately after taking custody of a person charged with
or suspected of the crime of terrorism or conspiracy to
commit terrorism, the police or law enforcement personnel
shall notify in writing the judge of the court nearest the
place of apprehension or arrest: Provided ,That where the
arrest is made during Saturdays, Sundays, holidays or
after office hours, the written notice shall be served at the
residence of the judge nearest the place where the
accused was arrested.
The penalty of ten (10) years and one day to twelve (12)
years of imprisonment shall be imposed upon the police or
law enforcement personnel who fails to notify and judge
as Provided in the preceding paragraph.
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The provision of Art 125 of the RPC, any police or
law enforcement personnel who having been duly
authorized by the anti – terrorism council as taking
custody of person charged with or the suspected
crime of terrorism for the crime of conspiracy to
commit terrorism shall without incurring the criminal
liability for delay in the delivery of the detained
persons to the proper judicial authorities. Deliver said
charge of suspected person, the proper judicial
authorities with the period of 3 days counted from
the moment the said charge or suspected person has
been apprehended or arrested, detained custody to
the police or law enforcement personnel. Under that
law, you are charged of terrorism.
Now you know that law, once the policeman have
arrested the person suspected as terrorist, there is
requirement on his part to deliver (actual) of that
person suspected of terrorism to the judge. There
must be physical delivery. You know sec. 3 of that
law, there are so many acts that are being defined
specific special laws that are covered under the
terrorism law. Example, under the RA 6969, the toxic
substance….act,that is included in the anti terrorism
act. Somehow ga overlap naba. Also, ra 6235 the
anti hijacking law, that is included in the definition of
terrorism. But you know, I did not, well rebellion and
insurrection also are already included as part of this
law on terrorism. That’s why the military called the
NPA’s as CT or communist terrorist, including the
CPP. Under this Sec. 18, there is corresponding
penalty for the police who fails to notify the judge as
providing in the preceding paragraph, because there
is a requirement under this law. If the police fails to
do that, he shall suffer the penalty of 10 years and 1
day to 12 years of imprisonment. Now, under sec. 20
of that law penalty for failure to deliver suspect to
the proper authority, the penalty of 10 years and 1
day to 12 years of imprisonment shall be imposed
upon ay police who was apprehended, arrested or
detained of a person charged with or suspect of a
crime of terrorism or conspiracy to commit terrorism
and fails to deliver such charged or suspected person
to the proper judicial authority within the period of 3
days.
What is the period of detention in the event of an
actual or imminent terrorist attack?
SEC. 19. Period of Detention in the Event of an
Actual or Imminent Terrorist Attack. - In the event of
an actual or imminent terrorist attack, suspects may not
be detained for more than three days without the written
approval of a municipal, city, provincial or regional official
of a Human Rights Commission or judge of the municipal,
regional trial court, the Sandiganbayan or a justice of the
Court of Appeals nearest the place of the arrest. If the
arrest is made during Saturdays, Sundays, holidays or
after office hours, the arresting police or law enforcement
personnel shall bring the person thus arrested to the
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residence of any of the officials mentioned above that is
nearest the place where the accused was arrested. The
approval in writing of any of the said officials shall be
secured by the police or law enforcement personnel
concerned within five days after the date of the detention
of the persons concerned: Provided, however, That within
three days after the detention the suspects, whose
connection with the terror attack or threat is not
established, shall be released immediately.
SEC. 20. Penalty for Failure to Deliver Suspect to
the Proper Judicial Authority within Three Days . -
The penalty of ten (10) years and one day to twelve (12)
years of imprisonment shall be imposed upon any police or
law enforcement personnel who has apprehended or
arrested, detained and taken custody of a person charged
with or suspected of the crime of terrorism or conspiracy
to commit terrorism and fails to deliver such charged or
suspected person to the proper judicial authority within
the period of three days.
What are the liabilities of public officers under the
Human Security Act? Failure to turn over the
detainee within 3 days to judicial authorities,
Infidelity in the custody of detainees, and Furnishing
false evidence, forged documents or spurious
evidence.
Article 126. Delaying release. - The penalties
provided for in Article 124 shall be imposed upon any
public officer or employee who delays for the period
of time specified therein the performance of any
judicial or executive order for the release of a
prisoner or detention prisoner, or unduly delays the
service of the notice of such order to said prisoner or
the proceedings upon any petition for the liberation
of such person.
What are the acts that are being punished under Art
126? They are:
1) By delaying the performance of a judicial or
executive order for the release of a prisoner;
2) By unduly delaying the service of the notice of
such order to said prisoner;
3) By unduly delaying the proceedings upon any
petition for the liberation of such person.
Ex. The judge ordered the dismissal of the criminal
case and ordered the release of the prisoner but the
warden refused the order to release the accused. Is
he criminally liable for detaining release. The public
officers most likely to commit this offense are the
wardens, jailors and peace officers formally charge of
prisoner as detained persons. When I acquit a
person, I see to it that there is a sentence in the
dispositive portion which states that the jail wardens
is hereby ordered to release the accused unless he is
detained for some other lawful causes.
Article 127. Expulsion. - The penalty of prision
correccional shall be imposed upon any public officer or
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employee who, not being thereunto authorized by law,
shall expel any person from the Philippine Islands or shall
compel such person to change his residence.
Elements:
1) That the offender is a public officer or employee;
2) That he expels any person from the Philippines,
or compels a person to change his residence;
3) That the offender is not authorized to do so by
law.
Now these crimes should be correlated with the
Section 6, Art 3 of the 1987 Constitution. What is
violated here? Your liberty of abode. Now only the
president of the Philippines can expel a person under
the power of deportation through the Commission of
the Immigration. This is specifically applied to
overstaying aliens.
The power of the president to deport aliens is an act
of the state where the courts had no power to
interfere with or to control the action of the
president.
Why? The discretionary power to deport undesirable
aliens whose continued presence of the country is a
menace to the peace and safety of the community
which is considered as an act of the state cannot be
subject by review of the SC.
2 examples of valid expulsion.
1. the power of immigration
2. the ejectment case
Another, when the penalty impose is destierro, or
your not allowed to enter a specific place. So that’s
one of the instances to banish to some other place.
ESSENCE OF THE CRIME:
You know the essence of the crime is coercion. Now
the specific crime is what we call expulsion because
when committed by public officer.
IF COMMITTED BY A PRIVATE PERSON:
Now, if this is committed by the private person, the
crime is not expulsion, the crime committed is simply
grave coercion. The question is a Filipino citizen was
sent outside the country, what crime is committed
which you deported a Filipino to other country? If
you are deported to another country without your
consent, expulsion will not apply, grave coercion may
be.
Remember the case of Villavicencio v. Lukban.
Most criminal law books cited it.
Villavicencio vs Lukban
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Facts:
Justo Lukban as Manila City's Mayor together with Anton
Hohmann, the city's Chief of Police, took custody of about
170 women at the night of October 25 beyond the latters
consent and knowledge and thereafter were shipped to
Mindanao specifically in Davao where they were signed as
laborers. Said women are inmates of the houses of
prostitution situated in Gardenia Street, in the district of
Sampaloc.
Held:
The court concluded the case by granting the parties
aggrieved the sum of 400 pesos each, plus 100 pesos for
nominal damage due to contempt of court. Reasoning further
that if the chief executive of any municipality in the Philippines
could forcibly and illegally take a private citizen and place him
beyond the boundaries of the municipality, and then, when
called upon to defend his official action, could calmly fold his
hands and claim that the person was under no restraint and
that he, the official, had no jurisdiction over this other
municipality.
We believe the true principle should be that, if the respondent
is within the jurisdiction of the court and has it in his power to
obey the order of the court and thus to undo the wrong that
he has inflicted, he should be compelled to do so. Even if the
party to whom the writ is addressed has illegally parted with
the custody of a person before the application for the writ is
no reason why the writ should not issue. If the mayor and the
chief of police, acting under no authority of law, could deport
these women from the city of Manila to Davao, the same
officials must necessarily have the same means to return
them from Davao to Manila. The respondents, within the
reach of process, may not be permitted to restrain a fellow
citizen of her liberty by forcing her to change her domicile and
to avow the act with impunity in the courts, while the person
who has lost her birthright of liberty has no effective recourse.
The great writ of liberty may not thus be easily evaded.
Remember the rule that only the President of the
Philippines can expel a person by virtue of his power
of deportation through the Commission of
Immigration. This applies to overstaying aliens. If
you are a Filipino citizen and the President forced you
to go to Iraq! You go to Iraq! There is an executive
order that you go to Iraq. Can the President do that?
Of course not.
What is covered with the power of deportation is only
with the overstaying aliens or undesirable aliens.
The power of the President to deport aliens is an act
of the State where the Supreme Court has no power
to interfere with or to control the action of the
President. The discretionary power to deport
undesirable aliens whose continued presence in the
country is a menace to the peace and safety of the
community is an act of the State.
But what about the courts? Do we have the power?
YES. Of course.
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In ejectment cases, forcible entry cases, unlawful
detainer cases and also in the imposition of the
penalty of destierro. So we can restrict your right to
come or leave a particular place.
SECTION TWO. — VIOLATION OF DOMICILE
Article 128. Violation of domicile. - The penalty of prision
correccional in its minimum period shall be imposed upon
any public officer or employee who, not being authorized
by judicial order, shall enter any dwelling against the will
of the owner thereof, search papers or other effects found
therein without the previous consent of such owner, or
having surreptitiously entered said dwelling, and being
required to leave the premises, shall refuse to do so.
If the offense be committed in the night-time, or if any
papers or effects not constituting evidence of a crime be
not returned immediately after the search made by the
offender, the penalty shall be prision correccional in its
medium and maximum periods.
Elements:
1) That the offender is a public officer or employee.
2) That he is not authorized by judicial order to
enter the dwelling and/or to make a search
therein for papers or other effects.
Circumstances qualifying the offense
1. If it is committed at night time; or
2. If any papers or effects not constituting evidence
of a crime are not returned immediately after the
search made by offender.
In order to commit this crime, the entry must be
against the will of the owner. The one who could be
liable for violation of domicile, the entry must be
against the will of the owner.
Now, if the entry is only without the consent of the
owner against the will is different from w/o the
consent; if the entry is only without the consent of
the owner, take note, the crime of violation of
domicile is not committed.
EXPRESS
The prohibition not to enter may be express or
implied, prohibition may be express when the signs
do not enter or strangers keep out are posted in
front of the house or dwelling of the offended party,
that is what we call express prohibition.
IMPLIED
There could also be implied prohibition, if the door is
lock or even it is open there are barriers to indicate
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manifest intention of the owner to bar the strangers
from entering so we can say that is implied.
RATIONALE OF THE LAW
Now, what is the primary objective of the law why
we have this, the primary object of the law is to
preserve the privacy of the abode of the offended
party, if the privacy is already lost, as when the
offender has been allowed by owner to enter the
dwelling together with other persons any subsequent
change attitude will not restore the privacy which
already lost.
You invited them to your dwelling/ to your premises,
and so happen, during your conversation, some
things happened and you wanted them to leave.
Q: are they liable those who entered your premises;
are they liable for violation of domicile?
A: No. You already lost your privacy. You already
caused them to be entered, caused their entry in
your credit. We can say therefore that in such a
circumstance, your privacy of abode is already
waived. So therefore, violation of domicile can no
longer be committed, so offenders cannot be held
liable.
Rule: In order to commit this crime, the entry must
be against the will of the owner. If the entry is only
without the consent of the owner, the crime of
violation of domicile is not committed.
Take note article 128 is limited to public officers. The
public officers who may be liable for violation of
domicile are those who are possessed of the
authority to execute search warrants and warrants of
arrests, like policemen, NBI, law enforcement
person/personnel from law enforcement agencies.
Take note: No one is allowed to enter your
premises, or conduct any search inside your
premises, that is the general rule. No one is allowed
entry unless you have given your consent—express
or implied.
There are instances when the policemen may enter
your premises w/o violating article 128, what are
those instances?
Under Rule 113 of the Revised Rules of Court, under
the rule on criminal procedure when a person to be
arrested enters a premise and closes it thereafter,
the policeman, after giving notice of an arrest, can
break into the premise.
Q: Can he be liable of violation of domicile and
search, the answer is No. He cannot be held liable
because his entry therefore is allowed under Rule
113.
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Example: A policeman is chasing a person whom he
has seen committing a crime, by chasing the person,
that person enters a house (a house of a friend), he
was already wounded and was hit by the policeman,
the friend let him in and thereafter locked himself
there. So the chasing policeman was not able to
enter. The owner of the house refused to let him
enter.
Q: So question, can policeman open the door?
A: Yes, the policeman can do that without violating
Article 128, why? Because it is allowed under Rule
113.
There are three recognized instances when search
without a warrant is considered valid and therefore
the seizure of any evidence done is also valid.
Outside of this, search would be invalid and the
objects would not be admissible in evidence. What is
that? That is a fruit of a poisonous tree. We
commonly call the Exclusionary Rule in Evidence.
Nobody is allowed to enter your residence, or nobody
is allowed to conduct any search inside your
premises without a valid search warrant. Search
warrant is a document issued by a judge, brought by
the policemen in raiding/conducting a raid in
particular house. Search warrant is a very powerful
document because that will allow the policemen to
make entry even if it is against your will and yet they
are not liable for violation of domicile or because
their entry, intrusion to your abode, to your privacy is
allowed under our Constitution and under our rules.
There are three recognized instances when search
without a warrant is considered valid, as a general
rule, if premises/house cannot be searched without a
search warrant, except:
(1) Search made incidental to a valid
arrest;
(2) Where the search was made on a
moving vehicle or vessel such that the
exigency of the situation prevents the
searching officer from securing a search
warrant;
(3) When the article seized is within plain
view of the officer making the seizure without
making a search therefore.
Rule: Valid arrest thereafter search and not, search
thereafter arrest.
 Search made incidental to a valid arrest;
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No one can search you. Policemen cannot make a Question: can the policemen seize the gun
search of your person, that is the general rule.. when the search warrant issued to them is only for
However, there are instances; there are exceptions the seizure of drugs. Can they seize it?
to the rule. For example, search is made incidental to
Answer: Yes, because under the plain view
a valid.
doctrine. That is allowed.
For example a person is arrested because he killed
Alright, under the article 128, by the way, there are
another one and the police man personally saw it
three ways of committing violation under
and the policeman arrest that man. Of course, that is
article 128:
allowed, he can arrest that man; and during the
conduct of the arrest, in effecting the arrest, can the (1) By simply entering the dwelling of another if
policeman search him, the answer is yes, he can such entering is done against the will of the
search. occupant. In the plain view doctrine, public
officer should be legally entitled to be in the
When you commit a crime, then the policeman who
place where the effects were found. If he
arrested you, has the right to search you? Yes, He
entered the place illegally and he saw the
has the right to search you. For example, if you are
effects, doctrine inapplicable
driving a motorcycle and you did not wear your
helmet or even you wore your helmet, but then you (2) Public officer who enters with consent
violated some traffic rules. searches for paper and effects without the
consent of the owner. Even if he is welcome
Question: Do you commit a crime just because
in the dwelling, it does not mean he has
there is violation of some traffic rules?
permission to search.
Answer: Yes, violation of municipal/city
(3) Refusing to leave premises after surreptitious
ordinance because of a traffic violation is already a
entry and being told to leave the same. The
crime that would entitle/ that would allow the
act punished is not the entry but the refusal
policeman make a search of your person.
to leave. If the offender upon being directed
 Where the search was made on a moving to eave, followed and left, there is no crime
vehicle or vessel such that the exigency of of violation of domicile. Entry must be done
the situation prevents the searching surreptitiously; without this, crime may be
officer from securing a search warrant; unjust vexation. But if entering was done
against the will of the occupant of the house,
In a search of a moving vehicle, that is allowed, the
meaning there was express or implied
moment, these policemen would learn or received
prohibition from entering the same, even if
information that this incoming vehicle is carrying with
the occupant does not direct him to leave,
it with some prohibited articles. As you would learn it
the crime of is already committed because it
later, in the case of Malstead v. CA, that’s what
would fall in number 1.
happened. When a Caucasian Malstead was arrested
somewhere there in Baguio City because the Example of way # 1 of committing violation
policemen received information that said Caucasian under Article 128:
who transport marijuana from Baguio City going to
You are policeman, you passed by a house,
Manila. That’s the reason why the policemen make
when you peep through a hole, there is a
checkpoint and cut down the vehicle that was
shabu in the table, I will enter the house so
boarded with this person. Pwede, pwede kaayo. ^_^
that I will confiscate the shabu and I will
Search on a moving vehicle, when the policemen
arrest the owner.
have no more time to secure a search warrant that is
allowed. Question: Can this shabu confiscated from
the house by this policeman who does not
What is required only in checkpoints is visual search.
armed any search warrant be admissible, can
 When the article seized is within plain we used it against the occupant, just because
view of the officer making the seizure these are illegal drugs or prohibited drugs?
without making a search therefore. The answer is No. Policeman even commits a
crime under article 128. By what power, by
Another, when the articles seized is within the plain
what authority, do you have to enter the
view of the officer making the seizure w/o making a
house of the occupant without the search
search therefore. Given example, you are, under the
warrant? See, you can see the point? You
policemen are ought to have a search warrant in
know, our laws are more favourable to the
order to search a particular house accordingly there
accused; our laws, criminal laws.
are dangerous drugs there. When the policemen
entered the house, they saw for themselves a gun Example of way # 2 of committing violation
placed on the top of the table. under Article 128:
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The only thing that could allow the policemen
to gain entry of the premises or the house of
the occupant is through a search warrant,
and what is search warrant?
Search Warrant: itis an order in writing
issued in the name of the people of the
Philippines, signed by a judge and directed to
a peace officer commanding him to search for
a personal property and to bring it to court.
In order for a search warrant may be issued,
it must be based on a probable cause in
connection with one offense to be determined
by a judge after examination under oath of
the complaint and the witnesses came
introduced and particularly describing the
place to be searched and the persons and
things to desist.
Take Note: You cannot be searched, without you
being first arrested.
Assuming that, nothing, you are not entering
a mall, you are not entering public utility
transport terminal; just plainly, policeman
saw you and make a search on you. Can the
police search you? NO. What if the policeman
searched you and after searching you, he
found something illegal in your possession? Is
that a valid search? The answer is NO. It is
not a valid search. You can only be searched,
if you have been arrested. It is irreversible; it
cannot be reversed. You cannot be searched
first, then, you are arrested. What is the
purpose then of the search when you are
already arrested? The purpose there is to look
for concealed weapon, probably during the
arrest; you will resist, will danger or prejudice
the arresting officer.
The Standard operating procedure is if you have
committed the crime, the policeman will arrest you
then after search you. It is wrong when a policeman
search you thereafter arrest you, it is WRONG! All
evidence confiscated will become inadmissible on the
ground it is a fruit of the poisonous tree.
EXAMPLE:
PO2 Tan surreptitiously entered the house of Mario.
When Mario arrived he saw PO2 Tan sitting in
comfort in his kitchen, Mario directed PO2 Tan to
leave his home. PO2 Tan followed the order and left.
Q: Is PO2 Tan liable for violation of domicile?
A. No, PO2 Tan is not liable for violation of domicile
because he left the house when Mario upon being
directed to do so. In this instance, the act punishable
is not the entry but the refusal to leave upon being
required by the owner of the house.
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EXAMPLE:
It was raining heavily and a policeman took shelter in
one person’s house. The owner obliged and has his
daughter serve some coffee to the policeman. The
policeman makes a pass to the daughter and then,
the owner of the house asked him to leave.
Q: Does this fall under Art 128?
A. No. It was the owner of the house who let the
policeman in. The entering is not considered
surreptitious.
A person surreptitiously enters the dwelling of
another, what crime or crimes were possibly
committed?
The crimes committed are:
a) Qualified trespass to dwelling under Art 280.
If there was an express or implied prohibition
in entering, this is tantamount to be against
the will of the owner; and
b) Violation of Domicile in the 3 rd form if he
refuses to leave after being told.
Article 129. Search warrants maliciously obtained and
abuse in the service of those legally obtained. - In addition
to the liability attaching to the offender for the commission
of any other offense, the penalty of arresto mayor in its
maximum period to prision correccional in its minimum
period and a fine not exceeding P1,000 pesos shall be
imposed upon any public officer or employee who shall
procure a search warrant without just cause, or, having
legally procured the same, shall exceed his authority or
use unnecessary severity in executing the same.
There are two acts that are made punishable under
Article 129:
1. Procuring a search warrant without just
cause;
Elements
a. Offender is a public officer or
employee;
b. He procures a search warrant;
c. There is no just cause.
2. Exceeding his authority or by using
unnecessary severity in executing a search
warrant legally procured.
Elements
a. Offender is a public officer or
employee;
b. He has legally procured a search
warrant;
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c. He exceeds his authority or uses
unnecessary severity in executing the
same.
What is a search warrant?
A search warrant is an order in writing issued in the
name of the People of the Philippines, signed by a
judge and directed to a peace office, commanding
him to search for personal property described therein
and bring it before the court. (Sec 1, Rule 126,
Revised Rules of Criminal Procedure)
Remember that in order for a search warrant may be
issued, it must be based on probable cause in
connection with one offense to be determined by the
judge after an examination under oath of an
applicant/ complainant and the witnesses he may
produce.
What is the validity or lifetime of a search warrant?
Walang forever po. The lifetime of a search warrant
is 10 days. After 10 days, it is rendered functus
officio.
What about a warrant of arrest? It has no lifetime.
Until the accused is arrested, the warrant of arrest
continues to exist.
In the first act, you have procured a search warrant
but you do not have just cause.
What is the true test on whether or not the
search warrant obtain has just cause?
The true test is whether the affidavit filed in
support of the application for search warrant has
been done in such a manner that perjury could
be charged and affiant can be held for making
such statement. The oath required must refer to
the truth of the facts within the personal
knowledge of the applicant for search warrant or
his witnesses.
So, meaning the applicant of search warrant or
any of his witnesses that he was able to produce
has falsified or made false statement in their
respective affidavit which supports the issuance
of the search warrant. (That is under the
paragraph 1, under the first act of committing the
crime)
May a search and seizure be conducted without a
search warrant?
The rules of court provides that when a person
charged with an offense may be searched for
dangerous weapons or anything which may be used
as proof of the commission of an offense, without a
search warrant. (Sec 12, Rule 126 of the Revised
Rules on Criminal Procedure)
Second is, in the conduct of the search, the public
officer destroys furniture without legal justification,
then he is guilty of having used unnecessary severity
in executing the search warrant or when the
32
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policemen are armed with a search warrant for the
purpose of seizing unlicensed firearm of the occupant
and yet the policemen included in their seizure dvds,
flat screen tvs, clothes and etc. Sobra na pud na! If
the search is for the illegal possession of firearms,
the policemen are required or mandated to
seize/confiscate items related to it, you have no right
to bring in the clothes of the occupant, kaldero.
EXAMPLE:
SPO2 Martinez led a team of policemen that
implemented a search warrant in the house of Mary
Ann. While they were conducting the search, SPO2
Martinez destroyed the dividing wall and employed
violence upon Mary Ann and the members of the
household have giving physical injuries upon them.
Q: What crime or crimes can SPO2 Martinez be
charged with?
A. SPO2 Martinez can be charged with violation of
Art 129 and separate crimes of physical injuries.
There is no complex crime because the 2 felonies
have different penalties anyway.
In the conduct of a search the public officer destroys
furniture without legal justification, he is guilty of
having used unnecessary severity in executing the
search warrant. That comes within Art 129.
(Story about policemen bringing military tanks
to execute a warrant)
Article 130. Searching domicile without witnesses. - The
penalty of arresto mayor in its medium and maximum
periods shall be imposed upon a public officer or employee
who, in cases where a search is proper, shall search the
domicile, papers or other belongings of any person, in the
absence of the latter, any member of his family, or in their
default, without the presence of two witnesses residing in
the same locality.
The offender in this case is armed with a valid search
warrant. Who must be present here when the valid
search is conducted in the domicile?
 The house owner.
 In his absence, any member of his family of
sufficient discretion. So, you cannot have a
valid search if you have an 8 year old
girl.
 In the absence of the two, at least 2
witnesses residing in the same community.
EXAMPLE:
You have a searchwarrant for A. You went to the
house of A and you found D. So, you arrested D.
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Q: Is the arrest of D valid?
A: No.
The obvious reason behind requirement is to avoid
incriminatory machinations or planting of evidence.
This time, the offender is legally armed with a search
warrant, but in the conduct of the search, in the
absence of the owner or any member of the family or
two witnesses residing in the same locality.
The policemen do not have to wait for the owner of
the house to arrive, if any member of his family is
present, then, they can proceed in the search or in
default of the members of the family, any two
witnesses from the neighbourhood, who usually
barangay kagawad or barangay officials (pwede)
They can proceed to the search.
Is it necessary to wait for the owner? (Chief wala pa
man ang tag-iya – Of course di jud na muabot. Dili
na magpakita diha)
No. It is not necessary. Proceed with the search
even without the owner of the house being around
provided you follow the provision that in his absence,
any member of his family and in their default, at
least 2 witnesses residing in the community.
Rule 121, Section 7 of the Rules of Criminal
Procedure states that: (sa book na Reyes: Rule
126, Section 8 of the Revised Rules of Criminal
Procedure)
“No search of a house, room or any
other premises shall be made except in
the presence of the lawful occupant
thereof or any member of his family or
in the absence of the latter, two
witnesses of sufficient age and
discretion residing in the same
locality.”
Now, the papers and effect mentioned in Article 130
must be found inside the dwelling or house of the
offended party. Article 130 has no application to
search and seizure made on moving vehicles because
the application of this law is limited to dwelling and
personal properties, such as papers and effects found
therein.
Read: RA 9745, take a look about Order of Battle,
Non refoulement rule
Let us now look into RA 9745 or the Anti- Torture Act of
2009
- passed into law on Nov. 10, 2009
ANTI TORTURE ACT RA 9745
WHAT IS TORTURE?
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“When your resources are down to nothing, believe that God is up to something =)”
"Torture" refers to an act by which severe pain or
suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from
him/her or a third person information or a confession;
punishing him/her for an act he/she or a third person has
committed or is suspected of having committed; or
intimidating or coercing him/her or a third person; or for
any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of
or with the consent or acquiescence of a person in
authority or agent of a person in authority. It does not
include pain or Buffering arising only from, inherent in or
incidental to lawful sanctions. (Sec.3)
What does cruel, inhuman and degrading treatment
or punishment means?
Section 5.Other Cruel, Inhuman and Degrading
Treatment or Punishment. - Other cruel, inhuman or
degrading treatment or punishment refers to a deliberate
and aggravated treatment or punishment not enumerated
under Section 4 of this Act, inflicted by a person in
authority or agent of a person in authority against another
person in custody, which attains a level of severity
sufficient to cause suffering, gross humiliation or
debasement to the latter. The assessment of the level of
severity shall depend on all the circumstances of the case,
including the duration of the treatment or punishment, its
physical and mental effects and, in some cases, the sex,
religion, age and state of health of the victim.
Who are victims here?
(c) "Victim" refers to the person subjected to torture or
other cruel, inhuman and degrading treatment or
punishment as defined above and any individual who has
suffered harm as a result of any act(s) of torture, or other
cruel, inhuman and degrading treatment or punishment.
(Sec. 3, RA 9745)
What does order of battle means?
“Order of Battle” refers to any document or determination
made by the military, police or any law enforcement
agency of the gov’t, listing the names of persons and
organizations that it perceives to tbe enemies of the State
and that it considers as legitimate targets as combatants
that it could deal with, through the use of means allowed
by domestic and international law. (sec. 3, RA 9745)
What are the dfifferent acts of torture?
Section 4.Acts of Torture. - For purposes of this Act,
torture shall include, but not be limited to, the following:
(a) Physical torture is a form of treatment or punishment
inflicted by a person in authority or agent of a person in
authority upon another in his/her custody that causes
severe pain, exhaustion, disability or dysfunction of one or
more parts of the body, such as:
(1) Systematic beating, headbanging, punching, kicking,
striking with truncheon or rifle butt or other similar
objects, and jumping on the stomach;
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(2) Food deprivation or forcible feeding with spoiled food,
animal or human excreta and other stuff or substances not
normally eaten;
(3) Electric shock;
(4) Cigarette burning; burning by electrically heated rods,
hot oil, acid; by the rubbing of pepper or other chemical
substances on mucous membranes, or acids or spices
directly on the wound(s);
(5) The submersion of the head in water or water polluted
with excrement, urine, vomit and/or blood until the brink
of suffocation;
(6) Being tied or forced to assume fixed and stressful
bodily position;
(7) Rape and sexual abuse, including the insertion of
foreign objects into the sex organ or rectum, or electrical
torture of the genitals;
(8) Mutilation or amputation of the essential parts of the
body such as the genitalia, ear, tongue, etc.;
(9) Dental torture or the forced extraction of the teeth;
(10) Pulling out of fingernails;
(11) Harmful exposure to the elements such as sunlight
and extreme cold;
(12) The use of plastic bag and other materials placed
over the head to the point of asphyxiation;
(13) The use of psychoactive drugs to change the
perception, memory. alertness or will of a person, such as:
(i) The administration or drugs to induce confession
and/or reduce mental competency; or
(ii) The use of drugs to induce extreme pain or certain
symptoms of a disease; and
(14) Other analogous acts of physical torture; and
(b) "Mental/Psychological Torture" refers to acts
committed by a person in authority or agent of a person in
authority which are calculated to affect or confuse the
mind and/or undermine a person's dignity and morale,
such as:
(1) Blindfolding;
(2) Threatening a person(s) or his/fher relative(s) with
bodily harm, execution or other wrongful acts;
(3) Confinement in solitary cells or secret detention places;
(4) Prolonged interrogation;
(5) Preparing a prisoner for a "show trial", public display
or public humiliation of a detainee or prisoner;
(6) Causing unscheduled transfer of a person deprived of
liberty from one place to another, creating the belief that
he/she shall be summarily executed;
(7) Maltreating a member/s of a person's family;
(8) Causing the torture sessions to be witnessed by the
person's family, relatives or any third party;
(9) Denial of sleep/rest;
(10) Shame infliction such as stripping the person naked,
parading him/her in public places, shaving the victim's
head or putting marks on his/her body against his/her will;
(11) Deliberately prohibiting the victim to communicate
with any member of his/her family; and
(12) Other analogous acts of mental/psychological torture.
Section 5.Other Cruel, Inhuman and Degrading
Treatment or Punishment. - Other cruel, inhuman or
degrading treatment or punishment refers to a deliberate
and aggravated treatment or punishment not enumerated
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under Section 4 of this Act, inflicted by a person in
authority or agent of a person in authority against another
person in custody, which attains a level of severity
sufficient to cause suffering, gross humiliation or
debasement to the latter. The assessment of the level of
severity shall depend on all the circumstances of the case,
including the duration of the treatment or punishment, its
physical and mental effects and, in some cases, the sex,
religion, age and state of health of the victim.
Does it cover illegal detention?
Section 7.Prohibited Detention. - Secret detention places,
solitary confinement, incommunicado or other similar
forms of detention, where torture may be carried out with
impunity. Are hereby prohibited.
In which case, the Philippine National Police (PNP), the
Armed Forces of the Philippines (AFP) and other law
enforcement. agencies concerned shall make an updated
list of all detention centers and facilities under their
respective jurisdictions with the corresponding data on the
prisoners or detainees incarcerated or detained therein
such as, among others, names, date of arrest and
incarceration, and the crime or offense committed. This
list shall be made available to the public at all times, with
a copy of the complete list available at the respective
national headquarters of the PNP and AFP.
A copy of the complete list shall likewise be submitted by
the PNP, AFP and all other law enforcement agencies to
the Commission on Human Rights (CHR), such list to be
periodically updated, by the same agencies, within the first
five (5) days of every month at the minimum. Every
regional office of the PNP, AFP and other law enforcement
agencies shall also maintain a similar list far all detainees
and detention facilities within their respective areas, and
shall make the same available to the public at all times at
their respective regional headquarters, and submit a copy.
updated in the same manner provided above, to the
respective regional offices of the CHR.
Does the exclusionary rule apply in cases of
torture?
ANS: Yes. Sec. 8, RA 9745
Section 8.Applicability of the Exclusionary Rule;
Exception. - Any confession, admission or statement
obtained as a result of torture shall be inadmissible in
evidence in any proceedings, except if the same is used as
evidence against a person or persons accused of
committing torture.
So, take note:
GR: any information obtained through torture cannot be
used as evidence. It is not admissible as evidence in any
proceeding.
EXCPTN: it is admissible if used against the persons
committing torture.
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Who are liable as principals?
Section 13.Who are Criminally Liable. - Any person
who actually participated Or induced another in the
commission of torture or other cruel, inhuman and
degrading treatment or punishment or who
cooperated in the execution of the act of torture or
other cruel, inhuman and degrading treatment or
punishment by previous or simultaneous acts shall be
liable as principal.
Any superior military, police or law enforcement
officer or senior government official who issued an
order to any lower ranking personnel to commit
torture for whatever purpose shall be held equally liable
as principals.
The immediate commanding officer of the unit
(COMMAND RESPONSIBILITY) concerned of the
AFP or the immediate senior public official of the
PNP and other law enforcement agencies shall be
held liable as a principal to the crime of torture or other
cruel or inhuman and degrading treatment or punishment
for any act or omission, or negligence committed by
him/her that shall have led, assisted, abetted or allowed,
whether directly or indirectly, the commission thereof by
his/her subordinates. If he/she has knowledge of or,
owing to the circumstances at the time, should have
known that acts of torture or other cruel, inhuman and
degrading treatment or punishment shall be committed, is
being committed, or has been committed by his/her
subordinates or by others within his/her area of
responsibility and, despite such knowledge, did not take
preventive or corrective action either before, during or
immediately after its commission, when he/she has the
authority to prevent or investigate allegations of torture or
other cruel, inhuman and degrading treatment or
punishment but failed to prevent or investigate allegations
of such act, whether deliberately or due to negligence
shall also be liable as principals.
Requisites for the immediate commanding officer
or immediate public officer to be held principal:
1. for any act or omission, or negligence committed
by him/her that shall have led, assisted, abetted
or allowed, whether directly or indirectly, the
commission thereof by his/her subordinates.
2. If he/she has knowledge of or, owing to the
circumstances at the time, should have known
that acts of torture or other cruel, inhuman and
degrading treatment or punishment shall be
committed, is being committed, or has been
committed by his/her subordinates or by others
within his/her area of responsibility and,
3. despite such knowledge, did not take preventive
or corrective action either before, during or
immediately after its commission,
4. when he/she has the authority to prevent or
investigate allegations of torture or other cruel,
inhuman and degrading treatment or punishment
but failed to prevent or investigate allegations of
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such act, whether deliberately or due to
negligence
So here, even if you did not directly take part in the
execution of torture and other cruel and humane acts, you
can still be liable as principal because of COMMAND and
RESPONSIBILITY RULE. Take note of the requisites for
you to be held as principal.
Do you remember the ARIAS DOCTRINE? When we
reach to crimes committed by public officers, we have the
concept “conspiracy by silence”. Conspiracy by silence
applies to public officers who are corrupt. He knows that
his subordinates are corrupt and does nothing but because
of their silence that corruption never cease because his
silence makes him a conspirator to the corrupt acts.
When we reach public officers, we will make a comparison
between the Arias Doctrine and Doctrine of Conspiracy.
2011 Bar Q: X, a police training officer, tortures W, a
suspected drug pusher. Y and Z, the police trainees,
watched X as he extracts information from W by torture.
What is the criminal laibility of X?
ANS: Principal under the Anti- Torture Law, since all the
elements to be held liable as principal under are present.
Who are liable as acomplice?
Sec. 27, RA 9745 IRR provides:
Accomplice is any person who, not being included in Sec.
26 (who are liable as pincipals) hereof, cooperate in the
execution of torture or other cruel, inhuman or degrading
treatment or punishment by previous or simultaneous
acts.
Who are liable as accessory? Cf: Sec. 28, IRR
Any public officer or employee shall be liable as an
accessory if he/she has knowledge that torture or other
cruel, inhuman and degrading treatment or punishment is
being committed and without having participated therein,
either as principal or accomplice, takes part subsequent to
its commission in any of the following manner:
(a) By themselves profiting from or assisting the offender
to profit from the effects of the act of torture or other
cruel, inhuman and degrading treatment or punishment;
(b) By concealing the act of torture or other cruel,
inhuman and degrading treatment or punishment and/or
destroying the effects or instruments thereof in order to
prevent its discovery; or(c) By harboring, concealing or
assisting m the escape of the principal/s in the act of
torture or other cruel, inhuman and degrading treatment
or punishment: Provided, That the accessory acts are
done with the abuse of the official's public functions.
(sec13,RA9745)
Under the IRR, (sec28) “ if in the event a child is involved
in the act of inflicting torture, the handling and treatment
of said child shall be in accordance with RA 7610, RA 9344
(Juvenile Justice and Welfare Act) and other related laws.
In case of doubt, the interpretation of any of thr provisions
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of these rules and regulations shall be construed liberally
in favor of the child involved in the torture acts, i.e.,
consistent with the best interest of the child, the declared
state policy, the rights of the child and principles of
restorative justice.
Is torture a separate crime? Yes. Torture cannot
absorb or be absorbed.
Section 15.Torture as a Separate and Independent
Crime. - Torture as a crime shall not absorb or shall not be
absorbed by any other crime or felony committed as a
consequence, or as a means in the conduct or commission
thereof. In which case, torture shall be treated as a
separate and independent criminal act whose penalties
shall be imposable without prejudice to any other criminal
liability provided for by domestic and international laws.
Q: If the crime of serious illegal detention and kidnaaping
was resorted to after bringing the victim into a safe house
and then because of torture he suffered physical injuries.
How many crimes shall be filed against the accused?
ANS. He will be liable fo the crime of torture and aside
from that he can be liable for serious ilegal detention. So,
separate crimes, no absorption.
Is the freedom from torture and other cruel and
inhumane acts an absolute right?
ANS: Yes.
Section 6.Freedom from Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment, An
Absolute Right. - Torture and other cruel, inhuman and
degrading treatment or punishment as criminal acts shall
apply to all circumstances.
A state of war or a threat of war, internal political
instability, or any other public emergency, or a document
or any determination comprising an "order of battle" shall
not and can never be invoked as a justification for torture
and other cruel, inhuman and degrading treatment or
punishment.
Q: Can the State justify the use of torture because of
terrorism or other reasons?
ANS: No. Torture and other cruel, inhuman and degrading
treatment or punishment as criminal acts shall apply to all
circumstances. A state of war or a threat of war, internal
political instability, or any other public emergency, or a
document or any determination comprising an "order of
battle" shall not and can never be invoked as a
justification for torture and other cruel, inhuman and
degrading treatment or punishment.
Section 22.Applicability of the Revised Penal Code. - The
provisions of the Revised Penal Code insofar as they are
applicable shall be suppletory to this Act. Moreover, if the
commission of any crime punishable under Title Eight
(Crimes Against Persons) and Title Nine (Crimes Against
Personal Liberty and Security) of the Revised Penal Code is
attended by any of the acts constituting torture and other
cruel, inhuman and degrading treatment or punishment as
defined herein, the penalty to be imposed shall be in its
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maximum period.
It is a qualifying circumstance then?
Can a person guilty of committing torture, benefit
from general amnesty? NO!
Section 16.Exclusion from the Coverage of Special
Amnesty Law. - In order not to depreciate the crime of
torture, persons who have committed any act of torture
shall not benefit from any special amnesty law or similar
measures that will have the effect of exempting them from
any criminal proceedings and sanctions.
Can a person be extradited even if it is in danger of
torture here in the Philippines?
For example you are a Chinese citizen, Chinese
government is requesting for your extradition, you know
very well that when you arrive there, your life would be in
danger because you are a subversive individual there.
Section 17.Applicability of Refouler. - No person shall be
expelled, returned or extradited to another State where
there are substantial grounds to believe that such person
shall be in danger of being subjected to torture. For the
purposes of determining whether such grounds exist, the
Secretary of the Department of Foreign Affairs (DFA) and
the Secretary of the DOJ, in coordination with the
Chairperson of the CHR, shall take into account all relevant
considerations including, where applicable and not limited
to, the existence in the requesting State of a consistent
pattern of gross, flagrant or mass violations of human
rights.
This is what you call the non- refoulment rule
Is the victim entitled to compensation?
Section 18.Compensation to Victims of Torture. - Any
person who has suffered torture shall have the right to
claim for compensation as provided for under Republic Act
No. 7309: Provided, That in no case shall compensation be
any lower than Ten thousand pesos (P10,000.00). Victims
of torture shall also have the right to claim for
compensation from such other financial relief programs
that may be made available to him/her under existing law
and rules and regulations.
What is the prescriptive period of the offense?
- The offense of torture has no prescriptive period. It does
not prescribe. The Statute of Limitations shall not apply.
What is the penalty?
Section 14.Penalties. - (a) The penalty of reclusion
perpetua shall be imposed upon the perpetrators of the
following acts:
(1) Torture resulting in the death of any person;
(2) Torture resulting in mutilation;
(3) Torture with rape;
(4) Torture with other forms of sexual abuse and, in
consequence of torture, the victim shall have become
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insane, imbecile, impotent, blind or maimed for life; and faithful.

(5) Torture committed against children.
(b) The penalty of reclusion temporal shall be imposed on
those who commit any act of mental/psychological torture
Elements
resulting in insanity, complete or partial amnesia, fear of
becoming insane or suicidal tendencies of the victim due 1. Acts complained of were performed in a place
to guilt, worthlessness or shame. devoted to religious worship, or during the
(c) The penalty of prision correccional shall be imposed on celebration of any religious ceremony;
those who commit any act of torture resulting in
2. The acts must be notoriously offensive to the
psychological, mental and emotional harm other than
feelings of the faithful.
those described 1n paragraph (b) of this section. '
(d) The penalty of prision mayor in its medium and *notoriously offensive means there must be a
maximum periods shall be imposed if, in consequence of deliberate intent to hurt the feelings of the faithful
torture, the victim shall have lost the power of speech or
Take note, the private individual can be liable here
the power to hear or to smell; or shall have lost an eye, a
because the law says “anyone” unlike under article 132.
hand, a foot, an arm or a leg; or shall have lost the use of
Take note also that the acts must be notoriously offensive
any such member; Or shall have become permanently
to the feelings of the faithful and performing to a place
incapacitated for labor.
devoted to religious worship and during the celebration of
(e) The penalty of prision mayor in its minimum and
the religious ceremony.
medium periods shall be imposed if, in consequence of
torture, the victim shall have become deformed or shall Now, in the case of People v. Baes, 68 Phil 203, cited
have lost any part of his/her body other than those in your book:
aforecited, or shall have lost the use thereof, or shall have
An act be notoriously offensive to religious feelings must
been ill or incapacitated for labor for a period of more than
be directed against a religious practice or dogma; an act
ninety (90) days.
intended to ridicule or mock another religion, mocks or
(f) The penalty of prision correccional in its maximum
scoffs at anything devoted to religious ceremonies; raze or
period to prision mayor in its minimum period shall be
destroy any object of veneration by the faithful that
imposed if, in consequence of torture, the victim shall
constitutes notoriously offensive.
have been ill or incapacitated for labor for mare than thirty
(30) days but not more than ninety (90) days. In the threatening whether or not is offensive to the
(g) The penalty of prision correccional in its minimum and feelings of the faithful the same must be view or judge
medium period shall be imposed if, in consequence of from the standpoint of the offended religion and not from
torture, the victim shall have been ill or incapacitated for the point of view of the offender.
labor for thirty (30) days or less.
(h) The penalty of arresto mayor shall be imposed for acts
constituting cruel, inhuman or degrading treatment or SECTION THREE—PROHIBITION,
punishment as defined in Section 5 of this Act. INTERRUPTION, AND DISSOLUTION OF
(i) The penalty of prision correccional shall be imposed PEACEFUL MEETINGS
upon those who establish, operate and maintain secret
detention places and/or effect or cause to effect solitary
confinement, incommunicado or other similar forms of Article 131. Prohibition, interruption and dissolution
prohibited detention as provided in Section 7 of this Act of peaceful meetings. - The penalty of prision
where torture may be carried out with impunity. correccional in its minimum period shall be imposed
(j) The penalty of arresto mayor shall be imposed upon upon any public officer or employee who, without
the responsible officers or personnel of the AFP, the PNP legal ground, shall prohibit or interrupt the holding of
and other law enforcement agencies for failure to perform a peaceful meeting, or shall dissolve the same.
his/her duty to maintain, submit or make available to the
public an updated list of detention centers and facilities The same penalty shall be imposed upon a public
with the corresponding data on the prisoners or detainees
officer or employee who shall hinder any person from
incarcerated or detained therein, pursuant to Section 7 of
this Act. joining any lawful association or from attending any
of its meetings.

There is no conviction yet under this law according to the The same penalty shall be imposed upon any public
study of Amnesty International. officer or employee who shall prohibit or hinder any
person from addressing, either alone or together with
others, any petition to the authorities for the
P.S (not discussed by Judge, she went straight to Art. 134) correction of abuses or redress of grievances.
Article 133. Offending the religious feelings—The penalty
of arresto mayor in its maximum period to prision There are three acts made punishable under Article
correccional in its minimum period shall be imposed upon 131, they are:
anyone who, in a place devoted to religious worship or
during the celebration of any religious ceremony shall
perform acts notoriously offensive to the feelings of the
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a. By prohibiting or by interrupting, without
legal ground, the holding of a peaceful
meeting, or by dissolving the same;
b. By hindering any person from joining any
lawful association, or attending any of
its meetings;
c. By prohibiting or hindering any person
from addressing, either alone or together
with others, any petition to the authorities
for the correction of abuses or redress of
grievances.
This right provided in the 131 is not absolute, it may
be regulated in order that it may not cause injury to
its equal enjoyment by others having equal rights,
that covered regulate is justified under the police
power of the State. Now, as a matter of rule under
Article 131, private individual cannot commit this
crime, only public officer can commit the crime of
prohibition.
The second paragraph of the Article 131 deals on
freedom to join or form association, while the third
paragraph of Article 131 deals on the freedom of
assembly. Section 4 of Article 3 of 1987
Constitution states:
“No law shall be passed
abridging the freedom of speech,
of expression, or the press, or the
right of the people peaceably to
assemble and petition the
government for redress of
grievances.”
Under article 131, policemen/public
officer/employees do not have the right to prevent a
peaceful meeting. If they are going to prevent it,
they are liable under Article 131.
Now, example, the municipal Mayor is presiding a
meeting attended by vice mayor, sangguniang bayan
members, punong barangays and the chief of police.
When the councilor is speaking, the chief of police
stood up and said: “the councillor should not proceed
with his speech.” Thereafter, heated argument
ensued. After the heated argument, then there is
disorder. The meeting was dissolved. Subsequently,
the chief of police was prosecuted under Article 131
first paragraph. The prosecution said that although
the accused did not prevent to hold the meeting in
question but he interrupted the holding of the
meeting which within the meaning of Article 131.
How the SC ruled in that matter?
The SC said NO, the chief of police did not violate
Article 131. In order therefore the make said
provision applicable, it is necessary that the
accused be a stranger not a participant of the
meeting that has been interrupted and
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eventually dissolved. He should be a stranger
not a participant.
The important point is that the offender here under
article 131, the offender here who is a public officer
must be a stranger not a participant in the meeting
that was so dissolved.
A meeting may be interrupted on legal ground, any
meeting for the purpose, like the meeting is no
longer peaceful, the policemen can make intrusion
and yet they will not be liable because they have the
right to do it because the meeting is no longer
peaceful; there’s already violence. (ex. brawl) Can it
be stop? YES, it can be stopped and the one who
stop it cannot be liable under article 131.
Ok, let’s take the case of Evangelista v.
Earnshaw, 57 Phil. 255, it is cited on your book.
Evangelista is a member of Communist Party of
the Philippines (CPP); he applied for a permit to the
Mayor of Manila. In the past, where they held rallies,
there is always violence, there is riot here riot there,
and so the Mayor did not issue the permit for them
to hold a rally. The Mayor then was sued and one of
the issue there was raised is on whether or not the
denial of the permit by the Mayor to hold a rally is a
violation of Article 131.
SC said NO. The denial of the permit was
based on a pattern. It was not peaceful in the
past, it is not peaceful in the previous rallies
and so therefore there is a basis to deny the
issuance of the permit taking on the pattern.
Let us take the case of Primicias v. Fugoso, 80
Phil. 71 (cited in the book, page 77 Reyes book)
The Nationalista party applied for a permit to hold
an indignation rally at Plaza Miranda. And again the
Mayor denied the permit to indignation rally at Plaza
Miranda.
The SC said the fact “that there is a reasonable
ground to believe, basing upon previous
utterances and upon the fact that passions
remain bitter and high, that similar speeches
will be delivered tending to undermine the
faith and confidence of the people in their
government and in the duly constituted
authorities, which might threaten breaches of
the peace and disruption of public order,” is
not a legal ground for refusing the permit to
hold a public meeting for the purpose of
petitioning the government for redress of
grievances by holding an “indignation rally.”
To justify suppression of free speech, there
must be reasonable ground to believe that the
danger apprehended is imminent and that the
evil to be prevented is a serious one.
Yes, in this case, there is a violation of article 131.
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The holding a rally needs a permit, the government
may deny it; the government has the right forcedly
to require a permit before gathering or holding of a
rally can be made. Any meeting without a permit is
for ceding? a violation of the law. That is being true;
a meeting may prohibited, interrupted and dissolved
without violating article 131 of the Revised Penal
Code.
But the requirement of a permit shall be exercised
only by the government’s regulatory powers and not
really prevent peaceful assemblies as the public may
decide.
If the permit is denied arbitrarily, that’s the
time they can say that there is a violation of
Article 131, if the permit is denied. The denial
should not be based on the whims and caprices of
the issuing authority; it should be base on justified
legal ground.
In the cases mentioned above, the State exercised
the power to regulate a conduct of an assembly but
remember there are 2 criteria wherein Art 131 may
be violated.
Now, in the beginning, let’s say, you were issued the
permit that you conduct a rally, in the beginning the
meeting or assembly was peaceful, in the long run,
the participants did illegal acts (nagtapon ng bato sa
isa’t-isa)
Question: Can it be stopped by policemen without
violating Article 131?
Answer: YES. They can be stopped. The police
officer or any enforcer can stop or dissolve the
meeting because even if you have the permit--that
permit is not a license for you to commit a crime (for
another crime).
There are two criteria to determine whether
Article 131 would be violated:
(1) Dangerous tendency rule – applicable in
times of national unrest such as to prevent
coup d’etat.
(2) Clear and present danger rule – applied in
times of peace. Stricter rule.
We have a third rule, the Balancing interest rule.
These are matter should thoroughly discuss in your
Constitutional Law 2.
By the way, in relation to Article 131, kindly read the
following cases:
 Ruiz v. Gordon 126 SCRA 233 (en banc)
 Reyes v. Bagatsing 125 SCRA 123 (en banc)
This is all about anti-bases coalition.
SECTION FOUR.—CRIMES AGAINST
RELIGIOUS WORSHIP
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Article 132. Interruption of religious worship. - The
penalty of prision correccional in its minimum period
shall be imposed upon any public officer or employee
who shall prevent or disturb the ceremonies or
manifestations of any religion.
If the crime shall have been committed with violence
or threats, the penalty shall be prision correccional in
its medium and maximum periods.
There are two acts punishable under Article 132,
these are:
1. To prevent the holding of the ceremonies of
any religion.
2. To disturb ceremonies or manifestations.
Elements:
1. That the offender is a public officer or
employee
2. That religious ceremonies or manifestations
of any religion are about to take place or are
going on.
3. That the offender prevents or disturbs the
same.
Now take note under this article, the offender is a
public officer or employee to prevent or disturb the
ceremonies going on. If the ceremony is prevented
or disturbed with the use of violence or threat, it will
qualify the crime, the penalty correspondingly raised,
this is a qualifying aggravating circumstance. Now,
there is no provision of the law which requires
religious services to be conducted in necessary form
or style.
As I have said, person who meet for the purpose of
religious worship by any method, by all means which
is not indecent or unlawful have the right to do so
without being molested. That’s the rule, any religious
method without being indecent or unlawful.
In relation to this article, can you read the case of
Herman v. Barangan 135 SCRA 514
Title Three
CRIMES AGAINST PUBLIC ORDER
Chapter One
REBELLION, SEDITION AND DISLOYALTY
Art. 134. Rebellion or insurrection; How
committed. — The crime of rebellion or insurrection
is committed by rising publicly and taking arms
against the Government for the purpose of
removing from the allegiance to said Government
or its laws, the territory of the Philippine Islands or
any part thereof, of any body of land, naval or
other armed forces, depriving the Chief Executive
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or the Legislature, wholly or partially, of any of
their powers or prerogatives. (As amended by R.A.
6968)
Elements:
1. There is a public uprising and taking arms against
the government;
2. The purpose of the uprising or movement is –
a. to remove from the allegiance to the
government or its laws Philippine territory or
any part thereof, or any body of land, naval,
or other armed forces;
or
b. to deprive the Chief Executive or Congress,
wholly or partially, of any of their powers or
prerogatives.
The crime of rebellion is a crime of multitude; the crime of
rebellion cannot be committed by a single individual. It is
committed by several or multitude of persons for the
purpose of overthrowing the government.
The nature of rebellion, according to the SC in People vs
Hernandez, evokes not merely a challenge to the
constitutional authorities but also a civil war on a bigger or
lesser scale. The crime of rebellion can be committed
through force and violence as enunciated in article 134.
Remember that REBELLION IS A MASS MOVEMENT. It
must be committed by a multitude and it cannot be
committed by an individual alone.
GR: In the crime of rebellion, it does not require the
participation of the military. It can be committed even
without a single shot being fired. No arm confrontation or
challenges are necessary. Armed public uprising is already
enough.
Who are liable in the crime of rebellion?
1. any person who leads or heads the act of rebellion or
insurrection;
2. any person who participates in or induces others to
participate in rebellion or insurrection.
REBELLION Vs INSURRECTION
Rebellion and Insurrection are not synonymous. Rebellion
is frequently used where the object is to completely
overthrow and supercede the existing government.
While insurrection is more commonly employed in
reference to a movement which seeks merely to effect
some change of minor importance or to prevent the
exercise of governmental authority with respect to
particular matters or subjects. *story2x* IBUTANG SA
LUGAR ANG IMUNG PASSION KNOWING THAT YOU
ARE A PUBLIC OFFICIAL ONCE YOU BECOME
LAWYERS
Ex: a group of hundred armend men attacked the
provincial of COMVAL. They discharged the security guards
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and wants to declare COMVAL separate from the Republic
of the Philippines. What is their crime?
ANS: They committed the crime of rebellion. They took
arms to uprise against the government and wanted to
declare their own territory. They were around 100 men
and thus, it met the for the crime of rebellion.
Ex: Thousands of armed men attacked the city hall of
Tagbilaran, Bohol. They occupied the city hall and
declared the Republic of Bohol. What crime did they
commit?
ANS: They committed the crime of rebellion. They took
arms and rose against the government when they
declared independence from the Philippines.
EX: Capt. Hue led around 45 soldiers of the Philippine
Army occupied a hotel in Makati. Against the will and with
the force and intimidation to the food and beverage
section, they occupied the maharlika room and foreced
them to serve them food and drinks. They faced to the
media and aired out their sentiments against the
government and the administration of the Armed Forces.
They were arrested and charged of rebellion.
ANS: The charge was not correct. They only have 45
men. They did not declare independence from the
government or separate territory or deprived the president
to exercise his duty. The case should be grave coercion
since they forced the manager of the beverage section to
derve them with food and drinks.
This crime of rebellion is essentially a political crime where
the leaders have the intention to substitute themselves in
place of those who are in power. They take up arms to
overthrow the government. The method of placing
themselves is through force, violence and duress, this is
what we call rebellion.
Now, take a look of the law the phrase “to remove
allegiance from the government” is used to emphasize that
the object of the uprising could be limited to certain areas,
like isolating a barangay, or municipality, or a province in
his loyalty to the duly constituted government of the
national government.
Ex: paying of revolutionary tax to the NPA and tax to the
government in some areas which are held by the reds, like
in comval area. * story2x about JRAA experience*
So in essence, there is lost of territory since the
government has no effective control of the area or
baranggay.
In a strict sense, the crime committed if the violence is in
good in order to capture, like for example, violence is used
to capture a military camp (usual doings of the NPAs) that
constitutes also a form of violence, duress or force that is
always being employed by the New Peoples Army.
Take note, the law of rebellion does not speak only
“allegiance” or “lost of territory,” it also includes the war
efforts of the rebel to deprive the president of the
Philippines of the exercise of his power to enforce the law,
to exact obedience of laws and regulations duly enacted
and promulgated by the duly constituted authorities.
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Now, one aspect of the crime of rebellion which every Law
student must know is the peculiar characteristic of the
crime of rebellion which is to absorb bigger, graver or
more serious offenses in the manner of its execution; the
manner by which it absorbs graver and more serious
crimes. This is the Principle of Absorption.
When you commit the crime of rebellion necessarily you
commit common crimes like arson, robbery, like murder.
Now, to place a municipality under the control of the
rebels, they have to fight the forces of the government
and in the encounter there can be a killing of police
officers and civilians. In the force of execution of this
particular act to seize power necessarily common crimes
are committed by the rebels. Ordinarily, the crimes that
are enumerated are common crimes and punished as a
separate offense, they are defined under Revised Penal
Code. Killings attended by the qualifying circumstances are
general classified, like murder, or a case of taking of
personal property or personal things, that’s robbery under
article 294. However, the crimes herein enumerated were
committed by the offenders in pursuant to the commission
of the crime of rebellion; the rule is they are considered as
absorbed in the crime of rebellion.
That comes to us the discussion of the case of People v.
Hernandez, the Hernandez doctrine. Common
crimes are absorbed in the crime of rebellion. It
cannot be considered as complex crime; there is no
complex crime of rebellion, rebellion complex with
robbery, rebellion complex with murder, or rebellion
complex with arson, NO. Because what we have learned
under article 48, special complex crime will not apply
because these common crimes are considered ingredient
or element of the crime of rebellion; ingredients in the
commission of the crime of rebellion.
Now, in People v. Hernandez, cited in your book,
reported in 99 Phil. 515,
The SC said common crimes committed in
furtherance ofpolitical offense are considered acts of
rebellion. This ruling in effect prohibits the complexing of
rebellion with any other offense committed on the
occasion thereof either as a means necessary to its
commission or as an intended effect of the activity that
constitutes rebellion. And take note the ruling of
Hernandez was reiterated by the SC when they ruled the
case of Enrile v. Salazar, 186 SCRA 21.
The theory of absorption does not only refer to
felonies/crimes punished under the Revised Penal Code; it
embraces the crimes/offenses punished under special law.
So if the commission of the common crime, which was
earlier discussed, to be an element of rebellion, special law
is likewise violated, like illegal possession of firearms under
PD No. 1866 as amended by PD No. 8294, such offense is
also absorbed in the crime of rebellion. For example, you
are a rebel (Commander Parago?), you are in the
downtown area, and then the policemen saw you and
arrested you, of course, in the crime of rebellion. In the
course of the arrest and you were searched, you are found
in the possession of an unlicensed firearm.
Question: Can the prosecution charge you of the crime of
rebellion complex with illegal possession of firearms. (The
theory in the cases of Enrile v. Salazar) Can there be a
complexing of illegal possession of firearms with that
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rebellion knowing that this firearm was used by you in the
furtherance of your act of rebellion?
The SC in the case of Enrile v. Salazar said NO, it
cannot; illegal possession of firearm is considered
as absorbed in the crime of rebellion.
So if the question asked, what are the crime rebellion can
be complex with common crime or can it be complex with
special laws, The SC had already ruled that there is no
such crime. This was again reiterated when the SC rule in
the case of Enrile v. Amin,189 SCRA 573. It is
absorbed in the crime of rebellion.
By the way, what happen in the case of People v.
Hernandez? Let’s have a revisit of what Hernandez
Doctrine is all about.
Amado Hernandez together with 14 other men
were indicted for the crime of rebellion with multiple
murder, arsons and robberies. The information against
them alleged that the accused being then officers and
members of the Congress and labour organizations
cooperated with the religious activities of the Hukbong
Magpalaya ng Bayan and that necessary means to commit
a crime of rebellion in connection therewith and
furtherance thereof, have committed acts of murder,
rooting, plunder, arson, destruction of public and private
property to create or spread hate, chaos, disorder, terror
and fear; to facilitate the aforesaid purpose. On June of
1954, Hernandez filed with the SC of petition for bail which
the prosecution opposed on the convention that
Hernandez is charged with and have been convicted of
rebellion complex with murder, arson, etc. for which the
capital punishment may be imposed although they were
sentencing him to life imprisonment.
The defense here is rebellion cannot be
complexed with murder, arson or robbery. The ruling of
the SC is that under the allegation to the amended
information against the appellant Hernandez, murders,
arsons, robberies described therein are mere ingredients
of the crime of rebellion allegedly committed by the
defendants as mere necessary for perpetration of said
offense of rebellion. Therefore, the crime charged in the
information should be simple crime of rebellion not
complex crime of rebellion with multiple murder, arsons
and robberies. In other words, common crimes
perpetrated in furtherance of political offense are divested
of their carga? as a common offense and assumes political
contention of the main crime of which they are mere
ingredients and consequently cannot be punished
separately from the principal offense or complex with the
same. TAKE NOTE of that!
Let’s go to Enrile v. Salazar, what happened in the case
of Enrile v. Salazar:
On February 27, 1990, Senate Juan Ponce Enrile, the
Senate Minority Floor Leader, was arrested on the strength
of the warrant issued by Judge Jaime Salazar in a criminal
case. In the information of the criminal case charged
Enrile together with Spouses Paniolilo? and Gregorio
Honasan with murder and multiple frustrated murder
allegedly committed during the period of co-attempt from
November 29 to December 10, 1990. Enrile was detained
without bail, hence, he filed a petition for Habeas Corpus
alleging the commanders that he had been deprived of his
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constitutional rights for being held to answer for a criminal considered as heinous crimes, and RA 7659, kidnapping
offense which does not exist in a statute hoops? This for ransom and rape with homicide are punished by death
Solicitor general defended the position of Enrile however in, you already know that, RA 9246, it prohibits
contending that Hernandez doctrine being invokes by the imposition the penalty of death, instead the penalty
Enrile will not apply in the case (opposed the contention of only of reclusion perpetua shall be imposed without the
Enrile); the facts are different, yours is different to that of eligibility of parole in lieu of the death penalty.
Hernandez. So, according to Solicitor General, we cannot
In RA 9372, there is such a thing a conspiracy to commit
invoke the Hernandez case because the information in the
terrorism in relation to rebellion; persons who conspire to
Hernandez case charged murders to have the common
commit the crime of terrorism shall be suffered the penalty
crimes committed as a necessary means for the
of 40 years of imprisonment. When do we say there is
commission of rebellion whereas the information against
conspiracy? There is conspiracy when two or more persons
Enrile charged murder and frustrated murder committed
come to an agreement concerning the commission of the
on the occasion but not in furtherance of rebellion. In
crime of terrorism, as defined in Section 3 thereof and
other words, he makes a distinction between a complex
decide to commit the crime, Section 4 of RA 9372.
crime arising from an offense being a necessary means for
committing another which the subject of Hernandez ruling Conspiracy to commit terrorism as a crime, there such
and a compound crime, delito compuesto, arising from the a thing now, conspiracy to commit terrorism, there is
civil acts constituting two or more grave or less grave already a crime as conspiracy to commit terrorism.
offenses would which the Hernandez ruling was not
concern of.
Is rebellion and insurrection the same?
So, how the SC ruled on the matter?
To answer the question to whether or not they are the
The SC said Hernandez ruling remains a binding
same, the answer is NO. They are not the same, they are
doctrine overrating to prohibit the complexing of rebellion
not synonymous. Now, is it necessary that the purpose of
with any other offense committed on the occasion thereof
rebellion be accomplished for it to be liable for the crime
illegal? as a means necessary to its commission or
of rebellion? The answer is NO. Because the crime is
unintended effect of activity that constitute rebellion. So
committed of a moment of group of men rise publicly and
that’s why the case of Enrile was dismissed. The Court
take up arms against the government. You know the
further rule that the information filed against Enrile does,
language of the phrases used in the law of rebellion, more
in fact, charged an offense disregarding the objectionable
or less, similar to phrases we have already done in the
phrasing that would complex rebellion with murder and
crime of treason.
multiple frustrated murders.
These are the case I want you to read, in relation to the
Doctrine of Absorption: Let’s now try to distinguish treason from rebellion.
1. Bailosis v. Chavez, 202 SCRA 405 In treason, it is a crime committed against the
security of the State; while in the crime of rebellion, it is
2. Office of Provincial Solicitor Of Zamboanga v. CA
crime committed against public order.
(December 2, 2000)
In treason, there is levying of war against the
3. Drilon v. CA (April 20, 2001)
government during wartime, in rebellion, there is levying
4. Trillanes v. Abaya (August 10, 2006) of war during peace time.
5. Ladlad v. Senior State Prosecutor (June 1, 2007) Treason can be committed by individual by
consolidated case adhering to the enemy by giving aid or comfort but
rebellion can only be committed by multitude of men.
6. Red Capunan v. CA (March 13, 2009)
In treason, the purpose is to deliver the
7. Fr. Robert Reyes v. CA (December 3, 2009)
government to enemy or pay it the way of the coming of
the enemy, but in rebellion; the purpose is to substitute
the existing government with another.
Rebellion or insurrection, there is new twist now
because of the passage of Republic Act No. 9372,
otherwise known Human Security Act of 2007 (approved:
Article 134-A. Coup d'etat; How committed. — The
March 6, 2007). You know, if person who commits an act
crime of coup d'etat is a swift attack accompanied by
punishable as rebellion or insurrection thereby showing
violence, intimidation, threat, strategy or stealth, directed
and creating condition of widespread and extraordinary
against duly constituted authorities of the Republic of the
fear and panic among the populace in order to coerce the
Philippines, or any military camp or installation,
government to give in to an unlawful demand shall be
communications network, public utilities or other facilities
guilty of the crime of terrorism, defined in Section 3 of RA
needed for the exercise and continued possession of
No. 9372.
power, singly or simultaneously carried out anywhere in
That is why they refer the NPA as communist- terrorist. the Philippines by any person or persons, belonging to the
military or police or holding any public office of
Terrorism is more severely punished than heinous crimes
employment with or without civilian support or
under RA 7659 now. Terrorism is punished by the penalty
participation for the purpose of seizing or diminishing state
of 40 years of imprisonment without the benefit of parole
power. (As amended by R.A. 6968)
as provided in Section 3 of RA No. 9372. Some offenses
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Means of committing coup d’etat:
by violence, intimidation, threat, strategy or stealth,
directed against the government
Who commits coup d’etat:
- only the military or police or public officer
- those who advocates or give aid and finances to
the commission of the crime of coup d’ etat.
Elements
1. Offender is a person or persons belonging to the
military or police or holding any public office or
employment;
2. It is committed by means of a swift attack
accompanied by violence, intimidation, threat,
strategy or stealth;
3. The attack is directed against the duly constituted
authorities of the Republic of the Philippines, or
any military camp or installation, communication
networks, public utilities or other facilities needed
for the exercise and continued possession of
power;
4. The purpose of the attack is to seize or diminish
state power.
Now, when the SC ruled the case Enrile v. Salazar and
Enrile v. Amin, during the time, there was yet no law of
coup d’etat. Meaning, Article 134 has not been amended
by RA 6968. When the SC ruled the case of Enrile v.
Salazar and Enrile v. Amin, no yet on coup d’ etat,
meaning Article 134 was not yet amended that time. But,
you have already read these cases; in the case of Enrile
v. Amin, the SC made a challenge to the Congress, and
this is what SC said:
There is an apparent need to
restructure the law on rebellion either to
raise the penalty therefor or to clearly
define and delimit the other offenses to
be considered absorb thereby so that it
cannot be conveniently utilized as the
umbrella for every sort of illegal activity
undertaken its name. The court has no
powerful effect such change for it can
only interpret the law as it stands at any
given time and what is needed lies to be
an interpretation. Hopefully, hopefully,
Congress will perceive the need for
prompt in seizing the initiative in this
matter with this purely cockiness
profits.
Because after the challenge, that’s the reason why the
Congress passed the law on Coup d’ etat because of the
challenge given by the SC when it ruled the case of Enrile
v. Amin. Now, Congress took notice of this
pronouncement, thus, enacted the RA 6968, it did not only
provide for the crime coup d’ etat under RPC but moreover
deleted from the provision of article 135 that portion
referring to those “who are holding any public office or
employment takes part therein engaging the war against
constituted government, destroying property or committed
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serious violence, exacting contributions or diverting public
funds for the lawful purpose purposely have been act
incorporated. Hence, overt acts which used to be punished
as components of the crime of rebellion have been
severed it from thereby 6968. Other authors would say
that because of the amendment, there is now no legal
impediment of applying article 48 in the crime of rebellion.
But to tell you honestly, even you will review the cases of
SC from the time it hold of Hernandez, there has been no
ruling yet adopting the principles espouse by some authors
that rebellion now can be complexed with common crimes.
There has been no ruling yet, no ruling yet deal with the
matter.
To reiterate, before article 135 was amended, 134 then
135, higher penalty is imposed when the offender engages
in war against the government. War connotes anything
which be carried out in pursuant to be war; this implies
that all acts of war or hostilities, like serious violence and
destruction of property committed on occasion and in part
of pursuance of rebellion are component crimes of
rebellion which is what article 48, complex crime, is not
applicable. In the amendment, some authors in criminal
law would say that because the amendment of article 135,
because of the presence of article 134-A, and the
subsequent amendment of 135, the act is used to be
component crimes of rebellion like serious acts of violence
have been deleted. That’s the idea espoused by some
authors; according to them, common crimes can now be
complexed with the crime of rebellion, thereby overturning
the doctrine laid down in Enrile v. Salazar and in the
People v. Hernandez. That’s their opinion. But I have
said, there’s no ruling yet by the SC dealing in the matter.
How can we distinguish between Coup d’ etat and
Rebellion?
 Rebellion is committed by any person whether a
private individual or a public officer, while Coup d’
etat the offender here is a member of military or
police force or holding a public office or
employment.
 In rebellion, the object is to alienate the
allegiance of the people in a territory, whether
wholly or partially; while in Coup d’ etat the
object is to concede or diminish state power.
 In both instances, the offenders intend to
substitutes themselves in place of those who are
in power.
Characteristics of Coup d’etat:
1. it is a swift attack upon the facilities of the
government
2. it maybe committed singlely or it may be committed
collectively
3. the objective may not be to overthrow the
government but to distablize or paralyze the
government or through seizure of government
installation and facilities
4. the principal offenders in coup d’ etat are members of
the Armed Forces of the Philippines or of the
Philippine National Police
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5. it maybe carried out without violence but by But not limited

intimidation, threat, strategy and stealth. to PNP or
members of the
EX: at the break of dawn, two platoons of the marines
Army
attacked ABS- CBN and forcible took over its management.
They controlled the broadcast media and aired their Seize or Alienate allegiance
grievance against the military and the government. What diminish state of the people within
crime did they commit? power; the territory
Objective whether wholly or
ANS: they committed the crime of coupd’etat. It is
partially from duly
because they swiftly attacked a communication center
constituted
which caused to distablize the existing government.
government;
Now, let us try to make a distinction between
rebellion and subversion. The law on Subversion is
made punishable under RA 1700, but RA 1700 has already Intends to substitute themselves in
been repealed when Cory Aquino came into power. Before, place of those who are in power
when you are a member of a group like CPP automatically
you are subversive and you are criminally liable, or you are
a member of NDF, you are already criminally liable Republic Act 6968
because of RA 1700 but because of the repeal, your
membership of the NDF, or your membership now with - enacted: October 1990
the CPP does not make you criminal offender for the - prior to enactment of this law we don’t have any
purpose. law regarding coup de etat
Now, let us try to make a distinction between the two. - bloodiest coup: 1989, no law yet about it
 The crime of rebellion is committed by rising - not just a special law; it is incorporated in the RPC
publicly and taking up arms against the thus we have 134-A; it is considered a felony,
government for any of the purposes under article not just an offense or crime
134 of the RPC. Subversion punishes affiliation
or membership in a subversive organization (your - do not forget: crimes are those punished in special
membership alone will make you liable as a laws while felonies (and crimes) are those
subversive) punished under the RPC

 Subversion, like treason, is a crime against - now mala in se

national security, where rebellion is a crime Distictions Rebellion Subversion (RA
against public order. 1700 already
 Rising publicly and taking arms against been repealed by
government is the very element of the crime of 7636)
rebellion; whereas in subversion, under RA Rising publicly Punishes
1700, this was enacted to outlaw the Communist and taking up membership or
Party of the Philippines, other assailed allegations Acts
arms against affiliation to
and their successors (because their existence of punished
the government subversive
activities constitute a clear crescent and grave for any of those organization
danger to national security) purposes defined in the same
 Rebellion makes use of force and violence; numerated law e.g. CPP
whereas subversive acts do not constitute force under Art. 134 (Communist Party
and violence but may partake other forms as well. of Philippines)
However, take note because of the passage of RA 7636, Nature Crime against Crime against
the law on Subversion has been repealed, meaning it has National Public Order
become decriminalized. Security just
like Treason
Article 134-A. Coup De Etat
Rising publicly Enacted to outlaw
Distictition Coup (RA Rebellion
and taking up the communist
s 6968) Purpose
arms against party and other
Only public Any person, private the government similar institutions
officers or individual or public in the very and its successors
employee of the officer element of this
government crime
with or without
Offender Other Makes use of Not just force and
civilian help;
distinction force and violence
Member of s violence (subversive acts)
military or police but may partake
force; other forms as well

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Article 135.Penalty for rebellion, insurrection or coup
d'etat. - Any person who promotes, maintains, or heads
rebellion or insurrection shall suffer the penalty of
reclusion perpetua.
Any person merely participating or executing the
commands of others in a rebellion shall suffer the penalty
of reclusion temporal.
Any person who leads or in any manner directs or
commands others to undertake a coup d'etat shall suffer
the penalty of reclusion perpetua.
Any person in the government service who participates, or
executes directions or commands of others in undertaking
a coup d'etat shall suffer the penalty of prision mayor in its
maximum period.
Any person not in the government service who
participates, or in any manner supports, finances, abets or
aids in undertaking a coup d'etat shall suffer the penalty of
reclusion temporal in its maximum period.
When the rebellion, insurrection, or coup d'etat shall be
under the command of unknown leaders, any person who
in fact directed the others, spoke for them, signed receipts
and other documents issued in their name, as performed
similar acts, on behalf or the rebels shall be deemed a
leader of such a rebellion, insurrection, or coup d'etat. (As
amended by R.A. 6968, approved on October 24, 1990).
Liability is higher if you are the leader – Reclusion
Perpetua
If only soldiers or pawns – Reclusion Temporal only
Who are liable for rebellion, insurrection and/ or coup
d’etat?
A. the leaders-
i. any person who (a) promotes, (b) maintains, (c)
heads a rebellion or insurrection;
ii. any person who (a) leads, (b) directs or (c)
comands others to undertake a coup d’etat.
B. The participants-
1. any person who:
(a) participates, or
(b) executes the commands of others in rebellion
or insurrection;
2. any person in the government service who:
(a) participates,
(b) supports,
(c) finances,
(d) abets or
(e) aids in undertaking a coup d’etat
It is also important to take note in the discussion of
rebellion is that it is a continuing offense. Here the
offender performs series of acts even on separate days,
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places and acts but the offender is liable only of one crime
of rebellion.
Assuming that a municipal treasurer supports rebellion by
using municipal funds to finance rebellion and he did this
on several occassions. In such a case, he will only be liable
of the crime of rebellion.
Rebellion is a continuing crime (akin to single larsiny
doctrine)
Continuing crime – offender performs series of acts and
same will be done in separate time, dates, places and yet
the offender will only be liable for 1 crime
Assuming you are a municipal treasurer and for several
occasions you took money from government and gave it to
rebels because you are a supporter, for 5 times you
delivered money from the government which you hold in
trust as municipal treasurer, QUESTION: How many crimes
of rebellion have you committed as treasurer? ANSWER:
Only one. WHY: because there is only 1 criminal intent, it
is a continuing offense. You cannot divide the criminal
intent on the 1st delivery, 2nd delivery, etc.
Take note that in the above situation, it must be
established that your motive of delivering these funds to
the rebels is for the purpose of, in furtherance of, in the
occasion of rebellion, or you adhere to them because you
support them. But assuming that you do not have such
purpose, and you merely divested those public funds 5
times… Assuming that it’s not proved that the money was
delivered for political purposes, then the crime committed
is Malversation of Public Funds. How many counts? As
many times as you diverted the money.
CASES:
In order to make out a case of rebellion, what
motivation for the killing of the victim must be
shown?
Principle laid down in Pp. v. Umpad: Merely because it is
alleged in the affidavit that private respondents were
members of the CBP-NPA who engaged government
troops in a firefight resulting in the death of the
government trooper and wounding 4 others does not
necessarily mean that the killing and wounding of the
victims were made in furtherance of rebellion. Even it was
shown that the accused was an NPA commander, he was
nonetheless convicted of murder for the killing of a
government informer.
Rebellion is seldom made out in court by prosecution.
Rebellion penalty as participant, one of the men, is RT
only. They file murder instead, or robbery with homicide.
The court can’t direct the prosecutor to file rebellion.
*story about cases *
Remember, it is the prosecutor who has the option what
crime to file.
Same was reiterated in Office of the Provincial
Prosecutor of Zamboanga v. CA, Dec 2000.
Prosecution filed illegal possession of high-powered
firearms as the penalty there is higher. Respondents
contend: You should file rebellion because we are rebels!
SC: It is up to you in trial to prove that you possessed
those firearms in furtherance, in consonance, in pursuance
of rebellion. But as of now, it is clear you have violated
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that law on illegal firearms. What case to file against you
is in the province of the prosecutor or fiscal.
When a criminal act has elements common to more than 1
offence, who has the option to choose on what case to
file? Discretion of the PUBLIC PROSECUTION, on the basis
of the evidences at hand. This is in Baynosis v. Chavez.
They must charge the lesser offense.
Enrile case: Obstruction of Justice and Rebellion can’t be
complexed.
Let’s take the case of:
Trillanes et al vs Abaya
Facts: On July 26, 2003, PGMA received reports that
some members of the AFP with high powered weapons
have abandoned their designated places of assignment.
Their aim was to destabilize the gov’t. The president then,
ordered the AFP to try to arrest them. On July, 27, 2003,
at around 1 am, more than 300 heavily armed junior
officers and enlisted men of the AFP, mostly from the elite
units of scout rangers and special warfare group entered
the premises of Oakwood Premiere Apartments at Makati.
They disarmed the security guards and planted explosive
devices around it.
Led by Lt. Trillanes, the troops with red emblem of the
Magdalo Katipuann Group, through broadcast media
announced their grievances against the Gov’t Arroyo such
as the graft and corruption in the military, the illegals sale
of arms and ammunitions to enemies of the state and the
bombings in Davao City intended to acquire assistance
from the US Gov’t. They declared their withdrawal of
support from the commander in chief and demanded that
she resign from her post. They also demanded the
resignation of her cabinet members.
At around noontime on the same day, Pres. Arroyo
declared a state of rebellion. Directed the AFP and PNP to
take all measures to suppress the rebellion taking place in
Makati City. She ordered the soldiers to surrender their
weapons. She sent negotiators. The aim was to persuade
them to peacefully return to their posts. After several
hours of negotiation, the government panel convinced
them to surrender. Eventually, they returned to their
barrack. A total of 321 soldiers surrendered.
The NBI was tasked to investigate the matter. The NBI
recommended the filing of the crime of coup d’ etat. The
DOJ was directed to the filing of information against them.
Meanwhile, a case was filed against them in the court
martial pursuant to Article 70 of the articles of war.
Respondent Abaya, then AFP chief of staff ordered the
arrest and detention of the soldiers involved in the
Oakwood Mutiny. Now, in the succeeding days, the DOJ
filed in the TC of Makati a case for coup d’ etat. So, there
are now two charges pending in the RTC of Makati.
What the lawyers of Trillanes did was to ask the court to
declare the charges filed against them filed before the
court martial are the necessary included in the coup d’ etat
charge. What the RTC judge did was to consider that the
case filed before the martial was not services connected
and therefore absorbe in the crime of coup d’ etat.
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ISSUE: WON RTC acted with grave abuse of discretion.
YES
HELD: SC said there is no merit in petitioners’ argument.
The RTC in making such declaration practically amended
the law.
Those cases filed in the court martial shall not be
considered as absorbed in the crime o coup d’ etat.
Article 136.Conspiracy and proposal to commit coup
d'etat, rebellion or insurrection. - The conspiracy and
proposal to commit coup d'etat shall be punished by
prision mayor in minimum period and a fine which shall
not exceed eight thousand pesos (P8,000.00).
The conspiracy and proposal to commit rebellion or
insurrection shall be punished respectively, by prision
correccional in its maximum period and a fine which shall
not exceed five thousand pesos (P5,000.00) and by prision
correccional in its medium period and a fine not exceeding
two thousand pesos (P2,000.00). (As amended by R.A.
6968, approved October 24, 1990).
Article 137.Disloyalty of public officers or employees. -
The penalty of prision correccional in its minimum period
shall be imposed upon public officers or employees who
have failed to resist a rebellion by all the means in their
power, or shall continue to discharge the duties of their
offices under the control of the rebels or shall accept
appointment to office under them. (Reinstated by E.O. No.
187).
Offender is a public officer or employee who:
- fails to resist rebellion by all means and power
- continue to discharge their duty and offices under
the control of the rebels
- accept appointments under them
The law speaks only of Rebellion but I BELIEVE that coup
de etat should also be included in this provision.
In defining disloyalty as a crime, it limits only to public
officers and employees who, during such rebellion failed to
prevent it, when the same has the power or within their
means to prevent it.
This law was amended not to refine rebellion but to
include another form of overthrowing the government
which is coup d’etat.
The primary distinction between rebellion and coup d’etat
is that the latter is committed by persons belonging to the
military or police establishment or public officers with or
without civilian support, for the purpose of seizing or
diminishing state power. This is the reason why we have
Art. 134- A which provides the modalities on how coup
d’etat is committed.
Disloyality as a crime is not limited to rebellion alone but
should not include the crime of coup d’ etat. Rebellion is
essentially commmitted by any people but coup d’etat is
committed by publc officers just like malversation etc.
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In defining disloyalty as a crime, it limits to public officers
or employees who during rebellion which includes coup
d’etat fail to prevent crimes which should be within their
means or power to prevent or who continue to perform
their duties in office under the authority of the rebels.
It should be stressed that if the public officer commit acts
which are being disloyal, does or commits acts constituting
the acts of rebellion or coup d’etat, he shall not be
prosecuted by simple disloyalty but should be charged of
the graver offense of rebellion or coup d’etat.
Article 138.Inciting a rebellion or insurrection. - The
penalty of prision mayor in its minimum period shall be
imposed upon any person who, without taking arms or
being in open hostility against the Government, shall incite
others to the execution of any of the acts specified in
article 134 of this Code, by means of speeches,
proclamations, writings, emblems, banners or other
representations tending to the same end. (Reinstated by
E.O. No. 187).
Elements:
1. that the offender does not take up arms or is not
in open hostility against the government;
2. that he incites others to the execution of any of
the acts of rebellion.
Here, the offender DOES NOT take arms
- Incites others to rebellion through speeches,
emblems, writings, etc
The intellectual or emotional sympathies harboured by
offender in favor of rebels are not a crime per se. Unless!
You do specific acts which now will be in the realm of
criminal law.
Adherence to the enemies of the state, their beliefs and
idealism, principles and objectives – freedom of thought is
not punishable. It is outside the realm of crim law. BUT for
crimes like rebellion, because of public safety, justified by
police power, when you advocate the commission of
rebellion by inciting others to rise publicly and to take up
arms against government, SUCH ACTUATION is
considered a crime.
Overt acts made punishable here is the inciting of others
to overthrow the government. If you maintain and lead
rebels and at the SAME TIME incites others to rebellion,
you are not guilty here, but guilty of rebellion itself.
Inciting will be absorbed. These two crimes therefore
cannot coexist because one is absorbed.
Inciting to rebelllion Proposal to commit
rebellion
Offender induces another to commit rebellion
Not required that the Person who proposes
offender has decided to decides to commit the
commit rebellion rebellion
Done publicly; radios and Secret
mics
Article 139.Sedition; How committed. - The crime of
sedition is committed by persons who rise publicly and
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tumultuously in order to attain by force, intimidation, or by
other means outside of legal methods, any of the following
objects:
1. To prevent the promulgation or execution of any law or
the holding of any popular election;
2. To prevent the National Government, or any provincial
or municipal government or any public officer thereof from
freely exercising its or his functions, or prevent the
execution of any administrative order;
3. To inflict any act of hate or revenge upon the person or
property of any public officer or employee;
4. To commit, for any political or social end, any act of
hate or revenge against private persons or any social
class; and
5. To despoil, for any political or social end, any person,
municipality or province, or the National Government (or
the Government of the United States), of all its property or
any part thereof.
Elements:
1. that the offenders rise (1) publicly and (2)
tumultuously
2. that they employ force, intimidation, or other
means outside of legal methods;
3. thath te offender employ any of those means to
attain any of the following objectives:
a. to prevent the promulgation or execution of
any lae or the holfing of any popular election;
b. to prevent the National Government or any
provincial or municipal government, or any
public officer tjereof from freely exercising its
or his functions, or prevent the execution of
any administrative order;
c. to inflict any act of hate or revenge upon the
person or property of any public officer or
employee;
d. to commit, for any political or social end, any
acts of hate or revenge against private
persons or any social class, and
e. to despoil, for any political or social end, any
person, municipality or province, or the
National Government or all its property or any
part thereof.
- Lesser crime of rebellion
- Committed by rising publicly and tumultuous
(should be both!)
- Art. 251 defines “tumultuous”- Disturbance
becomes tumultuous when more than 3 armed
malefactors participate in creating disturbance and
provides violence; Armed does not mean arms,
but as long as violent
- Demos and rallies to protest is ok, but if it
becomes violent and tumutltuous, that’s the time
when sedition comes in
- Object of sedition may also be political
- it is a limit of freedom of expression
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Sedition Rebellion
Directed against the Uprising is directed Conspiracy must be to prevent the promulgation or
execution of a law, against the government; execution of any law, executive order or holding of any
admin order or a to withdraw allegiance popular election; or may be to prevent local or national
performance of a govt from govt, etc; public officials from freely exercising their duties said
official of his function or functions.
Invariably a political
holding of an election
crime Article 142.Inciting to sedition. - The penalty of prision
correccional in its maximum period and a fine not
Necessarily tumultuous
exceeding 2,000 pesos shall be imposed upon any person
Common crimes may Principle of absorption who, without taking any direct part in the crime of
apply together with it; applies sedition, should incite others to the accomplishment of any
There may be other of the acts which constitute sedition, by means of
charges vis a vis sedition speeches, proclamations, writings, emblems, cartoons,
banners, or other representations tending to the same
end, or upon any person or persons who shall utter
COMMON CRIMES are not absorbed in sedition. seditious words or speeches, write, publish, or circulate
scurrilous libels against the (Government of the United
States or the Government of the Commonwealth of the
Article 140.Penalty for sedition. - The leader of a sedition Philippines) or any of the duly constituted authorities
shall suffer the penalty of prision mayor in its minimum thereof, or which tend to disturb or obstruct any lawful
period and a fine not exceeding 10,000 pesos. officer in executing the functions of his office, or which
Other persons participating therein shall suffer the penalty tend to instigate others to cabal and meet together for
of prision correccional in its maximum period and a fine unlawful purposes, or which suggest or incite rebellious
not exceeding 5,000 pesos. (Reinstated by E.O. No. 187). conspiracies or riots, or which lead or tend to stir up the
people against the lawful authorities or to disturb the
peace of the community, the safety and order of the
CASES: Government, or who shall knowingly conceal such evil
Pp. v Umali – Umali was incumbent congressman who practices. (Reinstated by E.O. No. 187).
ran for reelection with Marshall Punzalan as lone
opponent. Sensing he will lose, he asked a political leader Elements
Pasumbal to contact a revolutionary leader Abeng. Eve of
election Abengagrred to kill Marshall Punzalan.50 of - offender does not take part; not a participant to
Abeng’s men with high-powered firearms, committed any public uprising.
common crimes like murder, arson and physical injuries - incite others
while looking for Punzalan.
- done by means of speeches, etc
The objective was only to inflict damage to the person or
property of a public official and the same was done by This is more or less co-related to bill of rights. This is
force or intimidation. It is only sedition because it only basically to curtail our freedom of expression. (We can
against 1 particular public officer! Public uprising was not connect this to libel, which we will discuss later.) More
against the govt for the purpose of removing allegiance or often collides with constitutional right of people to freely
removing chief executive. express their views in matters of public concerns. Imagine
during the Spanish regime, Rizal was charged with
Pp v. Tahil – Constabulary solders retreated in arrest of INCITING TO SEDITION. This was the crime he allegedly
DatuTahil and failed because his men surrounded them; committed. This provision should be dealt with dangerous
Resisted by means of force thus it is sedition tendency rule and the clear and present danger rule which
Pp v. Cabrera – inflict act of hate and revenge upon you will discuss more in Consti II.
public officers; Phil. Constrabulary (PC) vs. Police force, PC The person liable of inciting to sedition must not be a
member was arrested by policemen (outrage). After that, participant to any public uprising. The reason is simple. If
PC took revenge because of the death of their comrade. he is a participant so he is already committing sedition.
Many has died thus it is seditious Remember that if the offender has one criminal intent he
Pp v. Lacos – commit for any political hate or revenge must be charged of that same crime.
against any private person or political class; farm laborers
vs. loan sharks; laonsharks require children of farm
laborers to work for them as payment; seditious because What are the ways of committing inciting to sedition?
they committed acts for hate or revenge tending for
-speeches, proclamations, writings, emblems,
political ends
cartoons, banners, or other representations tending
Purpose of sedition must be known. to the same end,
Article 141.Conspiracy to commit sedition. - Persons
conspiring to commit the crime of sedition shall be Chapter TwoCRIMES AGAINST POPULAR
punished by prision correccional in its medium period and REPRESENTATION
a fine not exceeding 2,000 pesos. (Reinstated by E.O. No.
187) Section One. - Crimes against legislative bodies and
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similar bodies
Article 143.Act tending to prevent the meeting of the
Assembly and similar bodies. - The penalty of prision
correccional or a fine ranging from 200 to 2,000 pesos, or
both, shall be imposed upon any person who, by force or
fraud, prevents the meeting of the National Assembly
(Congress of the Philippines) or of any of its committees or
subcommittees, constitutional commissions or committees
or divisions thereof, or of any provincial board or city or
municipal council or board. (Reinstated by E.O. No. 187).
Elements
- there is a projected or actual congress meeting or
any of its committees; or of any provincial board
of city or municipal council board
- offender who may be any person prevents such by
force or fraud
Crime is against popular representation because it is
directed to officers whose primary function is to meet and
enact laws.
Legislative bodies:
 National – congress
 Provincial level – Provincial board
 Towns or municipalities – Municipal council/ City
councils
 Brgy level – Brgy council
When these are prevented from meeting and performing
their duties, the system of government is therefore
disturbed. Significantly, what is emphasized is the LEGIS
branch for in theory it holds the force of government.
If example: Executive department will do the preventing,
then this provision is violated. Manifests the 3 branches of
the check and balance of our government. Exec cannot
encroach legislative power from enacting specific laws etc.
Article 144.Disturbance of proceedings. - The penalty of
arresto mayor or a fine from 200 to 1,000 pesos shall be
imposed upon any person who disturbs the meetings of
the National Assembly (Congress of the Philippines) or of
any of its committees or subcommittees, constitutional
commissions or committees or divisions thereof, or of any
provincial board or city or municipal council or board, or in
the presence of any such bodies should behave in such
manner as to interrupt its proceedings or to impair the
respect due it. (Reinstated by E.O. No. 187).
When you go to Congress to attend and listen, be sure
you behave well. You must not display acts tending to
disrespect the Congress.
Section Two. - Violation of parliamentary immunity
Article 145.Violation of parliamentary immunity. - The
penalty of prision mayor shall be imposed upon any
person who shall use force, intimidation, threats, or fraud
to prevent any member of the National Assembly
(Congress of the Philippines) from attending the meetings
of the Assembly (Congress) or of any of its committees or
subcommittees, constitutional commissions or committees
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or divisions thereof, from expressing his opinions or
casting his vote; and the penalty of prision correccional
shall be imposed upon any public officer or employee who
shall, while the Assembly (Congress) is in regular or
special session, arrest or search any member thereof,
except in case such member has committed a crime
punishable under this Code by a penalty higher than
prision mayor.
Elements:
FIRST WAY:
- any person who shall use force, intimidation,
threats, or fraud
- to prevent any member of the National
Assembly (Congress of the Philippines)
o from attending the meetings of the
Assembly (Congress) or of any of its
committees or subcommittees,
constitutional commissions or
committees or divisions thereof, from
expressing his opinions or casting his
vote; Offender is any person.
SECOND WAY:
- any public officer or employee who shall,
- while the Assembly (Congress) is in regular or
special session,
- arrest or search any member thereof,
Except in case such member has committed a
crime punishable under this Code
If the congressman has NOT committed any crime but was
prevented from attending meetings of the assembly so
that he cannot 1) express his opinion or 2) cast his vote…
the use of intimidation or threat for such purposes is held
liable for violation of Parliamentary Immunity.
Offender- any person
Offended party- congressman
If a congressman commits a crime:
Penalty is PC - cannot implement warrant of arrest
while Congress is in session
Penalty is above or beyond PC (eg. plunder which
is RP) – arrest is ok
If you arrest a congressman but penalty of the crime is PC
and below, then you violate this provision, violation of
Parliamentary Immunity (Section 11, Art. VI, Constitution).
CASES:
Manuel Martinez v. Jesus Morfe, 1972 – please read.
Chapter ThreeILLEGAL ASSEMBLIES AND
ASSOCIATIONS
Article 146.Illegal assemblies. - The penalty of prision
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correccional in its maximum period to prision mayor in its associations shall suffer the penalty of arresto mayor.
medium period shall be imposed upon the organizers or (Reinstated by E.O. No. 187).
leaders of any meeting attended by armed persons for the
purpose of committing any of the crimes punishable under
this Code, or of any meeting in which the audience is SEC registration is not needed.
incited to the commission of the crime of treason, rebellion
or insurrection, sedition or assault upon a person in What are illegal associations?
authority or his agents. Persons merely present at such
meeting shall suffer the penalty of arresto mayor, unless 1. Associations totally or partially organized for the
they are armed, in which case the penalty shall be prision purpose of committing any of the crimes punishable
correccional. under the Code.
2. Associations totally or partially organized for some
If any person present at the meeting carries an unlicensed purpose contrary to public morals. (ex. Pedophiles
firearm, it shall be presumed that the purpose of said
Association)
meeting, insofar as he is concerned, is to commit acts
punishable under this Code, and he shall be considered a
PERSONS LIABLE:
leader or organizer of the meeting within the purview of
the preceding paragraph.
1. founders, directors and presidents of the associations
As used in this article, the word "meeting" shall be
2. mere members of the association
understood to include a gathering or group, whether in a
fixed place or moving. (Reinstated by E.O. No. 187).
Illegal assembly Illegal association
Necessary that there is Not necessary that there be
actual meeting ot assembly an actual meeting
2 kinds:
of armed persons for the
a. meeting attended by armed persons for the purpose of committing any
purpose of committing any crime punishable under of the crimes punishable
RPC under the Code, or of
individuals who, although
b. meeting in which audience is incited to commit
not armed, are incited to
crimes of treason, rebellion, sedition or
the commission of treason,
insurrection or assault of persons in authority or
rebellion, sedition or assault
his agents
upon a person in authority
Persons liable are: or his agent
Meeting and the attendance It is the act if forming or
1. Organizers or leaders
at such meeting that are organizing and membership
2. Persons merely attending but with common intent punished in the association that are
to commit illegal assembly punished
Now if you carry a firearm and you are there, law makes The persons liable: 1. The persons liable: 1. The
presumption that you are a LEADER Organizers or leaders of the founders, directors and
meeting; president
If you carry an unlicensed firearms there is a presumption 2. persons present at 2. members
is to commit crimes under RPC and at the same time you meeting
are presumed as a LEADER or organizer Of course, SEC will not register it! Because your purpose is
Gravamen of the offence: Merely assembly of or not valid and legal.
gathering of people punishable under RPC so if it covered
by special law then it is not punishable here. Without Article 148. Direct assaults. - Any person or persons
gathering, there is no illegal assembly. who, without a public uprising, shall employ force or
intimidation for the attainment of any of the purpose
So if ang magtapok kay mga drug pushers para enumerated in defining the crimes of rebellion and
magdistribute ug drugs, they cannot be charged of illegal sedition, or shall attack, employ force, or seriously
assembly because the purpose is not for the offense intimidate or resist any person in authority or any of his
punishable under the RPC but the Dangerous Drugs Act. agents, while engaged in the performance of official
If magtapok mo tapos you plan to incite sedition, then you duties, or on occasion of such performance, shall suffer
can be charged of illegal assemblies. the penalty of prision correccional in its medium and
maximum periods and a fine not exceeding P1,000 pesos,
when the assault is committed with a weapon or when the
Article 147.Illegal associations. - The penalty of prision offender is a public officer or employee, or when the
correccional in its minimum and medium periods and a offender lays hands upon a person in authority. If none of
fine not exceeding 1,000 pesos shall be imposed upon the these circumstances be present, the penalty of prision
founders, directors, and presidents of associations totally correccional in its minimum period and a fine not
or partially organized for the purpose of committing any of exceeding P500 pesos shall be imposed.
the crimes punishable under this Code or for some
purpose contrary to public morals. Mere members of said
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This crime is very familiar to you. This was what happened
to the traffic enforcer who was being attacked in the
performance of his functions and duties (This was some
kind of a news and I can't seem to get the name of that
traffic enforcer despite raping the replay button. Sorry.)
How is direct assault committed?
There are 2 ways to commit the crime of direct
assault.
1) By employing violence or force for purpose of attaining
any of the purposes of rebellion or sedition except that the
offenders are not numerous enough to constitute public
uprising. Hence, it is called rebellion by a handful of
people. The offended party here may not be a public
officer but may be a certain social class.
2) By attacking or laying hands upon a person in authority
or an agent of a person in authority.
Elements of the 1st form of direct assault:
1) That the offender employs force and intimidation;
2) That the aim of the offender is to attain any of the
purposes of the crime of rebellion or any of the
objects in the crime of sedition; and
3) That there is no public uprising.
Example(s):
X is a sugarcane planter in Hacienda Luisita, he nurtured a
grudge and ill-feeling against Don Simeon, the owner of
the hacienda, because the latter have not been giving his
workers their due share and benefits. X attacked Don
Simeon with fist blows and kick blows. What crime did X
commit?
A. The crime committed is DIRECT ASSAULT under the
first form. Without a public uprising, he attacked and
employed force against a private person for a social end
this is the object of sedition. Had there been no public
uprising the crime committed is direct assault.
We will not deal so much on the first manner. We will deal
more on the second type. That is, by attacking or laying
hands upon a person in authority or an agent of a person
in authority. In relation to this, kindly read the case of
People vs Abalos (January 08, 1996).
Take note that the 2nd mode of committing the crime of
direct assault is aggravated when there is a weapon
employed in the attack or the offender himself is a public
officer or the offender lays hands upon a public authority.
Elements of the 2nd form of direct assault:
1) That the offender (a) makes an attack, (b) employs
force, (c) makes a serious intimidation, or (d) makes a
serious resistance;
2) That the person assaulted is a person in authority or
his agent;
3) That at the time of the assault the person in authority
or his agent (a) is engaged in the actual performance
of official duties, or that he is assaulted, (b) by reason
of the past performance of official duties;
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4) That the offender knows that the one he is assaulting
is a person in authority or his agent in the exercise of
his duties;
5) That there is no public uprising.
Remember that the person who assaulted knows that the
person assaulted is a person in authority or his agent. This
is only logical since the assault is committed in 4 ways.
How? By attacking, by employing force, by seriously
intimidating, or by seriously resisting a person in authority
(PA) or an agent of a person in authority (APA).
Apparently, the crime of direct assault can only be
committed by means of dolo. It cannot be committed by
means of culpa or negligence.
Actual performances proceed to actual performance of the
duty by a person in authority. So while engaged in the
performance of a duty, a person in authority or his agent
is being attacked.
Q: Mayor Batistis was conducting a meeting with barangay
officials regarding the dissemination and implementation
of the law that prohibits the selling of liquor to minors. X,
a store owner and defiant of the law stabbed the Mayor as
a result. What crime did X commit?
A. He committed a complex crime of Homicide with
Direct Assault upon a person in authority. He
committed homicide by stabbing the mayor to death. He
also committed direct assault upon a person in authority
because he attacked the mayor while he was engaged in
the performance of his duty. Considering, however, that
the two crimes were committed by the performance of a
single act that of stabbing the mayor a complex crime
under the _ of Art. 48 is brought about. A single act
resulted to one grave felony – Homicide and another less
grave felony – Direct Assault, two crimes cannot be
separately filed.
Q: BA is the Secretary of Budget and Management. He
was invited to speak in a forum hosted by the UP – School
of Economics regarding proposed budget. When he was
about to leave after the forum, one student was able to
pull his collar and the others pounded on his vehicle. What
is the criminal liability of the students?
A. The student who pulled the collar is liable for direct
assault if there is any intent to defy his authority. He aims
the person in authority being the Secretary of DBM. He
was attacked on the fact of performance of his duties.
Q: SPO Tolines was pacified a protagonist A and B instead
of being pacified, A vented his ire upon the policeman and
attacks the latter. What crime did A commit?
A. A committed Direct Assault upon an agent of a person
in authority. He attacked the policeman while the latter
was engaged in the performance of his duties.
“By reason of past performance of duty”
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Q: Eg. Judge Lamar found X guilty of the crime of Robbery
and sentenced him to suffer imprisonment. After serving
the sentence imposed, X was released from prison. One
day, he met Judge Lamar, X remembered that the judge
convicted him and sent him to prison. X attacked the
judge by boxing him on different parts of his body. What
crime or crimes did X commit?
A. X committed Direct Assault upon a person in authority.
He attacked the judge by reason of his past performance.
Q: How about if Judge Lamar has already retired at the
time that he was attacked?
A. If Judge Lamar was attacked by reason of his past
performance at the time that he was no longer connected
with the Judiciary having retired already, X committed
here physical injuries not direct assault upon a person in
authority because the victim was no longer a judge at the
time assault. Once he retires, he is no longer considered a
person in authority.
Q: Who is a PA and who is an APA?
This has already been discussed when we were discussing
about voluntary surrender and aggravating circumstance
of assault in our Criminal Law 1.
PA: Any public officer vested with jurisdiction recognized
in law and clothed with authority in law whether
individually or as a member of a board or corporate body.
Q: What about the barangay captain? Is he considered a
person in authority?
A: In accordance with RA 7610, the Local Government
Code, a barangay captain/chairman is considered a person
in authority.
Q: What about the barangay kagawads?
A: Yes, in the cases of Pp vs Magallanes and Pp vs Sion,
they are considered as PA.
Q: What about the member of Lupong Tagapamayapa?
A: Yes, they are considered PA. Remember the Sion case.
Q: Now, what about teachers, lawyers, and heads of
schools?
A: Teachers, lawyers, and heads of schools recognized in
government are persons in authority only for purposes of
Art. 152 in relation with Arts. 148 and 151 and when they
are attacked in connection with their duties. This is the
case of Gelig vs People. In other cases of course, they are
not considered as persons in authority.
What about an agent of a person in authority? Who are
they?
Section 388 of the Local Government Code of 1991
actually expands the definition of who persons in authority
are because barangay councilors/councilmen used to be
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agents of persons in authority only. However, because we
now have Section 388 of the LGC which provides:
"For purposes of the RPC, the pinong barangay,
sangguniang barangay members, and members of
the Lupong Tagapamayapa in each barangay shall
be deemed as persons in authority in their
jurisdiction."
That was the ruling of the SC in the case of Pp vs Sion
(August 1997). Take note that the offended party in
direct assault must not be the aggressor. If there is an
unlawful aggression employed by the public officer, any
form of resistance which may be in the nature of force
against him may be considered as an act of legitimate
offense.
Q: Now supposing the offended party who is a person in
authority or an agent of a person in authority is challenged
to a fight in the performance of his duties and the public
officer accepts it, what happens? What is the rule in self-
defense in Art. 11?
A: When one accepts the challenge by the other, no one
can claim self-defense. Both of them are agressors to one
another. That's the rule in self-defense.
What about here? If you are a public officer in the
performance of your duties, you were challenged and you
accepted the challenge, and in the course of which, you
sustained injuries, did that person who attacked the public
officer, who accepted the challenge, liable under Art. 148?
Isn't it that the public officer is no longer a person in
authority because he went down to the level of an
ordinary person upon acceptance of the challenge?
This is actually ruled in the old case of Justo vs CA. The
SC held that yes, direct assault is still committed. The
character of the person in authority or his agent is not laid
off at will or removed at the pleasure of the public officer
but the same is attached to him for so long as he remains
in the public office.
Q: May there be assault even if the public officer at the
time of the assault, he is not actually performing an official
duty?
A: Yes. This time we will ask what is the motive of the
attack. As a rule, if you are a public officer and you're
engaged in the performance of your function and by
reason thereof, you were attacked, then direct assault is
committed. It is already immaterial of what the motive is.
But the moment that the public officer is not in the
performance of his official function and he is attacked, we
are now going to ask what the motive of the attack was.
4th year review answer: Yes, the phraseology on the
occasion of such performance found in Art. 148 gives or
offers an affirmative answer as it means because or by
reason of the past performance of official duty the evident
purpose of the law is to allow public officials and their
agents to discharge their official acts without fear of being
haunted for such performance .
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Ex.: PA was attacked because yesterday, he denied the
issuance of firearms license because that person was
found to be mentally ill and due to such denial, the latter
got mad. Here, the motive becomes material for the
proper determination of the offense committed.
Take note: When an attack is made to a person in
authority or his agent in the performance of his duty,
automatically, the crime is direct assault whatever the
reason may be for attacking the said public officer. If it is
made when the officer is off-duty, (insert the shut up
there, shut up incident. Lol) the offender's reason for the
attack should be determined. If the reason of the attack is
related to the performance of his past duties, then the
crime committed, of course, is direct assault. If it is not,
then it will only be physical injuries or attempted homicide,
as the case may be. Please remember this concept. This
was already asked in the 1995 Bar Exam. Again, motive
becomes material for the proper determination of the
offense committed.
Remember the rule, this was asked in the 1995 Bar Exam,
when an attack is made on a person in authority while in
the performance of his duties, the crime is direct assault
whatever his reason may be for attacking. So while he is
engaged in the performance of his duty and he is being
attack whatever the reason is, there is direct assault.
If it is made when the officer is off-duty, the offender’s
reason for the attack should be examined. If the reason of
the attack is related to a past performance of his duties
then, the crime committed is direct assault. Otherwise,
there is no direct assault and it is some other case
probably physical injuries. Here, the motive becomes
material in the proper determination of the offense
committed.
In the 2nd form of direct assault, we have to distinguish a
situation when a person in authority or his agent was
attacked while performing official functions from a
situation when he is not performing such functions.
Q: Supposing the offender and the offended party are
both public officers, can direct assault still be committed?
A: Yes, in the case of US vs Vallejo (I'm not sure if I heard
it right) that has already been settled. SC held that assault
can still be committed. In fact, the offender is even
subjected to a greater penalty or this is even in the
aggravated form. Meaning, when a public officer attacks
another public officer while in the performance of his
functions or due to past performances, then it is already in
the aggravated form and higher penalty may be imposed.
Q: May a person be convicted of a complex crime of
homicide with direct assault?
A: In the case of Pp vs Regala, et. al, the SC said yes,
provided that the information alleges both offenses.
Q: May direct assault be committed upon a private
individual?
A: As a general rule, the attack should be made against a
public officer. However, when a private individual comes
to the aid of a person in authority and in the process
likewise sustained injuries, Art. 148 is still applicable.
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Under RA 1978, a private person who comes to the aid of
a person in authority is, by fiction of law, deemed or
considered as an agent of a person in authority.
Q: Now, if direct assault is committed by use of force and
resulted to slight physical injuries, how many offenses did
the offender commit? Is the offender liable for the
complex crime of slight physical injuries with direct
assault?
A: Only one because there is no such a thing as complex
crime with light felonies. Slight physical injuries, which is a
light felony, is deemed absorbed in the crime of direct
assault because in the latter, necessarily, you need to
attack. You cannot just stare with each other and commit
such. You need to physically attack the other party.
Remember the principle in Art. 48. Light felonies cannot
be complexed with any other crime. Complex crimes would
only come in if it is grave or less grave felony.
Q: Can direct assault be committed during rebellion (first
manner of committing rebellion) or sedition?
A: In the case of Abalos, the SC said NO, this cannot be
committed in times of rebellion or sedition because direct
assault requires that there is no public uprising.
In relation to that I want you to read the cases of
- ENRIQUE RIVERA v. PP, June 30, 2005 –
different example of the application of direct
assault upon an agent of person in authority
Enrique vs People
FACTS:
Assailed and sought to be set aside in this petition for
review on certiorari are decisions convicting herein
petitioner Enrique "Totoy" Rivera of the crime of direct
assault, and denied petitioner’s motion for reconsideration.
The accused did employ force and seriously resist one Lt.
EDWARD M. LEYGO, knowing him to be a policeman, by
then and there challenging the latter to a fistfight and
grappling and hitting the said policeman on his face, thus
injuring him in the process while the latter was actually
engaged in the performance of his official duties.
ISSUE:
Whether or not petitioner is guilty of direct assault.
HELD:
Yes. Direct assault, a crime against public order, may be
committed in two ways: first, by any person or persons
who, without a public uprising, shall employ force or
intimidation for the attainment of any of the purposes
enumerated in defining the crimes of rebellion and
sedition; and second, by any person or persons who,
without a public uprising, shall attack, employ force, or
seriously intimidate or resist any person in authority or any
of his agents, while engaged in the performance of official
duties, or on occasion of such performance.
Petitioner's case falls under the second mode, which is the
more common form of assault and is aggravated when:
(a) the assault is committed with a weapon; or (b) when
the offender is a public officer or employee; or (c) when
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the offender lays hand upon a person in authority.
- PP v. ASILAN, April 11, 2012
- GELIG v. PP, July 28, 2010
Gelig v Pp
Facts: Lydia and private complainant Gemma B. Micarsos
(Gemma), were public school teachers at the Nailon
Elementary School, in Nailon, Bogo, Cebu. Lydia’s son,
Roseller, was a student of Gemma.
On July 17, 1981, at around 10:00 o’clock in the morning,
Lydia confronted Gemma after learning from Roseller that
Gemma called him a “sissy” while in class. Lydia slapped
Gemma in the cheek and pushed her, thereby causing her
to fall and hit a wall divider. As a result of Lydia’s violent
assault, Gemma suffered a contusion in her “maxillary
area”. However, Gemma continued to experience
abdominal pains and started bleeding two days after the
incident. On August 28, 1981, she was admitted in the
Southern Islands Hospital and was diagnosed, to her
surprise, to have suffered incomplete abortion.
RTC: Convicted Lydia of the complex crime of direct
assault with unintentional abortion.
CA: Vacated the trial court’s judgment. It ruled that Lydia
cannot be held liable for direct assault since Gemma
descended from being a person in authority to a private
individual when, instead of pacifying Lydia or informing
the principal of the matter, she engaged in a fight with
Lydia. Likewise, Lydia’s purpose was not to defy the
authorities but to confront Gemma on the alleged name-
calling of her son. The appellate court also ruled that Lydia
cannot be held liable for unintentional abortion since there
was no evidence that she was aware of Gemma’s
pregnancy at the time of the incident. However, it
declared that Lydia can be held guilty of slight physical
injuries.
SC: Rendered a decision finding Lydia Gelig guilty beyond
reasonable doubt of the crime of direct assault since
Gemma is a person in authority in the performance of her
duty during the attack.
So the fact that Gemma accepted the fight did not strip
her of being a person in authority making Lydia liable for
direct assault.
Q: X attacked the Vice Mayor while the latter was in the
process of making consultations with a group of people
regarding the enactment of the ordinances. X attacked the
VM by slapping him, George was in the meeting and went
to help the VM by pacifying X instead of being pacified X
punched George. (Kay joiners ka man ) What crime or
crimes did X commit?
ANS:
A. With respect to the VM, X committed direct
assault upon a person in authority. He attacked
the VM while he was engaging in the
performance of his duties.
B. With respect to George, X committed direct
assault upon an agent of a person in authority
because the rule is the private person who comes
to the aid of a person in authority automatically
becomes an agent of a person in authority.
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“When your resources are down to nothing, believe that God is up to something =)”
Q: X, a motorist, got mad at police officer Y for accosting
him when he parked at a no parking sign. Y demanded
that X gives him his driver’s license instead of complying
with the lawful order X kicked the police officer then Y
runaway but he was pursued by X and Renz went to the
aid of the policeman by pacifying X but X threw him to the
ground and kicked him. What crime or crimes did X
commit? (Renz was only helping an agent of a person in
authority so what would be the effect? What would the
crime committed against him?)
A. For attacking the policeman while he was engaged in
the performance of his duties, X commits direct assault
upon an agent of a person in authority. For attacking
Renz, X committed the crime of INDIRECT ASSAULT.
Q: During a rainy season, Jose was waiting for a taxicab.
He was finally able to flag down a taxi before he could
enter the taxi though a person opened the right back door
and immediately took his seat. Infuriated, Jose entered
the taxicab and forcibly pushed the man out of the taxi.
The man suffered injuries and it turned out that the
person is a judge. Is Jose liable for direct assault upon a
person in authority? (Merese kang huwesa ka )
A. No, he is not liable for direct assault. Jose did not
know that the person is a judge under the law the
offender must know that the person assaulted was
a person in authority or an agent of a person in
authority as the case may be decides the judge
was not in the performance of his duties when he
was assaulted by reason of such performance.
(Nagasalig man)
When is there QUALIFIED DIRECT ASSAULT?
Direct assault is qualified –
(1) When the assault is committed with a weapon; or
(2) When the offender is a public officer or employee; or
(3) When the offender lays hands upon a person in
authority.
These are the only circumstances that would make direct
assault qualified.
Q: Rolando hates the Mayor for being strict in the
implementation of city ordinance while the Mayor was at
the city market etc etc etc (very simple, very simple).
A: Rolando here is liable for qualified direct assault. Why?
He attacked the Mayor by using a weapon or lays hands
upon a person in authority.
BAR QUESTION
Q: Justin, a law student, was flunked in Criminal Law by
his professor Atty. Buena. Angered by this, Justin waited
for and hit him with a bottle of SMB. Atty. B suffered
injuries and was medically attended for 3 days. Justin was
charged with Direct Assault with Slight Physical Injuries. Is
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the charge proper? Why? If not, what crime? Would your
answer be the same if Atty. B was confined for 12 days?
A. The charge of Direct Assault with Slight Physical
Injuries is not correct. In the crime of direct assault,
physical injuries is absorbed besides under Art. 48 – a
grave or less grave felony cannot be complexed with a
light felony such as slight physical injuries. Justin
committed qualified direct assault upon a person in
authority. He laid hands upon a person in authority by
reason of the performance of his duties.
However, the answer would be different if atty. B was
medically attended for 12 days because such injury is no
longer considered to be slight but less serious physical
injuries under Art. 265. In which case the crime of less
physical injuries is not absorbed but can be complexed
with direct assault.
Article 149. Indirect assaults. - The penalty of prision
correccional in its minimum and medium periods and a
fine not exceeding P500 pesos shall be imposed upon any
person who shall make use of force or intimidation upon
any person coming to the aid of the authorities or their
agents on occasion of the commission of any of the crimes
defined in the next preceding article.
The situation contemplated in Art. 149 is one wherein
direct assault is committed against an agent of a person in
authority.
Ex: Policemen, law enforcers
Again, the situation contemplated in this article is when an
agent of a person in authority is being attacked. The
private individual comes to the aid of a person in authority
and in giving aid, the former is equally or likewise
assaulted. In this case, there are two offended parties,
namely: agent of a person in authority and the private
individual who comes to his aid.
It must be borne in mind that the assistance rendered
must be to an agent of a person in authority for Art. 149
to come into play. The situation is entirely different when
the aid or assistance rendered is to a person in authority.
The private individual in such occasion becomes an agent
of a person in authority and any force or intimidation he
received while coming to the aid of such person in
authority is, for all intents and purposes, considered as
direct assault.
This is the spirit under RA 1978 as enacted and
promulgated.
ACT TO AMEND ARTICLE ONE HUNDRED FIFTY-
TWO OF THE REVISED PENAL CODE, AS
AMENDED.
Section 1. Article one hundred fifty-two of the Revised
Penal Code, as amended by Commonwealth Act
Numbered Five hundred seventy-eight, is further
amended to read as follows:
"Art. 152. Persons in Authority and Agents of Persons in
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Authority who shall be deemed as such. In applying the
provisions of the preceding and other articles of this
Code, any person directly vested with jurisdiction,
whether as an individual or as a member of some court
or governmental corporation, board or commission,
shall be deemed a person in authority. A barrio
lieutenant shall also be deemed a person in authority.
"Any person who by direct provision of law or by
election or by appointment by competent authority, is
charged with the maintenance of public order and the
protection and security of life and property, such as a
barrio vice-lieutenant, barrio councilman and barrio
policeman, and any person who comes to the aid of
persons in authority, shall be deemed an agent of a
person in authority.
"In applying the provisions of Articles one hundred forty-
eight and one hundred fifty-one of this Code, teachers,
professors and persons charged with the supervision of
public or duly recognized private schools, colleges and
universities, shall be deemed persons in authority."
Section 2. This Act shall take effect upon its approval.
Remember that the direct assault must be committed
against the APA for indirect assault to be committed
against the person who aided him.
In short, for indirect assault to be committed, there must
be a direct assault first.
When the offended party is a civilian who aids a person in
authority or an agent of a person in authority, what crime
or crimes are committed?
When the officer being aided is a person in authority, the
crime cannot be indirect assault because he himself
becomes an agent of a person in authority. So therefore if
I am attacked in the presence of helping a person in
authority, that offender will also be liable for direct assault
against me.
But if I am a private individual who come to the aid of an
agent of a person in authority, I do not become an agent
of a person in authority because I am already helping an
agent of a person in authority. The offender will be liable
for indirect assault against me.
RULE:There is no indirect assault when there is no direct
assault.
Example: A police was attacked, I, a civilian, thinking that
I am also a hero, came to his aid. What are the liabilities
of the offender?
Direct assault against the police (APA) & indirect assault
against me who came to the aid of an agent of a person in
authority.
The private individual could be a civilian or a public officer,
who is of course, not a person in authority (?!).
Q: You are the aggressor. I am standing beside the police.
You did not attack the police but attacked me instead. Are
you liable for indirect assault against me?
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A: No. Again, there can be no indirect assault under Art.
149 without first the commission of direct assault. Indirect
assault is committed against a person who comes to the
aid of an APA.
Take note that under Art. 152, as amended, a person who
comes to an aid of a person in authority, he is no longer
considered a civilian but an agent of the person in
authority.
Article 150. Disobedience to summons issued by the
National Assembly, its committees or subcommittees, by
the Constitutional Commissions, its committees,
subcommittees or divisions. - The penalty of arresto
mayor or a fine ranging from two hundred to one
thousand pesos, or both such fine and imprisonment shall
be imposed upon any person who, having been duly
summoned to attend as a witness before the National
Assembly, (Congress), its special or standing committees
and subcommittees, the Constitutional Commissions and
its committees, subcommittees, or divisions, or before any
commission or committee chairman or member authorized
to summon witnesses, refuses, without legal excuse, to
obey such summons, or being present before any such
legislative or constitutional body or official, refuses to be
sworn or placed under affirmation or to answer any legal
inquiry or to produce any books, papers, documents, or
records in his possession, when required by them to do so
in the exercise of their functions. The same penalty shall
be imposed upon any person who shall restrain another
from attending as a witness, or who shall induce
disobedience to a summon or refusal to be sworn by any
such body or official.
There are 5 specific acts punishable under this article. The
act punished is refusal without legal excuse to obey
summons issued by the House of Representatives or
Senate. But now it's already different. When the Senate
would summon a particular Department Secretary to
appear before a legislative inquiry, they will not appear,
they will just invoke executive privilege. In the US, it is
different. They are actually so afraid whenever there is a
senate inquiry but here in the Phil, it is but a media circus.
Not so important. Probably important but we know how
the senators work.
Q: Now what about if it's a Constitutional Commission,
does the law also apply?
A: Yes. Even if you are only from a constitutional body
and you summoned someone to appear before an
inquiry,then the refusal of such person without any legal
excuse constitutes a violation if Art. 150.
Also made punishable under this article is the refusal of a
subject after appearing before a body to take an oath or
affirmation before he testifies. In every inquiry, before the
question and answer starts, the witness has to be placed
under oath. Refusal of which is not allowed because we
cannot bind you on whatever things you are saying in such
investigation because you are not under oath. But the
moment your testimonies are under oath and you start
telling lies, you can be charged with the crime of perjury.
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“When your resources are down to nothing, believe that God is up to something =)”
It may also refer to a refusal of a witness to answer a
legal inquiry or to produce books, papers and/or other
documents.
It can also be in the form of preventing or restraining
another from attending as witness or inducing a witness to
disobey summons or to be placed under oath. Remember
that the law punishes acts against Congress and
Constitutional Commissions and does not include Local
Legislative bodies like the City Council, Provincial Board,
Municipal Council.
Q: If you do not appear in a hearing with the Local
Legislative bodies, is Art. 150 violated?
A: We do not know but there is a ruling by the SC in the
case of Negros Oriental Electric Cooperative vs
Sangguniang Panglungsod ng Dumaguete, et.al
(155 S 421) *read this case daw
SC ruled that the power to punish contempt is not
extended to local legislative bodies. The reason given is
that local legislative bodies are but a creation of law and
therefore for them to exercise the power of contempt
there must be an express grant of the same. The LGC
prevailing at that time did not grant local legislative bodies
the power to issue subpoena to compel attendance of
witnesses and even given the power to punish contempt.
But...
RA 7160, specifically Chapter 2 says on the general
powers and attributes of local government units, the same
it does not provide for the power of Sanguniang Bayan or
City Council to punish for contempt.
The reason is obvious. The power to issue compulsory
processes such as summons and subpoenas under pain of
contempt is by its very nature judicial in consent.
The issue is when you are being summoned by any local
legislative body and you refused appearance to testify, are
you liable for violation under Art. 150?
In the earlier case of Arnault v Balagtas (97 Phl 398),
SC held that the principle that Congress or any of its
bodies has the power to punish recalcitrant witnesses is
founded upon reason and policy. Said power must be
considered implied or incidental to the exercise of
legislative power, or necessary to effectuate said power.
How could a legislative body obtain the knowledge and
information on which to base intended legislation if it
cannot require and compel the disclosure of such
knowledge and information, if it is impotent to punish a
defiance of its power and authority? When the framers of
the Constitution adopted the principle of separation of
powers, making each branch supreme within the realm of
its respective authority, it must have intended each
department's authority to be full and complete,
independently of the other's authority and power. And
how could the authority and power become complete if for
every act of refusal, every act of defiance, every act of
contumacy against it, the legislative body must resort to
the judicial department for the appropriate remedy,
because it is impotent by itself to punish or deal therewith,
with the affronts committed against its authority or
dignity.
So, even in the absence of an express constitutional
provision, the SC sustained the power of Congress to
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punish persons for contempt. Hence, the gray area of
jurisprudence has been opened. It is clear that exercise of
the legislature of its contempt power is a matter of self-
preservation independent of the judiciary. The contempt
power of the judiciary is inherent. Sui generis.
Now, in the case of Negros Oriental Electric Cooperative vs
Sangguniang Panglungsod ng Dumaguete, et.al, the SC
held that the power to punish contempt is not extended to
local legislative bodies. Take note of this because in the
case of Arnault vs Balagtas, the constitutionality of Art.
150 was placed into issue on whether Congress has the
power to punish contempt and the SC said YES because it
is inherent and without it, it cannot further its function as
the legislative branch of the government.
Q: Is it duplicated as far as the local legislative bodies are
concerned?
A: No, as settled in the case of Negros vs Dumaguete. The
reason given is that these local bodies are but creation of
law and therefore, for them to have the contempt power,
there must be an express grant of the same. The creation
of these LGUs only came from a law, not the Constitution.
The LGC prevailing at this time when this Negros case was
decided was BP 337, the predecessor of RA 7160 (the new
LGC of 1991). Under BP 337, it did not grant local
legislative bodies to issue subpoena to compel attendance
of witnessess neither to punish them for contempt.
Meanwhile, RA 7160 is silent on this matter. Chapter 2 of
the said law on the General Powers and Attributes of LGUs
do not provide for the same. In fact, Section 48 on Local
Legislation and Section 50 on the IRR merely enumerate
what the rules or procedures shall provide but nowhere in
the said law was it mentioned or suggested that the local
legislative bodies have the power to issue summons or
subpoenas to compel the attendance of witnesses under
pain of punishment. The reason, according to the SC, is
obvious, the power to issue compulsory processes such as
summons and subpoenas under the pain of contempt is,
by its very nature, judicial in concept. This shall not be
implied in the grant of legislative power. Neither can it
exist as an incident to the exercise of legislative function.
To give in to such would grant powers to local legislative
units which run afoul with the doctrine of separation of
powers. And although Sec. 5 of the LGC provides for
liberal interpretation in favor of the LGUs, the grant of
such power of contempt should be made an exception
because the power to punish operates to diminish
individual rights. Such power in the democratic and
republican state belongs only to the judiciary.
Article 151. Resistance and disobedience to a person in
authority or the agents of such person. - The penalty
ofarresto mayor and a fine not exceeding 500 pesos shall
be imposed upon any person who not being included in
the provisions of the preceding articles shall resist or
seriously disobey any person in authority, or the agents of
such person, while engaged in the performance of official
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duties.
When the disobedience to an agent of a person in
authority is not of a serious nature, the penalty of arresto
menor or a fine ranging from 10 to P100 pesos shall be
imposed upon the offender.
Elements of resistance and serious
disobedience under the 1st par.:
1) A person in authority or his agent is engaged in
the performance of official duty or gives a lawful
order to the offender;
2) The offender resists or seriously disobeys such
person in authority or his agent;
3) That the act of the offender is not included in the
provisions of Articles 148, 149, and 150.
Elements of simple disobedience under the
2nd par.:
1) An agent of a person in authority is engaged in
the performance of official duty or gives a lawful
order to the offender;
2) The offender disobeys such agent of a person in
authority;
3) Such disobedience is not of a serious nature.
The offended party in this case is a public officer - a
PA or an APA. The public officer must be in the
actual performance of his duties at the time the
resistance or disobedience is made by the offender.
The resistance must be serious in order to constitute
the 1st type. If it is not, then it falls on the 2nd type.
What is contemplated by the law is the failure to
comply to the verbal orders issued by the public
officer who is in the actual performance of his duties.
In the old case of US vs Ramayrat, the SC held that
the violation does not refer to resistance or
disobedience to the the legal provisions of the law
nor judicial decisions defining or restricting their
rights.
Examples of Art. 151
1) A police officer prohibits people from entering a
house where a crime has been committed. SOCO is
there conducting an investigation. The police already
put up a yellow tape or cord which says "Do not
cross. Police line." You already know the purpose of
such prohibition and that is to preserve the crime
scene but you went there and touched some things,
took pictures of the place for you to upload on your
FB. (Judge A. was not able to finish this. Nag
sidetrack sya about her experience in the private
practice before. :p)
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2) There was a labor strike and the strikers went to
the road preventing the free flow of traffic. They
were ordered by the policemen to pave the road way
but they disobeyed and resisted the order. The SC
held that they were guilty of the crime of resistance
and disobedience to a person in authority.
Distinctions between resistance and disobedience
from direct assault:
1) In resistance, the public officer (PA or APA)
must be in the actual performance of his
duty; in direct assault, the PA or APA must be
engaged in the performance of his official
duty or that he is assaulted by reason
thereof.
2) In resistance, this is only committed in
resisting or seriously disobeying a PA or an
APA; in direct assault (the 2nd type and the
most common) is committed in 4 ways: by
attacking, by employing force, by seriously
intimidating, and by resisting a PA or his
agent.
3) In both resistance of a PA or his agent and
direct assault by resisting a PA or his agent,
there is force employed but the use of force
in resistance is not so serious as there is no
manifest intention to defy the law and the
officers enforcing it.
Q: Upon serving a warrant of arrest, the person to be
arrested resisted by clinging to a coconut tree saying
that he will not go with the authorities not until they
uproot the coconut tree. Can this be considered
resistance under Art. 151?
Judge A: I do not have the answer too. I cannot find
any jurisprudence that will support any answer. I'll
leave it to your imagination. Let's see how you'll
defend your stand during the examination. So that by
the time I read your notebooks, I will have an
answer to this question too.
Article 152. Persons in authority and agents of
persons in authority; Who shall be deemed as such. -
In applying the provisions of the preceding and other
articles of this Code, any person directly vested with
jurisdiction, whether as an individual or as a member
of some court or governmental corporation, board, or
commission, shall be deemed a person in authority. A
barrio captain and a barangay chairman shall also be
deemed a person in authority.
A person who, by direct provision of law or by
election or by appointment by competent authority,
is charged with the maintenance of public order and
the protection and security of life and property, such
as a barrio councilman, barrio policeman and
barangay leader and any person who comes to the
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“When your resources are down to nothing, believe that God is up to something =)”
aid of persons in authority, shall be deemed an agent
of a person in authority.
In applying the provisions of Articles 148 and 151 of
this Code, teachers, professors and persons charged
with the supervision of public or duly recognized
private schools, colleges and universities, and
lawyers in the actual performance of their
professional duties or on the occasion of such
performance, shall be deemed persons in authority.
(As amended by PD No. 299, Sept. 19, 1973 and
Batas Pambansa Blg. 873, June 12, 1985).
Examples of persons in authority:
Barangay Chairman, Mayor, Barangay Captain
MTC, RTC Judges
Teachers, Heads of schools
The legal significance of knowing the difference
between a PA and an APA comes into play when they
are assaulted in the performance of their duties.
When the offender lays hands upon a person in
authority, the penalty is higher because it is a
qualifying aggravating circumstance. This is not so
when the offended party is merely an APA. This is so
since the APA is only enjoying a delegated power.
What is delegated cannot further be delegated.
Any assault committed against such person is direct
assault and not indirect assault but if the person
assaulted is an agent of a person in authority and a
private individual comes into his rescue and in the
process he is also assaulted while giving resistance
(Aaaaaahhhhh!) the crime committed would be
indirect assault.
Judge A: This is discriminatory. In the first place,
they are all public officers. But this is what the law
says, there's nothing we can do.
Castillo v. PP, January 30, 2012
Pursuant to a confidential information that petitioner
was engaged in selling shabu, police officers headed
by SPO3 Bienvenido Masnayon, after conducting
surveillance and test-buy operation at the house of
petitioner, secured a search warrant from the RTC
and around 3 o'clock in the afternoon of September
13, 1997, the same police operatives went to Gil
Tudtud St., Mabolo, Cebu City to serve the search
warrant to petitioner.
They all went back to the residence of the petitioner
and closely guarded the place where the subject ran
for cover. SPO3 Masnayon requested his men to get
a barangay tanod and a few minutes thereafter, his
men returned with two barangay tanods.
In the presence of the barangay tanod, Nelson
Gonzalado, and the elder sister of petitioner named
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Dolly del Castillo, searched the house of petitioner
including the nipa hut where the petitioner allegedly
ran for cover. His men who searched the residence of
the petitioner found nothing, but one of
the barangay tanods was able to confiscate from the
nipa hut several articles, including four (4) plastic
packs containing white crystalline substance.
Consequently, the articles that were confiscated were
sent to the PNP Crime Laboratory for examination.
The contents of the four (4) heat- sealed transparent
plastic packs were subjected to laboratory
examination, the result of which proved positive for
the presence of methamphetamine
hydrochloride, or shabu.
Issue: What is the category of a Brgy. Tanod? Are
they persons in authority or agents of a person in
authority?
SC: Having been established that the assistance of
the barangay tanods was sought by the police
authorities who effected the searched warrant, the
same barangay tanods therefore acted as agents of
persons in authority. Article 152 of the Revised Penal
Code defines persons in authority and agents of
persons in authority as:
x x x any person directly vested with jurisdiction,
whether as an individual or as a member of some
court or governmental corporation, board or
commission, shall be deemed a person in authority. A
barangay captain and a barangay chairman shall also
be deemed a person in authority.
A person who, by direct provision of law or by
election or by appointment by competent authority,
is charged with the maintenance of public
order and the protection and security of life
and property, such as barrio councilman,
barrio policeman and barangay leader, and any
person who comes to the aid of persons in
authority, shall be deemed an agent of a
person in authority.
The Local Government Code also contains a provision
which describes the function of a barangay tanod as
an agent of persons in authority. Section 388 of the
Local Government Code reads:
SEC. 388. Persons in Authority. - For purposes of the
Revised Penal Code, the punong barangay,
sangguniang barangay members, and members of
the lupong tagapamayapa in each barangay shall be
deemed as persons in authority in their jurisdictions,
while other barangay officials and members
who may be designated by law or ordinance
and charged with the maintenance of public
order, protection and security of life and
property, or the maintenance of a desirable
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“When your resources are down to nothing, believe that God is up to something =)”
and balanced environment, and any barangay
member who comes to the aid of persons in
authority, shall be deemed agents of persons
in authority.
By virtue of the above provisions, the police officers,
as well as the barangay tanods were acting as agents
of a person in authority during the conduct of the
search. Thus, the search conducted was
unreasonable and the confiscated items are
inadmissible in evidence. Assuming ex gratia
argumenti that the barangay tanod who found the
confiscated items is considered a private individual,
thus, making the same items admissible in evidence,
petitioner's third argument that the prosecution failed
to establish constructive possession of the regulated
drugs seized, would still be meritorious.
Article 153. Tumults and other disturbance of
public orders; Tumultuous disturbance or
interruption liable to cause disturbance. - The penalty
of arresto mayor in its medium period to prision
correccional in its minimum period and a fine not
exceeding 1,000 pesos shall be imposed upon any
person who shall cause any serious disturbance in a
public place, office, or establishment, or shall
interrupt or disturb public performances, functions or
gatherings, or peaceful meetings, if the act is not
included in the provisions of Articles 131 and 132.
The penalty next higher in degree shall be imposed
upon persons causing any disturbance or interruption
of a tumultuous character.
The disturbance or interruption shall be deemed to
be tumultuous if caused by more than three persons
who are armed or provided with means of violence.
The penalty of arresto mayor shall be imposed upon
any person who in any meeting, association, or
public place, shall make any outcry tending to incite
rebellion or sedition or in such place shall display
placards or emblems which provoke a disturbance of
the public order.
The penalty of arresto menor and a fine not to
exceed P200 pesos shall be imposed upon these
persons who in violation of the provisions contained
in the last clause of Article 85, shall bury with pomp
the body of a person who has been legally executed.
There are 5 specific acts that are punishable here.
They are:
1) Causing any serious disturbance in a public place,
office or establishment;
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2) Interrupting or disturbing performances,
functions or gatherings, or peaceful meetings, if
the act is not included in Arts. 131 and 132;
3) Making an outcry tending to incite rebellion or
sedition in any meeting, association or public
place;
4) Displaying placards or emblems which provoke a
disturbance of public order in such place;
5) Burying with pomp the body of a person who has
been legally executed.
Q: When does a disturbance become tumultuous?
A: It becomes tumultuous when the disturbance is
caused by more than three persons who are armed
or a band which is considered as an aggravating
circumstance under Art. 14 or when the disturbance
is caused by means of violence. The essence is
creating public disorder. The crime is brought about
by creating series of disturbance in public places,
buildings or even in private places where public
functions or performances are being held. It must
not fall under Art. 131 (Prohibition, interruption, and
dissolution of peaceful meetings) and Art. 132
(Interruption of religious worship). In the act of
making an outcry during speech intending to incite
rebellion or sedition, this situation must be
distinguished from inciting to rebellion or sedition. If
the speaker even before he delivered his speech
already had the criminal intent to incite the listeners
to rise to sedition or rebellion then the crime would
be inciting to sedition or rebellion. However, if the
offender had no such criminal intent but in the
course of his speech he got emotional, temper went
high and ended up inciting the audience to rise in
sedition against the government, then, the crime
would be disturbance of public order. Disturbance of
public order is tumultuous and penalty is increased if
it is brought about by armed men or provided with
means of violence. Take note that the term 'armed'
does not only pertain to firearms but also to weapons
which can cause great injuries. It is also a public
disturbance if a convict, legally executed and put to
death, shall be buried with pomp. Example, if after
the death of Leo Echegaray gi-prusisyon iyang
picture in the streets bringing balloons as if he is a
martyr or a hero even if he is a rapist at that, such
act will constitute a violation of this article.
Article 154. Unlawful use of means of publication
and unlawful utterances. - The penalty of arresto
mayor and a fine ranging from P200 to P1,000 pesos
shall be imposed upon:
1. Any person who by means of printing,
lithography, or any other means of
publication shall publish or cause to be
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published as news any false news which may
endanger the public order, or cause damage
to the interest or credit of the State;
2. Any person who by the same means, or by
words, utterances or speeches shall
encourage disobedience to the law or to the
constituted authorities or praise, justify, or
extol any act punished by law;
3. Any person who shall maliciously publish or
cause to be published any official resolution
or document without proper authority, or
before they have been published officially; or
4. Any person who shall print, publish, or
distribute or cause to be printed, published,
or distributed books, pamphlets, periodicals,
or leaflets which do not bear the real printer's
name, or which are classified as anonymous.
There are 4 specific acts made punishable under this
article:
1) Publishing or causing to publish, etc.
2) By discouraging disobedience to the law
3) By maliciously publishing or causing to publish
4) By printing and causing to publish publications
anonymously
The purpose of the law is to punish those who are
spreading false information which tends to cause
panic, confusion, distrust, and divide people in their
loyalty to the duly constituted authorities. To protect
public interest, any person who publishes false
information and does not use his real name taking
refuge under the use of a fictitious name will be held
criminally laible under Art. 154. The reason is that,
more often, when an author uses a fictitious name,
such publication is to slander another person or such
news is false with only one purpose and that is, to
mislead the public. This also covers those who
knowingly publishes official acts or documents which
are not officially promulgated.
Example: Somebody has already published a
declaration of martial law prior to September 21,
1972. This is a clear violation of Art. 154.
Article 155. Alarms and scandals. - The penalty
of arresto menor or a fine not exceeding P200 pesos
shall be imposed upon:
1. Any person who within any town or public
place, shall discharge any firearm, rocket,
firecracker, or other explosives calculated to
cause alarm or danger;
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2. Any person who shall instigate or take an
active part in any charivari or other disorderly
meeting offensive to another or prejudicial to
public tranquility;
3. Any person who, while wandering about at
night or while engaged in any other nocturnal
amusements, shall disturb the public peace;
or
4. Any person who, while intoxicated or
otherwise, shall cause any disturbance or
scandal in public places, provided that the
circumstances of the case shall not make the
provisions of Article 153 applicable.
There are 4 specific acts specified.
1) Discharging any firearm, rocket, firecracker, or
other explosives within any town or public place,
calculated to cause (which produces) alarm or
danger;
2) Instigating or taking an active part in any
charivari or other disorderly meeting offensive to
another or prejudicial to public tranquillity;
3) Disturbing the public peace while wandering
about at night or while engaged in any other
nocturnal amusements;
4) Causing any disturbance or scandal in public
places while intoxicated or otherwise, provided
Art. 153 is not applicable.
The term used by law is "discharge". That is,
discharge of firearm in a public place. When a person
discharges a firearm, we do not immediately say that
he is liable under Art. 155. We have to consider the
circumstance. There are other provisions in the law
that we have to consider. If the firearm is discharged
and it was not pointed to any particular person, yes,
alarms and scandals is committed. But if a firearm
was discharged and was pointed to a particular
person but the offender had no intention whatsoever
to kill the person, the crime committed is illegal
discharge of firearm under Art. 254. However, if the
firearm was discharged, was pointed to a particular
person and the offender had in mind the intention to
kill the offended party, the crime committed can be
classified as attempted or frustrated homicide as the
case may be.
In the case of Araneta vs CA, it was held that if a
person is shut and is wounded, the crime is
automatically attempted or frustrated homicide as
the case may be. Intent to kill is inherent in the use
of a deadly weapon.
The crime alarms and scandals is only one crime.
Scandal here does not refer to moral scandal (this
type of scandal is grave scandal under Art. 200). The
essence of the crime under this article is the
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disturbance of public order where the circumstance
at that time render the act as offensive to the
prevailing tranquility.
Now, what is charivari?
Charivari takes place when the offender actually
disturbs the peace by cans, tins, etc. This brings
about alarms and scandals. Except of course during
Christmas or New Year when everybody's doing such.
Example: A person does charivari by banging kettles
and tins in the street at 11 in the evening.
Q: What if that person does the same specifically in
your house, at your window, is alarms and scandals
committed?
A: No. What he committed is unjust vexation.
Creating noise and annoyance may bring about this
offense. However, just like what I said earlier, it
could also be unjust vexation.
(Mangluwa iyahang silingan story)
Article 156. Delivery of prisoners from jails. - The
penalty of arresto mayor in its maximum period of
prision correccional in its minimum period shall be
imposed upon any person who shall remove from
any jail or penal establishment any person confined
therein or shall help the escape of such person, by
means of violence, intimidation, or bribery. If other
means are used, the penalty of arresto mayor shall
be imposed.
If the escape of the prisoner shall take place outside
of said establishments by taking the guards by
surprise, the same penalties shall be imposed in their
minimum period.
Elements:
1) That there is a person confined in a jail or penal
establishment;
2) That the offender removes therefrom such
person, or helps the escape of such person.
As what we have learned in Crim Law 1, there are 2
kinds of prisoners (right?):
1) Detention Prisoner (Art. 29)
2) Convicted Prisoner
Who may commit a crime under Art. 156?
A private person may commit this crime or a jail
guard or the warden.
What is the crime committed if a person removes a
person from jail? You have to qualify it. If the
offender is the jail guard or jail warden who has the
custody of the person, he commits infidelity in the
custody of prisoners. If the person who removed the
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person confined in jail is not a custodian, he commits
the crime of delivery of prisoner’s from jail.
Example:
Rodrigo is confined in jail. Patricio a friend of Rodrigo
approached Mauricio, the jail guard, and offered him
Php 20,000 in exchange for the freedom of Rodrigo.
Mauricio left the cell of Rodrigo closed but unlocked.
In the middle of the night, Rodrigo noticed that the
cell was not locked. Rodrigo took advantage and
escaped. What will be the criminal liability of Patricio,
of Mauricio and of Rodrigo?
A. Patricio is liable for corruption of public officer
under Art. 212 because he bribed the jail guard,
Mauricio, for allowing the escape of Rodrigo. He
is also liable for delivery of prisoner from jail
because he caused or helped in the escape of
Rodrigo.
Mauricio is liable for direct bribery under Art. 210
because he received something in consideration
of a performance of an act amounting to a crime.
He is also liable for infidelity in the custody of
prisoners under Art. 223 because he consented in
the escape of the prisoner under his charge.
Rodrigo’s liability depends on the following:
If he is a convict serving sentence, then he is
liable for evasion of service of sentence under
Art. 157.
But if he is only a detention prisoner, the answer
is it depends. If he knew of the plan, then he is
liable for delivery of prisoner from jail as principal
by indispensable cooperation. If he is not aware
of the plan, he is not liable because there is no
law punishing that act.
Read: Tanega vs Masakayan (Feb 28, 1967)
It is an old case but it is always included by the SC in
its decision in cases involving Art. 156.
This doctrine was reiterated by the SC in the case of
Pangan vs Gatbalite (January 21, 2005). It reiterated
the ruling in the Tanega case. The Tanega ruling is
still controlling right now.
Remember:
"You have the right to exert your right!"- Judge A.
Art. 156. Delivery of prisoners from jails. — The
penalty of arresto mayor in its maximum period of
prision correccional in its minimum period shall be
imposed upon any person who shall remove from
any jail or penal establishment any person confined
therein or shall help the escape of such person, by
means of violence, intimidation, or bribery. If other
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means are used, the penalty of arresto mayor shall
be imposed.
If the escape of the prisoner shall take place outside
of said establishments by taking the guards by
surprise, the same penalties shall be imposed in their
minimum period.
…………only convicted as a light felony. Like for
example, if the convicted is to suffer light penalty, let
us say grave oral defamation, the MTC imposed a
penalty of 6 months of arresto mayor, asa man na
nimo ibutang? Asa man na? Ah didto ko sa munti.
Hilom. Didto lang ka sa municipal jail. In the case of
municipality, you will only be there in the
municipality jail. Or if it is a city case, then it is in the
city jail. In fact, the rule is if you are tried in the RTC
and the penalty imposed does not exceed 2 years
you are going to have a “vacation” only in the city
jail. So the rule is if it exceeds 2 years, dira na ka sa
penal colony.
Now, take note, the removal of the prisoner from
confinement as mentioned in article 156 may be
done without disposal or with disposal. Now if the
prisoner who was removed from jail is a detention
prisoner, supposing A is a jail warden and A entered
into an agreement with B for the payment of let us
say P5,000 for person C to be released. Without C’s
knowledge, B enetered into agreement with the jail
warden that upon payment of 5k, A would unlock the
gate so that C can escape.
Question: what are the liabilities here of A, B or C?
It has to be distinguished whether C here is a
detention or convicted prisoner.
Supposing C is a detention prisoner, A has a criminal
liability for infidelity in the custody of prisoner, he is
also liable for bribery. B is liable for crime under
article 156, at the same time, he may also be liable
under article 212. What is article 212? Corruption of
public officers.
If C here is a convicted prisoner, he commits
evasion of service under article 157. If C is
merely a detention prisoner, he commits no
crime. So take a look at 156, “shall be imposed
at any person who shall remove from any jail
or penal establishment any person confined
herewith or shall help the escape of such
person”. Remember that.
Art. 157. Evasion of service of sentence. — The
penalty of prision correccional in its medium and
maximum periods shall be imposed upon any convict
who shall evade service of his sentence by escaping
during the term of his imprisonment by reason of
final judgment. However, if such evasion or escape
shall have taken place by means of unlawful entry,
by breaking doors, windows, gates, walls, roofs, or
floors, or by using picklocks, false keys, deceit,
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violence or intimidation, or through connivance with
other convicts or employees of the penal institution,
the penalty shall be prision correccional in its
maximum period.
Let us go to Article 157:
What are the elements of article 157?
1) That the offender is a convict by final
judgment
2) That he is serving his sentence which consists
in deprivation of liberty
3) That he evades the service of his sentence by
escaping during the term of his sentence.
What are the factors that would qualify the
imposition of a higher crime?
1. If it is by means of an unlawful entry
2. By breaking doors, windows, gates, walls,
roofs or floors
3. By using picklocks, false keys, disguise,
deceit, violence or intimidation or
4. Through connivance with other convicts or
employees of the penal institution
Now evasion of service of sentence, by the way, is
consist of 3 forms
1. By simply leaving escaping from the penal
establishment that is being defined under
article 157
2. The failure to return of the convicted prisoner
within 48 hours after having left the penal
establishment because of a calamity,
conflagration, etcetera
3. Violation of the condition of the conditional
pardon which is defined and penalized under
article 159
When you say evasion of service of sentence, is it
necessary that he should be confined at the penal
establishment?
When you say evasion of service, the offender here
is a prisoner. And what kind of a prisoner is he? He is
a convicted prisoner. A detention prisoner does not
commit evasion under 157.
Now let us state the case of Tanega vs Masakayan
decided on Feb 28, 1967 and also reiterated in the
case of Pangan vs Gatbalite.
The accused here was convicted of slander in the
City Court of Quezon City. Now after the conviction,
she appealed to the RTC, the old name of which is
Court of First Instance. She appealed her conviction
to the RTC and she was sentenced to 20 days of
arresto menor, to indemnify the offended party, Pilar
B. Julio, in the sum of P100.00, with the
corresponding subsidiary imprisonment, and to pay
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the costs. She was unsatisfied with the decision of
RTC and what she did is that she went to the CA.
The CA declined to review on certiorari and the CA
threw the case back to the RTC.
Back to the Court of First Instance of Quezon City,
said court, on January 11, 1965, directed that
execution of the sentence be set for January 27,
1965. On petitioner's motion, execution was deferred
to February 12, 1965, at 8:30 a.m. At the appointed
day and hour, petitioner failed to show up. This
prompted the respondent judge, on February 15,
1965, to issue a warrant for her arrest, and on March
23, 1965 an alias warrant of arrest. Petitioner was
never arrested.
Then, on December 10, 1966, petitioner, by counsel,
moved to quash the warrants of arrest of February
15, 1965 and March 23, 1965. Petitioner's ground:
Penalty has prescribed.
On December 19, 1966, the respondent judge ruled
that "the penalty imposed upon the accused has to
be served", rejected the plea of prescription of
penalty and, instead, directed the issuance of
another alias warrant of arrest. Hence, the present
petition.
What have you learned in Criminal Law 1? What is
the classification of arresto menor?
It is a light penalty. Remember the rule under article
92, light penalties prescribe in one year. Sabi ni
accuse, wala na, prescribe na.
Article 93 provides that, “The period of prescription
of penalties shall commence to run from the date
when the culprit should evade the service of his
sentence, and it shall be interrupted if the defendant
should give himself up, be captured, should go to
some foreign country with which this Government
has no extradition treaty, or should commit another
crime before the expiration of the period of
prescription.”
Now what then is the concept of evasion of service of
sentence under article 157
Now this is what the SC held.
Reason dictates that one can escape only after he
has started service of sentence. Even under the old
law, Viada emphasizes, where the penalty consists of
imprisonment, prescription shall only begin to run
when he escapes from confinement.
So remember here, the accused here never served
her sentence.
We, therefore, rule that for prescription of penalty of
imprisonment imposed by final sentence to
commence to run, the culprit should escape during
the term of such imprisonment.
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Adverting to the facts, we have here the case of a
convict who — sentenced to imprisonment by final
judgment — was thereafter never placed in
confinement. Prescription of penalty, then, does not
run in her favor.
The prevailing nature of the crime, it cannot be
committed if the prisoner involved is a detention
prisoner. By the very nature of the crime, dili sya ma-
involve sa detention prisoner. Going back to the case
of Tanega, the ruling of the court if very clear, for
one to invoke prescription of penal case, the evasion
of service of sentence under article 157 presupposes
that you have been in confinement and while in
confinement, you have evaded your sentence. That
same principle was reiterated in the case of Pangan
vs Gatbalite.
Now what about if the convicted person was never
placed in prison because the penalty imposed is only
destierro?
As you have learned in your Crim 1, destierro consist
of deprivation of your liberty to enter into a particular
radius. In what crimes does the court authorized to
impose destierro? ADULTERY. Also article 247
Art. 247. Death or physical injuries inflicted under
exceptional circumstances. — Any legally married
person who having surprised his spouse in the act of
committing sexual intercourse with another person,
shall kill any of them or both of them in the act or
immediately thereafter, or shall inflict upon them any
serious physical injury, shall suffer the penalty of
destierro.
Actually the penalty of destierro is meant to protect
you. Now if it is imposed to you, then you are not
allowed to enter into a specific area. Once you
entered that area, then that is evasion of sentence.
Now if you violated the evasion of service of
sentence, what then would be your sentence? So you
entered the place which you are prohibited to enter,
what then would be your penalty?
DESTIERRO also. Dili pwede na imong original
sentence destierro, unya ni-violate ka tapos ang
penalty i-impose sa imo kay imprisonment. It cannot
be done. If it applies to persons convicted by final
judgment, the penalty is destierro. the SC declared
that under article 157, evasion of service of sentence
is silent as to the matter, nonetheless, it should be
understood that if one is convicted for evading
service of sentence and the information alleges
transgression of the penalty of destierro, which does
not actually involve deprivation of liberty but involves
restraint of liberty and the accused is found guilty of
such transgression. The penalty to be imposed
against the offender should not be deprivation of
liberty but only restraint of liberty. Meaning, destierro
also. The reason advanced by the SC is that
imprisonment, no matter how minimal, would be
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greater than destierro. in a way, what the SC is
saying is that the spring can never rise above its
source. That is the ruling in People vs De leon(?)
which iscited in your book.
Art. 158. Evasion of service of sentence on the
occasion of disorder, conflagrations, earthquakes, or
other calamities. — A convict who shall evade the
service of his sentence, by leaving the penal
institution where he shall have been confined, on the
occasion of disorder resulting from a conflagration,
earthquake, explosion, or similar catastrophe, or
during a mutiny in which he has not participated,
shall suffer an increase of one-fifth of the time still
remaining to be served under the original sentence,
which in no case shall exceed six months, if he shall
fail to give himself up to the authorities within forty-
eight hours following the issuance of a proclamation
by the Chief Executive announcing the passing away
of such calamity.
Convicts who, under the circumstances mentioned in
the preceding paragraph, shall give themselves up to
the authorities within the above mentioned period of
48 hours, shall be entitled to the deduction provided
in Article 98.
Alright, so this is no longer new to you, no? We have
discussed this partly under article 98. Now, what are
the elements for the crime?
1. The offender is a convict by final judgment,
who is confined in a penal institution.
2. That there is disorder, resulting from a)
conflagration b) earthquake c) explosion d)
similar catastrophe or e) mutiny in which he
has not participated.
3. That the offender evades the service of his
sentence by leaving the penal institution
where he is confined, on the occasion of such
disorder or during mutiny.
4. That the offender fails to give himself up to
the authorities within 48 hours following the
issuance of a proclamation by the Chief
Executive announcing the passing away of
such calamity.
Take Note: For such an event to be considered as
calamity there must be a declaration first by the
President that such is a calamity. It must issue a
proclamation to the effect that the calamity is over.
Without this, hindi pwede. Now, if the events
mentioned can be considered calamity, then there is
a need for the President to make such
announcement. Absent such announcement, even if
the prisoner will return in the penal institution where
he was confined, the same is of no moment. As in
the meantime, he is in violation of article 157
already.
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Now, take note that under article 158, the event is a
recognized calamity. As I said, there must be a
declaration. Now, in such event of calamity, the
prisoner is required to return within 48 hours from
the time the President declares that the state of
calamity is over. So tapos na, balik na ako. Failure to
surrender, article 158 will come into place.
Now, if the convicted prisoner returns, there is a
reward. The reward is that he is entitled for
allowance of good behaviour based on the original
penalty upon him or a reduced penalty of 1/5.
Special time allowance under Art. 98 of the RPC.
Now what if he returns only after 48 hours? Can he
also be entitled to the reduction of 1/5?
No. if he returns only after 48 hours, instead of
reducing the penalty by 1/5, the prisoner’s sentence
shall be increased by 1/5 but the basis will not be the
original sentence but only for the remaining
sentence. But in no case shall it exceed 6 months.
Example:
Typhoon Ondoy lashed its fury in Northern Luzon. X,
a prisoner at the Baguio City Jail, escaped and he
was arrested after a few days. There was no
proclamation at the passing of the calamity. He was
charged with evasion of service of sentence in the
occasion of a calamity. Is the charge correct?
A. No, he was arrested and did not return. Besides,
there is no announcement of the passing of the
calamity. He is liable for evasion of service of
sentence under Art. 157 and not under Art. 158.
The crime of evasion of service may be committed
even if the service of sentence is only Destierro and
this is committed when the convict sentenced with
destierro enter the prohibited places or come within
the prohibited radius.
Now if the sentence violated is destierro, the penalty
upon the convict is to be said by way of destierro
also not imprisonment. This is because the penalty of
evasion cannot be more severe than the penalty
evaded.
RA 10592, amending Art. 98 what does it provide?
Section 4. Article 98 of the same Act is hereby
further amended to read as follows:
"ART. 98. Special time allowance for loyalty. –
A deduction of one fifth of the period of his
sentence shall be granted to any prisoner
who, having evaded his preventive
imprisonment or the service of his sentence
under the circumstances mentioned in Article
158 of this Code, gives himself up to the
authorities within 48 hours following the
issuance of a proclamation announcing the
passing away of the calamity or catastrophe
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referred to in said article. A deduction of two-
fifths of the period of his sentence shall be
granted in case said prisoner chose to stay in
the place of his confinement notwithstanding
the existence of a calamity or catastrophe
enumerated in Article 158 of this Code.
"This Article shall apply to any prisoner
whether undergoing preventive imprisonment
or serving sentence."
Now, suppose the offender does not escape during a
calamity or conflagration. So he remains to be loyal.
He tied himself to a post because he did not want to
offend the government. Would you be entitled to
allowance of good behavior? NO. In the old case of
Lozadas vs Senas (?) cited in your book, 78 Phil 226,
“the SC held that such prisoner is not entitled to the
benefit provided by the law simply because he did
not escape.”
The law is absurd. The point of the SC there is you
missed the thrill of escaping (LOL).
Art. 159. Other cases of evasion of service of
sentence. — The penalty of prision correccional in its
minimum period shall be imposed upon the convict
who, having been granted conditional pardon by the
Chief Executive, shall violate any of the conditions of
such pardon. However, if the penalty remitted by the
granting of such pardon be higher than six years, the
convict shall then suffer the unexpired portion of his
original sentence.
These are what we call violation of the conditional
pardon.
Now, what are the elements?
1) That the offender was a convict
2) That he was granted a conditional pardon by
the Chief Executive
3) That he violated any of the conditions of such
pardon
Remember that violation of conditional pardon
constitutes evasion of service of sentence.
Conditional pardon is a covenant wherein the
convicted prisoner enters it with the government. It
is a silent contract between the convict and the Chief
Executive. It is in writing and to be effective it must
be accepted in writing by the convict. If he does not
accept then, there is no contract. If he is released
without his conformity to the conditional pardon, the
pardonee shall not be liable for evasion of sentence.
So remember, in the study of criminal law, there are
several kinds of pardon. These are absolute pardon
under article 89 and conditional pardon with or
without consent of the party. Are there any instances
that the pardonee was granted conditional pardon
even if he did not accept it? YES. Although it’s a
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strong discussion that once a pardonee conceived,
accede (?) that he be released from the penal
institution where he is confined, there is an implied
acceptance of the conditions of the pardon.
However, I have read a ruling of the SC saying that
conditions in a pardon making an obligation on the
part of the pardonee should be expressly accepted
by the party for it to be valid. That is the rule.
Now, in the violation of conditional pardon, as a rule,
the violation will amount this crime only if the
condition is violated during the remaining period of
the sentence. As a rule, if the condition of the pardon
is violated and the remaining unserved portion of the
sentence has already lapsed, there will be no more
criminal liability for the violation. However, the
convict may be required to serve the unserved
portion of the sentence and he is to continue serving
the original penalty. Now, the administrative liability
of the convict under the conditional pardon is
different and has nothing to do with the criminal
liability under article 159 in the event that the
condition of the pardon has been violated.
The issue here is w/n the violation of conditional
pardon a substantive offense?
Well, we have to make a qualification. There are two
situations contemplated under article 159, by the
way.
1) There is a penalty of prision correccional for
the violation of the conditional pardon.
2) There is no new penalty imposed for the
violation of the conditional pardon, instead,
the convict will be required to serve the
unserved portion of the sentence.
Now if the remitted portion of the sentence is less
than 6 years or up to 6 years, there is an imposition
of prision correccional as cited in the first paragraph,
first sentence of this provision. Hence, we can say
that if that circumstance will arise, then the violation
of the conditional pardon becomes a substantive
offense. Why? Because once you violated a
conditional pardon, your penalty will be prision
correccional. But if the remitted portion of the
sentence exceeds 6 years, the violation of the
conditional pardon is not substantive because no new
penalty is imposed. In other words, you have to
make a qualification ha.
So, let us say, you are an offender and you accepted
the conditional pardon. The remaining portion when
you were pardoned conditionally is 5 years. So out
na ka but somehow, somewhere, you violated the
conditions of the pardon. What will happen to you?
Of course, you will be criminally charged. Dili
automatic na balik ka ha. Tapos file-an taka under
article 159. NO. It should be a formal information
charging you for the violation of article 159. And
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once it has been filed the penalty would be prision
correccional minimum. That becomes a substantive
offense.
Now what if tapos na ang remaining portion but you
just violated the condition of the pardon, what will
happen? Under the second sentence of article 159,
you are going to serve the remaining portion. So will
you still be liable under article 159? Criminally, no
more but administratively, yes. Because of your
violation of the conditions of your pardon, you are
going to suffer administratively. And that is by
serving the unexpired portion. Whereas, if you
violated the conditions within the bail period, not
only will you be serving the remaining portion but
also, you will be criminally liable of prision
correccional. Dili ka pwede na prision correccional na
lang.
The second sentence of this article provides that
once you have committed the violation of the
conditional pardon AFTER when the violation of the
condition constitutes the evasion of service of
sentence,even though committed beyond the
remaining period of the sentence. That is the rule.
(Cha: Transcribed this in toto. Mao jud na giingon ni
maam. )
This is when the conditional pardon expressly
provides the intention to make the condition
perpetual even beyond the unserved portion of the
sentence. In such a case, the convict may be
required to serve the unserved portion of the
sentence even though the violation has taken place
when the sentence has already lapsed. That is the
distinction of the two sentences under article 159.
Now, in order that the conditions of the pardon may
be violated, it is a condition that the pardonee
receive the conditional pardon. Now if he is released
without conformity to the conditional pardon, so
there is no express acceptance of the pardon, will he
be liable under article 159? NO. For one to be liable
for any of the conditions of the pardon, it must be so
that the pardonee expressly accepted the pardon
because these conditions in the pardon are
obligations upon him.
Now article 159 is a distinct felony. It is a substantive
crime. For one to be liable or suffer the consequence
of the violation under art 159 the prisoner must be
formally charged in court, he may be entitled to a
court hearing (due process). Only after final
judgment has been rendered can he suffer the
penalty prescribed under art 159. Kindly read the
case of Gonzales vs Torres et al 152 SCRA 292.
Art. 160. Commission of another crime during service
of penalty imposed for another offense; Penalty. —
Besides the provisions of Rule 5 of Article 62, any
person who shall commit a felony after having been
convicted by final judgment, before beginning to
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serve such sentence, or while serving the same, shall
be punished by the maximum period of the penalty
prescribed by law for the new felony.
Any convict of the class referred to in this article,
who is not a habitual criminal, shall be pardoned at
the age of seventy years if he shall have already
served out his original sentence, or when he shall
complete it after reaching the said age, unless by
reason of his conduct or other circumstances he shall
not be worthy of such clemency.
We are now in Quasi-Recidivism.
Elements:
1) That the offender was already convicted by final
judgment of one offense.
2) That he committed a new felony before
beginning to serve such sentence or while serving
the same.
This article should be taken with what you have
learned in criminal 1 under article 14 on the different
types of criminal repetition. These are recidivism,
habituality, habitual delinquency and quasi-
recidivism.
As a review, when one is convicted of a crime and
recidivism was presented as a generic aggravating
circumstance, his notoriety is announced by calling
him a recidivist. If it is under habitual delinquency,
we call him a habitual criminal. If the offender is
convicted a third time or oftener for the crimes of
falsification, estafa, robbery, serious physical injuries,
we call him a habitual delinquent. In quasi-
recidivism, the offender is a convicted prisoner by
final judgment of a felony or offense, and commits
another felony before beginning to serve the
sentence or while serving his sentence. If found
guilty, and quasi-recidivism is appreciated, we call
him a quasi-recidivist under art 160.
Is Art. 160 a crime in itself?
No, it is not a crime. Quasi-recidivism is a special
aggravating circumstance which directs the court to
impose the maximum period of the penalty
prescribed by law for the new felony. The court will
do away or will ignore mitigating (and aggravating?)
in considering the penalty to be imposed.
PP v. Gaorana, April 27, 1998
- a case that happened in Panabo City.
The accused was convicted of a crime in Kabankalan,
Negros Occidental. The crime he committed there is
Homicide. So he was sent to serve his sentence in
DAPECOL. (ngano man niabot didto na taga-negros
man na!)
He raped a young girl inside the DAPECOL. The
allegation of the prosecution is that he is a quasi-
recidivist and it was stated in the information but the
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problem is that during the presentation of evidence
for the prosecution, the prosecution did not present
any documentary proof that he indeed is a quasi-
recidivist. Meaning, the prosecutor did not get copies
of the decision in Negros Occidental.
The two Informations alleged that both instances of
rape were attended by the aggravating circumstance
of quasi-recidivism. The trial court made no express
ruling that appellant was a quasi-recidivist, and
rightly so. During the trial, the prosecution
manifested that appellant had been convicted by the
Regional Trial Court of Kabangkalan, Negros
Occidental in Crim. Case No. 013 on March 29, 1988
and was serving sentence for the crime of
homicide. However, the prosecution failed or
neglected to present in evidence the record of
appellants previous conviction. Quasi-recidivism, like
recidivism and reiteracion, necessitates the
presentation of a certified copy of the sentence
convicting an accused. The fact that appellant was
an inmate of DAPECOL does not prove that final
judgment had been rendered against him.
Example:
X was convicted of theft and the judgment became
final. Before he could serve his sentence, X
committed attempted homicide. Is X a quasi-
recidivist? Yes. X is a quasi-recidivist because even
before he served his sentence he committed
attempted homicide which is a felony.
While serving his sentence, he committed another
felony? He is still a quasi-recidivist.
X was convicted of Homicide. While serving his
sentence, he committed robbery. Is he a quasi-
recidivist? Yes. He is a quasi-recidivist.
X was convicted of Falsification. While serving his
sentence, X committed violation of RA 9165. Is he a
quasi-recidivist? No, he is not. While serving his
sentence, he committed a crime which is a violation
of drugs law. What the law provides before serving
sentence or serving sentence, the convict must
commit a felony. A violation of RA 9165 is not felony
but it is a crime.
X was convicted of Illegal Recruitment. Before
serving sentence he committed Murder. Is he a
quasi-recidivist? Yes.
X was convicted of Illegal Possession of Firearm.
Before serving sentence he committed a violation
against BP 22 which is a special law. Is he a quasi-
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recidivist? No, he is not. Before or while serving his
sentence he committed a crime and not a felony.
RA 10591 - Read
Now what is the scenario of the application under art
160. Now let us say Mr Astillo is found guilty of the
crime of homicide, the penalty there is pricion
temporal medium. While on his fifth year of serving
the sentence, Mr Astillo committed another crime of
homicide. Question, who are you? This time, you are
a quasi-recidivist.
Now what about if Mr Astillo was serving the
sentence for the crime of homicide and while serving
it was found in possession of an unlicensed firearm?
Is he a quasi-recidivst? NO, because the requirement
is that you must have committed another felony
while serving your sentence and illegal possession of
firearms is under a special law. It is not a felony.
Now, is quasi-recidivism a crime in itself? No,it is a
special aggravating circumstance which directs the
court to impose the maximum period imposed by law
for the felony. The court will do away with any
mitigating circumstances in considering the penalty
to be imposed. There will be no authority for the
court to impose the mimimun, medium in imposing
the penalty of the felony. The mandate is absolute
and justified by the finding that the accused is
suffering from moral perversity if not total
incognizability (?).
Now what is the requirement for it to be a special
aggravating circumstance? It must be properly
alleged in the information.
What about if it is not alleged in the information but
it was proven by the prosecution that the convict is a
quasi-recidivist? Shall we apply article 160? The new
rule under the amended rules of criminal procedure
is that for aggravating circumstance to be
appreciated, it should be properly alleged n the
information and proven in the trial. If it is not
alleged, it cannot be given any appreciation at all. All
qualifying or generic aggravating circumstance, if it is
not alleged in the information, can be taken out in
the appreciation of the penalty.
How are you going to prove that he is a quasi-
recidivist? It cannot just be mere testimony. What
about the fact that he is precisely there in the penal
colony because he is serving a sentence? But the rule
on the matter is very strict. You know that rules on
criminal procedure are interpreted strictly in favor of
the accused. So the rule is, for it to be appreciated,
there is a need for the prosecution to establish the
fact that the accused has been convicted of a felony
and is now in a jail or penal institution serving the
same. You present evidence to prove it.
There was one case, the accused was convicted for
the crime of murder. While serving his sentence, he
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committed another crime. The crime of rape. He was
convicted for rape and prosecution wanted to prove
that he is a quasi-recidivist. However, the
prosecution did not present the evidence of
conviction in the trial and the SC refused to consider
that he is a quasi-recidivist. See, kung tan-awon
nimo grabe jud ka-strikto. Precisely he was there
serving his sentence, of course you cannot be in a
penal institution if you do not have a final sentence.
But the SC is very strict. There is a need for the
prosecution to present that there is a conviction.
September 4, 2015
September 4, 2015 FIRST HOUR by Ynaaaa
SEC. 28. Unlawful Acquisition, or Possession of Firearms
and Ammunition. – The unlawful acquisition, possession of
firearms and ammunition shall be penalized as follows:
(a) The penalty of prision mayor in its medium period
shall be imposed upon any person who shall
unlawfully acquire or possess a small arm;
In the old law, RA 8294, the jurisdiction belonged
to the MTC because the penalty there was only
prisioncorreccional. But now, jurisdiction is no
longer with the MTC but with the RTC. And in the
new law, they have also categorized the kinds of
firearms. I don’t know what the kinds of firearms
are. I am not Pro-Gun.
(b) The penalty of reclusion temporal to reclusion
perpetua shall be imposed if three (3) or more small arms
or Class-A light weapons are unlawfully acquired or
possessed by any person;
(c) The penalty of prision mayor in its maximum period
shall be imposed upon any person who shall unlawfully
acquire or possess a Class-A light weapon;
(d) The penalty of reclusion perpetua shall be imposed
upon any person who shall, unlawfully acquire or possess
a Class-B light weapon;
(e) The penalty of one (1) degree higher than that
provided in paragraphs (a) to (c) in this section shall be
imposed upon any person who shall unlawfully possess
any firearm under any or combination of the following
conditions:
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(1) Loaded with ammunition or inserted with a loaded
magazine;
(2) Fitted or mounted with laser or any gadget used to
guide the shooter to hit the target such as thermal
weapon sight (TWS) and the like;
(3) Fitted or mounted with sniper scopes, firearm muffler
or firearm silencer;
(4) Accompanied with an extra barrel; and
(5) Converted to be capable of firing full automatic bursts.
(f) The penalty of prision mayor in its minimum period
shall be imposed upon any person who shall unlawfully
acquire or possess a major part of a small arm;
(g) The penalty of prision mayor in its minimum period
shall be imposed upon any person who shall unlawfully
acquire or possess ammunition for a small arm or Class-A
light weapon. If the violation of this paragraph is
committed by the same person charged with the unlawful
acquisition or possession of a small arm, the former
violation shall be absorbed by the latter;
(h) The penalty of prision mayor in its medium period shall
be imposed upon any person who shall unlawfully acquire
or possess a major part of a Class-A light weapon;
(i) The penalty of prision mayor in its medium period shall
be imposed upon any person who shall unlawfully acquire
or possess ammunition for a Class-A light weapon. If the
violation of this paragraph is committed by the same
person charged with the unlawful acquisition or
possession of a Class-A light weapon, the former violation
shall be absorbed by the latter;
(j) The penalty of prision mayor in its maximum period
shall be imposed upon any person who shall unlawfully
acquire or possess a major part of a Class-B light weapon;
and
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(k) The penalty of prision mayor in its maximum period
shall be imposed upon any person who shall unlawfully
acquire or possess ammunition for a Class-B light weapon.
If the violation of this paragraph is committed by the
same person charged with the unlawful acquisition or
possession of a Class-B light weapon, the former violation
shall be absorbed by the latter.
SEC. 29.Use of Loose Firearm in the Commission of a
Crime. – The use of a loose firearm, when inherent in the
commission of a crime punishable under the Revised Penal
Code or other special laws, shall be considered as an
aggravating circumstance (You can also find that in the old
law): Provided, That if the crime committed with the use
of a loose firearm is penalized by the law with a maximum
penalty which is lower than that prescribed in the
preceding section for illegal possession of firearm, the
penalty for illegal possession of firearm shall be imposed
in lieu of the penalty for the crime charged: (This is new!)
Provided, further, That if the crime committed with the
use of a loose firearm is penalized by the law with a
maximum penalty which is equal to that imposed under
the preceding section for illegal possession of firearms, the
penalty of prision mayor in its minimum period shall be
imposed in addition to the penalty for the crime
punishable under the Revised Penal Code or other special
laws of which he/she is found guilty. (This is what we call
the two-tiered penalty)
If the violation of this Act is in furtherance of, or incident
to, or in connection with the crime of rebellion of
insurrection, or attempted coup d’ etat, such violation shall
be absorbed as an element of the crime of rebellion or
insurrection, or attempted coup d’ etat.
If the crime is committed by the person without using the
loose firearm, the violation of this Act shall be considered
as a distinct and separate offense.
Now, let’s summarize Sec. 29. Go back to the question.
What was the question? When an unlicensed firearm is
used in the commission of a crime. Summarize Sec. 29.
The use of a loose firearm or an unlicensed firearm, when
inherent in the commission of a crime, is an aggravating
circumstance. If it is not inherent in the crime, the
following rules must be observed:
1) If the penalty for the crime committed is higher
than the penalty prescribed for illegal possession,
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illegal possession shall be considered as a generic
aggravating circumstance
2) If the penalty for the crime committed is lower
than the penalty prescribed for illegal possession,
the penalty for illegal possession shall be imposed
3) If the penalty for the crime committed and the
penalty prescribed for illegal possession are equal,
the penalty of prision mayorin its minimum period
shall be imposed in addition to the penalty for the
crime committed
So these are the rules that we are going to follow under
the new law now. In the crimes of rebellion, sedition or
coup d’etat, these are inherent. Based on the case of
Enrile v Amin and Enrile v Salazar, if a special law is
violated in furtherance of the crime of rebellion, the rule is
that the violation of the special law (Illegal Possession of
Firearms) will be considered as absorbed in the
commission of the crime of rebellion. And this is also true
in the new law now. So remember the rule ha.
SEC. 31.Absence of Permit to Carry Outside of Residence.
– The penalty of prisioncorreccional and a fine of Ten
thousand pesos (P10,000.00) shall be imposed upon any
person who is licensed to own a firearm but who shall
carry the registered firearm outside his/her residence
without any legal authority therefor.
This is the only instance where the MTC will acquire
jurisdiction because the penalty is only prisioncorreccional.
Right now, under the new law, we need to have a PTCFOR
(Permit to Carry Firearm Outside of Residence). So, it’s not
enough that you are in possession or that you are legally
allowed to possess a firearm. It is also a must that should
you carry your firearm outside your residence, you need to
have a PTCFOR. Who gives you the PTCFOR? Camp
Crame. It’s the Camp Crame. So it’s not easy to apply for a
PTCFOR. Even judges are not exempted. We are not even
exempted. Yesterday, a judge was killed somewhere there
in _____. He was a new judge. Patay.
Now, what is arms smuggling? Of course you cannot find
that in the old law. Sec. 3(d) Arms smuggling refers to the
import, export, acquisition, sale, delivery, movement or
transfer of firearms, their parts and components and
ammunition, from or across the territory of one
country to that of another country which has not
been authorized in accordance with domestic law in either
or both country/countries.
So if people in Tawi-tawi will purchase loose or unlicensed
firearms from Vigan, does that constitute arms smuggling?
No, it does not. Based on the definition, it should be from
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one country to another. So if people from Tawi-tawi will
purchase loose firearms from Indonesia, then you can say,
ahhhhh that constitutes arms smuggling.
Now, will a barangay captain carrying an unlicensed
firearm while walking around his barangay, be prosecuted
under the new Firearms Law? The question should be: Can
the barangay captain... Kasi, the fact that you are
unlicensed is absolute eh. Even if you are the barangay
captain but you have no license to possess firearms, there
is a violation there. No one is exempted. But what if the
barangay captain is licensed to possess a firearm but does
not have a PTCFOR? The question should be phrased like
this: May a barangay captain carrying a licensed firearm,
but without any PTCFOR, be prosecuted under the new
Firearms Law? This is wrongly phrased noh.
Now, go to the case of Artillero v Casimero. The SC said
that the authority of the barangay captain to carry his
firearm outside his residence was rooted in the authority
given to him by the LGC. Section 389 of the LGC provides
that “In the performance of his peace and order functions,
the punong barangay shall be entitled to possess and
carry the necessary firearm within his territorial
jurisdiction, subject to appropriate rules and regulations.”
As long as the punong barangay is within his barangay, he
cannot be separated from his duty to maintain peace and
order. But my critique to this kind of argument raised by
the SC is that there is no provision in the old law and even
in the law that would exempt the barangay captain from
getting a PTCFOR. The only issue is whether or not he has
to get a PTCFOR. The SC agreed with the contention that
he did not have a PTCFOR but it does not mean that just
because he need not have a PTCFOR, that that would
exempt him from getting a permit. There’s something
wrong with the decision. Read it for yourself.
If you will be confronted with that kind of problem in the
Bar examination, on the authority of the barangay captain,
can he be prosecuted under the new Firearms Law?
Without a license to possess and without a PTCFOR? I
would like to encourage you to qualify your answer. There
is no exemption for anyone to acquire or possess a firearm
noh? He must have a license to possess. But in the case of
a barangay captain, he need not have a PTCFOR by
reason of Sec. 389 of the LGC and the case of Artillero v
Casimero. Please be careful if you will be confronted with
that kind of problem.
What is the effect of carrying an unlicensed firearm? This
is not new anymore. Sec. 1(4) of RA 8294 provides "If the
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violation of this Sec. is in furtherance of or incident to, or
in connection with the crime of rebellion or insurrection,
sedition, or attempted coup d'etat, such violation shall be
absorbed as an element of the crime of rebellion, or
insurrection, sedition, or attempted coup d'etat.”
Let’s proceed to Title IV - Crimes against Public Interest.
Crimes under this Title are perpetrated against the public
in general, for which reason they are called crimes against
public interest.
Art. 161. Counterfeiting the great seal of the Government
of the Philippine Islands, forging the signature or stamp of
the Chief Executive. — The penalty of reclusion temporal
shall be imposed upon any person who shall forge the
Great Seal of the Government of the Philippine Islands or
the signature or stamp of the Chief Executive.
What are the acts that are being punished here?
1. Forging the Great Seal of the Government of the
Philippines
2. Forging the signature of the President
3. Forging the stamp of the President
Now, there is deceit employed in the commission of the
crime under Article 161, just like in Estafa or Swindling.
However, in Estafa, the deceit is employed against a
particular person or a group of persons. But in the crime
of forgeries contemplated under Article 161 and 162, the
deceit is against the public in general. Now, what is
contemplated under Article 161 is a situation where the
offender counterfeits the Great Seal of the government.
And after forging the Great Seal, the signature of the
President or the stamp of the President, he is found in
possession of the same. So the fact of forging is what is
punished under the law, under Article 161 and 162. If the
forged signature of the President is used to defraud a
particular person or individual, and the deceit employed
violates the provisions of Article 315 (Estafa), the crime
committed will not be forgery or falsification under Article
161 but pure and simple, Estafa under Article 315. It must
be so because damage is caused to a particular person,
and not the interest of public. In the same manner, if the
forged signature is used to pardon a convict, then the
crime would be forging the signature of the Chief
Executive under 161 because obviously, it is a crime
committed against the public in general.
Art. 162. Using forged signature or counterfeit seal or
stamp. — The penalty of prision mayor shall be imposed
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upon any person who shall knowingly make use of the
counterfeit seal or forged signature or stamp mentioned in
the preceding article.
Now, under Article 162, take a look at the elements of the
crime. The offender in this article should not be the forger.
Art. 163. Making and importing and uttering false coins. —
Any person who makes, imports, or utters, false coins, in
connivance with counterfeiters, or importers, shall suffer:
1. Prision mayor in its minimum and medium periods and
a fine not to exceed P10,000 pesos, if the counterfeited
coin be silver coin of the Philippines or coin of the Central
Bank of the Philippines of ten centavo denomination or
above.
2. Prisioncorreccional in its minimum and medium periods
and a fine of not to exceed P2,000 pesos, if the
counterfeited coins be any of the minor coinage of the
Philippines or of the Central Bank of the Philippines below
ten-centavo denomination.
3. Prisioncorreccional in its minimum period and a fine not
to exceed P1,000 pesos, if the counterfeited coin be
currency of a foreign country. (As amended by R.A. No.
4202, approved June 19, 1965).
There are 3 kinds of coins in our country, the
counterfeiting of which is punished:
1. Silver coins of the Philippines or coins of the BSP
2. Coins of the minor coinage of the Philippines or
the BSP
3. Coins of the currency of a foreign country
Is mere possession of counterfeit money a crime? For
example, you have a 500-peso counterfeit bill there and
you always put that in your wallet. Does your act of
possessing it already constitute a crime? The answer is no.
Mere possession of counterfeit money is not a crime. To
constitute a crime, the possession must be coupled with
intent to use any of such counterfeit money.
You know, I convicted someone before for counterfeiting
under Article 163. You know what he did? By virtue of a
search warrant issued by me, because it was raffled to my
court, I convicted him. He counterfeited a 100-dollar bill.
So ako, kay ignorante man ko. Kung akomakadawatsa bill,
definitely I cannot distinguish if it’s real or not. Pero
sigurokamo, mgadatomo, maka-distinguish mokung
counterfeit. So several $100 bills were confiscated from his
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residence. Aside from that, P500 and P1000 were also
confiscated along with several paraphernalia used in the
making of the $100, P500 and P1000 bills.
He posted a bail bond, because that’s a bailable offense
eh. When he posted the bail bond, it wasn’t a cash bond
but a surety bond. When he posted the surety bond, it
was then that I found out… Kasi he jumped bail eh, so I
had to confiscate the surety bond posted. Eh the surety
bond he posted is also a counterfeit! Nasukoko kay
naungusankosaungas. It was only at that time that we
found out na falsified man diayang surety bond. Okay. So
there was a trial in absentia, and I convicted him. And one
of the witnesses presented was a manager from the
Central Bank. And when she testified inside the courtroom,
ahhhhh, daghan kayo siya’g explanation noh. Jam-packed
akongkorte! So many people listening to her _______
testimony. I halted her testimony and declared “you
continue your testimony inside my chamber.”Ngano man?
I do not want many people to hear her testimony, because
they will perfect the crime.
So eventually, I convicted the accused. Kinsa man
angakongprisuhon? Eh at large man. So I issued an order
for his arrest. Two years after I convicted him, he was
arrested there in Digos. What happened? He ate in a
carenderia and he paid a 500-peso counterfeit bill.
Nadakpandidto.Pag-check kosa CIDG, naa’y outstanding
warrant of arrest from me. See? When he was brought to
my court for the issuance of the commitment order,
wanako’ytingogtingog. I just looked at him and made my
big smile. But inside my chamber… YES! YES! YES!
Now, X went to SM grocery and purchased food stuff for
the celebration of the birthday of MM. He paid the
groceries with three P1000 bills. When the cashier looked
at the bills, she had doubts if they were genuine. She
compared them with genuine money and she discovered
that the bills are counterfeit. Question: Is X liable for the
possession of counterfeit money? The answer is no. Two
elements must be present:
a) Intent to use the counterfeit money; and
b) Knowledge that the money in his possession is
counterfeit money.
These two elements are not attendant in the present case.
It’s a matter of case-to-case basis to determine whether
he has the intent by his actions.
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Piolo, in connivance with a politician, distributed
counterfeit money to voters, knowing fully well that the
money is counterfeit. Question: Is Piolo liable? The answer
is yes. It having been established that Piolo acted in
connivance with the counterfeiting, it is not necessary
anymore to prove that he knew the money he gave was
counterfeited. The connivance actually shows that he has
knowledge thereof and he actually used it.
______ why PDEA ceases to produce and reproduce
counterfeit money. They produce counterfeit money for
use during buy-bust operations. For example, if I am a
poseur buyer and I want to purchase 100,0000pesos
shabu, I will only utilize one genuine bill and the others
will be counterfeit na para pudsiya’gnagmukhang 1000.
Kay halos pare-parehagihaponsiya’g colors, only that the
serial numbers are all the same. ______, and then what
would be the assurance of the public that the one who is
preparing that counterfeit money will not go public [with
the counterfeit bills he produced]? ‘Di ba?Kahadloknoh?
Kay angilahang 1000-peso bill muranapud 1000. Kung
akoanggipagunitanato, mailadpudko. So they stopped that
na, and they devised another way to interject the buy-bust
by not producing or reproducing counterfeit bills. It is very
difficult. Kay kungakotaga-PDEA at in-charge sapag-
reproduce, magkuhadiayko’g lima dihataga-adlaw.
Now, remember that when we talk about coins,
counterfeiting of coins includes whether it is legal tender
or not.Legal tender or not,if it is a coin that is involved,
pwede.Counterfeiting of coins yan. Take note that in the
crime of counterfeiting, the object of the law is not the
fraud to be perpetrated on the public. Even if the coin is
no longer a legal tender, the act of imitating or
manufacturing the coin of the government is illegal and is
penalized. The law prohibits people from trying to imitate
the manufacture of money. Hence, it is not necessary that
the coin counterfeited is still of legal tender.
If the coin is old, antique or vintage already, the crime of
counterfeiting is still committed. The motivating rationale
is that if people would be allowed to imitate money just
because it is no longer of legal tender, then they will be
emboldened to counterfeit coins of legal tender. This will
result to confusion to the public and to the government as
well. The act of counterfeiting coins must be nipped from
the very bud, and counterfeiting should be penalized from
the very start whether the coin is of legal tender or not.
Art. 164. Mutilation of coins; Importation and utterance of
mutilated coins. — The penalty of prisioncorreccional in its
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minimum period and a fine not to exceed P2,000 pesos
shall be imposed upon any person who shall mutilate coins
of the legal currency of the United States or of the
Philippine Islands or import or utter mutilated current
coins, or in connivance with mutilators or importers.
would accept it. So nobody can be defrauded. But if the
coin is of legal tender and the offender minimizes or
decreases the precious metal dust found in the coin, then
the crime of mutilation is committed.

We have a special law dealing to that effect. We have PD

There are two acts being punished here:
1. Mutilating coins of the legal currency
2. Importing or uttering such mutilated coins
247, the law on DEFACEMENT, MUTILATION, TEARING,
BURNING OR DESTRUCTION OF CENTRAL BANK NOTES
AND COINS. It is provided there that it shall be unlawful
for any person to willfully deface, mutilate, tear, burn or
destroy, in any manner whatsoever, currency notes and
coins issued by the Central Bank of the Philippines.

The first act of falsification or falsity are ______.

Counterfeiting refers to money or currency. Forgery refers
Now, when the image of Jose Rizal… Kinsangaangnaasa
to instruments of credit and obligations and securities. And
20-peso bill? So the image of Manuel Quezon is
falsification, which can only be committed in describing
transformed into that of the face of Sam Milby… Now, the
particular documents. Remember the term. Be careful
question is, is there a violation of PD 247? Yes. Actually
when using the term. When you talk about money or
noh, even before, kasi I came from a province.
currency, the term to be used is “counterfeiting”. So if the
Usonasaunasaamoang time angmagsulatsa 5-peso bill.
money is fake and you are the one who made it fake, the
Gwapo ‘to kay green ang color.Isulat man namo among
crime that you committed is counterfeiting. Bale, ‘paggi-
ngalantaposangamoang theory is, ________. So
falsify nimoang money, that’s counterfeiting. But if the act
ibutangang among address. So if you’re going to send a
of falsifying refers to the instruments of credit and
letter to us, you will be our soulmate. That was a crime,
obligations and securities, like a lotto ticket, that is an
actually. That’s defacement. Nalokona. Do not do that
obligation on the part of government to pay whoever is
anymore ha. That’s a thing of the past. Wala narinnamang
the holder of the winning ticket. That act is called forgery.
5-peso bill. 5-peso coin na.
But what about if the one being falsified is a document,
altered or whatever? We call that falsification. Insofar as
coins in circulation are concerned, there are two crimes
that may be committed: Sometime before Martial Law was imposed, the people lost
confidence in banks that they preferred hoarding their
1. Counterfeiting of coins - crime of remaking or money than depositing them in the banks. But I had a
manufacturing without any authority to do so client before noh, he doesn’t believe in the wisdom of
banking. He had so many… kana bang boat, daghankayo
2. Mutilation of coins - refers to the deliberate act of
siyangbangkaparangmangingisda. So, daily
diminishing the proper metal contents of the coin either by
angkwarta.Saka, saka, saka. And he’s the kind of guy that
scraping, scratching or filling the edges of the coin and the
doesn’t believe naangkwartaibutangsabangko. Kay
offender gathers the metal dust that has been scraped
nagtuosiyanangano man anglaingtao__________. So what
from the coin
he did is, he placed all his money… ‘Di bakanang door, ‘di
banaa’ytungatungaana. In the middle of it, naa’y hollow.
That’s where he placed all his money bills. The wife
What are the requisites of mutilation under the RPC? dismantled it and gave it to some other people.
Maayonalangiyahang _______. The truck where the door
1. The coin mutilated is of legal tender
was loaded was on its way padulongTagum.
2. The offender gains from the precious metal dust
abstracted from the coin Sakaynasiyasaiyang motor, _________. Asa man
siyapadulong??Something somethingsukua door
walagyudsiya’y trust sabangko. But can you force him?
It has to be a coin. Mutilation of coins is a crime only Can you force him to do that?
when the coin mutilated is legal tender. If the coin whose
metal content has been depreciated through scraping,
scratching, or filling the void where the offender collected
*Sorry, perohindikotalaga kaya i-transcribe ‘yung tips ni
the precious metal dust…Even if you would use the coin
Judge kung saandapatitagoangpera. UbosnaBisaya words
after its intrinsic value has been reduced, nobody would
kohuhuhu*
accept this thing. If it is not legal tender anymore, nobody

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President Marcos declared upon the imposition of Martial
Law, that all bills without the BagongLipunan sign on them
will no longer be recognized. Because of this, the people
had no choice but to surrender their money and have
them exchanged for those with the BagongLipunan sign.
However, people who came up with a lot of money were
also being charged for hoarding. For this reason, certain
printing presses did a stamping of the BagongLipunan sign
to avoid prosecution. So, was there a violation of PD 247?
Yes. The act of the printing press violated PD 247.
TatakkadihaogBagongLipunan without any authority from
the Central Bank. That is a violation.
An old woman who was a cigarette vendor refused to
accept a 1-centavo coin as payment of the vendee for the
cigarettes. Then came the police who advised her that she
has no right to refuse since the 1-centavo is legal tender.
On this, the old woman accepted the 1-centavo in her
hands and then threw it on the face of the vendee and the
police. Is the old woman guilty of violating PD 247? Yes,
she is guilty because if no one ever picks up the coin, her
act will result to the diminution of the coins in circulation.
A certain customer in a restaurant wanted to show off and
used a 20-peso bill to light a cigarette. Is he guilty of
violating PD 247? Yes, he is guilty because anyone who is
in possession of defaced money is the one who is the
violator of PD 247. The intention of PD 247 is not to
punish the act of defrauding the public but to punish the
act of destruction of money issued by the Central Bank of
the Philippines. Take note that persons making bracelets
out of some coins violate PD 247. That is why, one time
nagkasalko outside the court, angginawang cord tag-25
centavos. Gitusok-tusokang cord, lisodmgasabapud.
Art. 165. Selling of false or mutilated coin, without
connivance. — The person who knowingly, although
without the connivance mentioned in the preceding
articles, shall possess false or mutilated coin with intent to
utter the same, or shall actually utter such coin, shall
suffer a penalty lower by one degree than that prescribed
in said articles.
There are only two acts being punished here:
1. Possession of coin, counterfeited or mutilated by
another person, with intent to utter the same,
knowing that it is false or mutilated (distribute)
2. Actually uttering such false or mutilated coin,
knowing the same to be false or mutilated
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Art. 166. Forging treasury or bank notes on other
documents payable to bearer; importing, and uttering
such false or forged notes and documents. — The forging
or falsification of treasury or bank notes or certificates or
other obligations and securities payable to bearer and the
importation and uttering in connivance with forgers or
importers of such false or forged obligations or notes,
shall be punished as follows:
1. By reclusion temporal in its minimum period and a fine
not to exceed P10,000 pesos, if the document which has
been falsified, counterfeited, or altered, is an obligations
or security of the United States or of the Philippines
Islands.
The word "obligation or security of the United States or of
the Philippine Islands" shall be held to mean all bonds,
certificates of indebtedness, national bank notes,
fractional notes, certificates of deposit, bills, checks, or
drafts for money, drawn by or upon authorized officers of
the United States or of the Philippine Islands, and other
representatives of value, of whatever denomination, which
have been or may be issued under any act of the
Congress of the United States or of the Philippine
Legislature.
2. By prision mayor in its maximum period and a fine not
to exceed P5,000 pesos, if the falsified or altered
document is a circulating note issued by any banking
association duly authorized by law to issue the same.
3. By prision mayor in its medium period and a fine not to
exceed P5,000 pesos, if the falsified or counterfeited
document was issued by a foreign government.
4. By prision mayor in its minimum period and a fine not
to exceed P2,000 pesos, when the forged or altered
document is a circulating note or bill issued by a foreign
bank duly authorized therefor.
There are three acts being punished here:
1. Forging or falsification of treasury or bank notes or
other documents payable to bearer
2. Importation of such false or forged obligations or
notes
3. Uttering of such dales or forged obligations or
notes in connivance with the forgers or importers
Forgery – the act of erasing, substituting, counterfeiting or
altering by any means the figures, letters, words, signs
contained in a genuine document. It can also be done by
giving a commercial bank note the appearance of a true
and genuine document
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This article punishes forgery of securities, which may
consist of bonds or certificates of indebtedness. That is
why it is error on the part of lawyers to use “forgery”
when what is falsified is a deed of sale. What is the proper
term? The crime is called falsification. You will only use
“forgery” when what are falsified are those bonds,
obligations and securities issued by the Government of the
Philippines.
Be careful when using the words “forgery” and
“falsification”. Article 166 uses the word “forgery” to
describe the crime committed, thus giving the impression
that forgery and falsification are one and the same. But for
Article 166 to apply, the document that must be falsified
should be a treasury or bank note or certificate or any
obligations and securities payable to bearer. If the
falsification is done on a document that is classified as a
government security, the crime is punishable under Article
166. Otherwise, it would be a violation of either Article 171
or Article 172.
Art. 167. Counterfeiting, importing and uttering
instruments not payable to bearer. — Any person who
shall forge, import or utter, in connivance with the forgers
or importers, any instrument payable to order or other
document of credit not payable to bearer, shall suffer the
penalties of prisioncorreccional in its medium and
maximum periods and a fine not exceeding P6,000 pesos.
Alright, let’s not dwell on that.
Art. 168. Illegal possession and use of false treasury or
bank notes and other instruments of credit. — Unless the
act be one of those coming under the provisions of any of
the preceding articles, any person who shall knowingly use
or have in his possession, with intent to use any of the
false or falsified instruments referred to in this section,
shall suffer the penalty next lower in degree than that
prescribed in said articles.
Art. 169. How forgery is committed. — The forgery
referred to in this section may be committed by any of the
following means:
1. By giving to a treasury or bank note or any instrument,
payable to bearer or order mentioned therein, the
appearance of a true and genuine document.
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2. By erasing, substituting, counterfeiting or altering by
any means the figures, letters, words or signs contained
therein.
The situation contemplated under paragraph 1 refers to a
person who commits forgery with respect to an instrument
that is not genuine, but which is made to appear as
genuine or authentic. Forgery is committed for as long as
the document involved is a treasury or bank note or any
instrument payable to bearer or order.
But in paragraph 2, the instrument here is genuine but the
alteration is introduced to change its meaning. It would
appear that even if the change does not materially affect
the integrity of the document, forgery is still committed.
What is being protected by the law is not the interest of a
particular individual but public interest in general.
The essence of forgery is giving a document the
appearance of a true and genuine document. Not any
alteration of a letter, number, figure or design would
amount to forgery. At most, it will only be frustrated
forgery. Take note ha, when what is being counterfeited
are obligations or securities issued by the government,
which under the RPC is given the status of money or legal
tender, the crime committed is counterfeiting. If it is
securities and obligations, we call it forgery. And if it is an
ordinary document, we call it falsification.
Here’s a problem: X replaced the amount of $10 to $100.
The alteration is so imperfect that it is very visible that it is
not genuine. Is X liable for counterfeiting? If not, what
crime is committed? The answer is NO, X is not liable for
counterfeiting. Under the law, the currency note must be
counterfeited to give it the appearance of a genuine
currency. In this case, nobody would be deceived because
one could easily notice that it is a counterfeit. At most, he
will only be liable for frustrated counterfeiting.
What are the five classes of falsification?
1. Falsification of legislative documents (Art. 170)
2. Falsification of a document by a public officer, employee
or notary public (Art. 171)
3. Falsification of a public or official, or commercial
document by a private individual (Art. 172, par. 1)
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4. Falsification of private document by any person (Art.
172, par. 2)
5. Falsification of wireless, telegraph and telephone
messages (Art. 173)
What are the different kinds of documents?
1. Public document – any instrument authorized by a
notary public or a competent public official or
placed under oath by public officers, with the
solemnities required by law; a document created,
executed or issued by a public official in response
to the exigencies of the public service, or in the
execution of which a public official intervened
2. Official document – any instrument issued by the
government or its agents or its officers having the
authority to do so; a document issued by a public
official in the exercise of the functions of his
office; it is also a public document
3. Commercial document – any document defined
and regulated by the Code of Commerce or any
other commercial law; documents or instruments
used by merchants or businessmen to promote or
facilitate trade; ex. checks issued for payment
4. Private document – any instrument or deed
executed by a private person or between private
persons without the intervention of a notary public
or other person legally authorized, by which
document some disposition or agreement is
proved, evidenced or set forth; it is executed by
and between two private individuals; ex.
promissory note without any intervention of notary
public
Art. 170. Falsification of legislative documents. — The
penalty of prisioncorreccional in its maximum period and a
fine not exceeding P6,000 pesos shall be imposed upon
any person who, without proper authority therefor alters
any bill, resolution, or ordinance enacted or approved or
pending approval by either House of the Legislature or
any provincial board or municipal council.
Elements:
1. That there be a bill, resolution or ordinance
enacted or approved or pending approval by either
House of the Legislature or any provincial board or
municipal council
2. That the offender alters the same
3. That he has no proper authority therefor
4. That the alteration has changed the meaning of
the document
The legislative documents referred to are the bills,
resolutions or ordinances that have been enacted,
approved or pending approval by Congress or its local
counterparts. When what is falsified is a resolution or
ordinance enacted by a barangay council, Article 170 has
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no application because it is limited only to the House of
Legislature, municipal council or provincial board.
Art. 171. Falsification by public officer, employee or notary
or ecclesiastic minister. — The penalty of prision mayor
and a fine not to exceed P5,000 pesos shall be imposed
upon any public officer, employee, or notary who, taking
advantage of his official position, shall falsify a document
by committing any of the following acts:
1. Counterfeiting or imitating any handwriting, signature
or rubric;
2. Causing it to appear that persons have participated in
any act or proceeding when they did not in fact so
participate;
3. Attributing to persons who have participated in an act
or proceeding statements other than those in fact made
by them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine
document which changes its meaning;
7. Issuing in an authenticated form a document purporting
to be a copy of an original document when no such
original exists, or including in such a copy a statement
contrary to, or different from, that of the genuine original;
or
8. Intercalating any instrument or note relative to the
issuance thereof in a protocol, registry, or official book.
The same penalty shall be imposed upon any ecclesiastical
minister who shall commit any of the offenses enumerated
in the preceding paragraphs of this article, with respect to
any record or document of such character that its
falsification may affect the civil status of persons.
Document:
1. any written instrument which establishes a right or
by which an obligation is extinguished
2. a deed or agreement executed by a person setting
forth any disposition or condition wherein rights
and obligations may arise
3. a writing or instrument by which a fact may be
proven and affirmed
When I was a private practitioner, may mag-asawang nag-
away.Magbulagnamo! Then, they executed an agreement
and they wanted me to notarize it. They stated there that
one of the stipulations is that they can live separately with
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their own chosen partner, without the other party. Kasi
severed naang relationship eh. So they wanted me to
notarize it. And I remembered my Legal Ethics. Di man
napwedeuy. It’s against public policy. Never notarize those
kinds of documents.
*kwento about Guardians*
Under this article, only public officers, employees or
notaries public or ecclesiastic ministers can be offenders.
The offender takes advantage of his official position by
falsifying any of the documents mentioned in Article 171.
Either he has the duty to intervene in the preparation of
the document or the public officer has official custody over
the document. So even if the offender is a public officer, if
he causes the falsification of the document which is not in
his official custody or if the falsification committed by him
is not related to the performance of his duties, he will still
be liable for falsification under Article 172.
A clerk of court who maliciously and deliberately changes
the return of the summons issued in a civil case, such that
instead of the statement “Not Duly Served”, he falsifies the
same by placing the words “Duly Served” and for which a
judgment by default was rendered by the court against the
defaulting defendant, then the clerk of court is liable for
falsification under Article 171.
Now, supposing the falsification was done by a municipal
mayor. So he falsified the summons, so that instead of
“Not Duly Served”, he falsifies the same by placing the
words “Duly Served”. Is he liable under Article 171? The
answer is no because although he is a public officer, he
did not take advantage of his official position in causing
the falsification. He is however liable for falsification under
Article 172.
1. Counterfeiting or imitating any handwriting,
signature, or rubric
For example, a court employee imitated the signature of a
judge in the order of release of a detention prisoner. The
document is, of course, genuine. The kind of falsification is
committed by imitating the genuine signature of the
judge.
Another example: The Sandiganbayan has 5 divisions.
Each division has 3 justices, where one of them acts as a
Chairman. The unanimous vote of all the justices is
required to render a decision. If the decision is signed by
only 2 justices, and the signature of the third justice was
imitated by the Chairman in order to make it appear that
there was unanimity in rendering the decision, the
Chairman is guilty of falsification under the Article 171(1).
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2. Causing it to appear that persons have
participated in any act or proceeding when they
did not in fact so participate
For example, in a meeting of the City Council of Quezon
City, Councilor X was absent. In order to reflect in the
records that there was a quorum, the councilors present
made it appear that Councilor X was present and that he
participated therein. The ones who caused the falsification
are liable under Article 171(2).
Another example: A check is made payable to Mr. ABC.
The offender endorsed the check by writing the name of
ABC. He did not counterfeit, imitate or falsify the signature
of the payee. In so doing, while there is no imitation, he is
still liable for falsification for making it appear that the
payee participated in any act or proceeding when he did
not in fact so participate
3. Attributing to persons who have participated in an
act or proceeding statements other than those in
fact made by them
For example, A and B are the owners of a parcel of land.
In a civil suit they filed against C, A and B requested a
friend D to represent them in the suit since they were
illiterate. When D went to the notary public to prepare the
special power of attorney, in conspiracy with the notary
public, a deed of sale for the land belonging to A and B
was executed in favor of D. Since A and B are illiterate,
they signed the document. They never appeared before
the notary public. In this case, D was held liable for
falsification for attributing to A and B who have
participated in an act or proceeding statements other than
those in fact made by them
4. Making untruthful statements in a narration of
facts
Elements:
1. That the offender makes in a document statements in a
narration of facts
2. That he has a legal obligation to disclose the truth of
the facts narrated by him
3. That the facts narrated by the offender are absolutely
false
4. That the perversion of truth in the narration of facts
was made with the wrongful intent of injuring a third
person
For example, Y is a Bar candidate. He filled up the
application form to take the Bar exam. In the form, there
is a question “Have you ever been charged or convicted of
any crime involving moral turpitude?” and Y answered no,
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even if he was previously convicted of robbery. Y is liable
for falsification because he had a legal obligation to
disclose the truth of the facts narrated by himand he made
untruthful statements in a narration of facts.
Another example: M is an employee of SSS. He filed an
application to take the CS Examination. He filled up the
form and lied about his college degree because in truth,
he did not graduate from any college. He passed the CS
Examination. He was charged for falsification. The charge
was correct because he had a legal obligation to disclose
the truth of the facts narrated by him, and yet, he did not
do so. He therefore made an untruthful statement.
In the same problem, before filling up the form, what if M
asked an employee of the CSC if he is considered a college
graduate because he has completed all the academic
requirements in the course and he only lacks 1.5 units of
Military Science. Thereafter, the employee advises M that
he is considered a college graduate because Military
Science is not considered an academic requirement of the
course. If you were the lawyer of M, what would be your
defense? MISTAKE OF FACT. Remember that falsification
is an intentional offense. M had no wrongful intent when
he filled up the form. He inquired with a CSC employee
about his status, and he was advised that he is considered
a college graduate.
Martin is an employee of the SSS. He filed an application
to take the Civil Service 1st grade Examination. He filled up
the application form and filled up college graduate in the
space provided for but the truth is he did not graduate
because he lacked 1.5 units in Military Science. He passed
the examination but it was found out though that he did
not graduate college because of his deficiencies then, he
was charged for falsification. Is the charge correct?
A. Yes, the charge is correct. He had the legal obligation
to disclose the truth of the facts narrated by him but he
did not do so.
In the same situation, what if before Martin filled up the
application form he asked an employee of the Civil Service
that he be considered a college graduate because he had
finished all the academic requirements of the course and
he lacks only 1.5 units of Military Science and the
employee advised him that he be considered a college
graduate because of the fact that Military Science is not an
academic requirement, if you were the lawyer for Martin
what will be your defense?
A. US v. Ah Chong. You can use that as a defense. Mistake
of fact. I will invoke honest mistake of fact as a defense.
Remember that falsification is an intentional felony, he had
no wrongful intent when he made the entries in the
application form.
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Wrongful intent to injure knowledge of the absolute falsity
of the facts narrated by him.
Example:
A municipal treasurer issues a certificate to the effect that
funds are available for reconstruction of municipal bridge.
On the basis of such certification, the municipal mayor
entered into a contract with a private contractor for the
implementation of the project after a public bidding. If it
turns out that there are no available funds for such project
and the certification was issued by treasurer with full
knowledge that there are actually no funds to construct a
bridge then, the municipal treasurer is liable for
falsification under the 4th paragraph.
“Altering true dates”
For falsification to take place under this paragraph, the
date of the document must be material to the crime
created or to the obligation that is extinguished. So if in a
promissory note the indebtedness is due 30 days from
execution and the offender debtor alters the date of
execution such that instead of January 1, 1999, it was
made January 1, 2000. There is what we call falsification
because the date is essential to the agreement between
the parties.
On March 21, 2010, SPO1 Bautista arrested and detained
Bilbo without a warrant because the latter inflicted
physical injuries on Budol in his presence. Under Art 125
of the RPC, SPO1 Bautista should have the case in court
within 12 hours from the time of the warrantless arrest. So
he put in the blotter the date March 21, 2010 as the date
of arrest. For a reason or another, SPO1 Bautista failed to
file a case within the reglementary period provided for. It
was only in March 24, 2010 that he realized that he
detained Bilbo beyond the time allowed by law. To avert
criminal prosecution for arbitrary detention, SPO1 Bautista
altered the date. He changed the date March 21 to March
23. SPO1 Bautista is liable for falsification.
An honest alteration in order to make a document speak
for the truth is not falsification because the essence of
falsification is to make a document speak of a falsity.
Thus, if an alteration is made to rectify a document to
speak the truth then, the falsification is not committed.
“Making any alteration or intercalation in a genuine
document which changes its meaning”
Example:
The police blotter is an official document of record. For a
crime committed in September 6, 1930, Mr. Juan was
arrested and his detention was entered into a police
blotter. He was able to post bail on the same day. The
order of release was likewise entered into the police
blotter however; notwithstanding the order of release the
police continue to detain Juan in jail. The chief of police
was charged with arbitrary detention to escape criminal
liability he altered the entries in the police blotter by
making it appear that the accused Juan was arrested and
released on September 13. So that constitutes violation of
par 6.
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“Issuing in an authenticated form a document purporting
to be a copy of an original document when no such
original exists, or including in such a copy a statement
contrary to, or different from, that of the genuine original”
Elements:
1) That there is a genuine document;
2) An alteration, intercalation or substitution was
made therein;
3) The change made in the documents speaks of
something false.
Alteration is an act of making a change or change in a
document making the document speak for something the
parties did not intend to speak.
Important points to remember in falsification:
 Alteration or changes to make the document
speak the truth do not constitute falsification.
 There is no complex crime of estafa through
falsification of private document. They share the
same elements of the crime. Damage!
 In the falsification, the possession and use of a
falsified document give rise to the presumption
that the possessor was the one who falsified the
document.
 Falsification of a private document is
consummated when such document is actually
falsified with the intent to prejudice a 3rd person
whether such falsified document is or is not
thereafter put to illegal use for which it is
intended.
 Falsification is not a continuing offense. So public
documents inside the ballot box are falsified in one
municipality, the fact that said ballot box was
carried to another municipality did not confer
jurisdiction upon the municipal court of the latter
to try the case of falsification of said document.
Can falsification be committed by omission?
In the old case of People v. Dizon, 47 Phil. 350, the SC
said YES. One can be found guilty of falsification by
omission.
What is the liability of a private individual in a falsification
by a public officer when there is conspiracy?
When there is conspiracy, of course the act of one
becomes the act of all under Art 8 of the RPC. But what
would be the proper charge against each of them? If a
public officer took advantage of his position and he
committed any of the act mentioned under Art 171 of the
RPC and he was in conspiracy with one private individual
then, the private individual may also be liable under Art
171.
Complex Crime of Falsification of Public Document
through Reckless Imprudence
Venancio Sevilla v PP, Augsut 13, 2014
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“When your resources are down to nothing, believe that God is up to something =)”
(You read that! Kung ako examiner kuhaon nako ni na
question. I will ask.)
ISSUE: Whether Sevilla can be convicted of the felony of
falsification of public document through reckless
imprudence notwithstanding that the charge against him
in the Information was for the intentional felony of
falsification of public document under Article 171(4) of the
RPC.
SC: At the outset, it bears stressing that the
Sandiganbayan’s designation of the felony supposedly
committed by Sevilla is inaccurate. The Sandiganbayan
convicted Sevilla of reckless imprudence, punished under
Article 365 of the RPC, which resulted into the falsification
of a public document. However, the Sandiganbayan
designated the felony committed as "falsification of public
document through reckless imprudence." The foregoing
designation implies that reckless imprudence is not a crime
in itself but simply a modality of committing it. Quasi-
offenses under Article 365 of the RPC are distinct and
separate crimes and not a mere modality in the
commission of a crime.
Thus, the proper designation of the felony should be
reckless imprudence resulting to falsification of public
documents and not falsification of public documents
through reckless imprudence.
Article 172. Falsification by private individual and use of
falsified documents. - The penalty of prision correccional in
its medium and maximum periods and a fine of not more
than P5,000 pesos shall be imposed upon:
1. Any private individual who shall commit any of
the falsifications enumerated in the next preceding
article in any public or official document or letter
of exchange or any other kind of commercial
document; and
2. Any person who, to the damage of a third
party, or with the intent to cause such damage,
shall in any private document commit any of the
acts of falsification enumerated in the next
preceding article.
Any person who shall knowingly introduce in evidence in
any judicial proceeding or to the damage of another or
who, with the intent to cause such damage, shall use any
of the false documents embraced in the next preceding
article, or in any of the foregoing subdivisions of this
article, shall be punished by the penalty next lower in
degree.
Three acts are punished under Art 172. They are:
1) Falsification of public, official or commercial
document by a private individual (Par 1);
2) Falsification of private document by any person
(Par 2);
3) Use of falsified document. (Last par)
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Under the 1st par, the offender may be a public officer
employee who committed the falsification without taking
advantage of his official position. While he is also liable for
falsification, his indictment will be under Art 172 which
imposes a lesser penalty than Art 171. It deals with the
falsification committed by private individuals. It is primarily
intended to punish private persons who commit
falsification in the manner provided and described under
Art 171.
Remember that when the document is a public, official or
commercial document, the falsification may be complexed
with the crime of Estafa under Art 315. It may also be
complexed with other crimes like Malversation of Public
Funds.
When the document that is falsified is a private document,
the falsification cannot be complexed with Estafa. The rule
is when an element of a crime is common to more than 1
crime; you can only use that to make up one crime. The
same element cannot be used more than once.
Under the 2nd par, damage or at least intent to cause
damage is an essential element of falsification of private
document.
Example:
A is indebted to B in the amount of Php 100,000. One day,
A prepared a written receipt purportedly signed by B
making it appear that A had paid in full from B. Is A liable
for falsification of private document?
A. No. A is not liable for the crime of falsification of private
document. Mere falsification of a private document is not a
crime. There must be damage or at least intent to cause
damage on the part of the offender. In this case, B the
creditor did not sustain damage. There is also no intent to
cause damage that can be inferred from the mere act of
falsification.
In the same problem, suppose after the falsification B
went to A and tried to collect from A. In the process, A
claimed that he already paid his indebtedness in full and
show the receipt that he falsified. Is liable for falsification
of private document? YES. He is liable for falsification of
private document because his act of claiming to be that he
had paid in full his indebtedness and showing the receipt
that he falsified more than indicate intent to cause
damage on his part.
An agreement that we have made this is a private
document. The moment the private agreement is
notarized, it will now become a public document. What is
the reason why it is important to know whether the
document falsified is a public or a private one in the study
of falsification? The reasons are:
1) To determine whether the crime of falsification is
committed or not;
2) To determine whether the falsification may be
complexed with other crimes;
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3) Mere falsification in a public, official or commercial
document constitutes a crime. Damage or intent
to cause damage is not necessary.
4) Mere falsification of a private document is not a
crime. Damage or at least intent to cause damage
is an essential element of the crime.
What are the rules to be observed the use of falsified
documents?
1) It is a crime when knowingly introduced in a
judicial proceeding even if there is no intent to
cause damage to another. Knowingly introducing a
falsified document in a judicial proceeding is
sufficient to consummate a crime. The mere
introduction of a forged document is a crime itself.
But when the falsified document is knowingly
introduced in an administrative proceeding, the
use alone is not a crime because there must be
intent to cause damage or damage is actually
inflicted.
2) Falsification of document is a separate and distinct
offense from that of the use of a falsified
document. So if the falsification of document was
done or performed because it was necessary to
the use of the same and in the commission of the
crime then, we have a complex crime defined
under Art 48 of the RPC.
3) Good faith is a defense in falsification of public
document.
4) There is no falsification through reckless
imprudence if the document is a private
document.
5) Never mind that rule. Aww! 
6) The user of the falsified document is deemed the
falsifier or author of the falsification if the use was
so closely connected in time with the falsification
and the user has the capacity of falsifying the
document.
Elements (Use in any other transaction) –
1) That the offender knew that a document was
falsified by another person;
2) That the false document is embraced in Art 171 or
in any of subdivision No. 1 or 2 of Art 172;
3) That he used such document (not in judicial
proceedings);
4) That the use of the false document caused
damage to another or at least it was used with
intent to cause such damage.
Article 173. Falsification of wireless, cable, telegraph and
telephone messages, and use of said falsified messages. -
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The penalty of prision correccional in its medium and
maximum periods shall be imposed upon officer or
employee of the Government or of any private corporation
or concern engaged in the service of sending or receiving
wireless, cable or telephone message who utters a
fictitious wireless, telegraph or telephone message of any
system or falsifies the same.
Any person who shall use such falsified dispatch to the
prejudice of a third party or with the intent of cause such
prejudice, shall suffer the penalty next lower in degree.
(Never mind that noh?)
Article 174. False medical certificates, false certificates of
merits or service, etc. - The penalties of arresto mayorin
its maximum period to prision correccional in its minimum
period and a fine not to exceed P1,000 pesos shall be
imposed upon:
1. Any physician or surgeon who, in connection,
with the practice of his profession, shall issue a
false certificate; and
2. Any public officer who shall issue a false
certificate of merit of service, good conduct or
similar circumstances.
The penalty of arresto mayor shall be imposed upon any
private person who shall falsify a certificate falling within
the classes mentioned in the two preceding subdivisions.
Persons liable for falsification of certificates:
1) Physician or surgeon who, in connection with the
practice of his profession, issued a false
certificate;
Note: The crime is False Medical Certificate by a
physician.
2) Public officer who issued a false certificate of merit
or service, good conduct or similar circumstances;
3) Private individual who falsified a certificate falling
in the classes mentioned in Nos. 1 and 2.
Example:
X is an employee of ABC Company and he got sick on the
course of his employment. He applied for disability
benefits. He went to Dr. Luzon his good friend and
convinced the latter to issue a medical certificate that his
illness is work connected and permanent. Dr. Luzon issued
the said medical certificate and in truth of the matter that
X illness is not work related and was caused by his chronic
smoking habits. The doctor is liable for false medical
certificate by a physician.
Renan applied for work as a waiter in Manila Hotel and as
much as the hotel wanted to hire preferably waiters with 5
year working experience. He sought the help of David the
hotel manager of Diamond Hotel in Roxas Blvd. He
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requested David to issue a certificate that he had worked
as waiter in the said hotel for the last 7 years. David
issued the said certificate. David is liable for false
certificate of service.
Article 175. Using false certificates. - The penalty
of arresto menor shall be imposed upon any one who shall
knowingly use any of the false certificates mentioned in
the next preceding article.
When any of the false certificates mentioned in Art 174 is
used in the judicial proceeding, Art 172 does not apply,
because the use of false document in judicial proceeding
under Art 172 is limited to those false documents
embraced in Arts 171 and 172.
Article 176. Manufacturing and possession of
instruments or implements for falsification. - The penalty
of prison correctional in its medium and maximum periods
and a fine not to exceed P10,000 pesos shall be imposed
upon any person who shall make or introduce into the
Philippine Islands any stamps, dies, marks, or other
instruments or implements intended to be used in the
commission of the offenses of counterfeiting or falsification
mentioned in the preceding sections of this Chapter. Any
person who, with the intention of using them, shall have in
his possession any of the instruments or implements
mentioned in the preceding paragraphs, shall suffer the
penalty next lower in degree than that provided therein.
2 acts being punished:
1) Making or introducing into the Philippines any
stamps, dies, marks, or other instruments or
implements for counterfeiting or falsification;
2) Possessing with intent to use the instruments or
implements for counterfeiting or falsification made
in or introduced into the Philippines by another
person.
Article 177. Usurpation of authority or official functions. -
Any person who shall knowingly and falsely represent
himself to be an officer, agent or representative of any
department or agency of the Philippine Government or of
any foreign government, or who, under pretense of official
position, shall perform any act pertaining to any person in
authority or public officer of the Philippine Government or
any foreign government, or any agency thereof, without
being lawfully entitled to do so, shall suffer the penalty of
prision correccional in its minimum and medium periods.
2 ways of committing the crime:
1) By knowingly and falsely representing oneself to
be an officer, agent or representative of any
department or agency of the Philippine
Government or any foreign government;
2) By performing any act pertaining to any person in
authority or public officer of the Philippine
Government or of a foreign government or any
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agency thereof, under pretense of official position,
and without being lawfully entitled to do so.
Article 177- Usurpation of authority or official
functions. We have said that the elements of false
pretense are necessary to commit the crime of usurpation
of authority or usurpation of official function. So, take note
that there are two acts that are made punishable under
this law:
1. Usurpation of authority, and
2. Usurpation of official function.
So, take note as what I have said the element of false
pretense is necessary without false pretense the crime
cannot be committed.
Let it be emphasized that if the offender commits the act
of usurpation as contemplated under this article and he
does it because he is a rebel pursuant to the crime of
rebellion or insurrection or sedition, he will not be liable
under this crime because what is attributed against him as
a crime of usurpation is in fact one of the elements of
committing rebellion. He will be liable therefore for the
greater crime of rebellion or sedition as the case may be.
Article 178. Using fictitious name and concealing true
name. - The penalty of arresto mayor and a fine not to
exceed 500 pesos shall be imposed upon any person who
shall publicly use a fictitious name for the purpose of
concealing a crime, evading the execution of a judgment
or causing damage.
Any person who conceals his true name and other
personal circumstances shall be punished by arresto
menor or a fine not to exceed 200 pesos.
Elements (using fictitious name):
1) That the offender uses a name other than his real
name;
2) That he uses that fictitious name publicly;
3) That the purpose of the offender is –
a) To conceal a crime
b) To evade the execution of a judgment; or
c) To cause damage to public interest.
Elements (concealing true name):
1) That the offender conceals –
a) His true name; and
b) All other personal circumstances.
2) That the purpose is only to conceal his identity.
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The name of a person is what appears in his birth
certificate. The name of the person refers to his first
name, surname and maternal surname. Any other name
which a person publicly applies to himself without
authority of law is a fictitious name. With this time we
have to consider R.A 6085 AN ACT AMENDING
COMMONWEALTH ACT NUMBERED ONE HUNDRED
FORTY-TWO (C.A. 142) REGULATING THE USE OF
ALIASES. Now, Section 1 of R.A. 6085 states:
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
Sec. 2. Any person desiring to use an alias shall apply for
authority therefore 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 original
name and all names or aliases or pseudonym he is or may
have been authorized to use.
So, what is the penalty: Imprisonment form 1 year to 5
years and a fine from 5,000 to 10,000 pesos. So what is
the rationale for enacting C.A. 142 as amended by R.A.
6085: the enactment of C.A 142 as amended by R.A.
6085 was for the practice among the Chinese of adopting
different aliases which created tremendous confusion in
the field of trade: Earlier in our discussion there are two
types of committing the crime: one is having a different
name from your birth certificate registered in the local civil
registry or a different name from that registered in the
bureau of immigration.
Can it happen? YES. For those people who are called
naturalized citizen. In one instance there was a petition
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filed in my court, involving a Chinese businessman, who
has been living in the country for more than 20 years
already, you know, the process of naturalization, meaning
his Chinese name is now using a diff name other from the
one registered in the bureau of immigration, now he is
asking for the change of his citizenship, he is also asking
for change of his name, so that two actions consolidated
in one petition. That kind of petition is one in a million not
all courts can have a case such as that. So, fortunately for
me I have one. (So Judge continues with the story about
the Chinese businessman)…
(Judge tells a story about Chinese businessman in DCLA
not giving receipts but will offer to give merchandise for a
lesser price)…
Now, such practice by Chinese men, in using different
names, also bordered in the crime of using fictitious name,
which without arbitration, such will be successful for the
Chinese men more likely or can claim or possess a
thousand and one names, several names, that is why, C.A.
142 penalizes the act of using an alias, unless such use
of alias was duly authorized by judicial proceedings and
registered in the civil registrar, alright, Take note noh!! So
two acts are punishable under Art. 178: 1. Using fictitious
name, and 2. Concealing true name. An example of the
second type is: (Judge, tells a story of his siblings and
cousins who are all male who were imprisoned because
nag-maoy and then dili mao ang name na gisulat sa
listahan sa prisohan, her brother used Keneth Duremdes
and her cousin used Winston Pascual, kanawung daw ni
Piolo Pascual.) Actually, this is an example of concealing
true name, Judge tells another story of a person he
convicted, inside the jail, and he revealed a different
name…
In the Case of Ursua vs. CA decided on April10, 1996 –
this case talks about this particular crime under the RPC,
as well as the application of CA 142, the use of a fictitious
a name or a different name belonging to another person in
a single instance, without any sign or in any case that the
user wants to be known in this name, in addition to his
real name from that day forth does not fall on
the provisions contained in C.A. 142 as amended, so take
note ha, the use of a fictitious a name or a different name
belonging to another person in a single instance will not
amount to the violation of C.A. 142, single instance = no
violation. Probably because what the justices at the time
think nga occasional lang man, so no violation, single
instance ra man. Alright now, this is what happened in the
case, So in the case of Ursua vs. CA, the accused went to
the office of the Ombudsman and asked for copies of the
complaint. In the office of the Ombudsman, he introduced
himself as Oscar Perez, does Oscar Perez exists? YES. But
that Oscar Perez is one of the staff of the lawyers,
accordingly he did so while merely serving the requests of
his lawyers to obtain a copy of the complaint, in which the
petitioner was the respondent. There is no question there
that Oscar Perez is not an alias name of petitioner, there is
no evidence showing that he had used or was intending to
use that name as his second name in addition to his real
name. The use of the name Oscar Perez was used by
petitioner in an isolated transaction wherein he was not
even legally required to expose his real identity or even if
he had identified himself properly in the office of the
Ombudsman, petitioner would still be able to get a copy of
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the complaint as a matter of right and the office of the
Ombudsman could not refuse him because the complaint
was part of public record. Hence open to inspection and
examination of anyone. So in other words, in the case of
Ursua vs. CA, if it is only isolated or occasional use of that
particular name then C.A. 142 will not be applicable, it will
not constitute a violation of the law. So what happened
here, how the court disposed the case? The decision here
is that Ursua was acquitted of the crime charged. Take
note ha, if it is only isolated transaction or occasional use
of the particular name, then we cannot say that C.A. 142
was violated.
So, let us go to the case of Joseph Estrada, En Banc
decided on April 2, 2009. The case for plunder was filed
against Estada, separate information was also filed for
illegal use of aliases and forgery. A case for plunder was
filed, a case for illegal use of alias was filed and also
forgery. These three cases, plunder, illegal use of alias and
forgery were consolidated into one. The evidence here of
the people consists mainly on the testimony of Atty.
Curato and Clarissa Ocampo from PCI bank, now BDO.
They testified that Estrada opened a numbered account
and signed as Jose Velarde. This is how the information
was filed : “ That on or about 04 February 2000, or
sometime prior or subsequent thereto, in the City of
Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being then
President of the Republic of the Philippines, without having
been duly authorized, judicially or administratively, taking
advantage of his position and committing the offense in
relation to office, i.e., in order to CONCEAL THE ill-gotten
wealth HE ACQUIRED during his tenure and his true
identity as THE President of the Republic of the
Philippines, did then and there, willfully, unlawfully and
criminally REPRESENT HIMSELF AS ‘JOSE VELARDE’ IN
SEVERAL TRANSACTIONS AND use and employ the SAID
alias “Jose Velarde” which IS neither his registered name
at birth nor his baptismal name, in signing documents with
Equitable PCI Bank and/or other corporate entities.”
His demurrer to evidence for Crim. Case No.
26565 (illegal use of alias) was anchored on the following
ground:
1. Of the thirty-five (35) witnesses presented by the
prosecution, only two (2) witnesses, Ms. Clarissa Ocampo
and Atty. Manuel Curato, testified that on one occasion (4
February 2000), they saw movant use the name “Jose
Velarde”;
2. The use of numbered accounts and the like was
legal and was prohibited only in late 2001 as can be
gleaned from Bangko Sentral Circular No. 302, series of
2001, dated 11 October 2001;
3. There is no proof of public and habitual use of alias
as the documents offered by the prosecution are banking
documents which, by their nature, are confidential and
cannot be revealed without following proper procedures;
and (He is referring to the Bank Secrecy Law)
4. The use of alias is absorbed in plunder.
The People opposed the demurrers through a Consolidated
Opposition that presented the following arguments:
1. That the use of fictitious names in bank transaction
was not expressly prohibited until BSP No. 302 is of no
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moment considering that as early as Commonwealth Act
No. 142, the use of alias was already prohibited. Movant
is being prosecuted for violation of C.A. No. 142 and not
BSP Circular No. 302;
2. Movant’s reliance on Ursua vs. Court of Appeals
(256 SCRA 147 [1996]) is misplaced;
3. Assuming arguendo that C.A. No. 142, as
amended, requires publication of the alias and the habitual
use thereof, the prosecution has presented more than
sufficient evidence in this regard to convict movant for
illegal use of alias; and
4. Contrary to the submission of movant, the instant
case of illegal use of alias is not absorbed in plunder.
The Sandiganbayan, the Court that has
jurisdiction over the case said that alias in front of Ocampo
and Curato is one such privileged communication under
R.A. No. 1405, as amended. The Sandiganbayan said:
Movant’s act of signing “Jose Velarde” in bank
documents being absolutely confidential, the witnessing
thereof by bank officers who were likewise sworn to
secrecy by the same law cannot be considered as ‘public’
as to fall within the ambit of CA 142 as amended. On
account of the absolute confidentiality of the transaction, it
cannot be said that movant intended to be known by this
name in addition to his real name. Confidentiality and
secrecy negate publicity. Ursua instructs:
Hence, the use of a fictitious name or a different
name belonging to another 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 in C.A.
No. 142 as amended.
The Sandiganbayan further found that the
intention not to be publicly known by the name “Jose
Velarde” is shown by the nature of a numbered account –
a perfectly valid banking transaction at the time Trust
Account C-163 was opened. The opening, too, of a
numbered trust account, the Sandiganbayan further ruled,
did not impose on Estrada the obligation to disclose his
real identity – the obligation R.A. No. 6713 imposes is to
file under oath a statement of assets and liabilities.
Alright now, how did the Supreme Court rule in the
matter.. I will hold you responsible on the ruling…
September 11, 2015
1st hour
Review: CA 142 was amended later by RA 6085. I also
gave you the case of Ursua v. CA decided April 10, 1996. I
believe you already discussed this in your criminal law 2.
Alright, now I cited to you also the case of People v.
Joseph Estrada decided on April 2, 2009. Likewise, I cited
to you questions from the Bar dealing on CA 142.
Now, there was 1 bar question in 2006, and this calls for
the application of RA 6085. So if I were you, I would read
RA 6085. Again I will repeat the rule, leave no stones
unturned.
ACT No. 6085
AN ACT AMENDING COMMONWEALTH ACT
NUMBERED ONE HUNDRED FORTY-TWO
REGULATING THE USE OF ALIASES.
Section 1. Section one of Commonwealth Act Numbered
One hundred forty-two is hereby amended to read as
follows:
"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."
Section 2. Section Two of Commonwealth Act Numbered
One hundred forty-two is hereby amended to read as
follows:
"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."
Section 3. Section three of Commonwealth Act
Numbered One hundred forty-two, is hereby amended
to read as Follows:
"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

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execute any public or private document without stating
or affixing his real or original name and all names or
aliases or pseudonym he is or may have been authorized
to use."
Section 4. Commonwealth Act Numbered One hundred
forty-two is hereby amended by the insertion of the
following new section to be designated Section four to
read as follows:
"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."
Section 5. Section four of Commonwealth Act Numbered
One hundred forty-two is hereby amended to read as
Section five, as follows:
"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."
I also gave you the case of Roberta Mingson? v. Gonzales
decided Mar. 31 2014.
Article 179. Illegal use of uniforms or insignia. - The
penalty of arresto mayor shall be imposed upon any
person who shall publicly and improperly make use of
insignia, uniforms or dress pertaining to an office not
held by such person or to a class of persons of which he
is not a member.
Elements:
1. The offender makes use of an insignia uniform or
dress
2. The insignia uniform or dress pertains to an office
not held by such person or to a class of persons of
which he is not a member
3. The insignia uniform or dress is used publicly and
improperly
The uniform contemplated by law, under 179, carries
authority which the public too respects. The uniform
symbolizes authority, the example would be a member of
the Philippine army, marines, or air force. They have to
wear their uniform and it symbolizes their office, it
commands respect and so any person has no right
whatsoever to use the uniform or insignia.
What if you wear the uniform of an imaginary office? I will
not mention the name but you now him. He’s wearing a
uniform but he doesn’t know what office. *story*
 The rule is that of he wears that kind of uniform,
179 is not violated. The rule is wearing of a
uniform of an imaginary office is not punishable
under 179. *story*
85
“When your resources are down to nothing, believe that God is up to something =)”
So if you would wear that kind of uniform and naay
nakatatak pa na he is the supreme commander, then he
incurs no liability under 179. The uniform contemplated
under law is that which pertains to a pseudo or fictitious
organization.
A good example of this is a person who wears the black
robe of a catholic priest and makes himself available at
funeral homes to celebrate mass for the dead and share in
the mass collections. This is a good example of 179.
Now, the wearing of insignia, the wearing of a robe of a
catholic priest and you are not a priest, you violated 179.
Or you are a member of the Philippine Army and you are
wearing the uniform of the military but you are not [a
member]. But supposing you will wear the uniform of the
Davao Metroaide? Do I incur a crime, because I am
wearing the uniform of an organization to which I do not
belong and then I pretended to be a member?
 I don’t think so. No person will mind me anyway.
Because I am only wearing that uniform of a
davao metroaide. That’s how cruel society is.
Take note wearing of insignia badge or emblem of the
members of the AFP or PNP is punished by RA 493.
REPUBLIC ACT NO. 493
AN ACT TO PROHIBIT THE USE OR CONFERRING
OF MILITARY OR NAVAL GRADES OR TITLES BY
OR UPON PERSONS NOT IN THE SERVICE OF THE
ARMED FORCES OF THE PHILIPPINES OR THE
PHILIPPINE CONSTABULARY, TO REGULATE THE
WEARING, USE, MANUFACTURE AND SALE OF
INSIGNIAS, DECORATIONS AND MEDALS,
BADGES, PATCHES AND IDENTIFICATION CARDS
PRESCRIBED FOR THE SAID ARMED FORCES OR
CONSTABULARY, AND FOR OTHER PURPOSES
Section 1. Hereafter it shall be unlawful for any person
or association or persons not in the service of the Armed
Forces of the Philippines of the Philippine Constabulary
to use, or confer upon himself or another who is not in
the service of the said Armed Forces or Constabulary,
any military or naval grade or title which is, or may
hereafter be, prescribed by laws and regulations for the
use of the Armed Forces or Constabulary: Provided, That
the foregoing shall not be construed as prohibiting the
use of such military or naval grades or title by personnel
or persons now authorized by law and by the following
persons:
(a) All veterans of any war when recognized by the
Philippine or United States Government and only for the
ranks for which they are recognized;
(b) Commissioned officers and personnel, retired or in
active duty, of the Bureau of Coast and Geodetic Survey,
of the quarantine service, and of the customs service;
(c) Commissioned and enlisted reservists including
recognized guerrilla officers on inactive status when
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using their authorized grades for a purely military
purposes;
(d) Trainees in the Armed Forces while undergoing
any period of trainee instruction pursuant to law.
Sec. 2. Hereafter it shall be unlawful for any person
not in the service of the Armed Forces of the Philippines
or the Philippine Constabulary, except those excluded
from the prohibition in section one of this Act, to use or
wear the duly prescribed insignia, badge or emblem or
rank of the members of the Armed Forces of the
Philippines or the Philippine Constabulary, or any
colorable imitation thereof: Provided, That the foregoing
shall not be construed as prohibiting any person from
using or wearing any military or naval insignia, badge or
emblem of rank in any play-house or theater or in
moving-picture films while actually engaged in
representing therein a military or naval character not
tending to bring discredit or reproach upon the Armed
Forces of the Philippines, the Philippine Constabulary or
the Bureau of Coast and Geodetic Survey: Provided,
further, That the use or wearing of any military or naval
insignia, badge or emblem of rank while engaged in
representing a military or naval character as
hereinabove described, shall be subject to supervision
and regulation by the Secretary of National Defense.
The phrase "duly prescribed insignia, badge or emblem
of rank" shall, for the purpose of this Act, mean any
insignia, badge or emblem of rank which is, or may
hereafter be, prescribed by Congress, the Secretary of
National Defense or the Chief of Constabulary.
Sec. 3. Hereafter the use, wearing, manufacture and
sale of any medal or decoration, badge, insignia, patch,
or identification card which has been, or may hereafter
be, authorized by Congress or prescribed or awarded by
the President of the Philippines or the Secretary of
National Defense for the members of the Armed Forces
of the Philippines, or any colorable imitation thereof, is
prohibited, except when authorized under such
regulations as the Secretary of National Defense shall
prescribe.
Sec. 4. Any person who confers upon himself or
another any military or naval grade or title in violation of
section one of this Act shall, upon conviction, be
punished by a fine of not less than two thousand pesos
and not exceeding five thousand pesos or by
imprisonment for not less than two years and not
exceeding five years, or both. Any person who
violates any other provision of this Act shall, upon
conviction, be punished by a fine of not less than
one hundred pesos and not exceeding two
thousand pesos, or by imprisonment for not less
than one month and not exceeding two years, or
both. In case the violation is committed by a
corporation, the manager and all the members of
the board of directors or governing body thereof,
shall be liable individually in accordance with this
section.
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“When your resources are down to nothing, believe that God is up to something =)”
So the rule is that if you wear the uniform of the PNP and
you are not a member of the PNP, the emblem or insignia
of this office, you violates article 179.
Please remember there is also an executive order against
the illegal manufacture of PNP insignias, etc. *story*
EXECUTIVE ORDER NO. 297
REGULATING THE MANUFACTURE, SALE,
DISTRIBUTION AND USE OF PNP UNIFORMS,
INSIGNIAS AND OTHER ACCOUTREMENTS
WHEREAS, the PNP uniforms, insignias and other
accoutrements are symbolic of a discipline and an image
which portray the character and being of every
policeman, most representative of a professional
Philippine National Police;
WHEREAS, the use or wearing of PNP uniforms,
insignias and other accoutrements projects at the very
first instance an identity that establishes a distinctive
recognition exclusive to every policeman and the
Philippine National Police;
WHEREAS, the PNP uniforms, insignias and other
accoutrements are easily available and/or procured from
any manufacturer, seller, distributor, or supplier by any
person, including unscrupulous and lawless individuals
who make a mockery of their use for personal gain,
unlawful purposes and/or other designs to degrade the
policeman and the Philippine National Police;
WHEREAS, while Article 179, “Illegal use of uniforms or
insignia” of Republic Act 3815, otherwise known as the
Revised Penal Code of the Philippines penalizes any
person who shall publicly and improperly make use of
insignia, uniforms or dress pertaining to an office not
held by such person or to a class of persons of which he
is not a member; it does not include the illegal
manufacture, sale and distribution of the same;
WHEREAS, while Republic Act No. 493 was also enacted
prohibiting, among others, the wearing, use,
manufacture and sale of insignias, decorations and
medals, badges, patches and identification cards
prescribed for the “Armed Forces” or “Constabulary”, it
does not apply to the Philippine National Police;
WHEREAS, there is no law that governs and regulates
the manufacture, sale, distribution and use of uniforms,
insignias and other accoutrements of the Philippine
National Police;
WHEREAS, to ensure that PNP uniforms, insignias and
other accoutrements are manufactured, sold, distributed
or supplied only by authorized manufacturer, distributor,
supplier and/or seller and used exclusively by uniformed
personnel of the PNP, there is a need for regulation;
NOW, THEREFORE, I, JOSEPH EJERCITO ESTRADA,
President of the Republic of the Philippines, by virtue of
the powers vested in me by law, do hereby order:
SECTION 1. The unauthorized manufacture, sale and
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distribution of PNP uniforms, insignias and other
accoutrements is hereby prohibited. Any violation of this
rule shall, after due notice and hearing, result in the
immediate closure of the establishment, plant and/or
office where the uniforms and other items are
manufactured, stored, sold and/or distributed, the
cancellation of its business license or permit, the
condemnation, seizure and forfeiture of all paraphernalia
used or intended to be used in the manufacture, sale
and/or distribution and the imposition of reasonable
administrative fines, without prejudice to the filing of
administrative, civil and/or criminal actions.
SEC 2. The use of PNP uniforms, insignias and other
accoutrements by any person who is not a member of
the uniformed Philippine National Police personnel is also
prohibited. Any violation of this rule shall, after due
notice and hearing, be penalized by public censure
which shall be published at least once in a newspaper of
general circulation without prejudice to the filing of
administrative, civil and/or criminal actions.
SEC 3. The Philippine National Police shall adopt its own
uniforms, insignias and other accoutrements for the
exclusive use of its uniformed personnel. The uniforms
and other items shall be subject to inspection and
acceptance procedures of the Philippine National Police
with each design and specification approved by the PNP
Uniform and Equipment Standardization Board (UESB).
As such, only those accredited by the PNP and the
National Historical Institute are authorized to
manufacture, sell or distribute the same.
Section Two. - False testimony
What is false testimony?
 It is the declaration under oath of a witness in a
judicial proceeding which is contrary to what is
true or to deny the same or alter essentially the
truth.
Nature of the crime – these are the things that you
must remember:
1. Cannot be committed thru reckless imprudence
because false testimony requires criminal intent or
intent to violate the law which is an essential
element of the crime
2. If the false testimony is due to honest mistake,
error or there was good faith, then no crime is
committed.
Why is it made a crime?
 The rationale is it is falsehood so reprehensible
but it is particularly odious if it is completed in a
judicial proceeding as it constitutes an imposition
upon the court, and seriously exposes it to
miscarriage of justice. While false testimony if
favor of the accused may be less obnoxious that
false testimony against him, both forms are
equally repugnant to the order of the
administration of justice and deserves to be
rigorously suppressed.
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“When your resources are down to nothing, believe that God is up to something =)”
What are the forms?
1. False testimony in criminal cases
2. In civil cases
3. In other cases
Article 180. False testimony against a defendant. - Any
person who shall give false testimony against the
defendant in any criminal case shall suffer:
1. The penalty of reclusion temporal, if the defendant in
said case shall have been sentenced to death;
2. The penalty of prision mayor, if the defendant shall
have been sentenced to reclusion temporal or reclusion
perpetua;
3. The penalty of prision correccional, if the defendant
shall have been sentenced to any other afflictive
penalty; and
4. The penalty of arresto mayor, if the defendant shall
have been sentenced to a correctional penalty or a fine,
or shall have been acquitted.
In cases provided in subdivisions 3 and 4 of this article
the offender shall further suffer a fine not to exceed
1,000 pesos.
Elements:
1. There must be a criminal proceeding
2. The offender takes the witness stand and testifies
falsely under oath against the accused
3. The offender gives testimony in court with full
knowledge that the same is false.
Any person who gives false testimony against the
defendant. Sanctity of the oath during testimony has been
violated so many times *story*
Example: A policeman in a buy bust operation based on
the records, he was the pusher-buyer, but in truth he was
not part of the operation. He was only made to sign the
affidavit because the superiors say so. That is his
testimony, what actually happened. But in his affidavit and
when he will be presented for direct examination, he will
testify based on what his affidavit says. And when the
court learned that he is testifying falsely, the court will
notice during cross examination and when it conducts
clarificatory questions. That’s the time he will know
because when a person testifies falsely, when he will be
grilled during cross and questions in court, the truth will
set him free. Unfortunately, there are so many policemen
who have harnessed the skill (hawd na daw). So the cross
examiner will have difficulty in determining.
Example: The prosecutor presented to the witness stand,
based on the affidavit a pusher-buyer. Now, during
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clarificatory question, it turns out that he wasn’t there, he
wasn’t in the operation. He only signed the document the
affidavit because the superiors said so. He revealed this
open court. I immediately dismissed the case. Sadly, their
administration filed an administrative case against him.
*story*
4. That the defendant against whom the false
testimony is given is either acquitted or convicted
5. That the decision or conviction is final and
executory
Now to avoid confusion, it is emphasized that the situation
under 180 is the pendency of the criminal case. A false
testimony is presented by the prosecution against the
accused. [sorry, nagabell sa background, I transcribed this
to the best that I can] And after trial, the court renders a
decision or conviction. The decision becomes final,
thereafter the investigation is conducted or it is
immediately disclosed that during trial he was falsely
presented. Assuming the false witness is formally charged
of violating 180 and is found guilty, the penalty imposed
on him will depend on the penalty imposed against the
accused who testified falsely. [see codal sa penalties]
To illustrate: the accused is charged with robbery with
homicide. Mr. A testified against him falsely. After trial, the
accused was sentenced to death. *story* In imposing the
penalty against Mr. A, the basis will be the sentence
imposed against the accused where Mr. A testified falsely.
Accordingly, Mr. A should be sentenced to reclusion
temporal.
On the same set of facts, if the offender is sentenced to
suffer the penalty of RT or RP, the false witness should be
sentenced to suffer the penalty prision mayor (one degree
lower). If the accused is sentenced to suffer the penalty of
PC, or a fine, or is acquitted, the false witness shall suffer
the penalty of arresto mayor.
Remember that only after a final judgment or conviction or
acquittal may the issue of false testimony having been
given in a criminal case can come into play. In resolving
the false testimony given against the accused, the witness
who gave the false testimony is now liable even if his
testimony was not given probative value by the court.
What is made punishable is the mere giving of false
testimony. *story*
Article 181. False testimony favorable to the defendants.
- Any person who shall give false testimony in favor of
the defendant in a criminal case, shall suffer the
penalties of arresto mayor in its maximum period to
prision correccional in its minimum period a fine not to
exceed 1,000 pesos, if the prosecution is for a felony
punishable by an afflictive penalty, and the penalty of
arresto mayor in any other case.
In this case, the testimony given is absolutely false and is
intended to favor the accused. This is what appears to be
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the intention of the false witness. But the probative value
of the testimonial evidence is subject to the rules of
evidence. It may not be considered by the judge but
whether the testimony is credible or not, or whether
appreciated or not in the context that the false witness
wanted it to be, the crime of false testimony is still
committed since it is punished not because of the effects it
produces but because of its tendency to favor the
accused.
Article 182. False testimony in civil cases. - Any person
found guilty of false testimony in a civil case shall suffer
the penalty of prision correccional in its minimum period
and a fine not to exceed 6,000 pesos, if the amount in
controversy shall exceed 5,000 pesos, and the penalty of
arresto mayor in its maximum period to prision
correccional in its minimum period and a fine not to
exceed 1,000 pesos, if the amount in controversy shall
not exceed said amount or cannot be estimated.
Elements:
1. The testimony must be given in a civil case
2. Testimony must be related or relevant to the
issues or facts under consideration
3. Testimony must be absolutely false
4. Testimony was maliciously presented to materially
affect the decision of the court
Take note that if the false witness is found guilty, the basis
of the penalty is made to depend upon the amount in the
civil action. The civil action contemplated under this article
refers to ordinary civil actions, like sum of money or
specific performance.
What if the false testimony is offered in a special
proceeding? Shall we apply 182? Example, change of
name.
 No, 182 will not apply if the false testimony is
offered in a special proceeding. In such a case, it
may rightfully be considered as under 183.
Article 183. False testimony in other cases and perjury in
solemn affirmation. - The penalty of arresto mayor in its
maximum period to prision correccional in its minimum
period shall be imposed upon any person, who
knowingly makes untruthful statements and not being
included in the provisions of the next preceding articles,
shall testify under oath, or make an affidavit, upon any
material matter before a competent person authorized
to administer an oath in cases in which the law so
requires.
Any person who, in case of a solemn affirmation made
in lieu of an oath, shall commit any of the falsehoods
mentioned in this and the three preceding articles of this
section, shall suffer the respective penalties provided
therein.
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Acts punished:
1. Falsely testifying under oath
2. Making a false affidavit
Elements of perjury:
1. Testimony was given in a non-judicial proceeding
2. It can also be in the form of an affidavit
3. Narration given in a non-judicial proceeding must
be a material matter
4. Testimony or affidavit must be under oath or
administered by a person who is competent to do
so
5. False testimony or affidavit was wilfully and
deliberately made, and not a product of mistake or
oversight
6. Testimony or affidavit was given or presented as it
was required by law
By way of emphasis, when one testifies falsely before the
court, the crime committed is false testimony, regardless
what kind of procceding is that – criminal or civil. But if
one testifies falsely in a non-judicial proceeding [CSC or
NLRC] the crime committed is perjury. If one falsely
testifies in a non-judicial proceeding, the crime committed
is perjury.
In false testimony, it is not required that the offender
asserts falsehood in a material matter. It is enough that he
testifies falsely with deliberate intent. But in perjury, the
witness must testify or assert a fact on a material matter
with full knowledge and information given is essentially
contrary to the truth. For this reason, he should know
what is the meaning of a material matter. It means the
main fact is the subject or object of inquiry.
Remember, because of the nature of perjury wilful and
frank? assertion of falsehood, there is no perjury
committed thru reckless imprudence under article 65?
Since it can only be committed thru dolo or intentional,
then good faith or lack of malice is a good defense when
one is indicted for the crime of perjury.
Let’s take the case David v. Editha Agbay and the People
of the Philippines Decided march 18 2015
F: In 1974, petitioner migrated to Canada where he
became a Canadian Citizen by naturalization. Upon the __
of the spouses, the petitioner and his wife returned to the
Philippines. Sometime in 2000, they purchased a 600 sq m
lot in Oriental Mindoro where they constructed a
residential house. However in 2004, they came to know
that the place where they built their house is a public land
and part of the salvage zone. So on Apr 2007, petitioner
filed a miscellaneous lease application over the land with
the DENR and CENRO. In said application, the petitioner
indicated that he is a Filipino citizen. The respondent
Agbay opposed the application on the ground that
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petitioner is a Canadian citizen and therefore disqualified
to own the land. Not only that, Agbay also filed a criminal
complaint for falsification of public document under 172 of
RPC against petitioner for stating in his application that he
is a Filipino citizen when at that time he was already a
Canadian citizen. Meanwhile, petitioner reacquired Filipino
citizenship under the provisions of RA 9225 as evidenced
by his ID Certificate number which was issued by the
consulate general of the Phils on Oct 2007.
ISSUE: WON the crime of falsification is committed.
Falsification of documents article 172 in relation to 171
refers to falsification of a private individual or a public
officer or ee who did not take advantage of his official
position. Here, he is a private individual who falsifies a
public document. The elements of the crime under art 172
(1):
1. That the offender is a private individual or a public
officer or employee who did not take advantage of his
official position
2. That he committed any of the acts of falsification
enumerated in Article 171
3. That the falsification was committed in a public or
official or commercial document
The SC said the petitioner made untruthful statements in
the miscellaneous lease application, which is considered a
public document - that he is a Filipino citizen at the time of
filing of the said application for patent when in fact, he
was still a Canadian citizen. Under CA 63, the governing
law at that time, he was naturalized as a canadian citizen.
When he reacquired fil. citizenship under 9225, six months
later, the falsification was already a consummated act, the
said law having no retroactive effect insofar as dual cit
status is concerned. SC said he is criminally liable because
at the time of his submission of his application, truth is, he
was a canadian citizen.
I have a feeling that this kind of question will be asked in
Consti law, not in criminal law. What is important here is
that there is no retroactive effect insofar as RA 9225 is
concerned. Because the law does not state that it shall be
given retroactive application. Kindly read this case David
v Agbay and People, march 18, 2015
"Falsification of documents under paragraph 1, Article 172
in relation to Article 171 25 of the RPC refers to falsification
by a private individual, or a public officer or employee who
did not take advantage of his official position, of public,
private, or commercial documents. The elements of
falsification of documents under paragraph 1, Article 172
of the RPC are:
1. that the offender is a private individual or a public
officer or employee who did not take advantage of
his official position;ch
2. that he committed any of the acts of falsification
enumerated in Article 171 of the RPC; and n
3. that the falsification was committed in a public,
official or commercial document.
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Original TSN from 2012- 2013 Uno Manresa lectures
Petitioner made the untruthful statement in the MLA, a
public document, that he is a Filipino citizen at the time of
the filing of said application, when in fact he was then still
a Canadian citizen. Under CA 63, the governing law at the
time he was naturalized as Canadian citizen, naturalization
in a foreign country was among those ways by which a
natural-born citizen loses his Philippine citizenship. While
he re-acquired Philippine citizenship under R.A. 9225 six
months later, the falsification was already a consummated
act, the said law having no retroactive effect insofar as his
dual citizenship status is concerned. The MTC therefore
did not err in finding probable cause for falsification of
public document under Article 172, paragraph 1."
What are the points to remember in the crime of perjury?
1. Perjury is a crime other than false testimony in
criminal cases or false testimony in civil cases
2. Contradictory sworn statements are not
sufficient to convict the affiant for the crime of
perjury
3. there must be evidence to show which of the
two statements is true and which is false
4. the same must be established or proved from
sources other than the two contradictory
statements
5. there is no perjury if statement or affidavit was
made before a person not authorized to receive
and administer oath. (ex. barangay tanod or
kagawad without authority)
6. the affidavit or sworn statement must be
required by law (ex. affidavit of adverse claim)
Union Bank and DESI Tomas v People (en banc) - the
accused (Tomas) was charged in court for perjury under
Article 183 of the Revised Penal Code (RPC) for making a
false narration in a Certificate against Forum Shopping.
The Information against her reads:
That on or about the 13th day of March 2000 in the City of
Makati, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and
feloniously make untruthful statements under oath upon a
material matter before a competent person authorized to
administer oath which the law requires to wit: said
accused stated in the Verification/Certification/Affidavit of
merit of a complaint for sum of money with prayer for a
writ of replevin docketed as [Civil] Case No. 342-00 of the
Metropolitan Trial Court[,] Pasay City, that the Union Bank
of the Philippines has not commenced any other action or
proceeding involving the same issues in another tribunal or
agency, accused knowing well that said material statement
was false thereby making a willful and deliberate assertion
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of falsehood.
The accusation stemmed from petitioner Union Banks two
(2) complaints for sum of money with prayer for a writ of
replevin against the spouses Eddie and Eliza Tamondong
and a John Doe. The first complaint, docketed as Civil
Case No. 98-0717, was filed before the RTC, Branch 109,
Pasay City on April 13, 1998. The second complaint,
docketed as Civil Case No. 342-000, was filed on March
15, 2000 and raffled to the MeTC, Branch 47, Pasay City.
Both complaints showed that Tomas executed and signed
the Certification against Forum Shopping. Accordingly, she
was charged of deliberately violating Article 183 of the
RPC by falsely declaring under oath in the Certificate
against Forum Shopping in the second complaint that she
did not commence any other action or proceeding
involving the same issue in another tribunal or agency.
WON there was forum shopping. YES
WON Tomas was liable for art 183 (Perjury). Read this
case.
Art. 184. Offering false testimony in evidence. —
Any person who shall knowingly offer in evidence a
false witness or testimony in any judicial or official
proceeding, shall be punished as guilty of false
testimony and shall suffer the respective penalties
provided in this section.
Elements of offering false testimony in evidence
1. That the offender in evidence a false witness or false
testimony
2.That he knew the witness or the testimony was false
3. That the offer was made in a judicial or official
proceeding
. Perjury v. False Testimony
. Perjury is committed in NON-judicial proceeding
while false testimony is given in a judicial proceeding.
. The statement or testimony is required by law in
perjury. In false testimony, it is not required by law.
. In perjury, the amount involved is not material; in
false testimony, the amount involved esepcially in civil
cases is material, if it is determinative..
. In perjury, it is immaterial whether statement or
testimony is favorable or not to the accused; in false testi,
always material in criminal cases.
READ: Philip Yu v Hernan Lim Sept 22, 2010 - forum
shopping verification/certification
Art. 185. Machinations in public auctions. — Any
person who shall solicit any gift or promise as a
consideration for refraining from taking part in any
public auction, and any person who shall attempt
to cause bidders to stay away from an auction by
threats, gifts, promises, or any other artifice, with
intent to cause the reduction of the price of the
thing auctioned, shall suffer the penalty of prision
correccional in its minimum period and a fine
ranging from 10 to 50 per centum of the value of
the thing auctioned.
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Original TSN from 2012- 2013 Uno Manresa lectures
There are two acts that are being punished here:
1. Soliciting any gift or promise as a consideration for
refraining from taking part in any public auction.
- Here the act of soliciting, the act of asking or demanding
is the act punishable under Art. 185. In this instance the
offender is the solicitor. Read the case of Ouano vs. CA
188 SCRA 799 – a very good case>
2. Attempting to cause bidders to stay away from an
auction by employment of threats, gifts, promises or any
other artifice.
Art. 186. Monopolies and combinations in restraint
of trade.
I have to skip this because this is covered by Intellectual
Property - RA 8293
Let us now proceed to Crimes Against Opium or
Dangerous Drugs Law. If you are using the old book just
like my book, you have to abandon that already because
that has been superseded by Republic Act 6425, and now
Republic Act 9165 as amended. Take a look at the
declaration of policy. You can find that in the law itself. We
will only be discussing the salient points of the law.
Now, what are the most commonly violated sections under
Republic Act 9165? We have Section 5.
1. Section 5. Sale, Trading, Administration,
Dispensation, Delivery, Distribution and
Transportation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemical.
2. Section 6. Maintenance of a Den, Dive or Resort.
There has been no case in my court dealing on this. But I
have one in Tagum, violation of Section 6, maintenance of
a drug den.
3. Section 7. Employees and Visitors of a Den, Dive
or Resort.
That is why I would like to emphasize this to every male.
Be careful to choose where to go, where to hangout
because it might be a drug den. Ambot nalang if you are
there in the drug den. Haruson mo bah. “sir wala man mi
labot ana.” “sa precinto ka na magpaliwanag. “ imagine
the answer? Unsang klaseng law student na? adik man
diay na. wala pa gani na testingan kung adik ba jud na.
pero ang perception sa community, adik na!di pud! Dili
tanang seller ug shabu adik. Dili man bah, although naay
uban adik pero kabalo kaayo mutago. Laklak siya ug 2 ka
litro, 5 ka litro na... unsa’y tawag ana? Fresh milk. Lalakon
na niya, siyaro dili mawala ang traces ana sa drug. Ayaw
ko I quote ninyo ha na ako na gatudlo ko ninyo ha. Ay
wala!ERASE! ERASE! ERASE! Erase na! Erase! Pati pud
gani ng nakapusil ka, gamit ang 45 caliber gun, unya I
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“When your resources are down to nothing, believe that God is up to something =)”
paraffin test ka. Unsaon man na pagwala? Ay, naa!! Naa
jud! Pero I will not tell you. Ug kung makapatay mo,
sundugon ninyo tong akong iingon. Pero epektibo ni!
Effective! During the time that I was a practitioner, yes!
Very effective! Mu ingon ang NBI na I test. Ok, go ahead!
Mao na na. kay pag paraffin test man kay negative. Pero I
will not tell you. Sundugon palang ninyo if mag lawyer
namo puhon. Mao ng buhaton ninyo sa inyong cliente na
nakapatay. Pero kung ma lawyer namo and it involves
drugs, ingnan nimo na “laklak sa didto ug fresh milk!”
tingala man ta ngano daghan man ug litro dire sa gawas!
Labi na sa mga policemen na undergo ug random test
pagka ugma. Ah, magkabuang jud ug pangita ug kwarta
pampalit ug fresh milk. Tanan tindahan adtuon, maski
sirado na tuktukon, bukbukon. Palit ug fresh milk kay mag
random test man pagka ugma. Wala na nay tulog tulog
bah. Grabe na na ug inumanay. Pag urine test pa,
negative. Pagkahuman ug test, balik napud ug hithit ug
shabu.
Mao ng kalaban nila. Unsaon man jud na, in the case of a
taxi driver. “nanginabuhi man gud mi Ma’am.” “Unya
diay?” “Sayang man gud ang panahon Ma’am kung
matulog mi.” wala na na sila’y tulugay. Kaya kamo mga
ladies, be careful in choosing a cab. Musakay mo and
matimingan na adik diay ng driver. This is true testimony
made by a taxi driver who has a case before my court. He
pleaded guilty. From that time on, never did I allow my
daughter to ride a taxi. Bahala na magkabungibungi ko,
ako lang musundo sa iya kay dili nako gusto na pasakyon
siya ug taxi with that kind of taxi driver. See? Or a bus
driver or van driver. ga tuo mo na ng mga bus driver wala
ga take? Or maski kanang sa van? Kita niyo, kusog ug
dagan. Tapos muingon na wala sila ga take? Hhhmm.
Storyahe imong lolo!
So, what are the other acts?
4. Section 8. The manufacture of Dangerous Drugs
and/or Controlled Precursors and Essential
Chemicals.
What is now the prevalent system in the country is that
we have a kitchen laboratory. We have a kitchen type
laboratory. Mao gani ng uban isulod lang sa rice cooker.
5. Section 9. Illegal Chemical Diversion of Controlled
Precursors and Essential Chemicals.
6. Section 10. Manufacture or Delivery of Equipment,
Instrument, Apparatus, and Other Paraphernalia
for Dangerous Drugs and/or Controlled Precursors
and Essential Chemical.
7. Section 11. Possession of Dangerous Drugs.
This is one of the provisions which is commonly violated.
8. Section 12. Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous
Drugs.
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Original TSN from 2012- 2013 Uno Manresa lectures
I will advice the male students. Madisgrasya mo diha
tapos naay aluminum foil na nakit-an. Improvised tooter.
Maayo kung bright inyong abugado. What if pag test sa
inyong improvised tooter, naay shabu na nakit-an. Eh di
pusa mo! You know there are lawyers in Davao City who
are under the surveillance of PDEA. Because there are
lawyers in Davao City who are taking shabu. That is why
when they go to my court, especially during cross
examination, the lawyer does this oh. (Judge
demonstrates the act.)
With that kind of lawyer, he does not want me to
see how his mouth moves because I can determine if you
are an addict and what kind of substance you are taking
whether it is a marijuana or shabu. Sa imo lang baba,
makabalo ko. Siyaro,pila naman pud ko ka tuig nag
atubang sa mga addicts. So, I hope in your batch wala’y
mag ing-ana intawon ha. Mutukar baya jud ang magtake
ana especially if pag exam. Halinon kayo ang shabu
everytime naa’y exam. Naa baya mo’y exam karong
sabado. Especially pag exam sa nursing, sa doctors,
halinon ang shabu ana. Mao na, kamo mga males, please.
9. Section 13. Possession of Dangerous Drugs during
Parties, Social Gatherings or Meetings.
10. Section 14. Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous
Drugs during Parties Social Gathering or Meetings.
11. Section 15. Use of Dangerous Drugs.
12. Section 16. Cultivation or Culture of Plants
Classified as Dangerous Drugs or are Sources
Thereof.
Just like the raid conducted here in Davao City where
marijuana plants were uprooted inside the compound.
13. Section 17. Maintenance and Keeping of Original
Records of Transactions on Dangerous Drugs
and/or Controlled Precursors and Essential
Chemicals.
14. Section 18. Unnecessary Prescription of Dangerous
Drugs.
15. Section 19. Unlawful Prescription of Dangerous
Drugs.
Problem: Tommy, a police officer, posing as a buyer,
bought marijuana from Erwin. The latter gave one pack of
marijuana dried leaves to Tammy. When Erwin was being
arrested, he ran to the back of his house where another 3
packs of marijuana leaves were confiscated from him. If
you were the prosecutor, what charges would you file
against Erwin?
Answer: The charge would be the sale of dangerous
drugs under Section 5 and illegal possession of drugs
under Section 11.
Let us first go to Section 5. What are the elements? I have
to emphasize this because there has been no question or
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“When your resources are down to nothing, believe that God is up to something =)”
no bar exam question regarding RA 9165. Swerte kaayo if
kada bulan naa’y decision from the Supreme Court
regarding dangerous drug law.
Elements of Section 5:
1. The identity of the buyer, seller, the object and
the consideration, it has to be established.
2. The delivery of the thing sold in the court
3. Proof that the transaction took place coupled with
the presentation before the court of the substance
presented as evidence.
That is why noh, in the prosecution, a question is
asked. “When you arrived at the area, what happened?” “I
was introduced to the seller.” “During the introduction,
what happened?” “The seller gave to me a sachet of
shabu.” You think the court will believe you? How will I
believe on you? How will you know that you gave a sachet
of shabu when you did not say so? Hhhmm. Wala pa gani
ka kaingon, gitagaan na ka! Wala pa ka nag-ingon pila ang
imong paliton, gitagaan naka. Pasabot nimo, mananagna
ang seller? Gitagana niya ang imong huna-huna kung pila
ang imong paliton ug pila imong kwarta? See! These are
the considerations to determine whether or not the
accused may be held guilty for the crime of selling.
Another case. SP01 Julian. “so what happened in the
crime scene?” “I immediately informed him that I am a
policeman.” “And after you told him you are a policeman,
what did you do next?” “ I bought from him one sachet of
shabu.” Mabuang ko sa tubag ui! What made you think
that the court will believe you that after saying that you
are a policeman, this party will still sell to you. These are
the things. You know other lawyers do not accept drug
cases. But I challenge you. When you will become lawyers
in the future, try one. Not the drugs but the case. It is
quite very challenge.
Even buyers must inform expressly the quantity that they
are buying so they will know how much to deliver.
2nd hour
0:59:20
Try to accept drug cases..
Even regular buyers and users inform, impliedly or
expressly, the drug merchant on the quantity they
are buying so that he will now how much to deliver.
For example if you have 500 peso with you as buy bust
money and the accused sold to you 5 grams of shabu, that
is too good to be true. Because 5 grams of shabu is
already worth 200,000 or 300,000. The 500 peso ang
hatag ana sa imoha 0.004g lang. But despite the fact that
you have 500 pesos which you gave to the seller, the
seller gave you 5 grams of shabu. Automatic na ba, I will
dismiss the case. I will direct the prosecution to show
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Original TSN from 2012- 2013 Uno Manresa lectures
cause why the case will not be dismissed on the ground of
insufficiency of evidence.
Ok now. Although the actual negotiation need not
be lengthy nor is there a need for haggling on the
price (Dili uso na. In the drug trade, haggling no no na)
the drug peddler should be given the slightest hint
at least on the quantity and the cost of the drug
being pushed. PP v Malakas December 8 1993 and PP v
Uson July 5 1993.
(for pusposes of study): PP vs Malakas:
Thus, in People v. Uson,14 where the Court acquitted the
appellant, we said: "Furthermore, the matter of the
monetary consideration for the drug was never taken up
during the meeting . . . . They never discussed that Casino
was to purchase P100.00 worth of 'shabu' from appellant,
as Casino would have this Court believe otherwise in his
affidavit." And in People v. Queta,15we ruled: "The
evidence for the prosecution appears confined merely to
buyer-told-seller-of-intention-to-buy marujuana, and
seller-handed-over-stuff-while-buyer-gave-P10.00-as-
payment. But how could appellant, as seller, have known
what quantity to bring when from the testimony he did not
even have the slightest idea of how much marijuana Sgt.
Reyno, as buyer, was interested in purchasing?"
Indeed, the seller has first to be apprised of how much is
being purchased before he could deliver. The poseur-
buyer could do this by expressly disclosing how much he is
buying or by simply giving the marked money for the
seller to have a hint of how much worth the buyer is
interested to acquire. A survey of cases where a buy-bust
actually transpired shows that the poseur-buyer would
either first ask, "[t]iene ba quita alli?" (Do you have
anything there?), and the suspected pusher would answer,
"[t]iene acqui valor de P5.00 lang de marijuana" (I have
here worth only P5.00 of marijuana), afterwhich the
poseur-buyer would reply, "[s]aca yo se, compra yo
conose" (I will take that, I will buy it); 16or the poseur-
buyer would simply hand to the suspected pusher the
marked money and wait; 17or the poseur-buyer would
casually approach the suspected pusher and tell the latter
"[t]atlong piso lang, pare," meaning, in their peculiar
lingo, P300.00 worth of "shabu;" 18or conversations of
similar import, the bottom-line being that the suspected
pusher is informed of how much worth of prohibited drugs
is being purchased before he actually delivers the goods.
Now it’s a requirement that in the prosecution of
dangerous drugs, the identification of the drugs should be
made in open court. The identification of the drugs should
be made in open court by poseur buyer. Meaning the
police man who allegedly bought the shabu must identify
him in open court. Why? Its very material. Because if the
drug is not identified, there is no way for prosecution to
prove the corpus delicti of the crime. Now that is why we
have this rule on the chain of custody. The cahin of
custody must be established with clarity, must be
established with certainty.
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“When your resources are down to nothing, believe that God is up to something =)”
What is the purpose of chain of custody? The purpose of
chain of custody is to preserve and maintain the integrity
of the drugs from the time it has come to the possession
of poseur buyer up to the time it was examined by the
forensic chemist. So mabusisi. Asa man ni padulong ang
drugs, kinsa man nga kamot niagi ang drugs. So the more
people who will touch it, the more people will have to
testify in court. That is the rule. So if there are 10 people,
all of them will testify. That is chain of custody.
Now what is chain of custody? (this is asked in the bar
exam) In a nutshell, it refers to the movement of
the evidence from the time it is recovered from the
crime scene up to the time it is offered in evidence
in court. the primordial purpose is to see to it that
the evidence has not been substituted or altered up
to the time it is presented in court.
Ok now, in one case, the sachet of shabu, kita man mo
unsa sachet sa shabu no? sige langkung makalabay mo sa
akong korte….
Now whoever touches it there is a requirement that he or
she must testify in court. Now, in more technical term,
chain of custody refers to the chronological documentation
(this should be your answer when you are asked in the bar
exam). Chain of custody is the chronological
documentation of the seizure, custody, control,
transfer, analysis, and disposition of evidence from
the time it was seized up to the time it was offered
in evidence in court. This is material because it is part
of proving the corpus delicti of the crime. If you look at
the decision of the supreme court, there are so many
cases reversing the conviction on the ground that the
chain of custody has not been established with certainty.
Now, remember ha. Chain of custody means the duly
recorded authorized movements and custody of
seized drugs or controlled from the time of
seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court
for destruction. Such record of movement and
custody of seized item shall include the identity and
signature of the person who held temporary
custody. When you will become lawyers, and you handle
drug cases see to it that the signature of the poseur buyer
or the one who first take possession of the drug is
present.
If I present to you the subject matter of this case, will you
be able to identify it?and the witness pod will say Yes. Ana
dayon nang prosecutor, I will submit to you exhibit A blab
la –Dili ko musogot. Never mind that question. Let me ask
first, how will you be able to identify it? A: Because it’s a
rectangle. Unya there are so many sizes that are rectangle
in the world. Unya naa na poy ni ask, How will you be able
to identify it? A: Because it’s a rectangle your Honor.
 Criminal Law II TSN
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Original TSN from 2012- 2013 Uno Manresa lectures
So how will you be able to determine that that one is the
same sachet of shabu if that is your answer. The correct
answer is: It is because I have placed my initial or my
signature on the sachet of shabu. Ayun! Ang first rule of
the chain has already been established because you put
your markings thereon. Meaning..?..gikan sa akusado. Dili
kay because it is a rectangle and if I will be shown a
rectangle size I will remember it. Nah, naloko na!
Now there’s a question. You know in section 5, it’s a buy
bust operation because it’s (?) trade or (?). Is the
presentation of the buy bust money as one of the exhibit,
by the way what is a buy bust money?
It is a general money that you pay to the seller. Why is it
called the buy bust money? It is called the buy bust
money because it has the marking of the arresting officer
or the poseur buyer. Unsa ilang marking? Ilang pangalan
or initials. Gone are the days that buy bust money is being
casted with fluorescent powdered. Gun were the days. The
Supreme Court held that the buy bust money need not be
fluorescent powdered. The initials may be enough.
Because pag magpa fluorescent powder ka will undergo
process. Magbutang ka ug powder, examine, etc. Whereas
the mere placing of initial or signature of the responsible
officer will be enough.
So here in the case of PP vs Willie Yap, as to the non-
presentation of the buy bust money, the law or the
jurisprudence require the presentation of the money used
in the buy bust operation. Would there be an instance?
Yes there is when during the buy bust operation the
accused has sensed that it is an entrapment proceeding,
the accused will immediately throw away the money.
Labay didto sa kanal. Pag dakop sa iya the buy bust
money cannot eb found. Ngano man, tua na man didto sa
kanal.
Do you think there is no more case if the buy bust money
will not be recovered? No. There can still be a case filed
against you. After all the presentation of the buy money is
not one of the elements of a crime.
What is a decoy solicitation? It is part of an entrapment
proceeding. A police officer’s act of soliciting drugs
from the accused during a buy-bust operation, or
what is known as a "decoy solicitation," is not
prohibited by law and does not render invalid the
buy-bust operations.
Other would say, Is it not that it is an instigation? Kung
tanawon nimo instigation gud. But so many case the SC
would say that you cannot claim as defense instigation
because of the fact that it is considered as a decoy
solicitation. Yon.
The established rule is that when an accused is
charged with the sale of illicit drugs, he cannot set
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“When your resources are down to nothing, believe that God is up to something =)”
up the following defenses, viz: (1) that facilities for
the commission of the crime were intentionally
placed in his way; or (2) that the criminal act was
done at the solicitation of the decoy or poseur-
buyer seeking to expose his criminal act; or (3) that
police authorities feigning complicity in the act
were present and apparently assisted in its
commission.
Now usually during the buy bust operation, surveillance is
conducted by the police men. Surveillance, dili man na
buang ang police na muambak ra’g kalit anang barangay
pogi or anang mini forest without conducting surveillance.
But there are police men who are really very courageous.
They will proceed to the buybust operation without any
surveillance.
The question is, is surveillance a necessary requirement?
No. Norgie Cruz vs PP Feb 6 2009. Does the absence of
surveillance affect the validity of the entrapment
operation? No. Settled is the rule that prior
surveillance is not a prerequisite for the validity of
an entrapment operation especially so if the buy-
bust team is accompanied by the informant. The
police officers may decide that time is of the
essence and dispense with the need of prior
surveillance. Ok.
Now what is the penalty if you will be found guilty for
selling, delivery or transportation? Imprisonment or death
or the fine of 500-10 million. Ok
Section 5. Sale, Trading, Administration, Dispensation,
Delivery, Distribution and Transportation of Dangerous
Drugs and/or Controlled Precursors and Essential
Chemicals. - The penalty of life imprisonment to death and
a fine ranging from Five hundred thousand pesos
(P500,000.00) to Ten million pesos (P10,000,000.00) shall
be imposed upon any person, who, unless authorized by
law, shall sell, trade, administer, dispense, deliver, give
away to another, distribute dispatch in transit or transport
any dangerous drug, including any and all species of
opium poppy regardless of the quantity and purity
involved, or shall act as a broker in any of such
transactions.
xxx
Now if you sell drug within the radius of 100 meters from
the school? The maximum penalty shall be imposed in
every case. Ok lang mag buy bust ang seller dili taga
ateneo, kung lawschool na ako ang mag inhibit, especially
kung akong students. But there are other students of mine
before…(story)
What about if the drug pushers will use minor? Again
maximum, it’s a qualifying aggravating circumstance. For
drug pushers who use minors or mentally
incapacitated individuals as runners, couriers and
messengers, or in any other capacity directly
 Criminal Law II TSN
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Original TSN from 2012- 2013 Uno Manresa lectures
connected to the dangerous drugs and/or
controlled precursors and essential chemical trade,
the maximum penalty shall be imposed in every
case.
What if the victim of the offense is a minor or a mentally
incapacitated individual? The penalty is also qualifying.
Maximum.
No what are those financiers? Who are they? There are
so many financiers, there are politicians are financiers.
Any person who pays for, raises or supplies money
for, or underwrites any of the illegal activities. The
penalty is also maximum.
Who are those protector under the law? Any person
who knowingly and willfully consents to the
unlawful acts provided for in this Act and uses
his/her influence, power or position in shielding,
harboring, screening or facilitating the escapee to
prevent the arrest. That is what a protector is.
Now we go to Sec 11. Illegal Possession of Dangerous
Drugs. There are technically three basic elements:
1. The accused is in possession of an item or
an object which is identified to be a
prohibited drug
2. Such possession is not authorized by law
3. The accused freely and consciously
possessed the said drug
It’s an __ of presenting evidence..that the accused is
freely and consciously in possession of that drug. Now
remember that in section 11 it must be shown that the
requirement in the conduct of the raid was by virtue of a
search warrant or it’s a warrantless arrest. Because we go
back to the rule. Policemen are not allowed to just
unceremoniously search you. What is the rule? He will
have to arrest you because you have committed a crime
and he will search you. It is not otherwise, they are going
to search you and then arrest you, no. search and then
arrest? No. Arrest then you can be searched, that’s the
golden rule although there are so many exceptions also.
Now under Section 8 Rule 126, we have discussed this
already noh when we were discussing crimes committed
against fundamental law of the state, the two-witness rule
applies only in the absence of a lawful applicant. That’s
provided under Rule 126 Section 8.
Ok, Chain of Custody, ok. Other points:
Is strict compliance with the prescribed procedure
essential? When we say chain of custody, the law that
would support the requirement of proving the chain of
custody will be Section 21 of RA 9165. That is the bulk of
what is chain of custody is all about. So is the procedure in
Section 21 to be strictly complied? Yes it should be.
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Majority of the cases in the Supreme Court rest on the
non-establishment of the chain of custody under Section
21 of RA 9165.
Now, next, as a general rule, the law mandates that the
lead agency that would conduct a finding on any drug
operation should be the PDEA but that does not mean that
PNP are no longer allowed to conduct one. They are
allowed. So even if there is no proper prohibition to the
PDEA, it does not invalidate any drug operation conducted
by the policemen. As a atter of fact, police stations here in
Davao City conduct more drug operations than the PDEA.
Kasi ang sabi ng PDEA, sinako na ilang gusto. They will
conduct buy bust operation or a raid basta minillion. Less
than 1 million, PNP lng na. mao na ang mga polis ang
pandakpon kay 0.001, 2.1. per gram is worth 12,000
pesos now. The price of shabu is greater than per gram of
gold. Kasi ang gold 7-9,000. So it’s a good business noh.
Pp v Figueroa 2012. It does not invalidate the operation if
there was no correlation(?) with the PDEA.
Now would non-compliance render the procedure void?
Mere lapses in the procedure would not invalidate.
Tingnan yung rule, kanina. Is strict compliance with the
prescribed procedure essential? We said yes. In fact there
is a jurisprudence on that, section 21. But here if there are
some lapses in the procedure, this is the ruling, even if
there are some lapses in that procedure, if it did not
destroy the integrity and the evidentiary value of the
seized items, the integrity and the evidentiary value are
still preserved, pwede na man ba, for as long as there is a
justifiable reason why was there a lapse in the procedure.
But as a matter of rule, strict compliance of the procedure
is required. But if it can be explained, I will give an
example:
The drug buy-bust is conducted in Mini-Forest, diha
pasulod sa boulevard. There is a portion there in
Boulevard that is considered as shabu tiangge. It is
displayed, an open-field, open to all to whom it may
concern. If the buy bust is conducted there, the tagging,
you are going to mark your initial or signature and it
should be done there. But most of the time the policemen
will never do that. Why is that so? Because of the
environment. If they are going to observe the rule strictly
under section 21 the tagging should be done there. But
there’s a justifiable reason why the policemen will not do
that. Why? Because the life and limb are at stake there.
The defense counsel will say, Is it not a requirement that
the tagging must be done in the premises where the crime
was committed. And the policeman will say, I forgot sir.
Forgot ka diha! So I will come to the rescue: What was
the environment at that time? Kay sayang man ang kaso
gud.Just because of technicality imoha lang ing anaon.
Then they are not exposing justice here. You know justice
is not only for the__ it is also for the state. So in things
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like that you will have to establish what was the
environment in the scene of the crime. Was it hostile? Was
the people already _ the morale? Buang buang kang police
ka kung mag tagging ka didto. There is something wrong
with you. Gawas kung gahulat ka ug platoon. Unya pila ra
man ang polis 3, 5, 7, 8 lng mn ang mag buybust. So it’s
impossible.
Is the presumption of regular performance of duty
conclusive in chain of custody? This was already asked in
the Bar. No. in fact, it’s not conclusive that’s why the
prosecution must establish it firmly why was it so. And it
has to establish justifiable reason why was this particular
procedure complied with.
Another. Is plea bargaining allowed in RA 9165? Plea
Bargain ta. Unsa charge nimo? Section 5. Plea bargain ta
para mu mubo ang sentence. No that is not allowed.
Under RA 6425, the older version of this law, that is
allowed. But right now that is not allowed. Under section
23:
Section 23. Plea-Bargaining Provision. – Any person
charged under any provision of this Act regardless of the
imposable penalty shall not be allowed to avail of the
provision on plea-bargaining.
There was one litigant who went to my court.. The charge
against her son in my court was for Sec 5 but she has
another nephew who was charged with Sec 5 in
Compostella. And accordingly, plea bargaining is allowed
there. So didto mo mag plea bargaining. What happened
to the judge there, he was _. Now let’s go to BQ 2005.
Obi Juan was suspected to be in possession of uncertain
amount of Metamphetamine HCl. An entrapment operation
was conducted which resulted to his arrest, finding in his
possession 500 grams of said dangerous drugs. He was
subjected to a drug test and found positive for the use of
Marijuana, another dangerous drug. He was subsequently
charged with 2 crimes, sec 11 for the possession of shabu
and sec 15 for the use of marijuana. So as not to be
sentenced to death, Obi plead guilty to a lesser offense.
Can he do so? Based on what the law provides? No. Obi
Juan cannot plead guilty for a lesser offense since that is
explicitly prohibited under Sec 23 of RA 9165. The law
provides that “any person charged under any provision of
this Act regardless of the imposable penalty shall not be
allowed to avail of the provision on plea-bargaining.”
But what about probation? Can a person convicted of the
crime of drug trafficking or drug pushing avail of the
probation law? No. Sec 24 says:
Section 24. Non-Applicability of the Probation Law for
Drug Traffickers and Pushers. – Any person convicted for
drug trafficking or pushing under this Act, regardless of
the penalty imposed by the Court, cannot avail of the
privilege granted by the Probation Law or Presidential
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Decree No. 968, as amended.
But supposing you are charged and you pleaded guilty on
sec 12 only. Ano yung sec 12. Possession of Paraphernalia.
The penalty there is 2 years to 4 years of imprisonment.
Question: can you avail of the benefits of probation? Even
lawyers, prosecutors would make this mistake. They would
say that a person charged under sec 12 for possession of
paraphernalia is not allowed to avail of probation. The
answer is: No, he is allowed! He can avail of the benefits
of probation. Why, what is the requirement in probation?
The sentence should be not less than 6 years. And the
penalty for sec 12 is less than 6 years. And the law is
explicit who are those not allowed to avail of the law on
probation. Only those who are considered as traffickers or
for selling. Sila lang under sec 5. They are not allowed to
avail of probation. So do not make the mistake as most
lawyers or prosecutors do.
Cite the significance if the positive finding of the use of
dangerous drugs is found in the commission of the crime.
The law says this will constitute as a qualifying
aggravating circumstance. So if you are charged for selling
there is another paragraph or charge that the prosecutors
will state in the information. That the accused is found
positive for use of dangerous drugs, which is alleged as a
qualifying aggravating circumstance. So therefore that is
allowed. Although I mention to you later the case of
Laserna.
A positive finding for the use of dangerous drugs
shall be a qualifying aggravating circumstance in
the commission of a crime by an offender, and the
application of the penalty provided for in the
Revised Penal Code.
2005 BQ: Candido stabbed an innocent by-stander who
accidentally bumped him. The innocent by-stander died as
a result of the stabbing. Candido was arrested and was
subsequently found positive for the use of shabu at the
time he committed the stabbing. What should be the
proper charge filed against Candido? Ano ang crime niya,
homicide noh. What about the fact that he was tested
positive for use of shabu at the time of the crime? What is
the effect?
A: Candido is liable for Homicide only. The act of stabbing
was not consciously adopted and only accidental and
therefore negates treachery. However since the crime
was committed under the influence of dangerous drugs,
such act becomes a qualifying aggravating circumstance
pursuant to Sec 25 of RA 9165.
However you have to qualify this kind of answer. How did
you know that he was tested positive? Because after the
arrest he was brought to the PNP crime laboratory and
was made to urinate. Whaaat? And so therefore that is
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your basis in telling us that he tested positive? Yes,
because the crime laboratory says so. What would then
be our legal basis in forcing him to urinate and have this
result used against him as aggravating circumstance? Is it
not violative of his right? I will cite to you a case later.
Alright, mere conspiracy to commit a crime etc. these are
the acts being violated under Section 26.
When is a violator immune from prosecution and
punishment. Sec 33. Seldom do we give immunity to
them. Because most of the time those who will seek
immunity are pushers. That’s provided for under Sec 33.
Break 5 minutes. 1:37:25
Kyrie’s part
Note that the middle portion (ITALICIZED) overlapped
with Justin’s 
…But supposing you are charged and you pleaded guilty
under Section 12, Possession of Drug Paraphernalia. The
penalty is 2 years to 4 years of imprisonment. Can you
avail of the benefits of probation? Even lawyers would
make a mistake. Even prosecutors. They’re supposed to
know the law more than the ordinary lawyer. They would
simply say that a person who is charged for violation of
section 12 for possession of drug paraphernalia is not
allowed to avail of probation law. NO! He is allowed! He
can avail of the benefits of probation.
Why? What is the requirement to avail of probation? The
requirement is the penalty should not be less than 6 years.
The penalty for section 12 is less than 6 years. The law is
very specific as to who are those persons who are not
allowed: Only those who are considered as traffickers or
selling. Sila lang under section 5. They are not allowed to
avail the benefits of probation. Never commit the mistake.
Now, site the significance if the positive finding for the use
of dangerous drugs is found in the commission of the
crime:
The law says, it shall constitute as a qualifying aggravating
circumstance. So, if you are found, charged for the crime
of selling, there’s another paragraph that the prosecutors
would state in the information, “that the accused is found
positive for use of dangerous drugs”, which is alleged as a
qualifying aggravating circumstance. Is that allowed? Of
course it’s allowed. That is allowed because that is what
the law says. Although, I have to mention to you later the
cases of Pimentel and Laserna.
Section 25.Qualifying Aggravating Circumstances in the
Commission of a Crime by an Offender Under the
Influence of Dangerous Drugs. – Notwithstanding the
provisions of any law to the contrary, a positive finding for
the use of dangerous drugs shall be a qualifying
aggravating circumstance in the commission of a crime by
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an offender, and the application of the penalty provided
for in the Revised Penal Code shall be applicable.
2005 BQ: A stabbed an innocent bystander who
accidentally bumped him. The innocent bystander died as
a result of the stabbing. A was arrested and was tested
positive for the use of shabu at the time he committed the
stabbing. What should be the proper charge against A?
Ang crime niya, homicide. But what about the fact he was
tested positive for the use of shabu at the time of the
commission of the crime? What would be the effect?
Answer: A is guilty of homicide only. The act of stabbing
was not consciously adopted, but only accidental and
therefore negates treachery. However, since the crime
was committed when he was under the influence of
dangerous drugs, such fact becomes a qualifying
aggravating circumstance pursuant to section 25 of RA
9165.
However, I have to qualify this kind of answer. How did
you know that he was tested positive? Because after the
arrest, he was brought to the PNP crime laboratory and
was made to urinate. And so therefore, that is your basis
in telling us that he is positive? Yes! What would be our
legal basis in forcing him to urinate? And later on have his
result used against him and consider it as a qualifying
aggravating circumstance? Isn’t that violative of his right?
I will cite to you later the case decided by the CJ Sereno.
Alright, mere conspiracy to commit the crime of selling,
etc. These are the acts enumerated under section 26.
Section 26. Attempt or Conspiracy. – Any attempt or
conspiracy to commit the following unlawful acts shall be
penalized by the same penalty prescribed for the
commission of the same as provided under this Act:
(a) Importation of any dangerous drug and/or controlled
precursor and essential chemical;
(b) Sale, trading, administration, dispensation, delivery,
distribution and transportation of any dangerous drug
and/or controlled precursor and essential chemical;
(c) Maintenance of a den, dive or resort where any
dangerous drug is used in any form;
(d) Manufacture of any dangerous drug and/or controlled
precursor and essential chemical; and
(e) Cultivation or culture of plants which are sources of
dangerous drugs.
When is a violator immune from prosecution and
punishment? That is provided under section 33 of the law.
Seldom do we give immunity to them because most of the
time, those who will apply for immunity are the pushers.
That is provided under section 33.
Section 33. Immunity from Prosecution and Punishment .
– Notwithstanding the provisions of Section 17, Rule 119
of the Revised Rules of Criminal Procedure and the
provisions of Republic Act No. 6981 or the Witness
Protection, Security and Benefit Act of 1991, any person
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who has violated Sections 7, 11, 12, 14, 15, and 19, Article
II of this Act, who voluntarily gives information about any
violation of Sections 4, 5, 6, 8, 10, 13, and 16, Article II of
this Act as well as any violation of the offenses mentioned
if committed by a drug syndicate, or any information
leading to the whereabouts, identities and arrest of all or
any of the members thereof; and who willingly testifies
against such persons as described above, shall be
exempted from prosecution or punishment for the offense
with reference to which his/her information of testimony
were given, and may plead or prove the giving of such
information and testimony in bar of such prosecution:
Provided, That the following conditions concur:
(1) The information and testimony are necessary for the
conviction of the persons described above;
(2) Such information and testimony are not yet in the
possession of the State;
(3) Such information and testimony can be corroborated
on its material points;
(4) the informant or witness has not been previously
convicted of a crime involving moral turpitude, except
when there is no other direct evidence available for the
State other than the information and testimony of said
informant or witness; and
(5) The informant or witness shall strictly and faithfully
comply without delay, any condition or undertaking,
reduced into writing, lawfully imposed by the State as
further consideration for the grant of immunity from
prosecution and punishment.
Provided, further, That this immunity may be enjoyed by
such informant or witness who does not appear to be
most guilty for the offense with reference to which his/her
information or testimony were given: Provided, finally,
That there is no direct evidence available for the State
except for the information and testimony of the said
informant or witness.
Who may avail of suspended sentence? Minors only.
Section 66, first-time minor offenders.
Section 66. Suspension of Sentence of a First-Time Minor
Offender. – An accused who is over fifteen (15) years of
age at the time of the commission of the offense
mentioned in Section 11 of this Act, but not more than
eighteen (18) years of age at the time when judgment
should have been promulgated after having been found
guilty of said offense, may be given the benefits of a
suspended sentence, subject to the following conditions:
(a) He/she has not been previously convicted of violating
any provision of this Act, or of the Dangerous Drugs Act of
1972, as amended; or of the Revised Penal Code; or of
any special penal laws;
(b) He/she has not been previously committed to a Center
or to the care of a DOH-accredited physician; and
(c) The Board favorably recommends that his/her
sentence be suspended.
While under suspended sentence, he/she shall be under
the supervision and rehabilitative surveillance of the
Board, under such conditions that the court may impose
for a period ranging from six (6) months to eighteen (18)
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months.
Upon recommendation of the Board, the court may
commit the accused under suspended sentence to a
Center, or to the care of a DOH-accredited physician for at
least six (6) months, with after-care and follow-up
program for not more than eighteen (18) months.
In the case of minors under fifteen (15) years of age at
the time of the commission of any offense penalized under
this Act, Article 192 of Presidential Decree No. 603,
otherwise known as the Child and Youth Welfare Code, as
amended by Presidential Decree No. 1179 shall apply,
without prejudice to the application of the provisions of
this Section.
Now, what is the consequence after compliance with
conditions of suspension of sentence in the case of first-
time minor offenders? Well, if the accused first-time minor
offender complies with the applicable rules and
regulations, the court, upon a favorable recommendation
of the board, shall discharge the accused and dismiss all
proceedings. We do that, especially in the family court.
Upon the dismissal of the proceedings against the
accused, the court shall enter an order to expunge all
official records, etc.
Section 67. Discharge After Compliance with Conditions
of Suspended Sentence of a First-Time Minor Offender . –
If the accused first time minor offender under suspended
sentence complies with the applicable rules and
regulations of the Board, including confinement in a
Center, the court, upon a favorable recommendation of
the Board for the final discharge of the accused, shall
discharge the accused and dismiss all proceedings.
Upon the dismissal of the proceedings against the
accused, the court shall enter an order to expunge all
official records, other than the confidential record to be
retained by the DOJ relating to the case. Such an order,
which shall be kept confidential, shall restore the accused
to his/her status prior to the case. He/she shall not be
held thereafter to be guilty of perjury or of concealment or
misrepresentation by reason of his/her failure to
acknowledge the case or recite any fact related thereto in
response to any inquiry made of him for any purpose.
Now, can the privilege of suspended sentence be availed
of more than once by the first-time minor offender? No.
Section 68 provides that the privilege of suspended
sentence shall be availed of only once by an accused drug
dependent who is a first-time offender over fifteen (15)
years of age at the time of the commission of the violation
of Section 15 of this Act but not more than eighteen (18)
years of age at the time when judgment should have been
promulgated.
Section 69. Promulgation of Sentence for First-Time
Minor Offender. – If the accused first-time minor offender
violates any of the conditions of his/her suspended
sentence, the applicable rules and regulations of the Board
exercising supervision and rehabilitative surveillance over
him, including the rules and regulations of the Center
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should confinement be required, the court shall pronounce
judgment of conviction and he/she shall serve sentence as
any other convicted person.
Now, limited applicability of the RPC. Are provisions of the
RPC applicable to RA 9165? The provisions of the RPC
have limited applicability. The law provides that
notwithstanding any law, rule or regulation to the
contrary, the provisions of the Revised Penal Code (Act
No. 3814), as amended, shall not apply to the provisions
of this Act, except in the case of minor offenders . Where
the offender is a minor, the penalty for acts punishable by
life imprisonment to death provided herein shall be
reclusion perpetua to death.
Why is it specific? The penalty for example, if a minor is
charged under section 5, based on the law, the penalty
would be life imprisonment to death. But, under RA 9165,
since the accused is a minor, we will not impose life
imprisonment, but instead, we are going to use the
nomenclature of the penalties in the RPC. That is the only
instance that we will apply the provisions of the RPC. As a
general rule, we will not apply because the law says so eh,
limited applicability lang. So, limited applicability lang if
the one involved is a minor. Kasi pag we are not going to
use the penalty under the RPC, and since he is a minor,
how are we going to provide for the penalty for the
minor? Diba as a general rule, the minor is entitled to the
privileged mitigating circumstance of minority. Asa man ta
mag privileged mitigating sa life imprisonment to death?
So, we have to convert it to reclusion perpetua. So that,
since the accused is a minor, he is entitled to a privileged
mitigating circumstance of one degree lower, which would
be reclusion temporal. Diha ka karon magstart ug
compute.
Now, for example, A is a minor, he committed a crime for
violation of section 11. The penalty for section 11 is 12
years and 1 day to 20 years. Now, in the commission of
the crime, he voluntarily surrendered and voluntary
confession of guilt during the arraignment. So, he has two
mitigating circumstances. How are we going to apply that?
In my opinion, there has been no decision yet pertaining
to the matter, this is just my opinion ha. If the minor is
charged for violation of section 11, then we do not apply
that which is provided for in the law because we will only
apply the conversion is convicted for section 5 where the
penalty is reclusion perpetua to life imprisonment. We
change it to reclusion perpetua. But he is charged for
section 11, the penalty is 12 years and one day to 20
years, so how are we going to apply the mitigating
circumstances here? Remember the general rule in the
study of criminal law. If what is violated is a special law,
we do not consider the mitigating circumstances, right?
The aggravating and mitigating, we will not consider that.
We’ll only consider that if what is violated is the provisions
of the RPC. My opinion, although there is no case so far, is
that we do not apply this limited applicability when the
minor is charged with section 11. After all, there is what
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we call the Indeterminate Sentence Law (ISL). The ISL
says, if what is violated is a special law, you can only
impose the penalty between 12 years minimum to 20
years maximum. Pili ka lang. But since he is a minor, that
depends upon the discretion of the judge. So, pwede, in
my case, 12 years and one day as maximum to probably
14 years. Dili na nako ipaabot ug 20 years kasi nga minor
sya. But not on the basis of limited applicability.
To my mind, we will only apply limited applicability if the
minor is charged under section 5 since the penalty for
section 5 is life imprisonment to death. You can convert it
to reclusion perpetua. That is the time that we will apply
the mitigating circumstances like when he is entitled to
the privileged mitigating circumstance of minority.
Now, another point, section 20.
All the proceeds and properties derived from the unlawful
act, including, but not limited to, money and other assets
obtained thereby, and the instruments or tools with which
the particular unlawful act was committed, unless they are
the property of a third person not liable for the unlawful
act, but those which are not of lawful commerce shall be
ordered destroyed.
Now, during the pendency of the case in the RTC, no
property, or income derived therefrom, which may be
confiscated and forfeited, shall be disposed, alienated or
transferred and the same shall be in custodia legis and no
bond shall be admitted for the release of the same.
I brought this out because of the case of PDEA vs Brodett
and Jorge Joseph. This happened somewhere in Forbes
Park in Manila. Contorversial man ni because Brodett and
Joseph belong to influential families there in Manila. A
buy-bust operation was conducted. During the buy-bust
operation, allegedly the accused used a honda civic.
During the time that it was filed in court, the owner, the
mother, wanted to get the honda civic and the court
allowed the release of the honda civic of the mother.
PDEA objected, “nganong girelease man toh nga it was an
instrument in the commission of the crime?!” Pag abot sa
SC, the SC reprimanded the judge who released it. That’s
why, by virtue of this ruling by the SC, every drug buy-
bust operation…filed in my court where it involves a motor
vehicle, that is accordingly used in the commission of the
crime, never will i allow its release. Muingon mo, “malata
na diha!” O syempre, malata gyud na diha. But that is not
my problem. I will only release that when the prosecution
has rested its case and did not offer it as evidence. Ngano
man? Mahadlok ko macharge ug gross ignorance of the
law. After all, remember, that the story of section 20
presupposes that there is already a judgment stating
these are part or proceeds in the commission of the crime.
Now, how are we going to determine? Is it not that we’re
only going to determine after the case has been rested?
Because that is a penalty eh.
So, when you talk about confiscation, that is already a
penalty. Forfeiture and confiscation is a form of penalty.
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When you talk about that, sa ato pa naa nay judgment?
NOT YET! Mao na daghan kaayong bus, didto man
nagtransaction sa bus. Asa ron ang bus? Naa diha ron,
nalata. Mao lagi na diha sa hall of justice, asa man namo
na ibutang? didto na sa police station that conducted the
police operation. Katong mga motorsiklo nga gigamit, naa
didto sa mga police station. IF the prosecution would offer
it, that’s the time nga dalhon sa korte. Naa puy uban nga
exagerrated kaayo, “where was the motor vehicle at the
time of the commission of the crime? “mga 30 meters
away, your honor.” “why is it that you included in the
confiscation the motor vehicle?” “because it was used in
the commission of the crime” Ah giunsa na pag gamit? 30
meters away? Unya giconfiscate ang motor vehicle?
(inaudible) But, didto nagtransact inside the bus. The buy-
bust was conducted inside the bus. Ah wala. There’s no
way. Hulata. Hulata mahuman ang kaso or the
prosecution may not offer it as part of its evidence.
Because again, section 20 says so. There’s a counterpart
of section 20 in the RPC. That is i think Article 45. It
provides that “every penalty imposed for the commission
of a felony shall carry with it the forfeiture of the proceeds
of the crime and the instruments or tools with which it
was committed.xxx”
Let’s go to the case of SJS vs DDB, Dela serna vs DDB and
the case of Pimentel, Jr. vs COMELEC (consolidated cases-
G.R. 157870). I would like to assume you have discussed
this in your constitutional law. Constitutional law nga
subject ni eh. Anyway, just to refresh your memory. What
happened here? In these petitions, the constitutionality of
section 36 of RA 9165 insofar as it requires mandatory
drug testing of candidates for public office, students in
secondary and tertiary schools, officers and employees in
public and private offices, persons charged before the
prosecutor's office with a criminal offense having an
imposable penalty of imprisonment of not less than six (6)
years and one (1) day.
Candidates for public office, just like Aquilino Pimentel
who ran for senator. There’s an additional requirement.
There should be drug testing, that’s why he questioned it.
Because the qualifications for senators are laid down in
the Constitution. And the constitution does not say so. But
the law requires said drug testing. So, which will prevail?
The Constitution. So, in the case of Pimentel, Pimentel
filed a petition for certiorari and prohibition seeking to
nullify section 36 of RA 9165 and Comelec Reolution No.
6486 for being unconstitutional in that they impose a
qualification for candidates for senators in addition to
those already provided for in the 1987 Constitution.
Pimentel imposed as legal basis section 3 article 6 of the
1987 Constitution which says, “No person shall be a
Senator unless he is a natural-born citizen of the
Philippines, and, on the day of the election, is at least
thirty-five years of age, able to read and write, a
registered voter, and a resident of the Philippines for not
less than two years immediately preceding the day of the
election.” Wala tong mandatory drug testing! Now,
according to Pimentel, the constitution prescribes only a
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“When your resources are down to nothing, believe that God is up to something =)”
maximum of five qualifications for one to be a candidate
for said elective position and become a member of the
senate. He says that Congress and Comelec, by requiring
via RA 9165 and Resolution 6486 a senatorial candidate to
undergo a mandatory drug test, create an additional
qualification that all candidates or senator must first be
certified as drug free. He adds that there is no provision in
the constitution authorizing Congress or Comelec to
expand the qualifications/requirements of candidates for
senator. So, how did the SC rule on the matter?
“Pimentels contention is well-taken. Accordingly, Sec.
36(g) of RA 9165 should be, as it is hereby declared as,
unconstitutional. It is basic that if a law or an
administrative rule violates any norm of the Constitution,
that issuance is null and void and has no effect. The
Constitution is the basic law to which all laws must
conform; no act shall be valid if it conflicts with the
Constitution. In the discharge of their defined functions,
the three departments of government have no choice but
to yield obedience to the commands of the Constitution.
Whatever limits it imposes must be observed. xxx
COMELEC cannot, in the guise of enforcing and
administering election laws or promulgating rules and
regulations to implement Sec. 36(g), validly impose
qualifications on candidates for senator in addition to what
the Constitution prescribes. If Congress cannot require a
candidate for senator to meet such additional qualification,
the COMELEC, to be sure, is also without such power. The
right of a citizen in the democratic process of election
should not be defeated by unwarranted impositions of
requirement not otherwise specified in the Constitution.”
That’s why daghan kaayog adik sa government kay wa na
may drug test! Ngano man? Because of this case! Daghan
kaayo nag benepisyo nga congressman nga mga adik!
September 11 (After BREAK)
Justin’s part
Now, the penalty, for example a minor is charged
for Section 5. Based on the law, the penalty would be life
imprisonment to death. But under RA 9165, since the
accused is a minor, we would not impose life
imprisonment but instead we will use the nomenclature
under the Revised Penal Code. That is one of the instances
when we will apply the Revised Penal Code. As a general
rule, we do not apply. Limited applicability lang. If we are
not going to use the penalty under the RPC and since he is
a minor, how are we going to provide for a penalty for the
minor? Di ba as a general rule, the minor is entitled to
privilege mitigating circumstance, right? Asa man ta mag
privileged mitigating circumstance from life imprisonment
to death? So we have to convert it to reclusion perpetua.
So that since he is a minor, he is entitled to a privilege
mitigating circumstance of one degree lower. One degree
lower would be reclusion temporal. Diri ka magstart
compute.
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For example, A is a minor. He committed a crime
of violation of Section 11. The penalty for Section 11 is 12
years and 1 day to 20 years. Now, in the commission of
the crime, there is voluntary surrender. There is voluntary
confession of guilt during the arraignment. So he has two
mitigating circumstances. In my opinion, there has been
no decision yet, if the accused is a minor charged with
violation of Section 11, we do not apply that which is
provided for by law because we will only apply the
conversion if the minor is convicted for Section 5 where
the penalty is life imprisonment. We change it to reclusion
perpetua. But if he is charged under Section 11, how are
we going to apply the mitigating circumstance here?
Remember the general rule, when what is violated is a
special law, we do not consider the mitigating (and
aggravating) circumstance. We only consider that when
what is violated is a provision of the RPC. My opinion,
although there is no case so far where the SC directly
attacked the issue, is that we do not apply this when the
minor is charged under Section 11. After all, there is what
we call the ISL. ISL says when what is violated is a special
law, you can only have the penalty of 12 years minimum
to 20 years maximum. So pili ka lang. But since the minor,
it will depend on the discretion of the judge. So, pwede 12
and 1 days to probably 14 years. Di na paabuton sa 20
years, kay minor siya. But what is the basis of the limited
applicability? To my mind, we will only apply the limited
applicability if the minor is charged for Section 5? Since
the penalty for Section 5 is life imprisonment to death, we
will convert it to reclusion perpetua and that is the time
that we will apply the mitigating circumstances, like he is
entitled to privilege mitigating circumstance of minority.
Now, another point, Section 20:
Section 20. Confiscation and Forfeiture of the
Proceeds or Instruments of the Unlawful Act,
Including the Properties or Proceeds Derived from
the Illegal Trafficking of Dangerous Drugs and/or
Precursors and Essential Chemicals. – Every penalty
imposed for the unlawful importation, sale, trading,
administration, dispensation, delivery, distribution,
transportation or manufacture of any dangerous drug
and/or controlled precursor and essential chemical, the
cultivation or culture of plants which are sources of
dangerous drugs, and the possession of any equipment,
instrument, apparatus and other paraphernalia for
dangerous drugs including other laboratory equipment,
shall carry with it the confiscation and forfeiture, in favor
of the government, of all the proceeds and properties
derived from the unlawful act, including, but not limited to,
money and other assets obtained thereby, and the
instruments or tools with which the particular unlawful act
was committed, unless they are the property of a third
person not liable for the unlawful act, but those which are
not of lawful commerce shall be ordered destroyed without
delay pursuant to the provisions of Section 21 of this Act.
After conviction in the Regional Trial Court in the
appropriate criminal case filed, the Court shall immediately
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“When your resources are down to nothing, believe that God is up to something =)”
schedule a hearing for the confiscation and forfeiture of all
the proceeds of the offense and all the assets and
properties of the accused either owned or held by him or
in the name of some other persons if the same shall be
found to be manifestly out of proportion to his/her lawful
income: Provided, however, That if the forfeited property
is a vehicle, the same shall be auctioned off not later than
five (5) days upon order of confiscation or forfeiture.
During the pendency of the case in the Regional Trial
Court, no property, or income derived therefrom, which
may be confiscated and forfeited, shall be disposed,
alienated or transferred and the same shall be in custodia
legisand no bond shall be admitted for the release of the
same.
The proceeds of any sale or disposition of any property
confiscated or forfeited under this Section shall be used to
pay all proper expenses incurred in the proceedings for the
confiscation, forfeiture, custody and maintenance of the
property pending disposition, as well as expenses for
publication and court costs. The proceeds in excess of the
above expenses shall accrue to the Board to be used in its
campaign against illegal drugs.
Now, during the pendency of the case in the RTC,
no property xxx can be derived therefrom because it will
be confiscated and xxx disposed and transferred in
custodia legis. I brought this one because the SC has ruled
in PHILIPPINE DRUG ENFORCEMENT AGENCY
(PDEA)vs. RICHARD BRODETT AND JORGE JOSEPH.
This happened somewhere in Forbes Park in Manila. It is
controversial because Brodett belonged to an influential
family in Manila. This is what happened. During the buy-
bust operation, allegedly the accused used a Honda civic.
During the time it was filed in court, he ordered the
mother to get the Honda civic. The court allowed the
release in favor of the mother. SC reprimanded the judge
who released it. Every buy-bust operation or every Section
11 filed in court where it involves a motor vehicle that is
used in the commission of the crime, never allow its
release. We will only release that when the prosecution
has rested its case or if it will not offer it as part of its
evidence. Ngano man?Mahadlok man ko ma-charge of
gross ignorance of the law. After all, remember, the story
of Section 20 that these are part or proceeds in the
commission of the crime. When you talk about
confiscation, that (confiscation) is a penalty. If 20 meters
away from the place of the commission of the crime,
abusado na na. There is a counterpart of Section 20 in the
RPC, I think Article 45. Article 45 talks about confiscation
or forfeiture of proceeds, instruments and tools of the
crime.
Let’s take the following cases:
1) SOCIAL JUSTICE SOCIETY (SJS) vs.
DANGEROUS DRUGS BOARD and
PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA),
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2) ATTY. MANUEL J. LASERNA, JR., vs.
DANGEROUS DRUGS BOARD and
PHILIPPINE DRUG ENFORCEMENT
AGENCY,
3) AQUILINO Q. PIMENTEL, JR., vs.
COMMISSION ON
ELECTIONS, respondents.
This is consolidated with Laserna vs Dangerous
Drugs Board (G.R. No. 158633) and Pimentel vs
COMELEC (G.R. No. 161658)
In 2002, Republic Act No. 9165 or
the Comprehensive Dangerous Drugs Act of 2002 was
implemented. Section 36 thereof requires mandatory drug
testing of candidates for public office, students of
secondary and tertiary schools, officers and employees of
public and private offices, and persons charged before the
prosecutor’s office with certain offenses.
Section 36. Authorized Drug Testing. – Authorized
drug testing shall be done by any government forensic
laboratories or by any of the drug testing laboratories
accredited and monitored by the DOH to safeguard the
quality of test results. The DOH shall take steps in setting
the price of the drug test with DOH accredited drug testing
centers to further reduce the cost of such drug test. The
drug testing shall employ, among others, two (2) testing
methods, the screening test which will determine the
positive result as well as the type of the drug used and the
confirmatory test which will confirm a positive screening
test. Drug test certificates issued by accredited drug
testing centers shall be valid for a one-year period from
the date of issue which may be used for other purposes.
The following shall be subjected to undergo drug testing:
(a) Applicants for driver's license. – No driver's license
shall be issued or renewed to any person unless he/she
presents a certification that he/she has undergone a
mandatory drug test and indicating thereon that he/she is
free from the use of dangerous drugs;
(b) Applicants for firearm's license and for permit to carry
firearms outside of residence. – All applicants for firearm's
license and permit to carry firearms outside of residence
shall undergo a mandatory drug test to ensure that they
are free from the use of dangerous drugs: Provided, That
all persons who by the nature of their profession carry
firearms shall undergo drug testing;
(c) Students of secondary and tertiary schools. – Students
of secondary and tertiary schools shall, pursuant to the
related rules and regulations as contained in the school's
student handbook and with notice to the parents, undergo
a random drug testing: Provided, That all drug testing
expenses whether in public or private schools under this
Section will be borne by the government;
(d) Officers and employees of public and private offices. –
Officers and employees of public and private offices,
whether domestic or overseas, shall be subjected to
undergo a random drug test as contained in the
company's work rules and regulations, which shall be
borne by the employer, for purposes of reducing the risk
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in the workplace. Any officer or employee found positive
for use of dangerous drugs shall be dealt with
administratively which shall be a ground for suspension or
termination, subject to the provisions of Article 282 of the
Labor Code and pertinent provisions of the Civil Service
Law;
(e) Officers and members of the military, police and other
law enforcement agencies. – Officers and members of the
military, police and other law enforcement agencies shall
undergo an annual mandatory drug test;
(f) All persons charged before the prosecutor's office with
a criminal offense having an imposable penalty of
imprisonment of not less than six (6) years and one (1)
day shall have to undergo a mandatory drug test; and
(g) All candidates for public office whether appointed or
elected both in the national or local government shall
undergo a mandatory drug test.
In addition to the above stated penalties in this Section,
those found to be positive for dangerous drugs use shall
be subject to the provisions of Section 15 of this Act.
In December 2003, COMELEC issued Resolution
No. 6486, prescribing the rules and regulations on the
mandatory drug testing of candidates for public office in
connection with the May 10, 2004 synchronized national
and local elections. Aquilino Pimentel, Jr., a senator and a
candidate for re-election in the May elections, filed a
Petition for Certiorari and Prohibition under Rule 65. In it,
he seeks (1) to nullify Sec. 36(g) of RA 9165 and
COMELEC Resolution No. 6486 dated December 23, 2003
for being unconstitutional in that they impose a
qualification for candidates for senators in addition to
those already provided for in the 1987 Constitution; and
(2) to enjoin the COMELEC from implementing Resolution
No. 6486.
According to Pimentel, the Constitution only
prescribes a maximum of five (5) qualifications for one to
be a candidate for, elected to, and be a member of the
Senate.
SECTION 3. No person shall be a Senator unless he is a
natural-born citizen of the Philippines, and, on the day of
the election, is at least thirty-five years of age, able to
read and write, a registered voter, and a resident of the
Philippines for not less than two years immediately
preceding the day of the election.
He says that both the Congress and COMELEC, by
requiring, via RA 9165 and Resolution No. 6486, a
senatorial aspirant, among other candidates, to undergo a
mandatory drug test, create an additional qualification that
all candidates for senator must first be certified as drug
free. He adds that there is no provision in the Constitution
authorizing the Congress or COMELEC to expand the
qualification requirements of candidates for senator.
SC said Pimentel’s contention is well taken.
COMELEC cannot, in the guise of enforcing and
administering election laws or promulgating rules
and regulations to implement Sec. 36(g), validly
 Criminal Law II TSN
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impose qualifications on candidates for senator in
addition to what the Constitution prescribes. If
Congress cannot require a candidate for senator to
meet such additional qualification, the COMELEC, to
be sure, is also without such power. The right of a
citizen in the democratic process of election should
not be defeated by unwarranted impositions of
requirement not otherwise specified in the
Constitution.
Let’s take the case of SJS v DDB, under this case,
students of secondary and tertiary schools pursuant to the
rules and regulations in the student handbook and with
notice to the parents shall undergo a mandatory drug
testing.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of
RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of
RA 9165 for secondary and tertiary level students and
public and private employees, while mandatory, is a
random and suspicionless arrangement. The objective is to
stamp out illegal drug and safeguard in the process "the
well being of [the] citizenry, particularly the youth, from
the harmful effects of dangerous drugs."
xxx
Guided by Vernonia and Board of Education, the Court is
of the view and so holds that the provisions of RA 9165
requiring mandatory, random, and suspicionless drug
testing of students are constitutional. Indeed, it is within
the prerogative of educational institutions to require, as a
condition for admission, compliance with reasonable
school rules and regulations and policies. To be sure, the
right to enroll is not absolute; it is subject to fair,
reasonable, and equitable requirements.
Laserna Petition
(Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d) of RA
9165, the Court finds no valid justification for mandatory
drug testing for persons accused of crimes. In the case of
students, the constitutional viability of the mandatory,
random, and suspicionless drug testing for students
emanates primarily from the waiver by the students of
their right to privacy when they seek entry to the school,
and from their voluntarily submitting their persons to the
parental authority of school authorities. In the case of
private and public employees, the constitutional soundness
of the mandatory, random, and suspicionless drug testing
proceeds from the reasonableness of the drug test policy
and requirement.
103
“When your resources are down to nothing, believe that God is up to something =)”
We find the situation entirely different in the case of
persons charged before the public prosecutor's office with
criminal offenses punishable with six (6) years and one (1)
day imprisonment. The operative concepts in the
mandatory drug testing are "randomness" and
"suspicionless." In the case of persons charged with a
crime before the prosecutor's office, a mandatory drug
testing can never be random or suspicionless. The ideas of
randomness and being suspicionless are antithetical to
their being made defendants in a criminal complaint. They
are not randomly picked; neither are they beyond
suspicion. When persons suspected of committing a crime
are charged, they are singled out and are impleaded
against their will. The persons thus charged, by the bare
fact of being haled before the prosecutor's office and
peaceably submitting themselves to drug testing, if that be
the case, do not necessarily consent to the procedure, let
alone waive their right to privacy. 40 To impose mandatory
drug testing on the accused is a blatant attempt to
harness a medical test as a tool for criminal prosecution,
contrary to the stated objectives of RA 9165. Drug testing
in this case would violate a persons' right to privacy
guaranteed under Sec. 2, Art. III of the Constitution.
Worse still, the accused persons are veritably forced to
incriminate themselves.
JAMES’ part
(last part of Sept 11)
Let’s take the case of SJS vs Dangerous Drugs Board and
Laserna vs DDB. In this case, par. c of sec.36 of RA 9165
says:
(c) Students of secondary and tertiary schools. – Students
of secondary and tertiary schools shall, pursuant to the
related rules and regulations as contained in the school's
student handbook and with notice to the parents, undergo
a random drug testing: Provided, That all drug testing
expenses whether in public or private schools under this
Section will be borne by the government;
The drug test prescribed under Sec. 36(c), (d), and (f) of
RA 9165 for secondary and tertiary level students and
public and private employees, while mandatory, is a
random and suspicionless arrangement. The objective is to
stamp out illegal drug and safeguard in the process "the
well being of [the] citizenry, particularly the youth, from
the harmful effects of dangerous drugs." This statutory
purpose, per the policy - declaration portion of the law,
can be achieved via the pursuit by the state of "an
intensive and unrelenting campaign against the trafficking
and use of dangerous drugs x x x through an integrated
system of planning, implementation and enforcement of
anti - drug abuse policies, programs and projects."The
primary legislative intent is not criminal prosecution, as
those found positive for illegal drug use as a result of this
random testing are not necessarily treated as criminals.
They may even be exempt from criminal liability should
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the illegal drug user consent to undergo rehabilitation.
SC even cited some decisions of the U.S. Supreme Court:
“School children, the US Supreme Court noted, are most
vulnerable to the physical, psychological, and addictive
effects of drugs. Maturing nervous systems of the young
are more critically impaired by intoxicants and are more
inclined to drug dependency. Their recovery is also at a
depressingly low rate.”
The Court, in this case of SJS vs DDB, held that the
provisions of RA 9165 requiring mandatory, random, and
suspicionless drug testing of students are constitutional.
Indeed, it is within the prerogative of educational
institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations
and policies. To be sure, the right to enroll is not absolute;
it is subject to fair, reasonable, and equitable
requirements. That’s why sometimes, college universities
conduct random drug testing. ang usually ana, private kay
makaafford. Pero sa public, mahal man kaayo ng drug kit.
Now, in the case of Laserna, it involves those in the
government service, public employees and also private
employees. Kung naa ka sa gobyerno, nagtrabaho ka sa
civil service o naa ka sa hall of justice, PRC, unya adik diay
ka. Daghan kaayog adik diha ba. Imagine ang nagatubang
nimo nga sheriff, ang nagprocess sa imong dokumento,
adik diay? Kuha ba ninyo ang idea? Ang sheriff sa akong
korte, adik diay! Imagine that? Mao ng mahitabo. So,
employees in public and private offices are required under
sec. 36 to undergo random drug testing. Is that
constitutional? The SC said:
“Just as in the case of secondary and tertiary level
students, the mandatory but random drug test prescribed
by Sec. 36 of RA 9165 for officers and employees of public
and private offices is justifiable, albeit not exactly for the
same reason. The Court notes in this regard that petitioner
SJS, other than saying that "subjecting almost everybody
to drug testing, without probable cause, is unreasonable,
an unwarranted intrusion of the individual right to
privacy,"23 has failed to show how the mandatory,
random, and suspicionless drug testing under Sec. 36(c)
and (d) of RA 9165 violates the right to privacy and
constitutes unlawful and/or unconsented search under Art.
III, Secs. 1 and 2 of the Constitution.”
So, if you are in the public or private offices, you are an
employee there, there can be a random, suspicionless
drug testing. Mao bitaw ng mga pulis or in the case of
BJMP, kay allegedly, naa daw mga jail guards nga mga
adik, mao tig supply sa mga detainees. So, niconduct ug
random drug testing. Imagine noh? Mga pulis, maoy
manakop, posible ba gud nga kanang mga pulis nga
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“When your resources are down to nothing, believe that God is up to something =)”
nanakop mga adik?? YEEESSSSS!! For example ha, bato-
bato sa langit, ang tamaan wag magalit. During the raid,
the policeman was able to recover from then possession of
the accused, 10 sachets of shabu. Napulo na! pagreport
ana, pagbuhat sa affidavit, lima ra na! Asa ang five?
SAVINGS! Naa’y isa, nag apply ug search warrant sa akua,
“daghan judge! daghan kaayo ko nakit-an shabu!” “Asa
nimo nakit-an?” “didto maam! didto maam! isa ka jar!”
“unya gi-unsa nimo pagkakita nga naa man kaha sa sulod
sa jar?” “clear man maam ang jar!” Unya pag raid ba, usa
ra diay kabuok! “Ingon ka pag conduct nimog search and
surveillance nimo, pirting daghanag sulod sa jar, nganong
usa ra man ni kabuok?!” hmmmmmm.. di na mutingog!
Hay nako. See? The realities.
Okay, now, in the Laserna petition, he questioned on the
constitutionality of section 36 (f). what does paragraph f
say?
“(f) All persons charged before the prosecutor's office with
a criminal offense having an imposable penalty of
imprisonment of not less than six (6) years and one (1)
day shall have to undergo a mandatory drug test;”
So for example, Ms. Bote was charged with the crime of
homicide. What’s the penalty of homicide? Reclusion
Temporal, the range is 12 yrs and 1day to 20 yrs. Now,
when i was a prosecutor before, every accused or
respondent brought to the prosecutor’s office for inquest
proceeding, it’s a requirement, a mandatory requirement
that Ms. Bote will urinate. For what purpose? To determine
whether or not she is using shabu or marijuana. if she is
found to be using any of those substances, ang mahitabo,
we will charge her for the crime of homicide and then the
result of her urine which turned out to be positive for
shabu or MJ, we will allege that in the informetion because
that is a qualifying aggravating circumstance! That’s the
practice before. So, homicide yan and if guilty sya. what
will be the penalty for her? diba maximum period? RT max
because there is a qualified aggravating circumstance(?).
So, that is the issue there in Laserna. Is it not violative of
the right of the accused to be presumed innocent or
against self-incrimination? The SC said:
“Unlike the situation covered by Sec. 36(c) and (d) of RA
9165, the Court finds no valid justification for mandatory
drug testing for persons accused of crimes. In the case of
students, the constitutional viability of the mandatory,
random, and suspicionless drug testing for students
emanates primarily from the waiver by the students of
their right to privacy when they seek entry to the school,
and from their voluntarily submitting their persons to the
parental authority of school authorities. In the case of
private and public employees, the constitutional soundness
of the mandatory, random, and suspicionless drug testing
proceeds from the reasonableness of the drug test policy
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and requirement.
We find the situation entirely different in the case of
persons charged before the public prosecutor's office with
criminal offenses punishable with six (6) years and one (1)
day imprisonment. The operative concepts in the
mandatory drug testing are "randomness" and
"suspicionless." In the case of persons charged with a
crime before the prosecutor's office, a mandatory drug
testing can never be random or suspicionless. The ideas of
randomness and being suspicionless are antithetical to
their being made defendants in a criminal complaint. They
are not randomly picked; neither are they beyond
suspicion. When persons suspected of committing a crime
are charged, they are singled out and are impleaded
against their will. The persons thus charged, by the bare
fact of being haled before the prosecutor's office and
peaceably submitting themselves to drug testing, if that be
the case, do not necessarily consent to the procedure, let
alone waive their right to privacy. To impose mandatory
drug testing on the accused is a blatant attempt to
harness a medical test as a tool for criminal prosecution,
contrary to the stated objectives of RA 9165. Drug testing
in this case would violate a persons' right to privacy
guaranteed under Sec. 2, Art. III of the Constitution.
Worse still, the accused persons are veritably forced to
incriminate themselves.”
That is the reason why we do not require anymore
persons who are charged for a crime with the penalty of
more than 6 years to have a mandatory drug test in the
crime laboratory. So, if you committed a crime of
homicide, pure and simple, you will not be required
anymore to undergo a mandatory drug test because of the
ruling in the Laserna vs DDB.
There is a recent ruling of the SC and the ponente was CJ
Sereno. Gusto nako iemphasize that why is it that persons
charged with violation of RA 9165 are mandatorily brought
for drug testing. The case is Jaime Dela Cruz vs. People
(G.R. No. 200748). In this case, PO2 Jaime dela Cruz
picked up Ariel, the live-in partner of Corazon for allegedly
selling drugs. He demanded from Corazon the amount of
100,000 and the amount was later lowered to 40,000 for
the release of Ariel. The live-in partner sought the
assistance of the NBI-CEVRO. A team was immediately
formed to implement an entrapment operation, which took
place inside a Jollibee branch. The officers were able to
nab Jaime dela Cruz by using a pre-marked 500 bill dusted
with fluorescent powder, which was made part of the
amount demanded by "James" and handed by Corazon.
Petitioner Jaime was later brought to the forensic
laboratory of the NBI-CEVRO where forensic examination
was done by forensic chemist Rommel Paglinawan.
Petitioner was required to submit his urine for drug
testing. It later yielded a positive result for presence of
dangerous drugs. So, what crime did he commit? He was
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“When your resources are down to nothing, believe that God is up to something =)”
nabbed by the NBI because of extortion. Now, Jaime
denied the charge. He testified that while eating at the
said Jollibee branch, he was arrested allegedly for
extortion by NBI agents. When he was at the NBI Office,
he was required to extract urine for drug examination, but
he refused saying he wanted it to be done by the
Philippine National Police (PNP) Crime Laboratory and not
by the NBI. His request was, however, denied. He also
requested to be allowed to call his lawyer prior to the
taking of his urine sample, to no avail. Now, the issue here
is, is the drug testing conducted on petitioner Jaime dela
Cruz valid? Remamber the ruling in Laserna vs DDB? It
ceases to be suspicionless nor random. In Laserna, the SC
held the test as not valid. In this case (dela Cruz vs
People), the SC said the same. The urine test which
yielded positive result cannot be used against petitioner
dela Cruz. According to the SC, the drug test in Section 15
does not cover persons apprehended or arrested for any
unlawful act, but only for unlawful acts listed under Article
II of R.A. 9165.
That’s the basis now. Muingon ang mga pulis, “maam,
unsa man basis nimo maam?” Kana! Kanang ruling in
Jaime dela Cruz vs People.
“First, "[a] person apprehended or arrested" cannot
literally mean any person apprehended or arrested for any
crime.The phrase must be read in context and understood
in consonance with R.A. 9165. Section 15 comprehends
persons arrested or apprehended for unlawful acts listed
under Article II of the law.
Hence, a drug test can be made upon persons who are
apprehended or arrested for, among others, the
"importation," "sale, trading, administration, dispensation,
delivery, distribution and transportation", "manufacture"
and "possession" of dangerous drugs and/or controlled
precursors and essential chemicals; possession thereof
"during parties, social gatherings or meetings" ; being
"employees and visitors of a den, dive or resort";
"maintenance of a den, dive or resort"; "illegal chemical
diversion of controlled precursors and essential
chemicals" ; "manufacture or delivery" or "possession" of
equipment, instrument, apparatus, and other
paraphernalia for dangerous drugs and/or controlled
precursors and essential chemicals; possession of
dangerous drugs "during parties, social gatherings or
meetings" ; "unnecessary" or "unlawful" prescription
thereof; "cultivation or culture of plants classified as
dangerous drugs or are sources thereof"; and
"maintenance and keeping of original records of
transactions on dangerous drugs and/or controlled
precursors and essential chemicals."
To make the provision applicable to all persons arrested or
apprehended for any crime not listed under Article II is
tantamount to unduly expanding its meaning. Note that
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accused appellant here was arrested in the alleged act of
extortion (and not for violation of RA 9165).”
That’s the reason why people charged for violation of RA
9165, after arrest, are immediately brought to the crime
lab for drug testing and that is a valid act by the
policemen. So, again, persons charged for violation of RA
9165 are mandatorily required to be examined of their
urine and when they are found to be positive, it will be
alleged as a qualifying aggravating circumstance.
Now, para lang mo maganahan. I want you to read this
case, a davao case. Para lang makahibalo mo nga naay
kaso nga gikan davao nga niabot ug Supreme Court. This
happened in Juna Subdivision, Jogue’s Apartelle. This is
the case of People vs. Manuelita Ampatuan, et. al (July 30,
2014). The people who conducted the buy-bust operation
are still alive. Nagatestify pa sa korte. The conviction here
of the seller was affirmed by the SC. I will never forget
this because the one who made turo naay kaso ron sa
akong korte nga pending. So, in other words, what
happened to him in the past did not make him a better
person. He still continued on his alleged business. You
read it. As I said, he has two cases pending in my court
for possession. I would not mention the name. I will let
you discover for yourself who he is. The cases are being
handled by Atty. Villarente.
shabu.8 The marked money used in the buy-bust
operation, although having evidentiary value, is not vital to
the prosecution of the case. It is merely corroborative in
nature. What is material to the prosecution of illegal sale
of dangerous drugs is the proof that the illegal sale
actually took place, coupled with the presentation in court
of the corpus delictias evidence.9 In the case at bar, the
prosecution duly established both.
Relative to the required proof of anunbroken chain of
custody of the seized illegal shabuand shabuparaphernalia,
the parties agreed to stipulate on the relevant testimony
of the witnesses, the requestfor laboratory examination,
machine copy blotter, inventory, photographs, and
affidavits, all attesting to the fulfillment of the
requirement.10 Indeed, the defense never raised as
defense any break in the chain of custody of the seized
shabu and drug paraphernalia.”
-end of 1st exam-

(Taken from the case) “The elements necessary for the

prosecution of the illegal sale of drugs are as follows: (1)
the identity of the buyer and the seller, the object and the
consideration; and (2) the delivery of the thing sold and
payment therefor. The prosecution, to prove guilt beyond
reasonable doubt, must present in evidence the corpus
delictiof the case. The corpus delictiis the seized illegal
drugs.

The duty of the prosecution is not merely to present in

evidence the seized illegal drugs. It is essential that the
illegal drugs seized from the suspect is the very same
substance offered in evidence in court as the identity of
the drug must be established with the same unwavering Take a look at what are included in the Crimes Against Public
Morals. Gambling. Importation, Sale, etc.Grave Scandal.
exactitude as that required to make a finding of guilt.
Vagrancy, there’s already an amendment in Article 202.

This Court is convinced that the prosecution has Chapter One

sufficiently discharged its burden to establish the elements
GAMBLING AND BETTING
in the illegal sale of shabu. The prosecution was able to
establish the (1) identity of accused-appellants as the
Art. 195. What acts are punishable in gambling. —
sellers, and the buyer, Dujon; and (2) the object of the
transaction, which is the jumbo sachet of shabu, weighing (a) The penalty of arresto mayor or a fine not exceeding
46.4490 grams; and the delivery of the sold illegal shabuto two hundred pesos, and, in case of recidivism, the
Dujon, the poseur-buyer. penalty of arresto mayor or a fine ranging from two
hundred or six thousand pesos, shall be imposed upon:
The absence of marked money does not run counter to
1. Any person other than those referred to in subsections
the presented proof of illegal sale of shabu.Lack of marked (b) and (c) who, in any manner shall directly, or
money is not an element to the crime of illegal sale of indirectly take part in any game of monte, jueteng or any
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other form of lottery, policy, banking, or percentage
game, dog races, or any other game of scheme the result
of which depends wholly or chiefly upon chance or
hazard; or wherein wagers consisting of money, articles
of value or representative of value are made; or in the
exploitation or use of any other mechanical invention or
contrivance to determine by chance the loser or winner
of money or any object or representative of value.
2. Any person who shall knowingly permit any form of
gambling referred to in the preceding subdivision to be
carried on in any unhabited or uninhabited place of any
building, vessel or other means of transportation owned
or controlled by him. If the place where gambling is
carried on has the reputation of a gambling place or that
prohibited gambling is frequently carried on therein, the
culprit shall be punished by the penalty provided for in
this article in its maximum period.
(b) The penalty of prision correccional in its maximum
degree shall be imposed upon the maintainer, conductor,
or banker in a game of jueteng or any similar game.
(c) The penalty of prision correccional in its medium
degree shall be imposed upon any person who shall,
knowingly and without lawful purpose, have in his
possession and lottery list, paper or other matter
containing letters, figures, signs or symbols which
pertain to or are in any manner used in the game of
jueteng or any similar game which has taken place or
about to take place.
Art. 196. Importation, sale and possession of lottery
tickets or advertisements. — The penalty of arresto
mayor in its maximum period to prision correccional in its
minimum period or a fine ranging from 200 to 2,000
pesos, or both, in the discretion of the court, shall be
imposed upon any person who shall import into the
Philippine Islands from any foreign place or port any
lottery ticket or advertisement or, in connivance with the
importer, shall sell or distribute the same.
Any person who shall knowingly and with intent to use
them, have in his possession lottery tickets or
advertisements, or shall sell or distribute the same
without connivance with the importer of the same, shall
be punished by arresto menor, or a fine not exceeding
200 pesos, or both, in the discretion of the court.
The possession of any lottery ticket or advertisement
shall be prima facie evidence of an intent to sell,
distribute or use the same in the Philippine Islands.
Why is Gambling is made a crime? The purpose is to repress the
undermining evil in the social, economic, and moral wrong of the
nation. The aversion of the State against Gambling is not only
following the Revised Penal Code, it is also made punishable by
special laws. And to make it more difficult for gamblers to
continue their trade, the Civil Code under Article 2013 up to 2018
provide that no action can be maintained for the winner for
collection of what he has won on a game of chance. You can find
that in the Civil Code.
Article 197. Betting in Sports Contests. This has been repealed by
PD 483. Take a look at Sec. 2.
Section 2. Betting, game-fixing, point-shaving or game
machination unlawful. Game-fixing, point-shaving,
machination, as defined in the preceding section, in
connection with the games of basketball, volleyball,
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softball, baseball; chess, boxing bouts, "jai-alai", "sipa",
"pelota" and all other sports contests, games or races; as
well as betting therein except as may be authorized by
law, is hereby declared unlawful.
So generally if you are betting in a basketball game that is not
allowed, that is a crime. But no one now would file a case.
Art. 198. Illegal betting on horse race. Art. 199. Illegal
cockfighting. Remember these articles have been repealed or
amended by PD 449. There is nothing more if that.
PD 1602 Simplifying And Providing Stiffer Penalties For Violation
Of The Philippine Gambling Law. But of course we have to
remember that PD 1602 has been amended by RA 9287, the new
law on gambling. That is the one that we used when one is
charged for betting in a “Last two”(?) not anymore PD 1602.
Take a look at definition of Gambling. Gambling is a game or
device or method, the results of which depends wholly or
chiefly upon chance or hazard. So if the game depends upon
skill or ability of the players, there can be no gambling. This
definition of gambling refers to games which have no
name or though it has a name, the same is not known to
the authorities. The manner of determining whether the
game played is prohibited or not is whether the result
shall depend wholly or chiefly upon chance or hazard.
In my experience as a trial court judge, there is one kind of
gambling that is prevalent now. In other provinces, the fight of
damang. They would bet a minimum P50,000. There was one
raid, and all of them present, including the one who protected(?)
it is also included. And they asked, “wala man ni sa balaod
ma’am.” Gambling pa rin. Magpa away ug damang.
Let’s proceed with Crimes Against Decency and Good Customs.
What are the offenses against decency and good customs? We
have three:
1. Grave Scandal (Art 200)
2. Immoral doctrines, obscene publications and
exhibitions and indecent shows. (Art 201)
3. And that which is provided in Art 202, Prostitution.
4.
Art. 200. Grave scandal. — The penalties of arresto mayor
and public censure shall be imposed upon any person
who shall offend against decency or good customs by any
highly scandalous conduct not expressly falling within
any other article of this Code.
Take a look at the definition of Grave Scandal.
From Paras: Grave Scandal consists of acts which are offensive
to decency and good customs which, having been committed
publicly, have given rise to public scandal to persons who have
accidentally witnessed the same.
It is suggested that the crime of grave scandal is a crime against
morals. Necessarily the offender must commit the crime in a
public place or within the view of the public. So besides being
contrary to morals and good customs, the act or acts must
committed must be within the view of the public as the publicity
of the act is an element of the crime. Such character
demoralizes the sensibility of the persons present and witnessing
the incident.
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Take note ha, the act must be those that constitute public
scandal of the persons witnessing them. Public Scandal.
What are the elements of Grave Scandal?
1. Offender performs an act or acts.
2. Such act or acts are highly scandalous as offending
against decency or good customs.
3. The highly scandalous conduct is not expressly
falling within any other article of this Code.
4. The act or acts complained of be committed in a public
place or within the public knowledge or view.
All the requisites must conform.
The word “decency” means propriety of conduct; appropriate
behavior as consistent with the accepted norms of modesty and
good taste. The word “customs” mean established usage, social
conventions carried on by tradition and enforced by social
disapproval of any violation thereof.
Remember the crime must be performed publicly. If it is done
privately, then Art. 200 is not violated. Now if you perform those
acts in a couch and somebody saw you, is Art 200 violated? No
Article 200 is not violated. Because this circumstance does not
constitute the degree of publicity.
Any act which is notoriously offensive to decency may bring
about criminal liability for the crime of Grave Scandal, provided
such act does not constitute some other crime under the RPC.
Just like Unjust Vexation, Grave Scandal is a crime of last resort.
Distinction must be made as to what place the act was
committed: whether in a public place or in a private place.
Public Place: the criminal liability arises irrespective of
whether that immoral act is discovered by the public. In
short, public view is not required.
Example: if you will have sex inside your vehicle while such
vehicle is parked outside SM. “tinted man, wala’y nakakita kay
tinted”. “tinted lage pero ga uyog uyog man nang sakyanan
diha.” Now is crime committed because there is no public view?
There is no public view but it is committed in a public place.
Public view is not required. So what is the crime? Grave Scandal.
Private Place: When the act offensive to decency is
done in a private place, public view or public knowledge
is required.
When you say public view, it does not require numerous
persons. Even if there is only one person who discovered the
offensive act, for as long as that person is not an intruder, Grave
Scandal is committed provided the act does not fall under any of
the crime under the RPC.
Illustration 1: Man and woman enters movie house which is a
public place. They seated on the darkest place of the balcony.
And when there, the man started making acts of lasciviousness
on the woman.
 If it was against the will of the woman, Acts of
Lasciviousness.
 But if there is mutuality, this constitutes Grave Scandal.
Public view is not necessary so long as it is done in a
public place.
Illustration 2: a man and a woman went to Luneta, and slept
there. They covered themselves with blanket and made the grass
their conjugal bed. Grave scandal is committed.
Just like what happened in Buhangin. Our Lumad friends went
down from the hinterlands. While the DSWD people were
conducting meeting or whatever, some of our Lumad friends
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were having sexual intercourse. And they used malong to cover
themselves.
Another: In an apartment, the lady was undressing in her room
without shutting the blinds. She does this every 8pm, so that
every night there are people outside gathering and looking at her
silhouette. She was charged with Grave Scandal. Her defense
was she was doing it in her own house.
The suggested answer is Grave Scandal is still committed. It is
no defense that she is doing it in her private room because it is
still open to the public view.
1996 Bar Q: Pia, a bold actress living on top floor of a plush
condo in Makati sunbathed naked at its penthouse every Sunday
morning. She was unaware that the business executives holding
office at the adjoining tall buildings reported to office every
Sunday morning and, with the use of powerful binoculars, kept
on gazing at her while she sunbathed. Eventually, her sunbathing
became the talk of the town?
1. What crime did Pia commit?
Pia did not commit a crime. The felony closest to making Pia
criminally liable is Grave Scandal, but then such act is not to
be considered as highly scandalous and offensice against
decency and good customs. In the first place, it was not
done in a public place and within public knowledge or view.
As a matter of fact it was discovered by the executives
accidentally and they have to use binoculars to have public
and full view of Pia sunbathing in nude.
2. What crime if any did the business executives commit?
The business executives did not commit any crime. Their
acts could not be acts of lasciviousness as there was no
overt lustful act; or slander as the eventual talk of the town
resulting from her sunbathing is not directly imputed to the
business executives and besides, such topic is not intended
to defame Pia or to ridicule.
Art. 201. Immoral doctrines, obscene publications
and exhibitions and indecent shows. — The penalty
of prision mayor or a fine ranging from six thousand
to twelve thousand pesos, or both such
imprisonment and fine, shall be imposed upon:
(1) Those who shall publicly expound or proclaim
doctrines openly contrary to public morals;
(2) (a) the authors of obscene literature, published
with their knowledge in any form; the editors
publishing such literature; and the owners/operators
of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or
any other place, exhibit, indecent or immoral plays,
scenes, acts or shows, whether live or in film, which
are prescribed by virtue hereof, shall include those
which (1) glorify criminals or condone crimes; (2)
serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or
religion; (4) tend to abet traffic in and use of
prohibited drugs; and (5) are contrary to law, public
order, morals, and good customs, established
policies, lawful orders, decrees and edicts;
(3) Those who shall sell, give away or exhibit films,
prints, engravings, sculpture or literature which are
offensive to morals. (As amended by PD Nos. 960 and
969).
What are the acts punished under Art 201? [see codal]
Now who are the persons liable here?
1. Those who shall publicly expound or proclaim doctrines
openly contrary to public morals
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2. the authors of obscene literature, published with their
knowledge
3. the editors publishing such literature
4. the owners or operators of the establishment selling the
same
5. those who, in theaters, fairs, cinematographs or any
other place, shall exhibit, indecent or immoral plays
whether in film, forms, or live
Illustration: Vina Theater exhibited pornographic films. It was
raided and there were also films confiscated. This is an example
of violation of Art 201. The owner of the theater is liable for
indecent exhibition.
Illustration: Rhonda, dancer in club, danced naked in front of her
customers. She is liable under Art 201. Because she is
performing an indecent show.
Another: Jacques publication published magazines of nude men
and women as well as stories of sexual desire and experiences.
The owner, author, and editor is liable for obscene publication
under Art 201.
Now as earlier mentioned, there must be publicity. It means the
act/s done must come to the knowlesge of third persons.
What is the test of obscenity? Obscenity means something
offensive to chastity, decency or good taste. It must have the
tendency to corrupt those whose minds are susceptible to such
immoral influences.
Now what is the test of obscenity? If you remember the
Kottinger rule in Crim 2. The test is if the material charged as
obscene has the tendency to deprave and corrupt those whose
minds are open to or to whose hands the material may come.
PP v Aparrici: Detectives A and B accompanied by
photographers of a newspaper in order to observed what was
exhibited there. They found the place dark with the stage dimly
lighted where a woman, Virginia Aparrici, was swaying to and fro
with the middle part of her body, dancing her hips, and
sometimes raising her feet, one after the other.
I believe some of you have not yet entered a floor show. (Judge
went to a floor show, story about client who owns a floor show
in Cabaguio. Ang ilang calling card: “if your husband does not
love you, we do.” They were raided by CIDG together with
photographers…Godzilla…Hotlegs…exotic beauty)
The accused had nothing on except nylon patches to cover her
breast and too abbreviated pair of nylon panties to interrupt her
stark nakedness, and the spectators were all men. Clearly it was
a men’s show. And they were howling and shouting, “Sige muna,
sige, nakakalibog.” In the course of her performance, the police
stopped the show and asked the accused to put on her dress and
surrender to her the panty and bra. The accused was charged for
violation of Article 201.
SC said yes the accused has exhibited immoral and indecent
acts it may be considered that nudity itself is not inherently
indecent or obscene. Mere nudity in painting and sculpture is not
obscenity as it may be considered as pieces or art but the
artistic, the aesthetic and pulchritude in the nude body of a living
woman may readily be transformed into an indecent and obscene
object, by posture and movements of such body which produce
perceptible and discernable action in the public or audience
witnessing the same.
The object of the law is to protect the morals of the public, the
reaction of the public therefore during the performance and the
dance should be made a gauge in determination whether the
appellant’s dancing was indeed indecent or immoral. This is what
we call the reaction test. We have the Kottinger Rule and then
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we have the reaction test. The reaction of the people who were
there, the audience that were there is the gauge or barometer
won art 201 is violated.
But take a look fast forward muna, what if it was an 70 woman
having a pole vaulting act? Do you think it will ignite the men
there in that show? Or an 80 year old woman? Ma imagine nimu
na Hunger Games sila si lola ang iyang gi.alsa? iyang partner si
lola remember? What if kadto? Way lami noh? Walay lami kng
ang lola or ang bata kay mag lips to lips.. wala..
So its more on the reaction test on the audience.
Now as earlier mentioned in committing this crime, there must
be publicity ha. It means that the act or acts done must come to
the knowledge of a third person.
Now the other act which is being prohibited here in Article 201 is
those who shall publicly expound or proclaim doctrines
openly contrary to public morals. You believe in something
that cannot be accepted morally. Example, you believe that is
proper to have wife-swapping or having sex with your relatives,
that is incestuous and you espouse this kind of belief in public.
Then, you will be committing violation of art 201.
Now remember, the authors of obscene literature
published with their knowledge in any form, the editors
publishing the literature and the owners/operators of the
establishment selling the same will also be liable.
Now if you draw erotic pictures or write erotic stories and have it
published with your consent, you are also liable. If there is no
consent, then, you are not liable but the publisher who publishes
it will be criminally liable. Now those who shall sell give away or
exhibit films prints engravings sculpture or literature which is
offensive to morals.
In relation to that we have RA 9775 AN ACT DEFINING THE
CRIME OF CHILD PORNOGRAPHY, PRESCRIBING
PENALTIES THEREFOR AND FOR OTHER PURPOSES
So what is child pornography? (BQ)
Sec 3 (b) "Child pornography" refers to any public or
private representation, by whatever means, of a child
engaged in real or simulated explicit sexual activities or
any representation of the sexual parts of a child for
primarily sexual purposes.
(c) "Child pornography materials" refers to the means
and methods by which child pornography is carried out:
(1) As to form:
(i) Visual depiction - which includes not only images of real
children but also digital image, computer image or computer-
generated image that is indistinguishable from that of real
children engaging in an explicit sexual activity. Visual depiction
shall include:
(aa) undeveloped film and videotapes;
(bb) data and/or images stored on a computer disk or by
electronic means capable of conversion into a visual image;
(cc) photograph, film, video, picture, digital image or picture,
computer image or picture, whether made or produced by
electronic, mechanical or other means;
(dd) drawings, cartoons, sculptures or paintings depicting
children;
(ee) other analogous visual depiction; or
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(ii) Audio representation of a person who is or is represented as
being a child and who is engaged in or is represented as being
engaged in explicit sexual activity, or an audio representation
that advocates, encourages or counsels any sexual activity with
children which is an offense under this Act.
Such representation includes audio recordings and live audio
transmission conveyed through whatever medium including real-
time internet communications;
(iii) Written text or material that advocates or counsels explicit
sexual activity with a child and whose dominant characteristic is
the description, for a sexual purpose, of an explicit sexual activity
with a child.
(2) As to content?
(i) It includes representation of a person who is, appears to be,
or is represented as being a child, the dominant characteristic of
which is the depiction, for a sexual purpose, of:
(aa) the sexual organ or the anal region, or a representation
thereof;
(bb) the breasts, or a representation of the breasts, of a female
person.
So what does explicit sexual activity include? Explicit sexual
activity refers to actual or simulated ( insofar as to form) acts.
Including:
(1) Sexual intercourse or lascivious act including, but not
limited to, contact involving genital to genital, oral to
genital, anal to genital or oral to anal, whether between
persons of the same or opposite sex;
(2) Bestiality;
(3) Masturbation;
(4) Sadistic or masochistic abuse;
(5) Exhibition of the genitals, buttocks, breast, pubic
area and/or anus; or
(6) Use of any object or instrument for lascivious acts.
Now, there are unlawful acts that are being enumerated under
section 4 of RA 9775
Sec. 4. Unlawful or Prohibited Acts. - It shall be unlawful
for a person to commit any of the following acts:
(a) To hire, employ, use, persuade, induce or coerce a
child to perform in the creation or production of child
pornography;
(b) To produce, direct, manufacture or create any form of
child pornography and child pornography materials
(c) To sell, offer, advertise and promote child
pornography and child pornography materials;
(d) To possess, download, purchase, reproduce or make
available child pornography materials with the intent of
selling or distributing them;
(e) To publish, post, exhibit, disseminate, distribute,
transmit or broadcast child pornography or child
pornography materials;
(f) To knowingly possess, view, download, purchase or in
any way take steps to procure, obtain or access for
personal use child pornography materials; and
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(g) To attempt to commit child pornography by luring or
grooming a child.
Ok now there is what we call in that law we have this internet
café or kiosk. What is that?
"Internet café or kiosk" refers to an establishment that
offers or proposes to offer services to the public for the
use of its computer/s or computer system for the
purpose of accessing the Internet, computer games or
related services.
Judge: the purpose is for child pornography.
Now, there is another term that I want you to be familiar with.
What is grooming?
"Grooming" refers to the act of preparing a child or
someone who the offender believes to be a child for a
sexual activity or sexual relationship by communicating
child pornography. It includes online enticement, or
enticement through any other means.
We also have under this law the word “luring”.
"Luring" refers to the act of communicating, by means of
a computer system, with a child or someone who the
offender believes to be a child for the purpose of
facilitating the commission of a sexual activity or
production of child pornography.
Another term which all of us should be familiar with. We have
“pandering”
“Pandering" refers to the act of offering, advertising,
promoting, representing or distributing through any
means any material or purported material that is
intended to cause another to believe that the material or
purported material contains any form of child
pornography, regardless of the actual content of the
material or purported material.
Now I’ll hold you responsible familiarize yourself with the
prohibited acts punishable under RA 9775.
Section 4. Unlawful or Prohibited Acts. – It shall be unlawful for
any person:
(a) To hire, employ, use, persuade, induce or coerce a child to
perform in the creation or production of any form of child
pornography;
(b) To produce, direct, manufacture or create any form of child
pornography;
(c) To publish offer, transmit, sell, distribute, broadcast,
advertise, promote, export or import any form of child
pornography;
(d) To possess any form of child pornography with the intent to
sell, distribute, publish, or broadcast: Provided. That possession
of three (3) or more articles of child pornography of the same
form shall be prima facie evidence of the intent to sell, distribute,
publish or broadcast;
(e) To knowingly, willfully and intentionally provide a venue for
the commission of prohibited acts as, but not limited to, dens,
private rooms, cubicles, cinemas, houses or in establishments
purporting to be a legitimate business;
(f) For film distributors, theaters and telecommunication
companies, by themselves or in cooperation with other entities,
to distribute any form of child pornography;
(g) For a parent, legal guardian or person having custody or
control of a child to knowingly permit the child to engage,
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participate or assist in any form of child pornography;
(h) To engage in the luring or grooming of a child;
(i) To engage in pandering of any form of child pornography;
(j) To willfully access any form of child pornography;
(k) To conspire to commit any of the prohibited acts stated in
this section. Conspiracy to commit any form of child pornography
shall be committed when two (2) or more persons come to an
agreement concerning the commission of any of the said
prohibited acts and decide to commit it; and
(l) To possess any form of child pornography.
Let’s go to 2011 Bar Question: Mr. P owns a boarding house
where he knowingly allowed children to be videotaped while
simulating explicit sexual activities. What is Mr. P's criminal
liability, if any?
(A) Corruption of minors under the Penal Code
(B) Violation of the Child Pornography Act
(C) Violation of the Child Abuse Law
(D) None.
Now, there’s also another portion of that law, Section 5, it talks
about syndicated child pornography. Just like in estafa or illegal
recruitment
Section 5. Syndicated Child Pornography - The crime of
child pornography is deemed committed by a syndicate if
carried out by a group of three (3) or more persons
conspiring or confederating with one another and shall
be punished under Section 15(a) of this Act.
Section 3. Definition of Terms. –
(a) “Child” refers to a person below eighteen (18) years
of age or over, but is unable to fully take care of
himself/herself from abuse, neglect, cruelty, exploitation
or discrimination because of a physical or mental
disability or condition.
For the purpose of this Act, a child shall also refer to:
(1) a person regardless of age who is presented, depicted
or portrayed as a child as defined herein; and
(2) computer-generated, digitally or manually crafted
images or graphics of a person who is represented or
who is made to appear to be a child as defined herein.
(b) “Child pornography” refers to any representation,
whether visual, audio, or written combination thereof, by
electronic, mechanical, digital, optical, magnetic or any
other means, of child engaged or involved in real or
simulated explicit sexual activities.
(c) “Explicit Sexual Activity” includes actual or simulated
–
(1) As to form:
(i) sexual intercourse or lascivious act including, but not
limited to, contact involving genital to genital, oral to
genital, anal to genital, or oral to anal, whether between
persons of the same or opposite sex;
(2) bestiality;
(3) masturbation;
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(4) sadistic or masochistic abuse;
(5) lascivious exhibition of the genitals, buttocks,
breasts, pubic area and/or anus; or
(6) use of any object or instrument for lascivious acts
(d) “Internet address” refers to a website, bulletin board
service, internet chat room or news group, or any other
internet or shared network protocol address.
(e) “Internet cafe or kiosk” refers to an establishment
that offers or proposes to offer services to the public for
the use of its computer/s or computer system for the
purpose of accessing the internet, computer games or
related services.
(f) “Internet content host” refers to a person who hosts
or who proposes to host internet content in the
Philippines.
(g) “Internet service provider (ISP)” refers to a person or
entity that supplies or proposes to supply, an internet
carriage service to the public.
(h) “Grooming” refers to the act of preparing a child or
someone who the offender believes to be a child for
sexual activity or sexual relationship by communicating
any form of child pornography. It includes online
enticement or enticement through any other means.
(i) “Luring” refers to the act of communicating, by means
of a computer system, with a child or someone who the
offender believes to be a child for the purpose of
facilitating the commission of sexual activity or
production of any form of child pornography.(2)
Bestiality;
(j) “Pandering” refers to the act of offering, advertising,
promoting, representing or distributing through any
means any material or purported material that is
intended to cause another to believe that the material or
purported material contains any form of child
pornography, regardless of the actual content of the
material or purported material.
(k) “Person” refers to any natural or juridical entity.
Just familiarize yourself on the terms and then the prohibited
acts.
Now to continue with our discussion under article 201 I’m sure
you are familiar with the case of Ladlad LGBT vs Comelec.
2010, you have taken this up in your consti law dba??
One point is that this case tackles also article 201 not only the
constitutional side but also the criminal side of the alleged
immoral… committed by the LGBT community.
Another law is RA 9995 AN ACT DEFINING AND
PENALIZING THE CRIME OF PHOTO AND VIDEO
VOYEURISM, PRESCRIBING PENALTIES THEREFOR, AND
FOR OTHER PURPOSES
REPUBLIC ACT NO. 9995
AN ACT DEFINING AND PENALIZING THE CRIME OF
PHOTO AND VIDEO VOYEURISM, PRESCRIBING
PENALTIES THEREFOR, AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representative
of the Philippines in Congress assembled:
Section 1. Short Title. - This Act shall be known as
the "Anti-Photo and Video Voyeurism Act of 2009".cralaw
Sec. 2. Declaration of Policy. - The State values the
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dignity and privacy of every human person and
guarantees full respect for human rights. Toward this
end, the State shall penalize acts that would destroy the
honor, dignity and integrity of a person.
Sec. 3. Definition of Terms. - For purposes of this Act, the
term:
(a) "Broadcast" means to make public, by any means, a
visual image with the intent that it be viewed by a person
or persons.cralaw
(b) "Capture" with respect to an image, means to
videotape, photograph, film, record by any means, or
broadcast.cralaw
(c) "Female breast" means any portion of the female
breast.cralaw
(d) "Photo or video voyeurism" means the act of taking
photo or video coverage of a person or group of persons
performing sexual act or any similar activity or of
capturing an image of the private area of a person or
persons without the latter's consent, under
circumstances in which such person/s has/have a
reasonable expectation of privacy, or the act of selling,
copying, reproducing, broadcasting, sharing, showing or
exhibiting the photo or video coverage or recordings of
such sexual act or similar activity through VCD/DVD,
internet, cellular phones and similar means or device
without the written consent of the person/s involved,
notwithstanding that consent to record or take photo or
video coverage of same was given by such
person's.cralaw
(e) "Private area of a person" means the naked or
undergarment clad genitals, public area, buttocks or
female breast of an individual.cralaw
(f) "Under circumstances in which a person has a
reasonable expectation of privacy" means believe that
he/she could disrobe in privacy, without being concerned
that an image or a private area of the person was being
captured; or circumstances in which a reasonable person
would believe that a private area of the person would not
be visible to the public, regardless of whether that
person is in a public or private place.
Sec. 4. Prohibited Acts. - It is hereby prohibited and
declared unlawful for any person:
(a) To take photo or video coverage of a person or group
of persons performing sexual act or any similar activity
or to capture an image of the private area of a person/s
such as the naked or undergarment clad genitals, public
area, buttocks or female breast without the consent of
the person/s involved and under circumstances in which
the person/s has/have a reasonable expectation of
privacy;
(b) To copy or reproduce, or to cause to be copied or
reproduced, such photo or video or recording of sexual
act or any similar activity with or without consideration;
(c) To sell or distribute, or cause to be sold or distributed,
such photo or video or recording of sexual act, whether it
be the original copy or reproduction thereof; or
(d) To publish or broadcast, or cause to be published or
broadcast, whether in print or broadcast media, or show
or exhibit the photo or video coverage or recordings of
such sexual act or any similar activity through VCD/DVD,
internet, cellular phones and other similar means or
device.
The prohibition under paragraphs (b), (c) and (d) shall
apply notwithstanding that consent to record or take
photo or video coverage of the same was given by such
person/s. Any person who violates this provision shall be
liable for photo or video voyeurism as defined
herein.cralaw
Sec. 5. Penalties. - The penalty of imprisonment of not
less that three (3) years but not more than seven (7)
years and a fine of not less than One hundred thousand
pesos (P100,000.00) but not more than Five hundred
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thousand pesos (P500,000.00), or both, at the discretion
of the court shall be imposed upon any person found
guilty of violating Section 4 of this Act.cralaw
If the violator is a juridical person, its license or franchise
shall be automatically be deemed revoked and the
persons liable shall be the officers thereof including the
editor and reporter in the case of print media, and the
station manager, editor and broadcaster in the case of a
broadcast media.cralaw
If the offender is a public officer or employee, or a
professional, he/she shall be administratively
liable.cralaw
If the offender is an alien, he/she shall be subject to
deportation proceedings after serving his/her sentence
and payment of fines.cralaw
Sec. 6. Exemption. - Nothing contained in this Act,
however, shall render it unlawful or punishable for any
peace officer, who is authorized by a written order of the
court, to use the record or any copy thereof as evidence
in any civil, criminal investigation or trial of the crime of
photo or video voyeurism: Provided, That such written
order shall only be issued or granted upon written
application and the examination under oath or
affirmation of the applicant and the witnesses he/she
may produce, and upon showing that there are
reasonable grounds to believe that photo or video
voyeurism has been committed or is about to be
committed, and that the evidence to be obtained is
essential to the conviction of any person for, or to the
solution or prevention of such, crime.cralaw
Sec. 7. Inadmissibility of Evidence. - Any record, photo or
video, or copy thereof, obtained or secured by any person
in violation of the preceding sections shall not be
admissible in evidence in any judicial, quasi-judicial,
legislative or administrative hearing or
investigation.cralaw
Sec. 8. Separability Clause. - If any provision or part
hereof is held invalid or unconstitutional, the remaining
provisions not affected thereby shall remain valid and
subsisting.cralaw
Sec. 9. Repealing Clause. - Any law, presidential decree
or issuance, executive order, letter of instruction ,
administrative order, rule or regulation contrary to or
inconsistent with the provisions of this Act is hereby
repealed, modified or amended accordingly.cralaw
Sec. 10. Effectivity Clause. - This Act shall take effect
fifteen (15) days after its complete publication in the
Official Gazette or in two(2) newspapers of general
circulation.
Define photo or video voyeurism.
"Photo or video voyeurism" means the act of taking
photo or video coverage of a person or group of persons
performing sexual act or any similar activity or of
capturing an image of the private area of a person or
persons without the latter's consent, under
circumstances in which such person/s has/have a
reasonable expectation of privacy, or the act of selling,
copying, reproducing, broadcasting, sharing, showing or
exhibiting the photo or video coverage or recordings of
such sexual act or similar activity through VCD/DVD,
internet, cellular phones and similar means or device
without the written consent of the person/s involved,
notwithstanding that consent to record or take photo or
video coverage of same was given by such person.
You know the history why RA 9995 existed noh? This is the
history of Hayden Kho and Katrina halili this is why there is now
The Anti voyeurism act. And you know who authored this law.
Now in jail, bong revilla
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Now the law uses the word “broadcast” what does it mean?
"Broadcast" means to make public, by any means, a
visual image with the intent that it be viewed by a person
or persons.
Judge tells a story when she was a private practitioner she had a
client who was the subject of a cellphone video. The man (client)
having sex with the mistress. The mistress was making a video
out of it. Client’s genital was exposed as well as the fellatio. This
was before ra 9775… woman sent a cd to judge (jungle2 na)…
Also another case involving a minor, (sent pictures and videos)
also before RA 9775 ( ra 7610 was used). What happened? Prior
the indictment, the case was settled for 5 million… judge was
given 250k… moral of the story- never underestimate a particular
case…
Now, what do you mean by capture?
"Capture" with respect to an image, means to videotape,
photograph, film, record by any means, or broadcast.
Now, take a look, the first act speaks of “under circumstances in
which such person/s has/have a reasonable expectation of
privacy,” what does this mean?
(f) "Under circumstances in which a person has a
reasonable expectation of privacy" means believe that
he/she could disrobe in privacy, without being concerned
that an image or a private area of the person was being
captured; or circumstances in which a reasonable person
would believe that a private area of the person would not
be visible to the public, regardless of whether that
person is in a public or private place.
For example, we are in a public place and someone will
videotape my bilahan here and afterward I broadcast na. or just
like in the place of my client, nag shower2 silang duha while
having a videotape there. That actually constitutes voyeurism.
So we are expected to disrobe in the cubicle in the comfort room
so kung wala yan unsaon na pag.ihi. beh daw? Judge then tells
about an incident in the canteen taking a picture underneath a
girls dress. That is voyeurism and then afterwards he broadcasts
it. That is not allowed. If you will do that, you will become liable.
(e) "Private area of a person" means the naked or
undergarment clad genitals, pubic area, buttocks or
female breast of an individual.
So it’s not necessary that the taking will be done in private. It
can be done here. (Example: If Judge takes a picture of a
student’s private area from her desk and then she broadcasted
it.) We’re in public and I broadcasted it. Or plunging necklines
and start broadcasting it by sending it to some. That is covered
under this law.
If there is an undergarment like briefs or panties covering the
private parts, this is still covered by the law. Based on the
definition. The gentals, pubic area, buttocks or female breast of
an individual may be naked or clad with undergarment.
Section 4. Prohibited Acts. - It is hereby prohibited and
declared unlawful for any person:
(a) To take photo or video coverage of a person or
group of persons performing sexual act or any
similar activity or to capture an image of the private
area of a person/s such as the naked or
undergarment clad genitals, public area, buttocks or
female breast without the consent of the person/s
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involved and under circumstances in which the
person/s has/have a reasonable expectation of
privacy;
(b) To copy or reproduce, or to cause to be copied or
reproduced, such photo or video or recording of
sexual act or any similar activity with or without
consideration;
(c) To sell or distribute, or cause to be sold or
distributed, such photo or video or recording of
sexual act, whether it be the original copy or
reproduction thereof; or
(d) To publish or broadcast, or cause to be published
or broadcast, whether in print or broadcast media,
or show or exhibit the photo or video coverage or
recordings of such sexual act or any similar activity
through VCD/DVD, internet, cellular phones and
other similar means or device.
The prohibition under paragraphs (b), (c) and (d) shall
apply notwithstanding that consent to record or take
photo or video coverage of the same was given by such
person/s. Any person who violates this provision shall be
liable for photo or video voyeurism as defined herein.
Take note: Consent to record or take photo/video is not an
exception.
What if the photo shows the breast of the man? The law only
covers female breasts.
Section 6. Exemption. - Nothing contained in this Act,
however, shall render it unlawful or punishable for any
peace officer, who is authorized by a written order of the
court, to use the record or any copy thereof as evidence
in any civil, criminal investigation or trial of the crime of
photo or video voyeurism: Provided, That such written
order shall only be issued or granted upon written
application and the examination under oath or
affirmation of the applicant and the witnesses he/she
may produce, and upon showing that there are
reasonable grounds to believe that photo or video
voyeurism has been committed or is about to be
committed, and that the evidence to be obtained is
essential to the conviction of any person for, or to the
solution or prevention of such, crime.
Section 7. Inadmissibility of Evidence. - Any record,
photo or video, or copy thereof, obtained or secured by
any person in violation of the preceding sections shall
not be admissible in evidence in any judicial, quasi-
judicial, legislative or administrative hearing or
investigation.
Under the exclusionary rule, it is inadmissable.
2010 Bar Exam question: A widower of ten years,
septuagenarian Canuto felt that he had license to engage in
voyeurism. If not peeping into his neighbors’ rooms through his
powerful single-cylinder telescope, he would trail young, shapely
damsels along the hallways of shopping malls. While going up
the escalator, he stayed a step behind a mini-skirted one, and in
a moment of excitement, put his hand on her left hip and
massaged it. The damsel screamed and hollered for help. Canuto
was apprehended and brought up on inquest. May he be liable
for violation of RA 9995?
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Answer: No. The acts committed by Canuto do not fall under the
definition of voyeurism nor under the prohibited acts enumerated
under Sec. 4. There was no taking of photo or video coverage of
a person performing a sexual act, etc. If at all, he committed
only Acts of Lasciviousness because obviously the element of
lewdness is present in this case.
Let’s go to Art. 202.
People vs. Evangeline Siton (Sept. 18, 2009)
This is special because this came from Davao City decided by
Judge Europa of RTC Branch 11. What happened here?
Commercial sex workers in Anda Street. Upon pressure of some
NGOs, San Pedro Policement rounded up Anda St. Among them
who were rounded up was Evangeline Siton, et al. They were
subsequently charged for violation of Art. 202 before the MTC.
The accused, through counsel, filed a Motion to Quash the
information on the ground that the information charging them
was vague and Art. 202(2) is vague. Take a look at Art. 202.
Article 202. Vagrants and prostitutes; Penalty. - The
following are vagrants:
1. Any person having no apparent means of
subsistence, who has the physical ability to work
and who neglects to apply himself or herself to some
lawful calling;
2. Any person found loitering about public or semi-
public buildings or places or trampling or wandering
about the country or the streets without visible
means of support;
3. Any idle or dissolute person who ledges in houses
of ill fame; ruffians or pimps and those who
habitually associate with prostitutes;
4. Any person who, not being included in the
provisions of other articles of this Code, shall be
found loitering in any inhabited or uninhabited place
belonging to another without any lawful or
justifiable purpose;
5. Prostitutes.
For the purposes of this article, women who, for money
or profit, habitually indulge in sexual intercourse or
lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by
this articles shall be punished by arresto menor or a fine
not exceeding 200 pesos, and in case of recidivism, by
arresto mayor in its medium period to prision
correccional in its minimum period or a fine ranging from
200 to 2,000 pesos, or both, in the discretion of the
court.
(From Previous tsn: As we have said, Article 202 paragraph 2 has
already been decriminalized when RA 10158, An Act
Decriminalizing Vagrancy, was passed into law on March 27,
2007. It declares that all cases pending in courts nationwide
should be ordered dismissed.)
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The MTC Judge at the time was Judge Romeo Albarracin. He
denied the motion to quash the information. Not contented with
the decision, Evangeline et al filed a certiorari case and the same
was raffled to RTC Branch 11. Judge Europa declared that Art.
202(2) is violative of the Constitution as being vague. On pure
questions of law, the SolGen appealed before the SC. The SC
said yes, indeed Par. 2 of Art. 202 is a violation of the
Constitutional provision on vagueness of the law.
[Note: If you read the case, the Supreme Court actually upheld
the constitutionality and validity of Art. 202(2). ¯\_(ツ)_/¯]
This became the clamor of some NGOs helping CSW. Because of
the clamor of the NGO, we have now RA 10158. Remember, this
was approved on March 27, 2012. Take a look at Sec. 1 of the
law.
[ REPUBLIC ACT NO. 10158 ]
AN ACT DECRIMINALIZING VAGRANCY, AMENDING FOR
THIS PURPOSE ARTICLE 202 OF ACT NO. 3815, AS
AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL
CODE
SECTION 1. Article 202 of the Revised Penal Code is hereby,
amended to read as follows:
“Article 202. Prostitutes; Penalty. – For the purposes of this
article, women who, for money or profit, habitually indulge in
sexual intercourse or lascivious conduct, are deemed to be
prostitutes.
“Any person found guilty of any of the offenses covered by this
article shall be punished by arresto menor or a fine not
exceeding 200 pesos, and in case of recidivism, by arresto mayor
in its medium period to prision correctional in its minimum period
or a fine ranging from 200 to 2,000 pesos, or both, in the
discretion of the court.”
SEC. 2. Effect on Pending Cases. – All pending cases under the
provisions of Article 202 of the Revised Penal Code on Vagrancy
prior to its amendment by this Act shall be dismissed upon
effectivity of this Act.
SEC. 3. Immediate Release of Convicted Persons. – All persons
serving sentence for violation of the provisions of Article 202 of
the Revised Penal Code on Vagrancy prior to its amendment by
this Act shall be immediately released upon effectivity of this
Act:Provided, That they are not serving sentence or detained for
any other offense or felony.
So Art. 202, because of the amendment, yan na lang. What is
prohibited under Art. 202 is limited to prostitution only, wala na
yung vagrancy. Sec. 2 Pending cases shall be dismissed. That is
why ka daghang disposal in MTC because of this law. So if you
will be confronted during the Bar Exam about Vagrancy,
remember March 2012, the law took effect declaring that
vagrancy is no longer a crime. So Art. 202 is limited only to
prostitution.
Let us now proceed to another special law. This is the Anti-
Trafficking in Persons Act of 2003, RA 9208.
Section 3. Definition of Terms. - As used in this Act:
(a) Trafficking in Persons - refers to the recruitment,
transportation, transfer or harboring, or receipt of
persons with or without the victim's consent or
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knowledge, within or across national borders by
means of threat or use of force, or other forms of
coercion, abduction, fraud, deception, abuse of
power or of position, taking advantage of the
vulnerability of the person, or, the giving or
receiving of payments or benefits to achieve the
consent of a person having control over another
person for the purpose of exploitation which
includes at a minimum, the exploitation or the
prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs.
The recruitment, transportation, transfer, harboring or
receipt of a child for the purpose of exploitation shall
also be considered as "trafficking in persons" even if it
does not involve any of the means set forth in the
preceding paragraph.
The best movie that we can relate to trafficking is Taken. That’s
more or less trafficking.
(b) Child - refers to a person below eighteen (18) years of age or
one who is over eighteen (18) but is unable to fully take care of
or protect himself/herself from abuse, neglect, cruelty,
exploitation, or discrimination because of a physical or mental
disability or condition.
(c) Prostitution - refers to any act, transaction, scheme
or design involving the use of a person by another, for
sexual intercourse or lascivious conduct in exchange for
money, profit or any other consideration.
(d) Forced Labor and Slavery - refer to the extraction of
work or services from any person by means of
enticement, violence, intimidation or threat, use of force
or coercion, including deprivation of freedom, abuse of
authority or moral ascendancy, debt-bondage or
deception.
(e) Sex Tourism - refers to a program organized by travel
and tourism-related establishments and individuals
which consists of tourism packages or activities, utilizing
and offering escort and sexual services as enticement for
tourists. This includes sexual services and practices
offered during rest and recreation periods for members
of the military.
(f) Sexual Exploitation - refers to participation by a
person in prostitution or the production of pornographic
materials as a result of being subjected to a threat,
deception, coercion, abduction, force, abuse of authority,
debt bondage, fraud or through abuse of a victim's
vulnerability.
(g) Debt Bondage - refers to the pledging by the debtor
of his/her personal services or labor or those of a person
under his/her control as security or payment for a debt,
when the length and nature of services is not clearly
defined or when the value of the services as reasonably
assessed is not applied toward the liquidation of the
debt.
(h) Pornography - refers to any representation, through
publication, exhibition, cinematography, indecent shows,
information technology, or by whatever means, of a person
engaged in real or simulated explicit sexual activities or any
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representation of the sexual parts of a person for primarily
sexual purposes.
Note bolded provisions in particular.
Common acts committed in violation of this law:
Section 4. Acts of Trafficking in Persons. - It shall be unlawful
for any person, natural or juridical, to commit any of the
following acts:
(a) To recruit, transport, transfer; harbor, provide, or
receive a person by any means, including those done under
the pretext of domestic or overseas employment or training
or apprenticeship, for the purpose of prostitution,
pornography, sexual exploitation, forced labor, slavery,
involuntary servitude or debt bondage;
(b) To introduce or match for money, profit, or material,
economic or other consideration, any person or, as provided
for under Republic Act No. 6955, any Filipino woman to a
foreign national, for marriage for the purpose of acquiring,
buying, offering, selling or trading him/her to engage in
prostitution, pornography, sexual exploitation, forced labor,
slavery, involuntary servitude or debt bondage;
(c) To offer or contract marriage, real or simulated, for the
purpose of acquiring, buying, offering, selling, or trading
them to engage in prostitution, pornography, sexual
exploitation, forced labor or slavery, involuntary servitude
or debt bondage;
(d) To undertake or organize tours and travel plans
consisting of tourism packages or activities for the purpose
of utilizing and offering persons for prostitution,
pornography or sexual exploitation;
(e) To maintain or hire a person to engage in prostitution or
pornography;
(f) To adopt or facilitate the adoption of persons for the
purpose of prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt
bondage;
(g) To recruit, hire, adopt, transport or abduct a person, by
means of threat or use of force, fraud, deceit, violence,
coercion, or intimidation for the purpose of removal or sale
of organs of said person; and
(h) To recruit, transport or adopt a child to engage in armed
activities in the Philippines or abroad.
One of the things in the Anti-Human Trafficking Law is that there
is an agency actively involved in this matter. We call them
IACAT.
Section 20. Inter-Agency Council Against Trafficking. - There is
hereby established an Inter-Agency Council Against Trafficking
xxx
I convicted someone for violation of the trafficking law, and you
know what happened out of the conviction? The fiscal who
prosecuted the accused for trafficking was awarded by the US
Embassy. She was awarded P20,000. What about the Judge that
convicted the accused? Wala. The US Embassy is very active in
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this. That’s the reason why Japan no longer has this japayuki (b) Executing, for a consideration, an affidavit of consent or a
style. Wala na. Kasi blacklisted sila sa international community written consent for adoption;
because of the japayuki. In another case, the trafficking
happened in Singapore. When they were already in Singapore,
(c) Recruiting a woman to bear a child for the purpose of selling
they were promised that they will have a job, but when they
the child;
reached Singapore, they were brought to a prostitution den.
There was a good samaritan, an Australian national that helped
them and brought them to the Philippine embassy in Singapore. (d) Simulating a birth for the purpose of selling the child; and
When they reached the Philippines, they filed cases of Anti-
Trafficking against the woman and the case was filed in my (e) Soliciting a child and acquiring the custody thereof through
court. The problem is, when the trial went on, the private any means from among hospitals, clinics, nurseries, daycare
complainants who were considered as victims no longer wanted centers, refugee or evacuation centers, and low-income families,
to testify. As a matter of procedure, I am supposed to issue a for the purpose of selling the child.”
warrant for their arrest. But the problem is, double whammy na
yan. Na biktima na nga imo pa gyud ipapreso. So in trafficking
One of the new provisions inserted in this law is the liability of an
cases like that, I will no longer be issuing warrant of arrests for
accomplice:
the private complainants kasi nga double whammy na.

I will give you a particular example of the application of the Anti-
Trafficking law. I will share to you a decided case in relation to
RA 9208, the Anti-Trafficking Law.
But please take note that this law has already been amended.
That is RA 10364. Expanded Human Trafficking Law of
2013. There are salient points in the expanded law, one of
which is jurisdiction. (Exception to principle of territoriality)
Sec. 4(a) Attempted Trafficking. You cannot find this in RA 9208,
the old law. This is new in RA 10364.
Republic Act No. 9208
But please take note that his law has already been amended
recently. That is RA 10364 or the Expanded Anti-Trafficking in
Persons Act of 2012. There are salient points in the expanded
law. One of which is jurisdiction. I think I gave it as part of your
handout. (Kindly Check) We now have 7 exceptions to the
principle of territoriality.
SEC. 4-A. Attempted Trafficking in Persons. – Where there
are acts to initiate the commission of a trafficking offense but the
offender failed to or did not execute all the elements of the
crime, by accident or by reason of some cause other than
voluntary desistance, such overt acts shall be deemed as an
attempt to commit an act of trafficking in persons. As such, an
attempt to commit any of the offenses enumerated in Section 4
of this Act shall constitute attempted trafficking in persons.
SEC. 4-B. Accomplice Liability. – Whoever knowingly aids,
abets, cooperates in the execution of the offense by previous or
simultaneous acts defined in this Act shall be punished in
accordance with the provisions of Section 10(c) of this Act.
Likewise, an accessory is made punishable in this new law.
SEC. 4-C. Accessories. – Whoever has the knowledge of the
commission of the crime, and without having participated
therein, either as principal or as accomplices, take part in its
commission in any of the following manners:
(a) By profiting themselves or assisting the offender to profit by
the effects of the crime;
(b) By concealing or destroying the body of the crime or effects
or instruments thereof, in order to prevent its discovery;
(c) By harboring, concealing or assisting in the escape of the
principal of the crime, provided the accessory acts with abuse of
his or her public functions or is known to be habitually guilty of
some other crime.
Acts defined in this provision shall be punished in accordance
with the provision of Section 10(d) as stated thereto.”
Another…

(c) Affidavit of Desistance. – Cases involving trafficking in

Sec 4 (a) talks of Attempted trafficking. You cannot find this in
persons should not be dismissed based on the affidavit of
the old law. This is new. Attempted trafficking is any act to
desistance executed by the victims or their parents or legal
initiate the offense but the offender failed to execute all the
guardians. X X X
elements of the crime due to accident or by reason of self-cause
other than voluntary desistance. If you are the legal guardian with that kind of situation, the
affidavit of desistance cannot be the basis of dismissal. Public
Where one act is declared unlawful in a special law, seldom can
and private prosecutors are directed to oppose and manifest
you find attempted stages. It is always in the consummated
objections to motions for dismissal.
stage. But here, in the Expanded Human Trafficking Law, it
defines an attempted stage.
[Continuation]

Sec 4-A Public and private prosecutors are directed to oppose and
manifest objections to motions for dismissal.
In cases where the victim is a child, any of the following acts
shall also be deemed as attempted trafficking in persons: Any act involving the means provided in this Act or any attempt
thereof for the purpose of securing an Affidavit of Desistance
(a) Facilitating the travel of a child who travels alone to a foreign from the complainant shall be punishable under this Act.
country or territory without valid reason therefor and without the
required clearance or permit from the Department of Social
Welfare and Development, or a written permit or justification
from the child’s parent or legal guardian;
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[Story when she was still a private practitioner, handling cases
on Human Trafficking; Japayuki; Find me a person who will tell
this – Have I violated Legal Ethics? – Lawyers are not liars]
Extra-territorial application of the Expanded Human Trafficking
Law:
SEC. 26-A. Extra-Territorial Jurisdiction. – The State shall
exercise jurisdiction over any act defined and penalized under
this Act, even if committed outside the Philippines and whether
or not such act or acts constitute an offense at the place of
commission, the crime being a continuing offense, having been
commenced in the Philippines and other elements having been
committed in another country, if the suspect or accused:
“(a) Is a Filipino citizen; or
“(b) Is a permanent resident of the Philippines; or
“(c) Has committed the act against a citizen of the Philippines.
“No prosecution may be commenced against a person under this
section if a foreign government, in accordance with jurisdiction
recognized by the Philippines, has prosecuted or is prosecuting
such person for the conduct constituting such offense, except
upon the approval of the Secretary of Justice.
“The government may surrender or extradite persons accused of
trafficking in the Philippines to the appropriate international court
if any, or to another State pursuant to the applicable extradition
laws and treaties.”
Now, I will share to you a December 3, 2014 case, the case of
PEOPLE OF THE PHILIPPINES vs. SHIRLEY A. CASIO.
What are the facts of the case?
Cebu Police composed a team to entrap persons engaged in
human trafficking. 2 policemen acted as decoys, pretending to be
tour guides looking for girls to entertain their guests. They were
provided with marked money. [Queensland naa sa Davao, naa
pud sa Cebu] These 2 policemen proceeded to Jakosalem Street,
a red-light district in Cebu. Accused noticed them and called their
attention by saying "Chicks mo dong?"
PO1 Luardo: Unya mga bag-o? Kanang batan-on kay naa mi
guests naghulat sa motel. (Are they new? They must be young
because we have guests waiting at the motel.)
Accused: Naa, hulat kay magkuha ko. (Yes, just wait and I’ll get
them.)
At that point, PO1 Luardo sent a text message to PSI Ylanan that
they found a prospective subject.
After a few minutes, accused returned with AAA and BBB, private
complainants in this case. Accused: Kining duha kauyon mo ani?
(Are you satisfied with these two?)
PO1 Veloso: Maayo man kaha na sila modala ug kayat? (Well,
are they good in sex?) Accused gave the assurance that the girls
were good in sex. PO1 Luardo inquired how much their
serviceswould cost. Accused replied, "Tag kinientos" (P500.00).16
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“When your resources are down to nothing, believe that God is up to something =)”
PO1 Veloso and PO1 Luardo convinced accused to come with
them to Queensland Motel. Upon proceeding toRoom 24, PO1
Veloso handed the marked money to accused.
As accused counted the money, PO1 Veloso gave PSI Ylanan a
missed call. This was their pre-arranged signal. The rest of the
team proceeded to Room 24, arrested accused, and informed her
of her constitutional rights. The police confiscated the marked
money from accused.18 Meanwhile, AAA and BBB "were brought
to Room 25 and placed in the custody of the representatives
from the IJM and the DSWD."19
During trial, AAA testified that she was born on January 27,
1991. This statement was supported by a copy of her certificate
of live birth.20
The ISSUE here is whether or not the accused can be convicted
of trafficking of persons considering that AAA admitted that she
is a prostitute. It was her decision to display herself to solicit
customers.
How did the Supreme Court rule on the matter? Supreme
Court speaking thru Justice Leonen:
The elements of trafficking in persons can be derived from its
definition under Section 3(a) of Republic Act No. 9208, thus:
(1) The act of "recruitment, transportation, transfer or
harbouring, or receipt of persons with or without the
victim’s consent or knowledge, within or across national
borders."
(2) The means used which include "threat or use of
force, or other forms of coercion, abduction, fraud,
deception, abuse of power or of position, taking
advantage of the vulnerability of the person, or, the
giving or receiving of payments or benefits to achieve
the consent of a person having control over another;
and
(3) The purpose of trafficking is exploitation which
includes "exploitation or the prostitution of others or
other forms of sexual exploitation, forced labor or
services, slavery, servitude or the removal or sale of
organs."
AAA and BBB were recruited by accused when their services
were peddled to the police who acted as decoys. AAA was a child
at the time that accused peddled her services. AAA also stated
that she agreed to work as a prostitute because she needed
money. Accused took advantage of AAA’s vulnerability as a child
and as one who need money, as proven by the testimonies of
the witnesses.
Accused claims that AAA admitted engaging in prostitution even
before May 2, 2008. She concludes that AAA was predisposed to
having sex with "customers" for money. For liability under our
law, this argument is irrelevant. As defined under Section 3(a) of
Republic Act No. 9208, trafficking in persons can still be
committed even if the victim gives consent.
Now, if you take a look at the old law, when you use a person
whom you know is a trafficked person. Do you have any liability?
For example, Mr. A niadto sya sa CM Recto. “Chicks ka Dong?”
“Isa lang.” And then, boarded a taxi and went to Queensland.
The man knew very well that the woman she is using is a
trafficked one. What is the liable of a man who used a trafficked
person? Under RA 9208, you will have a liability – you are
criminally liable but the penalty is community service. Maglimpio
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sa kalsada. Ah! Maglimpio ra man. But remember, you are
already convicted. I’m telling you kay basin masayop mo. Huwata
na lang ma-lawyer mo or after sa bar or sa inyong girlfriend or
partner, maybe. [Thank you kaayo sa concern, Judge]
[Story about his conversation with Atty. Montejo on the usage of
gender free words – partner in lieu of husband/wife; Cougar to a
Cub – Anak nimo na? Worse question: Lahi lagi mog nawong?!]
IRRELEVANCE OF PAST SEXUAL BEHAVIOR
SEC. 17-B. Irrelevance of Past Sexual Behavior, Opinion
Thereof or Reputation of Victims and of Consent of
Victims in Cases of Deception, Coercion and Other
Prohibited Means. – The past sexual behavior or the sexual
predisposition of a trafficked person shall be considered
inadmissible in evidence for the purpose of proving consent of
the victim to engage in sexual behavior, or to prove the
predisposition, sexual or otherwise, of a trafficked person.
Furthermore, the consent of a victim of trafficking to the
intended exploitation shall be irrelevant where any of the means
set forth in Section 3(a) of this Act has been used.”
So, had the case of Shirley Casio been decided today, the SC
may invoked Section 17-B. Only that, Shirley Casio (case) was
decided prior to the enactment of the Expanded Human
Trafficking Law.
[BREAK FOR 5 MINS]
Let’s take a look at the 2012 Bar QuestionS:
1) When the adoption of a child is effected under the
Inter-Country Adoption Act for the purpose of
prostitution, what is the proper charge against the
offender who is a public officer in relation to the
exploitative purpose?
a. acts that promote trafficking in persons;
b. trafficking in persons;
c. qualified trafficking in persons;
d. Use of trafficked person.
2) Conspiracy to commit felony is punishable only in cases
in which the law specifically provides a penalty therefor.
Under which of the following instances are the
conspirators not liable?
a. Conspiracy to commit arson.
b. Conspiracy to commit terrorism.
c. Conspiracy to commit child pornography.
d. Conspiracy to commit trafficking
persons.
This was under 2012. But if we are going to base under the new
law now, there is already a crime of conspiracy to commit
trafficking.
This is the one I am telling you kanina, for the men:
“When your resources are down to nothing, believe that God is up to something =)”
Section 11. Use of Trafficked Persons. - Any person who
buys or engages the services of trafficked persons for
prostitution shall be penalized as follows:
(a) First offense - six (6) months of community service as may be
determined by the court and a fine of Fifty thousand pesos
(P50,000.00); and
(b) Second and subsequent offenses - imprisonment of one (1)
year and a fine of One hundred thousand pesos (P100,000.00).
Who can be prosecuted under this case?
Section 8. Prosecution of Cases. - Any person who has
personal knowledge of the commission of any offense under this
Act, the trafficked person, the parents, spouse, siblings, children
or legal guardian may file a complaint for trafficking.
Where the case shall be filed?
Section 9. Venue. - A criminal action arising from violation of
this Act shall be filed where the offense was committed, or where
any of its elements occurred, or where the trafficked person
actually resides at the time of the commission of the
offense: Provided, That the court where the criminal action is
first filed shall acquire jurisdiction to the exclusion of other
courts.
How about the foreigners?
(g) If the offender is a foreigner, he shall be immediately
deported after serving his sentence and be barred permanently
from entering the country;
That ends our discussion on Crimes Against Morals. Let’s proceed
to Crimes Committed by Public Officers.
To start with, we have Article 203:
Article 203. Who are public officers. - For the purpose of
applying the provisions of this and the preceding titles of this
book, any person who, by direct provision of the law, popular
election or appointment by competent authority, shall take part
in the performance of public functions in the Government of the
Philippine Islands, of shall perform in said Government or in any
of its branches public duties as an employee, agent or
subordinate official, of any rank or class, shall be deemed to be a
public officer.
Definition of terms muna tayo.
 Malfeasance – wrongdoing or misconduct in the
performance of a public duty of public officers or the
performance of some act which ought not to be done.
 Misfeasance – the doing of a lawful act in an unlawful
manner, the improper performance of an act which may
be lawfully done.
 Nonfeasance – the omission of an act which ought to
be done.
in
What are the crimes known to be dereliction of duty?
1) Knowingly rendering unjust judgment
2) Judgment rendered through negligence
3) Unjust interlocutory order
4) Malicious delay in the administration of justice
5) Prosecution of offenses; negligence and tolerance
6) Betrayal of trust by an attorney or solicitor.
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Let us have Article 204:
Article 204. Knowingly rendering unjust judgment. - Any judge
who shall knowingly render an unjust judgment in any case
submitted to him for decision, shall be punished by prision mayor
and perpetual absolute disqualification.
This is otherwise known as PREVARICACION (?). What are the
elements?
1) Offender is a judge.
2) He renders a decision in a case submitted to him for
judgment
3) Judgment is unjust.
4) Has knowledge that the decision is unjust.
Now, the term JUDGMENT refers to the consideration and
determination of the issue presented before the court.
In a criminal proceeding, it means the adjudication by the
court that the accused is guilty or the accused is not guilty of the
offense being charged.
When do we say it’s an unjust judgment? One which is
contrary to law or it is not supported by the evidence or merit,
this we can say that the judgment is unjust.
The law requires the decision must be written in the official
language personally and prepared by the judge and signed by
him. It must contain a clear and distinct statement of facts
proved or admitted by the defendant where the judgment is
based and what is the ruling based on the facts and the law.
[Story about 1 sentence for plaintiff’s facts; 1 sentence for
defendant’s; then wherefore clause; Certiorari case before Judge;
She remanded the case for proper disposition]
Not only must the judgment rendered proved to be an unjust but
it must also be established that he knowingly rendered the same.
There must be a conscious and deliberate intent to cause an
injustice. This usually occurs when the judge entertains hatred,
envy or greed against one of the parties.
An unjust judgment may result from error based on bad faith or
ill will or revenge or bribery. There must evidence that the
decision is unjust; it cannot be presumed. To be liable for the
crime, it must not only be proved that there was an unjust
judgment it must likewise be established that it had been
knowingly rendered.
Abuse of discretion by the way or mere error of judgment cannot
likewise serve as basis for rendering an unjust judgment in the
absence of proof or even in the allegation of bad faith.
In one case, Dela Cruz v Concepcion, Supreme Court ruled:
A Judge cannot be held to account or answer, criminally, civilly,
or administratively, for an erroneous decision rendered by him in
good faith.
XXX
Mere errors in the appreciation of such evidence, unless so gross
and patent as to produce an inference of ignorance or bad faith,
or that the judge knowingly rendered an unjust decision, are
irrelevant and immaterial in an administrative proceeding against
him. No one, called upon to try facts or interpret the law in the
process of administering justice, can be infallible in his judgment.
All that is expected of him is that he follow the rules prescribed
to ensure a fair and impartial hearing, assess the different factors
that emerge therefrom and bear on the issues presented, and on
the basis of the conclusions he finds established, with only his
conscience and knowledge of the law to guide him, adjudicate
the case accordingly.
119
“When your resources are down to nothing, believe that God is up to something =)”
In one case (I think Judge is referring to Padilla v Dizon;
similar facts), a judge was dismissed from service for committing
or rendering an unjust judgment. In a case involving a foreigner
found in possession of $355,000.00 while inside NAIA. Under
Central Bank Circular 960, possession of such amount without
the authority of the Central Bank is considered a criminal act.
Now since the foreigner had no authority to possess such
amount of dollars, he was charged for violation of Circular 960 in
relation to the General Banking Law. The accused did not deny
his possession of foreign currency but put up the defense that
said money was merely the remaining balance of the money he
brought to the Philippines. This line of defense was considered
by the Judge hence the accused was acquitted. The decision
stated that intent to violate the law must be shown. Supreme
Court ruled:
The respondent-judge has shown gross incompetence or gross
ignorance of the law in holding that to convict the accused for
violation of Central Bank Circular No. 960, the prosecution must
establish that the accused had the criminal intent to violate the
law. The respondent ought to know that proof of malice or
deliberate intent (mens rea) is not essential in offenses punished
by special laws, which are mala prohibita. X X X
He not only acquitted the accused Lo Chi Fai, but directed in his
decision the release to the accused of at least the amount of
US$3,000.00, allowed, according to respondent, under Central
Bank Circular No. 960. X X X There is nothing in said circular that
would justify returning to him the amount of at least
US$3,000.00, if he is caught attempting to bring out foreign
exchange in excess of said amount without specific authority
from the Central Bank.
Accordingly, the Court finds the respondent Regional Trial Court
Judge, Baltazar R. Dizon, guilty of gross incompetence, gross
ignorance of the law and grave and serious misconduct affecting
his integrity and efficiency, and consistent with the responsibility
of this Court for the just and proper administration of justice and
for the attainment of the objective of maintaining the people's
faith in the judiciary (People vs. Valenzuela, 135 SCRA 712), it is
hereby ordered that the Respondent Judge be DISMISSED from
the service. All leave and retirement benefits and privileges to
which he may be entitled are hereby forfeited with prejudice to
his being reinstated in any branch of government service,
including government-owned and/or controlled agencies or
corporations.
Art. 205. Judgment rendered through negligence . — Any
judge who, by reason of inexcusable negligence or ignorance
shall render a manifestly unjust judgment in any case submitted
to him for decision shall be punished by arresto mayor and
temporary special disqualification.
The leading case under this article is the case of Cortes vs. Catral
279 SCRA 1. Here the Supreme Court said that the unjust
judgment is merely the result of inexcusable negligence or
ignorance of the law. The ignorance here may refer to
substantive or procedural law. There must be an apparent and
notorious manifestation of lack of logic and false interpretation of
the law.
Article 206. Unjust interlocutory order. - Any judge who
shall knowingly render an unjust interlocutory order or decree
shall suffer the penalty of arresto mayor in its minimum period
and suspension; but if he shall have acted by reason of
inexcusable negligence or ignorance and the interlocutory order
or decree be manifestly unjust, the penalty shall be suspension.
An interlocutory order is one that is issued when the case is still
pending for final determination. It refers to issues that need to
be resolved before judgment is rendered. It is a ruling not on the
merits of the case but on a collateral issue. Example: In a civil
case where you ask for the issuance temporary restraining order
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and the court issues a TRO. That is an interlocutory order. It
does not decide the case but it merely tackles on a more
pressing issue. Another example: The issuance for a preliminary
attachment in a petition for the declaration of nullity of marriage
for psychological incapacity. In the petition you ask for support,
you know that kind of order of the court dealing on support
pendente lete is considered as interlocutory because the order
can never be final. It changes depending on the age of the
children as well as inflation and the like. Now, the one that gives
an end the litigation is what we call a final decision. When the
order does not dispose the case completely but leads something
to be done. That is what we call as interlocutory.
Article 207. Malicious delay in the administration of
justice. - The penalty of prision correccional in its minimum
period shall be imposed upon any judge guilty of malicious delay
in the administration of justice.
Under article 207, the offender again is a judge. There is delay in
the administration of justice when the delay is maliciously
intended. Hence mere delay without malice does not make the
judge criminally liable. Judges have a time limit in deciding cases.
For example a case is submitted for decision, the judge has only
90 days to resolve. If it goes beyond the 90 days and reaches
300 days, wala pa g-desisyonan. Something is wrong with that.
Unless he asks for an extension, judges are allowed to ask for
extensions. Judga A tells a story about an unlawful detainer case
which has been pending for already 10 years.
Article 208. Prosecution of offenses; negligence and
tolerance. - The penalty of prision correccional in its minimum
period and suspension shall be imposed upon any public officer,
or officer of the law, who, in dereliction of the duties of his office,
shall maliciously refrain from instituting prosecution for the
punishment of violators of the law, or shall tolerate the
commission of offenses.
Under article 208, there are two ways of violating the law.
1) One is maliciously refraining from instituting prosecution
against the offender and second by maliciously
tolerating the commission of the offense.
In the strict sense of the word, the article also refers to the
prosecution department or the fiscals whose duty is to institute
criminal actions for offenses made known to them or committed
in their presence.
In particular the article also applies to prosecutors, members of
the PNP, the NBI and the barangay captains. So for example the
barangay captain would tolerate illegal activities like gambling he
is then liable under article 208.
You know fiscals are those people in charged in the filing of
criminal cases. All criminal cases must pass through their office.
Sila ang tig-sala sa mga cases. Supposing, A files a case before
the prosecution’s office against B. The fiscal doesn’t want to file
it. Question: Can he compel the fiscal or the prosecutor to
file the information? Answer is NO. They are under no
compulsion when they are not convinced that the evidence
presented would warrant an action in court. They enjoy wide
latitude of discretion so they should be given that discretion to
prevent the courts from being flooded with cases of doubtful
merit.
But when there is really a prima facie evidence and the fiscal or
the prosecutor deliberately does not file the case then he
becomes liable under article 208. Judge A tells another story.
[Story about Lawyers na magkaon ug drugs para matago ang
ebidensya; Judge magkaon ug dokumento atong private
practitioner pa sya; if tiguwang ang other lawyer, hinayon niya
iyang tingog during cross-examination. Para dili ka-object;
Makabalo daw ang police if good mood si Judge if naka-
headband sya or makeup]
120
“When your resources are down to nothing, believe that God is up to something =)”
When a policeman tolerates the commission of the crime or
otherwise, refrains from apprehending the offender so that such
person cannot be prosecuted for his crime, he may be
prosecuted as accessory to the crime committed by the person
under Article 19(3).
When the crime is robbery of theft, he will be liable for violating
the Anti-Graft and Corrupt practices act.
Further, in place where there are no fiscal or attorneys, the Chief
of Police is the prosecuting officer. If he xxx allows the offenders
to escape, then he can be prosecuted under Article 208.
This is also true in case of a barangay chairman. They are
supposed to punish violators of law within their jurisdiction. If
they do not do so, then they can be prosecuted under Article
208.
Art. 209. Betrayal of trust by an attorney or solicitor. —
Revelation of secrets. — In addition to the proper
administrative action, the penalty of prision correccional in its
minimum period, or a fine ranging from 200 to 1,000 pesos, or
both, shall be imposed upon any attorney-at-law or solicitor
( procurador judicial) who, by any malicious breach of
professional duty or of inexcusable negligence or ignorance, shall
prejudice his client, or reveal any of the secrets of the latter
learned by him in his professional capacity.
The same penalty shall be imposed upon an attorney-at-law or
solicitor (procurador judicial) who, having undertaken the
defense of a client or having received confidential information
from said client in a case, shall undertake the defense of the
opposing party in the same case, without the consent of his first
client.
What are the acts punishable here?
1) Causing prejudice to his client by any malicious breach
of professional duty or of inexcusable negligence or
ignorance
2) By revealing any of the secrets of the client learned by
him in his professional capacity
3) Undertaken the defense of a client or having received
confidential information from said client in a case, shall
undertake the defense of the opposing party in the
same case, without the consent of his first client.
The relationship between a lawyer and his client is one of
confidence. Are you at liberty to divulge confidential
information about the client? No, you will be liable under this
article. The information given by the client to his lawyer is a
privileged communication. It is impressed with public interest.
And to preserve the sanctity of the institution, a lawyer is made
liable for the violation of such confidence.
A lawyer to whom the case is referred for legal action is
forbidden or precluded from handling the defense of the adverse
party even in a situation where a lawyer has resigned as counsel.
To give force and effect and to preserve the confidentiality of the
information given, a lawyer is made criminally liable not only for
revealing the secret of his client but also in handling the case of
the opposing party.
Under the Rules of Evidence:
Section 24. Disqualification by reason of privileged
communication.
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(b) An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him, or
his advice given thereon in the course of, or with a view to,
professional employment, nor can an attorney's secretary,
stenographer, or clerk be examined, without the consent of the
client and his employer, concerning any fact the knowledge of
which has been acquired in such capacity;
Communications made by a client to his lawyer is covered by the
protective mantle of privileged communication. The lawyer and
the secretary cannot be examined in the matter. This applies
even after xxx If the lawyer reveals such communication, he
violates the nature of confidential information obtained in his
professional capacity. However, there must be malicious breach
of professional duty on the part of the lawyer.
Let’s have a situation:
X and Y are protagonists. X filed a case of revocation of contract
with damages against X. X engaged the legal services of Atty.
Manzano. During the interview, X confided with his lawyer such
confidential information. In malicious breach of his duty, Atty.
Manzano revealed to the relatives of Y the confidential
information he learned from X causing undue prejudice to the
case filed by the latter. So the lawyer is liable for revelation of
secrets xxx (BELL RINGS)
A lawyer who had already accepted to handle the cause of the
client cannot later on switch side and render defense for the
opposing party in the same case. [Story about 2 lady lawyers
coming from the same institution now facing disbarment cases
because of this] The only way you can handle the case of the
adverse party is if he does it with the consent of his first client.
Betrayal of trust by an attorney, communications between a
lawyer and client about a client future criminal acts are not
privileged. [Cites example about person planning to kill Mayor
and Vice Mayor; not privileged]
Art. 210. Direct bribery. — Any public officer who shall agree
to perform an act constituting a crime, in connection with the
performance of this official duties, in consideration of any offer,
promise, gift or present received by such officer, personally or
through the mediation of another, shall suffer the penalty of
prision mayor in its medium and maximum periods and a fine [of
not less than the value of the gift and] not less than three times
the value of the gift in addition to the penalty corresponding to
the crime agreed upon, if the same shall have been committed.
If the gift was accepted by the officer in consideration of the
execution of an act which does not constitute a crime, and the
officer executed said act, he shall suffer the same penalty
provided in the preceding paragraph; and if said act shall not
have been accomplished, the officer shall suffer the penalties of
prision correccional, in its medium period and a fine of not less
than twice the value of such gift.
If the object for which the gift was received or promised was to
make the public officer refrain from doing something which it
was his official duty to do, he shall suffer the penalties of prision
correccional in its maximum period and a fine [of not less than
the value of the gift and] not less than three times the value of
such gift.
In addition to the penalties provided in the preceding
paragraphs, the culprit shall suffer the penalty of special
temporary disqualification.
The provisions contained in the preceding paragraphs shall be
made applicable to assessors, arbitrators, appraisal and claim
commissioners, experts or any other persons performing public
duties. (As amended by Batas Pambansa Blg. 872, June 10,
1985).
There are 3 forms of bribery:
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1) Direct Bribery
2) Indirect Bribery
3) Qualified Bribery
Alright, there are three acts being punished here.
1) By agreeing to perform, or by performing, in
consideration of any offer, promise, gift or present – an
act constituting a crime, in connection with the
performance of his official duties.
2) By accepting a gift in consideration of the execution of
an act which does not constitute a crime, in connection
with the performance of his official duty.
3) By agreeing to refrain, or by refraining, from doing
something which it is his official duty to do, in
consideration of gift or promise.
There are 2 essential elements that are required:
1) He received by himself or thru another, gift or present,
offer or promise
2) Such gift have been given in consideration of his
commission of a crime or any act not constituting a
crime and the crime or by reason of the functions of
public officer
It is a common notion that when you talk of bribery, you refer to
the one corrupting the public officer. That is wrong. Bribery
refers to the act of the receiver and the act of giver is corruption
of public official (212).
1) Acts which amount to a crime
2) Those which do not amount to a crime
3) Commission of an act incumbent upon public officer
We will learn the distinction between Direct Bribery and Indirect
Bribery.
Let’s go to an example:
Under 210, the mere agreement to commit an act which is a
crime is already bribery.
A court stenographer accepted a promise of P1000 from X in
consideration of which she will alter the notes taken by her
during the trial of the case. What kind of an act is that? So if a
stenographer agrees to alter the notes? What is the crime? She is
liable for falsification. The crime committed is falsification. What
if the stenographer to alter the notes after receiving the bribe
money did not alter the notes? Na-isahan ba noh? What crime
did she commit?
Answer: The crime she committed is direct bribery. Why? What
the law requires is that the public officer agrees to commit an
act. Mere agreement is already enough to constitute the crime of
direct bribery. Is it necessary that she does the act after
payment? NO. The crime of direct bribery is already
consummated the moment the public officer agrees.
Another problem: A agreed to alter the stenographic notes in
consideration of 1000 pesos from B. The stenographer altered it
but did not receive the 1000. Question: What crime did A
commit?
Answer: Direct bribery. It is not necessary that A would actually
receive the 1000 because by agreeing to commit the crime in
consideration of an offer is already enough.
Now, what if there is double crossing? Both of them double
crossed each other. A agrees in consideration of 1000 to alter the
record but in her mind she has no intention of making good of
her promise. On the other hand B has also no intention of
paying. What crime is committed here? Bribery again. It is even
in the consummated stage.
Now, in all the examples that we gave, it’s the private individual
who made the offer. What if it is the stenographer who made the
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offer? Is the stenographer liable for direct bribery? Answer: YES.
The phrase any public officer who shall agree to perform an act
does not imply that na ang public officer or employee lang ang
pwede mgcommit the law applies even if it is the employee who
proposes it.
September 22, 2015
Article 210. Direct bribery. — Any public officer who shall agree
to perform an act constituting a crime, in connection with the
performance of this official duties, in consideration of any offer,
promise, gift or present received by such officer, personally or
through the mediation of another, shall suffer the penalty of
prision mayor in its medium and maximum periods and a fine [of
not less than the value of the gift and] not less than three times
the value of the gift in addition to the penalty corresponding to
the crime agreed upon, if the same shall have been committed.
If the gift was accepted by the officer in consideration of the
execution of an act which does not constitute a crime, and the
officer executed said act, he shall suffer the same penalty
provided in the preceding paragraph; and if said act shall not
have been accomplished, the officer shall suffer the penalties of
prision correccional, in its medium period and a fine of not less
than twice the value of such gift.
If the object for which the gift was received or promised was to
make the public officer refrain from doing something which it
was his official duty to do, he shall suffer the penalties of prision
correccional in its maximum period and a fine [of not less than
the value of the gift and] not less than three times the value of
such gift.
In addition to the penalties provided in the preceding
paragraphs, the culprit shall suffer the penalty of special
temporary disqualification.
The provisions contained in the preceding paragraphs shall be
made applicable to assessors, arbitrators, appraisal and claim
commissioners, experts or any other persons performing public
duties. (As amended by Batas Pambansa Blg. 872, June 10,
1985).
There are 3 forms of bribery:
1. direct bribery
2. indirect bribery
3. qualified bribery
We also mentioned 3 acts that are punished by Article 210:
One, by agreeing to perform, or by performing, in consideration
of any offer, promise, gift or present – an act constituting a
crime, in connection with the performance of his official duties.
Two, by accepting a gift in consideration of the execution of an
act which does not constitute a crime, in connection with the
performance of his official duty.
Three, by agreeing to refrain, or by refraining, from doing
something which it is his official duty to do, in consideration of
gift or promise.
The crime is already consummated the moment the public officer
agrees to perform the act even if he did not actually perform it.
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What are the common distinctions between direct bribery and
indirect bribery?
1. We have said that in direct bribery, the public officer must do
something in consideration of the gift.
In indirect, there is no such agreement.
2. Mere agreement consummates the crime of direct bribery if
what is agreed upon amounts to a crime, while in indirect
bribery, the public officer must accept the gift to consummate
the crime.
Remember that that second act of committing the crime of direct
bribery is that by accepting the gift. Meaning, the public officer
agrees to do something which does not constitute a crime. Even
if what he will do will not amount to a crime but if he agrees to
do it that will already consummate the crime of direct bribery.
Remember also, that a gift is accepted in the second way of
committing direct bribery unlike in the first where it is
unnecessary.
Under the 3rd act, “by agreeing to refrain, or by refraining, from
doing something which it is his official duty to do, in
consideration of gift or promise.”,
our example will always be:
A is a city health officer. One of her functions is to conduct
sanitation inspections in restaurants. If in consideration of a price
or reward, A did not inspect the restaurant. The crime of direct
bribery is committed.
The question is, can a private individual be liable under Art. 210?
Answer should be: it depends. The general rule, No. A private
individual may not be liable. Except in the last paragraph of
Article 210.
We have said that accepting the gift given by reason of his public
function. The crime committed is indirect bribery. So if you are a
Regional Director and someone gives you and you accept one
container of apple even before Christmas, ngano matagaan diay
kag apple kung dili ka taga bureau of customs?
Bear in mind that the gift is given BY REASON OF HIS OFFICE,
not in consideration thereof. Indirect bribery exists even if you
agree to perform or not at all. By the fact that you are given
something and you receive it by reason of your office, the crime
of indirect bribery is committed. Note however that one may
begin as an INDIRECT bribery may actually ripen into DIRECT
bribery.
I remember one time when I was in the DAR. It was one of the
members of the task force investigating a property because there
were allegations of illegal conversions. One must apply for
conversion before it can be converted. The person gave so many
jackets distributed us. I remember that I did not receive the
package given to us because if I will, I will be committing the
crime of indirect bribery.
Art. 211. Indirect bribery. — The penalties of prision
correccional in its medium and maximum periods, and
public censure shall be imposed upon any public officer
who shall accept gifts offered to him by reason of his
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office. (As amended by Batas Pambansa Blg. 872, June
10, 1985).
Art. 211-A. Qualified Bribery. – If any public officer is
entrusted with law enforcement and he refrains from
arresting or prosecuting an offender who has committed
a crime punishable by reclusion perpetua and/or death in
consideration of any offer, promise, gift or present, he
shall suffer the penalty for the offense which was not
prosecuted.
If it is the public who asks or demands such gift or
present, he shall suffer the penalty of death. (As added
by Section 4, RA No. 7659.)
Art. 212. Corruption of public officials. — The same
penalties imposed upon the officer corrupted, except
those of disqualification and suspension, shall be
imposed upon any person who shall have made the offers
or promises or given the gifts or presents as described in
the preceding articles.
Indirect bribery: consider whether the public official who agreed
to do the act is a crime or not. If it will amount to a crime, is not
necessary that the corruptors will deliver the consideration for
the doing of the act. The moment there is the meeting of the
minds, even without the delivery of the consideration nor the
public officer performing the act amounting to a crime, bribery is
already committed on the part of the public officer. Corruption is
already committed on the part of the supposed giver. The reason
is that, the agreement to the conspiracy involving the duty of the
public officer, the mere agreement is already a felony. The public
officer is liable for direct bribery. The one who offered is liable
for corruption of public official, under Art 212.
If the corruptor offers a consideration to a custodian of a public
record to remove certain files?
The mere agreement without delivery of the consideration brings
about the crime of direct bribery and corruption of public officials
on the part of the private individual.
If the documents were actually removed, both the public officer
and the corruptor, in addition to the mentioned above, will also
be liable for the crime of INFIDELITY OF PUBLIC RECORDS, for
which they shall be liable as principals. One by inducement. The
other by direct participation.
Problem: A party litigant approached the court stenographer and
proposed the idea of altering the stenographic transcript. The
stenographer agreed and demanded P5,000. Unknown to them,
there were law enforcers who were already given a tip that he
was doing this before. So they were waiting for the chance to
entrap him. So they were apprehended and they said that they
have not done anything yet. Under Art. 210, the mere agreement
to commit an act which amounts to a crime is already Bribery.
The stenographer becomes liable already for a consummated
crime of bribery. And the party who agreed to give the money is
liable for consummated corruption, even though not a single
centavo is delivered yet and even though the stenographer has
not made the act.
Cases of bribery would sometimes come with an entrapment
procedure conducted by the CIDG or NBI.
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If you change the transcript, another crime is committed. What
crime? Art 171. Falsification.
Direct bribery may be committed only in the attempted and
consummated stages because in a frustrated felony, the offender
must have performed all the acts of execution which would
produce the felony as a consequence. In direct bribery, it is
possible only if the corruptor concurs with the offender. Once
there is concurrence, the direct bribery is already consummated.
In short, the offender could not have performed all the acts of
execution to produce the felony without consummating the
same. Thus, only attempted and consummated.
There is no frustrated corruption and frustrated bribery because
these crimes involve concurrence of the will of the corruptors and
the public officer. Hence, once they will concur, the crime is
consummated. If the public officer refuses to be corrupted, then
the crime is Attempted Corruption of Public Officer.
You cannot be a giver unless there is one who is willing to
receive. And there cannot be a receiver unless there is one who
is willing to give.
So this crime requires 2 persons to commit. There has to be a
meeting of the minds.
If the public official accepts the corrupt consideration and turns it
over to the superior as evidence of the corruption. The offense is
attempted corruption only. Why? Because the official did not
agree to be corrupted.
If the public officer did not report and actually accepted the gift,
he allowed himself to be corrupted. The corruptor becomes
liable for the consummated crime of corrupting public official and
the official also becomes liable for consummated bribery.
Kwento about pansit and barang and mahiwagang bato from
Siquijor :P
If a public official demanded something from the taxpayer who
pretended to agree and used marked money with the knowledge
of the police. The crime of the public official is Attempted
Bribery. The reason is that the giver has no intention to corrupt
him and therefore he could not perform all the acts of execution.
So he cannot be liable under Art 212.
Be sure that what is involved is a crime of bribery and not
extortion. If it were extortion the crime is not bribery but
Robbery. Robbery should be distinguished from bribery where
the law enforcer, say a policeman, extorts money from a person,
employing intimidation and threatening to arrest the latter if he
did will come across with money be guilty for the crime of
robbery.
“Buhian taka basta muhatag ka 200k.” - That it not bribery but
Robbery under paragraph 5 of Article 295.
If the victim actually committed a crime, and the policeman
demanded money so he will not be arrested, that would be
Bribery.
If no crime has been committed but the policeman is falsely
charging him for having committed one, or threatening to arrest
him, then the crime would be robbery.
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What are the elements of the crime:
1. the offender is a public official
2. he accepts gifts
3. the gifts are offered by reason of his office
Take note that the public officer receives gifts, money or
anything of value by reason of his office.
If there is only a promise of the gift or money, no crime is
committed because the language of the law which uses the
phrase “shall accept gifts.” The gift is given in anticipation of
future favor from the public officer.
In indirect bribery, the public officer receives or accepts gifts.
The public official does not undertake to perform an act or
abstain from doing an official duty from what he received.
Instead, the official simply receives or accepts gifts or presents
delivered to him, with no other reason, except his office or public
position. This is always committed in the consummated stage.
There is no attempted much less frustrated in the crime of
Indirect Bribery. It is always committed in the consummated
stage.
Remember that there must always be clear intention on the part
of the public officer to take the gift or bribe or consider the
property as his own at that moment. Mere physical receipt
unaccompanied by any sign, circumstance, or act to show such
acceptance is not sufficient to convict the officer for the crime of
indirect bribery,
The SC has already made the rule that for indirect bribery to be
committed, the public officer must have performed an act of
appropriating the gift for himself, his family or employees. It is
the act of appropriating the signifies acceptance. If you do not
accept, you do not commit indirect bribery.
Mere delivery of the gift to public officer does not bring about the
crime otherwise it would be very easy to remove a public officer.
How? Just deliver a gift to him. Lisod pod. Matanggal ming tanan
 there must be acceptance. There must be clear intention on
the part of the public off to accept the gift.
Eg. Chief of Police bought a 4M worth of SUV for only 1.5M.
What is the crime committed by CP? Indirect bribery, the RPC
defines indirect bribery as a public officer’s acceptance of gifts
offered to him by reason of his office.
Article 212. Corruption of public official.
In this article is the giver who is punished. The receiver is liable
for the crime of bribery. This provision of law may be confused
with Art 17 – one who induces another to commit the felony is a
principal by inducement while the one induced is the criminally
liable as principal by direct participation.
This principle is not applicable when there is a specific provision
of law that punishes a specific act. We only apply the general
principles in the absence of the specific provision of law for a
particular situation. Public officers receiving gifts and private
officers giving gifts for any occasion including Christmas are
liable not only under Article 211 but also under PD 46.
What is this PD 46? This presidential decree prohibits giving and
acceptance of gifts by any public officer or to an officer even
during anniversaries or any gift giving occasions. Both the giver
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and the receiver are liable under this law. The prohibition is for
past or future favors. The giving of parties by reason of a
promotion of a public official is also punishable even if it calls for
a celebration. Take note also that the giving of a party is not only
limited to the public officer but also to any member of his family.
It is punishable for any public official or employee, whether of
the national or local governments, to receive, directly or
indirectly, and for private persons to give, or offer to give, any
gift, present or other valuable thing to any occasion, including
Christmas, when such gift, present or other valuable thing is
given by reason of his official position, regardless of whether or
not the same is for past favor or favors or the giver hopes or
expects to receive a favor or better treatment in the future from
the public official or employee concerned in the discharge of his
official functions.
Included within the prohibition is the throwing of parties or
entertainments in honor of the official or employees or his
immediate relatives.
The throwing of a party is not limited to the officers only but also
to the members of this family.
Another law, Presidential Decree No. 749. The decree grants
immunity from prosecution to a private person or a public officer
who shall voluntarily give information and testify in a case of
bribery or any violations of the Anti-Graft and Corrupt Practices
Act. This law provides immunity to the bribe giver if he does two
things. What are these?
1. He voluntarily discloses the transaction he had with the public
officer constituting direct or indirect bribery or any other corrupt
transaction.
2. He must readily testify against the public officer involved in
the case.
Before the bribe giver may be dropped from the information he
has to be charged first with the receiver. Before trial the
prosecutor will move for the dropping of the bribe giver from the
information and be granted immunity.
But first there are 5 conditions to be met:
1. The information must refer to consummated violations of any
of the above-mentioned provisions of law, rules and regulations;
2. The information and testimony are necessary for the
conviction of the accused public officer;
3. Such information and testimony are not yet in the possession
of the State;
4. Such information and testimony can be corroborated on its
material points; and
5. The informant or witness has not been previously convicted of
a crime involving moral turpitude.
Article 211-A qualified bribery. Take a look at the elements of the
crime.
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RA 7080. The law on plunder. This has been asked several times
in the bar: what is Plunder?
Plunder is a crime penalized under RA 7080 which became
effective in 1991. This crime somehow modified certain crimes in
the RPC in so far as overt acts by which the public officers
amasses ill-gotten wealth which are considered as crimes under
the RPC like bribery, indirect bribery, fraud against the treasury,
frauds, malversation. When the ill gotten wealth amounts to total
value of (before 75M) 50M.
If 49M, small time! Di na plunder. Maybe malversation lang yan.
But if it reaches the amount of 50 M, plunder. Short of the
amount, it is only a violation of the RPC or of Anti-Graft and
Corrupt Practices Act.
What is the prescriptive period of plunder? 20 years from last
overt act.
How is the crime of plunder committed?
Combination or series of overt acts by:
1. Through misappropriation, conversion, misuse or malversation
of public funds or raids on the public treasury;
2. By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any/or entity in connection with any
government contract or project or by reason of the office or
position of the public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of assets
belonging to the National government or any of its subdivisions,
agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
5. By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
6. By taking undue advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of
the Filipino people and the Republic of the Philippines.
We ask the question. Is the crime under 7080 a malum
prohibitum or a mala in se?
You know, RA 7080 appears to be malum prohibitum. Although it
may appear as malum prohibitum however it is a different kind of
malum prohibitum because the law says, and I quote,
“in the imposition of penalties the degree of participation and the
attendance of the aggravating and mitigating circumstances shall
be considered by the court.”
So it borrows some of the principles of the RPC. It will make
applicable the mitigating and aggravating circumstances
enumerated in the RPC. Although it is a malum prohibitum but
somehow it is a mixture of malum prohibitum and mala in se
because the law provides that the imposition of penalties
depends on the degree of participation and the attending
circumstances under the RPC.
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What is our basis? Estrada Vs. Sandiganbayan 2001. Another
case is Estrada Vs. Sandiganbayan Feb 26, 2002. And the case of
Serapio Vs. Sandiganbayan decided on Jan 28, 2003. The Wellex
Group Inc., Vs. Sandiganbayan. June 25, 2012.
Section 3. Jurisdiction belongs to SB. All prosecution belongs to
SB, unless otherwise provided by law.
Section 6. Prescriptive period. 20 years
Asked in the 2011 bar exams: which of the following crimes is an
exception to the territoriality Rule in Criminal Law?
D. Plunder – committed by a public officer abroad
Is it a Mala In se or Mala prohibita? It is a Mala in se which
requires proof of criminal intent.
This is the ruling of the court in Estrada vs. SB : it is Mala in se.
the elements of Mens Rea must be proven in a prosecution for
plunder. It is noteworthy that the information alleges the crime
of plunder which was committed unlawfully, willfully and
criminally.
The principle of mitigating and aggravating circumstances will
apply in the crime of plunder.
Facts: former President Estrada was charged with plunder.
According to the information, he acquired 4Billion. He however
challenged the constitutionality of the Plunder Act.
First, that it is void for being vague in its usage of the following
words “series, combination, and pattern.”
Second, the law is vague for being overbreadth
Third, RA 7080 dispenses with the reasonable standards thereby
violating the right to due process.
Issue: WON RA 7080 is unconstitutional.
Ruling: Upheld the Constitutionality.
These are the acts punishable under RA 7080: (did not mention)
Check Section 2:
“The court shall declare any and all ill-gotten wealth and their
interests and other incomes and assets including the properties
and shares of stock derived from the deposit or investment
thereof forfeited in favor of the State.”
Under the AMLA, plunder is one of those in violation of the
AMLA.
Case: Estrada vs. SB, 2012
“Forfeiture in a criminal case is considered in personam, similar
to a money judgment that runs against a defendant until it is
fully satisfied.36 This criminal forfeiture is considered part of the
criminal proceedings against the defendant, rather than a
separate proceeding against the property itself. 37 The scope of
criminal forfeiture by the government includes any property, real
or personal, involved in the crime or traceable to the property.
The term "involved in" has consistently been interpreted broadly
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by courts to include any property involved in, used to commit, or
used to facilitate the crime.38
Petitioner’s interpretation of Section 2 of R.A. 7080 is narrow and
rigid and defeats rather than serves the ends of justice in
plunder cases. Section 2 of R.A. 7080 mandates the court to
forfeit not only the ill-gotten wealth, interests earned, and other
incomes and assets, but also the properties and shares of stock
derived from the deposit or investment. The Sandiganbayan
Decision imposed the penalty of forfeiture when it convicted the
former President Estrada of the crime of plunder. It is beyond
cavil that it found the subject IMA Trust Account traceable to the
accounts declared to be ill-gotten by the former President. Thus,
to rigidly construe the mandate of Section 2 of R.A. 7080, as
petitioner would want us to do, is to render the Plunder Law
inutile.
The provision of Section 2 must be interpreted in its entirety and
cannot be confined to words and phrases which are taken out of
context. The trunk of the tree of forfeiture under Section 2 is ill-
gotten wealth and the branches of the ill-gotten wealth are the
interests, incomes, assets, properties and shares of stocks
derived from or traceable to the deposit or investment of such ill-
gotten wealth.
Interpreted otherwise, what should be forfeited are assets in
whatever form that are derived or can be traced to the ill-gotten
wealth as defined under sub-pars. 1-6, par. (d), Section 1 of the
Plunder Law. Should Assets (sic) not derived, nor traceable to
the ill-gotten wealth be forfeited in favor of the State, such
would result in deprivation of property without due process of
law.
Not only does the Plunder Law authorize the forfeiture of the ill-
gotten wealth as well as any asset acquired with the use of the
ill-gotten wealth, Section 6 likewise authorizes the forfeiture of
these ill-gotten wealth and any assets acquired therefrom even if
they are in the possession of other persons.
RA 3019. Anti Graft and Corrupt Practices Act.
Who may be liable?
The law punishes not only public officers but also who induce the
public official to commit the offeses in Section 3. Meaning, a
private official can also be liable. This is the Ruling of the SC in
the case of ___ vs PP, March 3 2010.
What does the term “receiving any gift” include? Section 2:
"Receiving any gift" includes the act of accepting directly or
indirectly a gift from a person other than a member of the public
officer's immediate family, in behalf of himself or of any member
of his family or relative within the fourth civil degree, either by
consanguinity or affinity, even on the occasion of a family
celebration or national festivity like Christmas, if the value of the
gift is under the circumstances manifestly excessive.
For example: Christmas. You receive a diamond ring from a
lawyer. You are courting trouble there. Manifestly excessive.
Take note that under Section 8, the law gives a prima facie
evidence:
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Section 8. Dismissal due to unexplained wealth. If a
public official has been found to have acquired during his
incumbency, whether in his name or in the name of other
persons, an amount of property and/or money manifestly out of
proportion to his salary and to his other lawful income…
Such is a prima facie evidence of violation of the RA 3019. If you
are only a clerk, but you are living in Royal Pines and with plenty
of Jaguars, there is a prima facie evidence.
Properties in the name of the spouse and unmarried children of
such public official may be taken into consideration, when their
acquisition through legitimate means cannot be satisfactorily
shown. Bank deposits shall be taken into consideration in the
enforcement of this section, notwithstanding any provision of law
to the contrary.
Bank deposits, ostentations displays, travels abroad, manifestly
excessive shall be taken into account.
Now, remember when you are charged for violation of RA 3019,
you can be facing what we call preventive suspension. What is
the reason why we have to preventively suspend you? You know
preventive suspension is resorted to in order to prevent the
accused from using his office to intimidate witnesses or frustrate
his prosecution or continue committing malfeasance in office
because the presumption is that, unless the accused is
suspended, he may frustrate his prosecution or commit further
acts of malfeasance or both. There is a possibility that you will
whitewash or destroy all the documentary evidences to be used
against you. That’s the reason.
What is the duration of the preventive suspension? In the case of
Bayot vs Sandiganbayan, et.al, the SC held that once the
information is found to be sufficient in form and in substance,
the court must issue the suspension order as a matter of course.
Trial court or the Sandiganbayan, depending on your salary
grade, must suspend the respondent. That is the procedure.
Under section 13 of RA 3019, the law is silent as to how long the
accused public officer is supposed to be held under suspension.
There were so many decisions of the SC na pa flip flop flip flop.
First is 90 days, then 60 days, then 60 days 90 days until the SC
settled once and for all that the period of suspension should not
be more than 90 days. That’s the ruling of the Court in the case
of Segovia vs Sandiganbayan. So, the period is 90 days.
2010 bar exam: May a public officer charged under section 3(b)
of RA 3019 (directly or indirectly requesting or receiving any gift,
present, share, percentage, or benefit for himself or for any
other person, in connection with any contract or transaction
between the government and any other party, wherein the public
officer in his official capacity has to intervene under the law) also
be simultaneously or subsequently charged with direct bribery
under Article 210 of the RPC? Meaning, can you be charged both
for violation of RA 3019 and article 210 of the RPC? YES! An
accused may be charged for both offenses because the elements
of direct bribery are different from that of sec. 3(b) of RA 3019.
So, you cannot invoke that there is double jeopardy.
Again, 2010 bar exam: Proserfina, an assistant public high school
principal, acted to facilitate the release of salary differentials and
election duty per diem of classroom teachers with the agreement
that they would reimburse her for her expenses. Did Proserfina
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commit a violation of RA 3019? No, because even if Proserfina
was a public officer, the facts show however that she did not
intervene in her official capacity. That is the requirement under
RA 3019. She was only a mere teacher. Reasonable ba nga wa
may… (inaudible)
Take a look at the provision of the law in RA 3019, “(c) Directly
or indirectly requesting or receiving any gift, present or other
pecuniary or material benefit, for himself or for another, from
any person for whom the public officer, in any manner or
capacity, has secured or obtained, or will secure or obtain, any
Government permit or license, in consideration for the help given
or to be given, without prejudice to Section thirteen of this Act.”
Now, we ask the question, kasi oh, accepting or having any
member of his family accept employment in the private
enterprise, etc. Does a brother-in-law fall within the definition of
“family”? This was answered by the SC in the case of Valera vs
Ombudsman (February 27, 2008). The SC said that one need not
look beyond the provisions of RA 3019 to hold that a brother-in-
law falls within the definition of “family” under section 3(d)
thereof. It went on to say that RA 6713 itself prohibits the act of
POs and employees during their incumbency to recommend any
person to any position in the private enterprise which has a
regular or pending official transaction with their office. The SC
held:
“What petitioner fails to mention is that R.A. No. 6713
itself prohibits the act of public officials and employees
during their incumbency to recommend any person to
any position in a private enterprise which has a regular or
pending official transaction with their office. 22 Certainly,
the definition of the word "family" under said law would
unduly limit and render meaningless Section 3(d) of R.A.
No. 3019 if applied to the latter. In fact, family relation is
defined under Section 4 of R.A. No. 3019 23 which,
according to the said section, "shall include the spouse or
relatives by consanguinity or affinity in the third civil
degree." Thus, we need not look beyond the provisions of
R.A. No. 3019 to hold that a brother-in-law falls within the
definition of family under Section 3(d) thereof.”
What about causing any undue injury to any party, including the
government, or giving any private party any unwarranted
benefits, advantage or preference? In order to hold a person
liable under section 3(e), what are the facts that need to be
proved? This was discussed by the SC in the case of Sison vs
People (March 9, 2010). There are 4 elements that must concur
for a person to be liable under section 3(e) of RA 3019. To be
found guilty under said provision, the following elements must
concur:
(1) the offender is a public officer;
(2) the act was done in the discharge of the public
officers official, administrative or judicial functions;
(3) the act was done through manifest partiality, evident
bad faith, or gross inexcusable negligence; and
(4) the public officer caused any undue injury to any
party, including the Government, or gave any
unwarranted benefits, advantage or preference.
Now, let’s take the case of People vs. Ong (2009), Ong, as mayor
of Isabela, bought an Isuzu dump truck for 750,000 pesos from
Ching for the use of the municipality. A letter complaint was filed
against petitioner by her successor, mayor Siquian and several
other Sangguniang Bayan members7 before the Office of the
Ombudsman, accusing her of malversation of public funds and
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property in connection with several alleged irregularities
committed during her term as Mayor of Angadanan, including the
purchase of the dump truck for being grossly overpriced. The
Graft Investigation Officer I Germain G. Lim found no probable
cause to hold petitioner liable for the charges. Upon
reconsideration however, she was indicted for violation of Sec. 3
(e) of RA No. 3019, as amended, with respect to the acquisition
of the dump truck. Now, during the trial, Ramon De Guzman
Sevilla, Sales Manager of Christian Motor Sales in Cabanatuan
City, Nueva Ecija, testified that the cost of a ten wheeler-front
drive, military type Isuzu dump truck ranges from P190,000.00-
P490,000.00. So, the complainants testified that the dump truck
was bought without conducting a public bidding or a resolution
by the Sangguniang Bayan; that the truck was merely
reconditioned and not brand new as can be seen from its
deplorable condition, worn tires and old battery; and that a
subsequent canvass of other suppliers showed that better quality
dump trucks cost no more than P500,000.00. The
Sandiganbayan rendered its decision finding petitioner Ong guilty
of violation of section 3(e) of RA 3019. Nalugi ang government.
The issue is, whether the act of petitioner constitutes a violation
of section 3(e) of RA 3019. The SC finds that all the elements of
the offense charged have been duly established beyond
reasonable doubt.
“Petitioner, being then the Mayor of Angadanan, Isabela
is a public officer discharging administrative and official
functions. The act of purchasing the subject truck without
the requisite public bidding and authority from the
Sangguniang Bayan displays gross and inexcusable
negligence. Undue injury was caused to the Government
because said truck could have been purchased at a much
lower price.”
Didto gyud ka sa taas nga naay mas mubo nga presyo. According
to the SC, the Sandiganbayan correctly ruled that by procuring
the subject truck through a negotiated purchase without public
bidding, petitioner failed to comply with the above stated
procedure. Indeed, as the local chief executive, petitioner is not
only expected to know the proper procedure in the procurement
of supplies, she is also duty bound to follow the same and her
failure to discharge this duty constitutes gross and inexcusable
negligence.
“The price quotations obtained from several suppliers 24 as
well as the testimonies of Ramon de Guzman Sevilla,
Ruben Lappay and Mirasol Lappay proved that the dump
truck purchased by petitioner was over-priced. Hence,
had petitioner observed the proper procurement
procedure, the municipality of Angadanan could have
acquired a dump truck similar to, if not better than the
one originally bought, at a much lower price of not more
than P500,000.00. Without doubt, petitioner’s negligence
caused undue injury to the government while at the same
time gave unwarranted benefits to Josephine Ching.”
Now, must all of the circumstances be present in order to convict
the accused? The SC held in the case of Sison vs People that it is
not necessary. “The third element of Section 3 (e) of RA 3019
may be committed in three ways, i.e., through manifest
partiality, evident bad faith or gross inexcusable negligence.
Proof of any of these three in connection with the prohibited acts
mentioned in Section 3(e) of RA 3019 is enough to convict.”
2011 bar exam: Dr. Chow, a government doctor, failed to submit
his DTR from January to March 2000 and did not get approval of
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his sick leave application for a credit(?) because of evidence that
he was actually moonlighting (having a second job in addition to
one's regular employment) elsewhere. The common sickness on
the part of the doctors... moonlighting. Thus, the medical
director caused the withholding of his salary for the periods in
question until he submitted his DTR in 2000. Now, can Dr. Chow
prosecute the medical director for causing him undue injury in
violation of the anti-graft and corrupt practices act pursuant to
section 13(?) of RA 3019? No, since Dr. Chow brought it upon
himself having failed to submit the required documents. He
cannot go after the medical director for withholding his salary.
There is no undue injury.
2005 bar exam: During a PNP buy-bust operation, Kao Shi was
arrested for selling 20 grams of shabu to a poseur-buyer. Kao
Shi, through an intermediary, paid Patrick, the evidence
custodian of the PNP forensic chemistry section, the amount of
500,000 in consideration for the destruction of the drugs. Patrick
managed to destroy the drugs. State with reasons whether
Patrick committed the following crimes: direct bribery, section
3(e) of RA 3019 and obstruction of justice under PD 1829. What
are the crimes committed here? Patrick violated section 3(e) of
RA 3019 by causing undue injury to the government through
evident bad faith giving unwarranted benefits to the offender by
destroying evidence of the crime. Obstruction of justice was also
committed by reason of the destruction of evidence intended to
be used in a criminal proceeding. What about the fact of direct
bribery? Yes.
What do you understand of conspiracy by silence or inaction
under RA 3019? Let’s take the case of Jaca, et. al vs People
(January 28, 2013). Remember this theory because this has
relation with the case of Arias vs Sandiganbayan. Now, what
happened in the case of Jaca? Petitioners occupied appointive
positions in different positions of Cebu City—city administrator,
city treasurer, city accountant and cashier. A surprise audit was
conducted by the city auditor of these divisions and they found
out that the paymaster incurred a cash shortage in the amount
of 18.5 million pesos. The reason for the cash shortage was
because of the failure to follow the accounting procedure laid
down under existing laws. Yun bang liquidation diba? If you’re in
the government, you noticed you are required to liquidate…
(inaudible) until such time na nag-pile up. Now, according to the
findings of the auditor, there was gross inexcusable negligence
that facilitated, promoted, if not encouraged, the commission of
malversation of funds. As a result of that, mayor Garcia filed a
criminal and admin case against the paymaster, etc. Now, the
filing of the complaint resulted in the investigation and filing of
violation of sec. 3(e) of RA 3019 by the Ombudsman before the
sandiganbayan. They were all convicted. All petitioners argued
that they should not be made liable for the crime. Sabi nya,
“wala man, paymaster lang man ko. I just sign whatever
document that is brought to us. As long as there is a counter
signature, that’s the reason why I sign. I would not sign if there
is no signature.” The SC said, “the petitioners are all heads of
their respective offices that perform interdependent functions in
the processing of cash advances. The petitioners’ attitude of
buck-passing in the face of the irregularities in the voucher (and
the absence of supporting documents), as established by the
prosecution, and their indifference to their individual and
collective duties to ensure that laws and regulations are observed
in the disbursement of the funds of the local government of Cebu
can only lead to a finding of conspiracy of silence and inaction.” I
believe you are all familiar with the case of Arias vs
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Sandiganbayan. What is the theory in that case? If I am the head
of office and I have so many staff involved in the distribution,
delivery, etc. of services to the public and once an item or
document is placed on my table for me to sign and when I saw
that the reviewing body or committee has already approved it, I
will also approve it. Now, the court in the case of Ba..(?) vs
Sandiganbayan, said “ah, wala nay liability because somehow,
somewhere you gave your trust to your staff” Sila nay liable, dili
ikaw! That’s the theory in the case of Arias. Arias doctrine. You
are not liable because gi-review man na nila! Ikaw, igo ra man ka
ni-approve. So, it is not expected of you to busisi busisi pa all the
documents when these were already reviewed by your staff. So,
in Arias, not liable because somehow you have to give your trust
to your staff. They’re expected to perform regularly their
functions. But, in this case of Jaca, et. al, the SC said that your
silence and inaction would make you criminally liable. That’s your
theory now. Conspiracy by silence or inaction. So, when you
become supervisors or head of an agency or office, see to it that
you will not rely solely on the Arias doctrine. Mahirap na.
Remember, your inaction would make you also criminally liable.
Let’s go to Article 213 of the RPC. Frauds against the public
treasury and similar offenses. There are 4 acts that are made
punishable here.
“ARTICLE 213. Frauds Against the Public Treasury and
Similar Offenses. — The penalty of prisión correccional in
its medium period to prisión mayor in its minimum period,
or a fine ranging from 200 to 10,000 pesos, or both, shall
be imposed upon any public officer who:
1. In his official capacity, in dealing with any person with
regard to furnishing supplies, the making of contracts, or
the adjustment or settlement of accounts relating to
public property or funds, shall enter into an agreement
with any interested party or speculator or make use of
any other scheme, to defraud the Government;
2. Being entrusted with the collection of taxes, licenses,
fees and other imposts, shall be guilty of any of the
following acts or omissions:
(a) Demanding, directly or indirectly, the payment of
sums different from or larger than those authorized by
law.
(b) Failing voluntarily to issue a receipt, as provided by
law, for any sum of money collected by him officially.
(c) Collecting or receiving, directly or indirectly, by way of
payment or otherwise, things or objects of a nature
different from that provided by law.
When the culprit is an officer or employee of the Bureau
of Internal Revenue or the Bureau of Customs, the
provisions of the Administrative Code shall be applied.”
When I was new in the judiciary, I used to be in the private
practice, so dakog tax, but when I joined the judiciary, I was
served a notice from the BIR “uy! You overshoot the ceiling, you
reached the highest ceiling, so this is your tax” So, I entered into
a compromise with the BIR. The compromise is for me to pay
50k and indeed the BIR people issued an O.R. for the payment of
the compromised amount. “Ang resibo ani ha ing-ani, 100 ang
resibo ani pero dapat ang ihatag nimo sa akoa is 300” “Ngano
man na?” “Tulo man mi magbahin” You will be liable under
Article 213 for failing voluntarily to issue a receipt, as provided by
law, for any sum of money collected by him officially. (story
about ORs and sales invoice)
Now, the essence of the crime under Article 213 is making the …
pay for something he received(?) or making him pay more than
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what is due. It is also committed by demanding more than the
amount, which should properly be refunded. This, of course, is
usually in cases where a public officer whose official duty is to
procure supplies for the government to enter into a contract for
government transactions, connives with the said supplier, with
the intention to defraud the government. Now, what is
contemplated here is the act of a public officer who enters into
an agreement or arrangement with private individuals concerning
the … of supplies to the government but under the scheme
adopted to benefit such public officer from the contract or
transaction. It is considered as fraud or deceit against the public
treasury because in the end the transaction will result in the loss
of income on the part of the government.
Illustration for application of Article 213: you will purchase the
poorest quality of ink and paid as if it were of superior quality. A
public official who is in charge of procuring supplies for the
government, obtained funds for first-class materials and buys
inferior quality products and pockets the excess of the funds.
Sometimes, it is done in tong-pats.
Article 215, prohibited transactions. A good example of this
would be in the case of a provincial engineer who has knowledge
of the proposed construction of a superhighway that would
traverse vast tracts of land and in anticipation of the increase in
the market value of the land, he buys several parcels of land
along the proposed highway, which is within his jurisdiction as
provincial engineer. Very familiar noh? That’s what happened to
Villar sa C5.
Article 217, malversation of public funds. What are the elements
of the crime?
1. The offender is a public officer;
2. He is accountable for public funds or property by reason
of his duties;
3. He appropriates or takes or misappropriates or shall
consent, through abandonment or negligence, shall
permit any other person to take such public funds, or
property, wholly or partially, or shall otherwise be guilty
of misappropriation or malversation of such funds or
property.
Now, in determining whether the offender is liable for
malversation, it is the nature of the duties of the public officer
that controls. While the name of the office is important, what is
controlling is whether in performing his duties as a public officer,
he has to account or is required by the nature of the
performance of his duties to render an account of money or
property that came to his possession. So, even a mere clerk can
commit the crime of malversation. This is one crime where the
guilt of the accused is presumed. This is alleged in the last
paragraph of Article 217. The presumption is disputable and
comes into play only after a demand has been made by a person
duly authorized to do so (like COA). Malversation can only be
committed by a public officer or employee. A private person can
commit malversation, however, in 3 instances:
1. when the private person conspires with the public
officer;
2. when he plays a direct participation or cooperates in the
commission of malversation in connivance with the
public officer; and
3. if the private person be charged with any national
provision or any municipal tax(?), revenue or
(inaudible).
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Remember, article 217 gives a presumption. There is a rule that
the accused must overcome the presumption that is laid down
under Article 217.
BQ: accused was the duly appointed cashier of the treasurer’s
office of Albay. During an audit of her cash and accounts, he was
found to have incurred a shortage of 2.5 million pesos. Because
she failed to produce any cash and valid cash items to effect the
shortage(?) in her account ambiguities, she was charged with
malversation of public funds. Her defense, based on the Tizon
ruling, is that she did not benefit a single centavo from the
missing funds and that said funds were just coursed as cash
advances to her co-employees in good faith and in continuance
of a practice tolerated in her office. SC ruled that if an
accountable public officer did not take the missing funds for his
personal use and having allowed others to freely participate in
the chits(?) or vales(?) the practice which has been tolerated
even during the time of his predecessor and there is no
negligence proximating(?) malice or fraud because the wrong
payments were made in good faith, said public officer may be
acquitted of malversation. According to the court, the practice of
disbursing public funds under the vale system as a defense in
malversation cases (inaudible).. In Camello vs Sandiganbayan, it
was ruled that the giving of vales by the public officer out of their
accountable funds is prohibited by PD 1145, otherwise known as
the Government Auditing Code of the Philippines, and
memorandum circular no. 570. The grant of loans through the
vale system is a clear case of an accountable officer consenting
to the improper or unauthorized use of public funds by other
persons which is punishable by law.
Now, in the bar exam: an unlicensed firearm was confiscated by
a policeman. Instead of turning over said firearm to the proper
custodian for the prosecution of the offender, the policeman sold
the firearm. The crime committed by the policeman is
malversation. Why? Because the firearm is subject to his
accountability. Having taken custody of the firearm, he is
supposed to account for it as evidence for the prosecution of the
offender. Just like cellphones confiscated during the arrest.
Can the buyer be liable under the anti-fencing law? So, if you
purchased the firearm the policeman was selling, will you be
liable under the anti-fencing law? No, because the crime is not
theft nor robbery, but malversation, which is not contemplated
under the anti-fencing law.
BQ: A member of the PNP went on absence without leave. He
was charged for malversation of the firearm issued to him. After
2 years he came out of hiding and surrendered the firearm. What
crime was committed? The crime committed was malversation.
Payment of the amount misappropriated or restitution of
property misappropriated does not erase criminal liability but only
civil liability.
Now, what is that kind of preventive suspension that is being laid
down under section 13? That suspension is not penal in
character, but merely a preventive measure before final
judgment is given.
What is the purpose of the suspension? To prevent the accused
from hampering his prosecution by intimidating or influencing his
witnesses.
Is that suspension violative of the right of the accused to be
presumed innocent until the contrary is proven? The SC, in the
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case of Gonzaga vs Sandiganbayan, held that it is not violative of
the constitution as it is not a penalty. Persons under preventive
suspension remains entitled to the constitutional presumption of
innocence since his culpability must still be established.
How do we suspend you? The moment there is an information
and there was already a conduct of arraignment where you will
plead NOT guilty to the information. The moment you enter your
plea of not guilty, that’s the time that the court will issue the
corresponding order suspending you from your present position.
How long is the suspension? In the case of Segovia vs
Sandiganbayan, it is 90 days.
What if it is the judge that is the subject of malversation? Ang
judge maoy corrupt. Unsa man iyang icorrupt? Tong mga taya
nga gi-confiscate sa last 2han. Pila man pud? 200 pesos. Now, if
it is the judge that is the subject of the complaint, where do you
file? In the case of Salvador vs Pelayo (July 6, 2000), Salvador
filed a case against a judge before the office of the ombudsman
kasi he believed na judge is a public official and jurisdiction
should be, for purposes of preliminary investigation, with the
ombudsman. The issue is whether or not the ombudsman has
jurisdiction to entertain criminal charges against a judge in
connection with his handling of cases. Here, in this case, the
complainant insisted that it should be the ombudsman, not the
SC, that should investigate the judge because the complaint is
criminal and not administrative. The SC held, reiterating the
ruling in Joaquin vs Borromeo 241 SCRA 408, that before a civil
or criminal action against a judge for violation of the RPC, there
must first be a final and authoritative judicial declaration that the
decision covering(?) the question is (inaudible)… There should be
an administrative finding first to be done by the SC. If you file it
directly with the ombudsman, the ombudsman will just transmit
the case to the SC because it is the latter that will conduct the
investigation. If the SC declares that the judge committed the
crime, they are going to dismiss the judge and aside from that,
there is a proviso there that the IBP or DOJ shall file a case
against said judge for malversation. That is what happened to
the late provincial prosecutor Arafol of Comval. So, ombudsman
does not have jurisdiction over judges. It is with the SC. It is only
when the SC declares that the judge is criminally liable that a
criminal action should be instituted against the judge.
There is a new jurisprudence on PD 1564. This is the law that
amends commonwealth act no. 4075. This is the Solicitation
Permit Law. There is a special law. Now, what is deemed
prohibited here? Soliciting or receiving contribution for charitable
or public welfare purposes, the omission to secure a permit from
the DSWD prior to soliciting or receiving contribution. So, if you
just go around the city and ask for solicitations without securing
permit from the DSWD, then you will be liable under PD 1564.
This is what happened in People vs Castañeda. A priest solicited
for the construction of its church building without securing a
permit from the DSWD was held criminally liable for PD 1564.
And then there was a new case decided just this year. A group of
senior citizens that would solicit para magbuild sila sa ilahang
church. I’ll give to you the citation next meeting. Seldom can you
find jurisprudence dealing with PD 1564.
October 6
PP v. Henry T. Go; March 25, 2014
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At the outset, it bears to reiterate the settled rule that private
persons, when acting in conspiracy with public officers, may be
indicted and, if found guilty, held liable for the pertinent offenses
under Section 3 of R.A. 3019, in consonance with the avowed
policy of the anti-graft law to repress certain acts of public
officers and private persons alike constituting graft or corrupt
practices act or which may lead thereto. 12 This is the controlling
doctrine as enunciated by this Court in previous cases, among
which is a case involving herein private respondent. 13
The only question that needs to be settled in the present petition
is whether herein respondent, a private person, may be indicted
for conspiracy in violating Section 3(g) of R.A. 3019 even if the
public officer, with whom he was alleged to have conspired, has
died prior to the filing of the Information.
Respondent contends that by reason of the death of Secretary
Enrile, there is no public officer who was charged in the
Information and, as such, prosecution against respondent may
not prosper.
The Court is not persuaded.
It is true that by reason of Secretary Enrile's death, there is no
longer any public officer with whom respondent can be charged
for violation of R.A. 3019. It does not mean, however, that the
allegation of conspiracy between them can no longer be proved
or that their alleged conspiracy is already expunged. The only
thing extinguished by the death of Secretary Enrile is his criminal
liability. His death did not extinguish the crime nor did it remove
the basis of the charge of conspiracy between him and private
respondent. Stated differently, the death of Secretary Enrile does
not mean that there was no public officer who allegedly violated
Section 3 (g) of R.A. 3019. In fact, the Office of the Deputy
Ombudsman for Luzon found probable cause to indict Secretary
Enrile for infringement of Sections 3 (e) and (g) of R.A.
3019.14 Were it not for his death, he should have been charged.
The requirement before a private person may be indicted for
violation of Section 3(g) of R.A. 3019, among others, is that such
private person must be alleged to have acted in conspiracy with
a public officer. The law, however, does not require that such
person must, in all instances, be indicted together with the public
officer. If circumstances exist where the public officer may no
longer be charged in court, as in the present case where the
public officer has already died, the private person may be
indicted alone.
As a recapitulation, it would not be amiss to point out that the
instant case involves a contract entered into by public officers
representing the government. More importantly, the SB is a
special criminal court which has exclusive original jurisdiction in
all cases involving violations of R.A. 3019 committed by certain
public officers, as enumerated in P.D. 1606 as amended by R.A.
8249. This includes private individuals who are charged as co-
principals, accomplices or accessories with the said public
officers. In the instant case, respondent is being charged for
violation of Section 3(g) of R.A. 3019, in conspiracy with then
Secretary Enrile. Ideally, under the law, both respondent and
Secretary Enrile should have been charged before and tried
jointly by the Sandiganbayan. However, by reason of the death
of the latter, this can no longer be done. Nonetheless, for
reasons already discussed, it does not follow that the SB is
already divested of its jurisdiction over the person of and the
case involving herein respondent. To rule otherwise would mean
that the power of a court to decide a case would no longer be
based on the law defining its jurisdiction but on other factors,
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such as the death of one of the alleged offenders.
Can there be double jeopardy when one is charged for violation
of Sec 3 of RA 3019 and at the same time also charged under Art
210 for Direct Bribery? Double jeopardy does not attach.
Merencillo v. PP; April 13, 2007
Petitioner Was Not Placed In Double Jeopardy
Section 3 of RA 3019 begins with the following statement:
Sec. 3. In addition to acts or omissions of public officers
already penalized by existing law, the following [acts] shall
constitute corrupt practices of any public officer and are hereby
declared unlawful:
xxx xxx xxx (emphasis supplied)
One may therefore be charged with violation of RA 3019 in
addition to a felony under the Revised Penal Code for the same
delictual act, that is, either concurrently or subsequent to being
charged with a felony under the Revised Penal Code. 27 There is
no double jeopardy if a person is charged simultaneously or
successively for violation of Section 3 of RA 3019 and the
Revised Penal Code.
The rule against double jeopardy prohibits twice placing a person
in jeopardy of punishment for the same offense. 28 The test is
whether one offense is identical with the other or is an attempt
to commit it or a frustration thereof; or whether one offense
necessarily includes or is necessarily included in the other, as
provided in Section 7 of Rule 117 of the Rules of Court. 29 An
offense charged necessarily includes that which is proved when
some of the essential elements or ingredients of the former, as
alleged in the complaint or information, constitute the latter; and
an offense charged is necessarily included in the offense proved
when the essential ingredients of the former constitute or form a
part of those constituting the latter.30
A comparison of the elements of the crime of direct bribery
defined and punished under Article 210 of the Revised Penal
Code and those of violation of Section 3(b) of RA 3019 shows
that there is neither identity nor necessary inclusion between the
two offenses.
Section 3(b) of RA 3019 provides:
Sec. 3. In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared unlawful:
xxx xxx xxx
(b) Directly or indirectly requesting or receiving any gift, present,
share percentage or benefit, for himself or for any other person,
in connection with any contract or transaction between the
Government and any other party, wherein the public officer in his
official capacity has to intervene under the law.
xxx xxx xxx
The elements of the crime penalized under Section 3(b) of RA
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3019 are:
(1) the offender is a public officer;
(2) he requested or received a gift, present, share,
percentage or benefit;
(3) he made the request or receipt on behalf of the
offender or any other person;
(4) the request or receipt was made in connection with
a contract or transaction with the government and
(5) he has the right to intervene, in an official capacity
under the law, in connection with a contract or
transaction has the right to intervene.31
On the other hand, direct bribery has the following essential
elements:
(1) the offender is a public officer;
(2) the offender accepts an offer or promise or receives
a gift or present by himself or through another;
(3) such offer or promise be accepted or gift or present
be received by the public officer with a view to
committing some crime, or in consideration of the
execution of an act which does not constitute a crime
but the act must be unjust, or to refrain from doing
something which it is his official duty to do and
(4) the act which the offender agrees to perform or
which he executes is connected with the performance of
his official duties.32
Clearly, the violation of Section 3(b) of RA 3019 is neither
identical nor necessarily inclusive of direct bribery. While they
have common elements, not all the essential elements of one
offense are included among or form part of those enumerated in
the other. Whereas the mere request or demand of a gift,
present, share, percentage or benefit is enough to constitute a
violation of Section 3(b) of RA 3019, acceptance of a promise or
offer or receipt of a gift or present is required in direct bribery.
Moreover, the ambit of Section 3(b) of RA 3019 is specific. It is
limited only to contracts or transactions involving monetary
consideration where the public officer has the authority to
intervene under the law. Direct bribery, on the other hand, has a
wider and more general scope: (a) performance of an act
constituting a crime; (b) execution of an unjust act which does
not constitute a crime and (c) agreeing to refrain or refraining
from doing an act which is his official duty to do.
Although the two charges against petitioner stemmed from the
same transaction, the same act gave rise to two separate and
distinct offenses. No double jeopardy attached since there was a
variance between the elements of the offenses charged. 33 The
constitutional protection against double jeopardy proceeds from
a second prosecution for the same offense, not for a different
one.
RA 1379 – Forfeiture in favor of the Sale of Any Property found
to have been unlawfully acquired by any employee. Now, under
Sec 2, the law gives a presumption that property is illegally
acquired.
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In the forfeiture proceeding, it is the State who will institute such
proceeding. When does the State take action to forfeit a
property? It is when the property is manifestly out of proportion
to own by somebody. If you are acquiring a condominium worth
2.6 million and your monthly salary is only 3,000, where the hell
did you get the money to pay your monthly amortization?
Aaaaahhhh. What is the presumption there? CORRUPT KA! 
You are living beyond your means.
So remember ha, it is the State that will institute the proceeding.
The prescriptive period is 4 years from the date of resignation or
dismissal but take note this has been repealed by express
mandate of the 1987 Constitution. It is already imprescriptible.
Art. 11, Sec 15
Section 15. The right of the State to recover properties
unlawfully acquired by public officials or employees, from them
or from their nominees or transferees, shall not be barred by
prescription, laches, or estoppel.
Read the ff cases:
Republic v. Migrino 189 SCRA 289
Durez v PP; Aug 31, 2011 – on RA 3019
Mallari v PP; Feb 8, 2012
Article 218. Failure of accountable officer to render accounts. -
Any public officer, whether in the service or separated therefrom
by resignation or any other cause, who is required by law or
regulation to render account to the Insular Auditor, or to a
provincial auditor and who fails to do so for a period of two
months after such accounts should be rendered, shall be
punished by prision correccional in its minimum period, or by a
fine ranging from 200 to 6,000 pesos, or both.
The public officers who are bound to render accounts are the
following:
1. Cashiers;
2. Store keepers;
3. Warehousemen;
4. Those who violates by the nature of the position
becomes custodian of public funds or property.
What are the issues that should be tackled under Art 218?
Whether or not the demand to render account is necessary for
you to become criminally liable. Now in this article, demand to
render an account is not necessary. It is sufficient that there is a
law or regulation requiring him to render an account. It is the
failure to follow the requirement of the law or regulation that is
made punishable. It is not necessary that the offender actually
committed a malversation because the object of the law is to
prevent the situation of the crime being committed because of
the failure of the accountable officer to render an account.
Manlangit v. PP; Aug 28, 2007
Article 218 consists of the following elements:
1. that the offender is a public officer, whether in the
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service or separated therefrom;
2. that he must be an accountable officer for public
funds or property;
3. that he is required by law or regulation to render
accounts to the Commission on Audit, or to a provincial
auditor; and
4. that he fails to do so for a period of two months after
such accounts should be rendered.
Nowhere in the provision does it require that there first be a
demand before an accountable officer is held liable for a violation
of the crime. The law is very clear. Where none is provided, the
court may not introduce exceptions or conditions, neither may it
engraft into the law qualifications not contemplated. 17 Where the
law is clear and unambiguous, it must be taken to mean exactly
what it says and the court has no choice but to see to it that its
mandate is obeyed.18 There is no room for interpretation, but
only application.
This is the rule – even if there is no demand for you to render an
account but the law requires you to make an account, it is not
necessary that there should be a prior demand made by the
COA. This kind of circumstances is existing in the different
agencies of the government. But the law is clear that you have to
render an account even if there is no demand.
Lumauig v. PP; July 7, 2014
Prior demand to liquidate is not a
requisite for conviction under Article
218 of the Revised Penal Code.
The central aspect of petitioner’s next argument is that he was
not reminded of his unliquidated cash advances. The Office of
the Special Prosecutor countered that Article 218 does not
require the COA orthe provincial auditor to first make a demand
before the public officer should render an account. It is sufficient
that there is a law or regulation requiring him to render an
account. The question has been settled in Manlangit v.
Sandiganbayan19where we ruled that prior demand to liquidate is
not necessary to hold an accountable officer liable for violation of
Article 218 of the Revised Penal Code:
x x x [W]e are asked to resolve whether demand is necessary for
a conviction of a violation of Article 218 of the Revised Penal
Code.
Citing United States v. Saberon, petitioner contends that Article
218 punishes the refusal of a public employee to render an
account of funds in his charge when duly required by a
competent officer. He argues that he cannot be convicted of the
crime unless the prosecution has proven that there was a
demand for him to render an account. Petitioner asserts that
COA Circular No. 90-331 provides that the public officer shall be
criminally liable for failure to settle his accounts after demand
had been made. Moreover, petitioner asserts that the case had
become moot and academic since he already submitted his
liquidation report.
For the People, the Office of the Special Prosecutor (OSP)
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counters that demand is not an element of the offense and that
it is sufficient that there is a law or regulation requiring the public
officer to render an account. The OSP insists that Executive
Order No. 292, Presidential Decree No. 1445, the COA Laws and
Regulations, and even the Constitution mandate that public
officers render an account of funds in their charge. It maintains
that the instant case differs from Saberonwhich involved a
violation of Act No. 1740 where prior demand was required. In
this case involving a violation of Article 218, prior demand is not
required. Moreover, the OSP points out that petitioner even
admitted his failure to liquidate the funds within the prescribed
period, hence, he should be convicted of the crime.
We shall now resolve the issue at hand.
Article 218 consists ofthe following elements:
1. that the offender is a public officer, whether in the
service or separated therefrom;
2. that he must be an accountable officer for public
funds or property;
3. that he is required by law or regulation to render
accounts to the Commission on Audit, or to a provincial
auditor; and
4. that he fails to do so for a period of two months after
such accounts should be rendered. Nowhere in the
provision does it require that there first be a demand
before an accountable officer is held liable for a
violation of the crime. The law is very clear. Where
none is provided, the court may not introduce
exceptions or conditions, neither may it engraft into the
law qualifications not contemplated. Where the law is
clear and unambiguous, it must be taken to mean
exactly what it says and the court has no choice but to
see to it that its mandate is obeyed. There is no room
for interpretation, but only application.
Article 219. Failure of a responsible public officer to render
accounts before leaving the country. - Any public officer who
unlawfully leaves or attempts to leave the Philippine Islands
without securing a certificate from the Insular Auditor showing
that his accounts have been finally settled, shall be punished
by arresto mayor, or a fine ranging from 200 to 1,000 pesos or
both.
Take note of the phrase “unlawfully leaves or attempts to leave”
this suggests that the attempt to leave or unlawfully left the
country is due to the commission of the crime which has not yet
been discovered.
Article 220. Illegal use of public funds or property. - Any public
officer who shall apply any public fund or property under his
administration to any public use other than for which such fund
or property were appropriated by law or ordinance shall suffer
the penalty of prision correccional in its minimum period or a fine
ranging from one-half to the total of the sum misapplied, if by
reason of such misapplication, any damages or embarrassment
shall have resulted to the public service. In either case, the
offender shall also suffer the penalty of temporary special
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disqualification.
If no damage or embarrassment to the public service has
resulted, the penalty shall be a fine from 5 to 50 per cent of the
sum misapplied.
The other term for art 220 is TECHNICAL MALVERSATION.
Technical malversation is the penal sanction to the constitutional
provision under Art VIII, Sec 18 (hindi ata tama ang provision na
sinabi niya) which states “No one is/shall be paid out of the
treasury except of an appropriation made by law.” It is called
technical malversation because the funds are used for a purpose
other than that from such the same is appropriated.
Elements:
1. That the offender is a public officer;
2. That there is public fund or property under his
administration;
3. That such public fund or property has been
appropriated by law or ordinance;
4. That he applies the same to a public use other than that
for which such fund or property has been appropriated
by law or ordinance.
From what purpose is the fund being used or spend for? It is for
public use or purpose also but only that if we do not prohibit this
kind of transaction then there will be a violation of the provision
of the Constitution. Remember here that the offender is
entrusted with such fund or property only to administer or apply
the same to the public purpose from which it was appropriated
by law or ordinance. Instead of applying it to the public purpose,
the public officer applied it to another public purpose also.
Since that _ is not an element of the crime of malversation,
technical malversation even though the application may prove to
be more beneficial to public interest than the original purpose the
amount was appropriated by law, the public officer involved is
still liable for technical malversation.
If public funds or property appropriated by law or ordinance and
this was applied to a public purpose by the custodian thereon,
then the crime is pure and simple malversation and not technical
malversation. If the funds are not appropriated for a particular
public purpose and the same is applied to private purpose, the
crime committed is malversation only. But if the funds or
property appropriated by law or ordinance used for a purpose
other than those provided by law or ordinance then, the crime is
technical malversation.
Remember in technical malversation, the funds are appropriated
by that law or ordinance. What if you return the funds
embezzled? That is not exempting. It is only mitigating. You can
find it in Art 13, RPC – Analogous circumstances. Even the
amount misappropriated or restitution or property
misappropriated (HA?) does not raise criminal liability but only
civil liability. Demand as well as damage to the Government is
not necessary. Take note that damage on the part of the
Government is not considered as an essential element. It is not
the proprietary rights of the Government over the funds have
been _ through breach of trust.
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Distinction between Art 217 and Art 220
Art 217 Malversation Art 220 Technical
Malversation
Offenders are accountable public officers.
Personal benefits are derived The offender derives no
from commission of the crime personal benefit from the
by the accused commission of the crime
because he spend it for public
purpose
Personal interest of the The object of the crime is also
offender for public use
Ysidoro v. PP; November 14, 2012
This case is about a municipal mayor charged with illegal
diversion of food intended for those suffering from malnutrition
to the beneficiaries of reconsideration projects affecting the
homes of victims of calamities.
One. The crime of technical malversation as penalized under
Article 220 of the Revised Penal Code 4 has three elements: a)
that the offender is an accountable public officer; b) that he
applies public funds or property under his administration to some
public use; and c) that the public use for which such funds or
property were applied is different from the purpose for which
they were originally appropriated by law or ordinance. 5 Ysidoro
claims that he could not be held liable for the offense under its
third element because the four sacks of rice and two boxes of
sardines he gave the CSAP beneficiaries were not appropriated
by law or ordinance for a specific purpose.
Ysidoro disregarded the guidelines when he approved the
distribution of the goods to those providing free labor for the
rebuilding of their own homes. This is technical malversation. If
Ysidoro could not legally distribute the construction materials
appropriated for the CSAP housing beneficiaries to the SFP
malnourished clients neither could he distribute the food
intended for the latter to CSAP beneficiaries.
Two. Ysidoro claims that the subject goods already constituted
savings of the SFP and that, therefore, the same could already
be diverted to the CSAP beneficiaries. He relies on Abdulla v.
People12 which states that funds classified as savings are not
considered appropriated by law or ordinance and can be used for
other public purposes. The Court cannot accept Ysidoro’s
argument.
The subject goods could not be regarded as savings. The SFP is
a continuing program that ran throughout the year.
Consequently, no one could say in mid-June 2001 that SFP had
already finished its project, leaving funds or goods that it no
longer needed. The fact that Polinio had already distributed the
food items needed by the SFP beneficiaries for the second
quarter of 2001 does not mean that the remaining food items in
its storeroom constituted unneeded savings. Since the
requirements of hungry mouths are hard to predict to the last
sack of rice or can of sardines, the view that the subject goods
were no longer needed for the remainder of the year was quite
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premature.
Three. Ysidoro claims that, since the municipal auditor found
nothing irregular in the diversion of the subject goods, such
finding should be respected. The SB ruled, however, that since
Ysidoro failed to present the municipal auditor at the trial, the
presumption is that his testimony would have been adverse if
produced. Ysidoro argues that this goes against the rule on the
presumption of innocence and the presumption of regularity in
the performance of official functions.
Ysidoro may be right in that there is no basis for assuming that
had the municipal auditor testified, his testimony would have
been adverse to the mayor. The municipal auditor’s view
regarding the transaction is not conclusive to the case and will
not necessarily negate the mayor’s liability if it happened to be
favorable to him. The Court will not, therefore, be drawn into
speculations regarding what the municipal auditor would have
said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since, first, the
idea of using the SFP goods for the CSAP beneficiaries came, not
from him, but from Garcia and Polinio; and, second, he consulted
the accounting department if the goods could be distributed to
those beneficiaries. Having no criminal intent, he argues that he
cannot be convicted of the crime.1âwphi1
But criminal intent is not an element of technical malversation.
The law punishes the act of diverting public property earmarked
by law or ordinance for a particular public purpose to another
public purpose. The offense is mala prohibita, meaning that the
prohibited act is not inherently immoral but becomes a criminal
offense because positive law forbids its commission based on
considerations of public policy, order, and convenience.13 It is the
commission of an act as defined by the law, and not the
character or effect thereof, that determines whether or not the
provision has been violated. Hence, malice or criminal intent is
completely irrelevant.14
Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule
the amount diverted, constitutes the crime of technical
malversation. The law and this Court, however, recognize that
his offense is not grave, warranting a mere fine.
Article 221. Failure to make delivery of public funds or
property. - Any public officer under obligation to make payment
from Government funds in his possession, who shall fail to make
such payment, shall be punished by arresto mayor and a fine
from 5 to 25 per cent of the sum which he failed to pay.
This provision shall apply to any public officer who, being
ordered by competent authority to deliver any property in his
custody or under his administration, shall refuse to make such
delivery.
The fine shall be graduated in such case by the value of the
thing, provided that it shall not less than 50 pesos.
2 acts made punishable under Art 221:
1. By failing to make payment by a public officer who is
under obligation to make such payment from
Government funds in his possession;
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2. By refusing to make delivery by a public officer who has
been ordered by competent authority to deliver any
property in his custody or under his administration.
Article 222. Officers included in the preceding provisions. - The
provisions of this chapter shall apply to private individuals who in
any capacity whatever, have charge of any insular, provincial or
municipal funds, revenues, or property and to any administrator
or depository of funds or property attached, seized or deposited
by public authority, even if such property belongs to a private
individual.
*Judge skipped Art 222.
Article 223. Conniving with or consenting to evasion. - Any
public officer who shall consent to the escape of a prisoner in his
custody or charge, shall be punished:
1. By prision correccional in its medium and maximum
periods and temporary special disqualification in its
maximum period to perpetual special disqualification, if
the fugitive shall have been sentenced by final
judgment to any penalty.
2. By prision correccional in its minimum period and
temporary special disqualification, in case the fugitive
shall not have been finally convicted but only held as a
detention prisoner for any crime or violation of law or
municipal ordinance.
Elements:
1. That the offender is a public officer;
2. That he had in his custody or charge, a prisoner, either
detention prisoner or prisoner by final judgment;
3. That such prisoner escaped from his custody;
4. That he was in connivance with the prisoner in the
latter’s escape.
Take note that the public officer here must be in connivance or
he consents with the escape. Without connivance on the part of
the person in charge of the custody then Art 223 is not violated.
Mere laxity in the performance of one’s function in the custody of
these detainees does not necessarily constitute a violation of Art
223. What kind of laxity is that? Strong and positive laxity on the
part of the offender that could make you criminally liable under
Art 223.
Article 224. Evasion through negligence. - If the evasion of the
prisoner shall have taken place through the negligence of the
officer charged with the conveyance or custody of the escaping
prisoner, said officer shall suffer the penalties of arresto mayor in
its maximum period to prision correccional in its minimum period
and temporary special disqualification.
Not every error is negligence ha? To be liable negligence must be
notorious and apparent. The laxity must be definite and must it
suggest a deliberate non-performance of the duty. In other
words, what is required is a positive kind of negligence.
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What is the liability of the prisoner who escaped? We have to
qualify. If the one who escaped is only a detention prisoner, he
commits no crime from escaping. But if the person detained is a
prisoner serving sentence for a final judgment then, he commits
the crime of evasion of service of sentence under Art 157. That is
the effect.
Article 225. Escape of prisoner under the custody of a person
not a public officer. - Any private person to whom the
conveyance or custody or a prisoner or person under arrest shall
have been confided, who shall commit any of the offenses
mentioned in the two preceding articles, shall suffer the penalty
next lower in degree than that prescribed for the public officer.
Elements:
1. That the offender is a private person;
2. That the conveyance or custody of a prisoner or
person under arrest is confided to him;
3. That the prisoner or person under arrest escapes;
4. That the offender consents to the escape of the
prisoner or person under arrest, or that the escape
takes place through his negligence.
Now this article (remember) will not apply if a private person
made the arrest and he consented to the escape of the person
that he arrested. The situation for this article contemplates that
the person arrested was entrusted to your custody and you
allowed his escape but if you are a private person is arresting the
prisoner and eventually allowed him to escape then you are liable
of the crime.
The crime is called infidelity in the custody of prisoners if the
offender involved is the custodian of the prisoner. If the offender
who aided or consented to the prisoner’s escaping from
confinement whether the prisoner is a convict or a detention
prisoner is not the custodian, the crime is only delivering
prisoners from jail found under Art 156.
The crime of infidelity in the custody of the prisoner can be
committed only by the custodian of a prisoner. If the jail guard
who allowed the prisoner to escape is already off-duty at that
time he is no longer the custodian of the prisoner, the crime
committed by him is delivering prisoners from jail. Take note we
do not apply the principle of conspiracy – that the act of one is
the act of all – the party who is not the custodian who conspired
the custodian in allowing the prisoner to escape does not commit
infidelity in the custody of the prisoner. He commits the crime of
delivering prisoners from jail.
If a private person approach the custodian of the prisoner and
for a certain consideration told the custodian to leave the door of
the cell unlocked for the prisoner to escape, what crime had
been committed? It is not infidelity in the custody of prisoners as
far as the private person is concerned. He is liable of the crime of
delivering prisoners from jail. The infidelity is only committed by
the custodian who is the jail guard.
If the crime is delivering of prisoners from jail, bribery is just a
means under Art 156 that would call for the imposition of heavier
penalty but not a separate charge of bribery. But under Art 225,
the infidelity in the custody of the prisoner what is basically
punished is the breach of trust because the offender is the
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custodian. If he violates the trust by some consideration, bribery

is also committed.
Note from a recent SC ruling, failure to accompany lady prisoner
in the comfort room is a means of negligence and therefore the
custodian is liable with infidelity in the custody of the prisoner.
Article 226. Removal, concealment or destruction of
documents. - Any public officer who shall remove, destroy or
conceal documents or papers officially entrusted to him, shall
suffer:
1. The penalty of prision mayor and a fine not
exceeding 1,000 pesos, whenever serious damage shall
have been caused thereby to a third party or to the
public interest.
2. The penalty of prision correccional in its minimum
and medium period and a fine not exceeding 1,000
pesos, whenever the damage to a third party or to the
public interest shall not have been serious.
In either case, the additional penalty of temporary special
disqualification in its maximum period to perpetual
disqualification shall be imposed.
Article 228. Opening of closed documents. - Any public officer
not included in the provisions of the next preceding article who,
without proper authority, shall open or shall permit to be opened
any closed papers, documents or objects entrusted to his
custody, shall suffer the penalties or arresto mayor, temporary
special disqualification and a fine of not exceeding 2,000 pesos.
Article 229. Revelation of secrets by an officer. - Any public
officer who shall reveal any secret known to him by reason of his
official capacity, or shall wrongfully deliver papers or copies of
papers of which he may have charge and which should not be
published, shall suffer the penalties of prision correccional in its
medium and maximum periods, perpetual special disqualification
and a fine not exceeding 2,000 pesos if the revelation of such
secrets or the delivery of such papers shall have caused serious
damage to the public interest; otherwise, the penalties of prision
correccional in its minimum period, temporary special
disqualification and a fine not exceeding 50 pesos shall be
imposed.

Acts punishable:

1. By revealing any secrets known to the offending public

Elements:
officer by reason of his official capacity;
2. By delivering wrongfully papers or copies of papers of
1. That the offender be a public officer;
2. That he abstracts, destroys or conceals documents or which he may have charge and which should not be
papers; published.
3. That the said documents or papers should have been
entrusted to such public officer by reason of his office; Elements of No. 1:
4. That damage, whether serious or not, to a third party
a. That the offender is a public officer;
or to the public interest should have been caused.
b. That he knows of a secret by reason of his official
From Reyes – capacity;
c. That he reveals such secret without authority or
Under this article, not only documents but also papers justifiable reasons;
d. That damage, great or small, be caused to the public
may be involved. The word “papers” includes checks, promissory
interest.
notes, and paper money.
Elements of No. 2:
Thus, a postmaster to whom a letter containing paper
money was delivered to be forwarded by registered mail, opened
a. That the offender is a public officer;
said letter and abstracted money orders, or the money bills b. That he has charge of papers;
enclosed therein, was guilty of infidelity in the custody of papers. c. That those papers should not be published;
d. That he delivers those papers or copies thereof to a
Acts punishable in infidelity in the custody of documents: third person;
e. That the delivery is wrongful;
1. By removing; or f. That damage be caused to public interest.
2. By destroying; or
3. By concealing, documents or papers officially entrusted The secrets here are not secrets of private individuals. The article
to the offending public officer. punishes minor official betrayals, infidelities of little consequence,
affecting usually the administration of justice, executive or official
Damage to public interest is necessary however, material
duties, or the general interest of the public order.
damage is not necessary.
Article 230. Public officer revealing secrets of private
Article 227. Officer breaking seal. - Any public officer charged
individual. - Any public officer to whom the secrets of any private
with the custody of papers or property sealed by proper
individual shall become known by reason of his office who shall
authority, who shall break the seals or permit them to be broken,
reveal such secrets, shall suffer the penalties of arresto
shall suffer the penalties of prision correccional in its minimum
mayor and a fine not exceeding 1,000 pesos.
and medium periods, temporary special disqualification and a
fine not exceeding 2,000 pesos.

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Article 231. Open disobedience. - Any judicial or executive
officer who shall openly refuse to execute the judgment, decision
or order of any superior authority made within the scope of the
jurisdiction of the latter and issued with all the legal formalities,
shall suffer the penalties of arresto mayor in its medium period
to prision correccional in its minimum period, temporary special
disqualification in its maximum period and a fine not exceeding
1,000 pesos.
Article 232. Disobedience to order of superior officers, when
said order was suspended by inferior officer. - Any public officer
who, having for any reason suspended the execution of the
orders of his superiors, shall disobey such superiors after the
latter have disapproved the suspension, shall suffer the penalties
of prision correccional in its minimum and medium periods and
perpetual special disqualification.
Elements:
1. That the offender is a public officer;
2. That an order is issued by his superior for execution;
3. That he has for any reason suspended the execution of
such order;
4. That his superior disapproves the suspension of the
execution of the order;
5. That the offender disobeys his superior despite the
disapproval of the suspension.
Article 233. Refusal of assistance. - The penalties of arresto
mayor in its medium period to prision correccional in its minimum
period, perpetual special disqualification and a fine not exceeding
1,000 pesos, shall be imposed upon a public officer who, upon
demand from competent authority, shall fail to lend his
cooperation towards the administration of justice or other public
service, if such failure shall result in serious damage to the public
interest, or to a third party; otherwise, arresto mayor in its
medium and maximum periods and a fine not exceeding 500
pesos shall be imposed.
Elements:
1. That the offender is a public officer;
2. That a competent authority demands from the offender
that he lend his cooperation towards the administration
of justice or other public service;
3. That the offender fails to do so maliciously.
Article 234. Refusal to discharge elective office. - The penalty
of arresto mayor or a fine not exceeding 1,000 pesos, or both,
shall be imposed upon any person who, having been elected by
popular election to a public office, shall refuse without legal
motive to be sworn in or to discharge the duties of said office.
Elements:
1. That the offender is elected by popular election to a
public office;
2. That he refuses to be sworn in or to discharge the
duties of said office;
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3. That there is no legal motive for such refusal to be
sworn in or to discharge the duties of said office.
Article 235. Maltreatment of prisoners. - The penalty of arresto
mayor in its medium period to prision correccional in its minimum
period, in addition to his liability for the physical injuries or
damage caused, shall be imposed upon any public officer or
employee who shall overdo himself in the correction or handling
of a prisoner or detention prisoner under his charge, by the
imposition of punishment not authorized by the regulations, or
by inflicting such punishment in a cruel and humiliating manner.
If the purpose of the maltreatment is to extort a confession, or
to obtain some information from the prisoner, the offender shall
be punished by prision correccional in its minimum period,
temporary special disqualification and a fine not exceeding 500
pesos, in addition to his liability for the physical injuries or
damage caused.
2 kinds of maltreatment:
1. Imposing punished not authorized by regulations; or
2. Inflicting authorized punishments in a cruel and
humiliating manner on the prisoner under the charge of
the public officer.
CF. Anti-Torture Law
The prisoner maltreated here must be under the actual charge of
the public officer and not by legal fiction. The offended party
must be a prisoner in the legal sense. The mere fact that the
private citizen has been apprehended by law officers does not
automatically constitute him a prisoner.
The maltreatment –
(1) Must relate to the correction or handling of the prisoner;
or
(2) Must be for the purpose of extorting a confession or of
obtaining some information from the prisoner.
Remember that maltreatment of prisoner is committed when the
prisoner is actually confined either as a convict or a detention
prisoner.
Article 236. Anticipation of duties of a public office. - Any
person who shall assume the performance of the duties and
powers of any public officer or employment without first being
sworn in or having given the bond required by law, shall be
suspended from such office or employment until he shall have
complied with the respective formalities and shall be fined from
200 to 500 pesos.
Article 237. Prolonging performance of duties and powers. -
Any public officer shall continue to exercise the duties and
powers of his office, employment or commission, beyond the
period provided by law, regulation or special provisions
applicable to the case, shall suffer the penalties of prision
correccional in its minimum period, special temporary
disqualification in its minimum period and a fine not exceeding
500 pesos.
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Article 238. Abandonment of office or position. - Any public
officer who, before the acceptance of his resignation, shall
abandon his office to the detriment of the public service shall
suffer the penalty of arresto mayor.
If such office shall have been abandoned in order to evade the
discharge of the duties of preventing, prosecuting or punishing
any of the crime falling within Title One, and Chapter One of Title
Three of Book Two of this Code, the offender shall be punished
by prision correccional in its minimum and medium periods, and
by arresto mayorif the purpose of such abandonment is to evade
the duty of preventing, prosecuting or punishing any other crime.
Under Art 238, oral resignation is not allowed. When you are in
government and you want to resign, you must tender a
resignation.
Elements:
1. That the offender is a public officer;
2. That he formally resigns from his position;
3. That his resignation has not yet been accepted;
4. That he abandons his office to the detriment of the
public service.
Article 239. Usurpation of legislative powers. - The penalties of
prision correccional in its minimum period, temporary special
disqualification and a fine not exceeding 1,000 pesos, shall be
imposed upon any public officer who shall encroach upon the
powers of the legislative branch of the Government, either by
making general rules or regulations beyond the scope of his
authority, or by attempting to repeal a law or suspending the
execution thereof.
Article 240. Usurpation of executive functions. - Any judge who
shall assume any power pertaining to the executive authorities,
or shall obstruct the latter in the lawful exercise of their powers,
shall suffer the penalty of arresto mayor in its medium period to
prision correccional in its minimum period.
Article 241. Usurpation of judicial functions. - The penalty
of arresto mayor in its medium period to prision correccional in
its minimum period and shall be imposed upon any officer of the
executive branch of the Government who shall assume judicial
powers or shall obstruct the execution of any order or decision
rendered by any judge within its jurisdiction.
Article 242. Disobeying request for disqualification. - Any public
officer who, before the question of jurisdiction is decided, shall
continue any proceeding after having been lawfully required to
refrain from so doing, shall be punished by arresto mayor and a
fine not exceeding 500 pesos.
Elements for Art 242:
1. That the offender is a public officer;
2. That a proceeding is pending before such public officer;
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3. That there is a question brought before the proper
authority regarding his jurisdiction, which is not yet
decided;
4. That he has been lawfully required to refrain from
continuing the proceeding;
5. That he continues the proceeding.
Article 243. Orders or requests by executive officers to any
judicial authority. - Any executive officer who shall address any
order or suggestion to any judicial authority with respect to any
case or business coming within the exclusive jurisdiction of the
courts of justice shall suffer the penalty of arresto mayor and a
fine not exceeding 500 pesos.
Article 244. Unlawful appointments. - Any public officer who
shall knowingly nominate or appoint to any public office any
person lacking the legal qualifications therefor, shall suffer the
penalty of arresto mayor and a fine not exceeding 1,000 pesos.
Elements for Art 244:
1. That the offender is a public officer;
2. That he nominates or appoints a person to a public
office;
3. That such person lacks the legal qualifications therefor;
4. That the offender knows that his nominee or appointee
lacks the qualifications at the time he made the
nomination or appointment.
The word “nominate” is different from “recommend.” RULE –
Recommending, knowing that the recommendee has no
qualification, is not a crime.
PP v VILLAPANDO; July 20, 2008 (Judge A stressed to read the
entire case )
SC ruled in favor of the Respondent. It bears stressing that
temporary prohibition is not synonymous with absence or lack of
legal qualification. A person who possessed the required legal
qualifications for a position may be temporarily disqualified for
appointment to a public position by reason of the one year
prohibition imposed on losing candidates. Upon the other hand,
one may not be temporarily disqualified for appointment, but
could not be appointed as he lacked any or all of the required
legal qualifications imposed by law.
Article 245. Abuses against chastity; Penalties. - The penalties
of prision correccional in its medium and maximum periods and
temporary special disqualification shall be imposed:
1. Upon any public officer who shall solicit or make
immoral or indecent advances to a woman interested in
matters pending before such officer for decision, or with
respect to which he is required to submit a report to or
consult with a superior officer;
2. Any warden or other public officer directly charged
with the care and custody of prisoners or persons under
arrest who shall solicit or make immoral or indecent
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advances to a woman under his custody.
If the person solicited be the wife, daughter, sister of relative
within the same degree by affinity of any person in the custody
of such warden or officer, the penalties shall be prision
correccional in its minimum and medium periods and temporary
special disqualification.
Ways of committing abuses against chastity:
1. By soliciting or making immoral or indecent advances to
a woman interested in matters pending before the
offending officer for a decision, or with respect to which
he is required to submit a report to or consult with a
superior officer;
2. By soliciting or making immoral or indecent advances to
a woman under the offender’s custody;
3. By soliciting or making immoral or indecent advances to
the wife, daughter, sister or relative within the same
degree by affinity of any person in the custody of the
offending warden or officer.
Mere proposal is sufficient to consummate the crime. Chastity is
only for women thus, the article would not apply to men.
The lesbian warden may be liable for abuse against chastity
because the law does not provide that the custodian of the
prisoner be a man. It only requires that the offended party must
be a woman.
October 09, 2015
CRIMES AGAINST PERSONS
Art. 246. Parricide. — Any person who shall kill his father,
mother, or child, whether legitimate or illegitimate, or
any of his ascendants, or descendants, or his spouse,
shall be guilty of parricide and shall be punished by the
penalty of reclusion perpetua to death.
Elements:
1. Victim is killed
2. Victim is the father, mother or child, whether legitimate
or illegitimate; or legitimate ascendant or descendant;
or legal spouse of the accused
- Regarded as the highest form of destruction of life
- It is a crime of relationship. Relationship of the victim to the
offender is the essential element
- the father, mother or children may be legitimate or illegitimate.
Only relatives by blood in direct line, except spouse, are
considered in parricide.
- the spouse must be legitimate.
POINTS TO REMEMBER:
1. EXCEPT husband and wife, the offender must be related to
the offended party by blood.
2. The blood relationship must be in the direct line and not in a
collateral line
3. Between the parent and the child, the relationship may be
legitimate or illegitimate. But all other relationships must be
legitimate.
NB: - What if legally adopted child killed by his own adopter? NO
parricide. Not committed even if adoption vests in him all the
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rights and privileges of a legit child. ( So pwede diay patyon no?
Haha) But is it by legal fiction of law you are legitimate? Yes, but
blood relation is NOT established
- Offender must be related to the offended party by BLOOD
except in the husband-wife relationship (no blood relationship
because that would not be a valid marriage, incestuous)
- Such relationship must be in DIRECT LINE and not a collateral
line
- Between parent and child, relationship MAY be legit or
illegitimate; BUT all others, relationship MUST be LEGITIMATE
Q: Andy married Ms. Corpuz but Andy already had a child with
someone else. This child hates Andy because he married another
and not his mother. That child is the son of Andy but what
relationship is that?
A: Illegitimate. So if he kills Andy, that is parricide.
4. Knowledge of relationship is not necessary nor required as
an indispensable element of the crime
Q: What if that child did not know Andy was his father. The son
and Andy courted the same girl and because of jealousy he killed
Andy not knowing he is his father. So is there parricide?
A: YES. Knowledge of relationship is NOT necessary because the
law does not require such as an indispensable element of the
crime of parricide. Even if that son does not know that the one
whom he killed turned out to be his father, IT DOES NOT
MATTER at all
5. Parents and children are not included in the term
“ascendants” or “descendants”
NB: Law mentions ascendants and descendants – it does not
include parents and child because with parent and child, it may
be legit or illegit – but in ASCENDANTS or DESCENDANTS the
requirement is relationship must be that of LEGITIMATE
6. The relationship between ascendants and descendants must
be legitimate.
Q: A is the parent of B, an illegitimate daughter. B married C
and they got a child D. If D, daughter of B and C killed A,
granddaughter of A, is D liable for parricide?
A: NO because of the intervening illegitimacy. The relationship
between A and D is no longer legit hence the crime may be
homicide or murder.
7. The child mentioned in the law must not be less than three
days old otherwise the crime is infanticide.
NB: The mother killed her child to conceal the dishonor is not to
be considered as mitigating in the crime of parricide. It is
immaterial to the crime of parricide unlike in the case of
infanticide. If the child is less than 3 days old and killed it is
infanticide and the intent to conceal dishonor is to considered as
mitigating circumstance.
- When we say person or child under this article, it must not be
less than 3 days old otherwise the crime will be infanticide
Q: Remember mitigating circumstances in Crim 1. What if I killed
my own 5-day old child to conceal dishonour is that mitigating?
A: NO. It is immaterial in the crime of parricide unlike in the case
of infanticide which considers such as mitigating.
8. the spouse killed must be legitimate
NB: Pp v Ignacio
Read PP v. Javier: Answers the Q of what is the best proof of
the marital relationship of the accused and the deceased?
Answer is marriage certificate. There must be a valid subsisting
marriage.
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- Muslim guys can marry 4 times so long as husband can
provide material aspects of these 4 wives ( but what about
the women??)
(Anecdote of his bother in law who converted in order that
2nd marriage be contracted, ewan not connected)
Q: If the muslim husband killed his 1 st wife, will he be guilty
of parricide?
A: Yes.
Q: Ok now assuming he survived and went out of prison and
he contracted 2nd marriage. Or he already has 4 wives before
he killed his 1st wife. What if during the subsistence of the 4
marriages, he killed 1st, OK GUILTY of parricide. Then he
went out of prison, is he still guilty of parricide? What if he
killed all these 4 wives?
A: (obiter dictum of SC) Muslim husbands with several
wives can be convicted of parricide only in case 1 st wife
is killed. No parricide if the other ones are killed even
though such marriages are recognized as valid. Reason:
because Catholic men can only commit this crime only
once. If the Muslim husband can commit this more than
once, in effect he is being punished for the leverage
which the law itself authorizes to contract
- so if the muslim husband kills the 2 nd or 3rd wife, it is now
homicide or murder.
9. Relationship must be alleged in the information.
- If the information did not allege that accused is legally married
to the victim, he can’t be convicted of parricide even if marriage
was established during trial; In such case, the relationship shall
be appreciated only as GENERIC AGGRAVATING circumstance
- the 2000 Revised Rules of Criminal Procedure, it requires that it
must be alleged in the information for it to be appreciated in the
imposition of penalty. However in 2013, the SC held that the
court can use the aggravating or generic aggravating
circumstances that were proven in the trial but not alleged in the
information in the imposition of damages against the accused.
Q: how about a stranger? What if a stranger helps in the
commission of parricide. Is he charged with parricide?
A: No. the stranger is liable for homicide and murder as the case
maybe, because parricide is a crime of relationship. Meaning, if
the husband kills his wife with the aid of another person, the
husband is liable for parricide but the stranger is liable not for
parricide but for homicide or murder.
Q: If I killed my own father and I was being helped by Andy in
committing it. What is the liability of me and the friend? Is it not
that in conspiracy the crime of one is the crime of all?
A: I am guilty of parricide but as to Andy, NO. He will be guilty
only of either murder or homicide as the case may be. Take note,
a stranger who cooperates is not guilty of parricide because it is
a crime of relationship! His participation in conspiring will make
him liable of either murder of homicide as the case may be. The
rule on conspiracy does not apply here because of the personal
relationship to the offender of the offended party. This is cited in
your books, PP v. Patricio
Q: Spouse A (wife) conspired with B (stranger) to kill C
(husband). B did it for a price or consideration. It is actually B
only who killed C. In the killing, he uses treachery. The manner
was made known to A beforehand. What if B used poison to kill
C, and A knew this. Is that aggravating circumstance of use of
poison, to whom would it affect?
A: As far as A is concerned, based on the relationship – it is
parricide. The use of poison is treated only as a generic
aggravating in the crime of parricide because this is not one
crime which requires qualifying circumstance. But what about B?
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“When your resources are down to nothing, believe that God is up to something =)”
If he employed treachery by using poison, he committed murder
and treachery would be the qualifying intervening circumstance.
Another Q: Can parricide be committed by means of CULPA?
A: Yes parricide can be committed by mistake. As I said earlier,
this is demonstrated in the situation where a person wanting to
kill a stranger kills his own father instead. Although the crime
committed is parricide, he will not be punished under 246 but
under 249 with a lower penalty. In relation to article 49 – the
crime intended is different from that actually committed,
remember? Basis of the penalty is the one intended.
So the crime intended is homicide but the actual crime
committed is parricide. While he will be charged of parricide, the
penalty that shall be imposed is not for parricide because under
Art. 49, the penalty to be imposed is based on the crime he
intended.
What if the person intended parricide but actually committed
homicide, what is the penalty to be imposed?
If you based it on Art. 49, crime actually intended from that
actually committed, which is the intended is parricide but the
actual crime committed is homicide, it becomes not beneficial to
the accused. So we do not apply Art. 49. We only apply art. 49
when the crime intended which is homicide but the crime actually
committed is parricide, you will be charged based on the crime
intended. The reason is it is more beneficial to the accused.
Take note ha. Article 365 provides that parricide can be
committed can be committed thru reckless imprudence but
penalty is not 246 but under 365!
Kindly read: PP v. Callago, Aug 18, 1999.
Q: what if the marriage is void initio?
Problem: X and Y are first cousins but despite the objection of
their parents they got married. Their marriage is agaist the law,
public morals and public policy. Thus, the marriage is void ab
initio. X killed Y. Notwithstanding the provision of the law that
parricide is committee by means of dolo or with intention and is
punishble with reclusion perpetua to death, remember that Art.
365 also provides that parricide can be committed thru reckless
imprudence. So parricide is not limited to intentional felony. It
can also be committed through reckless imprudence. Meaning
culpable felony.
- killing of a brother is not parricide.
Ex: Joel and Roger are brothers they quarelled and Joel killed
Roger. Joel is not liable for parricide because even if they are
related by blood, they are not related by direct line but in
collateral line.
Pp v Tibon, June 29, 2010
this involves parricide because he killed his own children. During
trial he presented the defense of insanity. He presented proofs of
insanity. The SC held the conviction of parricide.
Pp v Roy San Gaspar, GR # 180496, April 02, 2014
- the defense of the appellant here is that he shot his wife with a
shot gun by accident. SC held parricide since the shot gun will
not go off without it being loaded, thus it is impossible for the
shot gun to fire on its on. It needs the trigger to be switched.
Article 247.Death or physical injuries inflicted under exceptional
circumstances. —Any legally married person who having
surprised his spouse in the act of committing sexual
intercourse with another person, shall kill any of them or
both of them in the act or immediately thereafter, or
shall inflict upon them any serious physical injury, shall
suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other
kind, he shall be exempt from punishment.
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These rules shall be applicable, under the same
circumstances, to parents with respect to their daughters
under eighteen years of age, and their seducer, while the
daughters are living with their parents.
Any person who shall promote or facilitate the
prostitution of his wife or daughter, or shall otherwise
have consented to the infidelity of the other spouse shall
not be entitled to the benefits of this article.
Elements:
1. Offender is a legally married person
2. Surprised his spouse in the act of committing sexual
intercourse with another person
3. Inflicts serious physical injury or he kills any of them or
both of them
4. Does so during the act of sexual intercourse or
immediately thereafter
- Take note, this article does not define a felony. It
merely grants a privilege or benefit to an offender who
inflicts injury to another because of marital infidelity.
- There is no crime as to death or physical injuries
committed under exceptional circumstance. The spouse
who kills the other for infidelity and is charged for
homicide or murder. So pwede ma-charge ug homicide
or murder but not under art.247. The circumstances
under art. 247 need not be stated in the information
since they are not elements of a crime.
2 stages before Art. 247 applies:
1. RULE: you do the killing or serious injuries during the act of
sexual intercourse or immediately thereafter.
- When the offender spouse surprises the other with the
paramour or mistress, the attack must take place when the
the sexual intercourse is going on. If the surprise is before
or after the intercourse or one immediately thereafter be,
Art. 247 shall not apply. The offender only gets the benefit
of mitigating circumstance which is sufficient provocation to
proceed with the act. This stage is very strict but there is a
stray case based on the case of Pp v Abarca.
- 247 does not provide that the victim to be killed instantly by the
accused after surprising in the act of intercourse. What is
required is that the killing is the PROXIMATE RESULT of the
OUTRAGE overwhelming the accused upon discovery of spouse’s
infidelity. Killing should be actually motivated by the same
(blind?) choice?
- PP v. Abarca, 1987: Abarca is a barrister. Wife had illicit
relationship which apparently started way back 1983 while he
was reviewing for bar. 1984 the husband left to fetch his
daughter somewhere in eastern Samar. However he was not able
to take the trip because naguba ang bus so nibalik sya. He went
to his father’s house. Then after he returned to his home and he
saw wife and paramour having sexual intercourse. Wife noticed
accused, she pushed paramour to get his revolver prompting the
accused to run away. Paramour ang nay dala nga baril . Accused
went to Tacloban and got an m16 belonging to a soldier. He
returned to his house but no one was there. He proceeded to the
hang out of the paramour, paramour was playing mah-jong. He
fired to the paramour who died instantaneously. Sps. Amparado
who were there were hit too because of the firing of the accused.
So Abarca was prosecuted for the death of the paramour, and for
the injuries inflicted to the Sps. Amparados.
Ruling: 247 applies in the instant case. 1 st, victim was in the act
of illicit copulation with his wife. As a result of which he went out
to kill the deceased in the fit of passionate outburst. All elements
are present in this case.
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“When your resources are down to nothing, believe that God is up to something =)”
RTC in convicting him of murder therefore erred. Time passed
between the time accused discovered his wife having sex with
victim and the time the latter was shot must be understood to be
the continuation of the pursuit of the victim by the accused-
appellant. RPC does not say “instantly” but use the phrase
“immediately thereafter”. It only requires that the death is the
proximate result of the outrage overwhelming the accused after
chancing upon his spouse in the act of infidelity. It must have
been actually motivated by the same blind impulse and must not
be influenced by external factors. Killing must be the direct
byproduct of the accused’ rage.
So 247 with the paramour. How about the injuries sustained by
Amaparados? Neither is he liable for frustrated murder filed by
the Amparados. He did not have the intent to kill them. Although
as a rule one committing an offense is liable for all the
consequences of his act, that rule presupposes that the act done
amounts to a felony which is NOT so in this case. This does not
mean however that accused is totally free from any
responsibility, granting that he was not performing illegal acts
when he fired those shots he cannot be said to be entirely
without fault. The warning words he uttered before firing at the
victim is not enough a precaution to absolve him for the injuries
sustained by the Amparados hence, he is liable under 1 st
paragraph of article 365 that is less serious PI through simple
imprudence or negligence.
Ruling is actually dangerous. Remember there was time gap? He
afforded to go to Tacloban to get a gun. I will not rely on this
ruling. Admittedly there is no hard and fast rule on the concrete
definition of “immediately thereafter” should be, but if I were you
if you are asked in the bar, be contended with the idea that
“immediately thereafter” does not mean “in the act” probably a
continuation or a hot pursuit, but not that of so many hours.
2nd Stage: when the offender kills or inflicts serious physical
injuries upon the spouse or paramor while in the act of sexual
intercourse or immediately thereafter, that is after surprising.
Therefore the issue is: W/N the spouse surprising the other
spouse while the intercourse is taking place and W/N the killing
or inflicting of serious PI was during the time or immediately
thereafter.
Q: What do you mean by “immediately thereafter”?
JRAA: For me, the phrase immediately thereafter means that the
discovery, escape and pursuit and the killing must form part of
one continuous act. In several ruling of the SC of Art. 247 the
phrase “immediately thereafter” has been interpreted to mean
that between the surprising and the killing or the inflicting of the
physical injuries there should be “no break of time” if we go by
the very strict interpretation of the law. In other words, it must
be a CONTINUOUS PROCESS. If there is already a break of time
between the sexual act and killing or inflicting of the injury, the
law presupposes that the offender has already regained his
reason and thus the article does not apply if there is a break of
time.
What would “constitute break of time”?
JRAA: based on Pp v Abarca and the definition given, a break of
time would constitute a day after or there is a lull of time where
the offender has control of his reason.
NOTE: for Art. 247 to apply, the presumption is that the offender
is surprised by his wife or her husband in the actual sexual
intercourse and that he/she was overcome by passion and
obfuscation. The law affords protection to the spouse who is
considered to have acted out of justified outburst or passion or in
the state of mental disequilibrium that the spouse has no time to
to regain his self- control.
Difference of the 2 stages:
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1st stage- does not admit of any situation less than sexual
intercourse. So if acted before he saw the actual intercourse, he
cannot invoke Art. 247.
Example, if pag- uli nimu karon makita nimu imung asawa
kakissing imung bestfriend, hulata sa naay mangyari bago patya.
(story about her family friend in Toril)
- surprise must be at the moment of sexual congress. If it
is just about to take place or have just occurred, art.
247 cannot be invoked.
- It must be innocent spouse that must be surprised not
the other way around. It should also be the innocent
spouse who inflicted injury out of his/ her reaction that
the sexual intercourse is taking place and caught them
in the act.
- If the surprise occurred after the sexual intercourse has
finished and that there is no other conclusion but that a
sexual intercourse was had, the article does not apply.
nd
2 stage becomes immaterial when the surprise took place
when the sexual intercourse was going on. It is the killing or
inflicting serious physical injuries while the sexual act, no
problem. But if it was done after the sexual intercourse,
questions. 1) were they surprised during the actual sexual
intercourse? 2) were they killed immediately thereafter?
Example. When the offender finds his spouse in actual sexual
intercourse with another. The latter escapes with the offended
spouse in hot pursuit. The offender inflicts SPI or kills the other
party without interruption or interval of time.
Andy found his wife inside their bedroom having sexual
intercourse with another man. Unya nangita pa man syag
sanggot because of the paramour was alerted and he went out
and ran. Andy pursued the paramour and in pursuing he killed
the paramour, is he liable? YES. Andy is liable. Do not think that
you are not criminally liable. You are, but the law gives you a
reprieve or a privilege but it cannot be considered an absolutory
cause. Do not say walay problema na kay dli ko ma-liable wrong!
You are liable in fact you are convicted and you will suffer
destierro and destierro is a penalty ina crim offense.
- In one case the husband saw his wife responding blissfully to
the embrace and kisses showered to her by an amorous lover.
The husband waited patiently for them to have carnal knowledge
before attacking them with deadly weapon and inflicted upon
them SPI. SC granted the husband the privilege of article 247. So
meaning ma’am hulaton jud nako? Yes! Hulata! Para “in the act”!
- This is not limited to husbands. It also applies to wives. If
we find you with the katabang, article 247.
- This is to be interpreted strictly against the accused because as
I said, this is a privilege. Now in the case of PP v. Gonzales, SC
denied the accused of this privilege under 247 on the rationale
that such is granted is conditioned on the requirement that the
spouse surprised the husband or wife in the act of committing
sexual intercourse with another person. Accused here in this case
saw his wife not in the very act but AFTER the act, if any such
there was. Because the fact that she was rising up and the man
was buttoning his drawers does not automatically follow that the
man and woman had committed carnal act. ( SOBRA NAPUD! So
nag-unsa diay to sila?) Justice Laurel made a dissenting opinion:
To require performance of carnal act before offended spouse
could raise this is to require the impossible in the majority of
cases. Accordingly the words “in the act” should not be invariably
given a literal (or liberal?) interpretation but must be subjected
to the rigid judicial scrutiny to prevent abuse but not to constrain
the legislative rationale. I agree with this dissent.
- Take note: 247 is applicable, for me ha, even if when the
accused did not see the spouse in sexual intercourse with
another. It is enough that the circumstances reasonably show
that the carnal act has been committed. For example: Both are
naked. Ah dli walay 247 kay dli man in the act!
142
“When your resources are down to nothing, believe that God is up to something =)”
- PP v. Cabalhin (?) March 28, 2004. Take note: If you are the
accused, see to it na klaro ang facts ba. He surprised them in the
house of the paramour, my wife’s back was lying, paramour was
on top of her, her legs were spread out, and he was making
push and pull. But court did not believe in this story. Court noted
that wife was still all dressed up. Man was naked on top but was
with pants. So that would defy his explanation. How can he push
and pull na nakapantalon pa sya?
- It is enough that husband or wife surprised them under such
circumstances that no other reasonable conclusion can be
incurred but that a carnal act was performed or has been
committed
Q: What about Andy saw Ms. Corpuz his wife having some
preparatory act, smooching, foreplay, with Robin Padilla. Out of
that, because of rage he killed them instantly. Can he invoke
247?
A: No because there was no sexual intercourse yet. Padulong pa
man. Huwata! Habang nagintercourse or pagkahuman
intercourse pede pud immediately therafter if you have the guts
to wait. Or pede ka muingon nga “pede mujoin?” hahaha.
Meaning imong bantayan ug nag-coitus na? Aw ayaw pud. So
humana na sila after 5 minutes, o pede na kay immediately
thereafter.
Parties are on their preliminaries. You cannot invoke this article.
Immediately thereafter: Act of discovery, escape, pursuit and the
killing/inflicting of injury must form 1 continuous act. This
phrase has been interpreted to mean that there should be NO
break of time from the sexual act to the killing. But remember in
Abarca? Dangerous. There was a break of time. Maybe the
decision of the SC was more of compassion and mercy to a
fellow would-be lawyer who suffered infidelity on betrayal of his
wife. As I’ve said we cannot rely on this so much, because in
many instances the SC assumed that “immediately thereafter”
must be interpreted that between the surprising in sexual act and
the killing/PI there should be NO break of time. If there was
already a break of time, the law presupposes that the offender
already regains his reason therefore this article will not apply.
The Abarca ruling will be considered a stray decision.
- If you caught your love one in an extraordinary circumstance
with a man not you, happy diay ka? Of course you will be mad.
Similar in article 13, mitigating, passion or obfuscation.
- A person who is under 247 is not committing a crime although
a penalty is committed. Ortega and Reyes (books) would say that
it actually is more for the benefit of the accused. He is sent out,
removed or not to enter a particular distance in order to protect
him from the rage of the relatives of the victim
- However, the accused must first be charged with either
parricide if spouse is killed, murder or homicide depending how
the paramour or mistress is killed or PI through reckless
imprudence if 3rd party is injured
- If death results or PI are serious, there is criminal liability
although penalty is only destierro. And banishment is intended
more for the protection of the offender rather than penalty. Now
if crime committed is less serious or slight PI there is no criminal
liability. The problem with some women who have caught their
husbands in the act of infidelity ang buhaton sa mga gunggung
nga mga asawa ang kabit ray maoy ialng awayon dli hilabtan
ang mga bana. That’s why I tell my staff, wa juy medisina sa
tanga mayo pa ang buang
Article 248.Murder. - Any person who, not falling within
the provisions of Article 246 shall kill another, shall be
guilty of murder and shall be punished by reclusion
temporal in its maximum period to death, if committed
with any of the following attendant circumstances:
1. With treachery, taking advantage of superior
strength, with the aid of armed men, or employing means
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to weaken the defense or of means or persons to insure
or afford impunity.
2. In consideration of a price, reward, or promise.
3. By means of inundation, fire, poison, explosion,
shipwreck, stranding of a vessel, derailment or assault
upon a street car or locomotive, fall of an airship, by
means of motor vehicles, or with the use of any other
means involving great waste and ruin.
4. On occasion of any of the calamities enumerated
in the preceding paragraph, or of an earthquake,
eruption of a volcano, destructive cyclone, epidemic or
other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly
augmenting the suffering of the victim, or outraging or
scoffing at his person or corpse.
One of the qualifying circumstance for one to be called as
murder is the presence of treachery.There is so many qualifying
aggravating circumstance under art. 248.
There is treachery when the offender commits any of the crimes
against the person employing the means, methods or forms in
the execution thereof that ensure the execution without risk to
themselves.
The essence of treachery is that the offended party must be
denied of the chance to defend himself because of the means,
methods or forms in the execution of the crime deliberately
adopted by the offender. It is a matter W/N the offended party
wa denied of the chance to defend himself.
Ex. X attacked Y from behind. He stabbed Y for 3 times. Y died.
The liability here is murder since he was attacked from behind
thus Y was not in the position to defend himself.
What if Y suffered from a less serious injury, then the liability will
only be for attempted murder but if X inflicted a mortal wound
and but does not produce the death of the victim for causes
independent of the will of the perpetrator then it is frustrated
murder.
X and Y were having casual conversation but suddenly X swiftly
stabbed Y which immediately killed him. It is murder since even
if Y was in the position to defend himself the attack was so
sudden and swift that he was not able to defend himself and that
X employed it by means to execute it to ensure that he kills Y
without the risk to himself.
When must treachery be present?
when the aggression is continuous, treachery must be
present from the beginning of the assault. (pp v manatad,
aug 14, 2002)
- treachery as a qualifying aggravating circumstance is only
applicable to crimes against persons.
- the essence of treachery is the sudden and unexpected attack
by a non- aggressor or unsuspecting victim without any chance
of defending himself. It lies on the outcome which comes without
warning and is swift, unexpected, deliberate and affords no time
for the unsuspecting victim to resist or exist. For treachery to
exist, the conditions must be found that
1. at the time of the attack the victim was not in the position to
defend himself
2. the offender consciously adopted a particular means, methods
or forms to ensure the result.
The two must concur for treachery to exist.
143
“When your resources are down to nothing, believe that God is up to something =)”
- Except outraging or scoffing at his person/corpse, all are found
in article 14 which defines aggravating in general. Not all 21
circumstances in article 14 will not qualify for murder. So if what
is alleged in the information to qualify killing to murder is ‘night
time’, then the offender cannot be convicted for murder for the
simple reason that ‘night time’ is not one of those enumerated in
248. The court should appreciate ‘night time’ as generic
aggravating circumstance
- Remember the distinctions between ordinary aggravating and
qualifying aggravating. That was taken care of in Crim 1; In the
crime of murder, you have to associate knowledge of the true
meaning of generic, inherent, specific and qualifying
circumstance. You have taken that up
- More often the information charging someone of murder alleges
several qualifying circumstances to qualify it to murder.
Kasagaran mubutang ang prosecutor with treachery, grave abuse
of superior strength, but actually 1 circumstance is enough to
qualify it. Pero to be sure, daghanon kay basi mahulog ang isa.
Para ug mahulog naa pay isa pa (Dean Inigo: Reach for the stars
because if you fall you end in the tree tops. If you reach for the
tree top, you would fall in the ground. I followed it by heart. Mao
mag 3 readings jud ko)
Q: As I’ve said when all are established in trial 1 is enough to
qualify killing to murder. In the meantime, what happens to the
other qualifying circumstances found to be present in the
commission of the crime?
A: They lose their nature as qualifying, and will reacquire their
original nature as generic aggravating circumstance only. This
transformation is not meaningless. Legal significance is apparent.
They can now be off-set with any ordinary mitigating
circumstances
- We cannot talk of murder when nobody dies
Police: Frustrated murder ma’am. Judge: Asa ang biktima?
Police: Patay na. Pusang-iring!
Victim must be killed in order that murder be consummated.
Otherwise, it is either frustrated or attempted in accordance with
article 6
- Let’s take the 1st qualifying circumstance:
- There is treachery when offender commits any of the crimes
against the persons employing means, methods or forms in the
execution thereof to ensure his execution without risk from
himself arising from the defense which the offended party might
make.
This circumstance involves means, methods and forms which
may actually be an aggravating circumstance also in which case,
treachery absorbs the same.
The essence of treachery is a deliberate and sudden attack
according the helpless and unsuspecting victim no chance to
resist or to escape. Attacks from behind are generally
treacherous. Dli man kabantay. But there are instances when the
attack is from behind but there is no treachery. There are also
frontal attacks which are treacherous, if it is sudden and
unexpected giving no opportunity to repel it or offer any defense
to the victim. Treachery may be appreciated even if the victim is
forewarned of the danger to his person. What is decisive is that
the execution of the attack made it impossible for the victim to
defend himself or to retaliate. This is the ruling under PP v.
Pidoy, 2003 and PP v. De Guzman, 2003.
What if the person killed is a minor child and there is no showing
that it was attended with treachery?
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A: Pp v Alovera 415 SCRA 457, “the killing of minor children by
reason of his tender years could not be expected to put up a
defense and thus considered to be attended by treachery even if
the manner of attack was shown. Treacher must be appreciated
in favor of the child even if the manner of attack was not shown
that the adult who causes it intended it with treachery.
As a matter of rule, treachery must be proven by the
prosecution. It cannot be presumed. Thus, if the prosecution
filed for murder qualified by treachery but wasn’t able to prove
treachery, then it can be that the conviction will only be for the
simple crime of homicide.
If the killing is proceeded with a quarrel between the victim and
the accused, it cannot be said that there is treachery because
each of the protagonist is “part” of an impending attack.
Treachery can exist even if the attack is frontal if it is sudden,
swift, deliberate and unexpected giving no opportunity for the
victim to defend himself.
RULES WHEN THE ATTACK IS FRONTAL:
there is no treachery if the mode of attack does not exclude risk
to the offender arising from the defense which the party attacked
has been made
there is treachery even frontal if the attack is sudden, swift and
unexpected and perpetrated to ensure the due execution without
risk to the offender
- A person who is determined to kill did it on night time in
darkness to ensure killing. Nocturnity becomes a means that
constitutes treachery so that the killing becomes not homicide
but murder. But if nocturnity is considered by itself, it is not 1 of
those which qualifies homicide to murder. So one might think
that such killing homicide unless nocturnity is considered as
constituting treachery. To reiterate: Essence of treachery is that
offended party is denied the chance to defend himself, then
there is treachery and killing is qualified as murder.
If despite the means resorted to by the offender the offended
party was able to put up a defense, offender is unsuccessful,
then treachery is not available. Instead some other circumstance
may be present.
- If offender used superior strength and victim was denied a
chance to defend himself, there is treachery. Treachery must be
alleged in the information. BUT if the victim was able to put up
successful resistance, there is no more treachery but the use of
superior strength may be alleged and this still qualifies this to
murder.
One attendant qualifying aggravating circumstance enumerated
in 248 is enough to constitute it to murder. If there are more
than 1, then only 1 will be taken as qualifying and all others will
be taken as ordinary mitigating.
All aggravating circumstances must be alleged in the information.
Q: 3 young men resented the fact that the victim continued to
visit a girl in their neighbourhood despite the warning they gave
him. Bullies. So 1 evening after victim visited the girl, they tied
him both arems and legs tied around the tree, they thought
they’d give him a lesson by whipping him with branches of
gumamela. They left him not knowing he died. What was the
crime committed?
A: Murder because the accused deprived the victim the chance to
defend himself in tying him to the tree. Treachery refers to the
manner in committing the crime. No more risk on the parts of the
accused to inflict injuries to the victim, because the latter’s hands
and legs were tied.
Although what was initially intended was only to inflict PI, the
manner adapted by the accused was treacherous and since the
victim died as a consequence the crime is murder. When the
victim is already dead, intent to kill becomes irrelevant. It is
important only if the victim did not die to determine if the felony
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“When your resources are down to nothing, believe that God is up to something =)”
is PI or attempted murder/homicide or frustrated
murder/homicide.
Now, what is alleviosa or evident premeditation?
the victim must be pre- determined and alleviosa can still apply
even if the victim was not pre- determined but there was a
generic intent to kill any person belonging to a class.
Allevosia is still considered even if there is iberatio ictus and
the bullet hit an unintended person. It is even considered
even if there is error in personae.
Another qualifying circumstance is taking advantage of superior
strength.
it means to use deliberate excessive force that is out of
proportion to the means of self- defense avaible to the person
being attacked.
For it to be appreciated, the age, size and sex of the parties must
be considered. It must be that the offender took advantage of
his size,age and sex to the commission of the crime.
It is absorb in treachery.
READ:
Pp v Cañaveras GR # 193839, nov 27 2013
Pp v Charlie Fieldad GR # 196005, oct 1 2014
(Continuation of PEOPLE vs. CAÑAVERAS, NOVEMBER 27,
2013) “We have had occasion to rule that treachery is not
present when the killing is not premeditated, or where the
sudden attack is not preconceived and deliberately adopted, but
is just triggered by a sudden infuriation on the part of the
accused as a result of a provocative act of the victim, or when
the killing is done at the spur of the moment.” So we cannot
appreciate there treachery though the accused is charged for
murder and the Supreme Court said no it should only be for
homicide.
“In this case, there was no time for appellant and his
companions to plan and agree to deliberately adopt a particular
means to kill Claro. The first query of Claro was regarded as
innocent enough and was given no attention. It was the second
query that was considered impertinent, and witnesses testified
that appellant and his companions went after Claro immediately
after it was uttered. Even the choice of weapon, a beer bottle
readily available and within grabbing range at the table as
appellant followed outside, shows that the intent to harm came
about spontaneously.” Spur of the moment lang.
“Superiority in number does not necessarily amount to
the qualifying circumstance of taking advantage of superior
strength. It must be shown that the aggressors combined forces
in order to secure advantage from their superiority in strength.
When appreciating this qualifying circumstance, it must be
proven that the accused simultaneously assaulted the deceased.
Indeed, when assailants attack a victim alternately, they cannot
be said to have taken advantage of their superior strength.”
PEOPLE vs. FIELDAD, ET AL., OCTOBER 1, 2014 – This
involves mga detainees. They killed the jail guards. Inmates
killed the jail guards inside the jail. After killing them, inmates
fled using a tamaraw fx then parked outside of the jail without
the consent of the owner. Fieldad argued that treachery should
not be appreciated because jail guards are presumed to be in
danger of attack always by nature of their duties. Ang charge sa
ila is murder, no qualifying circumstance of treachery so dapat
homicide lang daw.
The Supreme Court here upheld the decision of the RTC
convicting the accused of the crime of murder. Wala pay labot sa
carnapping case because as the facts would tell us the inmates
fled using a tamaraw fx then parked outside of the jail without
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the consent of the owner. So aside from the murder case, they
were also charged and convicted of carnapping in so far as the
tamaraw fx is concerned.
Now another qualifying circumstance under Art. 248 is killing by
means of motor vehicles, etc. This provision is intended to
repress the frequently used means of criminals to commit the
crime and to ? after the crime is committed. The circumstance of
use of motor vehicle is aggravating when the motor vehicle is
purposely used to facilitate the commission of the crime.
Problem: X who was riding on a motorcycle shot Y who was in a
company with friends jogging at the athletic ?. What crime did X
commit? Answer: X committed the crime of murder. He used a
motor vehicle as a means to kill – would make a qualifying
aggravating circumstance.
Problem: X killed Y in the course of a fire. After killing Y, X
escaped with the use of his motor vehicle. What crime did X
commit? Answer: X committed the crime of homicide only. X
used a motor vehicle to facilitate his escape and not as a means
to facilitate the commission of the crime.
Now, the use of motor vehicle is not aggravating where the use
thereof is only incidental and was not purposely sought to
facilitate the commission of the offense or to render the escape
of the offender easier and his apprehension difficult. (PEOPLE
vs. ASTUDILLO, 401 SCRA 723)
There was one ruling by the Supreme Court where the accused
used his Toyota Fortuner para ligsan niya ang tao. It was found
that he deliberately used the Fortuner para iyang mabangga-an
ang tao. The Supreme Court said that the crime cannot just be
simple reckless imprudence resulting to homicide, it should be
murder.
2. In consideration of a price, reward or promise – This qualifying
aggravating circumstance affects not only the person who gave
the price, reward or promise (principal by inducement) but also
the person who received it (principal by direct participation).
Example: Susan induced Bryan to kill Raymond. She promised to
marry Bryan if the latter would do the act. So Bryan killed
Raymond. Both Susan and Bryan are liable for murder because of
the qualifying aggravating circumstance of a promise. It is
indispensable that the inducement made be ? by a consideration
for the commission of the crime.
3. By means of inundation, fire, poison, etc. –
When the qualifying circumstance is the use of fire, what various
crimes may result? You have to qualify:
- If the use of fire is as a means to conceal the killing such as
burning the nipa hut where the victim’s corpse was buried, 2
separate crimes are committed: homicide and arson. You cannot
say that Art. 48 will apply if one crime is committed to conceal
another crime or if one crime is committed directly to commit
another crime. One for murder/homicide as the case may be and
the other one would be for arson. No complexing.
- If the use of fire is as a means to kill. Gi tapok nimo sila tanan
sa nipa hut. Kapoy man sila tuk.on isa isa so daoban na lang
nako ang balay. As a result, everybody inside was killed. The
crime committed is murder. Even if the property was burned,
there is no arson because you used fire to commit the killing.
- To burn a house but there is somebody inside and he was
killed, wala ka kabalo ha, arson is aggravated by homicide (?).
- If it is resorted to as a joke but death resulted, the crime
committed is only homicide because in murder, the use of fire
must be purposely resorted to in order to kill the person/must
have acted with specific intent to kill by means of fire to qualify
the killing to murder.
145
“When your resources are down to nothing, believe that God is up to something =)”
PEOPLE vs. PUGAY AND SAMSON – There was a town fiesta
and the 2 accused were at a town plaza with their companions.
All was uproariously happy and apparently drenched with drink.
Then the group saw the victim, a 25-year old retarted, walking
nearby. They started making fun of him. They made the victim
dance by tickling him with a piece of wood. Having gotten bored
with their form of entertainment, accused Pugay went and got a
can of gasoline and poured it all over the retarted. Then the
accused Samson lit him up, making him a frenzied shrieking
human-torch. The retarded died. The SC said Pugay was guilty of
homicide through reckless imprudence while Samson was only
guilty of homicide with the mitigating circumstance of no
intention to commit so grave a wrong as that committed. It was
because there was no animosity between the 2 accused and the
victim such that it cannot be said that the resort to fire will kill
him (?). I will hold you responsible for reading this case.
Bar Question: Gagging the mouth of a 4-year old and dumping
him into a box covered with sacks causing suffocation and death
of the child is cruelty. There is also cruelty when the eye of a
child is extracted from its socket or when the face and the mouth
of a child are burned.
Judge talked about an example of cruelty where the accused
injured the victim and since he was not contented, he put salt
and vinegar on the wound of the victim. The victim was in pain
and died. The crime is murder because the accused deliberately
and inhumanly augmented the suffering of the victim. (Sorry
paspas kaayo nagsturya si judge dili nako ma apas ang exact
words niya )
Cruel wounds must be inflicted while the victim is alive. So under
the law, if cruelty was committed to augment the physical
suffering of the victim who eventually dies, the crime is
catapulted to the crime of murder. But there must be evidence
though that when the cruel wounds were inflicted, the victim was
still alive. Otherwise, cruelty will not apply. Why? Because a dead
person cannot experience physical suffering anymore.
Now what about scoffing or decrying the corpse of the dead.
Example: A and B fought. In the course of the fight, A killed B. At
this point in time, A is liable for homicide because there is no
qualifying aggravating circumstance that would catapult the
crime to murder. If after killing B, A beheaded the victim and ?
into the brick then the crime could be murder because that act is
tantamount to scoffing at the corpse of the dead. Also when you
have anal intercourse with a dead woman.
SIMANGAN vs. PEOPLE, JULY 8, 2004 – Is the number of
wounds inflicted on the victim conclusive proof of cruelty? No.
“The crime is not aggravated by cruelty simply because the
victim sustained ten stab wounds, three of which were fatal. For
cruelty to be considered as an aggravating circumstance, there
must be proof that, in inflicting several stab wounds on the
victim, the perpetrator intended to exacerbate the pain and
suffering of the victim. The number of wounds inflicted on the
victim is not proof of cruelty.”
Sec. 25, RA 9165. Qualifying Aggravating Circumstances in the
Commission of a Crime by an Offender Under the Influence of
Dangerous Drugs. – Notwithstanding the provisions of any law to
the contrary, a positive finding for the use of any dangerous
drugs shall be a qualifying aggravating circumstance in the
commission of a crime by an offender, and the application of the
penalty provided for in the Revised Penal Code shall be
applicable.
So if you are found under the influence of drugs at the time of
the commission of the crime then what would constitute as a
qualified aggravating circumstance.
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(Taken from 2012 Class TSN)
- If the victim is a child of tender years? It is murder qualified by
treachery because weakness of the child due to tender age
results in absence of any danger to the offender.
- Price, reward and considerations are absorbed under evident
premeditation.
- Abuse of superior strength is inherent in treachery of all forms.
Treachery is all-embracing!
- Poison is also treachery.
PEOPLE vs. FELICIANO ET AL., MAY 5, 2014 – Remember
under Art. 14 of the RPC, the aggravating circumstance of the
use of masks to disguise? So ano yan? There was a frat war.
During the course of the attack, members of the fraternity were
wearing masks. As what we have learned, of course wearing a
mask in the commission of the crime would constitute disguise.
This is one of the qualifying aggravating circumstances taken up
in the course of the trial. The contention of the accused is while
it is true that we wore masks at that time when we mauled these
people, uban injured uban patay jud, it (the mask) fell off; it did
not serve its purpose.
The SC said when you say disguise the intention is to
remain anonymous and unidentifiable as you carry out the crime.
“That the masks fell off does not prevent them from including
disguise as an aggravating circumstance. What is important in
alleging disguise as an aggravating circumstance is that there
was a concealment of identity by the accused.” So even if the
masks, in the course of the commission of the crime, fell off and
your identity was later on learned it does not erase the fact that
you still used disguise in the commission of the crime.
Now Art. 249. How do you distinguish homicide from physical
injuries?
In homicide, just like murder, the offended party must
die in order to consummate the crime. So if the victim did not
die, what will be the crime? Attempted or frustrated homicide as
the case may be. In attempted or frustrated homicide, the
offender must have the intent to kill the victim. The offender
must perform acts in relation to the crime. If there is no intent to
kill, he is not liable for attempted or frustrated homicide but only
for serious or less serious physical injuries.
Take note that even if there is no intent to kill, but
death resulted from the injuries inflicted, still it is homicide. It
can’t be physical injuries because someone already died. The law
looks at the results of the acts of the offender and holds him
liable for all the consequences of the said acts.
Intent to kill is conclusively presumed when death
resulted. Hence, evidence of intent to kill is required only under
attempted or frustrated homicide because if it is homicide in its
consummated stage, intent to kill there is already presumed.
Alright, RA 8294 has already been amended by RA 10591 which
we have already taken up. (Judge said she will email her
handouts on this topic.)
Now let’s go to Art. 251. What is contemplated here is a
confrontation between several protagonists. The word several
means more than 3 persons who are armed or who are provided
with means of violence who participated in the affray.
Tumultuous affray is a legal concept which means that the
assault was attended by at least 4 armed persons.
When a quarrel of force between several persons not composing
organized groups and they engage in a fight in a confused and
tumultuous manner in the course of which some persons were
killed or wounded and the author thereof CANNOT be
ascertained. It’s a free-for-all rumble kung kinsa ang last touch
or who delivered the fatal blow. So if it can be ascertained, who
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actually killed the deceased, then we do not apply tumultuous
affray - Art. 251. So the charge will be based on homicide – Art.
249. If there is a concerted fight, Art. 251 is likewise not
applicable.
Example: There was a free-for-all fight. After the smoke of battle
has cleared, X was seen on the ground lifeless. It cannot be
ascertained who killed him. But a witness identified Y as the
person who inflicted serious physical injuries upon X. Y is liable
for death caused in a tumultuous affray. The last catch ka eh.
Last catch ka because you inflicted serious physical injuries.
What if somebody died in the fight but he is not a participant, na
collateral damage lang, will Art. 251 apply? Yes, because the law
says someone is killed. Who are liable here? The one who are
liable are the person/s who inflicted serious physical injuries if it
is not known who killed the victim under paragraph 1 or the
persons who used violence upon the person of the victim under
paragraph 2.
Summary for Article 251
1. To be considered dead there must be a quarrel, a free for all
fight, which should not involve organized group.
2. Someone was injured or killed because of the fight determined
When there are two persons who assaulted each other Article
251 cannot be applied. There can be no tumultuous affray there.
The person killed in the tumultuous affray need not be a
participant in the fight. If the participant in the affray can be
identified he can alone is liable for death or serious physical
injuries.
Article 252. Physical injuries inflicted in a tumultuous
affray. - When in a tumultuous affray as referred to in the
preceding article, only serious physical injuries are
inflicted upon the participants thereof and the person
responsible thereof cannot be identified, all those who
appear to have used violence upon the person of the
offended party shall suffer the penalty next lower in
degree than that provided for the physical injuries so
inflicted.
When the physical injuries inflicted are of a less serious
nature and the person responsible therefor cannot be
identified, all those who appear to have used any
violence upon the person of the offended party shall be
punished by arresto mayor from five to fifteen days.
Elements:
(1) There is a tumultuous affray;
(2) A participant or some participants thereof;
under Art 251, the victim need not be a
participant in the fight.
suffered serious physical injuries or physical
injuries of a less serious nature only;
(3) The person responsible thereof cannot be
identified;
(4) All those who appear to have used
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violence upon the person of the offended X is inflicted with cancer and he became too weak. One day he
party are known. asked his friend Y to buy poison for him. Out of pity Y bought
the poison. X swallowed the poison and died. This is #1 assisting
Article 251 Article 252 another to commit suicide.

Death would be caused Only PI is The crime can be committed by giving a positive aid which
in a tumultuous affray inflicted
includes giving suggestions regarding the mode of committing
suicide. Example, a W suggested to X to use an overdose of
Must be one or medicine. X took the advice and died. W can be held liable for
some of those giving assistance to suicide.
The victim need not be involved in the
one of the participants quarrel
What if X took the advice but did not die. He was cured instead.
He can be held liable for giving assistance to suicide. The act of
giving an advice is included in the definition of the law.
A free for all fight took place during the Christmas celebration.
After the fight subsided, X was seen on the ground with a serious
’09 BQ. Mark and Leslie are sweethearts. Their parents did not
injury or less serious injury. The person who inflicted the injury
approve of it because they are cousins. To prove how much they
cannot be identified but the person who used violence upon
love each other mark and Leslie decided to commit suicide. They
him (if he can be identified) will be charged with physical injuries
did it simultaneously. Leslie died while mark survived. What
in a tumultuous affray.
crime did mark commit? Giving assistance to suicide. Leslie was
determined to commit suicide and mark assisted in the execution
What about slight physical injuries lang? There’s no such thing as
thereof.
slight physical injuries inflicted in tumultuous affray. It should be
serious or less serious.
Brono was a government employee. He malversed funds
amounting to 15M. Brono decided to commit suicide so he asked
In this case, the offender cannot be identified or is not known.
his friend Mars to assists him. Mars agreed by squeezing the
The law provides an alternative solution to the problem. The
trigger of the gun which Brono pointed to his head. Brono
authorities may identify the identity of the person who inflicted
survived. Mars was charged of frustrated giving assistance to
PI to the victim. Once these persons are identified, they shall be
suicide. Was the charge correct?
charged under 252, and suffer a penalty one degree lower than
that imposed upon in the crime of PI.
No, Whether the person who asked for his assistance died, the
one who gave the assistance is liable for the crime of giving
Note: if slight PI is committed in a tumultuous affray and the
assistance to suicide in the CONSUMMATED STAGE. The penalty
identity of the person who committed it is established, 252 is not
of arresto mayor in its medium and maximum periods, shall be
applicable. The offender will be prosecuted in the ordinary course
imposed.
of law. This must be the correct view as it appears that only
serious PI committed or inflicted are covered under Article 252.
The about the person who attempted to commit suicide, is he
liable? NO, there is no such crime.
Article 253. Giving assistance to suicide. - Any person
who shall assist another to commit suicide shall suffer Assuming for example, X wants to commit suicide because he
the penalty of prision mayor; if such person leads his cannot accept his fate under the cruel hands of love. So she
assistance to another to the extent of doing the killing went up to the 5th floor and it was there that she attempted to
himself, he shall suffer the penalty of reclusion temporal. commit suicide. It just so happened that Y(a law student) was
there and X landed on Y and that caused the latter’s death and
However, if the suicide is not consummated, the penalty
the former survived. Question: is X criminally liable? No. Article 4
of arresto mayor in its medium and maximum periods,
will not apply because she was not committing a felony when she
shall be imposed.
attempted suicide. Suicide is not a crime. Some contended that
she should be liable on account of her negligence. However, the
There are two acts punishable:
law says she does not incur criminal liability.
1. There are 2 acts being punished here:
2 schools of thought (Not the UM school of thought or Ateneo
1. By assisting another to commit suicide even if the suicide is school of thought)
not consummated
1. His not criminally liable because he was not committing a
Under the 1st act, it contemplates giving assistance by furnishing felony. (Article 4)
the person contemplating to commit suicide with a means for
2. He is criminally liable because he lacked foresight. He omitted
him to do it HIMSELF.
that degree of care to prevent harm.
2. By lending assistance to another to commit suicide to the
Which school of thought will you adopt?
extent of doing the killing himself
Next, a pregnant woman takes poison to kill herself, but does not
In the 2nd act, the offender himself does the killing. It’s similar
die. In taking poison, it was the foetus that died. Does she incur
to homicide.
criminal liability? No, based on the theory that suicide is not a
crime, then she did not perform a felony different from that of
what she intended.
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Article 254. Discharge of firearms. - Any person who shall
shoot at another with any firearm shall suffer the penalty
of prision correccional in its minimum and medium
periods, unless the facts of the case are such that the act
can be held to constitute frustrated or attempted
parricide, murder, homicide or any other crime for which
a higher penalty is prescribed by any of the articles of
this Code.
Elements of the crime:
1. Offender discharges a firearm against or at another person
2. Offender had no intent to kill that person.
In the discharge of firearm, the intention of the offender is only
to intimidate the other party. There must be absolutely no
intention to kill the other party on the part of the offender,
absence of such intent can be shown through the range or
distance of which the gun is fired.
For example, in a 100 meter radius, you aimed your gun at him.
There was really no intention to kill the party.
The gun used here must be licensed, or the person who carries
the firearm must be authorized to do the same. Otherwise, the
accused may also be liable for illegal possession of unlicensed
firearm.
prosecution’s witnesses on the accused firearm and the
circumstances surrounding it.
Article 255. Infanticide. - The penalty provided for
parricide in Article 246 and for murder in Article 248 shall
be imposed upon any person who shall kill any child less
than three days of age.
If the crime penalized in this article be committed by the
mother of the child for the purpose of concealing her
dishonor, she shall suffer the penalty of prision
correccional in its medium and maximum periods, and if
said crime be committed for the same purpose by the
maternal grandparents or either of them, the penalty
shall be prision mayor.
Elements of the crime:
1. That a child was killed.
2. That the deceased child was less than 3 days (72 hours) of
age.
3. That the accused killed the said child.
The crime is based on the age of the child. If the child is exactly
three days old is murder qualified by treachery because the child
cannot defend himself.

“shall shoot another”- what if you discharge the firearm against When the offender is the offender is the father, mother or
the house of the victim? Is 254 committed? No, because it was legitimate ascendant the crime is still Infanticide and he shall
not directed to the victim himself. The law requires that the suffer THE PENALTY of parricide. If the offender is any other
discharge must be directed to the victim, so this crime cannot be person, the PENALTY is that of murder. IN any case, the
committed through negligence because the law requires that it OFFENSE is infanticide. Even if the killer is the father, mother or
should be directed at another. legitimate ascendant, the crime is still infanticide if the child is
less than 3 days or 72 hours of age.
What if the discharge is not directed at a person? Article 155.
Alarms and scandal because it’s also about the discharge of a Parricide Infanticide
firearm eh, only that it is not aimed at another person.
the child must be
Age should be 3 or
less than 3 years
When is firing of a gun considered as illegal discharge, attempted older
old
homicide or alarm and scandals?
must be related by
It is illegal discharge if a person fires his gun to another without need not be related
blood
intent to kill.
concealing of
It is attempted homicide if a person fires his gun to another with Concealing is of
dishonor is a
intent to kill but does not inflict a mortal or serious wound. dishonor does not
mitigating
affect the penalty.
circumstance
It is alarm and scandals if a person fires his gun a public place to
cause alarm. It is not directed to another.

Read the case of Escalante vs People January 9, 2014
Issue: can the accused be convicted in a case of illegal
possession of firearms even if the firearm was not presented as
evidence in court?
Sc: YES. The straightforward and positive testimonies of the
prosecution’s witnesses on the accused firearm and surrounding
circumstances establish the corpus delecti. The corpus delecti is
not limited to the existence of the firearm itself. It is the whole
thing. Even if the firearm was not presented in court
nevertheless it does not prevent the court from convicting the
accused for as long as there is a positive testimony by the
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Now if the offender is the child’s mother and the killing was done
to conceal her dishonor, the penalty is lowered down. The
penalty is only prision mayor in its medium and maximum period,
and not the penalty for parricide. The law extends the same
privilege to the maternal grandparents or either of them, except
that prision mayor shall be imposed instead of reclusion
temporal.
Going back to persons and family relations , birth determines
the personality. If a foetus becomes a person by legal fact of
birth, the civil code provides:
 Intrauterine life of less than 7 months- it will be considered
born only when it survives 24 hours, after the umbilical is cut and
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the child is separated from the mother. If the child is killed within
the 24 hour period, we have to determine if it would have
survived or it would have died nonetheless had it not been killed.
The legal problem here is when there is difficulty of determining
whether the crime committed is infanticide or abortion. IN such a
situation, the court may avail of expert testimony to aid it in
arriving at the conclusion. So if it is shown that the foetus cannot
survive within 24 hours, the crime committed is abortion.
Otherwise, if it can survive, then the crime committed will be
infanticide.
A, a non-married woman, gave birth to B. to conceal her
dishonor, A conspired with C to dispose of the child. C agreed
and killed B by burying B somewhere. IF the child was killed and
his age was 3 days old and above, the crime of A would be
parricide. The fact that the killing was done to conceal her
dishonor is immaterial because the charge is parricide. So the
fact that you would conceal your dishonor is only applicable for
infanticide. If A committed parricide, what about C? Murder
because he cannot be liable for parricide because he is a
stranger. What if the child is less than 3 days old when killed,
both A and C are liable for infanticide, because it is not
predicated on the relation of the offender to the offended party
but on the age of the child. The motive of the mother to kill the
child now will be considered as a mitigating circumstance.
Is concealment of dishonor an element? No. It merely lowers the
penalty.
If the child is abandoned without intent to kill and death results
as a consequence, the crime committed is abandonment (276). If
the purpose of the mother was to conceal her dishonor,
infanticide through imprudence is not proper because the
purpose of concealing her dishonor is not compatible with the
absence of malice in culpable felonies.
What if the child is stillborn? Not liable because the child is
already dead, so you cannot kill him. You still need medical proof
to show that the child born was already stillborn.
What about it is the maternal grandparent who killed the child?
Liable for infanticide but also may be mitigated or lowered
penalty.
There is a requirement for the mother to claim the mitigating
circumstance of concealment of dishonour, she must be of good
reputation. If you are a CSW, there’s no way or you to avail of
this mitigating circumstance because it presupposes that you
should be of good reputation. So if you’re a prostitute, you are
not entitled of lowering the penalty because “you have no honor
to conceal.”
Example: Angelica and Drago had premarital relations. Angelica
gave birth to a baby boy. Drago was not willing to take angelica.
To conceal her dishonour, angelica asked his ardent suitor jake
to kill and bury the child. What crime or crimes did angelica and
jake commit? It depends. If the child was 3 days old or more
angelica is liable for parricide. Jake is liable for murder. The
killing of the child is qualified by treachery.t Jake cannot be held
liable for parricide because he is not related to the child.
If the child was less than 3 days old when he was killed, Both
angelica and Jake committed Infanticide. Under the law, the
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killing of a child less than 3 days old will result to infanticide even
if the child and the offender are not related.
Rona gave birth to a baby boy out of unwanted pregnancy. 2
days after giving birth, rona abandoned the child and left him in
the supermarket. The child was seen by a young couple. What
crime did rona commit? Rona committed the crime of
abandonment of a minor under Article 276.
What if, using the same problem, the child died. What crime did
rona commit? Still abandonment of minor. When the child dies,
the penalty is the same as that of homicide.
Article 256. Intentional abortion. - Any person who shall
intentionally cause an abortion shall suffer:
1. The penalty of reclusion temporal, if he shall use any
violence upon the person of the pregnant woman.
2. The penalty of prision mayor if, without using violence,
he shall act without the consent of the woman.
3. The penalty of prision correccional in its medium and
maximum periods, if the woman shall have consented
Elements of the crime:
1. That there is a pregnant woman
2. That violence is exerted or drugs or beverages administered,
or that that accused otherwise acts upon such pregnant woman
3. That as a result of the use of violence or drugs or beverages
upon her, or any other act of the accused, the foetus dies either
in the womb or after having been expelled therefrom
4. That the abortion is intended
What is abortion? It is the wilful killing of the foetus from the
uterus or the violent expulsion of the foetus from the maternal
womb which results into the death of the foetus. There are 3
ways of committing abortion:
1. By using any violence upon the person of the pregnant woman
2. By acting, but without using violence, without the consent of
the woman. (By administering drugs or beverages upon such
pregnant woman without her consent)
3. By acting (by administering drugs or beverages), with the
consent of the pregnant woman
Distinction between infanticide and abortion
Infanticide Abortion
The child is incapable
The child is already
of sustaining an
capable after its
independent life
separation from
outside the maternal
maternal womb
womb
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Not a crime against
the woman but
against the foetus.
If the mother suffers
death or PI as a
consequence of
abortion, you have
complex crime of
murder or PI and
abortion.
Niki and Miki are sweethearts. They engaged in premarital
relations. Nikki became pregnant but Miki was not ready to get
married. Mikky punched Nikki’s abdomen several times, as a
result nikki suffered an abortion. Mikki is liable for intentional
abortion because he used violence against a pregnant woman.
A and B are College students. They engaged in premarital
relations. A thought she was pregnant so B wanted to abort the
child. It turned out however that he she was not really pregnant.
Is B liable for impossible crime? NO, Impossible crime can be
committed only if there are no other crimes committed. There
are injuries here. It is true that abortion could not have resulted
since A was not really pregnant but B is not liable for impossible
crime because he committed a crime in the process. Article 4. B
is liable for Physical Injuries.
Article 257. Unintentional abortion. - The penalty of
prision correccional in its minimum and medium period
shall be imposed upon any person who shall cause an
abortion by violence, but unintentionally.
Elements:
1. The violence is intentionally exerted.
2. As a result of violence, the foetus dies either in the womb or
after being expelled therefrom.
In an unintentional abortion, it is necessary that the violence was
intentionally inflicted upon a woman. It is not material that the
offender knows of the pregnancy. The violence must be physical
and not a mere threat. If you were quarrelling with a woman and
then you gave her looks that can kill. Lisuda pud ana oi. The
requirement is that there must be physical violence.
Example: loloy had an argument with Rose. In the course of the
altercation, loloy pointed his gun at rose. Loloy did not know that
Rose was pregnant. Rose was frightened, as a result Rose had
an abortion. Is loloy liable for unintentional abortion? No, there
was no Physical violence. At most he can only be made liable for
grave trheats.
Another: X and Y are husband and wife. They had a heated
argument. In the course of the altercation, Y was hurt by a bottle
of San Miguel. The bottle was hit on her hip. Y was pregnant
then. She had an abortion as a result. X is liable for unintentional
abortion.
Another: Reymart went home drunk. His wife Claudine refused to
let reymart enter into the room. When Reymart got inside the
house, he struck Claudine with chair. As a result, Claudine died
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and suffered abortion. What crime did Reymart commit? Complex
crime of parricide and unintentional abortion. Under the law
result when a single act constitutes two or more grave or less
grave felonies. Parricide is a grave felony while unintentional
abortion s a less grave felony.
Another pregnant woman decided to commit suicide. She jumped
out of the window of the building and killed a passer-by and an
abortion happened thereafter. Is the woman liable for
unintentional abortion? No, what is contemplated under
unintentional abortion is that the force or violence must come
from another. The violence or force must come from another. If
the woman herself is the one inflicting the abortion, it will fall
under intentional abortion. But in this case, the woman who
attempted suicide, suicide is not a felony under the RPC. So if
she did not commit a felony, then she is not liable at all.
Article 258. Abortion practiced by the woman herself of
by her parents. - The penalty of prision correccional in its
medium and maximum periods shall be imposed upon a
woman who shall practice abortion upon herself or shall
consent that any other person should do so.
Any woman who shall commit this offense to conceal her
dishonor, shall suffer the penalty of prision correccional
in its minimum and medium periods.
If this crime be committed by the parents of the
pregnant woman or either of them, and they act with the
consent of said woman for the purpose of concealing her
dishonor, the offenders shall suffer the penalty of prision
correccional in its medium and maximum periods.
Article 259. Abortion practiced by a physician or midwife
and dispensing of abortives. - The penalties provided in
Article 256 shall be imposed in its maximum period,
respectively, upon any physician or midwife who, taking
advantage of their scientific knowledge or skill, shall
cause an abortion or assist in causing the same.
Any pharmacist who, without the proper prescription
from a physician, shall dispense any abortive shall
sufferarresto mayor and a fine not exceeding 1,000
pesos.
Article 260 Responsibility of participants in a duel and 261
Challenging to a duel.- OBSOLETE
Article 262. Mutilation. - The penalty of reclusion
temporal to reclusion perpetua shall be imposed upon
any person who shall intentionally mutilate another by
depriving him, either totally or partially, or some
essential organ of reproduction.
Any other intentional mutilation shall be punished by
prision mayor in its medium and maximum periods.
2 kinds of mutilation:
1.  By intentionally mutilating another by depriving him,
either totally or partially, or some essential organ for
reproduction
2.  By intentionally making other mutilation, that is, by
lopping or clipping off any part of the body of the
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offended party, other than the essential organ for
reproduction, to deprive him of that part of his body
In order to commit the crime of mutilation, the offender must
have the intention, either to deprive the party of some organ
necessary for generation such as the penis or the ovary, or to
dismember the offended party.
When the loss of an organ for reproduction is unintended, or, if
the dismembering of the offended party is unintentional, what
crime is committed?
The crime is mutilation if intentional, if not, you cannot be liable
for mutilation but perhaps serious physical injuries.
Example:
The common mistake is to associate mutilation with reproductive
organs only. This is wrong, because it may also refer to any part
of the human body that is not susceptible to grow again.
If what was cut off is a reproductive organ, the penalty is higher.
Can the crime of mutilation be done through culpa?
NO, it cannot be committed through criminal negligence, it
should always be intentional.
In the first kind of mutilation, the castration must be made
purposely.
Otherwise, it will be considered under the second type.
Example:
X was married to Marco. For many years, X suffered intolerable
pain. One night when Marco was asleep, X entered the room and
cut off the penis of Marco. She is liable for mutilation because
she intentionally castrated the reproductive organ of her
husband.
Another example:
Y is a good billiard player. He challenges other players. He met a
match in the person of Raul. They played before a big crowd at
the Cuneta Astrodome. Bets were made at the side of Y, one of
them was Don Juan.
Y lost. Don Juan suspected that Y dropped the game
intentionally. Y was later accosted by Don Juan’s bodyguard
where he was brought to the latter. Don Juan and Y met face to
face. Don Juan chopped off the right hand of Y to prevent him
from playing the game again.
Don Juan committed mutilation. He intentionally cut off the hand
of Y.
Another example: During a boxing bout, one boxer bit the ear of
the other. Is he liable for mutilation? Yes. There was deliberate
intent to remove the other’s ear.
Another: X and Y engaged in a fight. In the course of the fight, X
used his bolo and hit the penis of Y. The penis was cut off. Is X
liable? No, since he did not intentionally cut off the penis of Y.
Article 263. Serious physical injuries. - Any person who
shall wound, beat, or assault another, shall be guilty of
the crime of serious physical injuries and shall suffer:
1. The penalty of prision mayor, if in consequence of the
physical injuries inflicted, the injured person shall
become insane, imbecile, impotent, or blind;
2. The penalty of prision correccional in its medium and
maximum periods, if in consequence of the physical
injuries inflicted, the person injured shall have lost the
use of speech or the power to hear or to smell, or shall
have lost an eye, a hand, a foot, an arm, or a leg or shall
have lost the use of any such member, or shall have
become incapacitated for the work in which he was
therefor habitually engaged;
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3. The penalty of prision correccional in its minimum and
medium periods, if in consequence of the physical
injuries inflicted, the person injured shall have become
deformed, or shall have lost any other part of his body, or
shall have lost the use thereof, or shall have been ill or
incapacitated for the performance of the work in which
he as habitually engaged for a period of more than ninety
days;
4. The penalty of arresto mayor in its maximum period to
prision correccional in its minimum period, if the physical
injuries inflicted shall have caused the illness or
incapacity for labor of the injured person for more than
thirty days.
If the offense shall have been committed against any of
the persons enumerated in Article 246, or with
attendance of any of the circumstances mentioned in
Article 248, the case covered by subdivision number 1 of
this Article shall be punished by reclusion temporal in its
medium and maximum periods; the case covered by
subdivision number 2 by prision correccional in its
maximum period to prision mayor in its minimum period;
the case covered by subdivision number 3 by prision
correccional in its medium and maximum periods; and
the case covered by subdivision number 4 by prision
correccional in its minimum and medium periods.
The provisions of the preceding paragraph shall not be
applicable to a parent who shall inflict physical injuries
upon his child by excessive chastisement.
Not discussed by Judge. Discussion from old TSN:
The crime of physical injury is a crime of result. (In fact when we
discussed this in criminal law 1, this is one of the crimes where it
does not admit of the attempted or frustrated stage. It is always
in the consummated form.)
* Reason for being a crime of result and for always being in the
consummated stage:
Under our laws, crime of physical injury is based/determined
upon the gravity of the injury sustained by the victim
As long as the injury is not there, there can be no attempted or
frustrated stage.
This article assumes that the wounding, assaulting, etc, has no
intent to kill. In serious physical injuries (SPI), no intent to kill.
Why? If there is intent to kill, what would be the effect? It may
be the case of homicide or murder.
What is the penalty for SPI? It depends on the seriousness of the
injury. Under paragraph 1, it would be prision mayor. Under par
2, it would prision correccional and maximum. Under par 3,
prision correccional medium, under paragraph 4, prision
correccional minimum.
How is the crime of SPI committed? If you beat, wound, assault
a person without the intent to kill, and that he sustained injuries
afterwards, that is the basic answer.
For example: Mr. Astillo wounded Jamel. There is no intent to kill
and Jamel sustained injuries which are serious. This is obviously
covered under this article. Now what if, because of the beating,
Jamel died?
Take note: astillo has no intention to kill. This time, the crime
would be converted to homicide. Why? The principle is, once the
victim dies, the intent to kill is presumed. Although, the penalty is
somehow mitigated in this case with no intent to kill.
Now, let’s go to the first paragraph. The penalty of prision
mayor, if in consequence of the physical injuries inflicted, the
injured person shall become insane, imbecile, impotent, or blind;
What kind of blindness is contemplated? It must be complete or
total. Mere defect in vision is not included. Now what if it is a
partial blindness? So only one eye is affected. That is covered
under paragraph 2:”or shall have lost an eye, a hand…”
Now what do we mean by impotent? Inability to copulate.
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Original TSN from 2012- 2013 Uno Manresa lectures
How do you compare this with the crime of mutilation? In
mutilaton, you really intend to cut the organ, but in paragraph 1,
wala’y intent. Coincidence lang. For example, nagsinumbagay si
Mr Astillo and si Jamel and it so happened na naghubo silang
duha. Dili man siguro na sila bayot, noh? So just imagine na naa
sila sa dagat mao ng naghubo silang duha. As a result of the
quarrel, Mr. Astillo unknowingly picked a knife and he used it to
stab Jamel. Jamel wasn’t stabbed; instead, his penis was cut.
The crime committed is not mutilation but SPI under paragraph
1.
2nd paragraph:
What is lost here is the principal member of the body. Complete
loss of an eye is not necessary as partial loss of vision may be
enough to commit the 2nd par. The lost of arm, leg… again, to
be differentiated against mutilation, because the in mutilation the
cutting is intentional. Here, it is not.
Here, the cutting is but a result of an assault directed against the
other person. Loss of hearing, the cutting here must be on both
ears. If only one is cut, par 2 will not apply but par 3: , “….if in
consequence of the physical injuries inflicted, the person injured
shall have become deformed, or shall have lost any other part of
his body, or shall have lost the use thereof, or a leg or shall have
lost the use of any such member, or shall have become
incapacitated for the work in which he was therefor habitually
engaged”
So what is incapacity referred here? It is permanent. Example:
the one injured is a carpenter, but because he lost an arm, he
can no longer perform his job which he is habitually engaged
into. Under the 3rd par, how do we define deformity? It is meant
as physical ugliness, permanent and definite abnormality. But it
must be conspicuous and visible. Now, loss of teeth sa
atubangan, gisumbag man ka, so nabungi na ka. SPI diay na?
YES. Maski isa lang na nga ngipon, it’s visible and conspicuous.
What about if it is bag-ang (?), molar? So it is not visible, imo pa
ng ipa nganga eh. The book of JBL Reyes says, yes, it is still
covered. What about the scar on your face which cannot be
cured by action of nature? YES, it can constitute SPI because it is
visible and conspicuous.
What if the scar is not committed to the face? Rather, it is in the
navel. Nagkarambola man si Ms. Douglass and si Ms. Corpuz. Is
SPI committed? NO, it is not visible and conspicuous.
The phrase any other member of his body, what does it mean? It
is any member other than eye, hand, foot, arm, leg as mentioned
in paragraph 2. Incapacity in par 3 is not permanent but such
incapacity must not last more than 90 days.
Fourth paragraph: The illness or incapacity here must not to
exceed 90 days for more than 30 days. So meaning, 31 days to
90 days.
Republic Act 8049: Anti-Hazing Law
REPUBLIC ACT No. 8049
AN ACT REGULATING HAZING AND OTHER FORMS OF
INITIATION RITES IN FRATERNITIES, SORORITIES, AND
OTHER ORGANIZATIONS AND PROVIDING PENALTIES
THEREFOR
Section 1. Hazing, as used in this Act, is an initiation rite
or practice as a prerequisite for admission into
membership in a fraternity, sorority or organization by
placing the recruit, neophyte or applicant in some
embarrassing or humiliating situations such as forcing
him to do menial, silly, foolish and other similar tasks or
activities or otherwise subjecting him to physical or
psychological suffering or injury.
The term "organization" shall include any club or the
Armed Forces of the Philippines, Philippine National
Police, Philippine Military Academy, or officer and cadet
corp of the Citizen's Military Training and Citizen's Army
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Training. The physical, mental and psychological testing
and training procedure and practices to determine and
enhance the physical, mental and psychological fitness of
prospective regular members of the Armed Forces of the
Philippines and the Philippine National Police as
approved ny the Secretary of National Defense and the
National Police Commission duly recommended by the
Chief of Staff, Armed Forces of the Philippines and the
Director General of the Philippine National Police shall
not be considered as hazing for the purposes of this Act.
Section 2. No hazing or initiation rites in any form or
manner by a fraternity, sorority or organization shall be
allowed without prior written notice to the school
authorities or head of organization seven (7) days before
the conduct of such initiation. The written notice shall
indicate the period of the initiation activities which shall
not exceed three (3) days, shall include the names of
those to be subjected to such activities, and shall further
contain an undertaking that no physical violence be
employed by anybody during such initiation rites.
Section 3. The head of the school or organization or their
representatives must assign at least two (2)
representatives of the school or organization, as the case
may be, to be present during the initiation. It is the duty
of such representative to see to it that no physical harm
of any kind shall be inflicted upon a recruit, neophyte or
applicant.
Section 4. If the person subjected to hazing or other
forms of initiation rites suffers any physical injury or dies
as a result thereof, the officers and members of the
fraternity, sorority or organization who actually
participated in the infliction of physical harm shall be
liable as principals. The person or persons who
participated in the hazing shall suffer:
1. The penalty of reclusion perpetua (life imprisonment)
if death, rape, sodomy or mutilation results there from.
2. The penalty of reclusion temporal in its maximum
period (17 years, 4 months and 1 day to 20 years) if in
consequence of the hazing the victim shall become
insane, imbecile, impotent or blind.
3. The penalty of reclusion temporal in its medium period
(14 years, 8 months and one day to 17 years and 4
months) if in consequence of the hazing the victim shall
have lost the use of speech or the power to hear or to
smell, or shall have lost an eye, a hand, a foot, an arm or
a leg or shall have lost the use of any such member shall
have become incapacitated for the activity or work in
which he was habitually engaged.
4. The penalty of reclusion temporal in its minimum
period (12 years and one day to 14 years and 8 months)
if in consequence of the hazing the victim shall become
deformed or shall have lost any other part of his body, or
shall have lost the use thereof, or shall have been ill or
incapacitated for the performance on the activity or work
in which he was habitually engaged for a period of more
than ninety (90) days.
5. The penalty of prison mayor in its maximum period (10
years and one day to 12 years) if in consequence of the
hazing the victim shall have been ill or incapacitated for
the performance on the activity or work in which he was
habitually engaged for a period of more than thirty (30)
days.
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Original TSN from 2012- 2013 Uno Manresa lectures
6. The penalty of prison mayor in its medium period (8
years and one day to 10 years) if in consequence of the
hazing the victim shall have been ill or incapacitated for
the performance on the activity or work in which he was
habitually engaged for a period of ten (10) days or more,
or that the injury sustained shall require medical
assistance for the same period.
7. The penalty of prison mayor in its minimum period (6
years and one day to 8 years) if in consequence of the
hazing the victim shall have been ill or incapacitated for
the performance on the activity or work in which he was
habitually engaged from one (1) to nine (9) days, or that
the injury sustained shall require medical assistance for
the same period.
8. The penalty of prison correccional in its maximum
period (4 years, 2 months and one day to 6 years) if in
consequence of the hazing the victim sustained physical
injuries which do not prevent him from engaging in his
habitual activity or work nor require medical attendance.
The responsible officials of the school or of the police,
military or citizen's army training organization, may
impose the appropriate administrative sanctions on the
person or the persons charged under this provision even
before their conviction. The maximum penalty herein
provided shall be imposed in any of the following
instances:
(a) when the recruitment is accompanied by force,
violence, threat, intimidation or deceit on the person of
the recruit who refuses to join;
(b) when the recruit, neophyte or applicant initially
consents to join but upon learning that hazing will be
committed on his person, is prevented from quitting;
(c) when the recruit, neophyte or applicant having
undergone hazing is prevented from reporting the
unlawful act to his parents or guardians, to the proper
school authorities, or to the police authorities, through
force, violence, threat or intimidation;
(d) when the hazing is committed outside of the school
or institution; or
(e) when the victim is below twelve (12) years of age at
the time of the hazing.
The owner of the place where hazing is conducted shall
be liable as an accomplice, when he has actual
knowledge of the hazing conducted therein but failed to
take any action to prevent the same from occurring. If
the hazing is held in the home of one of the officers or
members of the fraternity, group, or organization, the
parents shall be held liable as principals when they have
actual knowledge of the hazing conducted therein but
failed to take any action to prevent the same from
occurring.
The school authorities including faculty members who
consent to the hazing or who have actual knowledge
thereof, but failed to take any action to prevent the same
from occurring shall be punished as accomplices for the
acts of hazing committed by the perpetrators.
The officers, former officers, or alumni of the
organization, group, fraternity or sorority who actually
planned the hazing although not present when the acts
constituting the hazing were committed shall be liable as
principals. A fraternity or sorority's adviser who is
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present when the acts constituting the hazing were
committed and failed to take action to prevent the same
from occurring shall be liable as principal.
The presence of any person during the hazing is prima
facie evidence of participation therein as principal unless
he prevented the commission of the acts punishable
herein.
Any person charged under this provision shall not be
entitled to the mitigating circumstance that there was no
intention to commit so grave a wrong.
This section shall apply to the president, manager,
director or other responsible officer of a corporation
engaged in hazing as a requirement for employment in
the manner provided herein.
--What do you understand about hazing? This is an initiation rite
or practice as a prerequisite for admission into membership in a
fraternity, sorority or organization by placing the recruit,
neophyte or applicant in some embarrassing or humiliating
situations such as forcing him to do menial, silly, foolish and
other similar tasks or activities or otherwise subjecting him to
physical or psychological suffering or injury.
Hazing is not entirely prohibited. It may be allowed subject to the
compliance with the requirements of a “prior written notice to
the school authorities or head of organization seven (7) days
before the conduct of such initiation.” – What kind of hazing is
that? Simple lang, initiation.
The law is violated when the person subjected to hazing or other
forms of initiation rites suffers any physical injury or dies as a
result thereof.
Who are liable? Section 4: the officers and members of the
fraternity, sorority or organization who actually participated in
the infliction of physical harm shall be liable as principals.
What is the liability of the owner of the house where the hazing
was done? The owner of the place where hazing is conducted
shall be liable as an accomplice, when he has actual knowledge
of the hazing conducted therein but failed to take any action to
prevent the same from occurring. If the hazing is held in the
home of one of the officers or members of the fraternity, group,
or organization, the parents shall be held liable as principals
when they have actual knowledge of the hazing conducted
therein but failed to take any action to prevent the same from
occurring.
So the parents may also be held liable if they have actual
knowledge but failed to prevent the same from occurring.
What about the school authorities? The school authorities
including faculty members who consent to the hazing or who
have actual knowledge thereof, but failed to take any action to
prevent the same from occurring shall be punished as
accomplices for the acts of hazing committed by the
perpetrators.
What about the officers, former officers, etc. can they be liable
even if they were absent during the hazing ? The officers, former
officers, or alumni of the organization, group, fraternity or
sorority who actually planned the hazing although not present
when the acts constituting the hazing were committed shall be
liable as principals. A fraternity or sorority's adviser who is
present when the acts constituting the hazing were committed
and failed to take action to prevent the same from occurring shall
be liable as principal.
Presence as prima facie evidence… The presence of any person
during the hazing is prima facie evidence of participation therein
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Original TSN from 2012- 2013 Uno Manresa lectures
as principal unless he prevented the commission of the acts
punishable herein.
Can you be entitled to mitigating circumstance? Any person
charged under this provision shall not be entitled to the
mitigating circumstance that there was no intention to commit so
grave a wrong.
Article 264. Administering injurious substances or
beverages. - The penalties established by the next
preceding article shall be applicable in the respective
case to any person who, without intent to kill, shall inflict
upon another any serious, physical injury, by knowingly
administering to him any injurious substance or
beverages or by taking advantage of his weakness of
mind or credulity.
This article refers to the means of committing serious physical
injuries. The offender must have no intention to kill the victim
because if he has such intention, the liability is
attempted/frustrated homicide/murder.
The want to administer injurious substance or beverages within
the meaning of article 264 means to direct, or cause said
substance or beverage to be taken orally by the injured person to
suffer SPI as a result. If the resulting injuries are serious, then
we do not use article 264, instead, we base it on article 263.
Article 265. Less serious physical injuries. - Any person
who shall inflict upon another physical injuries not
described in the preceding articles, but which shall
incapacitate the offended party for labor for ten days or
more, or shall require medical assistance for the same
period, shall be guilty of less serious physical injuries and
shall suffer the penalty of arresto mayor.
Whenever less serious physical injuries shall have been
inflicted with the manifest intent to kill or offend the
injured person, or under circumstances adding ignominy
to the offense in addition to the penalty of arresto mayor,
a fine not exceeding 500 pesos shall be imposed.
Any less serious physical injuries inflicted upon the
offender's parents, ascendants, guardians, curators,
teachers, or persons of rank, or persons in authority,
shall be punished by prision correccional in its minimum
and medium periods, provided that, in the case of
persons in authority, the deed does not constitute the
crime of assault upon such person.
How many days to constitute Less Physical Injuries (LPI)?
 10 days or more of incapacity or medical attendance
Number of days
 This means the number of days that the victim is in
actual medical attendance
For example, you wounded someone and the victim doesn’t want
to go to the hospital. But he was incapacitated; he was persistent
not to go to the hospital so the incapacity lasted for 11 days.
What crime is committed? LPI under 265 because law says
incapacitated more than 10 days.
What are the qualifying circumstances?
 There is manifest intent to insult or offend the injured
party or the circumstance is an ignominy to the offense.
Article 266. Slight physical injuries and maltreatment. -
The crime of slight physical injuries shall be punished:
1. By arresto menor when the offender has inflicted
physical injuries which shall incapacitate the offended
party for labor from one to nine days, or shall require
medical attendance during the same period.
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2. By arresto menor or a fine not exceeding 20 pesos and
censure when the offender has caused physical injuries
which do not prevent the offended party from engaging
in his habitual work nor require medical assistance.
3. By arresto menor in its minimum period or a fine not
exceeding 50 pesos when the offender shall ill-treat
another by deed without causing any injury.
3 kinds contemplated under this article
1. Physical injuries which incapacitated the offended party
for labor from one to nine days, or required medical
attendance during the same period.
2. Physical injuries which did not prevent the offended
party from engaging in his habitual work or which did
not require medical attendance.
3. Ill-treatment of another by deed without causing any
injury.
The crime of maltreatment is a crime of slight physical injuries
while the term is included in identifying the kind of slight physical
injuries, the law, however, failed to define what it is all about.
There is no complete definition of what this is all about.
 Under the principle of ejusdem generis, maltreatment
must be another form of ill-treatment.
 A good example of maltreatment would be the slapping
of the victim’s face which does not produce any injury.
Just like Serious Physical Injuries (SPI) and Less SPI (LSPI),
Slight Physical Injuries (SLPI) is a crime of result and is a crime
of consequence. The degree of punishment to be imposed to the
offender is based on the extent of the injuries that is sustained
by the victim. In our criminal law 1, we call it as a formal crime.
 It is a crime where it can only be committed in its
consummated stage. It cannot be committed in the
attempted or frustrated stage.
In relation to that, kindly read the case of People vs Fortich 281
scra 600.
In SLPI, there is no evidence of actual injury, no proof of
incapacity or medical assistance. Ex. Sagpa
In paragraph 3, the slapping of the face of the victim is without
causing dishonor; otherwise, it shall become slander by deed.
 It is is committed when a person publicly subjects
another to an act intended to cast dishonor, discredit
upon the person. Kanang, nilaparo (?) ka ba.
 The slapping of the face must have been done with the
intention to dishonor you.
 Example, in a meeting, you wanted to dishonor him,
you slapped him on the face. The crime that should be
filed is not SLPI but slander by deed. But if there is no
manifestation that the slapping of the face is to cause
dishonor, then, that would bring about art 266.
 The penalty is very minimal for both, murag tag P200 ra
bana. So pagsagpa/paglaparo nimo, hatagi na lang ug
200.
 Siguraduha lang nimo na ang i-penalty sa imo kay fine
dili arresto menor kay bilanggo ka!
The law says, shall require medical attendance during the same
period.
 Supposing A wounded the arm of B which would have
healed for 8 days only. B did not see the wound and
continue working. So in short, there was no incapacity
and no medical attendace. On the 9th day, mao
gihapon. What crime is committed up to that point?
 Only SLPI under paragraph 2 and not 1 because 1
requires incapacity or medical attendance from period of
1 – 9 days.
 Now what if the victim continued working, and was
thereby not incapacitated. He did not go to the doctor
or hospital. However, the wound was not healed. If you
are the fiscal, what information should you file agains
the offender?
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Original TSN from 2012- 2013 Uno Manresa lectures
 Still, the crime is SLPI because there was no showing
that he was incapacitated even for one single day nor
was there a showing that he had medical assistance,
regardless if the wound did not heal.
 Supposing the wound did not heal on the 30th day, on
the 31st day and still the wound did not heal. What is
the crime? It will no longer be covered under SLPI but
under SPI under paragraph 4 because the victim here
had been ill for more than 30 days. The fact that the
victim never went to see a doctor is immaterial
because medical attendance is not required under SPI.
People v. Sales, October 3, 2011 – dealing on maltreatment of
children, slight physical injuries.
Art. 266-A. Rape, when and how committed – Rape is
committed
1.) By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or
is otherwise unconscious;
c) By means of fraudulent machination or grave
abuse of authority;
d) When the offended party is under 12 yrs of age
or is demented, even though none of the
circumstances mentioned above be present.
2.) By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act of
sexual assault inserting his penis into another person’s
mouth or anal orifice, or any instrument or object, into
genital or anal orifice or another person.
RA 8353 : An act expanding the definition the crime of rape,
reclassifying the same as a crime against person, amending for
the purpose Act 3815 as amended.
So under RA 8353, there are now two kinds of rape:
1. Rape by sexual intercourse
2. Rape by sexual assault
Is RA 8353 malum prohibitum? No, it is mala in se because it is
intended to amend the existing articles of RPC.
When and how committed?
1. Rape is committed, under paragraph 1, By a man who
shall have carnal knowledge of a woman under any of
the following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or is
otherwise unconscious;
c) By means of fraudulent machination or grave abuse of
authority;
d) When the offended party is under 12 yrs of age or is
demented, even though none of the circumstances
mentioned above be present.
2. It may also be committed under the second type: By
any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act of
sexual assault inserting his penis into another person’s
mouth or anal orifice, or any instrument or object, into
genital or anal orifice or another person.
In People v. Pareja, Jan 15, 2014 – The SC makes a new
classification. At present, we use these terms now:
1. Organ rape / penile rape (rape by sexual intercourse)
2. Instrument / object rape / gender-free rape (rape by
sexual assault)
What are the differences between the 2 kinds of rape, the
traditional (organ) and
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 In Traditional rape (organ rape), the offender is always
a man, the offended party is always a woman. In rape
by sexual assault, the offender may be a man/woman
and the offended party may be a man/woman. The
penalty is lower than that by rape of sexual intercourse.
Effect of age:
 If the victim’s age is less than 7 years old, mandatory
penalty of death is imposed (although we cannot
impose that), so we can only impose reclusion perpetua.
 If less than 12 years old (statutory rape), reclusion
perpetua.
 If less than 18 years old and there is relationship, again
mandatory death, but only reclusion perpetua because
of the prohibition
Penile rape can only be committed by a man against a woman.
There must be carnal knowledge. There must be sexual
intercourse. How is rape committed through force, threat,
intimidation? What kind of force? The force required in rape need
not be overpowering or irresistible when it is applied. The force
employed in accomplishing it is sufficient to consummate the
purpose which the offender has in mind.
What about intimidation? Intimidation refers to the mind of the
victim, it is subjective. There is no hard and fast rule. There is
no particular rule in determining the level of intimidation because
it depends on how the victim perceived the intimidation at the
time the crime was committed. People’s reactions vary depending
on the situation.
Is it necessary that in rape, there must be violence? No, because
intimidation is sufficient. This exists when the victim was cowed
into the mission as a result thereof, and rendering of resistance
is futile.
Is it necessary that the victim put up physical resistance?
(Shouts) NO. Just like my client who did not put up physical
resistance because her uncle threatened that he will kill her
brother, etc.
t is also NOT necessary that the offender inflict bruises or
physical injuries. Why? Because proof of injury is not necessary.
After all, it is not an element of the crime of rape.
In rape committed by the father against his own child, the
father’s moral ascendancy and influence substitute for violence
and intimidation.
What about if the victim has consented because of fear? Consent
obtained by fear or personal violence is no consent at all. Even if
the man puts “no hand” on the woman, yet, if by the use of
mental and moral coercion, the accused so overpowers her mind
over fear that as a result, she does not desist, the crime of rape
is committed.
In order to consummate the crime of rape, it is not necessary
that there is full penetration of the female organ by the male
organ. Why?
 Because penetration, no matter how slight it is, even if
there is no ejaculation, the crime of rape is
consummated.
 If there are no traces of semen in the vagina of the
woman, rape is still committed. The presence or
absence of semen is immaterial.
 Mere penetration on the female labia consummates the
crime of rape.
What happens if there is an attempt to penetrate but there was
no penetration at all?
 Criminal Law II TSN
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Original TSN from 2012- 2013 Uno Manresa lectures
 The crime of rape can never be committed in a
frustrated stage, it can only be in the attempted or
consummated stage.
 If there is slight penetration, rape is consummated.
There is no frustrated rape
 Disregard the stray decision of the court in PP vs Irinia
because in PP vs Orita – there is no frustrated stage,
there is no middle ground
 SC said it is highly inconceivable how the crime of
frustrated rape is committed. Mere penetration, no
matter how slight, is already in the consummated stage.
 So if there is no penetration, attempted rape. There is
no middle ground.
PP vs Handaan: The accused, with a very big penis, tried to
enter into the vagina of a woman. SC said mere entry of the
labia without rupture of the hymen constitutes consummated
rape.
PP vs Salinas
 SC said there are no half measures or even quarter
measures nor is there gravity graduated by inches of
entry. Partial penile penetration is as good as
penetration in itself, rape is consummated.
 SC said in this case, in a manner of speaking,
bombardment of the draw bridge is invasion enough
even if the crooks do not succeed in entering the castle.
Penile penetration assumes that there is erection. If there is no
erection, rape cannot be in the form of consummated but
probably
attempted.
 Old age (82 yrs old) does not fully justify failure to
erect. Probably of you suffer from an illness preventing
you to copulate, that may be a possible defense.
When the offended party is deprived of reason or is otherwise
unconscious;
 Meaning, the woman has no wit. Example, insane or
feebleminded person.
 Deprivation need not be complete as mere mental
abnormality is sufficient to constitute the crime of rape.
 Is knowledge of the condition of the woman’s insanity
required?
PP vs Intal 126 scra 501 also PP vs Isip Jr 188 scra 648
 Woman was under the influence of anesthesia, and she
was under this condition when she was attacked. The
woman admitted that she knew what was happening to
her, only that she cannot move.
 Defense: No rape because she was conscious yet she
did not do anything.
 SC said that if the woman’s wit is affected by
anesthesia, then, the copulation therefore is without her
consent though she may be more or less conscious.
Still, the crime of rape is committed.
Pp v. Campuhan decided by the SC March 30, 2000.
The accused here was found guilty of the lower court of the
crime statutory rape and was committed the extreme penalty of
death but it was reviewed by the SC. The basic issue resolved on
whether there is present and convincing proof that the penis of
the accused is indeed touch the labia and slid in the female
organ of a 4-year old.
The Court in resolving the issue,...what was meant of the phrase
“mere touching by the penis in the external genitalia” as being
sufficient to consummate the sexual act. For a settled is the rule,
in order for a rape to be consummated, perfect penetration is not
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essential; any penetration of the female organ by a male organ
does not consummate the crime of rape. In other words,
entering into the labia or lips of the female organ, even without
rupture of the hymen or laceration of a vagina is sufficient to
warrant conviction for consummated rape. Now, the act of
touching should be understood here as inherently part of the
entry of the penis into the labia of the female organ and not
mere touching alone of the mons pubis or the pudendum.
Jurisprudence dictates that the labia majora must be entered for
rape to be consummated, and not merely for the penis to stroke
the surface of the female organ. Thus, a grazing of the surface of
the female organ or touching the mons pubis of the pudendum is
not sufficient to constitute consummated rape. Absent any
showing of the slightest penetration of the female organ, by the
penis, there can be no consummated rape; at most, it can only
be attempted rape, if not acts of lasciviousness. Never frustrated
because of the ruling decided in the case of People v. Orita (cited
in the book)
Incestuous rape was coined in Supreme Court decisions. It refers
to rape committed by an ascendant of the offended woman. In
such cases, the force and intimidation need not be of such
nature as would be required in rape cases had the accused been
a stranger.
Conversely, the Supreme Court expected that if the offender is
not known to woman, it is necessary that there be evidence of
affirmative resistance put up by the offended woman. Mere “no,
no” is not enough if the offender is a stranger, although if the
rape is incestuous, this is enough.
Under Article 266, by the way, how do we distinguish the crime
of attempted rape and acts of lasciviousness when it boils down
to intent to lie with the offended woman. If the accused has the
intention to lie on the woman, there can be no attempted rape
but merely crime of acts of lasciviousness.
For example: Where the accused jumped upon a woman and
threw her to the ground, although the accused raised her skirts,
the accused did not make any effort to remove her underwear.
Instead, he removed his own underwear and placed himself on
top of the woman and started performing sexual movements.
Thereafter, when he was finished, he stood up and left.
Is this a crime of attempted rape? No. The crime committed is
only acts of lasciviousness and not attempted rape. The fact that
he did not remove the underwear of the victim indicates that he
does not have a real intention to effect a penetration. It was only
to satisfy a lewd design.
When the offended party is under 12 yrs of age or is demented,
this is what we call statutory rape.
Elements:
1. That the offender had carnal knowledge of the woman.
2. Such act was committed when the victim is under 12
years of age.
This is what happened to Romeo Jalosjos (who was already
pardoned or under parole?).
People v. Jalosjos:
 Ynares-santiago said: this court has declared that the
state policy on the heinous offense of rape is
despicable. Under certain circumstances, some of them
present in this case, the offender may be subjected to a
long period of confinement or he may suffer again. The
crime is an assault in human diginity. Nobody in the
system worthy of a name can afford to experience the
traumatic consequences of the unfortunate victim.
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 She said that very particularly, one figuratively strips the
bottom of the barrel of moral depravity when it is
committed especially against a minor.
 In view of the intrinsic nature of the crime of rape,
when only two persons are usually involved, that’s the
main reason why the court is very cautious in receiving
the testimony of the private complainant.
 In this case of Jalosjos, the victim of rape is a minor
below 12 yrs of age. As narrated by her, the detail of
the rape is repulsive. The victim was peddled for
commercial sex by her own guardian whom he treated
as her foster father. Because the complainant was a
willing victim, the acts of rape were proceeded upon as
several acts of lasciviousness.
 You know, what happened here no, it saddened the
court because during the time that this case was filed in
court, he ran for congressman again!
 Statury rape committed by a distinguished congressman
against an 11 year old minor is bound to attract
widespread media and public attention. That is why, if
you read the history, he was perceived to be demonized
but there was already public trial.
 SC said in this case, in statutory rape, mere sexual
congress with a woman below 12 yrs of age
consummates the crime of statutory rape, regardless of
her consent to the act or lack of it. You know what the
girl did? She’s only 11 yrs old, she was brought to the
condo where Jalosjos was staying. Everytime she is
brought there, there would be acts of cuddling the girl,
etc and at some point there was intercourse. And yet,
despite the fact that the victim said to the guardian that
“lain lagi, dili na ko diri”, the guardian/bugaw would say
“ cge lang, dira lang ka”. And everytime Jalosjos would
do that, he would give them thousands. So when the
time comes when she can no longer contain it, she ran
away and was brought to DSWD. That was time when
the case was filed. Jalosjos contended that there was
consent. Although initially he told an alibi. So you read it
for yourself.
 The law presumes that a woman of tender age does not
possess discernement and is incapable of giving
intelligent consent to the sexual act. Thus, it was HELD,
that carnal knowledge of the child below 12 years old,
even if she is engaged in prostitution, is still considered
statutory rape. The application of force and intimidation
or the deprivation of the reason of the victim becomes
irrelevant. The absence of struggle or outcry of the
victim or even her passive submission to the sexual act
will not mitigate nor absolve the accused from any
liability.
Take note in the case of People v. Romeo Jalosjos: it is all about
statutory, now we can now distinguish when do we have
statutory
rape, or we have statutory rape.
SC said in statutory rape, mere sexual congress with a woman
below twelve years of age consummates the crime of statutory
rape
regardless of her consent to the act or lack of it. The law
presumes that a woman of tender age does not possess
discernment and is
incapable of giving intelligent consent to the sexual act. Thus, it
was held that carnal knowledge of a child below twelve years old
even if she is engaged in prostitution is still considered statutory
rape. The application of force and intimidation or the deprivation
of reason of the victim becomes irrelevant.
So what if the victim is already over 12 years old? What is
necessary to be shown there?
Where the victim is over 12 years old, it must be shown that the
carnal knowledge with her was obtained against her will. It is
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necessary that there be evidence of some resistance put up by
the offended woman. It is not, however, necessary that the
offended party should exert all her efforts to prevent the carnal
intercourse. It is enough that from her resistance, it would
appear that the carnal intercourse is against her will. Now, Mere
initial resistance, which does not indicate refusal on the part of
the offended party to the sexual intercourse, will not be enough
to bring about the crime of rape.
Take Note that it has been held that in the crime of rape,
conviction does not require medico-legal finding of any
penetration on the part of the woman. A medico-legal certificate
is not necessary or indispensable to convict the accused of the
crime of rape. Medico-legal is not an element of the crime, by the
way. Anyway, any medico-legal or medical certificate to that
effect, one may be appreciated is encourage.
October 10, 2015
The crime of rape does not require testimony of the victim before
a conviction may stand. This is particularly true if the commission
of the rape is such that the narration of the offended woman
would lead to no other conclusion except that the rape was
committed.
People v. Orita
Talks about frustration in rape. However, as I’ve said last night,
this is already abandoned noh.
The acts of touching should be understood as inherently part of
the entry of the penis to the labia. That’s one of the issues there
– whether the crime committed is frustrated or consummated
rape. [in the case of ____]
The main distinction between the crime of attempted rape and
acts of lasciviousness is the intention to lie with the offended
one.
In rape cases, the court must be guided by the following
principles:
 Accusation of rape can be made with facility it is difficult
to prove, but more difficult for the person of the
accused, though innocent, to disprove. In view of the
nature of the crime where only 2 persons are involved
the testimony of the complainant must be scrutinized.
In the case of People v. Melchor Cabalquinto [Sept. 19 2006],
this is the time the SC ruled that in rape cases we do not
anymore place the name of the victim in our decision. Instead,
the name will be represented by letters “AAA”.
F: Cabalquinto was charged for having raped his then 8 year old
daughter AAA on 2 occasions. He denied the charge and the case
was filed against him where the___ of frequent quarrels with the
wife and his brother. He claimed that there were material
inconsistencies between the testimonies of the wife and the
bother. Trial court convicted accused of 2 counts of rape, talking
into account the qualifying circumstances of the victims minority
and relationship – the death penalty was imposed. CA affirmed.
In this case, SC enunciated the rule that the court shall withhold
the real name of the victim-survivor. The woman or child victim
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of violence shall use fictitious initials to represent her name. Even
in violation of RA 9262, the cases of AAA v. BBB. That’s how
important involving the names of the parties to the case.
Likewise, the personal circumstances of the victim-survivors in
the information should not establish of compromise their due
identities as well as those of their immediate family or household,
shall not be disclosed.
Again, in relation to the case, we have AM No. 99-7-06 SC in In
re internet webpage of the supreme court
[A.M. No. 99-7-06-SC July 20, 1999]
RE: INTERNET WEB PAGE OF THE SUPREME COURT
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this
Court dated JUL 20, 1999.
A.M. No. 99-7-06-SC(Re: Internet Web Page of the Supreme
Court.)
The Court Resolved to APPROVE the Internet Web Page of the
Supreme Court designed by the Management Information
Systems Office, this Court, for reporting in the Internet, which
will function as a clearing house for information originating
from the judicial branch of the government.
The Supreme Court Web Page contains the following
informations:
1. History of the Supreme Court of the Philippines
2. The list of incumbent Supreme Court Justices
3. The list of former Supreme Court Justices
4. The organizational structures of the Judiciary and of the
Supreme Court
5. The Supreme Court Jurisprudence
6. Authorities promulgated by the Court, i.e. Rules of Court
and Circulars and Orders
7. Bar Matters
8. News and Information.
The mother of a child of the victim in the case expressed anxiety
over posting the full text decision of the SC in child sexual abuse
cases on its internet web page. She submitted that confidentiality
and best interest of the child must prevail over access to
information. *story*
We go to the 2nd way of committing the crime of rape:
"2) By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act of
sexual assault by inserting his penis into another person's
mouth or anal orifice, or any instrument or object, into the
genital or anal orifice of another person.
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“When your resources are down to nothing, believe that God is up to something =)”
It can be committed by either a man or a woman. How
committed? By a man having oral sex with a woman provided it
was committed under the circumstances in par. 1:
 a) Through force, threat or intimidation;
 b) When the offended party is deprived of reason or is
otherwise unconscious;
 c) By means of fraudulent machination or grave abuse
of authority;
 d) When the offended party is under 12 yrs of age or is
demented, even though none of the circumstances
mentioned above be present.
Problem: Raul went home very tired one night. He went to bed
and after a while fell asleep. He was roused from sleep when he
felt something strange. When he opened his eyes, he saw Billy,
his gay neighbour sucking his private organ. Raul kicked Billy. Is
Billy liable under the 2nd way of committing rape?
Held: No. Billy did not insert anything into the genital of Raul.
What the law punishes is “inserting his penis into another
person's mouth or anal orifice, or any instrument or object, into
the genital or anal orifice of another person”. What Billy did was
he sucked the private organ of Raul.
Problem: Raul thrusted a piece of wood into the anal orifice of
Rosa. The latter suffered injuries. Raul was motivated by hate or
anger. Is Raul liable for rape?
Held: No. Raul’s act was not motivated by sexual satisfaction or
lewd designs. In fact, the act was done because of hate or
anger. The crime of rape has remained a crime mala in se and
intent is still essential in proving the crime. So even if there is
something inserted, but the motive is not lewd design, then the
crime of rape is not committed by sexual assault.
Now let’s go to marital rape. Can a man be guilty for raping his
own wife? Some would say no, because from the time a woman
marries her husband, consent has already be given [kada adlaw
sex]. Other authors believe that the crime committed is grave
coercion because he compels his wife to do something against
her will. There can be no rape there because consent to have sex
with the husband has already been given when the woman
marries her husband. Some authors would say that marital rape
can be committed when the nature of the rape is that of sexual
assault. The husband ___ forces his wife by force or intimidation
by having oral or anal sex with his wife in relation to 266-A.
Now that has been a thing of the past because the court finally
decided the case of People v. Jumawan. April 21, 2014.
F: A and B are married. They have 2 children all girls. Their
marriage was doing well, however, B became brutal in the
marriage. One night after A changed into her duster and fixed
their matrimonial bed … [sorry, I do not understand, basta ang
point is wala nagtupad si wife kay husband]. So the husband
asked her, nganong dira man, tupad ta diri. A reasoned that she
had an headache and abdominal pain for her forthcoming
menstruation. Angered, the husband with physical violence
forced himself to A. Their commotion inside the bedroom was
heard by their children who were staying at the adjacent room.
Despite the wife’s plea, the husband continued his advances. The
children vigorously knocked on the door and asked what was
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happening because their mother was crying. They rescued their irrevocable implied consent theory, albeit in a limited form.
mother and brought her to the other room. According to Chief Justice Ramon C. Aquino,104 a

On the following night, A stayed in her children’s room and husband may not be guilty of rape under Article 335 of Act No.
refused to go to their bedroom. This enraged the husband. The 3815 but, in case there is legal separation, the husband should
husband lifted the wife from the bed and carried her out. The be held guilty of rape if he forces his wife to submit to sexual
wife defied it but the husband tore her short pants in the
presence of their children and said “even in front of you, I can intercourse.105
have sex with your mother. [maskig na sa inyong atubangan,
iyoton nako inyong mama]” The husband forcible pulled the
wife’s short pants and panties. Wife begged “don’t do that to me
In 1981, the Philippines joined 180 countries in ratifying the
my body is still aching.” *story story*
United Nations Convention on the Elimination of all Forms of
Discrimination Against Women (UN–CEDAW).106 Hailed as the
The wife field 2 counts of rape against the husband, and her
first international women’s bill of rights, the CEDAW is the first
witnesses are her own 2 daughters. The RTC convicted the
major instrument that contains a ban on all forms of
accused and sentence him to RP for the 2 counts. So the accused
discrimination against women. The Philippines assumed the role
contended that the incidents of sexual intercourse which gave
of promoting gender equality and women’s empowerment as a
rise to rape was theoretically consensual, obligatory even
vital element in addressing global concerns.107 The country also
because they were married and cohabiting. He argues that
committed, among others, to condemn discrimination against
consent of copulation is presumed between a cohabiting husband
women in all its forms, and agreed
and wife unless the contrary is proved. He claims that his case
should be treated differently from ordinary rape cases under the
to pursue, by all appropriate means and without delay, a policy
standards for determining presence of consent must be adjusted
of eliminating discrimination against women
on the ground that sexual community? is a mutual drive? and
obligation between husband and wife. In the case at bar:

Held: [note: wala nako gifollow ang discussion ni judge, gi-
butang nako ang important parts mentioned and not mentioned.
Read full text kay doctrinal ang case]
Theories of Rape:
Under the chattel theory prevalent during the 6th century, a
woman was the property of her father until she marries to
become the property of her husband.87 If a man abducted an
unmarried woman, he had to pay the owner, and later buy her
from the owner; buying and marrying a wife were
synonymous.88
From the 11th century to the 16th century, a woman lost her
identity upon marriage and the law denied her political power
and status under the feudal doctrine of coverture.89 A husband
had the right to chastise his wife and beat her if she
misbehaved, allowing him to bring order within the family.90
This was supplanted by the marital unity theory, which espoused
a similar concept. Upon marrying, the woman becomes one with
her husband. She had no right to make a contract, sue another,
own personal property or write a will.91
In the 17th century, Sir Matthew Hale (Hale), a Chief Justice in
England, conceived the irrevocable implied consent theory that
would later on emerge as the marital exemption rule in rape. He
stated that:
[T]he husband cannot be guilty of a rape committed by
himself upon his lawful wife, for by their mutual
matrimonial consent and contract the wife hath given
up herself in this kind unto her husband, which she
cannot retract.9
Interestingly, no documented case on marital rape has ever
reached this Court until now. It appears, however, that the old
provisions of rape under Article 335 of the RPC adhered to Hale’s
The crux of the accused–appellant’s plea for acquittal mirrors the
irrevocable implied consent theory. In his appeal brief before the
CA, he posits that the two incidents of sexual intercourse, which
gave rise to the criminal charges for rape, were theoretically
consensual, obligatory even, because he and
the victim, KKK, were a legally married and cohabiting couple.
He argues that consent to copulation is presumed between
cohabiting husband and wife unless the contrary is proved.
The accused–appellant further claims that this case should be
viewed and treated differently from ordinary rape cases and that
the standards for determining the presence of consent or lack
thereof must be adjusted on the ground that sexual community
is a mutual right and obligation between husband and wife.116
The contentions failed to muster legal and rational merit.
The ancient customs and ideologies from which the irrevocable
implied consent theory evolved have already been superseded by
modern global principles on the equality of rights between men
and women and respect for human dignity established in various
international conventions, such as the CEDAW. The Philippines,
as State Party to the CEDAW, recognized that a change in the
traditional role of men as well as the role of women in society
and in the family is needed to achieve full equality between
them. Accordingly, the country vowed to take all appropriate
measures to modify the social and cultural patterns of conduct of
men and women, with a view to achieving the elimination of
prejudices, customs and all other practices which are based on
the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men
and women.117 One of such measures is R.A. No 8353 insofar
as it eradicated the archaic notion that marital rape cannot exist
because a husband has absolute proprietary rights over his wife’s
body and thus her consent to every act of sexual intimacy with
him is always obligatory or at least, presumed.

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Another important international instrument on gender equality is
the UN Declaration on the Elimination of Violence Against
Women, which was promulgated118 by the UN General
Assembly subsequent to the CEDAW. The Declaration, in
enumerating the forms of gender–based violence that
constitute acts of discrimination against women, identified
‘marital rape’ as a species of sexual violence
Clearly, it is now acknowledged that rape, as a form of sexual
violence, exists within marriage. A man who penetrates her wife
without her consent or against her will commits sexual violence
upon her, and the Philippines, as a State Party to the CEDAW
and its accompanying Declaration, defines and penalizes the act
as rape under R.A. No. 8353.
A woman is no longer the chattel–antiquated practices labeled
her to be. A husband who has sexual intercourse with his wife is
not merely using a property, he is fulfilling a marital consortium
with a fellow human being with dignity equal120 to that he
accords himself. He cannot be permitted to violate this dignity by
coercing her to engage in a sexual act without her full and free
consent. Surely, the Philippines cannot renege on its
international commitments and accommodate conservative yet
irrational notions on marital activities121 that have lost their
relevance in a progressive society.
It is true that the Family Code,122 obligates the spouses to love
one another but this rule sanctions affection and sexual intimacy,
as expressions of love, that are both spontaneous and
mutual123 and not the kind which is unilaterally exacted by force
or coercion.
Further, the delicate and reverent nature of sexual intimacy
between a husband and wife excludes cruelty and coercion.
Sexual intimacy brings spouses wholeness and oneness. It is a
gift and a participation in the mystery of creation. It is a deep
sense of spiritual communion. It is a function which enlivens the
hope of procreation and ensures the continuation of family
relations. It is an expressive interest in each other’s feelings at a
time it is needed by the other and it can go a long way in
deepening marital relationship.124 When it is egoistically utilized
to despoil marital union in order to advance a felonious urge for
coitus by force, violence or intimidation, the Court will step in to
protect its lofty purpose, vindicate justice and protect our laws
and State policies. Besides, a husband who feels aggrieved by
his indifferent or uninterested wife’s absolute refusal to engage
in sexual intimacy may legally seek the court’s intervention to
declare her psychologically incapacitated to fulfill an essential
marital obligation.125 But he cannot and should not demand
sexual intimacy from her coercively or violently.
Moreover, to treat marital rape cases differently from non–
marital rape cases in terms of the elements that constitute the
crime and in the rules for their proof, infringes on the equal
protection clause. The Constitutional right to equal protection of
the laws126 ordains that similar subjects should not be treated
differently, so as to give undue favor to some and unjustly
discriminate against others; no person or class of persons shall
be denied the same protection of laws, which is enjoyed, by
other persons or other classes in like circumstances.127
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As above discussed, the definition of rape in Section 1 of R.A.
No. 8353 pertains to: (a) rape, as traditionally known; (b) sexual
assault; and (c) marital rape or that where the victim is the
perpetrator’s own spouse. The single definition for all three
forms of the crime shows that the law does not distinguish
between rape committed in wedlock and those committed
without a marriage.
Hence, the law affords protection to women raped by their
husband and those raped by any other man alike.
The posture advanced by the accused–appellant arbitrarily
discriminates against married rape victims over unmarried rape
victims because it withholds from married women raped by their
husbands the penal redress equally granted by law to all rape
victims.
“Among the duties assumed by the husband are his duties to
love, cherish and protect his wife, to ive her a home, to provide
her with the comforts and the necessities of life within his
means, to treat her kindly and not cruelly or inhumanely. He is
bound to honor her x x x; it is his duty not only to
maintain and support her, but also to protect her from
oppression and wrong.”
Husbands do not have property rights over their wives’ bodies.
Sexual intercourse, albeit within the realm of marriage, if not
consensual, is rape. This is the clear State policy expressly
legislated in Section 266–A of the Revised Penal Code (RPC), as
amended by Republic Act (R.A.) No. 8353 or the Anti–Rape Law
of 1997.
Marital rape does exist because it’s provided for under:
"Article 266-C. Effect of Pardon. - The subsequent valid
marriage between the offended party shall extinguish the
criminal action or the penalty imposed.
"In case it is the legal husband who is the offender, the
subsequent forgiveness by the wife as the offended party shall
extinguish the criminal action or the penalty: Provided, That
the crime shall not be extinguished or the penalty shall not be
abated if the marriage is void ab initio.
"Article 266-A. Rape: When And How Committed. - Rape is
committed:
"1) By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
"a) Through force, threat, or intimidation;
"b) When the offended party is deprived of reason or
otherwise unconscious;
"c) By means of fraudulent machination or grave abuse
of authority; and
"d) When the offended party is under twelve (12) years
of age or is demented, even though none of the
circumstances mentioned above be present.
Since section 1 of the law unqualifiedly used the term “man” in
defining rape, it’s unmistakable that RA 8353 penalizes the crime
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without regard to the rapist’s relationship with the victim. It may
include the husband.
Let’s go to another point:
Rogelio and Sanita are husband and wife. One day R forced
himself on his wife. During the pendency of the case, R asked
pardon from his wife, S pardoned him. What happens to the
case?
 Under Article 266-C, the case will be dismissed. The
pardon given by the wife extinguished the liability of R.
"Article 266-C. Effect of Pardon. - The subsequent valid
marriage between the offended party shall extinguish the
criminal action or the penalty imposed.
"In case it is the legal husband who is the offender, the
subsequent forgiveness by the wife as the offended party shall
extinguish the criminal action or the penalty: Provided, That
the crime shall not be extinguished or the penalty shall not be
abated if the marriage is void ab initio.
Now, suppose in the same problem, S pardoned her husband
after a judgment of conviction had been rendered and that the
husband is already serving sentence. What is the effect of the
pardon?
 The pardon will extinguish the criminal liability of R and
the penalty imposed, under 266-C
Now, let’s go to the special complex crime of rape with homicide
What if 3 persons raped a girl, one after the other. How many
informations should be filed?
 Side note: People v. Sanchez [January 25, 1999]: there
were 7 informations filed against Sanchez. Conviction
for 7 counts of rape with homicide
SC: the court found him guilty for 7 x 7 = 49 counts of rape with
homicide. There will be as many crimes of rape with homicide as
there are rapes with homicide committed. The presence of
homicide qualifies the crime of rape, therefore, by raising the
penalty to the higher degree. Thus, homicide committed by
reason of the rape loses its character as an independent offense
and assumes another character and function as a qualifying
circumstance. The 7 information filed against each of the men,
each of the 7 successive rapists complexed by the subsequent
slaying of [name sa girl].
 Now here, 9 [3x3]. Each of the accused is not only
guilty for the rape that he committed but also for rapes
committed by the other 2. One could be convicted for 3
times and sentenced to the appropriate penalty 3 times
also.
Also, the case of People v. Demetrio 227 S 27.
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“When your resources are down to nothing, believe that God is up to something =)”
You wanted to kill A by stabbing her, and so you killed her. You
saw A was still breathing, you raped her. What crime was
committed?
 Not rape with homicide- in rape with homicide, this
presupposes a rape of a woman after which you kill her.
 Crime is murder: rape there is considered as an
aggravating circumstance like ignominy or disregard to
the dignity of the victim.
People v. Laog Oct 5 2011
In the evening of 2000, A and her friend J were walking along
rice ___. Suddenly appellant appeared was holding an ice pick
and waited for them in the grassy area. Without warning,
appellant struck A in the head with a lead pipe causing her to be
dizzy and fell down. J sought for help and was also hit in the
head with a lead pipe and fell down. Appellant stabbed J several
times with the ice pick and thereafter covered her body with
grass. Appellant then went to A, and hit her in the head several
times with the lead pipe and on the face. While A was in a
defenseless position, appellant raped her. After raping her,
appellant also covered her with grass. At that point A passed out.
When A regained consciousness, it was night and it was raining
hard. *story* It was found out that J died. Accused was charged
with the following crimes:
1. In so far as A is concerned, rape
2. In so far as J is concerned, murder
Are the charges correct?
 Remember at what point in time was J killed.
SC: No, the charges are incorrect.
The facts established showed that the constitutive elements of
rape with homicide were consummated, and it is immaterial that
the person killed in this case is someone other than the woman
victim of the rape.
A was never killed, only J.
An analogy may be drawn from our rulings in cases of robbery
with homicide, where the component acts of homicide, physical
injuries and other offenses have been committed by reason or on
the occasion of robbery.
So what's the correct charge? The correct charge is only be for
rape with homicide.