BAR 2017 LAST MINUTE FORESIGHT IN SPECIAL PENAL LAWS By DEAN GEMY LITO L. FESTIN PUP COLLEGE OF LAW _____________________________________________________ 1.00 WHAT IS A SPECIAL PENAL LAW? It is a penal law which punishes acts not defined and penalized by the Penal Code. U.S. vs. Serapio, 23 Phil. 584 1.01 IS THE REVISED PENAL CODE APPLICABLE IN SPECIAL LAWS? Article 10 of the Revised Penal Code provides: “Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary.” The first sentence provides for the general rule. Special laws are not subject to the provisions of the Revised Penal Code. Hence, the provisions on stages of execution under Article 6, degree of participation of persons who are criminally liable under Title Two and the appreciation of the modifying circumstances in the proper imposition of penalties are not applicable, as a rule, to special penal laws. Consequently, in Noble vs. People, 77 Phil. 1086, plea of guilt as a mitigating circumstance is not available to offenses punishable under special laws. The second sentence refers to the suppletory effect of the Revised Penal Code to special laws, unless the latter should specially provide the contrary. In People vs. Ladonga, G.R. No. 141066, February 17, 2005, the Supreme Court applied the principle of conspiracy provided under Article 6 of the Revised Penal Code in suppletory character to violation of B.P. 22 case. In Tan vs. Spouses Tan, G.R. No. G.R. No. 168852, September 30, 2008, in a case involving Violence Against Women and Children or R.A. 9262, the
principle of conspiracy was again applied suppletorily. However, when the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules, for the application of penalties under the Code or by other relevant statutory provisions are based on or applicable only to said rules for felonies under the Code. People vs. Simon, 234 SCRA 576 1.02 DIFFERENTIATE CRIMES PUNISHED UNDER THE REVISED PENAL CODE FROM CRIMES PUNISHED UNDER THE SPECIAL PENAL LAW. a. In crimes punished under the Revised Penal Code, they are generally regarded as mala in se, the act committed in inherently wrong or immoral; under a special penal law, crimes are regarded as mala prohibita or the act is merely prohibited by law; *Exception: Plunder is malum in se. Estrada vs. Sandiganbayan, G.R. No. 148560. November 19, 2001. In the decision, the Supreme Court ruled: “The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts.” b. In crimes under the Revised Penal Code, good faith is a proper defense; in a special penal law, good faith is not a defense; *Exception: 1
Plunder being malum in se, criminal intent is required. The elements of mens rea must be proven in a prosecution for plunder. Estrada vs. Sandiganbayan, G.R. No. 148560. November 19, 2001. c. Under the Revised Penal Code, the stages of execution under Article 6 of the Revised Penal Code is considered in arriving at the proper penalty to be imposed; in a special penal laws, they are not; d. Under the Revised Penal Code , the degree of participation of the offenders under Title Two of the Revised Penal Code is taken into consideration on the penalty imposable; in a special penal law, it is not; *Exceptions: 1. Under Sections 4 and 5 of the Human Security Act of 2007, there may be accomplices and accessories. 2. Likewise, under Section 13 of or R.A. 7610 or the Anti-Torture Act, there may be principals and accessories. 3. Under Section 2 of R.A. 7080, or otherwise known as the Anti-Plunder Law, as amended by Section 12 of R.A. 7659, it provides that in the imposition of penalties, the degree of participation as provided under the Revised Penal Code, shall be considered by the Court. e. Under the Revised Penal Code, the modifying circumstances are appreciated in determining the penalty imposable; in a special penal law, they are not; *Exception: Under Section 2 of R.A. 7080, or otherwise known as the Anti-Plunder Law, as amended by Section 12 of R.A. 7659, it provides that in the imposition of penalties, the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code, shall be considered by the Court.
f. The Revised Penal Code uses the nomenclature of penalties provided under the Revised Penal Code, it a special penal law, it does not; *Exceptions: 1. Article 6 of the Anti-Child Abuse Law provides for the application of the nomenclature of penalties under the Revised Penal Code. Ex. Under Section 10 thereof, it states that “any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child’s development including hose covered by Article 59 of the Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period. “ Although R.A. No. 7610 is a special law, the rules in the Revised Penal Code for graduating penalties by degrees or determining the proper period should be applied. Sanchez vs. People 588 SCRA 747, June 5, 2009. 2. Likewise, under Section 14 of R.A. 7610 or the Anti-Torture Act, it uses again the nomenclature of penalties under the Revised Penal Code. 1.03
DIFFERENTIATE “INTENT TO COMMIT A CRIME” FROM “INTENT TO PERPETRATE THE ACT”.
When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously. Elenita C. Fajardo vs. People, G.R. No. 190889, January 10, 2011 2
1.04 ARE SPECIAL LAWS AMENDING CERTAIN PROVISIONS OF THE REVISED PENAL CODE CONSIDERED MALA PROHIBITA? No, special laws which are intended merely as amendments to certain provisions of the Revised Penal Code are mala in se and still subject to its provision.
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CHAPTER I. PROBATION LAW Presidential Decree No. 968 [BAR Q. 2012, 2010, 2009, 2005, 2004, 2003, 2002, 2001, 1997, 1995, 1994, 1993, 1992, 1990, 1986]
1.00 WHAT ARE THE PURPOSES OF PROBATION? (SEC.2)
[BAR Q.1986, 1989] The purposes of probation are as follows: (a) to promote the correction and rehabilitation of an offender by providing him with individualized treatment; b) to provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and (c) to prevent the commission of offenses. 1.01 WHEN MUST THE APPLICATION FOR PROBATION BE FILED? An application for probation must be made within the period for perfecting an appeal. Sable vs. People 584 SCRA 619, April 7, 2009 1.02 IF THE CONVICT HAD ALREADY PERFECTED AN APPEAL, CAN AN APPLICATION FOR PROBATION
STILL BE GRANTED?(SEC.4) No, provides:
Probation
Law
expressly
“x x x no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction.” The Probation Law prohibits a judge from entertaining or granting an application for probation if the defendant has perfected an appeal from the judgment of conviction. Salvan vs People, 410 SCRA 638 In Sable vs. People, 584 SCRA 619, April 7, 2009, the application for probation was denied. In this case, petitioner already filed a Notice of Appeal before the RTC before the application was instituted. The law is patently clear: "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." Illustrative cases 1. BAR Q.[2010] Matt was found guilty of drug trafficking while his younger brother Jeff was found guilty of possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs under Section 12 of Republic Act No. 9165. Matt filed a petition for probation. Jeff appealed his conviction during the pendency of which he also filed a petition for probation. The brothers’ counsel argued that they being first time offenders, their petitions for probation should be granted. How would you resolve the brothers’ petitions for probation? Suggested Answer: Both petitions should be denied. Any person found guilty of drug trafficking is disqualified to avail of the benefits of probation. Hence, Matt petition should be dismissed. Insofar as Jeff is concerned, his act of appealing his conviction disqualifies him to avail of probation. Probation law expressly states that no application for probation shall be entertained or granted if the defendant has 3
perfected an appeal from the judgment of conviction. 2. BAR Q.[2001] A, a subdivision developer, was convicted by the RTC of Makati for failure to issue the subdivision title to a lot buyer despite full payment of the lot, and sentenced to suffer one year imprisonment. A appealed the decision of the RTC to the Court of Appeals but his appeal was dismissed. May A still apply for probation? Explain. Suggested Answer: No, A may no apply for probation. The appeal that he filed from the judgment of conviction disqualifies him to avail of probation. Probation law provides that no application for probation shall be entertained or granted if the accused has perfected an appeal from the judgment of conviction. 1.03
WHAT IS THEREFORE THE IMPLICATION ON THE APPLICATION FOR PROBATION IF AN APPEAL IS ALREADY PERFECTED?
By perfecting their appeal, petitioners ipso facto relinquished the alternative remedy of availing of the Probation Law, the purpose of which is simply to prevent speculation or opportunism on the part of an accused who, although already eligible, does not at once apply for probation, but did so only after failing in his appeal. Lagrosa vs People, 405 SCRA 357 1.04 ON THE OTHER HAND, WHAT IS THE IMPLICATION ON THE RIGHT TO APPEAL IF THE APPLICATION FOR PROBATION WAS PREVIOUSLY FILED ? Section 4 of P.D. 968 as amended expressly states: “The filing of the application for probation shall be deemed a waiver of the right to appeal.” Illustrative case BAR Q.[1992] Johnny Gitara was convicted of the crime of estafa by the Regional Trial Court of Manila. He was
imposed the indeterminate penalty of imprisonment of 3 years, 2 months and 1 day as minimum and six years as maximum, both a prision correctional and was ordered to indemnify the offended party in the amount of P3,000.00. He filed an application for probation upon the promulgation of the judgment. What is the legal effect of his application for probation on the judgment of conviction? Does said application interrupt the running of the period of appeal? Suggested Answer: The legal effect of Johnny’s application for probation effectively waives his right to appeal. Judgment of conviction had become final and executory upon filing of the said application. The remedy of appeal is unavailing. 1.05 IS A WAIVER OF THE RIGHT TO APPEAL FROM A JUDGMENT OF CONVICTION LIKEWISE A WAIVER ON THE CIVIL LIABILITY EX DELICTO? No. In an appeal from a judgment of conviction, the criminal liability and the civil liability ex delicto should be considered independently, each with its own corresponding effects. In People vs. Efren Salvan Y Presenes, G.R. No. 153845 September 11, 2003, the Court reiterated that the law that bars an appeal of the judgment of conviction, as well as its corresponding criminal liability, should not bar an appeal of the civil aspect of the same judgment. 1.06 MAY PROBATION BE GRANTED EVEN IF THE SENTENCE IMPOSES A FINE ONLY? Yes, Section 4 of the same law states: “Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.” 1.07 IS AN ORDER GRANTING OR DENYING PROBATION APPEALABLE? BAR Q.[2002]
4
1.08
HOW DOES THE PREVAILING JURISPRUDENCE TREAT APPEAL AND PROBATION AS REMEDIES?
Prevailing jurisprudence treats appeal and probation as mutually exclusive remedies because the law is unmistakable about it and, therefore petitioner cannot avail herself of both. 1.09 WHAT IS THE LEGAL EFFECT OF PROBATION? A conviction becomes final when the accused applies for probation. 1.10 WHO ARE DISQUALIFIED TO AVAIL OF THE BENEFITS OF PROBATION? (SEC.9) Probation Law enumerates who are disqualified to avail of the benefits of probation. They are the following: “SECTION 9. Disqualified Offenders.THE BENEFITS OF THE PROBATION DECREE SHALL NOT BE EXTENDED TO THOSE: (1) Sentenced To Serve A Maximum Term Of Imprisonment Of More Than Six Years.
Drugs Act Of 2002) 1.11 ILLUSTRATION OF THE DISQUALIFICATIONS OF PROBATION LAW.
(1) Sentenced To Serve A Maximum Term Of Imprisonment Of More Than Six Years. Illustrative case BAR Q.[2002] A was charged with homicide. After trial, he was found guilty and sentenced to six (6) years and one (1) day prision mayor, as minimum, to twelve (12) and one (1) day of reclusion temporal, as maximum. Prior to his conviction, he had been found guilty of vagrancy and imprisoned for ten (10) days of arresto menor and fined fifty pesos (P50.00). Is he eligible for probation? Why? Suggested Answer: A is not eligible because his conviction exceeds six years. Probation does not extend to those sentenced to serve a maximum term of imprisonment of more than six years. His previous convictionin this case has nothing to do with his ineligibility to avail of probation.
(2) Convicted Of Any Crime Against National Security or the Public Order. (3) Who Have Previously Been Convicted By Final Judgment Of An Offense Punished By Imprisonment Of more than 6 months and 1 day and/or a fine of more than P1,000.00( as amended by R.A.10707); (4) Who Have Been Once On Probation Under The Provisions Of This Decree. (5) Who Are Already Serving Sentence At The Time The Substantive Provisions Of This Decree Became Applicable.” In addition: (6) Who Has Perfected An Appeal From The Judgment Of Conviction. (Sec.4) (7) Any Person Convicted Of Drug Trafficking or Pushing Regardless of the Penalty Imposed By The Court. (Sec. 24 of R.A. 9165, The Comprehensive Dangerous
a. Are there exceptions where even if the convict had filed an appeal still he is allowed to file a petition for probation? Yes, there are exceptions and they are the following: 1.
One exception is provided under Section 11 of RA 9265. It provides that the accused first-time offender may avail of suspended sentence subject to certain conditions. If there is violation of any of the conditions, the court shall pronounce judgment of conviction and he/she shall serve sentence as any other convicted person. The court, however, may place the accused under probation or community service in lieu of imprisonment.
Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation, even if the 5
sentence provided under this Act is higher than that provided under existing law on probation, or impose community service in lieu of imprisonment. 1.20 The principle enunciated in the case People vs. Arnel Colinares and now embodied under R.A.10707 amending the probation law. ARNEL COLINARES vs. PEOPLE G.R. No. 182748, December 13, 2011 FACTS: Arnel Colinares was found guilty of frustrated homicide by the RTC and sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify for probation. ISSUE: Whether or not accused may still apply for probation. RULING: Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the judgment of the RTC convicting him for frustrated homicide. Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did not have a choice between appeal and probation. He was not in a position to say, "By taking this appeal, I choose not to apply for probation." The stiff penalty that the trial court imposed on him denied him that choice. Thus, a ruling that would allow Arnel to now seek probation under this Court's greatly diminished penalty will not dilute the sound ruling in Francisco. It remains that those who will appeal from judgments of conviction, when they have the option to try for probation, forfeit their right to apply for that privilege. In a real sense, the Court's finding that Arnel was guilty, not of frustrated homicide, but only of attempted homicide, is an original conviction that for the first time imposes on him a probationable penalty. Had the RTC done him right from the start, it would have found him guilty of the correct offense and imposed on him the right penalty of two years and four months maximum. This would have afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying philosophy of probation is one of liberality towards the accused. Such philosophy is not served by a harsh and stringent interpretation of the statutory provisions. This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however, it convicted Arnel of the wrong crime, frustrated homicide that carried a penalty in excess of 6 years. How can the Court expect him to feel penitent over a crime, which as the Court now finds, he did not commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months. At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two years and four months maximum, he would have had the right to apply for probation. No one could say with certainty that he would have availed himself of the right had the RTC done right by him. The idea may not even have crossed his mind precisely since the penalty he got was not probationable. c.
What does R.A. 10707 provide where an application for probation is filed but the defendant has earlier perfected an appeal? Section 4 of P.D. 968, as amended by R.A. No. 10707 provides that NO application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction: Provided, That when a judgment of conviction imposing a nonprobationable penalty is appealed or reviewed, and such judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to apply for probation based on the modified decision before such decision shall becomes final.
d. Would the “total prison term” or the “maximum prison term” of the sentence be taken into account in determining one’s eligibility for probation? 6
The law uses the word “maximum term” and not total term. It is enough that each of the prison term does not exceed 6 years. The number of offenses is immaterial for as long as the penalties imposed, when taken individually and separately, are within the probationable period. Francisco vs. CA, 243 SCRA 384
b. Probation is not applicable when the accused has been convicted by final judgment of an offense punished by imprisonment of less than one (1) month and/or fine of less than P200.00.
(2) Convicted Of Any Crime Against National Security or the Public Order.
d. Probation is not applicable when accused is convicted of indirect bribery.
The Crimes against Security are as follows:
(3) Who Have Previously Been Convicted By Final Judgment Of An Offense Punished By Imprisonment Of Not Less Than One Month And One Day And/Or A Fine Of Not Less Than Two Hundred Pesos.
National
a. Treason b. Conspiracy and Proposal to Commit Treason c. Misprision of Treason d. Espionage e. Terrorism and Conspiracy to Commit Terrorism under R.A. 9372 The following are classified as Crimes against Public Order: a. Rebellion, Coup d’ etat, Sedition and Disloyalty b.
Crimes against Legislative Bodies and Similar Bodies, Violation Of Pariliamentary Immunity
c. Illegal Assemblies and Associations d. Assault Upon, and Resistance and Disobedience to Persons In Authority and Their Agents e. Public Disorders f. Commission of Another Crime During Service of Penalty Imposed for Another Previous Offense BAR Q. [2012] Under which of the following circumstances is probation not applicable? a. Probation is not applicable when the accused is sentenced to serve a maximum of six (6) years.
c. Probation is not applicable when accused is convicted of indirect assault. (*Indirect assault is a crime against public order)
Illustrative case BAR Q.[2004] PX was convicted and sentenced to imprisonment of thirty days and a fine of one hundred pesos. Previously, PX was convicted of another crime for which the penalty imposed on him was thirty days only. Is PX entitled to probation? Suggested Answer: Yes, the penalty imposed upon him does not exceed 6 years. His previous conviction for another crime with a penalty of thirty days imprisonment or not exceeding one (1) month does not disqualify him from applying for probation. (4) Who Have Been Once On Probation Under The Provisions Of This Decree. (5) Who Are Already Serving Sentence At The Time The Substantive Provisions Of This Decree Became Applicable Pursuant To Section 33 Hereof. (6) Who Has Perfected An Appeal From The Judgment Of Conviction (Sec.4, Probation Law. (*See previous discussion) Probation essentially rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and save the state the time, effort and expenses to jettison an appeal. Sable vs. People 584 SCRA 619, April 7, 2009 7
(7) Any Person Convicted Of Drug Trafficking or Pushing Regardless of the Penalty Imposed By The Court. (Sec. 24 of R.A. 9165, The Comprehensive Dangerous Drugs Act Of 2002). The Supreme Court had the occasion to explain this disqualification in Padua vs. People, 559 SCRA 519, July 23, 2008, where it states that under Section 24 of Rep. Act No. 9165, any person convicted of drug trafficking cannot avail of the privilege of probation. In this case, the convict was charged and convicted for violation of Section 5, Article II of Rep. Act No. 9165 for selling dangerous drugs. It is clear under Section 24 of Rep. Act No. 9165 that any person convicted of drug trafficking cannot avail of the privilege of probation. 1.12 WHAT IS THE PERIOD OF PROBATION IF- (SEC.14) a. the convict is sentenced to a term of imprisonment of not more than one year? The period of probation shall not exceed two years. BAR Q. [2012]The period of probation of the offender sentenced to a term of one (1) year shall not exceed a. two (2) years; b. six (6) years; c. one (1) year; d.three (3) years; b. the convict is sentenced to a term of imprisonment of more than one year? In all other cases, said period shall not exceed six years. 1.13 WHAT IS THE CONSEQUENCE IF THE PROBATIONER VIOLATES ANY OF THE CONDITIONS OF PROBATION? (SEC. 15) The court may arrest the probationer, hold an informal summary hearing and may revoke his probation in which case, he has to serve the sentence originally imposed. 1.14 WHEN IS PROBATION DEEMED TERMINATED? (Sec.16).
After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated. 1.15 WHAT IS THE CONSEQUENCE OF A FINAL DISCHARGE OF THE PROBATIONER? (Sec.16). The final discharge of the probationer shall operate to restore to him all civil rights lost or suspend as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted. 1.16 HOW CONSTRUED?
IS
PROBATION
LAW
It is well-settled that the probation law is not a penal statute; and therefore, the principle of liberal interpretation is inapplicable. And when the meaning is clearly discernible from the language of the statute, there is no room for construction or interpretation. People vs. Alejandra Pablo, G.R. No. 12510: August 3, 2000 1.17 IS A PROBATIONER DISQUALIFIED FROM RUNNING FOR A PUBLIC OFFICE DURING THE PERIOD OF HIS PROBATION? No. In the case of Moren vs. COMELEC and MEJES, G.R. 168550, August 10, 2006, the Supreme Court emphasized that during the period of probation, the probationer is not disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation. The Court went on to state the case of Baclayo vs. Mutia, 129 SCRA 148, where it ruled that an order placing defendant on probation is not a sentence but is rather in effect a suspension of imposition of sentence. The grant of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of suspension from public office and from the right to follow the profession or calling and that of perpetual 8
special disqualification from the right of suffrage.
and excessive jurisdiction of personal liberty and economic usefulness;
1.18 DOES THE GRANT OF PROBATION AFFECT THE ADMINISTRATIVE ASPECT OF A CASE?
2) It is intended to favor the accused particularly to shorten his term of imprisonment, depending upon his behavior and his physical, mental and moral record as a prisoner to be determined by the Board of Sentence.
No. Probation affects only the criminal aspect of the case, not its administrative dimension. Samalio vs Court of Appeals, 454 SCRA 462 1.19 CAN THE PERIOD WITHIN WHICH A PERSON IS UNDER PROBATION BE EQUATED WITH SERVICE OF SENTENCE ADJUDGED? No. The period within which a person is under probation cannot be equated with service of sentence adjudged. Section 4 of the Probation Law specifically provides that in the grant of probation, the probationer does not serve the penalty imposed upon him by the court but is merely required to comply with all the conditions prescribed by the probation order. Moren vs. Comelec and Mejes, G.R. 168550, August 10, 2006 -ooo000oooCHAPTER II. INDETERMINATE SENTENCE LAW ACT NO. 4103 as amended by Act No. 4225 and Republic Act No. 4203 [BAR Q. 2014, 2010, 2009, 2007, 2005, 2003, 2002, 1999, 1994, 1991, 1990, 1989, 1988]
1.01
IF A SPECIAL LAW ADOPTS PENALTIES UNDER THE REVISED PENAL CODE, WILL THE INDETERMINATE SENTENCE LAW APPLY JUST AS IT WOULD IN FELONIES?
Yes, where the special law adopted penalties from the Revised Penal Code, the Indeterminate Sentence Law will apply just as it would in felonies. The Supreme Court in Sanchez vs. People 588 SCRA 747, June 5, 2009, stressed that although Republic Act No. 7610 is a special law, the rules in the Revised Penal Code for graduating penalties by degrees or determining the proper period should be applied. The penalty for Other Acts of Child Abuse is prision mayor in its minimum period. This penalty is derived from, and defined in, the Revised Penal Code. Although R.A. No. 7610 is a special law, the rules in the Revised Penal Code for graduating penalties by degrees or determining the proper period should be applied. 1.02 UNDER WHAT CIRCUMSTANCES IS THE INDETERMINATE SENTENCE LAW NOT APPLICABLE (SEC. 2)?
___________________________________________________ A. IN GENERAL 1.00 CITE THE PURPOSES OF THE INDETERMINATE SENTENCE LAW. The purposes of Indeterminate Sentence Law are as follow: 1) To uplift and redeem valuable human material and prevent unnecessary
[*BAR Q: State the application of the Indeterminate Sentence Law/ BAR Q: Under what circumstances is the Indeterminate Sentence Law not applicable?] PURSUANT TO SECTION 2 OF THE INDETERMINATE SENTENCE LAW, IT SHALL NOT BE APPLICABLE IN THE FOLLOWING CASES:
9
1. Offenses punishable by death or life imprisonment. 2. Those convicted of treason, conspiracy or proposal to commit treason. 3. Those convicted of misprision of treason, rebellion, sedition or espionage. 4. Those convicted of piracy. 5. Habitual delinquents. 6. Those who escaped from confinement or those who evaded sentence. 7.
Those granted with conditional pardon and who violated the terms of the same.
8. Those whose maximum period of imprisonment does not exceed one year. 9. Those already serving final judgment upon the approval of this act. 1.03 EXPLAIN AND ILUSTRATE THE CIRCUMSTANCES WHEN THE INDETERMINATE SENTENCE LAW IS NOT APPLICABLE.
b. Query: May the privileged mitigating circumstance of minority be appreciated in fixing the penalty that should be imposed even if the penalty imposed is originally an indivisible penalty? Yes. The ISLAW is applicable because the penalty which has been originally an indivisible penalty (reclusion perpetua to death), where ISLAW is inapplicable, became a divisible penalty (reclusion temporal) by virtue of the presence of the privileged mitigating circumstance of minority. People vs. Allen Udtojan Mantalaba, G.R. No. 186227: July 20, 2011 2. Those Conspiracy Treason.
Convicted of Treason, or Proposal to Commit
a. TREASON b. CONSPIRACY TO COMMIT TREASON. Illustrative Case BAR Q.[2012] AA was convicted of proposal to commit treason. Under Article 115 of the Revised Penal Code, proposal to commit treason shall be punished by prision correccional and a fine not exceeding P5,000.00. Is the Indeterminate Sentence Law applicable to AA?
1. Offenses Punishable By Death Or Life Imprisonment.
a. Yes. The Indeterminate Sentence Law is applicable to AA because the maximum of prision correccional exceeds one (1) year.
a. May a person punished with reclusion perpetua be entitled to the benefits of ISLAW?
b. Yes. The Indeterminate Sentence Law is applicable to AA because there is no showing that he is a habitual delinquent.
No, it is deemed included in the disqualification. The Indeterminate Sentence Law does not apply to persons convicted of offenses punishable with Reclusion Perpetua. People vs. Lab-eo, 373 SCRA 461
c. No. The Indeterminate Sentence Law is not applicable to AA considering the penalty imposable for the offense of which he was convicted.
The Court has equated the penalty of reclusion perpetua as synonymous to life imprisonment for purposes of the Indeterminate Sentence Law. People vs. Enriquez G.R. No. 158797 July 29, 2005
d. No. The Indeterminate Sentence Law is not applicable considering the offense of which he was convicted (*The crime for which AA was convicted is proposal to commit treason). 3. Habitual Delinquents. 10
Who Delinquent?
is
a
Habitual
He is a person who within a period of ten (10) years from the date of his release or last conviction of the crimes of serious, less serious physical injuries, robbery, theft, estafa or falsification, he is found guilty of any of said crimes a third time or oftener (Article 62 of the Revised Penal Code as amended). Illustrative case 4. Those Who Escaped From Confinement or Those Who Evaded Sentence. [BAR Q.] A convict serving sentence for robbery escaped from the penitentiary and killed a rival gang member. Found guilty of homicide, he was given a straight prison term. He moved for reconsideration, contending that not being a habitual delinquent, he was entitled to an indeterminate sentence. Decide with reasons. Suggested Answer: Motion for reconsideration is denied. While it may true that A is not be a habitual delinquent, he however, escaped from prison while serving sentence. The Indeterminate Sentence Law provides that it shall not apply to persons who escaped from confinement or evaded his sentence. 5. Those Whose Maximum Period of Imprisonment Does Not Exceed One Year. a. Can an indeterminate sentence be imposed if the maximum term of imprisonment is less than 1 year? The Indeterminate Sentence Law does not apply if the maximum term of imprisonment does not exceed one year if the trial court opts to impose penalty of imprisonment less than one year, it should not impose indeterminate penalty but straight penalty of one year or less instead. An indeterminate sentence may be imposed if the minimum of the penalty is one year or less, and the
maximum exceeds one year. People vs. Lapis, 391 SCRA 131 1.04 WHAT ARE THE REASONS WHY THE MAXIMUM AND THE MINIMUM TERM OF THE INDETERMINATE SENTENCE HAVE TO BE FIXED BY THE COURT? The maximum and minimum term of the sentence have to be fixed because of the following reasons: 1) Whenever any prisoner shall have served the minimum penalty imposed on him, and it shall appear to the Board of Indeterminate Sentence that such prisoner is fitted by his training for release that there is a reasonable probability that such prisoner will live and remain at liberty without violating the law, and that such release will not be incompatible with the welfare of society, said Board may authorize the release of such prisoner on parole, upon such terms and conditions as may be presented by the Board; 2) Whenever any prisoner released on parole shall, during the period of surveillance, violate any of the conditions of his parole, the Board of Indeterminate Sentence may issue an order for his rearrest. In such case the prisoner so rearrested shall serve the remaining unexpired portion of the maximum portion of the maximum sentence for which he was originally committed to prison, unless the Board of indeterminate Sentence shall, in its discretion, grant a new parole to the said prisoner. 3) Even if a prisoner has already served the minimum, but he is not fitted for release on parole, he shall continue to serve imprisonment until the end of the maximum. 4) The need for specifying the minimum and maximum periods of the indeterminate sentence is to prevent the unnecessary and excessive deprivation of liberty and to enhance the economic usefulness of the accused, since he may be exempted from serving the entire sentence, depending upon his behavior and his 11
physical, mental, and moral record. Batistis vs. People, 608 SCRA 335, December 16, 2009 1.05
IS THE IMPOSITION OF INDETERMINATE SENTENCE MANDATORY IN CRIMINAL CASES?
Yes. The requirement of imposing an indeterminate sentence in all criminal offenses whether punishable by the Revised Penal Code or by special laws, with definite minimum and maximum terms, as the Court deems proper within the legal range of the penalty specified by the law must, therefore, be deemed mandatory. Batistis vs. People, 608 SCRA 335, December 16, 2009 In the instant case, the straight penalty the Court of appeals imposed was contrary to the Indeterminate Sentence Law, whose Section 1 requires that the penalty of imprisonment should be an indeterminate sentence. 1.06 IS THE LAW APPLICABLE IF THE PENALTY IS DESTIERRO?
TERM OF THE INDETERMINATE SENTENCE UNDER A SPECIAL LAW. Section 1 of the Indeterminate Sentence Law provides that when the offense is punished by a law other than the Revised Penal Code, “the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by law and the minimum shall not be less than the minimum term prescribed by the same. People vs. Bohol, 560 SCRA 232, July 28, 2008 The following rules shall apply: a) TO GET THE MAXIMUM: The maximum term shall not exceed the maximum fixed by said law. b) TO GET THE MINIMUM: The minimum shall not be less than the minimum term prescribed by the special law. Illustrative Cases
No, the law does not apply if the penalty is destierro because it does not involve imprisonment. B. RULES INVOLVING OFFENSES IN VIOLATION OF SPECIAL LAW (BAR QUESTION [2012] HOW IS THE INDETERMINATE SENTENCE LAW APPLIED IN IMPOSING A SENTENCE?) 2.00 IN THE IMPOSITION OF SENTENCE INVOLVING VIOLATION OF SPECIAL LAWS, WHAT DOES SECTION 1 OF THE INDETERMINATE SENTENCE LAW PROVIDE? The rule expressly provides: “If the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.” 2.01 GIVE THE RULES IN ARRIVING AT THE MAXIMUM AMD MINIMUM
a. [BAR Q.] A was convicted of illegal possession of grease guns and two Thompson sub-machine guns punishable under the old law (RA No. 4) with imprisonment of from five (5) to ten (10) years. The trial court sentenced the accused to suffer imprisonment of five (5) years and one (1) day. Is the penalty thus imposed correct? Explain. Suggested Answer: No. The penalty imposed by the court is a straight penalty of five (5) years imprisonment and one (1) day in violation of the express provision of the Indeterminate Sentence Law under Section 1 which requires that the court in imposing a prison sentence for an offense punishable under a special law, shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by the law and the minimum shall not be less than the minimum term prescribed by the same. d. THE PRESENCE OF A MITIGATING CIRCUMSTANCE IS IMMATERIAL IN THE 12
IMPOSITION OF PENALTY INVOLVING VIOLATION OF A SPECIAL LAW. [BAR Q:]Andres is charged with an offense defined by a special law. The penalty prescribed for the offense is imprisonment of not less than five (5) years but not more than ten (10) years. Upon arraignment, he entered the plea of guilty. In the imposition of the proper penalty, should the Indeterminate Sentence Law be applied? If you were the judge trying the case, what penalty would you impose on Andres? Suggested Answer: Yes, the Indeterminate Sentence Law should be applied. In a special law, the indeterminate sentence shall consist of a maximum term which shall not exceed the maximum fixed by the special law and a minimum term which shall not be less than the minimum term prescribed by the same. If I were the judge, I would impose a penalty of imprisonment consisting of any duration not less than 5 years as minimum term of the sentence and any duration not more than 10 years as maximum term of the sentence. The plea of guilty as a mitigating circumstance cannot be appreciated because the law violated is a special law. C. RULES INVOLVING CRIMES PUNISHED BY THE REVISED PENAL CODE. 3.00 IN THE IMPOSITION OF SENTENCE INVOLVING VIOLATION OF THE REVISED PENAL CODE, WHAT DOES SECTION 1 OF THE INDETERMINATE SENTENCE LAW PROVIDE? Section 1 expressly provides,” Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense.”
3.01 CITE THE RULE IN ARRIVING AT THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE UNDER THE REVISED PENAL CODE. To Get The Maximum Term: “That which, in view of the attending circumstances, could be properly imposed under the rules of the said code”. (Sec.1, ISLAW) The maximum term of the indeterminate penalty, according to the Indeterminate Sentence Law, is “that which, in view of the attending circumstances, could be properly imposed under the Rules of the said Code. Francisco, Jr. vs. People, 579 SCRA 608, February 18, 2009 3.02 ARE THE RULES OF OFFSETTING THE MODIFYING CIRCUMSTANCES APPLICABLE IN DETERMINING THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE? The rules of offsetting the modifying circumstances are applicable. The mitigating or aggravating circumstance is to be considered in the imposition of the maximum term of the indeterminate sentence. As ruled in Jose vs. People, 436 SCRA 294, the modifying circumstances are considered in the imposition of the maximum term of the indeterminate sentence. Article 64 of the Revised Penal Code governs the rules for the application of penalties which contain three periods, to wit: “1. When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. 2. When only a mitigating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period. 3. When only an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period. 13
4. When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight. 5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances.’ 3.03 CITE THE RULE IN ARRIVING AT THE MINIMUM TERM OF THE INDETERMINATE SENTENCE UNDER THE REVISED PENAL CODE. The law provides that the minimum should be: “…within the range of the penalty next lower to that prescribed by the code (rpc) for the offense…” (Sec. 1, ISLAW) The Indeterminate Sentence Law leaves it entirely within the sound discretion of the court to determine the minimum penalty, as long as it is anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. People vs.Jarillo, 601 SCRA 236, September 29, 2009 CONSIDER THE FOLLOWING PRINCIPLES-
The court has the discretion to fix as the minimum term any period of imprisonment within the penalty next lower to that prescribed by the Code for the offense. In determining the minimum term, it is left entirely within the discretion of the court to fix anywhere within the range of the penalty next lower without reference to the periods into which it may be subdivided. The trial court is given the widest discretion to fix the minimum of the indeterminate penalty so long as that penalty is within the range provided in the law. Garcia vs. People, 425 SCRA 221
-
The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. Jarillo vs. People 601 SCRA 236, September 29, 2009
Illustrative Case a. BAR Q. [2009] In a conviction for homicide, the trial court appreciated two (2) mitigating circumstances and one (1) aggravating circumstance. Homicide under Article 249 of the Revised Penal Code is punishable by reclusion temporal, an imprisonment term of twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, determine the appropriate penalty to be imposed. Explain. Suggested Answer: In order to obtain the maximum term of the indeterminate sentence, the rule of offsetting is applicable in view of the attending circumstances. Since there are two (2) mitigating circumstances as against one (1) aggravating circumstance, the period shall be set in its minimum. Hence, the maximum term of the indeterminate sentence is reclusion temporal in its minimum period. The minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. Since the penalty next lower in reclusion temporal is prision mayor, the minimum term of the indeterminate sentence therefore, is prision mayor, the period of which is upon the discretion of the court. a. Will your answer be the same if it is a conviction for illegal possession of drugs under R.A. 9165 (Dangerous Drugs Act of 2002), the prescribed penalty of which is also imprisonment for a term of twelve (12) years and one (1) day to twenty (20) years? Why or why not? Suggested Answer: No. It is a settle rule that the rule of offsetting is not applicable in crimes punished under a special penal law as in this case. The presence of any generic aggravating and ordinary mitigating circumstances will not affect the proper imposition of the penalty. 1. WITH THE PRESENCE OF PRIVILEGED AND ORDINARY 14
MITIGATING CIRCUMSTANCES BUT WITHOUT ANY AGGRAVATING CIRCUMSTANCES. Illustrative case [MODIFIED BAR Q.] Homicide is punishable by reclusion temporal. The accused, 17 years of age, with discernment, committed the crime of frustrated homicide while under the state of passion and obfuscation and acting in immediate vindication of a grave offense committed by the deceased against his mother. Accused thereafter surrendered voluntarily immediately after the commission of the offense, and pleaded guilty at the trial. What is the proper penalty to be imposed upon him? a)
The proper penalty is prision mayor in its minimum period as the maximum term of the indeterminate sentence and prision correccional as its minimum term the period of which is to be fixed upon the court’s discretion.
b) The proper penalty is prision correccional in its minimum period as the maximum term of the indeterminate sentence and arresto mayor as its minimum term the period of which is to be fixed upon the court’s discretion. c) The proper penalty is prision correccional as the maximum term of the indeterminate sentence the period of which is to be fixed upon the court’s discretion and arresto mayor in its minimum period as its minimum term.
discernment, hence, the penalty becomes prision correccional. There are two or more mitigating circumstances present in this case and no aggravating circumstances present. Under Article 64 paragraph 5 of the Revised Penal Code, the court shall impose the penalty next lower to that prescribed by law. The penalty therefore shall be reduced to arresto mayor. Arresto mayor carries the maximum term of imprisonment of only six months. The Indeterminate Sentence Law will not apply to those whose maximum term of imprisonment does not exceed one year. Consequently, the proper penalty to be imposed upon the accused is a straight penalty of arresto mayor. CASES 1. DELIA D. ROMERO vs. PEOPLE OF THE PHILIPPINES G.R. No. 171644: November 23, 2011 HELD: It is basic law that the application of the Indeterminate Sentence Law is mandatory where imprisonment exceeds one (1) year. 2. ROSANA ASIATICO y STA. MARIA vs. PEOPLE OF THE PHILIPPINES G.R. No. 195005: September 12, 2011 FACTS: Rosana Asiatico was convicted of illegal possession of dangerous drugs penalized under Section 11, Article II of (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002 and sentenced to suffer of imprisonment of twelve years and one day.
d) The proper penalty is arresto mayor only. The Indeterminate Sentence Law will not apply.
ISSUE: Whether or not the sentence imposed is proper.
Note: The penalty imposed in consummated homicide is reclusion temporal. Since the accused is convicted only of frustrated homicide, the penalty will be reduced by one degree, which is prision mayor. The accused who is a minor, is entitled to a privileged mitigating circumstance of one degree lower since he acted with
HELD: The courts a quo erred in imposing a straight penalty of "imprisonment of twelve (12) years and one day." Sec. 1 of the ISL mandates that, in case of a special law, the accused shall be sentenced "to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." 15
ADDENDUM: 1. Parole; Section 3 of Republic Act No. 9346 provides that persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. (People of the Philippines vs. Vicente Candellada, 701 SCRA 19, G.R. No. 189293, July 10, 2013, Leonardo-De Castro, J.) 2. Effect of suspension of death penalty. Under Article 266-B of the Revised Penal Code, as amended, the imposable penalty for qualified rape is death. With the effectivity, however, of Republic Act No. 9346, entitled, “An Act Prohibiting the Imposition of Death Penalty in the Philippines,” the imposition of the supreme penalty of death has been prohibited. Pursuant to Section 241 thereof, the penalty to be meted out to appellant shall be reclusion perpetua. (People vs. Tabayan, G.R. No. 190620, June 18, 2014.Perez, J.)
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CHAPTER III THE ANTI-GRAFT AND CORRUPT PRACTICES ACT Republic Act No. 3019 [BAR Q. 2014, 2012, 2011, 2010, 2009, 2003, 2000, 1999, 1997, 1991, 1990, 1988, 1985] ___________________________________________________ 1.00
HOW MUST CONSTRUED?
THE
LAW
BE
Every reasonable intendment will be made in support of the presumption of official acts in case of doubt as to an officer’s act being lawful or unlawful, construction should be in favor of its lawfulness. Bustillo, Sumilhig, Jr., and Billedo, Jr., vs. People, May 12, 2010 1.01 WHO MAY BE LIABLE UNDER SECTION 3 OF R.A. 3019?
The law punishes not only public officers who commit prohibited acts enumerated under Section 3 but also those who induce or cause the public official to commit those offenses. Santillano vs. People, March 03, 2010 1.02 WHO ARE DEEMED INCLUDED AS PUBLIC OFFICER? A public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government; Under the Anti-Graft Law, the nature of one's appointment, and whether the compensation one receives from the government is only nominal, is immaterial because the person so elected or appointed is still considered a public officer. Thus, in Javier v. Sandiganbayan, First Division, 599 SCRA 324, September 11, 2009, where petitioner was appointed by the President to the Governing Board of the NDBD and her term is only for a year, such does not make her private person exercising a public function. The fact that she is not receiving a monthly salary is also of no moment. Section 7, R.A. No. 8047 provides that members of the Governing Board shall receive per diem and such allowances as may be authorized for every meeting actually attended and subject to pertinent laws, rules and regulations. The Supreme Court held that the nature of one's appointment, and whether the compensation one receives from the government is only nominal, is immaterial because the person so elected or appointed is still considered a public officer. 1.03 WHO MAY BE LIABLE UNDER SECTION 3? a. The law punishes not only public officers who commit prohibited acts enumerated under Sec. 3, but also those who induce or cause the public official to commit those offenses. This is supported by Sec. 9, which includes private persons as liable for violations under Secs. 3, 4, 5, and 6. 16
b. Private persons found acting in conspiracy with public officers may be held liable for the applicable offenses found in Section 3 of the law. People vs.Santillano, 614 SCRA 164, March 3, 2010 1.04 ENUMERATE THE ACTS CONSIDERED AS CORRUPT PRACTICES OF PUBLIC OFFICERS UNDER SEC. 3 OF R.A. 3019. 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 to be unlawful: (A) Persuading, Inducing Or Influencing Another Public Officer To Perform An Act Constituting A Violation Of Rules And Regulations Duly Promulgated By Competent Authority Or An Offense In Connection With The Official Duties Of The Latter, Or Allowing Himself To Be Persuaded, Induced, Or Influenced To Commit Such Violation Or Offense. Illustrative case BAR Q.[1985] Cris Vera, an influential member of the Sangguniang Panlunsod of Butuan City and a well-known radio commentator of the said place, addressed a written communication to Director Jose of Butuan City LTO, asking for the issuance of a temporary permit for a special trip to Ozamis City of a TPU jeepney belonging to Vera's relative which got involved in a vehicular collision with a private car in the latter's place. The purpose of the said request is to make it appear that the trip although not within the authorized route of the TPU jeepney's certificate of convenience, was nevertheless authorized so as to enable the owner to recover on the insurance policy. Director Jose refused, fearful of the disastrous consequences. Thereafter, he was the subject of unsavory comments and furious attack by Cris Vera in his program. Director Jose then countered with a criminal complaint
for violation of the Anti-Graft Law with the Tanodbayan against Cris Vera. Will the complaint prosper? Discuss with reasons. Suggested Answer: No, the complaint against Cris Vera will not prosper. His act does not constitute persuading, inducing or influencing under Sec. 3 (a) of Republic Act 3019. To induce, persuade or influence connotes the giving of a price, reward or promise. Cris Vera should have acted in view of a consideration, payment or renumeration. “Unsavory comments and furious attacks” do not fall under the term “to induce, persuade or influence”. (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 Part, Wherein The Public Officer In His Official Capacity Has To Intervene Under The Law. a. ELEMENTS UNDER SECTION 3 (B) OF R.A. NO. 3019. To be convicted of violation of Section 3(b) of R.A. No. 3019, the prosecution has the burden of proving the following elements: 1) the offender is a public officer; 2) who requested or received a gift, a present, a share, a percentage, or benefit; 3) on behalf of the offender or any other person; 4) in connection with a contract or transaction with the government; 5) in which the public officer, in an official capacity under the law, has the right to intervene. Cadiao-Palacios vs. People, 582 SCRA 713, March 31, 2009 b. Explain the 4th element on the phrase in connection with “a contract or transaction”. It is very clear from Section 3 (b) of RA No. 3019 that the requesting or receiving of 17
any gift, present, share, percentage, or benefit must be in connection with “a contract or transaction” wherein the public officer in his official capacity has to intervene under the law. What is required is that the transaction involved should at least be described with particularity and proven. In Garcia vs. Sandiganbayan, G.R. No. 155574, November 20, 2006, the Supreme Court agreed with petitioner that the prosecution miserably failed to prove the existence of the fourth element. It is very clear from Section 3 (b) of RA No. 3019 that the requesting or receiving of any gift, present, share, percentage, or benefit must be in connection with “a contract or transaction” wherein the public officer in his official capacity has to intervene under the law. In this case, the prosecution did not specify what transactions the Company had with the LTO that petitioner intervened in when he allegedly borrowed the vehicles from the Company. It is insufficient that petitioner admitted that Company has continually transacted with his office. What is required is that transaction involved should at least be described with particularly and proven. To establish existence of the fourth element, the relation of the fact requesting and/or receiving transacts with petitioner’s LTO Office for the registration of its motor vehicles, in the reporting of its engine and chassis number, as well as the submission of its vehicle dealer’s report, and other similar transactions, will not suffice. This general statement failed to show the link between the 56 alleged borrowings with their corresponding transactions. c. What are the 3 distinct acts punished under this paragraph? 3 (b) penalizes three distinct acts: 1) demanding or requesting; 2) receiving; or 3) demanding, requesting and receiving – any gift, present, share, percentage, or benefit for oneself or for any other person, in connection with any contract or transaction between the government and any other party, wherein a public officer in an official capacity has to intervene under the law.
Each of these modes of committing the offense is distinct and different from one another. Proof of existence of any of them suffices to warrant conviction. CadiaoPalacios vs. People, 582 SCRA 713, March 31, 2009 d. Must the demand be made by the accused from the contractor himself? No. It is irrelevant from whom the accused demanded her percentage share of the project cost. As held in Preclaro v. Sandiganbayan, 247 SCRA 454 (1995), it is irrelevant from whom petitioner demanded her percentage share of the project cost – whether from the contractor himself or from the latter’s representative. That petitioner made such a demand is all that is required by Section 3(b) of R.A. No. 3019. (E) Causing Any Undue Injury To Any Party, Including The Government, Or Giving Any Private Party Any Unwarranted Benefits, Advantage Or Preference In The Discharge Of His Official Administrative Or Judicial Functions Through Manifest Partiality, Evident Bad Faith Or Gross Inexcusable Negligence. This Provision Shall Apply To Officers And Employees Of Offices Or Government Corporations Charged With The Grant Of Licenses Or Permits Or Other Concessions. 1. In order to hold a person liable under Section 3 (E) of R.A. 3019, what facts need to be proved? 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 officer’s 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
18
benefits, advantage or preference. Sison vs. People, 614 SCRA 670, March 9, 2010 People vs. Ong G. R. NO. 176546, September 25, 2009 FACTS: Ong as Mayor of Angadana, Isabela, bought an Isuzu dump truck for P750,000.00 from Ching for the use of the municipality. A letter-complaint was filed against petitioner by her successor, Siquian and several other Sangguniang Bayan members accusing her of malversation of public funds and property The Graft Investigation Officer found no probable cause for the charges but she was indicted for violation of Sec. 3 (e) of RA No. 3019, as amended. During trial, the sales manager of Christian Motor Sales in Cabanatuan City testified that the cost ranged from P190,000.00 – P490,000.00. Complainants testified that the dump truck was bought without conducting a public bidding or a resolution by the Sangguniang Bayan. The Sandiganbayan rendered its Decision finding petitioner guilty beyond reasonable doubt of violation of Sec. 3 (e) of RA No. 3019. ISSUE: Whether the act complained of constitutes a violation of sec 3 (e) of RA No. 3019. HELD: The Supreme Court finds that all the elements of the offense charged have been duly established beyond reasonable doubt. Petitioner, being then the Mayor of Angandaan, 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. The Sandiganbayan correctly ruled that by procuring the subject truck through a negotiated purchase without public bidding, petitioner failed to comply with the 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.
Price quotations obtained from several suppliers as well as the testimonies of Ramon de Guzman Sevilla, Ruben Lappay and Mirasol Lappay proved that the dump truck purchased by petitioner was overpriced, hence, had petitioner observed the proper procurement procedure, the municipality of Angandaan 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 unwarsnted benefits to Josephine Ching. 2. With Respect To the 3rd Element, In order to be held guilty of violating Section 3 (e) of Republic Act No. 3019, the provision itself explicitly requires that the accused caused undue injury for having acted with manifest partiality, evident bad faith, or with gross inexcusable negligence, in the discharge of his official administrative or judicial function. a. Must All of these Circumstances be Present in Order to Convict the Accused? No. Proof of any of these three in connection with the prohibited acts mentioned in Section 3 (e) of RA 3019 is enough to convict. Sison vs. People, March 09, 2010 b. Define Manifest Partiality. “Partiality” is synonymous with “bias” which “excites a disposition to see and report matters as they are wished for rather than as they are”. Sison vs. People, March 09, 2010 Manifest partiality exists when the accused has a clear, notorious, or plain inclination or predilection to favor one side or one person rather than another. It is synonymous with bias, which excites a disposition to see and report matters as they are wished for rather than as they are. Reyes vs. People, August 04, 2010 c. Define Evident Bad Faith. Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of wrong; a breach of sworn duty through some motive or intent or 19
ill will; it partakes of the nature of fraud. Sison vs. People, March 09, 2010 Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or to cause damage. It contemplates a breach of sworn duty through some perverse motive or ill will. Reyes vs. People, August 04, 2010 d. Define Gross Negligence. Gross negligence has been so defined as negligence characterized by the want of even slight care acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property. Sison vs. People, March 09, 2010 Gross inexcusable negligence does not signify mere omission of duties nor plainly the exercise of less than the standard degree of prudence it refers to negligence characterized by the want of even the slightest case, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences in so far as other persons may be affected. Sistoza vs. Desierto, 388 SCRA 307 3. Under the 4th element, may an accused be charged under either mode or both? There are two ways by which Section 3(e) of RA 3019 may be violated— a.
b.
the first mode: by causing undue injury to any party, including the government, or the second mode: by giving any private party any unwarranted benefit, advantage or preference
Although neither mode constitutes a distinct offense, an accused may be charged under either mode or both. The use of the disjunctive "or" connotes that the two modes need not be present at the same time. In other words, the presence of one would suffice for conviction. Ibid.
4. Under the First Mode (4th element), explain the meaning of “undue injury or damage”. Undue injury caused to any party, including the government, under Section 3 (e) of Republic Act No. 3019, could only mean actual injury or damage which must be established by evidence. People vs. Sandiganbayan, August 23, 2010
5. Under the Second Mode, will it suffice that the accused has given unjustified favor or benefit to another, in the exercise of his official, administrative or judicial functions? Yes, in order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another, in the exercise of his official, administrative or judicial functions. As an example, in Sison vs. People 614 SCRA 670, March 9, 2010, petitioner did just that. The fact that he repeatedly failed to follow the requirements of RA 7160 on personal canvass proves that unwarranted benefit, advantage or preference was given to the winning suppliers. These suppliers were awarded the procurement contract without the benefit of a fair system in determining the best possible price for the government. The private suppliers, which were all personally chosen by respondent, were able to profit from the transactions without showing proof that their prices were the most beneficial to the government.
6. Application of par (3) to public bidding. (G) Entering, On Behalf Of The Government, Into Any Contract Or Transaction Manifestly And Grossly Disadvantageous To The Same, Whether Or Not The Public Officer Profited Or Will Profit Thereby. 1. What are the elements under Section 3(G) of R.A. No. 3019?
20
To be indicted of the offense under Section 3(G) of R.A. No. 3019, the following elements must be present: a. that the accused is a public officer; b. that he entered into a contract or transaction on behalf of the government; and c. that such contract or transaction is grossly and manifestly disadvantageous to the government. Guy vs. People, 582 SCRA 108, March 20, 2009 2.
If there is an allegation of conspiracy, may a private person be held liable together with the public officer?
Yes, if there is an allegation of conspiracy, a private person may be held liable together with the public officer, in consonance with the avowed policy of the Anti-Graft and Corrupt Practices Act which is “to repress certain acts of public officers and private persons alike which may constitute graft or corrupt practices or which may lead thereto. Guy vs. People, 582 SCRA 108, March 20, 2009 3. Would the lack of public bidding automatically equate to a manifest and gross disadvantage to the government? No. The lack of public bidding alone does not automatically equate to a manifest and gross disadvantage to the government. Caunan vs. People, 597 SCRA 538, September 2, 2009. As the Supreme Court had declared in Nava v. Palattao (499 SCRA 745 [2006]), the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. However, this does not satisfy the third element of the offense charged, because the law requires that the disadvantage must be manifest and gross. People vs. Caunan G. R. NO. 181999, September 2, 2009 FACTS: Marquez and Caunan, along with four (4) other local government officials of Parañaque City and Antonio Razo were charged of violation of the Anti-Graft and
Corrupt Practices Act. The Informations were filed based on the findings of the COA that there was overpricing in certain purchase transactions of Parañaque City. To ascertain the prevailing price of walis tingting for the years 1996 to 1998, the audit team made a canvass of the purchase prices of the different merchandise dealers of Parañaque City. The audit team attempted to purchase walis tingting from the name suppliers of Parañaque City but when the audit team went to the listed addresses of the suppliers, they were occupied by other business establishments. Thereafter, the audit team urchased from a supplier that sold walis tingting.in Las Pinas City. The Sandiganbayan rendered judgment finding petitioners Caunan and Marquez, along with Silvester de Leon and Marilou Tanael, guilty of violating Section 3 (g) of R. A. No. 3019. ISSUE: Whether or not petitioners are guilty of violation of Section 3 (g) of R.A. No. 3019. HELD: The prosecution was not able to demonstrate the requisite burden of proof beyond reasonable doubt where what was only shown was that the audit team reached a conclusion of gross overpricing based on the documents which, at best, would merely indicate the present market price of walis tingting of a different specification, purchased from a non-supplier of Parañaque City, and the price of walis tingting purchases in Las Piñas City – the prosecution should have presented evidence of the actual price of the particular walis tingting purchased at the time of the audited transaction or, at the least, an approximation thereof. Failing in these, there is no basis to declare that there was a glaring overprice resulting in gross and manifest disadvantage to the government. The audit team reached a conclusion of gross overpricing based on documents which, at best, would merely indicate the present market price of walis tingting of a different specification, purchased from a non-supplier of Parañaque City, and the price of walis tingting purchases in Las Piñas City. Effectively, the prosecution was unable to demonstrate the requisite burden of proof. Most obvious would be the market 21
price of walis tingting in Las Piñas City which was used as proof of overpricing in Parañaque City. For a charge under Section 3 (g) to prosper, the following elements must be present: (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government. The Supreme Court agrees with petitioners that the fact of overpricing is embedded in the third criminal element of Section 3 (g) of R.A. No. 3019. Given the factual milieu of this case, the subject contracts would be grossly and manifestly disadvantageous to the government if characterized by an overpriced procurement. However, the gross and manifest disadvantage to the government was not sufficiently shown because the conclusion of overpricing was not also adequately proven. (H) Director Or Indirectly Having Financing Or Pecuniary Interest In Any Business, Contract Or Transaction In Connection With Which He Intervenes Or Takes Part In His Official Capacity, Or In Which He Is Prohibited By The Constitution Or By Any Law From Having Any Interest. 1. THE ESSENTIAL ELEMENTS UNDER SECTION 3(H) OF R.A NO. 3019 The essential elements of the violation of said provision are as follows: 1) The accused is a public officer; 2) he has a direct or indirect financial or pecuniary interest in any business, contract or tran saction; He either: a) intervenes or takes part in his official capacity in connection with such interest, or b) is prohibited from having such interest by the Constitution or by law. Teves vs. The Commission on Elections, 587 SCRA 1, April 28, 2009. 2. What is the concept of “financial or pecuniary interest”?
To illustrate, in Teves v. Sandiganbayan, 447 SCRA 309 (2004), petitioner was convicted under the second mode for having pecuniary or financial interest in a cockpit which is prohibited under Sec. 89(2) of the Local Government Code of 1991. View that under Section 3(h) of Republic Act No. 3019, the element of "financial or pecuniary interest" contemplated under the Second Mode of violating Sec. 3(h) is one prohibited by law, a qualification not present in the First Mode Teves vs. Sandiganbavan, 447 SCRA 309. 3. What are the two (2) modes by which a public officer may violate paragraph 3(H) of R.A. 3019? There are two modes by which a public officer who has a direct or indirect financial or pecuniary interest in any business, contract, or transaction may violate Section 3(h) of R.A. 30191.
The first mode is when the public officer intervenes or takes part in his official capacity in connection with his financial or pecuniary interest in any business, contract, or transaction.
2.
The second mode is when he is prohibited from having such an interest by the Constitution or by law.
2.00
WHAT IS THE PRESCRIPTIVE PERIOD TO FILE A CASE UNDER THIS ACT? (Sec. 11)
All offenses punishable under this Act shall prescribe in ten years. 2.01 CAN A PUBLIC OFFICER RESIGN OR RETIRE PENDING ANY CASE AGAINST HIM? (Sec. 12) Yes. The rule provides that no public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery. 2.02
CAN A PUBLIC OFFICER BE SUSPENDED UNDER THIS ACT? 22
(Sec. 13) “Section 13 of the law reads: Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office.” The law further provides that hould he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.” It is a settled doctrine that R.A. No. 3019 should be read to protect the State from fraud by its own officials. Section 13 of R.A. No. 3019 covers two types of offenses; (1) any offense involving fraud on the government; and (2) any offense involving public funds or property. Illustrative case BAR Q. [2000] A month after the arraignment of Brad Kit, Commissioner of the Housing and Land Use Regulatory Board, who was charged with violation of Section 3(h) of republic Act 3019. (AntiGraft and Corrupt Practices Act before the Sandiganbayan, the Office of the Special Prosecutor filed a Motion to Suspend Accused Pendete Lite pursuant to Section 13 of the Anti-Graft Law. The Court granted the motion and suspended accused Brad Kit. The court granted the and suspended accused Brad Kit for a period of 90 days. Accused assailed the constitutional validity of the suspension order on the ground that it partakes of a penalty before judgment of conviction is reached and is thus violative of his constitutional right to be presumed innocent. He also claimed that this provision of the law on suspension pendente lite applies only to elective officials and not to appointed ones like him. Rule with reasons.
Suggested Answer: The suspension order does not partake of a penalty and in no way violative of Brad Kit's constitutional right to be presumed innocent. Under the law, suspension pendente lite applies to all public officials indicted upon a valid information under RA No. 3019, the purpose is to prevent said official from hampering or influencing the normal course of the investigation. 2.03 WHAT IS THE RULE WITH RESPECT TO UNSOLICITED GIFTS OR PRESENTS OF SMALL OR INSIGNIFICANT VALUE? (SEC.14) Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage, shall be exempted from the provisions of this Act. ADDENDUM: 1. Private person may be liable. 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 (e) 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. This is the controlling doctrine as enunciated by the Court in previous cases.(Edelbert C. Uyboco vs. People, G.R. No. 211703, December 10, 2014, Velasco Jr., J.) 2. Good faith of heads of offices in signing a document. The good faith of heads of offices in signing a document will only be appreciated if they, with trust and confidence, have relied on their subordinates in whom the duty is primarily lodged. (Sanchez vs. People, 703 SCRA 586, G.R. No. 187340, August 14, 2013,Sereno, CJ.) 3. Manifest partiality, Evident bad faith and Gross inexcusable negligence explained. In Uriarte vs. People, the Court explained that Section 3(e) of RA 3019 may be committed either by dolo, as when the 23
accused acted with evident bad faith or manifest partiality, or by culpa, as when the accused committed gross inexcusable negligence. There is “manifest partiality” when there is clear, notorious, or plain inclination or predilection to favor one side or person rather than another. “Evident bad faith” contemplates a state of mind affirmatively operating with furtive design or with some motive of self-interest or ill will or for ulterior purposes. “Gross inexcusable negligence” refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected. (Jovito C. Plameras vs. People of the Philippines, G.R. No. 187268, September 4,2013, Perez, J.) 4. When can private persons be charged. However, private persons may likewise be charged with violation of Section 3(g) of RA 3019 if they conspired with the public officer. (Gregorio Sing Ian, Jr. vs. Sandiganbayan (3rd division), The People of the Philippines, G.R. Nos.195011-19, September 30, 2013,Del Castillo, J.) 5. Contract and transaction explained. A transaction, like a contract, is one which involves some consideration as in credit transactions and this element (consideration) is absent in the investigation conducted by the petitioner. In the light of the foregoing, the Court agrees with the petitioner that it was error for the Sandiganbayan to have convicted him of violating Sec. 3 (b) of R.A. No. 3019. (People vs. Sandiganbayan, G.R. No. 188165/G.R. No. 189063 December 11, 2013, Bersamin, J.) Notably, the offense defined under Section 3 (e) of R.A. No. 3019 may be committed even if bad faith is not attendant. Thus, even assuming for the sake of argument that Coloma did not act in bad faith in rendering his report, his negligence under the circumstances was not only gross but also inexcusable. (Coloma vs. Sandiganbayan, G.R. No. 205561, September 24, 2014, Mendoza, J.) -ooOOOooo-
CHAPTER IV. THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 Republic Act No. 9165 [BAR Q. 2014, 2010, 2009, 2007, 2006, 2005, 2004, 2002, 2000, 1998, 1996, 1992] __________________________________________________ 1.00 ENUMERATE THE UNLAWFUL ACTS UNDER THE LAW. (*bar topic) The unlawful acts are as follows: 1. Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 4) Illustrative case BAR Q.[2006]After receiving a reliable information that Dante Ong, a notorious drug smuggler, was arriving on PAL Flight No. PR181, PNP Chief Inspector Samuel Gamboa formed a group of antidrug agents. When Ong arrived at the airport, the group arrested him and seized his attache case. Upon inspection inside the Immigration holding area, the attache case yielded 5 plastic bags of heroin weighing 500 grams. Chief Inspector Gamboa took the attache case and boarded him in an unmarked car driven by P03 Pepito Lorbes. On the way to Camp Crame and upon nearing White Plains corner Edsa, Chief Inspector Gamboa ordered P03 Lorbes to stop the car. They brought out the drugs from the case in the trunk and got 3 plastic sacks of heroin. They then told Ong to alight from the car. Ong left with the 2 remaining plastic sacks of heroin. Chief Inspector Gamboa advised him to keep silent and go home which the latter did. Unknown to them, an NBI team of agents has been following them and witnessed the transaction. They arrested Chief Inspector Gamboa and P03 Lorbes. Meanwhile, another NBI team followed 24
Ong and likewise arrested him. All of them were later charged. What are their criminal liabilities?
respective
Suggested Answer: Chief Inspector Samuel Gamboa and P03 Pepito Lorbes are liable as protector/coddler to the illegal importation of the dangerous drugs into the Philippines. They knew Mr. Ong violated the Comprehensive Drugs Act yet, they used their position to facilitate his escape with a view to prevent his arrest, prosecution and conviction . The police officers are guilty of misappropriation and failure to account for seized dangerous drugs punished under Sec 27 of R.A. 91165. On the other hand, Dante Ong is guilty of illegal importation of dangerous drugs under Art II Sec. 4, RA 9165. 2. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential (Sec. 5) a. What is a BUY- BUST OPERATION? A buy-bust operation is a form of entrapment which had repeatedly been accepted to be a valid means of arresting violators of the Dangerous Drugs Law; In every prosecution for Illegal sale of prohibited or regulated drugs, the following elements must be established (1) the identity of the buyer and seller, the object and the consideration; and (2) the delivery of the thing sold and the payment thereof. People vs.Suson and Fortich, G.R. No. 152848, July 12, 2006 b. Principles in Buy-Bust Operation. 1. The presentation in evidence of the “buybust” money is not indispensable for the conviction of an accused provided that the sale of marijuana is adequately proven by the prosecution. People vs. Pascual, 208 SCRA 393 2. It is not surprising for a police officer to use his own money during the buy-bust
operation-- such use of money does not adversely affect the case against the accused. There is no requirement that the police must apply fluorescent powder to the buy-bust money to prove the commission of the offense; there is no law or rule of evidence requiring the use of fluorescent powder or the taking of the culprit's fingerprints from the bag containing the shabu. 3. What is material is the delivery of the prohibited drug to the buyer which in this case, was sufficiently proved by the prosecution through the testimony of the poseur-buyer and the presentation of the articles itself before th court. Besides, the money was already marked by the poseur buyer with his initials CG. Neither is fingerprints a requirement in buy-bust operations. There is no law or rule of evidence requiring the use of fluorescent powder or the taking of the culprits fingerprints from the bag containing the shabu. People vs. Saidmin Macabalang GR No. 168694; Novemeber 27, 2006 4. Mission order, court order and surveillance progress report are not required in buy-bust operation. People vs. Ong Co, 245 SCRA 733 5. There is no fixed procedure for conducting buy- bust operations. People vs. Cruda, 212 SCRA 125 6. In a “buy-bust” operation, the important aspect of police operatives in their modus operandi is not the hearing but seeing the accused selling the prohibited drugs. People vs. Fernandez, 228 SCRA 301 c. Is non-coordination with PDEA fatal to the prosecution’s cause? Coordination with the Philippine Drug Enforcement Agency (PDEA) is not an indispensable requirement before police authorities may carry out a buy-bust operation – a buy-bust operation is not invalidated by mere non-coordination with the PDEA. People vs. Roa d. ELEMENTS NECESSARY FOR THE PROSECUTION OF ILLEGAL SALE OF DRUGS. 25
The elements necessary for the prosecution of illegal sale of drugs are: (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment thereof. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. People vs. Macatingag, G.R. No. 181037, January 19, 2009 e. DIFFERENTIATE THE ELEMENTS OF ILLEGAL SALE FROM ILLEGAL POSSESSION OF DANGEROUS DRUGS. In a prosecution for illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence. In a prosecution for illegal possession of a dangerous drug, it must be shown that (1) the accused was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the accused was freely and consciously aware of being in possession of the drug. People vs. Darisan, G.R. No. 176151, January 30, 2009 3. Possession of Dangerous Drugs. (Sec.11) a. Does RA6425 prescribe a single punishment for illegal possession of shabu and marijuana committed at the same time and in the same place? RA 6425 does not prescribe a single punishment for the various offenses enumerated in the law; RA 6425 enumerates the punishable acts and its corresponding penalty; it also specifies the particular drugs and corresponding quality in the imposition of penalty. The prosecution was correct in filing two separate Informations for the crimes of illegal possession of shabu and illegal possession of marijuana. Clearly, the
legislature did not intend to lump these two separate crimes into just one crime of possession of dangerous drugs. Otherwise there would be no need to specify the different kinds of drugs and corresponding quantity in the application of the appropriate penalty. Multiple offenses can be committed under RA 6425 even if the crimes are committed in the same place, at the same time, and by the same person. Thus, this Court has upheld rulings of the lower courts convicting an accused charged with two separate crimes of illegal possession of shabu and illegal possession of marijuana, even if the crimes were committed at the same time and in the same place. As ruled in People vs Tira, 430 SCRA 134 (2004), illegal possession of shabu and marijuana constitutes two separate crimes and therefore two informations should be filed. People vs. Hon Marcial Empleo, In His Capacity As Presiding Judge Of Branch 9, Regional Trial Court, Dipolog City, Dante Mah Y Cabilin b. Enumerate the ELEMENTS OF THE CRIME OF ILLEGAL POSSESSION OF DANGEROUS DRUGS. The elements of the crime of illegal possession of dangerous drugs are as follow: (a) the accused was in possession of the regulated drugs; (b) the accused was fully and consciously aware of being in possession of the regulated drug; and (c) the accused had no legal authority to possess the regulated drug. Possession may actual or constructive. People vs. Eliza Buan, G.R. No. 168773, OCT. 27, 200 c. What is the concept of “POSSESSION”? The court in People vs Tira, 430 SCRA 134 (2004), ruminated on the juridical concept of possession and the evidence necessary to prove the said crime. 26
Since the crime charged is mala prohibita, criminal intent is not essential element. However the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another. Thus conviction need not be predicated upon exclusive possession, and the showing of non-exclusive and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the drug. The fact that the appellant was not in the residence when it was searched nor caught in flagrante delicto possessing the illicit drugs and paraphernalia does not dent the case of the prosecution. As a matter of law, when prohibited and regulated drugs (under the old law) are found in a house or other building belonging to and occupied by a particular person, the presumption arises that such person is in possession of such drugs in violation of law, and the fact of finding the same is sufficient to convict. Otherwise stated, the finding of the illicit drugs and paraphernalia in the house owned by the appellant raised the presumption of knowledge and, standing alone, was sufficient to convict. People vs. Torres, G.R. No. 170837, September 12, 2006 d. When will the PRIMA FACIE EVIDENCE OF KNOWLEDGE or ANIMUS POSSIDENDI arise? Mere possession of a regulated drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to
convict an accused absent a satisfactory explanation of such possession- the onus probandi is shifted to the accused, to explain the absence of knowledge or animus possidendi”. With the burden of evidence shifted to the appellant, it was his duty to explain his innocence on the regulated drug seized from his person. People vs. Gomez, G.R. No. 175319, January 15, 2010 e. What must be proved to establish CONSTRUCTIVE POSSESSION? In order to establish constructive possession, the People must prove that petitioner has dominion or control on either the substance or the premises where found. The state must prove adequate nexus between the accused and the prohibited substance. Possession of dangerous drugs constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of any satisfactory explanation of such possession. The burden of evidence is shifted to petitioner to explain the absence of animus possidendi. People vs .Buan, G.R. No. 168773, OCT. 27, 2006 Illustrative case BAR Q. [2002] A and his fiancée B were walking in the plaza when they met a group of policemen who had been tipped off that A was in possession of prohibited drugs. Upon seeing the policemen and sensing that they were after him, A handed a sachet containing shabu to his fiancée B, telling her to hide it her handbag. The policemen saw B placing the sachet inside her handbag. If B was unaware that A was a drug user or pusher or that what was inside the sachet given to her was shabu, is she nonetheless liable under the Dangerous Drugs Act? Suggested Answer: B is not criminally liable. The facts clearly show the absence of animus possidendi or intent to possess which is an element of the crime of illegal possession of drugs. The accused was not fully and consciously aware of being in possession of the dangerous drug. 27
4. Use of Dangerous Drugs. (Sec.15) a. What is the rule with respect to the use of dangerous drugs? A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00). b. Is there an exception to this rule? Yes, Section 15 of R.A. expressly excludes penalties for the use of dangerous drugs when the person is found to have in his possession quantity of any dangerous drug under Section 11. It states: “That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply.” Illustrative case BAR Q. [2005] Obie Juan is suspected to have in his possession an unspecified amount of methamphetamine hydrochloride or “shabu”. An entrapment operation was conducted by police officers, resulting in his arrest following the discovery of 100 grams of the said dangerous drug in his possession. He was subjected to a drug test and was found positive for the use of marijuana, another dangerous drug. He was subsequently charged with two crimes: Violation of Section 11, Article II of RA 9165 for the possession of “shabu” and violation of Section 15 for the use of marijuana. Are the charges proper? Explain. Suggested Answer: The charge of possession of shabu under Section 11, Article
II of RA 9165 is proper. The entrapment operation yielded the discovery of 100 grams of the said dangerous drug in his possession. However, the charge of use of marijuana is not proper. Section 15 of Rep Act 9165 is explicit. It excludes penalties for use of dangerous drugs when “the person tested is also found to have in possession such quantity of any dangerous drug” provided in Section 11 of such Act”. 2.00 CHAIN OF CUSTODY (SEC. 21) a. CITE THE PROPER CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED, AND/OR SURRENDERED DANGEROUS DRUGS, PLANT SOURCES OF DANGEROUS DRUGS, CONTROLLED PRECURSORS AND ESSENTIAL CHEMICALS, INSTRUMENTS/PARAPHERNALIA AND/OR LABORATORY EQUIPMENT UNDER SEC. 21 OF R.A.9165. Sec. 21 of R.A. 9165 expressly provides that: “The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; (2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic 28
Laboratory for a qualitative quantitative examination;
and
(3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours; (4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes: Provided, further, That a representative sample, duly weighed and recorded is retained; (5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having jurisdiction
over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board; (6) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney's office to represent the former; (7) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-four (24) hours from receipt of the same; and (8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of this Act, dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representatives of the Court, DOJ, Department of Health (DOH) and the accused/and or his/her counsel, and, b) Pending the organization of the PDEA, the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided under this Section shall be implemented by the DOH.” b. What does “CHAIN OF CUSTODY” mean? “Chain of Custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the 29
identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence, and the final disposition. People vs. Ruiz Garcia, G.R. No.173480 February 25, 2009 c. Is strict compliance with the prescribed procedure essential? Yes. Section 21, paragraph 1, Article II of R.A. No. 9165 and Section 21(a), Article II of the Implementing Rules and Regulations (IRR) of RA No. 9165 give us the procedures that the apprehending team should observe in the handling of seized illegal drugs in order to preserve their identity and integrity as evidence. As indicated by their mandatory terms, strict compliance with the prescribed procedure is essential and the prosecution must show compliance in every case. People vs. Alejandro, G.R. No. 176350, August 10, 2011 Strict compliance with the prescribed procedure is required because of the illegal drug’s unique characteristic rendering it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise. Hence, the rules on the measures to be observed during and after the seizure, during the custody and transfer of the drugs for examination, and at all times up to their presentation in court. The Court recognized the following links that must be established in the chain of custody in a buybust situation: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the
court. People vs. Kamad, G.R. No. 174198, January 19, 2010 d. Would non-compliance with the prescribed procedural requirements render the seizure void? No. Mere lapses in procedures need not invalidate a seizure if the integrity and evidentiary value of the seized items can be shown to have been preserved. As held in the case of People vs. Alejandro, G.R. No. 176350, August 10, 2011, the Supreme Court pronounced that noncompliance with the prescribed procedural requirements does not necessarily render the seizure and custody of the items void and invalid; the seizure may still be held to be valid, provided that (a) there is a justifiableground for the noncompliance, and (b) the integrity and evidentiary value of the seized items are shown to have been properly preserved. Further, in another case, the Court stressed that the failure on the part of the police officers to take photographs and make an inventory of the drugs seized from the appellant was not fatal because the prosecution was able to preserve the integrity and evidentiary value of the said illegal drugs. People vs. Llamado, G.R. No. 185278 March 13, 2009 However, the failure to follow the procedure mandated under R.A. No. 9165 and its IRR must be adequately explained. The justifiable ground for non-compliance must be proven as a fact. The court cannot presume what these grounds are or that they even exist. People vs. De Guzman, G.R. No. 186498, March 26, 2010 e. Is the presumption of regular performance of duty conclusive in chain of custody cases? No. this presumption is not conclusive and cannot, by itself, overcome the constitutional presumption of innocence. The presumption of regularity, it must be emphasized, obtains only when there is no deviation from the regular performance of duty. Where the official act in question is irregular on its face, no presumption of 30
regularity can arise. In the present case, the procedural lapses by the apprehending team in the handling of the seized items – from their failure to mark it immediately upon confiscation, to their failure to inventory and photograph it in the presence of the accused, or his representative or counsel, a representative from the media and the DOJ, and any elected public official, without offering any justifiable ground – effectively negated the presumption of regularity. People vs. Alejandro, G.R. No. 176350, August 10, 2011 f. Does the stipulation to the chemist’s receipt of an “allegedly” confiscated specimen which tested positive for shabu sufficient? No. The stipulation referred to the chemist’s receipt of an “allegedly” confiscated specimen which tested positive for shabu is not sufficient. There is no certainty that what was submitted and subjected for chemical examination was the specimen obtained from appellant. The failure to establish the evidence’s chain of custody is damaging to the prosecution’s case. People vs. Balagat, G.R. No. 177163, April 24, 2000 g. Cite certain important doctrines under the Chain of Custody. 1. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court. People v. Sitco, May 14, 2010 2. The duty to prove the guilt of an accused is reposed in the State. Law enforcers and public officers have the duty to preserve the chain of custody over the seized drugs. This guarantee of the integrity of the evidence to be used against an accused goes to the very heart of his fundamental rights. People vs .De Guzman, G.R. No. 186498, March 26, 2010 3. Given the foregoing perspective, it is fairly evident that the police operatives trifled with the procedures in the custody of seized prohibited drugs in a buy-bust operation, as embodied in Sec. 21(1), Art. II of RA 9165, i.e., the apprehending officer/team
having initial custody and control of the drug shall: immediately after seizure and confiscation, physically inventory and photograph the [drug] in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. In this case, no physical inventory was made and no photograph taken nor markings made on the seized articles at the crime scene there is no reasonable assurance that no tampering or substitution occurred between the time the police seized the black bag in P. Ocampo St. in Manila until its contents were tested in the laboratory of the PNP R-IV headquarters in Canlubang, Laguna. In net effect, a heavy cloud of doubt hangs over the integrity and necessarily the evidentiary value of the seized items. People vs. Cervantes, G.R. No. 181494, March 17, 2009 4. It cannot be over-emphasized that pertinent provisions of RA 9165 require that the seized illegal items shall, after their inventory, be photographed in the presence of the drug dealer, representatives of media, the Department of Justice, or any elected public official who participated in the operation. The records do not yield an indication that this particular requirement has been complied with.To reiterate, the chain of custody requirement is necessary in order to remove doubts as to the identity of the evidence, by monitoring and tracking custody of the seized drugs from the accused, until they reach the court. A failure to comply with the aforequoted Sec. 21 (1) of RA 9165 implies a concomitant failure on the part of the prosecution to establish the identity of the seized illegal items as part of the corpus delicti. People v. Sitco, May 14, 2010 5. As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include 31
testimony about every link in the chain, from the moment the item was picked up to the time it is offered in evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. Indeed, it is from the testimony of every witness who handled the evidence that a reliable assurance can be derived that the evidence presented in court and that seized from the accused are one and the same. People v. De Guzman, March 26, 2010
test and was found positive for the use of marijuana, another dangerous drug. He was subsequently charged with two crimes: Violation of Section 11, Article II of RA 9165 for the possession of “shabu” and violation of Section 15 for the use of marijuana. X X X So as not to be sentenced to death, Obie Juan offers to plead guilty to a lesser offense. Can he do so? Why?
6. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court. People v. Sitco, May 14, 2010
2.02 CAN A PERSON CONVICTED OF DRUG TRAFFICKING OR PUSHING AVAIL OF THE BENEFITS UNDER THE PROBATION LAW? (SEC. 24)
7. The duty to prove the guilt of an accused is reposed in the State. Law enforcers and public officers have the duty to preserve the chain of custody over the seized drugs. This guarantee of the integrity of the evidence to be used against an accused goes to the very heart of his fundamental rights. People vs .De Guzman, G.R. No. 186498, March 26, 2010 2.01 IS PLEA BARGAINING ALLLOWED UNDER THIS LAW? (SEC. 23) 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. Illustrative case BAR Q. [2005] Obie Juan is suspected to have in his possession an unspecified amount of methamphetamine hydrochloride or “shabu”. An entrapment operation was conducted by police officers, resulting in his arrest following the discovery of 100 grams of the said dangerous drug in his possession. He was subjected to a drug
Suggested Answer: No, Obie Juan cannot plead guilty to a lesser offense since this is explicitly prohibited under Section 23 of R.A. 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 provisions on plea bargaining.
No, a person convicted of either drug trafficking or pushing cannot avail of the benefits of probation. Under the express provision of Section 24, it provides: “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 Decree No. 968, as amended.” 2.03 CITE THE SIGNIFICANCE IF A POSITIVE FINDING FOR THE USE OF DANGEROUS DRUGS IS FOUND IN THE COMMISSION OF A CRIME. (SEC. 25) It shall constitute as a Qualifying Aggravating Circumstance in the commission of the crime. Republic Act 9165 expressly reads: “ x x x 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 shall be applicable.” Illustrative case 32
BAR Q. [2005] Candido stabbed an innocent bystander who accidentally bumped him. The innocent bystander died as a result of the stabbing. Candido was arrested and was tested to be positive for the use of shabu at the time he committed the stabbing. What should be the proper charge against Candido? Suggested Answer: Candido 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 act becomes a qualifying circumstance pursuant to Section 25, R.A. 9165. 2.04 UNDER THE LAW, THERE ARE ACTS WHERE MERE ATTEMPT OR CONSPIRACY TO COMMIT THE SAME IS ALREADY PUNISHABLE. CITE THE UNLAWFUL ACTS. (SEC.26) Sec. 26 enumerates the acts where mere attempt or conspiracy to commit the following unlawful acts are punished. It states: “Any attempt or conspiracy to commit the following unlawful acts shall be penalized: (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”
MINOR OFFENDERS 3.00 WHO MAY AVAIL OF SUSPENSION OF SENTENCE? A first-time minor offender who is over 15 years of age at the time he committed an offense punished under Sec. 11 but not more than 18 years at the time judgment of conviction had been rendered may avail of suspension of sentence. According to R.A. 9265: “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.” 3.01 WHAT IS THE CONSEQUENCE AFTER COMPLIANCE WITH CONDITIONS OF SUSPENDED SENTENCE BY A FIRSTTIME 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. 3.02 CAN THE PRIVILEGE OF SUSPENDED SENTENCE BE AVAILED OF MORE THAN ONCE BY A FIRST-TIME MINOR OFFENDER? No. The privilege of suspended sentence shall be availed of only once by an 33
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. 3.03 WHAT IS THE CONSEQUENCE IF THE ACCUSED FIRST-TIME MINOR OFFENDER VIOLATES ANY OF THE CONDITIONS OF HIS/HER SUSPENDED SENTENCE? The court shall pronounce judgment of conviction and he/she shall serve sentence as any other convicted person. 3.04
CAN THE COURT PLACE THE ACCUSED UNDER PROBATION OR COMMUNITY SERVICE IN LIEU OF IMPRISONMENT?
Yes, Section 70 allows the court, in its discretion to place the accused under probation or imposed community service in lieu of imprisonment. LIMITED APPLICABILITY OF THE REVISED PENAL CODE 4.00 ARE THE PROVISIONS OF THE REVISED PENAL CODE APPLICABLE TO R.A. 9165? The provisions of the Revised Penal Code 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. ADDENDUM: 1. The identity of the prohibited drug must be established. Proof of the chain of custody from the time of seizure to the time such evidence is presented in court ensures the absence of doubt concerning the integrity of such vital evidence. This requires as a minimum that the police mark the seized item (1) in the presence of the apprehended violator and (2) immediately upon confiscation. (People
vs. Palomares, G.R. No. 200915, February 12, 2014) 2. Essential elements of illegal sale. In this case, the prosecution failed to prove that each and every element that constitutes an illegal sale of dangerous drug was present to convict the accused. Upon evaluation of the testimonies of PO1 Familara and PO1 Mendoza, it is apparent that there is an inconsistency on the identity and number of plastic sachets bought from the accused. In his statement, PO1 Familara recalled that upon arrival at the place of arrest, PO1 Mendoza told him that he was able to buy one plastic sachet of shabu from Guinto. On the other hand, PO1 Mendoza recalled that he was able to buy two plastic sachets instead of one. The pointed inconsistency is not a minor one that can be brushed aside as the discrepancy taints the very corpus delicti of the crime of illegal sale. A vital point of contention, the prosecution’s evidence places in reasonable doubt the identification of the dangerous drug that was presented in court. (People vs. Guinto, G.R. No. 198314, September 24, 2014, Perez, J.) In order to overcome the presumption of regularity, there must be clear and convincing evidence that the police officers did not properly perform their duties or that they were prompted with ill motive, none of which exists in this case. (People of the Philippines vs. Mercidita Resurreccion y Torres, G.R. No. 188310 June 13, 2013, Leonardo-De Castro, J.) The Court has held that prior surveillance is not necessary to render a buybust operation legitimate, especially when the buy-bust team is accompanied at the target area by the informant. Similarly, the presentation of an informant as a witness is not regarded as indispensable to the success in prosecuting drug-related cases. In this case, the informant had actively participated in the buy-bust operation and her testimony, if presented, would merely corroborate the testimonies of the members of the buy-bust team. (People vs. Monceda, G.R. No. 176269, November 13, 2013, Brion, J.) 3. What is “Marking” “Marking” is the placing by the apprehending officer of some distinguishing signs with his/her initials and signature on the items seized. Consistency with the “chain 34
of custody” rule requires that the “marking” of the seized items — to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence — should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. (People vs. Somoza, 701 SCRA 525, G.R. No. 197250, July 17, 2013, Leonardo-De Castro, J.) 4. Chain of custody and objective test. To establish the chain of custody in a buy-bust operation, the prosecution must establish the following links, namely: First, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; Second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; Third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and Fourth, the turnover and submission of the marked illegal drug seized by the forensic chemist to the court. The “objective test” is the duty of the prosecution to present a complete picture detailing the buy-bust operation — from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration, until the consummation of the sale by the delivery of the illegal subject of sale. (People vs. Clara, 702 SCRA 273, G.R. No. 195528, July 24, 2013, Perez, J.) 6. Effect of Gaps or Lapses in the Chain of Custody of Illegal Drugs. The discussion in People v. Lim is apropos: x xx [A]ny apprehending team having initial custody and control of said drugs and/or paraphernalia, should immediately after seizure and confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. The failure of the agents to comply with such a requirement raises a doubt whether what was submitted for laboratory examination and presented in court was actually recovered from the appellants. It negates the presumption that official duties have been regularly performed by the PAOC-TF agents.
(People vs. Balibay, G.R. No. 202701, September 10, 2014, Perez, J.) First, it is not clear from the evidence that the marking, which was done in the police station, was made in the presence of the accused or his representative. Although the Court has previously ruled that the marking upon “immediate” confiscation of the prohibited items contemplates even that which was done at the nearest police station or office of the apprehending team, the same must always be done in the presence of the accused or his representative. Second, the prosecution failed to duly accomplish the Certificate of Inventory and to take photos of the seized items pursuant to the above-stated provision. Third, the Court finds conflicting testimony and glaring inconsistencies that would cast doubt on the integrity of the handling of the seized drugs. (People of the Philippines vs. Freddy Salonga y Afiado, G. R. No. 194948, September 2, 2013, Sereno, CJ.) The following are the links that must be established in the chain of custody in a buy-bust situation: First, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; Second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; Third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and Fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. The first crucial link in the chain of custody starts with the seizure from Enriquez of the dangerous drugs and its subsequent marking. Nowhere in the documentary and testimonial evidence of the prosecution can it be found when these items were actually marked and if they were marked in the presence of Enriquez or at least his representative. The second link in the chain of custody is the turnover of the illegal drug by the apprehending officer to the investigating officer. However, they both failed to identify the person to whom they turned over the seized items. There is no evidence to show 35
that he was the person who received the seized items from the apprehending officers. As for the third and the last links, although records show that Chief of Police Erese signed the request for laboratory examination, he was not presented in court to testify as such. The testimony of Chief of Police Erese is indispensable because he could have provided the critical link between the testimony of SPO2 David, and the tenor of the testimony of P/Insp. Dizon, which the parties have stipulated on. Moreover, no one testified as to how the confiscated items were handled and cared for after the laboratory examination. (People of the Philippines vs. Arturo Enriquez De los Reyes, G.R. No. 197550, September 25,2013, Leonardo-De Castro, J.) In the case at bar, instead of immediately marking the subject drug upon its confiscation, PO2 Tuzon marked it with his initials “EAT” only upon arrival at the police station. While the failure of arresting officers to mark the seized items at the place of arrest does not, by itself, impair the integrity of the chain of custody and render the confiscated items inadmissible in evidence, such circumstance, when taken in light of the several other lapses in the chain of custody that attend the present case, forms part of a gross, systematic, or deliberate disregard of the safeguards that are drawn by the law, sufficient to create reasonable doubt as to the culpability of the accused. 6. Failure to immediately mark the seized drugs. To be able to create a first link in the chain of custody, then, what is required is that the marking be made in the presence of the accused and upon immediate confiscation. “Immediate confiscation” has no exact definition. Thus, in People v. GumOyen, testimony that included the marking of the seized items at the police station and in the presence of the accused was sufficient in showing compliance with the rules on chain of custody. Marking upon immediate confiscation contemplates even marking at the nearest police station or office of the apprehending team. (People of the Philippines vs. Giovanni Ocfemia y Chavez, G.R. No. 185383, September 25, 2013 , Leonardo-De Castro.)
7. Crime of illegal sale of dangerous drugs necessarily includes the crime of illegal possession. Well-settled in jurisprudence that the crime of illegal sale of dangerous drugs necessarily includes the crime of illegal possession of dangerous drugs. The Court had further clarified, in relation to the requirement of marking the drugs “immediately after seizure and confiscation,” that the marking may be undertaken at the police station rather than at the place of arrest for as long as it is done in the presence of the accused and that what is of utmost importance is the preservation of its integrity and evidentiary value. (People of the Philippines vs. Michael Maongco y Yumonda, G.R. No. 196966, October 23,2013, Leonardo-De Castro, J.) 8. Failure to make an inventory and to take photographs of the subject drug. Contrary to the argument of the defense, even the buy-bust team’s failure to make an inventory and to take photographs of the subject drug did not adversely affect the prosecution’s case. What is essential is that the integrity and evidentiary value of the seized items which would be utilized in the determination of the guilt or innocence of the accused are preserved. (People vs. Loks, G.R. No. 203433, November 27, 2013, Reyes, J.) A proviso was added in the implementing rules that “noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.” Pertinently, it is the preservation of the integrity and evidentiary value of the seized items which must be proven to establish the corpus delicti. (People vs. Cerdon, G.R. No. 201111, August 6, 2014, Perez, J.) Coordination with the PDEA is not an indispensable element of a proper buy-bust operation. A buy-bust operation is not invalidated by mere non-coordination with the PDEA. (People vs. Montevirgen, G.R. No. 189840 December 11, 2013, Del Castillo, J.)
36
9. What does marking upon immediate confiscation mean? It begins with the marking of the seized objects to fix its identity; Marking upon “immediate” confiscation can reasonably cover marking done at the nearest police station or office of the apprehending team, especially when the place of seizure is volatile and could draw unpredictable reactions from its surroundings. (People vs. Bautista, G.R. No. 198113 December 11, 2013, Abad, J.) 10. Testimony of poseur-buyer not indispensable. The testimony of the poseur-buyer was not therefore indispensable or necessary; it would have been cumulative merely, or corroborative at best." His testimony can therefore be dispensed with since the illicit transaction was actually witnessed and adequately proved by the prosecution witnesses. (People vs. Marcelo, G.R. No. 181541, August 18, 2014, Del Castillo, J.) 11. Failure to present the buy-bust money. Failure to present the buy-bust money is not fatal to the prosecution’s cause. It is not indispensable in drug cases since it is merely corroborative evidence, and the absence thereof does not create a hiatus in the evidence for the prosecution provided the sale of dangerous drugs is adequately proven and the drug subject of the transaction is presented before the court. (People vs. Bayan, G.R. No. 200987, August 20, 2014, Perez, J.) 12. Actual and constructive possession distinguished. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another. (People vs. De La Trinidad,G.R. No. 199898, September 03, 2014,Perez, J.) 13. Effect of failure to offer in evidence the Certificate of Inventory and the formal request for examination of the confiscated substance.
It is true that the prosecution did not formally offer in evidence the Certificate of Inventory and the formal request for examination of the confiscated substance. Be that as it may, the Court has previously held that even if an exhibit is not formally offered, the same “may still be admitted against the adverse party if, first, it has been duly identified by testimony duly recorded and, second, it has itself been incorporated in the records of the case.” PO3 Velasquez categorically testified that an inventory of the seized drugs was performed, a corresponding certificate was prepared, and a formal request for examination was made. He further narrated that together with the formal request, he submitted and delivered the confiscated drugs to the crime laboratory. On the basis of the said formal request, P/Insp. Roderos examined the specimen and she likewise testified on this. Appellant’s counsel even asked the said prosecution witnesses regarding these documents. Considering the said testimonies and the fact that the documents were incorporated in the records of the case, they are therefore admissible against appellant. (People vs. Baturi, G.R. No. 189812, September 01, 2014, Del Castillo, J.) 14. Presentation informant.
of
confidential
The non-presentation of the confidential informant as a witness does not ordinarily weaken the State's case against the accused. However, if the arresting lawmen arrested the accused based on the pre-arranged signal from the confidential informant who acted as the poseur buyer, his non-presentation must be credibly explained and the transaction established by other ways in order to satisfy the quantum of proof beyond reasonable doubt because the arresting lawmen did not themselves participate in the buy-bust transaction with the accused. In People vs. Lopez (214 SCRA 323), it was held that there was no need for the prosecution to present the confidential informer as the poseur-buyer himself positively identified the accused as the one who sold to him one deck of methamphetamine hydrochloride or "shabu." The trial court then properly relied on the testimonies of the police officers despite the decision of the prosecution not to present the informer. (People vs. Andaya, 37
G.R. No. 183700, October 13, 2014, Bersamin, J.) 15. When seized item is “fruit of the poisonous tree”. Records have established that both the arrest and the search were made without a warrant. While the accused has already waived his right to contest the legality of his arrest, he is not deemed to have equally waived his right to contest the legality of the search. (Danilo Villanueva y Alcaraz vs. People, G.R. No. 199042, November 17, 2014, Sereno, CJ. ) 16. Plain view doctrine and its requisites. The plain view doctrine applies when the following requisites concur: (1) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (2) the discovery of the evidence in a plain view is inadvertent; and (3) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. (Rizaldy Sanchez y Cajili vs. People, G.R. No. 204589, November 19, 2014, Mendoza, J.) 17. With reference to the importation and possession of blasting caps, it seems plain beyond argument that the latter is inherent in the former so as to make them juridically identical. There can hardly be importation without possession. When one brings something or causes something to be brought into the country, he necessarily has the possession of it. The possession ensuing from the importation may not be actual, but legal, or constructive, but whatever its character, the importer, in our opinion, is a possessor in the juristic sense and he is liable to criminal prosecution. Applying the aforequoted ruling, this Court finds that while appellants cannot be held liable for the offense of illegal importation charged in the information, their criminal liability for illegal possession, if proven beyond reasonable doubt, may nevertheless be sustained. As previously mentioned, the crime of importation of regulated drugs is committed by importing or bringing any regulated drug into the Philippines without being authorized by law. Indeed, when one brings something or
causes something to be brought into the country, he necessarily has possession of the same. Necessarily, therefore, importation can never be proven without first establishing possession, affirming the fact that possession is a condition sine qua non for it would rather be unjust to convict one of illegal importation of regulated drugs when he is not proven to be in possession thereof. In a similar manner, considering that illegal possession is likewise an element of and is necessarily included in illegal importation of dangerous drugs, convicting appellants of the former, if duly established beyond reasonable doubt, does not amount to a violation of their right to be informed of the nature and cause of accusation against them. Indeed, where an accused is charged with a specific crime, he is duly informed not only of such specific crime but also of lesser crimes or offenses included therein. The elements of illegal possession of regulated drugs are as follows: (a) the accused is in possession of an item or object which is identified to be a regulated drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed the regulated drug. The evidence on record clearly established that appellants were in possession of the bags containing the regulated drugs without the requisite authority. As mentioned previously, on the date of appellants’ arrest, the apprehending officers were conducting a surveillance of the coast of Ambil Island in the Municipality of Looc, Occidental Mindoro, upon being informed by the Municipality’s Barangay Captain that a suspicious-looking boat was within the vicinity. Not long after, they spotted two (2) boats anchored side by side, the persons on which were transferring cargo from one to the other. Interestingly, as they moved closer to the area, one of the boats hurriedly sped away. Upon reaching the other boat, the police officers found the appellants with several transparent plastic bags containing what appeared to be shabu which were plainly exposed to the view of the officers. Clearly, appellants were found to be in possession of the subject regulated drugs. (People vs. Chi Chan Liu and Hui Lao Chung, G.R. No. 189272, January 21, 2015, Peralta, J.) 18. Decoy Solicitation.
38
The chain of custody is not established solely by compliance with the prescribed physical inventory and photographing of the seized drugs in the presence of the enumerated persons. The Implementing Rules and Regulations of R. A. No. 9165 on the handling and disposition of seized dangerous drugs states: x x x Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. (People vs. Rosauro, G.R. No. 209588, February 18, 2015, Perez, J.) 19. What does “deliver” mean? Under Article I, Section 3(k) of the same statute, the term “deliver” means “any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration.” On the other hand, “sell” as defined in Section 3(ii) refers to “any act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for money or any other consideration.” To establish the guilt of an accused for the illegal delivery of a dangerous drug, there must be evidence that “(1) the accused passed on possession of a dangerous drug to another, personally or otherwise, and by any means; (2) such delivery” is not authorized by law; and (3) the accused knowingly made the delivery with or without consideration. The presentation of the marked money is immaterial in this case since the crime of illegal delivery of a dangerous drug can be committed even without consideration or payment. (People vs. Reyes, G.R. No. 194606, February 18, 2015, Del Castillo, J.) 20. Chain of Custody. In the prosecution of illegal possession of dangerous drugs, the dangerous drug itself constitutes the very corpus delicti of the offense and, in sustaining a conviction therefor, the identity and integrity of the corpus delicti must definitely 12. Actual and constructive possession distinguished.
In both cases of illegal sale and illegal possession of dangerous drugs, the prosecution must show the chain of custody over the dangerous drug in order to establish the corpus delicti, which is the dangerous drug itself. The chain of custody rule comes into play as a mode of authenticating the seized illegal drug as evidence. A substantial gap in the chain of custody renders the identity and integrity of the corpus delicti dubious. (Lopez vs. People,G.R. No. 188653, January 29, 2014,Perez, J.) First link of the chain, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer. Second link of the chain, the turnover of the illegal drug seized by the apprehending officer to the investigating officer. Third link of the chain, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination. Fourth link of the chain, the turnover and submission of the marked illegal drug seized by the forensic chemist to the court. (People vs. Dahil and Castro, G.R. No. 212196, January 12, 2015, Mendoza, J.) It has already been held that “the infractions of the so-called Miranda rights render inadmissible only the extrajudicial confession or admission made during custodial investigation.” Here, appellant’s conviction was based not on his alleged uncounseled confession or admission but on the testimony of the prosecution witness. (People vs. Bio, G.R. No. 195850, February 16, 2015, Del Castillo, J.)
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CHAPTER V. ANTI-VIOLENCE AGAINST WOMEN ANDTHEIR CHILDREN ACT OF 2004 Republic Act No. 9262 [BAR 2011, 2010] ___________________________________________________ 39
I. IN GENERAL 1.00 WHAT IS THE POLICY OF THE STATE WITH RESPECT TO THE DIGNITY OF WOMEN AND CHILDREN? The State values the dignity of women and children and guarantees full respect for human rights. It also recognizes the need to protect the family and its members particularly women and children, from violence and threats to their personal safety and security. PEOPLE VS. CABALQUINTO G.R. No. 167693, September 19, 2006 RULING: Taking all these opinions into account and in view of recent enactments which unequivocally express the intention to maintain the confidentiality of information in cases involving violence against women and their children, in this case and henceforth, the Court shall withhold the real name of the victim-survivor and shall use fictitious initials instead to represent her. Likewise, the personal circumstances of the victimssurvivors or any other information tending to establish or compromise their identities, as well those of their immediate family or household members, shall not be disclosed.
WOMEN AND THEIR CHILDREN” UNDER SECTION 3? Section 3 states that violence against women and children includes, but is not limited to, the following acts: a) Physical Violence b) Sexual violence c) Psychological violence d) Economic abuse. 1.03 WHAT IS "PHYSICAL VIOLENCE"? It refers to acts that include bodily or physical harm; 1.04 WHAT IS “SEXUAL VIOLENCE"? It refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to: a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;
1.01 DEFINE VIOLENCE AGAINST WOMEN AND THEIR CHILDREN.
b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion;
Section 3 of R.A. 9262 gives the definition of Violence against women and children. It states: “It refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. “ 1.02 WHAT ARE THE ACTS INCLUDED IN THE TERM “VIOLENCE AGAINST
c) Prostituting the woman or child. 1.05
WHAT IS VIOLENCE"?
"PSYCHOLOGICAL
It refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to 40
witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children. 1.06 WHAT IS "ECONOMIC ABUSE"? It refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following: 1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code; 2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common; 3. destroying household property; 4. controlling the victims' own money or properties or solely controlling the conjugal money or properties. 1.07 DEFINE “STALKING”. It refers to an intentional act committed by a person who, knowingly and without lawful justification follows the woman or her child or places the woman or her child under surveillance directly or indirectly or a combination thereof. 1.08 EXPLAIN THE CONCEPT OF “DATING RELATIONSHIP”. It refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship.
1.09 EXPLAIN THE CONCEPT OF “SEXUAL RELATIONS”. It refers to a single sexual act which may or may not result in the bearing of a common child. 1.10
DIFFERENTIATE RELATIONSHIP” FROM RELATIONS”.
“DATING “SEXUAL
Sexual relations refer to a single sexual act which may or may not result in the bearing of a common child. R.A. 9262 provides in Section 3 that “violence against women x x x refers to any act or a series of acts committed by any person against a woman x x x with whom the person has or had a sexual or dating relationship.” Clearly, the law itself distinguishes a sexual relationship from a dating relationship. Indeed, Section 3(e) above defines “dating relationship” while Section 3(f) defines “sexual relations.” The latter “refers to a single sexual act which may or may not result in the bearing of a common child.” The dating relationship that the law contemplates can, therefore, exist even without a sexual intercourse taking place between those involved. Rustan Ang Y Pascua vs. Sagud, G.R. No. 182835, April 20, 2010 1.11 WHAT ARE THE ELEMENTS OF THE CRIME OF VIOLENCE AGAINST WOMEN? The elements of the crime of violence against women through harassment are: 1. The offender has or had a sexual or dating relationship with the offended woman; 2. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and 3. The harassment alarms or causes substantial emotional or psychological distress to her. Rustan Ang Y Pascua vs. Sagud, G.R. No. 182835, April 20, 2010
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1.12
DOES A SINGLE ACT HARASSMENT ENOUGH CONVICT AN OFFENDER?
OF TO
Yes. Section 3(a) of R.A. 9262 punishes “any act or series of acts” that constitutes violence against women. This means that a single act of harassment, which translates into violence, would be enough. The object of the law is to protect women and children. Punishing only violence that is repeatedly committed would license isolated ones. Rustan Ang Y Pascua vs. Sagud, G.R. No. 182835, April 20, 2010 1.13 MAY A TEMPORARY PROTECTION ORDER (TPO) BE ISSUED IN FAVOR OF A MAN AGAINST HIS WIFE? A TPO cannot be issued in favor of a man against his wife under R.A. No. 9292, known as the Anti-Violence Against Women and Their Children Act of 2004.I In one case, the judge was found guilty of gross ignorance of the law for issuing a Temporary Protection Order (TPO) in favor of a male petitioner. Indeed, as a family court judge, the judge is expected to know the correct implementation of R.A. No. 9292. See Sylvia Santo vs. Judge Arcaya-Chua, A.M. No. Rtj-07-2093, April 23, 2010 1.14 IS IT INDISPENSABLE THAT THE ACT OF VIOLENCE BE A CONSEQUENCE OF THE DATING OR SEXUAL RELATIONSHIP? This has been answered in this caseDabalos y San Diego vs. Paras Quiambao, et. al. G.R. No. 193960, January 7, 2013 ISSUE: Petitioner insists that the act which resulted in physical injuries to private respondent is not covered by RA 9262 because its proximate cause was not their dating relationship. Instead, he claims that the offense committed was only slight physical injuries under the Revised Penal Code which falls under the jurisdiction of the Municipal Trial Court.
RULING: The Court is not persuaded quoting Sec. 3(a) of RA 9262. The law is broad in scope but specifies two limiting qualifications for any act or series of acts to be considered as a crime of violence against women through physical harm, namely: 1) it is committed against a woman or her child and the woman is the offender’s wife, former wife, or with whom he has or had sexual or dating relationship or with whom he has a common child; and 2) it results in or is likely to result in physical harm or suffering. Notably, while it is required that the offender has or had a sexual or dating relationship with the offended woman, for RA 9262 to be applicable, it is not indispensable that the act of violence be a consequence of such relationship. Nowhere in the law can such limitation be inferred. Hence, applying the rule on statutory construction that when the law does not distinguish, neither should the courts, then, clearly, the punishable acts refer to all acts of violence against women with whom the offender has or had a sexual or dating relationship. As correctly ruled by the RTC, it is immaterial whether the relationship had ceased for as long as there is sufficient evidence showing the past or present existence of such relationship between the offender and the victim when the physical harm was committed. Dabalos Y San Diego vs. Judge Paras Quiambao, et al., G.R. No. 193960, January 7, 2013 1.15 WHAT IS BATTERY? It refers to an act of inflicting physical harm upon the woman or her child resulting to the physical and psychological or emotional distress. 1.16 WHAT IS THE CONCEPT OF A BATTERED WOMAN SYNDROME? It refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. 42
1.17 IS A BATTERED WOMEN SYNDROME A PROPER DEFENSE?
tranquil, loving (or, at least, nonviolent) phase.
Yes. Battered Women Syndrome is a proper defense. Section 26 of R.A. 9262 is explicit:
During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged, because her “placatory” and passive behavior legitimizes his belief that he has the right to abuse her in the first place.
“Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists.” People vs. Genosa G.R. No. 135981, January 15, 2004 RULING: A battered woman has been defined as a woman “who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.” Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterer’s actions; and false hopes that the relationship will improve. More graphically, the battered woman syndrome is characterized by the socalled “cycle of violence,” which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the
The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition. At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt. The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her partner will change for the better; and that 43
this “good, gentle and caring man” is the real person whom she loves. A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically. Illustrative Cases 1. BAR Q. [2011] A battered woman claiming self-defense under the AntiViolence against Women and Children must prove that the final acute battering episode was preceded by A. 3 battering episodes. B. 4 battering episodes. C. 5 battering episodes. D. 2 battering episodes 2. BAR Q. [2010] Jack and Jill have been married for seven years. One night, Jack came home drunk. Finding no food on the table, Jack started hitting Jill only to apologize the following day. A week later, the same episode occurred – Jack came home drunk and started hitting Jill. Fearing for her life, Jill left and stayed with her sister. To woo Jill back, Jack sent her floral arrangements of spotted lilies and confectioneries. Two days later, Jill returned home and decided to give Jack another chance. After several days, however, Jack again came home drunk. The following day, he was found dead. Jill was charged with parricide but raised the defense of “battered woman syndrome.” A. Define “Battered Woman Syndrome.” Suggested Answer: It refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. B. What are the three phases of the “Battered Woman Syndrome”?
Suggested Answer: The three phases are the following: a) tension-building phase b) acute battering incident c) tranquil and loving phase. C. Would the defense prosper despite the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code? Suggested Answer:Yes, R.A. 9262 expressly states that victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. 1.18
HOW MUST CONSTRUED?
THE
LAW
BE
It shall be liberally construed to promote the protection and safety of victims of violence against women and their children. 1.19 UNDER SECTION 5 OF THE ACT, HOW IS THE CRIME OF VIOLENCE AGAINST WOMEN AND CHILDREN COMMITTED? The acts constituting the crime of violence against women and children are anumerated under Section 5 of R.A. 9262 which provides: “The crime of violence against women and their children is committed through any of the following acts: (a) Causing physical harm to the woman or her child; (b) Threatening to cause the woman or her child physical harm; (c) Attempting to cause the woman or her child physical harm; (d) Placing the woman or her child in fear of imminent physical harm; (e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or 44
attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct:
(1) Stalking or following the woman or her child in public or private places;
(1) Threatening to deprive or actually depriving the woman or her child of custody to her/his family;
(4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and
(2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support;
(5) Engaging in any form of harassment or violence x x x.”
(3) Depriving or threatening to deprive the woman or her child of a legal right; (4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own mon4ey or properties, or solely controlling the conjugal or common money, or properties; (f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; (g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts:
(2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will;
1.20 DIFFERENTIATE SECTION 3 (A) FROM SECTION 5 OF R.A. 9262. Section 3 (a) of R.A. 9262 provides that violence against women includes an act or acts of a person against a woman with whom he has or had a sexual or dating relationship while Section 5 identifies the act or acts that constitute violence against women and these include any form of harassment that causes substantial emotional or psychological distress to a woman. 1.21 MAY THE ABUSES BE COMMITTED BY ANOTHER THRU CONSPIRACY? Yes the principle of conspiracy is applicable.This is enunciated in the case ofSharica Mari L. Go-Tan vs. Spouses Tan G.R. No. 168852: September 30, 2008 FACTS: Sharica Go-Tan, married to Steven Tan, filed a Petition with Prayer for the Issuance of a Temporary Protective Order against Steven and her parents-in-law, Spouses Perfecto C. Tan and Juanita L. Tan. She alleged that Steven, in conspiracy with her parents-in-law, was causing verbal, psychological and economic abuses upon her. ISSUE: Whether or not Sharica’s parents-inlaw may be included in the petition for the issuance of a protection order.
45
RULING: While the said provision provides that the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the RPC. In Ladonga v. People, the Court applied suppletorily the principle of conspiracy under Article 8 of the RPC to B.P. Blg. 22 in the absence of a contrary provision therein. With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be applied suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the RPC shall be supplementary to said law. Thus, general provisions of the RPC, which by their nature, are necessarily applicable, may be applied suppletorily. Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or modality of participation of each of them becomes secondary, since all the conspirators are principals. It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of violence against women and their children may be committed by an offender through another, thus: SEC. 5. Acts of Violence Against Women and Their Children. - The crime of violence against women and their children is committed through any of the following acts: x x x (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: (1) Stalking or following the woman or her child in public or private places; (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; (4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child;
and (5) Engaging in any form of harassment or violence; x x x. (Emphasis supplied) (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman's child/children. 1.22 WHAT ARE THE PRESCRIPTIVE PERIODS OF ACTS PUNISHABLE UNDER THIS LAW? Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years. 1.23 HOW IS THE CRIME OF VIOLENCE AGAINST WOMEN AND CHILDREN CLASSIFIED? Violence against women and their children shall be considered a public offense which may be prosecuted upon the filing of a complaint by any citizen having personal knowledge of the circumstances involving the commission of the crime. 1.24 IS BEING UNDER THE INFLUENCE OF ALCOHOL OR ANY ILLICIT DRUG A PROPER DEFENSE IN THE PROSECUTION OF THE OFFENSE? Under express provision of Section 27 thereof, being under the influence of alcohol, any illicit drug, or any other mind-altering substance shall not be a defense under this Act. 1.25 DOES THE REVISED PENAL CODE HAVE SUPPLETORY APPLICATION UNDER THIS ACT? Yes. For purposes of this Act, the Revised Penal Code and other applicable laws, shall have suppletory application. II. PROTECTION ORDERS 3.00 DEFINE PROTECTION ORDER UNDER THIS ACT. A protection order is an order issued under this act for the purpose of preventing further acts of violence against a woman or her child specified in Section 5 of this Act and 46
granting other necessary relief. 3.01 WHAT IS THE IMPORTANCE OF THE PROTECTION ORDER? The relief granted under a protection order serve the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim's daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order shall be enforced by law enforcement agencies. 3.02
ENUMERATE THE PROTECTION ORDERS THAT MAY BE ISSUED UNDER THIS LAW.
The protection orders that may be issued are the barangay protection order (BPO), temporary protection order (TPO) and permanent protection order (PPO). Section 8 provides: “The protection orders that may be issued under this Act shall include any, some or all of the following reliefs: (a) Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act; (b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly; (c)
Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership of the residence, either temporarily for the purpose of protecting the petitioner, or permanently where no property rights are violated, and if respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent has gathered his things and escort respondent from the residence;
(d) Directing the respondent to stay away from petitioner and designated family or household member at a distance
specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member; (e) Directing lawful possession and use by petitioner of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to the possession of the automobile and other essential personal effects, or to supervise the petitioner's or respondent's removal of personal belongings; (f) Granting a temporary or permanent custody of a child/children to the petitioner; (g) Directing the respondent to provide support to the woman and/or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent's employer for the same to be automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court; (h) Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply for any license to use or possess a firearm. If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate on the offender and take appropriate action on matter; (i) Restitution for actual damages caused by the violence inflicted, including, but not limited to, property damage, medical expenses, childcare expenses and loss of 47
income; (j) Directing the DSWD or any appropriate agency to provide petitioner may need; and (k) Provision of such other forms of relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member, provided petitioner and any designated family or household member consents to such relief. Any of the reliefs provided under this section shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage. The issuance of a BPO or the pendency of an application for BPO shall not preclude a petitioner from applying for, or the court from granting a TPO or PPO.” 3.03 WHAT ARE THE RELIEFS AVAILABLE TO THE OFFENDED PARTY? (SEC.11) Section 11 of R.A. 9262 provides for the reliefs available to the offended party. It states: “The protection order shall include any, some or all of the following reliefs: (a) Prohibiting the respondent from threatening to commit or committing, personally or through another, acts of violence against the offended party; (b) Prohibiting the respondent from harassing, annoying, telephoning, contacting or otherwise communicating in any form with the offended party, either directly or indirectly; (c) Removing and excluding the respondent from the residence of the offended party, regardless of ownership of the residence, either temporally for the purpose of protecting the offended party, or permanently where no property rights are violated. If the respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the
respondent to the residence, remain there until the respondent has gathered his things and escort him from the residence; (d) Requiring the respondent to stay away from the offended party and any designated family or household member at a distance specified by the court; (e) Requiring the respondent to stay away from the residence, school, place of employment or any specified place frequented regularly by the offended party and any designated family or household member; (f) Directing lawful possession and use by the offended party of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the offended party to the residence of the parties to ensure that the offended party is safely restored to the possession of the automobile and other essential personal effects; (g) Ordering temporary or permanent custody of the child/children with the offended party, taking into consideration the best interests of the child. An offended party who is suffering from Battered Woman Syndrome shall not be disqualified from having custody of her children. In no case shall custody of minor children be given to the batterer of a woman who is suffering from Battered Woman Syndrome; (h) Directing the respondent to provide support to the woman and/or her child, if entitled to legal import. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by his employer and to automatically remit it directly to the offended party. Failure to withhold, remit or any delay in the remittance of support to the offended party without justifiable cause shall render the respondent or his employer liable for indirect contempt of court; 48
(i) Prohibiting the respondent from carrying or possessing any firearm or deadly weapon and ordering him to surrender the same to the court for appropriate disposition, including revocation of license and disqualification to apply for any license to carry or possess a firearm. If the respondent is .a law enforcement agent, the court shall order him to surrender his firearm and shall direct the appropriate authority to investigate him and take appropriate action thereon; (j) Directing the DSWD or any appropriate agency to prepare a program of intervention for the offended party that provides advocacy, temporary shelter, crisis intervention, treatment, therapy, counseling, education, training and other social services that the offended party may need; (k) Requiring the respondent to receive professional counseling from agencies or persons who have demonstrated expertise and experience in anger control, management of alcohol, substance abuse and other forms of intervention to stop violence. The program of intervention for offenders must be approved by the court. The agency or person is required to provide the court with regular reports of the progress and result of professional counseling, for which the respondent may be ordered to pay; and (I) Awarding the offended party actual damages caused by the violence inflicted, including, but not limited to, property damage, medical expanses, childcare expenses and loss of income; and compensatory, moral, and exemplary damages, subject to Sections 26a and 35 of this Rule. The court may grant such other forms of relief to protect the offended party and any designated family or household member who consents to such relief.” A] BARANGAY PROTECTION ORDER
4.00 DISCUSS BARANGAY PROTECTION ORDERS (BPOs) Barangay Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act.” 5.00 DISCUSS TEMPORARY PROTECTION ORDERS (TPOs) Temporary Protection Orders (TPOs) refer to the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued. A court may grant in a TPO any, some or all of the reliefs mentioned in this Act and shall be effective for thirty (30) days. 5.01 DISCUSS PERMANENT PROTECTION ORDERS (PPOs) Permanent Protection Order (PPO) refers to protection order issued by the court after notice and hearing. 5.02 WHAT ARE THE PROHIBITED ACTS IN THE APPLICATION FOR A PROTECTION ORDER? “A Punong Barangay, Barangay Kagawad or the court hearing an application for a protection order shall not order, direct, force or in any way unduly influence the applicant for a protection order to compromise or abandon any of the reliefs sought in the application for protection under this Act. Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government Code of 1991 shall not apply in proceedings where relief is sought under this Act. Failure to comply with this Section shall render the official or judge administratively liable.”
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CHAPTER VI BOUNCING CHECKS LAW BATAS PAMBANSA BLG. 22 49
An Act Penalizing the Making Or Drawing And Issuance Of A Check Without Sufficient Funds Or Credit And For Other Purposes. [BAR Q. 2014, 2010 ’03,’02, ’96, 1990, ‘88’,’86] ________________________________________________
IN GENERAL 1.00 WHAT IS A CHECK? In Mitra vs. People, July 05, 2010, the Supreme Court had the occasion to explain what a check is. It held that a check is a negotiable instrument that serves as a substitute for money and as a convenient form of payment in financial transactions and obligations. The use of checks as payment allows commercial and banking transactions to proceed without the actual handling of money, thus, doing away with the need to physically count bills and coins whenever payment is made. More particularly, a check is a bill of exchange drawn on a bank payable on demand. (Negotiable Instruments Law, Section 185). 1.01 EXPLAIN A “DAIF” CHECK? DAIF means it is drawn against insufficient funds. A check becomes “DAIF” when it is issued for an amount more than the funds available in a particular account. 1.02 EXPLAIN A “DAUD” CHECK? DAUD means drawn against uncollected deposit. It is a banking phrase connoting a check with insufficient funds. 1.03 WHAT IS AN INDORSED CHECK? It is one which the present holder acquires possession of the check from the payee or another holder after the payee had indorsed it.
1.04 DOES BP.22 COVER MANAGER’S CHECK CASHIER’S CHECK? No. As enunciated in the case of New Pacific Timber and Supply Company, Inc. vs. Seneres, 101 SCRA 686, by its peculiar character and general use in the commercial world, it is as good as the money it represents and is therefore deemed as cash. 1.05 WHAT IS AN ACCOMODATION CHECK? It is a check drawn for the purpose of lending a person’s name to another. 1.06 WHAT IS A GUARANTEE CHECK? It may either be an accommodation or any other kind of check drawn and delivered to guarantee the performance of a principal obligation. 1.07 DOES BP.22 COVER ACCOMODATION OR GUARANTEE CHECK? Yes. It is covered by BP. 22 because the issuance of the check to cover the account and its subsequent dishonor are the only facts required for prosecution under the law. Creeg vs. CA, 233 SCRA 301. In People vs. Que, G.R. 73217-18, September 21, 1987, it was held that BP 22 does not make any distinction as to whether the bad check is issued in payment of an obligation or to guarantee an obligation. 1.08 WHAT IS A CROSSED CHECK? The reason for the issuance of a check is to ensure that the check is encashed only by the rightful payee. In usual practice, crossing of a check is done by placing two parallel lines diagonally on the left portion of the check. effects:
A cross check has the following a) that the check may not be encashed but only deposited in the bank; b) that the check may be negotiated only once to one who has an account with a bank;
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c) that the act of crossing the check serves as a warning to the holder that the check has been issued for a definite purpose so that he must inquire if he has secured the check pursuant to that purpose. State Investment House vs. IAC, 175 SCRA 316 1.09 DOES BP.22 COVER CROSSED CHECK? Yes, since it is a negotiable instrument, it falls within the coverage of BP. 22. 1.10 WHAT DOES “CREDIT” MEAN? The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank for the payment of such check. (Sec .4) 1.11 WHICH COURT HAS JURISDICTION OVER VIOLATION OF BP. 22? The MTC has exclusive original jurisdiction in the prosecution of BP. 22 cases. A.M. No. 00-11-01-SC, March 25, 2003 1.12 CITE THE REASON BEHIND THE ENACTMENT OF BP 22. In the case of Mitra vs. People, July 05, 2010, the Supreme Court ruled that BP. 22 considers the mere act of issuing an unfunded check as an offense not only against property but also against public order to stem the harm caused by these bouncing checks to the community. The purpose of BP. 22 in declaring the mere issuance of a bouncing check as malum prohibitum is to punish the offender in order to deter him and others from committing the offense, to isolate him from society, to reform and rehabilitate him, and to maintain social order. 1.13 IS THE PRINCIPLE OF CONSPIRACY UNDER THE REVISED PENAL CODE APPLICABLE IN BP.22 WHICH IS A SPECIAL LAW? Yes. This issue was clarified by the Supreme Court in the case of Ladonga vs. People, 451 SCRA 673 when it expressly ruled
that In the absence of contrary provision in Batas Pambansa Blg. 22, the general provisions of the Revised Penal Code which, by their nature, are necessarily applicable, may be applied suppletorily, including the provisions on conspiracy. A. WAYS BY WHICH VIOLATION OF BP. 22 ARE COMMITTED. 2.00 WHAT IS THE GRAVAMEN OF BP. 22? The gravamen of the offense punished by Batas Pambansa (B.P.) Blg. 22 is that act of making or issuing a worthless check or a check that is dishonored upon its presentation for payment – It is not the nonpayment of the obligation which the law punishes. The mere act of issuing a worthless check – whether as a deposit, as a guarantee or even as evidence of pre-existing debt – is malum prohibitum. 1. The law punishes the act not as an offense against property, but an offense against public order. Thus, the mere act of issuing a worthless check – whether as a deposit, as a guarantee or even as evidence of preexisting debt – is malum prohibitum. Ambito vs. People, 579 SCRA 68, February 13, 2009 2. The act effectively declares the offense to be one of malum prohibitum. The only valid query then is whether the law has been breached, i.e., by the mere act of issuing a bad check, without so much regard as to the criminal intent of the issuer. Jose vs. Suarez, 556 SCRA 772, June 30, 2008 3. What the law punishes is the issuance and/or drawing of a check and upon presentment for deposit or encashment, it was dishonored due to insufficient funds [or] account closed. Jose v. Suarez, 556 SCRA 772, June 30, 2008 2.01 GIVE THE ELEMENTS OF THE FIRST PARAGRAPH OF SECTION 1 OF BP.22.
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Liability for violation of B.P. 22 attaches when the prosecution establishes proof beyond reasonable doubt of the existence of the following elements: 1. The accused makes, draws or issues any check to apply to account or for value;
a. When does a prima facie evidence of knowledge of insufficient funds arise? (SEC.2) There is a prima facie evidence of knowledge of insufficiency of funds when the check was presented within 90 days from the date appearing on the check and was dishonored unless:
2. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment . This element is emphasized in the case of Vergara vs. People, 450 SCRA 495, where the Supreme Court held: “To be liable for violation of Batas Pambansa Blg. 22, it is not enough that the check was subsequently dishonored for insufficiency of funds. It must be shown also beyond reasonable doubt that petitioner knew of the insufficiency of funds at the time the check was issued.” 3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or it would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. Azarcon vs. People, June 29, 2010 2.02 WHAT DOES THE TERM “ISSUE” MEAN? Section 191 of the Negotiable Instruments Law defines "issue" as the first delivery of an instrument, complete in form, to a person who takes it as a holder. Significantly, delivery is the final act essential to the negotiability of an instrument. Delivery denotes physical transfer of the instrument by the maker or drawer coupled with an intention to convey title to the payee and recognize him as a holder. Dy vs. People, 571 SCRA 59, November 14, 2008 2.03
PRIMA FACIE EVIDENCE OF KNOWLEDGE OF INSUFFICIENT FUNDS.
a. such maker or drawer pays the holder thereof the amount due thereon within 5 banking days after receiving notice that such check has not been paid by the drawee , or b.
makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice of non-payment.
Respecting the second element of the crime, the Supreme Court ruled in Tan v. Philippine Commercial International Bank 552 SCRA 532, April 23, 2008 that the prosecution must prove the accused knew, at the time of issuance, that he does not have sufficient funds or credit for the full payment of the check upon its presentment. The element of "knowledge" involves a state of mind that obviously would be difficult to establish, hence, the statute creates a prima facie presumption of knowledge on the insufficiency of funds or credit coincidental with the attendance of the two other elements. b. Is the 90 day-period to deposit the check an element of BP 22? No. That the check must be deposited within ninety (90) days is simply one of the conditions for the prima facie presumption of knowledge of lack of funds to arise, but it is not an element of the offense, and neither does it discharge the accused from his duty to maintain sufficient funds in the account within a reasonable time thereof. Nagrarnpa vs. People, 386 SCRA 412 c. What is the consequence if there is failure to deposit the check within the 90 day-period? 52
The only consequence of the failure to present the check for payment within the 90day period is that there arises no prima facie presumption of knowledge of insufficiency of funds. Nagrarnpa vs. People, 386 SCRA 412 d. Cite the importance of notice of dishonor to establish a prima facie evidence of knowledge of insufficiency of funds. The presumption is brought into existence only after it is proved that the issuer had received a notice of dishonor and that within five days from receipt thereof, he failed to pay the amount of the check or to make arrangements for its payment. The presumption or prima facie evidence as provided in this section cannot arise, if such notice of nonpayment by the drawee bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received by the drawer, since there would simply be no way of reckoning the crucial 5-day period. Azarcon vs. Gonzales, G.R. No. 185906, June 29, 2010 e. Cite prevailing doctrines on notice of dishonor. 1. Procedural due process clearly enjoins that a notice of dishonor of a check be given the signatory— the absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Marigomen vs. People, 459 SCRA 169 2. Receipts for registered letters and return receipts do not by themselves prove receipt – they must be properly authenticated to serve as proof of receipt of the letters, claimed to be a noticed of dishonor. Rico vs. People, 392 SCRA 61 3. It is not enough for the prosecution to prove that a notice of dishonor was sent to the drawee of the check. The prosecution must also prove actual receipt of said notice because the fact of service provided for in the law is reckoned
from receipt of such notice of dishonor by the drawee of the check. Cabrera v. People, 407 SCRA 247 4. Possibilities cannot replace proof beyond reasonable doubt. When there is insufficient proof of receipt of notice of dishonor, as in this case, the presumption of knowledge of insufficiency of funds cannot arise. A notice of dishonor personally sent to and received by the accused is necessary before one can be held liable under B.P. Blg. 22. The failure of the prosecution to prove the receipt by petitioner of the requisite written notice of dishonor and that she was given at least five banking days within which to settle her account constitutes sufficient ground for her acquittal. Ting v. Court of Appeals, 344 SCRA 551 5. Registry return cards must be authenticated to serve as proof of receipt of letters sent through registered mail. Thus, we held: …it must appear that the same was served on the addressee or a duly authorized agent of the addressee. In fact, the registry return receipt itself provides that ‘[a] registered article must not be delivered to anyone but the addressee, or upon the addressee’s written order, in which case the authorized agent must write the addressee’s name on the proper space and then affix legibly his own signature below it.’ Suarez vs. People, 555 SCRA 238, June 19, 2008 f.
Can the notice of dishonor be done orally?
No. the law requires that the insufficiency of funds in or credit shall be explicitly stated in the dishonor, hence, a mere oral notice or demand to pay is insufficient for conviction under BP. 22. Domagsang vs. CA, G.R. 139292, 5 December 2000 The notice must be in writing. A mere oral notice to pay a dishonored check will not suffice. The lack of a written notice is fatal for 53
the prosecution. Azarcon vs. Gonzales, G.R. No. 185906, June 29, 2010 g. Who may send the notice of dishonor? The notice of dishonor of a check may be sent to the drawer or maker, by the drawee bank, the holder of the check, or the offended party. Ambito vs. People, 579 SCRA 68, February 13, 2009 2.04 GIVE THE ELEMENTS OF THE SECOND PARAGRAPH OF SECTION 1 OF BP.22. This way of committing BP.22 suggests that at the time the check was issued, the issuer had sufficient funds in or credit with the drawee bank. However, the check was dishonored when presented for payment within 90 days from its date for failure to maintain sufficient funds or credit to cover the amount. The elements are as follows: a) any person, makes or draws and issues a check; b) such person has sufficient funds in or credit with the drawee bank; c) failure to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon; d) for which reason it is dishonored by the drawee bank. Illustrative case BAR Q. [1996]The accused was convicted under BP Blg. 22 for having issued several checks which were dishonored by the drawee bank on their due date because the accused closed her account after the issuance of checks. On appeal, she argued that she could not be convicted under BP Blg. 22 by reason of the closing of her account because said law applies solely to checks dishonored by reason of insufficiency of funds and that at the time she issued the checks concerned, she had adequate funds in the bank. While she admits that she may be
held liable for estafa under Article 215 of the Revised Penal Code, she cannot however be found guilty of having violated BP 22. Is her contention correct? Explain. Suggested Answer: No. BP. 22 does not limit its application to insufficiency of funds in the account at the time of the issuance of the check. It likewise punishes under Section 1, 2nd paragraph any person who may have sufficient funds in the drawee bank when he issued the check, but fails to keep sufficient funds to cover the full amount of the check when presented to the drawee bank within ninety (90) days from the date appearing thereon. It bears stressing that if a check the checks was issued to apply on account or for value, and was subsequently dishonored, for lack of insufficient funds on their due date, such act violates BP 22. 2.05 COMPARE VIOLATION OF BP 22 FROM ESTAFA UNDER PAR. 2 [D], ARTICLE 315, OF THE REVISED PENAL CODE. First, the elements of estafa under paragraph 2(d), Article 315 of the RPC are (1) the postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) lack of sufficiency of funds to cover the check; and (3) damage to the payee. Cajigas vs. People, 580 SCRA 54, February 23, 2009 For violation of the “Bouncing Check Law”, deceit and damage are not essential or required. The essential element of that offense is knowledge on the part of the maker or drawer of the check of the insufficiency of his funds. The gravamen of the offense is the issuance of a bad check, not the non-payment of an obligation. Second, Article 315, Par.2 (d) is a crime against property because the issuance of the check is used as a means to obtain a valuable consideration from the payee. On the other hand, in BP. 22, the mere act of issuing an unfunded check is an offense against public order to stem the harm caused by these bouncing checks to the community. Mitra vs. People, July 05, 2010 54
Third, in estafa, the failure of the drawer to deposit the amount necessary to secure payment of the check within 3 days from receipt of notice from the bank and or the payee or holder that said check has been dishonored for lack or insufficiency of funds is prima facie evidence of deceit constituting false pretense or fraudulent act. In BP. 22, the failure of the drawer to pay in full the payee or holder within 5 banking days after receiving notice that the check has been rejected by the drawee bank gives rise to presumption of knowledge of insufficiency of funds or credit. Fourth, in estafa, the check is issued in payment of a simultaneous obligation to defraud the creditor. In BP. 22, the check is issued in payment of a pre-existing obligation. Fifth, in estafa, an endorser who with knowledge that the check is worthless and had acted with deceit, is liable. In BP. 22, the persons liable are the maker, drawer and the issuer but not an endorser. Lastly, since estafa is mala in se, good faith is a proper defense. BP 22 is mala prohibitum, it is punished by a special law and therefore, good faith is not a defense. 2.06 DIFFERENTIATE “SIMULTANEOUS OBLIGATION” FROM “PREEXISTING” OBLIGATION. “Simultaneous obligation” as an element of estafa connotes that the issuance of a check is used as a means to obtain valuable consideration from the payee. Deceit is the efficient cause for defraudation. To defraud is to deprive some right, interest, or property by deceitful devise. People vs.Quesada, 60 Phil. 515 In the issuance of a check in payment of a “pre-existing obligation”, the drawer derives no material benefit in return as its consideration had long been delivered to him before the check was issued.Since an obligation has already been contracted, it cannot be said that the payee parted with his property or that the drawer has obtained
something of value as a result of the postdating or issuance of the bad check in payment of a pre-existing obligation. People vs. Lilius, 59 Phil. 339 Unlike in estafa, the accused in this case obtain nothing when he issued the check, his debt for the payment thereof had been contracted prior to its issuance. 2.07 EXPLAIN DECEIT AS AN ELEMENT OF ESTAFA. Deceit as an element of estafa is a specie of fraud. It is actual fraud which consists in any misrepresentation or contrivance where a person deludes another, to his hurt. There is deceit when one is misled -- by guile, trickery or by other means - to believe as true what is really false. Dy vs. People, 571 SCRA 59, November 14, 2008 2.08 EXPLAIN DAMAGE AS AN ELEMENT OF ESTAFA. Damage as an element of estafa may consist in (1) the offended party being deprived of his money or property as a result of the defraudation; (2) disturbance in property right; or (3) temporary prejudice. Nagrampa vs. People, 386 SCRA 412 2.09
EXPLAIN ESTAFA THRU ISSUANCE OF A CHECK.
THE
To constitute estafa, the act of postdating .or issuing a check in payment of obligation must be the efficient cause of defraudation and, as such, it should be either prior to, or simultaneous with, the act of fraud. Nagrampa vs. People, 386 SCRA 412 2.10 CAN A PERSON BE BOTH LIABLE FOR VIOLATION OF BP 22 AND ANOTHER PROVISION OF THE REVISED PENAL CODE? (SEC.5) Yes, the filing of a criminal case under B.P. 22 shall not prejudice any liability arising from a felony committed under the Revised Penal Code. Section 5 is explicit: “Prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code.” 55
B. DEFENSES IN BP. 22
actually notified that the check was dishonored, and that he or she failed, within five (5) banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment. Absent proof that the accused received such notice, a prosecution for violation of the Bouncing Checks Law cannot prosper.
3.00 WHAT ARE THE POSSIBLE DEFENSES IN BP 22? a. Checks issued to person who was not authorized to collect and receive the same are without valuable consideration and are also considered issued for a nonexisting account. Cariño v. De Castro, 553 SCRA 688, April 30, 2008
In the case of Ambito vs. People and CA, G.R. No. 127327, 13 February 2009, there being no proof that he was given any written notice informing him of the fact that his checks were dishonored and giving him five (5) banking days within which to make arrangements for payment of the said checks, the rebuttable presumption that he had knowledge of the insufficiency of his funds has no application in the present case.
b. The presentation of the registry card, with an unauthorized signature, does not meet therequired proof beyond reasonable doubt that the petitioner received such noticed, especially considering that he denied receiving it. As there is insufficient proof that the petitioner received notice of dishonor, the presumption that he had knowledge of insufficiency of funds cannot arise. Suarez v. People 555, SCRA 238, June 19, 2008 c. Presumption of knowledge of insufficiency of funds is not conclusive as it may be rebutted by full payment. Payment is a complete defense that would lie regardless of the strength of the evidence presented by the prosecution. Tan vs. Philippine Commercial International Bank 552 SCRA 532, April 23, 2008 d. Only a full payment at the time of its presentment or during the five-day grace period could exonerate one from criminal liability under B.P. Blg. 22 and that subsequent payments can only affect the civil, but not the criminal, liability. Tan sv. Philippine Commercial International Bank 552 SCRA 532, April 23, 2008 e. Under B.P. Blg. 22, the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must also establish that the accused was
f.
To be liable under Section 1 of B.P. Blg. 22, the check must be dishonored by the drawee bank for insufficiency of funds or credit or dishonored for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.
In Tan vs. People, 349 SCRA 777, 2001, the Court acquitted the petitioner therein who was indicted under B.P. Blg. 22, upon a check which was dishonored for the reason DAUD, among others. Even without relying on the credit line, petitioner's bank account covered the check she issued because even though there were some deposits that were still uncollected the deposits became "good" and the bank certified that the check was "funded." To be liable under Section 1of B.P. Blg. 22, the check must be dishonored by the drawee bank for insufficiency of funds or credit or dishonored for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.
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g.
Blg. 22 speaks only of insufficiency of funds and does not treat of uncollected deposits.
In Dy vs. People, 571 SCRA 59, November 14, 2008, the High Court declared that the law cannot be interpreted in such a way as to expand its provision to encompass the situation of uncollected deposits because it would make the law more onerous on the part of the accused. Again, criminal statutes are strictly construed against the Government and liberally in favor of the accused. h. Prescription is a proper defense. The prescriptive period is 4 years reckoned from the lapse of the 5 banking days from notice of dishonor within which to make good the check. i.
Forgery of the signature appearing on the check. When a signature is forged or made without the authority of the person whose signature it purports to be the check is wholly inoperative unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority. Ilusorio vs. Court of Appeals, 353 SCRA 89
3.01 IS AN AGREEMENT SURROUNDING THE ISSUANCE OF DISHONORED CHECKS RELEVANT TO THE PROSECUTION FOR VIOLATION OF BATAS PAMBANSA 22? No, an agreement surrounding the issuance of dishonored checks is irrelevant to the prosecution for violation of Batas Pambansa Blg. 22. Dreamwork Construction, Inc. v. Janiola 591 SCRA 466, June 30, 2009 It has been consistently declared that the cause or reason for the issuance of a check is inconsequential in determining criminal culpability under B.P. Blg. 22. As held in the case of Jose v. Suarez 556 SCRA 772, June 30, 2008, the cause or reason for the issuance of a check is inconsequential in determining criminal culpability under
B.P. Blg. 22. The mere act of issuing a worthless check is malum prohibitum provided the other elements of the offense are properly proved. Noteworthy to cite to illustrate this point is the case ofDreamwork Construction, Inc. vs. Janiola and Hon. Famini G.R. No. 184861, 30 June 2009 FACTS: On October 18, 2004, petitioner Dreamwork Construction Inc., through its President, filed a case for violation of Batas Pambansa Bilang 22 (BP 22) against private respondent. Correspondingly, petitioner filed a criminal information for violation of BP 22 against private respondent. On September 20, 2006, private respondent, joined by her husband, instituted a civil complaint against petitioner by filing a Complaint for the rescission of an alleged construction agreement between the parties, as well as for damages. Notably, the checks, subject of the criminal cases before the MTC, were issued in consideration of the construction agreement. Thereafter, on July 25, 2007, private respondent filed a Motion to Suspend Proceedings alleging that the civil case posed a prejudicial question as against the criminal cases. Petitioner opposed the suspension of the proceedings in the criminal cases as the rescission of the contract upon which the bouncing checks were issued is a separate and distinct issue from the issue of whether private respondent violated BP 22. The MTC granted the Motion to Suspend Proceedings. ISSUE: Whether the resolution of the civil case for rescission of construction agreement between the parties determinative of the prosecution of the criminal action for violation of BP 22. RULING: Prejudicial question is inapplicable in this case. The fact that there exists a valid contract or agreement to support the issuance of the check/s or that the checks were issued for valuable consideration does not make up the elements of the crime. Thus, the Court has held in a long line of cases that the agreement surrounding the issuance of dishonored checks is irrelevant to the prosecution for violation of BP 22. It must be 57
emphasized that the gravamen of the offense charge is the issuance of a bad check. The purpose for which the check was issued, the terms and conditions relating to its issuance, or any agreement surrounding such issuance are irrelevant to the prosecution and conviction of petitioner. To determine the reason for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring havoc in trade and in banking communities. The clear intention of the framers of B.P. 22 is to make the mere act of issuing a worthless check malum prohibitum. 3.02 IS LACK OF VALUABLE CONSIDERATION A PROPER DEFENSE IN VIOLATION OF BP 22? No. The issue of lack of valuable consideration for the issuance of checks which were later on dishonored for insufficient funds is immaterial to the success of a prosecution for violation of BP 22. Dreamwork Construction, Inc. v. Janiola 591 SCRA 466, June 30, 2009 In Lunaria vs. People, 5701 SCRA 572, November 11, 2008, the Supreme Court stated that even in cases where there had been payment, through compensation or some other means, there could still be prosecution for violation of B.P. 22. The gravamen of the offense under this law is the act of issuing a worthless check or a check that is dishonored upon its presentment for payment, not the nonpayment of the obligation. 3.03 NOVATION IN BP. 22 a.
IS NOVATION A PROPER DEFENSE IN BP.22?
No. Whether there was novation or not is not determinative of respondent’s responsibility for violation of B.P. 22, as the said special law punishes the act of issuing a worthless check and not the purpose for which the check was issued or the terms and conditions relating to its issuance. Thus, even if it be subsequently declared that novation
took place, respondent is not exempt from prosecution for violation of B.P. 22 for the dishonored checks. Land Bank of the Philippines vs. Jacinto, G.R. No. 154622, August 3, 2010 It is well settled that the mere act of issuing a worthless check, even if merely as an accommodation, is covered by B.P. 22. The Court has held that the agreement surrounding the issuance of dishonored checks is irrelevant to the prosecution for violation of B.P. 22. 3.04 STOP PAYMENT IN BP. 22 a. IS “STOP PAYMENT” A PROPER DEFENSE IN BP. 22? It depends. Although the drawer ordered a “STOP PAYMENT” or countermand, yet if it was clear from the statement of account that the check bounced due to insufficiency of funds, the drawer of the check is still liable.Chang vs. IAC, 146 SCRA 464 C. CORPORATION IN RELATION TO BP. 22 4.00 DIFFERENTIATE CORPORATE CHECK FROM A PERSONAL CHECK. A corporate check is one signed by a natural person in the name of the corporation. The drawer, in effect, is the corporation or juridical entity while personal check is one drawn by a natural person in his name. 4.01
WHO IS LIABLE IF THE CHECK IS DRAWN BY A CORPORATION, COMPANY OR ENTITY?
Section 1 of the law provides: “Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act.” In explaining this afore-quoted rule, the Supreme Court in Mitra vs. People, G.R. No. 191404, July 5, 2010 held: 58
“This provision recognizes the reality that a corporation can only act through its officers. Hence, its wording is unequivocal and mandatory – that the person who actually signed the corporate check shall be held liable for a violation of BP 22. This provision does not contain any condition, qualification or limitation.” It went on to elucidate: “In the case of Llamado v. Court of Appeals, the Court ruled that the accused was liable on the unfunded corporate check which he signed as treasurer of the corporation. He could not invoke his lack of involvement in the negotiation for the transaction as a defense because BP 22 punishes the mere issuance of a bouncing check, not the purpose for which the check was issued or in consideration of the terms and conditions relating to its issuance. In this case, Mitra signed the LNCC checks as treasurer. Following Llamado, she must then be held liable for violating BP 22.” 4.02
EXPLAIN WHY A CORPORATE OFFICER WHO ISSUED A DISHONORED CHECK IS PERSONALLY LIABLE.
The personal liability of the corporate officer is predicated on the principle that he cannot shield himself from liability from his own acts on the ground that it was a corporate act and not his personal act. Gosiaco vs. Ching and Casta, G.R. 173807, 16 April 2009 4.03 WHO MUST RECEIVE THE NOTICE OF DISHONOR IF THE BOUNCED CHECK IS DRAWN BY A CORPORATION, COMPANY OR ENTITY? The officer who is accused of signing the check must receive the notice of dishonor. Constructive notice to the corporation, who has a separate personality from its officer, is not enough. The Court stated its importance when it held in Marigomen vs. People, 459 SCRA 169, that if the drawer or maker is an officer of a corporation, the notice of dishonor to the said corporation is not notice to the employee or officer who drew or issued the check for and in its behalf.
4.04 MAY A MEMBER OF THE BOARD OF DIRECTORS OF A CORPORATION FILE A CASE OF BP 22? Yes, provided he is authorized to sue for and on behalf of the corporation. Under Section 36 of the Corporation Code, read in relation to Section 23, it is clear that where a corporation is an injured party, its power to sue is lodged with its board of directors or trustees. In Muñoz vs. People, 548 SCRA 473, March 14, 2008, Concord, a domestic corporation, was the payee of the bum check, not petitioner. Therefore, it is Concord, as payee of the bounced check, which is the injured party. Since petitioner was neither a payee nor a holder of the bad check, he had neither the personality to sue nor a cause of action against the accused. Petitioner failed to show any proof that he was authorized or deputized or granted specific powers by Concord's board of director to sue for and on behalf of the firm. Clearly, petitioner as a minority stockholder and member of the board of directors had no such power or authority to sue on Concord's behalf. D. CIVIL LIABILITY 5.00 CITE CERTAIN PRINCIPLES ON CIVIL LIABILITY. a. An acquittal based on reasonable doubt does not preclude the award of civil damages. b. The possible single civil liability arising from the act of issuing a bouncing check can be the subject of both civil actions deemed instituted with the estafa case and the prosecution for violation of Batas Pambansa Blg. 22, simultaneously available to the complaining party, without traversing the prohibition against forum shopping. Under the present revised Rules, the criminal action for violation of BP Blg. 22 59
includes the corresponding civil action to recover the amount of the checks. It should be stressed, this policy is intended to discourage the separate filing of the civil action. In fact, the Rules even prohibits the reservation of a separate civil action, i.e., one can no longer file a separate civil case after the criminal complaint is filed in court. The only instance when separate proceedings are allowed is when the civil action is filed ahead of the criminal case. Even then, the Rule encourages the consolidation of the civil and criminal cases. Thus, where petitioner’s rights may be fully adjudicated in the proceedings before the court trying the BP Blg. 22 cases, resort to a separate action to recover civil liability is clearly unwarranted on account of res judicata, for failure of petitioner to appeal the civil aspect of the cases. In view of this special rule governing actions for violation of BP Blg. 22, Article 31 of the Civil Code is not applicable. Cheng v. Sy 592, SCRA 155, July 7, 2009 c. The rule is that upon filing of the estafa and Batas Pambansa Blg. 222 cases against respondents, where the petitioner has not made any waiver, express reservation to litigate separately, or has not instituted the corresponding civil action to collect the amount involved and damages prior to the criminal action, the civil action is deemed instituted with the criminal cases. Cheng v. Sy 592 SCRA 155, July 7, 2009 5.01 MAY PETITIONER’S ACTION TO RECOVER RESPONDENT’S CIVIL LIABILITY STILL BE ALLOWED TO PROSPER SEPARATELY AFTER THE BP. 22 CASES WERE DISMISSED? No. Under the present revised Rules, the criminal action for violation of BP Blg. 22 includes the corresponding civil action to recover the amount of the checks. This policy is intended to discourage the separate filing of the civil action.
The Rules even prohibits the reservation of a separate civil action, i.e., one can no longer file a separate civil case after the criminal complaint is filed in court. The only instance when separate proceedings are allowed is when the civil action is filed ahead of the criminal case. Even then, the Rules encourage the consolidation of the civil and criminal cases. IS THERE AN EXCEPTION? Yes, if there is a finding of gross mistake committed by a prosecutor in handling BP Blg. 22 cases as enunciated in the landmark case of Cheng vs. Sy, G. R. No. 174238, July 7, 2009. In this case, petitioner filed two cases of estafa before the RTC and two cases for violation of B. P. Blg. 22 before the MTC against the respondents for issuing to her PBC checks in payment of their loan, both of which were dishonored for having been drawn against a closed account. The estafa cases were dismissed for failure of the prosecution to prove the elements of the crime, while the B. P. Blg. 22 cases were dismissed, on demurrer, on account of the failure of petitioner to identify the accused respondents in open court. Petitioner indirectly faulted the prosecutor for failure to protect her interest. The Supreme Court finds that petitioner would be left without a remedy to recover from respondents the allegedly loaned from her. It ruled: “It is in this light that we find petitioner’s contention that she was not assisted by a private prosecutor during the BP Blg. 22 proceedings critical. Petitioner indirectly protests that the public prosecutor failed to protect and prosecute her cause when he failed to have her establish the identities of the accused during the trial and when he failed to appeal the civil action deemed impliedly instituted with the BP Blg. 22 cases. On this ground, we agree with petitioner. Blg.
Faced with the dismissal of the BP 22 cases, petitioner’s recourse 60
pursuant to the prevailing rules of procedure would have been to appeal the civil action to recover the amount loaned to respondents corresponding to the bounced checks. Hence, the said civil action may proceed requiring only a preponderance of evidence on the part of petitioner. Her failure to appeal within the reglementary period was tantamount to a waiver altogether of the remedy to recover the civil liability of respondents. However, due to the gross mistake of the prosecutor in the BP Blg. 22 cases, we are constrained to digress from this rule. “ 5.02
CIVIL LIABILITY WHEN CORPORATION IS INVOLVED-
A
a. Under the amended rules on bouncing checks, the previous option to directly pursue the civil liability against the corporation that incurred the obligation is no longer that clear. B.P. Blg. 22 imposes a distinct civil liability on the signatory of the check which is distinct from the civil liability of the corporation for the amount represented from the check. The civil liability attaching to the signatory arises from the wrongful act of signing the check despite the insufficiency of funds in the account, while the civil liability attaching to the corporation is itself the very obligation covered by the check or the consideration for its execution. Yet these civil liabilities are mistaken to be indistinct. The confusion is traceable to the singularity of the amount of each. Gosiaco vs. Ching, 585 SCRA 471, April 16, 2009 b. The civil action impliedly instituted in the Batas Pambansa Blg 22 action is only the civil liability of the signatory and not that of the corporation. It follows that the actions involving these liabilities should be adjudged according to their respective standards and merits. In the B.P. Blg. 22 case, what the trial court should determine whether or not the signatory had signed the check with knowledge of the insufficiency of funds or credit in the bank account, while in the civil case the trial court
should ascertain whether or not the obligation itself is valid and demandable. The litigation of both questions could, in theory, proceed independently and simultaneously without being ultimately conclusive on one or the other. Gosiaco vs. Ching 585 SCRA 471, April 16, 2009 5.03 CAN A COURT IMPOSE SUBSIDIARY CIVIL LIABILITY AGAINST A CORPORATION IN BP. 22 CASE? No. In Gosiaco vs. Ching And Casta, G.R. No. 173807, 16 April 2009, the Supreme Court had the occasion to explain the reason way. It held that nowhere in B.P. Blg. 22 is it provided that a juridical person may be impleaded as an accused or defendant in the prosecution for violations of that law, even in the litigation of the civil aspect thereof. It might be argued that under the current rules, if the signatory were made liable for the amount of the check by reason of the B.P. Blg. 22 case, such signatory would have the option of recovering the same amount from the corporation. If the signatory does not have sufficient assets to answer for the amount of the check–a distinct possibility considering the occasional large-scale transactions engaged in by corporations – the corporation would not be subsidiarily liable to the complainant, even if it in truth the controversy, of which the criminal case is just a part, is traceable to the original obligation of the corporation. While the Revised Penal Code imposes subsidiary civil liability to corporations for criminal acts engaged in by their employees in the discharge of their duties, said subsidiary liability applies only to felonies, and not to crimes penalized by special laws such as B.P. Blg. 22. And nothing in B.P. Blg. 22 imposes such subsidiary liability to the corporation in whose name the check is actually issued. F. ADMINISTRATIVE CIRCULAR NO. 122000 AND ADMINISTRATIVE CIRCULAR NO. 13-2001
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6.00 WHAT IS ADMINISTRATIVE CIRCULAR NO. 12-2000?
appropriate penalty to impose on each of the petitioners.
It is a circular which refers to the imposition of penalties for violation of B.P. 22. It provides:
In the recent case of Rosa Lim vs. People(G. R. No. 130038, 18 September 2000), the Supreme Court en banc, applying Vaca also deleted the penalty of imprisonment and sentenced the drawer of the bounced check to the maximum of the fine allowed by B.P. Blg. 22, i.e., P200,000, and concluded that “such would best serve the ends of criminal justice.”
“Section 1 of B.P. Blg. 22 (An Act Penalizing the Making or Drawing and Issuance of a Check Without Sufficient Funds for Credit and for Other Purposes) imposes the penalty of imprisonment of not less than thirty (30) days but not more than one (1) year or a fine of not less than but not more than double the amount of the check, which fine shall in no case exceed P200,000, or both such fine and imprisonment at the discretion of the court. In its decision in Eduardo Vaca vs. Court of Appeals (G.R. No. 131714, 16 November 1998; 298 SCRA 656, 664) the Supreme Court (Second Division) per Mr. Justice V. Mendoza, modified the sentence imposed for violation of B.P. Blg. 22 by deleting the penalty of imprisonment and imposing only the penalty of fine in an amount double the amount of the check. In justification thereof, the Court said: Petitioners are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the national economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly that they had not committed a violation of B.P. Blg. 22. Otherwise, they could simply have accepted the judgment of the trial court and applied for probation to evade a prison term. It would best serve the ends of criminal justice if in fixing the penalty within the range of discretion allowed by Section 1, par. 1, the same philosophy underlying the Indeterminate Sentence Law is observed, namely, that of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of the social order. In this case, we believe that a fine in an amount equal to double the amount of the check involved is an
All courts and judges concerned should henceforth take note of the foregoing policy of the Supreme Court on the matter of the imposition of penalties for violations of B.P. Blg. 22. The Court Administrator shall cause the immediate dissemination of this Administrative Circular to all courts and judges concerned. This Administrative Circular, referred to and approved by the Supreme Court en banc, shall take effect upon its issuance. Issued this 21st day of November 2000. X x x “ Court has not discriminalized B.P. 22 violations, nor have removed imprisonment as an alternative penalty. Since 1998, this Court has held that it would best serve the ends of criminal justice if, in fixing the penalty to be imposed for violation of B.P. 22, the same philosophy underlying the Indeterminate Sentence Law be observed, i.e., that of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of the social order. This policy was embodied in Supreme Court Administrative Circular No. 12-2000, authorizing the nonimposition of the penalty of imprisonment in B.P. 22 cases. We also clarified in Administrative Circular No. 13-2001, as explained in Tan v. Mendez, 383 SCRA 202 (2002), that we are not decriminalizing 62
B.P. 22 violations, nor have we removed imprisonment as an alternative penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the judge. Should the judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 122000 ought not to be deemed a hindrance. Lunaria vs. People, 5701 SCRA 572, November 11, 2008. 6.01 ON THE OTHER HAND ,WHAT IS ADMINISTRATIVE CIRCULAR NO. 13-2001? It is a circular addressed to all judges which clarifies Administrative Circular No. 12-2000 on the penalty for violation of Batas Pambansa blg. 22. It provides: “Clarification has been sought by concerned Judges and other parties regarding the operation of Administrative Circular 12-2000 issued on 21 November 2000. In particular, queries have been made regarding the authority of Judges to: 1. Impose the penalty of imprisonment for violations of Batas Pambansa Blg. 22; and 2. Impose subsidiary imprisonment in the event that the accused who is found guilty of violating the provisions of B.P. Blg. 22, is unable to pay the fine which he is sentenced to pay considering that Administrative Circular No. 12-2000 adopted the rulings in Eduardo Vaca v. Court of Appeals (G.R. No. 131714, 16 November 1998, 298 SCRA 656) and Rosa Lim v. People of the Philippines (G.R. No. 130038, 18 September 2000) as a policy of the Supreme Court on the matter of the imposition of penalties for violations of B.P. Blg. 22, without mentioning whether subsidiary imprisonment could be resorted to in case of the accused's inability to pay the fine. The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of
preference in the application of the penalties provided for in B.P. Blg. 22. The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violations of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law. Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 122000 ought not be deemed a hindrance. It is, therefore, understood that: 1. Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22; 2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; 3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment.
63
The issuance of this Administrative Circular was authorized by the Court En Banc in A.M. No. 00-11-01-SC at its session of 13 February 2001. The Clerk of Court of the Supreme Court and the Court Administrator shall immediately cause the implementation of this Administrative Circular. This Administrative Circular shall be published in a newspaper of general circulation not later than 20 February 2001. Issued this 14th day of February, 2001. x x x“ 6.02 DOES ADMINISTRATIVE CIRCULAR N0. 13- 2001 DECRIMINALIZE VIOLATIONS OF BP. 22? No. The Supreme Court pronounced in Lunaria vs. People, 5701 SCRA 572, November 11, 2008, that it has not decriminalized B.P. 22 violations, nor have removed imprisonment as an alternative penalty. The Court clarified that the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the judge. Should the judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not to be deemed a hindrance. G. OTHER POINTS TO CONSIDER IN BP. 22 1. Each act of drawing and issuing a bouncing check constitutes a violation of B.P. Blg. 22. 2. If the drawer has a valid reason for stopping payment, he cannot be held liable under B.P. Blg. 22. 3. Cross checks are negotiable instruments, and therefore, come within the coverage of B.P. Blg. 22. 4.
If the bouncing check was issued to pay a pre-existing obligation, the
drawer is liable only for violation of B.P. Blg. 22. 5. If the payee (the one receiving the payment) is aware of the insufficiency or lack of fund in the bank to cover the check at the time it was issued, the drawer may be held liable for violation of B. P. Blg. 22. 6. Even if a bad check is issued as a guarantee, Batas 22 is violated. ADDENDUM: Payment even beyond the 5-day period extinguishes criminal liability. Although payment of the value of the bounced check, if made beyond the 5-day period provided for in B.P. Blg. 22, would normally not extinguish criminal liability, the aforementioned cases show that the Court acknowledges the existence of extraordinary cases where, even if all the elements of the crime of offense are present, the conviction of the accused would prove to be abhorrent to society’s sense of justice. Just like in Griffith and in Tan, petitioner should not be penalized although all the elements of violation of B.P. Blg. 22 are proven to be present. The fact that the issuer of the check had already paid the value of the dishonored check after having received the subpoena from the Office of the Prosecutor should have forestalled the filing of the Information in court. The spirit of the law which, for B.P. Blg. 22, is the protection of the credibility and stability of the banking system, would not be served by penalizing people who have evidently made amends for their mistakes and made restitution for damages even before charges have been filed against them. In effect, the payment of the checks before the filing of the information has already attained the purpose of the law. (Ariel T. Lim vs People, G.R. No. 190834, November 26, 2014, Peralta, J.)
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CHAPTER VII. THE ANTI-FENCING LAW OF 1979 Presidential Decree No. 1612 [BAR 2010, 2009, ’95, 1993, 1990, 64
1987, 1985] ______________________________________________ 1.00 WHAT IS THE CRIME OF "FENCING". (Sec. 2) Section 2 of this Act defines fencing as: “It is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.” 1.01 BAR Q. [1995] WHAT ARE THE ELEMENTS OF FENCING? The elements of fencing are: (a) a crime of robbery or theft has been committed; (b) accused, who is not a principal or accomplice in the crime, buys, receives, possess, keeps, acquires, conceals, or disposes or buys and sells or in any manner deals in any article, item object or anything of value, which has been derived from the proceeds of said crime; (c) the accused knows or should have known that said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and (d) there is, on the part of the accused, intent to gain for himself or for another. 1.02 ARE THE CRIMES OF ROBBERY AND THEFT SEPARATE AND DISTINCT FROM FENCING? No, the crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses. Before P.D. No. 1612, a fence could only be prosecuted for and held liable as an accessory, as the term is defined in Article 19 of the Revised Penal Code. The penalty applicable to an accessory is obviously light under the rules prescribed in Articles 53, 55, and 57 of the Revised Penal Code, subject to the
qualification set forth in Article 60 thereof. Evidently, the accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the latter case, he ceases to be a mere accessory but becomes a principal in the crime of fencing. Elsewise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses. The state may thus choose to prosecute him either under the Revised Penal Code or P.D. No. 1612, although the preference for the latter would seem inevitable considering that fencing is a malum prohibitum, and P.D. No. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property. Dizon-Pamintuan vs. People, 234 SCRA 63(1994) 1.03 EXPLAIN THE DIFFERENCE AND SIMILARITY BETWEEN A FENCE AND AN ACCESSORY TO THEFT OR ROBBERY? a. A fence is punished as a principal under PD, No 1612 and the penalty is higher, whereas an accessory to robbery or theft under the Revised Penal Code is punished two degrees lower than the principal as a general rule. b. Fencing is a malum prohibitum and therefore there is no need to prove criminal intent of the accused. Good faith is not a defense. In accessory to robbery or theft under the Revised Penal Code, intent is an element of the crime and therefore, good faith is a proper defense. C. All the acts of one who is an accessory to the crimes of robbery or theft are included in the acts defined as fencing. Corollarily, the accessory in the crimes of robbery or theft could be prosecuted as such under the Revised Penal Code or as a fence under PD No. 1612. 1.04
EXPLAIN THE ELEMENT OF KNOWLEDGE OF A PARTICULAR FACT.
When knowledge of the existence of a particular fact is an element of an offense, 65
such knowledge is established if a person is aware of a high probability of its existence unless he actually believes that it does not exist. Dizon-Pamintuan vs. People, 234 SCRA 63(1994)
The law does not require proof of purchase of the stolen articles by petitioner, as mere possession thereof is enough to give rise to a presumption of fencing. Dunlao, Sr. vs. Court of Appeals, 260 SCRA 788(1996)
1.05 WHAT DO THE WORDS “SHOULD KNOW” DENOTE?
1.09 WHAT DOES THE TERM "FENCE" INCLUDE? (Sec. 2)
The words “should know” denote the fact that person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists. Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must determine such knowledge with care from the overt acts of that person. And given two equally plausible states of cognition or mental awareness, the court should choose the one which sustains the constitutional presumption of innocence. Dizon-Pamintuan vs. People, 234 SCRA 63(1994) 1.06
IS THE STOLEN PROPERTY INDISPENSABLE TO PROVE FENCING?
No. The stolen property subject of the charge is not indispensable to prove fencing. Fencing is malum prohibitum, and P.D. No. 1612 creates a prima facie presumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value which has been the subject of robbery or theft, and prescribes a higher penalty based on the value of the property. The stolen property subject of the charge is not indispensable to prove fencing. It is merely corroborative of the testimonies and other evidence adduced by the prosecution to prove the crime of fencing. Francisco vs. People, 434 SCRA 122(2004) 1.07 MUST INTENT TO GAIN BE PROVED? Intent to gain need not be proved in crimes punishable by a special law such as P.D. 1612. 1.08 MUST PURCHASE OF THE STOLEN ARTICLES BE PROVED?
It includes any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing. 1.10 IF THE FENCE IS A JURIDICAL PERSON, WHO SHOULD BE LIABLE? (SEC. 4) If the fence is a partnership, firm, corporation or association, the president or the manager or any officer thereof who knows or should have known the commission of the offense shall be liable. 1.11 WHAT IS THE PRESUMPTION OF FENCING? (SEC. 5) Section 5 provides for the presumption of fencing: “Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing” 1.12 WHAT IS THE PRESUMPTION WHEN A STOREOWNER DISPLAYS ARTICLES? When a storeowner displays articles, it is assumed that he is doing so with the intention of selling them. 1.13 DISCUSS THE NECESSITY OF SECURING A CLEARANCE OR PERMIT. (SEC. 6) Section 6 underscores the importance of securing a clearance or permit in dealing with the buy and sell activities. 1.14 UNDER THE SAID RULES AND REGULATIONS, TO WHAT ITEMS DOES THE TERM "USED SECONDHAND ARTICLE" REFER TO? It shall refer to any goods, article, item, object or anything of value obtained from an 66
unlicensed dealer or supplier, regardless of whether the same has actually or in fact been used.
management. People vs.De Gracia, 233 SCRA 716 Illustrative case
-oooOOOoooCHAPTER VIII. ILLEGAL POSSESSION OF FIREARM PD 1866 as amended by R.A. 8294 [BAR Q. 2011, 2002, 2000, 1998]
1.00 WHAT ARE THE ELEMENTS OF THE CRIME OF ILLEGAL POSSESSION OF FIREARM AND AMMUNITION? In illegal possession of firearm and ammunition, the prosecution has the burden of proving the twin elements of: (1) the existence of the subject firearm and ammunition, and (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it. Valeroso vs. People, 546 SCRA 450, February 22, 2008 Illustrative case BAR Q. [2011] X, Y and Z agreed among themselves to attack and kill A, a police officer,but they left their home-made guns in their vehicle before approaching him. What crime have they committed? A. Conspiracy to commit indirect assault. B. Attempted direct assault. C. Conspiracy to commit direct assault. D. Illegal possession of firearms. 1.01 IS OWNERSHIP AN ELEMENT OF THIS CRIME? No. Ownership is not an essential element of illegal possession of firearm. What the law requires is merely possession which includes not only physical possession but also constructive possession or the subjection of the thing to one’s control and
BAR Q. [2000] A has long been wanted by the police authorities for various crimes committed by him. Acting on an information by a tipster, the police proceeded to an apartment where A was often seen. The tipster also warned the policeman that A was always armed. At the given address, a lady who introduced herself as the elder sister of A, opened the door and let the policeman in. inside the team found A sleeping on the floor. Immediately beside him was a clutch bag which when opened, contained a .38 caliber paltic revolver and a hand grenade. After verification, the authorities discovered that A was not a licensed holder of the .38 caliber paltik revolver. As for the hand grenade, it was established that only military personnel are authorized to carry hand grenades. Subsequently, A was charged with the crime of illegal possession of firearms and ammunition. During trial, A maintained that the bag containing the unlicensed firearm and hand grenade belonged to A, his friend, and that he was not in actual possession thereof at the time he was arrested. Are the allegations meritorious? Explain. Suggested Answer: No, A's allegation that he does not own the firearm is of no significance. It is a settled rule that ownership is not an essential element in the crime of illegal possession. Further, his defense that he was not in possession of the same at that time he was arrested has no leg to stand on. Possession includes not only actual physical possession but also constructive possession where the firearm and explosives are subject to one's control and management. As long as intent to possess is proved, A can be held liable. 1.02
EXPLAIN THE POSSESSION.
CONCEPT
OF
67
The kind of possession punishable under PD 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess. It is not enough that the firearm was found in the possession of the accused who held the same temporarily and casually or for the purpose of surrendering the same. People vs. Dela Rosa, 90 SCAD 143 Possession of firearm and ammunition without the requisite authority or license, coupled with animus possidendi, is a violation of PD 1866. People vs. Lian, 255 SCRA 532 A temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon. People vs. De Gracia, 233 SCRA 716 To be guilty of the crime of illegal possession of firearms and ammunition, one does not have to be in actual physical possession thereof. The law does not punish physical possession alone but possession in general, which includes constructive possession or the subjection of the thing to the owner’s control. Evangelista vs. People, G.R. No. 163267, May 5, 2010
was made in good faith and without criminal intent. Elenita C. Fajardo vs. People, G.R. No. 190889, January 10, 2011 1.04 ASIDE FROM A FIREARM WITHOUT A LICENSE, WHAT DOES UNLICENSED FIREARM INCLUDE? The term unlicensed firearm shall include: 1) firearms with expired license; or 2) unauthorized use of licensed firearm in the commission of the crime. Unlicensed firearm no longer simply means a firearm without a license duly issued by lawful authority. The scope of the term has been expanded in Section 5 of Republic Act No. 8294 as: (1) firearm with expired license, or (2) unauthorized use of licensed firearm in the commission of the crime. People vs. Molina, 292 SCRA 742 It follows therefore that unauthorized use of weapon which has been duly licensed in the name of its owner/possessor may still aggravate the resultant/crime. People vs. Moliva, 292 SCRA 742
1.03 DIFFERENTIATE CRIMINAL INTENT FROM INTENT TO POSSESS.
1.05 IS PROOF OF UNLICENSED FIREARM AN ESSENTIAL ELEMENT OF PD 1866?
A distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession
Yes. The lack of a license to possess firearm is an essential element of the crime of PD 1866 as amended by RA 8294 whether as an independent crime or as an aggravating circumstance in murder or homicide. People vs. Perez, G.R. No. 134485, October 23, 2003 It is settled that the lack or absence of a license is an essential ingredient of the crime of illegal possession of firearm. Sasot vs. Yuson, 592 SCRA 368, July 13, 2009 1.06 WHAT IS THE CORPUS DELICTI IN ILLEGAL POSSESSION OF FIREARM? The corpus delicti in the crime of illegal possession of firearms is the accused's lack of license or permit to possess or carry the firearm, as possession itself is not prohibited by law. To establish the corpus 68
delicti, the prosecution has the burden of proving that the firearm exists and that the accused who owned or possessed it does not have the corresponding license or permit to possess or carry the same. Sayco vs. People, 547 SRA 368, March 3, 2008 1.07 HOW IS THE SECOND ELEMENT OF THE CRIME PROVEN? It can be proven by the testimony or certification of a representative of the PNP Firearms and Explosive Unit that the accused was not a licensee of the firearm in question. People vs. Narvasa, 298 SCRA 638 In Valeroso vs. People, 546 SCRA 450, February 22, 2008, the Supreme Court ruled that either the testimony of a representative of, or a certification from, the Philippine National Police (PNP) Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms. 1.08 IS THE NON-PRESENTATION OF THE SUBJECT FIREARM FATAL TO THE PROSECUTION’S CAUSE? No because the existence of the firearm can be established by testimony even without the presentation of the said firearm. People vs. Narvasa, 100 SCAD 745 1.09 WHAT IS THE CONSEQUENCE IF HOMICIDE OR MURDER IS COMMITTED WITH THE USE OF AN UNLICENSED FIREARM? (SEC.1) 1. Where the murder or homicide results from the use of an unlicensed firearm, the crime is no longer qualified illegal possession, but murder or homicide, as the case may be, and the use of the unlicensed firearm shall be appreciated as a mere aggravating circumstance. People vs. Avecilla, 351 SCRA 462 2. The use of an unlicensed firearm shall be considered as an aggravating circumstance only. There can be no separate conviction of illegal possession of firearm. Section 1 of Presidential Decree No. 1866 as amended by Republic Act No. 8294 expressly
provides: "If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. 3. In People vs. Macoy Jr., 338 SCRA 217, the Supreme Court enunciated that in the light of the enactment of Republic Act No. 8294, amending Presidential Decree No. 1866, there can be no separate conviction of the crime of illegal possession of firearm if homicide or murder is committed with the use of an unlicensed firearm. 4. In another case, the Court held that there can be no separate offense of simple illegal possession of firearms where direct assault with multiple attempted homicide was committed. People vs. Ladjaalam, 340 SCRA 617 5. However, it is necessary that said fact is charged in the information. The accused cannot be convicted of homicide or murder with “the use of the unlicensed firearm as aggravating” where said felonies are not charged in the information but merely mentioned as the result of the use of the unlicensed firearm. People vs. Avecilla, 351 SCRA 462 1.10 IF AN UNLICENSED FIREARM IS USED IN THE COMMISSION OF ANY CRIME, CAN THERE BE A SEPARATE OFFENSE OF SIMPLE ILLEGAL POSSESSION OF FIREARMS? No. In People v. Ladjaalam, 340 SCRA 617 (2000), the Supreme Court laid down the correct interpretation of the law and ruled: “x x x A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms.” The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that “no other crime was committed by the person arrested.” Sison vs. People, 666 SCRA 645(2012) Again, if the “other crime” is murder or homicide, illegal possession of firearms 69
becomes merely an aggravating circumstance, not a separate offense. BAR Q. [2009] TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. The use of an unlicensed firearm in homicide is considered a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance. Suggested Answer: No, the use of an unlicensed firearm in murder or homicide constitutes as a special aggravating circumstance which may not be offset by an ordinary mitigating circumstances. (People vs. Palaganas, G.R. No. 165483; People vs. Castillo, G.R.No. 131592-93, February 15, 2000). However, in People vs. Dela Cruz, December 2000, the Supreme Court ruled that the aggravating circumstance of the use of firearm is effectively offset by the mitigating circumstance of voluntary surrender. 1.11 WHAT IS THE CONSEQUENCE IF ILLEGAL POSSESSION OF FIREARM IS IN FURTHERANCE OF OR INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF REBELLION OR INSURRECTION, SEDITION, OR ATTEMPTED COUP D'ETAT? (SEC.1) The use of an unlicensed firearm shall be absorbed. Section 1 of Presidential Decree No. 1866 as amended by Republic Act No. 8294 expressly states: "If the violation of this Section 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.”
“The possession of any machinery, tool or instrument used directly in the manufacture of firearms or ammunition, by any person whose business or employment does not lawfully deal with the manufacture of firearms or ammunition, shall be prima facie evidence that such article is intended to be used in the unlawful/illegal manufacture of firearms or ammunition.” 1.13 WHEN IS THE USE OF EXPLOSIVES, DETONATION AGENTS OR INCENDIARY DEVICES CONSIDERED AS AN AGGRAVATING CIRCUMSTANCE? (SEC.3) When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the explosives (mentioned in Sec.3), detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. 1.14 EXPLAIN PRESUMPTION UNLAWFUL MANUFACTURE (SEC.4).
OF
Section 4 provides the presumption of unlawful manufacture. It reads: “The possession of any machinery, tool or instrument directly used in the manufacture of explosives, by any person whose business or employment does not lawfully deal with the manufacture of explosives shall be prima facie evidence that such article is intended to be used in the unlawful/illegal manufacture of explosives.” ADDENDUM:
1.12 EXPLAIN PRESUMPTION OF ILLEGAL MANUFACTURE OF FIREARMS OR AMMUNITION (SEC.2).
“Loose firearm” refers to an unregistered firearm, an obliterated or altered firearm, firearm which has been lost or stolen, illegally manufactured firearms, registered firearms in the possession of an individual other than the licensee and those with revoked licenses in accordance with the rules and regulations. (R.A. No. 10591)
The presumption of illegal manufacture of firearms or ammunition is embodied in section 2. It provides:
USE OF LOOSE FIREARM IN THE COMMISSION OF A CRIME (Sec. 29 of R.A. No. 10591) 70
The use of 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. 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 Sec. 28 of R.A. No. 10591, the penalty for illegal possession of firearm shall be imposed in lieu of the penalty for the crime charged. -If the crime committed with the use of loose firearm is penalized by the law with a maximum penalty which is equal to that imposed under Sec. 28 of R.A. No. 10591, 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.
managing securities or rendering services as investment agent, advisor, or consultant, (ii) mutual funds, close and investment companies, common trust funds, pre-need companies and other similar entities, (iii) foreign exchange corporations, money changers, money payment, remittance, and transfer companies and other similar entities, and (iv) other entities administering or otherwise dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property supervised or regulated by Securities and Exchange Commission. 1.01 DEFINE “SUSPICIOUS TRANSACTIONS”. They are transactions with covered institutions, regardless of the amounts involved, where any of the following circumstances exist: 1. there is no underlying legal or trade obligation, purpose or economic justification; 2. the client is not properly identified;
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CHAPTER IX ANTI- MONEY LAUNDERING ACT OF 2001 R.A. No. 9160 as amended by R.A. 9194, R.A. 10167, R.A. 10168 and R.A. 10365, also known as An Act Further Strengthening The Anti-Money Laundering Law [BAR 2010, 2009, 2005] ___________________________________________________ 1.00 WHAT DOES THE TERM "COVERED INSTITUTION" REFER TO? (1) banks, non-banks, quasi-banks, trust entities, and all other institutions and their subsidiaries and affiliates supervised or regulated by the Bangko Sentral ng Pilipinas (BSP); (2) Insurance companies and all other institutions supervised or regulated by the Insurance Commission; and (3) (i) securities dealers, brokers, salesmen, investment houses and other similar entities
3. the amount involved is not commensurate with the business or financial capacity of the client; 4. taking into account all known circumstances, it may be perceived that the client's transaction is structured in order to avoid being the subject of reporting requirements under the Act; 5. any circumstances relating to the transaction which is observed to deviate from the profile of the client and/or the client's past transactions with the covered institution; 6. the transactions is in a way related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or 7. any transactions that is similar or analogous to any of the foregoing." (As inserted by R.A. No. 9194) 1.02 DEFINE "COVERED TRANSACTION". It is a transaction in cash or other 71
equivalent monetary instrument involving a total amount in excess of Five hundred thousand pesos (PhP 500,000.00) within one (1) banking day. (as amended by RA 9194) 1.03
AS AMENDED, DO “COVERED PERSONS” INCLUDE LAWYERS AND ACCOUNTANTS?
The term ‘covered persons’ shall exclude lawyers and accountants acting as independent legal professionals in relation to information concerning their clients or where disclosure of information would compromise client confidences or the attorney-client relationship: Provided, That these lawyers and accountants are authorized to practice in the Philippines and shall continue to be subject to the provisions of their respective codes of conduct and/or professional responsibility or any of its amendments. 1.04 WHAT IS THE DUTY OF “COVERED PERSONS”? Covered persons shall report to the AMLC all covered transactions and suspicious transactions within five (5) working days from occurrence thereof, unless the AMLC prescribes a different period not exceeding fifteen (15) working days. 1.05 ARE LAWYERS AND ACCOUNTANTS REQUIRED TO REPORT COVERED AND SUSPICIOUS TRANSACTIONS? Lawyers and accountants acting as independent legal professionals are not required to report covered and suspicious transactions if the relevant information was obtained in circumstances where they are subject to professional secrecy or legal professional privilege. 1.06 AS AMENDED BY RA 10365, WHAT DOES “UNLAWFUL ACTIVITY” REFER TO? As amended by R.A. 10365, “Unlawful activity” refers to any act or omission or series or combination thereof involving or having direct relation to the following:
(1) Kidnapping for ransom under Article 267 of Act No. 3815, otherwise known as the Revised Penal Code, as amended; (2) Sections 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002; (3) Section 3 paragraphs B, C, E, G, H and I of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act; (4) Plunder under Republic Act No. 7080, as amended; (5) Robbery and extortion under Articles 294, 295, 296, 299, 300, 301 and 302 of the Revised Penal Code, as amended; (6) Jueteng and Masiao punished as illegal gambling under Presidential Decree No. 1602; (7) Piracy on the high seas under the Revised Penal Code, as amended and Presidential Decree No. 532; (8) Qualified theft under Article 310 of the Revised Penal Code, as amended; (9) Swindling under Article 315 and Other Forms of Swindling under Article 316 of the Revised Penal Code, as amended; (10) Smuggling under Republic Act Nos. 455 and 1937; (11) Violations of Republic Act No. 8792, otherwise known as the Electronic Commerce Act of 2000; (12) Hijacking and other violations under Republic Act No. 6235; destructive arson and murder, as defined under the Revised Penal Code, as amended; (13) Terrorism and conspiracy to commit terrorism as defined and penalized under Sections 3 and 4 of Republic Act No. 9372; (14) Financing of terrorism under Section 4 and offenses punishable under Sections 5, 6, 7 and 8 of Republic Act No. 10168, otherwise known as the Terrorism Financing Prevention and Suppression Act of 2012:
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(15) Bribery under Articles 210, 211 and 211-A of the Revised Penal Code, as amended, and Corruption of Public Officers under Article 212 of the Revised Penal Code, as amended; (16) Frauds and Illegal Exactions and Transactions under Articles 213, 214, 215 and 216 of the Revised Penal Code, as amended; (17) Malversation of Public Funds and Property under Articles 217 and 222 of the Revised Penal Code, as amended; (18) Forgeries and Counterfeiting under Articles 163, 166, 167, 168, 169 and 176 of the Revised Penal Code, as amended; (19) Violations of Sections 4 to 6 of Republic Act No. 9208, otherwise known as the Anti-Trafficking in Persons Act of 2003; (20) Violations of Sections 78 to 79 of Chapter IV, of Presidential Decree No. 705, otherwise known as the Revised Forestry Code of the Philippines, as amended; (21) Violations of Sections 86 to 106 of Chapter VI, of Republic Act No. 8550, otherwise known as the Philippine Fisheries Code of 1998; (22) Violations of Sections 101 to 107, and 110 of Republic Act No. 7942, otherwise known as the Philippine Mining Act of 1995; (23) Violations of Section 27(c), (e), (f), (g) and (i), of Republic Act No. 9147, otherwise known as the Wildlife Resources Conservation and Protection Act; (24) Violation of Section 7(b) of Republic Act No. 9072, otherwise known as the National Caves and Cave Resources Management Protection Act; (25) Violation of Republic Act No. 6539, otherwise known as the Anti-Carnapping Act of 2002, as amended; (26) Violations of Sections 1, 3 and 5 of Presidential Decree No. 1866, as amended, otherwise known as the decree Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of Firearms, Ammunition or Explosives;
(27) Violation of Presidential Decree No. 1612, otherwise known as the AntiFencing Law; (28) Violation of Section 6 of Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, as amended by Republic Act No. 10022; (29) Violation of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines; (30) Violation of Section 4 of Republic Act No. 9995, otherwise known as the AntiPhoto and Video Voyeurism Act of 2009; (31) Violation of Section 4 of Republic Act No. 9775, otherwise known as the AntiChild Pornography Act of 2009; (32) Violations of Sections 5, 7, 8, 9, 10(c), (d) and (e), 11, 12 and 14 of Republic Act No. 7610, otherwise known as the Special Protection of Children Against Abuse, Exploitation and Discrimination; (33) Fraudulent practices and other violations under Republic Act No. 8799, otherwise known as the Securities Regulation Code of 2000; and (34) Felonies or offenses of a similar nature that are punishable under the penal laws of other countries.” 1.07 BAR Q. [2010] DEFINE MONEY LAUNDERING. (Sec. 4) as:
Section 4 defines money laundering
“It is a crime whereby the proceeds of an unlawful activity as herein defined are transacted, thereby making them appear to have originated from legitimate sources.” 1.08 AS AMENDED BY RA 10365, HOW IS THE MONEY LAUNDERING OFFENSE COMMITTED UNDER SEC.4? Section 4 provides the ways by which money laundering is committed. R.A. 10365 reads as follows:
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“Money laundering is committed by any person who, knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity: (a) transacts said monetary instrument or property; (b) converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property; (c) conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property; (d) attempts or conspires to commit money laundering offenses referred to in paragraphs (a), (b) or (c);
proceeds from, or instrumentalities used in or intended for use in any unlawful activity as defined in Section 3(i) hereof; 2.
to require the Land Registration Authority and all its Registries of Deeds to submit to the AMLC, reports on all real estate transactions involving an amount in excess of Five hundred thousand pesos (P500,000.00) within fifteen (15) days from the date of registration of the transaction, in a form to be prescribed by the AMLC. The AMLC may also require the Land Registration Authority and all its Registries of Deeds to submit copies of relevant documents of all real estate transactions.
(e) aids, abets, assists in or counsels the commission of the money laundering offenses referred to in paragraphs (a), (b) or (c) above; and
1.11 EXPLAIN THE PROSECUTION OF MONEY LAUNDERING OFFENSE UNDER SECTION 6.
(f) performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraphs (a), (b) or (c) above.”
(a) Any person may be charged with and convicted of both the offense of money laundering and the unlawful activity as herein defined.
1.09 IS MONEY LAUNDERING COMMITTED WHEN THERE IS FAILURE TO REPORT A COVERED OR SUSPICIOUS TRANSACTION?
(b) Any proceeding relating to the unlawful activity shall be given precedence over the prosecution of any offense or violation under this Act without prejudice to the freezing and other remedies provided.
Yes, money laundering is also committed by any covered person who, knowing that a covered or suspicious transaction is required under this Act to be reported to the Anti-Money Laundering Council (AMLC), fails to do so. 1.10 AS AMENDED BY RA 10365, WHAT ARE THE OTHER POWERS OF THE ANTI-MONEY LAUNDERING COUNCIL (AMLC)? The Anti-Money Laundering Council has the power to: 1.
to apply before the Court of Appeals, ex parte, for the freezing of any monetary instrument or property alleged to be laundered,
1.12 MAY A PERSON BE CHARGED OF BOTH THE OFFENSE OF MONEY LAUNDERING AND THE UNLAWFUL ACTIVITY? Yes. As amended by RA 10365, Section 6(a) provides that any person may be charged with and convicted of both the offense of money laundering and the unlawful activity as herein defined. In fact, under par(b), it further states that the prosecution of any offense or violation under this Act shall proceed independently of any proceeding relating to the unlawful activity. 1.13 AS AMENDED BY RA 10167, HOW IS THE FREEZE ORDER OF MONETARY INSTRUMENT OR PROPERTY 74
RELATED TO UNLAWFUL ACTIVITY MADE? (SEC. 10) R.A. No. 10167 further amended Section 10 to read as follows: “Upon a verified ex parte petition by the AMLC and after determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i) hereof, the Court of Appeals may issue a freeze order which shall be effective immediately, and which shall not exceed six (6) months depending upon the circumstances of the case: Provided, That if there is no case filed against a person whose account has been frozen within the period determined by the court, the freeze order shall be deemed ipso facto lifted: Provided, further, That this new rule shall not apply to pending cases in the courts. In any case, the court should act on the petition to freeze within twentyfour (24) hours from filing of the petition. If the application is filed a day before a nonworking day, the computation of the twenty-four (24)-hour period shall exclude the nonworking days.” 1.14
WHICH COURT HAS THE JURISDICTION TO ISSUE FREEZE ORDER?
Pursuant to RA 9160 as amended, it is solely the Court of Appeals which has the authority to issue a freeze order. BAR Q. [2010] There being probable cause to believe that certain deposits and investments in a bank are related to an unlawful activity of smuggling by Alessandro as defined under Republic Act (RA) No. 9160, as amended (Anti-Money Laundering Act) an application for an order to inquiry into his deposit was filed with the Regional Trial Court. After hearing the application, the court granted the application and issued a freeze order. Pass upon the correctness of the court’s order. Suggested Answer: The court’s order is invalid. The RTC has no jurisdiction to issue freeze order. Section 10 of R.A. 9160 vests exclusive jurisdiction to the Court of Appeals to determine the existence of probable case and to issue freeze order upon application by the AMLC.
1.15 WHAT IS THE REMEDY OF A PERSON WHOSE ACCOUNT HAS BEEN FROZEN? A person whose account has been frozen may file a motion to lift the freeze order and the court must resolve this motion before the expiration of the freeze order. 1.16 CAN A COURT ISSUE A TRO OR INJUNCTION AGAINST THE FREEZE ORDER? No court shall issue a temporary restraining order or a writ of injunction against any freeze order, except the Supreme Court. 1.17 IS AMLC AUTHORIZED TO INQUIRE INTO BANK DEPOSITS? (SEC. 11) Yes. The law is clear. It states: “Sec.11. Authority to Inquire into Bank Deposits. -Notwithstanding the provisions of Republic Act No. 1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution.” 1.18 UNDER WHAT CIRCUMSTANCES IS AMLC AUTHORIZED TO INQUIRE INTO BANK DEPOSITS? Only upon order of any competent court in cases of violation of this Act, when it has been established that there is probable cause that the deposits or investments are related to an unlawful activities as defined in Section 3(I) hereof or a money laundering offense under Section 4 hereof except: that no court order shall be required in cases involving unlawful activities defined in Sections 3(I)1, (2) and (12).” 1.19 DOES SECTION 11 AUTHORIZE AN EXPARTE ISSUANCE OF A BANK INQUIRY ORDER? No. In the instances where a court order is required for the issuance of the bank inquiry order, nothing in Section 11 specifically authorizes that such order may 75
be issued ex parte. Republic vs. Eugenio, Jr., 545 SCRA 384(2008) 1.20 DIFFERENTIATE SECTION 10 FROM SECTION 11. Although oriented towards different purposes, the freeze order under Section 10 and the bank inquiry order under Section 11 are similar in that they are extraordinary provisional reliefs which the AMLC may avail of to effectively combat and prosecute money laundering offenses. Crucially, Section 10 uses specific language to authorize an ex parte application for the provisional relief therein, a circumstance absent in Section 11. If indeed the legislature had intended to authorize ex parte proceedings for the issuance of the bank inquiry order, then it could have easily expressed such intent in the law, as it did with the freeze order under Section 10. With respect to freeze orders under Section 10, the implementing rules do expressly provide that the applications for freeze orders be filed ex parte but no similar clearance is granted in the case of inquiry orders under Section 11. Republic vs. Eugenio, Jr., 545 SCRA 384(2008) 1.21
IS CRIMINAL PREREQUISITE FORFEITURE?
CONVICTION A FOR CIVIL
No. A criminal conviction for an unlawful activity is not a prerequisite for the institution of a civil forfeiture proceeding. Stated otherwise, a finding of guilt for an unlawful activity is not an essential element of civil forfeiture. Republic v. Glasgow Credit and Collection Services, Inc., 542 SCRA 95, January 18, 2008. 1.22 WHAT ARE THE TWO CONDITIONS WHEN APPLYING FOR CIVIL FORFEITURE? RA 9160, as amended, and its implementing rules and regulations lay down two conditions when applying for civil forfeiture: (1) when there is a suspicious transaction report or a covered transaction report deemed suspicious after investigation by the AMLC and (2) the court has, in a petition filed for the purpose, ordered the seizure of any monetary instrument or
property, in whole or in part, directly or indirectly, related to said report. It is the preliminary seizure of the property in question which brings it within the reach of the judicial process. Republic v. Glasgow Credit and Collection Services, Inc. , 542 SCRA 95, January 18, 2008
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CHAPTER X ANTI- HAZING LAW [BAR Q. 2002] ___________________________________________________ 1.00
DEFINE HAZING (Sec.1) / BAR Q. [2002] What is hazing as defined by law? Section 1 defines “hazing” as follows:
“It 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.” 1.01 WHAT ARE THE REQUISITES BEFORE HAZING OR INITIATION RITES SHALL BE ALLOWED? (Sec.2) A prior written notice to the school authorities or head of organization must be given seven (7) days before the conduct of such initiation. Section 2 of the law specifically provides for the requisites: “There must be a 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: 76
1.
the period of the initiation activities which shall not exceed three (3) days, 2. shall include the names of those to be subjected to such activities, and 3. shall further contain an undertaking that no physical violence be employed by anybody during such initiation rites.” 1.02 WHAT IS THE DUTY OF THE HEAD OF SCHOOL OR ORGANIZATION WHEN THERE IS INITIATION RITES? (Sec.3) Under Section 3, when there is initiation rites, the following duty is incumbent: “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.” 1.03 WHO ARE LIABLE IF A PERSON DIES OR SUFFERS PHYSICAL INJURY DURING INITIATION RITES? (Sec.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. 1.04 MAY THE RESPONSIBLE OFFICIALS OF THE SCHOOL OR OF THE POLICE, MILITARY OR CITIZEN'S ARMY TRAINING ORGANIZATION, IMPOSE ADMINISTRATIVE SANCTIONS ON PERSONS CHARGED? (Sec.4) Yes, 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. 1.05 WHEN IS THE OWNER OF THE PLACE LIABLE AS AN ACCOMPLICE? (Sec.4)
He is liable when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. 1.06 WHEN SHALL THE PARENTS BE LIABLE AS PRINCIPALS? (Sec.4) Yes, parents may be liable as principals if: a. The hazing is held in the home of one of the officers or members of the fraternity, group, or organization; b. The parents have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. Section 4 expressly states: “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.” 1.07 MAY THE SCHOOL AUTHORITIES AND FACULTY MEMBERS BE HELD LIABLE AS ACCOMPLICES? (Sec.4) Yes, the school authorities and faculty members may be held liable as accomplices subject to the following conditions: a. they consent to the hazing or who have actual knowledge thereof; b. they failed to take any action to prevent the same from occurring. 1.08 CAN THE FORMER OFFICERS AND ALUMNI BE LIABLE AS PRINCIPALS EVEN IF THEY WERE ABSENT DURING THE HAZING? (SEC.4) Yes, as long as they actually planned the hazing. 1.09 WHEN MAY A FRATERNITY OR SORORITY'S ADVISER LIABLE AS PRINCIPAL? (Sec.4) He is liable when he is present when the acts constituting the hazing were 77
committed and failed to take action to prevent the same from occurring shall be liable as principal. 1.10 WHEN DOES THE PRIMA FACIE EVIDENCE OF PARTICIPATION AS PRINCIPAL ARISE? (Sec.4) Section 4 clearly states when the prima facie evidence of participation as principal arise. It states:
b. Article 134 Insurrection);
(Rebellion
or
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);
“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.”
f. Article 324 (Crimes Involving Destruction), or under
1.11 MAY A PERSON CHARGED UNDER THIS PROVISION BE ENTITLED TO THE MITIGATING CIRCUMSTANCE OF NO INTENTION TO COMMIT SO GRAVE A WRONG? (Sec.4)
2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
No. Section 4 provides: “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.” ADDENDUM: Dandy L. Dungo and Gregorio A. Sibal, Jr. vs. People of the Philippines, G.R. No. 209464, July 1, 2015
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CHAPTER I. HUMAN SECURITY ACT OF 2007 (THE ANTI-TERRORISM LAW) Republic Act No. 9372 ___________________________________________________ 1.00 WHAT ARE THE ELEMENTS OF THE CRIME OF TERRORISM? (Sec.3) 1. First, 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);
1. Presidential Decree No. 1613 (The Law on Arson);
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 AntiHighway 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) 2. Second, the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace. 3. Third, the purpose is in order to coerce the government to give in to an unlawful demand. 1.01 WILL THE BENEFIT OF PAROLE UNDER THE INDETERMINATE SENTENCE LAW APPLY?
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No. Any person 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. 1.02 EXPLAIN THE ELEMENTS OF THE CRIME OF TERRORISM. 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;
“Persons who conspire to commit the crime of terrorism shall suffer the penalty of forty (40) years of imprisonment.” 1.05 WHO IS AN ACCOMPLICE? An accomplice is defined under Section 5. It provides: “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.”
(2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and
1.06 WHO IS AN ACCESSORY?
(3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand.
“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:
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.” Southern Hemisphere Engagement Network, Inc. vs. Anti-Terrorism Council G.R. No. 178552, October 5, 2010.
An accessory is defined under Section 6. It provides:
(a) by profiting himself or assisting the offender to profit by the effects of the crime;
1.03 WHEN IS THERE A CONSPIRACY TO COMMIT TERRORISM?
(b) by concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery;
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 of R.A.9372 and decide to commit the same.
(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.”
1.04 IS MERE CONSPIRACY TO COMMIT TERRORISM A CRIME?
1.07 WHO ARE EXEMPTED FROM BEING AN ACCESSORY?
Yes, under Section 4 thereof, mere conspiracy to commit terrorism is punishable. It provides:
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 79
relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of subparagraph (a). 1.08 WHEN MAY SURVEILLANCE OF SUSPECTS AND INTERCEPTION AND RECORDING OF COMMUNICATIONS ALLOWED? (Section 7) The provisions of Republic Act No. 4200 (Anti-Wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may listen to, intercept and record communication upon a written order of the Court of Appeals. 1.09 WHAT IS THE PERIOD OF DETENTION WITHOUT JUDICIAL WARRANT OF ARREST? Section 18 of the law provides: “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 AntiTerrorism 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.
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 (3) days shall be criminally liable. 1.11 IS A PUBLIC OFFICER LIABLE UNDER THIS ACT FOR INFIDELITY IN THE CUSTODY OF DETAINED PERSONS? (Section 44) Yes, the law provides that any public officer who has direct custody of a detained person or under the provisions of this Act and who by his deliberate act, misconduct, or inexcusable negligence causes or allows the escape of such detained person shall be guilty of an 1.12 DOES PROSECUTION UNDER THIS ACT BAR ANOTHER PROSECUTION UNDER THE REVISED PENAL CODE OR ANY SPECIAL PENAL LAWS? Yes, the acquittal of the accused shall be a bar to another prosecution for any offense or felony which is necessarily included in the offense charged. Section 49 states: “When a person has been prosecuted under a provision of this Act, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for any offense or felony which is necessarily included in the offense charged under this Act.” 1.13 IS THE ACCUSED ENTITLED TO DAMAGES FOR UNPROVEN CHARGE OF TERRORISM? (Section 50)
1.10 WHAT IS THE CONSEQUENCE FOR FAILURE TO DELIVER SUSPECT TO THE PROPER JUDICIAL AUTHORITY WITHIN THREE DAYS? (Section 20)
Yes, R.A. 9372 provides that upon acquittal, any person who is accused of terrorism shall be entitled to the payment of damages in the amount of Five hundred thousand pesos (P500,000.00) for every day that he or she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation.
Any police or law enforcement personnel who has apprehended or arrested, detained and taken custody of a person
The award of damages mentioned above shall be without prejudice to the right of the acquitted accused to file criminal or 80
administrative charges against those responsible for charging him with the case of terrorism. 1.14 ARE THE PROVISIONS OF BOOK I OF THE REVISED PENAL CODE APPLICABLE TO R.A. 9372? (Section 52) Yes, Section 52 explicitly provides that the provisions of Book I of the Revised Penal Code shall be applicable to this Act. 1.15
DOES R.A. 9372 ALLOW EXTRAORDINARY RENDITION? (Section 57)
No, there is a ban on extraordinary rendition. No person suspected or convicted of the crime of terrorism shall be subjected to extraordinary rendition to any country unless his or her testimony is needed for terrorist related police investigations or judicial trials in the said country and unless his or her human rights, including the right against torture, and right to counsel, are officially assured by the requesting country and transmitted accordingly and approved by the Department of Justice. 1.16
CAN AN INDIVIDUAL PERSON, ALTHOUGH PHYSICALLY OUTSIDE THE TERRITORIAL LIMITS OF THE PHILIPPINES BE HELD CRIMINALLY LIABLE FOR ACTS OF TERRORISM?
Yes, the law has extra-territorial application. Section 58 constitute as an exception to the territoriality rule. It provides: “Extra-Territorial Application of this Act. - Subject to the provision of an existing treaty of which the Philippines is a signatory and to any contrary provision of any law of preferential application, the provisions of this Act shall apply: (1) to individual persons who commit any of the crimes defined and punished in this Act within the terrestrial domain, interior waters, maritime zone, and airspace of the Philippines; (2) to individual persons who, although physically outside the territorial limits of the Philippines, commit, conspire or plot to commit any of the crimes defined and
punished in this Act inside the territorial limits of the Philippines; (3) to individual persons who, although physically outside the territorial limits of the Philippines, commit any of the said crimes on board Philippine ship or Philippine airship; (4) to individual persons who commit any of said crimes within any embassy, consulate, or diplomatic premises belonging to or occupied by the Philippine government in an official capacity; (5) to individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes against Philippine citizens or persons of Philippines descent, where their citizenship or ethnicity was a factor in the commission of the crime; and (6) to individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes directly against the Philippine government.” -oooOOOooo-
CHAPTER II THE ANTI-CHILD ABUSE LAW Republic Act No. 7610 ___________________________________________________ 1.00 DEFINE CHILDREN UNDER THIS ACT. (Section 3) "Children" refers to person below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. 1.01 WHAT IS THE DEFINITION OF A “CHILD” UNDER THE IMPLEMENTING RULES OF THIS LAW? A mere allegation that the children are unable to fully take care of themselves or protect themselves from abuse, neglect, 81
cruelty, exploitation or discrimination because of a physical or mental disability or condition is not sufficient.
money or profit. The law covers not only child prostitution but also other forms of sexual abuse.
The implementing rules elaborated on this definition when it defined a "child" as one who is below 18 years of age or over said age who, upon evaluation of a qualified physician, psychologist or psychiatrist, is found to be incapable of taking care of herself fully because of a physical or mental disability or condition or of protecting herself from abuse. People v. Abello, 582 SCRA 378, March 25, 2009
1.04
"Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following: (1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; (2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; (3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or (4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death. 1.03 MUST SEXUAL ABUSE BE HABITUAL? No, it is inconsequential that the sexual abuse occurred only once. As expressly provided in Section 3(b) of R.A. 7610, the abuse may be habitual or not. It must be observed that Article III of R.A. 7610 is captioned as “Child Prostitution and Other Sexual Abuse” because Congress really intended to cover a situation where the minor may have been coerced or intimidated into lascivious conduct, not necessarily for
ABUSE
BE
No. As defined in the law, child abuse includes physical abuse of the child, whether the same is habitual or not. 588 SCRA 747, June 5, 2009 1.05
1.02 DEFINE “CHILD ABUSE”. Child abuse is defined under Section 3 (b) of R. A. 7610 as:
MUST PHYSICAL HABITUAL?
WHAT DOES THE PHRASE "CIRCUMSTANCES WHICH GRAVELY THREATEN OR ENDANGER THE SURVIVAL AND NORMAL DEVELOPMENT OF CHILDREN" INCLUDE?
Circumstances which gravely threaten or endanger the survival and normal development of children" include, but are not limited to, the following; (1) Being in a community where there is armed conflict or being affected by armed conflict-related activities; (2) Working under conditions hazardous to life, safety and normal which unduly interfere with their normal development; (3) Living in or fending for themselves in the streets of urban or rural areas without the care of parents or a guardian or basic services needed for a good quality of life; (4) Being a member of a indigenous cultural community and/or living under conditions of extreme poverty or in an area which is underdeveloped and/or lacks or has inadequate access to basic services needed for a good quality of life; (5) Being a victim of a man-made or natural disaster or calamity; or (6) Circumstances analogous to those abovestated which endanger the life, safety or normal development of children. 1.06
WHAT DOES “COMPREHENSIVE PROGRAM AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION" REFER TO?
Comprehensive program against child abuse, exploitation and discrimination" 82
refers to the coordinated program of services and facilities to protected children against: (1) Child Prostitution and other sexual abuse; (2) Child trafficking; (3) Obscene publications and indecent shows; (4) Other acts of abuses; and (5) Circumstances which threaten or endanger the survival and normal development of children. 2.00 DEFINE CHILD PROSTITUTION AND OTHER SEXUAL ABUSE. Article III Section 5 defines Child Prostitution and Other Sexual Abuse as: “Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. 2.01 WHAT ACTS ARE PUNISHED UNDER SECTION 5(A) OF ARTICLE III, CHILD PROSTITUTION AND OTHER SEXUAL ABUSE UNDER R.A. 7610? Section 5 (a) of Article III provides: “The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1) Acting as a procurer of a child prostitute; (2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means;
(3) Taking advantage of influence or relationship to procure a child as prostitute; (4) Threatening or using violence towards a child to engage him as a prostitute; or (5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution.” 2.02 ACTS ARE ESSENTIALLY PUNISHED UNDER PARAGRAPH 5 (A) OF RA NO. 7610? Said paragraph essentially punishes acts pertaining to or connected with child prostitution. In other words, under paragraph (a), the child is abused primarily for profit. In the aforesaid case, the act of appellant in convincing AAA, who was 12 years old at that time, to go with her and thereafter, offer her for sex to a man in exchange for money makes her liable under paragraph 5(a) of R.A. No. 7610. People vs. Dulay, 681 SCRA 638(2012) 2.03 WHAT ARE THE ELEMENTS OF PARAGRAPH 5 (a) of RA 7610? The elements of paragraph 5 (a) of R.A. 7610 are the following: 1. the accused engages in, promotes, facilitates or induces child prostitution; 2. the act is done through, but not limited to, the following means: a. acting as a procurer of a child prostitute; b. inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; c. taking advantage of influence or relationship to procure a child as a prostitute;
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d. threatening or using violence towards a child to engage him as a prostitute; or e. giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution; 3. the child is exploited or intended to be exploited in prostitution; and 4. the child, whether male or female, is below 18 years of age. People vs. Dulay, 681 SCRA 638(2012) 2.04 ON THE OTHER HAND, WHAT ACTS ARE PUNISHED UNDER SECTION 5 (B) OF R.A. 7610? Section 5 (b) of Article III of R.A. 7610 punishes: “(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period x x x” 2.05 WHAT ARE THE ELEMENTS OF SEXUAL ABUSE DEFINED UNDER SECTION 5(B) OF THIS LAW? The Court in Navarrete v. People, 513 SCRA 509 (2007), held that sexual abuse under Section 5(b) has three elements: (1) the accused commits an act of sexual intercourse or lascivious conduct; (2) the said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child is below 18 years old.
2.06 THE LAW USES THE TERM A CHILD “SUBJECT TO SEXUAL ABUSE”. WHEN IS A CHILD DEEMED SUBJECTED TO “OTHER SEXUAL ABUSE”? 1. A child is deemed subjected to other sexual abuse when the child indulges in lascivious conduct under the coercion or influence of any adult. R.A. 7610 covers not only child prostitution but also other forms of sexual abuse. Olivarez vs. Court of Appeals, 465 SCRA 465(2005) 2. The Court has ruled that a child is deemed subject to other sexual abuse when the child is the victim of lascivious conduct under the coercion or influence of any adult. In lascivious conduct under the coercion or influence of any adult, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party’s free will. Jojit Garingarao vs. People, G.R. No. 192760, July 20, 2011 3. In the case of Navarrete vs. People, 513 SCRA 509(2007), the Supreme Court ruled that petitioner’s argument is untenable. The Court emphasized the principle In People v. Larin (and reiterated in several subsequent cases), that the law covers not only a situation in which a child is abused for profit but also one in which a child, through coercion or intimidation, engages in any lascivious conduct. It went on to say that he very title of Section 5, Article III (Child Prostitution and Other Sexual Abuse) of RA 7610 shows that it applies not only to a child subjected to prostitution but also to a child subjected to other sexual abuse. A child is deemed subjected to “other sexual abuse” when he or she 84
indulges in lascivious conduct under the coercion or influence of any adult. Here, BBB was sexually abused because she was coerced or intimidated by petitioner (who poked her neck with a knife) to indulge in lascivious conduct. 4. In addition, such “other sexual abuse” could fall under acts encompassing “[O]bscene publications and indecent shows” mentioned in Section 3(d)(3) of RA 7610. Thus, a child performing in indecent shows in a cabaret is a child subjected to “other sexual abuse.” A customer in such cabaret who commits acts of lasciviousness on the child is liable for violation of Section 5 of RA 7610. Also, a photographer who commits acts of lasciviousness on a child he is shooting for an obscene publication is liable for violation of Section 5 of RA 7610. The penalty for such acts of lasciviousness is more severe than if the acts are committed without the special circumstances of the child’s subjection to “other sexual abuse.” [Olivarez vs. Court of Appeals, 465 SCRA 465(2005)] 2.07 DEFINE “SEXUAL ABUSE” UNDER THE IMPLEMENTING RULES. Section 2(g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, promulgated to implement R.A. No. 7610, defines “sexual abuse” as including “the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children.” People v. Court of Appeals, 562 SCRA 619, August 20, 2008
2.08 MUST SEXUAL INTERCOURSE AND LASCIVIOUS ACT BE HABITUAL? No, each incident of sexual intercourse and lascivious act with a child under the circumstances mentioned in Art. III, §5 of R.A. No. 7160 is a separate and distinct offense. The offense is similar to rape or act of lasciviousness under the Revised Penal Code in which each act of rape or lascivious conduct should be the subject of a separate information. Lavides vs. Court of Appeals, 324 SCRA 321 [2001] 2.09 IN A CASE WHERE A CHILD IS EXPLOITED IN PROSTITUTION, IS A MERE ALLEGATION THAT COMPLAINANT HAD GIVEN “CONSENT”, A PROPER DEFENSE? No. In People vs. Dulay, 681 SC,RA 638(2012), the Court held that a child exploited in prostitution may seem to “consent” to what is being done to her or him and may appear not to complain. However, it further emphasized that a child who is “a person below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition” is incapable of giving rational consent to any lascivious act or sexual intercourse. 2.10
ON THE OTHER HAND, FOR CONSENSUAL SEXUAL INTERCOURSE OR LASCIVIOUS CONDUCT WITH A MINOR, WHO IS NOT EXPLOITED IN PROSTITUTION, TO FALL WITHIN THE PURVIEW OF SECTION 5(B) OF R.A. NO. 7610, WHAT MUST BE PRESENT?
In People v. Court of Appeals, 562 SCRA 619, August 20, 2008, the Supreme Court succinctly held: “For consensual sexual intercourse or lascivious conduct with a minor, who is not exploited in prostitution, to thus fall within the purview of Section 5(b) of R.A. 85
No. 7610, “persuasion, inducement, enticement or coercion” of the child must be present.” In the case at bar, even if the accused were charged under Section 5(b), instead of Section 10(a), he would just the same have been acquitted as there was no allegation that an element of the offense – coercion or influence or intimidation – attended its commission. 2.11 CAN A PERSON BE CHARGED OF COMMITTING AN ACT PUNISHED UNDER SECTION 5(B) AND RAPE AT THE SAME TIME? Under Section 5(b), Article III of Republic Act (RA) 7610 in relation to RA 8353, if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A(1)(d) of the Revised Penal Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. People vs. Abay, 580 SCRA 235(2009) 2.12 CAN RAPE INSTEAD BE COMPLEXED WITH A VIOLATION OF SECTION 5 (B) OF RA 7610? The answer is in the negative. Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law. People v. Abay 580 SCRA 235, February 24, 2009 2.13 CAN AN ACCUSED BE CONVICTED OF ACTS OF LASCIVIOUSNESS PUNISH UNDER THE REVISED PENAL CODE
INSTEAD OF VIOLATION OF SECTION 5 (B) OF RA 7610? The answer is in the affirmative. The special circumstance that the child is “subjected to other sexual abuse” is not an element in the crime of acts of lasciviousness under Article 336 of the Revised Penal Code. In Olivarez vs. Court of Appeals, 465 SCRA 465(2005), since the Information failed to allege the second essential element of the crime as defined in Section 5 of RA 7610, accused Olivarez cannot be convicted for violation of RA 7610. The Information is void to charge Olivarez for violation of Section 5 of RA 7610. Otherwise, Olivarez’s would be deprived of his constitutional right to be informed of the charge against him. However, the Information is sufficient to charge Olivarez for violation of Article 336 of the RPC. The special circumstance that the child is “subjected to other sexual abuse” is not an element in the crime of acts of lasciviousness under Article 336 of the RPC. Thus, the Information remains valid to charge Olivarez with acts of lasciviousness, not under Section 5 of RA 7610, but under Article 336 of the RPC. 2.14 WHAT ACTS ARE PUNISHED UNDER SECTION 5 (C) OF R.A. 7610? Section 5 (c) of Article III of R.A. 7610 punishes: “Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.” 3.00 WHEN IS THERE AN ATTEMPT TO COMMIT CHILD PROSTITUTION? (Section 6) R.A. 7610 Section 6 on Attempt To Commit Child Prostitution provides: child
“There is an attempt to commit prostitution under Section 5, 86
paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse.
3.02 WHAT ACTS FALL UNDER THE TERM “ANY OTHER ACTS OF CHILD ABUSE”?
There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments.
(b) "Child Abuse" refers to maltreatment, whether habitual or not, of the child which includes any of the following:
A penalty lower by two (2) degrees than that prescribed for the consummated felony under Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution under this Act, or, in the proper case, under the Revised Penal Code.” 3.01
WHO IS GUILTY OF TRAFFICKING? (Section 7)
CHILD
Any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter, shall suffer the penalty of reclusion temporal to reclusion perpetua. The penalty shall be imposed in its maximum period when the victim is under twelve (12) years of age. The law provides: “Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. – (a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period.”
"Acts of child abuse" under Section 10 (a) of R.A. 7610 refers to those acts listed under Sec. 3 (b) of R.A. 7610, which reads as follows: Sec. 3. Definition of Terms – (a) x x x
1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; 2) Any act or deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; 3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or 4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death. PEOPLE vs. OLAYON, G.R. No. 171863 August 20, 2008 In Araneta vs. People, G.R. No. 174205, June 27, 2008, 556 SCRA 323(2008), the Court said that Section 10, Article VI of R.A. 7610 enumerates the “other acts of abuse.” The provision punishes not only those enumerated under Article 59 of Presidential Decree No. 603, but also four distinct acts, i.e., (a) child abuse, (b) child cruelty, (c) child exploitation and (d) being responsible for conditions prejudicial to the child’s development. 3.03 HOW IS THE WORD “OR” BETWEEN “EXPLOITATION” AND “BE RESPONSIBE FOR OTHER CONDITIONS PREJUDICIAL TO THE CHILD’S DEVELOPMENT” BE CONSTRUED?
87
It is a rule in statutory construction that the word “or” is a disjunctive term signifying dissociation and Section 10(a) of Republic Act No. 7610 before the phrase “be responsible for other conditions prejudicial to the child’s development” supposes that there are four punishable acts therein. First, the act of child abuse; second, child cruelty; third, child exploitation; and fourth, being conditions prejudicial development.
responsible for to the child’s
The fourth penalized act cannot be interpreted, as petitioner suggests, as a qualifying condition for the three other acts, because an analysis of the entire context of the questioned provision does not warrant such construal. Araneta v. People 556 SCRA 323, June 27, 2008 3.04 MUST THE PROSECUTION NEED TO PROVE THAT THE ACTS OF CHILD ABUSE, CHILD CRUELTY AND CHILD EXPLOITATION HAVE RESULTED IN THE PREJUDICE OF THE CHILD’S DEVELOPMENT? No. The prosecution need not prove that the acts of child abuse, child cruelty and child exploitation have resulted in the prejudice of the child because an act prejudicial to the development of the child is different from the former acts. The Rules and Regulations of the questioned statute distinctly and separately defined child abuse, cruelty and exploitation just to show that these three acts are different from one another and from the act prejudicial to the child’s development. Contrary to petitioner’s assertion, an accused can be prosecuted and be convicted under Section 10(a), Article VI of Republic Act No. 7610 if he commits any of the four acts therein. Araneta v. People 556 SCRA 323, June 27, 2008 3.05 IS “SEXUAL ABUSE” DEFINED UNDER SECTION 5 OF R.A. NO. 7610 THE
SAME AS “CHILD ABUSE” UNDER SECTION 10? No. Sexual Abuse defined under Section 5 of R.A. No. 7610 is a completely distinct and separate offense from “child abuse” as defined under Section 10 thereof. In People v. Court of Appeals, 562 SCRA 619, August 20, 2008, the Supreme Court declared that inasmuch as Section 10 refers to acts of child abuse prejudicial to the child’s development other than child prostitution and other sexual abuse under Section 5, attempt to commit child prostitution, child trafficking, attempt to commit child trafficking, and obscene publications and indecent shows, the Court of Appeals did not commit grave abuse of discretion in holding that “x x x ‘sexual abuse’ [as defined under Section 5] x x x is a completely distinct and separate offense from ‘child abuse’ [as defined under Section 10].” 3.06 ARE THE RULES OF OFFSETTING THE MODIFYING CIRCUMSTANCES APPLICABLE IN R.A. 7610, IT BEING A SPECIAL LAW? Notwithstanding that R.A. 7610 is a special law, appellant may enjoy the benefits of the Indeterminate Sentence Law. Since the penalty provided in R.A. 7610 is taken from the range of penalties in the Revised Penal Code, it is covered by the first clause of Section 1 of the Indeterminate Sentence Law. Anent the penalty, for violation of the provisions of Section 5, Article III of R.A. 7610, the penalty prescribed is reclusion temporal in its medium period to reclusion perpetua. Therefore, in the absence of any mitigating or aggravating circumstance, the proper imposable penalty is reclusion temporal in its maximum period, the medium of the penalty prescribed by the law. People vs. Dulay, 681 SCRA 638(2012) ADDENDUM: 1. Elements of sexual abuse. In People v. Espinoza, it was held that healed lacerations do not negate rape. In fact, 88
lacerations, whether healed or fresh, are the best physical evidence of forcible defloration. x x x Moreover, in the present case, Dr.Orais clarified to the court that even if the alleged sexual assault took place in the year 2005 or a year after AAA was examined, the old healed lacerations could still be found. (People vs. Sanico, G.R. No. 208469, August 13, 2014, Reyes, J.) 2. Higher penalty when victim is a child. The slightest penetration into one’s sexual organ distinguishes an act of lasciviousness from the crime of rape. People v. Bonaagua discussed this distinction: It must be emphasized, however, that like in the crime of rape whereby the slightest penetration of the male organ or even its slightest contact with the outer lip or the labia majora of the vagina already consummates the crime, in like manner, if the tongue, in an act of cunnilingus, touches the outer lip of the vagina, the act should also be considered as already consummating the crime of rape through sexual assault, not the crime of acts of lasciviousness. Notwithstanding, in the present case, such logical interpretation could not be applied. It must be pointed out that the victim testified that Ireno only touched her private part and licked it, but did not insert his finger in her vagina. This testimony of the victim, however, is open to various interpretation, since it cannot be identified what specific part of the vagina was defiled by Ireno. Thus, in conformity with the principle that the guilt of an accused must be proven beyond reasonable doubt, the statement cannot be the basis for convicting Ireno with the crime of rape through sexual assault. -oooOOOooo-
CHAPTER III. THE ANTI- TORTURE ACT Republic Act 9745 ______________________________________________________ 1.00 WHAT IS REPUBLIC ACT No. 9745? It is an act penalizing torture and other cruel, inhuman and degrading treatment or punishment and prescribing
penalties therefore. The act is known as the "Anti-Torture Act of 2009". 1.01 DEFINE "TORTURE". It 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. (*same definition under IRR) 1.02 WHAT DOES THE TERM "OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT" MEAN? It refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 (Acts of torture) of this Act, inflicted by a person in authority or agent of a person in authority against a person under his/her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter. 1.03 ENUMERATE THE ACTS OF TORTURE PROVIDED UNDER SECTION 4. 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; (2) Food deprivation or forcible feeding with spoiled food, 89
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) fingernails;
Pulling
out
of
(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; 1.04 EXPLAIN THE MEANING AND SCOPE OF "MENTAL/PSYCHOLOGICAL TORTURE". It 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/her 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. 1.05 UNDER SECTION 5, WHAT IS THE MEANING OF THE TERM”OTHER 90
CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT”? It 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. 1.06 UNDER SECTION 6, IS FREEDOM FROM TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT AN ABSOLUTE BIGHT? Yes. Torture and other cruel, inhuman and degrading treatment or punishment as criminal acts shall apply to all circumstances. The Implementing regulations provide:
Rules
and
Section 8. 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. 1.07
WHO ARE CRIMINALLY SECTION 13?
THE PERSONS LIABLE UNDER
The law adopted the classification of persons criminally liable under the Revised Penal Code, to wit: principals, accomplices and accessories.
1.08 WHO ARE LIABLE AS PRINCIPALS? 1. 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. 2. 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. 3. The immediate commanding officer of the unit 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 punishmentfor 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. Requisites: a. 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, b. 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 t;orture or other cruel, inhuman and degrading treatment or punishment c.
failed to prevent or investigate allegations of such act, whether deliberately or due to negligence shall also be liable as principals.
1.09 BAR Q. [2011] X, a police officer, placed a hood on the head of W, a suspected drug pusher, and 91
watched as Y and Z, police trainees, beat up and tortured W to get his confession. X is liable as
No. Torture should be treated as a separate and independent crime under the law.
A. as accomplice in violation of the AntiTorture Act. B. a principal in violation of the Anti-Torture Act. C. a principal in violation of the Anti-Hazing Law. D. an accomplice in violation of the AntiHazing Law.
Section 15 is clear. 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.
1.10 WHO ARE LIABLE AS ACCOMPLICES? Any person who, not being included in Section 26 hereof, cooperate in the execution of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts is an accomplice. (Sec. 27, IRR) 1.11 WHO ARE LIABLE AS ACCESSORIES? 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. 1.12 CAN TORTURE AS A CRIME ABSORB OR BE ABSORBED BY ANY OTHER CRIME?
1.13 WHAT IS THE PENALTY IF ANY OF THE CRIMES AGAINST PERSONS OR AGAINST PERSONAL LIBERTY AND SECURITY IS ATTENDED BY TORTURE AND SIMILAR ACTS? If the commission of any crime punishable under Title Eight (Crimes Against Persons) and/or 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 maximum period. 1.14 MAY A PERSON WHO IS FOUND TO HAVE COMMITTED THE CRIME OF TORTURE BE BENEFITED FROM ANY SUBSEQUENT SPECIAL AMNESTY LAW? No. They are excluded from the coverage of special amnesty law. 1.15 CAN A PERSON BE EXTRADITED EVEN IF HE IS IN DANGER OF BEING SUBJECTED TO TORTURE ? No. Section 17 is clear. 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. 1.16 WHAT IS THE PRESCRIPTIVE PERIOD OF THE CRIME OF TORTURE? It has no prescriptive period. Under Section 45 of the Implementing Rules and Regulations, torture is a non-prescriptible offense. The statute of limitation or 92
prescription period shall not apply to torture cases. 1.17 IS THE REVISED PENAL CODE APPLICABLE IN THIS ACT? Yes, Section 22 clearly provides for the applicability of the Revised Penal Code. It states that the provisions of the Revised Penal Code insofar as they are applicable shall be suppletory to this Act.
It is not necessary that the demand, request, or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender. 2. Ma. Lourdes T. Domingo vs. Rogelio R. Rayala G.R. No. 155831 February 18, 2008 Doctrine:
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CHAPTER IV THE ANTI-SEXUAL HARASSMENT ACT OF 1995 Republic Act No. 7877
1.00
WHO MAY COMMIT HARASSMENT?
SEXUAL
It is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said act (Sec.3). 1.01 WHO ELSE MAY BE LIABLE? Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act (Sec.3).
JURISPRUDENTIAL DOCTRINES 1. Dioscoro F. Bacsin vs. Eduardo O. Wahiman G.R. No. 146053 April 30, 2008 Doctrine:
In prosecuting sexual harassment, it is not essential that the demand, request or requirement be made as a condition for continued employment or for promotion to a higher position. It is enough that the respondent’s acts result in creating an intimidating, hostile or offensive environment for the employee.
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CHAPTER V. THE ANTI-TRAFFICKING IN PERSONS ACT OF 2003 Republic Act No. 9208 ___________________________________________________ 1.00 DEFINE TRAFFICKING IN PERSONS. Trafficking in Persons refers to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim's consent or 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. 93
1.01 DEFINE A CHILD UNDER THIS ACT. A 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. 1.02 WHAT IS PROSTITUTION? 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. 1.03 WHAT IS FORCED LABOR AND SLAVERY? They 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. 1.04 DEFINE SEXUAL EXPLOITATION. It 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. 1.05
WHAT ACTS CONSTITUTE “QUALIFIED TRAFFICKING”?
The following are considered as qualified trafficking: (a) When the trafficked person is a child; (b) When the adoption is effected through Republic Act No. 8043, otherwise known as the "Inter-Country Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
1.06 BAR Q. [2012] When the adoption of a child is effected under the InterCountry 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. (c) When the crime is committed by a syndicate, or in large scalec.1 When is Trafficking deemed committed by a syndicate? If it carried out by a group of three (3) or more persons conspiring or confederating with one another. c.2 When is Trafficking deemed committed in large scale? If it committed against three (3) or more persons, individually or as a group. (d) When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; (e) When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies; (f) When the offender is a member of the military or law enforcement agencies; and (g) When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS).(Sec.6). 1.07 IS THE USE OF TRAFFICKED PERSONS PUNISHABLE?
94
Yes. Any person who buys or engages the services of trafficked persons for prostitution shall be penalized (Sec.11).
(P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death.
1.08 WHAT IS THE PRESCRIPTIVE PERIOD IN TRAFFICKING CASES?
Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State”.
Trafficking cases under this Act shall prescribe in ten (10) years: Provided, however, That trafficking cases committed by a syndicate or in a large scale shall prescribe in twenty (20) years.(Sec.12) 1.09 BAR Q.[2012] 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. b. c. d.
Conspiracy to commit arson. Conspiracy to commit terrorism. Conspiracy to commit child pornography. Conspiracy to commit trafficking in persons. -oooOOOooo
CHAPTER VI. PLUNDER LAW Republic Act No. 7080
I.
UNDER SECTION 1 OF THIS ACT, DEFINE THE FOLLOWING TERMS:
1.00 DEFINE THE CRIME OF PLUNDER. (Section 2) Section 12 of R.A. 7659 amended Section 2 of R.A. 7080 to read as follows: "Sec.2. Definition of the Crime of Plunder - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos
1.01 STATE THE RULE OF EVIDENCE FOR PURPOSES OF ESTABLISHING THE CRIME OF PLUNDER. Section 4 of R.A. 7080 provides: “For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.” (underline supplied) 1.02 WHAT IS THE PRESCRIPTIBE PERIOD OF THE CRIME OF PLUNDER? (Section 6) The crime punishable under this Act shall prescribe in twenty (20) years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches, or estoppel 1.03 BAR Q. [2011] Which of the following crimes is an exception to the Territoriality Rule in criminal law? A. Violation of the Trademark Law committed by an alien in the Philippines. 95
B. Forgery of US bank notes committed in the Philippines. C. Crime committed by a Filipino in the disputed Spratly's Island. D. Plunder committed at his place of assignment abroad by a Philippine public officer 1.04 IS THE CRIME OF PLUNDER MALA IN SE OR MALA PROHIBITA? It is malum in se which requires proof of criminal intent. In Estrada v. Sandiganbayan G.R. No. 148560 November 19, 2001, the Supreme Court held that it is malum in se precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed “willfully, unlawfully and criminally.” It thus alleges guilty knowledge on the part of petitioner. In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the statute is void, petitioner cites the following remarks of Senator Tañada made during the deliberation on S.B. No.733 The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. The legislative declaration in R.A. No.7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. -oooOOOooo-
___________________________________________________ 1.00 WHAT ACTS ARE PUNISHED UNDER THIS ACT? (Sec. 1) It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not 1.02 WHEN IS THE COMMISSION OF SUCH ACTS DEEMED LAWFUL? (Sec.3) It is deemed lawful when committed by any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security. 1.03
CHAPTER VII. THE ANTI WIRE-TAPPING ACT Republic Act No. 4200
IS THE COMMUNICATION OR INFORMATION OBTAINED IN VIOLATION OF THIS ACT ADMISSIBLE IN EVIDENCE? (Sec.4) 96
No. It shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
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;
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(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;
CHAPTER VIII. THE ANTI-CHILD PORNOGRAPHY ACT OF 2009 Republic Act No. 9775 ___________________________________________________ 1.00 DEFINE "CHILD PORNOGRAPHY".
(f) For film distributors, theaters and telecommunication companies, by themselves or in cooperation with other entities, to distribute any form of child pornography;
It 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.
(g) For a parent, legal guardian or person having custody or control of a child to knowingly permit the child to engage, participate or assist in any form of child pornography;
1.01 DEFINE "INTERNET ADDRESS".
(h) To engage in the luring or grooming of a child;
It refers to a website, bulletin board service, internet chat room or news group, or any other internet or shared network protocol address.
(i) To engage in pandering of any form of child pornography;
1.02 WHAT ARE THE UNLAWFUL OR PROHIBITED ACTS ENUMERATED UNDER THE LAW? (Sec.4) The following are the unlawful or prohibited acts: (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:
(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. 1.03 BAR Q. [2011] 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 97
B. Violation of the Child Pornography Act C. Violation of the Child Abuse Law D. None
REASONABLE PRIVACY".
1.04 WHEN IS A CRIME CONSIDERED AS “SYNDICATED CHILD PORNOGRAPHY”? (Sec.5) 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. -oooOOOooo-
1.00 DEFINE "BROADCAST". It means to make public, by any means, a visual image with the intent that it be viewed by a person or persons. 1.01 DEFINE "CAPTURE". With respect to an image, it means to videotape, photograph, film, record by any means, or broadcast. DEFINE "PHOTO VOYEURISM ".
OR
VIDEO
It 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. 1.03 DEFINE "UNDER CIRCUMSTANCES IN WHICH A PERSON HAS A
OF
It 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. 1.04 WHAT ARE THE PROHIBITED ACTS ENUMERATED UNDER SECTION 4? It is prohibited unlawful for any person:
CHAPTER IX. THE ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009 Republic Act No. 9995 ___________________________________________________
1.02
EXPECTATION
and
declared
(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. 1.05 IS CONSENT TO RECORD OR TAKE PHOTO OR VIDEO COVERAGE CONSTITUTES AS AN EXCEPTION TO THE PROHIBITION UNDER PARAGRAPHS (B), (C) AND (D)? 98
No. The prohibition 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 (Sec.4). 1.06 WHO IS EXEMPTED FROM THE COVERAGE OF THE LAW?
internet, cellular phones and similar means or device. If at all, he committed acts of lasciviousness, as obviously, the element of lewdness is present in this case. -oooOOOooo-
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. 1.07 IF ANY RECORD, PHOTO OR VIDEO, OR COPY THEREOF IS OBTAINED IN VIOLATION OF THIS LAW, WILL IT BE ADMISSIBLE IN EVIDENCE? No. It is inadmissible in any judicial, quasi-judicial, legislative or administrative hearing or investigation (Sec.7). 1.08 MODIFIED BAR Q. [2010] 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 R.A. 9995? Suggested Answer: No, the acts committed by Canuto do not fall under the definition of voyeurism nor under the prohibited acts enumerated under Section 4 of the Anti- Photo and Video Voyeurism Act of 2009. There was no taking photo or video coverage of a person performing sexual act or any similar activity or of capturing an image of the private area of a person under circumstances in which such person has a reasonable expectation of privacy, nor there was an act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of sexual act or similar activity through
CHAPTER X. THE ANTI-DEATH PENALTY LAW Republic Act No. 9346 ___________________________________________________ 1.00 IS THE IMPOSITION OF DEATH PENALTY ALLOWED UNDER THE LAW? No, the imposition of the penalty of death is prohibited. 1.01 IN LIEU OF THE DEATH PENALTY, WHAT SHOULD BE IMPOSED? The following shall be imposed in lieu of the death penalty(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or (b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code.(Secs. 1 and 2) 1.02
ARE PERSONS CONVICTED OF OFFENSES PUNISHED WITH RECLUSION PERPETUA, OR WHOSE SENTENCES WILL BE REDUCED TO RECLUSION PERPETUA ELIGIBLE FOR PAROLE UNDER THE INDETERMINATE SENTENCE LAW?
No. Person convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4180, otherwise known as the Indeterminate Sentence Law, as amended. (Sec.3)
99
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CHAPTER XI. JUVENILE JUSTICE AND WELFARE ACT OF 2006 Republic Act No. 9344 ___________________________________________________ 1.00 WHO IS “A CHILD IN CONFLICT WITH THE LAW?” A “child in conflict with the law” refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. 1.01 WHAT IS A DIVERSION PROGRAM? BAR Q.[2009] It refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. 1.02 WHAT IS INTERVENTION? BAR Q.[2009] It refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. 1.03 WHAT IS THE JUVENILE JUSTICE AND WELFARE SYSTEM? It refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. 1.04 DEFINE RESTORATIVE JUSTICE. It refers to a principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the community. It seeks to obtain reparation for the victim;
reconciliation of the offender, the offended and the community; and reassurance to the offender that he/she can be reintegrated into society. It also enhances public safety by activating the offender, the victim and the community in prevention strategies. 1.05 DEFINE VICTIMLESS CRIMES. It refers to offenses where there is no private offended party.
1.06 WHAT IS THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY UNDER R.A. 9334? (Sec.6) BAR Q. [2012] A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. 1.07 WHAT IS THE MEANING OF THE TERM “ACTED WITH DISCERNMENT”? Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18) years of age from criminal liability, unless the child is found to have acted with discernment, in which case, “the appropriate proceedings” in accordance with the Act shall be observed. “Discernment” is that mental capacity of a minor to fully appreciate the consequences of his unlawful act. Such capacity may be known and should be determined by taking into consideration all the facts and circumstances afforded by the 100
records in each case. The surrounding circumstances must demonstrate that the minor knew what he was doing and that it was wrong. Such circumstance includes the gruesome nature of the crime and the minor’s cunning and shrewdness. In People vs. Jacinto, G.R. No. 182239, March 16, 2011, the Supreme Court agreed with the Court of Appeals that: “(1) choosing an isolated and dark place to perpetrate the crime, to prevent detection[;] and (2) boxing the victim x x x, to weaken her defense” are indicative of then seventeen (17) year-old appellant’s mental capacity to fully understand the consequences of his unlawful action. Discernment is again shown in the case of Robert Remiendo vs. People, G.R. No. 184874, 09 October 2009. Since the accused is above fifteen (15) and below eighteen (18), the finding of discernment is necessary to determine if he would be exempted from criminal liability. In this case, his act of waiting for the victim’s parents to leave the house before defiling the latter and threatening to kick her if she should shout prove that petitioner can differentiate what is right and wrong. 1.08
WHO IS ENTITLED TO THE PRESUMPTION OF MINORITY?
The child in conflict with the law shall enjoy the presumption of minority. He shall enjoy all the rights of a child in conflict with the law until he is proven to be eighteen (18) years old or older. 1.09 BAR Q. [2011] A child in conflict with the law shall enjoy all the rights of a child untilA. he is found to have acted with discernment. B. his minority is set off by some aggravating circumstance. C. he is proved to be 18 years or older. D. he forfeits such rights by gross misconduct and immorality. 1.10 HOW IS THE AGE OF A CHILD DETERMINED UNDER THIS ACT? The age of a child may be determined from the:
b) baptismal certificate or c) any other pertinent documents. 1.11
IN THE ABSENCE OF THESE DOCUMENTS, WHERE MAY THE AGE BE BASED UPON?
In the absence of these documents, age may be based on: d) information from the child himself, testimonies of other persons, e) the physical appearance of the child and other relevant evidence. 1.12 IN CASE OF DOUBT, HOW MUST THE AGE BE RESOLVED? In case of doubt as to the age of the child, it shall be resolved in his favor. 1.13 WHAT IS THE PROCEDURE IF A PERSON CONTESTS THE AGE OF THE CHILD? (Sec.7) Any person contesting the age of the child in conflict with the law prior to the filing of the information in any appropriate court may file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all interested parties. If a case has been fiied against the child in conflict with the law and is pending in the appropriate court, the person shall file a motion to determine the age of the child in the same court where the case is pending. Pending hearing on the said motion, proceedings on the main case shall be suspended. In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law. 1.14 HOW MUST THE PROVISONS OF THIS LAW BE CONSTRUED?
a) child's birth certificate, 101
In case of doubt, the interpretation of any of the provisions of this Act, including its implementing rules and regulations (IRRs), shall be construed liberally in favor of the child in conflict with the law. 1.15 DEFINE THE TERM “BEST INTEREST OF THE CHILD “ It refers to the totality of the circumstances and conditions which are most congenial to the survival, protection and feelings of security of the child and most encouraging to the child's physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. TREATMENT OF CHILDREN BELOW THE AGE OF CRIMINAL RESPONSIBILITY DIVERSION PROGRAM 2.00 WHEN IS A CONTRACT OF DIVERSION PROPER? (Sec. 26) If during the conferencing, mediation or conciliation, the child voluntarily admits the commission of the act, a diversion program shall be developed when appropriate and desirable as determined under Section 30. Such admission shall not be used against the child in any subsequent judicial, quasi-judicial or administrative proceedings. The diversion program shall be effective and binding if accepted by the parties concerned. The acceptance shall be in writing and signed by the parties concerned and the appropriate authorities. The local social welfare and development officer shall supervise the implementation of the diversion program. The diversion proceedings shall be completed within fortyfive (45) days. The period of prescription of the offense shall be suspended until the completion of the diversion proceedings but not to exceed forty-five (45) days. The child shall present himself/herself to the competent authorities that imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program. Failure to comply with the terms and conditions of the contract of diversion, as
certified by the local social welfare and development officer, shall give the offended party the option to institute the appropriate legal action. The period of prescription of the offense shall be suspended during the effectivity of the diversion program, but not exceeding a period of two (2) years. PROSECUTION 3.00 CITE THE INSTANCES WHERE THE PROSECUTOR SHALL CONDUCT A PRELIMINARY INVESTIGATION. (Sec. 33) The prosecutor shall conduct a preliminary investigation in the following instances: (a) when the child in conflict with the law does not qualify for diversion: (b) when the child, his/her parents or guardian does not agree to diversion as specified in Sections 27 and 28; and (c) when considering the assessment and recommendation of the social worker, the prosecutor determines that diversion is not appropriate for the child in conflict with the law. Upon serving the subpoena and the affidavit of complaint, the prosecutor shall notify the Public Attorney's Office of such service, as well as the personal information, and place of detention of the child in conflict with the law. Upon determination of probable cause by the prosecutor, the information against the child shall be filed before the Family Court within forty-five (45) days from the start of the preliminary investigation. COURT PROCEEDINGS 4.00 MUST MINORITY BE CONSIDERED IN DETERMINING THE AMOUNT OF BAIL? (Sec. 34) Yes, for purposes of recommending the amount of bail, the privileged mitigating circumstance of minority shall be considered. 102
4.01 MAY A CHILD BE RELEASED ON RECOGNIZANCE? (Sec. 35)
at the time of the pronouncement of his/her guilt.
Yes, the law provides that where a child is detained, the court shall order: (a) the release of the minor on recognizance to his/her parents and other suitable person;
Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law.”
(b) the release of the child in conflict with the law on bail; or
4.04 WHEN MAY THE CHILD IN CONFLICT WITH THE LAW BE RETURNED TO THE COURT? (Sec. 40)
(c) the transfer of the minor to a youth detention home/youth rehabilitation center.
The law expressly provides:
The court shall not order the detention of a child in a jail pending trial or hearing of his/her case. 4.02 WHEN IS AUTOMATIC SUSPENSION OF SENTENCE APPLICABLE? (Sec.38) The court shall place the child under suspended sentence instead of pronouncement of judgment of conviction under the following: “Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application.” 4.03 WHAT IF A CHILD REACHES THE AGE OF EIGHTEEN YEARS (18) OF AGE AT THE TIME OF THE PRONOUNCEMENT OF GUILT, MUST THE SUSPENSION STILL BE APPLIED?(Sec. 38) Yes, the law further provides: “That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more
“If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the conditions of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment.” Query: What must the court do if the child in conflict with the law has reached 18 years of age while under suspended sentence? If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether: a) to discharge the child in accordance with this Act; b) to order execution of sentence; or c) to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years. . 4.05 THE LAW ENTITLES SUSPENSION OF SENTENCE OF THE JUVENILE WHO IS ALREADY EIGHTEEN YEARS (18) OF AGE OR MORE AT THE TIME OF THE PRONOUNCEMENT OF HIS/HER GUILT. MAY A PERSON, THEREFORE, WHO IS NOW BEYOND THE AGE OF TWENTY-ONE (21) YEARS, STILL AVAIL OF THE PROVISIONS OF SECTIONS 38 AND 40 OF RA 9344 AS TO HIS SUSPENSION OF SENTENCE? 103
No. A person who is now beyond the age of twenty-one (21) years cannot avail of the provisions of Sections 38 and 40 of R .A. 9344 as to his suspension of sentence. Section 38 states: “SEC. 38. Automatic Suspension of Sentence.—Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt.”
“SEC. 40. Return of the Child in Conflict with the Law to Court.—If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the condition of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment. If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twentyone (21) years.” Hence,
in
PEOPLE
vs.
ALLEN
UDTOJAN MANTALABA, G.R. No. 186227, July 20, 2011, the Highest Tribunal ruled that the
Upon suspension of sentence and
appellant, who is now beyond the age of
after considering the various circumstances
twenty-one (21) years, can no longer avail of
of the child, the court shall impose the
the provisions of Sections 38 and 40 of RA
appropriate
as
9344 as to his suspension of sentence,
provided in the Supreme Court [Rule] on
because such is already moot and academic.
Juveniles in Conflict with the Law.
It noted that this would not have happened if
disposition
measures
“Sec. 68. Children Who Have Been Convicted and are Serving Sentence.— Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. x x x” While Section 38 of RA 9344 provides that suspension of sentence can still be applied even if the child in conflict with the law is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt, Section 40 of the same law
the CA, when this case was under its jurisdiction, suspended the sentence of the appellant. The records show that the appellant filed his notice of appeal at the age of 19 (2005), hence, when RA 9344 became effective in 2006, appellant was 20 years old, and the case having been elevated to the CA, the latter should have suspended the sentence of the appellant because he was already entitled to the provisions of Section 38 of the same law, which now allows the suspension of sentence of minors regardless of the penalty imposed as opposed to the provisions of Article 192 of P.D. 603.
limits the said suspension of sentence until the child reaches the maximum age of 21. The provision states:
Nevertheless, the Supreme Court held that the appellant shall be entitled to 104
appropriate disposition under Section 51 of RA No. 9344, which provides for the confinement
of
convicted
children
as
follows: “SEC. 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities.—A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD.” 4.06 BAR Q. [2012] A child over fifteen (15) years of age acted with discernment in the commission of murder. What is the duty of the court if he is already over eighteen (18) years of age at the time of the determination of his guilt for the offense charged? a. b.
c. d.
The court shall pronounce the judgment of conviction. The court shall place the child under suspended sentence for a specified period or until he reaches twenty-one (21) years of age. The court shall discharge the child for disposition measures. The court shall place the child on probation.
4.07 BAR Q. [2009] Suppose Joe’s motion for intervention or diversion was denied, and he was convicted two (2) years later when Joe was already 21 years old, should the judge apply the suspension of sentence? Explain. Suggested Answer: A person who is beyond the age of twenty-one (21) years cannot avail of the provisions of Sections 38 and 40 of R .A. 9344 on his suspension of sentence. 4.08 IS THE CHILD IN CONFLICT OF THE LAW ENTITLED TO A CREDIT IN SERVICE OF SENTENCE? (Sec. 41)
Yes. The child in conflict with the law shall be credited in the services of his/her sentence with the full time spent in actual commitment and detention under this Act. 4.09 MAY THE CHILD IN CONFLICT OF THE LAW BE INSTEAD PLACED ON PROBATION AS AN ALTERNATIVE TO IMPRISONMENT? (Sec.42) Yes. Section 42 is explicit: “The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her sentence taking into account the best interest of the child. For this purpose, Section 4 of Presidential Decree No. 968, otherwise known as the "Probation Law of 1976", is hereby amended accordingly.” 5.00 MAY A MINOR BE MADE TO SERVE HIS SENTENCE IN AGRICULTURAL CAMPS AND OTHER TRAINING FACILITIES? (Sec. 51) Yes, R.A. 9344 is explicit: “Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. - A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in cooperation with the DSWD.” 5.01 ARE THE BENEFITS UNDER THIS PROVISION APPLICABLE WHEN THE MINOR, HAD ALREADY REACHED 21 YEARS OF AGE OR OVER AT THE TIME OF HIS CONVICTION? Yes. In PEOPLE vs. URBAN SALCEDO ABDURAHMAN ISMAEL DIOLAGRA, G.R. No. 186523, June 22, 2011,the Supreme Court reiterated , just for the guidance of the bench and bar, that if indeed, an accused was under eighteen (18) years of age at the time of the 105
commission of the crime, then as held in
shall likewise be exempt from
People v. Sarcial,
such offenders, even if
criminal liability and be subjected to
already over twenty-one (21) years old at the
an intervention program, unless
time of conviction, may still avail of the
he/she has acted with discernment,
benefits accorded by Section 51 of R.A. No.
in which case, such child shall be
9344.
subjected
to
the
appropriate
proceedings in accordance with this 5.02 WHAT IS THE CONCEPT OF STATUS OFFENSES? (Sec. 57) Any conduct not considered an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child.
Act. c. The age of a child may be determined from the child’s birth certificate, baptismal certificate or any other
WHAT CRIMINAL OFFENSES ARE NOT APPLICABLE TO MINORS? (Sec. 58)
pertinent documents. In the absence
Persons below eighteen (18) years of age shall be exempt from prosecution for the following crimes:
himself/herself, testimonies of other
5.03
a) vagrancy and prostitution under Section 202 of the Revised Penal Code; b) mendicancy under Presidential Decree No. 1563; and c) sniffing of rugby under Presidential Decree No. 1619, such prosecution being inconsistent with the United Nations Convention on the Rights of the Child:
of these documents, age may be based on information from the child persons, the physical appearance of the
child
and
other
relevant
evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor d. Reduction of the criminal liability by virtue of RA 9344 does not extend to the civil liability. The civil liability is not affected by the same.
Provided, that said persons shall undergo appropriate counseling and treatment program.
e.
Art. 22. Retroactive effect of penal laws. — Penal laws shall have a
6.00 SUMMARY OF SALIENT FEATURES:
retroactive effect insofar as they
a. A child fifteen (15) years of age or
favor the persons guilty of a felony,
under at the time of the commission
who is not a habitual criminal, as this
of the offense shall be exempt from
term is defined in Rule 5 of Article 62
criminal liability. However, the child
of this Code, although at the time of
shall be subjected to an intervention
the publication of such laws, a final
program pursuant to Section 20 of
sentence has been pronounced and
the Act.
the convict is serving the same.
b. A child above fifteen (15) years but below eighteen (18) years of age
f.
If the court finds that the objective of the disposition measures imposed 106
upon the child in conflict with the law
sentence, in lieu of confinement in a
have not been fulfilled, or if the child
regular penal institution, in an
in conflict with the law has willfully
agricultural camp and other training
failed to comply with the conditions
facilities that may be established,
of
maintained,
his/her
disposition
or
supervised by
the
Bureau
and
rehabilitation program, the child in
controlled
conflict with the law shall be brought
Corrections
before the court for execution of
coordination with the Department of
judgment.
Social Welfare and Development
(BUCOR),
of in
(DSWD). g. Once the child who is under eighteen (18) years of age at the time of the
j.
If said child in conflict with the law
commission of the offense is found
has reached eighteen (18) years of
guilty of the offense charged, the
age while under suspended sentence,
court shall determine and ascertain
the court shall determine whether to
any civil liability which may have
discharge the child in accordance
resulted from the offense committed.
with this Act, to order, execution of
However, instead of pronouncing the
sentence, or to extend the suspended
judgment of conviction, the court
sentence for a certain specified
shall place the child in conflict with
period or until the child reaches the
the law under suspended sentence,
maximum age of twenty-one (21)
without
years.
need
of
application.
Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt.
7.00 PRINCIPLES AND DOCTRINES. 1. DOCTRINE. People vs. Salvador Atizado and Salvador Monreal G.R. No. 173822, October 13, 2010
h. Republic Act No. 9344 allows the retroactive application of the law to those who have been convicted and are serving sentence at the time of the effectivity of said law, and who were below the age of 18 years at the time of the commission of the offense. i.
The child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. The age of a child may be determined from the child’s birth certificate, baptismal certificate or any
A child in conflict with the law may,
other pertinent documents.
after conviction and upon order of
1. DOCTRINE.
the court, be made to serve his/her 107
Valcesar Estioca vs. People G.R. 173876, 27 June 2008
circulation of persons or transportation of goods, articles, or property or both. 4.00 WHAT IS THE CRIME OF PIRACY?
The reckoning point in considering minority is the time of the commission of the crime. In this case Boniao is 14 years old hence exempted from criminal liability without prejudice to his civil liability. Art 22 of the Revised Penal Code provides that penal laws may be given retroactive effect if they are in favour of the acused.
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CHAPTER XII. THE ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY LAW Presidential Decree No. 532 ___________________________________________________ 1.00 DEFINE PHILIPPINE WATERS It shall refer to all bodies of water, such as but not limited to, seas, gulfs, bays around, between and connecting each of the Islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension, and all other waters belonging to the Philippines by historic or legal title, including territorial sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction. 2.00 DEFINE VESSEL Any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine Waters. It shall include all kinds and types of vessels or boats used in fishing. 3.00 DEFINE PHILIPPINE HIGHWAY It shall refer to any road, street, passage, highway and bridges or other parts thereof, or railway or railroad within the Philippines used by persons, or vehicles, or locomotives or trains for the movement or
Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided. 4.01 CASE. There is a piracy, not grave coercion, where, as part of the act of seizing their boat, the occupants of the vessel were compelled to go elsewhere other than their place of destination, such compulsion was obviously part of the act of seizing their boat. The testimony of Eugene, one of the victims, shows that the appellant actually seized the vessel through force and intimidation. People vs. Emiliano Catantan y Tayong G.R No. 118075, September 5, 1997 Facts: On 27 June 1993, the Pilapil brothers Eugene, 21, and Juan Jr., 18, were fishing in the sea some 3 kilometers away from the shores of Tabogon, Cebu. Suddenly, another boat caught up with them. One of them, later identified as the accused EmilianoCatantan and Jose MacvenUrsalalis “Bimbo”, bearded the pump boat of the Pilapils and levelled his gun at Eugene. With his gun, Catantan struck Eugene on the left cheekbone and ordered him and Juan Jr. to "dapa." Then Catantan told Ursal to follow him to the pumpboat of the Pilapils. There they hogtied Eugene, forced him to lie down at the bottom of the boat, covered him with a tarpaulin up to his neck, stepped on him and ordered Juan Jr. to ferry them to DaanTabogon. and seized their fishing boat, to their damage and prejudice. Issue: Whether or not the accused is liable for grave coercion and not piracy. 108
Ruling: Presidential Decrees No. 532 section 2 Par. (D), defines Piracy as "any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of the complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided." And a vessel is construed in Sec. 2, par. (b), of the same decree as "any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine waters. It shall include all kinds and types of vessels or boats used in fishing.” The Grave Coercion as defined in Art. 286 of the Revised Penal Code is committed by "any person who, without authority of law, shall, by means of violence, prevent another from doing something not prohibited by law, or compel him to do something against his will, whether it be right or wrong." This case falls squarely within the purview of piracy. While it may be true that Eugene and Juan Jr. were compelled to go elsewhere other than their place of destination, such compulsion was obviously part of the act of seizing their boat. The testimony of Eugene, one of the victims, shows that the appellant actually seized the vessel through force and intimidation. The direct testimony of Eugene is significant and enlightening and the fact that the revolver used by the appellant to seize the boat was not produced in evidence cannot exculpate him from the crime. The fact remains, and we state it again, that Catantan and his coaccused Ursal seized through force and intimidation the pump boat of the Pilapils while the latter were fishing in Philippine waters. 4.02 WHAT CIRCUMSTANCES QUALIFY PIRACY? The law provides a higher penalty if the following circumstances attended the commission of the crime, a. In Piracy-
1; If physical injuries or other crimes are committed as a result or on the occasion thereof. 2. If rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel. 4.03 BAR Q. [2008] The inter-island vessel M/V Viva Lines I, while cruising off Batanes, was forced to seek shelter at the harbor of Kaoshiung, Taiwan because of a strong typhoon. While anchored in said harbor, Max, Baldo and Bogart arrived in a speedboat, fired a bazooka at the bow of the vessel, boarded it and divested the passengers of their money and jewelry. A passenger of M/V Viva Lines I, Dodong, took advantage of the confusion to settle an old grudge with another passenger, and killed him. After their apprehension, all four were charged with qualified piracy before a Philippine court. a) Was the charge of qualified piracy against the three persons (Max, Baldo and Bogart) who boarded the inter-island vessel correct? Explain. Suggested answer: Yes, Max, Baldo and Bogart are guilty of qualified piracy. They seized the vessel by firing and boarding the vessel, and divested the passengers of their money and jewel. Moreover, on the occasion of robbery, the death of one passenger resulted. b) Was Dodong correctly charged before the Philippine court for qualified piracy? Explain. Suggested Answer: No, Dodong had no intent to gain which is an essential element of qualified piracy. His intent is merely to settle an old grudge with his victim. Since the crime was not one of the exceptions in the extra-territoriality 109
principle and it was committed outside the Philippine territory, Philippine courts do not have jurisdiction to try the same. 5.00 WHAT IS THE CRIME OF HIGHWAY ROBBERY/BRIGANDAGE? The seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things of other unlawful means, committed by any person on any Philippine Highway(Sec.2). 5.01 BAR Q. [2012] A postal van containing mail matters, including checks and treasury warrants, was hijacked along a national highway by ten (10) men, two (2) of whom were armed. They used force, violence and intimidation against three (3) postal employees who were occupants of the van, resulting in the unlawful taking and asportation of the entire van and its contents. a. If you were the public prosecutor, would you charge the ten (10) men who hijacked the postal van with violation of Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti Highway Robbery Law of 1974? Explain your answer. Suggested Answer: He is liable under P.D. 532. There was indiscriminate highway robbery in Philippine Highway. It was committed in a national highway used by persons, or vehicles, for the movement or circulation of persons or transportation of goods, articles, or property or both. By means of violence and intimidation against three (3) postal employees who were occupants of the van, they were able to unlawful take the entire van and its contents. PD 532 does not require that there should be at least four armed persons forming a band of robbers. Under this law, the number of
perpetrators is not an essential requisite of the crime. b. If you were the defense counsel, what are the elements of the crime of highway robbery that the prosecution should prove to sustain a conviction? Suggested Answer: If I were the defense counsel, I will argue that the prosecution should first prove the following: a. There is taking away of the property of another committed on any Philippine Highway. b. Employment of violence against or intimidation of persons or force upon things or other unlawful means. c.
The act must be organized for the purpose of committing robbery indiscriminately. Acts of robbery should not be committed against a predetermined or particular victim.
5.02 WHAT CIRCUMSTANCES QUALIFY HIGHWAY ROBBERY OR BRIGANDAGE? In Highway Robbery/ Brigandage 1. If physical injuries or other crimes are committed during or on the occasion of the commission of robbery or brigandage. 2. If kidnapping for ransom or extortion, or murder or homicide, or rape is committed as a result or on the occasion thereof. 6.00 IS THE ACT OF AIDING PIRATES OR HIGHWAY ROBBERY/BRIGANDS OR ABETTING PIRACY OR HIGHWAY ROBBERY/BRIGANDAGE PUNISHABLE?
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Yes. The law provides that 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 (Sec.4). 6.01 WHAT IS THE PRESUMPTION PROVIDED UNDER SECTION 4? 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.
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A higher penalty is imposed if hijacking is committed under any of the following circumstances: 1. Whenever he has fired upon the pilot, member of the crew or passenger of the aircraft; 2. Whenever he has exploded or attempted to explode any bomb or explosive to destroy the aircraft; or 3. Whenever the crime is accompanied by murder, homicide, serious physical injuries or rape (Sec.2). 1.03 WHAT OTHER ACT IS PUNISHED UNDER THIS LAW? It shall be unlawful for any person, natural or juridical, to ship, load or carry in any passenger aircraft operating as a public utility within the Philippines, any explosive, flammable, corrosive or poisonous substance or material (Sec.3). 2. CASE
CHAPTER XIII. THE ANTI-HIJACKING LAW Republic Act No. 6235 ___________________________________________________ 1.00 WHAT ARE THE ACTS PUNISHED UNDER THE LAW? It shall be unlawful for any person to compel a change in the course or destination of an aircraft of Philippine registry, or to seize or usurp the control thereof, while it is in flight. It shall likewise be unlawful for any person to compel an aircraft of foreign registry to land in Philippine territory or to seize or usurp the control thereof while it is within the said territory (Sec.1). 1.01 WHEN IS AN AIRCRAFT CONSIDERED IN FLIGHT? An aircraft is in flight from the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation. 1.02
WHAT ARE THE QUALIFYING CIRCUMSTANCES OF HIJACKING?
People vs. Susan Canton GR No. 148825, December 27, 2002 Doctrine: Section 9 of Republic Act No. 6235 (Anti Hijacking Law) constitutes another exception to the proscription against warrantless searches and seizures. R.A. No. 6235 authorizes search for prohibited materials or substances. To limit the action of the airport security personnel to simply refusing her entry into the aircraft and sending her home (as suggested by appellant), and thereby depriving them of "the ability and facility to act accordingly, including to further search without warrant, in light of such circumstances, would be to sanction impotence and ineffectivity in law enforcement, to the detriment of society." Thus, the strip search in the ladies’ room was justified under the circumstances. Facts: Canton was a departing passenger bound for Saigon, Vietnam. She passed thru a metal detector which emitted a beeping sound which prompted Cabunoc, a civilian employee of the National Action Committee on Highjacking and Terrorism (NACHT) and the frisker on duty to check on her. Cabunoc felt something bulging in several parts of 111
Canton and reported it to her supervisor. She was brought to the ladies’ room where she was asked to take off her clothes. Packages containg shabu was found on her. Canton was found guilty beyond reasonable doubt of violating Section 16 of Art. III of RA 6425. She assailed the propriety of the search and seizure without warrant on the ground that the seized items were not in plain view. Issue: Whether or not the scope of the search pursuant to airport security procedure is not confined only to search for weapons under the Terry Search doctrine. Supreme Court’s Ruling: The Terry search or the "stop and frisk" situation refers to a case where a police officer approaches a person who is acting suspiciously, for purposes of investigating possibly criminal behavior in line with the general interest of effective crime prevention and detection. To assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him, he could validly conduct a carefully limited search of the outer clothing of such person to discover weapons which might be used to assault him. In the present case, the search was made pursuant to routine airport security procedure, which is allowed under Section 9 of Republic Act No. 6235 (Anti Hijacking Law) reading as follows: SEC.9 Every ticket issued to a passenger by the airline or air carrier concerned shall contain among others the following condition printed thereon: "Holder hereof and his hand-carried luggage(s) are subject to search for , and seizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the aircraft," which shall constitute a part of the contract between the passenger and the air carrier. This constitutes another exception to the proscription against warrantless searches and seizures. As admitted by SUSAN and shown in Annex "D" of her Brief, the afore-quoted provision is stated in the "Notice to All Passengers" located at the final security checkpoint at the departure lounge. From the said provision, it is clear that the search, unlike in the Terry search, is not limited to weapons. Passengers are also
subject to search for prohibited materials or substances. In this case, after the metal detector alarmed SUSAN consented to be frisked, which resulted in the discovery of packages on her body. It was too late in the day for her to refuse to be further searched because the discovery of the packages whose contents felt like rice granules, coupled by her apprehensiveness and her obviously false statement that the packages contained only money, aroused the suspicion of the frisker that SUSAN was hiding something illegal. It must be repeated that R.A. No. 6235 authorizes search for prohibited materials or substances. To limit the action of the airport security personnel to simply refusing her entry into the aircraft and sending her home (as suggested by appellant), and thereby depriving them of "the ability and facility to act accordingly, including to further search without warrant, in light of such circumstances, would be to sanction impotence and ineffectivity in law enforcement, to the detriment of society." Thus, the strip search in the ladies’ room was justified under the circumstances. -oooOOOoooCHAPTER XIV. THE ANTI-CARNAPPING ACT Republic Act No. 6539 ___________________________________________________ 1.00 DEFINE THE FOLLOWING TERMS: "Motor vehicle" is any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolley cars, streetsweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles, which run only on rails or tracks, and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating. 112
1.01
WHAT IS THE CARNAPPING?
CRIME
OF
It is the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things. 1.02 WHAT ARE THE ELEMENTS OF CARNAPPING? The elements of carnapping are as follows: 1. That there is an actual taking of the vehicle; 2. That the offender intends to gain from the taking of the vehicle; 3. That the vehicle belongs to a person other than the offender himself; 4. That the taking is without the consent of the owner thereof; or that the taking was committed by means of violence against or intimidation of persons, or by using force upon things. People Vs. Artemio Garcia Y Cruz, Jr., et al. G.R. No. 138470, April 1, 2003. 1.03
WHEN IS UNLAWFULTAKING DEEMED COMPLETE?
Unlawful taking is the taking of a vehicle without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things; it is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. People vs. Artemio Garcia Y Cruz, Jr., et al. G.R. No. 138470, April 1, 2003. 1.04 DOES THE PERSON DIVESTED OF THE MOTOR VEHICLE NECESSARILY BE THE OWNER THEREOF? No. The settled rule is that, in crimes of unlawful taking of property through intimidation or violence, it is not necessary that the person unlawfully divested of the personal property be the owner thereof. What is simply required is that the property taken does not belong to the offender. Actual
possession of the property by the person dispossessed suffices. People Vs. Artemio Garcia Y Cruz, Jr., et al. G.R. No. 138470, April 1, 2003. 1.05 DOES THE ELEMENT OF TAKING ABSORB THE LOSS OF CASH OR OTHER PERSONALPROPERTY? No. Although carnapping and robbery have the same element of taking with intent to gain, the former specifically refers to the unlawful taking of a motor vehicle.only. People vs. Dela Cruz, GR No. 174658,February 24, 2009. 1.06 BAR Q. [2008] While Carlos was approaching his car, he saw it being driven away by Paolo, a thief. Carlos tried to stop Paolo by shouting at him, but Paolo ignored him. To prevent his car from being carnapped, Carlos drew his gun, aimed at the rear wheel of the car and fired. The shot blew the tire which caused the car to veer out of control and collide with an oncoming tricycle, killing the tricycle driver. x x x What is the criminal liability of Paolo, if any? Explain. Suggested Answer: Paolo is guilty of carnapping. There was an unlawful taking of a motor vehicle with intent to gain. Secondly, the car belonged to another person. Lastly, the taking was without the consent of the Carlos, the owner. 2.00 ON WHAT FACTORS MUST THE IMPOSITION OF PENALTY IN CARNAPPING BE DEPENDENT? (Section 14) a. As a rule, when the carnapping is committed without violence or intimidation of persons, or force upon things, irrespective of the value of motor vehicle taken, the penalty shall be imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months. b. On the other hand, when the carnapping is committed by means of 113
violence against or intimidation of any person, or force upon things, the penalty shall be by imprisonment for not less than seventeen years and four months and not more than thirty years. 2.01 WHEN IS CARNAPPING CONSIDERED QUALIFIED OR IN AN AGGRAVATED FORM? When the owner, driver or occupant of the carnapped motor vehicle is killed in the commission of the carnapping, the penalty of life imprisonment to death shall be imposed *(Sec. 14. The penalty is now life imprisonment with the effectivity of the anti-death penalty law). 2.02 BAR Q. [2012] What should be the proper charge against an offender who unlawfully took and carried away a motor vehicle belonging to another without the latter's consent, killing the driver in the process? a. The proper charge against the offender should be murder with the use of motor vehicle. b. The proper charge against the offender should be qualified carnapping or carnapping in an aggravated form. (*The driver was killed during the commission of carnapping. A higher penalty is thus to be imposed). c. The proper charge against the offender should be carnapping and homicide. d. The proper charge against the offender should be robbery with homicide. 2.03 BAR Q.[1998] Samuel, a tricycle driver, plied his usual route using a Honda motorcycle with a sidecar. One evening, Raul rode on the sidecar, poked a knife at Samuel and instructed him to go near the bridge. Upon reaching the bridge, Raul alighted from the motorcycle and suddenly stabbed Samuel several times until he was dead. Raul fled from the scene taking the motorcycle with him. What crime or crimes did Raul commit?
SUGGESTED ANSWER: Raul committed the crime of carnapping punished under by R.A. No. 6539. Samuel, the driver of the vehicle, was killed in the course of the commission of the crime. Under Section 14 thereof, the killing serves to aggravate the crime by increasing the penalty to be imposed on the offender. 2.04 CAN THERE BE UNLAWFUL TAKING OF A MOTOR VEHICLE EVEN IF THE POSSESSION THEREOF IS COVERED BY A LEASE AGREEMENT? Yes. In the case of People vs. Artemio Garcia Y Cruz, Jr., et al. G.R. No. 138470, April 1, 2003, the Supreme Court held that even if the nature of the appellant’s possession of the motor vehicle was initially lawful nevertheless, the unlawful killing of the deceased for the purpose of taking the vehicle radically transformed the character of said possession into an unlawful one. It ruled “It does not matter whether the unlawful taking occurred within the period of the lease. What is decisive here is the purpose of appellant and his co-accused in killing the victim. Such is the vital point on which the crime and the nature thereof is to be determined In this case. The duration of the lease of the vehicle has no bearing on the culpability of the appellant. x x x The prosecution was able to establish that appellant and his co-accused stabbed the victim to death because he refused to join them in their plan to appropriate the vehicle. This undoubtedly satisfied the element of unlawful taking through violence, rendering appellant liable for the crime charged”. 3.00 DOCTRINE People vs. Arguelles August 17, 2010 R.A. 6539, otherwise known as An Act Preventing and Penalizing Carnapping, defines carnapping as the taking, with intent to gain, of a motor vehicle belonging to another without the latter’s consent, or by means of violence against or intimidation of persons, or by using force upon things." More specifically, the elements of the crime are as follows:
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1 .That there is an actual taking of the vehicle; 2. That the offender intends to gain from the taking of the vehicle; 3. That the vehicle belongs to a person other than the offender himself; 1. That the taking is without the consent of the owner thereof; or that the taking was committed by means of violence against or intimidation of persons, or by using force upon things. A careful examination of the evidence presented would show that all the elements of carnapping were proven in this case. It cannot be denied that the 1993 Nissan Sentra with plate number TKR-837 was unlawfully taken from Agnes without her consent and by means of force or intimidation, considering that he and his co-accused alternately poked a gun at Agnes. After shooting her, appellant also flee with the subject vehicle which shows his intent to gain. Agnes also positively identified appellant and Gungon as the ones who took the subject vehicle from her. -oooOOOooo-
CHAPTER XV. THE LAW ON ARSON AS AMENDED Presidential Decree No. 1613 ___________________________________________________ 1.00 WHAT IS ARSON? It is a crime committed by any person who burns or sets fire to the property of another or when a person sets fire to his own property under circumstances which expose to danger the life or property of another. (Sec.1) 1.01 WHAT CONSTITUTES DESTRUCTIVE ARSON? It is destructive arson when the property is burned in any of the following:
1. Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored. 2. Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services. 3. Any church or place of worship or other building where people usually assemble. 4. Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property 5. Any building where evidence is kept for use in any legislative, judicial, administrative or other official proceedings. 6. Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building. 7. Any building, whether used as a dwelling or not, situated in a populated or congested area (Sec.2). 1.02 ENUMERATE THE SPECIAL AGGRAVATING CIRCUMSTANCES IN ARSON The following are the special aggravating circumstances in Arson: (Sec.4) 1. If committed with intent to gain; 2. If committed for the benefit of another; 3. If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; 4. If committed by a syndicate. 1.03 WHEN IS ARSON COMMITTED BY A SYNDICATE? (Sec.4) The offense is committed by a syndicate if it is planned or carried out by a group of three (3) or more persons. 115
1.04 WHAT IS THE CONSEQUENCE IF BY REASON OF OR ON THE OCCASION OF THE ARSON DEATH RESULTS? A higher penalty shall be imposed. 1.05 WHAT CIRCUMSTANCES CONSTITUTE PRIMA FACIE EVIDENCE OF ARSON? (Section 6) Any of the following circumstances shall constitute prima facie evidence of arson: 1. If the fire started simultaneously in more than one part of the building or establishment. 2. If substantial amount of flammable substances or materials are stored within the building note necessary in the business of the offender nor for household us. 3. If gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked therewith or containers thereof, or any mechanical, electrical, chemical, or electronic contrivance designed to start a fire, or ashes or traces of any of the foregoing are found in the ruins or premises of the burned building or property. 4. If the building or property is insured for substantially more than its actual value at the time of the issuance of the policy. 5. If during the lifetime of the corresponding fire insurance policy more than two fires have occurred in the same or other premises owned or under the control of the offender and/or insured. 6. If shortly before the fire, a substantial portion of the effects insured and stored in a building or property had been withdrawn from the premises except in the ordinary course of business. 7. If a demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the
safety of the person or property of the victim. 1.06 IS THERE A CRIME OF CONSPIRACY TO COMMIT ARSON? Yes. Mere conspiracy to commit arson is punishable. 2.00 SUPPOSE THE OFFENDER SET THE HOUSE OF THE VICTIM ON FIRE BY WAY OF REVENGE AGAINST THE LATTER. HE WAS NOT AWARE THAT THE VICTIM WAS INSIDE AND CONSEQUENTLY, THE LATTER DIED BECAUSE OF THE FIRE. WHAT CRIME WAS COMMITTED? The crime is mere arson. There is no complex crime of arson with homicide. The crime of homicide is absorbed. The consequence, if by reason of or on the occasion of the arson death results, is the imposition of a higher penalty. 2.01 (a) BAR Q. [2012] With intent to cause damage, AAA deliberately set fire upon the two-storey residential house of his employer, mostly made of wooden materials. The blaze spread and gutted down seven neighboring houses. On the occasion of the fire, six (6) persons sustained burn injuries which were the direct cause of their death. What crime was committed by AAA? a. AAA committed the complex crime of arson with multiple homicide. b. AAA committed arson and multiple homicide. c. AAA committed simple arson (*There is no complex crime of arson with homicide. Homicide is absorbed in arson). d. AAA committed arson and multiple murder. 2.02 SUPPOSE THE OFFENDER KNEW THAT THE VICTIM WAS INSIDE THE HOUSE BEFORE THE HOUSE WAS SET ON FIRE, WHAT CRIME WAS COMMITTED?
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If the offender knew that the victim was in the house when it was set on fire, the crime committed, instead of arson, would be murder. The fire constitutes as a qualifying circumstance. 2.03(a) BAR Q. [2012] With intent to kill, GGG burned the house where F and D were staying. F and D died as a consequence. What is the proper charge against GGG? a. b. c.
d.
GGG should be charged with two (2) counts of murder. GGG should be charged with arson. GGG should be charged with complex crime of arson with double murder. GGG should be charged with complex crime of double murder (*Fire was used to commit the killing.It serves as a qualifying circumstance to the crime of murder. It is a complex crime under Article 48 of the RPC because the single act of burning the house constitutes 2 grave felonies).
2.04 SUPPOSE BEFORE SETTING THE HOUSE ON FIRE, THE OFFENDER ENTERED IN AND KILLED THE VICTIM, THEN HE SET IT ON FIRE TO CONCEAL THE BODY OF THE LATTER, WHAT CRIME WAS COMMITTED? If the offender killed the victim before the house was set on fire, two crimes are committed, murder and arson. The burning of the house to hide the killing is a separate crime. Arson was committed to conceal the crime of murder. 2.05(a) BAR Q.[2011] Dagami concealed Bugna’s body and the fact that he killed him by setting Bugna’s house on fire. What crime or crimes did Dagami commit? a. Murder, the arson being absorbed already b. Separate crimes of murder and arson
c. Arson, the homicide being absorbed already d. Arson with murder as a compound crime 3.00 WHEN IS A CRIME INVOLVING DESTRUCTION AN ACT OF TERRORISM? Under R.A. No. 9372, otherwise known as the Human Security Act of 2007, a person who commits an act punishable under Art. 324 (Crimes Involving Destruction) and thereby sowing and creating 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. OTHER MATTERS TO CONSIDER The building which is the object of arson including the land on which it is situated shall be confiscated and escheated to the State, unless the owner thereof can prove that he has no participation in nor knowledge of such arson despite the exercise of due diligence on his part. (Sec.8) -oooOOOooo-
CHAPTER XVI. THE ANTI-ALIAS LAW Republic Act No. 6085 [BAR 2006] ___________________________________________________ 1.00 WHAT IS THE RULE WITH RESPECT TO THE USE OF A PERSON’S REGISTERED NAME? The law provides that no persons 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. (Sec.1)
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1.01 WHEN IS THE USE OF ‘ALIAS’ ALLOWED BY LAW? The use of ‘alias’ is allowed 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. (Sec.1) 1.02
BAR Q.[2006] When can a Filipino citizen residing in this country use an alias legally?
Suggested Answer: Pursuant to Section 1of R.A. 6085, the use of ‘alias’ is allowed 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. 1.03 WHAT IS THE REQUIREMENT WHEN ONE DESIRES TO USE AN ‘ALIAS’? (Sec.2) Any person desiring to use an alias shall apply for authority 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. 1.04 WHAT ARE THE CONTENTS OF A PETITION FOR ALIAS? (Sec.2) The petition for an alias shall set forth the (1) person's baptismal and family name and the name recorded in the civil registry, if different, (2) his immigrant's name, if an alien, and his pseudonym, if he has such names other than his original or real name, specifying (3) the reason or reasons for the use of the desired alias. 1.05 DOES A PERSON USING AN ‘ALIAS’ REQUIRED TO STATE OR AFFIX HIS REAL NAME IN ANY TRANSACTION OR DOCUMENT? (Sec.3) Yes. 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. -oooOOOooo-
CHAPTER XVIII OBSTRUCTION OF JUSTICE Presidential Decree No. 1829 [BAR 2010, 2005] ___________________________________________________ 1.00
WHO MAY BE LIABLE FOR OBSTRUCTION OF JUSTICE ?( SEC.1)
Any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases. 1.01 WHAT DOES SECTION 1 OF P.D. 1829 PROVIDE? Section 1 of P.D. 1829 reads: “The acts punishable therein are as follows: (a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats; (b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases; (c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction; 118
(d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes; (e) delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal's offices, in Tanodbayan, or in the courts; (f) making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases; (g) soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender; (h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases; (i) giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court.” 1.02 GIVE AND EXPLAIN THE ACTS PUNISHABLE UNDER SECTION 1. Specifically, the acts punishable therein are as follows:
(a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats; (b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases; 1.03 Illustrative case of 1(b). BAR Q. [2005] During a PNP buy-bust operation, Cao Shih was arrested for selling 20 grams of methamphetamine hydrochloride (shabu) to a poseurbuyer. Cao Shih, through an intermediary, paid Patrick, the Evidence Custodian of the PNP Forensic Chemistry Section, the amount of ₱50,000.00 in consideration for the destruction by Patrick of the drug. Patrick managed to destroy the drug. State with reasons whether Patrick committed the following crimes. X X X Obstruction of Justice under PD 1829. Suggested Answer: Patrick is liable for obstruction of justice under Section 1 (b) of PD 1829 because he destroyed the evidence intended to be used in in the criminal proceeding. Query: Is a public office an essential element under Sec.1(b)? While public office is not an essential element of the offense of obstruction of justice under Sec. 1(b) of P.D.1829, the circumstances surrounding the commission of the offense alleged to have been committed by accused official are such, however, that the offense may not have been committed had said accused not held the office of mayor. 119
(a) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction; 1.04 Illustrative case of 1(c). BAR Q. [2011] A private person who assists the escape of a person who committed robbery shall be liableA. as a principal to the crime of robbery. B. as an accessory to the crime of robbery. C. as a principal to the crime of obstruction of justice. D. as an accessory to the crime of obstruction of justice. (d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes; (e) delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal's offices, in Tanodbayan, or in the courts; (f) making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases; (g) soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender; (h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases;
agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court. 1.05 WHAT IS THE EFFECT IF THERE IS ANOTHER LAW WHICH PUNISHES THE ACT WITH A HIGHER PENALTY?(SEC.1) If any of the acts mentioned herein is penalized by any other law with a higher penalty, the higher penalty shall be imposed. 1.06 IF A PERSON IS NOT FOUND LIABLE AS AN ACCESSORY, MAY HE INSTEAD BE LIABLE UNDER PD 1829? Yes, he may be liable. Even if a person is found not criminally liable as an accessory under Article 20 of the Revised Penal Code, he may, however, be liable for acts punished under PD 1829. 1.07 DIFFERENTIATE AN ACCESSORY FROM A PRINCIPAL IN PD 1829. An accessory under Article 20 of the Revised Penal Code is exempt from criminal liability when the principal is his a) spouse b) ascendant c) descendant d) legitimate, natural or adopted brother sister or relative by affinity within the same degree. These benefits are not available in PD 1829.
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TRUST IN THE LORD WITH ALL YOUR HEART, AND LEAN NOT ON YOUR OWN UNDERSTANDING. IN ALL YOUR WAYS ACKNOWLEDGE HIM, AND HW SHALL MAKE YOUR PATHS STRAIGHT. Proverbs 3:5
(i) giving of false or fabricated information to mislead or prevent the law enforcement 120
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