SPL NOTES
MALA IN SE VS. MALA PROHIBITA
Mala in se
Mala prohibita
Wrong from its very Wrong because it is
nature, such as theft, prohibited by statute,
rape, homicide, etc
such
as
illegal
possession of firearms
So serious in their Violations of mere
effects on society as rules of convenience
to call for almost designed to secure a
unanimous
more
orderly
condemnation of its regulation
of
the
members
affairs of society
Good faith is a valid Good faith is not a
defense; unless the defense
crime is the result of
culpa
Intent is an element
Criminal
intent
is
immaterial; the only
inquiry is: “has the law
been
violated?”;
criminal intent not
necessary where the
acts are prohibited for
reasons of public
policy, as in illegal
possession of firearms
Term refers generally Term refers generally
to felonies defined to acts made criminal
and penalized by the by special laws
RPC
There are crimes in the RPC which were
originally defined and penalized by special
laws. Among them are possession of opium,
malversation, brigandage and libel.
The
degree
of The act gives rise to a
accomplishment
of crime only when it is
the crime is taken into consummated
account in punishing
the offender
Complied and Transcribed by STEPHANIE NARVAEZ
Mala in se
Mala prohibita
Mitigating
and Mitigating
aggravating
aggravating
circumstances
are circumstances
taken into account in generally not
imposing the penalty into account
and
are
taken
When there is more Degree
of
than one offender, the participation
is
degree of participation generally not taken
of
each
in
the into account. All who
commission of the participated in the act
crime is taken into are punished to the
account
same extent
Penalty is computed The penalty imposed
on the basis of on the offenders are
whether he is a the same whether
principal offender, or they
are
merely
merely an accomplice accomplices
or
or accessory
accessories
WHEN THE ACTS ARE INHERENTLY
IMMORAL, THEY ARE MALA IN SE, EVEN IF
PUNISHED UNDER SPECIAL LAW.
People vs. Sunico, et al
(C.A., 50 o.g. 5880)
Facts: The accused were election inspectors
and poll clerks whose duty among others was
to transfer the names of excess voters in other
precincts to the list of a newly created precinct.
Several voters were omitted in the list.
Because their names were not in the list, some
of them were not allowed to vote. The accused
were prosecuted for violation of Secs. 101 and
103 of the Revised Election Code. The
accused claimed that they made the omission
in good faith.
The trial court seemed to believe that
notwithstanding the fact that the accused
committed in good faith the serious offense
charged, the latter are criminally responsible
therefor, because such offense is malum
prohibitum, and, consequently, the act
constituting the same need not be committed
with malice or criminal intent to be punishable.
Held: The acts of the accused cannot be
merely mala prohibita - they are mala per se .
The omission or failure to include a voter’s
name in the registry list of voters is not only
1
SPL NOTES
wrong because it is prohibited; it is wrong per
se because it disenfranchises a voter and
violates one of his fundamental rights. Hence,
for such act to be punishable, it must be shown
that it has been committed with malice. There
is no clear showing in the instant case that the
accused intentionally, willfully and maliciously
omitted or failed to include in the registry list of
voters the names of those voters. They cannot
be punished criminally.
* the Revised Election Code, as far as its penal
provisions are concerned, is a special law, it
being not a part of the RPC or its
amendments.
ACT 3326 - AN ACT TO ESTABLISH
PERIODS OF PRESCRIPTION FOR
VIOLATIONS PENALIZED BY SPECIAL
ACTS AND MUNICIPAL ORDINANCES AND
TO PROVIDE WHEN PRESCRIPTION SHALL
BEGIN TO RUN
Section 1. Violations penalized by special acts
shall, unless otherwise provided in such acts,
prescribe in accordance with the following
rules:
(a)
after a year for offenses punished
only by a fine or by imprisonment for not
more than one month, or both;
(b)
after four years for those punished by
imprisonment for more than one month, but
less than two years;
(c)
after eight years for those punished
by imprisonment for two years or more, but
less than six years; and
(d)
after twelve years for any other
offense punished by imprisonment for six
years or more, except the crime of treason,
which shall prescribe after twenty years.
Provided, however, That all offenses
against any law or part of law administered
by the Bureau of Internal Revenue shall
prescribe after five years. Violations
penalized by municipal ordinances shall
prescribe after two months. (As amended
by Act No. 3585 and by Act No. 3763,
approved November 23, 1930.)
Sec. 2. Prescription shall begin to run from the
day of the commission of the violation of the
law, and if the same be not known at the time,
from the discovery thereof and the institution of
judicial proceeding for its investigation and
punishment.
The prescription shall be interrupted
when proceedings are instituted against the
guilty person, and shall begin to run again if
Complied and Transcribed by STEPHANIE NARVAEZ
the proceedings are dismissed for reasons not
constituting jeopardy.
Sec. 3. For the purposes of this Act, special
acts shall be acts defining and penalizing
violations of the law not included in the Penal
Code.
Sec. 4. This Act shall take effect on its
approval.
Approved: December 4, 1926
Panaguiton Jr vs Department of Justice
G.R. No. 167571
November 25, 2008
Facts:
Based from the facts culled from the records,
in 1992, Rodrigo Cawili borrowed various sums
of money amounting to P1,979,459.00 from
petitioner. On 8 January 1993, Cawili and his
business associate, Ramon C. Tongson, jointly
issued in favor of petitioner three (3) checks in
payment of the said loans. Significantly, all
three (3) checks bore the signatures of both
Cawili and Tongson. Upon presentment for
payment on 18 March 1993, the checks were
dishonored, either for insufficiency of funds or
by the closure of the account. Petitioner made
formal demands to pay the amounts of the
checks upon Cawili on 23 May 1995 and upon
Tongson on 26 June 1995, but to no avail.
On 24 August 1995, petitioner filed a
complaint against Cawili and Tongson for
violating Batas Pambansa Bilang 22 (B.P. Blg.
22) before the Quezon City Prosecutor's
Office. During the preliminary investigation,
only Tongson appeared and filed his counteraffidavit. However, Tongson claimed that he
had been unjustly included as partyrespondent in the case since petitioner had
lent money to Cawili in the latter's personal
capacity. Tongson averred that he was not
Cawili's business associate; in fact, he himself
had filed several criminal cases against Cawili
for violation of B.P. Blg. 22. Tongson denied
that he had issued the bounced checks and
pointed out that his signatures on the said
checks had been falsified.
To
counter
these
allegations,
petitioner presented several documents
showing Tongson's signatures, which were
purportedly the same as those appearing on
the checks. He also showed a copy of an
affidavit of adverse claim wherein Tongson
himself had claimed to be Cawili's business
associate.
In a resolution dated 6 December
1995, City Prosecutor III Eliodoro V. Lara
2
SPL NOTES
found probable cause only against Cawili and
dismissed the charges against Tongson.
Petitioner filed a partial appeal before the
Department of Justice (DOJ) even while the
case against Cawili was filed before the proper
court. In a letter-resolution dated 11 July 1997,
after finding that it was possible for Tongson to
co-sign the bounced checks and that he had
deliberately altered his signature in the
pleadings submitted during the preliminary
investigation, Chief State Prosecutor Jovencito
R. Zuño directed the City Prosecutor of
Quezon City to conduct a reinvestigation of the
case against Tongson and to refer the
questioned signatures to the National Bureau
of Investigation (NBI).
Tongson
moved
for
the
reconsideration of the resolution, but his
motion was denied for lack of merit.
On 15 March 1999, Assistant City
Prosecutor Ma. Lelibet S. Sampaga (ACP
Sampaga) dismissed the complaint against
Tongson without referring the matter to the NBI
per the Chief State Prosecutor's resolution. In
her resolution, ACP Sampaga held that the
case had already prescribed pursuant to Act
No. 3326, as amended, which provides that
violations penalized by B.P. Blg. 22 shall
prescribe after four (4) years.
Petitioner appealed to the DOJ. But the DOJ,
through
Undersecretary
Manuel
A.J.
Teehankee, dismissed the same, stating that
the offense had already prescribed pursuant to
Act No. 3326. Petitioner filed a motion for
reconsideration of the DOJ resolution.
On 3 April 2003, the DOJ, this time
through then Undersecretary Ma. Merceditas
N. Gutierrez, ruled in his favor and declared
that the offense had not prescribed and that
the filing of the complaint with the prosecutor's
office interrupted the running of the prescriptive
period citing Ingco v. Sandiganbayan.
However, in a resolution dated 9
August 2004, the DOJ, presumably acting on a
motion for reconsideration filed by Tongson,
ruled that the subject offense had already
prescribed and ordered "the withdrawal of the
three (3) informations for violation of B.P. Blg.
22" against Tongson. In justifying its sudden
turnabout, the DOJ explained that Act No.
3326 applies to violations of special acts that
do not provide for a prescriptive period for the
offenses thereunder. Since B.P. Blg. 22, as a
special act, does not provide for the
prescription of the offense it defines and
punishes, Act No. 3326 applies to it, and not
Art. 90 of the Revised Penal Code which
Complied and Transcribed by STEPHANIE NARVAEZ
governs the prescription of offenses penalized
thereunder.
Petitioner thus filed a petition for
certiorari before the Court of Appeals assailing
the 9 August 2004 resolution of the DOJ. The
petition was dismissed by the Court of Appeals
in view of petitioner's failure to attach a proper
verification and certification of non-forum
shopping. In the instant petition, petitioner
claims that the Court of Appeals committed
grave error in dismissing his petition on
technical grounds and in ruling that the petition
before it was patently without merit and the
questions are too unsubstantial to require
consideration.
The DOJ, in its comment, states that
the Court of Appeals did not err in dismissing
the petition for non-compliance with the Rules
of Court. It also reiterates that the filing of a
complaint with the Office of the City Prosecutor
of Quezon City does not interrupt the running
of the prescriptive period for violation of B.P.
Blg. 22. It argues that under B.P. Blg. 22, a
special law which does not provide for its own
prescriptive period, offenses prescribe in four
(4) years in accordance with Act No. 3326.
Issue:
Whether there is prescriptive period upon
violating B.P. Blg. 22 per Act No. 3326 and not
Art. 90 of the RPC, on the institution of judicial
proceedings for investigation and punishment?
Held:
It must be pointed out that when Act No. 3326
was passed on 4 December 1926, preliminary
investigation of criminal offenses was
conducted by justices of the peace, thus, the
phraseology in the law, "institution of judicial
proceedings
for
its
investigation
and
punishment," and the prevailing rule at the time
was that once a complaint is filed with the
justice of the peace for preliminary
investigation, the prescription of the offense is
halted.
Although, Tongson went through the proper
channels, within the prescribed periods.
However, from the time petitioner filed his
complaint-affidavit with the Office of the City
Prosecutor (24 August 1995) up to the time the
DOJ issued the assailed resolution, an
aggregate period of nine (9) years had
elapsed. Clearly, the delay was beyond
petitioner's control. After all, he had already
initiated the active prosecution of the case as
3
SPL NOTES
early as 24 August 1995, only to suffer
setbacks because of the DOJ's flip-flopping
resolutions and its misapplication of Act No.
3326.
Aggrieved parties, especially those
who do not sleep on their rights and actively
pursue their causes, should not be allowed to
suffer unnecessarily further simply because of
circumstances beyond their control, like the
accused's delaying tactics or the delay and
inefficiency of the investigating agencies.
The court rules and so hold that the
offense has not yet prescribed. Petitioner’s
filing of his complaint-affidavit before the Office
of the City Prosecutor on 24 August 1995
signified
the
commencement
of
the
proceedings for the prosecution of the accused
and thus effectively interrupted the prescriptive
period for the offenses they had been charged
under B.P. Blg. 22. Moreover, since there is a
definite finding of probable cause, with the
debunking of the claim of prescription there is
no longer any impediment to the filing of the
information against petitioner.
WHEREFORE,
the
petition
is
GRANTED. The resolutions of the Court of
Appeals dated 29 October 2004 and 21 March
2005 are REVERSED and SET ASIDE. The
resolution of the Department of Justice dated 9
August 2004 is also ANNULLED and SET
ASIDE. The Department of Justice is
ORDERED to REFILE the information against
the petitioner. No costs.
P.D. NO. 1866, as amended by R.A. NO.
8294, otherwise known as AN ACT
AMENDING THE PROVISIONS OF
PRESIDENTIAL DECREE NO. 1866, AS
AMENDED, ENTITLED “CODIFYING THE
LAWS ON ILLEGAL/UNLAWFUL
POSSESSION, MANUFACTURE, DEALING
IN, ACQUISITION OR DISPOSITION OF
FIREARMS, AMMUNITION OR EXPLOSIVES
OR INSTRUMENTS USED IN THE
MANUFACTURE OF FIREARMS,
AMMUNITION OR EXPLOSIVES, AND
IMPOSING STIFFER PENALTIES FOR
CERTAIN VIOLATIONS THEREOF, AND
FOR RELEVANT PURPOSES”
CHANGES MADE BY R.A. NO. 8294 on P.D.
NO. 1866:
The new law made the following
changes:
1. The use of unlicensed firearm to commit
homicide or murder is now an aggravating
circumstance hence only one crime is
Complied and Transcribed by STEPHANIE NARVAEZ
committed. I.e., homicide or murder and
therefore only one information shall be filed.
2. Violation of Section 3 in furtherance of or
incident to, or in connection with the crime
of rebellion, insurrection, sedition or
attempted coup d’etat, shall be absorbed as
an element of the crime of rebellion or
insurrection, sedition or attempted coup,
thus such use has no effect on the penalty.
3. The penalty for mere possession of
unlicensed firearm shall be based on
whether the firearm is low-powered or highpowered. High-powered firearms are those
with bores bigger than .38 cal. And 9 mm
and those with lesser bores but considered
as powerful, such as a .357 cal. And .22
center-fire magnum, and firearms with firing
capability of full automatic or by a burst of
two or three.
4. “Unlicensed firearm” shall include:
a. Firearms with expired license; or
b. Unauthorized use of licensed firearm in
the commission of the crime.
5. Simple illegal possession of firearms can
only be committed if no other crime was
committed with such firearm by the
possessor.
Unlicensed firearm no longer simply
means a firearm without a license duly issued
by lawful authority. The scope of the term has
been expanded in Section 5 of R.A. 8294 to
include unauthorized use of a weapon which
has been duly licensed in the name of its
owner/possessor, thus may still aggravate the
resultant crime. In the case at bar, although
appellants may have been issued their
respective licenses to possess firearms, their
carrying of such weapons outside their
residences and their unauthorized use thereof
in the killing of Bonifacio may be appreciated
as a special aggravating circumstance in
imposing the proper penalty for murder
(People v. Castillo).
Only one offense should be punished,
viz: either homicide or murder, and the use of
the unlicensed firearm should only be
considered as an aggravating circumstance.
Being a favorable statute, this provision may
be given retroactive application. Considering
that accused in fact was convicted for
parricide, it follows that he should be acquitted
in the case for illegal possession of firearm
(People v. Nepomuceno, G.R. No. 130800,
June 29, 1999) (NOTE: although the law
specified murder or homicide, the SC applied
the same to parricide. By parity of reasoning, it
4
SPL NOTES
appears that the provision should as well apply
to infanticide)
“UNLICENSED FIREARM” shall include:
(a)
firearms with expired license; or
(b)
Unauthorized use of licensed firearm
in the commission of the crime.
In a case, the accused committed
homicide and frustrated homicide with the use
of unlicensed firearm but was charged for
illegal possession of firearm under an
information separate from the charges for
homicide and frustrated homicide which were
raffled to different branches. The cases were
tried separately because they were not
consolidated. Thus, the accused can be
convicted for simple illegal possession of
firearm because the evidence as to the
homicide was neither presented nor adopted in
the trial court trying the illegal possession case
(People vs. Nunez, G.R. No. 112092, March 1,
2001). In other words, for the use of unlicensed
firearm to be merely an aggravating
circumstance, only one information should be
filed and the trial should be joint for both the
homicide/murder and the illegal possession. If
two informations were filed and tried
separately, the accused can be convicted for
both.
P.D. 1866, which codified the laws on
illegal possession of firearms, was amended
on June 6, 1997 by R.A no. 8294. Aside from
lowering the penalty for said crime, RA 8294
also provided that if homicide or murder is
committed with the use of an unlicensed
firearm, such use shall be considered as a
special
aggravating
circumstance.
This
amendment has two implications:
1)
the use of an unlicensed firearm in the
commission of homicide or murder shall not
be treated as a separate offense, but merely
as a special aggravating circumstance;
2)
As only a single crime (homicide or
murder with the aggravating circumstance of
illegal possession of firearm) is committed
under the law, only one penalty shall be
imposed on the accused (People vs.
Castillo. G.R. Ons. 131592-93, February 15,
2000).
* Murder
and homicide, as defined and
penalized under the RPC as crimes against
persons, are mala in se because malice or
dolo is a necessary ingredient therefor.
Complied and Transcribed by STEPHANIE NARVAEZ
* Illegal
possession of firearm is defined and
punished by a special penal law, PD No.
1866. It is a malum prohibitum which the
lawmaker so condemned not only because of
its nature but also because of the larger
policy consideration of containing or
reducing, if not eliminating, the upsurge of
crimes vitally affecting public order and safety
due to the proliferation of illegally possessed
and manufactured firearms, ammunition and
explosives. If intent to commit the crime were
required, enforcement of the decree and its
policy or purpose would be difficult to
achieve. Hence there is conceded wisdom in
punishing illegal possession of firearm
without taking into account the criminal intent
of possessor. All that is needed is intent to
perpetrate the act prohibited by law, coupled
by animus possidendi. However, it must be
clearly understood that this animus
possidendi is without regard to any other
criminal or felonious intent which an accused
may have harbored in possessing the firearm
(People v. Quijada, G.R. Nos. 115008-09,
July 24, 1996).
In crimes involving illegal possession
of firearm, the prosecution has the burden of
proving the elements thereof, viz:
1. The existence of the subject firearm; and
2. The fact that the accused who owned or
possessed it does not have the
corresponding license or permit to possess
the same.
The latter is a negative fact, which
constitutes an essential ingredient of the
offense of illegal possession, and it is the duty
of the prosecution not only to allege it but also
to prove it beyond reasonable doubt (People
vs. Tiozon, GR 89823).
The testimony of a representative of,
or a certification from the PNP-FEU that
offender was not a licensee of the said firearm
would suffice for the prosecution to prove
beyond reasonable donut the second element
of the crime of illegal possession (People vs.
Salayao, gr. No. 119220). The absence of the
testimony or certification is fatal to the
prosecution’s case and renders the conviction
erroneous (Mallari vs. CA).
* the essence of the crime is the lack of license
or permit to carry or possess firearm,
ammunition or explosive. Possession by itself
is not prohibited by law.
5
SPL NOTES
* To consider the firearm used in a homicide as
illegally possessed and thus aggravating, the
fact that the accused who used the gun did
not have the corresponding license or permit
to carry it outside his residence, must be
established beyond reasonable doubt by the
prosecution. Although the accused himself
admitted that he had no license for the gun
recovered from him, his admission will not
relieve the prosecution of its duty to establish
beyond reasonable doubt the lack of license
or permit to possess the gun. The admission
is extrajudicial and thus insufficient to prove
beyond doubt the commission of the crime.
Hence, the accused may only be held liable
for simple homicide (People vs. Castillo).
* it is really doubtful that paltik can be licensed
because it has no serial number, it is
homemade, hence, the maker will not issue
an official receipt for its sale which is indeed
illegal sale.
* The essence of the crime is primarily the lack
of license or permit to carry or possess the
firearm, explosive or ammunition for
possession by itself is not prohibited by law.
In the case of an explosive, a permit or
license to possess is usually granted to
mining corporations, military personnel and
other legitimate users. As the prosecution
failed to discharge its burden of proving that
appellant was not authorized to possess the
grenade seized from his house, his acquittal
for illegal possession of explosive is
inevitable (People vs. Cortez, 334 SCRA
334).
* Even if accused cannot explain why he
possessed such firearm or explosive, since
the burden is with the prosecution to prove
the guilt of the accused and not vice versa,
acquittal is still in order under the system of
criminal justice in this jurisdiction. To hold
otherwise is speculative, i.e., the court would
be speculating that the accused is not
authorized to possess firearm, whereas what
is required in conviction is proof beyond
reasonable doubt. The philosophy behind this
is the oft-quoted principle that courts would
rather free ten guilty persons than convict
and send to the dungeon one innocent
individual. Hence, the rule is that all doubts
must be construed in favor of the accused.
KINDS OF POSSESSION
Complied and Transcribed by STEPHANIE NARVAEZ
The unvarying rule is that ownership
is not an essential element of illegal
possession of firearms and ammunition. What
the law requires is merely possession which
includes not only actual possession, but also
constructive possession or the subjection of
the thing to one’s control and management
(Gonzales vs. CA, GR no. 95523, August 18,
1997).
PD 1866, which was passed to curb
criminality affecting public order and safety
punishes, inter alia, both actual and physical
possession and constructive possession of
firearms, ammunition and explosives without
authority or license therefor. Ownership is thus
not an essential element. In the case of
constructive possession, it refers to the
subjection of the articles in question to one’s
control and management. Once the evidence
indubitably point to possession without the
requisite authority or license, coupled with
animus possidendi or intent to possess on the
part of the accused, conviction for violation of
the said law must follow.
EFFECTIVITY OF THE LAW
•
•
•
•
In parricide, the application of RA 8294
would not be beneficial to the accused, as it
would increase the penalty for parricide from
reclusion perpetual to death. Hence, the new
law will NOT BE GIVEN RETROACTIVE
APPLICATION, as otherwise it would
acquire the character of an ex post facto law
(People v. Macoy, GR 126253, August 16,
2000).
The crime was committed before July 6,
1997, when RA 8294 took effect. This law is
advantageous to the accused as it spares
him from a separate conviction for the crime
of illegal possession of firearm. Hence said
law should be APPLIED RETROACTIVELY
(People vs. Lazaro, GR 112090, October 26,
1999).
Being favorable to the accused, this
provision may be given retroactive effect
pursuant to Article 22 of the RPC, he not
being a habitual criminal (People vs.
Bergante, GR Nos. 120369-70, February 27,
1998).
APPLICABILITY
OF
INDETERMINATE
SENTENCE LAW
The amendatory law has both
beneficial and prejudicial provisions thus its
applicability shall be either prospective or
6
SPL NOTES
retroactive depending upon the effect on the
offender.
* In
accordance with the doctrine regarding
special laws, People vs. Simon said that
although PD 1866 is a special law, penalties
therein were taken from the RPC hence the
rules in said Code for graduating by degrees
or determining the proper period should be
applied.
* All pending cases involving illegal possession
of firearm should continue to be prosecuted
and tried if no other crime expressly indicated
in RA 8294 is involved (murder or homicide
pursuant to Macoy, parricide); rebellion,
insurrection, sedition or attempted coup
d’teat) (People vs. Lazaro).
POSSIBLE
CRIMINAL
LIABILITIES
INVOLVING UNLICENSED FIREARMS:
The use of unlicensed forearms carries the
following liabilities:
1. Mere possession of unlicensed firearm simple illegal possession of firearm.
2. Unjustified killing of another - one crime of
homicide or murder (or parricide) with the
aggravating circumstance of use of
unlicensed firearm, unless the informations
for the homicide or murder and the illegal
possession were filed separately and
separate trials were held, in which case, the
accused can be convicted for both crimes.
3. Rebellion, insurrection, sedition or
attempted coup d’etat - use of unlicensed
firearm is absorbed as an element. There is
no effect on the penalty for the rebellion,
etc.
4. Any other crimes committed such as alarms
and scandals - only for that other crime and
the use of unlicensed firearm is absolved,
i.e., no liability for such use and neither
does it serve as an aggravating
circumstance.
PEOPLE VS. LADJAALAM, G.R. NOS.
136149-51, September 19, 2000
The court expounded on the fourth
situation (above). Duly proved were the two
elements of the crime of illegal possession of
firearms. Undoubtedly, the established fact that
appellant had fired an M-14 rifle upon the
approaching police officers clearly showed the
existence of the firearm or weapon and his
possession thereof. Sufficing to satisfy the
second element was prosecution’s Certification
stating that he had not been given authority to
carry any outside his residence. Further, it
Complied and Transcribed by STEPHANIE NARVAEZ
should be pointed out that his possession and
use of an M-14 rifle were obviously
unauthorized because this weapon could not
be licensed in favor or, or carried by, a private
individual.
The trial court was also correct in
convicting appellant of direct assault with
multiple counts of attempted homicide. It found
that the act of the accused of firing an M-14
rifle at the policemen who were about to enter
his house to serve a search warrant
constituted such complex crime.
If an unlicensed firearm is used in the
commission of any crime, there can be no
separate offense of simple illegal possession
of firearms. Hence, if the “other crime” is
murder or homicide, illegal possession of
firearms becomes merely an aggravating
circumstance, not a separate offense. Since
direct assault with multiple attempted homicide
was committed in this case, appellant can no
longer be held liable for illegal possession of
firearms, neither can it serve as an aggravating
circumstance.
Moreover, penal laws are construed
liberally in favor of the accused. In this case,
the plain meaning of the statute’s simple
language is most favorable to herein appellant.
Verily, no other interpretation is justified, for the
language of the new law demonstrates the
legislative intent to favor the accused.
Accordingly, appellant cannot be convicted of
two separate offenses of illegal possession of
firearms and direct assault with attempted
homicide or murder. Since the crime
committed was not murder or homicide, illegal
possession of firearms cannot be deemed an
aggravating circumstance.
There is no justification for limiting the
proviso in the second paragraph to murder and
homicide. The law is clear: the accused can be
convicted of simple illegal possession of
firearms, provided that “no other crime was
committed by the person arrested.” If the
intention of the law in the second paragraph
were to refer only to homicide and murder, it
should have expressly said so, as it did in the
third paragraph. Verily, where the law does not
distinguish, neither should the courts.
The ruling effectively exonerates
appellant of illegal possession of an M-14 rifle,
an offense which normally carries a penalty
heavier than that for direct assault. While the
penalty for illegal possession of M-14 rifle is
prison mayor, for direct assault it is only prison
correctional. Indeed, the accused may evade
conviction for illegal possession of firearms by
using such weapons in committing an even
7
SPL NOTES
lighter offense, like alarm and scandal or slight
physical injuries, both of which are punishable
by arresto menor. This consequence, however,
necessarily arises from the language of RA
8294, whose wisdom is not subject to judicial
review. Any perception that the result reached
here appears unwise should be addressed to
Congress. Indeed the Court has no discretion
to give statutes a new meaning detached from
the manifest intendment and language of the
legislature. Its task is constitutionally confined
only to apply the law/jurisprudence to the facts.
PEOPLE VS. MOLINA, 292 SCRA 742 (1998)
The court held that the use of an
unlicensed weapon in the commission of
murder or homicide should now be considered
simply as an aggravating circumstance and no
longer a separate offense. Therein, separate
informations for murder, frustrated murder and
illegal possessions were filed, but the case
eventually consolidated and jointly tried and
decided. The Molina ruling however is NOT
APPLICABLE where the cases filed were all
separately tried. Hence, the evidence as to the
homicide and frustrated homicide cases were
neither adopted nor presented before the trial
court trying the illegal possession case. For
this reason, there is a dearth of evidence to
support the finding of homicide and.or
frustrated homicide in the illegal possession
case. Accordingly, conviction should not only
be for simple possession of firearms (People
vs. Nunez, 2001).
PADILLA VS. CA, GR NO 121917, March 12.
1997
Padilla contents that he could not be
convicted of violating PD 1866 because he is
an appointed civilian agent authorized to
possess and carry the subject firearms and
ammunition as evidenced by a Mission Order
(MO) and Memorandum Receipt (MR) duly
issued by the PNP deputy commander of Task
Force Aguila, Lianga, Surge del Sur.
The contention lacks merit.
In crimes involving illegal possession
of firearms, two requisites must be established,
viz:
(1)
the existence of the subject firearm;
and
(2)
The fact that the accused who owned
or possessed the firearm does not have the
corresponding license of permit to possess.
The first element is beyond dispute as
the subject firearms and ammunitions were
seized from Padilla’s possession via a valid
Complied and Transcribed by STEPHANIE NARVAEZ
warrantless search, identified and offered in
evidence during trial. As to the second
element, the prosecution convincingly proved
the same. Indeed, Padilla’s purported MO and
MR are inferior in the face of the more
formidable evidence for the prosecution as the
MO and MR were afterthoughts contrived and
issued under suspicious circumstances.
Padilla failed to produce and present
the MO and MR if they were really issued and
existing before his apprehension. His
alternative excuses that the subject firearms
were intended for theatrical purposes, or that
they were owned by the Presidential Security
Group, or that his MO and MR were left at
home, further compound their irregularity. As to
be reasonably expected, an accused claiming
innocence would grab the earliest opportunity
to present the MO and MR in question and
save himself from the long and agonizing
public trial and spare him from proffering
inconsistent excuses.
The authenticity and validity of the
MO and MR, moreover, were ably
controverted. Police Supt. Direness denied
under oath his signature on the dorsal side of
the MO and declared further that he did not
authorize anyone to sign in his behalf. His
surname thereon was glaringly misspelled as
“Durembes”.
In
addition,
only
Unit
Commanders and Chief of Offices have the
authority to issue MO and MR under the
guidelines on the Issuance of MOs, MRs and
PCFORs. The PNP supt. Who issued Padilla’s
MO and MR is neither a Unit Commander nor
the Chief of Police, but merely a deputy
commander. Having emanated from an
unauthorized source, the MO and MR are
infirm and lacking in force and effect. Besides,
the MO covers “Recom 1-12 Baguio City”
areas outside the issuer’s area of responsibility
needing prior approval “by next higher
Headquarters” which is absent in this case.
The MR is also unsupported by a certification
as required by the March 5, 1988
Memorandum of the Secretary of Defense.
OTHER OFFENDERS OF THE LAW
1. Any person who shall unlawfully
manufacture, deal in, acquire, dispose or
possess:
a. Any low-powered firearm, part of
firearm, ammunition, or machinery, tool
or instrument used or intended to be
used in the manufacture of any firearm
or ammunition
b. Any high powered firearm and lesser
calibered firearms but considered
8
SPL NOTES
powerful such as rimfire handgun, .380
or .32 and other firearms with firing
capability of full automatic and by burst
of two or three
2. The owner, president, manager, director or
other responsible officer of any public or
private firm, company, corporation or entity,
who shall willfully or knowingly allow:
a. Any of the firearms owned by such
entities to be used by any person found
guilty of no. 1 above; or
b. The use of unlicensed firearms or
firearms without any legal authority to
be carried outside of residence in the
course of their employment.
3. Any person who shall carry any licensed
firearm outside his residence without legal
authority therefor.
4. Any person who shall unlawfully
manufacture, assemble, deal in, acquire,
dispose, or possess hand grenade, rifle
grenade, and other explosives or other
incendiary device capable of producing
destructive effect on contiguous objects for
causing injury or death to any person;
5. The owner, president, manager, director or
other responsible officer of any public or
private firm, company, corporation or entity
who shall willfully or knowingly allow any of
the explosives owned by such entities to be
used by any person found guilty of no. 4
above.
PRESUMPTIONS IN THE LAW
1. Presumption of illegal manufacture of
firearms or ammunition by mere possession
of any machinery, tool or instrument used
directly in the manufacture of firearms or
ammunition.
Presumption of unlawful manufacture of
explosives by mere possession of any
machinery, tool or instrument directly used in
the manufacture of explosives by any person
whose business or employment does not
lawfully deal with the manufacture of
explosives.C.A. NO. 142 - REGULATING THE
USE OF ALIASES as amended by R.A. NO.
6085
Sec. 1. Except as a pseudonym solely for
literary, cinema, television, radio or other
entertainment purposes and in athletic events
where the use of pseudonym is a normally
accepted practice, no person shall use any
name different from the one with which he was
registered at birth in the office of the local civil
registry, or with which he was baptized for the
Complied and Transcribed by STEPHANIE NARVAEZ
first time, or, in case of an alien, with which he
was registered in the bureau of immigration
upon entry; or such substitute name as may
have been authorized by a competent court:
Provided, That persons, whose births have not
been registered in any local civil registry and
who have not been baptized, have one year
from the approval of this act within which to
register their names in the civil registry of their
residence. The name shall comprise the
patronymic name and one or two surnames.
Sec. 2. Any person desiring to use an alias
shall apply for authority therefor in proceedings
like those legally provided to obtain judicial
authority for a change of name, and no person
shall be allowed to secure such judicial
authority for more than one alias. The petition
for an alias shall set forth the person's
baptismal and family name and the name
recorded in the civil registry, if different, his
immigrant's name, if an alien, and his
pseudonym, if he has such names other than
his original or real name, specifying the reason
or reasons for the use of the desired alias. The
judicial authority for the use of alias the
Christian name and the alien immigrant's name
shall be recorded in the proper local civil
registry, and no person shall use any name or
names other, than his original or real name
unless the same is or are duly recorded in the
proper local civil registry.
Sec. 3. No person having been baptized with a
name different from that with which he was
registered at birth in the local civil registry, or in
case of an alien, registered in the bureau of
immigration upon entry, or any person who
obtained judicial authority to use an alias, or
who uses a pseudonym, shall represent
himself in any public or private transaction or
shall sign or execute any public or private
document without stating or affixing his real or
original name and all names or aliases or
pseudonym he is or may have been authorized
to use.
Sec. 4. Six months from the approval of this
act and subject to the provisions of section 1
hereof, all persons who have used any name
and/or names and alias or aliases different
from those authorized in section one of this act
and duly recorded in the local civil registry,
shall be prohibited to use such other name or
names and/or alias or aliases.
9
SPL NOTES
Sec. 5. Any violation of this Act shall be
punished with imprisonment of from one year
to five years and a fine of P5,000 to P10,000.
Section 6. This Act shall take effect upon its
approval, and all Acts, rules or regulations of
laws inconsistent herewith are hereby repealed
CIVIL CODE PROVISIONS:
ART. 379. The employment of pen names or
stage names is permitted, provided it is done in
good faith and there is no injury to third
persons. Pen names and stage names cannot
be usurped.
ART. 380. Except as provided in the preceding
article, no person shall use different names
and surnames.
RATIONALE FOR LAW:
The enactment of CA 142 as amended was
made primarily to curb the practice among the
Chinese of adopting scores of different names
and aliases which created tremendous
confusion in the field of trade. Such a practice
almost bordered on the crime of using fictitious
names which for obvious reasons cannot be
successfully maintained against the Chinese
who rightly or wrongly claim they possessed a
thousand and one names. CA No 142 thus
penalized the act of using an alias unless the
use of such alias was duly authorized by
proper juridical proceedings and registered in
the civil register.
RULE OF CONSTRUCTION
CA NO 142 is a penal statute. It should be
construed strictly against the State and in favor
of the accused. The reason for this principle is
the tenderness of the law for the rights of the
individuals and the object is to establish a
certain rule by conformity by which mankind
would be safe and the discretion of the court
limited. One cannot rest easy on the
proposition that the petitioner should be
convicted on a law that does not clearly
penalize the act done by him. There exists a
valid
presumption
that
undesirable
consequences were never intended by a
legislative measure and that a construction for
which will avoid all objectionable, mischievous,
indefensible, wrongful, evil and injurious
consequences (Ursua vs. CA, April 10, 1996).
WHAT IS CONSIDERED AN ALIAS?
ALIAS- is a name or names used by a person
or intended to be used by him publicly and
Complied and Transcribed by STEPHANIE NARVAEZ
habitually usually in business transactions in
addition to his real name by which he is
registered at birth or baptized the first time or
substitute name authorized by a competent
authority.
A man’s NAME is simply the sound or
sounds by which he is commonly designated
by others and by which they distinguish him
but sometimes a man is known by several
different names and these are known as
aliases. Hence, the use of a fictitious name or
a different name belonging to a single person
in a single instance without any sign or
indication that the user intends to be known by
this name in addition to his real name from that
day forth does not fall within the prohibition
contained in CA 142.
Oscar Perez is not an alias name of
petitioner. There is no showing that he had
used or intends to use that name as his
second name or in addition to his real name.
The use of the name Oscar Perez was an
isolated transaction where he is not even
required to expose his real identity. For, even if
he had identified himself properly at the Office
of the Ombudsman, petitioner would still be
able to get a copy of the complaint as a matter
of right, and the Office of the Ombudsman
could not refuse him because the complaint
was part of the public record hence open to
inspection and examination by anyone under
the proper circumstances. (Id).
INSTANCES WHEN A SECOND NAME CAN
BE USED:
An individual can make use of a second
name without infringing upon the law in the
following instances:
1. 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;
2. When the use of the second name or alias
is judicially authorized and duly recorded in
the proper local civil registry;
3. The use of a fictitious name or a different
name belonging to a single person in a
single instance without any sign or
indication that the user intends to be known
by this name in addition to his real name
from that day forth.
P.D. NO. 1613 - AMENDING THE LAW ON
ARSON
10
SPL NOTES
WHEREAS, findings of the police and
intelligence agencies of the government reveal
that fires and other crimes involving destruction
in Metro Manila and other urban centers in the
country are being perpetrated by criminal
syndicates, some of which have foreign
connections;
WHEREAS, the current law on arson suffers
from certain inadequacies that impede the
successful enforcement and prosecution of
arsonists;
WHEREAS, it is imperative that the high
incidence of fires and other crimes involving
destruction be prevented to protect the national
economy and preserve the social, economic
and political stability of the country;
NOW, THEREFORE, I, FERDINAND E.
MARCOS, President of the Philippines, by
virtue of the powers vested in me by the
Constitution, do hereby order and decree as
part of the law of the land, the following:
Section 1. Arson. Any person who burns or
sets fire to the property of another shall be
punished by Prision Mayor.
The same penalty shall be imposed when a
person sets fire to his own property under
circumstances which expose to danger the life
or property of another.
Section 2. Destructive Arson. The penalty of
Reclusion Temporal in its maximum period to
Reclusion Perpetua shall be imposed if the
property burned is any of the following:
1. Any ammunition factory and other
establishment where explosives, inflammable
or combustible materials are stored.
2. Any archive, museum, whether public or
private, or any edifice devoted to culture,
education or social services.
3. Any church or place of worship or other
building where people usually assemble.
4. Any train, airplane or any aircraft, vessel or
watercraft, or conveyance for transportation of
persons or property
4. Any building where evidence is kept for use
in any legislative, judicial, administrative or
other official proceedings.
5. Any hospital, hotel, dormitory, lodging
house, housing tenement, shopping center,
public or private market, theater or movie
house or any similar place or building.
6. Any building, whether used as a dwelling or
not, situated in a populated or congested area.
Section 3. Other Cases of Arson. The penalty
of Reclusion Temporal to Reclusion Perpetua
shall be imposed if the property burned is any
of the following:
1. Any building used as offices of the
government or any of its agencies;
Complied and Transcribed by STEPHANIE NARVAEZ
2. Any inhabited house or dwelling;
3. Any industrial establishment, shipyard, oil
well or mine shaft, platform or tunnel;
4. Any plantation, farm, pastureland, growing
crop, grain field, orchard, bamboo grove or
forest;
4. Any rice mill, sugar mill, cane mill or mill
central; and
5. Any railway or bus station, airport, wharf or
warehouse.
Section 4. Special Aggravating Circumstances
in Arson. The penalty in any case of arson
shall be imposed in its maximum period;
1. If committed with intent to gain;
2. If committed for the benefit of another;
3. If the offender is motivated by spite or hatred
towards the owner or occupant of the property
burned;
4. If committed by a syndicate.
The offense is committed by a syndicate if its is
planned or carried out by a group of three (3)
or more persons.
Section 5. Where Death Results from Arson. If
by reason of or on the occasion of the arson
death results, the penalty of Reclusion
Perpetua to death shall be imposed.
Section 6. Prima Facie evidence of Arson. Any
of the following circumstances shall constitute
prima facie evidence of arson:
1. If the fire started simultaneously in more
than one part of the building or establishment.
2. If substantial amount of flammable
substances or materials are stored within the
building note necessary in the business of the
offender nor for household us.
3. If gasoline, kerosene, petroleum or other
flammable or combustible substances or
materials soaked therewith or containers
thereof, or any mechanical, electrical,
chemical, or electronic contrivance designed to
start a fire, or ashes or traces of any of the
foregoing are found in the ruins or premises of
the burned building or property.
4. If the building or property is insured for
substantially more than its actual value at the
time of the issuance of the policy.
4. If during the lifetime of the corresponding fire
insurance policy more than two fires have
occurred in the same or other premises owned
or under the control of the offender and/or
insured.
5. If shortly before the fire, a substantial portion
of the effects insured and stored in a building
or property had been withdrawn from the
premises except in the ordinary course of
business.
6. If a demand for money or other valuable
consideration was made before the fire in
11
SPL NOTES
exchange for the desistance of the offender or
for the safety of the person or property of the
victim.
Section 7. Conspiracy to commit Arson.
Conspiracy to commit arson shall be punished
by Prision Mayor in its minimum period.
Section 8. Confiscation of Object of Arson. The
building which is the object of arson including
the land on which it is situated shall be
confiscated and escheated to the State, unless
the owner thereof can prove that he has no
participation in nor knowledge of such arson
despite the exercise of due diligence on his
part.
Section 9. Repealing Clause. The provisions of
Articles 320 to 326-B of the Revised Penal
Code and all laws, executive orders, rules and
regulations, or parts thereof, inconsistent with
the provisions of this Decree are hereby
repealed or amended accordingly.
Section 10. Effectivity. This Decree shall take
effect immediately upon publication thereof at
least once in a newspaper of general
circulation.
Done in the City of Manila, this 7th day of
March, in the year of Our Lord, nineteen
hundred and seventy-nine.
DEFINITION, NATURE AND ELEMENTS
ARSON is the destruction of property by
means of fire or pyrotechnic materials. In
arson, the corpus delicti rule is generally
satisfied by proof of the bare occurrence of the
fire and of its having been intentionally caused.
Even if the whole house has not been
completely gutted by the fire, the crime is still
consummated arson. It is enough that a portion
thereof is shown to have been destroyed
(People vs. Gutierrez).
As long as fire or pyrotechnic is used to
destroy any property it is arson because the
original provision under Art. 323 of the RPC
which regarded burning of property less than
P25 as malicious mischief was expressly
repealed by PD 1613. This will also affect Art.
332 on exemption of certain relatives from
criminal liability for the crimes dealt therein are
theft, estate and malicious mischief. Therefore,
there is no exemption from criminal liability of
relatives for arson of property under P25.00.
*
Proof of corpus delicti is indispensable
in prosecutions for felonies and
offenses. CORPUS DELICTI is the
body or substance of the crime. It
refers to the fact that a crime has been
actually
committed.
CORPUS
Complied and Transcribed by STEPHANIE NARVAEZ
*
DELICTI is the fact of the commission
of the crime that may be proved by the
testimonies of witnesses. In murder,
the fact of death is the corpus delicti.
In arson, the corpus delicti rule is
generally satisfied by proof of the bare
occurrence of the fire and of its having
been intentionally caused, and the
uncorroborated testimony of a single
eyewitness, if credible, may be
enough to prove the corpus delicti and
to warrant conviction.
Under Art. 320 of the Code as well as
PD no. 1613, if a person impelled by a
single criminal impulse burned several
buildings, the crime is not distinct
arsons but one crime of destructive
arson akin to a continued crime on
delito continuado.
ELEMENTS OF ARSON UNDER SECTION 3
OF PD 1613 ARE:
1. There is intentional burning; and
2. What is intentionally burned is an inhabited
house or dwelling (People vs. Agguihao, GR
No. 104725, March 10, 1994).
*
*
Even if offender burned his own
property if the burning was made
under circumstances which exposed
the property or life of another to
danger, arson is committed (Section 1,
par. 2, PD No. 1613). Even if the
owners of properties burned are
different. There is only one crime of
arson.
If the information charges accused
with “violation of PD 1613” without
specifying the particular provision
breached, and the information failed to
allege whether the burnt house is
inhabited or not, and it has not been
established that the house is situated
in a populated or congested area, he
should be deemed to have been
charged only with plain arson under
Section 1 of the Decree. Kalookan
City might be a densely populated part
of the metropolis but its entire territory
cannot be said to be congested.
AGGRAVATING CIRCUMSTANCES
The special aggravating circumstance of
spite under section 4(3) of the decree, that the
offender have been motivated by spite or
hatred towards the owner or occupant of the
property, should not be appreciated where it
12
SPL NOTES
appears to be more of impulse, heat of anger
or risen temper rather than real spite or hatred
that impelled the accused to give vent to his
wounded ego.
PD 1613 pronounces as guilty of arson any
person who deliberately burns another
person’s property, wherever located. The
circumstance that the property burned is
located in an urban, congested or populated
area qualifies the offense and converts it into
“destructive arson” punishable under Sec. 2(7)
of the law, by reclusion temporal in its max to
reclusion perpetual. On the other hand, Sec.
4(4), the circumstance that the perpetrator of
the arson is a criminal syndicate serves as a
special aggravating circumstance.
P.D. NO. 1689 - INCREASING THE PENALTY
FOR CERTAIN FORMS OF SWINDLING OR
ESTAFA
WHEREAS, there is an upsurge in the
commission of swindling and other forms of
frauds in rural banks, cooperatives, "samahang
nayon (s)", and farmers' associations or
corporations/associations operating on funds
solicited from the general public;
WHEREAS,
such
defraudation
or
misappropriation of funds contributed by
stockholders or members of such rural banks,
cooperatives,
"samahang
nayon(s)",
or
farmers' associations, or of funds solicited by
corporations/associations from the general
public, erodes the confidence of the public in
the banking and cooperative system,
contravenes the public interest, and constitutes
economic sabotage that threatens the stability
of the nation;
WHEREAS, it is imperative that the resurgence
of said crimes be checked, or at least
minimized, by imposing capital punishment on
certain forms of swindling and other frauds
involving rural banks, cooperatives, "samahang
nayon(s)",
farmers'
associations
or
corporations/associations operating on funds
solicited from the general public;
NOW, THEREFORE, I, FERDINAND E.
MARCOS, President of the Philippines, by
virtue of the powers vested in me by the
Constitution, do hereby decree and order as
follows:
Section 1. Any person or persons who shall
commit estafa or other forms of swindling as
defined in Article 315 and 316 of the Revised
Penal Code, as amended, shall be punished
by life imprisonment to death if the swindling
(estafa) is committed by a syndicate consisting
of five or more persons formed with the
intention of carrying out the unlawful or illegal
Complied and Transcribed by STEPHANIE NARVAEZ
act, transaction, enterprise or scheme, and the
defraudation results in the misappropriation of
money contributed by stockholders, or
members of rural banks, cooperative,
"samahang nayon(s)", or farmers association,
or
of
funds
solicited
by
corporations/associations from the general
public.
When not committed by a syndicate as above
defined, the penalty imposable shall be
reclusion temporal to reclusion perpetua if the
amount of the fraud exceeds 100,000 pesos.
Section 2. This decree shall take effect
immediately.
DONE in the City of Manila, this 6th day of
April, in the year of Our Lord, nineteen hundred
and eighty.
CAPITAL PUNISHMENT ( life imprisonment to
death) FOR SYNDICATED ESTAFA;
RECLUSION TEMPORAL to PERPETUA if the
amount of the fraud exceeds P100,000.00.
“In the instant case, a syndicate perpetrated
the Ponzi scheme. The evidence shows that at
least five persons x x x collaborated,
confederated and mutually helped one another
in directing the foundation’s activities” (People
vs. Balasa, G.R. No. 106357, September 3,
1998).
ELEMENTS:
1. Commission of estafa or other forms of
swindling as defined in Article 315 and 316
of the Revised Penal Code, as amended;
2. by a syndicate consisting of five or more
persons formed with the intention of carrying
out the unlawful or illegal act, transaction,
enterprise or scheme, and the defraudation;
3. Which
results
in
the
defraudation/misappropriation of
a. funds contribute by members or
stockholders of:
i. Rural banks
ii. Cooperatives
iii.
“samahang nayons” or
iv.
Farmers’ associations; or
b. Funds
solicited
by
corporations/associations
from
the
general public.
TWO OTHER ‘INGREDIENTS’ (not really
elements of the crime):
13
SPL NOTES
1. Erodes
confidence of the public in the
banking
and
cooperative
system,
contravenes the public interest; and
2. Constitutes economic sabotage that
threatens the stability of the nation.
“ECONOMIC SABOTAGE; PREAMBLE OF
STATUTE:
The two other “ingredients” added by
appellants to constitute the cime of economic
sabotage under PD 1689 have been taken
from the “whereas” clause or preamble of the
law. A preamble is not exactly an essential part
of an act as it is an introductory or preparatory
clause that explains the reason for the
enactment, usually introduced by the word
“whereas.” x x x
Assuming arguendo that the preamble was
part of the statute, appellants’ contention that
they should not be held criminally liable
because it was not proven that their acts
constituted economic sabotage threatening the
stability of the nation remains too flimsy for
extensive discussion. As the preamble of PD
1689 shows, the act prohibited therein need
not necessarily threaten the stability of the
nation. It is sufficient that it “contravenes public
interest.” Public interest was affected by the
solicitation of deposits under a promise of
substantial profits, as it was people coming
from the lower income brackets who were
victimized by the illegal scheme (People vs.
Balasa,
G.R. No. 106357, September 3,
1998).
“FOUNDATION;
FITS
IN
SECOND
CATEGORY”
Similarly, the fact that the entity involved
was not a rural bank, cooperative, samahang
nayon or farmers’ association does not take
the case out of the coverage of PD 1689. Its
thrid “whereas clause” states that it also
applies to other “corporations/associations
operating on funds solicited from the general
public.” To construe the law otherwise would
sanction the proliferation of minor-league
schemers who opeate in the countryside. To
allow these crimes to go unabated could spell
disaster for people from the lower income
bracket, the primary target of swindlers
(People vs. Balasa,
G.R. No. 106357,
September 3, 1998).
“PONZI SCHEME” - is an investment program
that offers impossibly high returns and pays
these returns to early investors out of the
capital contributed by later investors. Named
after Charles Ponzi who promoted the scheme
Complied and Transcribed by STEPHANIE NARVAEZ
in the 1920’s, the original scheme involved the
issuance of bonds which offered 50% interest
in 45 days or a 100% profit if held for 90 days.
Basically, Ponzi used the money he received
from later investors to pay extravagant rates of
return to early investors, thereby inducing more
investors to place their money with him in the
false hope of realizing this same extravagant
rate of return themselves. This was the very
same scheme practiced by the Panata
Foundation (People vs. Balasa, G.R. No.
106357, September 3, 1998).B.P. 22 - AN
ACT PENALIZING THE MAKING OR
DRAWING AND ISSUANCE OF A CHECK
WITHOUT SUFFICIENT FUNDS OR CREDIT
AND FOR OTHER PURPOSES
and ESTAFA under Art. 315 No. 2(d), RPC
Section 1. Checks without sufficient funds. Any person who makes or draws and issues
any check to apply on account or for value,
knowing at the time of issue that he does not
have sufficient funds in or credit with the
drawee bank for the payment of such check in
full upon its presentment, which check is
subsequently dishonored by the drawee bank
for insufficiency of funds or credit or would
have been dishonored for the same reason
had not the drawer, without any valid reason,
ordered the bank to stop payment, shall be
punished by imprisonment of not less than
thirty days but not more than one (1) year or by
a fine of not less than but not more than double
the amount of the check which fine shall in no
case exceed Two Hundred Thousand Pesos,
or both such fine and imprisonment at the
discretion of the court.
The same penalty shall be imposed upon any
person who, having sufficient funds in or credit
with the drawee bank when he makes or draws
and issues a check, shall fail to keep sufficient
funds or to maintain a credit to cover the full
amount of the check if presented within a
period of ninety (90) days from the date
appearing thereon, for which reason it is
dishonored by the drawee bank.
Where the check is drawn by a corporation,
company or entity, the person or persons who
actually signed the check in behalf of such
drawer shall be liable under this Act.
Section 2. Evidence of knowledge of
insufficient funds. - The making, drawing and
issuance of a check payment of which is
refused by the drawee because of insufficient
funds in or credit with such bank, when
presented within ninety (90) days from the date
of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or
14
SPL NOTES
credit unless such maker or drawer pays the
holder thereof the amount due thereon, or
makes arrangements for payment in full by the
drawee of such check within (5) banking days
after receiving notice that such check has not
been paid by the drawee.
Section 3. Duty of drawee; rules of evidence. It shall be the duty of the drawee of any check,
when refusing to pay the same to the holder
thereof upon presentment, to cause to be
written, printed, or stamped in plain language
thereon, or attached thereto, the reason for
drawee's dishonor or refusal to pay the same:
Provided, That where there are no sufficient
funds in or credit with such drawee bank, such
fact shall always be explicitly stated in the
notice of dishonor or refusal. In all
prosecutions under this Act, the introduction in
evidence of any unpaid and dishonored check,
having the drawee's refusal to pay stamped or
written thereon or attached thereto, with the
reason therefor as aforesaid, shall be prima
facie evidence of the making or issuance of
said check, and the due presentment to the
drawee for payment and the dishonor thereof,
and that the same was properly dishonored for
the reason written, stamped or attached by the
drawee on such dishonored check.
Not with standing receipt of an order to stop
payment, the drawee shall state in the notice
that there were no sufficient funds in or credit
with such bank for the payment in full of such
check, if such be the fact.
Section 4. Credit construed. - The word "credit"
as used herein shall be construed to mean an
arrangement or understanding with the bank
for the payment of such check.
Section 5. Liability under the Revised Penal
Code. - Prosecution under this Act shall be
without prejudice to any liability for violation of
any provision of the Revised Penal Code.
Section 6. Separability clause. - If any
separable provision of this Act be declared
unconstitutional, the remaining provisions shall
continue to be in force.
Section 7. Effectivity. - This Act shall take
effect fifteen days after publication in the
Official Gazette.
Approved: April 3, 1979.
ART. 315 NO. 2(d), RPC:
ELEMENTS:
1. That the offender postdated a check, OR
issued a check in payment of an obligation
2. That such postdating or issuing a check was
done when the offender had no funds in the
bank, or his funds deposited therein were
Complied and Transcribed by STEPHANIE NARVAEZ
not sufficient to cover the amount of the
check.
*
*
*
*
*
*
The issuance by the offender of
the check (whether postdated
or not), prior to or simultaneous
with the transaction, must be
for the purpose of contracting
the obligation, otherwise if the
check is issued in payment of a
preexisting obligation no estafa
is committed, only a civil
obligation
NOTE: defraudation must be
prior to, or simultaneous with,
the transaction.
If the check was issued by the
debtor only for security of the
creditor, as in the nature of
promissory notes but not to be
encashed, no estafa will be
involved
Good faith is a defense in a
charge of estafa by postdating
or issuing a check (People v.
Villapando)
Estafa by issuing a bad check
is a continuing offense
There is a prima facie evidence
of deceit when the drawer fails
to pay or make arrangement for
payment three days after
receiving notice of dishonor
BOUNCING CHECKS LAW (BP 22)
OFFENSES PUNISHED:
A.
Making or Drawing and issuing a
check knowing at the time of issue that he
does not have sufficient funds.
ELEMENTS:
1. That a person makes or draws and issues
any check to apply on account or for value
2. That the person knows that at the time of
issue he does not have sufficient funds or
credit with the drawee bank for the payment
of such check upon its presentment
3. That the check is subsequently dishonored
by the drawee bank for insufficiency of
funds or credit, or would have been
dishonored for the same reason had not the
drawer, without any valid reason, ordered
the bank to stop payment.
REQUISITES FOR
UNDER BP 22:
CRIMINAL
LIABILITY
15
SPL NOTES
1. A
person makes, draws, or issues a check
as payment for account or for value.
2. That the check was dishonored by the bank
due to a lack of funds, insufficiency of funds
or account already closed.
3. The payee or holder of such check gives a
written notice of dishonor and demand for
payment.
4. That the maker, drawer or issuer, after
receiving such notice and demand, refuses
or fails to pay the value of the check within
FIVE BANKING DAYS
*
it is not the making, drawing or
issuance, nor the dishonor of
the check which gives rise to a
violation of BP 22, but rather
the failure to make good the
check within FIVE BANKING
DAYS from receipt of the
NOTICE OF DISHONOR AND
DEMAND FOR PAYMENT.
NOTE: While the written notice of dishonor and
demand is not an element in the violation of BP
22, the failure to give such notice to the maker,
drawer or issuer of the bouncing check is
FATAL to an action to hold the latter criminally
liable.
The full payment of the amount appearing in
the check within FIVE BANKING DAYS from
notice of dishonor is a “complete defense”
against BP 22. The absence of a notice of
dishonor necessarily deprives an accused an
opportunity to preclude criminal prosecution.
Accordingly, procedural due process clearly
enjoins that a notice of dishonor be actually
served on the maker, drawer, or issuer of the
check. He has a right to demand that the
notice of dishonor be actually sent to and
received by him to afford him the opportunity to
avert prosecution under BP 22 (Lina Lim Lao
vs. People, GR No. 119178, June 20, 1997).
B.
Failing to keep sufficient funds to
cover the full amount of the check.
ELEMENTS:
1. That a person has sufficient funds with the
drawee bank when he makes or draws and
issues a check
2. That he fails to keep sufficient funds or to
maintain a credit to cover the full amount if
presented within a period of 90 days from
the date of appearing thereon
Complied and Transcribed by STEPHANIE NARVAEZ
3. That the check is dishonored by the drawee
bank
NOTE: the 90 day period stated above is NOT
an element of the violation of BP 22 by failing
to keep sufficient funds. As such, the maker,
drawer or issuer of the check is not discharged
from his duty to maintain a sufficient balance in
his account for a reasonable time even beyond
the 90 day period. A “reasonable time”
according to current banking practice is 6
months or 180 days, after which the check
becomes stale.
Thus, where a check is presented beyond the
90-day period, but within 180 days from the
date indicated therein, and it is dishonored due
to a failure to maintain a sufficient balance, the
maker, drawer or issuer shall still be liable for
violation of BP 22 (Wong v. CA, GR No.
117857, February 2, 2001).
Gravamen of BP 22 is the issuance of a
worthless or bum check.
EVIDENCE
OF
KNOWLEDGE
OF
INSUFFICIENT FUNDS:
*
Refusal of drawee bank to pay
the check due to insufficiency
of funds when presented within
90 days from the date of the
check shall be prima facie
knowledge of insufficiency of
funds, unless the drawer or
maker pays the holder the
amount due thereon or makes
arrangements for the payment
thereof by the drawee within
five (5) banking days after
receipt of notice that the check
was dishonored.
UNDER SC ADMINISTRATIVE CIRCULAR
12-2000, AS CLARIFIED BY A.C. 13-2001:
Where the circumstances of both the offense
and the offender clearly indicated good faith or
a clear mistake of fact without taint of
intelligence, the imposition of fine alone should
be considered as the more appropriate
penalty.
The administrative circular merely lays down a
RULE OF PREFERENCE in the application of
the penalties provided for in BP 22. The
circular does not delete the penalty of
imprisonment, for should the judge decide that
imprisonment is the more appropriate penalty,
the circular ought not to be a hindrance.
16
SPL NOTES
* Prosecution
under BP 22 shall be
without prejudice toa ny liability for
any violation in the RPC.
* The fine under BP 22 is based on
the amount of the check and is
without regard to the amount of
damage caused.
* The accused will be liable for the
dishonor of the check even if it was
issued in payment of a preexisting
legal obligation as he issued that
check “to apply on account.”
SOME IMPORTANT
TO CONSIDER:
POINTS/PRINCIPLES
1. JURISDICTION OVER THE OFFENSE:
Estafa and violation of the Bouncing Checks
Law are 2 different offenses having different
elements and necessarily, for a court to
acquire jurisdiction each of the essential
ingredients of each crime has to be satisfied. In
estafa, deceit and damage are essential
elements of the offense. For violation of the
Bouncing Checks Law, on the other hand, the
elements of deceit and damage are neither
essential nor required. Hence, it is incorrect for
respondent People to conclude that inasmuch
as the RTC of Manila acquired jurisdiction over
the estafa case, then it also acquired
jurisdiction over the violations of BP 22. The
two crimes have to be treated as SEPARATE
OFFENSES and therefore, the essential
ingredients of each have to be satisfied. (Uy
vs. CA, GR No. 119000, July 28, 1997).
2. RULE
111, Section 1(b) on Prosecution of
Civil Action, Rules of Criminal Procedure
“The criminal action for violation of BP Blg.
22 shall be deemed to include the
corresponding civil action. No reservation to
file such civil action separately shall be
allowed.
3. Prosecution
for violations of BP 22 are
covered under the REVISED RULES OF
SUMMARY PROCEDURE.
DEFENSES AGAINST BP 22:
1. The check was not issued to apply to an
account or for value but as a guarantee
deposit (Magno vs.CA).
2. The required notice of dishonor had not
been given. The drawer should be given
Complied and Transcribed by STEPHANIE NARVAEZ
notice of dishonor to give him the
opportunity to make good the value of the
check within 5 banking days. Under the
RPC, for purposes of estafa, the notice
should be given within 3 days.
3. The dishonor of the check was not due to
the insufficiency of funds.
4. The check was presented for payment
beyond
90
(destroys
prima
facie
presumption) or 180 (stale check) days from
maturity thereof.
5. Valid cause to stop payment such as the
right of installment of buyer under the law
(PD no. 957 - buyer’s right to suspend
payment until such time as the owner or
developer had fulfilled its obligations to the
buyer).
6. Complainant was informed by the issuer
beforehand that the account had been
closed.
“Petitioner openly disclosed that they
no longer had funds in the bank then,
knowledge by the complainant that the drawer
does not have sufficient funds in the bank at
the time the check was issued does not give
rise to a case of estafa through bouncing
checks (Pacheco vs. CA).RA 9262 - AN ACT
DEFINING VIOLENCE AGAINST WOMEN
AND THEIR CHILDREN, PROVIDING FOR
PROTECTIVE MEASURES FOR VICTIMS,
PRESCRIBING PENALTIES THEREFORE,
AND FOR OTHER PUPOSES (Approved:
March 8, 2004)
DEFINITION OF TERMS (Section 3)
A. Violence against women and their
childre - any act or a series of acts
committed by any person against a
woman who is his:
1. Wife;
2. Former wife; or
3. Against a woman with whom the person has
or had a sexual or dating relationship; or
4. 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 act, battery,
assault, coercion, harassment or arbitrary
deprivation of liberty.
* Rustan argues that the one act of sending
an offensive picture should not be considered
a form of harassment. He claims that such
17
SPL NOTES
would unduly ruin him personally and set a
very dangerous precedent. But Section 3(a) of
RA 9262 punishes “any act or series of acts”
that constitute/s violence against women. This
means that a single act of harassment, which
translates into violence, would be enough. The
object of the law is to protect women and
children. Punishing only violence that is
repeatedly committed would license isolated
ones (Rustan Ang vs. CA).
B. Sexual
Violence - includes, but is not
limited to:
Rape,
sexual
harassment,
acts
of
lasciviousness, treating a woman or:
1. Her child as a sex object, making
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;
2. 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;
3. Prostituting the woman or child.
D.Economic
abuse - 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
spous/partner objects on valid serious and
moral grounds as defined in Article 73 of the
Family Code;
2. Deprivation or threat of deprivation of the
use of financial resources and the right to
use and enjoyment of property owned in
common;
3. Destroying household property;
4. Controlling the victim’s own money or
properties or solely controlling the conjugal
money or properties.
E. Physical
abuse -refers to acts that
include bodily or physical harm
F. Dating
Relationship - situation wherein
the parties live as husband and wife
without the benefit of marriage or are
romantically involved over time and on a
continuing basis during the course of the
relationship. A casual acquiantance or
ordinary socialization between two
individuals in a business or social context
is not a dating relationship.
C.Psychological
violence - acts or
omissions causing or likely to cause
mental or emotional suffering of the
victim such as but not limited to:
1. Intimidation;
2. Harassment;
3. Stalking;
4. Damage to property;
5. Public ridicule or humiliation;
6. Repeated verbal abuse;
7. Mental infidelity;
8. 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
9. To witness pornography in any form;
10.
To witness abusive injury to pets; or
11.
Unlawful or unwanted deprivation of
the right to custody and/or visitation of
common children.
Complied and Transcribed by STEPHANIE NARVAEZ
*
An “away-bati” or a fight-and-kiss thing
between two lovers is a common
occurrence. Their taking place does
not
mean
that
the
romantic
relationship between the two should
be deemed broken up during periods
of misunderstandings (Rustan Ang vs.
CA).
G.
Sexual relations - refers to a single
sexual act which may or may not result in
the bearing of a common child.
H.Children
- refers to those below 18
years of age or older but are incapable of
taking care of themselves as defined
under RA 7610. Under this Act, it
includes the biological children of the
victim and other children under her care.
I.
Battered Woman Syndrome - refers to
a scientifically defined pattern of
18
SPL NOTES
psychological and behavioral symptoms
found in women living in battering
relationships as a result of cumulative
abuse.
Acts Punishable (Section 5)
The crime of violence against women and their
children is committed through any of the
following acts:
(a) Causing physical harm to the woman
or her child;
(b) Threatening to cause the woman or
her child physical harm;
(c)Attempting to cause the woman or her
child physical harm;
(d) Placing the woman or her child in fear
of imminent physical harm;
(e) Attempting to compel or compelling
the woman or her child to engage in
conduct which the woman or her child
has the right to desist from or desist
from conduct which the woman or her
child has the right to engage in, or
attempting to restrict or restricting the
woman's or her child's freedom of
movement or conduct by force or threat
of force, physical or other harm or threat
of physical or other harm, or intimidation
directed against the woman or child.
This shall include, but not limited to, the
following acts committed with the purpose or
effect of controlling or restricting the woman's
or her child's movement or conduct:
(1)
Threatening to deprive or
actually depriving the woman or
her child of custody to her/his
family;
(2)
Depriving or threatening to
deprive the woman or her
children of financial support
legally due her or her family, or
deliberately
providing
the
woman's children insufficient
financial support;
(3)
Depriving or threatening to
deprive the woman or her child
of a legal right;
(4)
Preventing
the
woman
in
engaging in any legitimate
profession, occupation, business
or activity or controlling the
victim's
own
mon4ey
or
properties, or solely controlling
the conjugal or common money,
or properties;
Complied and Transcribed by STEPHANIE NARVAEZ
(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:
(1)
Stalking or following the
woman or her child in
public or private places;
(2)
Peering in the window or
lingering
outside
the
residence of the woman
or her child;
(3)
Entering or remaining in
the dwelling or on the
property of the woman or
her child against her/his
will;
(4)
Destroying the property
and personal belongings
or inflicting harm to
animals or pets of the
woman or her child; and
(5)
Engaging in any form of
harassment or violence;
(i)Causing mental or emotional anguish,
public ridicule or humiliation to the
woman or her child, including, but not
limited to, repeated verbal and emotional
abuse, and denial of financial support or
custody of minor children of access to
the woman's child/children.
Venue for action (Section 7)
The RTC designated as a Family Court shall
have original and exclusive jurisdiction over
cases of violence against women and their
children under this law.
In the absence of such court in the place
where the offense was committed, the case
shall be filed in the RTC where the crime or
any of its elements was committed at the
option of the compliant.
Protection order (Section 8)
19
SPL NOTES
- an order issued under this act for the purpose
of preventing further acts of violence against a
woman or her child specified in Section 5 of
this Act and granting other necessary relief.
- The relief granted under a protection order
serve the purpose of safeguarding the victim
from further harm, minimizing any disruption
in the victim's daily life, and facilitating the
opportunity and ability of the victim to
independently regain control over her life.
- The law helps the woman to “move
on”
- The provisions of the protection order shall be
enforced by law enforcement agencies.
- The protection orders that may be issued
under this Act are:
- the barangay protection order
(BPO);
- temporary protection order (TPO);
and
- permanent protection order (PPO)
- All TPOs and PPOs issued under this Act
shall be enforceable anywhere in the
Philippines and a violation thereof shall be
punishable with a fine ranging from Five
Thousand Pesos (P5,000.00) to Fifty
Thousand Pesos (P50,000.00) and/or
imprisonment of six (6) months (section 12).
- A complaint for a violation of a BPO issued
under this Act must be filed directly with any
municipal trial court, metropolitan trial court,
or municipal circuit trial court that has
territorial jurisdiction over the barangay that
issued the BPO. Violation of a BPO shall be
punishable by imprisonment of thirty (30)
days without prejudice to any other criminal
or civil action that the offended party may file
for any of the acts committed.
- A judgement of violation of a BPO ma be
appealed according to the Rules of Court.
During trial and upon judgment, the trial court
may motu proprio issue a protection order as
it deems necessary without need of an
application.
- Violation of any provision of a TPO or PPO
issued under this Act shall constitute
contempt of court punishable under Rule 71
of the Rules of Court, without prejudice to any
other criminal or civil action that the offended
party may file for any of the acts committed.
(section 21)
Complied and Transcribed by STEPHANIE NARVAEZ
Other reliefs granted through a protection
order:
(a) Prohibition of the respondent from
threatening to commit or committing,
personally or through another, any of the acts
mentioned in Section;
(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
*
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
20
SPL NOTES
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 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.
Who may file petition for protection orders
(Section 9):
(a) the offended party;
Complied and Transcribed by STEPHANIE NARVAEZ
(b) parents or guardians of the offended party;
(c) ascendants, descendants or collateral
relatives within the fourth civil degree of
consanguinity or affinity;
(d) officers or social workers of the DSWD or
social workers of local government units
(LGUs);
(e) police officers, preferably those in charge of
women and children's desks;
(f) Punong Barangay or Barangay Kagawad;
(g) lawyer, counselor, therapist or healthcare
provider of the petitioner;
(h) At least two (2) concerned responsible
citizens of the city or municipality where the
violence against women and their children
occurred and who has personal knowledge of
the offense committed.
Under Section 11 (How to file PO):
If the applicants is not the victim, the
application must be accompanied by an
affidavit of the applicant attesting to:
(a)
the circumstances of the
abuse suffered by the victim; and
(b)
the
circumstances
of
consent given by the victim for the
filling of the application.
When disclosure of the address of the victim
will pose danger to her life, it shall be so stated
in the application. In such a case, the applicant
shall:
1. Attest that the victim is residing in the
municipality or city over which court has
territorial jurisdiction; and
2. shall provide a mailing address for purpose
of service processing.
- An application for protection order filed with a
court shall be considered an application for
both a TPO and PPO.
- Barangay officials and court personnel shall
assist applicants in the preparation of the
application.
- Law enforcement agents shall also extend
assistance in the application for protection
orders in cases brought to their attention.
Venue for protection order (section 10)
1. Applications for BPOs - follow the rules on
venue under Section 409 of the Local
Government Code of 1991 and its
implementing rules and regulations;
♥ SEC. 409, LGC:
21
SPL NOTES
(a)
Disputes between persons
actually residing in the same
barangay shall be brought for
amicable settlement before the
lupon of said barangay;
(b)
Those
involving
actual
residents of different barangays
within the same city or municipality
shall be brought in the barangay
where the respondent or any of the
respondents actually resides, at the
election of the complaint;
(c)All disputes involving real property
or any interest therein shall be
brought in the barangay where the
real property or the larger portion
thereof is situated;
(d)
Those
arising
at
the
workplace where the contending
parties are employed or at the
institution where such parties are
enrolled for study, shall be brought
in the barangay where such
workplace or institution is located.
Objections to venue shall be raised in the
mediation proceedings before the punong
barangay; otherwise, the same shall be
deemed waived. Any legal question which may
confront the punong barangay in resolving
objections to venue herein referred to may be
submitted to the Secretary of Justice, or his
duly designated representative, whose ruling
thereon shall be binding.
2. Application for a TPO or PPO; Where:
GENERAL RULE: TPO and PPO are filed in
the family court at the place of residence of the
petitioner.
EXCEPTION: In the absence of a family court,
with the regional trial court, metropolitan trial
court, municipal trial court, municipal circuit
trial court with territorial jurisdiction over the
place of residence of the petitioner
KINDS OF PROTECTION ORDERS (sections
14, 15 and 16):
1.Barangay Protection Orders (BPOs):
- Refer to the protection order issued by the
Punong Barangay ordering the perpetrator to
desist from committing acts under Section 5
(a) and (b) of this Act.
-A
Punong
Barangay
who
receives
applications for a BPO shall issue the
protection order to the applicant on the date
of filing after ex parte determination of the
basis of the application.
Complied and Transcribed by STEPHANIE NARVAEZ
- If the Punong Barangay is unavailable to act
on the application for a BPO, the application
shall be acted upon by any available
Barangay Kagawad. If the BPO is issued by a
Barangay Kagawad the order must be
accompanied by an attestation by the
Barangay Kagawad that the Punong
Barangay was unavailable at the time for the
issuance of the BPO.
- BPOs shall be effective for fifteen (15) days.
- Immediately after the issuance of an ex parte
BPO, the Punong Barangay or Barangay
Kagawad shall personally serve a copy of the
same on the respondent, or direct any
barangay official to effect is personal service.
- The parties may be accompanied by a nonlawyer advocate in any proceeding before the
Punong Barangay.
2.Temporary Protection Orders (TPOs):
- Refers to the protection order issued by the
court on the date of filing of the application
after ex parte determination that such order
should be issued.
- A court may grant in a TPO any, some or all
of the reliefs mentioned in this Act and shall
be effective for thirty (30) days.
- The court shall schedule a hearing on the
issuance of a PPO prior to or on the date of
the expiration of the TPO.
- The court shall order the immediate personal
service of the TPO on the respondent by the
court sheriff who may obtain the assistance of
law enforcement agents for the service.
- The TPO shall include notice of the date of
the hearing on the merits of the issuance of a
PPO.
3.Permanent Protection Order (PPO):
- Refers to protection order issued by the court
after notice and hearing.
- Respondents
non-appearance
despite proper notice, or his lack of
a lawyer, or the non-availability of
his lawyer shall NOT be a ground for
rescheduling or postponing the
hearing on the merits of the
issuance of a PPO.
- If despite due notice respondent fails
to appear - court shall allow ex parte
presentation of evidence by the
applicant and render judgment on
the basis of the evidence presented.
The court shall allow the introduction
of any history of abusive conduct of
a respondent even if the same was
not directed against the applicant or
22
SPL NOTES
the person for whom the applicant is
made.
- If depsite due notice respondent
appears without counsel - court shall
appoint a lawyer for the respondent
and immediately proceed with the
hearing.
GENERAL RULE: The court shall, to the extent
possible, conduct the hearing on the merits of
the issuance of a PPO in one (1) day.
EXCEPTION: Where the court is unable to
conduct the hearing within one (1) day and the
TPO issued is due to expire, the court shall
continuously extend or renew the TPO for a
period of thirty (30) days at each particular time
until final judgment is issued. The extended or
renewed TPO may be modified by the court as
may be necessary or applicable to address the
needs of the applicant.
- The court may grant any, some or all of the
reliefs specified in Section 8 hereof in a PPO.
- A PPO shall be effective until revoked by a
court upon application of the person in whose
favor the order was issued. The court shall
ensure immediate personal service of the
PPO on respondent.
- The court shall not deny the issuance of
protection order on the basis of the lapse of
time between the act of violence and the filing
of the application.
- Regardless of the conviction or acquittal of
the respondent, the Court must determine
whether or not the PPO shall become final.
- Even in a dismissal, a PPO shall be granted
as long as there is no clear showing that the
act from which the order might arise did not
exist.
* The issuance of a BPO or the
pendency of an application
for BPO shall not preclude a
petitioner from applying for,
or the court from, granting a
TPO or PPO.
* An application for protection
order filed with a court shall
be considered an application
for both TPO and PPO.
Prescriptive periods (section 24)
Acts falling under Sections 5(a) to 5(f) shall
prescribe in twenty (20) years. Acts falling
under Sections 5(g) to 5(I) shall prescribe in
ten (10) years.
Complied and Transcribed by STEPHANIE NARVAEZ
SOME FEATURES OF THE VAWC LAW:
1. Prohibited Defense. –
Being under the influence of alcohol, any illicit
drug, or any other mind-altering substance
shall not be a defense under this Act (section
27).
2. Custody of children. –
The woman victim of violence shall be entitled
to the custody and support of her
child/children. Children below seven (7) years
old older but with mental or physical disabilities
shall automatically be given to the mother, with
right to support, unless the court finds
compelling reasons to order otherwise.
A victim who is suffering from battered
woman syndrome shall not be disqualified from
having custody of her children. In no case shall
custody of minor children be given to the
perpetrator of a woman who is suffering from
Battered woman syndrome.(section 28)
3. Persons
Intervening
Exempt
from
Liability. –
In every case of violence against women and
their children as herein defined, any person,
private individual or police authority or
barangay official who, acting in accordance
with law, responds or intervenes without using
violence or restraint greater than necessary to
ensure the safety of the victim, shall not be
liable for any criminal, civil or administrative
liability resulting therefrom (section 34).
4. Exemption from Payment of Docket Fee
and Other Expenses. –
If the victim is:
(a)
an indigent;
(b)
or there is an immediate
necessity due to imminent danger or
threat of danger to act on an
application for a protection order,
the court shall accept the application without
payment of the filing fee and other fees and of
transcript of stenographic notes.(section 38)
5. Battered Woman Syndrome as a
Defense. – Victim-survivors who are found
by the courts to be suffering from battered
woman syndrome do not incur any criminal
and civil liability notwithstanding the
absence of any of the elements for justifying
circumstances of self-defense under the
Revised Penal Code.
In the determination of the state of mind of
the woman who was suffering from battered
woman syndrome at the time of the
23
SPL NOTES
commission of the crime, the courts shall be
assisted by expert psychiatrists/ psychologists
(section 26).
“Battered Woman” - one who is repeatedly
subjected to any forceful physical or
psychological behavior by a man in order to
coerce her to do something he wants her to do,
without concern for her rights. Battered women
include wives or women in any form of intimate
relationship with men. Furthermore, in order to
be classified as a battered woman, the couple
must go through the battering cycle at least
twice. Any woman may find herself in an
abusive relationship with a man once. If it
occurs a second time, and she remains in the
situation, she is defined as a battered woman.
(People of the Philippines V. Marivic Genosa
G.R. No. 135981, 15 January 2004).
“Acute battering must precede the killing”
*The existence of the syndrome in a
relationship does not in itself establish the legal
right of the woman to kill her abusive partner.
Evidence must still be considered in the
context of self-defense. Crucial to the BWS
defense is the state of mind of the battered
woman at the time of the offense— she must
have actually feared imminent harm from her
batterer and honestly believed in the need to
kill him in order to save her life. X x x Unlawful
aggression is the most essential element of
self-defense. It presupposes actual, sudden
and unexpected attack—or an imminent
danger thereof—on the life or safety of a
person. In the present case, however,
according to the testimony of Marivic herself,
there was a sufficient time interval between the
unlawful aggression of Ben and her fatal attack
upon him. She had already been able to
withdraw from his violent behavior and escape
to their children’s bedroom. During that time,
he apparently ceased his attack and went to
bed. The reality or even the imminence of the
danger he posed had ended altogether. He
was no longer in a position that presented an
actual threat on her life or safety. X x x The
aggression if not continuous, does not warrant
self-defense. In the absence of such
aggression, there can be no self-defense—
complete or incomplete—on the part of the
victim. Thus, Marivic’s killing of Ben was not
completely justified under the circumstances.
(People of the Philippines V. Marivic Genosa
G.R. No. 135981, 15 January 2004)
“Cycle of Violence”; three phases:
(1) The Tension-building Phase
Complied and Transcribed by STEPHANIE NARVAEZ
- minor battering occurs, either verbal or
physical or other form of hostile behavior. The
woman usually tries to pacify the batterer
through a show of kind, nurturing behavior; or
by simply staying out of his way.
- What actually happens is that she allows
herself to be abused in ways that to her, are
comparatively minor. All she wants is to
prevent the escalation of the violence
exhibited by the batterer. This wish however
proves to be double-edged, because her
“placatory” and passive behavior legitimizes
his belief that he has the right to abuse her in
the first place.
- However, the techniques adopted by the
woman in her effort to placate him are not
usually successful, and the verbal and/or
physical abuse worsens. Each partner
senses the imminent loss of control and the
growing tension and despair. Exhausted from
the persistent stress, the battered woman
soon withdraws emotionally. But the more
she becomes emotionally unavailable, the
more the batterer becomes angry, oppressive
and abusive. Often, at some unpredictable
point, the violence “spirals out of control” and
leads to an acute battering incident.
(2) The Acute Battering Incident
- Characterized by brutality, destructiveness
and sometimes, death. The battered woman
deems this incident as unpredictable, yet also
inevitable.
- During this phase, she has no control; only
the batterer may put an end to the violence.
Its nature can be as unpredictable as the time
of its explosion, and so are his reasons for
ending it.
- The battered woman usually realizes that she
cannot reason with him, and that resistance
would only exacerbate her condition.
- At this stage, she has a sense of detachment
from the attack and the terrible pain, although
she may later clearly remember every detail.
Her apparent passivity in the face of acute
violence may be rationalized thus: the
batterer is almost always much stronger
physically, and she knows from her past
painful experience that it is futile to fight back.
Acute battering incidents are often very
savage and out of control, such that innocent
bystanders or intervenors are likely to get
hurt.
(3) The Tranquil,
nonviolent) Phase
Loving
(or,
at
least,
24
SPL NOTES
- The final phase of the cycle of violence
begins when the acute battering incident
ends. During this tranquil period, the couple
experience profound relief. On the one hand,
the batterer may show a tender and nurturing
behavior towards his partner. He knows that
he has been viciously cruel and tries to make
up for it, begging for her forgiveness and
promising never to beat her again. On the
other hand, the battered woman also tries to
convince herself that the battery will never
happen again; that her partner will change for
the better; and that this “good, gentle and
caring man” is the real person whom she
loves.
- A battered woman usually believes that she is
the sole anchor of the emotional stability of
the batterer. Sensing his isolation and
despair, she feels responsible for his wellbeing. 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.
Complied and Transcribed by STEPHANIE NARVAEZ
25