BAR 2017 LAST MINUTE FORESIGHT
IN
SPECIAL PENAL LAWS
By
DEAN GEMY LITO L. FESTIN
PUP COLLEGE OF LAW
_____________________________________________________
1.00 WHAT IS A SPECIAL PENAL LAW?
It is a penal law which punishes acts
not defined and penalized by the Penal
Code. U.S. vs. Serapio, 23 Phil. 584
1.01 IS THE REVISED PENAL CODE
APPLICABLE IN SPECIAL LAWS?
Article 10 of the Revised Penal Code
provides:
“Offenses which are or in the future
may be punishable under special laws are
not subject to the provisions of this Code.
This Code shall be supplementary
to such laws, unless the latter should
specially provide the contrary.”
The first sentence provides for the
general rule. Special laws are not subject to
the provisions of the Revised Penal Code.
Hence, the provisions on stages of execution
under Article 6, degree of participation of
persons who are criminally liable under Title
Two and the appreciation of the modifying
circumstances in the proper imposition of
penalties are not applicable, as a rule, to
special penal laws. Consequently, in Noble vs.
People, 77 Phil. 1086, plea of guilt as a
mitigating circumstance is not available to
offenses punishable under special laws.
The second sentence refers to the
suppletory effect of the Revised Penal Code
to special laws, unless the latter should
specially provide the contrary. In People vs.
Ladonga, G.R. No. 141066, February 17, 2005,
the Supreme Court applied the principle of
conspiracy provided under Article 6 of the
Revised Penal Code in suppletory character
to violation of B.P. 22 case. In Tan vs. Spouses
Tan, G.R. No. G.R. No. 168852, September 30,
2008, in a case involving Violence Against
Women and Children or R.A. 9262, the
principle of conspiracy was again applied
suppletorily.
However, when the penalties under
the special law are different from and are
without reference or relation to those under
the Revised Penal Code, there can be no
suppletory effect of the rules, for the
application of penalties under the Code or by
other relevant statutory provisions are
based on or applicable only to said rules for
felonies under the Code. People vs. Simon, 234
SCRA 576
1.02 DIFFERENTIATE CRIMES PUNISHED
UNDER THE REVISED PENAL CODE
FROM CRIMES PUNISHED UNDER
THE SPECIAL PENAL LAW.
a. In crimes punished under the
Revised Penal Code, they are
generally regarded as mala in se,
the act committed in inherently
wrong or immoral; under a
special penal law, crimes are
regarded as mala prohibita or
the act is merely prohibited by
law;
*Exception:
Plunder is malum in se.
Estrada vs. Sandiganbayan, G.R. No.
148560. November 19, 2001.
In the decision, the Supreme Court
ruled: “The legislative declaration in R.A. No.
7659 that plunder is a heinous offense implies
that it is a malum in se. For when the acts
punished are inherently immoral or inherently
wrong, they are mala in se and it does not
matter that such acts are punished in a special
law, especially since in the case of plunder the
predicate crimes are mainly mala in se.
Indeed, it would be absurd to treat
prosecutions for plunder as though they are
mere prosecutions for violations of the
Bouncing Check Law (B.P. Blg. 22) or of an
ordinance against jaywalking, without regard
to the inherent wrongness of the acts.”
b. In crimes under the Revised Penal
Code, good faith is a proper
defense; in a special penal law,
good faith is not a defense;
*Exception:
1
Plunder being malum in se, criminal
intent is required. The elements of mens rea
must be proven in a prosecution for plunder.
Estrada vs. Sandiganbayan, G.R. No. 148560.
November 19, 2001.
c. Under the Revised Penal Code, the
stages of execution under Article 6 of
the Revised Penal Code is considered
in arriving at the proper penalty to be
imposed; in a special penal laws,
they are not;
d. Under the Revised Penal Code , the
degree of participation of the
offenders under Title Two of the
Revised Penal Code is taken into
consideration on the penalty
imposable; in a special penal law, it is
not;
*Exceptions:
1. Under Sections 4 and 5 of the
Human Security Act of 2007, there may be
accomplices and accessories.
2. Likewise, under Section 13 of or
R.A. 7610 or the Anti-Torture Act, there may
be principals and accessories.
3. Under Section 2 of R.A. 7080, or
otherwise known as the Anti-Plunder Law, as
amended by Section 12 of R.A. 7659, it
provides that in the imposition of penalties,
the degree of participation as provided
under the Revised Penal Code, shall be
considered by the Court.
e. Under the Revised Penal Code, the
modifying
circumstances
are
appreciated in determining the
penalty imposable; in a special
penal law, they are not;
*Exception:
Under Section 2 of R.A. 7080, or
otherwise known as the Anti-Plunder Law,
as amended by Section 12 of R.A. 7659, it
provides that in the imposition of penalties,
the attendance of mitigating and
extenuating circumstances as provided by
the Revised Penal Code, shall be considered
by the Court.
f. The Revised Penal Code uses the
nomenclature of penalties provided
under the Revised Penal Code, it a
special penal law, it does not;
*Exceptions:
1. Article 6 of the Anti-Child Abuse
Law provides for the application of the
nomenclature of penalties under the
Revised Penal Code. Ex. Under Section 10
thereof, it states that “any person who shall
commit any other acts of child abuse, cruelty
or exploitation or to be responsible for other
conditions prejudicial to the child’s
development including hose covered by
Article 59 of the Presidential Decree No. 603,
as amended, but not covered by the Revised
Penal Code, as amended, shall suffer the
penalty of prision mayor in its minimum
period. “
Although R.A. No. 7610 is a special
law, the rules in the Revised Penal Code for
graduating penalties by degrees or
determining the proper period should be
applied. Sanchez vs. People 588 SCRA 747,
June 5, 2009.
2. Likewise, under Section 14 of R.A.
7610 or the Anti-Torture Act, it uses again
the nomenclature of penalties under the
Revised Penal Code.
1.03
DIFFERENTIATE “INTENT TO
COMMIT A CRIME” FROM “INTENT
TO PERPETRATE THE ACT”.
When the crime is punished by a
special law, as a rule, intent to commit the
crime is not necessary. It is sufficient that the
offender has the intent to perpetrate the act
prohibited by the special law. Intent to
commit the crime and intent to perpetrate
the act must be distinguished.
A person may not have consciously
intended to commit a crime; but he did
intend to commit an act, and that act is, by the
very nature of things, the crime itself. In the
first (intent to commit the crime), there must
be criminal intent; in the second (intent to
perpetrate the act) it is enough that the
prohibited act is done freely and consciously.
Elenita C. Fajardo vs. People, G.R. No. 190889,
January 10, 2011
2
1.04 ARE SPECIAL LAWS AMENDING
CERTAIN PROVISIONS OF THE
REVISED
PENAL
CODE
CONSIDERED MALA PROHIBITA?
No, special laws which are intended
merely as amendments to certain provisions
of the Revised Penal Code are mala in se and
still subject to its provision.
-oooOOOooo-
CHAPTER I. PROBATION LAW
Presidential Decree No. 968
[BAR Q. 2012, 2010, 2009, 2005, 2004,
2003, 2002, 2001, 1997, 1995, 1994,
1993, 1992, 1990, 1986]
1.00 WHAT ARE THE PURPOSES OF
PROBATION? (SEC.2)
[BAR Q.1986, 1989]
The purposes of probation are as
follows:
(a) to promote the correction and
rehabilitation of an offender by providing
him with individualized treatment;
b) to provide an opportunity for the
reformation of a penitent offender which
might be less probable if he were to serve a
prison sentence; and
(c) to prevent the commission of
offenses.
1.01 WHEN MUST THE APPLICATION FOR
PROBATION BE FILED?
An application for probation must
be made within the period for perfecting an
appeal. Sable vs. People 584 SCRA 619, April 7,
2009
1.02 IF THE CONVICT HAD ALREADY
PERFECTED AN APPEAL, CAN AN
APPLICATION FOR PROBATION
STILL BE GRANTED?(SEC.4)
No,
provides:
Probation
Law
expressly
“x x x no application for probation
shall be entertained or granted if the
defendant has perfected an appeal from
the judgment of conviction.”
The Probation Law prohibits a judge
from entertaining or granting an application
for probation if the defendant has perfected
an appeal from the judgment of conviction.
Salvan vs People, 410 SCRA 638
In Sable vs. People, 584 SCRA 619,
April 7, 2009, the application for probation
was denied. In this case, petitioner already
filed a Notice of Appeal before the RTC before
the application was instituted. The law is
patently clear: "no application for probation
shall be entertained or granted if the
defendant has perfected the appeal from the
judgment of conviction."
Illustrative cases
1. BAR Q.[2010] Matt was found guilty
of drug trafficking while his younger
brother Jeff was found guilty of
possession of equipment, instrument,
apparatus and other paraphernalia for
dangerous drugs under Section 12 of
Republic Act No. 9165. Matt filed a
petition for probation. Jeff appealed his
conviction during the pendency of which
he also filed a petition for probation. The
brothers’ counsel argued that they being
first time offenders, their petitions for
probation should be granted. How would
you resolve the brothers’ petitions for
probation?
Suggested Answer: Both petitions
should be denied. Any person found guilty of
drug trafficking is disqualified to avail of the
benefits of probation. Hence, Matt petition
should be dismissed. Insofar as Jeff is
concerned, his act of appealing his conviction
disqualifies him to avail of probation.
Probation law expressly states that no
application for probation shall be
entertained or granted if the defendant has
3
perfected an appeal from the judgment of
conviction.
2. BAR Q.[2001] A, a subdivision
developer, was convicted by the RTC of
Makati for failure to issue the
subdivision title to a lot buyer despite
full payment of the lot, and sentenced to
suffer one year imprisonment.
A
appealed the decision of the RTC to the
Court of Appeals but his appeal was
dismissed.
May A still apply for
probation? Explain.
Suggested Answer: No, A may no
apply for probation. The appeal that he filed
from the judgment of conviction disqualifies
him to avail of probation. Probation law
provides that no application for probation
shall be entertained or granted if the accused
has perfected an appeal from the judgment of
conviction.
1.03
WHAT IS THEREFORE THE
IMPLICATION
ON
THE
APPLICATION FOR PROBATION IF
AN
APPEAL
IS
ALREADY
PERFECTED?
By
perfecting
their
appeal,
petitioners ipso facto relinquished the
alternative remedy of availing of the
Probation Law, the purpose of which is
simply
to
prevent speculation or
opportunism on the part of an accused who,
although already eligible, does not at once
apply for probation, but did so only after
failing in his appeal. Lagrosa vs People, 405
SCRA 357
1.04 ON THE OTHER HAND, WHAT IS THE
IMPLICATION ON THE RIGHT TO
APPEAL IF THE APPLICATION FOR
PROBATION WAS PREVIOUSLY
FILED ?
Section 4 of P.D. 968 as amended
expressly states:
“The filing of the application for
probation shall be deemed a waiver of the
right to appeal.”
Illustrative case
BAR Q.[1992] Johnny Gitara was
convicted of the crime of estafa by the
Regional Trial Court of Manila. He was
imposed the indeterminate penalty of
imprisonment of 3 years, 2 months and 1
day as minimum and six years as
maximum, both a prision correctional
and was ordered to indemnify the
offended party in the amount of
P3,000.00. He filed an application for
probation upon the promulgation of the
judgment. What is the legal effect of his
application for probation on the
judgment of conviction? Does said
application interrupt the running of the
period of appeal?
Suggested Answer: The legal effect of
Johnny’s application for probation effectively
waives his right to appeal. Judgment of
conviction had become final and executory
upon filing of the said application. The remedy
of appeal is unavailing.
1.05 IS A WAIVER OF THE RIGHT TO
APPEAL FROM A JUDGMENT OF
CONVICTION LIKEWISE A WAIVER
ON THE CIVIL LIABILITY EX
DELICTO?
No. In an appeal from a judgment of
conviction, the criminal liability and the civil
liability ex delicto should be considered
independently, each with its own
corresponding effects.
In People vs. Efren Salvan Y Presenes,
G.R. No. 153845 September 11, 2003, the
Court reiterated that the law that bars an
appeal of the judgment of conviction, as well
as its corresponding criminal liability, should
not bar an appeal of the civil aspect of the
same judgment.
1.06 MAY PROBATION BE GRANTED EVEN
IF THE SENTENCE IMPOSES A FINE
ONLY?
Yes, Section 4 of the same law states:
“Probation may be granted whether the
sentence imposes a term of imprisonment
or a fine only.”
1.07 IS AN ORDER GRANTING OR
DENYING PROBATION
APPEALABLE? BAR Q.[2002]
4
1.08
HOW DOES THE PREVAILING
JURISPRUDENCE TREAT APPEAL
AND PROBATION AS REMEDIES?
Prevailing jurisprudence treats
appeal and probation as mutually exclusive
remedies because the law is unmistakable
about it and, therefore petitioner cannot
avail herself of both.
1.09 WHAT IS THE LEGAL EFFECT OF
PROBATION?
A conviction becomes final when the
accused applies for probation.
1.10 WHO ARE DISQUALIFIED TO AVAIL
OF THE BENEFITS OF PROBATION?
(SEC.9)
Probation Law enumerates who are
disqualified to avail of the benefits of
probation. They are the following:
“SECTION 9. Disqualified Offenders.THE BENEFITS OF THE PROBATION
DECREE SHALL NOT BE EXTENDED TO
THOSE:
(1) Sentenced To Serve A Maximum Term
Of Imprisonment Of More Than Six Years.
Drugs Act Of 2002)
1.11 ILLUSTRATION OF THE
DISQUALIFICATIONS OF
PROBATION LAW.
(1) Sentenced To Serve A Maximum
Term Of Imprisonment Of More Than
Six Years.
Illustrative case
BAR Q.[2002] A was charged with
homicide. After trial, he was found
guilty and sentenced to six (6) years and
one (1) day
prision mayor, as
minimum, to twelve (12) and one (1)
day of reclusion temporal, as maximum.
Prior to his conviction, he had been
found
guilty
of
vagrancy
and
imprisoned for ten (10) days of arresto
menor and fined fifty pesos (P50.00). Is
he eligible for probation? Why?
Suggested Answer: A is not eligible
because his conviction exceeds six years.
Probation does not extend to those sentenced
to serve a maximum term of imprisonment of
more than six years.
His previous
convictionin this case has nothing to do with
his ineligibility to avail of probation.
(2) Convicted Of Any Crime Against
National Security or the Public Order.
(3) Who Have Previously Been Convicted
By Final Judgment Of An Offense Punished
By Imprisonment Of more than 6 months
and 1 day and/or a fine of more than
P1,000.00( as amended by R.A.10707);
(4) Who Have Been Once On Probation
Under The Provisions Of This Decree.
(5) Who Are Already Serving Sentence At
The Time The Substantive Provisions Of
This Decree Became Applicable.”
In addition:
(6) Who Has Perfected An Appeal From
The Judgment Of Conviction. (Sec.4)
(7) Any Person Convicted Of Drug
Trafficking or Pushing Regardless of the
Penalty Imposed By The Court. (Sec. 24 of
R.A. 9165, The Comprehensive Dangerous
a. Are there exceptions where even
if the convict had filed an appeal
still he is allowed to file a petition
for probation?
Yes, there are exceptions and they
are the following:
1.
One exception is provided under
Section 11 of RA 9265. It provides that the
accused first-time offender may avail of
suspended sentence subject to certain
conditions. If there is violation of any of
the conditions, the court shall pronounce
judgment of conviction and he/she shall
serve sentence as any other convicted
person. The court, however, may place
the accused under probation or
community
service
in
lieu
of
imprisonment.
Upon promulgation of the sentence,
the court may, in its discretion, place the
accused under probation, even if the
5
sentence provided under this Act is higher
than that provided under existing law on
probation, or impose community service in
lieu of imprisonment.
1.20 The principle enunciated in the
case People vs. Arnel Colinares and now
embodied under R.A.10707 amending the
probation law.
ARNEL COLINARES vs. PEOPLE
G.R. No. 182748, December 13, 2011
FACTS: Arnel Colinares was found guilty of
frustrated homicide by the RTC and
sentenced him to suffer imprisonment from
two
years
and
four
months
of
prision correccional, as minimum, to six years
and
one
day
of prision mayor,
as
maximum.
Since
the
maximum
probationable imprisonment under the law
was only up to six years, Arnel did not qualify
for probation.
ISSUE: Whether or not accused may still
apply for probation.
RULING: Ordinarily, Arnel would no longer
be entitled to apply for probation, he having
appealed from the judgment of the RTC
convicting him for frustrated homicide.
Here, however, Arnel did not appeal
from a judgment that would have allowed
him to apply for probation. He did not have
a choice between appeal and probation. He
was not in a position to say, "By taking this
appeal, I choose not to apply for
probation." The stiff penalty that the trial
court imposed on him denied him that
choice. Thus, a ruling that would allow Arnel
to now seek probation under this Court's
greatly diminished penalty will not dilute the
sound ruling in Francisco. It remains that
those who will appeal from judgments of
conviction, when they have the option to try
for probation, forfeit their right to apply for
that
privilege.
In a real sense, the Court's finding that
Arnel was guilty, not of frustrated homicide,
but only of attempted homicide, is an original
conviction that for the first time imposes on
him a probationable penalty. Had the RTC
done him right from the start, it would have
found him guilty of the correct offense and
imposed on him the right penalty of two years
and four months maximum. This would have
afforded Arnel the right to apply for
probation.
The Probation Law never intended to
deny an accused his right to probation
through no fault of his. The underlying
philosophy of probation is one of liberality
towards the accused. Such philosophy is not
served by a harsh and stringent interpretation
of the statutory provisions.
This may be true if the trial court meted
out to Arnel a correct judgment of
conviction. Here, however, it convicted Arnel
of the wrong crime, frustrated homicide that
carried a penalty in excess of 6 years. How can
the Court expect him to feel penitent over a
crime, which as the Court now finds, he did not
commit? He only committed attempted
homicide with its maximum penalty of 2 years
and 4 months.
At any rate, what is clear is that, had the
RTC done what was right and imposed on
Arnel the correct penalty of two years and four
months maximum, he would have had the
right to apply for probation. No one could say
with certainty that he would have availed
himself of the right had the RTC done right by
him. The idea may not even have crossed his
mind precisely since the penalty he got was
not probationable.
c.
What does R.A. 10707 provide where
an application for probation is filed
but the defendant has earlier
perfected an appeal?
Section 4 of P.D. 968, as amended by R.A.
No. 10707 provides that NO application
for probation shall be entertained or
granted if the defendant has perfected
the appeal from the judgment of
conviction: Provided, That when a
judgment of conviction imposing a nonprobationable penalty is appealed or
reviewed, and such judgment is modified
through
the
imposition
of
a
probationable penalty, the defendant
shall be allowed to apply for probation
based on the modified decision before
such decision shall becomes final.
d. Would the “total prison term” or the
“maximum prison term” of the
sentence be taken into account in
determining one’s eligibility for
probation?
6
The law uses the word “maximum
term” and not total term. It is enough that
each of the prison term does not exceed 6
years. The number of offenses is immaterial
for as long as the penalties imposed, when
taken individually and separately, are
within the probationable period. Francisco
vs. CA, 243 SCRA 384
b. Probation is not applicable when the
accused has been convicted by final
judgment of an offense punished by
imprisonment of less than one (1) month
and/or fine of less than P200.00.
(2) Convicted Of Any Crime Against
National Security or the Public Order.
d.
Probation is not applicable when
accused is convicted of indirect bribery.
The Crimes against
Security are as follows:
(3) Who Have Previously Been Convicted
By Final Judgment Of An Offense Punished
By Imprisonment Of Not Less Than One
Month And One Day And/Or A Fine Of Not
Less Than Two Hundred Pesos.
National
a. Treason
b. Conspiracy and Proposal to
Commit Treason
c. Misprision of Treason
d. Espionage
e. Terrorism and Conspiracy to
Commit Terrorism under R.A. 9372
The following are classified as Crimes
against Public Order:
a. Rebellion, Coup d’ etat, Sedition
and Disloyalty
b.
Crimes against Legislative Bodies
and Similar Bodies, Violation Of
Pariliamentary Immunity
c. Illegal Assemblies and
Associations
d. Assault Upon, and Resistance and
Disobedience to Persons In Authority
and Their Agents
e. Public Disorders
f. Commission of Another Crime
During Service of Penalty Imposed
for Another Previous Offense
BAR Q. [2012] Under which of the
following circumstances is probation not
applicable?
a. Probation is not applicable when the
accused is sentenced to serve a maximum of
six (6) years.
c. Probation is not applicable when accused
is convicted of indirect assault. (*Indirect
assault is a crime against public order)
Illustrative case
BAR Q.[2004] PX was convicted and
sentenced to imprisonment of thirty days
and a fine of one hundred pesos.
Previously, PX was convicted of another
crime for which the penalty imposed on
him was thirty days only. Is PX entitled to
probation?
Suggested Answer: Yes,
the
penalty imposed upon him does not exceed 6
years. His previous conviction for another
crime with a penalty of thirty days
imprisonment or not exceeding one (1) month
does not disqualify him from applying for
probation.
(4) Who Have Been Once On Probation
Under The Provisions Of This Decree.
(5) Who Are Already Serving Sentence At
The Time The Substantive Provisions Of
This Decree Became Applicable Pursuant
To Section 33 Hereof.
(6) Who Has Perfected An Appeal From
The Judgment Of Conviction (Sec.4,
Probation Law. (*See previous discussion)
Probation essentially rejects appeals
and encourages an otherwise eligible convict
to immediately admit his liability and save
the state the time, effort and expenses to
jettison an appeal. Sable vs. People 584 SCRA
619, April 7, 2009
7
(7) Any Person Convicted Of Drug
Trafficking or Pushing Regardless of the
Penalty Imposed By The Court. (Sec. 24 of
R.A. 9165, The Comprehensive Dangerous
Drugs Act Of 2002).
The Supreme Court had the occasion
to explain this disqualification in Padua vs.
People, 559 SCRA 519, July 23, 2008, where it
states that under Section 24 of Rep. Act No.
9165, any person convicted of drug
trafficking cannot avail of the privilege of
probation. In this case, the convict was
charged and convicted for violation of
Section 5, Article II of Rep. Act No. 9165 for
selling dangerous drugs. It is clear under
Section 24 of Rep. Act No. 9165 that any
person convicted of drug trafficking cannot
avail of the privilege of probation.
1.12 WHAT IS THE PERIOD OF
PROBATION IF- (SEC.14)
a. the convict is sentenced to a term of
imprisonment of not more than one year?
The period of probation shall not
exceed two years.
BAR Q. [2012]The period of probation of
the offender sentenced to a term of one
(1) year shall not exceed
a. two (2) years;
b. six (6) years;
c. one (1) year;
d.three (3) years;
b. the convict is sentenced to a term of
imprisonment of more than one year?
In all other cases, said period shall
not exceed six years.
1.13 WHAT IS THE CONSEQUENCE IF THE
PROBATIONER VIOLATES ANY OF
THE CONDITIONS OF PROBATION?
(SEC. 15)
The
court may
arrest
the
probationer, hold an informal summary
hearing and may revoke his probation in
which case, he has to serve the sentence
originally imposed.
1.14 WHEN IS PROBATION DEEMED
TERMINATED? (Sec.16).
After the period of probation and
upon consideration of the report and
recommendation of the probation officer, the
court may order the final discharge of the
probationer upon finding that he has fulfilled
the terms and conditions of his probation
and thereupon the case is deemed
terminated.
1.15 WHAT IS THE CONSEQUENCE OF A
FINAL DISCHARGE OF
THE
PROBATIONER? (Sec.16).
The final discharge of the
probationer shall operate to restore to him
all civil rights lost or suspend as a result of
his conviction and to fully discharge his
liability for any fine imposed as to the offense
for which probation was granted.
1.16 HOW
CONSTRUED?
IS
PROBATION
LAW
It is well-settled that the probation
law is not a penal statute; and therefore, the
principle of liberal interpretation is
inapplicable. And when the meaning is
clearly discernible from the language of the
statute, there is no room for construction or
interpretation. People vs. Alejandra Pablo,
G.R. No. 12510: August 3, 2000
1.17 IS A PROBATIONER DISQUALIFIED
FROM RUNNING FOR A PUBLIC
OFFICE DURING THE PERIOD OF
HIS PROBATION?
No. In the case of Moren vs. COMELEC
and MEJES, G.R. 168550, August 10, 2006, the
Supreme Court emphasized that during the
period of probation, the probationer is not
disqualified from running for a public office
because the accessory penalty of suspension
from public office is put on hold for the
duration of the probation.
The Court went on to state the case of
Baclayo vs. Mutia, 129 SCRA 148, where it
ruled that an order placing defendant on
probation is not a sentence but is rather in
effect a suspension of imposition of sentence.
The grant of probation to petitioner
suspended the imposition of the principal
penalty of imprisonment, as well as the
accessory penalties of suspension from
public office and from the right to follow the
profession or calling and that of perpetual
8
special disqualification from the right of
suffrage.
and excessive jurisdiction of personal liberty
and economic usefulness;
1.18 DOES THE GRANT OF PROBATION
AFFECT THE ADMINISTRATIVE
ASPECT OF A CASE?
2) It is intended to favor the accused
particularly to shorten his term of
imprisonment, depending upon his behavior
and his physical, mental and moral record as
a prisoner to be determined by the Board of
Sentence.
No. Probation affects only the
criminal aspect of the case, not its
administrative dimension. Samalio vs Court
of Appeals, 454 SCRA 462
1.19 CAN THE PERIOD WITHIN WHICH A
PERSON IS UNDER PROBATION BE
EQUATED WITH SERVICE OF
SENTENCE ADJUDGED?
No. The period within which a person
is under probation cannot be equated with
service of sentence adjudged.
Section 4 of the Probation Law
specifically provides that in the grant of
probation, the probationer does not serve
the penalty imposed upon him by the court
but is merely required to comply with all the
conditions prescribed by the probation
order. Moren vs. Comelec and Mejes, G.R.
168550, August 10, 2006
-ooo000oooCHAPTER II. INDETERMINATE SENTENCE
LAW
ACT NO. 4103
as amended by Act No. 4225 and
Republic Act No. 4203
[BAR Q. 2014, 2010, 2009, 2007, 2005,
2003, 2002, 1999, 1994, 1991, 1990,
1989, 1988]
1.01
IF A SPECIAL LAW ADOPTS
PENALTIES UNDER THE REVISED
PENAL
CODE,
WILL
THE
INDETERMINATE SENTENCE LAW
APPLY JUST AS IT WOULD IN
FELONIES?
Yes, where the special law adopted
penalties from the Revised Penal Code, the
Indeterminate Sentence Law will apply just
as it would in felonies.
The Supreme Court in Sanchez vs.
People 588 SCRA 747, June 5, 2009, stressed
that although Republic Act No. 7610 is a
special law, the rules in the Revised Penal
Code for graduating penalties by degrees or
determining the proper period should be
applied.
The penalty for Other Acts of Child
Abuse is prision mayor in its minimum
period. This penalty is derived from, and
defined in, the Revised Penal Code. Although
R.A. No. 7610 is a special law, the rules in the
Revised Penal Code for graduating penalties
by degrees or determining the proper period
should be applied.
1.02 UNDER WHAT CIRCUMSTANCES IS
THE INDETERMINATE SENTENCE
LAW NOT APPLICABLE (SEC. 2)?
___________________________________________________
A. IN GENERAL
1.00 CITE THE PURPOSES OF THE
INDETERMINATE SENTENCE LAW.
The purposes of Indeterminate
Sentence Law are as follow:
1) To uplift and redeem valuable
human material and prevent unnecessary
[*BAR Q: State the application of the
Indeterminate Sentence Law/ BAR Q:
Under what circumstances is the
Indeterminate
Sentence
Law
not
applicable?]
PURSUANT TO SECTION 2 OF THE
INDETERMINATE SENTENCE LAW, IT
SHALL NOT BE APPLICABLE IN THE
FOLLOWING CASES:
9
1. Offenses punishable by death
or life imprisonment.
2. Those convicted of treason,
conspiracy or proposal to
commit treason.
3. Those convicted of misprision
of treason, rebellion, sedition
or espionage.
4. Those convicted of piracy.
5. Habitual delinquents.
6. Those who escaped from
confinement or those who
evaded sentence.
7.
Those
granted
with
conditional pardon and who
violated the terms of the
same.
8. Those
whose
maximum
period of imprisonment does
not exceed one year.
9. Those already serving final
judgment upon the approval
of this act.
1.03 EXPLAIN AND ILUSTRATE THE
CIRCUMSTANCES
WHEN
THE
INDETERMINATE SENTENCE LAW
IS NOT APPLICABLE.
b. Query: May the privileged mitigating
circumstance of minority be appreciated in
fixing the penalty that should be imposed
even if the penalty imposed is originally an
indivisible penalty?
Yes. The ISLAW is applicable because
the penalty which has been originally an
indivisible penalty (reclusion perpetua to
death), where ISLAW is inapplicable, became
a divisible penalty (reclusion temporal) by
virtue of the presence of the privileged
mitigating circumstance of minority. People
vs. Allen Udtojan Mantalaba, G.R. No. 186227:
July 20, 2011
2. Those
Conspiracy
Treason.
Convicted of Treason,
or Proposal to Commit
a. TREASON
b. CONSPIRACY TO COMMIT
TREASON.
Illustrative Case
BAR Q.[2012] AA was convicted of
proposal to commit treason. Under
Article 115 of the Revised Penal Code,
proposal to commit treason shall be
punished by prision correccional and a
fine not exceeding P5,000.00. Is the
Indeterminate Sentence Law applicable
to AA?
1. Offenses Punishable By Death Or Life
Imprisonment.
a. Yes. The Indeterminate Sentence Law is
applicable to AA because the maximum
of prision correccional exceeds one (1)
year.
a. May a person punished with reclusion
perpetua be entitled to the benefits of
ISLAW?
b. Yes. The Indeterminate Sentence Law is
applicable to AA because there is no
showing that he is a habitual delinquent.
No, it is deemed included in the
disqualification.
The
Indeterminate
Sentence Law does not apply to persons
convicted of offenses punishable with
Reclusion Perpetua. People vs. Lab-eo, 373
SCRA 461
c. No. The Indeterminate Sentence Law is
not applicable to AA considering the
penalty imposable for the offense of
which he was convicted.
The Court has equated the penalty
of reclusion perpetua as synonymous to life
imprisonment for purposes of the
Indeterminate Sentence Law. People vs.
Enriquez G.R. No. 158797 July 29, 2005
d. No. The Indeterminate Sentence Law is
not applicable considering the offense of
which he was convicted (*The crime for
which AA was convicted is proposal to
commit treason).
3. Habitual Delinquents.
10
Who
Delinquent?
is
a
Habitual
He is a person who within a period
of ten (10) years from the date of his release
or last conviction of the crimes of serious,
less serious physical injuries, robbery, theft,
estafa or falsification, he is found guilty of
any of said crimes a third time or oftener
(Article 62 of the Revised Penal Code as
amended).
Illustrative case
4.
Those
Who
Escaped
From
Confinement or Those Who Evaded
Sentence.
[BAR Q.] A convict serving sentence for
robbery escaped from the penitentiary
and killed a rival gang member. Found
guilty of homicide, he was given a straight
prison
term.
He
moved
for
reconsideration, contending that not
being a habitual delinquent, he was
entitled to an indeterminate sentence.
Decide with reasons.
Suggested Answer: Motion for
reconsideration is denied. While it may true
that A is not be a habitual delinquent, he
however, escaped from prison while serving
sentence. The Indeterminate Sentence Law
provides that it shall not apply to persons who
escaped from confinement or evaded his
sentence.
5. Those Whose Maximum Period of
Imprisonment Does Not Exceed One Year.
a. Can an indeterminate sentence be
imposed if the maximum term of
imprisonment is less than 1 year?
The Indeterminate Sentence Law
does not apply if the maximum term of
imprisonment does not exceed one year if
the trial court opts to impose penalty of
imprisonment less than one year, it should
not impose indeterminate penalty but
straight penalty of one year or less instead.
An indeterminate sentence
may be imposed if the minimum of the
penalty is one year or less, and the
maximum exceeds one year. People vs. Lapis,
391 SCRA 131
1.04 WHAT ARE THE REASONS WHY THE
MAXIMUM AND THE MINIMUM
TERM OF THE INDETERMINATE
SENTENCE HAVE TO BE FIXED BY
THE COURT?
The maximum and minimum term of
the sentence have to be fixed because of the
following reasons:
1) Whenever any prisoner shall have
served the minimum penalty imposed on
him, and it shall appear to the Board of
Indeterminate Sentence that such prisoner is
fitted by his training for release that there is
a reasonable probability that such prisoner
will live and remain at liberty without
violating the law, and that such release will
not be incompatible with the welfare of
society, said Board may authorize the release
of such prisoner on parole, upon such terms
and conditions as may be presented by the
Board;
2) Whenever any prisoner released
on parole shall, during the period of
surveillance, violate any of the conditions of
his parole, the Board of Indeterminate
Sentence may issue an order for his rearrest. In such case the prisoner so rearrested shall serve the remaining
unexpired portion of the maximum portion
of the maximum sentence for which he was
originally committed to prison, unless the
Board of indeterminate Sentence shall, in its
discretion, grant a new parole to the said
prisoner.
3) Even if a prisoner has already
served the minimum, but he is not fitted for
release on parole, he shall continue to serve
imprisonment until the end of the maximum.
4) The need for specifying the
minimum and maximum periods of the
indeterminate sentence is to prevent the
unnecessary and excessive deprivation of
liberty and to enhance the economic
usefulness of the accused, since he may be
exempted from serving the entire sentence,
depending upon his behavior and his
11
physical, mental, and moral record. Batistis
vs. People, 608 SCRA 335, December 16, 2009
1.05
IS
THE
IMPOSITION
OF
INDETERMINATE
SENTENCE
MANDATORY IN CRIMINAL CASES?
Yes. The requirement of imposing an
indeterminate sentence in all criminal
offenses whether punishable by the Revised
Penal Code or by special laws, with definite
minimum and maximum terms, as the Court
deems proper within the legal range of the
penalty specified by the law must, therefore,
be deemed mandatory. Batistis vs. People,
608 SCRA 335, December 16, 2009
In the instant case, the straight
penalty the Court of appeals imposed was
contrary to the Indeterminate Sentence
Law, whose Section 1 requires that the
penalty of imprisonment should be an
indeterminate sentence.
1.06 IS THE LAW APPLICABLE IF THE
PENALTY IS DESTIERRO?
TERM OF THE INDETERMINATE
SENTENCE UNDER A SPECIAL LAW.
Section 1 of the Indeterminate
Sentence Law provides that when the offense
is punished by a law other than the Revised
Penal Code, “the court shall sentence the
accused to an indeterminate sentence, the
maximum term of which shall not exceed the
maximum fixed by law and the minimum
shall not be less than the minimum term
prescribed by the same. People vs. Bohol, 560
SCRA 232, July 28, 2008
The following rules shall apply:
a) TO GET THE MAXIMUM:
The maximum term shall not exceed
the maximum fixed by said law.
b) TO GET THE MINIMUM:
The minimum shall not be less than
the minimum term prescribed by the
special law.
Illustrative Cases
No, the law does not apply if the
penalty is destierro because it does not
involve imprisonment.
B. RULES INVOLVING OFFENSES
IN VIOLATION OF SPECIAL LAW
(BAR QUESTION [2012] HOW IS THE
INDETERMINATE SENTENCE LAW
APPLIED IN IMPOSING A SENTENCE?)
2.00 IN THE IMPOSITION OF SENTENCE
INVOLVING VIOLATION OF SPECIAL
LAWS, WHAT DOES SECTION 1 OF
THE INDETERMINATE SENTENCE
LAW PROVIDE?
The rule expressly provides: “If the
offense is punished by any other law, the
court shall sentence the accused to an
indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed
by said law and the minimum shall not be
less than the minimum term prescribed by
the same.”
2.01 GIVE THE RULES IN ARRIVING AT
THE MAXIMUM AMD MINIMUM
a. [BAR Q.] A was convicted of illegal
possession of grease guns and two
Thompson sub-machine guns punishable
under the old law (RA No. 4) with
imprisonment of from five (5) to ten (10)
years. The trial court sentenced the
accused to suffer imprisonment of five
(5) years and one (1) day. Is the penalty
thus imposed correct? Explain.
Suggested Answer: No. The penalty
imposed by the court is a straight penalty of
five (5) years imprisonment and one (1) day
in violation of the express provision of the
Indeterminate Sentence Law under Section 1
which requires that the court in imposing a
prison sentence for an offense punishable
under a special law, shall sentence the
accused to an indeterminate sentence, the
maximum term of which shall not exceed the
maximum fixed by the law and the minimum
shall not be less than the minimum term
prescribed by the same.
d. THE PRESENCE OF A MITIGATING
CIRCUMSTANCE IS IMMATERIAL IN THE
12
IMPOSITION OF PENALTY INVOLVING
VIOLATION OF A SPECIAL LAW.
[BAR Q:]Andres is charged with an
offense defined by a special law. The
penalty prescribed for the offense is
imprisonment of not less than five (5)
years but not more than ten (10) years.
Upon arraignment, he entered the plea of
guilty. In the imposition of the proper
penalty, should the Indeterminate
Sentence Law be applied? If you were the
judge trying the case, what penalty would
you impose on Andres?
Suggested Answer: Yes, the
Indeterminate Sentence Law should be
applied. In a special law, the indeterminate
sentence shall consist of a maximum term
which shall not exceed the maximum fixed by
the special law and a minimum term which
shall not be less than the minimum term
prescribed by the same.
If I were the judge, I would impose a penalty of
imprisonment consisting of any duration not
less than 5 years as minimum term of the
sentence and any duration not more than 10
years as maximum term of the sentence.
The plea of guilty as a mitigating
circumstance cannot be appreciated because
the law violated is a special law.
C. RULES INVOLVING CRIMES PUNISHED
BY THE REVISED PENAL CODE.
3.00 IN THE IMPOSITION OF SENTENCE
INVOLVING VIOLATION OF THE
REVISED PENAL CODE, WHAT DOES
SECTION 1 OF THE INDETERMINATE
SENTENCE LAW PROVIDE?
Section
1
expressly
provides,” Hereafter, in imposing a prison
sentence for an offense punished by the
Revised Penal Code, or its amendments, the
court shall sentence the accused to an
indeterminate sentence the maximum term
of which shall be that which, in view of the
attending circumstances, could be properly
imposed under the rules of the said Code, and
the minimum which shall be within the range
of the penalty next lower to that prescribed by
the Code for the offense.”
3.01 CITE THE RULE IN ARRIVING AT THE
MAXIMUM
TERM
OF
THE
INDETERMINATE
SENTENCE
UNDER THE REVISED PENAL CODE.
To Get The Maximum Term:
“That which, in view of the
attending circumstances, could be
properly imposed under the rules of
the said code”. (Sec.1, ISLAW)
The maximum term of the
indeterminate penalty, according to the
Indeterminate Sentence Law, is “that which,
in view of the attending circumstances, could
be properly imposed under the Rules of the
said Code. Francisco, Jr. vs. People, 579 SCRA
608, February 18, 2009
3.02 ARE THE RULES OF OFFSETTING
THE MODIFYING CIRCUMSTANCES
APPLICABLE IN DETERMINING
THE MAXIMUM TERM OF THE
INDETERMINATE SENTENCE?
The rules of offsetting the modifying
circumstances are applicable. The mitigating
or aggravating circumstance is to be
considered in the imposition of the
maximum term of the indeterminate
sentence. As ruled in Jose vs. People, 436 SCRA
294, the modifying circumstances are
considered
in the imposition of the
maximum term of the indeterminate
sentence.
Article 64 of the Revised Penal Code
governs the rules for the application of
penalties which contain three periods, to
wit:
“1. When there are neither aggravating
nor mitigating circumstances, they shall
impose the penalty prescribed by law in its
medium period.
2. When only a mitigating circumstance is
present in the commission of the act, they
shall impose the penalty in its maximum
period.
3.
When
only
an
aggravating
circumstance is present in the commission
of the act, they shall impose the penalty in
its maximum period.
13
4. When both mitigating and aggravating
circumstances are present, the court shall
reasonably offset those of one class
against the other according to their
relative weight.
5. When there are two or more mitigating
circumstances and no aggravating
circumstances are present, the court
shall impose the penalty next lower to
that prescribed by law, in the period that
it may deem applicable, according to the
number
and
nature
of
such
circumstances.’
3.03 CITE THE RULE IN ARRIVING AT THE
MINIMUM
TERM
OF
THE
INDETERMINATE
SENTENCE
UNDER THE REVISED PENAL
CODE.
The law provides that the
minimum should be:
“…within the range of the penalty next
lower to that prescribed by the code (rpc)
for the offense…” (Sec. 1, ISLAW)
The Indeterminate Sentence Law
leaves it entirely within the sound discretion of
the court to determine the minimum penalty,
as long as it is anywhere within the range of
the penalty next lower without any reference
to the periods into which it might be
subdivided. People vs.Jarillo, 601 SCRA 236,
September 29, 2009
CONSIDER THE FOLLOWING
PRINCIPLES-
The court has the discretion to fix as the
minimum term any period of
imprisonment within the penalty next
lower to that prescribed by the Code for
the offense. In determining the
minimum term, it is left entirely within
the discretion of the court to fix
anywhere within the range of the
penalty next lower without reference to
the periods into which it may be
subdivided. The trial court is given the
widest discretion to fix the minimum of
the indeterminate penalty so long as that
penalty is within the range provided in
the law. Garcia vs. People, 425 SCRA 221
-
The modifying circumstances are
considered only in the imposition of the
maximum term of the indeterminate
sentence. Jarillo vs. People 601 SCRA
236, September 29, 2009
Illustrative Case
a. BAR Q. [2009] In a conviction for
homicide, the trial court appreciated
two (2) mitigating circumstances and
one (1) aggravating circumstance.
Homicide under Article 249 of the
Revised Penal Code is punishable by
reclusion temporal, an imprisonment
term of twelve (12) years and one (1)
day to twenty (20) years. Applying the
Indeterminate
Sentence
Law,
determine the appropriate penalty to
be imposed. Explain.
Suggested Answer: In order to
obtain the maximum term of the
indeterminate sentence, the rule of offsetting
is applicable in view of the attending
circumstances. Since there are two (2)
mitigating circumstances as against one (1)
aggravating circumstance, the period shall be
set in its minimum. Hence, the maximum term
of the indeterminate sentence is reclusion
temporal in its minimum period. The
minimum which shall be within the range of
the penalty next lower to that prescribed by
the Code for the offense. Since the penalty next
lower in reclusion temporal is prision mayor,
the minimum term of the indeterminate
sentence therefore, is prision mayor, the
period of which is upon the discretion of the
court.
a. Will your answer be the same if it is a
conviction for illegal possession of
drugs under R.A. 9165 (Dangerous
Drugs Act of 2002), the prescribed
penalty
of
which
is
also
imprisonment for a term of twelve
(12) years and one (1) day to twenty
(20) years? Why or why not?
Suggested Answer: No. It is a settle rule
that the rule of offsetting is not applicable in
crimes punished under a special penal law as
in this case. The presence of any generic
aggravating and ordinary mitigating
circumstances will not affect the proper
imposition of the penalty.
1. WITH
THE
PRESENCE
OF
PRIVILEGED
AND
ORDINARY
14
MITIGATING CIRCUMSTANCES BUT
WITHOUT ANY AGGRAVATING
CIRCUMSTANCES.
Illustrative case
[MODIFIED BAR Q.] Homicide is
punishable by reclusion temporal. The
accused, 17 years of age, with
discernment, committed the crime of
frustrated homicide while under the
state of passion and obfuscation and
acting in immediate vindication of a
grave offense committed by the deceased
against his mother. Accused thereafter
surrendered voluntarily immediately
after the commission of the offense, and
pleaded guilty at the trial. What is the
proper penalty to be imposed upon him?
a)
The proper penalty is prision mayor in
its minimum period as the maximum
term of the indeterminate sentence and
prision correccional as its minimum
term the period of which is to be fixed
upon the court’s discretion.
b) The proper penalty is prision
correccional in its minimum period as the
maximum term of the indeterminate
sentence and arresto mayor as its
minimum term the period of which is to
be fixed upon the court’s discretion.
c) The proper penalty is prision
correccional as the maximum term of the
indeterminate sentence the period of
which is to be fixed upon the court’s
discretion and arresto mayor in its
minimum period as its minimum term.
discernment, hence, the penalty becomes
prision correccional.
There are two or more mitigating
circumstances present in this case and no
aggravating circumstances present. Under
Article 64 paragraph 5 of the Revised Penal
Code, the court shall impose the penalty
next lower to that prescribed by law. The
penalty therefore shall be reduced to
arresto mayor.
Arresto mayor carries the maximum
term of imprisonment of only six months.
The Indeterminate Sentence Law will not
apply to those whose maximum term of
imprisonment does not exceed one year.
Consequently, the proper penalty to be
imposed upon the accused is a straight
penalty of arresto mayor.
CASES
1. DELIA D. ROMERO vs. PEOPLE OF THE
PHILIPPINES
G.R. No. 171644: November 23, 2011
HELD: It is basic law that the application of
the Indeterminate Sentence Law is
mandatory where imprisonment exceeds
one (1) year.
2. ROSANA ASIATICO y STA. MARIA vs.
PEOPLE OF THE PHILIPPINES
G.R. No. 195005: September 12, 2011
FACTS: Rosana Asiatico was convicted of
illegal possession of dangerous drugs
penalized under Section 11, Article II of (RA)
9165 or the Comprehensive Dangerous
Drugs Act of 2002 and sentenced to suffer of
imprisonment of twelve years and one day.
d) The proper penalty is arresto mayor only.
The Indeterminate Sentence Law will not
apply.
ISSUE: Whether or not the sentence imposed
is proper.
Note: The penalty imposed in consummated
homicide is reclusion temporal. Since the
accused is convicted only of frustrated
homicide, the penalty will be reduced by
one degree, which is prision mayor. The
accused who is a minor, is entitled to a
privileged mitigating circumstance of one
degree lower since he acted with
HELD: The courts a quo erred in imposing a
straight penalty of "imprisonment of twelve
(12) years and one day." Sec. 1 of the ISL
mandates that, in case of a special law, the
accused shall be sentenced "to an
indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed
by said law and the minimum shall not be
less than the minimum term prescribed by
the same."
15
ADDENDUM:
1. Parole; Section 3 of Republic Act No.
9346 provides that persons convicted of
offenses punished with reclusion perpetua,
or whose sentences will be reduced to
reclusion perpetua, shall not be eligible for
parole under Act No. 4103, otherwise
known as the Indeterminate Sentence Law,
as amended. (People of the Philippines vs.
Vicente Candellada, 701 SCRA 19, G.R. No.
189293, July 10, 2013, Leonardo-De Castro, J.)
2. Effect of suspension of death penalty.
Under Article 266-B of the Revised
Penal Code, as amended, the imposable
penalty for qualified rape is death. With the
effectivity, however, of Republic Act No.
9346, entitled, “An Act Prohibiting the
Imposition of Death Penalty in the
Philippines,” the imposition of the supreme
penalty of death has been prohibited.
Pursuant to Section 241 thereof, the penalty
to be meted out to appellant shall be
reclusion perpetua. (People vs. Tabayan,
G.R. No. 190620, June 18, 2014.Perez, J.)
-oooOOOooo-
CHAPTER III
THE ANTI-GRAFT AND CORRUPT
PRACTICES ACT
Republic Act No. 3019
[BAR Q. 2014, 2012, 2011, 2010, 2009,
2003, 2000, 1999, 1997, 1991,
1990, 1988, 1985]
___________________________________________________
1.00
HOW MUST
CONSTRUED?
THE
LAW
BE
Every reasonable intendment will be
made in support of the presumption of
official acts in case of doubt as to an officer’s
act being lawful or unlawful, construction
should be in favor of its lawfulness. Bustillo,
Sumilhig, Jr., and Billedo, Jr., vs. People, May
12, 2010
1.01 WHO MAY BE LIABLE UNDER
SECTION 3 OF R.A. 3019?
The law punishes not only public
officers who commit prohibited acts
enumerated under Section 3 but also those
who induce or cause the public official to
commit those offenses. Santillano vs. People,
March 03, 2010
1.02 WHO ARE DEEMED INCLUDED AS
PUBLIC OFFICER?
A public officer includes elective and
appointive
officials
and
employees,
permanent or temporary, whether in the
classified or unclassified or exempt service
receiving compensation, even nominal, from
the government; Under the Anti-Graft Law,
the nature of one's appointment, and
whether the compensation one receives
from the government is only nominal, is
immaterial because the person so elected or
appointed is still considered a public officer.
Thus, in Javier v. Sandiganbayan, First
Division, 599 SCRA 324, September 11, 2009,
where petitioner was appointed by the
President to the Governing Board of the
NDBD and her term is only for a year, such
does not make her private person exercising
a public function. The fact that she is not
receiving a monthly salary is also of no
moment. Section 7, R.A. No. 8047 provides
that members of the Governing Board shall
receive per diem and such allowances as may
be authorized for every meeting actually
attended and subject to pertinent laws, rules
and regulations. The Supreme Court held
that the nature of one's appointment, and
whether the compensation one receives
from the government is only nominal, is
immaterial because the person so elected or
appointed is still considered a public officer.
1.03 WHO MAY BE LIABLE UNDER
SECTION 3?
a. The law punishes not only public
officers who commit prohibited acts
enumerated under Sec. 3, but also
those who induce or cause the public
official to commit those offenses.
This is supported by Sec. 9, which
includes private persons as liable for
violations under Secs. 3, 4, 5, and 6.
16
b. Private persons found acting in
conspiracy with public officers may
be held liable for the applicable
offenses found in Section 3 of the law.
People vs.Santillano, 614 SCRA 164,
March 3, 2010
1.04 ENUMERATE THE ACTS CONSIDERED
AS CORRUPT PRACTICES OF PUBLIC
OFFICERS UNDER SEC. 3 OF R.A.
3019.
In addition to acts or omissions of
public officers already penalized by existing
law, the following shall constitute corrupt
practices of any public officer and are hereby
declared to be unlawful:
(A) Persuading, Inducing Or Influencing
Another Public Officer To Perform An Act
Constituting A Violation Of Rules And
Regulations Duly Promulgated By
Competent Authority Or An Offense In
Connection With The Official Duties Of
The Latter, Or Allowing Himself To Be
Persuaded, Induced, Or Influenced To
Commit Such Violation Or Offense.
Illustrative case
BAR Q.[1985] Cris Vera, an influential
member of the Sangguniang Panlunsod of
Butuan City and a well-known radio
commentator of the said place, addressed
a written communication to Director Jose
of Butuan City LTO, asking for the
issuance of a temporary permit for a
special trip to Ozamis City of a TPU
jeepney belonging to Vera's relative
which got involved in a vehicular
collision with a private car in the latter's
place. The purpose of the said request is
to make it appear that the trip although
not within the authorized route of the
TPU jeepney's certificate of convenience,
was nevertheless authorized so as to
enable the owner to recover on the
insurance policy.
Director Jose refused, fearful of
the
disastrous
consequences.
Thereafter, he was the subject of
unsavory comments and furious attack
by Cris Vera in his program. Director Jose
then countered with a criminal complaint
for violation of the Anti-Graft Law with
the Tanodbayan against Cris Vera. Will
the complaint prosper? Discuss with
reasons.
Suggested Answer: No, the
complaint against Cris Vera will not prosper.
His act does not constitute persuading,
inducing or influencing under Sec. 3 (a) of
Republic Act 3019. To induce, persuade or
influence connotes the giving of a price,
reward or promise. Cris Vera should have
acted in view of a consideration, payment or
renumeration. “Unsavory comments and
furious attacks” do not fall under the term “to
induce, persuade or influence”.
(B) Directly Or Indirectly Requesting Or
Receiving Any Gift, Present, Share,
Percentage, Or Benefit, For Himself Or For
Any Other Person, In Connection With Any
Contract Or Transaction Between The
Government And Any Other Part, Wherein
The Public Officer In His Official Capacity
Has To Intervene Under The Law.
a. ELEMENTS UNDER SECTION 3 (B) OF
R.A. NO. 3019.
To be convicted of violation of Section
3(b) of R.A. No. 3019, the prosecution has the
burden of proving the following elements:
1) the offender is a public officer;
2) who requested or received a gift,
a present, a share, a percentage,
or benefit;
3) on behalf of the offender or any
other person;
4) in connection with a contract or
transaction
with
the
government;
5) in which the public officer, in an
official capacity under the law,
has the right to intervene.
Cadiao-Palacios vs. People, 582
SCRA 713, March 31, 2009
b. Explain the 4th element on the
phrase in connection with “a
contract or transaction”.
It is very clear from Section 3 (b) of RA
No. 3019 that the requesting or receiving of
17
any gift, present, share, percentage, or
benefit must be in connection with “a
contract or transaction” wherein the public
officer in his official capacity has to intervene
under the law. What is required is that the
transaction involved should at least be
described with particularity and proven.
In Garcia vs. Sandiganbayan, G.R. No.
155574, November 20, 2006, the Supreme
Court agreed with petitioner that the
prosecution miserably failed to prove the
existence of the fourth element. It is very
clear from Section 3 (b) of RA No. 3019 that
the requesting or receiving of any gift,
present, share, percentage, or benefit must
be in connection with “a contract or
transaction” wherein the public officer in his
official capacity has to intervene under the
law.
In this case, the prosecution did not
specify what transactions the Company had
with the LTO that petitioner intervened in
when he allegedly borrowed the vehicles
from the Company. It is insufficient that
petitioner admitted that Company has
continually transacted with his office. What
is required is that transaction involved
should at least be described with particularly
and proven.
To establish existence of the fourth
element, the relation of the fact requesting
and/or receiving transacts with petitioner’s
LTO Office for the registration of its motor
vehicles, in the reporting of its engine and
chassis number, as well as the submission of
its vehicle dealer’s report, and other similar
transactions, will not suffice. This general
statement failed to show the link between
the 56 alleged borrowings with their
corresponding transactions.
c. What are the 3 distinct acts punished
under this paragraph?
3 (b) penalizes three distinct acts:
1) demanding or requesting;
2) receiving; or
3) demanding, requesting and receiving –
any gift, present, share, percentage, or
benefit for oneself or for any other person, in
connection with any contract or transaction
between the government and any other
party, wherein a public officer in an official
capacity has to intervene under the law.
Each of these modes of committing the
offense is distinct and different from one
another. Proof of existence of any of them
suffices to warrant conviction. CadiaoPalacios vs. People, 582 SCRA 713, March 31,
2009
d. Must the demand be made by the
accused from the contractor himself?
No. It is irrelevant from whom the
accused demanded her percentage share of
the project cost. As held in Preclaro v.
Sandiganbayan, 247 SCRA 454 (1995), it is
irrelevant from whom petitioner demanded
her percentage share of the project cost –
whether from the contractor himself or from
the latter’s representative. That petitioner
made such a demand is all that is required by
Section 3(b) of R.A. No. 3019.
(E) Causing Any Undue Injury To Any
Party, Including The Government, Or
Giving
Any
Private
Party
Any
Unwarranted Benefits, Advantage Or
Preference In The Discharge Of His
Official Administrative Or Judicial
Functions Through Manifest Partiality,
Evident Bad Faith Or Gross Inexcusable
Negligence. This Provision Shall Apply To
Officers And Employees Of Offices Or
Government Corporations Charged With
The Grant Of Licenses Or Permits Or
Other Concessions.
1. In order to hold a person liable under
Section 3 (E) of R.A. 3019, what facts
need to be proved?
To be found guilty under said
provision, the following elements must
concur:
(1) the offender is a public officer;
(2) the act was done in the discharge of the
public officer’s official, administrative or
judicial functions;
(3) the act was done through manifest
partiality, evident bad faith, or gross
inexcusable negligence; and
(4) the public officer caused any undue
injury to any party, including the
Government, or gave any unwarranted
18
benefits, advantage or preference. Sison
vs. People, 614 SCRA 670, March 9, 2010
People vs. Ong
G. R. NO. 176546, September 25, 2009
FACTS: Ong as Mayor of Angadana, Isabela,
bought an Isuzu dump truck for P750,000.00
from Ching for the use of the municipality. A
letter-complaint was filed against petitioner
by her successor, Siquian and several other
Sangguniang Bayan members accusing her of
malversation of public funds and property
The Graft Investigation Officer found
no probable cause for the charges but she
was indicted for violation of Sec. 3 (e) of RA
No. 3019, as amended. During trial, the sales
manager of Christian Motor Sales in
Cabanatuan City testified that the cost
ranged from P190,000.00 – P490,000.00.
Complainants testified that the dump truck
was bought without conducting a public
bidding or a resolution by the Sangguniang
Bayan. The Sandiganbayan rendered its
Decision finding petitioner guilty beyond
reasonable doubt of violation of Sec. 3 (e) of
RA No. 3019.
ISSUE: Whether the act complained
of constitutes a violation of sec 3 (e) of RA No.
3019.
HELD: The Supreme Court finds that
all the elements of the offense charged have
been duly established beyond reasonable
doubt. Petitioner, being then the Mayor of
Angandaan, Isabela is a public officer
discharging administrative and official
functions. The act of purchasing the subject
truck without the requisite public bidding
and authority from the Sangguniang Bayan
displays gross and inexcusable negligence.
Undue injury was caused to the Government
because said truck could have been
purchased at a much lower price.
The Sandiganbayan correctly ruled
that by procuring the subject truck through a
negotiated purchase without public bidding,
petitioner failed to comply with the
procedure. Indeed, as the local chief
executive, petitioner is not only expected to
know the proper procedure in the
procurement of supplies, she is also duty
bound to follow the same and her failure to
discharge this duty constitutes gross and
inexcusable negligence.
Price quotations obtained from
several suppliers as well as the testimonies
of Ramon de Guzman Sevilla, Ruben Lappay
and Mirasol Lappay proved that the dump
truck purchased by petitioner was overpriced, hence, had petitioner observed the
proper procurement procedure, the
municipality of Angandaan could have
acquired a dump truck similar to, if not
better than the one originally bought, at a
much lower price of not more than
P500,000.00 without doubt, petitioner’s
negligence caused undue injury to the
government while at the same time gave
unwarsnted benefits to Josephine Ching.
2. With Respect To the 3rd Element, In
order to be held guilty of violating
Section 3 (e) of Republic Act No. 3019,
the provision itself explicitly requires
that the accused caused undue injury
for having acted with manifest
partiality, evident bad faith, or with
gross inexcusable negligence, in the
discharge of his official administrative
or judicial function.
a. Must All of these Circumstances be
Present in Order to Convict the Accused?
No. Proof of any of these three in
connection with the prohibited acts
mentioned in Section 3 (e) of RA 3019 is
enough to convict. Sison vs. People, March 09,
2010
b. Define Manifest Partiality.
“Partiality” is synonymous with “bias” which
“excites a disposition to see and report
matters as they are wished for rather than as
they are”. Sison vs. People, March 09, 2010
Manifest partiality exists when the
accused has a clear, notorious, or plain
inclination or predilection to favor one side
or one person rather than another. It is
synonymous with bias, which excites a
disposition to see and report matters as they
are wished for rather than as they are. Reyes
vs. People, August 04, 2010
c. Define Evident Bad Faith.
Bad faith does not simply connote
bad judgment or negligence; it imputes a
dishonest purpose or some moral obliquity
and conscious doing of wrong; a breach of
sworn duty through some motive or intent or
19
ill will; it partakes of the nature of fraud.
Sison vs. People, March 09, 2010
Evident bad faith connotes a
manifest deliberate intent on the part of the
accused to do wrong or to cause damage. It
contemplates a breach of sworn duty
through some perverse motive or ill will.
Reyes vs. People, August 04, 2010
d. Define Gross Negligence.
Gross negligence has been so defined as
negligence characterized by the want of even
slight care acting or omitting to act in a
situation where there is a duty to act, not
inadvertently but willfully and intentionally
with
a
conscious
indifference
to
consequences in so far as other persons may
be affected. It is the omission of that care
which even inattentive and thoughtless men
never fail to take on their own property.
Sison vs. People, March 09, 2010
Gross inexcusable negligence does not
signify mere omission of duties nor plainly
the exercise of less than the standard degree
of prudence it refers to negligence
characterized by the want of even the
slightest case, acting or omitting to act in a
situation where there is a duty to act, not
inadvertently but willfully and intentionally,
with conscious indifference to consequences
in so far as other persons may be affected.
Sistoza vs. Desierto, 388 SCRA 307
3. Under the 4th element, may an accused
be charged under either mode or
both?
There are two ways by which Section 3(e)
of RA 3019 may be violated—
a.
b.
the first mode: by causing undue
injury to any party, including the
government, or
the second mode: by giving any
private party any unwarranted
benefit, advantage or preference
Although neither mode constitutes a
distinct offense, an accused may be charged
under either mode or both. The use of the
disjunctive "or" connotes that the two modes
need not be present at the same time. In
other words, the presence of one would
suffice for conviction. Ibid.
4. Under the First Mode (4th element),
explain the meaning of “undue injury
or damage”.
Undue injury caused to any party,
including the government, under Section 3
(e) of Republic Act No. 3019, could only mean
actual injury or damage which must be
established by evidence. People vs.
Sandiganbayan, August 23, 2010
5. Under the Second Mode, will it
suffice that the accused has given
unjustified favor or benefit to
another, in the exercise of his
official, administrative or judicial
functions?
Yes, in order to be found guilty under the
second mode, it suffices that the accused has
given unjustified favor or benefit to another,
in the exercise of his official, administrative
or judicial functions.
As an example, in Sison vs. People 614
SCRA 670, March 9, 2010, petitioner did just
that. The fact that he repeatedly failed to
follow the requirements of RA 7160 on
personal canvass proves that unwarranted
benefit, advantage or preference was given
to the winning suppliers. These suppliers
were awarded the procurement contract
without the benefit of a fair system in
determining the best possible price for the
government. The private suppliers, which
were all personally chosen by respondent,
were able to profit from the transactions
without showing proof that their prices were
the most beneficial to the government.
6. Application of par (3) to public
bidding.
(G) Entering, On Behalf Of The
Government, Into Any Contract Or
Transaction Manifestly And Grossly
Disadvantageous To The Same, Whether
Or Not The Public Officer Profited Or Will
Profit Thereby.
1. What are the elements under Section
3(G) of R.A. No. 3019?
20
To be indicted of the offense under
Section 3(G) of R.A. No. 3019, the following
elements must be present:
a. that the accused is a public officer;
b. that he entered into a contract or
transaction on behalf of the government;
and
c. that such contract or transaction is
grossly and manifestly disadvantageous
to the government. Guy vs. People, 582
SCRA 108, March 20, 2009
2.
If there is an allegation of conspiracy,
may a private person be held liable
together with the public officer?
Yes, if there is an allegation of
conspiracy, a private person may be held
liable together with the public officer, in
consonance with the avowed policy of the
Anti-Graft and Corrupt Practices Act which is
“to repress certain acts of public officers and
private persons alike which may constitute
graft or corrupt practices or which may lead
thereto. Guy vs. People, 582 SCRA 108, March
20, 2009
3. Would the lack of public bidding
automatically equate to a manifest
and gross disadvantage to the
government?
No. The lack of public bidding alone
does not automatically equate to a manifest
and gross disadvantage to the government.
Caunan vs. People, 597 SCRA 538, September
2, 2009.
As the Supreme Court had declared in
Nava v. Palattao (499 SCRA 745 [2006]), the
absence of a public bidding may mean that
the government was not able to secure the
lowest bargain in its favor and may open the
door to graft and corruption. However, this
does not satisfy the third element of the
offense charged, because the law requires
that the disadvantage must be manifest and
gross.
People vs. Caunan
G. R. NO. 181999, September 2, 2009
FACTS: Marquez and Caunan, along with
four (4) other local government officials of
Parañaque City and Antonio Razo were
charged of violation of the Anti-Graft and
Corrupt Practices Act. The Informations
were filed based on the findings of the COA
that there was overpricing in certain
purchase transactions of Parañaque City.
To ascertain the prevailing price of
walis tingting for the years 1996 to 1998, the
audit team made a canvass of the purchase
prices of the different merchandise dealers
of Parañaque City. The audit team attempted
to purchase walis tingting from the name
suppliers of Parañaque City but when the
audit team went to the listed addresses of the
suppliers, they were occupied by other
business establishments. Thereafter, the
audit team urchased from a supplier that
sold walis tingting.in Las Pinas City.
The
Sandiganbayan
rendered
judgment finding petitioners Caunan and
Marquez, along with Silvester de Leon and
Marilou Tanael, guilty of violating Section 3
(g) of R. A. No. 3019.
ISSUE: Whether or not petitioners are guilty
of violation of Section 3 (g) of R.A. No. 3019.
HELD: The prosecution was not able to
demonstrate the requisite burden of proof
beyond reasonable doubt where what was
only shown was that the audit team reached
a conclusion of gross overpricing based on
the documents which, at best, would merely
indicate the present market price of walis
tingting of a different specification,
purchased from a non-supplier of Parañaque
City, and the price of walis tingting purchases
in Las Piñas City – the prosecution should
have presented evidence of the actual price
of the particular walis tingting purchased at
the time of the audited transaction or, at the
least, an approximation thereof. Failing in
these, there is no basis to declare that there
was a glaring overprice resulting in gross and
manifest disadvantage to the government.
The audit team reached a conclusion
of gross overpricing based on documents
which, at best, would merely indicate the
present market price of walis tingting of
a different specification, purchased from
a non-supplier of Parañaque City, and the
price
of walis
tingting purchases in
Las Piñas City.
Effectively, the prosecution was
unable to demonstrate the requisite burden
of proof. Most obvious would be the market
21
price of walis tingting in Las Piñas City which
was used as proof of overpricing
in Parañaque City. For a charge under
Section 3 (g) to prosper, the following
elements must be present: (1) that the
accused is a public officer; (2) that he entered
into a contract or transaction on behalf of the
government; and (3) that such contract or
transaction is grossly and manifestly
disadvantageous to the government.
The Supreme Court agrees with
petitioners that the fact of overpricing is
embedded in the third criminal element of
Section 3 (g) of R.A. No. 3019. Given the
factual milieu of this case, the subject
contracts would be grossly and manifestly
disadvantageous to the government if
characterized
by
an
overpriced
procurement. However, the gross and
manifest disadvantage to the government
was not sufficiently shown because the
conclusion of overpricing was not also
adequately proven.
(H) Director Or Indirectly Having
Financing Or Pecuniary Interest In Any
Business, Contract Or Transaction In
Connection With Which He Intervenes Or
Takes Part In His Official Capacity, Or In
Which He Is Prohibited By The
Constitution Or By Any Law From Having
Any Interest.
1. THE ESSENTIAL ELEMENTS UNDER
SECTION 3(H) OF R.A NO. 3019
The essential elements of the violation of
said provision are as follows:
1) The accused is a public officer;
2) he has a direct or indirect financial or
pecuniary interest in any business, contract
or tran saction; He either:
a) intervenes or takes part in his
official capacity in connection with such
interest, or
b) is prohibited from having such
interest by the Constitution or by law. Teves
vs. The Commission on Elections, 587 SCRA 1,
April 28, 2009.
2. What is the concept of “financial or
pecuniary interest”?
To illustrate, in Teves v. Sandiganbayan,
447 SCRA 309 (2004), petitioner was
convicted under the second mode for having
pecuniary or financial interest in a cockpit
which is prohibited under Sec. 89(2) of the
Local Government Code of 1991.
View that under Section 3(h) of Republic
Act No. 3019, the element of "financial or
pecuniary interest" contemplated under the
Second Mode of violating Sec. 3(h) is one
prohibited by law, a qualification not present
in the First Mode Teves vs. Sandiganbavan,
447 SCRA 309.
3. What are the two (2) modes by which a
public officer may violate paragraph
3(H) of R.A. 3019?
There are two modes by which a public
officer who has a direct or indirect financial or
pecuniary interest in any business, contract,
or transaction may violate Section 3(h) of R.A.
30191.
The first mode is when the public officer
intervenes or takes part in his official
capacity in connection with his financial
or pecuniary interest in any business,
contract, or transaction.
2.
The second mode is when he is
prohibited from having such an interest
by the Constitution or by law.
2.00
WHAT IS THE PRESCRIPTIVE
PERIOD TO FILE A CASE UNDER
THIS ACT? (Sec. 11)
All offenses punishable under this
Act shall prescribe in ten years.
2.01 CAN A PUBLIC OFFICER RESIGN OR
RETIRE PENDING ANY CASE
AGAINST HIM? (Sec. 12)
Yes. The rule provides that no public
officer shall be allowed to resign or retire
pending an investigation, criminal or
administrative, or pending a prosecution
against him, for any offense under this Act or
under the provisions of the Revised Penal
Code on bribery.
2.02
CAN A PUBLIC OFFICER BE
SUSPENDED UNDER THIS ACT?
22
(Sec. 13)
“Section 13 of the law reads: Any public
officer against whom any criminal
prosecution under a valid information
under this Act or under the provisions of
the Revised Penal Code on bribery is
pending in court, shall be suspended from
office.”
The law further provides that hould
he be convicted by final judgment, he shall
lose all retirement or gratuity benefits
under any law, but if he is acquitted, he shall
be entitled to reinstatement and to the
salaries and benefits which he failed to
receive during suspension, unless in the
meantime administrative proceedings have
been filed against him.”
It is a settled doctrine that R.A. No.
3019 should be read to protect the State from
fraud by its own officials. Section 13 of R.A.
No. 3019 covers two types of offenses; (1)
any offense involving fraud on the
government; and (2) any offense involving
public funds or property.
Illustrative case
BAR Q. [2000] A month after the
arraignment of Brad Kit, Commissioner
of the Housing and Land Use Regulatory
Board, who was charged with violation of
Section 3(h) of republic Act 3019. (AntiGraft and Corrupt Practices Act before
the Sandiganbayan, the Office of the
Special Prosecutor filed a Motion to
Suspend Accused Pendete Lite pursuant
to Section 13 of the Anti-Graft Law. The
Court granted the motion and suspended
accused Brad Kit. The court granted the
and suspended accused Brad Kit for a
period of 90 days. Accused assailed the
constitutional validity of the suspension
order on the ground that it partakes of a
penalty before judgment of conviction is
reached and is thus violative of his
constitutional right to be presumed
innocent. He also claimed that this
provision of the law on suspension
pendente lite applies only to elective
officials and not to appointed ones like
him. Rule with reasons.
Suggested Answer: The suspension
order does not partake of a penalty and in no
way violative of Brad Kit's constitutional
right to be presumed innocent. Under the law,
suspension pendente lite applies to all public
officials indicted upon a valid information
under RA No. 3019, the purpose is to prevent
said official from hampering or influencing
the normal course of the investigation.
2.03 WHAT IS THE RULE WITH RESPECT
TO UNSOLICITED GIFTS OR
PRESENTS
OF
SMALL
OR
INSIGNIFICANT VALUE? (SEC.14)
Unsolicited gifts or presents of small or
insignificant value offered or given as a mere
ordinary token of gratitude or friendship
according to local customs or usage, shall be
exempted from the provisions of this Act.
ADDENDUM:
1. Private person may be liable.
It bears to reiterate the settled rule
that private persons, when acting in
conspiracy with public officers, may be
indicted and, if found guilty, held liable for
the pertinent offenses under Section 3 (e) of
R.A. 3019, in consonance with the avowed
policy of the anti-graft law to repress certain
acts of public officers and private persons
alike constituting graft or corrupt practices
act or which may lead thereto. This is the
controlling doctrine as enunciated by the
Court in previous cases.(Edelbert C. Uyboco
vs. People, G.R. No. 211703, December 10,
2014, Velasco Jr., J.)
2. Good faith of heads of offices in signing
a document.
The good faith of heads of offices in
signing a document will only be appreciated
if they, with trust and confidence, have relied
on their subordinates in whom the duty is
primarily lodged. (Sanchez vs. People, 703
SCRA 586, G.R. No. 187340, August 14,
2013,Sereno, CJ.)
3. Manifest partiality, Evident bad faith
and Gross inexcusable negligence
explained.
In Uriarte vs. People, the Court
explained that Section 3(e) of RA 3019 may
be committed either by dolo, as when the
23
accused acted with evident bad faith or
manifest partiality, or by culpa, as when the
accused committed gross inexcusable
negligence. There is “manifest partiality”
when there is clear, notorious, or plain
inclination or predilection to favor one side
or person rather than another. “Evident bad
faith” contemplates a state of mind
affirmatively operating with furtive design
or with some motive of self-interest or ill will
or for ulterior purposes. “Gross inexcusable
negligence”
refers
to
negligence
characterized by the want of even the
slightest care, acting or omitting to act in a
situation where there is a duty to act, not
inadvertently but willfully and intentionally,
with conscious indifference to consequences
insofar as other persons may be affected.
(Jovito C. Plameras vs. People of the
Philippines, G.R. No. 187268, September
4,2013, Perez, J.)
4. When can private persons be charged.
However, private persons may
likewise be charged with violation of Section
3(g) of RA 3019 if they conspired with the
public officer. (Gregorio Sing Ian, Jr. vs.
Sandiganbayan (3rd division), The People
of the Philippines, G.R. Nos.195011-19,
September 30, 2013,Del Castillo, J.)
5. Contract and transaction explained.
A transaction, like a contract, is one
which involves some consideration as in
credit transactions and this element
(consideration) is absent in the investigation
conducted by the petitioner. In the light of
the foregoing, the Court agrees with the
petitioner that it was error for the
Sandiganbayan to have convicted him of
violating Sec. 3 (b) of R.A. No. 3019. (People
vs. Sandiganbayan, G.R. No. 188165/G.R.
No. 189063 December 11, 2013, Bersamin,
J.)
Notably, the offense defined under
Section 3 (e) of R.A. No. 3019 may be
committed even if bad faith is not
attendant.
Thus, even assuming for the sake of
argument that Coloma did not act in bad faith
in rendering his report, his negligence under
the circumstances was not only gross but
also
inexcusable.
(Coloma
vs.
Sandiganbayan,
G.R.
No.
205561,
September 24, 2014, Mendoza, J.)
-ooOOOooo-
CHAPTER IV. THE COMPREHENSIVE
DANGEROUS
DRUGS ACT OF 2002 Republic Act No.
9165
[BAR Q. 2014, 2010, 2009, 2007, 2006,
2005, 2004, 2002, 2000, 1998, 1996,
1992]
__________________________________________________
1.00 ENUMERATE THE UNLAWFUL ACTS
UNDER THE LAW. (*bar topic)
The unlawful acts are as follows:
1. Importation of Dangerous Drugs
and/or Controlled Precursors and
Essential Chemicals (Sec. 4)
Illustrative case
BAR Q.[2006]After receiving a reliable
information that Dante Ong, a notorious
drug smuggler, was arriving on PAL
Flight No. PR181, PNP Chief Inspector
Samuel Gamboa formed a group of antidrug agents. When Ong arrived at the
airport, the group arrested him and
seized his attache case. Upon inspection
inside the Immigration holding area, the
attache case yielded 5 plastic bags of
heroin weighing 500 grams. Chief
Inspector Gamboa took the attache case
and boarded him in an unmarked car
driven by P03 Pepito Lorbes. On the way
to Camp Crame and upon nearing White
Plains corner Edsa, Chief Inspector
Gamboa ordered P03 Lorbes to stop the
car. They brought out the drugs from
the case in the trunk and got 3 plastic
sacks of heroin. They then told Ong to
alight from the car. Ong left with the 2
remaining plastic sacks of heroin. Chief
Inspector Gamboa advised him to keep
silent and go home which the latter did.
Unknown to them, an NBI team of agents
has been following them and witnessed
the transaction. They arrested Chief
Inspector Gamboa and P03 Lorbes.
Meanwhile, another NBI team followed
24
Ong and likewise arrested him. All of
them were later charged.
What are their
criminal liabilities?
respective
Suggested
Answer:
Chief
Inspector Samuel Gamboa and P03 Pepito
Lorbes are liable as protector/coddler to
the illegal importation of the dangerous
drugs into the Philippines. They knew Mr.
Ong violated the Comprehensive Drugs Act
yet, they used their position to facilitate his
escape with a view to prevent his arrest,
prosecution and conviction .
The police officers are guilty of
misappropriation and failure to account for
seized dangerous drugs punished under Sec
27 of R.A. 91165. On the other hand, Dante
Ong is guilty of illegal importation of
dangerous drugs under Art II Sec. 4, RA 9165.
2.
Sale,
Trading,
Administration,
Dispensation, Delivery, Distribution and
Transportation of Dangerous Drugs
and/or Controlled Precursors and
Essential (Sec. 5)
a. What is a BUY- BUST OPERATION?
A buy-bust operation is a form of
entrapment which had repeatedly been
accepted to be a valid means of arresting
violators of the Dangerous Drugs Law; In
every prosecution for Illegal sale of
prohibited or regulated drugs, the following
elements must be established (1) the
identity of the buyer and seller, the object
and the consideration; and (2) the delivery
of the thing sold and the payment thereof.
People vs.Suson and Fortich, G.R. No. 152848,
July 12, 2006
b. Principles in Buy-Bust Operation.
1. The presentation in evidence of the “buybust” money is not indispensable for the
conviction of an accused provided that the
sale of marijuana is adequately proven by
the prosecution. People vs. Pascual, 208 SCRA
393
2. It is not surprising for a police officer to
use his own money during the buy-bust
operation-- such use of money does not
adversely affect the case against the accused.
There is no requirement that the police must
apply fluorescent powder to the buy-bust
money to prove the commission of the
offense; there is no law or rule of evidence
requiring the use of fluorescent powder or
the taking of the culprit's fingerprints from
the bag containing the shabu.
3. What is material is the delivery of the
prohibited drug to the buyer which in this
case, was sufficiently proved by the
prosecution through the testimony of the
poseur-buyer and the presentation of the
articles itself before th court. Besides, the
money was already marked by the poseur
buyer with his initials CG. Neither is
fingerprints a requirement in buy-bust
operations. There is no law or rule of
evidence requiring the use of fluorescent
powder or the taking of the culprits
fingerprints from the bag containing the
shabu. People vs. Saidmin Macabalang GR No.
168694; Novemeber 27, 2006
4.
Mission order, court order and
surveillance progress report are not
required in buy-bust operation. People vs.
Ong Co, 245 SCRA 733
5. There is no fixed procedure for conducting
buy- bust operations. People vs. Cruda, 212
SCRA 125
6. In a “buy-bust” operation, the important
aspect of police operatives in their modus
operandi is not the hearing but seeing the
accused selling the prohibited drugs. People
vs. Fernandez, 228 SCRA 301
c. Is non-coordination with PDEA fatal to
the prosecution’s cause?
Coordination with the Philippine
Drug Enforcement Agency (PDEA) is not an
indispensable requirement before police
authorities may carry out a buy-bust
operation – a buy-bust operation is not
invalidated by mere non-coordination with
the PDEA. People vs. Roa
d. ELEMENTS NECESSARY FOR THE
PROSECUTION OF ILLEGAL SALE OF
DRUGS.
25
The elements necessary for the
prosecution of illegal sale of drugs are:
(1) the identity of the buyer and the
seller, the object, and consideration; and
(2) the delivery of the thing sold and
the payment thereof.
What is material to the prosecution
for illegal sale of dangerous drugs is the
proof that the transaction or sale actually
took place, coupled with the presentation in
court of evidence of corpus delicti. People vs.
Macatingag, G.R. No. 181037, January 19,
2009
e. DIFFERENTIATE THE ELEMENTS OF
ILLEGAL
SALE
FROM
ILLEGAL
POSSESSION OF DANGEROUS DRUGS.
In a prosecution for illegal sale of
dangerous drugs, the following elements
must first be established: (1) proof that the
transaction or sale took place and (2) the
presentation in court of the corpus delicti or
the illicit drug as evidence.
In a prosecution for illegal
possession of a dangerous drug, it must be
shown that (1) the accused was in possession
of an item or an object identified to be a
prohibited or regulated drug, (2) such
possession is not authorized by law, and (3)
the accused was freely and consciously
aware of being in possession of the drug.
People vs. Darisan, G.R. No. 176151, January
30, 2009
3. Possession of Dangerous Drugs. (Sec.11)
a. Does RA6425 prescribe a single
punishment for illegal possession of
shabu and marijuana committed at the
same time and in the same place?
RA 6425 does not prescribe a
single punishment for the various offenses
enumerated in the law; RA 6425
enumerates the punishable acts and its
corresponding penalty; it also specifies the
particular drugs and corresponding quality
in the imposition of penalty.
The prosecution was correct in filing
two separate Informations for the crimes of
illegal possession of shabu and illegal
possession of marijuana.
Clearly, the
legislature did not intend to lump these two
separate crimes into just one crime of
possession of dangerous drugs. Otherwise
there would be no need to specify the
different kinds of drugs and corresponding
quantity in the application of the
appropriate penalty. Multiple offenses can
be committed under RA 6425 even if the
crimes are committed in the same place, at
the same time, and by the same person.
Thus, this Court has upheld rulings of the
lower courts convicting an accused charged
with two separate crimes of illegal
possession of shabu and illegal possession of
marijuana, even if the crimes were
committed at the same time and in the same
place.
As ruled in People vs Tira, 430 SCRA
134 (2004), illegal possession of shabu and
marijuana constitutes two separate crimes
and therefore two informations should be
filed. People vs. Hon Marcial Empleo, In His
Capacity As Presiding Judge Of Branch 9,
Regional Trial Court, Dipolog City, Dante Mah
Y Cabilin
b. Enumerate the ELEMENTS OF THE
CRIME OF ILLEGAL POSSESSION OF
DANGEROUS DRUGS.
The elements of the crime of illegal
possession of dangerous drugs are as
follow:
(a) the accused was in possession
of the regulated drugs;
(b) the accused was fully and
consciously aware of being in
possession of the regulated drug;
and
(c) the accused had no legal
authority to possess the regulated
drug. Possession may actual or
constructive. People vs. Eliza Buan,
G.R. No. 168773, OCT. 27, 200
c. What is the concept of “POSSESSION”?
The court in People vs Tira, 430
SCRA 134 (2004), ruminated on the
juridical concept of possession and the
evidence necessary to prove the said crime.
26
Since the crime charged is mala prohibita,
criminal intent is not essential element.
However the prosecution must prove that
the accused had the intent to possess
(animus
posidendi)
the
drugs.
Possession, under the law, includes not
only actual possession, but also
constructive possession. Constructive
possession exists when the drug is under
the dominion and control of the accused or
when he has the right to exercise dominion
and control over the place where it is
found. Exclusive possession or control is
not necessary. The accused cannot avoid
conviction if his right to exercise control
and dominion over the place where the
contraband is located, is shared with
another. Thus conviction need not be
predicated upon exclusive possession, and
the showing of non-exclusive and any
reasonable inference drawn therefrom.
However, the prosecution must prove that
the accused had knowledge of the
existence and presence of the drug in the
place under his control and dominion and
the character of the drug.
The fact that the appellant was not
in the residence when it was searched nor
caught in flagrante delicto possessing the
illicit drugs and paraphernalia does not
dent the case of the prosecution. As a
matter of law, when prohibited and
regulated drugs (under the old law) are
found in a house or other building
belonging to and occupied by a particular
person, the presumption arises that such
person is in possession of such drugs in
violation of law, and the fact of finding the
same is sufficient to convict. Otherwise
stated, the finding of the illicit drugs and
paraphernalia in the house owned by the
appellant raised the presumption of
knowledge and, standing alone, was
sufficient to convict. People vs. Torres, G.R.
No. 170837, September 12, 2006
d. When will the PRIMA FACIE EVIDENCE OF
KNOWLEDGE or ANIMUS POSSIDENDI arise?
Mere possession of a regulated drug
per se constitutes prima facie evidence of
knowledge or animus possidendi sufficient to
convict an accused absent a satisfactory
explanation of such possession- the onus
probandi is shifted to the accused, to explain
the absence of knowledge or animus
possidendi”. With the burden of evidence
shifted to the appellant, it was his duty to
explain his innocence on the regulated drug
seized from his person. People vs. Gomez, G.R.
No. 175319, January 15, 2010
e. What must be proved to establish
CONSTRUCTIVE POSSESSION?
In order to establish constructive
possession, the People must prove that
petitioner has dominion or control on
either the substance or the premises where
found. The state must prove adequate
nexus between the accused and the
prohibited substance.
Possession of
dangerous drugs constitutes prima facie
evidence of knowledge or animus
possidendi sufficient to convict an accused
in the absence of any satisfactory
explanation of such possession.
The
burden of evidence is shifted to petitioner
to explain the absence of animus
possidendi. People vs .Buan, G.R. No.
168773, OCT. 27, 2006
Illustrative case
BAR Q. [2002] A and his fiancée B were
walking in the plaza when they met a
group of policemen who had been tipped
off that A was in possession of prohibited
drugs. Upon seeing the policemen and
sensing that they were after him, A
handed a sachet containing shabu to his
fiancée B, telling her to hide it her
handbag. The policemen saw B placing
the sachet inside her handbag. If B was
unaware that A was a drug user or pusher
or that what was inside the sachet given
to her was shabu, is she nonetheless
liable under the Dangerous Drugs Act?
Suggested Answer: B is not
criminally liable. The facts clearly show the
absence of animus possidendi or intent to
possess which is an element of the crime of
illegal possession of drugs. The accused was
not fully and consciously aware of being in
possession of the dangerous drug.
27
4. Use of Dangerous Drugs. (Sec.15)
a. What is the rule with respect to the use
of dangerous drugs?
A person apprehended or arrested,
who is found to be positive for use of any
dangerous drug, after a confirmatory test,
shall be imposed a penalty of a minimum of
six (6) months rehabilitation in a
government center for the first offense,
subject to the provisions of Article VIII of this
Act. If apprehended using any dangerous
drug for the second time, he/she shall suffer
the penalty of imprisonment ranging from
six (6) years and one (1) day to twelve (12)
years and a fine ranging from Fifty thousand
pesos (P50,000.00) to Two hundred
thousand pesos (P200,000.00).
b. Is there an exception to this rule?
Yes, Section 15 of R.A. expressly
excludes penalties for the use of dangerous
drugs when the person is found to have in his
possession quantity of any dangerous drug
under Section 11. It states:
“That this Section shall not be applicable
where the person tested is also found to
have in his/her possession such quantity
of any dangerous drug provided for under
Section 11 of this Act, in which case the
provisions stated therein shall apply.”
Illustrative case
BAR Q. [2005] Obie Juan is suspected to
have in his possession an unspecified
amount
of
methamphetamine
hydrochloride
or
“shabu”.
An
entrapment operation was conducted by
police officers, resulting in his arrest
following the discovery of 100 grams of
the said dangerous drug in his
possession. He was subjected to a drug
test and was found positive for the use of
marijuana, another dangerous drug. He
was subsequently charged with two
crimes: Violation of Section 11, Article II
of RA 9165 for the possession of “shabu”
and violation of Section 15 for the use of
marijuana. Are the charges proper?
Explain.
Suggested Answer: The charge of
possession of shabu under Section 11, Article
II of RA 9165 is proper. The entrapment
operation yielded the discovery of 100 grams
of the said dangerous drug in his possession.
However, the charge of use of marijuana is not
proper. Section 15 of Rep Act 9165 is explicit.
It excludes penalties for use of dangerous
drugs when “the person tested is also found to
have in possession such quantity of any
dangerous drug” provided in Section 11 of
such Act”.
2.00 CHAIN OF CUSTODY (SEC. 21)
a. CITE THE PROPER CUSTODY AND
DISPOSITION OF CONFISCATED, SEIZED,
AND/OR SURRENDERED DANGEROUS
DRUGS, PLANT SOURCES OF DANGEROUS
DRUGS, CONTROLLED PRECURSORS AND
ESSENTIAL
CHEMICALS,
INSTRUMENTS/PARAPHERNALIA
AND/OR
LABORATORY
EQUIPMENT
UNDER SEC. 21 OF R.A.9165.
Sec. 21 of R.A. 9165 expressly
provides that:
“The PDEA shall take charge and have
custody of all dangerous drugs, plant
sources of dangerous drugs, controlled
precursors and essential chemicals, as
well
as
instruments/paraphernalia
and/or
laboratory
equipment
so
confiscated, seized and/or surrendered,
for proper disposition in the following
manner:
(1) The apprehending team having initial
custody and control of the drugs shall,
immediately
after
seizure
and
confiscation, physically inventory and
photograph the same in the presence of
the accused or the person/s from whom
such items were confiscated and/or
seized, or his/her representative or
counsel, a representative from the media
and the Department of Justice (DOJ), and
any elected public official who shall be
required to sign the copies of the inventory
and be given a copy thereof;
(2) Within twenty-four (24) hours upon
confiscation/seizure of dangerous drugs,
plant sources of dangerous drugs,
controlled precursors and essential
chemicals,
as
well
as
instruments/paraphernalia
and/or
laboratory equipment, the same shall be
submitted to the PDEA Forensic
28
Laboratory for a qualitative
quantitative examination;
and
(3) A certification of the forensic
laboratory examination results, which
shall be done under oath by the forensic
laboratory examiner, shall be issued
within twenty-four (24) hours after the
receipt of the subject item/s: Provided,
That when the volume of the dangerous
drugs, plant sources of dangerous drugs,
and controlled precursors and essential
chemicals does not allow the completion of
testing within the time frame, a partial
laboratory examination report shall be
provisionally issued stating therein the
quantities of dangerous drugs still to be
examined by the forensic laboratory:
Provided, however, That a final
certification shall be issued on the
completed
forensic
laboratory
examination on the same within the next
twenty-four (24) hours;
(4) After the filing of the criminal case, the
Court shall, within seventy-two (72) hours,
conduct an ocular inspection of the
confiscated, seized and/or surrendered
dangerous drugs, plant sources of
dangerous
drugs,
and
controlled
precursors and essential chemicals,
including the instruments/paraphernalia
and/or laboratory equipment, and
through the PDEA shall within twenty-four
(24) hours thereafter proceed with the
destruction or burning of the same, in the
presence of the accused or the person/s
from whom such items were confiscated
and/or seized, or his/her representative
or counsel, a representative from the
media and the DOJ, civil society groups
and any elected public official. The Board
shall draw up the guidelines on the
manner of proper disposition and
destruction of such item/s which shall be
borne by the offender: Provided, That
those item/s of lawful commerce, as
determined by the Board, shall be
donated, used or recycled for legitimate
purposes: Provided, further, That a
representative sample, duly weighed and
recorded is retained;
(5) The Board shall then issue a sworn
certification as to the fact of destruction or
burning of the subject item/s which,
together with the representative sample/s
in the custody of the PDEA, shall be
submitted to the court having jurisdiction
over the case. In all instances, the
representative sample/s shall be kept to a
minimum quantity as determined by the
Board;
(6) The alleged offender or his/her
representative or counsel shall be allowed
to personally observe all of the above
proceedings and his/her presence shall
not constitute an admission of guilt. In
case the said offender or accused refuses
or fails to appoint a representative after
due notice in writing to the accused or
his/her counsel within seventy-two (72)
hours before the actual burning or
destruction of the evidence in question, the
Secretary of Justice shall appoint a
member of the public attorney's office to
represent the former;
(7) After the promulgation and judgment
in the criminal case wherein the
representative sample/s was presented as
evidence in court, the trial prosecutor
shall inform the Board of the final
termination of the case and, in turn, shall
request the court for leave to turn over the
said representative sample/s to the PDEA
for proper disposition and destruction
within twenty-four (24) hours from
receipt of the same; and
(8) Transitory Provision: a) Within
twenty-four (24) hours from the effectivity
of this Act, dangerous drugs defined
herein which are presently in possession
of law enforcement agencies shall, with
leave of court, be burned or destroyed, in
the presence of representatives of the
Court, DOJ, Department of Health (DOH)
and the accused/and or his/her counsel,
and, b) Pending the organization of the
PDEA, the custody, disposition, and
burning
or
destruction
of
seized/surrendered dangerous drugs
provided under this Section shall be
implemented by the DOH.”
b. What does “CHAIN OF CUSTODY” mean?
“Chain of Custody” means the duly
recorded authorized movements and
custody of seized drugs or controlled
chemicals or plant sources of dangerous
drugs or laboratory equipment of each stage,
from the time of seizure/confiscation to
receipt in the forensic laboratory to
safekeeping to presentation in court for
destruction. Such record of movements and
custody of seized item shall include the
29
identity and signature of the person who
held temporary custody of the seized item,
the date and time when such transfer of
custody were made in the course of
safekeeping and used in court as evidence,
and the final disposition. People vs. Ruiz
Garcia, G.R. No.173480 February 25, 2009
c. Is strict compliance with the prescribed
procedure essential?
Yes. Section 21, paragraph 1,
Article II of R.A. No. 9165 and Section
21(a), Article II of the Implementing Rules
and Regulations (IRR) of RA No. 9165 give
us the procedures that the apprehending
team should observe in the handling of
seized illegal drugs in order to preserve
their identity and integrity as evidence. As
indicated by their mandatory terms, strict
compliance
with
the
prescribed
procedure is essential and the prosecution
must show compliance in every case.
People vs. Alejandro, G.R. No. 176350,
August 10, 2011
Strict
compliance
with
the
prescribed procedure is required because of
the illegal drug’s unique characteristic
rendering it indistinct, not readily
identifiable, and easily open to tampering,
alteration or substitution either by accident
or otherwise. Hence, the rules on the
measures to be observed during and after the
seizure, during the custody and transfer of
the drugs for examination, and at all times up
to their presentation in court. The Court
recognized the following links that must be
established in the chain of custody in a buybust situation:
first, the seizure and marking, if
practicable, of the illegal drug
recovered from the accused by the
apprehending officer;
second, the turnover of the illegal
drug seized by the apprehending
officer to the investigating officer;
third, the turnover by the
investigating officer of the illegal
drug to the forensic chemist for
laboratory examination; and
fourth, the turnover and submission
of the marked illegal drug seized
from the forensic chemist to the
court. People vs. Kamad, G.R. No.
174198, January 19, 2010
d. Would non-compliance with the
prescribed procedural requirements
render the seizure void?
No. Mere lapses in procedures need
not invalidate a seizure if the integrity and
evidentiary value of the seized items can be
shown to have been preserved.
As held in the case of People vs.
Alejandro, G.R. No. 176350, August 10, 2011,
the Supreme Court pronounced that noncompliance with the prescribed procedural
requirements does not necessarily render
the seizure and custody of the items void and
invalid; the seizure may still be held to be
valid, provided that (a) there is a
justifiableground
for the noncompliance, and (b) the integrity and
evidentiary value of the seized items are
shown to have been properly preserved.
Further, in another case, the Court
stressed that the failure on the part of the
police officers to take photographs and make
an inventory of the drugs seized from the
appellant was not fatal because the
prosecution was able to preserve the
integrity and evidentiary value of the said
illegal drugs. People vs. Llamado, G.R. No.
185278 March 13, 2009
However, the failure to follow the
procedure mandated under R.A. No. 9165
and its IRR must be adequately explained.
The justifiable ground for non-compliance
must be proven as a fact. The court cannot
presume what these grounds are or that they
even exist. People vs. De Guzman, G.R. No.
186498, March 26, 2010
e. Is the presumption of regular
performance of duty conclusive in chain
of custody cases?
No. this presumption is not
conclusive and cannot, by itself, overcome
the constitutional presumption of
innocence. The presumption of regularity,
it must be emphasized, obtains only when
there is no deviation from the regular
performance of duty.
Where the official act in question
is irregular on its face, no presumption of
30
regularity can arise. In the present case,
the
procedural
lapses
by
the
apprehending team in the handling of the
seized items – from their failure to mark it
immediately upon confiscation, to their
failure to inventory and photograph it in
the presence of the accused, or his
representative
or
counsel,
a
representative from the media and the
DOJ, and any elected public official,
without offering any justifiable ground –
effectively negated the presumption of
regularity. People vs. Alejandro, G.R. No.
176350, August 10, 2011
f. Does the stipulation to the chemist’s
receipt of an “allegedly” confiscated
specimen which tested positive for shabu
sufficient?
No. The stipulation referred to the
chemist’s receipt of an “allegedly” confiscated
specimen which tested positive for shabu is
not sufficient. There is no certainty that what
was submitted and subjected for chemical
examination was the specimen obtained from
appellant.
The failure to establish the
evidence’s chain of custody is damaging to the
prosecution’s case. People vs. Balagat, G.R. No.
177163, April 24, 2000
g. Cite certain important doctrines under
the Chain of Custody.
1. The chain of custody requirement
is essential to ensure that doubts regarding
the identity of the evidence are removed
through the monitoring and tracking of the
movements of the seized drugs from the
accused, to the police, to the forensic
chemist, and finally to the court. People v.
Sitco, May 14, 2010
2. The duty to prove the guilt of an
accused is reposed in the State. Law
enforcers and public officers have the duty to
preserve the chain of custody over the seized
drugs. This guarantee of the integrity of the
evidence to be used against an accused goes
to the very heart of his fundamental rights.
People vs .De Guzman, G.R. No. 186498, March
26, 2010
3. Given the foregoing perspective, it is
fairly evident that the police operatives
trifled with the procedures in the custody of
seized prohibited drugs in a buy-bust
operation, as embodied in Sec. 21(1), Art. II of
RA 9165, i.e., the apprehending officer/team
having initial custody and control of the drug
shall:
immediately after seizure
and confiscation, physically
inventory and photograph
the [drug] in the presence of
the accused or the person/s
from whom such items were
confiscated and/or seized, or
his/her representative or
counsel, a representative
from the media and the
Department of Justice (DOJ),
and any elected public official
who shall be required to sign
the copies of the inventory
and be given a copy thereof.
In this case, no physical inventory
was made and no photograph taken nor
markings made on the seized articles at the
crime scene there is no reasonable assurance
that no tampering or substitution occurred
between the time the police seized the black
bag in P. Ocampo St. in Manila until its
contents were tested in the laboratory of the
PNP R-IV headquarters in Canlubang,
Laguna. In net effect, a heavy cloud of doubt
hangs over the integrity and necessarily the
evidentiary value of the seized items. People
vs. Cervantes, G.R. No. 181494, March 17, 2009
4. It cannot be over-emphasized that
pertinent provisions of RA 9165 require that
the seized illegal items shall, after their
inventory, be photographed in the presence
of the drug dealer, representatives of media,
the Department of Justice, or any elected
public official who participated in the
operation. The records do not yield an
indication that this particular requirement
has been complied with.To reiterate, the
chain of custody requirement is necessary in
order to remove doubts as to the identity of
the evidence, by monitoring and tracking
custody of the seized drugs from the accused,
until they reach the court. A failure to comply
with the aforequoted Sec. 21 (1) of RA 9165
implies a concomitant failure on the part of
the prosecution to establish the identity of
the seized illegal items as part of the corpus
delicti. People v. Sitco, May 14, 2010
5. As a method of authenticating
evidence, the chain of custody rule requires
that the admission of an exhibit be preceded
by evidence sufficient to support a finding
that the matter in question is what the
proponent claims it to be. It would include
31
testimony about every link in the chain, from
the moment the item was picked up to the
time it is offered in evidence, in such a way
that every person who touched the exhibit
would describe how and from whom it was
received, where it was and what happened to
it while in the witness’ possession, the
condition in which it was received and the
condition in which it was delivered to the
next link in the chain. These witnesses would
then describe the precautions taken to
ensure that there had been no change in the
condition of the item and no opportunity for
someone not in the chain to have possession
of the same. Indeed, it is from the testimony
of every witness who handled the evidence
that a reliable assurance can be derived that
the evidence presented in court and that
seized from the accused are one and the
same. People v. De Guzman, March 26, 2010
test and was found positive for the use of
marijuana, another dangerous drug. He
was subsequently charged with two
crimes: Violation of Section 11, Article II
of RA 9165 for the possession of “shabu”
and violation of Section 15 for the use of
marijuana. X X X So as not to be sentenced
to death, Obie Juan offers to plead guilty to
a lesser offense. Can he do so? Why?
6. The chain of custody requirement
is essential to ensure that doubts regarding
the identity of the evidence are removed
through the monitoring and tracking of the
movements of the seized drugs from the
accused, to the police, to the forensic
chemist, and finally to the court. People v.
Sitco, May 14, 2010
2.02 CAN A PERSON CONVICTED OF DRUG
TRAFFICKING OR PUSHING AVAIL OF
THE
BENEFITS
UNDER
THE
PROBATION LAW? (SEC. 24)
7. The duty to prove the guilt of an
accused is reposed in the State. Law
enforcers and public officers have the duty to
preserve the chain of custody over the seized
drugs. This guarantee of the integrity of the
evidence to be used against an accused goes
to the very heart of his fundamental rights.
People vs .De Guzman, G.R. No. 186498, March
26, 2010
2.01 IS PLEA BARGAINING ALLLOWED
UNDER THIS LAW? (SEC. 23)
Any person charged under any provision
of this Act regardless of the imposable
penalty shall not be allowed to avail of the
provision on plea-bargaining.
Illustrative case
BAR Q. [2005] Obie Juan is suspected to
have in his possession an unspecified
amount
of
methamphetamine
hydrochloride
or
“shabu”.
An
entrapment operation was conducted by
police officers, resulting in his arrest
following the discovery of 100 grams of
the said dangerous drug in his
possession. He was subjected to a drug
Suggested Answer: No, Obie Juan
cannot plead guilty to a lesser offense since
this is explicitly prohibited under Section 23
of R.A. 9165. The law provides that any
person charged under any provision of this
Act regardless of the imposable penalty shall
not be allowed to avail of the provisions on
plea bargaining.
No, a person convicted of either drug
trafficking or pushing cannot avail of the
benefits of probation. Under the express
provision of Section 24, it provides:
“Any person convicted for drug trafficking
or pushing under this Act, regardless of
the penalty imposed by the Court, cannot
avail of the privilege granted by the
Probation Law or Presidential Decree No.
968, as amended.”
2.03 CITE THE SIGNIFICANCE IF A
POSITIVE FINDING FOR THE USE
OF DANGEROUS DRUGS IS FOUND
IN THE COMMISSION OF A CRIME.
(SEC. 25)
It shall constitute as a Qualifying
Aggravating
Circumstance
in
the
commission of the crime. Republic Act 9165
expressly reads:
“ x x x a positive finding for the use of
dangerous drugs shall be a qualifying
aggravating
circumstance
in
the
commission of a crime by an offender, and
the application of the penalty provided for
in the Revised Penal Code shall be
applicable.”
Illustrative case
32
BAR Q. [2005] Candido stabbed an
innocent bystander who accidentally
bumped him. The innocent bystander
died as a result of the stabbing. Candido
was arrested and was tested to be
positive for the use of shabu at the time
he committed the stabbing.
What should be the proper charge
against Candido?
Suggested Answer: Candido is
guilty of homicide only. The act of stabbing
was not consciously adopted but only
accidental and therefore, negates treachery.
However, since the crime was committed
when he was under the influence of
dangerous drugs, such act becomes a
qualifying circumstance pursuant to Section
25, R.A. 9165.
2.04 UNDER THE LAW, THERE ARE ACTS
WHERE MERE ATTEMPT OR
CONSPIRACY TO COMMIT THE
SAME IS ALREADY PUNISHABLE.
CITE THE UNLAWFUL ACTS.
(SEC.26)
Sec. 26 enumerates the acts where
mere attempt or conspiracy to commit the
following unlawful acts are punished. It
states:
“Any attempt or conspiracy to commit the
following unlawful acts shall be penalized:
(a) Importation of any dangerous drug
and/or controlled precursor and
essential chemical;
(b)
Sale,
trading,
administration,
dispensation, delivery, distribution
and transportation of any dangerous
drug and/or controlled precursor
and essential chemical;
(c) Maintenance of a den, dive or resort
where any dangerous drug is used in
any form;
(d) Manufacture of any dangerous drug
and/or controlled precursor and
essential chemical; and
(e) Cultivation or culture of plants which
are sources of dangerous drugs”
MINOR OFFENDERS
3.00 WHO MAY AVAIL OF SUSPENSION OF
SENTENCE?
A first-time minor offender who is over 15
years of age at the time he committed an
offense punished under Sec. 11 but not more
than 18 years at the time judgment of
conviction had been rendered may avail of
suspension of sentence. According to R.A.
9265:
“An accused who is over fifteen (15) years
of age at the time of the commission of the
offense mentioned in Section 11 of this Act,
but not more than eighteen (18) years of
age at the time when judgment should
have been promulgated after having been
found guilty of said offense, may be given
the benefits of a suspended sentence.”
3.01 WHAT IS THE CONSEQUENCE AFTER
COMPLIANCE WITH CONDITIONS OF
SUSPENDED SENTENCE BY A FIRSTTIME MINOR OFFENDER?
If the accused first time minor
offender under suspended sentence
complies with the applicable rules and
regulations of the Board, including
confinement in a Center, the court, upon a
favorable recommendation of the Board for
the final discharge of the accused, shall
discharge the accused and dismiss all
proceedings.
Upon the dismissal of the
proceedings against the accused, the court
shall enter an order to expunge all official
records, other than the confidential record to
be retained by the DOJ relating to the case.
Such an order, which shall be kept
confidential, shall restore the accused to
his/her status prior to the case. He/she shall
not be held thereafter to be guilty of perjury
or of concealment or misrepresentation by
reason of his/her failure to acknowledge the
case or recite any fact related thereto in
response to any inquiry made of him for any
purpose.
3.02 CAN THE PRIVILEGE OF SUSPENDED
SENTENCE BE AVAILED OF MORE
THAN ONCE BY A FIRST-TIME
MINOR OFFENDER?
No. The privilege of suspended
sentence shall be availed of only once by an
33
accused drug dependent who is a first-time
offender over fifteen (15) years of age at the
time of the commission of the violation of
Section 15 of this Act but not more than
eighteen (18) years of age at the time when
judgment should have been promulgated.
3.03 WHAT IS THE CONSEQUENCE IF THE
ACCUSED
FIRST-TIME
MINOR
OFFENDER VIOLATES ANY OF THE
CONDITIONS
OF
HIS/HER
SUSPENDED SENTENCE?
The court shall pronounce judgment
of conviction and he/she shall serve sentence
as any other convicted person.
3.04
CAN THE COURT PLACE THE
ACCUSED UNDER PROBATION OR
COMMUNITY SERVICE IN LIEU OF
IMPRISONMENT?
Yes, Section 70 allows the court, in
its discretion to place the accused under
probation or imposed community service in
lieu of imprisonment.
LIMITED APPLICABILITY OF THE
REVISED PENAL CODE
4.00 ARE THE PROVISIONS OF THE
REVISED PENAL CODE APPLICABLE TO
R.A. 9165?
The provisions of the Revised Penal
Code have limited applicability. The law
provides that notwithstanding any law, rule
or regulation to the contrary, the provisions
of the Revised Penal Code (Act No. 3814), as
amended, shall not apply to the provisions of
this Act, except in the case of minor
offenders. Where the offender is a minor, the
penalty for acts punishable by life
imprisonment to death provided herein shall
be reclusion perpetua to death.
ADDENDUM:
1. The identity of the prohibited drug
must be established.
Proof of the chain of custody from the
time of seizure to the time such evidence is
presented in court ensures the absence of
doubt concerning the integrity of such vital
evidence. This requires as a minimum that
the police mark the seized item (1) in the
presence of the apprehended violator and
(2) immediately upon confiscation. (People
vs. Palomares, G.R. No. 200915, February
12, 2014)
2. Essential elements of illegal sale.
In this case, the prosecution failed to
prove that each and every element that
constitutes an illegal sale of dangerous drug
was present to convict the accused. Upon
evaluation of the testimonies of PO1
Familara and PO1 Mendoza, it is apparent
that there is an inconsistency on the identity
and number of plastic sachets bought from
the accused. In his statement, PO1 Familara
recalled that upon arrival at the place of
arrest, PO1 Mendoza told him that he was
able to buy one plastic sachet of shabu from
Guinto. On the other hand, PO1 Mendoza
recalled that he was able to buy two plastic
sachets instead of one. The pointed
inconsistency is not a minor one that can be
brushed aside as the discrepancy taints the
very corpus delicti of the crime of illegal sale.
A vital point of contention, the prosecution’s
evidence places in reasonable doubt the
identification of the dangerous drug that was
presented in court. (People vs. Guinto, G.R.
No. 198314, September 24, 2014, Perez, J.)
In order to overcome the
presumption of regularity, there must be
clear and convincing evidence that the police
officers did not properly perform their duties
or that they were prompted with ill motive,
none of which exists in this case. (People of
the Philippines vs. Mercidita Resurreccion
y Torres, G.R. No. 188310 June 13, 2013,
Leonardo-De Castro, J.)
The Court has held that prior
surveillance is not necessary to render a buybust operation legitimate, especially when
the buy-bust team is accompanied at the
target area by the informant. Similarly, the
presentation of an informant as a witness is
not regarded as indispensable to the success
in prosecuting drug-related cases. In this
case, the informant had actively participated
in the buy-bust operation and her testimony,
if presented, would merely corroborate the
testimonies of the members of the buy-bust
team. (People vs. Monceda, G.R. No. 176269,
November 13, 2013, Brion, J.)
3. What is “Marking”
“Marking” is the placing by the
apprehending officer of some distinguishing
signs with his/her initials and signature on
the items seized. Consistency with the “chain
34
of custody” rule requires that the “marking”
of the seized items — to truly ensure that
they are the same items that enter the chain
and are eventually the ones offered in
evidence — should be done (1) in the
presence of the apprehended violator (2)
immediately upon confiscation. (People vs.
Somoza, 701 SCRA 525, G.R. No. 197250,
July 17, 2013, Leonardo-De Castro, J.)
4. Chain of custody and objective test.
To establish the chain of custody in a
buy-bust operation, the prosecution must
establish the following links, namely: First,
the seizure and marking, if practicable, of the
illegal drug recovered from the accused by
the apprehending officer; Second, the
turnover of the illegal drug seized by the
apprehending officer to the investigating
officer; Third, the turnover by the
investigating officer of the illegal drug to the
forensic chemist for laboratory examination;
and Fourth, the turnover and submission of
the marked illegal drug seized by the forensic
chemist to the court.
The “objective test” is the duty of the
prosecution to present a complete picture
detailing the buy-bust operation — from the
initial contact between the poseur-buyer and
the pusher, the offer to purchase, the
promise or payment of the consideration,
until the consummation of the sale by the
delivery of the illegal subject of sale. (People
vs. Clara, 702 SCRA 273, G.R. No. 195528,
July 24, 2013, Perez, J.)
6. Effect of Gaps or Lapses in the Chain of
Custody of Illegal Drugs.
The discussion in People v. Lim is
apropos: x xx [A]ny apprehending team
having initial custody and control of said
drugs and/or paraphernalia, should
immediately after seizure and confiscation,
have the same physically inventoried and
photographed in the presence of the accused,
if there be any, and or his representative,
who shall be required to sign the copies of
the inventory and be given a copy
thereof. The failure of the agents to
comply with such a requirement raises a
doubt whether what was submitted for
laboratory examination and presented in
court was actually recovered from the
appellants. It negates the presumption
that official duties have been regularly
performed by the PAOC-TF agents.
(People vs. Balibay, G.R. No. 202701,
September 10, 2014, Perez, J.)
First, it is not clear from the evidence
that the marking, which was done in the
police station, was made in the presence of
the accused or his representative. Although
the Court has previously ruled that the
marking upon “immediate” confiscation of
the prohibited items contemplates even that
which was done at the nearest police station
or office of the apprehending team, the same
must always be done in the presence of the
accused or his representative.
Second, the prosecution failed to duly
accomplish the Certificate of Inventory and
to take photos of the seized items pursuant
to the above-stated provision.
Third, the Court finds conflicting
testimony and glaring inconsistencies that
would cast doubt on the integrity of the
handling of the seized drugs. (People of the
Philippines vs. Freddy Salonga y Afiado, G.
R. No. 194948, September 2, 2013, Sereno,
CJ.)
The following are the links that must
be established in the chain of custody in a
buy-bust situation: First, the seizure and
marking, if practicable, of the illegal drug
recovered from the accused by the
apprehending officer; Second, the turnover
of the illegal drug seized by the
apprehending officer to the investigating
officer; Third, the turnover by the
investigating officer of the illegal drug to the
forensic chemist for laboratory examination;
and Fourth, the turnover and submission of
the marked illegal drug seized from the
forensic chemist to the court.
The first crucial link in the chain of
custody starts with the seizure from
Enriquez of the dangerous drugs and its
subsequent marking. Nowhere in the
documentary and testimonial evidence of the
prosecution can it be found when these items
were actually marked and if they were
marked in the presence of Enriquez or at
least his representative.
The second link in the chain of
custody is the turnover of the illegal drug by
the apprehending officer to the investigating
officer. However, they both failed to identify
the person to whom they turned over the
seized items. There is no evidence to show
35
that he was the person who received the
seized items from the apprehending officers.
As for the third and the last links,
although records show that Chief of Police
Erese signed the request for laboratory
examination, he was not presented in court
to testify as such. The testimony of Chief of
Police Erese is indispensable because he
could have provided the critical link between
the testimony of SPO2 David, and the tenor of
the testimony of P/Insp. Dizon, which the
parties have stipulated on. Moreover, no one
testified as to how the confiscated items
were handled and cared for after the
laboratory examination. (People of the
Philippines vs. Arturo Enriquez De los
Reyes, G.R. No. 197550, September
25,2013, Leonardo-De Castro, J.)
In the case at bar, instead of
immediately marking the subject drug upon
its confiscation, PO2 Tuzon marked it with
his initials “EAT” only upon arrival at the
police station. While the failure of arresting
officers to mark the seized items at the place
of arrest does not, by itself, impair the
integrity of the chain of custody and render
the confiscated items inadmissible in
evidence, such circumstance, when taken in
light of the several other lapses in the chain
of custody that attend the present case,
forms part of a gross, systematic, or
deliberate disregard of the safeguards that
are drawn by the law, sufficient to create
reasonable doubt as to the culpability of the
accused.
6. Failure to immediately mark the seized
drugs.
To be able to create a first link in the
chain of custody, then, what is required is
that the marking be made in the presence of
the accused and upon immediate
confiscation. “Immediate confiscation” has
no exact definition. Thus, in People v. GumOyen, testimony that included the marking of
the seized items at the police station and in
the presence of the accused was sufficient in
showing compliance with the rules on chain
of custody. Marking upon immediate
confiscation contemplates even marking at
the nearest police station or office of the
apprehending team. (People of the
Philippines vs. Giovanni Ocfemia y Chavez,
G.R. No. 185383, September 25, 2013 ,
Leonardo-De Castro.)
7. Crime of illegal sale of dangerous drugs
necessarily includes the crime of illegal
possession.
Well-settled in jurisprudence that
the crime of illegal sale of dangerous drugs
necessarily includes the crime of illegal
possession of dangerous drugs.
The Court had further clarified, in
relation to the requirement of marking the
drugs “immediately after seizure and
confiscation,” that the marking may be
undertaken at the police station rather than
at the place of arrest for as long as it is done
in the presence of the accused and that what
is of utmost importance is the preservation
of its integrity and evidentiary value. (People
of the Philippines vs. Michael Maongco y
Yumonda, G.R. No. 196966, October
23,2013, Leonardo-De Castro, J.)
8. Failure to make an inventory and to
take photographs of the subject drug.
Contrary to the argument of the
defense, even the buy-bust team’s failure to
make an inventory and to take photographs
of the subject drug did not adversely affect
the prosecution’s case. What is essential is
that the integrity and evidentiary value of the
seized items which would be utilized in the
determination of the guilt or innocence of the
accused are preserved. (People vs. Loks, G.R.
No. 203433, November 27, 2013, Reyes, J.)
A proviso was added in the
implementing rules that “noncompliance
with these requirements under justifiable
grounds, as long as the integrity and the
evidentiary value of the seized items are
properly preserved by the apprehending
officer/team, shall not render void and
invalid such seizures of and custody over
said items.” Pertinently, it is the preservation
of the integrity and evidentiary value of the
seized items which must be proven to
establish the corpus delicti. (People vs.
Cerdon, G.R. No. 201111, August 6, 2014,
Perez, J.)
Coordination with the PDEA is not an
indispensable element of a proper buy-bust
operation. A buy-bust operation is not
invalidated by mere non-coordination with
the PDEA. (People vs. Montevirgen, G.R. No.
189840 December 11, 2013, Del Castillo, J.)
36
9. What does marking upon immediate
confiscation mean?
It begins with the marking of the
seized objects to fix its identity; Marking
upon
“immediate”
confiscation
can
reasonably cover marking done at the
nearest police station or office of the
apprehending team, especially when the
place of seizure is volatile and could draw
unpredictable
reactions
from
its
surroundings. (People vs. Bautista, G.R. No.
198113 December 11, 2013, Abad, J.)
10. Testimony of poseur-buyer not
indispensable.
The testimony of the poseur-buyer
was not therefore indispensable or
necessary; it would have been cumulative
merely, or corroborative at best." His
testimony can therefore be dispensed with
since the illicit transaction was actually
witnessed and adequately proved by the
prosecution witnesses. (People vs. Marcelo,
G.R. No. 181541, August 18, 2014, Del
Castillo, J.)
11. Failure to present the buy-bust
money.
Failure to present the buy-bust
money is not fatal to the prosecution’s cause.
It is not indispensable in drug cases since it
is merely corroborative evidence, and the
absence thereof does not create a hiatus in
the evidence for the prosecution provided
the sale of dangerous drugs is adequately
proven and the drug subject of the
transaction is presented before the court.
(People vs. Bayan, G.R. No. 200987, August
20, 2014, Perez, J.)
12. Actual and constructive possession
distinguished.
Exclusive possession or control is not
necessary.
The accused cannot avoid
conviction if his right to exercise control and
dominion over the place where the
contraband is located, is shared with
another. (People vs. De La Trinidad,G.R.
No. 199898, September 03, 2014,Perez, J.)
13. Effect of failure to offer in evidence the
Certificate of Inventory and the formal
request for examination of the
confiscated substance.
It is true that the prosecution did not
formally offer in evidence the Certificate of
Inventory and the formal request for
examination of the confiscated substance. Be
that as it may, the Court has previously held
that even if an exhibit is not formally offered,
the same “may still be admitted against the
adverse party if, first, it has been duly
identified by testimony duly recorded and,
second, it has itself been incorporated in the
records of the case.” PO3 Velasquez
categorically testified that an inventory of
the seized drugs was performed, a
corresponding certificate was prepared, and
a formal request for examination was made.
He further narrated that together with the
formal request, he submitted and delivered
the confiscated drugs to the crime
laboratory. On the basis of the said formal
request, P/Insp. Roderos examined the
specimen and she likewise testified on this.
Appellant’s counsel even asked the said
prosecution witnesses regarding these
documents. Considering the said testimonies
and the fact that the documents were
incorporated in the records of the case, they
are therefore admissible against appellant.
(People vs. Baturi, G.R. No. 189812,
September 01, 2014, Del Castillo, J.)
14.
Presentation
informant.
of
confidential
The non-presentation of the
confidential informant as a witness does not
ordinarily weaken the State's case against
the accused. However, if the arresting
lawmen arrested the accused based on the
pre-arranged signal from the confidential
informant who acted as the poseur buyer, his
non-presentation must be credibly explained
and the transaction established by other
ways in order to satisfy the quantum of proof
beyond reasonable doubt because the
arresting lawmen did not themselves
participate in the buy-bust transaction with
the accused.
In People vs. Lopez (214 SCRA 323), it
was held that there was no need for the
prosecution to present the confidential
informer as the poseur-buyer himself
positively identified the accused as the one
who sold to him one deck of
methamphetamine
hydrochloride
or
"shabu." The trial court then properly relied
on the testimonies of the police officers
despite the decision of the prosecution not to
present the informer. (People vs. Andaya,
37
G.R. No. 183700, October 13, 2014,
Bersamin, J.)
15. When seized item is “fruit of the
poisonous tree”.
Records have established that both
the arrest and the search were made without
a warrant. While the accused has already
waived his right to contest the legality of his
arrest, he is not deemed to have equally
waived his right to contest the legality of the
search. (Danilo Villanueva y Alcaraz vs.
People, G.R. No. 199042, November 17,
2014, Sereno, CJ. )
16. Plain view doctrine and its requisites.
The plain view doctrine applies when
the following requisites concur: (1) the law
enforcement officer in search of the evidence
has a prior justification for an intrusion or is
in a position from which he can view a
particular area; (2) the discovery of the
evidence in a plain view is inadvertent; and
(3) it is immediately apparent to the officer
that the item he observes may be evidence of
a crime, contraband or otherwise subject to
seizure. (Rizaldy Sanchez y Cajili vs. People,
G.R. No. 204589, November 19, 2014,
Mendoza, J.)
17. With reference to the importation and
possession of blasting caps, it seems plain
beyond argument that the latter is
inherent in the former so as to make them
juridically identical. There can hardly be
importation without possession. When
one brings something or causes
something to be brought into the country,
he necessarily has the possession of it.
The possession ensuing from the
importation may not be actual, but legal,
or constructive, but whatever its
character, the importer, in our opinion, is
a possessor in the juristic sense and he is
liable to criminal prosecution.
Applying the aforequoted ruling, this
Court finds that while appellants cannot be
held liable for the offense of illegal
importation charged in the information, their
criminal liability for illegal possession, if
proven beyond reasonable doubt, may
nevertheless be sustained. As previously
mentioned, the crime of importation of
regulated drugs is committed by importing
or bringing any regulated drug into the
Philippines without being authorized by
law. Indeed, when one brings something or
causes something to be brought into the
country, he necessarily has possession of the
same. Necessarily, therefore, importation
can never be proven without first
establishing possession, affirming the fact
that possession is a condition sine qua
non for it would rather be unjust to convict
one of illegal importation of regulated drugs
when he is not proven to be in possession
thereof.
In a similar manner, considering that
illegal possession is likewise an element of
and is necessarily included in illegal
importation of dangerous drugs, convicting
appellants of the former, if duly established
beyond reasonable doubt, does not amount
to a violation of their right to be informed of
the nature and cause of accusation against
them. Indeed, where an accused is charged
with a specific crime, he is duly informed not
only of such specific crime but also of lesser
crimes or offenses included therein.
The elements of illegal possession of
regulated drugs are as follows: (a) the
accused is in possession of an item or object
which is identified to be a regulated drug; (b)
such possession is not authorized by law;
and (c) the accused freely and consciously
possessed the regulated drug. The evidence
on record clearly established that appellants
were in possession of the bags containing the
regulated drugs without the requisite
authority. As mentioned previously, on the
date of appellants’ arrest, the apprehending
officers were conducting a surveillance of the
coast of Ambil Island in the Municipality of
Looc, Occidental Mindoro, upon being
informed by the Municipality’s Barangay
Captain that a suspicious-looking boat was
within the vicinity. Not long after, they
spotted two (2) boats anchored side by side,
the persons on which were transferring
cargo from one to the other. Interestingly, as
they moved closer to the area, one of the
boats hurriedly sped away. Upon reaching
the other boat, the police officers found the
appellants with several transparent plastic
bags containing what appeared to be shabu
which were plainly exposed to the view of
the officers. Clearly, appellants were found to
be in possession of the subject regulated
drugs. (People vs. Chi Chan Liu and Hui Lao
Chung, G.R. No. 189272, January 21, 2015,
Peralta, J.)
18. Decoy Solicitation.
38
The chain of custody is not
established solely by compliance with the
prescribed
physical
inventory
and
photographing of the seized drugs in the
presence of the enumerated persons. The
Implementing Rules and Regulations of R. A.
No. 9165 on the handling and disposition of
seized dangerous drugs states: x x x
Provided, further, that non-compliance with
these requirements under justifiable
grounds, as long as the integrity and
evidentiary value of the seized items are
properly preserved by the apprehending
officer/team, shall not render void and
invalid such seizures of and custody over
said items. (People vs. Rosauro, G.R. No.
209588, February 18, 2015, Perez, J.)
19. What does “deliver” mean?
Under Article I, Section 3(k) of the
same statute, the term “deliver” means “any
act of knowingly passing a dangerous drug to
another, personally or otherwise, and by any
means, with or without consideration.” On
the other hand, “sell” as defined in Section
3(ii) refers to “any act of giving away any
dangerous drug and/or controlled precursor
and essential chemical whether for money or
any other consideration.”
To establish the guilt of an accused
for the illegal delivery of a dangerous drug,
there must be evidence that “(1) the accused
passed on possession of a dangerous drug to
another, personally or otherwise, and by any
means; (2) such delivery” is not authorized
by law; and (3) the accused knowingly made
the delivery with or without consideration.
The presentation of the marked
money is immaterial in this case since the
crime of illegal delivery of a dangerous drug
can
be
committed
even
without
consideration or payment. (People vs. Reyes,
G.R. No. 194606, February 18, 2015, Del
Castillo, J.)
20. Chain of Custody.
In the prosecution of illegal
possession of dangerous drugs, the
dangerous drug itself constitutes the very
corpus delicti of the offense and, in sustaining
a conviction therefor, the identity and
integrity of the corpus delicti must definitely
12. Actual and constructive possession
distinguished.
In both cases of illegal sale and illegal
possession of dangerous drugs, the
prosecution must show the chain of custody
over the dangerous drug in order to establish
the corpus delicti, which is the dangerous
drug itself. The chain of custody rule comes
into play as a mode of authenticating the
seized illegal drug as evidence.
A substantial gap in the chain of
custody renders the identity and integrity of
the corpus delicti dubious. (Lopez vs.
People,G.R. No. 188653, January 29,
2014,Perez, J.)
First link of the chain, the seizure and
marking, if practicable, of the illegal drug
recovered from the accused by the
apprehending officer.
Second link of the chain, the turnover
of the illegal drug seized by the
apprehending officer to the investigating
officer.
Third link of the chain, the turnover
by the investigating officer of the illegal drug
to the forensic chemist for laboratory
examination.
Fourth link of the chain, the turnover
and submission of the marked illegal drug
seized by the forensic chemist to the court.
(People vs. Dahil and Castro, G.R. No.
212196, January 12, 2015, Mendoza, J.)
It has already been held that “the
infractions of the so-called Miranda rights
render inadmissible only the extrajudicial
confession or admission made during
custodial investigation.” Here, appellant’s
conviction was based not on his alleged
uncounseled confession or admission but on
the testimony of the prosecution witness.
(People vs. Bio, G.R. No. 195850, February
16, 2015, Del Castillo, J.)
-oooOOOooo-
CHAPTER V. ANTI-VIOLENCE AGAINST
WOMEN ANDTHEIR CHILDREN ACT OF
2004
Republic Act No. 9262
[BAR 2011, 2010]
___________________________________________________
39
I. IN GENERAL
1.00 WHAT IS THE POLICY OF THE STATE
WITH RESPECT TO THE DIGNITY OF
WOMEN AND CHILDREN?
The State values the dignity of women and
children and guarantees full respect for
human rights. It also recognizes the need to
protect the family and its members
particularly women and children, from
violence and threats to their personal safety
and security.
PEOPLE VS. CABALQUINTO
G.R. No. 167693, September 19, 2006
RULING: Taking all these opinions into
account and in view of recent enactments
which unequivocally express the intention to
maintain the confidentiality of information in
cases involving violence against women and
their children, in this case and henceforth,
the Court shall withhold the real name of the
victim-survivor and shall use fictitious
initials instead to represent her. Likewise,
the personal circumstances of the victimssurvivors or any other information tending
to establish or compromise their identities,
as well those of their immediate family or
household members, shall not be disclosed.
WOMEN AND THEIR CHILDREN”
UNDER SECTION 3?
Section 3 states that violence against
women and children includes, but is not
limited to, the following acts: a) Physical
Violence
b)
Sexual
violence
c)
Psychological violence d) Economic abuse.
1.03 WHAT IS "PHYSICAL VIOLENCE"?
It refers to acts that include bodily or
physical harm;
1.04 WHAT IS “SEXUAL VIOLENCE"?
It refers to an act which is sexual in
nature, committed against a woman or her
child. It includes, but is not limited to:
a) rape, sexual harassment, acts of
lasciviousness, treating a woman or
her child as a sex object, making
demeaning and sexually suggestive
remarks, physically attacking the
sexual parts of the victim's body,
forcing her/him to watch obscene
publications and indecent shows or
forcing the woman or her child to do
indecent acts and/or make films
thereof, forcing the wife and
mistress/lover to live in the conjugal
home or sleep together in the same
room with the abuser;
1.01 DEFINE VIOLENCE AGAINST WOMEN
AND THEIR CHILDREN.
b) acts causing or attempting to
cause the victim to engage in any
sexual activity by force, threat of
force, physical or other harm or
threat of physical or other harm or
coercion;
Section 3 of R.A. 9262 gives the definition
of Violence against women and children. It
states:
“It refers to any act or a series of acts
committed by any person against a
woman who is his wife, former wife, or
against a woman with whom the person
has or had a sexual or dating relationship,
or with whom he has a common child, or
against her child whether legitimate or
illegitimate, within or without the family
abode, which result in or is likely to result
in physical, sexual, psychological harm or
suffering, or economic abuse including
threats of such acts, battery, assault,
coercion, harassment or arbitrary
deprivation of liberty. “
1.02 WHAT ARE THE ACTS INCLUDED IN
THE TERM “VIOLENCE AGAINST
c) Prostituting the woman or child.
1.05
WHAT
IS
VIOLENCE"?
"PSYCHOLOGICAL
It refers to acts or omissions causing
or likely to cause mental or emotional
suffering of the victim such as but not limited
to intimidation, harassment, stalking,
damage to property, public ridicule or
humiliation, repeated verbal abuse and
mental infidelity. It includes causing or
allowing the victim to witness the physical,
sexual or psychological abuse of a member of
the family to which the victim belongs, or to
witness pornography in any form or to
40
witness abusive injury to pets or to unlawful
or unwanted deprivation of the right to
custody and/or visitation of common
children.
1.06 WHAT IS "ECONOMIC ABUSE"?
It refers to acts that make or attempt
to make a woman financially dependent
which includes, but is not limited to the
following:
1. withdrawal of financial support or
preventing the victim from engaging
in any legitimate profession,
occupation, business or activity,
except in cases wherein the other
spouse/partner objects on valid,
serious and moral grounds as defined
in Article 73 of the Family Code;
2. deprivation or threat of
deprivation of financial resources
and the right to the use and
enjoyment
of
the
conjugal,
community or property owned in
common;
3. destroying household property;
4. controlling the victims' own money
or properties or solely controlling the
conjugal money or properties.
1.07 DEFINE “STALKING”.
It refers to an intentional act
committed by a person who, knowingly and
without lawful justification follows the
woman or her child or places the woman or
her child under surveillance directly or
indirectly or a combination thereof.
1.08 EXPLAIN THE CONCEPT OF “DATING
RELATIONSHIP”.
It refers to a situation wherein the
parties live as husband and wife without the
benefit of marriage or are romantically
involved over time and on a continuing basis
during the course of the relationship. A
casual
acquaintance
or
ordinary
socialization between two individuals in a
business or social context is not a dating
relationship.
1.09 EXPLAIN THE CONCEPT OF “SEXUAL
RELATIONS”.
It refers to a single sexual act which
may or may not result in the bearing of a
common child.
1.10
DIFFERENTIATE
RELATIONSHIP” FROM
RELATIONS”.
“DATING
“SEXUAL
Sexual relations refer to a single
sexual act which may or may not result in the
bearing of a common child.
R.A. 9262 provides in Section 3 that
“violence against women x x x refers to any
act or a series of acts committed by any
person against a woman x x x with whom the
person has or had a sexual or dating
relationship.” Clearly, the law itself
distinguishes a sexual relationship from a
dating relationship. Indeed, Section 3(e)
above defines “dating relationship” while
Section 3(f) defines “sexual relations.” The
latter “refers to a single sexual act which may
or may not result in the bearing of a common
child.” The dating relationship that the law
contemplates can, therefore, exist even
without a sexual intercourse taking place
between those involved. Rustan Ang Y Pascua
vs. Sagud, G.R. No. 182835, April 20, 2010
1.11 WHAT ARE THE ELEMENTS OF THE
CRIME OF VIOLENCE AGAINST
WOMEN?
The elements of the crime of violence
against women through harassment are:
1. The offender has or had a sexual or
dating relationship with the offended
woman;
2. The offender, by himself or through
another, commits an act or series of acts
of harassment against the woman; and
3. The harassment alarms or causes
substantial emotional or psychological
distress to her. Rustan Ang Y Pascua vs.
Sagud, G.R. No. 182835, April 20, 2010
41
1.12
DOES A SINGLE ACT
HARASSMENT
ENOUGH
CONVICT AN OFFENDER?
OF
TO
Yes. Section 3(a) of R.A. 9262 punishes
“any act or series of acts” that constitutes
violence against women. This means that a
single act of harassment, which translates
into violence, would be enough. The object of
the law is to protect women and children.
Punishing only violence that is repeatedly
committed would license isolated ones.
Rustan Ang Y Pascua vs. Sagud, G.R. No.
182835, April 20, 2010
1.13 MAY A TEMPORARY PROTECTION
ORDER (TPO) BE ISSUED IN FAVOR
OF A MAN AGAINST HIS WIFE?
A TPO cannot be issued in favor of a man
against his wife under R.A. No. 9292, known
as the Anti-Violence Against Women and
Their Children Act of 2004.I
In one case, the judge was found guilty of
gross ignorance of the law for issuing a
Temporary Protection Order (TPO) in favor
of a male petitioner. Indeed, as a family court
judge, the judge is expected to know the
correct implementation of R.A. No. 9292. See
Sylvia Santo vs. Judge Arcaya-Chua, A.M. No.
Rtj-07-2093, April 23, 2010
1.14 IS IT INDISPENSABLE THAT THE ACT
OF VIOLENCE BE A CONSEQUENCE
OF THE DATING OR SEXUAL
RELATIONSHIP?
This has been answered in this caseDabalos y San Diego vs. Paras Quiambao,
et. al.
G.R. No. 193960, January 7, 2013
ISSUE: Petitioner insists that the act which
resulted in physical injuries to private
respondent is not covered by RA 9262
because its proximate cause was not their
dating relationship. Instead, he claims that
the offense committed was only slight
physical injuries under the Revised Penal
Code which falls under the jurisdiction of the
Municipal Trial Court.
RULING: The Court is not persuaded quoting
Sec. 3(a) of RA 9262. The law is broad in
scope
but
specifies
two
limiting
qualifications for any act or series of acts to
be considered as a crime of violence against
women through physical harm, namely: 1) it
is committed against a woman or her child
and the woman is the offender’s wife, former
wife, or with whom he has or had sexual or
dating relationship or with whom he has a
common child; and 2) it results in or is likely
to result in physical harm or suffering.
Notably, while it is required that the
offender has or had a sexual or dating
relationship with the offended woman, for
RA 9262 to be applicable, it is not
indispensable that the act of violence be a
consequence of such relationship. Nowhere
in the law can such limitation be inferred.
Hence, applying the rule on statutory
construction that when the law does not
distinguish, neither should the courts, then,
clearly, the punishable acts refer to all acts of
violence against women with whom the
offender has or had a sexual or dating
relationship.
As correctly ruled by the RTC, it is
immaterial whether the relationship had
ceased for as long as there is sufficient
evidence showing the past or present
existence of such relationship between the
offender and the victim when the physical
harm was committed. Dabalos Y San Diego vs.
Judge Paras Quiambao, et al., G.R. No. 193960,
January 7, 2013
1.15 WHAT IS BATTERY?
It refers to an act of inflicting physical
harm upon the woman or her child resulting
to the physical and psychological or
emotional distress.
1.16 WHAT IS THE CONCEPT OF A
BATTERED WOMAN SYNDROME?
It refers to a scientifically defined
pattern of psychological and behavioral
symptoms found in women living in
battering relationships as a result of
cumulative abuse.
42
1.17 IS A BATTERED WOMEN SYNDROME
A PROPER DEFENSE?
tranquil, loving (or, at least, nonviolent)
phase.
Yes. Battered Women Syndrome is a
proper defense. Section 26 of R.A. 9262 is
explicit:
During the tension-building phase,
minor battering occurs -- it could be verbal
or slight physical abuse or another form of
hostile behavior. The woman usually tries to
pacify the batterer through a show of kind,
nurturing behavior; or by simply staying out
of his way. What actually happens is that she
allows herself to be abused in ways that, to
her, are comparatively minor. All she wants
is to prevent the escalation of the violence
exhibited by the batterer. This wish,
however, proves to be double-edged,
because her “placatory” and passive
behavior legitimizes his belief that he has the
right to abuse her in the first place.
“Victim-survivors who are found by the
courts to be suffering from battered
woman syndrome do not incur any
criminal
and
civil
liability
notwithstanding the absence of any of the
elements for justifying circumstances of
self-defense under the Revised Penal Code.
In the determination of the state of mind of
the woman who was suffering from
battered woman syndrome at the time of
the commission of the crime, the courts
shall be assisted by expert psychiatrists/
psychologists.”
People vs. Genosa
G.R. No. 135981, January 15, 2004
RULING:
A battered woman has been defined
as a woman “who is repeatedly subjected to
any forceful physical or psychological
behavior by a man in order to coerce her to
do something he wants her to do without
concern for her rights. Battered women
include wives or women in any form of
intimate
relationship
with
men. Furthermore, in order to be classified
as a battered woman, the couple must go
through the battering cycle at least
twice. Any woman may find herself in an
abusive relationship with a man once. If it
occurs a second time, and she remains in the
situation, she is defined as a battered
woman.”
Battered women exhibit common
personality traits, such as low self-esteem,
traditional beliefs about the home, the family
and the female sex role; emotional
dependence upon the dominant male; the
tendency to accept responsibility for the
batterer’s actions; and false hopes that the
relationship will improve.
More graphically, the battered
woman syndrome is characterized by the socalled “cycle of violence,” which has three
phases: (1) the tension-building phase; (2)
the acute battering incident; and (3) the
The acute battering incident is said
to
be
characterized
by
brutality,
destructiveness and, sometimes, death. The
battered woman deems this incident as
unpredictable, yet also inevitable. During
this phase, she has no control; only the
batterer may put an end to the violence. Its
nature can be as unpredictable as the time of
its explosion, and so are his reasons for
ending it. The battered woman usually
realizes that she cannot reason with him, and
that resistance would only exacerbate her
condition.
At this stage, she has a sense of
detachment from the attack and the terrible
pain, although she may later clearly
remember every detail. Her apparent
passivity in the face of acute violence may be
rationalized thus: the batterer is almost
always much stronger physically, and she
knows from her past painful experience that
it is futile to fight back. Acute battering
incidents are often very savage and out of
control, such that innocent bystanders or
intervenors are likely to get hurt.
The final phase of the cycle of
violence begins when the acute battering
incident ends. During this tranquil period,
the couple experience profound relief. On
the one hand, the batterer may show a tender
and nurturing behavior towards his
partner. He knows that he has been viciously
cruel and tries to make up for it, begging for
her forgiveness and promising never to beat
her again. On the other hand, the battered
woman also tries to convince herself that the
battery will never happen again; that her
partner will change for the better; and that
43
this “good, gentle and caring man” is the real
person whom she loves.
A battered woman usually believes
that she is the sole anchor of the emotional
stability of the batterer. Sensing his isolation
and despair, she feels responsible for his
well-being. The truth, though, is that the
chances of his reforming, or seeking or
receiving professional help, are very slim,
especially
if
she
remains
with
him. Generally, only after she leaves him
does he seek professional help as a way of
getting her back. Yet, it is in this phase of
remorseful reconciliation that she is most
thoroughly tormented psychologically.
Illustrative Cases
1. BAR Q. [2011] A battered woman
claiming self-defense under the AntiViolence against Women and Children
must prove that the final acute battering
episode was preceded by
A. 3 battering episodes.
B. 4 battering episodes.
C. 5 battering episodes.
D. 2 battering episodes
2. BAR Q. [2010] Jack and Jill have been
married for seven years. One night, Jack
came home drunk. Finding no food on the
table, Jack started hitting Jill only to
apologize the following day. A week later,
the same episode occurred – Jack came
home drunk and started hitting Jill.
Fearing for her life, Jill left and stayed
with her sister. To woo Jill back, Jack sent
her floral arrangements of spotted lilies
and confectioneries. Two days later, Jill
returned home and decided to give Jack
another chance. After several days,
however, Jack again came home drunk.
The following day, he was found dead. Jill
was charged with parricide but raised the
defense of “battered woman syndrome.”
A. Define “Battered Woman
Syndrome.”
Suggested Answer:
It refers to a
scientifically
defined
pattern
of
psychological and behavioral symptoms
found in women living in battering
relationships as a result of cumulative abuse.
B. What are the three phases of the
“Battered Woman Syndrome”?
Suggested Answer: The three phases
are the following: a) tension-building phase
b) acute battering incident c) tranquil and
loving phase.
C. Would the defense prosper despite the
absence of any of the elements for
justifying circumstances of self-defense
under the Revised Penal Code?
Suggested Answer:Yes, R.A. 9262
expressly states that victim-survivors who are
found by the courts to be suffering from
battered woman syndrome do not incur any
criminal and civil liability notwithstanding
the absence of any of the elements for
justifying circumstances of self-defense under
the Revised Penal Code.
1.18
HOW MUST
CONSTRUED?
THE
LAW
BE
It shall be liberally construed to promote
the protection and safety of victims of
violence against women and their children.
1.19 UNDER SECTION 5 OF THE ACT, HOW
IS THE CRIME OF VIOLENCE
AGAINST WOMEN AND CHILDREN
COMMITTED?
The acts constituting the crime of
violence against women and children are
anumerated under Section 5 of R.A. 9262
which provides:
“The crime of violence against
women and their children is committed
through any of the following acts:
(a) Causing physical harm to the
woman or her child;
(b) Threatening to cause the
woman or her child physical harm;
(c) Attempting to cause the woman
or her child physical harm;
(d) Placing the woman or her child
in fear of imminent physical harm;
(e) Attempting to compel or
compelling the woman or her child
to engage in conduct which the
woman or her child has the right to
desist from or desist from conduct
which the woman or her child has
the right to engage in, or
44
attempting to restrict or restricting
the woman's or her child's freedom
of movement or conduct by force or
threat of force, physical or other
harm or threat of physical or other
harm, or intimidation directed
against the woman or child. This
shall include, but not limited to, the
following acts committed with the
purpose or effect of controlling or
restricting the woman's or her
child's movement or conduct:
(1) Stalking or following the
woman or her child in public or
private places;
(1) Threatening to deprive or
actually depriving the woman or
her child of custody to her/his
family;
(4) Destroying the property and
personal belongings or inflicting
harm to animals or pets of the
woman or her child; and
(2) Depriving or threatening to
deprive the woman or her children
of financial support legally due her
or her family, or deliberately
providing the woman's children
insufficient financial support;
(5) Engaging in any form of
harassment or violence x x x.”
(3) Depriving or threatening to
deprive the woman or her child of
a legal right;
(4) Preventing the woman in
engaging in any legitimate
profession, occupation, business or
activity or controlling the victim's
own mon4ey or properties, or
solely controlling the conjugal or
common money, or properties;
(f) Inflicting or threatening to
inflict physical harm on oneself for
the purpose of controlling her
actions or decisions;
(g) Causing or attempting to cause
the woman or her child to engage in
any sexual activity which does not
constitute rape, by force or threat of
force, physical harm, or through
intimidation directed against the
woman or her child or her/his
immediate family;
(h) Engaging in purposeful,
knowing, or reckless conduct,
personally or through another that
alarms or causes substantial
emotional or psychological distress
to the woman or her child. This shall
include, but not be limited to, the
following acts:
(2) Peering in the window or
lingering outside the residence of
the woman or her child;
(3) Entering or remaining in the
dwelling or on the property of the
woman or her child against
her/his will;
1.20 DIFFERENTIATE SECTION 3 (A) FROM
SECTION 5 OF R.A. 9262.
Section 3 (a) of R.A. 9262 provides that
violence against women includes an act or
acts of a person against a woman with whom
he has or had a sexual or dating relationship
while Section 5 identifies the act or acts that
constitute violence against women and these
include any form of harassment that causes
substantial emotional or psychological
distress to a woman.
1.21 MAY THE ABUSES BE COMMITTED BY
ANOTHER THRU CONSPIRACY?
Yes the principle of conspiracy is
applicable.This is enunciated in the case ofSharica Mari L. Go-Tan vs. Spouses Tan
G.R. No. 168852: September 30, 2008
FACTS: Sharica Go-Tan, married to Steven
Tan, filed a Petition with Prayer for the
Issuance of a Temporary Protective Order
against Steven and her parents-in-law,
Spouses Perfecto C. Tan and Juanita L. Tan.
She alleged that Steven, in conspiracy with
her parents-in-law, was causing verbal,
psychological and economic abuses upon
her.
ISSUE: Whether or not Sharica’s parents-inlaw may be included in the petition for the
issuance of a protection order.
45
RULING: While the said provision provides
that the offender be related or connected to
the victim by marriage, former marriage, or a
sexual or dating relationship, it does not
preclude the application of the principle of
conspiracy under the RPC.
In Ladonga v. People, the Court
applied suppletorily the principle of
conspiracy under Article 8 of the RPC to B.P.
Blg. 22 in the absence of a contrary provision
therein. With more reason, therefore, the
principle of conspiracy under Article 8 of the
RPC may be applied suppletorily to R.A. No.
9262 because of the express provision of
Section 47 that the RPC shall be
supplementary to said law. Thus, general
provisions of the RPC, which by their nature,
are necessarily applicable, may be applied
suppletorily. Thus, the principle of
conspiracy may be applied to R.A. No. 9262.
For once conspiracy or action in concert to
achieve a criminal design is shown, the act of
one is the act of all the conspirators, and the
precise extent or modality of participation of
each of them becomes secondary, since all
the conspirators are principals.
It must be further noted that Section
5 of R.A. No. 9262 expressly recognizes that
the acts of violence against women and their
children may be committed by an offender
through another,
thus: SEC. 5. Acts of Violence Against
Women and Their Children. - The crime of
violence against women and their children is
committed through any of the following acts:
x x x (h) Engaging in purposeful, knowing, or
reckless conduct, personally or through
another, that alarms or causes substantial
emotional or psychological distress to the
woman or her child. This shall include, but
not be limited to, the following acts: (1)
Stalking or following the woman or her child
in public or private places; (2) Peering in the
window or lingering outside the residence of
the woman or her child; (3) Entering or
remaining in the dwelling or on the property
of the woman or her child against her/his
will; (4) Destroying the property and
personal belongings or inflicting harm to
animals or pets of the woman or her child;
and (5) Engaging in any form of harassment
or violence; x x x. (Emphasis supplied)
(i) Causing mental or emotional anguish,
public ridicule or humiliation to the woman
or her child, including, but not limited to,
repeated verbal and emotional abuse, and
denial of financial support or custody of
minor children of access to the woman's
child/children.
1.22 WHAT ARE THE PRESCRIPTIVE
PERIODS OF ACTS PUNISHABLE
UNDER THIS LAW?
Acts falling under Sections 5(a) to 5(f)
shall prescribe in twenty (20) years. Acts
falling under Sections 5(g) to 5(I) shall
prescribe in ten (10) years.
1.23 HOW IS THE CRIME OF VIOLENCE
AGAINST WOMEN AND CHILDREN
CLASSIFIED?
Violence against women and their
children shall be considered a public offense
which may be prosecuted upon the filing of a
complaint by any citizen having personal
knowledge of the circumstances involving
the commission of the crime.
1.24 IS BEING UNDER THE INFLUENCE OF
ALCOHOL OR ANY ILLICIT DRUG A
PROPER
DEFENSE
IN
THE
PROSECUTION OF THE OFFENSE?
Under express provision of Section 27
thereof, being under the influence of alcohol,
any illicit drug, or any other mind-altering
substance shall not be a defense under this
Act.
1.25 DOES THE REVISED PENAL CODE
HAVE SUPPLETORY APPLICATION
UNDER THIS ACT?
Yes. For purposes of this Act, the Revised
Penal Code and other applicable laws, shall
have suppletory application.
II. PROTECTION ORDERS
3.00 DEFINE PROTECTION ORDER UNDER
THIS ACT.
A protection order is an order issued
under this act for the purpose of preventing
further acts of violence against a woman or
her child specified in Section 5 of this Act and
46
granting other necessary relief.
3.01 WHAT IS THE IMPORTANCE OF THE
PROTECTION ORDER?
The relief granted under a protection
order serve the purpose of safeguarding the
victim from further harm, minimizing any
disruption in the victim's daily life, and
facilitating the opportunity and ability of the
victim to independently regain control over
her life. The provisions of the protection
order shall be enforced by law enforcement
agencies.
3.02
ENUMERATE THE PROTECTION
ORDERS THAT MAY BE ISSUED
UNDER THIS LAW.
The protection orders that may be issued
are the barangay protection order (BPO),
temporary protection order (TPO) and
permanent protection order (PPO).
Section 8 provides:
“The protection orders that may be issued
under this Act shall include any, some or
all of the following reliefs:
(a) Prohibition of the respondent from
threatening to commit or committing,
personally or through another, any of
the acts mentioned in Section 5 of this
Act;
(b) Prohibition of the respondent from
harassing, annoying, telephoning,
contacting
or
otherwise
communicating with the petitioner,
directly or indirectly;
(c)
Removal and exclusion of the
respondent from the residence of the
petitioner, regardless of ownership of
the residence, either temporarily for
the purpose of protecting the
petitioner, or permanently where no
property rights are violated, and if
respondent must remove personal
effects from the residence, the court
shall direct a law enforcement agent to
accompany the respondent has
gathered his things and escort
respondent from the residence;
(d) Directing the respondent to stay away
from petitioner and designated family
or household member at a distance
specified by the court, and to stay away
from the residence, school, place of
employment, or any specified place
frequented by the petitioner and any
designated family or household
member;
(e) Directing lawful possession and use by
petitioner of an automobile and other
essential personal effects, regardless
of ownership, and directing the
appropriate law enforcement officer to
accompany the petitioner to the
residence of the parties to ensure that
the petitioner is safely restored to the
possession of the automobile and
other essential personal effects, or to
supervise
the
petitioner's
or
respondent's removal of personal
belongings;
(f) Granting a temporary or permanent
custody of a child/children to the
petitioner;
(g) Directing the respondent to provide
support to the woman and/or her child if
entitled to legal support. Notwithstanding
other laws to the contrary, the court shall
order an appropriate percentage of the
income or salary of the respondent to be
withheld regularly by the respondent's
employer for the same to be automatically
remitted directly to the woman. Failure to
remit and/or withhold or any delay in the
remittance of support to the woman
and/or her child without justifiable cause
shall render the respondent or his
employer liable for indirect contempt of
court;
(h) Prohibition of the respondent from any
use or possession of any firearm or deadly
weapon and order him to surrender the
same to the court for appropriate
disposition by the court, including
revocation of license and disqualification
to apply for any license to use or possess a
firearm. If the offender is a law
enforcement agent, the court shall order
the offender to surrender his firearm and
shall direct the appropriate authority to
investigate on the offender and take
appropriate action on matter;
(i) Restitution for actual damages caused
by the violence inflicted, including, but not
limited to, property damage, medical
expenses, childcare expenses and loss of
47
income;
(j) Directing the DSWD or any appropriate
agency to provide petitioner may need;
and
(k) Provision of such other forms of relief
as the court deems necessary to protect
and provide for the safety of the petitioner
and any designated family or household
member, provided petitioner and any
designated family or household member
consents to such relief.
Any of the reliefs provided under this
section shall be granted even in the
absence of a decree of legal separation or
annulment or declaration of absolute
nullity of marriage.
The issuance of a BPO or the pendency of
an application for BPO shall not preclude
a petitioner from applying for, or the court
from granting a TPO or PPO.”
3.03 WHAT ARE THE RELIEFS AVAILABLE
TO THE OFFENDED PARTY? (SEC.11)
Section 11 of R.A. 9262 provides for
the reliefs available to the offended party. It
states:
“The protection order shall include any,
some or all of the following reliefs:
(a) Prohibiting the respondent from
threatening to commit or committing,
personally or through another, acts of
violence against the offended party;
(b) Prohibiting the respondent from
harassing,
annoying,
telephoning,
contacting or otherwise communicating in
any form with the offended party, either
directly or indirectly;
(c) Removing and excluding the
respondent from the residence of the
offended party, regardless of ownership of
the residence, either temporally for the
purpose of protecting the offended party,
or permanently where no property rights
are violated. If the respondent must
remove personal effects from the
residence, the court shall direct a law
enforcement agent to accompany the
respondent to the residence, remain there
until the respondent has gathered his
things and escort him from the residence;
(d) Requiring the respondent to stay away
from the offended party and any
designated family or household member
at a distance specified by the court;
(e) Requiring the respondent to stay away
from the residence, school, place of
employment or any specified place
frequented regularly by the offended
party and any designated family or
household member;
(f) Directing lawful possession and use by
the offended party of an automobile and
other
essential
personal
effects,
regardless of ownership, and directing the
appropriate law enforcement officer to
accompany the offended party to the
residence of the parties to ensure that the
offended party is safely restored to the
possession of the automobile and other
essential personal effects;
(g) Ordering temporary or permanent
custody of the child/children with the
offended party, taking into consideration
the best interests of the child. An offended
party who is suffering from Battered
Woman
Syndrome
shall
not
be
disqualified from having custody of her
children. In no case shall custody of minor
children be given to the batterer of a
woman who is suffering from Battered
Woman Syndrome;
(h) Directing the respondent to provide
support to the woman and/or her child, if
entitled to legal import. Notwithstanding
other laws to the contrary, the court shall
order an appropriate percentage of the
income or salary of the respondent to be
withheld regularly by his employer and to
automatically remit it directly to the
offended party. Failure to withhold, remit
or any delay in the remittance of support
to the offended party without justifiable
cause shall render the respondent or his
employer liable for indirect contempt of
court;
48
(i) Prohibiting the respondent from
carrying or possessing any firearm or
deadly weapon and ordering him to
surrender the same to the court for
appropriate
disposition,
including
revocation of license and disqualification
to apply for any license to carry or possess
a firearm. If the respondent is .a law
enforcement agent, the court shall order
him to surrender his firearm and shall
direct the appropriate authority to
investigate him and take appropriate
action thereon;
(j) Directing the DSWD or any appropriate
agency to prepare a program of
intervention for the offended party that
provides advocacy, temporary shelter,
crisis intervention, treatment, therapy,
counseling, education, training and other
social services that the offended party may
need;
(k) Requiring the respondent to receive
professional counseling from agencies or
persons who have demonstrated expertise
and experience in anger control,
management of alcohol, substance abuse
and other forms of intervention to stop
violence. The program of intervention for
offenders must be approved by the court.
The agency or person is required to
provide the court with regular reports of
the progress and result of professional
counseling, for which the respondent may
be ordered to pay; and
(I) Awarding the offended party actual
damages caused by the violence inflicted,
including, but not limited to, property
damage, medical expanses, childcare
expenses and loss of income; and
compensatory, moral, and exemplary
damages, subject to Sections 26a and 35 of
this Rule.
The court may grant such other
forms of relief to protect the offended
party and any designated family or
household member who consents to such
relief.”
A] BARANGAY PROTECTION ORDER
4.00 DISCUSS BARANGAY PROTECTION
ORDERS (BPOs)
Barangay Protection Orders (BPOs)
refer to the protection order issued by the
Punong Barangay ordering the perpetrator
to desist from committing acts under Section
5 (a) and (b) of this Act.”
5.00 DISCUSS TEMPORARY PROTECTION
ORDERS (TPOs)
Temporary Protection Orders (TPOs)
refer to the protection order issued by the
court on the date of filing of the application
after ex parte determination that such order
should be issued. A court may grant in a TPO
any, some or all of the reliefs mentioned in
this Act and shall be effective for thirty (30)
days.
5.01 DISCUSS PERMANENT PROTECTION
ORDERS (PPOs)
Permanent Protection Order (PPO)
refers to protection order issued by the court
after notice and hearing.
5.02 WHAT ARE THE PROHIBITED ACTS
IN THE APPLICATION FOR A
PROTECTION ORDER?
“A Punong Barangay, Barangay Kagawad
or the court hearing an application for a
protection order shall not order, direct,
force or in any way unduly influence the
applicant for a protection order to
compromise or abandon any of the reliefs
sought in the application for protection
under this Act. Section 7 of the Family
Courts Act of 1997 and Sections 410, 411,
412 and 413 of the Local Government Code
of 1991 shall not apply in proceedings
where relief is sought under this Act.
Failure to comply with this Section shall
render
the
official
or
judge
administratively liable.”
-oooOOOooo-
CHAPTER VI
BOUNCING CHECKS LAW
BATAS PAMBANSA BLG. 22
49
An Act Penalizing the Making Or Drawing
And Issuance Of A Check Without
Sufficient Funds Or Credit And For Other
Purposes.
[BAR Q. 2014, 2010 ’03,’02, ’96, 1990,
‘88’,’86]
________________________________________________
IN GENERAL
1.00 WHAT IS A CHECK?
In Mitra vs. People, July 05, 2010, the
Supreme Court had the occasion to explain
what a check is. It held that a check is a
negotiable instrument that serves as a
substitute for money and as a convenient
form of payment in financial transactions
and obligations.
The use of checks as payment allows
commercial and banking transactions to
proceed without the actual handling of
money, thus, doing away with the need to
physically count bills and coins whenever
payment is made.
More particularly, a check is a bill of
exchange drawn on a bank payable on
demand. (Negotiable Instruments Law,
Section 185).
1.01 EXPLAIN A “DAIF” CHECK?
DAIF means it is drawn against
insufficient funds. A check becomes “DAIF”
when it is issued for an amount more than
the funds available in a particular account.
1.02 EXPLAIN A “DAUD” CHECK?
DAUD means drawn against
uncollected deposit. It is a banking phrase
connoting a check with insufficient funds.
1.03 WHAT IS AN INDORSED CHECK?
It is one which the present holder
acquires possession of the check from the
payee or another holder after the payee had
indorsed it.
1.04 DOES BP.22 COVER MANAGER’S
CHECK CASHIER’S CHECK?
No. As enunciated in the case of New
Pacific Timber and Supply Company, Inc. vs.
Seneres, 101 SCRA 686, by its peculiar
character and general use in the commercial
world, it is as good as the money it
represents and is therefore deemed as cash.
1.05 WHAT IS AN ACCOMODATION
CHECK?
It is a check drawn for the purpose of
lending a person’s name to another.
1.06 WHAT IS A GUARANTEE CHECK?
It may either be an accommodation
or any other kind of check drawn and
delivered to guarantee the performance of a
principal obligation.
1.07 DOES BP.22 COVER
ACCOMODATION OR GUARANTEE
CHECK?
Yes. It is covered by BP. 22 because
the issuance of the check to cover the account
and its subsequent dishonor are the only
facts required for prosecution under the law.
Creeg vs. CA, 233 SCRA 301. In People vs. Que,
G.R. 73217-18, September 21, 1987, it was
held that BP 22 does not make any
distinction as to whether the bad check is
issued in payment of an obligation or to
guarantee an obligation.
1.08 WHAT IS A CROSSED CHECK?
The reason for the issuance of a
check is to ensure that the check is encashed
only by the rightful payee. In usual practice,
crossing of a check is done by placing two
parallel lines diagonally on the left portion of
the check.
effects:
A cross check has the following
a) that the check may not be
encashed but only deposited in the
bank;
b) that the check may be negotiated
only once to one who has an account
with a bank;
50
c) that the act of crossing the check
serves as a warning to the holder that
the check has been issued for a
definite purpose so that he must
inquire if he has secured the check
pursuant to that purpose. State
Investment House vs. IAC, 175 SCRA
316
1.09 DOES BP.22 COVER CROSSED CHECK?
Yes, since it is a negotiable
instrument, it falls within the coverage of BP.
22.
1.10 WHAT DOES “CREDIT” MEAN?
The word "credit" as used herein shall be
construed to mean an arrangement or
understanding with the bank for the
payment of such check. (Sec .4)
1.11 WHICH COURT HAS JURISDICTION
OVER VIOLATION OF BP. 22?
The MTC has exclusive original
jurisdiction in the prosecution of BP. 22
cases. A.M. No. 00-11-01-SC, March 25, 2003
1.12 CITE THE REASON BEHIND THE
ENACTMENT OF BP 22.
In the case of Mitra vs. People, July 05,
2010, the Supreme Court ruled that BP. 22
considers the mere act of issuing an
unfunded check as an offense not only
against property but also against public
order to stem the harm caused by these
bouncing checks to the community.
The purpose of BP. 22 in declaring the
mere issuance of a bouncing check as malum
prohibitum is to punish the offender in order
to deter him and others from committing the
offense, to isolate him from society, to reform
and rehabilitate him, and to maintain social
order.
1.13 IS THE PRINCIPLE OF CONSPIRACY
UNDER THE REVISED PENAL CODE
APPLICABLE IN BP.22 WHICH IS A
SPECIAL LAW?
Yes. This issue was clarified by the
Supreme Court in the case of Ladonga vs.
People, 451 SCRA 673 when it expressly ruled
that In the absence of contrary provision in
Batas Pambansa Blg. 22, the general
provisions of the Revised Penal Code which,
by their nature, are necessarily applicable,
may be applied suppletorily, including the
provisions on conspiracy.
A. WAYS BY WHICH VIOLATION OF BP.
22 ARE COMMITTED.
2.00 WHAT IS THE GRAVAMEN OF BP. 22?
The gravamen of the offense
punished by Batas Pambansa (B.P.) Blg.
22 is that act of making or issuing a
worthless check or a check that is
dishonored upon its presentation for
payment – It is not the nonpayment of the
obligation which the law punishes. The
mere act of issuing a worthless check –
whether as a deposit, as a guarantee or
even as evidence of pre-existing debt – is
malum prohibitum.
1. The law punishes the act not as an
offense against property, but an
offense against public order. Thus,
the mere act of issuing a worthless
check – whether as a deposit, as a
guarantee or even as evidence of preexisting debt – is malum prohibitum.
Ambito vs. People, 579 SCRA 68,
February 13, 2009
2. The act effectively declares the
offense to be one of malum
prohibitum. The only valid query
then is whether the law has been
breached, i.e., by the mere act of
issuing a bad check, without so much
regard as to the criminal intent of the
issuer. Jose vs. Suarez, 556 SCRA 772,
June 30, 2008
3. What the law punishes is the
issuance and/or drawing of a check
and upon presentment for deposit or
encashment, it was dishonored due
to insufficient funds [or] account
closed. Jose v. Suarez, 556 SCRA 772,
June 30, 2008
2.01 GIVE THE ELEMENTS OF THE FIRST
PARAGRAPH OF SECTION 1 OF
BP.22.
51
Liability for violation of B.P. 22 attaches
when the prosecution establishes proof
beyond reasonable doubt of the existence of
the following elements:
1. The accused makes, draws or issues
any check to apply to account or for
value;
a. When does a prima facie
evidence of knowledge of insufficient funds
arise? (SEC.2)
There is a prima facie evidence of
knowledge of insufficiency of funds when the
check was presented within 90 days from the
date appearing on the check and was
dishonored unless:
2. The accused knows at the time of the
issuance that he or she does not have
sufficient funds in, or credit with, the
drawee bank for the payment of the
check in full upon its presentment .
This element is emphasized in the
case of Vergara vs. People, 450 SCRA 495,
where the Supreme Court held:
“To be liable for violation of Batas
Pambansa Blg. 22, it is not enough that the
check was subsequently dishonored for
insufficiency of funds. It must be shown
also beyond reasonable doubt that
petitioner knew of the insufficiency of
funds at the time the check was issued.”
3. The
check
is
subsequently
dishonored by the drawee bank for
insufficiency of funds or credit or it
would have been dishonored for the
same reason had not the drawer,
without any valid reason, ordered
the bank to stop payment. Azarcon vs.
People, June 29, 2010
2.02 WHAT DOES THE TERM “ISSUE”
MEAN?
Section 191 of the Negotiable
Instruments Law defines "issue" as the first
delivery of an instrument, complete in form,
to a person who takes it as a holder.
Significantly, delivery is the final act
essential to the negotiability of an
instrument.
Delivery denotes physical transfer of
the instrument by the maker or drawer
coupled with an intention to convey title to
the payee and recognize him as a holder. Dy
vs. People, 571 SCRA 59, November 14, 2008
2.03
PRIMA FACIE EVIDENCE OF
KNOWLEDGE OF INSUFFICIENT
FUNDS.
a. such maker or drawer pays the
holder thereof the amount due
thereon within 5 banking days
after receiving notice that such
check has not been paid by the
drawee , or
b.
makes
arrangements
for
payment in full by the drawee of
such check within (5) banking
days after receiving notice of
non-payment.
Respecting the second element of the
crime, the Supreme Court ruled in Tan v.
Philippine Commercial International Bank
552 SCRA 532, April 23, 2008 that the
prosecution must prove the accused knew, at
the time of issuance, that he does not have
sufficient funds or credit for the full payment
of the check upon its presentment. The
element of "knowledge" involves a state of
mind that obviously would be difficult to
establish, hence, the statute creates a prima
facie presumption of knowledge on the
insufficiency of funds or credit coincidental
with the attendance of the two other
elements.
b. Is the 90 day-period to deposit the
check an element of BP 22?
No. That the check must be deposited
within ninety (90) days is simply one of the
conditions for the prima facie presumption of
knowledge of lack of funds to arise, but it is not
an element of the offense, and neither does it
discharge the accused from his duty to
maintain sufficient funds in the account
within a reasonable time thereof. Nagrarnpa
vs. People, 386 SCRA 412
c. What is the consequence if there is
failure to deposit the check within
the 90 day-period?
52
The only consequence of the failure to
present the check for payment within the 90day period is that there arises no prima facie
presumption of knowledge of insufficiency of
funds. Nagrarnpa vs. People, 386 SCRA 412
d. Cite the importance of notice of
dishonor to establish a prima facie
evidence
of
knowledge
of
insufficiency of funds.
The presumption is brought into
existence only after it is proved that the
issuer had received a notice of dishonor
and that within five days from receipt
thereof, he failed to pay the amount of the
check or to make arrangements for its
payment.
The presumption or prima facie
evidence as provided in this section cannot
arise, if such notice of nonpayment by the
drawee bank is not sent to the maker or
drawer, or if there is no proof as to when
such notice was received by the drawer,
since there would simply be no way of
reckoning the crucial 5-day period. Azarcon
vs. Gonzales, G.R. No. 185906, June 29, 2010
e. Cite prevailing doctrines on notice
of dishonor.
1. Procedural due process clearly
enjoins that a notice of dishonor of
a check be given the signatory—
the absence of a notice of dishonor
necessarily deprives an accused an
opportunity to preclude a criminal
prosecution. Marigomen vs. People,
459 SCRA 169
2. Receipts for registered letters and
return receipts do not by
themselves prove receipt – they
must be properly authenticated to
serve as proof of receipt of the
letters, claimed to be a noticed of
dishonor. Rico vs. People, 392 SCRA
61
3. It is not enough for the
prosecution to prove that a notice
of dishonor was sent to the drawee
of the check. The prosecution must
also prove actual receipt of said
notice because the fact of service
provided for in the law is reckoned
from receipt of such notice of
dishonor by the drawee of the
check. Cabrera v. People, 407 SCRA
247
4. Possibilities cannot replace proof
beyond reasonable doubt. When
there is insufficient proof of
receipt of notice of dishonor, as in
this case, the presumption of
knowledge of insufficiency of
funds cannot arise. A notice of
dishonor personally sent to and
received by the accused is
necessary before one can be held
liable under B.P. Blg. 22. The
failure of the prosecution to prove
the receipt by petitioner of the
requisite written notice of
dishonor and that she was given at
least five banking days within
which to settle her account
constitutes sufficient ground for
her acquittal. Ting v. Court of
Appeals, 344 SCRA 551
5. Registry return cards must be
authenticated to serve as proof of
receipt of letters sent through
registered mail. Thus, we held: …it
must appear that the same was
served on the addressee or a duly
authorized agent of the addressee.
In fact, the registry return receipt
itself provides that ‘[a] registered
article must not be delivered to
anyone but the addressee, or upon
the addressee’s written order, in
which case the authorized agent
must write the addressee’s name
on the proper space and then affix
legibly his own signature below it.’
Suarez vs. People, 555 SCRA 238, June
19, 2008
f.
Can the notice of dishonor be done
orally?
No. the law requires that the
insufficiency of funds in or credit shall be
explicitly stated in the dishonor, hence, a
mere oral notice or demand to pay is
insufficient for conviction under BP. 22.
Domagsang vs. CA, G.R. 139292, 5 December
2000
The notice must be in writing. A mere
oral notice to pay a dishonored check will not
suffice. The lack of a written notice is fatal for
53
the prosecution. Azarcon vs. Gonzales, G.R.
No. 185906, June 29, 2010
g. Who may send the notice of
dishonor?
The notice of dishonor of a check may be
sent to the drawer or maker, by the drawee
bank, the holder of the check, or the offended
party. Ambito vs. People, 579 SCRA 68,
February 13, 2009
2.04 GIVE THE ELEMENTS OF THE
SECOND PARAGRAPH OF SECTION 1
OF BP.22.
This way of committing BP.22
suggests that at the time the check was
issued, the issuer had sufficient funds in or
credit with the drawee bank. However, the
check was dishonored when presented for
payment within 90 days from its date for
failure to maintain sufficient funds or credit
to cover the amount.
The elements are as follows:
a) any person, makes or draws and
issues a check;
b) such person has sufficient funds in
or credit with the drawee bank;
c) failure to keep sufficient funds or to
maintain a credit to cover the full
amount of the check if presented
within a period of ninety (90) days
from the date appearing thereon;
d) for which reason it is dishonored by
the drawee bank.
Illustrative case
BAR Q. [1996]The accused was convicted
under BP Blg. 22 for having issued
several checks which were dishonored by
the drawee bank on their due date
because the accused closed her account
after the issuance of checks. On appeal,
she
argued that she could not be
convicted under BP Blg. 22 by reason of
the closing of her account because said
law applies solely to checks dishonored
by reason of insufficiency of funds and
that at the time she issued the checks
concerned, she had adequate funds in the
bank. While she admits that she may be
held liable for estafa under Article 215 of
the Revised Penal Code, she cannot
however be found guilty of having
violated BP 22.
Is her contention
correct? Explain.
Suggested Answer: No. BP. 22 does
not limit its application to insufficiency of
funds in the account at the time of the
issuance of the check. It likewise punishes
under Section 1, 2nd paragraph any person
who may have sufficient funds in the drawee
bank when he issued the check, but fails to
keep sufficient funds to cover the full amount
of the check when presented to the drawee
bank within ninety (90) days from the date
appearing thereon.
It bears stressing that if a check the
checks was issued to apply on account or for
value, and was subsequently dishonored, for
lack of insufficient funds on their due date,
such act violates BP 22.
2.05 COMPARE VIOLATION OF BP 22 FROM
ESTAFA UNDER PAR. 2 [D], ARTICLE
315, OF THE REVISED PENAL CODE.
First, the elements of estafa under
paragraph 2(d), Article 315 of the RPC are
(1) the postdating or issuance of a check in
payment of an obligation contracted at the
time the check was issued; (2) lack of
sufficiency of funds to cover the check; and
(3) damage to the payee. Cajigas vs. People,
580 SCRA 54, February 23, 2009
For violation of the “Bouncing Check
Law”, deceit and damage are not essential or
required. The essential element of that
offense is knowledge on the part of the
maker or drawer of the check of the
insufficiency of his funds. The gravamen of
the offense is the issuance of a bad check, not
the non-payment of an obligation.
Second, Article 315, Par.2 (d) is a
crime against property because the issuance
of the check is used as a means to obtain a
valuable consideration from the payee.
On the other hand, in BP. 22, the mere
act of issuing an unfunded check is an offense
against public order to stem the harm caused
by these bouncing checks to the community.
Mitra vs. People, July 05, 2010
54
Third, in estafa, the failure of the
drawer to deposit the amount necessary to
secure payment of the check within 3 days
from receipt of notice from the bank and or
the payee or holder that said check has been
dishonored for lack or insufficiency of funds
is prima facie evidence of deceit constituting
false pretense or fraudulent act.
In BP. 22, the failure of the drawer to
pay in full the payee or holder within 5
banking days after receiving notice that the
check has been rejected by the drawee bank
gives rise to presumption of knowledge of
insufficiency of funds or credit.
Fourth, in estafa, the check is issued
in payment of a simultaneous obligation to
defraud the creditor.
In BP. 22, the check is issued in
payment of a pre-existing obligation.
Fifth, in estafa, an endorser who with
knowledge that the check is worthless and
had acted with deceit, is liable.
In BP. 22, the persons liable are the
maker, drawer and the issuer but not an
endorser.
Lastly, since estafa is mala in se, good
faith is a proper defense.
BP 22 is mala prohibitum, it is
punished by a special law and therefore,
good faith is not a defense.
2.06 DIFFERENTIATE “SIMULTANEOUS
OBLIGATION”
FROM
“PREEXISTING” OBLIGATION.
“Simultaneous obligation” as an
element of estafa connotes that the issuance
of a check is used as a means to obtain
valuable consideration from the payee.
Deceit is the efficient cause for defraudation.
To defraud is to deprive some right, interest,
or property by deceitful devise. People
vs.Quesada, 60 Phil. 515
In the issuance of a check in payment
of a “pre-existing obligation”, the drawer
derives no material benefit in return as its
consideration had long been delivered to him
before the check was issued.Since an
obligation has already been contracted, it
cannot be said that the payee parted with his
property or that the drawer has obtained
something of value as a result of the
postdating or issuance of the bad check in
payment of a pre-existing obligation. People
vs. Lilius, 59 Phil. 339
Unlike in estafa, the accused in this
case obtain nothing when he issued the
check, his debt for the payment thereof had
been contracted prior to its issuance.
2.07 EXPLAIN DECEIT AS AN ELEMENT OF
ESTAFA.
Deceit as an element of estafa is a
specie of fraud. It is actual fraud which
consists in any misrepresentation or
contrivance where a person deludes another,
to his hurt. There is deceit when one is
misled -- by guile, trickery or by other means
- to believe as true what is really false. Dy vs.
People, 571 SCRA 59, November 14, 2008
2.08 EXPLAIN DAMAGE AS AN ELEMENT
OF ESTAFA.
Damage as an element of estafa may
consist in (1) the offended party being
deprived of his money or property as a result
of the defraudation; (2) disturbance in
property right; or (3) temporary prejudice.
Nagrampa vs. People, 386 SCRA 412
2.09
EXPLAIN ESTAFA THRU
ISSUANCE OF A CHECK.
THE
To constitute estafa, the act of
postdating .or issuing a check in payment of
obligation must be the efficient cause of
defraudation and, as such, it should be either
prior to, or simultaneous with, the act of
fraud. Nagrampa vs. People, 386 SCRA 412
2.10 CAN A PERSON BE BOTH LIABLE FOR
VIOLATION OF BP 22 AND ANOTHER
PROVISION OF THE REVISED PENAL
CODE? (SEC.5)
Yes, the filing of a criminal case under
B.P. 22 shall not prejudice any liability
arising from a felony committed under the
Revised Penal Code. Section 5 is explicit:
“Prosecution under this Act shall be
without prejudice to any liability for
violation of any provision of the Revised
Penal Code.”
55
B. DEFENSES IN BP. 22
actually notified that the check
was dishonored, and that he or
she failed, within five (5) banking
days from receipt of the notice, to
pay the holder of the check the
amount due thereon or to make
arrangement for its payment.
Absent proof that the accused
received
such
notice,
a
prosecution for violation of the
Bouncing Checks Law cannot
prosper.
3.00 WHAT ARE THE POSSIBLE
DEFENSES IN BP 22?
a. Checks issued to person who was
not authorized to collect and
receive the same are without
valuable consideration and are
also considered issued for a nonexisting account. Cariño v. De
Castro, 553 SCRA 688, April 30,
2008
In the case of Ambito vs.
People and CA, G.R. No. 127327, 13
February 2009, there being no
proof that he was given any
written notice informing him of
the fact that his checks were
dishonored and giving him five
(5) banking days within which to
make arrangements for payment
of the said checks, the rebuttable
presumption that he had
knowledge of the insufficiency of
his funds has no application in
the present case.
b. The presentation of the registry
card, with an unauthorized
signature, does not meet
therequired
proof
beyond
reasonable doubt that the
petitioner received such noticed,
especially considering that he
denied receiving it.
As there is insufficient proof that
the petitioner received notice of
dishonor, the presumption that
he
had
knowledge
of
insufficiency of funds cannot
arise. Suarez v. People 555, SCRA
238, June 19, 2008
c. Presumption of knowledge of
insufficiency of funds is not
conclusive as it may be rebutted
by full payment. Payment is a
complete defense that would lie
regardless of the strength of the
evidence presented by the
prosecution. Tan vs. Philippine
Commercial International Bank
552 SCRA 532, April 23, 2008
d. Only a full payment at the time of
its presentment or during the
five-day grace period could
exonerate one from criminal
liability under B.P. Blg. 22 and
that subsequent payments can
only affect the civil, but not the
criminal, liability. Tan sv.
Philippine
Commercial
International Bank 552 SCRA 532,
April 23, 2008
e. Under B.P. Blg. 22, the
prosecution must prove not only
that the accused issued a check
that
was
subsequently
dishonored. It must also
establish that the accused was
f.
To be liable under Section 1 of
B.P. Blg. 22, the check must be
dishonored by the drawee bank
for insufficiency of funds or
credit or dishonored for the same
reason had not the drawer,
without any valid cause, ordered
the bank to stop payment.
In Tan vs. People, 349 SCRA 777,
2001, the Court acquitted the petitioner
therein who was indicted under B.P. Blg. 22,
upon a check which was dishonored for the
reason DAUD, among others. Even without
relying on the credit line, petitioner's bank
account covered the check she issued
because even though there were some
deposits that were still uncollected the
deposits became "good" and the bank
certified that the check was "funded."
To be liable under Section 1of B.P.
Blg. 22, the check must be dishonored by the
drawee bank for insufficiency of funds or
credit or dishonored for the same reason had
not the drawer, without any valid cause,
ordered the bank to stop payment.
56
g.
Blg. 22 speaks only of
insufficiency of funds and does
not treat of uncollected deposits.
In Dy vs. People, 571 SCRA 59,
November 14, 2008, the High Court declared
that the law cannot be interpreted in such a
way as to expand its provision to encompass
the situation of uncollected deposits because
it would make the law more onerous on the
part of the accused. Again, criminal statutes
are strictly construed against the
Government and liberally in favor of the
accused.
h. Prescription is a proper defense.
The prescriptive period is 4 years
reckoned from the lapse of the 5
banking days from notice of
dishonor within which to make
good the check.
i.
Forgery of the signature
appearing on the check. When a
signature is forged or made
without the authority of the person whose signature it purports
to be the check is wholly
inoperative unless the party
against whom it is sought to
enforce such right is precluded
from setting up the forgery or
want of authority. Ilusorio vs.
Court of Appeals, 353 SCRA 89
3.01 IS AN AGREEMENT SURROUNDING
THE ISSUANCE OF DISHONORED
CHECKS RELEVANT TO THE
PROSECUTION FOR VIOLATION OF
BATAS PAMBANSA 22?
No, an agreement surrounding the
issuance of dishonored checks is irrelevant
to the prosecution for violation of Batas
Pambansa Blg. 22. Dreamwork Construction,
Inc. v. Janiola 591 SCRA 466, June 30, 2009
It has been consistently declared that the
cause or reason for the issuance of a check is
inconsequential in determining criminal
culpability under B.P. Blg. 22.
As held in the case of Jose v. Suarez 556
SCRA 772, June 30, 2008, the cause or reason
for the issuance of a check is inconsequential
in determining criminal culpability under
B.P. Blg. 22. The mere act of issuing a
worthless
check
is malum
prohibitum provided the other elements of
the offense are properly proved.
Noteworthy to cite to illustrate this point
is the case ofDreamwork Construction, Inc. vs.
Janiola and Hon. Famini
G.R. No. 184861, 30 June 2009
FACTS: On October 18, 2004, petitioner
Dreamwork Construction Inc., through its
President, filed a case for violation of Batas
Pambansa Bilang 22 (BP 22) against private
respondent. Correspondingly, petitioner
filed a criminal information for violation of
BP 22 against private respondent. On
September 20, 2006, private respondent,
joined by her husband, instituted a civil
complaint against petitioner by filing a
Complaint for the rescission of an alleged
construction agreement between the parties,
as well as for damages. Notably, the checks,
subject of the criminal cases before the MTC,
were issued in consideration of the
construction agreement.
Thereafter, on July 25, 2007, private
respondent filed a Motion to Suspend
Proceedings alleging that the civil case posed
a prejudicial question as against the criminal
cases.
Petitioner opposed the suspension of
the proceedings in the criminal cases as the
rescission of the contract upon which the
bouncing checks were issued is a separate
and distinct issue from the issue of whether
private respondent violated BP 22. The MTC
granted the Motion to Suspend Proceedings.
ISSUE: Whether the resolution of the civil
case for rescission of construction
agreement
between
the
parties
determinative of the prosecution of the
criminal action for violation of BP 22.
RULING: Prejudicial question is inapplicable
in this case. The fact that there exists a valid
contract or agreement to support the
issuance of the check/s or that the checks
were issued for valuable consideration does
not make up the elements of the crime. Thus,
the Court has held in a long line of cases that
the agreement surrounding the issuance of
dishonored checks is irrelevant to the
prosecution for violation of BP 22. It must be
57
emphasized that the gravamen of the offense
charge is the issuance of a bad check. The
purpose for which the check was issued, the
terms and conditions relating to its issuance,
or any agreement surrounding such issuance
are irrelevant to the prosecution and
conviction of petitioner.
To determine the reason for which
checks are issued, or the terms and
conditions for their issuance, will greatly
erode the faith the public reposes in the
stability and commercial value of checks as
currency substitutes, and bring havoc in
trade and in banking communities. The clear
intention of the framers of B.P. 22 is to make
the mere act of issuing a worthless check
malum prohibitum.
3.02 IS
LACK
OF
VALUABLE
CONSIDERATION
A
PROPER
DEFENSE IN VIOLATION OF BP 22?
No. The issue of lack of valuable
consideration for the issuance of checks
which were later on dishonored for
insufficient funds is immaterial to the
success of a prosecution for violation of BP
22. Dreamwork Construction, Inc. v. Janiola
591 SCRA 466, June 30, 2009
In Lunaria vs. People, 5701 SCRA 572,
November 11, 2008, the Supreme Court
stated that even in cases where there had
been payment, through compensation or
some other means, there could still be
prosecution for violation of B.P. 22. The
gravamen of the offense under this law is the
act of issuing a worthless check or a check
that is dishonored upon its presentment for
payment, not the nonpayment of the
obligation.
3.03 NOVATION IN BP. 22
a.
IS NOVATION A PROPER DEFENSE
IN BP.22?
No. Whether there was novation or
not is not determinative of respondent’s
responsibility for violation of B.P. 22, as the
said special law punishes the act of issuing a
worthless check and not the purpose for
which the check was issued or the terms and
conditions relating to its issuance. Thus, even
if it be subsequently declared that novation
took place, respondent is not exempt from
prosecution for violation of B.P. 22 for the
dishonored checks. Land Bank of the
Philippines vs. Jacinto, G.R. No. 154622, August
3, 2010
It is well settled that the mere act of
issuing a worthless check, even if merely as
an accommodation, is covered by B.P. 22. The
Court has held that the agreement
surrounding the issuance of dishonored
checks is irrelevant to the prosecution for
violation of B.P. 22.
3.04 STOP PAYMENT IN BP. 22
a. IS “STOP PAYMENT” A PROPER
DEFENSE IN BP. 22?
It depends. Although the drawer
ordered
a
“STOP
PAYMENT”
or
countermand, yet if it was clear from the
statement of account that the check bounced
due to insufficiency of funds, the drawer of
the check is still liable.Chang vs. IAC, 146
SCRA 464
C. CORPORATION IN RELATION TO BP.
22
4.00 DIFFERENTIATE CORPORATE CHECK
FROM A PERSONAL CHECK.
A corporate check is one signed by a
natural person in the name of the
corporation. The drawer, in effect, is the
corporation or juridical entity while
personal check is one drawn by a natural
person in his name.
4.01
WHO IS LIABLE IF THE CHECK IS
DRAWN BY A CORPORATION,
COMPANY OR ENTITY?
Section 1 of the law provides:
“Where the check is drawn by a
corporation, company or entity, the
person or persons who actually signed the
check in behalf of such drawer shall be
liable under this Act.”
In explaining this afore-quoted rule,
the Supreme Court in Mitra vs. People, G.R.
No. 191404, July 5, 2010 held:
58
“This provision recognizes the
reality that a corporation can only act
through its officers. Hence, its wording is
unequivocal and mandatory – that the
person who actually signed the corporate
check shall be held liable for a violation of
BP 22. This provision does not contain any
condition, qualification or limitation.”
It went on to elucidate:
“In the case of Llamado v. Court of
Appeals, the Court ruled that the accused was
liable on the unfunded corporate check which
he signed as treasurer of the corporation. He
could not invoke his lack of involvement in the
negotiation for the transaction as a defense
because BP 22 punishes the mere issuance of a
bouncing check, not the purpose for which the
check was issued or in consideration of the
terms and conditions relating to its issuance.
In this case, Mitra signed the LNCC checks as
treasurer. Following Llamado, she must then
be held liable for violating BP 22.”
4.02
EXPLAIN WHY A CORPORATE
OFFICER
WHO
ISSUED
A
DISHONORED
CHECK
IS
PERSONALLY LIABLE.
The personal liability of the
corporate officer is predicated on the
principle that he cannot shield himself from
liability from his own acts on the ground that
it was a corporate act and not his personal
act. Gosiaco vs. Ching and Casta, G.R. 173807,
16 April 2009
4.03 WHO MUST RECEIVE THE NOTICE OF
DISHONOR IF THE BOUNCED CHECK
IS DRAWN BY A CORPORATION,
COMPANY OR ENTITY?
The officer who is accused of signing
the check must receive the notice of dishonor.
Constructive notice to the corporation, who
has a separate personality from its officer, is
not enough. The Court stated its importance
when it held in Marigomen vs. People, 459
SCRA 169, that if the drawer or maker is an
officer of a corporation, the notice of dishonor
to the said corporation is not notice to the
employee or officer who drew or issued the
check for and in its behalf.
4.04 MAY A MEMBER OF THE BOARD OF
DIRECTORS OF A CORPORATION
FILE A CASE OF BP 22?
Yes, provided he is authorized to sue
for and on behalf of the corporation. Under
Section 36 of the Corporation Code, read in
relation to Section 23, it is clear that where a
corporation is an injured party, its power to
sue is lodged with its board of directors or
trustees.
In Muñoz vs. People, 548 SCRA 473,
March 14, 2008, Concord, a domestic
corporation, was the payee of the bum check,
not petitioner. Therefore, it is Concord, as
payee of the bounced check, which is the
injured party. Since petitioner was neither a
payee nor a holder of the bad check, he had
neither the personality to sue nor a cause of
action against the accused. Petitioner failed
to show any proof that he was authorized
or deputized or granted specific powers
by Concord's board of director to sue for
and on behalf of the firm. Clearly,
petitioner as a minority stockholder and
member of the board of directors had no
such power or authority to sue
on Concord's behalf.
D. CIVIL LIABILITY
5.00 CITE CERTAIN PRINCIPLES ON CIVIL
LIABILITY.
a. An
acquittal
based
on
reasonable doubt does not
preclude the award of civil
damages.
b. The possible single civil liability
arising from the act of issuing a
bouncing check can be the
subject of both civil actions
deemed instituted with the
estafa case and the prosecution
for
violation
of
Batas
Pambansa
Blg.
22,
simultaneously available to the
complaining party, without
traversing the prohibition
against forum shopping.
Under the present revised Rules, the
criminal action for violation of BP Blg. 22
59
includes the corresponding civil action to
recover the amount of the checks. It should
be stressed, this policy is intended to
discourage the separate filing of the civil
action. In fact, the Rules even prohibits the
reservation of a separate civil action, i.e., one
can no longer file a separate civil case after
the criminal complaint is filed in court.
The only instance when separate
proceedings are allowed is when the civil
action is filed ahead of the criminal case.
Even then, the Rule encourages the
consolidation of the civil and criminal cases.
Thus, where petitioner’s rights may be fully
adjudicated in the proceedings before the
court trying the BP Blg. 22 cases, resort to a
separate action to recover civil liability is
clearly unwarranted on account of res
judicata, for failure of petitioner to appeal the
civil aspect of the cases. In view of this special
rule governing actions for violation of BP Blg.
22, Article 31 of the Civil Code is not
applicable. Cheng v. Sy 592, SCRA 155, July 7,
2009
c. The rule is that upon filing of
the estafa and Batas Pambansa
Blg.
222
cases
against
respondents,
where
the
petitioner has not made any
waiver, express reservation to
litigate separately, or has not
instituted the corresponding
civil action to collect the
amount involved and damages
prior to the criminal action, the
civil action is deemed instituted
with the criminal cases. Cheng
v. Sy 592 SCRA 155, July 7, 2009
5.01 MAY PETITIONER’S ACTION TO
RECOVER RESPONDENT’S CIVIL
LIABILITY STILL BE ALLOWED TO
PROSPER SEPARATELY AFTER THE
BP. 22 CASES WERE DISMISSED?
No. Under the present revised Rules,
the criminal action for violation of BP Blg. 22
includes the corresponding civil action to
recover the amount of the checks. This policy
is intended to discourage the separate filing
of the civil action.
The Rules even prohibits the
reservation of a separate civil action, i.e., one
can no longer file a separate civil case after
the criminal complaint is filed in court. The
only instance when separate proceedings are
allowed is when the civil action is filed ahead
of the criminal case. Even then, the Rules
encourage the consolidation of the civil and
criminal cases.
IS THERE AN EXCEPTION?
Yes, if there is a finding of gross
mistake committed by a prosecutor in
handling BP Blg. 22 cases as enunciated in
the landmark case of Cheng vs. Sy, G. R. No.
174238, July 7, 2009.
In this case, petitioner filed two cases
of estafa before the RTC and two cases for
violation of B. P. Blg. 22 before the MTC
against the respondents for issuing to her
PBC checks in payment of their loan, both of
which were dishonored for having been
drawn against a closed account. The estafa
cases were dismissed for failure of the
prosecution to prove the elements of the
crime, while the B. P. Blg. 22 cases were
dismissed, on demurrer, on account of the
failure of petitioner to identify the accused
respondents in open court. Petitioner
indirectly faulted the prosecutor for failure
to protect her interest.
The Supreme Court finds that
petitioner would be left without a remedy to
recover from respondents the allegedly
loaned from her. It ruled:
“It is in this light that we find petitioner’s
contention that she was not assisted by a
private prosecutor during the BP Blg. 22
proceedings critical. Petitioner indirectly
protests that the public prosecutor failed
to protect and prosecute her cause when
he failed to have her establish the
identities of the accused during the trial
and when he failed to appeal the civil
action deemed impliedly instituted with
the BP Blg. 22 cases. On this ground, we
agree with petitioner.
Blg.
Faced with the dismissal of the BP
22 cases, petitioner’s recourse
60
pursuant to the prevailing rules of
procedure would have been to appeal the
civil action to recover the amount loaned to
respondents corresponding to the bounced
checks. Hence, the said civil action may
proceed requiring only a preponderance of
evidence on the part of petitioner. Her
failure to appeal within the reglementary
period was tantamount to a waiver
altogether of the remedy to recover the civil
liability of respondents. However, due to
the gross mistake of the prosecutor in the
BP Blg. 22 cases, we are constrained to
digress from this rule. “
5.02
CIVIL
LIABILITY
WHEN
CORPORATION IS INVOLVED-
A
a. Under the amended rules on
bouncing checks, the previous
option to directly pursue the civil
liability against the corporation
that incurred the obligation is no
longer that clear.
B.P. Blg. 22 imposes a distinct civil
liability on the signatory of the check which
is distinct from the civil liability of the
corporation for the amount represented
from the check. The civil liability attaching to
the signatory arises from the wrongful act of
signing the check despite the insufficiency of
funds in the account, while the civil liability
attaching to the corporation is itself the very
obligation covered by the check or the
consideration for its execution. Yet these civil
liabilities are mistaken to be indistinct. The
confusion is traceable to the singularity of
the amount of each. Gosiaco vs. Ching, 585
SCRA 471, April 16, 2009
b. The civil action impliedly instituted
in the Batas Pambansa Blg 22
action is only the civil liability of the
signatory and not that of the
corporation.
It follows that the actions involving these
liabilities should be adjudged according to
their respective standards and merits. In the
B.P. Blg. 22 case, what the trial court should
determine whether or not the signatory had
signed the check with knowledge of the
insufficiency of funds or credit in the bank
account, while in the civil case the trial court
should ascertain whether or not the
obligation itself is valid and demandable. The
litigation of both questions could, in theory,
proceed independently and simultaneously
without being ultimately conclusive on one
or the other. Gosiaco vs. Ching 585 SCRA 471,
April 16, 2009
5.03 CAN A COURT IMPOSE SUBSIDIARY
CIVIL
LIABILITY
AGAINST
A
CORPORATION IN BP. 22 CASE?
No. In Gosiaco vs. Ching And Casta,
G.R. No. 173807, 16 April 2009, the Supreme
Court had the occasion to explain the reason
way. It held that nowhere in B.P. Blg. 22 is it
provided that a juridical person may be
impleaded as an accused or defendant in the
prosecution for violations of that law, even in
the litigation of the civil aspect thereof.
It might be argued that under the
current rules, if the signatory were made
liable for the amount of the check by reason
of the B.P. Blg. 22 case, such signatory would
have the option of recovering the same
amount from the corporation.
If the signatory does not have sufficient
assets to answer for the amount of the
check–a distinct possibility considering the
occasional large-scale transactions engaged
in by corporations – the corporation would
not be subsidiarily liable to the complainant,
even if it in truth the controversy, of which
the criminal case is just a part, is traceable to
the original obligation of the corporation.
While the Revised Penal Code imposes
subsidiary civil liability to corporations
for criminal acts engaged in by their
employees in the discharge of their
duties, said subsidiary liability applies
only to felonies, and not to crimes
penalized by special laws such as B.P. Blg.
22. And nothing in B.P. Blg. 22 imposes
such
subsidiary
liability
to the
corporation in whose name the check is
actually issued.
F. ADMINISTRATIVE CIRCULAR NO. 122000 AND ADMINISTRATIVE CIRCULAR
NO. 13-2001
61
6.00 WHAT IS ADMINISTRATIVE
CIRCULAR NO. 12-2000?
appropriate penalty to impose on each of
the petitioners.
It is a circular which refers to the
imposition of penalties for violation of B.P.
22. It provides:
In the recent case of Rosa Lim vs.
People(G. R. No. 130038, 18 September
2000), the Supreme Court en banc,
applying Vaca also deleted the penalty of
imprisonment and sentenced the drawer
of the bounced check to the maximum of
the fine allowed by B.P. Blg. 22, i.e.,
P200,000, and concluded that “such would
best serve the ends of criminal justice.”
“Section 1 of B.P. Blg. 22 (An Act Penalizing
the Making or Drawing and Issuance of a
Check Without Sufficient Funds for Credit
and for Other Purposes) imposes the
penalty of imprisonment of not less than
thirty (30) days but not more than one (1)
year or a fine of not less than but not more
than double the amount of the check,
which fine shall in no case exceed
P200,000, or both such fine and
imprisonment at the discretion of the
court.
In its decision in Eduardo Vaca vs.
Court of Appeals (G.R. No. 131714, 16
November 1998; 298 SCRA 656, 664) the
Supreme Court (Second Division) per Mr.
Justice V. Mendoza, modified the sentence
imposed for violation of B.P. Blg. 22 by
deleting the penalty of imprisonment and
imposing only the penalty of fine in an
amount double the amount of the check. In
justification thereof, the Court said:
Petitioners are first-time offenders.
They are Filipino entrepreneurs who
presumably contribute to the national
economy. Apparently, they brought this
appeal, believing in all good faith, although
mistakenly that they had not committed a
violation of B.P. Blg. 22. Otherwise, they
could simply have accepted the judgment of
the trial court and applied for probation to
evade a prison term. It would best serve the
ends of criminal justice if in fixing the
penalty within the range of discretion
allowed by Section 1, par. 1, the same
philosophy underlying the Indeterminate
Sentence Law is observed, namely, that of
redeeming valuable human material and
preventing unnecessary deprivation of
personal liberty and economic usefulness
with due regard to the protection of the
social order. In this case, we believe that a
fine in an amount equal to double the
amount of the check involved is an
All courts and judges concerned
should henceforth take note of the
foregoing policy of the Supreme Court on
the matter of the imposition of penalties
for violations of B.P. Blg. 22.
The Court Administrator shall
cause the immediate dissemination of this
Administrative Circular to all courts and
judges concerned.
This
Administrative
Circular,
referred to and approved by the Supreme
Court en banc, shall take effect upon its
issuance.
Issued this 21st day of November
2000. X x x “
Court has not discriminalized B.P.
22 violations, nor have removed
imprisonment as an alternative penalty.
Since 1998, this Court has held that
it would best serve the ends of criminal
justice if, in fixing the penalty to be
imposed for violation of B.P. 22, the same
philosophy underlying the Indeterminate
Sentence Law be observed, i.e., that of
redeeming valuable human material and
preventing unnecessary deprivation of
personal liberty and economic usefulness
with due regard to the protection of the
social order. This policy was embodied in
Supreme Court Administrative Circular
No. 12-2000, authorizing the nonimposition of the penalty of imprisonment
in B.P. 22 cases. We also clarified in
Administrative Circular No. 13-2001, as
explained in Tan v. Mendez, 383 SCRA 202
(2002), that we are not decriminalizing
62
B.P. 22 violations, nor have we removed
imprisonment as an alternative penalty.
Needless to say, the determination of
whether the circumstances warrant the
imposition of a fine alone rests solely upon
the judge. Should the judge decide that
imprisonment is the more appropriate
penalty, Administrative Circular No. 122000 ought not to be deemed a hindrance.
Lunaria vs. People, 5701 SCRA 572,
November 11, 2008.
6.01 ON THE OTHER HAND ,WHAT IS
ADMINISTRATIVE CIRCULAR NO.
13-2001?
It is a circular addressed to all judges
which clarifies Administrative Circular No.
12-2000 on the penalty for violation of Batas
Pambansa blg. 22. It provides:
“Clarification has been sought by
concerned Judges and other parties
regarding the operation of Administrative
Circular 12-2000 issued on 21 November
2000. In particular, queries have been
made regarding the authority of Judges to:
1. Impose the penalty of imprisonment for
violations of Batas Pambansa Blg. 22; and
2. Impose subsidiary imprisonment in the
event that the accused who is found guilty
of violating the provisions of B.P. Blg. 22, is
unable to pay the fine which he is
sentenced to pay considering that
Administrative Circular No. 12-2000
adopted the rulings in Eduardo Vaca v.
Court of Appeals (G.R. No. 131714, 16
November 1998, 298 SCRA 656) and Rosa
Lim v. People of the Philippines (G.R. No.
130038, 18 September 2000) as a policy of
the Supreme Court on the matter of the
imposition of penalties for violations of
B.P. Blg. 22, without mentioning whether
subsidiary imprisonment could be
resorted to in case of the accused's
inability to pay the fine.
The clear tenor and intention of
Administrative Circular No. 12-2000 is not
to remove imprisonment as an alternative
penalty, but to lay down a rule of
preference in the application of the
penalties provided for in B.P. Blg. 22.
The pursuit of this purpose clearly
does not foreclose the possibility of
imprisonment for violations of B.P. Blg. 22.
Neither does it defeat the legislative intent
behind the law.
Thus, Administrative Circular No.
12-2000 establishes a rule of preference in
the application of the penal provisions of
B.P. Blg. 22 such that where the
circumstances of both the offense and the
offender clearly indicate good faith or a
clear mistake of fact without taint of
negligence, the imposition of a fine alone
should be considered as the more
appropriate penalty. Needless to say, the
determination
of
whether
the
circumstances warrant the imposition of a
fine alone rests solely upon the Judge.
Should
the
Judge
decide
that
imprisonment is the more appropriate
penalty, Administrative Circular No. 122000 ought not be deemed a hindrance.
It is, therefore, understood that:
1. Administrative Circular 12-2000 does
not remove imprisonment as an
alternative penalty for violations of B.P.
Blg. 22;
2. The Judges concerned may, in the
exercise of sound discretion, and taking
into
consideration
the
peculiar
circumstances of each case, determine
whether the imposition of a fine alone
would best serve the interests of justice or
whether
forbearing
to
impose
imprisonment would depreciate the
seriousness of the offense, work violence
on the social order, or otherwise be
contrary to the imperatives of justice;
3. Should only a fine be imposed and the
accused be unable to pay the fine, there is
no legal obstacle to the application of the
Revised Penal Code provisions on
subsidiary imprisonment.
63
The issuance of this Administrative
Circular was authorized by the Court En
Banc in A.M. No. 00-11-01-SC at its session
of 13 February 2001.
The Clerk of Court of the Supreme
Court and the Court Administrator shall
immediately cause the implementation of
this Administrative Circular.
This Administrative Circular shall
be published in a newspaper of general
circulation not later than 20 February
2001.
Issued this 14th day of February, 2001. x x
x“
6.02 DOES ADMINISTRATIVE CIRCULAR
N0. 13- 2001 DECRIMINALIZE
VIOLATIONS OF BP. 22?
No. The Supreme Court pronounced
in Lunaria vs. People, 5701 SCRA 572,
November 11, 2008, that it has not
decriminalized B.P. 22 violations, nor have
removed imprisonment as an alternative
penalty.
The Court clarified that the
determination of whether the circumstances
warrant the imposition of a fine alone rests
solely upon the judge. Should the judge
decide that imprisonment is the more
appropriate penalty, Administrative Circular
No. 12-2000 ought not to be deemed a
hindrance.
G. OTHER POINTS TO CONSIDER
IN BP. 22
1. Each act of drawing and issuing a
bouncing check constitutes a
violation of B.P. Blg. 22.
2. If the drawer has a valid reason for
stopping payment, he cannot be held
liable under B.P. Blg. 22.
3. Cross
checks
are
negotiable
instruments, and therefore, come
within the coverage of B.P. Blg. 22.
4.
If the bouncing check was issued to
pay a pre-existing obligation, the
drawer is liable only for violation of
B.P. Blg. 22.
5. If the payee (the one receiving the
payment) is
aware of
the
insufficiency or lack of fund in the
bank to cover the check at the time it
was issued, the drawer may be held
liable for violation of B. P. Blg. 22.
6. Even if a bad check is issued as a
guarantee, Batas 22 is violated.
ADDENDUM:
Payment even beyond the 5-day period
extinguishes criminal liability.
Although payment of the value of the
bounced check, if made beyond the 5-day
period provided for in B.P. Blg. 22, would
normally not extinguish criminal liability, the
aforementioned cases show that the Court
acknowledges the existence of extraordinary
cases where, even if all the elements of the
crime of offense are present, the conviction
of the accused would prove to be abhorrent
to society’s sense of justice. Just like in
Griffith and in Tan, petitioner should not be
penalized although all the elements of
violation of B.P. Blg. 22 are proven to be
present. The fact that the issuer of the check
had already paid the value of the dishonored
check after having received the subpoena
from the Office of the Prosecutor should have
forestalled the filing of the Information in
court. The spirit of the law which, for B.P.
Blg. 22, is the protection of the credibility and
stability of the banking system, would not be
served by penalizing people who have
evidently made amends for their mistakes
and made restitution for damages even
before charges have been filed against them.
In effect, the payment of the checks before
the filing of the information has already
attained the purpose of the law. (Ariel T. Lim
vs People, G.R. No. 190834, November 26,
2014, Peralta, J.)
-oooOOOooo-
CHAPTER VII. THE ANTI-FENCING LAW
OF 1979
Presidential Decree No. 1612
[BAR 2010, 2009, ’95, 1993, 1990,
64
1987, 1985]
______________________________________________
1.00 WHAT IS THE CRIME OF "FENCING".
(Sec. 2)
Section 2 of this Act defines fencing as:
“It is the act of any person who,
with intent to gain for himself or for
another, shall buy, receive, possess, keep,
acquire, conceal, sell or dispose of, or shall
buy and sell, or in any other manner deal
in any article, item, object or anything of
value which he knows, or should be known
to him, to have been derived from the
proceeds of the crime of robbery or theft.”
1.01 BAR Q. [1995] WHAT ARE THE
ELEMENTS OF FENCING?
The elements of fencing are:
(a) a crime of robbery or theft has been
committed;
(b) accused, who is not a principal or
accomplice in the crime, buys, receives,
possess, keeps, acquires, conceals, or
disposes or buys and sells or in any
manner deals in any article, item object or
anything of value, which has been derived
from the proceeds of said crime;
(c) the accused knows or should have
known that said article, item, object or
anything of value has been derived from
the proceeds of the crime of robbery or
theft; and
(d) there is, on the part of the accused,
intent to gain for himself or for another.
1.02 ARE THE CRIMES OF ROBBERY AND
THEFT SEPARATE AND DISTINCT
FROM FENCING?
No, the crimes of robbery and theft,
on the one hand, and fencing, on the other,
are separate and distinct offenses. Before P.D.
No. 1612, a fence could only be prosecuted
for and held liable as an accessory, as the
term is defined in Article 19 of the Revised
Penal Code. The penalty applicable to an
accessory is obviously light under the rules
prescribed in Articles 53, 55, and 57 of the
Revised Penal Code, subject to the
qualification set forth in Article 60 thereof.
Evidently, the accessory in the crimes
of robbery and theft could be prosecuted as
such under the Revised Penal Code or under
P.D. No. 1612. However, in the latter case, he
ceases to be a mere accessory but becomes a
principal in the crime of fencing. Elsewise
stated, the crimes of robbery and theft, on the
one hand, and fencing, on the other, are
separate and distinct offenses.
The state may thus choose to
prosecute him either under the Revised
Penal Code or P.D. No. 1612, although the
preference for the latter would seem
inevitable considering that fencing is a
malum prohibitum, and P.D. No. 1612 creates
a presumption of fencing and prescribes a
higher penalty based on the value of the
property. Dizon-Pamintuan vs. People, 234
SCRA 63(1994)
1.03 EXPLAIN THE DIFFERENCE AND
SIMILARITY BETWEEN A FENCE
AND AN ACCESSORY TO THEFT OR
ROBBERY?
a. A fence is punished as a principal
under PD, No 1612 and the penalty is higher,
whereas an accessory to robbery or theft
under the Revised Penal Code is punished
two degrees lower than the principal as a
general rule.
b. Fencing is a malum prohibitum
and therefore there is no need to prove
criminal intent of the accused. Good faith is
not a defense. In accessory to robbery or
theft under the Revised Penal Code, intent is
an element of the crime and therefore, good
faith is a proper defense.
C. All the acts of one who is an
accessory to the crimes of robbery or theft
are included in the acts defined as fencing.
Corollarily, the accessory in the crimes of
robbery or theft could be prosecuted as such
under the Revised Penal Code or as a fence
under PD No. 1612.
1.04
EXPLAIN THE ELEMENT OF
KNOWLEDGE OF A PARTICULAR
FACT.
When knowledge of the existence of
a particular fact is an element of an offense,
65
such knowledge is established if a person is
aware of a high probability of its existence
unless he actually believes that it does not
exist. Dizon-Pamintuan vs. People, 234 SCRA
63(1994)
The law does not require proof of
purchase of the stolen articles by petitioner,
as mere possession thereof is enough to give
rise to a presumption of fencing. Dunlao, Sr.
vs. Court of Appeals, 260 SCRA 788(1996)
1.05 WHAT DO THE WORDS “SHOULD
KNOW” DENOTE?
1.09 WHAT DOES THE TERM "FENCE"
INCLUDE? (Sec. 2)
The words “should know” denote the
fact that person of reasonable prudence and
intelligence would ascertain the fact in
performance of his duty to another or would
govern his conduct upon assumption that
such fact exists.
Knowledge refers to a mental state of
awareness about a fact. Since the court
cannot penetrate the mind of an accused and
state with certainty what is contained
therein, it must determine such knowledge
with care from the overt acts of that person.
And given two equally plausible states of
cognition or mental awareness, the court
should choose the one which sustains the
constitutional presumption of innocence.
Dizon-Pamintuan vs. People, 234 SCRA
63(1994)
1.06
IS THE STOLEN PROPERTY
INDISPENSABLE
TO
PROVE
FENCING?
No. The stolen property subject of the
charge is not indispensable to prove fencing.
Fencing is malum prohibitum, and
P.D. No. 1612 creates a prima facie
presumption of fencing from evidence of
possession by the accused of any good,
article, item, object or anything of value
which has been the subject of robbery or
theft, and prescribes a higher penalty based
on the value of the property. The stolen
property subject of the charge is not
indispensable to prove fencing. It is merely
corroborative of the testimonies and other
evidence adduced by the prosecution to
prove the crime of fencing. Francisco vs.
People, 434 SCRA 122(2004)
1.07 MUST INTENT TO GAIN BE PROVED?
Intent to gain need not be proved in
crimes punishable by a special law such as
P.D. 1612.
1.08 MUST PURCHASE OF THE STOLEN
ARTICLES BE PROVED?
It includes any person, firm, association,
corporation or partnership or other
organization who/which commits the act of
fencing.
1.10 IF THE FENCE IS A JURIDICAL
PERSON, WHO SHOULD BE LIABLE? (SEC.
4)
If the fence is a partnership, firm,
corporation or association, the president or
the manager or any officer thereof who
knows or should have known the
commission of the offense shall be liable.
1.11 WHAT IS THE PRESUMPTION OF
FENCING? (SEC. 5)
Section 5 provides for the presumption
of fencing:
“Mere possession of any good, article,
item, object, or anything of value which
has been the subject of robbery or thievery
shall be prima facie evidence of fencing”
1.12 WHAT IS THE PRESUMPTION WHEN
A
STOREOWNER
DISPLAYS
ARTICLES?
When a storeowner displays articles,
it is assumed that he is doing so with the
intention of selling them.
1.13 DISCUSS THE NECESSITY OF
SECURING A CLEARANCE OR PERMIT.
(SEC. 6)
Section
6
underscores
the
importance of securing a clearance or permit
in dealing with the buy and sell activities.
1.14 UNDER THE SAID RULES AND
REGULATIONS, TO WHAT ITEMS
DOES
THE
TERM
"USED
SECONDHAND ARTICLE" REFER TO?
It shall refer to any goods, article, item,
object or anything of value obtained from an
66
unlicensed dealer or supplier, regardless of
whether the same has actually or in fact been
used.
management. People vs.De Gracia, 233 SCRA
716
Illustrative case
-oooOOOoooCHAPTER VIII. ILLEGAL POSSESSION OF
FIREARM
PD 1866 as amended by R.A. 8294
[BAR Q. 2011, 2002, 2000, 1998]
1.00 WHAT ARE THE ELEMENTS OF THE
CRIME OF ILLEGAL POSSESSION OF
FIREARM AND AMMUNITION?
In illegal possession of firearm and
ammunition, the prosecution has the burden
of proving the twin elements of:
(1) the existence of the subject firearm
and ammunition, and
(2) the fact that the accused who
possessed or owned the same does not
have the corresponding license for it.
Valeroso vs. People, 546 SCRA 450,
February 22, 2008
Illustrative case
BAR Q. [2011] X, Y and Z agreed among
themselves to attack and kill A, a police
officer,but they left their home-made
guns in their vehicle before approaching
him. What crime have they committed?
A. Conspiracy to commit indirect
assault.
B. Attempted direct assault.
C. Conspiracy to commit direct
assault.
D. Illegal possession of firearms.
1.01 IS OWNERSHIP AN ELEMENT OF THIS
CRIME?
No. Ownership is not an essential
element of illegal possession of firearm.
What the law requires is merely possession
which includes not only physical possession
but also constructive possession or the
subjection of the thing to one’s control and
BAR Q. [2000] A has long been wanted by
the police authorities for various crimes
committed by him.
Acting on an
information by a tipster, the police
proceeded to an apartment where A was
often seen. The tipster also warned the
policeman that A was always armed. At
the given address, a lady who introduced
herself as the elder sister of A, opened the
door and let the policeman in. inside the
team found A sleeping on the floor.
Immediately beside him was a clutch bag
which when opened, contained a .38
caliber paltic revolver and a hand
grenade.
After verification, the
authorities discovered that A was not a
licensed holder of the .38 caliber paltik
revolver. As for the hand grenade, it was
established that only military personnel
are authorized to carry hand grenades.
Subsequently, A was charged with the
crime of illegal possession of firearms
and ammunition.
During trial, A
maintained that the bag containing the
unlicensed firearm and hand grenade
belonged to A, his friend, and that he was
not in actual possession thereof at the
time he was arrested. Are the allegations
meritorious? Explain.
Suggested
Answer:
No,
A's
allegation that he does not own the firearm is
of no significance. It is a settled rule that
ownership is not an essential element in the
crime of illegal possession.
Further, his defense that he was not in
possession of the same at that time he was
arrested has no leg to stand on. Possession
includes not only actual physical possession
but also constructive possession where the
firearm and explosives are subject to one's
control and management. As long as intent to
possess is proved, A can be held liable.
1.02
EXPLAIN THE
POSSESSION.
CONCEPT
OF
67
The kind of possession punishable
under PD 1866 is one where the accused
possessed a firearm either physically or
constructively with animus possidendi or
intention to possess. It is not enough that the
firearm was found in the possession of the
accused who held the same temporarily and
casually or for the purpose of surrendering
the same. People vs. Dela Rosa, 90 SCAD 143
Possession
of
firearm
and
ammunition without the requisite authority
or license, coupled with animus possidendi,
is a violation of PD 1866. People vs. Lian, 255
SCRA 532
A temporary, incidental, casual, or
harmless possession or control of a firearm
cannot be considered a violation of a statute
prohibiting the possession of this kind of
weapon. People vs. De Gracia, 233 SCRA 716
To be guilty of the crime of illegal
possession of firearms and ammunition, one
does not have to be in actual physical
possession thereof. The law does not punish
physical possession alone but possession in
general, which includes constructive
possession or the subjection of the thing to
the owner’s control. Evangelista vs. People,
G.R. No. 163267, May 5, 2010
was made in good faith and without criminal
intent. Elenita C. Fajardo vs. People, G.R. No.
190889, January 10, 2011
1.04 ASIDE FROM A FIREARM WITHOUT A
LICENSE, WHAT DOES UNLICENSED
FIREARM INCLUDE?
The term unlicensed firearm shall
include:
1) firearms with expired license; or
2) unauthorized use of licensed
firearm in the commission of the
crime.
Unlicensed firearm no longer simply
means a firearm without a license duly
issued by lawful authority. The scope of the
term has been expanded in Section 5 of
Republic Act No. 8294 as: (1) firearm with
expired license, or (2) unauthorized use of
licensed firearm in the commission of the
crime. People vs. Molina, 292 SCRA 742
It
follows
therefore
that
unauthorized use of weapon which has been
duly licensed in the name of its
owner/possessor may still aggravate the
resultant/crime. People vs. Moliva, 292 SCRA
742
1.03 DIFFERENTIATE CRIMINAL INTENT
FROM INTENT TO POSSESS.
1.05 IS PROOF OF UNLICENSED FIREARM
AN ESSENTIAL ELEMENT OF PD 1866?
A distinction should be made
between criminal intent and intent to
possess. While mere possession, without
criminal intent, is sufficient to convict a
person for illegal possession of a firearm, it
must still be shown that there was animus
possidendi or an intent to possess on the part
of the accused. Such intent to possess is,
however, without regard to any other
criminal or felonious intent which the
accused may have harbored in possessing
the firearm. Criminal intent here refers to the
intention of the accused to commit an offense
with the use of an unlicensed firearm. This is
not important in convicting a person under
Presidential Decree No. 1866. Hence, in
order that one may be found guilty of a
violation of the decree, it is sufficient that the
accused had no authority or license to
possess a firearm, and that he intended to
possess the same, even if such possession
Yes. The lack of a license to possess
firearm is an essential element of the crime
of PD 1866 as amended by RA 8294 whether
as an independent crime or as an aggravating
circumstance in murder or homicide. People
vs. Perez, G.R. No. 134485, October 23, 2003
It is settled that the lack or absence of
a license is an essential ingredient of the
crime of illegal possession of firearm. Sasot
vs. Yuson, 592 SCRA 368, July 13, 2009
1.06 WHAT IS THE CORPUS DELICTI IN
ILLEGAL POSSESSION OF FIREARM?
The corpus delicti in the crime of
illegal possession of firearms is the accused's
lack of license or permit to possess or carry
the firearm, as possession itself is not
prohibited by law. To establish the corpus
68
delicti, the prosecution has the burden of
proving that the firearm exists and that the
accused who owned or possessed it does not
have the corresponding license or permit to
possess or carry the same. Sayco vs. People,
547 SRA 368, March 3, 2008
1.07 HOW IS THE SECOND ELEMENT OF
THE CRIME PROVEN?
It can be proven by the testimony or
certification of a representative of the PNP
Firearms and Explosive Unit that the accused
was not a licensee of the firearm in question.
People vs. Narvasa, 298 SCRA 638
In Valeroso vs. People, 546 SCRA 450,
February 22, 2008, the Supreme Court ruled
that either the testimony of a representative
of, or a certification from, the Philippine
National Police (PNP) Firearms and
Explosive Office attesting that a person is not
a licensee of any firearm would suffice to
prove beyond reasonable doubt the second
element of possession of illegal firearms.
1.08 IS THE NON-PRESENTATION OF THE
SUBJECT FIREARM FATAL TO THE
PROSECUTION’S CAUSE?
No because the existence of the
firearm can be established by testimony even
without the presentation of the said firearm.
People vs. Narvasa, 100 SCAD 745
1.09 WHAT IS THE CONSEQUENCE IF
HOMICIDE
OR
MURDER
IS
COMMITTED WITH THE USE OF AN
UNLICENSED FIREARM? (SEC.1)
1. Where the murder or homicide
results from the use of an unlicensed firearm,
the crime is no longer qualified illegal
possession, but murder or homicide, as the
case may be, and the use of the unlicensed
firearm shall be appreciated as a mere
aggravating circumstance. People vs. Avecilla,
351 SCRA 462
2. The use of an unlicensed firearm
shall be considered as an aggravating
circumstance only. There can be no separate
conviction of illegal possession of firearm.
Section 1 of Presidential Decree No. 1866 as
amended by Republic Act No. 8294 expressly
provides: "If homicide or murder is committed
with the use of an unlicensed firearm, such use
of an unlicensed firearm shall be considered as
an aggravating circumstance.
3. In People vs. Macoy Jr., 338 SCRA
217, the Supreme Court enunciated that in
the light of the enactment of Republic Act No.
8294, amending Presidential Decree No.
1866, there can be no separate conviction of
the crime of illegal possession of firearm if
homicide or murder is committed with the
use of an unlicensed firearm.
4. In another case, the Court held that
there can be no separate offense of simple
illegal possession of firearms where direct
assault with multiple attempted homicide
was committed. People vs. Ladjaalam, 340
SCRA 617
5. However, it is necessary that said
fact is charged in the information. The
accused cannot be convicted of homicide or
murder with “the use of the unlicensed
firearm as aggravating” where said felonies
are not charged in the information but
merely mentioned as the result of the use of
the unlicensed firearm. People vs. Avecilla,
351 SCRA 462
1.10 IF AN UNLICENSED FIREARM IS USED
IN THE COMMISSION OF ANY CRIME,
CAN THERE BE
A SEPARATE
OFFENSE OF SIMPLE ILLEGAL
POSSESSION OF FIREARMS?
No. In People v. Ladjaalam, 340 SCRA 617
(2000), the Supreme Court laid down the
correct interpretation of the law and ruled:
“x x x A simple reading thereof shows that if
an unlicensed firearm is used in the
commission of any crime, there can be no
separate offense of simple illegal possession
of firearms.”
The law is clear: the accused can be
convicted of simple illegal possession of
firearms, provided that “no other crime was
committed by the person arrested.” Sison vs.
People, 666 SCRA 645(2012)
Again, if the “other crime” is murder or
homicide, illegal possession of firearms
69
becomes
merely
an
aggravating
circumstance, not a separate offense.
BAR Q. [2009] TRUE or FALSE. Answer
TRUE if the statement is true, or FALSE if
the statement is false. Explain your
answer in not more than two (2)
sentences.
The use of an unlicensed firearm in
homicide is considered a generic
aggravating circumstance which can be
offset by an ordinary mitigating
circumstance.
Suggested Answer: No, the use of an
unlicensed firearm in murder or homicide
constitutes as a special aggravating
circumstance which may not be offset by an
ordinary mitigating circumstances. (People
vs. Palaganas, G.R. No. 165483; People vs.
Castillo, G.R.No. 131592-93, February 15,
2000).
However, in People vs. Dela Cruz,
December 2000, the Supreme Court ruled that
the aggravating circumstance of the use of
firearm is effectively offset by the mitigating
circumstance of voluntary surrender.
1.11 WHAT IS THE CONSEQUENCE IF
ILLEGAL POSSESSION OF FIREARM
IS IN FURTHERANCE OF OR
INCIDENT TO, OR IN CONNECTION
WITH THE CRIME OF REBELLION
OR INSURRECTION, SEDITION, OR
ATTEMPTED COUP D'ETAT? (SEC.1)
The use of an unlicensed firearm shall be
absorbed. Section 1 of Presidential Decree
No. 1866 as amended by Republic Act No.
8294 expressly states:
"If the violation of this Section is in
furtherance of or incident to, or in
connection with the crime of rebellion or
insurrection, sedition, or attempted coup
d'etat, such violation shall be absorbed as
an element of the crime of rebellion, or
insurrection, sedition, or attempted coup
d'etat.”
“The possession of any machinery,
tool or instrument used directly in the
manufacture of firearms or ammunition,
by any person whose business or
employment does not lawfully deal with
the manufacture of firearms or
ammunition, shall be prima facie evidence
that such article is intended to be used in
the unlawful/illegal manufacture of
firearms or ammunition.”
1.13 WHEN IS THE USE OF EXPLOSIVES,
DETONATION
AGENTS
OR
INCENDIARY DEVICES CONSIDERED
AS
AN
AGGRAVATING
CIRCUMSTANCE? (SEC.3)
When a person commits any of the
crimes defined in the Revised Penal Code or
special laws with the use of the explosives
(mentioned in Sec.3), detonation agents or
incendiary devices, which results in the
death of any person or persons, the use of
such explosives, detonation agents or
incendiary devices shall be considered as an
aggravating circumstance.
1.14
EXPLAIN
PRESUMPTION
UNLAWFUL MANUFACTURE (SEC.4).
OF
Section 4 provides the presumption
of unlawful manufacture. It reads:
“The possession of any machinery,
tool or instrument directly used in the
manufacture of explosives, by any person
whose business or employment does not
lawfully deal with the manufacture of
explosives shall be prima facie evidence
that such article is intended to be used in
the unlawful/illegal manufacture of
explosives.”
ADDENDUM:
1.12 EXPLAIN PRESUMPTION OF ILLEGAL
MANUFACTURE OF FIREARMS OR
AMMUNITION (SEC.2).
“Loose firearm” refers to an
unregistered firearm, an obliterated or
altered firearm, firearm which has been
lost or stolen, illegally manufactured
firearms, registered firearms in the
possession of an individual other than
the licensee and those with revoked
licenses in accordance with the rules and
regulations. (R.A. No. 10591)
The
presumption
of
illegal
manufacture of firearms or ammunition is
embodied in section 2. It provides:
USE OF LOOSE FIREARM IN THE
COMMISSION OF A CRIME (Sec. 29 of R.A.
No. 10591)
70
The use of loose firearm, when inherent
in the commission of a crime punishable
under the Revised Penal Code or other
special laws, shall be considered as an
aggravating circumstance. Provided
that:
-If the crime committed with the use of a
loose firearm is penalized by the law
with a maximum penalty which is lower
than that prescribed in Sec. 28 of R.A. No.
10591, the penalty for illegal possession
of firearm shall be imposed in lieu of the
penalty for the crime charged.
-If the crime committed with the use of
loose firearm is penalized by the law
with a maximum penalty which is equal
to that imposed under Sec. 28 of R.A. No.
10591, the penalty of prision mayor in its
minimum period shall be imposed in
addition to the penalty for the crime
punishable under the Revised Penal Code
or other special laws of which he/she is
found guilty.
managing securities or rendering services as
investment agent, advisor, or consultant, (ii)
mutual funds, close and investment
companies, common trust funds, pre-need
companies and other similar entities, (iii)
foreign exchange corporations, money
changers, money payment, remittance, and
transfer companies and other similar
entities, and (iv) other entities administering
or otherwise dealing in currency,
commodities or financial derivatives based
thereon, valuable objects, cash substitutes
and other similar monetary instruments or
property supervised or regulated by
Securities and Exchange Commission.
1.01 DEFINE “SUSPICIOUS
TRANSACTIONS”.
They are transactions with covered
institutions, regardless of the amounts
involved, where any of the following
circumstances exist:
1. there is no underlying legal or
trade
obligation,
purpose
or
economic justification;
2. the client is not properly identified;
-oooOOOooo-
CHAPTER IX
ANTI- MONEY LAUNDERING ACT OF 2001
R.A. No. 9160 as amended
by R.A. 9194, R.A. 10167, R.A. 10168 and
R.A. 10365, also known as An Act Further
Strengthening
The Anti-Money Laundering Law
[BAR 2010, 2009, 2005]
___________________________________________________
1.00 WHAT DOES THE TERM "COVERED
INSTITUTION" REFER TO?
(1) banks, non-banks, quasi-banks, trust
entities, and all other institutions and their
subsidiaries and affiliates supervised or
regulated by the Bangko Sentral ng Pilipinas
(BSP);
(2) Insurance companies and all other
institutions supervised or regulated by the
Insurance Commission; and
(3) (i) securities dealers, brokers, salesmen,
investment houses and other similar entities
3. the amount involved is not
commensurate with the business or
financial capacity of the client;
4. taking into account all known
circumstances, it may be perceived
that the client's transaction is
structured in order to avoid being the
subject of reporting requirements
under the Act;
5. any circumstances relating to the
transaction which is observed to
deviate from the profile of the client
and/or the client's past transactions
with the covered institution;
6. the transactions is in a way related
to an unlawful activity or offense
under this Act that is about to be, is
being or has been committed; or
7. any transactions that is similar or
analogous to any of the foregoing."
(As inserted by R.A. No. 9194)
1.02 DEFINE "COVERED TRANSACTION".
It is a transaction in cash or other
71
equivalent monetary instrument involving a
total amount in excess of Five hundred
thousand pesos (PhP 500,000.00) within one
(1) banking day. (as amended by RA 9194)
1.03
AS AMENDED, DO “COVERED
PERSONS” INCLUDE LAWYERS AND
ACCOUNTANTS?
The term ‘covered persons’ shall
exclude lawyers and accountants acting as
independent legal professionals in relation
to information concerning their clients or
where disclosure of information would
compromise client confidences or the
attorney-client relationship: Provided, That
these lawyers and accountants are
authorized to practice in the Philippines and
shall continue to be subject to the provisions
of their respective codes of conduct and/or
professional responsibility or any of its
amendments.
1.04 WHAT IS THE DUTY OF “COVERED
PERSONS”?
Covered persons shall report to the
AMLC all covered transactions and
suspicious transactions within five (5)
working days from occurrence thereof,
unless the AMLC prescribes a different
period not exceeding fifteen (15) working
days.
1.05 ARE LAWYERS AND ACCOUNTANTS
REQUIRED TO REPORT COVERED
AND SUSPICIOUS TRANSACTIONS?
Lawyers and accountants acting as
independent legal professionals are not
required to report covered and suspicious
transactions if the relevant information was
obtained in circumstances where they are
subject to professional secrecy or legal
professional privilege.
1.06 AS AMENDED BY RA 10365, WHAT
DOES “UNLAWFUL ACTIVITY” REFER
TO?
As amended by R.A. 10365,
“Unlawful activity” refers to any act or
omission or series or combination thereof
involving or having direct relation to the
following:
(1) Kidnapping for ransom under Article
267 of Act No. 3815, otherwise known as
the Revised Penal Code, as amended;
(2) Sections 4, 5, 6, 8, 9, 10, 11, 12, 13, 14,
15 and 16 of Republic Act No. 9165,
otherwise known as the Comprehensive
Dangerous Drugs Act of 2002;
(3) Section 3 paragraphs B, C, E, G, H and I
of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and
Corrupt Practices Act;
(4) Plunder under Republic Act No. 7080,
as amended;
(5) Robbery and extortion under Articles
294, 295, 296, 299, 300, 301 and 302 of the
Revised Penal Code, as amended;
(6) Jueteng and Masiao punished as illegal
gambling under Presidential Decree No.
1602;
(7) Piracy on the high seas under the
Revised Penal Code, as amended and
Presidential Decree No. 532;
(8) Qualified theft under Article 310 of the
Revised Penal Code, as amended;
(9) Swindling under Article 315 and Other
Forms of Swindling under Article 316 of
the Revised Penal Code, as amended;
(10) Smuggling under Republic Act Nos.
455 and 1937;
(11) Violations of Republic Act No. 8792,
otherwise known as the Electronic
Commerce Act of 2000;
(12) Hijacking and other violations under
Republic Act No. 6235; destructive arson
and murder, as defined under the Revised
Penal Code, as amended;
(13) Terrorism and conspiracy to commit
terrorism as defined and penalized under
Sections 3 and 4 of Republic Act No. 9372;
(14) Financing of terrorism under Section
4 and offenses punishable under Sections
5, 6, 7 and 8 of Republic Act No. 10168,
otherwise known as the Terrorism
Financing Prevention and Suppression Act
of 2012:
72
(15) Bribery under Articles 210, 211 and
211-A of the Revised Penal Code, as
amended, and Corruption of Public
Officers under Article 212 of the Revised
Penal Code, as amended;
(16) Frauds and Illegal Exactions and
Transactions under Articles 213, 214, 215
and 216 of the Revised Penal Code, as
amended;
(17) Malversation of Public Funds and
Property under Articles 217 and 222 of the
Revised Penal Code, as amended;
(18) Forgeries and Counterfeiting under
Articles 163, 166, 167, 168, 169 and 176 of
the Revised Penal Code, as amended;
(19) Violations of Sections 4 to 6 of
Republic Act No. 9208, otherwise known as
the Anti-Trafficking in Persons Act of
2003;
(20) Violations of Sections 78 to 79 of
Chapter IV, of Presidential Decree No. 705,
otherwise known as the Revised Forestry
Code of the Philippines, as amended;
(21) Violations of Sections 86 to 106 of
Chapter VI, of Republic Act No. 8550,
otherwise known as the Philippine
Fisheries Code of 1998;
(22) Violations of Sections 101 to 107, and
110 of Republic Act No. 7942, otherwise
known as the Philippine Mining Act of
1995;
(23) Violations of Section 27(c), (e), (f), (g)
and (i), of Republic Act No. 9147, otherwise
known as the Wildlife Resources
Conservation and Protection Act;
(24) Violation of Section 7(b) of Republic
Act No. 9072, otherwise known as the
National Caves and Cave Resources
Management Protection Act;
(25) Violation of Republic Act No. 6539,
otherwise known as the Anti-Carnapping
Act of 2002, as amended;
(26) Violations of Sections 1, 3 and 5 of
Presidential Decree No. 1866, as amended,
otherwise known as the decree Codifying
the Laws on Illegal/Unlawful Possession,
Manufacture, Dealing In, Acquisition or
Disposition of Firearms, Ammunition or
Explosives;
(27) Violation of Presidential Decree No.
1612, otherwise known as the AntiFencing Law;
(28) Violation of Section 6 of Republic Act
No. 8042, otherwise known as the
Migrant Workers and Overseas Filipinos
Act of 1995, as amended by Republic Act
No. 10022;
(29) Violation of Republic Act No. 8293,
otherwise known as the Intellectual
Property Code of the Philippines;
(30) Violation of Section 4 of Republic Act
No. 9995, otherwise known as the AntiPhoto and Video Voyeurism Act of 2009;
(31) Violation of Section 4 of Republic Act
No. 9775, otherwise known as the AntiChild Pornography Act of 2009;
(32) Violations of Sections 5, 7, 8, 9, 10(c),
(d) and (e), 11, 12 and 14 of Republic Act
No. 7610, otherwise known as the Special
Protection of Children Against Abuse,
Exploitation and Discrimination;
(33) Fraudulent practices and other
violations under Republic Act No. 8799,
otherwise known as the Securities
Regulation Code of 2000; and
(34) Felonies or offenses of a similar
nature that are punishable under the
penal laws of other countries.”
1.07 BAR Q. [2010] DEFINE MONEY
LAUNDERING. (Sec. 4)
as:
Section 4 defines money laundering
“It is a crime whereby the proceeds of an
unlawful activity as herein defined are
transacted, thereby making them appear
to have originated from legitimate
sources.”
1.08 AS AMENDED BY RA 10365, HOW IS
THE
MONEY
LAUNDERING
OFFENSE COMMITTED UNDER
SEC.4?
Section 4 provides the ways by which
money laundering is committed. R.A. 10365
reads as follows:
73
“Money laundering is committed
by any person who, knowing that any
monetary instrument or property
represents, involves, or relates to the
proceeds of any unlawful activity:
(a) transacts said monetary instrument or
property;
(b) converts, transfers, disposes of, moves,
acquires, possesses or uses said monetary
instrument or property;
(c) conceals or disguises the true nature,
source, location, disposition, movement or
ownership of or rights with respect to said
monetary instrument or property;
(d) attempts or conspires to commit
money laundering offenses referred to in
paragraphs (a), (b) or (c);
proceeds
from,
or
instrumentalities used in or
intended for use in any unlawful
activity as defined in Section 3(i)
hereof;
2.
to require the Land Registration
Authority and all its Registries of
Deeds to submit to the AMLC,
reports on all real estate
transactions
involving
an
amount in excess of Five hundred
thousand pesos (P500,000.00)
within fifteen (15) days from the
date of registration of the
transaction, in a form to be
prescribed by the AMLC. The
AMLC may also require the Land
Registration Authority and all its
Registries of Deeds to submit
copies of relevant documents of
all real estate transactions.
(e) aids, abets, assists in or counsels the
commission of the money laundering
offenses referred to in paragraphs (a), (b)
or (c) above; and
1.11 EXPLAIN THE PROSECUTION OF
MONEY LAUNDERING OFFENSE
UNDER SECTION 6.
(f) performs or fails to perform any act as
a result of which he facilitates the offense
of money laundering referred to in
paragraphs (a), (b) or (c) above.”
(a) Any person may be charged with
and convicted of both the offense of
money laundering and the unlawful
activity as herein defined.
1.09 IS MONEY LAUNDERING COMMITTED
WHEN THERE IS FAILURE TO
REPORT
A
COVERED
OR
SUSPICIOUS TRANSACTION?
(b) Any proceeding relating to the
unlawful activity shall be given
precedence over the prosecution of
any offense or violation under this
Act without prejudice to the freezing
and other remedies provided.
Yes, money laundering is also
committed by any covered person who,
knowing that a covered or suspicious
transaction is required under this Act to be
reported to the Anti-Money Laundering
Council (AMLC), fails to do so.
1.10 AS AMENDED BY RA 10365, WHAT
ARE THE OTHER POWERS OF THE
ANTI-MONEY
LAUNDERING
COUNCIL (AMLC)?
The Anti-Money Laundering Council
has the power to:
1.
to apply before the Court of
Appeals, ex parte, for the freezing
of any monetary instrument or
property alleged to be laundered,
1.12 MAY A PERSON BE CHARGED OF
BOTH THE OFFENSE OF MONEY
LAUNDERING
AND
THE
UNLAWFUL ACTIVITY?
Yes. As amended by RA 10365,
Section 6(a) provides that any person may be
charged with and convicted of both the
offense of money laundering and the
unlawful activity as herein defined. In fact,
under par(b), it further states that the
prosecution of any offense or violation under
this Act shall proceed independently of any
proceeding relating to the unlawful activity.
1.13 AS AMENDED BY RA 10167, HOW IS
THE FREEZE ORDER OF MONETARY
INSTRUMENT
OR
PROPERTY
74
RELATED TO UNLAWFUL ACTIVITY
MADE? (SEC. 10)
R.A. No. 10167 further amended
Section 10 to read as follows:
“Upon a verified ex parte petition
by the AMLC and after determination that
probable cause exists that any monetary
instrument or property is in any way
related to an unlawful activity as defined
in Section 3(i) hereof, the Court of Appeals
may issue a freeze order which shall be
effective immediately, and which shall not
exceed six (6) months depending upon the
circumstances of the case: Provided, That
if there is no case filed against a person
whose account has been frozen within the
period determined by the court, the freeze
order
shall
be
deemed ipso
facto lifted: Provided, further, That this
new rule shall not apply to pending cases
in the courts. In any case, the court should
act on the petition to freeze within twentyfour (24) hours from filing of the petition.
If the application is filed a day before a
nonworking day, the computation of the
twenty-four (24)-hour period shall
exclude the nonworking days.”
1.14
WHICH
COURT
HAS
THE
JURISDICTION TO ISSUE FREEZE
ORDER?
Pursuant to RA 9160 as amended, it
is solely the Court of Appeals which has the
authority to issue a freeze order.
BAR Q. [2010] There being probable cause
to
believe
that
certain
deposits
and investments in a bank are related to an
unlawful activity of smuggling by Alessandro
as defined under Republic Act (RA) No.
9160, as amended (Anti-Money Laundering
Act) an application for an order to inquiry
into his deposit was filed with the Regional
Trial Court. After hearing the application, the
court granted the application and issued a
freeze order. Pass upon the correctness of
the court’s order.
Suggested Answer: The court’s order
is invalid. The RTC has no jurisdiction to issue
freeze order. Section 10 of R.A. 9160 vests
exclusive jurisdiction to the Court of Appeals
to determine the existence of probable case
and to issue freeze order upon application by
the AMLC.
1.15 WHAT IS THE REMEDY OF A PERSON
WHOSE ACCOUNT HAS BEEN
FROZEN?
A person whose account has been
frozen may file a motion to lift the freeze
order and the court must resolve this motion
before the expiration of the freeze order.
1.16 CAN A COURT ISSUE A TRO OR
INJUNCTION AGAINST THE FREEZE
ORDER?
No court shall issue a temporary
restraining order or a writ of injunction
against any freeze order, except the Supreme
Court.
1.17 IS AMLC AUTHORIZED TO INQUIRE
INTO BANK DEPOSITS? (SEC. 11)
Yes. The law is clear. It states:
“Sec.11. Authority to Inquire into Bank
Deposits. -Notwithstanding
the
provisions of Republic Act No. 1405, as
amended, Republic Act No. 6426, as
amended, Republic Act No. 8791, and other
laws, the AMLC may inquire into or
examine any particular deposit or
investment with any banking institution
or non-bank financial institution.”
1.18 UNDER WHAT CIRCUMSTANCES IS
AMLC AUTHORIZED TO INQUIRE
INTO BANK DEPOSITS?
Only upon order of any competent
court in cases of violation of this Act, when it
has been established that there is probable
cause that the deposits or investments are
related to an unlawful activities as defined in
Section 3(I) hereof or a money laundering
offense under Section 4 hereof except:
that no court order shall be required
in cases involving unlawful activities defined
in Sections 3(I)1, (2) and (12).”
1.19 DOES SECTION 11 AUTHORIZE AN EXPARTE ISSUANCE OF A BANK
INQUIRY ORDER?
No. In the instances where a court
order is required for the issuance of the bank
inquiry order, nothing in Section 11
specifically authorizes that such order may
75
be issued ex parte. Republic vs. Eugenio, Jr.,
545 SCRA 384(2008)
1.20 DIFFERENTIATE SECTION 10 FROM
SECTION 11.
Although oriented towards different
purposes, the freeze order under Section 10
and the bank inquiry order under Section 11
are similar in that they are extraordinary
provisional reliefs which the AMLC may
avail of to effectively combat and prosecute
money laundering offenses. Crucially,
Section 10 uses specific language to
authorize an ex parte application for the
provisional relief therein, a circumstance
absent in Section 11. If indeed the
legislature had intended to authorize ex
parte proceedings for the issuance of the
bank inquiry order, then it could have easily
expressed such intent in the law, as it did
with the freeze order under Section 10.
With respect to freeze orders under
Section 10, the implementing rules do
expressly provide that the applications for
freeze orders be filed ex parte but no similar
clearance is granted in the case of inquiry
orders under Section 11. Republic vs.
Eugenio, Jr., 545 SCRA 384(2008)
1.21
IS CRIMINAL
PREREQUISITE
FORFEITURE?
CONVICTION A
FOR
CIVIL
No. A criminal conviction for an
unlawful activity is not a prerequisite for the
institution of a civil forfeiture proceeding.
Stated otherwise, a finding of guilt for an
unlawful activity is not an essential element
of civil forfeiture. Republic v. Glasgow Credit
and Collection Services, Inc., 542 SCRA 95,
January 18, 2008.
1.22 WHAT ARE THE TWO CONDITIONS
WHEN APPLYING FOR CIVIL
FORFEITURE?
RA 9160, as amended, and its
implementing rules and regulations lay
down two conditions when applying for civil
forfeiture: (1) when there is a suspicious
transaction report or a covered transaction
report deemed suspicious after investigation
by the AMLC and (2) the court has, in a
petition filed for the purpose, ordered the
seizure of any monetary instrument or
property, in whole or in part, directly or
indirectly, related to said report. It is the
preliminary seizure of the property in
question which brings it within the reach of
the judicial process. Republic v. Glasgow
Credit and Collection Services, Inc. , 542 SCRA
95, January 18, 2008
-oooOOOooo-
CHAPTER X
ANTI- HAZING LAW
[BAR Q. 2002]
___________________________________________________
1.00
DEFINE HAZING (Sec.1) / BAR Q.
[2002] What is hazing as defined by
law?
Section 1 defines “hazing” as follows:
“It is an initiation rite or practice as
a prerequisite for admission into
membership in a fraternity, sorority or
organization by placing the recruit,
neophyte
or
applicant
in
some
embarrassing or humiliating situations
such as forcing him to do menial, silly,
foolish and other similar tasks or
activities or otherwise subjecting him to
physical or psychological suffering or
injury.”
1.01 WHAT ARE THE REQUISITES BEFORE
HAZING OR INITIATION RITES
SHALL BE ALLOWED? (Sec.2)
A prior written notice to the school
authorities or head of organization must be
given seven (7) days before the conduct of
such initiation.
Section 2 of the law specifically
provides for the requisites:
“There must be a prior written
notice to the school authorities or head of
organization seven (7) days before the
conduct of such initiation.
The written notice shall
indicate:
76
1.
the period of the initiation activities
which shall not exceed three (3) days,
2. shall include the names of those to be
subjected to such activities, and
3. shall further contain an undertaking
that no physical violence be employed
by anybody during such initiation
rites.”
1.02 WHAT IS THE DUTY OF THE HEAD OF
SCHOOL OR ORGANIZATION WHEN
THERE IS INITIATION RITES?
(Sec.3)
Under Section 3, when there is
initiation rites, the following duty is
incumbent:
“The head of the school or organization or
their representatives must assign at least
two (2) representatives of the school or
organization, as the case may be, to be
present during the initiation.
It is the duty of such representative to see
to it that no physical harm of any kind
shall be inflicted upon a recruit, neophyte
or applicant.”
1.03 WHO ARE LIABLE IF A PERSON DIES
OR SUFFERS PHYSICAL INJURY
DURING INITIATION RITES? (Sec.4)
If the person subjected to hazing or
other forms of initiation rites suffers any
physical injury or dies as a result thereof, the
officers and members of the fraternity,
sorority or organization who actually
participated in the infliction of physical harm
shall be liable as principals.
1.04 MAY THE RESPONSIBLE OFFICIALS
OF THE SCHOOL OR OF THE POLICE,
MILITARY OR CITIZEN'S ARMY
TRAINING ORGANIZATION, IMPOSE
ADMINISTRATIVE SANCTIONS ON
PERSONS CHARGED? (Sec.4)
Yes, the responsible officials of the
school or of the police, military or citizen's
army training organization, may impose the
appropriate administrative sanctions on the
person or the persons charged under this
provision even before their conviction.
1.05 WHEN IS THE OWNER OF THE PLACE
LIABLE AS AN ACCOMPLICE? (Sec.4)
He is liable when he has actual
knowledge of the hazing conducted therein
but failed to take any action to prevent the
same from occurring.
1.06 WHEN SHALL THE PARENTS BE
LIABLE AS PRINCIPALS? (Sec.4)
Yes, parents may be liable as
principals if:
a. The hazing is held in the home of
one of the officers or members of the
fraternity, group, or organization;
b. The parents have actual
knowledge of the hazing conducted therein
but failed to take any action to prevent the
same from occurring.
Section 4 expressly states:
“If the hazing is held in the home of one of
the officers or members of the fraternity,
group, or organization, the parents shall
be held liable as principals when they have
actual knowledge of the hazing conducted
therein but failed to take any action to
prevent the same from occurring.”
1.07 MAY THE SCHOOL AUTHORITIES
AND FACULTY MEMBERS BE HELD
LIABLE AS ACCOMPLICES? (Sec.4)
Yes, the school authorities and
faculty members may be held liable as
accomplices subject to the following
conditions:
a. they consent to the hazing or who
have actual knowledge thereof;
b. they failed to take any action to
prevent the same from occurring.
1.08 CAN THE FORMER OFFICERS AND
ALUMNI BE LIABLE AS PRINCIPALS
EVEN IF THEY WERE ABSENT
DURING THE HAZING? (SEC.4)
Yes, as long as they actually planned
the hazing.
1.09 WHEN MAY A FRATERNITY OR
SORORITY'S ADVISER LIABLE AS
PRINCIPAL? (Sec.4)
He is liable when he is present when
the acts constituting the hazing were
77
committed and failed to take action to
prevent the same from occurring shall be
liable as principal.
1.10 WHEN DOES THE PRIMA FACIE
EVIDENCE OF PARTICIPATION AS
PRINCIPAL ARISE? (Sec.4)
Section 4 clearly states when the
prima facie evidence of participation as
principal arise. It states:
b. Article 134
Insurrection);
(Rebellion
or
c. Article 134-a (Coup d' Etat),
including acts committed by private
persons;
d. Article 248 (Murder);
e. Article 267 (Kidnapping and
Serious Illegal Detention);
“The presence of any person during
the hazing is prima facie evidence of
participation therein as principal unless
he prevented the commission of the acts
punishable herein.”
f. Article 324 (Crimes Involving
Destruction), or under
1.11 MAY A PERSON CHARGED UNDER
THIS PROVISION BE ENTITLED TO
THE MITIGATING CIRCUMSTANCE
OF NO INTENTION TO COMMIT SO
GRAVE A WRONG? (Sec.4)
2. Republic Act No. 6969
(Toxic
Substances
and
Hazardous and Nuclear
Waste Control Act of 1990);
No. Section 4 provides: “Any person
charged under this provision shall not be
entitled to the mitigating circumstance
that there was no intention to commit so
grave a wrong.”
ADDENDUM:
Dandy L. Dungo and Gregorio A. Sibal, Jr. vs.
People of the Philippines, G.R. No. 209464,
July 1, 2015
-oooOOOooo-
CHAPTER I. HUMAN SECURITY ACT OF
2007
(THE ANTI-TERRORISM LAW)
Republic Act No. 9372
___________________________________________________
1.00 WHAT ARE THE ELEMENTS OF THE
CRIME OF TERRORISM? (Sec.3)
1. First, any person who commits
an act punishable under any of the
following provisions of the Revised Penal
Code:
a. Article 122 (Piracy in General and
Mutiny in the High Seas or in the
Philippine Waters);
1. Presidential Decree No.
1613 (The Law on Arson);
3. Republic Act No. 5207,
(Atomic Energy Regulatory
and Liability Act of 1968);
4. Republic Act No. 6235
(Anti-Hijacking Law);
5. Presidential Decree No.
532 (Anti-Piracy and AntiHighway Robbery Law of
1974); and,
6. Presidential Decree No.
1866, as amended (Decree
Codifying the Laws on Illegal
and Unlawful Possession,
Manufacture, Dealing in,
Acquisition or Disposition of
Firearms, Ammunitions or
Explosives)
2. Second, the commission of the
predicate crime sows and creates a
condition
of
widespread
and
extraordinary fear and panic among the
populace.
3. Third, the purpose is in order to
coerce the government to give in to an
unlawful demand.
1.01 WILL THE BENEFIT OF PAROLE
UNDER THE INDETERMINATE
SENTENCE LAW APPLY?
78
No. Any person guilty of the crime of
terrorism and shall suffer the penalty of forty
(40) years of imprisonment, without the
benefit of parole as provided for under Act
No. 4103, otherwise known as the
Indeterminate Sentence Law, as amended.
1.02 EXPLAIN THE ELEMENTS OF THE
CRIME OF TERRORISM.
From the definition of the crime of
terrorism in the earlier cited Section 3 of RA
9372, the following elements may be culled:
(1) the offender commits an act
punishable under any of the cited
provisions of the Revised Penal Code,
or under any of the enumerated
special penal laws;
“Persons who conspire to commit the
crime of terrorism shall suffer the penalty
of forty (40) years of imprisonment.”
1.05 WHO IS AN ACCOMPLICE?
An accomplice is defined under
Section 5. It provides:
“Any person who, not being a principal
under Article 17 of the Revised Penal
Code or a conspirator as defined in
Section 4 hereof, cooperates in the
execution of either the crime of terrorism
or conspiracy to commit terrorism by
previous or simultaneous acts shall
suffer the penalty of from seventeen (17)
years, four months one day to twenty (20)
years of imprisonment.”
(2) the commission of the predicate
crime sows and creates a condition of
widespread and extraordinary fear
and panic among the populace; and
1.06 WHO IS AN ACCESSORY?
(3) the offender is actuated by the
desire to coerce the government to
give in to an unlawful demand.
“Any
person
who,
having
knowledge of the commission of the crime
of terrorism or conspiracy to commit
terrorism,
and
without
having
participated therein, either as principal or
accomplice under Articles 17 and 18 of the
Revised Penal Code, takes part subsequent
to its commission in any of the following
manner:
Before a charge for terrorism may be
filed under RA 9372, there must first be a
predicate crime actually committed to
trigger the operation of the key qualifying
phrases in the other elements of the crime,
including the coercion of the government to
accede to an “unlawful demand.” Southern
Hemisphere Engagement Network, Inc. vs.
Anti-Terrorism Council G.R. No. 178552,
October 5, 2010.
An accessory is defined under
Section 6. It provides:
(a) by profiting himself or
assisting the offender to profit by the
effects of the crime;
1.03 WHEN IS THERE A CONSPIRACY TO
COMMIT TERRORISM?
(b) by concealing or destroying the
body of the crime, or the effects, or
instruments thereof, in order to prevent
its discovery;
There is conspiracy when two or
more persons come to an agreement
concerning the commission of the crime of
terrorism as defined in Section 3 of R.A.9372
and decide to commit the same.
(c) by harboring, concealing, or
assisting in the escape of the principal or
conspirator of the crime, shall suffer the
penalty of ten (10) years and one day to
twelve (12) years of imprisonment.”
1.04 IS MERE CONSPIRACY TO COMMIT
TERRORISM A CRIME?
1.07 WHO ARE EXEMPTED FROM BEING
AN ACCESSORY?
Yes, under Section 4 thereof, mere
conspiracy to commit terrorism is
punishable. It provides:
Notwithstanding
the
above
paragraph, the penalties prescribed for
accessories shall not be imposed upon those
who are such with respect to their spouses,
ascendants,
descendants,
legitimate,
natural, and adopted brothers and sisters, or
79
relatives by affinity within the same degrees,
with the single exception of accessories
falling
within
the
provisions
of
subparagraph (a).
1.08 WHEN MAY SURVEILLANCE OF
SUSPECTS AND INTERCEPTION
AND
RECORDING
OF
COMMUNICATIONS
ALLOWED?
(Section 7)
The provisions of Republic Act No.
4200 (Anti-Wire Tapping Law) to the
contrary notwithstanding, a police or law
enforcement official and the members of his
team may listen to, intercept and record
communication upon a written order of the
Court of Appeals.
1.09 WHAT IS THE PERIOD OF
DETENTION WITHOUT JUDICIAL
WARRANT OF ARREST?
Section 18 of the law provides:
“The provisions of Article 125 of the
Revised Penal Code to the contrary
notwithstanding, any police or law
enforcement personnel, who, having been
duly authorized in writing by the AntiTerrorism Council has taken custody of a
person charged with or suspected of the
crime of terrorism or the crime of
conspiracy to commit terrorism shall,
without incurring any criminal liability
for delay in the delivery of detained
persons to the proper judicial authorities,
deliver said charged or suspected person
to the proper judicial authority within a
period of three days counted from the
moment the said charged or suspected
person has been apprehended or arrested,
detained, and taken into custody by the
said police, or law enforcement personnel:
Provided, That the arrest of those
suspected of the crime of terrorism or
conspiracy to commit terrorism must
result from the surveillance under Section
7 and examination of bank deposits under
Section 27 of this Act.
charged with or suspected of the crime of
terrorism or conspiracy to commit terrorism
and fails to deliver such charged or
suspected person to the proper judicial
authority within the period of three (3) days
shall be criminally liable.
1.11 IS A PUBLIC OFFICER LIABLE UNDER
THIS ACT FOR INFIDELITY IN THE
CUSTODY OF DETAINED PERSONS?
(Section 44)
Yes, the law provides that any public
officer who has direct custody of a detained
person or under the provisions of this Act
and who by his deliberate act, misconduct, or
inexcusable negligence causes or allows the
escape of such detained person shall be
guilty of an
1.12 DOES PROSECUTION UNDER THIS
ACT BAR ANOTHER PROSECUTION
UNDER THE REVISED PENAL CODE
OR ANY SPECIAL PENAL LAWS?
Yes, the acquittal of the accused shall
be a bar to another prosecution for any
offense or felony which is necessarily
included in the offense charged. Section 49
states:
“When a person has been
prosecuted under a provision of this Act,
upon a valid complaint or information or
other formal charge sufficient in form and
substance to sustain a conviction and
after the accused had pleaded to the
charge, the acquittal of the accused or the
dismissal of the case shall be a bar to
another prosecution for any offense or
felony which is necessarily included in the
offense charged under this Act.”
1.13 IS THE ACCUSED ENTITLED TO
DAMAGES FOR UNPROVEN CHARGE
OF TERRORISM? (Section 50)
1.10 WHAT IS THE CONSEQUENCE FOR
FAILURE TO DELIVER SUSPECT TO
THE PROPER JUDICIAL AUTHORITY
WITHIN THREE DAYS? (Section 20)
Yes, R.A. 9372 provides that upon
acquittal, any person who is accused of
terrorism shall be entitled to the payment of
damages in the amount of Five hundred
thousand pesos (P500,000.00) for every day
that he or she has been detained or deprived
of liberty or arrested without a warrant as a
result of such an accusation.
Any police or law enforcement
personnel who has apprehended or arrested,
detained and taken custody of a person
The award of damages mentioned
above shall be without prejudice to the right
of the acquitted accused to file criminal or
80
administrative charges against those
responsible for charging him with the case of
terrorism.
1.14 ARE THE PROVISIONS OF BOOK I OF
THE
REVISED
PENAL
CODE
APPLICABLE TO R.A. 9372? (Section
52)
Yes, Section 52 explicitly provides
that the provisions of Book I of the Revised
Penal Code shall be applicable to this Act.
1.15
DOES
R.A.
9372
ALLOW
EXTRAORDINARY
RENDITION?
(Section 57)
No, there is a ban on extraordinary
rendition. No person suspected or convicted
of the crime of terrorism shall be subjected
to extraordinary rendition to any country
unless his or her testimony is needed for
terrorist related police investigations or
judicial trials in the said country and unless
his or her human rights, including the right
against torture, and right to counsel, are
officially assured by the requesting country
and transmitted accordingly and approved
by the Department of Justice.
1.16
CAN AN INDIVIDUAL PERSON,
ALTHOUGH PHYSICALLY OUTSIDE
THE TERRITORIAL LIMITS OF THE
PHILIPPINES BE HELD CRIMINALLY
LIABLE FOR ACTS OF TERRORISM?
Yes, the law has extra-territorial
application. Section 58 constitute as an
exception to the territoriality rule.
It
provides:
“Extra-Territorial Application of
this Act. - Subject to the provision of an
existing treaty of which the Philippines is
a signatory and to any contrary provision
of any law of preferential application, the
provisions of this Act shall apply:
(1) to individual persons who commit any
of the crimes defined and punished in this
Act within the terrestrial domain, interior
waters, maritime zone, and airspace of the
Philippines;
(2) to individual persons who, although
physically outside the territorial limits of
the Philippines, commit, conspire or plot
to commit any of the crimes defined and
punished in this Act inside the territorial
limits of the Philippines;
(3) to individual persons who, although
physically outside the territorial limits of
the Philippines, commit any of the said
crimes on board Philippine ship or
Philippine airship;
(4) to individual persons who commit any
of said crimes within any embassy,
consulate, or diplomatic premises
belonging to or occupied by the Philippine
government in an official capacity;
(5) to individual persons who, although
physically outside the territorial limits of
the Philippines, commit said crimes
against Philippine citizens or persons of
Philippines
descent,
where
their
citizenship or ethnicity was a factor in the
commission of the crime; and
(6) to individual persons who, although
physically outside the territorial limits of
the Philippines, commit said crimes
directly
against
the
Philippine
government.”
-oooOOOooo-
CHAPTER II
THE ANTI-CHILD ABUSE LAW
Republic Act No. 7610
___________________________________________________
1.00 DEFINE CHILDREN UNDER THIS ACT.
(Section 3)
"Children" refers to person below
eighteen (18) years of age or those over but
are unable to fully take care of themselves or
protect themselves from abuse, neglect,
cruelty, exploitation or discrimination
because of a physical or mental disability or
condition.
1.01 WHAT IS THE DEFINITION OF A
“CHILD”
UNDER
THE
IMPLEMENTING RULES OF THIS
LAW?
A mere allegation that the children
are unable to fully take care of themselves or
protect themselves from abuse, neglect,
81
cruelty, exploitation or discrimination
because of a physical or mental disability or
condition is not sufficient.
money or profit. The law covers not only
child prostitution but also other forms of
sexual abuse.
The implementing rules elaborated
on this definition when it defined a "child" as
one who is below 18 years of age or over
said age who, upon evaluation of a
qualified physician, psychologist or
psychiatrist, is found to be incapable of
taking care of herself fully because of a
physical or mental disability or condition or
of protecting herself from abuse. People v.
Abello, 582 SCRA 378, March 25, 2009
1.04
"Child abuse" refers to the
maltreatment, whether habitual or not,
of the child which includes any of the
following:
(1) Psychological and physical
abuse, neglect, cruelty, sexual abuse and
emotional maltreatment;
(2) Any act by deeds or words
which debases, degrades or demeans the
intrinsic worth and dignity of a child as a
human being;
(3) Unreasonable deprivation of
his basic needs for survival, such as food
and shelter; or
(4) Failure to immediately give
medical treatment to an injured child
resulting in serious impairment of his
growth and development or in his
permanent incapacity or death.
1.03 MUST SEXUAL ABUSE BE HABITUAL?
No, it is inconsequential that the
sexual abuse occurred only once. As
expressly provided in Section 3(b) of R.A.
7610, the abuse may be habitual or not. It
must be observed that Article III of R.A. 7610
is captioned as “Child Prostitution and Other
Sexual Abuse” because Congress really
intended to cover a situation where the
minor may have been coerced or intimidated
into lascivious conduct, not necessarily for
ABUSE
BE
No. As defined in the law, child abuse
includes physical abuse of the child, whether
the same is habitual or not. 588 SCRA 747,
June 5, 2009
1.05
1.02 DEFINE “CHILD ABUSE”.
Child abuse is defined under Section
3 (b) of R. A. 7610 as:
MUST PHYSICAL
HABITUAL?
WHAT DOES THE PHRASE
"CIRCUMSTANCES WHICH GRAVELY
THREATEN OR ENDANGER THE
SURVIVAL
AND
NORMAL
DEVELOPMENT
OF
CHILDREN"
INCLUDE?
Circumstances
which
gravely
threaten or endanger the survival and
normal development of children" include,
but are not limited to, the following;
(1) Being in a community where there is
armed conflict or being affected by armed
conflict-related activities;
(2) Working under conditions hazardous to
life, safety and normal which unduly
interfere with their normal development;
(3) Living in or fending for themselves in the
streets of urban or rural areas without the
care of parents or a guardian or basic
services needed for a good quality of life;
(4) Being a member of a indigenous cultural
community and/or living under conditions of
extreme poverty or in an area which is
underdeveloped and/or lacks or has
inadequate access to basic services needed
for a good quality of life;
(5) Being a victim of a man-made or natural
disaster or calamity; or
(6) Circumstances analogous to those
abovestated which endanger the life, safety
or normal development of children.
1.06
WHAT DOES “COMPREHENSIVE
PROGRAM AGAINST CHILD ABUSE,
EXPLOITATION
AND
DISCRIMINATION" REFER TO?
Comprehensive program against
child abuse, exploitation and discrimination"
82
refers to the coordinated program of services
and facilities to protected children against:
(1) Child Prostitution and
other sexual abuse;
(2) Child trafficking;
(3) Obscene publications and
indecent shows;
(4) Other acts of abuses; and
(5) Circumstances which
threaten or endanger the
survival
and
normal
development of children.
2.00 DEFINE CHILD PROSTITUTION AND
OTHER SEXUAL ABUSE.
Article III Section 5 defines Child
Prostitution and Other Sexual Abuse as:
“Children, whether male or female,
who for money, profit, or any other
consideration or due to the coercion or
influence of any adult, syndicate or
group, indulge in sexual intercourse or
lascivious conduct, are deemed to be
children exploited in prostitution and
other sexual abuse.
2.01 WHAT ACTS ARE PUNISHED
UNDER SECTION 5(A) OF
ARTICLE
III,
CHILD
PROSTITUTION AND OTHER
SEXUAL ABUSE UNDER R.A.
7610?
Section 5 (a) of Article III provides:
“The penalty of reclusion temporal
in its medium period to reclusion perpetua
shall be imposed upon the following:
(a) Those who engage in or promote,
facilitate or induce child prostitution
which include, but are not limited to, the
following:
(1) Acting as a procurer of a child
prostitute;
(2) Inducing a person to be a client
of a child prostitute by means of written or
oral advertisements or other similar
means;
(3) Taking advantage of influence
or relationship to procure a child as
prostitute;
(4) Threatening or using violence
towards a child to engage him as a
prostitute; or
(5) Giving monetary consideration
goods or other pecuniary benefit to a child
with intent to engage such child in
prostitution.”
2.02 ACTS ARE ESSENTIALLY PUNISHED
UNDER PARAGRAPH 5 (A) OF RA NO.
7610?
Said paragraph essentially punishes
acts pertaining to or connected with child
prostitution. In other words, under
paragraph (a), the child is abused primarily
for profit.
In the aforesaid case, the act of
appellant in convincing AAA, who was 12
years old at that time, to go with her and
thereafter, offer her for sex to a man in
exchange for money makes her liable under
paragraph 5(a) of R.A. No. 7610. People vs.
Dulay, 681 SCRA 638(2012)
2.03 WHAT ARE THE ELEMENTS OF
PARAGRAPH 5 (a) of RA 7610?
The elements of paragraph 5 (a) of R.A.
7610 are the following:
1. the accused engages in, promotes,
facilitates or induces child prostitution;
2. the act is done through, but not limited
to, the following means:
a. acting as a procurer of a child
prostitute;
b. inducing a person to be a client of
a child prostitute by means of written
or oral advertisements or other
similar means;
c. taking advantage of influence or
relationship to procure a child as a
prostitute;
83
d. threatening or using violence
towards a child to engage him as a
prostitute; or
e. giving monetary consideration,
goods or other pecuniary benefit to a
child with intent to engage such child
in prostitution;
3. the child is exploited or intended to be
exploited in prostitution; and
4. the child, whether male or female, is
below 18 years of age. People vs. Dulay,
681 SCRA 638(2012)
2.04 ON THE OTHER HAND, WHAT
ACTS ARE PUNISHED UNDER
SECTION 5 (B) OF R.A. 7610?
Section 5 (b) of Article III of
R.A. 7610 punishes:
“(b) Those who commit the act of sexual
intercourse of lascivious conduct with a
child exploited in prostitution or subject to
other sexual abuse; Provided, That when
the victims is under twelve (12) years of
age, the perpetrators shall be prosecuted
under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as
amended, the Revised Penal Code, for rape
or lascivious conduct, as the case may be:
Provided, That the penalty for lascivious
conduct when the victim is under twelve
(12) years of age shall be reclusion
temporal in its medium period x x x”
2.05 WHAT ARE THE ELEMENTS OF SEXUAL
ABUSE DEFINED UNDER SECTION
5(B) OF THIS LAW?
The Court in Navarrete v. People, 513
SCRA 509 (2007), held that sexual abuse
under Section 5(b) has three elements:
(1) the accused commits an act of
sexual intercourse or lascivious
conduct;
(2) the said act is performed with a
child exploited in prostitution or
subjected to other sexual abuse; and
(3) the child is below 18 years old.
2.06 THE LAW USES THE TERM A CHILD
“SUBJECT TO SEXUAL ABUSE”. WHEN
IS A CHILD DEEMED SUBJECTED TO
“OTHER SEXUAL ABUSE”?
1. A child is deemed subjected to
other sexual abuse when the child
indulges in lascivious conduct
under the coercion or influence of
any adult. R.A. 7610 covers not
only child prostitution but also
other forms of sexual abuse.
Olivarez vs. Court of Appeals, 465
SCRA 465(2005)
2. The Court has ruled that a child is
deemed subject to other sexual
abuse when the child is the victim
of lascivious conduct under the
coercion or influence of any
adult. In lascivious conduct
under the coercion or influence
of any adult, there must be some
form of compulsion equivalent to
intimidation which subdues the
free exercise of the offended
party’s free will. Jojit Garingarao
vs. People, G.R. No. 192760, July
20, 2011
3. In the case of Navarrete vs.
People, 513 SCRA 509(2007), the
Supreme Court ruled that
petitioner’s
argument
is
untenable.
The
Court
emphasized the principle In
People v. Larin (and reiterated in
several subsequent cases), that
the law covers not only a
situation in which a child is
abused for profit but also one in
which a child, through coercion
or intimidation, engages in any
lascivious conduct. It went on to
say that he very title of Section 5,
Article III (Child Prostitution and
Other Sexual Abuse) of RA 7610
shows that it applies not only to a
child subjected to prostitution
but also to a child subjected to
other sexual abuse. A child is
deemed subjected to “other
sexual abuse” when he or she
84
indulges in lascivious conduct
under the coercion or influence
of any adult. Here, BBB was
sexually abused because she was
coerced or intimidated by
petitioner (who poked her neck
with a knife) to indulge in
lascivious conduct.
4. In addition, such “other sexual
abuse” could fall under acts
encompassing
“[O]bscene
publications
and
indecent
shows” mentioned in Section
3(d)(3) of RA 7610. Thus, a child
performing in indecent shows in
a cabaret is a child subjected to
“other sexual abuse.” A customer
in such cabaret who commits acts
of lasciviousness on the child is
liable for violation of Section 5 of
RA 7610. Also, a photographer
who
commits
acts
of
lasciviousness on a child he is
shooting
for
an
obscene
publication is liable for violation
of Section 5 of RA 7610. The
penalty for such acts of
lasciviousness is more severe
than if the acts are committed
without
the
special
circumstances of the child’s
subjection to “other sexual
abuse.” [Olivarez vs. Court of
Appeals, 465 SCRA 465(2005)]
2.07 DEFINE “SEXUAL ABUSE” UNDER THE
IMPLEMENTING RULES.
Section 2(g) of the Rules and
Regulations on the Reporting and
Investigation of Child Abuse Cases,
promulgated to implement R.A. No. 7610,
defines “sexual abuse” as including “the
employment, use, persuasion, inducement,
enticement or coercion of a child to engage
in, or assist another person to engage
in, sexual intercourse or lascivious conduct or
the molestation, prostitution, or incest with
children.” People v. Court of Appeals, 562
SCRA 619, August 20, 2008
2.08 MUST SEXUAL INTERCOURSE AND
LASCIVIOUS ACT BE HABITUAL?
No, each incident of sexual
intercourse and lascivious act with a child
under the circumstances mentioned in Art.
III, §5 of R.A. No. 7160 is a separate and
distinct offense. The offense is similar to rape
or act of lasciviousness under the Revised
Penal Code in which each act of rape or
lascivious conduct should be the subject of a
separate information. Lavides vs. Court of
Appeals, 324 SCRA 321 [2001]
2.09 IN A CASE WHERE A CHILD IS
EXPLOITED IN PROSTITUTION, IS A
MERE
ALLEGATION
THAT
COMPLAINANT
HAD
GIVEN
“CONSENT”, A PROPER DEFENSE?
No. In People vs. Dulay, 681 SC,RA
638(2012), the Court held that a child
exploited in prostitution may seem to
“consent” to what is being done to her or him
and may appear not to complain.
However, it further emphasized that
a child who is “a person below eighteen years
of age or those unable to fully take care of
themselves or protect themselves from
abuse, neglect, cruelty, exploitation or
discrimination because of their age or mental
disability or condition” is incapable of giving
rational consent to any lascivious act or
sexual intercourse.
2.10
ON THE OTHER HAND, FOR
CONSENSUAL
SEXUAL
INTERCOURSE OR LASCIVIOUS
CONDUCT WITH A MINOR, WHO IS
NOT
EXPLOITED
IN
PROSTITUTION, TO FALL WITHIN
THE PURVIEW OF SECTION 5(B)
OF R.A. NO. 7610, WHAT MUST BE
PRESENT?
In People v. Court of Appeals, 562
SCRA 619, August 20, 2008, the Supreme
Court succinctly held:
“For consensual sexual intercourse or
lascivious conduct with a minor, who is
not exploited in prostitution, to thus fall
within the purview of Section 5(b) of R.A.
85
No. 7610, “persuasion, inducement,
enticement or coercion” of the child must
be present.”
In the case at bar, even if the accused
were charged under Section 5(b), instead of
Section 10(a), he would just the same have
been acquitted as there was no allegation
that an element of the offense – coercion or
influence or intimidation – attended its
commission.
2.11 CAN A PERSON BE CHARGED OF
COMMITTING AN ACT PUNISHED
UNDER SECTION 5(B) AND RAPE AT
THE SAME TIME?
Under Section 5(b), Article III of
Republic Act (RA) 7610 in relation to RA 8353,
if the victim of sexual abuse is below 12 years
of age, the offender should not be prosecuted
for sexual abuse but for statutory rape under
Article 266-A(1)(d) of the Revised Penal Code
and penalized with reclusion perpetua.
On the other hand, if the victim is 12
years or older, the offender should be charged
with either sexual abuse under Section 5(b) of
RA 7610 or rape under Article 266-A (except
paragraph 1[d]) of the Revised Penal Code.
However, the offender cannot be accused of
both crimes for the same act because his
right against double jeopardy will be
prejudiced. A person cannot be subjected
twice to criminal liability for a single criminal
act. People vs. Abay, 580 SCRA 235(2009)
2.12 CAN RAPE INSTEAD BE COMPLEXED
WITH A VIOLATION OF SECTION 5
(B) OF RA 7610?
The
answer
is
in
the
negative. Likewise, rape cannot be
complexed with a violation of Section 5(b) of
RA 7610. Under Section 48 of the Revised
Penal Code (on complex crimes), a felony
under the Revised Penal Code (such as rape)
cannot be complexed with an offense
penalized by a special law. People v. Abay 580
SCRA 235, February 24, 2009
2.13 CAN AN ACCUSED BE CONVICTED OF
ACTS OF LASCIVIOUSNESS PUNISH
UNDER THE REVISED PENAL CODE
INSTEAD OF VIOLATION OF SECTION
5 (B) OF RA 7610?
The answer is in the affirmative. The
special circumstance that the child is
“subjected to other sexual abuse” is not an
element in the crime of acts of lasciviousness
under Article 336 of the Revised Penal Code.
In Olivarez vs. Court of Appeals, 465
SCRA 465(2005), since the Information failed
to allege the second essential element of the
crime as defined in Section 5 of RA 7610,
accused Olivarez cannot be convicted for
violation of RA 7610. The Information is void
to charge Olivarez for violation of Section 5
of RA 7610. Otherwise, Olivarez’s would be
deprived of his constitutional right to be
informed of the charge against him.
However, the Information is sufficient to
charge Olivarez for violation of Article 336 of
the RPC. The special circumstance that the
child is “subjected to other sexual abuse” is
not an element in the crime of acts of
lasciviousness under Article 336 of the RPC.
Thus, the Information remains valid to
charge Olivarez with acts of lasciviousness,
not under Section 5 of RA 7610, but under
Article 336 of the RPC.
2.14 WHAT ACTS ARE PUNISHED UNDER
SECTION 5 (C) OF R.A. 7610?
Section 5 (c) of Article III of R.A.
7610 punishes:
“Those who derive profit or
advantage therefrom, whether as
manager or owner of the establishment
where the prostitution takes place, or of
the sauna, disco, bar, resort, place of
entertainment or establishment serving
as a cover or which engages in
prostitution in addition to the activity for
which the license has been issued to said
establishment.”
3.00 WHEN IS THERE AN ATTEMPT TO
COMMIT CHILD PROSTITUTION?
(Section 6)
R.A. 7610 Section 6 on Attempt To
Commit Child Prostitution provides:
child
“There is an attempt to commit
prostitution under Section 5,
86
paragraph (a) hereof when any person
who, not being a relative of a child, is
found alone with the said child inside the
room or cubicle of a house, an inn, hotel,
motel, pension house, apartelle or other
similar establishments, vessel, vehicle or
any other hidden or secluded area under
circumstances which would lead a
reasonable person to believe that the child
is about to be exploited in prostitution and
other sexual abuse.
3.02 WHAT ACTS FALL UNDER THE TERM
“ANY OTHER ACTS OF CHILD ABUSE”?
There is also an attempt to commit
child prostitution, under paragraph (b) of
Section 5 hereof when any person is
receiving services from a child in a sauna
parlor or bath, massage clinic, health club
and other similar establishments.
(b) "Child
Abuse"
refers
to maltreatment, whether habitual or not, of
the child which includes any of the
following:
A penalty lower by two (2) degrees
than that prescribed for the consummated
felony under Section 5 hereof shall be
imposed upon the principals of the
attempt to commit the crime of child
prostitution under this Act, or, in the
proper case, under the Revised Penal
Code.”
3.01
WHO IS GUILTY OF
TRAFFICKING? (Section 7)
CHILD
Any person who shall engage in
trading and dealing with children including,
but not limited to, the act of buying and
selling of a child for money, or for any other
consideration, or barter, shall suffer the
penalty of reclusion temporal to reclusion
perpetua. The penalty shall be imposed in its
maximum period when the victim is under
twelve (12) years of age.
The law provides:
“Section 10. Other Acts of Neglect, Abuse,
Cruelty or Exploitation and Other
Conditions Prejudicial to the Child's
Development. –
(a) Any person who shall commit any
other acts of child abuse, cruelty or
exploitation or to be responsible for
other conditions prejudicial to the
child's development including those
covered by Article 59 of Presidential
Decree No. 603, as amended, but not
covered by the Revised Penal Code, as
amended, shall suffer the penalty of
prision mayor in its minimum
period.”
"Acts of child abuse" under Section
10 (a) of R.A. 7610 refers to those acts listed
under Sec. 3 (b) of R.A. 7610, which reads as
follows:
Sec. 3. Definition of Terms –
(a) x x x
1) Psychological and physical abuse,
neglect, cruelty, sexual abuse and emotional
maltreatment;
2) Any act or deeds or words which
debases, degrades or demeans the intrinsic
worth and dignity of a child as a human
being;
3) Unreasonable deprivation of his
basic needs for survival, such as food and
shelter; or
4) Failure to immediately give
medical treatment to an injured child
resulting in serious impairment of his
growth and development or in his
permanent incapacity or death. PEOPLE vs.
OLAYON, G.R. No. 171863 August 20, 2008
In Araneta vs. People, G.R. No. 174205,
June 27, 2008, 556 SCRA 323(2008), the Court
said that Section 10, Article VI of R.A. 7610
enumerates the “other acts of abuse.” The
provision punishes not only those
enumerated under Article 59 of Presidential
Decree No. 603, but also four distinct acts,
i.e., (a) child abuse, (b) child cruelty, (c) child
exploitation and (d) being responsible for
conditions prejudicial to the child’s
development.
3.03 HOW IS THE WORD “OR” BETWEEN
“EXPLOITATION”
AND
“BE
RESPONSIBE
FOR
OTHER
CONDITIONS PREJUDICIAL TO THE
CHILD’S
DEVELOPMENT”
BE
CONSTRUED?
87
It is a rule in statutory construction
that the word “or” is a disjunctive term
signifying dissociation and Section 10(a) of
Republic Act No. 7610 before the phrase “be
responsible for other conditions prejudicial
to the child’s development” supposes that
there are four punishable acts therein.
First, the act of child abuse;
second, child cruelty;
third, child exploitation; and
fourth, being
conditions prejudicial
development.
responsible for
to the child’s
The fourth penalized act cannot be
interpreted, as petitioner suggests, as a
qualifying condition for the three other acts,
because an analysis of the entire context of
the questioned provision does not warrant
such construal. Araneta v. People 556 SCRA
323, June 27, 2008
3.04 MUST THE PROSECUTION NEED TO
PROVE THAT THE ACTS OF CHILD
ABUSE, CHILD CRUELTY AND CHILD
EXPLOITATION HAVE RESULTED IN
THE PREJUDICE OF THE CHILD’S
DEVELOPMENT?
No. The prosecution need not prove
that the acts of child abuse, child cruelty and
child exploitation have resulted in the
prejudice of the child because an act
prejudicial to the development of the child is
different from the former acts.
The Rules and Regulations of the
questioned statute distinctly and separately
defined child abuse, cruelty and exploitation
just to show that these three acts are
different from one another and from the act
prejudicial to the child’s development.
Contrary to petitioner’s assertion, an
accused can be prosecuted and be convicted
under Section 10(a), Article VI of Republic
Act No. 7610 if he commits any of the four
acts therein. Araneta v. People 556 SCRA 323,
June 27, 2008
3.05 IS “SEXUAL ABUSE” DEFINED UNDER
SECTION 5 OF R.A. NO. 7610 THE
SAME AS “CHILD ABUSE” UNDER
SECTION 10?
No. Sexual Abuse defined under
Section 5 of R.A. No. 7610 is a completely
distinct and separate offense from “child
abuse” as defined under Section 10 thereof.
In People v. Court of Appeals, 562
SCRA 619, August 20, 2008, the Supreme
Court declared that inasmuch as Section 10
refers to acts of child abuse prejudicial to the
child’s
development other than
child
prostitution and other sexual abuse under
Section 5, attempt to commit child
prostitution, child trafficking, attempt to
commit child trafficking, and obscene
publications and indecent shows, the Court
of Appeals did not commit grave abuse of
discretion in holding that “x x x ‘sexual abuse’
[as defined under Section 5] x x x is a
completely distinct and separate offense
from ‘child abuse’ [as defined under Section
10].”
3.06 ARE THE RULES OF OFFSETTING THE
MODIFYING
CIRCUMSTANCES
APPLICABLE IN R.A. 7610, IT BEING
A SPECIAL LAW?
Notwithstanding that R.A. 7610 is a
special law, appellant may enjoy the benefits
of the Indeterminate Sentence Law. Since the
penalty provided in R.A. 7610 is taken from
the range of penalties in the Revised Penal
Code, it is covered by the first clause of
Section 1 of the Indeterminate Sentence Law.
Anent the penalty, for violation of the
provisions of Section 5, Article III of R.A.
7610, the penalty prescribed is reclusion
temporal in its medium period to reclusion
perpetua. Therefore, in the absence of any
mitigating or aggravating circumstance, the
proper imposable penalty is reclusion
temporal in its maximum period, the
medium of the penalty prescribed by the law.
People vs. Dulay, 681 SCRA 638(2012)
ADDENDUM:
1. Elements of sexual abuse.
In People v. Espinoza, it was held that
healed lacerations do not negate rape. In fact,
88
lacerations, whether healed or fresh, are the
best physical evidence of forcible defloration.
x x x Moreover, in the present case, Dr.Orais
clarified to the court that even if the alleged
sexual assault took place in the year 2005 or
a year after AAA was examined, the old
healed lacerations could still be found.
(People vs. Sanico, G.R. No. 208469, August
13, 2014, Reyes, J.)
2. Higher penalty when victim is a child.
The slightest penetration into one’s
sexual organ distinguishes an act of
lasciviousness
from
the
crime
of
rape. People v. Bonaagua discussed this
distinction: It must be emphasized, however,
that like in the crime of rape whereby the
slightest penetration of the male organ or
even its slightest contact with the outer lip or
the labia majora of the vagina already
consummates the crime, in like manner, if the
tongue, in an act of cunnilingus, touches the
outer lip of the vagina, the act should also be
considered as already consummating the
crime of rape through sexual assault, not the
crime
of
acts
of
lasciviousness. Notwithstanding,
in
the
present case, such logical interpretation
could not be applied. It must be pointed out
that the victim testified that Ireno only
touched her private part and licked it, but did
not insert his finger in her vagina. This
testimony of the victim, however, is open to
various interpretation, since it cannot be
identified what specific part of the vagina
was defiled by Ireno. Thus, in conformity
with the principle that the guilt of an accused
must be proven beyond reasonable doubt,
the statement cannot be the basis for
convicting Ireno with the crime of rape
through sexual assault.
-oooOOOooo-
CHAPTER III. THE ANTI- TORTURE ACT
Republic Act 9745
______________________________________________________
1.00 WHAT IS REPUBLIC ACT No. 9745?
It is an act penalizing torture and
other cruel, inhuman and degrading
treatment or punishment and prescribing
penalties therefore. The act is known as the
"Anti-Torture Act of 2009".
1.01 DEFINE "TORTURE".
It refers to an act by which severe
pain or suffering, whether physical or
mental, is intentionally inflicted on a person
for such purposes as obtaining from him/her
or a third person information or a
confession; punishing him/her for an act
he/she or a third person has committed or is
suspected of having committed; or
intimidating or coercing him/her or a third
person; or for any reason based on
discrimination of any kind, when such pain
or suffering is inflicted by or at the
instigation of or with the consent or
acquiescence of a person in authority or
agent of a person in authority. It does not
include pain or Buffering arising only from,
inherent in or incidental to lawful sanctions.
(*same definition under IRR)
1.02 WHAT DOES THE TERM "OTHER
CRUEL, INHUMAN AND DEGRADING
TREATMENT OR PUNISHMENT"
MEAN?
It refers to a deliberate and
aggravated treatment or punishment not
enumerated under Section 4 (Acts of torture)
of this Act, inflicted by a person in authority
or agent of a person in authority against a
person under his/her custody, which attains
a level of severity causing suffering, gross
humiliation or debasement to the latter.
1.03 ENUMERATE THE ACTS OF TORTURE
PROVIDED UNDER SECTION 4.
For purposes of this Act, torture shall
include, but not be limited to, the following:
(a) Physical torture is a form
of treatment or punishment inflicted
by a person in authority or agent of a
person in authority upon another in
his/her custody that causes severe
pain, exhaustion, disability or
dysfunction of one or more parts of
the body, such as:
(1)
Systematic
beating,
headbanging, punching, kicking,
striking with truncheon or rifle butt
or other similar objects, and jumping
on the stomach;
(2) Food deprivation or
forcible feeding with spoiled food,
89
animal or human excreta and other
stuff or substances not normally
eaten;
(3) Electric shock;
(4)
Cigarette
burning;
burning by electrically heated rods,
hot oil, acid; by the rubbing of pepper
or other chemical substances on
mucous membranes, or acids or
spices directly on the wound(s);
(5) The submersion of the
head in water or water polluted with
excrement, urine, vomit and/or
blood until the brink of suffocation;
(6) Being tied or forced to
assume fixed and stressful bodily
position;
(7) Rape and sexual abuse,
including the insertion of foreign
objects into the sex organ or rectum,
or electrical torture of the genitals;
(8) Mutilation or amputation
of the essential parts of the body such
as the genitalia, ear, tongue, etc.;
(9) Dental torture or the
forced extraction of the teeth;
(10)
fingernails;
Pulling
out
of
(11) Harmful exposure to the
elements such as sunlight and
extreme cold;
(12) The use of plastic bag
and other materials placed over the
head to the point of asphyxiation;
(13) The use of psychoactive
drugs to change the perception,
memory. alertness or will of a
person, such as:
(i) The administration or
drugs to induce confession
and/or
reduce
mental
competency; or
(ii) The use of drugs to induce
extreme pain or certain
symptoms of a disease; and
(14) Other analogous acts of
physical torture;
1.04 EXPLAIN THE MEANING AND SCOPE
OF
"MENTAL/PSYCHOLOGICAL
TORTURE".
It refers to acts committed by a
person in authority or agent of a person in
authority which are calculated to affect or
confuse the mind and/or undermine a
person's dignity and morale, such as:
(1) Blindfolding;
(2) Threatening a person(s)
or his/her relative(s) with bodily
harm, execution or other wrongful
acts;
(3) Confinement in solitary
cells or secret detention places;
(4) Prolonged interrogation;
(5) Preparing a prisoner for a
"show trial", public display or public
humiliation of a detainee or prisoner;
(6) Causing unscheduled
transfer of a person deprived of
liberty from one place to another,
creating the belief that he/she shall
be summarily executed;
(7) Maltreating a member/s
of a person's family;
(8) Causing the torture
sessions to be witnessed by the
person's family, relatives or any third
party;
(9) Denial of sleep/rest;
(10) Shame infliction such as
stripping the person naked, parading
him/her in public places, shaving the
victim's head or putting marks on
his/her body against his/her will;
(11) Deliberately prohibiting
the victim to communicate with any
member of his/her family; and
(12) Other analogous acts of
mental/psychological torture.
1.05 UNDER SECTION 5, WHAT IS THE
MEANING OF THE TERM”OTHER
90
CRUEL, INHUMAN AND DEGRADING
TREATMENT OR PUNISHMENT”?
It refers to a deliberate and
aggravated treatment or punishment not
enumerated under Section 4 of this Act,
inflicted by a person in authority or agent of
a person in authority against another person
in custody, which attains a level of severity
sufficient to cause suffering, gross
humiliation or debasement to the latter.
The assessment of the level of
severity shall depend on all the
circumstances of the case, including the
duration of the treatment or punishment, its
physical and mental effects and, in some
cases, the sex, religion, age and state of health
of the victim.
1.06 UNDER SECTION 6, IS FREEDOM
FROM TORTURE AND OTHER
CRUEL, INHUMAN AND DEGRADING
TREATMENT OR PUNISHMENT AN
ABSOLUTE BIGHT?
Yes. Torture and other cruel,
inhuman and degrading treatment or
punishment as criminal acts shall apply to all
circumstances.
The
Implementing
regulations provide:
Rules
and
Section 8. Freedom from Torture
and Other Cruel, Inhuman and
Degrading
Treatment
or
Punishment, An Absolute Right. Torture and other cruel, inhuman and
degrading treatment or punishment
as criminal acts shall apply to all
circumstances. A state of war or a
threat of war, internal political
instability, or any other public
emergency, or a document or any
determination comprising an "order
of battle" shall not and can never be
invoked as a justification for torture
and other cruel, inhuman and
degrading treatment or punishment.
1.07
WHO
ARE
CRIMINALLY
SECTION 13?
THE
PERSONS
LIABLE
UNDER
The law adopted the classification of
persons criminally liable under the Revised
Penal Code, to wit: principals, accomplices
and accessories.
1.08 WHO ARE LIABLE AS PRINCIPALS?
1. Any person who actually participated or
induced another in the commission of
torture or other cruel, inhuman and
degrading treatment or punishment or
who cooperated in the execution of the act
of torture or other cruel, inhuman and
degrading treatment or punishment by
previous or simultaneous acts shall be
liable as principal.
2. Any superior military, police or law
enforcement officer or senior government
official who issued an order to any lower
ranking personnel to commit torture for
whatever purpose shall be held equally
liable as principals.
3. The immediate commanding officer of the
unit concerned of the AFP or the
immediate senior public official of the
PNP and other law enforcement agencies
shall be held liable as a principal to the
crime of torture or other cruel or inhuman
and degrading treatment or punishmentfor any act or omission, or negligence
committed by him/her that shall have led,
assisted, abetted or allowed, whether
directly or indirectly, the commission
thereof by his/her subordinates.
Requisites:
a. If he/she has knowledge of or, owing to
the circumstances at the time, should
have known that acts of torture or other
cruel, inhuman and degrading treatment
or punishment shall be committed, is
being committed, or has been committed
by his/her subordinates or by others
within his/her area of responsibility and,
b. despite such knowledge, did not take
preventive or corrective action either
before, during or immediately after its
commission, when he/she has the
authority to prevent or investigate
allegations of t;orture or other cruel,
inhuman and degrading treatment or
punishment
c.
failed to prevent or investigate
allegations of such act, whether
deliberately or due to negligence shall
also be liable as principals.
1.09 BAR Q. [2011] X, a police officer,
placed a hood on the head of W, a
suspected drug pusher, and
91
watched as Y and Z, police trainees,
beat up and tortured W to get his
confession. X is liable as
No. Torture should be treated as a
separate and independent crime under the
law.
A. as accomplice in violation of the AntiTorture Act.
B. a principal in violation of the Anti-Torture
Act.
C. a principal in violation of the Anti-Hazing
Law.
D. an accomplice in violation of the AntiHazing Law.
Section 15 is clear. Torture as a
crime shall not absorb or shall not be
absorbed by any other crime or felony
committed as a consequence, or as a means
in the conduct or commission thereof. In
which case, torture shall be treated as a
separate and independent criminal act
whose penalties shall be imposable without
prejudice to any other criminal liability
provided for by domestic and international
laws.
1.10 WHO ARE LIABLE AS ACCOMPLICES?
Any person who, not being included in
Section 26 hereof, cooperate in the
execution of torture or other cruel, inhuman
and degrading treatment or punishment by
previous or simultaneous acts is an
accomplice. (Sec. 27, IRR)
1.11 WHO ARE LIABLE AS ACCESSORIES?
Any public officer or employee shall
be liable as an accessory if he/she has
knowledge that torture or other cruel,
inhuman and degrading treatment or
punishment is being committed and without
having participated therein, either as
principal or accomplice, takes part
subsequent to its commission in any of the
following manner:
(a) By themselves profiting from or
assisting the offender to profit from
the effects of the act of torture or
other cruel, inhuman and degrading
treatment or punishment;
(b) By concealing the act of torture or
other cruel, inhuman and degrading
treatment or punishment and/or
destroying the effects or instruments
thereof in order to prevent its
discovery; or
(c) By harboring, concealing or
assisting m the escape of the
principal/s in the act of torture or
other cruel, inhuman and degrading
treatment or punishment: Provided,
That the accessory acts are done with
the abuse of the official's public
functions.
1.12 CAN TORTURE AS A CRIME ABSORB
OR BE ABSORBED BY ANY OTHER
CRIME?
1.13 WHAT IS THE PENALTY IF ANY OF
THE CRIMES AGAINST PERSONS OR
AGAINST PERSONAL LIBERTY AND
SECURITY
IS
ATTENDED
BY
TORTURE AND SIMILAR ACTS?
If the commission of any crime
punishable under Title Eight (Crimes Against
Persons) and/or Title Nine (Crimes Against
Personal Liberty and Security) of the Revised
Penal Code is attended by any of the acts
constituting torture and other cruel,
inhuman and degrading treatment or
punishment as defined herein, the penalty to
be imposed shall be in its maximum period.
1.14 MAY A PERSON WHO IS FOUND TO
HAVE COMMITTED THE CRIME OF
TORTURE BE BENEFITED FROM ANY
SUBSEQUENT SPECIAL AMNESTY
LAW?
No. They are excluded from the
coverage of special amnesty law.
1.15 CAN A PERSON BE EXTRADITED
EVEN IF HE IS IN DANGER OF BEING
SUBJECTED TO TORTURE ?
No. Section 17 is clear. No person
shall be expelled, returned or extradited to
another State where there are substantial
grounds to believe that such person shall
be in danger of being subjected to torture.
1.16 WHAT IS THE PRESCRIPTIVE PERIOD
OF THE CRIME OF TORTURE?
It has no prescriptive period. Under
Section 45 of the Implementing Rules and
Regulations, torture is a non-prescriptible
offense. The statute of limitation or
92
prescription period shall not apply to torture
cases.
1.17 IS THE REVISED PENAL CODE
APPLICABLE IN THIS ACT?
Yes, Section 22 clearly provides for
the applicability of the Revised Penal Code. It
states that the provisions of the Revised
Penal Code insofar as they are applicable
shall be suppletory to this Act.
It is not necessary that the demand,
request, or requirement of a sexual favor be
articulated in a categorical oral or written
statement. It may be discerned, with equal
certitude, from the acts of the offender.
2. Ma. Lourdes T. Domingo vs.
Rogelio R. Rayala
G.R. No. 155831
February 18, 2008
Doctrine:
-oooOOOooo-
CHAPTER IV
THE ANTI-SEXUAL HARASSMENT ACT
OF 1995
Republic Act No. 7877
1.00
WHO MAY COMMIT
HARASSMENT?
SEXUAL
It is committed by an employer,
employee, manager, supervisor, agent of the
employer, teacher, instructor, professor,
coach, trainor, or any other person who,
having authority, influence or moral
ascendancy over another in a work or
training
or
education
environment,
demands, requests or otherwise requires
any sexual favor from the other, regardless of
whether
the
demand,
request
or
requirement for submission is accepted by
the object of said act (Sec.3).
1.01 WHO ELSE MAY BE LIABLE?
Any person who directs or induces
another to commit any act of sexual
harassment as herein defined, or who
cooperates in the commission thereof by
another without which it would not have
been committed, shall also be held liable
under this Act (Sec.3).
JURISPRUDENTIAL DOCTRINES
1. Dioscoro F. Bacsin vs. Eduardo O.
Wahiman
G.R. No. 146053
April 30, 2008
Doctrine:
In prosecuting sexual harassment, it is
not essential that the demand,
request or requirement be made as
a
condition
for
continued
employment or for promotion to a
higher position. It is enough that the
respondent’s acts result in creating
an intimidating, hostile or offensive
environment for the employee.
-oooOOOooo-
CHAPTER V. THE ANTI-TRAFFICKING IN
PERSONS ACT OF 2003
Republic Act No. 9208
___________________________________________________
1.00 DEFINE TRAFFICKING IN PERSONS.
Trafficking in Persons refers to the
recruitment, transportation, transfer or
harboring, or receipt of persons with or
without the victim's consent or knowledge,
within or across national borders by means
of threat or use of force, or other forms of
coercion, abduction, fraud, deception, abuse
of power or of position, taking advantage of
the vulnerability of the person, or, the giving
or receiving of payments or benefits to
achieve the consent of a person having
control over another person for the purpose
of exploitation which includes at a minimum,
the exploitation or the prostitution of others
or other forms of sexual exploitation, forced
labor or services, slavery, servitude or the
removal or sale of organs.
The
recruitment,
transportation,
transfer, harboring or receipt of a child for
the purpose of exploitation shall also be
considered as "trafficking in persons" even if
it does not involve any of the means set forth
in the preceding paragraph.
93
1.01 DEFINE A CHILD UNDER THIS ACT.
A child refers to a person below
eighteen (18) years of age or one who is over
eighteen (18) but is unable to fully take care
of or protect himself/herself from abuse,
neglect,
cruelty,
exploitation,
or
discrimination because of a physical or
mental disability or condition.
1.02 WHAT IS PROSTITUTION?
Prostitution refers to any act,
transaction, scheme or design involving the
use of a person by another, for sexual
intercourse or lascivious conduct in
exchange for money, profit or any other
consideration.
1.03 WHAT IS FORCED LABOR AND
SLAVERY?
They refer to the extraction of work
or services from any person by means of
enticement, violence, intimidation or threat,
use of force or coercion, including
deprivation of freedom, abuse of authority or
moral ascendancy, debt-bondage or
deception.
1.04 DEFINE SEXUAL EXPLOITATION.
It refers to participation by a person in
prostitution or the production of
pornographic materials as a result of being
subjected to a threat, deception, coercion,
abduction, force, abuse of authority, debt
bondage, fraud or through abuse of a victim's
vulnerability.
1.05
WHAT
ACTS
CONSTITUTE
“QUALIFIED TRAFFICKING”?
The following are considered as qualified
trafficking:
(a) When the trafficked person is a
child;
(b) When the adoption is effected
through Republic Act No. 8043, otherwise
known as the "Inter-Country Adoption Act of
1995" and said adoption is for the purpose of
prostitution,
pornography,
sexual
exploitation,
forced
labor,
slavery,
involuntary servitude or debt bondage;
1.06 BAR Q. [2012] When the adoption of
a child is effected under the InterCountry Adoption Act for the
purpose of prostitution, what is the
proper charge against the offender
who is a public officer in relation to
the exploitative purpose?
a. acts that promote trafficking in persons;
b. trafficking in persons;
c. qualified trafficking in persons;
d. use of trafficked person.
(c) When the crime is committed by a
syndicate, or in large scalec.1 When is Trafficking deemed
committed by a syndicate?
If it carried out by a group of three
(3) or more persons conspiring or
confederating with one another.
c.2 When is Trafficking deemed
committed in large scale?
If it committed against three (3) or
more persons, individually or as a
group.
(d) When the offender is an
ascendant, parent, sibling, guardian or a
person who exercises authority over the
trafficked person or when the offense is
committed by a public officer or employee;
(e) When the trafficked person is
recruited to engage in prostitution with any
member of the military or law enforcement
agencies;
(f) When the offender is a member of
the military or law enforcement agencies;
and
(g) When by reason or on occasion of
the act of trafficking in persons, the offended
party dies, becomes insane, suffers
mutilation or is afflicted with Human
Immunodeficiency Virus (HIV) or the
Acquired Immune Deficiency Syndrome
(AIDS).(Sec.6).
1.07 IS THE USE OF TRAFFICKED
PERSONS PUNISHABLE?
94
Yes. Any person who buys or engages
the services of trafficked persons for
prostitution shall be penalized (Sec.11).
(P50,000,000.00) shall be guilty of the
crime of plunder and shall be punished by
reclusion perpetua to death.
1.08 WHAT IS THE PRESCRIPTIVE PERIOD
IN TRAFFICKING CASES?
Any person who participated with
the said public officer in the commission of
an offense contributing to the crime of
plunder shall likewise be punished for
such offense. In the imposition of
penalties, the degree of participation and
the attendance of mitigating and
extenuating circumstances, as provided
by the Revised Penal Code, shall be
considered by the court. The court shall
declare any and all ill-gotten wealth and
their interests and other incomes and
assets including the properties and shares
of stocks derived from the deposit or
investment thereof forfeited in favor of the
State”.
Trafficking cases under this Act shall
prescribe in ten (10) years: Provided,
however, That trafficking cases committed by
a syndicate or in a large scale shall prescribe
in twenty (20) years.(Sec.12)
1.09 BAR Q.[2012] Conspiracy to commit
felony is punishable only in cases in
which the law specifically provides
a penalty therefor. Under which of
the following instances are the
conspirators not liable?
a.
b.
c.
d.
Conspiracy to commit arson.
Conspiracy to commit terrorism.
Conspiracy to commit child
pornography.
Conspiracy to commit trafficking
in persons.
-oooOOOooo
CHAPTER VI. PLUNDER LAW
Republic Act No. 7080
I.
UNDER SECTION 1 OF THIS
ACT, DEFINE THE FOLLOWING
TERMS:
1.00 DEFINE THE CRIME OF PLUNDER.
(Section 2)
Section 12 of R.A. 7659 amended
Section 2 of R.A. 7080 to read as follows:
"Sec.2. Definition of the Crime of
Plunder - Any public officer who, by
himself or in connivance with members of
his family, relatives by affinity or
consanguinity,
business
associates,
subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth
through a combination or series of overt
criminal acts as described in Section 1 (d)
hereof in the aggregate amount or total
value of at least Fifty million pesos
1.01 STATE THE RULE OF EVIDENCE FOR
PURPOSES OF ESTABLISHING THE
CRIME OF PLUNDER.
Section 4 of R.A. 7080 provides:
“For purposes of establishing the
crime of plunder, it shall not be necessary
to prove each and every criminal act done
by the accused in furtherance of the
scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it
being sufficient to establish beyond
reasonable doubt a pattern of overt or
criminal acts indicative of the overall
unlawful
scheme
or
conspiracy.”
(underline supplied)
1.02 WHAT IS THE PRESCRIPTIBE
PERIOD OF THE CRIME OF
PLUNDER? (Section 6)
The crime punishable under this Act
shall prescribe in twenty (20) years.
However, the right of the State to recover
properties unlawfully acquired by public
officers from them or from their nominees or
transferees shall not be barred by
prescription, laches, or estoppel
1.03 BAR Q. [2011] Which of the following
crimes is an exception to the
Territoriality Rule in criminal law?
A. Violation of the Trademark Law
committed by an alien in the
Philippines.
95
B. Forgery of US bank notes
committed in the Philippines.
C. Crime committed by a Filipino in
the disputed Spratly's Island.
D. Plunder committed at his place of
assignment abroad by a Philippine
public officer
1.04 IS THE CRIME OF PLUNDER MALA IN
SE OR MALA PROHIBITA?
It is malum in se which requires
proof of criminal intent. In Estrada v.
Sandiganbayan
G.R.
No.
148560
November 19, 2001, the Supreme Court
held that it is malum in se precisely
because the constitutive crimes are mala
in se the element of mens rea must be
proven in a prosecution for plunder. It is
noteworthy
that
the
amended
information alleges that the crime of
plunder was committed “willfully,
unlawfully and criminally.” It thus alleges
guilty knowledge on the part of
petitioner.
In support of his contention that the
statute eliminates the requirement of
mens rea and that is the reason he claims
the statute is void, petitioner cites the
following remarks of Senator Tañada
made during the deliberation on S.B.
No.733
The application of mitigating and
extenuating circumstances in the
Revised Penal Code to prosecutions
under the Anti-Plunder Law indicates
quite clearly that mens rea is an element
of plunder since the degree of
responsibility of the offender is
determined by his criminal intent.
The legislative declaration in R.A.
No.7659 that plunder is a heinous offense
implies that it is a malum in se. For when
the acts punished are inherently immoral
or inherently wrong, they are mala in se
and it does not matter that such acts are
punished in a special law, especially since
in the case of plunder the predicate
crimes are mainly mala in se.
-oooOOOooo-
___________________________________________________
1.00 WHAT ACTS ARE PUNISHED UNDER
THIS ACT? (Sec. 1)
It shall be unlawful for any person,
not being authorized by all the parties to any
private communication or spoken word, to
tap any wire or cable, or by using any other
device or arrangement, to secretly overhear,
intercept, or record such communication or
spoken word by using a device commonly
known as a dictaphone or dictagraph or
dictaphone or walkie-talkie or tape recorder,
or however otherwise described:
It shall also be unlawful for any
person, be he a participant or not in the act
or acts penalized in the next preceding
sentence, to knowingly possess any tape
record, wire record, disc record, or any other
such record, or copies thereof, of any
communication or spoken word secured
either before or after the effective date of this
Act in the manner prohibited by this law; or
to replay the same for any other person or
persons; or to communicate the contents
thereof, either verbally or in writing, or to
furnish transcriptions thereof, whether
complete or partial, to any other person:
Provided, That the use of such record
or any copies thereof as evidence in any civil,
criminal investigation or trial of offenses
mentioned in section 3 hereof, shall not
1.02 WHEN IS THE COMMISSION OF SUCH
ACTS DEEMED LAWFUL? (Sec.3)
It is deemed lawful when committed
by any peace officer, who is authorized by a
written order of the Court, to execute any of
the acts declared to be unlawful in the two
preceding sections in cases involving the
crimes of treason, espionage, provoking war
and disloyalty in case of war, piracy, mutiny
in the high seas, rebellion, conspiracy and
proposal to commit rebellion, inciting to
rebellion, sedition, conspiracy to commit
sedition, inciting to sedition, kidnapping as
defined by the Revised Penal Code, and
violations of Commonwealth Act No. 616,
punishing espionage and other offenses
against national security.
1.03
CHAPTER VII. THE ANTI WIRE-TAPPING
ACT
Republic Act No. 4200
IS THE COMMUNICATION OR
INFORMATION
OBTAINED
IN
VIOLATION
OF
THIS
ACT
ADMISSIBLE IN EVIDENCE? (Sec.4)
96
No. It shall not be admissible in
evidence in any judicial, quasi-judicial,
legislative or administrative hearing or
investigation.
Provided. That possession of three
(3) or more articles of child
pornography of the same form shall
be prima facie evidence of the intent
to sell, distribute, publish or
broadcast;
-oooOOOooo-
(e) To knowingly, willfully and
intentionally provide a venue for the
commission of prohibited acts as, but
not limited to, dens, private rooms,
cubicles, cinemas, houses or in
establishments purporting to be a
legitimate business;
CHAPTER VIII. THE ANTI-CHILD
PORNOGRAPHY ACT OF 2009
Republic Act No. 9775
___________________________________________________
1.00 DEFINE "CHILD PORNOGRAPHY".
(f) For film distributors, theaters and
telecommunication companies, by
themselves or in cooperation with
other entities, to distribute any form
of child pornography;
It refers to any representation,
whether visual, audio, or written
combination
thereof,
by
electronic,
mechanical, digital, optical, magnetic or any
other means, of child engaged or involved in
real or simulated explicit sexual activities.
(g) For a parent, legal guardian or
person having custody or control of a
child to knowingly permit the child to
engage, participate or assist in any
form of child pornography;
1.01 DEFINE "INTERNET ADDRESS".
(h) To engage in the luring or
grooming of a child;
It refers to a website, bulletin board
service, internet chat room or news group, or
any other internet or shared network
protocol address.
(i) To engage in pandering of any
form of child pornography;
1.02 WHAT ARE THE UNLAWFUL OR
PROHIBITED ACTS ENUMERATED
UNDER THE LAW? (Sec.4)
The following are the unlawful or
prohibited acts:
(a) To hire, employ, use, persuade,
induce or coerce a child to perform in
the creation or production of any
form of child pornography;
(b) To produce, direct, manufacture
or create any form of child
pornography;
(c) To publish offer, transmit, sell,
distribute, broadcast, advertise,
promote, export or import any form
of child pornography;
(d) To possess any form of child
pornography with the intent to sell,
distribute, publish, or broadcast:
(j) To willfully access any form of
child pornography;
(k) To conspire to commit any of the
prohibited acts stated in this section.
Conspiracy to commit any form of
child
pornography
shall
be
committed when two (2) or more
persons come to an agreement
concerning the commission of any of
the said prohibited acts and decide to
commit it; and
(l) To possess any form of child
pornography.
1.03 BAR Q. [2011] Mr. P owns a
boarding house where he
knowingly allowed children
to be videotaped while
simulating explicit sexual
activities. What is Mr. P's
criminal liability, if any?
A. Corruption of minors under the
Penal Code
97
B. Violation of the Child Pornography
Act
C. Violation of the Child Abuse Law
D. None
REASONABLE
PRIVACY".
1.04 WHEN IS A CRIME CONSIDERED AS
“SYNDICATED
CHILD
PORNOGRAPHY”? (Sec.5)
The crime of child pornography is
deemed committed by a syndicate if carried
out by a group of three (3) or more persons
conspiring or confederating with one
another.
-oooOOOooo-
1.00 DEFINE "BROADCAST".
It means to make public, by any
means, a visual image with the intent
that it be viewed by a person or
persons.
1.01 DEFINE "CAPTURE".
With respect to an image, it means to
videotape, photograph, film, record
by any means, or broadcast.
DEFINE "PHOTO
VOYEURISM ".
OR
VIDEO
It means the act of taking photo or
video coverage of a person or group of
persons performing sexual act or any similar
activity or of capturing an image of the
private area of a person or persons without
the latter's consent, under circumstances in
which such person/s has/have a reasonable
expectation of privacy, or the act of selling,
copying, reproducing, broadcasting, sharing,
showing or exhibiting the photo or video
coverage or recordings of such sexual act or
similar activity through VCD/DVD, internet,
cellular phones and similar means or device
without the written consent of the person/s
involved, notwithstanding that consent to
record or take photo or video coverage of
same was given by such person.
1.03 DEFINE "UNDER CIRCUMSTANCES IN
WHICH
A
PERSON
HAS
A
OF
It means believe that he/she could
disrobe in privacy, without being concerned
that an image or a private area of the person
was being captured; or circumstances in
which a reasonable person would believe
that a private area of the person would not be
visible to the public, regardless of whether
that person is in a public or private place.
1.04 WHAT ARE THE PROHIBITED ACTS
ENUMERATED UNDER SECTION 4?
It is prohibited
unlawful for any person:
CHAPTER IX. THE ANTI-PHOTO AND
VIDEO VOYEURISM ACT OF 2009
Republic Act No. 9995
___________________________________________________
1.02
EXPECTATION
and
declared
(a) To take photo or video
coverage of a person or group of
persons performing sexual act or any
similar activity or to capture an
image of the private area of a
person/s such as the naked or
undergarment clad genitals, public
area, buttocks or female breast
without the consent of the person/s
involved and under circumstances in
which the person/s has/have a
reasonable expectation of privacy;
(b) To copy or reproduce, or
to cause to be copied or reproduced,
such photo or video or recording of
sexual act or any similar activity with
or without consideration;
(c) To sell or distribute, or
cause to be sold or distributed, such
photo or video or recording of sexual
act, whether it be the original copy or
reproduction thereof; or
(d) To publish or broadcast,
or cause to be published or
broadcast, whether in print or
broadcast media, or show or exhibit
the photo or video coverage or
recordings of such sexual act or any
similar activity through VCD/DVD,
internet, cellular phones and other
similar means or device.
1.05 IS CONSENT TO RECORD OR TAKE
PHOTO OR VIDEO COVERAGE
CONSTITUTES AS AN EXCEPTION TO
THE
PROHIBITION
UNDER
PARAGRAPHS (B), (C) AND (D)?
98
No. The prohibition shall apply
notwithstanding that consent to record or
take photo or video coverage of the same was
given by such person/s. Any person who
violates this provision shall be liable (Sec.4).
1.06 WHO IS EXEMPTED FROM THE
COVERAGE OF THE LAW?
internet, cellular phones and similar means or
device.
If at all, he committed acts of
lasciviousness, as obviously, the element of
lewdness is present in this case.
-oooOOOooo-
Any peace officer, who is authorized
by a written order of the court, to use the
record or any copy thereof as evidence in any
civil, criminal investigation or trial of the
crime of photo or video voyeurism.
1.07 IF ANY RECORD, PHOTO OR VIDEO,
OR COPY THEREOF IS OBTAINED IN
VIOLATION OF THIS LAW, WILL IT
BE ADMISSIBLE IN EVIDENCE?
No. It is inadmissible in any judicial,
quasi-judicial, legislative or administrative
hearing or investigation (Sec.7).
1.08 MODIFIED BAR Q. [2010] A widower
of ten years, septuagenarian Canuto
felt that he had license to engage in
voyeurism. If not peeping into his
neighbors’ rooms through his
powerful single-cylinder telescope,
he would trail young, shapely
damsels along the hallways of
shopping malls. While going up the
escalator, he stayed a step behind a
mini-skirted one, and in a moment
of excitement, put his hand on her
left hip and massaged it. The damsel
screamed and hollered for help.
Canuto was apprehended and
brought up on inquest. May he be
liable for violation of R.A. 9995?
Suggested Answer: No, the acts
committed by Canuto do not fall under the
definition of voyeurism nor under the
prohibited acts enumerated under Section 4
of the Anti- Photo and Video Voyeurism Act of
2009.
There was no taking photo or video
coverage of a person performing sexual act or
any similar activity or of capturing an image
of the private area of a person under
circumstances in which such person has a
reasonable expectation of privacy, nor there
was an act of selling, copying, reproducing,
broadcasting, sharing, showing or exhibiting
the photo or video coverage or recordings of
sexual act or similar activity through
CHAPTER X. THE ANTI-DEATH PENALTY
LAW
Republic Act No. 9346
___________________________________________________
1.00 IS THE IMPOSITION OF
DEATH
PENALTY ALLOWED UNDER THE
LAW?
No, the imposition of the penalty of
death is prohibited.
1.01 IN LIEU OF THE DEATH PENALTY,
WHAT SHOULD BE IMPOSED?
The following shall be imposed in
lieu of the death penalty(a) the penalty of reclusion perpetua,
when the law violated makes use of
the nomenclature of the penalties of
the Revised Penal Code; or
(b) the penalty of life imprisonment,
when the law violated does not make
use of the nomenclature of the
penalties of the Revised Penal
Code.(Secs. 1 and 2)
1.02
ARE PERSONS CONVICTED OF
OFFENSES
PUNISHED
WITH
RECLUSION PERPETUA, OR WHOSE
SENTENCES WILL BE REDUCED TO
RECLUSION PERPETUA ELIGIBLE
FOR
PAROLE
UNDER
THE
INDETERMINATE SENTENCE LAW?
No. Person convicted of offenses
punished with reclusion perpetua, or whose
sentences will be reduced to reclusion
perpetua, by reason of this Act, shall not be
eligible for parole under Act No. 4180,
otherwise known as the Indeterminate
Sentence Law, as amended. (Sec.3)
99
-ooo000ooo-
CHAPTER XI. JUVENILE JUSTICE AND
WELFARE ACT OF 2006
Republic Act No. 9344
___________________________________________________
1.00 WHO IS “A CHILD IN CONFLICT WITH
THE LAW?”
A “child in conflict with the law” refers
to a child who is alleged as, accused of, or
adjudged as, having committed an offense
under Philippine laws.
1.01 WHAT IS A DIVERSION PROGRAM?
BAR Q.[2009]
It refers to the program that the child
in conflict with the law is required to
undergo after he/she is found responsible
for an offense without resorting to formal
court proceedings.
1.02 WHAT IS INTERVENTION? BAR
Q.[2009]
It refers to a series of activities which
are designed to address issues that caused
the child to commit an offense. It may take
the form of an individualized treatment
program which may include counseling,
skills training, education, and other activities
that will enhance his/her psychological,
emotional and psycho-social well-being.
1.03 WHAT IS THE JUVENILE JUSTICE AND
WELFARE SYSTEM?
It refers to a system dealing with
children at risk and children in conflict with
the law, which provides child-appropriate
proceedings, including programs and
services
for
prevention,
diversion,
rehabilitation, re-integration and aftercare
to ensure their normal growth and
development.
1.04 DEFINE RESTORATIVE JUSTICE.
It refers to a principle which requires
a process of resolving conflicts with the
maximum involvement of the victim, the
offender and the community. It seeks to
obtain
reparation
for
the
victim;
reconciliation of the offender, the offended
and the community; and reassurance to the
offender that he/she can be reintegrated into
society. It also enhances public safety by
activating the offender, the victim and the
community in prevention strategies.
1.05 DEFINE VICTIMLESS CRIMES.
It refers to offenses where there is no
private offended party.
1.06 WHAT IS THE MINIMUM AGE OF
CRIMINAL
RESPONSIBILITY
UNDER R.A. 9334? (Sec.6)
BAR Q. [2012]
A child fifteen (15) years of age or
under at the time of the commission of the
offense shall be exempt from criminal
liability. However, the child shall be
subjected to an intervention program
pursuant to Section 20 of this Act.
A child above fifteen (15) years but
below eighteen (18) years of age shall
likewise be exempt from criminal liability
and be subjected to an intervention program,
unless he/she has acted with discernment, in
which case, such child shall be subjected to
the appropriate proceedings in accordance
with this Act.
The exemption from criminal liability
herein established does not include
exemption from civil liability, which shall be
enforced in accordance with existing laws.
1.07 WHAT IS THE MEANING OF THE
TERM
“ACTED
WITH
DISCERNMENT”?
Sec. 6 of Republic Act No. 9344
exempts a child above fifteen (15) years but
below eighteen (18) years of age from
criminal liability, unless the child is found to
have acted with discernment, in which case,
“the appropriate proceedings” in accordance
with the Act shall be observed.
“Discernment” is that mental
capacity of a minor to fully appreciate the
consequences of his unlawful act. Such
capacity may be known and should be
determined by taking into consideration all
the facts and circumstances afforded by the
100
records in each case. The surrounding
circumstances must demonstrate that the
minor knew what he was doing and that it
was wrong. Such circumstance includes the
gruesome nature of the crime and the
minor’s cunning and shrewdness.
In People vs. Jacinto, G.R. No. 182239,
March 16, 2011, the Supreme Court agreed
with the Court of Appeals that: “(1) choosing
an isolated and dark place to perpetrate the
crime, to prevent detection[;] and (2) boxing
the victim x x x, to weaken her defense” are
indicative of then seventeen (17) year-old
appellant’s mental capacity to fully
understand the consequences of his unlawful
action.
Discernment is again shown in the
case of Robert Remiendo vs. People, G.R. No.
184874, 09 October 2009. Since the accused is
above fifteen (15) and below eighteen (18),
the finding of discernment is necessary to
determine if he would be exempted from
criminal liability. In this case, his act of
waiting for the victim’s parents to leave the
house before defiling the latter and
threatening to kick her if she should shout
prove that petitioner can differentiate what
is right and wrong.
1.08
WHO IS ENTITLED TO THE
PRESUMPTION OF MINORITY?
The child in conflict with the law shall
enjoy the presumption of minority. He shall
enjoy all the rights of a child in conflict with
the law until he is proven to be eighteen (18)
years old or older.
1.09 BAR Q. [2011] A child in conflict
with the law shall enjoy all the
rights of a child untilA. he is found to have acted with
discernment.
B. his minority is set off by some
aggravating circumstance.
C. he is proved to be 18 years or older.
D. he forfeits such rights by gross
misconduct and immorality.
1.10 HOW IS THE AGE OF A CHILD
DETERMINED UNDER THIS ACT?
The age of a child may be determined
from the:
b) baptismal certificate or
c) any other pertinent documents.
1.11
IN THE ABSENCE OF THESE
DOCUMENTS, WHERE MAY THE
AGE BE BASED UPON?
In the absence of these documents,
age may be based on:
d) information from the child
himself, testimonies of other
persons,
e) the physical appearance of the
child and other relevant
evidence.
1.12 IN CASE OF DOUBT, HOW MUST THE
AGE BE RESOLVED?
In case of doubt as to the age of the
child, it shall be resolved in his favor.
1.13 WHAT IS THE PROCEDURE IF A
PERSON CONTESTS THE AGE OF THE
CHILD? (Sec.7)
Any person contesting the age of the
child in conflict with the law prior to the
filing of the information in any appropriate
court may file a case in a summary
proceeding for the determination of age
before the Family Court which shall decide
the case within twenty-four (24) hours from
receipt of the appropriate pleadings of all
interested parties.
If a case has been fiied against the
child in conflict with the law and is pending
in the appropriate court, the person shall file
a motion to determine the age of the child in
the same court where the case is pending.
Pending hearing on the said motion,
proceedings on the main case shall be
suspended.
In all proceedings, law enforcement
officers, prosecutors, judges and other
government officials concerned shall exert
all efforts at determining the age of the child
in conflict with the law.
1.14 HOW MUST THE PROVISONS OF THIS
LAW BE CONSTRUED?
a) child's birth certificate,
101
In case of doubt, the interpretation of
any of the provisions of this Act, including its
implementing rules and regulations (IRRs),
shall be construed liberally in favor of the
child in conflict with the law.
1.15 DEFINE THE TERM “BEST INTEREST
OF THE CHILD “
It refers to the totality of the
circumstances and conditions which are
most congenial to the survival, protection
and feelings of security of the child and most
encouraging to the child's physical,
psychological and emotional development. It
also means the least detrimental available
alternative for safeguarding the growth and
development of the child.
TREATMENT OF CHILDREN BELOW THE
AGE OF CRIMINAL RESPONSIBILITY
DIVERSION PROGRAM
2.00 WHEN IS A CONTRACT OF DIVERSION
PROPER? (Sec. 26)
If
during
the
conferencing,
mediation or conciliation, the child
voluntarily admits the commission of the act,
a diversion program shall be developed
when appropriate and desirable as
determined under Section 30. Such
admission shall not be used against the child
in any subsequent judicial, quasi-judicial or
administrative proceedings.
The diversion program shall be
effective and binding if accepted by the
parties concerned. The acceptance shall be in
writing and signed by the parties concerned
and the appropriate authorities. The local
social welfare and development officer shall
supervise the implementation of the
diversion
program.
The
diversion
proceedings shall be completed within fortyfive (45) days. The period of prescription of
the offense shall be suspended until the
completion of the diversion proceedings but
not to exceed forty-five (45) days.
The
child
shall
present
himself/herself to the competent authorities
that imposed the diversion program at least
once a month for reporting and evaluation of
the effectiveness of the program.
Failure to comply with the terms and
conditions of the contract of diversion, as
certified by the local social welfare and
development officer, shall give the offended
party the option to institute the appropriate
legal action.
The period of prescription of the
offense shall be suspended during the
effectivity of the diversion program, but not
exceeding a period of two (2) years.
PROSECUTION
3.00 CITE THE INSTANCES WHERE THE
PROSECUTOR SHALL CONDUCT A
PRELIMINARY
INVESTIGATION.
(Sec. 33)
The prosecutor shall conduct a
preliminary investigation in the following
instances:
(a) when the child in conflict with the
law does not qualify for diversion:
(b) when the child, his/her parents
or guardian does not agree to
diversion as specified in Sections 27
and 28; and
(c)
when
considering
the
assessment and recommendation of
the social worker, the prosecutor
determines that diversion is not
appropriate for the child in conflict
with the law.
Upon serving the subpoena and the
affidavit of complaint, the prosecutor shall
notify the Public Attorney's Office of such
service, as well as the personal information,
and place of detention of the child in conflict
with the law.
Upon determination of probable
cause by the prosecutor, the information
against the child shall be filed before the
Family Court within forty-five (45) days from
the start of the preliminary investigation.
COURT PROCEEDINGS
4.00 MUST MINORITY BE CONSIDERED IN
DETERMINING THE AMOUNT OF
BAIL? (Sec. 34)
Yes, for purposes of recommending
the amount of bail, the privileged mitigating
circumstance of minority shall be
considered.
102
4.01 MAY A CHILD BE RELEASED ON
RECOGNIZANCE? (Sec. 35)
at the time of the pronouncement of
his/her guilt.
Yes, the law provides that where a
child is detained, the court shall order:
(a) the release of the minor
on recognizance to his/her
parents and other suitable
person;
Upon suspension of sentence and
after
considering
the
various
circumstances of the child, the court shall
impose the appropriate disposition
measures as provided in the Supreme
Court Rule on Juveniles in Conflict with the
Law.”
(b) the release of the child in
conflict with the law on bail;
or
4.04 WHEN MAY THE CHILD IN CONFLICT
WITH THE LAW BE RETURNED TO
THE COURT? (Sec. 40)
(c) the transfer of the minor
to a youth detention
home/youth rehabilitation
center.
The law expressly provides:
The court shall not order the
detention of a child in a jail pending trial or
hearing of his/her case.
4.02 WHEN IS AUTOMATIC SUSPENSION
OF SENTENCE APPLICABLE? (Sec.38)
The court shall place the child under
suspended
sentence
instead
of
pronouncement of judgment of conviction
under the following:
“Once the child who is under
eighteen (18) years of age at the time of the
commission of the offense is found guilty of
the offense charged, the court shall
determine and ascertain any civil liability
which may have resulted from the offense
committed.
However, instead of pronouncing
the judgment of conviction, the court shall
place the child in conflict with the law
under suspended sentence, without need
of application.”
4.03 WHAT IF A CHILD REACHES THE AGE
OF EIGHTEEN YEARS (18) OF AGE
AT
THE
TIME
OF
THE
PRONOUNCEMENT OF GUILT, MUST
THE
SUSPENSION
STILL
BE
APPLIED?(Sec. 38)
Yes, the law further provides:
“That suspension of sentence shall
still be applied even if the juvenile is
already eighteen years (18) of age or more
“If the court finds that the objective
of the disposition measures imposed upon
the child in conflict with the law have not
been fulfilled, or if the child in conflict with
the law has willfully failed to comply with
the conditions of his/her disposition or
rehabilitation program, the child in
conflict with the law shall be brought
before the court for execution of
judgment.”
Query: What must the court do if
the child in conflict with the law has
reached 18 years of age while under
suspended sentence?
If said child in conflict with the law
has reached eighteen (18) years of age while
under suspended sentence, the court shall
determine whether:
a) to discharge the child in
accordance with this Act;
b) to order execution of sentence;
or
c) to extend the suspended
sentence for a certain specified
period or until the child reaches
the maximum age of twenty-one
(21) years. .
4.05 THE LAW ENTITLES SUSPENSION OF
SENTENCE OF THE JUVENILE WHO IS
ALREADY EIGHTEEN YEARS (18) OF
AGE OR MORE AT THE TIME OF THE
PRONOUNCEMENT OF HIS/HER
GUILT. MAY A PERSON, THEREFORE,
WHO IS NOW BEYOND THE AGE OF
TWENTY-ONE (21) YEARS, STILL
AVAIL OF THE PROVISIONS OF
SECTIONS 38 AND 40 OF RA 9344 AS
TO HIS SUSPENSION OF SENTENCE?
103
No. A person who is now beyond the
age of twenty-one (21) years cannot avail of
the provisions of Sections 38 and 40 of R .A.
9344 as to his suspension of sentence.
Section 38 states:
“SEC. 38. Automatic Suspension of
Sentence.—Once the child who is under
eighteen (18) years of age at the time of the
commission of the offense is found guilty of
the offense charged, the court shall determine
and ascertain any civil liability which may
have resulted from the offense committed.
However, instead of pronouncing the
judgment of conviction, the court shall place
the child in conflict with the law under
suspended sentence, without need of
application: Provided, however, That
suspension of sentence shall still be applied
even if the juvenile is already eighteen years
(18) of age or more at the time of the
pronouncement of his/her guilt.”
“SEC. 40. Return of the Child in Conflict
with the Law to Court.—If the court finds that
the objective of the disposition measures
imposed upon the child in conflict with the
law have not been fulfilled, or if the child in
conflict with the law has willfully failed to
comply with the condition of his/her
disposition or rehabilitation program, the
child in conflict with the law shall be brought
before the court for execution of judgment.
If said child in conflict with the law
has reached eighteen (18) years of age while
under suspended sentence, the court shall
determine whether to discharge the child in
accordance with this Act, to order execution
of sentence, or to extend the suspended
sentence for a certain specified period or until
the child reaches the maximum age of twentyone (21) years.”
Hence,
in
PEOPLE
vs.
ALLEN
UDTOJAN MANTALABA, G.R. No. 186227, July
20, 2011, the Highest Tribunal ruled that the
Upon suspension of sentence and
appellant, who is now beyond the age of
after considering the various circumstances
twenty-one (21) years, can no longer avail of
of the child, the court shall impose the
the provisions of Sections 38 and 40 of RA
appropriate
as
9344 as to his suspension of sentence,
provided in the Supreme Court [Rule] on
because such is already moot and academic.
Juveniles in Conflict with the Law.
It noted that this would not have happened if
disposition
measures
“Sec. 68. Children Who Have Been
Convicted and are Serving Sentence.—
Persons who have been convicted and are
serving sentence at the time of the effectivity
of this Act, and who were below the age of
eighteen (18) years at the time of the
commission of the offense for which they were
convicted and are serving sentence, shall
likewise benefit from the retroactive
application of this Act. x x x”
While Section 38 of RA 9344
provides that suspension of sentence can still
be applied even if the child in conflict with
the law is already eighteen (18) years of age
or more at the time of the pronouncement of
his/her guilt, Section 40 of the same law
the CA, when this case was under its
jurisdiction, suspended the sentence of the
appellant. The records show that the
appellant filed his notice of appeal at the age
of 19 (2005), hence, when RA 9344 became
effective in 2006, appellant was 20 years old,
and the case having been elevated to the CA,
the latter should have suspended the
sentence of the appellant because he was
already entitled to the provisions of Section
38 of the same law, which now allows the
suspension of sentence of minors regardless
of the penalty imposed as opposed to the
provisions of Article 192 of P.D. 603.
limits the said suspension of sentence until
the child reaches the maximum age of 21.
The provision states:
Nevertheless, the Supreme Court
held that the appellant shall be entitled to
104
appropriate disposition under Section 51 of
RA No. 9344, which provides for the
confinement
of
convicted
children
as
follows:
“SEC. 51. Confinement
of
Convicted
Children in Agricultural Camps and other
Training Facilities.—A child in conflict with
the law may, after conviction and upon order
of the court, be made to serve his/her
sentence, in lieu of confinement in a regular
penal institution, in an agricultural camp and
other training facilities that may be
established, maintained, supervised and
controlled by the BUCOR, in coordination with
the DSWD.”
4.06 BAR Q. [2012] A child over fifteen
(15) years of age acted with
discernment in the commission of
murder. What is the duty of the
court if he is already over eighteen
(18) years of age at the time of the
determination of his guilt for the
offense charged?
a.
b.
c.
d.
The court shall pronounce the
judgment of conviction.
The court shall place the child
under suspended sentence for a
specified period or until he
reaches twenty-one (21) years of
age.
The court shall discharge the
child for disposition measures.
The court shall place the child on
probation.
4.07 BAR Q. [2009] Suppose Joe’s motion
for intervention or diversion was
denied, and he was convicted two
(2) years later when Joe was
already 21 years old, should the
judge apply the suspension of
sentence? Explain.
Suggested Answer: A person who is
beyond the age of twenty-one (21) years
cannot avail of the provisions of Sections 38
and 40 of R .A. 9344 on his suspension of
sentence.
4.08 IS THE CHILD IN CONFLICT OF THE
LAW ENTITLED TO A CREDIT IN
SERVICE OF SENTENCE? (Sec. 41)
Yes. The child in conflict with the law
shall be credited in the services of his/her
sentence with the full time spent in actual
commitment and detention under this Act.
4.09 MAY THE CHILD IN CONFLICT OF THE
LAW BE INSTEAD PLACED ON
PROBATION AS AN ALTERNATIVE
TO IMPRISONMENT? (Sec.42)
Yes. Section 42 is explicit:
“The court may, after it shall have
convicted and sentenced a child in conflict
with the law, and upon application at any
time, place the child on probation in lieu of
service of his/her sentence taking into
account the best interest of the child. For
this purpose, Section 4 of Presidential
Decree No. 968, otherwise known as the
"Probation Law of 1976", is hereby
amended accordingly.”
5.00 MAY A MINOR BE MADE TO SERVE
HIS SENTENCE IN AGRICULTURAL
CAMPS AND OTHER TRAINING
FACILITIES? (Sec. 51)
Yes, R.A. 9344 is explicit:
“Sec. 51. Confinement of Convicted Children in
Agricultural Camps and Other Training
Facilities. - A child in conflict with the law
may, after conviction and upon order of the
court, be made to serve his/her sentence, in
lieu of confinement in a regular penal
institution, in an agricultural camp and other
training facilities that may be established,
maintained, supervised and controlled by the
BUCOR, in cooperation with the DSWD.”
5.01 ARE THE BENEFITS UNDER THIS
PROVISION APPLICABLE WHEN THE
MINOR, HAD ALREADY REACHED 21
YEARS OF AGE OR OVER AT THE
TIME OF HIS CONVICTION?
Yes. In PEOPLE vs. URBAN SALCEDO
ABDURAHMAN ISMAEL DIOLAGRA, G.R. No.
186523, June 22, 2011,the Supreme Court
reiterated , just for the guidance of the bench
and bar, that if indeed, an accused was under
eighteen (18) years of age at the time of the
105
commission of the crime, then as held in
shall likewise be exempt from
People v. Sarcial,
such offenders, even if
criminal liability and be subjected to
already over twenty-one (21) years old at the
an intervention program, unless
time of conviction, may still avail of the
he/she has acted with discernment,
benefits accorded by Section 51 of R.A. No.
in which case, such child shall be
9344.
subjected
to
the
appropriate
proceedings in accordance with this
5.02 WHAT IS THE CONCEPT OF STATUS
OFFENSES? (Sec. 57)
Any conduct not considered an
offense or not penalized if committed by an
adult shall not be considered an offense and
shall not be punished if committed by a child.
Act.
c. The age of a child may be determined
from the child’s birth certificate,
baptismal certificate or any other
WHAT CRIMINAL OFFENSES ARE
NOT APPLICABLE TO MINORS? (Sec.
58)
pertinent documents. In the absence
Persons below eighteen (18) years
of age shall be exempt from prosecution for
the following crimes:
himself/herself, testimonies of other
5.03
a) vagrancy and prostitution under
Section 202 of the Revised Penal
Code;
b) mendicancy under Presidential
Decree No. 1563; and
c) sniffing
of
rugby
under
Presidential Decree No. 1619,
such
prosecution
being
inconsistent with the United
Nations Convention on the Rights
of the Child:
of these documents, age may be
based on information from the child
persons, the physical appearance of
the
child
and
other
relevant
evidence. In case of doubt as to the
age of the child, it shall be resolved in
his/her favor
d. Reduction of the criminal liability by
virtue of RA 9344 does not extend to
the civil liability. The civil liability is
not affected by the same.
Provided, that said persons shall
undergo appropriate counseling and
treatment program.
e.
Art. 22. Retroactive effect of penal
laws. — Penal laws shall have a
6.00 SUMMARY OF SALIENT FEATURES:
retroactive effect insofar as they
a. A child fifteen (15) years of age or
favor the persons guilty of a felony,
under at the time of the commission
who is not a habitual criminal, as this
of the offense shall be exempt from
term is defined in Rule 5 of Article 62
criminal liability. However, the child
of this Code, although at the time of
shall be subjected to an intervention
the publication of such laws, a final
program pursuant to Section 20 of
sentence has been pronounced and
the Act.
the convict is serving the same.
b. A child above fifteen (15) years but
below eighteen (18) years of age
f.
If the court finds that the objective of
the disposition measures imposed
106
upon the child in conflict with the law
sentence, in lieu of confinement in a
have not been fulfilled, or if the child
regular penal institution, in an
in conflict with the law has willfully
agricultural camp and other training
failed to comply with the conditions
facilities that may be established,
of
maintained,
his/her
disposition
or
supervised
by
the
Bureau
and
rehabilitation program, the child in
controlled
conflict with the law shall be brought
Corrections
before the court for execution of
coordination with the Department of
judgment.
Social Welfare and Development
(BUCOR),
of
in
(DSWD).
g. Once the child who is under eighteen
(18) years of age at the time of the
j.
If said child in conflict with the law
commission of the offense is found
has reached eighteen (18) years of
guilty of the offense charged, the
age while under suspended sentence,
court shall determine and ascertain
the court shall determine whether to
any civil liability which may have
discharge the child in accordance
resulted from the offense committed.
with this Act, to order, execution of
However, instead of pronouncing the
sentence, or to extend the suspended
judgment of conviction, the court
sentence for a certain specified
shall place the child in conflict with
period or until the child reaches the
the law under suspended sentence,
maximum age of twenty-one (21)
without
years.
need
of
application.
Provided, however, That suspension
of sentence shall still be applied even
if the juvenile is already eighteen
(18) years of age or more at the time
of the pronouncement of his/her
guilt.
7.00 PRINCIPLES AND DOCTRINES.
1. DOCTRINE.
People vs. Salvador Atizado and
Salvador Monreal
G.R. No. 173822, October 13, 2010
h. Republic Act No. 9344 allows the
retroactive application of the law to
those who have been convicted and
are serving sentence at the time of
the effectivity of said law, and who
were below the age of 18 years at the
time of the commission of the
offense.
i.
The child in conflict with the law
shall enjoy the presumption of minority.
He/She shall enjoy all the rights of a child in
conflict with the law until he/she is proven to
be eighteen (18) years old or older. The age
of a child may be determined from the child’s
birth certificate, baptismal certificate or any
A child in conflict with the law may,
other pertinent documents.
after conviction and upon order of
1. DOCTRINE.
the court, be made to serve his/her
107
Valcesar Estioca vs. People
G.R. 173876, 27 June 2008
circulation of persons or transportation of
goods, articles, or property or both.
4.00 WHAT IS THE CRIME OF PIRACY?
The reckoning point in considering
minority is the time of the commission of the
crime. In this case Boniao is 14 years old
hence exempted from criminal liability
without prejudice to his civil liability. Art 22
of the Revised Penal Code provides that
penal laws may be given retroactive effect if
they are in favour of the acused.
-oooOOOooo-
CHAPTER XII. THE ANTI-PIRACY AND
ANTI-HIGHWAY ROBBERY LAW
Presidential Decree No. 532
___________________________________________________
1.00 DEFINE PHILIPPINE WATERS
It shall refer to all bodies of water,
such as but not limited to, seas, gulfs, bays
around, between and connecting each of the
Islands of the Philippine Archipelago,
irrespective of its depth, breadth, length or
dimension, and all other waters belonging to
the Philippines by historic or legal title,
including territorial sea, the sea-bed, the
insular shelves, and other submarine areas
over which the Philippines has sovereignty
or jurisdiction.
2.00 DEFINE VESSEL
Any vessel or watercraft used for
transport of passengers and cargo from one
place to another through Philippine Waters.
It shall include all kinds and types of vessels
or boats used in fishing.
3.00 DEFINE PHILIPPINE HIGHWAY
It shall refer to any road, street,
passage, highway and bridges or other parts
thereof, or railway or railroad within the
Philippines used by persons, or vehicles, or
locomotives or trains for the movement or
Any attack upon or seizure of any
vessel, or the taking away of the
whole or part thereof or its cargo,
equipment,
or
the
personal
belongings of its complement or
passengers, irrespective of the value
thereof, by means of violence against
or intimidation of persons or force
upon things, committed by any
person, including a passenger or
member of the complement of said
vessel, in Philippine waters, shall be
considered as piracy. The offenders
shall be considered as pirates and
punished as hereinafter provided.
4.01 CASE.
There is a piracy, not grave
coercion, where, as part of the act of
seizing their boat, the occupants of the
vessel were compelled to go elsewhere
other than their place of destination, such
compulsion was obviously part of the act
of seizing their boat. The testimony of
Eugene, one of the victims, shows that the
appellant actually seized the vessel
through force and intimidation.
People vs. Emiliano Catantan y Tayong
G.R No. 118075, September 5, 1997
Facts: On 27 June 1993, the Pilapil brothers
Eugene, 21, and Juan Jr., 18, were fishing in
the sea some 3 kilometers away from the
shores of Tabogon, Cebu. Suddenly, another
boat caught up with them. One of them, later
identified as the accused EmilianoCatantan
and Jose MacvenUrsalalis “Bimbo”, bearded
the pump boat of the Pilapils and levelled his
gun at Eugene. With his gun, Catantan struck
Eugene on the left cheekbone and ordered
him and Juan Jr. to "dapa." Then Catantan
told Ursal to follow him to the pumpboat of
the Pilapils. There they hogtied Eugene,
forced him to lie down at the bottom of the
boat, covered him with a tarpaulin up to his
neck, stepped on him and ordered Juan Jr. to
ferry them to DaanTabogon. and seized their
fishing boat, to their damage and prejudice.
Issue: Whether or not the accused is liable
for grave coercion and not piracy.
108
Ruling: Presidential Decrees No. 532 section
2 Par. (D), defines Piracy as "any attack upon
or seizure of any vessel, or the taking away of
the whole or part thereof or its cargo,
equipment, or the personal belongings of the
complement or passengers, irrespective of the
value thereof, by means of violence against or
intimidation of persons or force upon things,
committed by any person, including a
passenger or member of the complement of
said vessel, in Philippine waters, shall be
considered as piracy. The offenders shall be
considered as pirates and punished as
hereinafter provided." And a vessel is
construed in Sec. 2, par. (b), of the same
decree as "any vessel or watercraft used for
transport of passengers and cargo from one
place to another through Philippine waters. It
shall include all kinds and types of vessels or
boats used in fishing.”
The Grave Coercion as defined in Art.
286 of the Revised Penal Code is committed
by "any person who, without authority of law,
shall, by means of violence, prevent another
from doing something not prohibited by law,
or compel him to do something against his
will, whether it be right or wrong."
This case falls squarely within the
purview of piracy. While it may be true that
Eugene and Juan Jr. were compelled to go
elsewhere other than their place of
destination, such compulsion was obviously
part of the act of seizing their boat. The
testimony of Eugene, one of the victims,
shows that the appellant actually seized the
vessel through force and intimidation. The
direct testimony of Eugene is significant and
enlightening and the fact that the revolver
used by the appellant to seize the boat was
not produced in evidence cannot exculpate
him from the crime. The fact remains, and we
state it again, that Catantan and his coaccused Ursal seized through force and
intimidation the pump boat of the Pilapils
while the latter were fishing in Philippine
waters.
4.02 WHAT CIRCUMSTANCES QUALIFY
PIRACY?
The law provides a higher penalty if
the following circumstances attended the
commission of the crime,
a. In Piracy-
1; If physical injuries or other
crimes are committed as a result
or on the occasion thereof.
2. If rape, murder or
homicide is committed as a result
or on the occasion of piracy, or
when the offenders abandoned
the victims without means of
saving themselves, or when the
seizure is accomplished by firing
upon or boarding a vessel.
4.03 BAR Q. [2008] The inter-island
vessel M/V Viva Lines I, while
cruising off Batanes, was forced to
seek shelter at the harbor of
Kaoshiung, Taiwan because of a
strong typhoon. While anchored in
said harbor, Max, Baldo and Bogart
arrived in a speedboat, fired a
bazooka at the bow of the vessel,
boarded it and divested the
passengers of their money and
jewelry. A passenger of M/V Viva
Lines I, Dodong, took advantage of
the confusion to settle an old
grudge with another passenger,
and killed him. After their
apprehension, all four were
charged with qualified piracy
before a Philippine court.
a) Was the charge of qualified
piracy against the three persons
(Max, Baldo and Bogart) who
boarded the inter-island vessel
correct? Explain.
Suggested answer: Yes, Max,
Baldo and Bogart are guilty of
qualified piracy. They seized the
vessel by firing and boarding the
vessel, and divested the passengers of
their money and jewel. Moreover, on
the occasion of robbery, the death of
one passenger resulted.
b) Was Dodong correctly charged
before the Philippine court for
qualified piracy? Explain.
Suggested Answer: No,
Dodong had no intent to gain which is
an essential element of qualified
piracy. His intent is merely to settle
an old grudge with his victim. Since
the crime was not one of the
exceptions in the extra-territoriality
109
principle and it was committed
outside the Philippine territory,
Philippine courts do not have
jurisdiction to try the same.
5.00 WHAT IS THE CRIME OF HIGHWAY
ROBBERY/BRIGANDAGE?
The seizure of any person for
ransom, extortion or other unlawful
purposes, or the taking away of the property
of another by means of violence against or
intimidation of person or force upon things
of other unlawful means, committed by any
person on any Philippine Highway(Sec.2).
5.01 BAR Q. [2012] A postal van
containing mail matters, including
checks and treasury warrants, was
hijacked along a national highway
by ten (10) men, two (2) of whom
were armed. They used force,
violence and intimidation against
three (3) postal employees who
were occupants of the van, resulting
in the unlawful taking and
asportation of the entire van and its
contents.
a. If you were the public prosecutor,
would you charge the ten (10)
men who hijacked the postal van
with violation of Presidential
Decree No. 532, otherwise known
as the Anti-Piracy and Anti Highway Robbery Law of 1974?
Explain your answer.
Suggested Answer:
He is
liable under P.D. 532. There was
indiscriminate highway robbery in
Philippine
Highway.
It
was
committed in a national highway
used by persons, or vehicles, for the
movement or circulation of persons or
transportation of goods, articles, or
property or both. By means of
violence and intimidation against
three (3) postal employees who were
occupants of the van, they were able
to unlawful take the entire van and
its contents.
PD 532 does not require that
there should be at least four armed
persons forming a band of robbers.
Under this law, the number of
perpetrators is not an essential
requisite of the crime.
b. If you were the defense counsel,
what are the elements of the crime
of highway robbery that the
prosecution should prove to
sustain a conviction?
Suggested Answer: If I were
the defense counsel, I will argue that
the prosecution should first prove the
following:
a. There is taking away of the
property
of
another
committed on any Philippine
Highway.
b. Employment of violence
against or intimidation of
persons or force upon things
or other unlawful means.
c.
The act must be organized
for the purpose of committing
robbery
indiscriminately.
Acts of robbery should not be
committed
against
a
predetermined or particular
victim.
5.02 WHAT CIRCUMSTANCES QUALIFY
HIGHWAY
ROBBERY
OR
BRIGANDAGE?
In Highway Robbery/ Brigandage
1. If physical injuries or other
crimes are committed during or
on the occasion of the
commission of robbery or
brigandage.
2. If kidnapping for ransom
or extortion, or murder or
homicide, or rape is committed
as a result or on the occasion
thereof.
6.00 IS THE ACT OF AIDING PIRATES OR
HIGHWAY
ROBBERY/BRIGANDS
OR
ABETTING
PIRACY
OR
HIGHWAY ROBBERY/BRIGANDAGE
PUNISHABLE?
110
Yes. The law provides that any
person who knowingly and in any manner
aids or protects pirates or highway
robbers/brigands, such as giving them
information about the movement of police or
other peace officers of the government, or
acquires or receives property taken by such
pirates or brigands or in any manner derives
any benefit therefrom; or any person who
directly or indirectly abets the commission of
piracy or highway robbery or brigandage,
shall be considered as an accomplice of the
principal offenders and be punished in
accordance with the Rules prescribed by the
Revised Penal Code (Sec.4).
6.01 WHAT IS THE PRESUMPTION
PROVIDED UNDER SECTION 4?
It shall be presumed that any person
who does any of the acts provided in this
Section has performed knowingly, unless the
contrary is proven.
-oooOOOooo-
A higher penalty is imposed if
hijacking is committed under any of the
following circumstances:
1. Whenever he has fired upon the
pilot, member of the crew or
passenger of the aircraft;
2. Whenever he has exploded or
attempted to explode any bomb or
explosive to destroy the aircraft; or
3.
Whenever the crime
is
accompanied by murder, homicide,
serious physical injuries or rape
(Sec.2).
1.03 WHAT OTHER ACT IS PUNISHED
UNDER THIS LAW?
It shall be unlawful for any person,
natural or juridical, to ship, load or carry in
any passenger aircraft operating as a public
utility within the Philippines, any explosive,
flammable,
corrosive
or
poisonous
substance or material (Sec.3).
2. CASE
CHAPTER XIII. THE ANTI-HIJACKING LAW
Republic Act No. 6235
___________________________________________________
1.00 WHAT ARE THE ACTS PUNISHED
UNDER THE LAW?
It shall be unlawful for any person to
compel a change in the course or destination
of an aircraft of Philippine registry, or to
seize or usurp the control thereof, while it is
in flight.
It shall likewise be unlawful for any
person to compel an aircraft of foreign
registry to land in Philippine territory or to
seize or usurp the control thereof while it is
within the said territory (Sec.1).
1.01 WHEN IS AN AIRCRAFT CONSIDERED
IN FLIGHT?
An aircraft is in flight from the
moment all its external doors are closed
following embarkation until any of such
doors is opened for disembarkation.
1.02
WHAT ARE THE QUALIFYING
CIRCUMSTANCES OF HIJACKING?
People vs. Susan Canton
GR No. 148825, December 27, 2002
Doctrine: Section 9 of Republic Act No.
6235 (Anti Hijacking Law) constitutes
another exception to the proscription
against warrantless searches and
seizures. R.A. No. 6235 authorizes search
for prohibited materials or substances. To
limit the action of the airport security
personnel to simply refusing her entry into
the aircraft and sending her home (as
suggested by appellant), and thereby
depriving them of "the ability and facility
to act accordingly, including to further
search without warrant, in light of such
circumstances, would be to sanction
impotence and ineffectivity in law
enforcement, to the detriment of society."
Thus, the strip search in the ladies’ room
was justified under the circumstances.
Facts: Canton was a departing passenger
bound for Saigon, Vietnam. She passed thru a
metal detector which emitted a beeping
sound which prompted Cabunoc, a civilian
employee of the National Action Committee
on Highjacking and Terrorism (NACHT) and
the frisker on duty to check on her. Cabunoc
felt something bulging in several parts of
111
Canton and reported it to her supervisor. She
was brought to the ladies’ room where she
was asked to take off her clothes. Packages
containg shabu was found on her.
Canton was found guilty beyond reasonable
doubt of violating Section 16 of Art. III of RA
6425. She assailed the propriety of the
search and seizure without warrant on the
ground that the seized items were not in
plain view.
Issue: Whether or not the scope of the search
pursuant to airport security procedure is not
confined only to search for weapons under
the Terry Search doctrine.
Supreme Court’s Ruling: The Terry search
or the "stop and frisk" situation refers to a
case where a police officer approaches a
person who is acting suspiciously, for
purposes of investigating possibly criminal
behavior in line with the general interest of
effective crime prevention and detection. To
assure himself that the person with whom he
is dealing is not armed with a weapon that
could unexpectedly and fatally be used
against him, he could validly conduct a
carefully limited search of the outer clothing
of such person to discover weapons which
might be used to assault him.
In the present case, the search was
made pursuant to routine airport security
procedure, which is allowed under Section 9
of Republic Act No. 6235 (Anti Hijacking
Law) reading as follows:
SEC.9 Every ticket issued to a passenger by
the airline or air carrier concerned shall
contain among others the following
condition printed thereon: "Holder hereof
and his hand-carried luggage(s) are subject
to search for , and seizure of, prohibited
materials or substances. Holder refusing to be
searched shall not be allowed to board the
aircraft," which shall constitute a part of the
contract between the passenger and the air
carrier.
This constitutes another exception to
the proscription against warrantless
searches and seizures. As admitted by SUSAN
and shown in Annex "D" of her Brief, the
afore-quoted provision is stated in the
"Notice to All Passengers" located at the final
security checkpoint at the departure lounge.
From the said provision, it is clear that the
search, unlike in the Terry search, is not
limited to weapons. Passengers are also
subject to search for prohibited materials or
substances.
In this case, after the metal detector
alarmed SUSAN consented to be frisked,
which resulted in the discovery of packages
on her body. It was too late in the day for her
to refuse to be further searched because the
discovery of the packages whose contents
felt like rice granules, coupled by her
apprehensiveness and her obviously false
statement that the packages contained only
money, aroused the suspicion of the frisker
that SUSAN was hiding something illegal. It
must be repeated that R.A. No. 6235
authorizes search for prohibited materials or
substances. To limit the action of the airport
security personnel to simply refusing her
entry into the aircraft and sending her home
(as suggested by appellant), and thereby
depriving them of "the ability and facility to
act accordingly, including to further search
without warrant, in light of such
circumstances, would be to sanction
impotence and ineffectivity in law
enforcement, to the detriment of society."
Thus, the strip search in the ladies’ room was
justified under the circumstances.
-oooOOOoooCHAPTER XIV. THE ANTI-CARNAPPING
ACT
Republic Act No. 6539
___________________________________________________
1.00 DEFINE THE FOLLOWING TERMS:
"Motor vehicle" is any vehicle
propelled by any power other than muscular
power using the public highways, but
excepting road rollers, trolley cars, streetsweepers, sprinklers, lawn mowers,
bulldozers, graders, fork-lifts, amphibian
trucks, and cranes if not used on public
highways, vehicles, which run only on rails or
tracks, and tractors, trailers and traction
engines of all kinds used exclusively for
agricultural purposes.
Trailers having any number of
wheels, when propelled or intended to be
propelled by attachment to a motor vehicle,
shall be classified as separate motor vehicle
with no power rating.
112
1.01
WHAT IS THE
CARNAPPING?
CRIME
OF
It is the taking, with intent to gain, of
a motor vehicle belonging to another without
the latter's consent, or by means of violence
against or intimidation of persons, or by
using force upon things.
1.02 WHAT ARE THE ELEMENTS OF
CARNAPPING?
The elements of carnapping are as
follows:
1. That there is an actual taking of the
vehicle;
2. That the offender intends to gain
from the taking of the vehicle;
3. That the vehicle belongs to a
person other than the offender
himself;
4. That the taking is without the
consent of the owner thereof; or that
the taking was committed by means
of violence against or intimidation of
persons, or by using force upon
things. People Vs. Artemio Garcia Y
Cruz, Jr., et al. G.R. No. 138470, April
1, 2003.
1.03
WHEN IS UNLAWFULTAKING
DEEMED COMPLETE?
Unlawful taking is the taking of a
vehicle without the consent of the owner, or
by means of violence against or intimidation
of persons, or by using force upon things; it is
deemed complete from the moment the
offender gains possession of the thing, even
if he has no opportunity to dispose of the
same. People vs. Artemio Garcia Y Cruz, Jr., et
al. G.R. No. 138470, April 1, 2003.
1.04 DOES THE PERSON DIVESTED OF
THE
MOTOR
VEHICLE
NECESSARILY BE THE OWNER
THEREOF?
No. The settled rule is that, in crimes of
unlawful taking of property through
intimidation or violence, it is not necessary
that the person unlawfully divested of the
personal property be the owner thereof.
What is simply required is that the property
taken does not belong to the offender. Actual
possession of the property by the person
dispossessed suffices. People Vs. Artemio
Garcia Y Cruz, Jr., et al. G.R. No. 138470, April
1, 2003.
1.05 DOES THE ELEMENT OF TAKING
ABSORB THE LOSS OF CASH OR
OTHER PERSONALPROPERTY?
No. Although carnapping and robbery have
the same element of taking with intent to
gain, the former specifically refers to the
unlawful taking of a motor vehicle.only.
People vs. Dela Cruz, GR No. 174658,February
24, 2009.
1.06 BAR Q. [2008] While Carlos was
approaching his car, he saw it being
driven away by Paolo, a thief.
Carlos tried to stop Paolo by
shouting at him, but Paolo ignored
him. To prevent his car from being
carnapped, Carlos drew his gun,
aimed at the rear wheel of the car
and fired. The shot blew the tire
which caused the car to veer out of
control and collide with an
oncoming tricycle, killing the
tricycle driver. x x x What is the
criminal liability of Paolo, if any?
Explain.
Suggested Answer: Paolo is
guilty of carnapping. There was an
unlawful taking of a motor vehicle
with intent to gain. Secondly, the car
belonged to another person. Lastly,
the taking was without the consent of
the Carlos, the owner.
2.00 ON WHAT FACTORS MUST THE
IMPOSITION OF PENALTY IN
CARNAPPING BE DEPENDENT?
(Section 14)
a. As a rule, when the carnapping is
committed
without
violence
or
intimidation of persons, or force upon
things, irrespective of the value of motor
vehicle taken, the penalty shall be
imprisonment for not less than fourteen
years and eight months and not more than
seventeen years and four months.
b. On the other hand, when the
carnapping is committed by means of
113
violence against or intimidation of any
person, or force upon things, the penalty
shall be by imprisonment for not less than
seventeen years and four months and not
more than thirty years.
2.01 WHEN IS CARNAPPING CONSIDERED
QUALIFIED OR IN AN AGGRAVATED
FORM?
When the owner, driver or
occupant of the carnapped motor vehicle is
killed in the commission of the carnapping,
the penalty of life imprisonment to death
shall be imposed *(Sec. 14. The penalty is now
life imprisonment with the effectivity of the
anti-death penalty law).
2.02 BAR Q. [2012] What should be the
proper charge against an offender
who unlawfully took and carried
away a motor vehicle belonging to
another without the latter's consent,
killing the driver in the process?
a. The proper charge against
the offender should be
murder with the use of
motor vehicle.
b. The proper charge against
the offender should be
qualified carnapping or
carnapping in an aggravated
form. (*The driver was killed
during the commission of
carnapping. A higher penalty
is thus to be imposed).
c. The proper charge against
the offender should be
carnapping and homicide.
d. The proper charge against
the offender should be
robbery with homicide.
2.03 BAR Q.[1998] Samuel, a tricycle
driver, plied his usual route using a
Honda motorcycle with a sidecar.
One evening, Raul rode on the
sidecar, poked a knife at Samuel
and instructed him to go near the
bridge. Upon reaching the bridge,
Raul alighted from the motorcycle
and suddenly stabbed Samuel
several times until he was dead.
Raul fled from the scene taking the
motorcycle with him. What crime
or crimes did Raul commit?
SUGGESTED ANSWER:
Raul
committed the crime of carnapping
punished under by R.A. No. 6539.
Samuel, the driver of the vehicle, was
killed in the course of the commission of
the crime. Under Section 14 thereof, the
killing serves to aggravate the crime by
increasing the penalty to be imposed on
the offender.
2.04 CAN THERE BE UNLAWFUL TAKING
OF A MOTOR VEHICLE EVEN IF THE
POSSESSION THEREOF IS COVERED
BY A LEASE AGREEMENT?
Yes. In the case of People vs. Artemio
Garcia Y Cruz, Jr., et al. G.R. No. 138470, April
1, 2003, the Supreme Court held that even if
the nature of the appellant’s possession of
the motor vehicle was initially lawful
nevertheless, the unlawful killing of the
deceased for the purpose of taking the
vehicle radically transformed the character
of said possession into an unlawful one.
It ruled “It does not matter whether
the unlawful taking occurred within the
period of the lease. What is decisive here is
the purpose of appellant and his co-accused
in killing the victim. Such is the vital point on
which the crime and the nature thereof is to
be determined In this case. The duration of
the lease of the vehicle has no bearing on the
culpability of the appellant. x x x The
prosecution was able to establish that
appellant and his co-accused stabbed the
victim to death because he refused to join
them in their plan to appropriate the vehicle.
This undoubtedly satisfied the element of
unlawful taking through violence, rendering
appellant liable for the crime charged”.
3.00 DOCTRINE
People vs. Arguelles
August 17, 2010
R.A. 6539, otherwise known as An
Act
Preventing
and
Penalizing
Carnapping,
defines carnapping as the
taking, with intent to gain, of a motor
vehicle belonging to another without the
latter’s consent, or by means of violence
against or intimidation of persons, or by
using
force
upon
things." More
specifically, the elements of the crime are
as follows:
114
1 .That there is an actual taking of
the vehicle;
2. That the offender intends to gain
from the taking of the vehicle;
3. That the vehicle belongs to a
person other than the offender himself;
1. That the taking is without the
consent of the owner thereof; or
that the taking was committed
by means of violence against or
intimidation of persons, or by
using force upon things.
A careful examination of the evidence
presented would show that all the
elements of carnapping were proven in
this case. It cannot be denied that the 1993
Nissan Sentra with plate number TKR-837
was unlawfully taken from Agnes without
her consent and by means of force or
intimidation, considering that he and his
co-accused
alternately poked a gun at Agnes. After
shooting her, appellant also flee with the
subject vehicle which shows his intent to
gain. Agnes also positively identified
appellant and Gungon as the ones who
took the subject vehicle from her.
-oooOOOooo-
CHAPTER XV. THE LAW ON ARSON AS
AMENDED
Presidential Decree No. 1613
___________________________________________________
1.00 WHAT IS ARSON?
It is a crime committed by any person
who burns or sets fire to the property of
another or when a person sets fire to his
own property under circumstances
which expose to danger the life or
property of another. (Sec.1)
1.01 WHAT CONSTITUTES DESTRUCTIVE
ARSON?
It is destructive arson when the
property is burned in any of the
following:
1. Any ammunition factory and other
establishment where explosives,
inflammable
or
combustible
materials are stored.
2. Any archive, museum, whether
public or private, or any edifice
devoted to culture, education or
social services.
3. Any church or place of worship or
other building where people usually
assemble.
4. Any train, airplane or any aircraft,
vessel or watercraft, or conveyance
for transportation of persons or
property
5. Any building where evidence is
kept for use in any legislative,
judicial, administrative or other
official proceedings.
6. Any hospital, hotel, dormitory,
lodging house, housing tenement,
shopping center, public or private
market, theater or movie house or
any similar place or building.
7. Any building, whether used as a
dwelling or not, situated in a
populated or congested area (Sec.2).
1.02 ENUMERATE THE SPECIAL
AGGRAVATING CIRCUMSTANCES IN
ARSON
The following are the special
aggravating circumstances in Arson: (Sec.4)
1. If committed with intent to gain;
2. If committed for the benefit of
another;
3. If the offender is motivated by
spite or hatred towards the owner or
occupant of the property burned;
4. If committed by a syndicate.
1.03 WHEN IS ARSON COMMITTED BY A
SYNDICATE? (Sec.4)
The offense is committed by a
syndicate if it is planned or carried out by a
group of three (3) or more persons.
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1.04 WHAT IS THE CONSEQUENCE IF BY
REASON OF OR ON THE OCCASION
OF THE ARSON DEATH RESULTS?
A higher penalty shall be imposed.
1.05 WHAT CIRCUMSTANCES
CONSTITUTE PRIMA FACIE
EVIDENCE OF ARSON? (Section 6)
Any of the following circumstances
shall constitute prima facie evidence of
arson:
1. If the fire started simultaneously in
more than one part of the building or
establishment.
2. If substantial amount of flammable
substances or materials are stored
within the building note necessary in
the business of the offender nor for
household us.
3. If gasoline, kerosene, petroleum or
other flammable or combustible
substances or materials soaked
therewith or containers thereof, or
any mechanical, electrical, chemical,
or electronic contrivance designed to
start a fire, or ashes or traces of any
of the foregoing are found in the
ruins or premises of the burned
building or property.
4. If the building or property is
insured for substantially more than
its actual value at the time of the
issuance of the policy.
5. If during the lifetime of the
corresponding fire insurance policy
more than two fires have occurred in
the same or other premises owned or
under the control of the offender
and/or insured.
6. If shortly before the fire, a
substantial portion of the effects
insured and stored in a building or
property had been withdrawn from
the premises except in the ordinary
course of business.
7. If a demand for money or other
valuable consideration was made
before the fire in exchange for the
desistance of the offender or for the
safety of the person or property of
the victim.
1.06 IS THERE A CRIME OF CONSPIRACY
TO COMMIT ARSON?
Yes. Mere conspiracy to commit
arson is punishable.
2.00 SUPPOSE THE OFFENDER SET THE
HOUSE OF THE VICTIM ON FIRE BY
WAY OF REVENGE AGAINST THE
LATTER. HE WAS NOT AWARE THAT
THE VICTIM WAS INSIDE AND
CONSEQUENTLY, THE LATTER DIED
BECAUSE OF THE FIRE. WHAT CRIME
WAS COMMITTED?
The crime is mere arson. There is no
complex crime of arson with homicide. The
crime of homicide is absorbed. The
consequence, if by reason of or on the
occasion of the arson death results, is the
imposition of a higher penalty.
2.01 (a) BAR Q. [2012] With intent to
cause damage, AAA deliberately set
fire
upon
the
two-storey
residential house of his employer,
mostly made of wooden materials.
The blaze spread and gutted down
seven neighboring houses. On the
occasion of the fire, six (6) persons
sustained burn injuries which were
the direct cause of their death.
What crime was committed by
AAA?
a. AAA committed the
complex crime of arson
with multiple homicide.
b. AAA committed arson
and multiple homicide.
c. AAA committed simple
arson (*There is no
complex crime of arson
with homicide. Homicide
is absorbed in arson).
d. AAA committed arson
and multiple murder.
2.02 SUPPOSE THE OFFENDER KNEW THAT
THE VICTIM WAS INSIDE THE HOUSE
BEFORE THE HOUSE WAS SET ON
FIRE,
WHAT
CRIME
WAS
COMMITTED?
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If the offender knew that the victim
was in the house when it was set on fire, the
crime committed, instead of arson, would be
murder. The fire constitutes as a qualifying
circumstance.
2.03(a) BAR Q. [2012] With intent to kill,
GGG burned the house where F and
D were staying. F and D died as a
consequence. What is the proper
charge against GGG?
a.
b.
c.
d.
GGG should be charged
with two (2) counts of
murder.
GGG should be charged
with arson.
GGG should be charged
with complex crime of
arson
with
double
murder.
GGG should be charged
with complex crime of
double murder (*Fire was
used to commit the
killing.It serves as a
qualifying circumstance
to the crime of murder. It
is a complex crime under
Article 48 of the RPC
because the single act of
burning
the
house
constitutes
2
grave
felonies).
2.04 SUPPOSE BEFORE SETTING THE
HOUSE ON FIRE, THE OFFENDER
ENTERED IN AND KILLED THE
VICTIM, THEN HE SET IT ON FIRE TO
CONCEAL THE BODY OF THE
LATTER, WHAT CRIME WAS
COMMITTED?
If the offender killed the victim before
the house was set on fire, two crimes are
committed, murder and arson. The burning
of the house to hide the killing is a separate
crime. Arson was committed to conceal the
crime of murder.
2.05(a) BAR Q.[2011] Dagami concealed
Bugna’s body and the fact that he
killed him by setting Bugna’s house
on fire. What crime or crimes did
Dagami commit?
a. Murder, the arson being absorbed
already
b. Separate crimes of murder and arson
c. Arson, the homicide being absorbed
already
d. Arson with murder as a compound
crime
3.00 WHEN IS A CRIME INVOLVING
DESTRUCTION
AN
ACT
OF
TERRORISM?
Under R.A. No. 9372, otherwise known
as the Human Security Act of 2007, a person
who commits an act punishable under Art.
324 (Crimes Involving Destruction) and
thereby sowing and creating condition of
widespread and extraordinary fear and
panic among the populace, in order to coerce
the government to give in to an unlawful
demand shall be guilty of the crime of
terrorism and shall suffer the penalty of forty
(40) years of imprisonment without the
benefit of parole.
OTHER MATTERS TO CONSIDER
The building which is the object of arson
including the land on which it is situated
shall be confiscated and escheated to the
State, unless the owner thereof can prove
that he has no participation in nor
knowledge of such arson despite the exercise
of due diligence on his part. (Sec.8)
-oooOOOooo-
CHAPTER XVI. THE ANTI-ALIAS LAW
Republic Act No. 6085
[BAR 2006]
___________________________________________________
1.00 WHAT IS THE RULE WITH RESPECT
TO THE USE OF A PERSON’S
REGISTERED NAME?
The law provides that no persons shall use
any name different from the one with which
he was registered at birth in the office of the
local civil registry, or with which he was
baptized for the first time, or, in case of an
alien, with which he was registered in the
bureau of immigration upon entry; or such
substitute name as may have been
authorized by a competent court. (Sec.1)
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1.01 WHEN IS THE USE OF ‘ALIAS’
ALLOWED BY LAW?
The use of ‘alias’ is allowed as a
pseudonym solely for literary, cinema,
television, radio or other entertainment
purposes and in athletic events where the
use of pseudonym is a normally accepted
practice. (Sec.1)
1.02
BAR Q.[2006] When can a Filipino
citizen residing in this country
use an alias legally?
Suggested Answer: Pursuant to
Section 1of R.A. 6085, the use of ‘alias’ is
allowed as a pseudonym solely for literary,
cinema,
television,
radio
or other
entertainment purposes and in athletic events
where the use of pseudonym is a normally
accepted practice.
1.03 WHAT IS THE REQUIREMENT
WHEN ONE DESIRES TO USE AN
‘ALIAS’? (Sec.2)
Any person desiring to use an alias
shall apply for authority in proceedings like
those legally provided to obtain judicial
authority for a change of name, and no
person shall be allowed to secure such
judicial authority for more than one alias.
1.04 WHAT ARE THE CONTENTS OF A
PETITION FOR ALIAS? (Sec.2)
The petition for an alias shall set
forth the (1) person's baptismal and family
name and the name recorded in the civil
registry, if different, (2) his immigrant's name,
if an alien, and his pseudonym, if he has such
names other than his original or real name,
specifying (3) the reason or reasons for the
use of the desired alias.
1.05 DOES A PERSON USING AN ‘ALIAS’
REQUIRED TO STATE OR AFFIX HIS
REAL NAME IN ANY TRANSACTION
OR DOCUMENT? (Sec.3)
Yes. No person having been baptized
with a name different from that
with
which he was registered at birth in the local
civil registry, or in case of an alien, registered
in the bureau of immigration upon entry, or
any person who obtained judicial authority
to use an alias, or who uses a pseudonym,
shall represent himself in any public
or private transaction or shall sign or
execute any public or private
document
without stating or affixing his
real or original name and all names or aliases
or pseudonym he is or may have been
authorized to use.
-oooOOOooo-
CHAPTER XVIII
OBSTRUCTION OF JUSTICE
Presidential Decree No. 1829
[BAR 2010, 2005]
___________________________________________________
1.00
WHO MAY BE LIABLE FOR
OBSTRUCTION OF JUSTICE ?( SEC.1)
Any person who knowingly or
willfully obstructs, impedes, frustrates or
delays the apprehension of suspects and the
investigation and prosecution of criminal
cases.
1.01 WHAT DOES SECTION 1 OF P.D. 1829
PROVIDE?
Section 1 of P.D. 1829 reads:
“The acts punishable therein are as
follows:
(a) preventing witnesses from testifying
in any criminal proceeding or from
reporting the commission of any offense
or the identity of any offender/s by
means of bribery, misrepresentation,
deceit, intimidation, force or threats;
(b) altering, destroying, suppressing or
concealing any paper, record, document,
or object, with intent to impair its verity,
authenticity, legibility, availability, or
admissibility as evidence in any
investigation of or official proceedings in,
criminal cases, or to be used in the
investigation of, or official proceedings
in, criminal cases;
(c) harboring or concealing, or
facilitating the escape of, any person he
knows, or has reasonable ground to
believe or suspect, has committed any
offense under existing penal laws in
order to prevent his arrest prosecution
and conviction;
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(d) publicly using a fictitious name for the
purpose of concealing a crime, evading
prosecution or the execution of a
judgment, or concealing his true name
and other personal circumstances for the
same purpose or purposes;
(e) delaying the prosecution of criminal
cases by obstructing the service of
process or court orders or disturbing
proceedings in the fiscal's offices, in
Tanodbayan, or in the courts;
(f) making, presenting or using any
record, document, paper or object with
knowledge of its falsity and with intent to
affect the course or outcome of the
investigation of, or official proceedings
in, criminal cases;
(g) soliciting, accepting, or agreeing to
accept any benefit in consideration of
abstaining
from,
discounting,
or
impeding the prosecution of a criminal
offender;
(h) threatening directly or indirectly
another with the infliction of any wrong
upon his person, honor or property or
that of any immediate member or
members of his family in order to prevent
such person from appearing in the
investigation of, or official proceedings
in, criminal cases, or imposing a
condition, whether lawful or unlawful, in
order to prevent a person from
appearing in the investigation of or in
official proceedings in, criminal cases;
(i) giving of false or fabricated
information to mislead or prevent the
law
enforcement
agencies
from
apprehending the offender or from
protecting the life or property of the
victim; or fabricating information from
the data gathered in confidence by
investigating authorities for purposes of
background information and not for
publication
and
publishing
or
disseminating the same to mislead the
investigator or to the court.”
1.02 GIVE AND EXPLAIN THE ACTS
PUNISHABLE UNDER SECTION 1.
Specifically, the acts punishable
therein are as follows:
(a) preventing witnesses from
testifying in any criminal proceeding
or from reporting the commission of
any offense or the identity of any
offender/s by means of bribery,
misrepresentation,
deceit,
intimidation, force or threats;
(b) altering, destroying, suppressing
or concealing any paper, record,
document, or object, with intent to
impair its verity, authenticity,
legibility,
availability,
or
admissibility as evidence in any
investigation
of
or
official
proceedings in, criminal cases, or to
be used in the investigation of, or
official proceedings in, criminal
cases;
1.03 Illustrative case of 1(b).
BAR Q. [2005] During a PNP buy-bust
operation, Cao Shih was arrested for
selling 20 grams of methamphetamine
hydrochloride (shabu) to a poseurbuyer.
Cao
Shih,
through
an
intermediary, paid Patrick, the Evidence
Custodian of the PNP Forensic Chemistry
Section, the amount of ₱50,000.00 in
consideration for the destruction by
Patrick of the drug. Patrick managed to
destroy the drug. State with reasons
whether Patrick committed the following
crimes. X X X Obstruction of Justice under
PD 1829.
Suggested Answer: Patrick is liable
for obstruction of justice under Section 1 (b)
of PD 1829 because he destroyed the evidence
intended to be used in in the criminal
proceeding.
Query: Is a public office an essential
element under Sec.1(b)?
While public office is not an
essential element of the offense of
obstruction of justice under Sec. 1(b) of
P.D.1829, the circumstances surrounding the
commission of the offense alleged to have
been committed by accused official are such,
however, that the offense may not have been
committed had said accused not held the
office of mayor.
119
(a) harboring
or
concealing,
or
facilitating the escape of, any person
he knows, or has reasonable ground
to believe or suspect, has committed
any offense under existing penal laws
in order to prevent his arrest
prosecution and conviction;
1.04 Illustrative case of 1(c).
BAR Q. [2011] A private person who
assists the escape of a person who
committed robbery shall be liableA. as a principal to the crime of robbery.
B. as an accessory to the crime of robbery.
C. as a principal to the crime of obstruction
of justice.
D. as an accessory to the crime of
obstruction of justice.
(d) publicly using a fictitious name for the
purpose of concealing a crime, evading
prosecution or the execution of a judgment,
or concealing his true name and other
personal circumstances for the same
purpose or purposes;
(e) delaying the prosecution of criminal
cases by obstructing the service of process or
court orders or disturbing proceedings in the
fiscal's offices, in Tanodbayan, or in the
courts;
(f) making, presenting or using any record,
document, paper or object with knowledge of
its falsity and with intent to affect the course
or outcome of the investigation of, or official
proceedings in, criminal cases;
(g) soliciting, accepting, or agreeing to accept
any benefit in consideration of abstaining
from, discounting, or impeding the
prosecution of a criminal offender;
(h) threatening directly or indirectly another
with the infliction of any wrong upon his
person, honor or property or that of any
immediate member or members of his family
in order to prevent such person from
appearing in the investigation of, or official
proceedings in, criminal cases, or imposing a
condition, whether lawful or unlawful, in
order to prevent a person from appearing in
the investigation of or in official proceedings
in, criminal cases;
agencies from apprehending the offender or
from protecting the life or property of the
victim; or fabricating information from the
data gathered in confidence by investigating
authorities for purposes of background
information and not for publication and
publishing or disseminating the same to
mislead the investigator or to the court.
1.05 WHAT IS THE EFFECT IF THERE IS
ANOTHER LAW WHICH PUNISHES
THE ACT WITH A HIGHER
PENALTY?(SEC.1)
If any of the acts mentioned herein is
penalized by any other law with a higher
penalty, the higher penalty shall be imposed.
1.06 IF A PERSON IS NOT FOUND LIABLE
AS AN ACCESSORY, MAY HE INSTEAD
BE LIABLE UNDER PD 1829?
Yes, he may be liable. Even if a person
is found not criminally liable as an accessory
under Article 20 of the Revised Penal Code,
he may, however, be liable for acts punished
under PD 1829.
1.07 DIFFERENTIATE AN ACCESSORY
FROM A PRINCIPAL IN PD 1829.
An accessory under Article 20 of the
Revised Penal Code is exempt from criminal
liability when the principal is his a) spouse b)
ascendant c) descendant d) legitimate,
natural or adopted brother sister or relative
by affinity within the same degree. These
benefits are not available in PD 1829.
-oooOOOooo-
TRUST IN THE LORD WITH ALL YOUR
HEART, AND LEAN NOT ON YOUR OWN
UNDERSTANDING.
IN ALL YOUR WAYS ACKNOWLEDGE HIM,
AND HW SHALL MAKE YOUR PATHS
STRAIGHT.
Proverbs 3:5
(i) giving of false or fabricated information to
mislead or prevent the law enforcement
120
121