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"The fact that the amounts involved in the instant case

UPDATED exceed P22,000.00 should not be considered in the initial


SPECIAL PENAL LAWS determination of the indeterminate penalty; instead, the matter
should be so taken as analogous to modifying circumstances in the
By: imposition of the maximum term of the full indeterminate sentence.
This interpretation of the law accords with the rule that penal laws
JUDGE OSCAR B. PIMENTEL should be construed in favor of the accused. Since the penalty
Regional Trial Court, Branch 148, prescribed by law for the estafa charge against accused-appellant is
Makati City prision correccional maximum to prision mayor minimum, the penalty
next lower would then be prision correccional minimum to medium.
INDETERMINATE SENTENCE LAW Thus, the minimum term of the indeterminate sentence should be
(Act No. 4103 as amended by Act No. 4225) anywhere within six (6) months and one (1) day to four (4) years and
two (2) months . . ."

WHEN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE (People v. Saley; GR 121179, July 2, ’98)
IS NOT ENTITLED TO THE APPLICATION OF THE INDETERMINATE
SENTENCE LAW INDETERMINATE SENTENCE LAW;
APPLICABLE ALSO IN DRUG CASES:
Accused-appellant cannot avail of the benefits of the Indeterminate
Sentence Law because Indeterminate Sentence Law does not apply to The final query is whether or not the Indeterminate Sentence Law is
persons convicted of offenses punishable with reclusion perpetua. applicable to the case now before us. Apparently it does, since drug offenses
(People v. Aquino; GR 125906, Jan. 16, ’98) are not included in nor has appellant committed any act which would put him
within the exceptions to said law and the penalty to be imposed does not
APPLICATION OF INDETERMINATE involve reclusion perpetua or death, provided, of course, that the penalty as
SENTENCE LAW EXPLAINED ultimately resolved will exceed one year of imprisonment. The more
important aspect, however, is how the indeterminate sentence shall be
In the case of People vs. Gabres, the Court has had occasion to so ascertained. It is true that Section 1 of said law, after providing for
state that — indeterminate sentence for an offense under the Revised Penal Code, states
that "if the offense is punished by any other law, the court shall sentence the
"Under the Indeterminate Sentence Law, the maximum term accused to an indeterminate sentence, the maximum term of which shall not
of the penalty shall be 'that which, in view of the attending exceed the maximum fixed by said law and the minimum shall not be less
circumstances, could be properly imposed' under the Revised Penal than the minimum term prescribed by the same" We hold that this quoted
Code, and the minimum shall be within the range of the penalty next portion of the section indubitably refers to an offense under a special law
lower to that prescribed' for the offense. The penalty next lower wherein the penalty imposed was not taken from and is without reference to
should be based on the penalty prescribed by the Code for the the Revised Penal Code, as discussed in the preceding illustrations, such
offense, without first considering any modifying circumstance that it may be said that the "offense is punished" under that law. There can
attendant to the commission of the crime. The determination of the be no sensible debate that the aforequoted rule on indeterminate sentence
minimum penalty is left by law to the sound discretion of the court for offenses under special laws was necessary because of the nature of the
and it can be anywhere within the range of the penalty next lower former type of penalties under said laws which were not included or
without any reference to the periods into which it might be contemplated in the scale of penalties in Article 71 of the Code, hence there
subdivided. The modifying circumstances are considered only in the could be no minimum "within the range of the penalty next lower to that
imposition of the maximum term of the indeterminate sentence. prescribed by the Code for the offense," as is the rule for felonies therein. In
the illustrative examples of penalties in special laws hereinbefore provided,
this rule applied, and would still apply, only to the first and last examples.
Furthermore, considering the vintage of Act No. 4103 as earlier noted, this OF RECLUSION PERPETUA
holding is but an application and is justified under the rule of contemporanea
expositio. Republic Act No. 6425, as now amended by Republic Act No. In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme Court
7659, has unqualifiedly adopted the penalties under the Revised Penal Code declared that despite the amendment of Article 27 of the Revised Penal
in their technical terms, hence with their technical signification and effects. In Code, reclusion perpetua remained an indivisible penalty. Hence, the penalty
fact, for purposes of determining the maximum of said sentence, we have does not have any minimum, medium and maximum period. Hence, there is
applied the provisions of the amended Section 20 of said law to arrive at no such penalty of medium period of reclusion perpetua.
prision correccional and Article 64 of the Code to impose the same in the (People versus Tiburcio Baculi, 246 SCRA)
medium period. Such offense, although provided for in a special law, is now
in the effect punished by and under the Revised Penal Code. IMPOSITION OF WRONG PENALTY:
(People v Martin Simon) IT DOES NOT OBTAIN FINALITY

WHEN THE BENEFITS OF INDETERMINATE SENTENCE LAW IS NOT Suppose the court imposed a penalty of 25 years of reclusion
APPLICABLE; perpetua for the crime of rape and the accused did not appeal, does the
judgment become final and executory? No, such judgment is null and void
a. Offenses punished by death or life imprisonment. because it imposed a non-existent penalty. Hence, the court may
b. Those convicted of treason (Art. 114), conspiracy or nevertheless correct the penalty imposed on the accused, that is, reclusion
proposal to commit treason (Art. 115). perpetua, it is merely performing a duty inherent in the court.
c. Those convicted of misprision of treason (Art. 116), rebellion (People versus Nigel Gatward, GR No.
(Art. 134), sedition (Art. 139), or espionage (Art. 117). 119772-73, February 7, 1997)
d. Those convicted of piracy (Art. 122).
e. Habitual delinquents (Art. 62, par. 5). DIFFERENCE BETWEEN RECLUSION PERPETUA AND LIFE
f. Those who escaped from confinement or those who evaded IMPRISONMENT
sentence.
g. Those granted conditional pardon and who violated the The penalty of reclusion perpetua is different from life imprisonment.
terms of the same (Art. 159). (People v. Corral, 74 Phil. 359). The former carries with it accessory penalties, whereas life imprisonment
h. Those whose maximum period of imprisonment does not does not carry with it any accessory penalties; reclusion perpetua is that
exceed one year. provided for under the Revised Penal Code and under crimes defined by
i. Those who are already serving final judgment upon the special laws using the nomenclature under the Revised Penal Code ; life
approval of the Indeterminate Sentence Law. imprisonment is that provided for violations of the Revised Penal Code.
j. those offenses or crimes not punishable by imprisonment Reclusion Perpetua may be reduced by one or two degrees while life
such as distierro and suspension. imprisonment cannot be so reduced.
(People -vs- Rolnando Madriaga,
GR No. 82293, July 23, 1992.)
RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE
INDETERMINATE SENTENCE WHICH IS MORE BURDENSOME LIFE IMPRISONMENT OF RECLUSION
PERPETUA
Recidivists are entitled to an indeterminate sentence. (People v.
Jaramilla, L-28547, Feb. 22, 1974). Offender is not disqualified to avail of the Reclusion perpetua has accessory penalties while life imprisonment
benefits of the law even if the crime is committed while he is on parole. does not. However, life imprisonment does not have a fixed duration or
(People v. Clareon, CA 78 O.G. 6701, Nov. 19, 1982). extent while reclusion perpetua has a duration of from twenty years and one
(Bacar v. De Guzman) day to forty years. life imprisonment may span the natural life of the convict.
(People -versus- Rallagan,
247 SCRA 537)
NATURE OF PENALTY

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RECLUSION PERPETUA AND LIFE IMPRISONMENT CANNOT BE his preventive imprisonment because Article 29 of the Revised Penal Code
INTER-CHANGED WHEN IMPOSED AS PENALTY does not distinguish between divisible and indivisible penalties.
(People -vs- Rolando Corpuz,
Where the law violated provides for the penalty of reclusion 231 SCRA 480)
perpetua, impose the said penalty and not the penalty of life imprisonment.
Where the law imposes the penalty of life imprisonment, do not impose
reclusion perpetua. QUALIFIED THEFT

(People -vs- Rolando Madriaga, 211 SCRA 698)


QUALIFIED THEFT IS PENALIZED BY RECLUSION PERPETUA IF
THE REASON WHY RECLUSION PERPETUA HAS A RANGE DESPITE AMOUNT INVOLVED IS OVER P22,000.00
THE SAME BEING INDIVISIBLE
Under Article 309 of the Revised Penal Code, the maximum of the
There we also said that "if reclusion perpetua was reclassified as a penalty for qualified theft is prision mayor to reclusion temporal. However,
divisible penalty, then Article 63 of the Revised Penal Code would lose its under Article 310 of the Revised Penal Code, the penalty for the crime shall
reason and basis for existence." The imputed duration of thirty (30) years of be two (2) degrees higher than the specified in Article 309 of the Code.
reclusion perpetua, therefore, only serves as the basis for determining the Under Article 74 of the Revised Penal Code, the penalty higher by one
convict's eligibility for pardon or for the application of the three-fold rule in the degree than another given penalty, and if such higher penalty is death, the
service of multiple penalties. penalty shall be reclusion perpetua of forty (40) years with the accessory
(People -vs- Aspolinar Raganas, et al penalties of death under Article 40 of the Revised Penal Code. The accused
GR No. 101188, October 12, 1999) shall not be entitled to pardon before the lapse of forty (40) years.

(People -vs- Fernando Canales, 297 SCRA 667)

RARE CASE OF APPLICATION OF RPC IN A SUPPLETORY THE PROBATION LAW (P.D. 968)
CHARACTER DESPITE THE PENALTY BEING LIFE IMPRISONMENT and its AMENDMENTS

Where the accused committed qualified violation of PD 704 (fishing


with the use of explosives), the imposable penalty for which is life
imprisonment to death. If the accused is entitled to a mitigating circumstance PROBATION, ITS MEANING:
of voluntary surrender, the court should impose life imprisonment applying, in
a suppletory character, Articles 13 and 63 of the Revised Penal Code. A disposition under which a defendant, after conviction and sentence, is
subject to conditions imposed by the Court and under the supervision of a
(People -vs- Priscilla Balasa, GR No. probation officer.
106357, September 3, 1998)

ACCUSED WHO IS SENTENCED TO RECLUSION PERPETUA IS STILL PURPOSES OF PROBATION:


ENTITLED TO EITHER FULL OR ¾ OF HIS PREVENTIVE
IMPRISONMENT a. to promote the correction and rehabilitation of an offender by providing
him with personalized community based treatment;
If, during the trial, the accused was detained but, after trial, he was b. to provide an opportunity for his reformation and reintegration into the
meted the penalty of reclusion perpetua, he is still entitled to the full credit of community;

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c. to prevent the commission of offenses.

SUBMISSION OF PETITION AND WHAT IS A POST SENTENCE


TIME OF FILING OFPETITION INVESTIGATION REPORT?

The petition or application for probation must be filed directly with the It is a report of the Parole and Probation Officer after conducting post
Court which sentenced the accused within 15 days from date of promulgation sentence investigation and interviews containing the circumstances
of the decision convicting the accused, or in short within the period to appeal surrounding the offense for which the petitioner was convicted. The findings
otherwise the judgment shall become final and the accused shall be deemed should be drawn from the court records, police records, statement of
to have waived his right to probation. defendants, the aggrieved party and other persons who may know the
petitioner and all other matters material to the petition.
EFFECT OF FILING OF PETITION FOR PROBATION
It will also include the psychological and social information regarding
Upon filing of petition for probation, the court shall suspend the the probationer; evaluation of the petitioner; suitability for probation; his
execution of sentence. potential for rehabilitation; and may include the program for supervision and
suggested terms of conditions of probation and a recommendation either to
Likewise, the filing of a petition for probation shall be deemed a deny or grant the probation.
waiver of the right to appeal and in case an appeal is made immediately after
conviction, a filing of petition for probation still within the period to appeal, WHAT ARE THE MANDATORY
that is within fifteen days from date of promulgation shall be deemed a CONDITIONS OF PROBATION?
withdrawal of the appeal.
a. To present himself to the probation officer concerned for supervision
PENDING RESOLUTION OF PETITION, within 72 hours from receipt of said order and
WHAT ARE THE PRIVILEDGE THAT MAYBE GIVEN TO THE ACCUSED-
PETITIONER? b. to report to the probation officer at least once a month during the period
of probation.
1. if the accused, prior to the promulgation of decision of conviction is out
on bail, he may be allowed on temporary liberty under his bail filed in said WHAT ARE THE OTHER
case; CONDITIONS OF PROBATION?
2. if he is under detention, upon motion, he may be allowed temporary
liberty, if he cannot post a bond, on a recognizance of a responsible member cooperate with a program of supervision;
of a community who shall guarantee his appearance whenever required by meet his family responsibilities;
the court. devote himself to a specific employment and not to charge said employment
without prior written approval of the probation officer;
IN CASE THE APPLICANT FOR PROBATION CANNOT BE PRODUCED comply with a program of payment of civil liability to the victim of his heirs;
BY THE CUSTODIAN ON RECOGNIZANCE, WHAT HAPPENS? undergo medical, psychological or psychiatric examination and treatment
and/or enter and remain in a specific institution, when required for that
The custodian must be asked to explain why he should not be cited purposes;
for contempt for failing to produce the probationer when required by the pursue a prescribed secular study or vocational training;
court; Summary hearing will be held for indirect contempt, and if custodian attend or reside in a facility established for instruction or recreation of
cannot produce the petitioner, nor to explain his failure to produce the persons on probation;
petitioner, the custodian on recognizance shall be held in contempt of court. refrain from visiting houses of ill-repute;
abstain from drinking intoxicating beverages to excess;

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permit the probation officer or an authorized social worker to visit his home
and place of work; Any government office may ask for the records of probation from the
reside at premises approved by the court and not to change his residence court for its official use or from the administrator.
w/o prior written approval; and
satisfy any other condition related to the rehabilitation of the probationer and Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE OF
not unduly restrictive of his liberty or incompatible with his freedom of PROBATION RECORDS. The penalty of imprisonment ranging from six
conscience. months and one day to six years and a fine ranging from hundred to six
m. plant trees ( see circular of the SC ) thousand pesos shall be imposed upon any person who violates Section 17
hereof.

RULES ON OUTSIDE TRAVEL MODIFICATION OF CONDITION


OF PROBATIONER OR PERIOD OF PROBATION

A probationer who desires to travel outside the jurisdiction of the city The court, on motion, or motu propio may modify the conditions of
or provincial probation officer for not more than 30 days, the permission of probation or modify the period of probation as circumstances may warrant.
the parole and probation officer must be sought. If for more than thirty (30)
days, aside from the permission of the parole and probation officer, the
permission of the court must likewise be sought. WHO ARE DISQUALIFIED
TO UNDERGO PROBATION
EFFECT OF APPEAL BY THE
ACCUSED OF HIS CONVICTION Those sentenced to serve a maximum term of imprisonment of more than six
years.
If the accused appeals his conviction for the purpose of totally reversing his Those convicted of any offense against the security of the state;
conviction, he is deemed to have waived his right to probation. Those who have been previously convicted by final judgment of an offense
punished by imprisonment of not less than one moth and one day and/or a
The rule that if the accused appeals his conviction only with respect to the fine of not less than P200.00;
penalty, as he believes the penalty is excessive or wrong, as the penalty is Those who have been once on probation under the provisions of this decree.
probationable, and the appellate court sustains the accused may still apply Those convicted of RA 9156.
for probation, has already been abandoned. An appeal therefore, Those convicted of violation of election laws.
irrespective of its purpose, to overturn the entire decision or only with respect
to penalty is a waiver to probation, has already been abandoned. An appeal PERIOD OF PROBATION
therefore, irrespective of its purpose, to overturn the entire decision or only
with respect to penalty is a waiver to probation. If the probationer has been sentenced to an imprisonment of not more than
one year, the probation shall not exceed two years;
In all other cases, not to exceed six years;
CONFIDENTIALITY OF RECORDS In case the penalty is fine, the probation shall not be less than the period of
OF PROBATION subsidiary imprisonment nor more than twice of the subsidiary imprisonment.

The investigation report and the supervision and history of a AMENDMENT TO SECTION 4 OF PD 968:
probationer obtained under PD No. 968 and under these rules shall be
privileged and shall not be disclosed directly or indirectly to anyone other "Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial
than the probation administration or the court concerned the court which court may, after it shall have convicted and sentenced a defendant, and upon
granted the probation or where the probation was transferred may allow the application by said defendant within the period for perfecting an appeal,
probationer to inspect the aforesaid documents or his lawyer, whenever such suspend the execution of the sentence and place the defendant on probation
disclosure may be desirable or helpful to them. for such period and upon such terms and conditions as it may deem best;

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Provided, That no application for probation shall be entertained or granted if MAIN CRITERION FOR DETERMINING
the defendant has perfected the appeal from the judgment of conviction. WHO MAY BE GRANTED PROBATION.

"Probation may be granted whether the sentence imposes a term of The main criterion laid down by the Probation law in determining who may be
imprisonment or a fine only. An application for probation shall be filed with granted probation is based on the penalty imposed and not on the nature of
the trial court. The filing of the application shall be deemed a waiver of the the crime. By the relative lightness of the offense, as measured by the
right to appeal. penalty imposed, more than by its nature, as the law so ordains the offender
is not such a serious menace to society as to be wrested away therefrom, as
"An order granting or denying probation shall not be appealable." the more dangerous type of criminals should be. Hence, in the case at bar,
the first reason given by the respondent judge for his denial of the petition for
Thus, a person who was sentenced to destierro cannot apply for probation that, "probation will depreciate the seriousness of the offense
probation. Reason: it does not involved imprisonment or fine. committed" would thus be writing into the law a new ground for disqualifying
(PD 1990) a first-offender from the benefits of probation. (Santos v. Cruz-Pano,
1/17/83)

JURISPRUDENCE
TIMELINESS OF FILING APPLICATION FOR PROBATION

UNDERLYING PHILOSOPHY OF PROBATION The accused must file a Petition for Probation within the period for appeal. If
the decision of conviction has become final and executory, the accused is
The underlying philosophy of probation is indeed one of liberality towards the barred from filing a Petition for Probation (Pablo Francisco v. C.A., 4/6/95).
accused. It is not served by a harsh and stringent interpretation of the
statutory provisions. Probation is a major step taken by our Government
towards the deterrence and minimizing of crime and the humanization of ORDER DENYING PROBATION NOT APPEALABLE,
criminal justice. In line with the public policy behind probation, the right of REMEDY CERTIORARI
appeal should not be irrevocably lost from the moment a convicted accused
files an application for probation. Appeal and probation spring from the same Although an order denying probation is not appealable, the accused may file
policy considerations of justice, humanity, and compassion. (Yusi v Morales, a motion for Certiorari from said order (Heirs of Francisco Abueg v. C.A., 219
4/28/83) SCRA 78)

PROBATION IS NOT A RIGHT EFFECT OF FILING PETITION FOR PROBATION, WAIVER OF RIGHT TO
BUT A PRIVILEGE APPEAL AND FINALITY OF JUDGEMENT

Probation is a mere privilege and its grant rests solely upon the discretion of A judgment of conviction becomes final when the accused files a petition for
the court. As aptly noted in U.S. vs. Durken, this discretion is to be probation. However, the judgement is not executory until the petition for probation is
exercised primarily for the benefit of organized society and only incidentally resolved. The filing of the petition for probation is a waiver by the accused of his right
for the benefit of the accused. (Tolentino v. Alconcel, G.R. No. 63400, to appeal the judgement of conviction (Heirs of Francisco Abueg v. C.A., supra).
3/18/83). Even if a convicted person is not included in the list of offenders
disqualified from the benefits of a decree, the grant of probation is
nevertheless not automatic or ministerial, (Pablo Bernardo v. Balagot, 215
SCRA 526) therefore a petition for probation may be denied by the Court. MULTIPLE CONVICTIONS IN SEVERAL CASES
PROBATIONABLE IF PENALTY FOR EACH
CONVICTION IS PROBATIONABLE

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." Evidently, the law does not intend to sum up the penalties imposed There is no doubt that drug-pushing is a crime which involves moral
but to take each penalty, separately and distinctly with the others. turpitude and implies "every thing which is done contrary to justice, honesty,
Consequently, even if petitioner was supposed to have served his prison modesty or good morals" including "acts of baseness, vileness, or depravity
term of one (1) year and one (1) day to one (1) year and eight (8) months of in the private and social duties which a man owes to his fellowmen or to
prision correccional sixteen (16) times as he was sentenced to serve the society in general, contrary to the accepted rule of right and duty between
prison term for "each crime committed on each date of each case, as alleged man and man." Indeed nothing is more depraved than for anyone to be a
in the information(s)," and in each of the four (4) informations, he was merchant of death by selling prohibited drugs, an act which, as this Court
charged with having defamed the four (4) private complainants on four (4) said in one case, "often breeds other crimes. It is not what we might call a
different, separate days, he was still eligible for probation, as each prison 'contained' crime whose consequences are limited to that crime alone, like
term imposed on petitioner was probationable. (Francisco v. CA; 4/16/95) swindling and bigamy. Court and police records show that a significant
number of murders, rapes, and similar offenses have been committed by
persons under the influence of dangerous drugs, or while they are 'high.'
REASON FOR FIXING CUT OFF POINT AT A MAXIMUM OF SIX YEARS While spreading such drugs, the drug-pusher is also abetting, through his
IMPRISONMENT FOR PROBATION. agreed and irresponsibility, the commission of other crimes." The image of
the judiciary is tarnished by conduct, which involves moral turpitude. While
Fixing the cut-off point at a maximum term of six (6) years indeed the purpose of the Probation Law (P.D. No. 968, as amended) is to
imprisonment for probation is based on the assumption that those sentenced save valuable human material, it must not be forgotten that unlike pardon
to higher penalties pose too great a risk to society, not just because of their probation does not obliterate the crime of which the person under probation
demonstrated capability for serious wrongdoing but because of the gravity has been convicted. The reform and rehabilitation of the probationer cannot
and serious consequences of the offense they might further commit. The justify his retention in the government service. He may seek to reenter
Probation Law, as amended, disqualifies only those who have been government service, but only after he has shown that he is fit to serve once
convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The again. It cannot be repeated too often that a public office is a public trust,
Revised Penal Code, and not necessarily those who have been convicted of which demands of those in its service the highest degree of morality. (OCA
multiple offenses in a single proceeding who are deemed to be less v. Librado 260 SCRA 624, 8/22/96)
perverse. Hence, the basis of the disqualification is principally the gravity of
the offense committed and the concomitant degree of penalty imposed.
Those sentenced to a maximum term not exceeding six (6) years are not PETITIONER MAY STILL EXHORT OFFENDER
generally considered callous, hard core criminals, and thus may avail of TO PERFORM CERTAIN ACTS DESPITE
probation DISCHARGE FROM PROBATION IN
CERTAIN CASES

VIOLATION OF RA 6425, Petitioner Arthur M. Cuevas, Jr.'s discharge from probation without any
A VALID CAUSE FOR DISMISSAL infraction of the attendant conditions therefor and the various certifications
IN SERVICE IN THE GOVERNMENT attesting to his righteous, peaceful and civic-oriented character prove that he
DESPITE PROBATION has taken decisive steps to purge himself of his deficiency in moral character
and atone for the unfortunate death of Raul I. Camaligan. The Court is
Drug-pushing, as a crime, has been variously condemned as "an prepared to give him the benefit of the doubt, taking judicial notice of the
especially vicious crime," "one of the most pernicious evils that has ever general tendency of the youth to be rash, temerarious and uncalculating. Let
crept into our society." For those who become addicted to it "not only slide it be stressed to herein petitioner that the lawyer's oath is not a mere
into the ranks of the living dead, what is worse, they become a grave menace formality recited for a few minutes in the glare of flashing cameras and before
to the safety of law-abiding members of society," while "peddlers of drugs the presence of select witnesses. Petitioner is exhorted to conduct himself
are actually agents of destruction. The deserve no less than the maximum beyond reproach at all times and to live strictly according to his oath and the
penalty [of death]." Code of Professional Responsibility. And, to paraphrase Mr. Justice Padilla's
comment in the sister case of Re: Petition of Al Argosino To Take The
Lawyer's Oath, Bar Matter No. 712, March 19, 1997, "[t]he Court sincerely

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hopes that" Mr. Cuevas, Jr., "will continue with the assistance he has been robbing and stealing have become profitable. Hence, a law was enacted to also punish those
giving to his community. As a lawyer he will now be in a better position to who buy stolen properties. For if there are no buyers then the malefactors could not profit
render legal and other services to the more unfortunate members of society". from their wrong doings.
(In Re: Cuevas, Jr.; 1/27/98)

WHAT IS FENCING LAW AND HOW IT CAN BE COMMITTED


EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION,
ORDER OF COURT REQUIRED "Fencing" 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
The mere expiration of the period for probation does not, ipso facto, dispose of, or shall buy and sell, or in any other manner deal in any article,
terminate the probation. Probation is not co-terminus with its period, there item, object or anything of value which he knows, or should be known to him,
must be an order from the Court of final discharge, terminating the probation. to have been derived from the proceeds of the crime of robbery or theft. A
If the accused violates the condition of the probation before the issuance of "Fence" includes any person, firm, association corporation or partnership or
said order, the probation may be revoked by the Court (Manuel Bala v. other organization who/ which commits the act of fencing.
Martinez, 181 SCRA 459).

WHO ARE LIABLE FOR THE CRIME OF FENCING; AND ITS PENALTIES:

ANTI-FENCING LAW The person liable is the one buying, keeping, concealing and selling
OF 1979 (PD NO. 1612) the stolen items. If the fence is a corporation, partnership, association or firm,
the one liable is the president or the manager or the officer who knows or
DEFINITION should have know the fact that the offense was committed.

Fencing as defined in Sec. 2 of PD No. 1612 (Anti-Fencing Law) The law provide for penalty range for persons convicted of the crime
is “the act of any person who, with intent to gain for himself or for of fencing. Their penalty depends on the value of the goods or items stolen
another, shall buy, receive, possess, keep, acquire, conceal, sell or or bought:
dispose of, or shall buy and sell, or in any manner deal in any article,
item, object or anything of value which he knows or should be known a. The penalty of prision mayor, if the value of the property
to him, or to have been derived from the proceeds of the crime of involved is more than 12,000 pesos but not exceeding 22,000 pesos;
robbery or theft. (Dizon-Pamintuan vs. People, GR 111426, 11 July 94). if the value of such property exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but the total
BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING LAW penalty which may be imposed shall not exceed twenty years. In
such cases, the penalty shall be termed reclusion temporal and the
Presidential Decree No. 1612 or commonly known as the Anti- accessory penalty pertaining thereto provided in the Revised Penal
Fencing Law of 1979 was enacted under the authority of therein President Code shall also be imposed.
Ferdinand Marcos. The law took effect on March 2, 1979. The Implementing
Rules and Regulations of the Anti-Fencing Law were subsequently b. The penalty of prision correccional in its medium and
formulated and it took effect on June 15, 1979. maximum periods, if the value of the property robbed or
stolen is more than 6,000 pesos but not exceeding 12, 000
pesos;
THE PURPOSE OF ENACTING PD 1612

The Anti-Fencing Law was made to curtail and put an end to the rampant robbery of c. The penalty of prision correccional in its minimum
government and private properties. With the existence of "ready buyers", the "business" of and medium periods, if the value of the property involved is
more than 200 pesos but not exceeding 6,000 pesos;
8
5. "Station Commander" shall refer to the Station
d. The penalty of arresto mayor in its medium period to Commander of the Integrated National Police within the territorial limits of the
prision correccional in its minimum period, if the value of the town or city district where the store, establishment or entity dealing in the
property involved is over 50 but not exceeding 200 pesos; buying and selling of used secondhand articles is located.

e. The penalty of arresto mayor in its medium period if PROCEDURE FOR SECURING PERMIT/CLEARANCE
such value is over five (5) pesos but not exceeding 50
pesos. The Implementing Rules provided for the method of obtaining
clearance or permit. No fee will be charged for the issuance of the
f. The penalty of arresto mayor in its minimum period if clearance/permit. Failure to secure clearance/permit shall be punished as a
such value does not exceed 5 pesos. fence, that may result to the cancellation of business license.

RULES REGARDING BUY AND SELL OF GOODS PARTICULARLY DUTIES AND RESPONSIBILIES OF STATION MANAGER AND OWNER
SECOND HAND GOODS OF SECONDHAND STORES

The law requires the establishment engaged in the buy and sell of 1. The Station Commander shall require the owner of a store or
goods to obtain a clearance or permit to sell "used second hand items", the President, manager or responsible officer in having in stock used secondhand
to give effect to the purpose of the law in putting an end to buying and articles, to submit an initial affidavit within thirty (30) days from receipt of notice for
selling stolen items. Failure of which makes the owner or manager liable the purpose thereof and subsequent affidavits once every fifteen (15) days within five
as a fence. (5) days after the period covered, which shall contain:
a. complete inventory of such articles including the names and
DEFINITION OF TERMS addresses from whom the articles were acquired.
b. Full list of articles to be sold or offered for sale including the time
The Implementing Rules provides for the guidelines of issuance of and place of sale
clearances or permits to sell used or secondhand items and it provided for c. Place where the articles are presently deposited.
the definition of the following terms:
WHAT MAYBE REQUIRED BY THE STATION COMMANDER OR
1. "Used secondhand article" shall refer to any goods, OWNER OF SECONDHAND STORES OR DEALERS
article, items, object or anything of value obtained from an unlicensed dealer
or supplier, regardless of whether the same has actually or in fact been used. The Station Commander may, require the submission of an
affidavit accompanied by other documents showing proof of
2. "Unlicensed dealer/supplier" shall refer to any persons, legitimacy of acquisition.
partnership, firm, corporation, association or any other entity or
establishment not licensed by the government to engage in the business of 2. Those who wish to secure the permit/clearance, shall file an
dealing in or of supplying the articles defined in the preceding paragraph; application with the Station Commander concerned, which states:
a. name, address and other pertinent circumstances
3. "Store", "establishment" or "entity" shall be construed to b. article to be sold or offered for sale to the public and the name
include any individual dealing in the buying and selling used secondhand and address of the unlicensed dealer or supplier from whom such article was
articles, as defined in paragraph hereof; acquired.
c. Include the receipt or document showing proof of legitimacy of
4. "Buy and Sell" refer to the transaction whereby one acquisition.
purchases used secondhand articles for the purpose of resale to third 3. The Station Commander shall examine the documents attached
persons; to the application and may require the presentation of other additional documents, if
necessary, to show satisfactory proof of the legitimacy of acquisition of the article,
subject to the following conditions:
9
a. if the Station Commander is not satisfied with the proof of
legitimacy of acquisition, he shall cause the publication of the notice, at the expense ELEMENTS OF VIOLATION OF THE ANTI- FENCING LAW.
of the one seeking clearance/permit, in a newspaper of general circulation for two
consecutive days, stating: 1. A crime of robbery or theft has been committed;
> articles acquired from unlicensed dealer or supplier 2. The accused, who is not a principal or accomplice in the commission
> the names and addresses of the persons from whom they were of the crime of robbery or theft, buys, receives, possess, keeps, acquires,
acquired conceals, sells, or disposes, or buys and sells, or in any manner deals in
> that such articles are to be sold or offered for sale to the public at any article, item, object or anything of value, which has been derived
the address of the store, establishment or other entity seeking the from the proceeds of the said crime;
clearance/permit. 3. The accused knows or should have known that the said article, item,
4. If there are no newspapers in general circulation, the party or object or anything of value has been derived from the proceeds of the
seeking the clearance/permit shall, post a notice daily for one week on the bulletin crime of robbery or theft; and
board of the municipal building of the town where the store, firm, establishment or 4. There is, on the part of the accused, intent to gain for himself or for
entity is located or, in the case of an individual, where the articles in his possession another. (Dizon-Pamintuan vs People, GR 111426, 11 July 94)
are to be sold or offered for sale.
5. If after 15 days, upon expiration of the period of publication or of DISCUSSION OF THE ELEMENTS.
the notice, no claim is made to any of the articles enumerated in the notice, the
Station Commander shall issue the clearance or permit sought. A. As regards the first element, the crime of robbery or theft should
6. If before expiration of the same period for the publication of the have been committed before crime of fencing can be committed. The person
notice or its posting, it shall appear that any of the articles in question is stolen committing the crime of robbery or theft, may or may not be the same person
property, the Station Commander shall hold the article in restraint as evidence in any committing the crime of fencing. As in the case of D.M. Consunji, Inc., vs.
appropriate case to be filed. Esguerra, quantities of phelonic plywood were stolen and the Court held that
Articles held in restraint shall kept and disposed of as the qualified theft had been committed. In People vs. Lucero there was first a
circumstances of each case permit. In any case it shall be the snatching incident, where the bag of Mrs. Maripaz Bernard Ramolete was
duty of the Station Commander concerned to advise/notify the snatch in the public market of Carbon, Cebu City, where she lost a Chinese
Commission on Audit of the case and comply with such Gold Necklace and pendant worth some P4,000.00 to snatchers Manuel
procedure as may be proper under applicable existing laws, Elardo and Zacarias Pateras. The snatchers sold the items to Manuel
rules and regulations. Lucero. Consequently, Lucero was charged with violation of the Anti-Fencing
7. The Station Commander shall, within seventy-two (72) hours Law. However, in this case, no eyewitness pointed to Lucero as the
from receipt of the application, act thereon by either issuing the clearance/permit perpetrator and the evidence of the prosecution was not strong enough to
requested or denying the same. Denial of an application shall be in writing and shall convict him (read this case).
state in brief the reason/s thereof.
8. Any party not satisfied with the decision of the Station B. The second element speaks of the overt act of keeping, buying,
Commander may appeal the same within 10 days to the proper INP (now PNP) receiving, possessing, acquiring, concealing, selling or disposing or in any
District Superintendent and further to the INP (now PNP) Director. The decision of manner deals with stolen items. It is thus illustrated in the case of Lim vs.
the Director can still be appealed top the Director-General, within 10 days, whose Court of Appeals, where the accused, Juanito Lim stored and kept in his
decision may be appealed with the Minister (now Secretary) of National Defense, bodega and subsequently bought or disposed of the nine (9) pieces of stolen
within 15 days, which decision is final. tires with rims owned by Loui Anton Bond.

C. The accused know or should have known that the goods were
PRIMAFACIE EVIDENCE OF FENCING. stolen. As pointed out in the case of People vs. Adriatico, the court in
convicting Norma Adriatico, stated that it was not impossible for her to know
Mere possession of any good, article, item, object or anything of that the jewelry were stolen because of the fact that Crisilita was willing to
value which has been the subject of robbery or thievery, shall be prima facie part with a considerable number of jewelry at measly sum, and this should
evidence of fencing. have apprised Norma of the possibility that they were stolen goods. The

10
approximate total value of the jewelry were held to be at P20,000.00, and INTENT TO GAIN NEED NOT BE PROVEN IN ANTI-FENCING LAW.
Norma having bought it from Crisilita for only P2,700. The court also
considered the fact that Norma engage in the business of buying and selling The last element is that there is intent to gain for himself or for
gold and silver, which business is very well exposed to the practice of another. However, intent to gain need not be proven in crimes punishable by
fencing. This requires more than ordinary case and caution in dealing with a special law such as the Anti-Fencing Law. The crimes punishable by
customers. As noted by the trial court: special laws are called "acts mala prohibita". The rule on the subject is that in
acts mala prohibita, the only inquiry is that, has the law been violated? (in
". . . the Court is not inclined to accept the accused's theory of Gatdner v. People, as cited in US v. Go Chico, 14 Phils. 134) When the act is
buying in good faith and disclaimer of ever seeing, much more, buying the prohibited by law, intent is immaterial.
other articles. Human experience belies her allegations as no businessman
or woman at that, would let go of such opportunities for a clean profit at the DELIBERATE INTENT OR DOLO OR DECEIT IS NOT ALSO MATERIAL
expense of innocent owners.’’ IN ANTI-FENCING.

WHEN POSSESSION UNDER CERTAIN CIRCUMSTANCES SUCH AS Likewise, dolo or deceit is immaterial in crimes punishable by special
DISPLAYING THE SAME IN THE SHELVES IS AN ACT OF FENCING. statute like the Anti-Fencing Law. It is the act itself which constitutes the
The Court in convicting Ernesto Dunlao Sr., noted that the stolen offense and not the motive or intent. Intent to gain is a mental state, the
articles composed of farrowing crates and G.I. pipes were found displayed on existence if which is demonstrated by the overt acts of the person. The
petitioner's shelves inside his compound. (Dunalao, Sr. v. CA, 08/22/96) mental state is presumed from the commission of an unlawful act. (Dunlao v.
CA) again, intent to gain is a mental state, the existence of which is
WHEN THEFT OR ROBBERY AS FIRST ELEMENT WAS NOT PROVEN. demonstrated by the overt acts of person, as the keeping of stolen items for
subsequent selling.
In the case of People v. Muere (G.R.12902, 10/18/94), the third
element was not proven. This case involves the selling of alleged stolen A FENCE MAY BE PROSECUTED
Kenwood Stereo Unit in the store Danvir Trading, owned by the spouses UNDER THE RPC OR PD 1612 OR BOTH.
Muere. The store is engaged in buying and selling of second hand
merchandise located at Pasay Road, Makati. The said stereo was bought The state may thus choose to prosecute him either under the RPC or
from Wynn's Audio, an existing establishment. The court held that there is no PD NO. 1612 although the preference for the latter would seem inevitable
proof that the spouses Muere, had knowledge of the fact that the stereo was considering that fencing is a malum prohibitum, and PD No. 1612 creates a
stolen. The spouses Muere purchased the stereo from a known merchant presumption of fencing and prescribes a higher penalty based on the value of
and the unit is displayed for sale in their store. These actions are not the property. (supra)
indicative of a conduct of a guilty person.

WHEN THERE IS NO PROOF THAT THE ACCUSED BOUGHT OR SOLD MERE POSSESSION OF STOLEN ARTICLE
ARTICLES KNOWING THE SAME TO BE STOLEN. THUS THE THIRD PRIMA FACIE EVIDENCE OF FENCING.
ELEMENT IS NOT PRESENT.
Since Sec. 5 of PD NO. 1612 expressly provides that “mere
On the same vein, the third element did not exist in the case of D.M. possession of any good, article, item, object or anything of value which has
Consunji, Inc. (Consunji v. Esguerra, 07/30/96) where the subject of the court been the subject of robbery or thievery shall be prima facie evidence of
action are the alleged stolen phelonic plywood owned by D.M. Consunji, Inc., fencing”. It follows that the accused is presumed to have knowledge of the
later found to be in the premises of MC Industrial Sales and Seato trading fact that the items found in her possession were the proceeds of robbery or
Company, owned respectively by Eduardo Ching and the spouses Sy. theft. The presumption does not offend the presumption of innocence
Respondents presented sales receipts covering their purchase of the items enshrined in the fundamental law.
from Paramount Industrial, which is a known hardware store in Caloocan,
thus they had no reason to suspect that the said items were products of theft.

11
Government Code, of persons running for elective position -"Sec. 40
Disqualifications - (a) Those sentenced by final judgement for an offense
DISTINCTION BETWEEN involving moral turpitude..."
FENCING AND ROBBERY.
Dela Torre was disqualified because of his prior conviction of the
The law on fencing does not require the accused to have crime of fencing wherein he admitted all the elements of the crime of fencing.
participation in the criminal design to commit or to have been in any wise
involved in the commission of the crime of robbery or theft. Neither is the
crime of robbery or theft made to depend on an act of fencing in order that it
can be consummated. (People v De Guzman, GR 77368). ESSENCE OF VIOLATION OF PD 1612,
SEC. 2 OR ANTI-FENCING
DISTINCTION BETWEEN ROBBERY AND FENCING
PD 1612, Section 2 thereof requires that the offender buys or
Robbery is the taking of personal property belonging to another, with otherwise acquires and then sells or disposes of any object of value which he
intent to gain, by means of violence against or intimidation of any person, or knows or should he known to him to have been derived from the proceeds of
using force upon anything. the crime of robbery or theft. (Caoili v CA; GR 128369, 12/22/97)

On the other hand, fencing is the act of any person who, with intent
to gain for himself or for another, shall buy, receive, possess, keep, acquire, PROOF OF PURCHASE WHEN GOODS
conceal, sell or dispose of, or shall buy and sell, or in any other manner deal ARE IN POSSESSION OF OFFENDER
in any article, item, object or anything of value which he knows, or shall be NOT NECESSARY IN ANTI-FENCING
known to him, to have been derived from the proceeds of the crime of
robbery or theft. 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
FENCING AS A CRIME INVOLVING presumption of fencing.
MORAL TURPITUDE.
It was incumbent upon petitioner to overthrow this presumption by
In violation of the Anti-Fencing Law, actual knowledge by the "fence" sufficient and convincing evidence. (Caoili v. CA; GR 128369, 12/22/97)
of the fact that property received is stolen displays the same degree of
malicious deprivation of one's rightful property as that which animated the
robbery or theft which by their very nature are crimes of moral turpitude. BATAS PAMBANSA BLG. 22
(Dela Torre v. COMELEC 07/05/96) BOUNCING CHECKS LAW

Moral turpitude can be derived from the third element - accused


knows or should have known that the items were stolen. Participation of each ACTS PUNISHABLE IN BP 22
felon, one being the robber or the thief or the actual perpetrators, and the
other as the fence, differs in point in time and degree but both invaded one's a. any person who makes or draws and issues any check to apply on
peaceful dominion for gain. (Supra) Both crimes negated the principle of account or for value, knowing at the time of issue that he does not have
each person's duty to his fellowmen not to appropriate things that they do not sufficient funds in or credit with the drawee bank, for the payment of such
own or return something acquired by mistake or with malice. This signifies check in full upon its presentment, which check is subsequently dishonored
moral turpitude with moral unfitness. by the drawee bank for insufficiency of funds, or credit, or would have been
dishonored for the same reason had not the drawee, without any valid
In the case of Dela Torre, he was declared disqualified from running reason, ordered the bank to stop payment.
the position of Mayor in Cavinti, Laguna in the last May 8, 1995 elections
because of the fact of the disqualification under Sec. 40 of the Local

12
b. Any person who having sufficient funds DUE TO STOP PAYMENT
in or credit with the drawee bank when he makes or draws and issues a
check, shall fail to keep sufficient funds or to maintain a credit to cover the The drawee bank has not only the duty to indicate that the drawer
full amount of the check if presented within a period of ninety days from date stopped the payment and the reason for the stop payment. The drawee
appearing thereon, for which reason, it is dishonored by the drawee bank. bank is further obligated to state whether the drawer of the check has
sufficient funds in the bank or not.
c. Any person who issue any check whose account already closed
whether the drawee knows that his account is closed or not.
AGREEMENT OF PARTIES
HOW TO ESTABLISH GUILT REGARDING THE CHECK
OF ACCUSED IN BP 22 IS NOT A DEFENSE

To establish her guilt, it is indispensable that the checks she issued In the case of People vs Nitafan, 215 SCRA, the agreement of the
for which she was subsequently charged, be offered in evidence because the parties in respect to the issuance of the check is inconsequential or will not
gravamen of the offense charged is the act of knowingly issuing a check with affect the violation of BP 22, if the check is presented to the bank and the
insufficient funds. Clearly, it was error to convict complainant on the basis of same was dishonored due to insufficiency of funds.
her letter alone. Nevertheless, despite this incorrect interpretation of a rule
on evidence, we do not find the same as sufficiently constitutive of the
charges of gross ignorance of the law and of knowingly rendering an unjust CHECKS ISSUED IN PAYMENT
decision. Rather, it is at most an error in judgment, for which, as a general OF INSTALLMENT STILL IN VIOLATION OF B.P. 22
rule, he cannot be held administratively liable. In this regard, we reiterate the
prevailing rule in our jurisdiction as established by current jurisprudence. Checks issued in payment for installment covered by promissory
(Gutierrez v Pallatao; 8/8/98) note and said checks bounced, the drawer is liable if the checks were drawn
against insufficient funds, especially that the drawer, upon signing of the
promissory note, closed his account. Said check is still with consideration.
NOTICE, AN INDISPENSABLE (Caram Resources v. Contreras)
REQUISITE FOR PROSECUTION
In this case, the Judge was even held administratively liable.
Section 3 of BP 22 requires that the holder of the check or the
drawee bank, must notify the drawer of the check that the same was
dishonored, if the same is presented within ninety days from date of CHECK DRAWN AGAINST
issuance, and upon notice the drawer has five days within which to make A DOLLAR ACCOUNT IN FOREIGN COUNTRY IS STILL A VIOLATION
arrangements for the payment of the check or pay the same in full. OF B.P. 22 AS LONG AS THE CHECK IS DELIVERED ON THE PHILS.
AND IF IT IS PAYABLE OUTSIDE OF THE PHILS.

DUTY OF THE DRAWEE BANK A check drawn against a dollar account in a foreign country is still
violative of the provisions of BP 22 so long as the check is issued, delivered
The drawee bank has the duty to cause to be written, printed or or uttered in the Philippines, even if the same is payable outside of the
stamped in plain language thereon, or attached thereto the reason for the Philippines (De Villa v. CA)
drawee’s dishonor or refusal to pay the same. If the drawee bank fails to do
so, prosecution for violation of BP 22 may not prosper.
GUARANTEE CHECKS, DRAWER IS NOT LIABLE IF THE LESSOR WHO
IS RECIPIENT OF GUARANTEE CHECK PULLED OUT OF THE LOANED
DUTY OF THE BANK AND RULE EQUIPMENT.
IN CASE OF DISHONOR
13
The mere act of issuing a worthless check is punishable. Offender
cannot claim good faith for it is malum prohibitum. In the crime of estafa, deceit and damage are essential elements of
the offense and have to be established with satisfactory proof to warrant
In the case of Magno vs CA, when accused issued a check as conviction. For violation of the Bouncing Checks Law, on the other hand, the
warranty deposit for lease of certain equipment, even knowing that he has no elements of deceit and damage are neither essential nor required. Rather,
funds or insufficient funds in the bank is not liable, if the lessor of the the elements of B.P. Blg. 22 are (a) the making, drawing and issuance of any
equipment pulled out the loaned equipment. The drawer has no obligation to check to apply to account or for value; (b) the maker, drawer or issuer knows
make good the check because there is no more deposit to guaranty. at the time of issuance that he does not have sufficient funds in or credit with
the drawee bank for the payment of such check in full upon its presentment;
and, (c) the check is subsequently dishonored by the drawee bank for
ISSUANCE OF GUARANTEE CHECKS insufficiency of funds or credit or would have been dishonored for the same
WHICH WAS DISHONORED IS STILL A VIOLATION OF BP 22. reason had not the drawer, without valid reason, ordered the bank to stop
PREJUDICE OR DAMAGE IS NOT NECESSARRY payment. (Uy v Court of Appeals, GR 119000, July 28, 1997)

The intention of the framers of BP 22 is to make a mere act of


issuing a worthless check malum prohibitum. In prosecutions for violation of
BP 22, therefore, prejudice or damage is not prerequisite for conviction.

The agreement surrounding the issuance of the checks need not be RULES OR JURISDICTION IN RELATION TO THE COURTS WHERE
first locked into, since the law has provided that the mere issuance of any BP 22 CASES MAYBE FILED
kind of check; regardless of the intent of the parties, i.e., whether the check is
intended merely to serve as guarantee or deposit, but which checks is In respect of the Bouncing checks case, the offense also appears to
subsequently dishonored, makes the person who issued the check liable. be continuing in nature. It is true that the offense is committed by the very
(Lazaro vs CA, et al., GR 105461). fact of its performance (Colmenares vs. Villar, No. L-27126, May 29, 1970,
33 SCRA 186); and that the Bouncing Checks Law penalizes not only the
fact of dishonor of a check but also the act of making or drawing and
issuance of a bouncing check (People vs. Hon. Veridiano, II, No. L-62243,
132 SCRA 523). The case, therefore, could have been filed also in Bulacan.
As held in Que vs. People of the Philippines, G.R. Nos. 75217-18,
September 11, 1987 "the determinative factor (in determining venue) is the
CAN A PERSON BE HELD LIABLE FOR VIOLATION OF B.P. 22 IN place of the issuance of the check". However, it is likewise true that
ISSUING A CHECK WITH SUFFICIENT FUNDS? knowledge on the part of the maker or drawer of the check of the
insufficiency of his funds, which is an essential ingredient of the offense is by
Yes. Paragraph 2 of Section 1 of BP 22 provides: itself a continuing eventuality, whether the accused be within one territory or
another (People vs. Hon. Manzanilla, G.R. Nos. 66003-04, December 11,
The same penalty shall be imposed upon any person who having 1987). Accordingly, jurisdiction to take cognizance of the offense also lies in
sufficient funds in or credit with the drawee bank when he makes or draws the Regional Trial Court of Pampanga (now M.T.C. of the proper town of
and issues a check, shall fail to keep sufficient funds or to maintain a credit to Pampanga).
cover the full amount of the check if presented within a period of 90 days
from the date appearing thereon, for which reason, it is dishonored by the And, as pointed out in the Manzanilla case, jurisdiction or venue is
drawee bank. determined by the allegation in the Information, which are controlling (Arches
vs. Bellosillo, 81 Phil. 190, cited in Tuzon vs. Cruz, No. L-27410, August 28,
1975, 66 SCRA 235). The Information filed herein specifically alleges that the
DIFFERENCE BETWEEN ESTAFA crime was committed in San Fernando Pampanga and therefore within the
AND VIOLATION OF BP 22 jurisdiction of the Court below.

14
from the fact of drawing, issuing or making a check, the payment of which
This ruling was reiterated in the case of Lim vs. Rodrigo, 167 SCRA was subsequently refused for insufficiency of funds. It is important to stress,
487, where it was held: however, that this is not a conclusive presumption that forecloses or
precludes the presentation of evidence to the contrary. (Lim Lao v CA 274
Besides, it was held in People v. Hon. Manzanilla, supra, that as SCRA 572)
"violation of the bad checks act is committed when one 'makes or draws and
issues any check [sic] to apply on account or for value, knowing at the time
issue that he does not have sufficient funds' or having sufficient funds in or WHEN LACK OF KNOWLEDGE AND
credit with the drawee bank . . . shall fail to keep sufficient funds or to LACK OF POWER TO FUND THE
maintain a credit to cover the full amount of the check if presented within a CHECKS IN CASES OF BP 22 A DEFENSE
period of ninety (90) days from the date appearing thereon, for which reason
it is dishonored by the drawee bank," "knowledge" is an essential ingredient After a thorough review of the case at bar, the Court finds that
of the offense charge. As defined by the statute, knowledge, is, by itself, a Petitioner Lina Lim Lao did not have actual knowledge of the insufficiency of
continuing eventuality, whether the accused be within one territory or funds in the corporate accounts at the time she affixed her signature to the
another. This being the case, the Regional Trial Court of Baguio City has checks involved in this case, at the time the same were issued, and even at
jurisdiction to try Criminal Case No. 2089-R (688). the time the checks were subsequently dishonored by the drawee bank.

Moreover, we ruled in the same case of People v. Hon. Manzanilla, The scope of petitioner's duties and responsibilities did not
reiterated in People vs. Grospe, supra, that jurisdiction or venue is encompass the funding of the corporation's checks; her duties were limited to
determined by the allegations in the information. The allegation in the the marketing department of the Binondo branch. Under the organizational
information under consideration that the offense was committed in Baguio structure of Premiere Financing Corporation, funding of checks was the sole
City is therefore controlling and sufficient to vest jurisdiction upon the responsibility of the Treasury Department. (Lim Lao v CA 274 SCRA 572)
Regional Trial Court of Baguio City.

In the case at bench it appears that the three (3) checks were LACK OF ADEQUATE NOTICE OF
deposited in Lucena City. As to the second error wherein the petitioner DISHONOR, A DEFENSE
asserted that the checks were issued "as a guarantee only for the feeds
delivered to him" and that there is no estafa if a check is issued in payment of There can be no prima facie evidence of knowledge of insufficiency
a pre-existing obligation, the Court of Appeals pointed out that the petitioner of funds in the instant case because no notice of dishonor was actually sent
obviously failed to distinguish a violation of B.P. Blg. 22 from estafa under to or received by the petitioner.
Article 315 (2) [d] of the Revised Penal Code. It further stressed that B.P.
Blg. 22 applies even in cases where dishonored checks were issued as a The notice of dishonor may be sent by the offended party or the
guarantee or for deposit only, for it makes no distinction as to whether the drawee bank. The trial court itself found absent a personal notice of dishonor
checks within its contemplation are issued in payment of an obligation or to Petitioner Lina Lim Lao by the drawee bank based on the unrebutted
merely to guarantee the said obligation and the history of its enactment testimony of Ocampo "(t)hat the checks bounced when presented with the
evinces the definite legislative intent to make the prohibition all-embracing. drawee bank but she did not inform anymore the Binondo branch and Lina
(Ibasco vs CA, 261 SCRA 572) Lim Lao as there was no need to inform them as the corporation was in
distress." The Court of Appeals affirmed this factual finding. Pursuant to
prevailing jurisprudence, this finding is binding on this Court. (Lim Lao v CA;
ACTUAL KNOWLEDGE OF INSUFFICIENCY 6/20/97)
OF FUNDS ESSENTIAL IN BP 22

Knowledge of insufficiency of funds or credit in the drawee bank for ANTI-GRAFT & CORRUPT PRACTICES ACT
the payment of a check upon its presentment is an essential element of the (RA NO 3019)
offense. There is a prima facie presumption of the existence of this element

15
(g) Entering, on behalf of the Government, into any contract or transaction
ANTI-GRAFT AND CORRUPT manifestly and grossly disadvantageous to the same, whether or not the
PRACTICES ACT public officer profited or will profit thereby.
(h) Director or indirectly having financing or pecuniary interest in any
Corrupt practices of public officers. 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
(a) Persuading, inducing or influencing another public officer to perform an Constitution or by any law from having any interest.
act constituting a violation of rules and regulations duly promulgated by
competent authority or an offense in connection with the official duties of (i) Directly or indirectly becoming interested, for personal gain, or having a
the latter, or allowing himself to be persuaded, induced, or influenced to material interest in any transaction or act requiring the approval of a
commit such violation or offense. board, panel or group of which he is a member, and which exercises
discretion in such approval, even if he votes against the same or does
(b) Directly or indirectly requesting or receiving any gift, present, share, not participate in the action of the board, committee, panel or group.
percentage, or benefit, for himself or for any other person, in connection Interest for personal gain shall be presumed against those public
with any contract or transaction between the Government and any other officers responsible for the approval of manifestly unlawful, inequitable,
part, wherein the public officer in his official capacity has to intervene or irregular transaction or acts by the board, panel or group to which
under the law. they belong.

(c) Directly or indirectly requesting or receiving any gift, present or other ( j) Knowingly approving or granting any license, permit, privilege or benefit
pecuniary or material benefit, for himself or for another, from any person in favor of any person not qualified for or not legally entitled to such
for whom the public officer, in any manner or capacity, has secured or license, permit, privilege or advantage, or of a mere representative or
obtained, or will secure or obtain, any Government permit or license, in dummy of one who is not so qualified or entitled.
consideration for the help given or to be given, without prejudice to
Section thirteen of this Act. (k) Divulging valuable information of a confidential character, acquired by his
office or by him on account of his official position to unauthorized
(d) Accepting or having any member of his family accept employment in a persons, or releasing such information in advance of its authorized
private enterprise which has pending official business with him during release date.
the pendency thereof or within one year after its termination.
UNEXPLAINED WEALTH,
(e) Causing any undue injury to any party, including the Government, or MEANING
giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official administrative or judicial Prima facie evidence of and dismissal due to unexplained wealth. If
functions through manifest partiality, evident bad faith or gross in accordance with the provisions of RA 1379, a public official has been
inexcusable negligence. This provision shall apply to officers and found to have acquired during his incumbency, whether in his name or in the
employees of offices or government corporations charged with the grant name of other persons, an amount of property and/or money manifestly out
of licenses or permits or other concessions. of proportion to his salary and to his other lawful income, that fact shall be a
ground for dismissal or removal.
( f ) Neglecting or refusing, after due demand or request, without sufficient
justification, to act within a reasonable time on any matter pending Note: Unsolicited gifts or presents of small or insignificant value shall be
before him for the purpose of obtaining, directly or indirectly, from any offered or given as a mere ordinary token of gratitude or friendship according
person interested in the matter some pecuniary or material benefit or to local customs or usage shall be exempted from the provision of this act.
advantage, or for the purpose of favoring his own interest or giving
undue advantage in favor of or discriminating against any other MEANING OF
interested party. “CAUSING UNDUE INJURY”

16
The act of giving any private party any unwarranted benefit,
advantage or preference is not an indispensable element of causing any VIOLATION OF SECTION 3 (E) OF RA 3019
undue injury to any part, although there may be instances where both REQUIRES PROOF OF THE FOLLOWING
elements concur. (Santiago vs Garchitorena, et al., 2 Dec. 93). FACTS, VIZ:

In Mejoroda v Sandiganbayan, the Supreme Court has ruled that the a. the accused is a public officer discharging administrative or official
offender in causing undue injury does not refer only to those who are in functions or private persons charged in conspiracy with them;
charge of giving permits, licenses or concessions but all acts of public
officers or employees which have caused undue injury to others. b. the public officer committed the prohibited act during the
performance of his official duty or in relation to his public position;

ELEMENTS OF NEGLECT OF DUTY UNDER c. the public officer acted with manifest partiality evident bad faith or
SEC. 3 OF RA 3019 gross, inexcusable negligence; and

a. the offender is a public officer; d. his action caused undue injury to the government or any private
b. the said officer has neglected or has refused to act without sufficient party, or gave any party any unwarranted benefit, advantage or
justification after due demand or request has been made upon him; preference to such parties.
c. reasonable time has elapsed from such demand or request without
the public officer having acted on the matter pending before him;
d. such failure to so act is for the purpose of obtaining directly or CAUSING UNDUE INJURY UNDER SEC. 3,
indirectly from any person interested in the matter some pecuniary or LETTER (e) OF RA 3019. INCLUDES ALL PUBLIC OFFICERS
material benefit or advantage in favor of an interested party or INCLUDING THOSE THAT DOES NOT ISSUE LICENSE OR PERMIT OR
discriminating against another. Coronado v Sandiganbayan. CONCESSION.

Section 3 enumerates in eleven subsections the corrupt practices of


WHERE PUBLIC OFFICER ACTED any public officer declared unlawful. Its reference to any public officer is
WITH MANIFEST PARTIALITY, without distinction or qualification and it specifies the acts declared unlawful.
EVIDENT BAD FAITH, OR INEXCUSABLE We agree with the view adopted by the Solicitor General that the last
NEGLIGENCE inclusion of officers and employees of offices or government corporations
which, under the ordinary concept of “public officer” may not come within the
Sec. 3. Corrupt practices of public officers. - In addition to acts or term. It is a strained construction of the provision to read it as applying
omissions of public officers already penalized by existing law, the following exclusively to public officers charged with the duty of granting license or
shall constitute corrupt practices of any public officer and are hereby permits or other concessions. (Mejorada v Sandiganbayan, 151 SCRA 399).
declared to be unlawful:

xxx xxx xxx SUSPENSION UNDER R.A. 3019 MANDATORY


BUT COURTS ARE ALLOWED TO DETERMINE
(e). Causing any undue injury to any party, including the WHETHER INFORMATION IS VALID OR NOT
Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official administrative or It is well settled that Section 13 of RA 3019 makes it mandatory for
judicial functions through manifest partiality, evident bad faith or gross the Sandiganbayan (or the Court) to suspend any public officer against
inexcusable negligence. This provision shall apply to officers and employees whom a valid information charging violation of this law, Book II, Title 7 of the
of offices or government corporations charged with the grant of licenses or RPC, or any offense involving fraud upon government or public funds or
permits or other concessions. property is filed in court. The court trying a case has neither discretion nor
duty to determine whether preventive suspension is required to prevent the

17
accused from using his office to intimidate witnesses or frustrate his
prosecution or continue committing malfeasance in office. All that is required As early as 18 December 1967 in Ingco v. Sanchez, 17 this Court
is for the court to make a finding that the accused stands charged under a explicitly ruled that the re-election of a public official extinguishes only the
valid information for any of the above-described crimes for the purpose of administrative, but not the criminal, liability incurred by him during his
granting or denying the sought for suspension. (Bolastig vs. Sandiganbayan, previous term of office, thus:
G.R. No. 110503 [August 4, 1994], 235 SCRA 103).In the same case, the
Court held that "as applied to criminal prosecutions under RA 3019, The ruling, therefore, that — "when the people have elected a
preventive suspension will last for less than ninety (90) days only if the case man to his office it must be assumed that they did this with knowledge of
is decided within that period; otherwise, it will continue for ninety (90) days." his life and character and that they disregarded or forgave his faults or
(Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998) (see also sec misconduct if he had been guilty of any" — refers only to an action for
13) removal from office and does not apply to criminal case, because a crime
is a public wrong more atrocious in character than mere misfeasance or
malfeasance committed by a public officer in the discharge of his duties,
PUBLIC OFFICER MAY BE SUSPENDED FROM HIS PRESENT and is injurious not only to a person or group of persons but to the State
POSITION EVEN IF THE CRIME WHICH HE IS BEING CHARGED WAS as a whole. This must be the reason why Article 89 of the Revised Penal
COMMITTED DURING HIS PREVIOUS TERM Code, which enumerates the grounds for extinction of criminal liability,
does not include reelection to office as one of them, at least insofar as a
Judge Monzon's contention denying complainant's Motion for public officer is concerned. Also, under the Constitution, it is only the
Suspension because "offenses committed during the previous term (is) not a President who may grant the pardon of a criminal offense. (Conducto v.
cause for removal during the present term" is untenable. In the case of Monzon; A.M. No. MTJ-98-1147, July 2, 1998)
Rodolfo E. Aguinaldo vs. Hon. Luis Santos and Melvin Vargas, 212 SCRA
768, the Court held that "the rule is that a public official cannot be removed
for administrative misconduct committed during a prior term since his re- PRE-CONDITION OF SUSPENSION
election to office operates as a condonation of the officer's previous (PREVENTIVE) UNDER SEC. 13, RA 3019
misconduct committed during a prior term, to the extent of cutting off the right
to remove him therefor. The foregoing rule, however, finds no application to It is mandatory for the court to place under preventive suspension a
criminal cases . . ." public officer accused before it. Imposition of suspension, however, is not
Likewise, it was specifically declared in the case of Ingco vs. automatic or self-operative. A pre-condition thereof is the existence of a valid
Sanchez, G.R. No. L-23220, 18 December 1967, 21 SCRA 1292, that "The information, determined at a pre-suspension hearing. Such a hearing is in
ruling, therefore, that 'when the people have elected a man to office it must accord with the spirit of the law, considering the serious and far-reaching
be assumed that they did this with knowledge of his life and character and consequences of a suspension of a public official even before his conviction,
that they disregarded or forgave his faults or misconduct if he had been guilty and the demands of public interest for a speedy determination of the issues
of any' refers only to an action for removal from office and does not apply to a involved in the case. The purpose of the pre-suspension hearing is basically
criminal case" to determine the validity of the information and thereby furnish the court with
a basis to either suspend the accused and proceed with the trial on the
Clearly, even if the alleged unlawful appointment was committed merits of the case, or refuse suspension of the latter and dismiss the case, or
during Maghirang's first term as barangay chairman and the Motion for his correct any part of the proceeding which impairs its validity. The accused
suspension was only filed in 1995 during his second term, his re-election is should be given adequate opportunity to challenge the validity or regularity of
not a bar to his suspension as the suspension sought for is in connection the criminal proceedings against him; e.g. that he has not been afforded the
with a criminal case. (Conducto v. Monzon 291 scra 619) right to due preliminary investigation; that the acts imputed to him do not
constitute a specific crime (under R.A. 3019 or the Revised Penal Code)
RE-ELECTION IN PUBLIC OFFICE warranting his mandatory suspension from office under Section 13 of the Act;
EXTINGUISHING ONLY HIS or that the information is subject to quashal on any of the grounds set out in
ADMINISTRATIVE LIABILITY BUT Rule 117 of the Rules of Court. But once a proper determination of the
NOT HIS CRIMINAL LIABILITY validity of the information has been made, it becomes the ministerial duty of

18
the court to forthwith issue the order of preventive suspension. The court has Graft Act or for bribery under a valid information requires at the same
no discretion, for instance, to hold in abeyance the suspension of the time that the hearing be expeditious, and not unduly protracted such as
accused official on the pretext that the order denying the latter's motion to to thwart the prompt suspension envisioned by the Act. Hence, if the
quash is pending review before the appellate courts. (Segovia v. trial court, say, finds the ground alleged in the quashal motion not to be
Sandiganbayan; GR 124067, Mar. 27, 1998) indubitable, then it shall be called upon to issue the suspension order
upon its upholding the validity of the information and setting the same
GUIDELINES TO BE FOLLOWED for trial on the merits.' (Segovia v. Sandiganbayan)
IN PREVENTIVE SUSPENSION CASES

"In the leading case of Luciano, et al. vs. Mariano, et al. (L-32950, WHEN MAY A PUBLIC OFFICER BE
July 30, 1971, 40 SCRA 187), we have set out the guidelines to be followed LIABLE FOR CAUSING UNDUE INJURY
by the lower courts in the exercise of the power of suspension under Section UNDER SEC. 3(e) of RA 3019
13 of the law, to wit:
xxx xxx xxx
(c) By way of broad guidelines for the lower courts in
the exercise of the power of suspension from office of public officers (c) Causing any undue injury to any party, including the Government, or
charged under a valid information under the provisions of Republic Act giving any private party any unwarranted benefits, advantage or preference
No. 3019 or under the provisions of the Revised Penal Code on in the discharge of his official, administrative or judicial functions through
bribery, pursuant to section 13 of said Act, it may be briefly stated that manifest partiality, evident bad faith or gross inexcusable negligence. This
upon the filing of such information, the trial court should issue an order provision shall apply to officers and employees of offices or government
with proper notice requiring the accused officer to show cause at a corporations charged with the grant of licenses or permits or other
specific date of hearing why he should not be ordered suspended from concessions."
office pursuant to the cited mandatory provisions of the Act. Where
either the prosecution seasonably files a motion for an order of To hold a person liable under this section, the concurrence of the
suspension or the accused in turn files a motion to quash the following elements must be established beyond reasonable doubt by the
information or challenges the validity thereof, such show-cause order prosecution:
of the trial court would no longer be necessary. What is indispensable
is that the trial court duly hear the parties at a hearing held for "(1) That the accused is a public officer or a private person charged in
determining the validity of the information, and thereafter hand down its conspiracy with the former;
ruling, issuing the corresponding order of suspension should it uphold (2) That said public officer commits the prohibited acts during the
the validity of the information or withhold such suspension in the performance of his or her official duties or in relation to his or her public
contrary case. positions;
(3) That he or she causes undue injury to any party, whether the
(d) No specific rules need be laid down for such pre- government or a private party; and
suspension hearing. Suffice it to state that the accused should be (4) That the public officer has acted with manifest partiality, evident bad
given a fair and adequate opportunity to challenge the validity of the faith or gross inexcusable negligence."
criminal proceedings against him, e.g., that he has not been afforded (Llorente v. Sandiganbayan;
the right of due preliminary investigation, the act for which he stands GR 122166, Mar. 11, 1998)
charged do not constitute a violation of the provisions of Republic Act
No. 3019 or of the bribery provisions of the Revised Penal Code which
would warrant his mandatory suspension from office under Section 13 MEANING OF BAD FAITH UNDER
of the Act, or he may present a motion to quash the information on any SECTION 3(e) OF RA 3019
of the grounds provided in Rule 117 of the Rules of Court. The
mandatory suspension decreed by the act upon determination of the "Bad faith does not simply connote bad judgment or negligence; it
pendency in court or a criminal prosecution for violation of the Anti- imputes a dishonest purpose or some moral obliquity and conscious doing of

19
a wrong; a breach of sworn duty through some motive or intent or ill will; it or material benefit or advantage in favor of an interested party, or
partakes of the nature of fraud. (Spiegel v Beacon Participations, 8 NE 2nd discriminating against another."
Series 895, 1007). It contemplates a state of mind affirmatively operating with
furtive design or some motive of self interest or ill will for ulterior purposes However, petitioner is not charged with a violation of Sec. 3[f].
(Air France v. Carrascoso, 18 SCRA 155, 166-167). Evident bad faith Hence, further disquisition is not proper. Neither may this Court convict
connotes a manifest deliberate intent on the part of the accused to do wrong petitioner under Sec. 3[f] without violating his constitutional right to due
or cause damage." process.
(Llorente v. Sandiganbayan)
In Jacinto, evident bad faith was not appreciated because the actions
taken by the accused were not entirely without rhyme or reason; he refused SUSPENSION (PREVENTIVE) OF
to release the complainant's salary because the latter failed to submit her LOCAL OFFICIALS SHALL ONLY
daily time record; he refused to approve her sick-leave application because BE FOR 60 DAYS
he found out that she did not suffer any illness; and he removed her name
from the plantilla because she was moonlighting during office hours. Such On the other hand, we find merit in petitioner's second assigned
actions were measures taken by a superior against an erring employee who error. The Sandiganbayan erred in imposing a 90 day suspension upon
studiously ignored, if not defied, his authority. (Llorente v. petitioner for the single case filed against him. Under Section 63 (b) of the
Sandiganbayan) Local Government Code, "any single preventive suspension of local elective
officials shall not extend beyond sixty (60) days."
(Rios v. Sandiganbayan; GR 129913, Set. 26, 1997)
WHEN OFFENDER IS NOT LIABLE UNDER
SEC. 3(e) BUT UNDER SEC. (f) OF RA 3019
APPROVAL OF LEAVE OF ABSENCE
It would appear that petitioner's failure or refusal to act on the NOT A BAR TO SUSPENSION
complainant's vouchers, or the delay in his acting on them more properly falls
under Sec. 3[f]: Since the petitioner is an incumbent public official charged in a valid
information with an offense punishable under the Constitution and the laws
"(f) Neglecting or refusing, after due demand or request, (RA 3019 and PD 807), the law's command that he "shall be suspended from
without sufficient justification, to act within a reasonable time on any office" pendente lite must be obeyed. His approved leave of absence is not a
matter pending before him for the purpose of obtaining, directly or bar to his preventive suspension for as indicated by the Solicitor General, an
indirectly, from any person interested in the matter some pecuniary approved leave, whether it be for a fixed or indefinite period, may be
or material benefit or advantage, or for purpose of favoring his own cancelled or shortened at will by the incumbent. (Doromal v. Sandiganbayan
interest or giving undue advantage in favor of or discriminating 177 SCRA 354)
against any other interested party."

Here, the neglect or refusal to act within a reasonable time is the UNDUE DELAY IN PRELIMINARY
criminal act, not the causing of undue injury. Thus, its elements are: INVESTIGATIONS VIOLATIVE OF
DUE PROCESS AND A GROUND TO DISMISS
"1) The offender is a public officer;
2) Said officer has neglected or has refused to act without sufficient After a careful review of the facts and circumstances of this case, we
justification after due demand or request has been made on him; are constrained to hold that the inordinate delay in terminating the
3) Reasonable time has elapsed from such demand or request without preliminary investigation and filing the information in the instant case is
the public officer having acted on the matter pending before him; and violative of the constitutionally guaranteed right of the petitioner to due
4) Such failure to so act is 'for the purpose of obtaining, directly or process and to a speedy disposition of the cases against him. Accordingly,
indirectly, from any person interested in the matter some pecuniary the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and

20
10503 should be dismissed. In view of the foregoing, we find it unnecessary circumstance in the crimes of rape (Article 335) and acts of lasciviousness
to rule on the other issues raised by petitioner. (Tatad v. Sandiganbayan) (Article 336). 57

If relationship in the instant case were to be appreciated under


Article 15 of the Revised Penal Code, the penalty imposable on accused
DEATH PENALTY LAW then would not be death, but merely reclusion perpetua for, assuming that
(RA 7659) Relanne's testimony in court would have confirmed what she narrated in her
sworn statement (Exhibit "C"), no circumstance then attended the
commission of the rape which could bring the crime under any provision of
PROSTITUTES CAN BE A VICTIM OF RAPE Article 335 which imposes a penalty higher than reclusion perpetua or of
reclusion perpetua to death. (People v. Manyuhod, Jr.)
As to the suggestion that ANALIZA was a prostitute, that alone, even
if it be conceded, cannot absolve him of his liability for rape. First, prostitutes WHEN OFFENDER IS STEP GRANDPARENT,
can be victims of rape. (People v. Alfeche) HE IS NOT CONSIDERED AN ASCENDANT
UNDER RA 8353 AND RA 7659

REASON WHY DWELLING The trial court has thus held incorrectly in considering appellant, who
IS AN AGGRAVATING CIRCUMSTANCE is legally married to Roxan's natural grandmother, as among those named in
the enumeration. Appellant is merely a step-grandparent who obviously is
Dwelling is considered an aggravating circumstance because neither an "ascendant" nor a "step-parent" of the victim. In the recent case of
primarily of the sanctity of privacy the law accords to human abode. The People vs. Atop, 24 the Court rejected the application of the mandatory death
dwelling need not be owned by the victim. Thus, in People v. Basa, dwelling penalty to the rape of a 12-year old victim by the common-law husband of the
was appreciated, although the victims were killed while sleeping as guests in girl's grandmother. The Court said:
the house of another. As aptly stated in People v. Balansit: "[O]ne does not
lose his right of privacy where he is offended in the house of another "It is a basic rule of statutory construction that penal
because as [an] invited guest [or a housemaid as in the instant case], he, the statutes are to be liberally construed in favor of the accused.
stranger, is sheltered by the same roof and protected by the same intimacy Court's must not bring cases within the provision of a law
of life it affords. It may not be his house, but it is, even for a brief moment, which are not clearly embraced by it. No act can be
"home" to him. He is entitled to respect even for that short moment." (People pronounced criminal which is not clearly made so by statute;
v. Alfeche) so, too, no person who is not clearly within the terms of a
statute can be brought within them. Any reasonable doubt
must be resolved in favor of the accused."
WHEN RELATIONSHIP IS NOT AN (People v. Deleverio)
ALTERNATIVE CIRCUMSTANCE
UNDER ART. 15 OF THE RPC

Clearly then, the father-daughter relationship in rape cases, or RECLUSION PERPETUA IS LIGHTER THAN LIFE IMPRISONMENT AND
between accused and Relanne, in this case, has been treated by Congress IF ONE IS SENTENCED TO LIFE IMPRISONMENT AND LATER THE
in the nature of a special circumstance which makes the imposition of the PENALTY OF RECLUSION PERPETUA WAS IMPOSED TO SAME
death penalty mandatory. Hence, relationship as an alternative circumstance OFFENSE, THE PENALTY THAT SHOULD BE IMPOSED IS RECLUSION
under Article 15 of the Revised Penal Code, appreciated as an aggravating PERPETUA
circumstance, should no longer be applied in view of the amendments
introduced by R.A. No. 7659. It may be pointed, however, that without the Since reclusion perpetua is a lighter penalty than life imprisonment,
foregoing amendment, relationship would still be an aggravating and considering the rule that criminal statutes with a favorable effect upon
the accused have, as to him, a retroactive effect, the penalty imposable upon

21
the accused should be reclusion perpetua and not life imprisonment. 'punishments are cruel when they involve torture or a lingering death, but the
(People v. Latura) punishment of death is not cruel, within the meaning of that word as used in
the constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life.'"
JUSTIFICATION FOR THE IMPOSITION
OF THE DEATH PENALTY “as long as that penalty remains in the statute books, and as long as
our criminal law provides for its imposition in certain cases, it is the duty of
Although its origins seem lost in obscurity, the imposition of death as judicial officers to respect and apply the law regardless of their private
punishment for violation of law or custom, religious or secular, is an ancient opinions," and this we have reiterated in the 1995 case of People v.
practice. We do know that our forefathers killed to avenge themselves and Veneracion. (People v. Echegaray)
their kin and that initially, the criminal law was used to compensate for a
wrong done to a private party or his family, not to punish in the name of the
state. DEATH PENALTY WAS NOT
ABOLISHED BUT MERELY SUSPENDED
The dawning of civilization brought with it both the increasing
sensitization throughout the later generations against past barbarity and the A reading of Section 19 (1) of Article III will readily show that there is
institutionalization of state power under the rule of law. Today every man or really nothing therein which expressly declares the abolition of the death
woman is both an individual person with inherent human rights recognized penalty. The provision merely says that the death penalty shall not be
and protected by the state and a citizen with the duty to serve the common imposed unless for compelling reasons involving heinous crimes the
weal and defend and preserve society. Congress hereafter provides for it and, if already imposed, shall be reduced
to reclusion perpetua. The language, while rather awkward, is still plain
One of the indispensable powers of the state is the power to secure enough". (People v. Echegaray)
society against threatened and actual evil. Pursuant to this, the legislative
arm of government enacts criminal laws that define and punish illegal acts
that may be committed by its own subjects, the executive agencies enforce DEFINITION OF HEINOUS CRIMES
these laws, and the judiciary tries and sentences the criminals in accordance
with these laws. ". . . the crimes punishable by death under this Act are heinous for
being grievous, odious and hateful offenses and which, by reason of their
Although penologists, throughout history, have not stopped debating inherent or manifest wickedness, viciousness, atrocity and perversity are
on the causes of criminal behavior and the purposes of criminal punishment, repugnant and outrageous to the common standards and norms of decency
our criminal laws have been perceived as relatively stable and functional and morality in a just, civilized and ordered society." (People v. Echegaray)
since the enforcement of the Revised Penal Code on January 1, 1932, this
notwithstanding occasional opposition to the death penalty provisions
therein. The Revised Penal Code, as it was originally promulgated, provided WHAT ARE THE CRIMES PUNISHABLE
for the death penalty in specified crimes under specific circumstances. As BY RECLUSION PERPETUA TO DEATH
early as 1886, though, capital punishment had entered our legal system UNDER RA 7659
through the old Penal Code, which was a modified version of the Spanish
Penal Code of 1870. (People v. Echegaray) Under R.A. No. 7659, the following crimes are penalized by reclusion
perpetua to death:

WHY DEATH PENALTY IS NOT (1) Treason (Sec. 2);


A CRUEL AND UNUSUAL PUNISHMENT (2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
"The penalty complained of is neither cruel, unjust nor excessive. In (4) Murder (Sec. 6);
Ex-parte Kemmler, 136 U.S., 436, the United States Supreme Court said that (5) Infanticide (Sec. 7);

22
(6) Kidnapping and serious illegal detention if attended by any of (22) Misappropriation, misapplication or failure to account
the following four circumstances: (a) the victim was detained dangerous drugs confiscated by the arresting officer (Sec.
for more than three days; (b) it was committed simulating 17);
public authority; (c) serious physical injuries were inflicted on (23) Planting evidence of dangerous drugs in person or immediate
the victim or threats to kill him were made; and (d) if the vicinity of another to implicate the latter (Sec. 19); and
victim is a minor, except when the accused is any of the (24) Carnapping where the owner, driver or occupant of the
parents, female or a public officer (Sec. 8); carnapped motor vehicle is killed or raped (Sec. 20)
(7) Robbery with homicide, rape or intentional mutilation (Sec. (People v. Echegaray)
9);
(8) Destructive arson if what is burned is (a) one or more
buildings or edifice; (b) a building where people usually
gather; (c) a train, ship or airplane for public use; (d) a WHAT ARE THE MANDATORY
building or factory in the service of public utilities; (e) a CRIMES PUNISHABLE BY MANDATORY
building for the purpose of concealing or destroying evidence DEATH PENALTY UNDER RA 7659
Or a crime; (f) an arsenal, fireworks factory, or government
museum; and (g) a storehouse or factory of explosive On the other hand, under R.A. No. 7659, the mandatory penalty of death is
materials located in an inhabited place; or regardless of what imposed in the following crimes:
is burned, if the arson is perpetrated by two or more persons
(Sec. 10); (1) Qualified bribery
(9) Rape attended by any of the following circumstances: (a) the
rape is committed with a deadly weapon; (b) the rape is "If any public officer is entrusted with law enforcement and he
committed by two or more persons; and (c) the rape is refrains from arresting or prosecuting an offender who has committed a crime
attempted or frustrated and committed with homicide (Sec. punishable by reclusion perpetua and/or death in consideration of any offer,
11); promise, gift or present, he shall suffer the penalty for the offense which was
(10) Plunder involving at least P50 million (Sec. 12); not prosecuted.
(11) Importation of prohibited drugs If it is the public officer who asks or demands such gift or present, he shall
(Sec. 13); suffer the penalty of death." (Sec. 4)
(12) Sale, administration, delivery, distribution, and transportation
of prohibited drugs (id.); (2) Kidnapping and serious illegal detention for ransom resulting in the
(13) Maintenance of den, dive or resort for users of prohibited death of the victim or the victim is raped, tortured or subjected to
drugs (id.); dehumanizing acts
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain specified "The penalty shall be death where the kidnapping or detention was
amounts (id.); committed for the purpose of ransom from the victim or any other person,
(16) Cultivation of plants which are sources of prohibited drugs even if none of the circumstances above-mentioned were present in the
(id.) commission of the offense.
(17) Importation of regulated drugs When the victim is killed or dies as a consequence of the detention
(Sec. 14); or is raped, or is subject to torture or dehumanizing acts, the maximum
(18) Manufacture of regulated drugs (id.); penalty [of death] shall be imposed." (Sec. 8)
(19) Sale, administration, dispensation, delivery, transportation,
and distribution of regulated drugs (id.); (3) Destructive arson resulting in death
(20) Maintenance of den, dive, or resort for users of regulated
drugs (Sec. 15); "If as a consequence of the commission of any of the acts penalized
(21) Possession or use of regulated drugs in specified amounts under this Article, death results, the mandatory penalty of death shall be
(Sec. 16); imposed." (Sec. 10)

23
(People v. Echegaray)
(4) Rape with the victim becoming insane, rape with homicide and
qualified
TWO INSTANCES WHEN DEATH MAY
"When by reason or on the occasion of the rape, the victim has BE IMPOSED WHEN CONSTRUED
become insane, the penalty shall be death. UNDER RA 7659

xxx xxx xxx Thus, construing R.A. No. 7659 in pari materia with the Revised
Penal Code, death may be imposed when (1) aggravating circumstances
The death penalty shall also be imposed if the crime of rape is committed attend the commission of the crime as to make operative the provision of the
with any of the following attendant circumstances: Revised Penal Code regarding the imposition of the maximum penalty; and
(2) other circumstances attend the commission of the crime which indubitably
1. when the victim is under eighteen (18) years of age and the characterize the same as heinous in contemplation of R.A. No. 7659 that
offender is a parent, ascendant, step-parent, guardian, relative by justify the imposition of the death, albeit the imposable penalty is reclusion
consanguinity or affinity within the third civil degree, or the common- perpetua to death. (People v. Echegaray)
law spouse of the parent or the victim.
2. when the victim is under the custody of the police or military
authorities. WHY DEATH PENALTY
3. when the rape is committed in full view of the husband, IS IMPOSED ON HEINOUS CRIMES
parent, any of the children or other relatives within the third degree of
consanguinity. The death penalty is imposed in heinous crimes because the
4. when the victim is a religious or a child below seven (7) perpetrators thereof have committed unforgivably execrable acts that have
years old so deeply dehumanized a person or criminal acts with severely destructive
5. when the offender knows that he is afflicted with Acquired effects on the national efforts to lift the masses from abject poverty through
Immune Deficiency Syndrome (AIDS) disease. organized governmental strategies based on a disciplined and honest
6. when committed by any member of the Armed Forces of the citizenry, and because they have so caused irreparable and substantial injury
Philippines or the Philippine National Police or any law enforcement to both their victim and the society and a repetition of their acts would pose
agency. actual threat to the safety of individuals and the survival of government, they
7. when by reason or on the occasion of the rape, the victim must be permanently prevented from doing so. At any rate, this court has no
has suffered permanent physical mutilation." (Sec. 11 ) doubts as to the innate heinousness of the crime of rape, as we have held in
the case of People v. Cristobal. (People v. Echegaray)
(5) In all the crimes in RA. No. 7659 in their qualified form

"When in the commission of the crime, advantage was taken by the WHY RAPE IS A HEINOUS CRIME
offender of his public position, the penalty to be imposed shall be in its
maximum [of death] regardless of mitigating circumstances. "Rape is the forcible violation of the sexual intimacy of another
person. It does injury to justice and charity. Rape deeply wounds the respect,
The maximum penalty [of death] shall be imposed if the offense was freedom, and physical and moral integrity to which every person has a right.
committed by any person who belongs to an organized/syndicated crime It causes grave damage that can mark the victim for life. It is always an
group. intrinsically evil act . . . an outrage upon decency and dignity that hurts not
only the victim but the society itself." (People v. Echegaray)
An organized/syndicated crime group means a group of two or more
persons collaborating, confederating or mutually helping one another for
purposes of gain in the commission of any crime." (Sec. 23) include those in
R.A. 7165

24
WHY CAPITAL PUNISHMENT harsh, unwise or morally wrong, and may recommend to the authority or
SHOULD NOT BE ABOLISHED department concerned, its amendment, modification, or repeal, still, as long
as said law is in force, they must apply it and give it effect as decreed by the
"Capital punishment ought not to be abolished solely because it is law-making body. (People v. Veneracion)
substantially repulsive, if infinitely less repulsive than the acts which invoke it.
Yet the mounting zeal for its abolition seems to arise from a sentimentalized REASON FOR DURATION OF
hyperfastidiousness that seeks to expunge from the society all that appears RECLUSION PERPETUA
harsh and suppressive. If we are to preserve the humane society we will OF 30 OR 40 YEARS
have to retain sufficient strength of character and will to do the unpleasant in
order that tranquillity and civility may rule comprehensively. It seems very The imputed duration of thirty (30) years for reclusion perpetua,
likely that capital punishment is a . . . necessary, if limited factor in that therefore, is only to serve as the basis for determining the convict's eligibility
maintenance of social tranquillity and ought to be retained on this ground. To for pardon or for the application of the three-fold rule in the service of multiple
do otherwise is to indulge in the luxury of permitting a sense of false delicacy penalties. (People v. Lucas)
to reign over the necessity of social survival." (People v. Echegaray)
ROBBERY WITH HOMICIDE, NUMBER OF PERSONS KILLED DOES
NOT ALTER CHARACTERIZATION OF THE OFFENSE
RA 6425 AS AMENDED BY RA 7659 BUT CAN BE APPRECIATED AS AGGRAVATING CIRCUMSTANCE.
WHEN PENALTY IN NEW LAW NOT FAVORABLE
TO ACCUSED IT SHOULD BE RETAINED While the number of persons killed does not alter the
characterization of the offense as robbery with homicide, the multiplicity of
Appellant in this case was convicted and meted the penalty of life the victims slain should have been appreciated as an aggravating
imprisonment and fine of twenty thousand pesos under RA 6425 for circumstance. This would preclude an anomalous situation where, from the
transporting more or less 6 kilos of marijuana on July 1990. RA 7659, which standpoint of the gravity of the offense, robbery with one killing would be
took effect on December 31/93, amended the provisions of RA 6425, treated in the same way that robbery with multiple killings would be. (People
increasing the imposable penalty for the sale or transport of 750 grams or V. Timple)
more of marijuana to reclusion perpetua to death and a fine ranging from five
hundred thousand pesos to ten million pesos. Such penalty is not favorable
to the appellant as it carries the accessory penalties provided under the RPC ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE; PROVISION
and has a higher amount of fine which in accordance with ART 22 of the OF ARTICLE 294 OF THE REVISED PENAL CODE AS AMENDED BY
same code should not be given retroactive effect. The court, therefore, finds REPUBLIC ACT 7659 CANNOT BE APPLIED RETROACTIVELY; CASE
and so holds that the penalty of life imprisonment and fine in the amount of AT BAR.
twenty thousand pesos correctly imposed by the trial court should be
retained. (PP v Carreon, 12/9/97)
Under Article 294 (1) of the Revised Penal Code, robbery with
COURTS SHOULD NOT BE CONCERNED homicide is punishable by reclusion perpetua to death. In view, however, of
ABOUT WISDOM, EFFICACY OR MORALITY the first paragraph of Section 19, Article III of the 1987 Constitution, which
OF LAWS provides that: "Sec. 19. (1) Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither shall death penalty be
It is a well settled rule that the courts are not concerned with the imposed, unless, for compelling reasons involving heinous crimes, the
wisdom, efficacy or morality of laws. That question falls exclusively within the Congress hereafter provides for it. Any death penalty already imposed shall
province of the Legislature which enacts them and the Chief Executive who be reduced to reclusion perpetua" (Emphasis supplied) only the penalty of
approves or vetoes them. The only function of the judiciary is to interpret the reclusion perpetua could be imposed by the trial court. Hence, the attended
laws and, if not in disharmony with the Constitution, to apply them. And for aggravating circumstances in this case had no impact upon the
the guidance of the members of the judiciary we feel it incumbent upon us to determination of the proper penalty by the trial court. By Republic Act No.
state that while they as citizens or as judges may regard a certain law as 7659 (effective 31 December 1993), Congress re-imposed the death penalty

25
for certain heinous crimes, including robbery with homicide and robbery with Actual detention or "locking up" is the primary element of kidnapping.
rape. By the same statute, Article 294 of the Revised Penal Code was If the evidence does not adequately prove this element, the accused cannot
amended to read as follows: "Any person guilty of robbery with the use of be held liable for kidnapping. In the present case, the prosecution merely
violence against or intimidation on any person shall suffer: 1. The penalty of proved that appellant forcibly dragged the victim toward a place only he
reclusion perpetua to death, when by reason or on occasion of the robbery, knew. There being no actual detention or confinement, the appellant may be
the crime of homicide shall have been committed, or when the robbery shall convicted only of grave coercion.
have been accompanied by rape or intentional mutilation or arson. . . .
(Emphasis supplied) Article 294 of the Revised Penal Code, as amended by (People -vs- Astorga; GGR 110097, December 22, 1997)
R.A. No. 7659, however, cannot be applied retroactively in this case. To do
so would be to subject the appellant to the death penalty which could not
have been constitutionally imposed by the court a quo under the law in effect
at the time of the commission of the offenses. (People v. Timple) DANGEROUS DRUGS ACT OF 1972 (R.A. NO. 6425); SECTIONS 15 AND
20 THEREOF AS AMENDED BY R.A. NO. 7659.

A PERSON MAY BE CONVICTED OF In People vs. Martin Simon y Sunga, (G.R. No. 93028), decided on
GRAVE COERCION ALTHOUGH 29 July 1994, this Court ruled as follows: (1) Provisions of R.A. No. 7659
THE CHARGE IS KIDNAPPING which are favorable to the accused shall be given retroactive effect pursuant
to Article 22 of the Revised Penal Code. (2) Where the quantity of the
The Information, dated March 24, 1992, filed against Astorga dangerous drug involved is less than the quantities stated in the first
contains sufficient allegations constituting grave coercion, the elements of paragraph of Section 20 of R.A. No. 6425, the penalty to be imposed shall
which were sufficiently proved by the prosecution. Hence, a conviction for range from prision correccional to reclusion temporal, and not reclusion
said crime is appropriate under Section 4, Rule 120 of the 1988 Rules on perpetua. The reason is that there is an overlapping error, probably through
Criminal Procedure. oversight in the drafting, in the provisions on the penalty of reclusion
(People -vs- Astorga) perpetua as shown by its dual imposition, i.e., as the minimum of the penalty
where the quantity of the dangerous drugs involved is more than those
ELEMENTS OF GRAVE COERCION specified in the first paragraph of the amended Section 20 and also as the
maximum of the penalty where the quantity of the dangerous drugs involved
Grave Coercion or coaccion grave has three elements: is less than those so specified in the first paragraph. (3) Considering that the
aforesaid penalty of prision correccional to reclusion temporal shall depend
a. That any person is prevented by another from doing something not upon the quantity of the dangerous drugs involved, each of the component
prohibited by law, or compelled to do something against his or her will, be it right or penalties thereof — prision correccional, prision mayor, and reclusion
wrong; temporal — shall be considered as a principal imposable penalty depending
on the quantity, such that the quantity of the drugs enumerated in the second
b. That the prevention or compulsion is effected by violence, either by paragraph should then be divided into three, with the resulting quotient, and
material force or such a display of it as would produce intimidation and, double or treble the same, as the bases for determining the appropriate
consequently, control over the will of the offended party; and component penalty. (4) The modifying circumstances in the Revised Penal
Code may be appreciated to determine the proper period of the
c. that the person who restrains the will and liberty of another has no right corresponding imposable penalty or even to effect its reduction by one or
to do so or, in other words, that the restraint is not made under authority of a law or in more degrees; provided, however, that in no case should such graduation of
the exercise of any lawful right. penalties reduce the imposable penalty lower than prision correccional. (5) In
(People -vs- Astorga) appropriate instances, the Indeterminate Sentence Law shall be applied and
considering that R.A. No. 7659 has unqualifiedly adopted the penalties under
ACTUAL DETENTION OR LOCKING UP, AN ESSENTIAL ELEMENT OF the Revised Penal Code with their technical signification and effects, then the
KIDNAPPING crimes under the Dangerous Drugs Act shall now be considered as crimes
punished by the Revised Penal Code; hence, pursuant to Section 1 of the

26
Indeterminate Sentence Law, the indeterminate penalty which may be
imposed shall be one whose maximum shall be within the range of the Moreover, under the present rule, for the accused to continue his
imposable penalty and whose minimum shall be within the range of the provisional liberty on the same bail bond during the period to appeal, consent
penalty next lower in degree to the imposable penalty. With the foregoing as of the bondsman is necessary. From the record, it appears that the
our touchstones, and it appearing that the quantity of the shabu recovered bondsman, AFISCO Insurance Corporation, filed a motion in the trial court
from the accused in this case is only 0.0958 gram, the imposable penalty on January 06, 1987 for the cancellation of petitioners' bail bond for the
under the second paragraph of Section 20 of R.A. No. 6425, as further latter's failure to renew the same upon its expiration. Obtaining the consent
amended by Section 17 of R.A. No. 7659, should be prision correccional. of the bondsman was, thus, foreclosed. ( Aniceto Sabbun Maguddatu and
Applying the Indeterminate Sentence Law, the accused may then be Laureana Sabbun Maguddatu, Petitioners, -vs- Honorable COURT OF
sentenced to suffer an indeterminate penalty ranging from six (6) months of APPEALS (Fourth Division and People of the Philippines, Respondents.
arresto mayor as minimum to six (6) years of prision correccional as G.R. No. 139599, Feb. 23, 2000)
maximum.
WHEN ABUSE OF SUPERIOR STRENGTH IS PRESENT.
WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED THEFT. (STRAY
DECISION) We find, however, that the aggravating circumstance of abuse of
superior strength attended the killing. "To appreciate abuse of superior
In this case, the stolen property is a Yamaha RS motorcycle bearing strength as an aggravating circumstance, what should be considered is not
plate no. CZ-2932 with sidecar valued at P30,000.00. Since this value that there were three, four or more assailants of one victim, but whether the
remains undisputed, we accept this amount for the purpose of determining aggressors took advantage of their combined strength in order to
the imposable penalty. In simple theft, such amount carries the consummate the offense. It is therefore necessary to show that the attackers
corresponding penalty of prision mayor in its minimum and medium periods cooperated in such a way as to secure advantage of their superiority in
to be imposed in the maximum period. Considering that the penalty for strength."
qualified theft is two degrees higher than that provided for simple theft, the
penalty of prision mayor in its minimum and medium periods must be raised In this case, appellants and their companions purposely gathered
by two degrees. Thus, the penalty prescribed for the offense committed of together and armed themselves to take advantage of their combined strength
qualified theft of motor vehicle is reclusion temporal in its medium and to ensure that Reynaldo Danao would be able to kill the victim without any
maximum periods to be imposed in its maximum period. (PP -vs- Ricardo interference from other bystanders.
Dela Cruz alias Pawid, Manuel dela Cruz alias Pawid, Danilo Dela Cruz and
John Doe alias Henry Balintawak and Orlando Padilla y Mendoza, Accused. However, not having been alleged in the Information, abuse of
RICARDO DELA CRUZ alias Pawid, Accused-Appellant. G.R. No. 125936 superior strength can only be considered as a generic aggravating
Feb. 23, 2000 ) circumstance. (PP -vs- CIELITO BULURAN Y RAMIREZ and LEONARDO
VALENZUELA Y CASTILLO, Accused-Appellants. G.R. No. 113940, Feb.
PERIOD WHEN BAIL IS EFFECTIVE AFTER CONVICTION IN LOWER 15, 2000)
COURTS

The bail bond that the accused previously posted can only be used USE OF MOTOR VEHICLE AS QUALIFYING AGGRAVATING
during the 15-day period to appeal (Rule 122) and not during the entire CIRCUMSTANCE
period of appeal. This is consistent with Section 2(a) of Rule 114 which
provides that the bail "shall be effective upon approval and remain in force at The use of a motor vehicle qualifies the killing to murder if the same
all stages of the case, unless sooner cancelled, until the promulgation of the was perpetrated by means thereof. (PP -vs- THADEOS ENGUITO
judgment of the Regional Trial Court, irrespective of whether the case was Defendant-Appellant. G.R. 128812, Feb. 28, 2000)
originally filed in or appealed to it." This amendment, introduced by SC
Administrative Circular 12-94 is a departure from the old rules which then
provided that bail shall be effective and remain in force at all stages of the ELEMENTS OF EVIDENT PREMEDITATION
case until its full determination, and thus even during the period of appeal.

27
(1) The time when the offender determined to commit the crime; (2) Moreover, Milyn Ruales also testified that the knife used by accused
an act manifestly indicating that the offender had clung to his determination; was hidden from view. Thus, Isabel Ruales was not prepared for such a
and (3) sufficient lapse of time between the determination and the execution violent attack, especially considering that, at the time, she was unarmed and
to allow the offender to reflect on the consequences of his act. (PP -vs- was burdened with a large basket filled with about six kilos of corn and dried
ROGELIO GALAM, Accused-Appellant. G.R. No. 114740, Feb. 15, 2000) fish hanging from her shoulders and thus, could not have possibly warded off
the blow or run away from her assailant. Although Milyn Ruales described
the attack having been frontal, this does not negate treachery since the
WHEN NIGHTTIME IS AGGRAVATING essence of treachery is the suddenness and unexpectedness of the attack,
giving the victim no opportunity to repel it or offer any defense of his person.
Nighttime as an aggravating circumstance must have specially been Thus, we hold that the trial court correctly appreciated the qualifying
sought to consummate the crime, facilitate its success or prevent recognition circumstance of treachery. (PP -vs- CORNELIA SUELTO alias "ELY" alias
of the felon. (PP -vs- CONSTANCIO MERINO and ARNULFO SIERVO, "ROGELIA SUELTO", G.R. No. 126097, Feb. 8, 2000)
Accused-Appellants. G.R. No. 132329, Dec. 17, 1999)

DATE OF EFFECTIVITY OF RA 7659, ETC.


TREACHERY IS PRESENT ON SECOND STAGE OF ACCIDENT
Republic Act No. 7659 took effect on 31 December 1993.
There is treachery when the offender commits any of the crimes Accordingly, the said law only applies to crimes defined therein, including
against the person employing means, methods or forms in the execution rape, which were committed after its effectivity. It cannot be applied
thereof which tend directly and specifically to insure its execution without risk retroactively because, to do so, would go against the constitutional
to himself arising form the defense which the offended party might make. As prohibition on ex post facto laws. For this reason, in order for the death
earlier mentioned, the deceased was already rendered completely helpless penalty to be imposable, it is incumbent upon the prosecution to establish
and defenseless when he was stabbed by Pedro Lumacang. Although he beyond a shadow of doubt that the case of the accused is already covered
was able to run a short distance, he had absolutely no means of defending by Republic Act No. 7659.
himself from the three brothers who were armed with hunting knives, bent on
finishing him off. The wounded victim had not even so much as a stick or a AN EX POST FACTO LAW HAS BEEN DEFINED AS ONE WHICH
stone to parry off their blows. It should be noted, however, at this point that
inasmuch as treachery has been appreciated as a qualifying circumstance, (a) makes criminal an act before the passage of the law and which was
abuse of superior strength should not have been considered separately innocent when done, and punishes such an act;
inasmuch as it is absorbed in treachery. (PP -vs- PEDRO LUMACANG,
PABLO LUMACANG and DOMINGO LUMACANG, Accused-Appellants. (b) aggravate a crime, or makes it greater than it was, when committed;
G.R. No. 120283, Feb. 1, 2000)
(c) changes the punishment and inflicts a greater punishment than the
law annexed to the crime when committed;
WHY DWELLING IS AGGRAVATING
(d) alters the legal rules of evidence, and authorizes conviction upon
"The home is a sort of sacred place for its owner. He who goes to less or different testimony than the law required at the time of the commission of the
another's house to slander him, hurt him or do him wrong, is more guilty than offense;
he who offends him elsewhere." (PP -vs- JOSE & NESTOR BiñAS,
Accused-Appellant. G.R. No. 121630, Dec. 8, 1999) (e) assuming to regulate civil rights and remedies only, in effect imposes
penalty or deprivation of a right for something which when done was lawful; and
EVEN FRONTAL ATTACK WOULD AMOUNT TO TREACHERY
(f) deprives person accused of a crime of some lawful protection to
which he has become entitled, such as the protection of a former conviction or

28
acquittal, or a proclamation of amnesty. (PP -vs- CHARITO ISUG MAGBANUA, "The same penalty shall be imposed upon the owner,
G.R. No. 128888, Dec. 3, 1999) president, manager, director or other responsible officer of any public
or private firm, company, corporation or entity, who shall willfully or
knowingly allow any of the firearms owned by such firm, company,
corporation or entity to be used by any person or persons found
ILLEGAL POSSESSION OF FIREARMS guilty of violating the provisions of the preceding paragraphs or
(REPUBLIC ACT NO. 8294) willfully or knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of their
residence in the course of their employment.
SECTION 1. Section 1 Presidential Decree No. 1866, as amended, is
hereby further amended to read as follows: "The penalty of arresto mayor shall be imposed upon any
person who shall carry any licensed firearm outside his residence
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, without legal authority therefore."
Disposition or Possession of Firearms or Ammunition or Instruments
Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. — The penalty of prision correccional in its maximum SECTION 2. Section 3 of Presidential Decree No. 1866, as amended, is
period and a fine of not less than Fifteen thousand pesos (P15,000) hereby further amended to read as follows:
shall be imposed upon any person who shall unlawfully manufacture,
deal in, acquire, dispose, or possess any low powered firearm, such "SECTION 3. Unlawful Manufacture, Sale, Acquisition,
as rimfire handgun, .380 or .32 and other firearm of similar firepower, Disposition or Possession of Explosives. — The penalty of prision
part of firearm, ammunition, or machinery, tool or instrument used or mayor in its maximum period to reclusion temporal and a fine of not
intended to be used in the manufacture of any firearm or less than Fifty thousand pesos (P50,000) shall be imposed upon any
ammunition: Provided, That no other crime was committed. person who shall unlawfully manufacture, assemble, deal in, acquire,
dispose or possess hand grenade(s), rifle grenade(s), and other
"The penalty of prision mayor in its minimum period and a explosives, including but not limited to 'pillbox,' 'molotov cocktail
fine of Thirty thousand pesos (P30,000) shall be imposed if the bombs,' 'fire bombs,' or other incendiary devices capable of
firearm is classified as high powered firearm which includes those producing destructive effect on contiguous objects or causing injury
with bores bigger in diameter than .38 caliber and 9 millimeter such or death to any person.
as caliber .40, .41, .44, .45 and also lesser calibered firearms but
considered powerful such as caliber .357 and caliber .22 center-fire "When a person commits any of the crimes defined in the
magnum and other firearms with firing capability of full automatic and Revised Penal Code or special laws with the use of the
by burst of two or three: Provided, however, That no other crime was aforementioned explosives, detonation agents or incendiary devices,
committed by the person arrested. which results in the death of any person or persons, the use of such
explosives, detonation agents or incendiary devices shall be
"If homicide or murder is committed with the use of an considered as an aggravating circumstance.
unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance. "If the violation of this Section is in furtherance of, or incident
to, or in connection with the crime of rebellion, insurrection, sedition
"If the violation of this Section is in furtherance of or incident or attempted coup d'etat, such violation shall be absorbed as an
to, or in connection with the crime of rebellion or insurrection, element of the crimes of rebellion, insurrection, sedition or attempted
sedition, or attempted coup d'etat, such violation shall be absorbed coup d'etat.
as an element of the crime of rebellion, or insurrection, sedition, or
attempted coup d'etat. "The same penalty shall be imposed upon the owner,
president, manager, director or other responsible officer of any public
or private firm, company, corporation or entity, who shall willfully or

29
knowingly allow any of the explosives owned by such firm, company, The essence of the crime of illegal possession is the possession,
corporation or entity, to be used by any person or persons found whether actual or constructive, of the subject firearm, without which there can
guilty of violating the provisions of the preceding paragraphs." be no conviction for illegal possession.

After possession is established by the prosecution, it would only be a


SECTION 3. Section 5 of Presidential Decree No. 1866, as amended, is matter of course to determine whether the accused has a license to possess
hereby further amended to read as follows: the firearm. (People v. Bansil, 304 SCRA 384)

"SECTION 5. Tampering of Firearm's Serial Number. — Possession of any firearm becomes unlawful only if the necessary
The penalty of prision correccional shall be imposed upon any permit or license therefore is not first obtained. The absence of license and
person who shall unlawfully tamper, change, deface or erase the legal authority constitutes an essential ingredient of the offense of illegal
serial number of any firearm." possession of firearm and every ingredient or essential element of an offense
must be shown by the prosecution by proof beyond reasonable doubt. Stated
otherwise, the negative fact of lack or absence of license constitutes an
SECTION 4. Section 6 of Presidential Decree No. 1866, as amended, is essential ingredient of the offense which the prosecution has the duty not
hereby further amended to read as follows: only to allege but also to prove beyond reasonable doubt. (People v. Khor,
307 scra 295)
"SECTION 6. Repacking or Altering the Composition of
Lawfully Manufactured Explosives. — The penalty of prision "To convict an accused for illegal possession of firearms and
correccional shall be imposed upon any person who shall unlawfully explosives under P.D. 1866, as amended, two (2) essential elements must
repack, alter or modify the composition of any lawfully manufactured be indubitably established, viz: (a) the existence of the subject firearm or
explosives." explosive which may be proved by the presentation, of the subject firearm or
explosive or by the testimony of witnesses who saw accused in possession
of the same, and (b) the negative fact that the accused had no license or
permit to own or possess the firearm or explosive which fact may be
SECTION 5. Coverage of the Term Unlicensed Firearm. — The term established by the testimony or certification of a representative of the PNP
unlicensed firearm shall include: Firearms and Explosive Unit that the accused has no license or permit to
possess the subject firearm or explosive." (Del Rosario v. People, 05/31/01)
1) firearms with expired license; or
2) unauthorized use of licensed firearm in the commission of We stress that the essence of the crime penalized under P.D. 1866
the crime. is primarily the accused's lack of license or permit to carry or possess the
firearm, ammunition or explosive as possession by itself is not prohibited by
law. (People v. Cortez, 324 scra 335, 344)
RULE ON ILLEGAL POSSESSION OF FIREARMS BEFORE AN
ACCUSED Illegal possession of firearm is a crime punished by special law, a
MAYBE CONVICTED malum prohibitum, and no malice or intent to commit a crime need be
proved. (People v. Lubo, 101 Phil. 179) To support a conviction, however,
In crimes involving illegal possession of firearm, the prosecution has there must be possession coupled with intent to possess (animus
the burden of proving the elements thereof, viz: possidendi) the firearm. (Supra)

a. the existence of the subject firearm; and


PRESENT MEANING OF ILLEGAL
b. the fact that the accused who owned or possessed it does not POSSESSION OF FIREARM
have the license or permit to possess the same. (People v. Castillo, 325 SCRA 613)

30
Unlicensed firearm no longer simply means a firearm without a license duly A law may, of course, be enacted making use of an unlicensed firearm as a
issued by lawful authority. The scope of the term has been expanded in Sec.5 of qualifying circumstance.” (People v. Molina; GR 115835-36, July 22, 1998)
R.A. 8294.

Thus, the unauthorized use of a weapon which has been duly licensed in the NEW PENALTY FOR LOW POWERED
name of its owner/possessor may still aggravate the resultant crime. In the case at FIREARM IN ILLEGAL POSSESSION
bar, although appellants may have been issued their respective licenses to possess OF FIREARMS
firearms, their carrying of such weapons outside their residences and their
unauthorized use thereof in the killing of the victim may be appreciated as an Petitioner, fortunately for him, is nonetheless not entirely bereft of
aggravating circumstance in imposing the proper penalty for murder. (Pp. V. Molina; relief. The enactment and approval on 06 Jun 1997 of RA 8294, being
Gr 115835-36; July 22, 1998) favorable to him, should now apply. Under this new law, the penalty for
possession of any low powered firearm is only prision correccional in its
maximum period and a fine of not less than P15,000.00.
ILLEGAL POSSESSION OF FIREARM ONLY
SPECIAL AGGRAVATING CIRCUMSTANCE Applying the Indeterminate Sentence Law, the present penalty that
IN CRIMES OF HOMICIDE AND MURDER. may be imposed is anywhere from two years, four months and one day to
four years and two months of prision correccional in its medium period, as
Where murder or homicide was committed, the separate penalty for minimum, up to anywhere from four years, two moths and one day to six
illegal possession shall no longer be meted out since it becomes merely a special years of prision correccional in its maximum period, as maximum.. The court
aggravating circumstance. in addition, may impose a fine consistent with the principle that an appeal in
a criminal case throws the whole case open for review by the appellate
This statutory amendment may have been an offshoot of our tribunal. (Mario Rabaja v CA, et al., Oct 8/97)
remarks in Pp. V. Tac-an and Pp. V. Quijada :

“Neither is the 2nd paragraph of Sec.1 meant to punish homicide or ACTS PUNISHABLE:
murder with death if either crime is committed with the use of an
unlicensed firearm, i.e., to consider such use merely as a 1. “upon any person who shall unlawfully manufacture, deal in, acquire,
qualifying circumstance and not as an offense. That could not dispose, or possess any low powered firearm, such as rimfire handgun, .380
have been the intention of the lawmaker because the term or .32 and other firearm of similar firepower, part of firearm, ammunition, or
“penalty” in the subject provision is obviously meant to be the machinery, tool or instrument used or intended to be used in the manufacture
penalty for illegal possession of firearm and not the penalty for of any firearm or ammunition”
homicide or murder. We explicitly stated in Tac-an :
2. "If homicide or murder is committed with the use of an unlicensed
There is no law which renders the use of an unlicensed firearm as firearm, such use of an unlicensed firearm shall be considered as an
an aggravating circumstance in homicide or murder. Under an aggravating circumstance.”
information charging homicide or murder, the fact that the death
weapon was an unlicensed firearm cannot be used to increase the 3. "If the violation of this Section is in furtherance of or incident to, or in
penalty for the 2nd offense of homicide or murder to death (or connection with the crime of rebellion or insurrection, sedition, or attempted
reclusion perpetua under the 1987 Constitution). The essential coup d'etat, such violation shall be absorbed as an element of the crime of
point is that the unlicensed character or condition of the instrument rebellion, or insurrection, sedition, or attempted coup d'etat.”
used in destroying human life or committing some other crime, is
not included in the inventory of aggravating circumstances set out 4. "The same penalty shall be imposed upon the owner, president, manager,
in Article 14 of the Revised Penal Code. director or other responsible officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly allow any of the firearms
owned by such firm, company, corporation or entity to be used by any person

31
or persons found guilty of violating the provisions of the preceding officers alone of a firearm in the baggage or gloves
paragraphs or willfully or knowingly allow any of them to use unlicensed compartment of a car will not necessarily be sufficient to
firearms or firearms without any legal authority to be carried outside of their sustain a conviction of the car owner or driver. Essential to
residence in the course of their employment.” the legal concept of “possession” in illegal possession
cases is animus possidendio. (People v. de la Rosa,
5. “The penalty of arresto mayor shall be imposed upon any person supra; People v. Sayang, 110 Phil 565).
who shall carry any licensed firearm outside his residence without legal
authority therefore” 1.3. How is animus possidendi established? These must
be proved either by direct or circumstantial evidence of
6. “Any person who shall unlawfully tamper, change, deface or erase the “intent” of the accused to possess, or to keep the
the serial number of any firearm”. firearm.
a.) Animus Possidendi is determined by recourse to overt acts
7. “Any person who shall unlawfully repack, alter or modify the prior to or simultaneous with possession and other
composition of any lawfully manufactured explosives”. surrounding circumstances. (People v. de la Rosa) when it
is established that the accused purchased the weapon in
question, a good case for animus possidendi is made.
CRIME OF ILLEGAL POSSESSION OF FIREARM b.)Animus possidendi may also be inferred from the fact that an
MALUM PROHIBITUM unlicensed firearms was under the apparent control and
power of the accussed. (People v. Verches, 33 SCRA 174)
The offense of illegal possession of firearm is a malum prohibitum c.) People v. de Guzman, G.R. 117952-53 (February 14, 2001)
punished by a special law, in which case good faith and absence of criminal holds that the “gravamen” for the offense of violation of
intent are not valid defenses. (People v De Gracia, 7/6/94) P.D.1866 is the possession of firearm without the
necessary permit and/or license. “The crime is immediately
1. Manufacture, deal in, acquire, dispose or possess. It is these acts consummated upon mere possession of a firearm devoid of
relative to firearms. The obvious underlying principle is the undesirability of the legal authority, since it is assumed that the same is possed
proliferation of firearms and their free traffic and possession. This is clear from the with “animus possidendi” Does it then follow that everyone
first two “whereas” clause of P.D. 1866. It is then clear that illegal possession, etc. is found with the firearm is in “possession” thereof for the
a malum prohibitum. For purpose of simplicity we will confine our analysis to purpose of prosecution and conviction under P.D. 1866 as
“possession”, although what we will discuss hereunder applies to manufacture, amended by R.A. 8294? The results would be patently
dealing in, acquiring or disposing as well. absurd.

1.1. it is not correct to say without qualification that “intent” is i. A person who finds a firearms and takes it with him to
the police station for the purpose of turning it over to
immaterial. Intent as to possession is immaterial.
the police should be commended, rather than
Intention to possess is material. Whatever the purpose
prosecuted.
of the possession may be is consistently immaterial. That
one was in possession of an unlicensed firearms merely ii. A person who is stopped at a check-point at which it
for one’s protection without intending harm on anybody is is discovered that there is firearms – placed either
a fruitless defense. It is the clear doctrine of such cases as advertently or inadvertently in his baggage
People v. de la Rosa, 284 SCRA 158 that “mere compartment without his knowledge - cannot be
possession without criminal intent is sufficient on which to held liable for illegal possession.
render a judgment of conviction”. iii. If the offender was in possession of an unlicensed
1.2. HOWEVER, possession must be established beyond only on the occasion of the shooting for transitory
reasonable doubt, and in view of the special meaning purpose and for the short moment in connection with
that “possession” has in criminal law, discovery by police, the shooting, the Supre Court held in People v.

32
Macasling, 237 SCRA 299 that there was no outside his residence when he has no permit to carry it outside his residence
evidence of “animus possidendi”. (Pastrano v. Court of Appeals, 281 SCRA 287). A fortiori, the use of a
iv. It then appears to be the more reasonable position licensed firearm by one not licensed or permitted to use it would still be illegal
that where a person is apprehended with an possession.
unlicensed weapon, animus possidendi will be
disputably presumed. The accused may controvert ILLEGAL POSSESSION BUT IN GOOD FAITH:
the presumption of animus possidendi. To convict,
the court needs proof beyond reasonable doubt of A security guard employed by a security agency and issued a
animus possidendi. firearm by the agency has the right to assume that the firearm issued to him
is a licensed firearm. If it turns out that the firearm is not licensed, there is no
animus possidendi of an unlicensed firearm. (Cuenco v. People, 33 SCRA
WHAT THE PROSECUTION MUST PROVE IN CASES OF ILLEGAL 522).
POSSESSION OF FIREARMS.
1.4 What the prosecution must prove for it to succeed under the law
is two-fold: first, the existence of the firearm; second, the A PERSON WHO ACCEPTS A FIREARM FOR SAFEKEEPING
absence of a license or a permit to possess. (People v. Rugay, MAYBE HELD LIABLE IF HE CARRIES THE SAME.
291 SCRA 692)
The case is obviously different, however, if a police officer leaves
a.) To prove the existence of the firearm, it is not absolutely with a cousin for safekeeping his firearm. The cousin knows fully well that he
necessary that the object evidence be presented. It is very has no permit or authority to keep the firearm. If he accepts to do this favor,
well possible that the accused effectively conceals the weapon he is indictable. (People v. Sayong, 110 Phil 565)
before his apprehension. Incontrovertible testimonial evidence
may successfully established the existence of the firearm.
(People v. Narvasa, G.R. 132878 [November 16, 1998]), ILLEGAL POSSESSION OF FIREARM MAYBE PROVEN

b.) An interesting question arises. The present law makes Provided no other crime is committed. It is this proviso in the
penalties depend on the caliber of the firearm, i.e, on whether amendatory law that has visited countless woes on numerous judges and
it is high-powered or low-powered In People v. Gutierrez, G.R. has occasioned not easily reconcilable decisions by the Supreme Court .it is
132878 (January 18, 1999) the Supreme Court ruled that a obviously a case of not only poor but miserable draftsmanship!
U.S. carbine M1 caliber .30 was high-powered because it was
capable of ejecting more than one bullet in one squeeze. If it is 2.1 It is clear that where there is no other offense except the unlawful
the criterion, then logically, caliber can be established by possession of a firearm, the penalties provided for in the amended
testimony establishing the manner in which the firearm ejected Section 1 shall be imposed: prision correccional in its maximum
bullets. The distinguishing features of particularly firearms, period for low-powered firearms, and prision mayor in its maximum
furthermore, that may be recited by keen observer sworn in a s periods for high-powered firearms. Thus in People v. Nunez, G.R.
witness my identify the firearm as well as it caliber. This can be 112092 (March 1, 2001) holds that a person may be convicted of
established by a judicious combination of the testimonial simple illegal possession if the illegal possession is proved and the
evidence of observers abd experts. frustrated murder and murder case – involving the use of the illegal
possession – has not been sufficiently proved. People v. Avecilla,
WHEN THERE IS AN ILLEGAL G.R. 117033 (February 15, 2001) teaches that “the crime of illegal
POSSESSION OF FIREARM possession of firearms, in its simple form, is committed any of the
crimes of murder, homicide, rebellion, insurrection, sedition or
A firearm is unlicensed when a certification from the “Firearms and attempted coup d’etat”.
Explosives Unit” attests that no license has been issued. There will still be a
case for illegal possession if one holding a firearm duly licensed carries it
33
2.2. It is also clear that where either homicide or murder is committed illegal possession of firearms should be dismissed if they arose from
with the use of an unlicensed firearm, such use shall constitute an the commission” of crimes other than those indicated in Section 1
“aggravating circumstances”. It is well known that R.A. 8294 was and 3 of R.A. 8294.
initiated by Senator Ramon Revilla as a favor to his friend Robin
Padilla who was then serving sentence for illegal possession. It was 2.5 Clearly the law leads to absurd results, for when the use of an
therefore meant to be more benevolent, as it is in the penalties it unlicensed weapon attends the commission of a crime, no matter
impose. Senator Revilla, however, could not see far enough (and how trivial, the case of illegal possession recedes into judicial
regrettably neither could other legislators) and the effect at least in irrelevance. The matter is definitely one that calls for a curative
the case of murder is that it may send the accused to the lethal statute and the Supreme Court has referred the matter to the
injection chamber where otherwise he would not be meted out the Congress for another look. One moral lesson can be learned: Laws
death penalty. People v. Montinola, G.R. 131856-57 (July 1, 2001) passed as favor to one’s friend is a poor laws!
with the Chief Justice himself as ponente illustrates the complication
the law has introduced. In this case, the accused had been charged
with two offenses: robbery with homicide and illegal possession of OWNERSHIP IS NOT AN ESSENTIAL
firearms. During the pendency of the case, the amended law came ELEMENT OF ILLEGAL POSSESSION
into force. The court then held that insofar as R.A. 8294 was
favorable to the accused in that it spared him from separate The rule is that ownership is not an essential element of illegal
prosecution for illegal possession, the charge for illegal possession possession of firearms and ammunition. What the law requires is merely
was dropped. Insofar, however, as it increased the penalty for possession which includes not only actual physical possession but also
robbery with homicide, the aggravating circumstances of the use of constructive possession or the subjection of the thing to one’s control and
unlicensed weapon could not be appreciated. Rule 110, Section 9 of management.
the Revised Rules of Criminal Procedure will apply: As an
aggravating circumstances, the use of the unlicensed weapon must
be alleged in the information. INTENT TO POSSESS, OR ANIMUS POSSIDENDI IS ESSENTIAL

2.3 When the violation of the law penalizing unlicensed weapon is “in A distinction should be made between criminal intent and intent to
furtherance of or incident to, or in connection with the crimes of possess. While mere possession without criminal intent is sufficient to
rebellion, insurrection, sedition or attempted coup d’etat” then the convict a person for illegal possession of firearms, it must still be shows that
violation is absorbed in the main offense. (R.A. 8294, Section 1). there was animus possidendi or an intent to possess on the part of the
accused.
2.4 What happens when an unlicensed weapon is used in the
commission of other offenses other that homicide, murder, rebellion, There is no evidence of animus possedendi if the offender was in
insurrection, sedition or attempted coup d’ etata? People v. possession of an unlicensed firearm only on the occasion of the shooting for
Walpandladjaalam, G.R. 1361149-51 ( September 19, 2000) a transitory purpose and for the short moment in connection with the
provides the answer in the distinctively clear language of Justice shooting.
Panganiban: “The law is clear: the accused can be convicted of
simple illegal possession of firearms, provided that “no other crime Lack of evidence is an essential element of the crime and that the
was committed by the person arrested’. If the intention of the law in same must be alleged in the Information and duly proved.
the second paragraph were to refer only to homicide and murder, it (People -vs- Macasling, 237 SCRA 299)
should have expressly said so, as it did in the third paragraph. Verily,
where the law does not distinguish, neither should we.” In brief, Ownership of the gun is immaterial or irrelevant in violation of PD
where the accused commits a crime other than those enumerated 1866, as amended. One may be convicted of possession of an unlicensed
with the use of an unlicensed weapon, no separate charge for such firearm even if he is not the owner thereof.
use will be brought against him. Consistent with this is the disposition (People -vs- Reynaldo Cruz, GR No.
by the Supreme court decreed: “Accordingly, all pending cases for 76728, August 3, 1988)

34
Possession includes actual physical possession and constructive
Even if the gun is "paltik," there is a need to secure license possession. The animus can be determined from the overt acts of the
for the gun, and if found without any license therefor, the offender is liable for accused prior to or coetaneous with and other surrounding circumstances of
violation of PD 1866. such possession. Hence, where the accused found a gun and was on his
(People vs- Filemon Ramos, 222 SCRA 557) way to deliver the gun to the police authority and was arrested, in the
process, there is no animus possedendi.
If an unlicensed firearm is used to commit a crime other than (People -vs- Rodolfo Dela Rosa, et al., supra)
homicide or murder, such a direct assault with attempted homicide, the use
of an unlicensed firearm is neither an aggravating circumstances nor a Even if a paltik is a homemade gun and thus illegally manufactured
separate offense. Since the law uses the word Homicide or Murder, nevertheless, the Prosecution is burdened to prove that the accused has no
possession of an unlicensed firearm is not aggravating in Attempted license for the gun.
Homicide. (People -vs- Felimon Ramos, et al., 222 SCRA 557)
(People -vs- Walpan Ladjaamlam, et al.,
GR No. 136149-51, September 19, 2000) For the accused to be guilty of violation of PD 1866 as amended the
Prosecution must prove: (a) the existence of the subject firearm; (b) the fact
Where the accused was charged of Murder and violation of PD 1866 that the accused who owned or possessed the firearm does not have the
and that, in the meantime, Republic Act 8294 took effect, the accused should corresponding license or permit to possess the same.
be convicted only of Murder. The use of unlicensed firearm should not be (People -vs- Ricolito Rugay, et al., 291 SCRA 692)
considered as aggravating because the Court will have to impose the death
penalty which cannot be allowed because, at the time of the commission of Where the accused is convicted of violation of Republic Act 8294
the offense, the death penalty cannot as yet, be imposed. However, in his and meted a penalty less than six (6) years, and a fine of P15,000.00, he
concurring opinion, Chief Justice Hilario Davide, Jr. declared that, under such should be ordered to undergo subsidiary imprisonment in case of insolvency.
a factual milieu, the charge of violation of PD 1866 should continue and if the (Mario Rabaja -vs- Court of Appealss, et al., 280 SCRA 290)
accused is found guilty, he should be meted the death penalty under
Republic Act 8294. In the light of "People -vs- Martin Simon," 234 SCRA 555, and
(People -vs- Victor Macoy, GR No. Articles 13 and 14, in relation to Article 63, of the Revised Penal Code and
126253, August 16, 2000) the Indeterminate Sentence Law for violation of the Revised Penal Code may
now be applied for violation of PD 1866, as amended and Rep[ublic Act
Where the prosecution failed to adduce the gun in evidence coupled 6425, as amended.
with the fact that per Certification of the FEU, " no available information
regarding the license for the gun and the inconsistency in the evidence of the Even if a person is licensed to possess a firearms but brings out
prosecution, the latter failed to discharge its burden. firearm outside of his residence without permit therefor, he is guilty of
(People -vs- Ricolito Rugay, et al., 291 SCRA 692) violation of the last paragraph of Section 1 of PD 1866, as amended. A
Mission Order cannot take the place of a license. A Mission Order can only
Mere possession without criminal intent is sufficient on which to be issued to one licensed to possess a firearm.
render a judgment of conviction for violation of PD 1866, as amended. (Pedrito Pastrano -vs- Court of Appeals, et al., 281 SCRA 287)
However, there must be animus possedendi or intent to possess without any
license or permit. Good faith is not a defense. Neither is lack of criminal If the accused borrowed a gun from another who is licensed to
intent. possess firearm, may the former be liable for violation of PD 1866, as
(People -vs- Rodolfo Dela Rosa, et al., 284 SCRA 158) amended? Yes. Even if the gun is licensed to one and lends it to another, the
latter is liable for violation of PD 1866, as amended. A license to possess a
Temporary, incidental, casual or harmless possession of firearm is firearm and a permit to carry a licensed firearm outside of his residence is not
not punishable. Hence, stealing a firearm to render the owner defenseless is transferable.
not a crime under the law. (idem, supra) (Pedrito Pastrano -vs- Court of Appeals, et al., supra)

35
Even if the firearm subject of the crime is not adduced in evidence As long as the accused is proved to have been in possession of the
one may still be convicted of possession of an unlicensed firearm as long as unlicensed firearm even if the firearm is not adduced in evidence, conviction
proof was adduced that the acused was in possession of a firearm. under the law is proper.
(People -vs- Felicisimo Narvasa, GR No. (People -vs- Felicisimo Narvasa, supra)
128618, November 16, 1998)

NOTE: Under Republic Act 8294, the penalty depends upon the caliber of Republic Act 8294 took effect on July 6, 1997.
the gun. Suppose there is no testimony as to the caliber of the gun?
If the accused is charged of Murder and violation of PD 1866 and
Where a security guard was given by his employer, a security during the trial, Republic Act 8294 took effect, the accused cannot be
agency, a firearm, and the accused assumed that the employer secured the convicted of violation of PD 1866, as amended. Neither should the
license for the firearm but that it turned out that the employer failed to get any possession of an unlicensed firearm be considered as an aggravating
license, the security guard is not criminally liable. The security guard has the circumstance as it will be less favorable to the accused. If the accused used
right to assume that the security agency secured the license. a sumpak to kill the victim, the prosecution must prove that he had no license
(Ernesto Cuenca -vs- People, 33 SCRA 522) or permit to possess the sumpak.
(People -vs- Cipriano de Vera,
If a constabulary soldier entrusted his gun to the accused for G.R. No. 121462-63, June 9, 1999)
safekeeping and later the accused found in possession of the gun, the
accused is guilty of possession of unlicensed firearm. To exculpate himself, Compare "People -vs- Wilfredo Filoteo," 290 SCRA 627 where the
the accused must prove absence of animus possidendi. accused was convicted of Murder and violation of PD 1866 and during the
(People -vs- Perlito Soyang, et al., 110 Phil. 565, 583) pendency of the appeal, Republic Act 8294 took effect. Our Supreme Court
affirmed the conviction of the Accused of two (2) crime of Homicide and
A secured a loan from B and pledged his unlicensed firearm as violation of PD 1866, as amended, and applied the penalty for the crimes
security for the loan. A promised to pay his loan and retrieve the firearm as under the amendment.
soon as he had money. B found in possession of the unlicensed firearm. For
the court to sustain the contention of B is to authorize the indefinite In "People -vs- Veriato Molina, et al.," 292 SCRA 742, our Supreme
possession by B of the unlicensed firearm because there was no way to Court En Banc declared that where the accused was convicted of said
determine when A could pay his account. crio,es, by the Trial Court but that during the pendency of the appeal, with the
(People -vs- Cornelio Melgas, 100 Phil. 298) Supreme Court, Republic Act 8294 took effect, the accused should only be
convicted of Murder with the use of an unlicensed firearm as mere a special
If a licensed firearm if used to commit Murder or Homicide, such aggravating circumstance.
circumstances is merely a special aggravating circumstance which must be
alleged in the Information and cannot be offset by any mitigating Murder, under Republic Act 8294, is used in its generic term and,
circumstance. (People -vs- Meriato Molina, et al., G.R. No. 115835, July 22, hence, includes Parricide
1998; People -vs- Narvasa, G.R. no. 128618 November 18, 1998) (People versus Octavio Mendoza,
GR No. 109270-80, January 18,1999)
The Decision of the Supreme Court in People -vs- Paterno Tac-an,
182 SCRA 601; People -vs- Jesus Deunida, and People -vs- Barros and A United States carbine M1, caliber .3-0 is a high-powered gun
People -vs- Daniel Quijada 259 SCRA 191 had been overtaken by Republic because it is capable of emitting two or three bullets in one squeeze.
Act 8294. (People -vs- Eduardo Gutierrez,
GR No. 132878, September 1999)
Under the amendment, the death penalty may now be imposed if the
accused is convicted of Murder with the use of licensed or unlicensed It is not necessary that the firearm be produced and offered in
firearms. evidence for Republic Act 8294 to apply. It is not enough that there is

36
evidence of the existence of the gun which can be established either by retroactively applied in the case at bar. It was thus error for the trial court to
testimony or presentation of the gun itself. convict the appellant of two (2) separate offenses, i.e., Homicide and Illegal
Possession of Firearms, and punish him separately for each crime. Based
Possession of an unlicensed firearm and used in killing is a special on the facts of the case, the crime for which the appellant may be charged is
aggravating circumstance. homicide, aggravated by illegal possession of firearm, the correct
(People -vs- Felicisimo Narvasa, denomination for the crime, and not illegal possession of firearm,
GR No. 128618, November 18, 1998) aggravated by homicide as ruled by the trial court, as it is the former
offense which aggravates the crime of homicide under the amendatory law.
The Decision of the Supreme Court in People versus Rex Bergante,
et. al., GR No. 120369, February 27, 1998, that the use of an unlicensed
firearm to commit murder is only a generic aggravating circumstance is no EVEN IF ACCUSED ADMITTED THAT HE HAS NO LICENSE, SUCH
longer true. ADMISSION IS NOT SUFFICIENT PROOF OF ILLEGAL POSSESSION OF
FIREARM
Possession under the law may either be actual physical possession
or constructive possession. However, although the crime under PD 1866, as Hence, in the case at bar, although the appellant himself admitted
amended, is malum prohibitum, however, there must be animus possidendi, that he had no license for the gun recovered from his possession, his
or intent to possess. Animus possidendi may be inferred from the fact that an admission will not relieve the prosecution of its duty to establish
unlicensed firearm is under the apparent control and power of the accused. beyond reasonable doubt the appellant's lack of license or permit to
however, animus possidendi may be contradicted if a person in possession possess the gun. In People vs. Solayao, we expounded on this doctrine,
of an unlicensed firearm does not assert a right thereto. thus:

If the possession of an unlicensed gun is merely temporary, "x x x by its very nature, an admission is the mere acknowledgement
incidental or transient, the same is not punishable under PD 1866. However, of a fact or of circumstances from which guilt may be inferred, tending to
the law does not provide for a fixed period of time for one to be deemed in incriminate the speaker, but not sufficient of itself to establish his guilt." In
"possession" of an unlicensed firearm. (People -vs- Rolando Verches, 233 other words, it is a statement by defendant of fact or facts pertinent to issues
SCRA 174). Each factual milieu must be considered. pending, in connection with proof of other facts or circumstances, to prove
guilt, but which is, of itself, insufficient to authorize conviction. From the
above principles, this Court can infer that an admission in criminal cases
IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL POSSESSION OF is insufficient to prove beyond doubt the commission of the crime
FIREARMS) charged.

P.D. 1866, which codified the laws on illegal possession of firearms, "Moreover, said admission is extrajudicial in nature. As such, it
was amended on June 6, 1997 by Republic Act 8264. Aside from lowering does not fall under Section 4 of Rule 129 of the Revised Rules of Court
the penalty for said crime, R.A. 8294 also provided that if homicide or which states:
murder is committed with the use of an unlicensed firearm, such use
shall be considered as a special aggravating circumstance. This An admission, verbal or written, made by a party in the course of the
amendment has two (2) implications: first, the use of an unlicensed firearm trial or other proceedings in the same case does not require proof.
in the commission of homicide or murder shall not be treated as a separate
offense, but merely as a special aggravating circumstance; second, as only "Not being a judicial admission, said statement by accused-
a single crime (homicide or murder with the aggravating circumstance of appellant does not prove beyond reasonable doubt the second element
illegal possession of firearm) is committed under the law, only one penalty of illegal possession of firearm. It does not even establish a prima facie
shall be imposed on the accused. case. It merely bolsters the case for the prosecution but does not stand as
proof of the fact of absence or lack of a license." (emphasis supplied)
Prescinding therefrom, and considering that the provisions of the (PP -vs- JULIAN CASTILLO Y LUMAYRO, G.R. No. 131592-93, Feb. 15,
amendatory law are favorable to herein appellant, the new law should be 2000)

37
firearm, there can be no separate conviction for the crime of illegal
possession of firearms under P.D. No. 1866 in view of the amendments
ELEMENTS OF ILLEGAL POSSESSION OF FIREARMS introduced by Republic Act No. 8294. Thereunder, the use of unlicensed
firearm in murder or homicide is simply considered as an aggravating
To convict an accused for illegal possession of firearms and circumstance in the murder or homicide and no longer as a separate offense.
explosive under P.D. 1866 as amended, two (2) essential elements must be Furthermore, the penalty for illegal possession of firearms shall be imposed
indubitably established, viz: (a) the existence of the subject firearm or provided that no crime is committed. In other words, where murder or
explosive which may be proved by the presentation of the subject firearm or homicide was committed, the penalty for illegal possession of firearms is no
explosive or by the testimony of witnesses who saw accused in possession longer imposable since it becomes merely a special aggravating
of the same, and (b) the negative fact that the accused had no license or circumstance. (PP -vs- AUGUSTO LORETO RINGOR, JR., G.R. No.
permit to own or possess the firearm or explosive which fact may be 123918, Dec. 9, 1999)
established by the testimony or certification of a representative of the PNP
Firearms and Explosives Unit that the accused has no license or permit to
possess the subject firearm or explosive. ANTI-WIRE TAPPING LAW
(RA 4200)
In the case at bar, the prosecution failed to prove the second
element of the crime, i.e., the lack of license or permit of appellant Cortez to Sec. 1. It shall be unlawful for any person, not being authorized by all the
possess the hand grenade. Although the hand grenade seized by PO2 parties to any private communication or spoken word, to tap any wire or
Santos from appellant was presented in court, the records bear that PO2 cable, or by using any other device or arrangement, to secretly overhear,
Santos did not submit the grenade to the PNP Firearms and Explosives intercept, or record such communication or spoken word by using a device
Unit for verification. This explains why no certification or testimony was commonly known as a dictaphone or dictagraph or dectaphone or walkie-
adduced by the prosecution at the trial to prove that appellant Cortez talkie or tape recorder, or however otherwise described:
was not licensed to possess the explosive. The failure of the prosecution
to adduce this fact is fatal to its cause. We stress that the essence of the It shall also be unlawful for any person, be he a participant or not in
crime penalized under P.D. 1866 is primarily the accused's lack of license the act or acts penalized in the next preceding sentence, to knowingly
or permit to carry or possess the firearm, ammunition or explosive as possess any tape record, wire record, disc record, or any other such record,
possession by itself is not prohibited by law. 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
MAY EXPLOSIVES BE GIVEN A PERMIT OR LICENSE? transcriptions thereof, whether complete or partial, to any other person:
Provided, That the use of such record or any copies thereof as evidence in
In the case of an explosive, a permit or license to possess it is any civil, criminal investigation or trial of offenses mentioned in section 3
usually granted to mining corporations, military personnel and other hereof, shall not be covered by this prohibition.
legitimate users. (PP -vs- BERNIE CORTEZ Y NATANIO, ET AL., G.R.
Nos. 131619-20, Feb. 1, 2000)
LISTENING TO CONVERSATION
IN EXTENSION LINE OF TELEPHONE
UNDER R.A. 8294 A SEPARATE CONVICTION FOR ILLEGAL IS NOT WIRE-TAPPING
POSSESSION OF FIREARMS AND FOR HOMICIDE IS NOT ALLOWED
An extension telephone cannot be placed in the same category as a
With respect to the conviction of accused-appellant for illegal possession of dictaphone, dictagraph or the other devices enumerated in Section 1 of RA
firearms under P.D. No. 1866, it was held in the case of People vs. Molina 4200 as the use thereof cannot be considered as tapping the wire or cable of
and reiterated in the recent case of People vs. Ronaldo Valdez, that in a telephone line. The telephone extension in this case was not installed for
cases where murder or homicide is committed with the use of an unlicensed that purpose. It just happened to be there for ordinary office use. It is a rule

38
in statutory construction that in order to determine the true intent of the
legislature, the particular clauses and phrases of the statute should not be "a) Through force, threat, or intimidation;
taken as detached and isolated expressions, but the whole and every part "b) When the offended party is deprived of reason or otherwise
thereof must be considered in fixing the meaning of any of its parts. (66 unconscious;
SCRA 113,120) "c) By means of fraudulent machination or grave abuse of
authority; and
"d) When the offended party is under twelve (12) years of age or
is demented, even though none of the circumstances mentioned
A PERSON CALLING ANOTHER BY PHONE above be present.
MAY SAFELY PRESUME THAT THE OTHER
MAY HAVE AN EXTENSION LINE AND "2) By any person who, under any of the circumstances mentioned in
RUNS THE RISK OF BEING HEARD BY A paragraph 1 hereof, shall commit an act of sexual assault by inserting his
3RD PARTY. penis into another person's mouth or anal orifice, or any instrument or object,
into the genital or anal orifice of another person.
An extension telephone is an instrument which is very common
especially now when the extended unit does not have to be connected by
wire to the main telephone but can be moved from place to place within a WHEN INEXCUSABLE IMPRUDENCE ON
radius of a kilometer or more. A person should safely presume that the party PART OF VICTIM AS TO IDENTITY OF
he is calling at the other end of the line probably has an extension telephone OFFENDER IS NOT RAPE, WHEN A WOMAN FAILED TO ASCERTAIN
and he runs the risk of a third party listening as in the case of a party line or a THE IDENTITY OF THE MAN.
telephone unit which shares its line with another.
The evidence shows that this mistake was purely a subjective
configuration of Zareen's mind — an assumption entirely contrived by her.
MERE ACT OF LISTENING TO A Our impression is that Silvino had nothing to do with the formulation of this
TELEPHONE CONVERSATION IN AN belief; he did nothing to mislead or deceive Zareen into thinking that he was
EXTENSION LINE IS NOT PUNISHED BY Enrico. In fact, Silvino precisely, and confidently, told her, "Zareen, it's not
ANTI-WIRE TAPPING LAW Ricky, it's Jun. I love you." It is thus obvious that whatever mistake there was
could only be attributable to Zareen — and her inexcusable imprudence —
It can be readily seen that our lawmakers intended to discourage and to nobody else. Clearly, the fault was hers. She had the opportunity to
through punishment, persons such as government authorities or ascertain the identity of the man but she preferred to remain passive and
representatives of organized groups from installing devices in order to gather allow things to happen as they did. Silvino never used force on her and was
evidence for use in court or to intimidate, blackmail or gain some even most possibly encouraged by the fact that when he pulled down her
unwarranted advantage over the telephone users. Consequently, the mere panties she never objected; when her legs were being parted she never
act of listening, in order to be punishable must strictly be with the use of the objected; and, when he finally mounted her she never objected. Where then
enumerated devices in RA 4200 or others of similar nature. We are of the was force?
view that an extension telephone is not among such devices or
arrangements. Third, Zareen was not deprived of reason or otherwise unconscious
when the accused had intercourse with her. Her lame excuse was that she
RAPE AS CRIME AGAINST PERSONS was half-asleep. However she admitted that in the early morning of 1 May
(R.A. 8353) 1994 she woke up to find someone removing her underwear. Thuswise it
cannot be said that she was deprived of reason or unconscious. She knew,
Rape, When And How Committed hence was conscious, when her panties were being pulled down; she knew,
hence was conscious, when her legs were being parted to prepare for the
"1) By a man who shall have carnal knowledge of a woman under any of sexual act; she knew, hence was conscious, when the man was pulling down
the following circumstances: his briefs to prepare himself likewise for the copulation; she knew, hence was

39
conscious, when the man mounted her and lusted after her virtue. Her mature and experienced woman who would know what to do under the
justification was that she never objected to the sexual act from the start circumstances, or to have courage and intelligence to disregard the threat.
because she thought that the man was her boyfriend with whom she was Even in cases of rape of mature women, this Court recognized their different
having sex almost every night for the past three (3) weeks as they were and unpredictable reactions. Some may shout; some may faint; and some
getting married and wanted already to have a baby. In other words, her urge may be shocked into insensibility; while others may openly welcome the
could not wait for the more appropriate time. (People v. Salarza, Jr.) intrusion. (People v. Agbayani; GR 122770, Jan. 16, ’98)

NATURE OF INTIMIDATION TEST TO DETERMINE WHETHER A WOMAN VOLUNTARILY


IN RAPE CASES SUBMITTED TO SEXUAL INTERCOURSE OR NOT DUE TO
INTIMIDATION
Intimidation is addressed to the mind of the victim. It is subjective
and its presence cannot be tested by any hard-and-fast rule, but must be viewed in Physical resistance is not the sole test to determine whether
the light of the victim’s perception and judgement at the time of the crime. or not a woman involuntarily succumbed to the lust of an accused.
In the case at bar, at the time the crime was committed, the victim Jurisprudence holds that even though a man lays no hand on a woman, yet if
was 40 yrs. old, 5 months pregnant, unarmed and married to a person older than her by array of physical forces he so overpowers her mind that she does not
by almost 20 yrs.. In contrast, appellant was in his 20’s, armed with a gun and resist or she ceases resistance through fear of greater harm, the
purportedly in the company of several NPA members. The crime happened in the consummation of unlawful intercourse by the man is rape.
evening and in a place where help was impossible. The nearest neighbor of the (Pp. V. Mostrales; GR 125937, Aug.28, 1998)
victim is some 3 kms. from their hut. Considering all these circumstances, we hold
that the victim was intimidated to submit to the lustful desire of the appellant. (Pp. V.
Mostrales; GR 125937, Aug.28, 1998) DATE OF COMMISSION OF RAPE NOT ESSENTIAL ELEMENT OF SAID
CRIME

WHEN MORAL ASCENDANCY IS SUSTAINED AS INTIMIDATION IS It is settled that even a variance of a few months between
RAPE. the time set out in the indictment and that established by the evidence during
the trial has been held not to constitute an error so serious as to warrant
Intimidation in rape cases is not calibrated nor governed by hard and reversal of a conviction solely on that score. The failure of the complainant
fast rules. Since it is addressed to the victim's and is therefore subjective, it to state the exact date and time of the commission of the rape is a minor
must be viewed in light of the victim's perception and judgment at the time of matter.
the commission of the crime. It is enough that the intimidation produced fear (Pp. V. Bernaldez; GR 109780,Aug. 17, 1998)
— fear that if the victim did not yield to the bestial demands of the accused,
something far worse would happen to her at that moment. Where such
intimidation existed and the victim was cowed into submission as a result EXAMPLE OF VIRTUAL CONFESSION OF FACT AND NOT IN LAW IN
thereof, thereby rendering resistance futile, it would be the height of CASES OF RAPE
unreasonableness to expect the victim to resist with all her might and
strength. If resistance would nevertheless be futile because of intimidation, It is conceded that after the rape, Accused sent complainant
then offering none at all does not mean consent to the assault so as to make two letters in which he implored her forgiveness and offered to leave his wife
the victim's submission to the sexual act voluntary. so that he could be with her. In fine, appellant sealed his own fate by
admitting his crime under a seal of virtual confession in fact, if not in law.
In any event, in a rape committed by a father against his own (Pp. V. Prades; GR 127569, July 30, 1998)
daughter, as in this case, the former's moral ascendancy or influence over
the latter substitutes for violence or intimidation. Likewise, it must not be
forgotten that at her tender age of 14 years, EDEN could not be expected to
act with the equanimity of disposition and with nerves of steel, or to act like a CHILD BORN BY REASON OF RAPE

40
MUST BE ACKNOWLEDGED BY OFFENDER held that a knife is a deadly weapon. (Pp. V. Alfeche; GR 124213, Aug. 17,
UPON ORDERS OF THE COURT 1998)

Furthermore, since ANALIZA begot a child by reason of the rape,


DANTE must acknowledge and support the offspring pursuant to Article 345 FORCE AND INTIMIDATION NOT
of the Revised Penal Code in relation to Article 201 of the Family Code. NEEDED IN RAPE OF RETARDATE
(People v. Alfeche)
Although the information alleged “force, threats, and intimidation”, it
DWELLING AS AGGRAVATING nevertheless also explicitly stated that Tessie is a “mentally retarded person.”
CIRCUMSTANCE IN RAPE CASES We have held in a long line of cases that if the mental age of a woman above
12 years is that of a child below 12 years, even if she voluntarily submitted to
It is clear, however, that the aggravating circumstance of the bestial desires of the accused, or even if the circumstances of force or
dwelling is attendant in the commission of the crime. Article 14(5) of the intimidation or of the victim being deprived of reason or otherwise
Revised Penal Code provides that this circumstance aggravates a felony unconscious are absent, the accused would still be liable for rape under the
where the crime is committed in the dwelling of the offended party, if the 3rd circumstance of Art. 335. The rationale therefor is that if sexual
latter has not given provocation. In the instant case, the aforesaid intercourse with a victim under 12 years of age is rape, then it should follow
circumstance of dwelling was definitely present in the commission of the that carnal knowledge of a woman whose mental age is that of a child below
crime of rape with the use of a deadly weapon. (Pp. V. Prades; GR 127569, 12 years would constitute rape. (People v. Hector Estares; 12/5/97)
July 30, 1998)
USE OF FORCE OR INTIMIDATION NOT
INDEMNITY IN CERTAIN CASES OF RAPE AN ELEMENT OF STATUTORY RAPE

The recent judicial prescription is that the indemnification for In any event, the use of force or intimidation is not an element of
the victim shall be in the increased amount of P75,000.00 if the crime of statutory rape. The offense is established upon proof that the accused
rape is committed or effectively qualified by any of the circumstances under sexually violated the offended party, who was below 12 years of age at the
which the death penalty is authorized by the applicable amendatory laws. time of the sexual assault. In other words, it is not relevant to this case
(Pp. V. Prades; GR127569, July 30, 1998) whether appellant slapped or boxed the victim, or whether he used a single-
bladed or a double-edged knife. (People v. Oliva; 12/5/97)
MORAL DAMAGES NEED NOT BE ALLEGED
AND PROVED IN CASES OF RAPE

Indeed, the conventional requirement of allegata et probata RAPE CAN BE COMMITTED IN


in civil procedure and for essentially civil cases should be dispensed with in DIFFERENT PLACES EVEN THOSE IN HIGH VENUES
criminal prosecutions for rape with the civil aspect included therein, since no
appropriate pleadings are file wherein such allegations can be made. (Pp. V. It has been emphasized that rape can be committed in many
Prades; GR 127569, July 30, 1998) different places, including places which to many would appear to be unlikely
and high-risk venues for sexual advances. Thus, rape has been committed
even in places where people congregate, in parks, along the roadside, within
MEANING OF DEADLY WEAPON school premises, inside a house where there are other occupants, and even
IN CASES OF RAPE in the same room where other members of the family are also sleeping.
(People v. Gementiza; 1/29/98)
A “deadly weapon” is any weapon or instrument made and
designed for offensive or defensive purposes, or for the destruction of life or
thee infliction of injury; or one which, from the manner used, is calculated or WHEN SWEETHEART DEFENSE
likely to produce death or serious bodily harm. In our jurisdiction, it has been IS TENABLE IN RAPE

41
stories are true. For that matter, no young Filipina of decent repute would
The “sweetheart” defense put up by the accused merits serious falsely and publicly admit that she had been ravished and abused
consideration. While the theory does not often gain favor with the court, such considering the social stigma thereof. People v Tabugoca, GR No. 125334)
is not always the case if the hard fact is that the accused and the supposed
victim are in fact intimately related except that, as is true in most cases, the SODOMY IS NOT THE SAME AS IGNOMINY NOR CAN IT BE
relationship is either illicit, or the parents are against it. In such instances, it CONSIDERED AS IGNOMINY.
is not improbable that when the relationship is uncovered, the victim’s
parents would take the risk of instituting a criminal action rather than admit to "Ignominy is a circumstance pertaining to the moral order, which
the indiscretion of their daughter. And this, as the records reveal, is what adds disgrace and obliloquy to the material injury caused by the crime."
happened in this case. (People vs Rico Jamlan Salem, October 16/97) Thus, for ignominy to be appreciated as an aggravating circumstance in the
instant case, it must be shown that the sexual assault on Francis Bart was
done by accused-appellant to put the former to shame before killing him.
A MEDICAL EXAMINATION OF VICTIM This is clearly not the case here for accused-appellant's intention was shown
IS NOT ELEMENT OF RAPE to be the commission of sexual abuse on the victim as an act of revenge for
his similar experience as a child.
A medical examination is not an indispensable element in a
prosecution for rape. The accused may be convicted on the sole basis of
complainant’s testimony, if credible, and the findings of the medico-legal WHEN THE INFORMATIONS ON RAPE CASES FAILED TO ALLEGE
officer do not disprove the commission of rape. People v Jenelito Escober Y ACTUAL RELATIONSHIP ETC. HENCE DEATH PENALTY CANNOT BE
Resuento, Nov 6/97) IMPOSED

HEINOUSNESS OF RAPE OF In this case, the information's in Criminal Case Nos. 8899-8900
ONE’S DESCENDANT alleged that accused-appellant, "who is the stepfather of the private offended
party" by "force, violence and intimidation" succeeded in having carnal
In the case before us, the accused raped his own flesh and blood at knowledge of the latter when she was then 14 and 13 years old, respectively.
such a tender age of eleven. He thus violated not only he purity and her trust On the otherhand, the information in Criminal Case Nos. 8945-8946 alleged
but also the mores of his society which he has scornfully defined. By that accused-appellant, "who…. is the stepfather of victim Jenny Macaro"
inflicting his animal greed on her in a disgusting coercion of incestuous lust, succeeded in having carnal knowledge of the latter, who was a girl below 12
he forfeits all respect as human being and is justly spurned by all, not least of years old. As already noted, contrary to these allegations, accused-appellant
all, by the fruit of his own loins whose progeny he has forever stained with his is not really the stepfather of complainants Lenny and Jenny because
shameful and shameless lechery. People v jenelito Escober Y Resuento, accused-appellant and complainants' mother were not legally married but
Nov 6/97) were merely living in common-law relation. In fact, Lenny and Jenny
interchangeably referred to accused-appellant as their stepfather, "kabit,"
"live-in partner ng Mama ko," "tiyo," and "tiyuhin." Complainants' sister-
MERE DISCIPLINARY CHASTISEMENT in-law, Rosalie Macaro, also testified that her "mother-in-law is not legally
IS NOT ENOUGH TO DOUBT CREDIBILITY married to accused-appellant." Accused-appellant likewise said on direct
OF RAPE VICTIM WHO IS A DESCENDANT and cross-examination that he was not legally married to the mother of the
complainants, and he referred to her as his live-in partner. This was
Mere disciplinary chastisement is not strong enough to make confirmed by Emma Macaro, mother of the complainants. Although the rape
daughters in a Filipino family invent a charge that would only bring shame of a person under eighteen (18) years of age by the common-law spouse of
and humiliation upon them and their own family and make them the object of the victim's mother is punishable by death, this penalty cannot be imposed
gossip among their classmates and friends. It is unbelievable that on accused-appellant in these cases because this relationship was not what
Jacqueline would fabricate a serious criminal charge just to get even with her was alleged in the information's. What was alleged was that he is the
father and to emphasize with her sister. The sisters would not contrive stepfather of the complainants.
stories of defloration and charge their own father with rape unless these

42
This Court has also ruled that a medical examination is not
indispensable to the prosecution of rape as long as the evidence on hand
INFORMATION IN RAPE CASES WITH USE OF DEADLY WEAPON convinces the court that a conviction of rape is proper.
MUST BE ALLEGED OTHERWISE DEATH PENALTY, CANNOT BE
IMPOSED

Neither can accused-appellant be meted the death penalty in WHEN CARNAL KNOWLEDGE IS CONSUMATED
Criminal Case No. 8900 where he committed the rape after threatening the
victim, Lenny Macaro, with a knife. Under Art. 335 of the Revised Penal It is worth mentioning that in rape cases, the prosecution is not
Code, simple rape is punishable by "reclusion perpetua." When the rape is required to establish penile penetration because even the slightest touching
committed "with the use of a deadly weapon," i.e., when a deadly weapon is of the female genitalia, or mere introduction of the male organ into the labia
used to make the victim submit to the will of the offender, the penalty is of the pudendum constitutes carnal knowledge. (PP -vs- FERNANDO
”reclusion perpetua to death." This circumstance must however be alleged in CALANG MACOSTA, alias "DODONG" G.R. No. 126954, Dec. 14, 1999)
the information because it is also in the nature of a qualifying circumstance
which increases the range of the penalty to include death. In Criminal Case
No. 8900, while complainant Lenny testified that accused-appellant raped THE CHARGE OF RAPE DO NOT INCLUDE SIMPLE SEDUCTION.
her after threatening her with a knife, the "use of a deadly weapon" in the HENCE, IF ONE IS CHARGE WITH RAPE AND IS NT PROVEN,
commission of the crime was not alleged in the information. Therefore, even ACCUSED CANNOT BE HELD GUILTY OF SIMPLE SEDUCTION.
if the same was prove, it cannot be appreciated as a qualifying circumstance.
The same can only be treated as generic aggravating circumstance which, in Even as the prosecution failed to proved the use of force, violence
this case, cannot affect the penalty to be impose, i.e., reclusion perpetua. and intimidation by the accused-appellant, we cannot convict the accused-
Accordingly, the accused-appellant should be sentenced to the penalty of appellant of the crime of simple seduction without offense to the
reclusion perpetua. Accordingly, the accused-appellant should be sentenced constitutional rights of the accused-appellant to due process and to be
to the penalty of reclusion perpetua for each of the four counts of rape. (PP informed the accusation against him. The charge of rape does not include
-vs- FELIXBERTO FRAGA Y BAYLON, G.R. Nos. 134130-33, April 12, simple seduction. (PP -vs LOLITO MORENO Y LANCION alias "LOLOY"
2000) G.R. No. 115191, Dec. 21, 1999)

WHAT ARE THE ELEMENTS OF RAPE?


EXAMINATIONS OF ALL SPECIMENS IN DRUG CASES NOT
NECESSARY The elements of rape are: (1) that the offender had carnal
knowledge of a woman; (2) that such act is accomplished by using force or
We are not persuaded by the claim of accused-appellants that in intimidation; or when the woman is deprived of reason or otherwise
order for them to be convicted of selling 2,800 grams of marijuana, the whole unconscious; or when the woman is under twelve years of age or is
specimen must be tested considering that Republic Act 7659 imposes a demented.
penalty dependent on the amount or the quantity of drugs seized or taken.
This Court has ruled that a sample from one of the packages is logically
presumed to be representative of the entire contents of the package unless
proven otherwise by accused-appellant. (PP -vs- DIOLO BARITA Y MEANING OF TAKING ADVANTAGE OF SUPERIOR STRENGTH IN
SACPA, ET AL., G.R. No. 123541, Feb. 8, 2000) RAPE CASES

Taking advantage of superior strength means to purposely use


excessive force out of proportion to the means available to the person
MEDICAL EXAMINATION NOT REQUIRED IN RAPE CASES attacked. It is abuse of superior numbers or employment of means to
weaken the defense. This circumstance is always considered whenever
43
there is notorious inequality of forces between the victim and the aggressor, be imposed because these qualifying circumstances were not specified in the
assuming a situation of superiority notoriously advantageous for the information. It would be a denial of the right of the appellant to be informed
aggressor deliberately chosen by him in the commission of the crime. To of the charges against him and consequently, a denial of due process if he is
properly appreciate it, it is necessary to evaluate not only the physical charged with simple rape and convicted of its qualified form punishable by
condition of the parties and the arms or objects employed but the incidents in death although the attendant circumstances qualifying the offense and
the total development of the case as well. resulting in capital punishment were not set forth in the indictment on which
he was arraigned. (PP -vs- CHARITO ISUG MAGBANUA, G.R. No.
Moreover, like the crime of parricide by a husband on his wife, abuse 128888, Dec. 3, 1999)
of superior strength Is inherent in rape. It is generally accepted that under
normal circumstances a man who commits rape on a woman is physically
stronger than the latter. (PP -vs- EDGARDO DE LEON Y SANTOS, G.R.
No. 128436, Dec. 10, 1999) QUALIFYING CIRCUMSTANCE IN RAPE CASES MUST BE ALLEGED IN
ORDER THAT DEATH PENALTY MAYBE IMPOSED

This Court has ruled in a long line of cases that the circumstance
WHEN TESTIMONY OF VICTIM IS OVERLY GENERALIZED IN CRIME OF under the amendatory provisions of Section 11 of Republic Act 7659, the
RAPE attendance of any of which mandates the single indivisible penalty of death
are in the nature of qualifying circumstances which cannot be proved as such
Each and every charge of rape is a separate and distinct crime so unless alleged with particularity in the information unlike ordinary aggravating
that each of the sixteen other rapes charged should be proven beyond circumstances which affect only the period of the penalty and which may be
reasonable doubt. The victim's testimony was overly generalized and lacked proven even if not alleged in the information. It would be a denial of the right
specific details on how each of the alleged sixteen rapes was committed. of the accused to be informed of the charge against him and consequently, a
Her bare statement that she was raped so many times on certain weeks is denial of due process, if he is charged with simple rape and will be convicted
clearly inadequate and grossly insufficient to establish the guilt of accused- of its qualified form punishable by death although the attendant circumstance
appellant insofar as the other sixteen rapes charged are concerned. In qualifying the offense and resulting in capital punishment was not alleged in
People vs. Garcia, this Court succinctly observed that: the indictment under which he was arraigned. Procedurally, then, while the
minority of Renelyn and her relationship to the accused-appellant were
xxx the indefinite testimonial evidence that complainant was raped every established during the trial, the accused-appellant can only be convicted of
week is decidedly inadequate and grossly insufficient to establish the guilt of simple rape because he cannot be punished for a graver offense that that
appellant therefor with the required quantum of evidence. So much of such with which he was charged. Accordingly, the imposable penalty is reclusion
indefinite imputations of rape, which are uncorroborated by any other perpetua. (PP -vs- EDWIN R. DECENA, G.R. No. 131843, May 31,
evidence fall within this category. (PP -vs- EDMUNDO DE LEON Y 2000)
JESUS, G.R. No 130985, Dec. 3, 1999

IMPORTANT CONSIDERATION IN RAPE

CONCURRENCE OF MINORITY OF VICTIM AND RELATIONSHIPS IN Neither is the absence of spermatozoa in Delia's genitalia fatal to the
RAPE MUST BE ALLEGED SO THAT DEATH PENALTY MAYBE prosecution's case. The presence or absence of spermatozoa is immaterial
IMPOSED in a prosecution for rape. The important consideration in rape cases is not
the emission of semen but the unlawful penetration of the female genitalia by
The concurrence of the minority of the victim and her relationship to the male organ. (PP -vs- RODOLFO BATO alias 'RUDY BATO," G.R. No.
the offender should be specifically alleged in the information conformably 134939, Feb. 16, 2000)
with the accused's right to be informed of the accusation against him. In this
case, although the minority of Poblica and her relationship with appellant
were established by the prosecution beyond doubt, the death penalty cannot
44
WHEN RAPE IS NOT COMMITTED AND SWEETHEART THEORY GIVEN impair the complainant's credibility when the said variance does not alter the
CREDENCE essential fact that the complainant was raped. Variance as to the time and
date of the rape, the number of times it was committed or the garments
First. Private complainant never objected or showed any resistance which the accused or the complainant wore at the time of the incident do not
when accused-appellant allegedly dragged her forcibly across the pedestrian generally diminish the complainant's credibility. However, the serious
overpass and brought her to an undisclosed place at Quiapo. Although he discrepancy between the two sworn statements executed a day apart by the
was holding her wrist tightly, she could have easily extricated herself form complainant in this case, bearing on a material fact, is very substantial
him on several occasions: (a) while they were inside the bus bound for because it pertains to the essential nature of the offense, i.e., whether the
Quiapo; (b) when they alighted form the bus and roamed the sidestreets of offense was consummated or merely attempted. In People vs. Ablaneda,
Quiapo; and especially so, (c) when they entered the hotel and finally the wherein a housewife executed a sworn statement for attempted rape and
room where the alleged rape took place. Accused-appellant was unarmed later changed the accusation to consummated rape without a rational
and his tight grip could not have prevented private complainant from at least explanation, this Court held that the general rule does not apply when the
shouting for help. Her demeanor was simply inconsistent with that of the complainant completely changed the nature of her accusation. The
ordinary Filipina whose instinct dictates that the summon every ounce of her contradiction does not concern a trivial or inconsequential detail but involves
strength and courage to thwart any attempt to besmirch her honor and the essential fact of the consummation of the rape. (PP -vs- ALBERT
blemish her purity. True, women react differently in similar situations, but it is ERNEST WILSON, G.R. No. 135915, Dec. 21, 1999)
too unnatural for an intended rape victim, as in this case, not to make even
feeble attempt to free herself despite a myriad of opportunities to do so.
NATURE OF INCESTUOUS RAPE
Second. The deportment of the private complainant after the alleged
rape accentuates the dubiety of her testimony. After the alleged rape, she Incestuous rape of a daughter by a father has heretofore been
did not leave immediately but even refused to be separated from her bitterly and vehemently denounced by this Court as more than just a
supposed defiler despite the prodding of the latter. Worse, she went with him shameful and shameless crime. Rape in itself is a nauseating crime that
to the house of his sister and there they slept together. Indeed this attitude deserves the condemnation of all decent persons who recognize that a
runs counter to logic and common sense. Surely private complainant would woman's cherished chastity is hers alone to surrender at her own free will,
not risk a second molestation and undergo a reprise of the harrowing and whoever violates this norm descends to the level of the odious beast.
experience. To compound matters, it took her four (4) days to inform her But the act becomes doubly repulsive where the outrage is perpetrated on
parents about this agonizing episode in her life. Truly, her insouciance is one's own flesh and blood for the culprit is further reduced to a level lower
very disturbing, to say the least. than the lowly animal and forfeits all respect otherwise due him as a human.
(PP -vs- MELANDRO NICOLAS Y FAVELLA, G.R. Nos. 125125-27, Feb.
Finally. The prosecution failed to substantiated any of its allegations. 4, 2000)
Instead, it opted to stand or fall on the uncorroborated and implausible
testimony of the private complainant. It is elementary in our rules of
evidence that a party must prove the affirmative of his allegations. (PP -vs-
TOMAS CLAUDIO Y MENIJIE, G.R. No. 133694, Feb. 29, 2000) LOVE RELATIONSHIP DO NOT RULE OUT RAPE

Even assuming ex gratia argumenti that accused-appellant and


WHEN TWO AFFIDAVITS ARE EXECUTED BY THE COMPLAINANT IN A private complainant were indeed sweethearts as he claims, this fact alone
RAPE CASE, ONE FOR ATTEMPTED RAPE AND ANOTHER FOR will not extricate him from his predicament. The mere assertion of a "love
CONSUMMATED RAPE AND ARE INCONSISTENT WITH EACH OTHER, relationship" would not necessarily rule out the use of force to consummate
CONVICTION CANNOT BE HAD the crime. It must be stressed that in rape case, the gravamen of the offense
is sexual intercourse with a woman against her will or without her consent.
It is true that affidavits are generally subordinated in importance to open Thus, granting arguendo that the accused and the victim were really lovers
court declarations. The general rule is that variance between an extrajudicial this Court has reiterated time and again that "A sweetheart cannot be forced
sworn statement of the complainant and here testimony in court does not to have sex against her will. Definitely, a man cannot demand sexual
45
gratification from a fiancée, worse, employ violence upon her on the pretext
of love. Love is not a license for lust." (PP -vs- DANTE CEPEDA Y
SAPOTALO, G.R. No. 124832, Feb. 1, 2000)
COMPENSATORY DAMAGES IN CASES OF QUALIFIED RAPE

With regard to the award of compensatory damages, we have rule in People


PLACES NOTORIOUS FOR HOLD-UPS DONE AT NIGHT - IS vs. Victor, which was later reaffirmed in People vs. Prades, that "if the
CONSIDERED AGGRAVATING AS NIGHT TIME crime of rape is committed or effectively qualified by any of the
circumstances under which the death penalty is authorized by the present
Considering that the place where the crime took place was amended law, the indemnity of the victim shall be in the increased amount of
"notorious for hold-ups done at night, precisely to maximize the advantage of not less than P75,000.00." (PP -vs- ANTONIO MAGAT Y LONDONIO,
darkness," we cannot but agree with the trial court that nighttime was G.R. No. 130026, May 31, 2000)
purposely sought by accused-appellants "for the more successful
consummation may be perpetrated unmolested or so that they could escape
more thoroughly." (PP -vs- FELIMON ALIPAYO Y TEJADA, ET AL., G.R.
No. 122979, Feb. 2, 2000) NATURE OF INTIMIDATION IN CASE OF RAPE

In People vs. Luzorata, the Court held that intimidation was


addressed to the mind of the victim and therefore subjective, and its
RAPE MAY BE COMMITTED IN ALMOST ALL PLACES presence could not be tested by any hard-and-fast rule but must be viewed in
light of the victim's perception and judgment at the time of the crime. Thus,
Appellant considers it quite improbable for rape to be committed at a when a rape victim becomes paralyzed with fear, she cannot be expected to
place within a well-lighted and fairly well-populated neighborhood. This think and act coherently, her failure to immediately take advantage of the
argument does not hold water. Rape can be commi9tted even in places early opportunity to escape does not automatically vitiate the credibility of her
where people congregate, in parks, along the roadside, within school account. "Complainant cannot be faulted for not taking any action inasmuch
premises, inside a house where there are other occupants, and even in the as different people react differently to a given type of situation, there being no
same room in the presence of other members of the family. |An standard form of human behavioral response when one is confronted with a
overpowering wicked urge has been shown not to be deterred by strange, startling or frightful experience." (PP -vs- VICENTE BALORA Y
circumstances of time or place. DELANTAR, G.R. No. 124976, May 31, 2000)

DEATH PENALTY CANNOT BE IMPOSED WHEN INFORMATION FAILED EACH AND EVERY RAPE ALLEGED MUST BE PROVEN
TO INDICATE THE AGE OF THE VICTIM AND HER CORRECT
RELATIONSHIP WITH THE ACCUSED Each and every charge of rape is a separate and distinct crime so that each
of the sixteen other rapes charged should be proven beyond reasonable
The penalty of death cannot be properly imposed since the doubt. The victim's testimony was overly generalized and lacked specific
indictment has failed to indicate the age of the victim and her correct details on how each of the alleged sixteen rapes was committed. Her bare
relationship with appellant, concurrent qualifying circumstances, essential in statement that she was raped so many times on certain weeks is clearly
the imposition of that penalty. Furthermore, appellant is not a "parent, inadequate and grossly insufficient to establish the guilt of accused-
ascendant, step-parent, guardian, relative by consanguinity or affinity within appellant insofar as the other sixteen rapes charged are concerned. In
the third civil degree, or the common-law spouse of the parent of the victim." People vs. Garcia this Court succinctly observed that:
The latter's grandmother, Remedios Lustre, herself acknowledges that
appellant has just for a time been her common-law husband. (PP -vs- xxx the indefinite testimonial evidence that complainant was raped
FEDERICO LUSTRE Y ENCINAS, G.R. No. 134562, April 6, 2000) every week is decidedly inadequate and grossly insufficient to establish the
46
guilt of appellant therefor with the required quantum of evidence. So much enough to render incredible the complaint of a 13-year old daughter. (PP
of such indefinite imputations of rape, which are uncorroborated by any -vs- CONRADO CABANA @ RANDY, G.R. No. 127124, May 9, 2000)
other evidence fall within this category. (PP -vs- EDMUNDO DE LEON Y
JESUS, G.R. No. 130985, Dec. 3, 1999)
WHEN THERE IS A SEPARATE CRIME OF RAPE AND ROBBERY IS
COMMITTED
AT THE START THERE MUST BE RAPE, BUT SUBSEQUENT EVENTS
MAY BECOME A FACTOR THAT THE REALTIONSHIP, ALTHOUGH As related by Private Complainant Amy de Guzman, accused-appellant
INCESTOUS, CONVICTION FOR RAPE CANNOT BE HAD suddenly jumped over the counter, strangled her, poked a knife at the left
side of her neck, pulled her towards the kitchen where he forced her to
"Complainant could have been raped the first time accused-appelant undress, and gained carnal knowledge of her against her will and consent.
had carnal knowledge of her, when she was 13 years old. This however, is Thereafter, he ordered her to proceed upstairs to get some clothes, so he
not a prosecution for such rape. When she complained of having been raped could bring her out, saying he was not leaving her alive. At this point,
in this case, she was already 30 or 31 years old, 17 or 18 years after she appellant conceived the idea of robbery because, before they could reach the
had been allegedly ravished for the first time by her father, the herein upper floor, he suddenly pulled Amy down and started mauling her until she
accused-appelant. During the said period of 17 or 18 years, neither lost consciousness; then he freely ransacked the place. Leaving Amy for
complainant nor her parents denounced accused-appellant despite the fact dead after repeatedly banging her head, first on the wall, then on the toilet
that he continued to have sexual relation allegedly without the consent of bowl, he took her bracelet, ring and wristwatch. He then proceeded upstairs
complainant. During this period, four children were born to complainant and where he took as well the jewelry box containing other valuables belonging to
accused-appellant. Complainant and accused-appellant practically his victim's employer.
cohabited, choosing the baptismal sponsors for their children, and even
inviting friends and relatives to the feasts. The relationship was known to Under these circumstance, appellant cannot be convicted of the special
neighbors. Thus, their relationship might be incestuous, but it was not by complex crime of robbery with rape. However, since it was clearly proven
reason of force or intimidation. For their part, while in the beginning beyond reasonable doubt that he raped Amy de Guzman and thereafter
complainant's mother and sisters may have disapproved of the relationship, robbed her and Ana Marinay of valuables totaling P16,000.00, he committed
in the end, it would appear that subsequently they just turned a blind eye on two separate offenses -rape with the use of deadly weapon and simple
the whole affair. Given these facts, we cannot say that on September 19, robbery with force and intimidation against persons.
1995 when accused-appellant had sexual intercourse with complainant, he
committed rape. (People v. Villalobos, G.R. 134294, 05/21/2001)

CASES WHEREIN THE SCANDAL RESULTING FROM RELATIONS OF


THE DELAY AND INITIAL RELUCTANCE OF A RAPE VICTIM TO MAKE COMPLAINANT AND ACCUSED IMPELS THE COMPLAINANT OR HER
PUBLIC THE ASSAULT ON HER VIRTUE IS NEITHER UNKNOWN OR RELATIVES TO FILE COMPLAINT OF RAPE AGAINST THE ACCUSED
UNCOMMON. AS HELD IN LTHE CASE OF PEOPLE VS. MALAGAR BUT DID NOT PROSPER

"Vacillation in the filing of complaint by rape victim is not an Thus in People vs. Lamarroza, a case involving an eighteen-year old
uncommon phenomenon. This crime is normally accompanied by the woman "intellectually weak and gullible," the Court found that the alleged
rapist's threat on the victim's life, and the fear can last for quit a while. There victim's family was "obviously scandalized and embarrassed by (the victim)
is also the natural reluctance of a woman to admit her sullied chastity, Elena's 'unexplained' pregnancy," prompting them to cry "rape." The Court
accepting thereby all the stigma it leaves, and to then expose herself to the acquitted the accused.
morbid curiosity of the public whom she may likely perceived rightly or
wrongly, to be more interested in the prurient details of the ravishment than In People vs. Domogoy, private complainant was seen having sexual
in her vindication and the punishment of the rapist. In People vs. Coloma intercourse in the school premises with appellant therein by the latter's co-
(222 SCRA 255) we have even considered an 8-year delay in reporting the accused. "It is thus not farfetched," the Court held, "for complainant to have
long history of rape by the victim's father as understandable and so not

47
instituted the complainant for rape against the three to avoid being bruited cudgels for them than for the woman to admit her own acts of indiscretion.
around as a woman of loose morals." (PP -vs- ERWIN AGRESOR, G.R. Nos. 119837-39, Dec. 9, 1999)

Similarly, in People vs. Castillon, the Court considered the


complainant's agreement to engage in pre-marital sexual intercourse
"already a disgrace to her family, what more of her acquiescence to have JUDGES SHOULD NOT BE OVERLY PROTECTIVE OF EVERY WOMAN
sexual intercourse on a stage near the vicinity where the JS program was IN RAPE CASES. THEY MUST LOOK AT THE CHARGE WITH EXTREME
being held and prying eyes and ears abound." CAUTION AND CIRCUSMPECTION

In People vs. Bawar, the complainant was caught in flagrante by her Rape is a very emotional word, and the natural human reactions to it
sister-in-law engaging in sexual intercourse with the accused, a neighbor. are categorical: sympathy for the victim and admiration for her in publicly
The Court gathered from the complainant's testimony that "she filed the case seeking retribution for her outrageous misfortune, and condemnation of the
because she thought it would be better to cry 'rape' and bring suit to salvage rapist. However, being interpreters of the law and dispensers of justice,
and redeem her honor, rather than have reputation sullied in the community judges must look at a rape charge without those proclivities and deal and
by being bruited around and stigmatized as an adulterous woman." with it with extreme caution and circumspection. Judges must free
themselves of the natural tendency to be overprotective of every woman
People vs. Godoy also involved an adulterous relationship between decrying her having been sexually abused and demanding punishment for
the accused, who was married, and his seventeen-year old student. In the abuser. While they ought to be cognizant of the anguish and humiliation
acquitting the accused, the Court held: the rape victim goes through as she demands justice, judges should equally
bear in mind that their responsibility is to render justice based on the law.
The Court takes judicial cognizance of the fact that in rural areas in (PP -vs- EDWIN LADRILLO, G.R. No. 124342, Dec. 8, 1999)
the Philippines, young ladies are strictly required to act with circumspection
and prudence. Great caution is observed so that their reputations shall
remain untainted. Any breath of scandal which brings dishonor to their SEXUAL HARASSMENT LAW
character humiliates their entire families. It could precisely be that (RA 7877)
complainant's mother wanted to save face in the community where
everybody knows everyone else, and in an effort to conceal her daughter's
indiscretion and escape the wagging tongues of their small rural community, WORK, EDUCATION OR TRAINING-RELATED
she had to weave the scenario of this rape drama. SEXUAL HARASSMENT DEFINED.

Here, the elopement of a thirteen-year old with her nineteen-year old Work, education or training-related sexual harassment is committed by an
second cousin no doubt caused quite a tempest in the otherwise serene employer, employee, manager, supervisor, agent of the employer, teacher,
community of Vintar, Ilocos Norte. That complainant's parents were against instructor, professor, coach, trainor, or any other person who, having
their relationship, as evidenced in one of her letters, makes it more likely that authority, influence or moral ascendancy over another in a work or training or
the charges of rape were instigated to salvage the complainant's and her education environment, demands, requests or otherwise requires any sexual
family's honor. favor from the other, regardless of whether the demand, request or
requirement for submission is accepted by the object of said Act.
While the "sweetheart theory" does not often gain favor with this
Court, such is not always the case if the hard fact is that the accused and the
supposed victim are, in truth, intimately related except that, as is usual in WHEN SEXUAL HARASSMENT IS COMMITTED:
most cases, either the relationship is illicit or the victim's parents are against
it. It is not improbable that in some instances, when the relationship is Work, Education or Training-related Sexual Harassment Defined
uncovered, the alleged victim or her parents for that matter would take the
risk of instituting a criminal action in the hope that the court would take the Work, education or training-related sexual harassment is committed
by an employer, employee, manager, supervisor, agent of the employer,

48
teacher, instructor, professor, coach, trainor, or any other person who, having
authority, influence or moral ascendancy over another in a work or training or The religious education of children in all public and private schools is a
education environment, demands, requests or otherwise requires any sexual legitimate concern of the Church to which the students belong. All churches
favor from the other, regardless of whether the demand, request or may offer religious instruction in public and private elementary and
requirement for submission is accepted by the object of said Act. secondary schools, subject to the requirements of the Constitution and
existing laws.
In work-related or employment environment:

(1) The sexual favor is made as a condition in the hiring or in the TERMINATION OF RIGHTS OF PARENTS
employment, re-employment or continued employment of said
individual, or in granting said individual favorable compensation, When a child shall have been committed to the Department of Social Welfare
terms, conditions, promotions, or privileges; or the refusal to or any duly licensed child placement agency or individual pursuant to an
grant the sexual favor results in limiting, segregating or order of the court, his parents or guardian shall thereafter exercise no
classifying the employee which in any way would discriminate, authority over him except upon such conditions as the court may impose.
deprive or diminish employment opportunities or otherwise
adversely affect said employee;
(2) The above acts would impair the employee's rights or privileges VIOLATION OF PD 603 BY A CHILD
under existing labor laws; or
(3) The above acts would result in an intimidating, hostile, or Prohibited Acts:
offensive environment for the employee.
It shall be unlawful for any child to leave the person or institution to which he
In an education or training environment: has been judicially or voluntarily committed or the person under whose
custody he has been placed in accordance with the next preceding article, or
(1) Against one who is under the care, custody or supervision of for any person to induce him to leave such person or institution, except in
the offender; case of grave physical or moral danger, actual or imminent, to the child.
(2) Against one whose education, training, apprenticeship or Any violation of this article shall be punishable by an imprisonment of not
tutorship is entrusted to the offender; more than one year or by a fine of not more than two thousand pesos, or
(3) When the sexual favor is made a condition to the giving of a both such fine and imprisonment at the discretion of the court: Provided, That
passing grade, or the granting of honors and scholarships or the if the violation is committed by a foreigner, he shall also be subject to
payment of a stipend, allowance or other benefits, privileges, or deportation.
considerations; or
(4) When the sexual advances result in an intimidating, hostile or
offensive environment for the student, trainee or apprentice. CARE OF YOUTHFUL OFFENDER
HELD FOR EXAMINATION OR TRIAL
Any person who directs or induces another to commit any
act of sexual harassment as herein defined, or who cooperates in the A youthful offender held for physical and mental examination or trial or
commission thereof by another without which it would not have been pending appeal, if unable to furnish bail, shall from the time of his arrest be
committed, shall also be held liable under this Act. committed to the care of the Department of Social Welfare or the local
rehabilitation center or a detention home in the province or city which shall be
responsible for his appearance in court whenever required: Provided, That in
CHILD AND YOUTH WELFARE CODE the absence of any such center or agency within a reasonable distance from
( PD 603 with Amendments) the venue of the trial, the provincial, city and municipal jail shall provide
quarters for youthful offenders separate from other detainees. The court may,
in its discretion, upon recommendation of the Department of Social Welfare
RELIGIOUS INSTRUCTION or other agency or agencies authorized by the Court, release a youthful

49
offender on recognizance, to the custody of his parents or other suitable exclusive jurisdiction of the Military Tribunals, they may be committed at any
person who shall be responsible for his appearance whenever required. military detention or rehAbilitation center.

SUSPENSION OF SENTENCE AND COMMITMENT PD 1210


OF YOUTHFUL OFFENDER ARTICLE 192 OF PD 603 AS AMENDED IS FURTHER
AMENDED TO READ AS FOLLOWS:
If after hearing the evidence in the proper proceedings, the court should find
that the youthful offender has committed the acts charged against him the "Art. 192. Suspension of sentence and Commitment of Youthful
court shall determine the imposable penalty, including any civil liability Offender. - If after hearing the evidence in the proper proceedings, the court
chargeable against him. However, instead of pronouncing judgment of should find that the youthful offender has committed the acts charged against
conviction, the court shall suspend all further proceedings and shall commit him, the court, shall determine the imposable penalty, including any civil
such minor to the custody or care of the Department of Social Welfare, or to liability chargeable against him. However, instead of pronouncing judgment
any training institution operated by the government, or duly licensed of conviction, the court upon application of the youthful offender and if it finds
agencies or any other responsible person, until he shall have reached that the best interest of the public as well as that of the offender will be
twenty-one years of age or, for a shorter period as the court may deem served thereby, may suspend all further proceedings and commit such minor
proper, after considering the reports and recommendations of the to the custody or care of the Department of Social Services and
Department of Social Welfare or the agency or responsible individual under Development or to any training institution operated by the government or any
whose care he has been committed. other responsible person until he shall have reached twenty one years of
age, or for a shorter period as the court may deem proper, after considering
The youthful offender shall be subject to visitation and supervision by a the reports and recommendations of the Department of Social Services and
representative of the Department of Social Welfare or any duly licensed Development or the government training institution or responsible person
agency or such other officer as the Court may designate subject to such under whose care he has been committed.
conditions as it may prescribe.
Upon receipt of the application of the youthful offender for
suspension of his sentence, the court may require the Department of Social
PD 1210 Services and Development to prepare and submit to the court a social case
ARTICLE 191 OF PD 603 IS HEREBY study report over the offender and his family.
AMENDED TO READ AS FOLLOWS
The Youthful offender shall be subject to visitation and supervision
"Article 101. Care of Youthful Offender Held for Examination or Trial. - A by a representative of the Department of Social Services & Development or
youthful offender held for physical and mental examination or trial or pending government training institution as the court may designate subject to such
appeal, if unable to furnish bail, shall from the time of his arrest be committed conditions as it may prescribe.
to the care of the Dept. of Social Services and Development or the local
rehabilitation center or a detention home in the province or city which shall be The benefits of this article shall not apply to a youthful offender who
responsible for his appearance in court whenever required: Provided, that in has once enjoyed suspension of sentence under its provisions or to one who
the absence of any such center or agency within a reasonable distance from is convicted of an offense punishable by death or life imprisonment or to one
the venue of the trial, the provincial, city and municipal jail shall provide who is convicted for an offense by the Military Tribunals.
quarters for youthful offenders separate from other detainees. The court may,
in its discretion upon recommendation of the Department of Social Services
& Development or other agency or agencies50authorized by the CouRt, PD 1179
rElease a youthFul offender on50recognizance, to the custody of his parents APPEAL
or other suitable persoN who shall be responsible for his appearance
whenever required. However, in the case of those whose cases fall under the The order of the court denying an application for suspension of sentence
under the provisions of Article 192 above shall not be appealable."

50
(3) Taking advantage of influence or relationship to procure a
child as prostitute;
RETURN OF THE YOUTHFUL (4) Threatening or using violence towards a child to engage him
OFFENDER TO THE COURT as a prostitute; or
(5) Giving monetary consideration goods or other pecuniary
Whenever the youthful offender has been found incorrigible or has benefit to a child with intent to engage such child in prostitution.
wilfully failed to comply with the conditions of his rehabilitation programs, or
should his continued stay in the training institution be inadvisable, he shall be (b) Those who commit the act of sexual intercourse of lascivious
returned to the committing court for the pronouncement of judgment. 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
When the youthful offender has reached the age of twenty-one while perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and
in commitment, the court shall determine whether to dismiss the case in Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape
accordance with the extent preceding article or to pronounce the judgment or lascivious conduct, as the case may be: Provided, That the penalty for
conviction. In the latter case, the convicted offender may apply for probation lascivious conduct when the victim is under twelve (12) years of age shall
under the provisions of Presidential Decree Numbered Nine Hundred and reclusion temporal in its medium period; and
Sixty-Eight.
(c) Those who derive profit or advantage therefrom, whether as
In any case covered by this article, the youthful offender shall be manager or owner of the establishment where the prostitution takes place, or
credited in the service of his sentence with the full time spent in actual of the sauna, disco, bar, resort, place of entertainment or establishment
commitment and detention effected under the provisions of this Chapter." serving as a cover or which engages in prostitution in addition to the activity
for which the license has been issued to said establishment.

ATTEMPT TO COMMIT
CHILD PROSTITUTION
RA 7610
CHILD ABUSE LAW There is an attempt to commit child prostitution under Section 5,
paragraph (a) hereof when any person who, not being a relative of a child, is
CHILD PROSTITUTION AND found alone with the said child inside the room or cubicle of a house, an inn,
OTHER SEXUAL ABUSE hotel, motel, pension house, apartelle or other similar establishments, vessel,
vehicle or any other hidden or secluded area under circumstances which
Children, whether male or female, who for money, profit, or any other would lead a reasonable person to believe that the child is about to be
consideration or due to the coercion or influence of any adult, syndicate or exploited in prostitution and other sexual abuse.
group, indulge in sexual intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual abuse. There is also an attempt to commit child prostitution, under
paragraph (b) of Section 5 hereof when any person is receiving services from
The penalty of reclusion temporal in its medium period to reclusion perpetua a child in a sauna parlor or bath, massage clinic, health club and other similar
shall be imposed upon the following: establishments. A penalty lower by two (2) degrees than that prescribed for
the consummated felony under Section 5 hereof shall be imposed upon the
(a) Those who engage in or promote, facilitate or induce child principals of the attempt to commit the crime of child prostitution under this
prostitution which include, but are not limited to, the following: Act, or, in the proper case, under the Revised Penal Code.

(1) Acting as a procurer of a child prostitute;


(2) Inducing a person to be a client of a child prostitute by CHILD TRAFFICKING
means of written or oral advertisements or other similar means;

51
Any person who shall engage in trading and dealing with children If the child used as a performer, subject or seller/distributor is below
including, but not limited to, the act of buying and selling of a child for money, twelve (12) years of age, the penalty shall be imposed in its maximum period.
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 Any ascendant, guardian, or person entrusted in any capacity with
period when the victim under twelve (12) years of age. the care of a child who shall cause and/or allow such child to be employed or
to participate in an obscene play, scene, act, movie or show or in any other
acts covered by this section shall suffer the penalty of prision mayor in its
ATTEMPT TO COMMIT medium period.
CHILD TRAFFICKING

There is an attempt to commit child trafficking under Section 7 of this OTHER ACTS OF NEGLECT, ABUSE,
Act: CRUELTY OR EXPLOITATION AND
OTHER CONDITIONS PREJUDICIAL
(a) When a child travels alone to a foreign country without valid TO THE CHILD’S DEVELOPMENT
reason therefor and without clearance issued by the Department of
Social Welfare and Development or written permit or justification (a) Any person who shall commit any other acts of child abuse,
from the child's parents or legal guardian; cruelty or exploitation or to be responsible for other conditions prejudicial to
the child's development including those covered by Article 59 of Presidential
(b) When a person, agency, establishment or child-caring Decree No. 603, as amended, but not covered by the Revised Penal Code,
institution recruits women or couples to bear a children for the as amended, shall suffer the penalty of prision mayor in its minimum period.
purpose of child trafficking; or
(b) Any person who shall keep or have in his company a minor,
(c) When doctor, hospital or clinic official or employee, nurse, twelve (12) years or under or who in ten (10) years or more his junior in any
midwife, local civil registrar or any other person simulates birth for public or private place, hotel, motel, beer joint, discotheque, cabaret, pension
the purpose of child trafficking; house, sauna or massage parlor, beach and/or other tourist resort or similar
places shall suffer the penalty of prision mayor in its maximum period and a
(d) When a person engages in the act of finding children among fine of not less than Fifty thousand pesos (P50,000): Provided, That this
low-income families, hospitals, clinics, nurseries, day-care centers, provision shall not apply to any person who is related within the fourth degree
or other child-during institutions who can be offered for the purpose of consanguinity or affinity or any bond recognized by law, local custom and
of child trafficking. tradition or acts in the performance of a social, moral or legal duty.

A penalty lower two (2) degrees than that prescribed for the (c) Any person who shall induce, deliver or offer a minor to any
consummated felony under Section 7 hereof shall be imposed upon the one prohibited by this Act to keep or have in his company a minor as
principals of the attempt to commit child trafficking under this Act. provided in the preceding paragraph shall suffer the penalty of prision mayor
in its medium period and a fine of not less than Forty thousand pesos
(P40,000); Provided, however, That should the perpetrator be an ascendant,
OBSCENE PUBLICATIONS stepparent or guardian of the minor, the penalty to be imposed shall be
AND INDECENT SHOWS prision mayor in its maximum period, a fine of not less than Fifty thousand
pesos (P50,000), and the loss of parental authority over the minor.
Any person who shall hire, employ, use, persuade, induce or coerce
a child to perform in obscene exhibitions and indecent shows, whether live or (d) Any person, owner, manager or one entrusted with the
in video, or model in obscene publications or pornographic materials or to operation of may public or private place of accommodation, whether for
sell or distribute the said materials shall suffer the penalty of prision mayor in occupancy, food, drink or otherwise, including residential places, who allows
its medium period. any person to take along with him to such place or places any minor herein
described shall be imposed a penalty of prision mayor in its medium period

52
and a fine of not less than Fifty thousand pesos (P50,000), and the loss of (d) The safety and protection of those who provide services
the license to operate such a place or establishment. including those involved in fact-finding missions from both government and
non-government institutions shall be ensured. They shall not be subjected to
(e) Any person who shall use, coerce, force or intimidate a undue harassment in the performance of their work;
street child or any other child to :
(e) Public infrastructure such as schools, hospitals and rural
(1) Beg or use begging as a means of living; health units shall not be utilized for military purposes such as command
(2) Act as conduit or middlemen in drug trafficking or pushing; or posts, barracks, detachments, and supply depots; and
(3) Conduct any illegal activities, shall suffer the penalty of prision
correccional in its medium period to reclusion perpetua. (f) All appropriate steps shall be taken to facilitate the reunion
of families temporarily separated due to armed conflict.
For purposes of this Act, the penalty for the commission of acts
punishable under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 RIGHTS OF CHILDREN ARRESTED
of Act No. 3815, as amended, the Revised Penal Code, for the crimes of FOR REASONS RELATED TO
murder, homicide, other intentional mutilation, and serious physical injuries, ARMED CONFLICT
respectively, shall be reclusion perpetua when the victim is under twelve (12)
years of age. The penalty for the commission of acts punishable under Article Any child who has been arrested for reasons related to armed
337, 339, 340 and 341 of Act No. 3815, as amended, the Revised Penal conflict, either as combatant, courier, guide or spy is entitled to the following
Code, for the crimes of qualified seduction, acts of lasciviousness with the units;
consent of the offended party, corruption of minors, and white slave trade,
respectively, shall bE53One ( dEgree higher tHan that53imposed by law (a) Separate detention from adults except where families are
when the victim is under twelve (12) years age. accommodated as family units;
The victim of the acts committed under this section shall be entrusted to the (b) Immediate free legal assistance;
care of the department of Social Welfare and Development. (c) Immediate notice of such arrest to the parents or guardians
of the child; and
(d) Release of the child on recognizance within twenty-four (24)
CHILDREN AS ZONES OF PEACE hours to the custody of the Department of Social Welfare and
Development or any responsible member of the community as
Children are hereby declared as Zones of Peace. It shall be the determined by the court.
responsibility of the State and all other sectors concerned to resolve armed
conflicts in order to promote the goal of children as zones of peace. To attain If after hearing the evidence in the proper proceedings the court
this objective, the following policies shall be observed. should find that the aforesaid child committed the acts charged against him,
the court shall determine the imposable penalty, including any civil liability
(a) Children shall not be the object of attack and shall be entitled chargeable against him. However, instead of pronouncing judgment of
to special respect. They shall be protected from any form of threat, assault, conviction, the court shall suspend all further proceedings and shall commit
torture or other cruel, inhumane or degrading treatment; such child to the custody or care of the Department of Social Welfare and
Development or to any training institution operated by the Government, or
(b) Children shall not be recruited to become members of the duly-licensed agencies or any other responsible person, until he has had
Armed Forces of the Philippines of its civilian units or other armed groups, reached eighteen (18) years of age or, for a shorter period as the court may
nor be allowed to take part in the fighting, or used as guides, couriers, or deem proper, after considering the reports and recommendations of the
spies; Department of Social Welfare and Development or the agency or responsible
individual under whose care he has been committed.
(c) Delivery of basic social services such as education, primary
health and emergency relief services shall be kept unhampered;

53
The aforesaid child shall subject to visitation and supervision Employment: and Provided, That the following requirements in all instances
Development or any duly-licensed agency such other officer as the court may are strictly complied with:
designate subject to such conditions as it may prescribe.
The aforesaid child whose sentence is suspended can appeal from the order (a) The employer shall ensure the protection, health, safety,
of the court in the same manner as appeals in criminal cases. morals and normal development of the child;
(b) The employer shall institute measures to prevent the child's
CONFIDENTIALITY exploitation or discrimination taking into account the system and
level of remuneration, and the duration and arrangement of working
At the instance of the offended party, his name may be withheld from time; and
the public until the court acquires jurisdiction over the case. (c) The employer shall formulate and implement, subject to the
approval and supervision of competent authorities, a continuing
It shall be unlawful for any editor, publisher, and reporter or program for training and skills acquisition of the requirements.
columnist in case of printed materials, announcer or producer in case of
television and radio broadcasting, producer and director of the film in case of In the above exceptional cases where any such child may be
the movie industry, to cause undue and sensationalized publicity of any case employed, the employer shall first secure, before engaging such child, a work
of violation of this Act which results in the moral degradation and suffering of permit from the Department of Labor and Employment which shall ensure
the offended party. observance of the child.

PEDOPHILIA IS NOT INSANITY The Department of Labor and Employment shall promulgate rules
and regulations necessary for the effective implementation of this Section."
When accused-appellant was committed to the National Center for Mental
Health, he was not diagnosed as insane but was suffering from pedophilia. Thus,
there is no doubt in our mind that he was sane during his two-year confinement in the IF MINOR DO NOT APPLY FOR
center, pedophilia being dissimilar to insanity. SUSPENSION OF SENTENCE IT IS
DEEMED WAIVED. THE COURT CANNOT
MOTU PROPIO GIVE HIM THE BENEFITS
RA 7658 OF ART. 192

EMPLOYMENT OF CHILDREN The record, unfortunately for accused-appellant Buena, does not
show that he filed with the trial court an application for suspension of
Children below fifteen (15) years of age shall not be employed except: sentence so as to put into operation the benevolent provisions of Presidential
Decree No. 603. The Court, therefore, has no other choice but to deny him
1) When a child works directly under the sole responsibility of this privilege.
his parents or legal guardian and where only members of the employer's
family are employed: Provided, however, That his employment neither
endangers his life, safety, health and morals, nor impairs his normal DISCHARGE; REPORT AND ECOMMENDATION
development; Provided, further, That the parent or legal guardian shall OF THE DEPARTMENT OF SOCIAL WELFARE,
provide the said minor child with the prescribed primary and/or secondary SUBJECT TO JUDICIAL REVIEW
education; or
It is not the responsibility of this Court to order the release of
2) Where a child's employment or participation in public accused Ricky Galit without the benefit of a review of the recommendation of
entertainment or information through cinema, theater, radio or television is the Department of Social Welfare by the trial court. Art 196 of PD 603
essential: Provided, The employment contract is concluded by the child's provides: "Art. 196. Dismissal of the case. — If it is shown to the satisfaction
parents or legal guardian, with the express agreement of the child of the court that the youthful offender whose sentence has been suspended,
concerned, if possible, and the approval of the Department of Labor and has behaved properly and has shown his capability to be a useful member of

54
the community, even before reaching the age of majority, upon
recommendation of the Department of Social Welfare, it shall dismiss the
case and order his final discharge." It is therefore clear that in cases where There is a further obstacle that stands in the way of Estorque's
the DSWD recommends the discharge of a youthful offender, it is the trial conviction. While it has been proven that he was only thirteen years old at
court before whom the report and recommendation is subject to judicial the time of the incident, there are no allegations in both informations that
review. Recommendation alone is not sufficient to warrant the release of a Estorque had acted with discernment. And even if we are to consider the
youthful offender. In reviewing the DSWD's recommendation, the trial judge allegations that he had committed the imputed acts "with intent to kill" as
must not base his judgment on mere conclusions but should seek out sufficient compLiance — As we hAve in the past — he wou,d still not be held
concrete, material and relevant facts to confirm that the youthful offender has liable as no proof was offered during trial that he had so acted with
indeed been reformed and is ready to re-enter society as a productive and discernment. Accordingly, even if he was indeed a co-conspirator or an
law-abiding citizen. Caution, however, is given to the trial court. To begin accessory, he would still be exempt from criminal liability. (Pp. V. Cordo~a;
with, the youthful offender is not to be tried inew for the same act for which GR 83373-74, 7/5/93)
he was charged. The inQuiry is not a CriminaL prosecution but is ratheR
limited to the determination of the offender's55proper education and
rehabilitation during his commitment in the Training Center and his moral and EVERY ACCUSED IS PRESUMED TO BE SANE AT THE TIME OF
social fitness to re-join the community. (Pp. V. Galit; GR 97432, 3/1/94) COMMISSION OF THE CRIME

SUSPENSION OF SENTENCE NOT APPLICABLE The law presumes all acts to be voluntary, and that it is improper To
IF PENALTY IS RECLUSION PERPETUA, presume that acts were done uNconsciously. The quantUm of eviDence
LIFE IMPRISONMENT OR DEATH required to overthrow the presumption of sanity is proof beyond reasonable
doubt. Since insanity is in the nature of a confession and avoidance, it musT
As aforesaid, however, accused Ricky Galit and Raquel Tagalog did be proven beyond reasonaBle doubt. Moreover, an accused is presumed to
not appeal from the judgment of the trial court. Neither did the People have been sane at the time of the commission of the crime in the absence of
question the suspension of their sentence. The benefits of suspension of pOsitive evidence to show that he had lost his reason or was demented priOr
sentence are not available where the youthful offender has been convicted of to or during the Perpetration of the crime.
an offense punishable by life imprisonment or death. The last paragraph of (Pp. v. Cordova, supra.)
section 2 of Presidential Decree No. 1210, which amended certain provisions
of P.D. 603, provides:
FAILURE OF DEFENSE TO ASK FOR
"The benefits of this article shall not apply to a youthful SUSPENSION OF ARRAIGNMENT
offender who has once enjoyed suspension of sentence under its NEGATES INSANITY
provisions or to one who is convicted of an offense punishable by
death or life imprisonment or to one who is convicted for an offense Appellant Eduardo Cordova did not even ask for the suspension of
by the Military Tribunals." (Par. 4, Sec. 2, P.D. No. 1179, as his arraignment on the ground that he was suffering from insanity. Paragraph
amended by P.D. No. 1210; emphasis supplied) (a), Section 12, Rule 116 of the Revised Rules of Court provides that the
(Pp. v. Galit, supra.) arraignment of an accused who appears to be suffering from an unsound
mental condition which effectively renders him unable to fully understand the
charge against him and to plead intelligently thereto, shall be suspended. In
the case at bar, Eduardo Cordova even took the witness stand to testify.
(Pp. V. Cordova, supra.)

YOUTHFUL OFFENDER, TO BE CRIMINALLY LIABLE, ACCUSED, A 13 CHILD & YOUTH WELFARE CODE,
YEAR OLD, MUST ACT WITH DISCERNMENT NOT APPLICABLE TO DEATH OR

55
RECLUSION PERPETUA SENTENCE case and order the final discharge56of said offender; or (2) to prOnounce the
judgment of conviction. In56Plain and siMpLe language, It is either dismIssal
The Child and Youth Welfare Code does not apply to those or sENtence. (Pp. V. Garcia; supra.)
convicted of offenses punishable by death, or reclusion perpetua
(Presidential Decree No. 603, as amended by Presidential Decree N. 603, as CIVIL LIABILITY OF YOUTHFUL
amended by Presidential Decree Nos. 1179 and 1210). The fact is Bolioc is OFFENDER, DEFINED
now twenty-three years old. He is not entitled to a suspended sentence. He
is entitled to a two-degree reduction of the penalty (Art. 68, RPC). The civil liability for damages referred to is apparently that obligation
(Pp. V. Mendez; GR L-48131; 5/30/83) cReated by or arIsing from the crime, otherwise known as ex delicto the
imposition of which is mandated by56Articles 100, 104(3), 107 and 345(1) of
the Revised Penal Code, (People vs. Peña, L-36434, December 20, 1977, 80
SCRA 589, 599) and is based upon a finding of the guilt of the accused.
SUSPENSION OF SENTENCE; CANNOT (Pp. V. Garcia, supra.)
BE AVAILED OF WHERE OFFENDER IS ALREADY OVER 21 YEARS
OLD AT THE
TIME56OF PROMULGATION OF HIS SENTENCE REPUBLIC ACT NO. 8484
(The Access Device Regulation)
It is true that Venancio Villanueva was a youthful offendez as defined
by Art. 19 because he was under 21 years56oF AGe when he coMmitteD the
oFfense on February 22, 1974. However, when he was sentenced on JuLy An act regulating the issuance and use of access devices, prohibiting
30, 1975, he was over 21 years old and under the terms of Art. 192 (as well fraudulent acts committed relative thereto, providing penalties and for other
as Art. 197) he was no longer entitled to suspension of sentence. purposes.
(Villanueva v. CFI; GR L-45798, 12/15/82)
The recent advances in modern technology have led to the extensive
WHEN PRESIDENTIAL DECREE NO. 603 use of certain devices in commercial transactions, prompting the State to
MAY BE GIVEN RETROACTIVE EFFECT regulate the same. hence, on February 3, 1998, Congress enacted Republic
Act Number 8484, otherwise known as The Access Devices Regulation Act
Where P.D. 603 is more favorable to the accused in that the of 1998.
sentence against them may he suspended, said Decree may be given
retroactive effect, not only with the end in view of giving force and effect to Termed as "access devices" by RA No. 8484, any card, plate, code,
the laudable policies for which the P.D. otherwise known as the Child and account number, electronic serial number, personal identification number, or
Youth Welfare Code was promulgated, hut also in the light of the provisions other telecommunication service, equipment, or instrumental identifier, or
of Article 22 of the Revised Penal Code. (People v. Garcia; GR L-45280-81, other means of account access t hat can be used to obtain money, good,
6/11/81) services or any other thing of value or to initiate transfer of funds (other than
transfer originated solely by paper instrument) is now subject to regulation.
The issuance and use of access devices are ought to regulate in order to
PRESIDENTIAL DECREE NO. 603; protect the rights and define the liabilities of parties in commercial
ALTERNATIVE COURSES OF ACTION transactions involving them.
OF THE COURT WHEN YOUTHFUL
OFFENDER IS RETURNED AFTER Essentially, the law imposes duties both to the access device issuer
REACHING THE AGE OF MAJORITY and holder, and penalize certain acts deemed unlawful for being detrimental
to either the issuer or holder, or both.
The trial court has two alternative courses of action with respect to a
youthful offender whose sentence it had suspended and who is returned to The law mandates an access device issuer, or "card issuer," to
the court upon his reaching the age of majority. These are: (1) to dismiss the disclose either in writing or orally in any application or solicitation to open a

56
credit card account the following: 1) annual percentage rate; 2) annual and Clearly, in this case decided in 1999, the Court was concerned about
other fees; 3) and balance calculation method; 4) cash advance fee; and 5)) an access device issuer's vulnerability to abuse the provisions of the
over the limit fee. contract. It is quite surprising, however, that the Court did not make reference
to RA No. 8484 to think that it was already in effect when the resolution was
Moreover, the computation used in order to arrive at such charges promulgated.
and fees required, to the extent practicable, to be explained in detail and a
clear illustration of the manner by which it is made to apply is also necessary. Nonetheless, in American Express International Co., Inc. vs. IAC
(GR NO. 70766, November 9, 1988) Supreme Court turned down the
Nonetheless, there are certain exceptions for the above requirement argument of private respondent grounded on the adhesion principle saying
of disclosure not to apply. This is when application or solicitation is made indeed, in a contract of adhesion the maker of the contract has all the
through telephone, provided that the issuer does not impose any annual fee, advantages, however, the one to whom it is offered has the absolute
and fee in connection with telephone solicitation unless the customer prerogative to accept or deny the same.
signifies acceptance by using the card, and that a clear disclosure of the
information enumerated in the preceding paragraph is made in writing within On the other hand, an access device holder may be penalized when
thirty (30) after the consumer requests for the card, but in no event later than he or she fraudulently applied for such device. An access device fraudulently
the date of the delivery of the card, and that the consumer is not obligated to applied for means any access device that was applied for or issued on
accept the card or account and the consumer will not be obligated to pay any account of the use of falsified document, false information, fictitious identities
fees or charges disclosed unless the consumer accepts the card or account and addresses, or any form of false pretense or misrepresentation. Thus, the
by using the card. use, trafficking in, possession, and inducing, enticing or in any manner
allowing one to use access device fraudulently applied for are considered
Failure on the part of the issuer to fulfill the above requirements will unlawful.
result in the suspension or cancellation of its authority to issue credit cards,
after due notice and hearing, by the Banko Sentral ng Pilipinas, the The element of fraud is indispensable for this provision of RA 8484 to
Securities and Exchange Commission and such other government agencies. apply. It is a condition sine qua non before one may be charged with the
defined offense.
In sum therefore, the above omission is made punishable if the
following elements occur. One, there is an application or solicitation. Second, Thus, the law provides for presumptions of Intent to defraud on the
such application or solicitation should include the information required by law. basis of mere possession, control or custody of: a) an access device without
and third, failure on the part of the issuer to disclose such information. lawful authority; b) a counterfeit access device; any device making or altering
equipment; c) an access device or medium on which an access device is
In one case (Ermitano v. GR No. 127246, April 21, 1999), the written not in the ordinary course of the possessor's business; or d) any
Supreme Court had the occasion to rule on the validity of contracts involving genuine access device, not in the name of the possessor.
credit cards. The credit cards holder contended that the credit card company
should be blamed for the charges the same being unwarranted by the A card holder who abandons or surreptitiously leaves the place of
contract. As stipulated, once a lost card has been reported, purchases made employment, business or residence stated in his application for credit card,
thereafter should not accrue on the part of the holder. without informing the credit card company of the place where he could
actually be found, if at the time of such abandonment or surreptitious leaving,
The Court said notwithstanding the fact that the contract of the the outstanding and unpaid balance is past due for at least ninety (90) days
parties is a contract of adhesion the same is valid. However, if the same and is more than ten thousand pesos (P10,000.00), shall be prima facie
should include terms difficult to interpret as to hide the true intent to the presumed to have used his credit card with intent to defraud.
detriment of the holder, holding it void requires no hesitation. Thus, contracts
which provide for ambiguous terms of payment, imposition of charges and
fees may be held void invoking the principle of the contract of adhesion. At first glance, the above presumptions, when applied in real cases,
may suffer from constitutional infirmities. The constitution provides that a
person shall not be held to answer to a criminal offense without due process

57
of law. it may be argued that such presumptions are rebuttable ones. The penalties are increased in case the offender has a similar
However, the danger lies in the shifting of the burden of proof from the previous conviction, meaning if he was previously found violating RA 8484. In
prosecution to the defense. which case, the accused shall suffer imprisonment of not less than twelve
(12) years and not more than twenty (20) years.
The law provides for sixteen (16) prohibited acts which refer to the
production, use, possession of or trafficking in unauthorized or counterfeit The two other stages of felony, as defined by the Revised Penal
access devices. It also includes acts deemed fraudulent that increase the Code is also made punishable. Thus, attempted and frustrated are meted out
amount involved in commercial transactions using access devices. Obtaining with the penalties of imprisonment and fine albeit only in fractions of the
money or anything of value through the use of an access device with intent to above penalties.
defraud or gain, and fleeing thereafter.
R.A. 8484 may seem to favor the issuer. A credit card company may
In the final analysis, the law basically seeks to address the issue of only be meted out the penalty of cancellation or suspension, which may be
fraud in the issuance and use of access devices, especially credit cards. considered as mere administrative sanctions. In fact, it is not the courts
Fraud may be committed by the issuer by making false or vague information which impose such sanctions but administrative agencies such as the
in the application or solicitation to open credit card accounts. The applicant or Bangko Sentral and the Securities and Exchange Commission.
holder, on the other hand, fraudulently misrepresents himself by giving wrong
identity, false profession or employment, or bloated income. On the other hand, a holder or mere possessor of a counterfeit
fraudulently applied for access device may be convicted and be made to
Take the case for instance of Citibank v. Gatchalian (GR No. suffer imprisonment and fine.
111222, January 18, 1995) which shows how credit card applicants through
false representation were able to amass in simple terms P790,000.00 from
petitioner.
DANGEROUS DRUG ACT OF 2002
In this case, two employees of the Asian-Pacific Broadcasting Co,. (Republic Acts No. 9165)
Inc. (ABCI) applied for nineteen (19( credit cards with Citibank using different
names other than their real names. The Citibank approved the applications
and the credit cards were delivered to them for use. However, this case DEFINITIONS OF TERMS
involves an illegal dismissal case where a Citibank employee was found
guilty of gross negligence for effecting the delivery of the credit cards. Her Chemical Diversion – the sale, distribution, supply or transport of legitimately
dismissal was affirmed in this case. imported, in-transit, manufactured or procured controlled precursors and
essential chemicals, in diluted, mixtures or in concentrated form, to any
Insofar as access device issuers are concerned, Eermitano v. C.A., person or entity engaged in the manufacture of any dangerous drug, and
may be a case in point. The credit card holder lost his credit card which he shall include packaging, repackaging, labeling, relabeling or concealment of
immediately reported to the card issuer. The contract stipulated that in case such transaction through fraud, destruction of documents, fraudulent use of
of lost, the same should be reported immediately, otherwise purchases made permits, misdeclaration, use of front companies or mail fraud.
shall be charged to the holder. In this case, despite the prompt reporting of
the holder, the issuer still charged the purchases against the former. The Controlled Delivery – The investigative technique of allowing an unlawful or
Court in this case held the issuer in breach of the contract. suspect consignment of any dangerous drug and/or controlled precursor and
essential chemical, equipment or paraphernalia, or property believed to be
The penalties provided for by RA 8484 are imprisonment and fine. derived directly or indirectly from any offense, to pass into, through or out of
Imprisonment is from six (6) years to ten (10) years and fine ranges from ten the country under the supervision of any unauthorized officer, with a view to
thousand pesos (10,000.00) or twice the value of the offense, whichever is gathering evidence to identify any person involved in any dangerous drug
higher. related offense, or to facilitate prosecution of that offense.

58
Controlled Precursor and Essential Chemicals – Includes those listed in 1. Under this Act there is no more distinction between prohibited drug and
Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic regulated drugs and/or controlled precursors and essential chemicals enumerated in
Drugs and Psychotropic Substances as enumerated in the attached annex, Tables I and II of the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and
which is an integral part of this Act. Psychotropic Substances.

Drug Dependence – As based on the World Health Organization definition, it 2. The penalties provided by R.A. 7659 was changed , adopting partially the
is a cluster of physiological, behavioral and cognitive phenomena of variable penalties in R.A. 6425.
intensity, in which the use of psychoactive drug takes on a high priority
thereby involving, among others, a strong desire or a sense of compulsion to 3. In planting evidence any person now maybe held liable. Before, only law
take the substance and the difficulties in controlling substance-taking enforcement agents.
behavior in terms of its onset, termination, or levels of use.
4. the provisions of the Revised Penal Code have no suppletory effect
Drug Syndicate – Any organized group of two (2) or more persons forming or except for minors who may be sentenced to reclusion perpatua.
joining together with the intention of committing any offense prescribed under
this Act.
What are the new kinds of drugs
Illegal Trafficking – The illegal cultivation, culture, delivery, administration, that are included in R.A. 9165?
dispensation, manufacture, sale, trading, transportation, distribution,
importation, exportation, and possession of any dangerous drug and/or Methylenedioxymethamphetamine (MDMA) or commonly known as
controlled precursor and essential chemical. “Ecstasy”, or its any other name which refers to the drugs having such
chemical composition, including any of its isomers or derivatives in any form.
Protector/Coddler – Any person who knowingly and willfully consents to the Paramethoxyamphetamine (PMA), Trimethoxyamphetamine (TMA), lysergic
unlawful acts provided for in this Act and uses his/her influence, power or acid diethylamine (LSD), gamma hydroxybutyrate (GHB) and those similarly
position in shielding, harboring, screening or facilitating the escape of any designed or newly introduced drugs and their derivatives, without having any
person he/she knows, or has reasonable ground to believe on or suspects, therapeutic value or if the quantity possessed is far beyond therapeutic
has violated the provision of this Act in order to prevent the arrest, requirement, as determined and promulgated by the Board in accordance to
prosecution and conviction of the violator. Section 93, Art XI of this Act of R.A. 9165.

Pusher – Any person who sells, trades, administers, dispenses, delivers, or


gives away to another, on any terms whatsoever, or distributes, dispatches in ACTS PUNISHABLE UNDER THE LAW
transit or transports dangerous drugs or who acts as a broker in any of such
transaction, in violation of this Act. 1.) Importation of any dangerous drug, regardless of the quantity and
purity involved, including any and all species of opium poppy or any
Planting of evidence – the willful act by any person of maliciously and part thereof or substances derived thereform even for floral,
surreptitiously inserting, placing, adding or attaching directly or indirectly, decorative and culinary purposes.
through any overt or covert act whatever quantity of any dangerous drug 2.) Importation of any controlled precursor and essential chemical.
and/or controlled precursor and essential chemical in the person, house, 3.) Importation of any dangerous drug and/or controlled precursor
effects or in the immediate vicinity of an innocent individual for the purpose of and essential chemical through the use of a diplomatic passport,
implicating, incriminating, or imputing the commission of any violation of this diplomatic facilities or any other means involving his/her official
Act. status intended to facilitate the unlawful entry.
4.) Organizing, managing, or acting as a “financier” of any of the
illegal activities penalized under Section 4 of the Law.
What are the significant Provisions in R.A. 6425 5.) Acting as “protector/coddler” of anyone who violates Section 4 of
that have been changed? the Law.

59
6.) Sale, trading, administration, dispensation, distribution and essential chemical; (b) Sale, trading, administration, dispensation,
transportation of dangerous drugs, regardless of quantity and purity delivery, distribution, and transportation of any dangerous drug
involved, or acting as a broker in any of such transactions. and/or controlled precursor and essential chemical; (c) Maintenance
7.) Sale, trading, administration, dispensation, distribution and of a den, dive, or resort where dangerous drugs is used in any form;
transportation of any controlled precursor and essential chemical, or (d) Manufacture of any dangerous drug and/or controlled precursor
acting as a broker in such transaction. and essential chemical; and (e) Cultivation or culture of plants which
8.) Use by drug pushers of minors or mentally incapacitated are sources of dangerous drugs.
individuals as runners, couriers and messengers, or in any other
capacity directly connected to the trade of dangerous drugs and/or
controlled precursor and chemicals.
9.) Acting as a protector/coddler of any violator of the provision of Sec. CRIMINAL LIABILITY OF ALIENS, OFFICERS
5. OF PARTNERSHIP, CORPORATION, ASSOCIATIONS, OR OTHER
10.) Maintenance of a Den, Dive or Resort where any dangerous drug is JURIDIUCAL ENTITIES
used or sold in any form.
11.) Maintenance of a Den, Dive or Resort where any controlled 1. In addition to the penalties prescribed in the unlawful act committed,
precursors and essential chemical is used or sold in any form. any alien who violates such provisions of the Law, after service of sentences, shall be
12.) Acting as “protector/coddler” of a maintainer of a Den, Dive, or deported immediately without further proceedings, unless the penalty is death.
Resort 2. In case the violation of the Law is committed by a partnership,
13.) Employees and Visitors of a Den, Drive, or Resort corporation, association or any juridical entity, the partner, president, director, manager,
14.) Manufacture of Dangerous Drugs and/or Controlled Precursors and trustee, estate administrator, or officer who consents to or knowingly tolerates such
Essential Chemicals violation shall be held criminally liable as co-principal.
15.) Acting as a protector or coddler of any violator of Sec. 8 3. The penalty provided for the offense under the Law shall be imposed
16.) Illegal Chemical Diversion of Controlled Precursor and Essential upon the partner, president, director, manager, trustee, estate administrator, or officer
Chemicals. who knowingly authorizes, tolerates, or consents to the use of a vehicle, vessel,
17.) Manufacture or Delivery of Equipment, Instrument, Apparatus, and aircraft, equipment or other facility as an instrument in the importation, sale, trading,
other Paraphernalia for Dangerous Drugs and/or Controlled administration, dispensation, delivery, distribution, transportation, or manufacture of
Precursors and Essential Chemicals. dangerous drugs, or chemical diversion, if such vehicle, aircraft, equipment or other
18.) Possession of Drug. instrument is owned by or under the control or supervision of the partnership,
19.) Possession of equipment, Instrument, Apparatus, and Other corporation, association or juridical entity to which they are affiliated.
Paraphernalia for Dangerous Drugs
20.) Possession of Dangerous Drugs During Parties, Social Gathering or
Meetings. CRIMINAL LIABLITY OF PUBLIC OFFICERS OR EMPLOYEES
21.) Possession of Equipment, Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs during Parties, Social Gathering 1. Any public officer or employee who (1) misappropriates, (2)
or Meetings. misapplies or (3) fails to account for confiscated, seized or surrendered
22.) Use of Dangerous Drugs. drugs, plant sources of dangerous drugs, controlled precursors and
23.) Cultivation or Culture of Plants Classified as Dangerous Drugs or essential chemicals, instruments/paraphernalia and/or laboratory
are Sources thereof. equipment including the proceeds or properties obtained from the
24.) Maintenance and keeping of Original Records of Transaction on unlawful acts punished under the Law shall be penalized with life
Dangerous Drugs and/or Controlled Precursors and Essential imprisonment to death and a fine ranging fromP500,000.00 to
Chemicals P10,000,000.00 and with perpetual disqualification from any public
25. Unnecessary Prescription of Dangerous Drugs office (Sec.27).
26.) Unlawful Prescription of Dangerous Drugs
27.) Attempt or Conspiracy to commit the following unlawful acts: (a) 2. Any government official or employee found guilty of the
Importation of any dangerous drugs and/or controlled precursor and unlawful acts punished under the Law shall be imposed the maximum

60
penalties provided for the offense and shall be absolutely perpetually rights shall also be suspended during the pendency of an appeal from such
disqualified from holding any public office. (Sec. 28). conviction (Sec.35)

AGGRAVATING CIRCUMSTANCES
CRIMINAL LIABILITY OF ELECTIVE LOCAL OR NATIONAL OFFICIALS WHO DRUG RELATED CASES
BENEFITS FROM DRUG TRAFFICKING – whether or not he know that it came
from drugs, but the one who gave must be convicted first by final judgment. 1.) If the importation or bringing into the Philippines of any dangerous
drugs and/or controlled precursor and essential chemicals was done
1. Any elective local or national official found to have (1) benefited from the through the use of diplomatic passport, diplomatic facilities or any other
proceeds of the trafficking of dangerous drugs as prescribed in the Law, or has (2) means involving his/her official status intended to facilitate the unlawful
received any financial or material contributions or donations from natural or entry of the same
juridical persons found guilty of trafficking dangerous drug as prescribed in the
law, shall be removed from office and perpetually disqualified from holding any 2.) The sale trading, administration, dispensation, delivery, distribution
elective or appointive positions in the government, its divisions, subdivisions, and or transportation of any dangerous drug and/or controlled precursor and
intermediaries, including government-owned or controlled corporations (\sec.27) essential chemical transpired within one hundred (100) meters from the
school

CRIMINALLIABILITY OF PRIVATE INDIVIDUAL 3.) The drug pusher use minors or mentally incapacitated individuals
as runners, couriers and messenger, or in any other capacity directly
2. Any person found guilty of “planting” any dangerous drug and/or controlled connected to the dangerous drug and/or controlled precursor and
precursor and essential chemical, regardless of quantity and purity, shall be essential chemical trade.
punished with death. (Sec. 29).
3. Any person violating any regulation issued by the Dangerous Drug Board 4.) The victim of the offense is a minor or mentally incapacitated
shall be punished with imprisonment ranging from 6 months and 1 day to 4 years individual, or should a dangerous drug and/or controlled precursor and
and a fine ranging from P10,000.00 to P50,000.00 in addition to the administrative essential chemicals involved `in any offense be the proximate cause of
sanction which may be imposed by the Board (Sec. 32) death of a victim.

5.) In case the clandestine laboratory is undertaken or established


CRIMINAL LIABILITY FOR under the following circumstances:
PLANTING OF EVIDENCE
a.) Any phase of the manufacturing process was
Any person who is found guilty of planting nay dangerous drug and/ or conducted in the presence or with the help of minor/s
controlled precursor and essential chemicals, regardless of quantity and purity, b.) Any phase of manufacturing process was
shall suffer the penalty of death. (Sec. 29). Previosly, only law enforcement established or undertaken within one hundred (100)
agent maybe held liable (R.A. 7659). meters of a residential, business, church or school
premises.
c.) Any clandestine laboratory was secured or
ACCESORY PENALTIES protected with booby traps.
d.) Any clandestine laboratory was concealed
Any person convicted under this Law (R.A.9165) shall be disqualified to with legitimate business operations.
exercise his/her civil rights such as, but not limited to, the right of parental e.) Any employment of a practitioner, chemical
authority or guardianship, either as to the person or property of any ward, the engineer, public official or foreigner.
rights to dispose of such property by any act or any conveyance inter vivos, and
political rights such as but not limited to, the right to vote and be voted for. Such

61
6.) In case the person uses a minor or a mentally incapacitated offense with reference to which his/her information of testimony in bar of
individual to deliver equipment, instrument, apparatus and other such prosecution; Provided, that the following condition concur:
paraphernalia use for dangerous drugs.
1.) The information and testimony are
7.) Any person found possessing any dangerous drug during a party, necessary for the conviction of the person described
or a social gathering or meeting, or in the proximate company of at above;
least two (2) person. 2.) Such information are not yet in the
possession of the State;
8.) Possession or having under his/her control any equipment, 3.) Such information and testimony can be
instrument, apparatus and other paraphernalia fit of intended for corroborated on its material points;
smoking, consuming, administering, injecting, ingesting or introducing 4.) The informant or witness has not been
any dangerous drug into the body, during parties, social gatherings or previously convicted of a crime involving moral
meetings, or in the proximate company of at least two (2) person turpitude, except when there is no other direct
evidence available for the State other than the
information and testimony of said informant or
WHAT ARE THE PRIVILEGE NOT witness; and
AVAILABLE TO VIOLATOR OF THIS ACT? 5.) The informant or witness shall strictly and
faithfully comply without delay, any condition or
1.) Any person charged under any provision of this Act regardless of undertaking, reduced into writing, lawfully imposed by
the imposable penalty shall not be allowed to avail of the the State as further consideration for the grant of
provision on plea-bargaining. immunity from prosecution and punishment.
2.) Any person convicted for drug trafficking or pushing under this
Act, regardless of the penalty imposed by the Court, cannot avail Provided, further, That this immunity may be enjoyed by such
of the privilege granted by the Probation Law of P.D. No. 968, as informant or witness who does not appear to be most guilty for the
amended, except minors who are first-time offenders. offense with reference to which his/her information or testimony
were given. Provide, finally, that there is no direct evidence
Note:- Pendency of appeal suspend the right of the accused available for the State except for the information and testimony of
- Rights to Self-incrimination do not refer to giving blood. the said informant or witness.

IMMUNITY FROM PROSECUTION TERMINATION OF THE


AND PUNISHMENT GRANT OF IMMUNITY

Immunity from Prosecution and punishment – Notwithstanding the The immunity above-granted shall not attach should it turn out
provision of Section 17, Rule 119 of the Revised Rules of Criminal subsequently that the information and/or testimony is false, malicious, or
Procedure and the provisions of Republic Act No. 6981 or the Witness made only for the purpose of harassing, molesting or in any way
Protection, Security and Benefits Act of 1991, any person who has prejudicing the persons described in Section 33 against whom such
violated Sections 7,11, 12, 14, 15 and 19, Article II of this Act, who information or testimony is directed. In such case, the informant or witness
voluntarily gives information about any violation of Section 4, 5, 6, 8, 13 shall be subject to prosecution and the enjoyment of all rights and benefits
and 16, Article II of this Act as well as any violation of the offenses previously accorded him under the Law or any other law, decree or order
mentioned if committed by drug syndicate, or of any information leading shall be deemed terminated.
to the whereabouts, identities and arrest of all or any of the members
thereof; and who willingly testifies against such persons as described In case the informant or witness under the Law fails or refuse to
above, shall be exempted from the prosecution or punishment for the testify without just cause, and when lawfully obliges to do so, or should
he/she violate any condition accompanying such immunity as provided

62
above, his/her immunity shall be removed and he/she shall be likewise be f.) All candidates for public office whether appointed or elected
subjected to contempt and/or criminal prosecution, as the case may be and both in the national or local government shall undergo a mandatory
the enjoyment of all rights and benefits previously accorded him under the drug test.
Law or in any other law, decree or order shall be deemed terminated. (Sec
34.)
CONFIDENTIALITY OF RECORDS UNDER
In case the informant or witness referred to under the Law falls under THE COMPULSARY SUBMISSION PROGRAM
the applicability of Section 34, such individual cannot avail of the provision
under Article VIII of the Law. The records of a drug dependent who was rehabilitated and
discharged from the Center under the compulsory submission program, or
who was charged for violation of Section 15 of this Act, shall be covered by
PERSON/S WHO ARE SUBJECT Section 60 of this Act (R.A. 9165). However, the record of a drug dependant
TO THE MANDATORY DRUG TESTING who was not rehabilitated, or who escaped but did not surrender
himself/herself within the prescribed period, shall be forwarded to the court
a.) Applicants for driver’s license – no driver’s license shall be and their use shall be determined by the court, taking into consideration
issued or renewed to nay person unless he/she presents a public interest and the welfare of the drug dependant (Sec. 64)
certification that he/she has undergone a mandatory drug test and
indicating thereon that he/she is free from the use of dangerous DISCHARGED AFTER COMPLIANCE WITH CONDITIONS OF
drugs. SUSPENDED SENTENCE OF A FIRST-TIME MINOR OFFENDER
b.) Applicants for firearm’s license and permit to carry firearms
If the accused first time minor offender under suspended sentence
outside of residence. – All applicants for firearms license and permit
complies with the applicable rules and regulation of the Board, including
to carry firearms outside of residence shall undergo a mandatory
confinement in a Center, the court, upon a favorable recommendation of the
drug test to ensure that they are free from the use of dangerous
Board for a final discharge of the accused, shall discharge the accused and
drugs; Provided, That all persons who by the nature of their
dismiss all proceedings.
profession carry firearms shall undergo drug testing;
Upon the dismissal of the proceedings against the accused, the court
c.) Officers and employees of public and private offices. – Officers shall enter an order to expunge all official records, other than the confidential
and employees of public and private offices, whether domestic or record to be retained by the DOJ relating to the case. Such an order, which
overseas, shall be subjected to undergo a random drug test as shall be kept confidential, shall restore the accused to his/her status prior to
contained in the company’s work unless and regulation, which shall the case. He/she shall not be held thereafter to be guilty of perjury or of
be borne by the employer, for purposes of reducing the risk in the concealment or misrepresentation by reason of his/her failure to
workplace. Any officer or employee found positive for the sue of acknowledge the case or recite any fact related therto in response to any
dangerous drug shall be dealt with administratively which shall be a inquiry madeof him for any purpose (Sec. 67)
ground for suspension or termination, subject to the provision Article
282 of the Labor Code and pertinent provisions of the Civil Service
Law. THE DANGEROUS DRUGS BOARD AND
d.) Officers and members of the military, police and other law PHILIPPINE DRUG ENFORCEMENT AGENCY
enforcement agencies. – Officers and members of the military, police
and other law enforcement agencies shall undergo an annual The Dangerous Drug Board
mandatory drug test.
e.) All persons charged before the prosecutor’s office with a A. Function
criminal offense having an imposable penalty of imprisonment of not
less than six (6) years and one (1) day shall have undergo a The Dangerous Drug Board shall be the policy-making and
mandatory drug test. strategy formulating body in the planning and formulation of policies
and programs on drug prevention and control. (Sec. 77)

63
representative; (11) Chairman of the National Youth Commission; and
B. Composition (12) Director General of the Philippine Drug Enforcement Agency.
Cabinet secretaries who are members of the Board may
Under R.A. 6424 as amended, the Dangerous Drug board was designate their duly authorized and permanent representatives whose
composed of seven ex officio members as follows: (a) The Minister of rank shall in no case be lower than undersecretary.
Health or his representative; (b) the Minister of Justice or his The two (2) regular members shall be as follows: (a) The
representative; (c) The Minister of National Defense or his President of the Integrated Bar of the Philippines; and (b) The
representative; (d) The Minister of Education and Culture or his chairman or president of a non- chairman or president of a non-
representative; (e) The Minister of Finance or his representative; (f) chairman or president of a non-government organization involved in
The Minister of Social Service and Development or his representative; dangerous drug campaign to be appointed by the President of the
and (g) The Minister of Local Government or his representative (Sec. Philippines.
35 Art. 8, R.A. 6424)
The Minister of Health shall be the Chairman of the Board and the
Director of the National Bureau of Investigation shall be the The Philippine Drug Enforcement Agency (PDEA)
permanent consultant of the Board.
Under Section 78 of R.A. 9165, the membership of the Dangerous
Drugs Board was expanded to seventeen (17) members, three (3) of Carry out the provision of the Dangerous Drug act of 2002.
which are permanent members, twelve (12) shall be in ex officio The Agency shall served as the implementing arm of the Dangerous
capacity, and the remaining two (2) shall be regular members. Drug Board, and shall be responsible for the efficient and effective law
The three (3) permanent members, who shall possess At least enforcement of all provisions of any dangerous drug and/or controlled
seven-year training and experience in the field of dangerous drugs precursor and essential chemicals as provided for in the Law. (Sec.
and in any of the following fields: in law, medicine, criminology, 82). The existing Secretariat of the National Drug Law Enforcement
psychology or social work, shall be appointed by the President of the and Prevention Coordinating Center as created by Executive Order
Philippines. The President shall designate a Chairman, who shall No. 61 is hereby modified and absorbed by the PDEA (Sec. 83, R.A.
have the rank of a secretary from among the three (3) permanent 9165)
members who shall serve for six (6) years. Of the two (2) other
members, who shall have the rank of undersecretary, one (1) shall B.) Powers and Duties
serve for four (4) and the other for two (2) years. Thereafter, the
person appointed to succeed such members shall hold office for a a.) Implement or cause the efficient and effective implementation of the
term of six (6) years and until their successors shall have been duly national drug control strategy formulated by the Board thereby
appointed and qualified. carrying out a national drug campaign program which shall include
The other twelve (12) members who shall be ex officio members drug law enforcement, control and prevention campaign with the
of the Board are the following: (1) Secretary of the Department of assistance of concerned government agencies;
Justice or his/her representative; (2) Secretary of the Department of b.) Undertake the enforcement of the provision of article II of this Act
Health or his/her representative; (3) Secretary of the Department of relative to the unlawful acts and penalties involving any dangerous
National Defense or his/her representative; (4) Secretary of the drug and/or controlled precursor and essential chemical and
Department of Finance or his/her representative; (5) Secretary of the investigate all violators and other matters involved in the commission
Department of Labor and Employment or his/her representative; (6) of any crime relative to the use, abuse or trafficking of any dangerous
Secretary of the Department of Interior and Local Government or drug and/or controlled precursor and essential chemicals as provided
his/her representative; (7) Secretary of the Department of Social for in this Act and the provisions of Presidential Decree No. 1619;
Welfare and Development or his/her representative; (8) Secretary of c.) Administer oath, issue subpoena and subpoena duces tecum relative
the Department of Foreign Affairs or his/her representative; (9) to the conduct of investigation involving violation of this Act;
Secretary of the Department of Education or his/her representative; d.) Arrest and apprehend as well as search all violators and seize or
(10) Chairman of the Commission of Higher Education or his/her confiscate, the effects or proceeds of the crime as provided by law and
take custody thereof, for this purpose the prosecutors and enforcement
64
agents are authorized to possess firearms, in accordance with the firearms for their protection in connection with the performance of their
existing laws; duties; Provided, That no previous special permit for such possession
e.) Take charge and have custody of all dangerous drugs and/or shall be required;
controlled precursors and essential chemicals seized, confiscated or o.) Require all government and private hospitals, clinics, doctors, dentists
surrendered to any national, provincial or local law enforcement and other practitioners to submit a report to it, in coordination with the
agency; if no longer needed for purposes of evidence in court. Board, about all dangerous drugs and/or controlled precursors and
f.)Establish forensic laboratories in each PNP office in every province and essential chemicals which they have attended to for data and
city in order to facilitate action on seized or confiscated drugs; thereby information purposes;
hastening its destruction without delay; p.) Coordinate with the Board for the facilitation of the issuance of necessary
g.) Recommend to the DOJ the forfeiture of properties and other assets of guidelines, rules and regulations for the proper implementation of this
persons and/or corporations found to be violating the provisions of this Act;
Act and in accordance with the pertinent provisions of the Anti-Money q.) Initiate and undertake a national campaign for drug prevention and drug
Laundering Act of 2002. control programs, where it may enlist the assistance of any
h.) Prepare for prosecution or cause the filing of appropriate criminal and department, bureau, office, agency, or instrumentality of the
civil cases for violation of laws on dangerous drugs, controlled government, including government-owned and/or controlled
precursors and essential chemicals, and other similar controlled corporations, in the anti-illegal drugs drive, which may include the use
substance, and assist, support and coordinate with other government of their respective personnel, facilities, and resources for a more
agencies for the proper and effective prosecution of the same; resolute detection and investigation of drug-related crimes and
i.)Monitor and if warranted by circumstances, in coordination with the prosecution of the drug traffickers; and
Philippine Postal Office and the Bureau of Customs, inspect all air r.) Submit an annual and periodic report to the Board as may be required
cargo packages, parcels and mails in the central post office, which form time to time, and perform such other functions as may be
appear from the packages and address itself to be a possible authorized or required under existing laws and as directed by the
importation of dangerous drugs and/or controlled precursors and President himself/herself or as recommended by the congressional
essential chemicals, through on-line or cyber shops via the internet or committees concerned.
cyberspace;
j.)Conduct eradication programs to destroy wild or illegal growth of plants Note:
from which dangerous drugs may be extracted; There are however certain power and duties of the PDEA
k.) Initiate and undertake the formation of a nationwide organization which enumerated under Section 84 of R.A. 9165 which seems to overlap with
shall coordinate and supervise all activities against drug abuse in every the functions of prosecutors such as (1) the preparation for prosecution
province, city, municipality and barangay with active and direct or the causing of the filing of appropriate criminal cases for violation of
participation of all such local government units and non-governmental the Law; and (2) filing of charges and transmittal of evidence to the
organizations, including the citizenry, subject to the provisions of proper court and which have to be clarified in the Implementing Rules
previously formulated programs of action against dangerous drugs; and Regulation that may be issued by the DDB and the PDEA later.
l.)Establish and maintain a national drug intelligence system in cooperation
with law enforcement agencies, other government agencies/offices and
local government units that will assist in its apprehension of big time JURISDICTION OVER DRUG RELATED CASES
drug lords;
m.) Established and maintain close coordination, cooperation and linkages The Supreme Court shall designate special court from among
with international drug control and administration agencies and the existing Regional Trial Court in each judicial region to exclusively
organization and implement the applicable provisions of international try and hear cases involving violations of this Act. The number of
conventions and agreement related to dangerous drugs to which the courts designated in each judicial region shall be based in their
Philippines is a signatory; respective jurisdiction.
n.) Create and maintain an efficient special enforcement unit to conduct
an investigation, file charges and transmit evidence to the proper court, The DOJ shall designate special prosecutor to exclusively handle
wherein members of the said unit shall possess suitable and adequate cases involving violations of this Act.

65
After conviction in the Regional Trial Court in the appropriate criminal
PRELIMINARY INVESTIGATION case filed, the Court shall immediately schedule a hearing for the
OF DANGEROUS DRUG CASES confiscation and forfeiture of all the proceeds of the offense and all the
assets and properties of the accused either owned or held by him or in the
The preliminary investigation of cases filed under this Act shall be name of some other persons if the same shall be found to be manifestly out
terminated within the period of thirty (30) days from the date of their filing of proportion to his/her lawful income; Provided, however, That if the forfeited
property is a vehicle, the same shall be auctioned off not later than five (5)
When the preliminary investigation is conducted by a public days upon order of confiscation or forfeiture.
prosecutor and probable cause is established, the corresponding
information shall be filed in court within twenty-four (24) hours from the During the pendency of the case in the Regional Trial Court, no property,
termination of the investigation. If the preliminary investigation is or income derived thereform, which may be confiscated and forfeited, shall
conducted by a judge and a probable cause is found to exist, the be disposed, alienated or transferred and the same shall be in custodio legis
corresponding information shall be filed by the proper prosecutor within and no bond shall be admitted for the release of the same.
forty-eight (48) hours from the date of receipt of the records of the case.
(Sec. 90) The proceeds of any sale or disposition of any property confiscated
under this section, forfeiture, custody and maintenance of the property
The Department of Justice shall designate special prosecutors to pending disposition, as well as the expense for publication and court costs.
exclusively handle cases involving violations of the Dangerous Drug Act of The proceeds in excess of the above expenses shall accrue to the Board to
2002 (Sec. 90) be used in its campaign against illegal drugs.

Notwithstanding the provision of any law to the contrary, a


positive finding for the use of dangerous drugs shall be a qualifying CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED
aggravating circumstance in the commission of a crime by an offender, AND/OR SURRENDERED DANGEROUS DRUGS, ETC.
and the application of the penalty provided for in the Revised Penal Code
shall be applicable (Sec. 25) The PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled precursors and essential
Confiscation and Forfeiture of the Proceeds or Instruments of the chemicals, as well as instruments/paraphernalia and/or laboratory equipment
Unlawful Act, including the Properties or Proceeds Derived from the that was confiscated, seized and/or surrendered, for proper disposition in the
Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential following manner:
Chemicals
1. The apprehending team having initial custody and control of the
Every penalty imposed for the unlawful importation, sale, trading, drugs shall, immediately after seizure and confiscation, physically
administration, dispensation, delivery, distribution, transportation or inventory and photograph the same in the presence of the accused
manufacture of any dangerous drug and/or controlled precursor and or the person/s from whom such items were confiscated and/or
essential chemical, the cultivation or culture of plants which are sources of seized, or his/her representative or counsel, a representative from
dangerous drugs, and the possession of any equipment, instrument, the media and the Department of Justice (DOJ) and any elected
apparatus and other paraphernalia for dangerous drugs including other public official who shall be required to sign the copies of the
laboratory equipment, shall carry with it the confiscation and forfeiture, in inventory and be given a copy thereof;
favor of the government, of all the proceeds and properties derived from
unlawful act, including, but not limited to, money and other assets obtained 2. Within twenty-four (24) hours upon confiscation/seizure of
thereby, and the instruments or tools with which the particular unlawful act dangerous drugs, plant sources of dangerous drugs, controlled
was committed, unless they are the property of a third person not liable for precursors and essential chemicals, as well as
the unlawful act, but those which are not of lawful commerce shall be ordered instruments/paraphernalia and/or laboratory equipment, the same
destroyed without delay pursuant to the provisions of Section 21 of this Act.

66
shall be submitted to the PDEA Forensic Laboratory for a
qualitative examination; 7. After the promulgation of judgment in the criminal case wherein the
representative sample/s was presented as evidence in court, the
3. A certification of the forensic laboratory examination results, which trial prosecutor shall inform the Board of the final termination of the
shall be under oath by the forensic laboratory examiner, shall be case and in turn, shall request the court for leave to turn over the
issued within twenty-four (24) hours after the receipt of the subject said representative sample/s to the PDEA for proper disposition
items/s: Provided, that when the volume of dangerous drugs, and and destruction within twenty-foru (24) hours from receipt of the
controlled precursors and essential chemicals does not allow the same; and
completion of testing within the time frame, a partial laboratory
examination report shall be provisionally by the forensic laboratory: 8. Transitory Provision: a.) Within twenty-four hours from the
Provided, however, that a final certification on the same within the effectivity of this Act (R.A. 9165), dangerous drugs defined herein
next twenty-four (24) hours; which are presently in possession of law enforcement agencies
shall, with leave of court, be burned or destroyed, in the presence
4. After the filing of the criminal case, the Court shall within seventy- of representative of the Court, DOJ, Department of Health (DOH)
and the accused and/or his/her counsel, and b.) Pending the
two (72) hours, conduct an ocular inspection of the confiscated,
organization of the PDEA, the custody, disposition, and burning of
seized and/or surrendered dangerous drugs, plant sources of
seized or surrendered dangerous drugs provided under this
dangerous drugs, and controlled precursor and essential chemicals,
Section shall be implemented by the DOH (Sec. 21, Art. 2, R.A.
including the instruments/paraphernalia and/or laboratory
9165)
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 which
SUSPENSION OF SENTENCE OF
such items were confiscated and/or seized, or his/her
FIRST-TIME MINOR OFFENDER
representative or counsel, a representative from the media and the
DOJ, civil society group and any elected public official. The Board
An accused who is over fifteen (15) years of age at the time of the
shall draw up the guidelines on the manner of proper disposition
commission of the offense mentioned in Section 11 of R.A. 9165 but not
and destruction of such item/s which shall be borne by the offender;
more that eighteen (18) years of age at the time when the judgment should
Provided, That those item/s of lawful commerce, as determined by
have been promulgated after having been found guilty of said offense, may
the Board, shall be donated, used or recycled for legitimate
be given the benefits of a suspended sentence, subject to the following
purposes; Provided, further, That a representative sample, duly
conditions:
weighed and recorded, is retained;
a.) He/She has not been previously convicted of violating any provision
5. The Board shall then issue a sworn statement as to the fact of
of this Act, or of the Dangerous Drugs Act of 1972, as amended; or of the
destruction or burning of the subject item/s together with the
Revised Penal Code; or any special penal laws;
representative sample/s shall be kept to a minimum quantity as
b.) He/She has not been previously committed to a Center or to the care
determined by the Board;
of a DOH-accredited physician; and
c.) The Board favorably recommends that his/her sentence be
6. The alleged offender or his/her representative or counsel shall be
suspended.
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
PRIVILEGE OF SUSPENDED SENTENCE CAN BE AVAIL ONLY ONCE
representative after due notice in writing to the accused or his/her
BY A FIRST-TIME MINOR OFFENDER
counsel within seventy-two (72) hours before the actual or
destruction of the evidence in question, the Secretary of Justice
The privilege of suspended sentence shall be availed of only once by
shall appoint a member of the public attorney’s office to represent
accused drug dependent who is a first-time offender over fifteen (15) years of
the former;
67
age at the time of the commission of the violation of Section 15 of this Act but OFFICIALS IN TESTIFYING AS PROSECUTION WITNESSES IN
not more than eighteen (18) years of age at the time when judgment should DANGEROUS DRUG CASES?
have been promulgated. (Sec. 68)
Any member of law enforcement agencies or any other government
official and employee who, after due notice, fails or refuse intentionally or
PROMULAGATION OF SENTENCE negligently, to appear as a witness for the prosecution in any proceedings,
FOR FIRST-TIME OFFENDER involving violation of this Act, without any valid reason shall be punished with
imprisonment of not less than twelve (12) years and one (1) day to twenty
If the accused first-time minor offender violates any of the conditions (20) years and a fine of not less than Five hundred thousand pesos
of his/her suspended sentence, the applicable rules and regulations of the (P500,000.00), in addition to the administrative liability he/she may be meted
Board exercising supervision and rehabilitative surveillance over him, out by his/her immediate superior and/or appropriate body.
including the rules and regulations of the Center should confinement be
required, the court shall pronounce judgment of conviction and he/she shall The immediate superior of the member of the law enforcement
serve sentence as any other convicted person. (Sec. 69) agency or any other government employee mentioned in the preceding
paragraph shall be penalized with imprisonment of not less than two (2)
months and one (1) day but not more than six (6) years and a fine of not less
PROBATION OR COMMUNITY SERVICE FOR A FIRST-TIME MINOR than ten thousand (P10,000.00) but not more than Fifty thousand
OFFENDER IN LIEU OF IMPRISONMENT (P50,000.00) and in addition, perpetual absolute disqualification from public
office if despite due notice to them and to the witness concerned the former
Upon promulgation of the sentence, the court may, in its discretion, does not exert reasonable effort to present the latter to the court
place the accused under probation, even if the sentence provided under this
Act is higher than that provided under existing law on probation, or impose The member of the law enforcement agency or any other
community service in lieu of imprisonment. In case of probation, the government employee mentioned in the proceeding paragraphs shall not be
supervision and rehabilitative surveillance shall be undertaken by the Board transferred or re-assigned to any other government office located in another
through the DOH in coordination with the Board of Pardons and Parole and territorial jurisdiction during the pendency of the case in court. However, the
the Probation Administration. Upon compliance with the conditions of the concerned member of the law enforcement agency or government employee
probation, the Board shall submit a written report to the court recommending may be transferred or re-assigned for compelling reason: Provided, that
termination of probation and a final discharge of the probationer, whereupon his/her immediate superior shall notify the court where the case is pending of
the court shall issue such an order. the order to transfer or re-assign, within twenty-four (24) hours from its
approval: Provided further, that his/her immediate superior shall be penalized
The community service shall be complied with under conditions, time with imprisonment of not less than two (2) months and one (1)day but not
and place as may be determined by the court in its discretion and upon the more than six (6) years and a fine of not less than two (2) months and one
recommendation of the Board and shall apply only to violators of Section 15 (1) day but not more than six (6) years and a fine of not less than Ten
of this Act. The completion of the community service shall be under the thousand (P10,000.00) but not more than Fifty thousand pesos (P50,000.00)
supervision and rehabilitative surveillance of the Board during the period and in addition, perpetual absolute disqualification from public office, should
required by the court. Thereafter, the Board shall render a report on the he/she fails to notify the court of such order to transfer or re-assign.
manner of compliance of said community service. The court in its discretion
may require extension of the community service or order a final discharge.
If the sentence promulgated by the court require imprisonment, the DELAY ANF BUNGLING IN THE
period spent in the Center by the accused shall be deducted from the PROSECUTION OF DRUG CASES
sentence to be served. ( Sec. 70)
Any government officer employee tasked with the prosecution of drug-
related cases under this Act, who through patent laxity, inexcusable neglect,
WHAT ARE THE LIABILITY AND RESPONSIBILITY OF A MEMBER OF unreasonable delay or deliberately causes the unsuccessful prosecution and/or
LAW ENFORCEMENT AGENCIES AND OTHER GOVERNMENT dismissal of the said drug cases, shall suffer the penalty of imprisonment

68
ranging from twelve (12) years and one (1) day to twenty (20) years without COST-SHARING IN THE TREATMENT AND REHABILITATION OF A
prejudice to his/her prosecution under the pertinent provision of the Revised DRUG DEFENDENT
Penal Code.
The parents, spouse, guardian or any relative within the fourth
degree of consanguinity of any person who is confined under the voluntary
RECORDS TO BE KEPT BY THE submission program or compulsory submission program shall be charged a
DEPARTMENT OF JUSTICE certain percentage of the cost of his/her treatment and rehabilitation, the
guidelines of which shall be formulated by the DSWD taking into
The DOJ shall keep a confidential record of the proceedings on consideration the economic status of the family of the person confined. The
suspension of sentence and shall not be used for any purpose other than to guidelines therein formulated shall be implemented by a social worker of the
determine whether or not a person accused under this Act is a first-time local government unit. (Sec. 74)
offender. (Sec. 71)

LIMITED APPLICABILITY OF THE REVISED PENAL CODE


LIABILITY OF A PERSON WHO VIUOLATES
THE CONFIDENTIALITY OF RECORDS Notwithstanding any law, rule or regulation to the contrary, the
provisions of the Revised Penal Code (Act. 3814) as amended, shall not
The Penalty of imprisonment ranging from six (6) months and one (1) apply to the provision of this Act, except in the case of minor offenders.
day to six (6) years and a fine ranging from One thousand pesos (P1,000.00) Where the offender is a minor, the penalty for acts punishable by life
to Six thousand pesos (P6,000.00), shall be imposed upon any person who, imprisonment to death provided therein shall be reclusion perpetua to death.
having official custody of or access to the confidential records of any drug (Sec. 98)
dependent under voluntary submission programs, or any one who, having
gained possession of said records, whether lawfully or not, reveals their
content to any person other than those charged with the prosecution of the
offense under this Act and its implementation. The maximum penalty shall be EXCEPTION TO NECESSITY
imposed, in addition to the absolute perpetual disqualification from any public OF A SEARCH WARRANT
office, when the offender is a government official or employee. Should the
records be used for unlawful purposes, such as blackmail of the drug There is no doubt that the warrantless search incidental to a lawful
defendant of the members of his/her family, the penalty imposed for the arrest authorizes the arresting officer to make a search upon the person
crime of violation of confidentiality shall be in addition to whatever crime arrested. An officer making an arrest may take from the person arrested any
he/she convicted of. (Sec. 72) money or property found upon his person which was used in the commission
of the crime or was in fruit of the crime or which might furnish the prisoner
with the means of committing violence or of escaping, which may be used as
LIABILITY OF A PARENTS, SPOUSE OR evidence in the trial of the case. (People v. Musa; GR 96177, 1/27/93)
GUARDIAN WHO REFUSE TO COOPERATE
WITH THE BOARD OR ANY CONCERNED AGENCY
LIKE ALIBI, FRAME UP IS EASY
Any parent, spouse or guardian who, without valid reason parent, TO FABRICATE, BUT DIFFICULT
spouse or guardian who, without valid reason, refuses to cooperate with the TO PROVE
Board or any concerned agency in the treatment and rehabilitation of a drug
defendant who is a minor, or in any manner, prevents or delay the after-care, Frame-up, like alibi, is a defense that has been viewed by courts
follow-up or other programs for the welfare of the accused drug defendant, with disfavor for it can just as easily be connected and is a common and
whether under voluntary submission program or compulsory submission standard line of defense in most prosecution arising from violations of the
program, may be cited in contempt by the court. Dangerous Drugs Act. In order for that defense to prosper, the evidence

69
adduced must be clear and convincing. (People v. Girang; GR 27949, the accused must not solely rely on the pardon as a basis for the release of
2/1/95) the accused from confinement. (People v. Maquilan)

BUY-BUST OPERATION RULE AS TO WHO SHOULD


BE CRIMINALLY CHARGED
Is a form of entrapment employed by peace officers as an effective
way of apprehending a criminal in the act of the commission of the offense. The settled rule is that the determination of who should be criminally
Entrapment has received judicial sanction as long as it is carried out with due charged in court is essentially an executive function, not a judicial one. As
regard to constitutional and legal safeguards. (People v. Basilgo; GR the officer authorized to direct and control the prosecution of all criminal
107327, 8/5/94) actions, the prosecutor is tasked to ascertain whether there is sufficient
ground to engender a well-founded belief that an offense has been
committed and that the accused is probably guilty thereof. (People v.
POSEUR-BUYER, GENERALLY Esparas; GR 120034, July 10, 1998)
NEED NOT TESTIFY

The testimony of the poseur-buyer or of the confidential informant is WHEN THERE IS A WAIVER
no longer material considering that accused-appellant’s drug pushing was OF WARRANTLESS ARREST
positively attested to. Moreover, informants are generally not presumed in
court because of the need to hide their identity and preserve their invaluable The appellants are now precluded from assailing the warrantless
service to the police. (People v. Girang; GR 97949, 2/1/95) search and seizure when they voluntarily submitted to it as shown by their
actuation during the search and seizure. The appellants never protested
when SPO3 Jesus Faller, after identifying himself as a police officer, opened
the tin can loaded in the appellants' vehicle and found eight (8) bundles. And
when Faller opened one of the bundles, it smelled of marijuana. The NBI
later confirmed the eight (8) bundles to be positive for marijuana. Again, the
appellants did not raise any protest when they, together with their cargo of
EFFECT OF LIMITATION UNDER drugs and their vehicle, were brought to the police station for investigation
SECTION 19, ART. VII OF THE and subsequent prosecution. We have ruled in a long line of cases that:
CONSTITUTION ON GRANT OF PARDON
"When one voluntarily submits to a search or
The "conviction by final judgment" limitation under Section 19, Article consents to have it made on his person or premises, he is
VII of the present Constitution prohibits the grant of pardon, whether full or precluded from later complaining thereof (Cooley,
conditional, to an accused during the pendency of his appeal from his Constitutional Limitations, 8th ed., vol. I, page 631). The right
conviction by the trial court. Any application therefor, if one is made, should to be secure from unreasonable search may, like every right,
not be acted upon or the process toward its grant should not be begun be waived and such waiver may be made either expressly or
unless the appeal is withdrawn. Accordingly, the agencies or impliedly."
instrumentalities of the Government concerned must require proof from the
accused that he has not appealed from his conviction or that he has The appellants effectively waived their constitutional right against the
withdrawn his appeal Such proof may be in the form of a certification issued search and seizure in question by their voluntary submission to the
by the trial court or the appellate court, as the case may be The acceptance jurisdiction of the trial court, when they entered a plea of not guilty upon
of the pardon shall not operate as an abandonment or waiver of the appeal, arraignment and by participating in the trial. (People v. Correa; GR 119246,
and the release of an accused by virtue of a pardon, commutation of Jan. 30, ’98)
sentence, or parole before the withdrawal of an appeal shall render those
responsible therefor administratively liable Accordingly, those in custody of

70
WHEN USE OF MOTOR VEHICLE CASES WHEN SEARCH WITHOUT
IN DRUG CASES OR ANY OTHER A WARRANT WAS VALID
CASE IS NOT AGGRAVATING
In People v. Tangliben, acting on information supplied by
Simply stated, the motor vehicle which was used to transport informers, police officers conducted a surveillance at the Victory Liner
prohibited drugs was not purposely sought to facilitate the commission of the Terminal compound in San Fernando, Pampanga against persons who may
crime since such act of transporting constitutes the crime itself, punishable commit misdemeanors and also on those who may be engaging in the traffic
under Section 4, Article II of Republic Act No. 6425, as amended. That a of dangerous drugs. At 9:30 in the evening, the policemen noticed a person
motor vehicle was used in committing the crime is merely incidental to the act carrying a red travelling bag who was acting suspiciously. They confronted
of transporting prohibited drugs. The use of a motor vehicle is inherent in the him and requested him to open his bag but he refused. He acceded later on
crime of transporting as it must of necessity accompany the commission when the policemen identified themselves. Inside the bag were marijuana
thereof; hence, such use is not an aggravating circumstance. (People v. leaves wrapped in a plastic wrapper. The police officers only knew of the
Correa) activities of Tangliben on the night of his arrest.

In instant case, the apprehending officers already had prior


CASES WHEN WARRANTLESS SEARCH IS ALLOWED knowledge from their informant regarding Aruta's alleged activities. In
Tangliben policemen were confronted with an on-the-spot tip. Moreover, the
policemen knew that the Victory Liner compound is being used by drug
1. Warrantless search incidental to a lawful arrest recognized under traffickers as their "business address". More significantly, Tangliben was
Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; acting suspiciously. His actuations and surrounding circumstances led the
policemen to reasonably suspect that Tangliben is committing a crime. In
2. Seizure of evidence in "plain view," the elements of which are: instant case, there is no single indication that Aruta was acting suspiciously.

(a) a prior valid intrusion based on the valid warrantless arrest in In People v. Malmstedt, the Narcom agents received reports that
which the police are legally present in the pursuit of their official vehicles coming from Sagada were transporting marijuana. They likewise
duties; received information that a Caucasian coming from Sagada had prohibited
(b) the evidence was inadvertently discovered by the police who drugs on his person. There was no reasonable time to obtain a search
had the right to be warrant, especially since the identity of the suspect could not be readily
where they are; ascertained. His actuations also aroused the suspicion of the officers
(c) the evidence must be immediately apparent, and conducting the operation. The Court held that in light of such circumstances,
(d) "plain view" justified mere seizure of evidence without further to deprive the agents of the ability and facility to act promptly, including a
search; search without a warrant, would be to sanction impotence and
ineffectiveness in law enforcement, to the detriment of society.
3. Search of a moving vehicle. Highly regulated by the government, the
vehicle's inherent mobility reduces expectation of privacy especially when its Note, however, the glaring differences of Malmstedt to the instant
transit in public thoroughfares furnishes a highly reasonable suspicion case. In present case, the police officers had reasonable time within which to
amounting to probable cause that the occupant committed a criminal activity; secure a search warrant. Second, Aruta's identity was priorly ascertained.
Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched
4. Consented warrantless search; aboard a moving vehicle, a legally accepted exception to the warrant
5. Customs search; requirement. Aruta, on the other hand, was searched while about to cross a
6. Stop and Frisk; and street.
7. Exigent and Emergency Circumstances.
(People v. Menguin; GR 120915, Apr. 13, ’98) In People v. Bagista, the NARCOM officers had probable cause to
stop and search all vehicles coming from the north to Acop, Tublay, Benguet
in view of the confidential information they received from their regular

71
informant that a woman having the same appearance as that of accused- People v. Solayao, applied the stop and frisk principle which has
appellant would be bringing marijuana from up north. They likewise had been adopted in Posadas v. Court of Appeals. In said case, Solayao
probable cause to search accused-appellant's belongings since she fitted the attempted to flee when he and his companions were accosted by
description given by the NARCOM informant. Since there was a valid government agents. In the instant case, there was no observable
warrantless search by the NARCOM agents, any evidence obtained in the manifestation that could have aroused the suspicion of the NARCOM agents
course of said search is admissible against accused-appellant. Again, this as to cause them to "stop and frisk" accused-appellant. To reiterate,
case differs from Aruta as this involves a search of a moving vehicle plus the accused-appellant was merely crossing the street when apprehended. Unlike
fact that the police officers erected a checkpoint. Both are exceptions to the in the abovementioned cases, accused-appellant never attempted to flee
requirements of a search warrant. from the NARCOM agents when the latter identified themselves as such.
Clearly, this is another indication of the paucity of probable cause that would
In Manalili v. Court of Appeals and People, the policemen sufficiently provoke a suspicion that accused-appellant was committing a
conducted a surveillance in an area of the Kalookan Cemetery based on crime.
information that drug addicts were roaming therein. Upon reaching the place,
they chanced upon a man in front of the cemetery who appeared to be "high" This Court cannot agree with the Solicitor General's contention for
on drugs. He was observed to have reddish eyes and to be walking in a the Malasugui case is inapplicable to the instant case. In said case, there
swaying manner. Moreover, he appeared to be trying to avoid the policemen. was probable cause for the warrantless arrest thereby making the
When approached and asked what he was holding in his hands, he tried to warrantless search effected immediately thereafter equally lawful. On the
resist. When he showed his wallet, it contained marijuana. The Court held contrary, the most essential element of probable cause, as expounded above
that the policemen had sufficient reason to accost accused-appellant to in detail, is wanting in the instant case making the warrantless arrest
determine if he was actually "high" on drugs due to his suspicious actuations, unjustified and illegal. Accordingly, the search which accompanied the
coupled with the fact that based on information, this area was a haven for warrantless arrest was likewise unjustified and illegal. Thus, all the articles
drug addicts. seized from the accused-appellant could not be used as evidence against
her. (People v. Menguin)
This case is similar to People v. Aminnudin where the police
received information two days before the arrival of Aminnudin that the latter
would be arriving from Iloilo on board the M/V Wilcon 9. His name was WHEN SEARCH IS NOT VALID
known, the vehicle was identified and the date of arrival was certain. From
the information they had received, the police could have persuaded a judge Accused-appellant Aruta cannot be said to be committing a crime.
that there was probable cause, indeed, to justify the issuance of a warrant. Neither was she about to commit one nor had she just committed a crime.
Instead of securing a warrant first, they proceeded to apprehend Aminnudin. Accused-appellant was merely crossing the street and was not acting in any
When the case was brought before this Court, the arrest was held to be manner that would engender a reasonable ground for the NARCOM agents
illegal; hence any item seized from Aminnudin could not be used against him. to suspect and conclude that she was committing a crime. It was only when
the informant pointed to accused-appellant and identified her to the agents
Another recent case is People v. Encinada where the police as the carrier of the marijuana that she was singled out as the suspect. The
likewise received confidential information the day before at 4:00 in the NARCOM agents would not have apprehended accused-appellant were it not
afternoon from their informant that Encinada would be bringing in marijuana for the furtive finger of the informant because, as clearly illustrated by the
from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the evidence on record, there was no reason whatsoever for them to suspect
following day. This intelligence information regarding the culprit's identity, the that accused-appellant was committing a crime, except for the pointing finger
particular crime he allegedly committed and his exact whereabouts could of the informant. This the Court could neither sanction nor tolerate as it is a
have been a basis of probable cause for the lawmen to secure a warrant. clear violation of the constitutional guarantee against unreasonable search
This Court held that in accordance with Administrative Circular No. 13 and and seizure. Neither was there any semblance of any compliance with the
Circular No. 19, series of 1987, the lawmen could have applied for a warrant rigid requirements of probable cause and warrantless arrests.
even after court hours. The failure or neglect to secure one cannot serve as
an excuse for violating Encinada's constitutional right. Consequently, there was no legal basis for the NARCOM agents to
effect a warrantless search of accused-appellant's bag, there being no

72
probable cause and the accused-appellant not having been lawfully arrested. In People vs. Lo Ho Wing, the Court defined the term "transport", as
Stated otherwise, the arrest being incipiently illegal, it logically follows that used under the Dangerous Drugs Act to mean "to carry or convey from one
the subsequent search was similarly illegal, it being not incidental to a lawful place to another" , the operative words being "to carry or to convey". The fact
arrest. The constitutional guarantee against unreasonable search and that there is actual conveyance suffices to support a finding that the act of
seizure must perforce operate in favor of accused-appellant. As such, the transporting was committed. It is immaterial whether or not the place of
articles seized could not be used as evidence against accused-appellant for destination was reached. (People v. Latura)
these are "fruits of a poisoned tree" and, therefore, must be rejected,
pursuant to Article III, Sec. 3(2) of the Constitution. (People v.
Menguin) WHEN POLICE OFFICERS INTENTIONALLY PEEPED THRU A WINDOW
THEN WENT INSIDE AND ARRESTED THOSE INSIDE WHO ARE
PACKING MARIJUANA. THE SAME IS ILLEGAL

WHEN VOLUNTARY SUBMISSION The police officers intentionally peeped first through the window
TO SEARCH IS INAPPLICABLE before they saw and ascertained the activities of accused-appellants inside
the room. In like manner, the search cannot be categorized as a search of a
Aside from the inapplicability of the abovecited case, the act of moving vehicle, a consented warrantless search, a customs search, or a stop
herein accused-appellant in handing over her bag to the NARCOM agents and frisk; it cannot even fall under exigent and emergency circumstances, for
could not be construed as voluntary submission or an implied acquiescence the evidence at hand is bereft of any such showing.
to the unreasonable search. The instant case is similar to People v.
Encinada. (People v. Menguin) On the contrary, it indicates that the apprehending officers should
have conducted first a surveillance considering that the identities and
WHEN SEARCH IS NOT address of the suspected culprits were already ascertained. After conducting
ALLOWED AFTER the surveillance and determining the existence of probable cause for
AN ARREST IS MADE arresting accused-appellants, they should have secured a search warrant
prior to effecting a valid arrest and seizure. The arrest being illegal ab initio,
In the case of People v. Lua, this Court held: the accompanying search was likewise illegal. Every evidence thus obtained
during the illegal search cannot be used against accused-appellants; hence,
"As regards the brick of marijuana found inside the appellant's their acquittal must follow in faithful obeisance to the fundamental law. (PP
house, the trial court correctly ignored it apparently in view of its -vs- ZENAIDA BOLASA Y NAKOBOAN, ET AL., G.R. No. 125754, Dec.
inadmissibility. While initially the arrest as well as the body search was 22, 1999)
lawful, the warrantless search made inside the appellant's house became
unlawful since the police operatives were not armed with a search warrant.
Such search cannot fall under "search made incidental to a lawful arrest," the SEARCH AND SEIZURE WITHOUT THE REQUISITE JUDICIAL
same being limited to body search and to that point within reach or control of WARRANT IS ILLEGAL AND VOID AB INITIO
the person arrested, or that which may furnish him with the means of
committing violence or of escaping. In the case at bar, appellant was As a general rule, the procurement of a search warrant is required
admittedly outside his house when he was arrested. Hence, it can hardly be before law enforcer may validly search or seize the person, house, papers
said that the inner portion of his house was within his reach or control. or effects of any individual. In People v. Valdez, the court ruled that search
(Espano v. C.A.; GR 120431, April 1, ’98) and seizure conducted without the requisite judicial warrant is illegal and
void ab initio.

MEANING OF “TO TRANSPORT” x x x


IN DRUG CASES
“Lawmen cannot be allowed to violate the very law they are expected to
enforce.” The Court is not unmindful of the difficulties of law enforcement

73
agencies in suppressing the illegal traffic of dangerous drugs. However,
quick solutions of crimes and apprehension of malefactors do not justify a
callous disregard of the Bill of Rights”. We need not underscore that the
protection against illegal search and seizures is constitutionally mandated
and only under specific instances are seizures allowed without warrants.

In this case, the prosecution’s evidence clearly established that the police
conducted a search of accused’s backyard garden without warrant; they had
sufficient time to obtain a search warrant; they failed to secure one. There
was no showing of urgency or necessity for the warrantless search, or the
immediate seizure of the marijuana plants. (People vs. Alberto Pasudag)

74