THE UNIVERSITY OF NEGROS OCCIDENTAL-RECOLETOS

SCHOOL OF LAW
unorlawschl@gmail.com

2009 PRIMER ON SPECIAL PENAL LAWS

BY

Dean VILLASOR

BASIC PRINCIPLES OF SPECIAL PENAL LAWS

1. The Revised Penal Code does not apply to crimes punished by special laws.

The Revised Penal Code is considered the general law defining crimes mala in se while
other laws defining crimes mala prohibita outside the Revised Penal Code are considered
special penal laws. It is a well-established principle in statutory construction that special
law prevails over general law. Lex specialis derogat generali.

2. The Revised Penal Code applies suppletorily to special penal laws.

The Revised Penal Code shall have supplementary application to crimes under special law
only in the absence of specific rules in the special law.

3. Where the special law has its own rules on penalties, the Revised Penal Code does not
apply.

4. Penal laws on prescription of crimes must be strictly construed against the state and in
favor of the accused under the doctrine of pro reo.

INDETERMINATE SENTENCE LAW

(ACT NO. 4103, AS AMENDED)

What is the Indeterminate Sentence Law?

ANSWER: For an offense punishable by the Revised Penal Code, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall be
that which, in the view of the attending circumstances, could be properly imposed
under the rules of the said code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense.

For an offense punishable by special laws, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum
fixed by said law and the minimum shall not be less than the minimum term
prescribed by the same.

II

Why was the Indeterminate Sentence Law enacted?

ANSWER: The Indeterminate Sentence Law was enacted to give the offender an
opportunity to reform and return to society as a reformed individual.

III

How is the Indeterminate Sentence Law applied?

ANSWER: Under the Indeterminate Sentence Law, if the offense is punished by the
Revised Penal Code, the court shall sentence the accused to an indeterminate penalty, the
maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the Revised Penal Code, and the minimum term of which
shall be within the range of the penalty next lower to that prescribed by the Code for the offense.
The penalty next lower should be based on the penalty prescribed by the Code for the offense,
without first considering any modifying circumstance attendant to the commission of the crime.
The determination of the minimum penalty is left by law to the sound discretion of the court and
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can be anywhere within the range of the penalty next lower without any reference to the periods
into which it might be subdivided. The modifying circumstance are considered only in the
imposition of the maximum term of the indeterminate sentence.

Conformably with the Indeterminate Sentence Law, the court could impose an
indeterminate sentence, the maximum term of which shall be that which, considering all
attendant circumstances, be properly imposed and the minimum of which could be anywhere
within the range of the penalty one degree lower than that prescribed by law for the offense.
Neither aggravating circumstance nor mitigating circumstance having been alleged and proved,
pursuant to Art. 4, par. 1 of the Revised Penal Code, the maximum penalty which can then be
imposed shall be anywhere within the range of prision mayor in its medium period of from eight
(8) years, and one (1) day to ten (10) years, and the minimum penalty shall be anywhere within
the range of prision correccional of from six (6) months and one (1) day to six (6) years.

The imposable penalty for homicide under Art. 249 of the Revised Penal Code is
reclusion temporal. Since appellant’s crime of homicide is aggravated, without any mitigating
circumstance to offset it, the imposable penalty for the offense is reclusion temporal in its
maximum period. Applying the Indeterminate Sentence Law, the penalty that could be properly
imposed as maximum is reclusion temporal in its maximum period, or 17 years, 4 months and 1
day to 20 years. Whereas, the minimum of the sentence shall be within the range of the penalty
next lower to that prescribed by the Code, which is prision mayor, or from six (6) years and one
(1) day to twelve (12) years. Hence, the penalty imposed on appellant should be modified by
reducing it to an indeterminate sentence of eight (8) years and one (1) day of prision mayor as
minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as
maximum.

The penalty prescribed under Sec. 15 of Art. III in relation to Secs. 20 and 21 of Art. IV of
Rep. Act No. 6425, as amended by Rep. Act No. 7659, for unauthorized sale of 200 grams or more
of shabu or methylamphetamine hydrochloride is reclusion perpetua to death and a fine ranging
from five hundred thousand pesos to ten million pesos. In the present case, as the penalty of
reclusion perpetua to death consist of two (2) indivisible penalties, appellants were correctly
meted the lesser penalty of reclusion perpetua, with the accessory penalties provided by law,
conformably with Art. 63 (2) of the Revised Penal Code that when there are neither mitigating nor
aggravating circumstances in the commission of the crime, the lesser penalty shall be applied.

Under Art. 249 of the Revised Penal Code, homicide is punishable by reclusion temporal.
However, considering that there are two (2) mitigating circumstances and no aggravating
circumstance attendant to the crime, the imposable penalty, following Art. 64 (5) of the Revised
Penal Code, is prision mayor, the penalty next lower to that prescribed by law, in the period that
the court may deem applicable. Applying the Indeterminate Sentence Law, the maximum penalty
to be imposed shall be taken from the medium period of prision mayor, while the minimum shall
be taken from within the range of the penalty next lower in degree, which is prision correccional.
Hence, the imposable penalty on the appellant is imprisonment from six (6) years of prision
correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum.

IV

Where does the Indeterminate Sentence Law not apply?

ANSWER: The Indeterminate Sentence Law does not apply to:

1. persons convicted of the offenses punished with death penalty or life

imprisonment;

2. those convicted of treason, conspiracy or proposal to commit treason;

to those convicted or misprision of treason, rebellion, sedition or
espionage; to those convicted of piracy;

3. those who are habitual delinquents;

4. those who shall have escaped from confinement or evaded sentence;

5. those who having been granted conditional pardon by the Chief

Executive shall have violated the terms thereof; and

6. those whose maximum term of imprisonment does not exceed one

year, nor to those already sentenced by final judgment at the time of
approval of the Indeterminate Sentence Law, as provided by Section 5
thereof.
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What is the duty of the Board of Pardons and Parole?

ANSWER: It shall be the duty of the Board of Indeterminate Sentence to look into the
physical, mental and moral record of the prisoners who shall be eligible to parole and to
determine the proper time of release of such prisoners. (Section 5, Act No. 4103, as amended)

VI

When may the Board of Pardons and Parole authorize the release of a prisoner?

ANSWER: Whenever any prisoner shall have served the minimum penalty imposed on
him, and it shall appear to the Board of Indeterminate Sentence, from the reports of the
prisoner’s work and conduct which may be received in accordance with the rules and regulations
prescribed, and from the study and investigation made by the Board itself, that such prisoner is
fitted by his training for release, that there is a reasonable probability that such prisoner will live
and remain at liberty without violating the law, and that such release will not be incompatible
with the welfare of society, said Board of Indeterminate Sentence may, in its discretion, and in
accordance with the rules and regulations adopted hereunder, authorize the release of such
prisoner on parole, upon such terms and conditions as are herein prescribed and as may be
prescribed by the Board.

VII

What is the duty of the prisoner released on parole?

ANSWER: The duty of the prisoner released on parole is to report personally to the
Parole Officer at such times and in such manner as may be required by the conditions of his
parole for a period of surveillance equivalent to remaining portion of his maximum sentence.

VIII

What is the consequence of violation of any conditions for his parole?

ANSWER: He shall be ordered re-arrested to serve the remainder of the maximum

period of his sentence.

PROBATION LAW OF 1976

(P.D. NO. 968, AS AMENDED)

What is Probation?

ANSWER: Probation is a disposition under which a defendant, after conviction and

sentence, is released subject to conditions imposed by the court and to the supervision of a
probation officer. (P.D. No. 968, Sec. 3[a])

II

Why was the Probation Law enacted?

ANSWER: The Probation Law was enacted for the following purposes:

(1) To promote the correction and rehabilitation of an offender by providing him with
individualized treatment;

(2) To provide an opportunity for the reformation of a penitent offender which might be
less prohibited if he were to serve a prison sentence; and

(3) To prevent the commission of offenses. (Id., Sec. 2)

III

How is probation implemented?

ANSWER: Probation is implemented through a probation order issued by the court.

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IV

Does probation have any conditions? What, if any, are these conditions?

ANSWER: Yes, probation has conditions. Every probation order issued by the court
shall contain conditions requiring that the probationer shall:

1. Present himself to the probation officer designated to undertake his supervision at

such place as may be specified in the order within seventy-two hours from receipt of
said order;

2. Report to the probation officer at least once a month at such time and place as
specified by said officer.

The court may also require the probationer to:

1. Cooperate with a program of supervision;

2. Meet his family responsibilities;

3. Devote himself to a specific employment without the prior written approval of the
probation officer;

4. Undergo medical, psychological or psychiatric examination and treatment and enter

and remain in a specified institution, when required for that purpose;

5. Pursue a prescribed secular study or vocational training;

6. Attend or reside in a facility established for instruction, recreation or residence of

persons on probation;

7. Refrain from visiting houses of ill-repute;

8. Abstain from drinking intoxicating beverages to excess;

9. Permit the probation officer or an authorized social worker to visit his home and
place of work;

10. Resided at premises approved by it and not to change his residence without its prior
written approval; or

11. Satisfy any other condition related to the rehabilitation of the defendant and not
unduly restrictive of his liberty or incompatible with his freedom of conscience.

When is an offender no longer qualified for probation?

ANSWER: An offender is no longer qualified to apply for probation if he appeals from

the judgment of conviction by the trial court. P.D. No. 968, as amended by P.D. 1990, provides
that no application for probation shall be entertained or granted if the accused has perfected an
appeal from the judgment of conviction. In addition, an order by the court granting or denying
probation is not appealable (Section 4, P.D. 968, as amended).

VI

If the probationer is arrested for serious violation of his probation, is he entitled to bail
pending hearing by the court on his violation of the probation?

ANSWER: Yes, the probationer is entitled to bail pending his hearing, in the same
manner of persons charged with the crime.

VII

May the convict be released if he cannot put up a bond, pending resolution on his
application for probation?
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ANSWER: Yes, the court may allow the release of the defendant on recognizance to the
custody of a responsible member of the community who shall guarantee his appearance whenever
required by the court.

VIII

What is required to terminate probation?

ANSWER: A court order is required to terminate probation. In Bala v. Martinez, the

Supreme Court held that the mere expiration of the period for probation does not, ipso facto,
terminate the probation. Probation is not co-terminus with its period, there must be an order
from the court approving the final discharge, terminating the probation. If the accused violates
the condition of the probation before the issuance of said order, the probation may be revoked by
the court.

IX

Is probation a bar to dismissal from government service?

ANSWER: No, probation is not a bar to dismissal from government service. While the
purpose of the Probation Law is to save valuable human material, it must not be forgotten that
unlike pardon, probation does not obliterate the crime of which the person under probation has
been convicted. The reform and rehabilitation of the probationer cannot justify his retention in
the government service. He may seek to re-enter government service, but only after he has shown
that he is fit to serve once again. It cannot be repeated too often that public office is a public trust,
which demands of those in its service the highest degree of morality.

ANTI-GRAFT AND CORRUPT PRACTICES ACT

(REP. ACT NO. 3019, AS AMENDED)

What are the corrupt practices of public officers punishable under the Anti-Graft and
Corrupt Practices Act?

ANSWER: In addition to acts or omissions of public officers already penalized by

existing law, the following shall constitute corrupt practices of any public officer and are declared
to be unlawful:

a. Persuading, inducing or influencing another public officer to perform an act

constituting a violation of rules and regulations duly promulgated by competent authority or an
offense in connection with the official duties of the latter, or allowing himself to be persuaded,
induced or influenced to commit such violation or offense.

b. Directly or indirectly requesting or receiving any gift, present, share, percentage or

benefit, for himself or for any other person, in connection with any contract or transaction
between the Government and any other party, wherein the public officer in his official capacity
has to intervene under the law.

c. Directly or indirectly requesting or receiving any gift, present or other pecuniary or

material benefit, for himself or for another, from any person for whom the public officer, in any
manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or
license, in consideration for the help given or to be given, without prejudice to Section 13 of the
Anti-Graft and Corrupt Practices Act.

d. Accepting or having any member of his family accept employment in a private

enterprise which has pending official business with him during the pendency thereof or within
one year after its termination.

e. Causing any undue injury to any party, including the Government, or giving any private
party any unwarranted benefits, advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other concessions.

f. Neglecting or refusing, after due demand or request, without sufficient justification, to

act within a reasonable time on any matter pending before him for the purpose of obtaining
directly or indirectly, from any person interested in the matter some pecuniary or material benefit
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or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of
or discriminating against any other interested party.

g. Entering, on behalf of the Government, into any contract or transaction, manifestly and
grossly disadvantageous to the same, whether or not the public officer profited or will profit
thereby.

h. Directly or indirectly having financial or pecuniary interest in any business, contract or

transaction in connection with which he intervened or takes part in his official capacity, or in
which he is prohibited by the Constitution or by any law from having any interest.

i. Directly or indirectly becoming interested, for personal gain, or having a material

interest in any transaction or act requiring the approval of a 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 not participate in the action of the board, committee, panel or group.

Interest for personal gain shall be presumed against those public officers responsible for
the approval of manifestly unlawful, inequitable, or irregular transactions or acts by the board,
panel or group to which they belong.

j. Knowingly approving or granting any license, permit, privilege or benefit in favor of any
person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of
a mere representative or dummy of one who is not so qualified or entitled.

k. Divulging valuable information of a confidential character, acquired by his office or by

him on account of his official position to unauthorized persons, or releasing such information in
advance of its authorized release date.

The person giving the gift, present, share, percentage or benefits referred to in
subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned
in subparagraph (d); or urging the divulging or untimely release of the confidential information
referred to in subparagraph (k) of this section shall together with the offending public officer, be
punished under Section 9 of this Act and shall be permanently or temporarily disqualified, in the
discretion of the Court, from transacting business in any form with the Government.

II

Why was the Anti-Graft and Corrupt Practices Law enacted?

ANSWER: The Anti-Graft and Corrupt Practices Act was enacted because it is the policy
of the Philippine government, in line with the principle that public office is a public trust, to
repress certain acts of public officers and private persons alike which constitute graft or corrupt
practices or which lead thereto.

III

What are the elements of the crime of causing undue damage or injury or giving
unwarranted benefits under Section 3 (e) of the Anti-Graft and Corrupt Practices Act?

ANSWER: The essential elements of the crime are:

1. The accused are public officers or private persons charged in conspiracy with
them;

2. Said public officers committed the prohibited acts during the performance of
their official duties or in relation to their public position;

3. they caused undue injury to any party, whether the government or a private
party;

4. such injury is caused by giving unwarranted benefits, advantage or preference

to such parties; and

5. the public officers have acted with manifest partiality, evident bad faith or
gross inexcusable negligence.
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IV

What is the effect of re-election of elective officials on violations of the law in the previous
term?

ANSWER: It extinguishes only the administrative liability but not criminal liability.

What constitutes prima facie evidence for suspension and dismissal due to unexplained
wealth?

ANSWER: If a public official has been found to have acquired during his incumbency,
whether in his name or in the name of other persons, an amount of property and/or money
manifestly out of proportion to his salary and to his other lawful income, that fact shall be a
ground for dismissal or removal. Properties in the name of the spouse and dependents of such
public official may be taken into consideration, when their acquisition through legitimate means
cannot be satisfactorily shown. Bank deposits in the name of or manifestly excessive expenditures
incurred by the public official, his spouse or any of their dependents including but not limited to
activities in any club or association or any ostentatious display of wealth including frequent travel
abroad of a non-official character by any public official when such activities entail expenses
evidently out of proportion to legitimate income, shall likewise be taken into consideration,
notwithstanding any provision of law to the contrary. The circumstances hereinabove mentioned
shall constitute valid ground for the administrative suspension of the public official concerned for
an indefinite period until the investigation of the unexplained wealth is completed.

VI

What is the requirement for preventive suspension of a public officer?

ANSWER: Under Section 13 of the Anti-Graft and Corrupt Practices Act, criminal
prosecution under a valid information.

The accused public official shall be suspended from office while the criminal prosecution
is pending in court. The rule on the matter is specific and categorical, leaving no room for
interpretation. The court has neither the discretion nor the duty to determine whether preventive
suspension is required to prevent the accused from using his office to intimidate witnesses or
frustrate his prosecution or continue committing malfeasance in office.

ANTI-FENCING LAW OF 1979

(P.D. NO. 1612)

What is “fencing” under P.D. No. 1612?

ANSWER: 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 dispose of, or shall buy and sell,
or in any other manner deal in any article, item, object or anything of value which he knows, or
should be known to him, to have been derived from the proceeds of the crime of robbery or theft.
(P.D. 1612, Sec. 2[a]).

Fencing is a crime involving moral turpitude because the accused knows, or should have
known, that the items were stolen. By the act of fencing, an accused unjustly enriched himself at
the expense of another.

II

What is a “fence” under P.D. No. 1612?

ANSWER: A fence is any person, firm, association, corporation or partnership or other

organization who/which commits the act of fencing. (Sec. 2[b]).

III

Why was the Anti-Fencing Law enacted?

ANSWER: The law was enacted to impose higher penalties on the fence who under the
Revised Penal Code may be prosecuted only as an accessory after the fact.
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IV

How is “fencing” committed?

ANSWER: Fencing is committed with the following elements present:

(1) A crime of robbery or theft has been committed;

(2) The accused, who is not a principal or accomplice in the commission of the crime of
robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells, or disposes, or buys
and sells, or in any manner deals in any article, item, object or anything of value, which has been
derived from the proceeds of the said crime;

(3) The accused knows or should have known that the said article, item, or object or
anything of value has been derived from the proceeds of the crime of robbery or theft; and

(4) There is, on the part of the accused, intent to gain for himself or for another.

Is there any prima facie presumption of fencing?

ANSWER: Yes, there is a prima facie presumption of fencing. Under Sec. 4 of P.D. No.
1612, mere possession of any goods, article, item, object, or anything of value which has been the
subject of robbery or thievery shall be prima facie evidence of fencing.

VI

Do officers of juridical persons have any liability under P.D. No. 1612?

ANSWER: Yes. Under Sec. 4 of P.D. No. 1612, if the fence is a partnership, firm,
corporation or association, president or manager or any officer thereof who knows or should have
known the commission of the offense shall be liable.

VII

To avoid prosecution under P.D. No. 1612, what clearance must be secured by store
owners selling goods obtained from unlicensed dealers?

ANSWER: Under Sec. 6 of P.D. No. 1612, a necessary clearance or permit from the
Station Commander of the Philippine National Police in the town or city where the store is
located.

BOUNCING CHECKS LAW

(BATAS PAMBANSA BLG. 22 OF 1981)

What is B.P. 22 (Bouncing Checks Law)?

ANSWER: B.P. 22 is a law punishing the following offenses:

1. Making or drawing and issuing a check to apply to account or for value, knowing he
does not have sufficient funds in or credit with the drawee bank for the payment of
such check in full upon presentment, which check is subsequently dishonored for
insufficiency of funds or credit, or would have been dishonored if not stopped without
valid reason;

2. Having sufficient funds in or credit with the drawee bank when he makes or draws
and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover
the full amount of the check if presented within a period of ninety (90) days from
appearing thereon, for which reason it is dishonored by the drawee bank.

II

Why is issuance of a worthless check criminalized?

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ANSWER: The following are the reasons why the issuance of worthless checks is
criminalized:

The practice is prohibited by law because of its deleterious effects on public interest. The
effects of the increase of worthless checks transcend the private interest of the parties directly
involved in the transaction and touches the interest of the community at large. The mischief it
creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful
practice of putting valueless commercial papers in circulation multiplied a thousand-fold can very
well pollute the channels of trade and commerce, injure the banking system and eventually hurt
the welfare of society and the public interest. The law punishes the act not as an offense against
property but an offense against public order.

An offender is criminally liable under B.P. 22 because what is punished is the issuance of
checks that subsequently bounced or were dishonored for insufficiency or lack of funds, and not
the failure to pay the obligation.

III

What are the essential elements of violations of B.P. 22?

ANSWER: The following are the essential elements of violations of B.P. 22:

1) The making, drawing and issuance of any check to apply for account or for
value;

2) the knowledge of the maker, drawer, or issuer that at the time of issue there
are no sufficient funds in or credit with the drawee bank for the payment of such
check in full upon its presentment; and

3) the subsequent dishonor of the check by the drawee bank for insufficiency of
funds or credit or dishonor for the same reason had not the drawer, without any
valid cause, ordered the bank to stop payment.

IV

How is knowledge of the maker, drawer, or issuer that at the time of issue there are no
sufficient funds with the drawee bank for payment of the check in full upon presentment?

ANSWER: Section 2 of B.P. 22 provides that if the prosecution proves that the making,
drawing and issuing of a check, payment of which is refused by the drawee bank because of
insufficiency of funds or credit with the said bank within 90 days from the date of the check, such
shall be prima facie evidence of the element of “knowledge” in B.P. 22. The drawee or maker of
the check may overcome the prima facie evidence, either by paying the amount of the check, or by
making arrangements for its payment in full within five banking days after receipt of notice that
such check was not paid by the drawee bank.

What is the duty of the drawee bank in case of dishonor of a check?

ANSWER: Under Section 3 of B.P. 22, the duty of the drawee bank is to stamp the
reason for the dishonor and to state whether or not there are sufficient funds.

VI

What rebuttable presumption arises from presentation of unpaid and dishonored checks
with the drawer’s reason stamped or attached thereto?

ANSWER: In all prosecutions under B.P. 22, the introduction of evidence of any unpaid
and dishonored check, having the drawee’s refusal to pay stamped or written thereon, or attached
thereto, with the reason therefore as aforesaid, shall be prima facie evidence of the making or
issuance of said check, and the due presentment, to the drawee for payment and the dishonor
thereof, and that the same was properly dishonored for the reason written, stamped or attached
by the drawee on such dishonored check.

VII

What constitutes prima facie evidence of knowledge of insufficiency of funds or credit?

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ANSWER: When presented and dishonored within 90 days from the date of the check,
the check is not paid or arrangement for payment is not made within 5 days from notice of
dishonor.

There is no such prima facie presumption if the check is presented after 90 days from the
date of the check. The complainant has the burden to prove knowledge of insufficiency of funds
on the part of the issuer at the time of its issuance.

VIII

Is a person who draws a check against the account of another person by way of an
accommodation liable under B.P. 22?

ANSWER: Yes, the person who draws a check against the account of another person by
way of an accommodation is liable under B.P. 22 because the gravamen of the offense under B.P.
22 is the act of making and issuing a worthless check or any check that is dishonored upon its
presentment for payment and putting them in circulation. The law includes all checks drawn
against banks. The mere act of issuing a worthless check, either as a deposit, as a guarantee, or
even as evidence of a pre-existing debt or as a mode of payment is covered by B.P. 22. It is a crime
classified as malum prohibitum under the doctrine espoused in Lozano v. Martinez. The law is
broad enough to include, within its coverage, the making and issuing of a check by one who has
no account with a bank, or where such account was already closed when the check was presented
for payment.

Considering that the law imposes a penal sanction on one who draws and issues a
worthless check against insufficient funds or a closed account in the drawee bank, there is
likewise every reason to penalize a person who indulges in the making and issuing of a check on
an account belonging to another with the latter’s consent, which account has been closed or has
no funds or credit with the drawee bank.

As to the argument that the check was merely issued for the accommodation of the
complainant, this circumstance is not a defense to a charge for violation of B.P. 22. What the law
punishes is the issuance itself of a bouncing check and not the purpose for which it was issued or
of the terms and conditions relating to its issuance. The mere act of issuing a worthless check,
whether merely as an accommodation, is covered by B.P. 22. Hence, the agreement surrounding
the issuance of a check is irrelevant to the prosecution and conviction of the person who issued
such check.

IX

May final judgment be modified due to an “extraordinary supervening event?”

ANSWER: Yes, final judgment may be modified due to an extraordinary supervening

event. In So v. Court of Appeals, G.R. No. 138869, 29 August 2002, 388 SCRA 107, the Supreme
Court modified the final judgment of conviction for violation of B.P. 22 by the deletion of the
sentence of imprisonment and the imposition of a fine. The Court in So v. Court of Appeals
exercised its authority to suspend or to modify the execution of a final judgment when warranted
or made imperative by the higher interest of justice or by supervening events. The supervening
event in that case was the petitioner’s urgent need for coronary rehabilitation for at least one year
under the direct supervision of a coronary care therapist. Imprisonment would have been
equivalent to the death sentence.

Can notice of dishonor be made through a telephone call by the bank to the issuer of the
check?

ANSWER: No, notice of dishonor must be made in writing. Verbal notice through a
telephone call by the bank to the issuer of the check is not sufficient.

In Domagsang v. Court of Appeals, the Court ruled that while Section 2 of B.P. 22 does
not state that the notice of dishonor must be in writing, taken in conjunction, however, with
Section 3 of B.P. 22, which states that “where there are no sufficient funds in or credit with such
drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal,” a
mere oral notice or demand to pay would appear to be insufficient for conviction under the law.
The Court is convinced that both the spirit and letter of the Bouncing Checks Law would require
for the act to be punished thereunder not only that the accused issued a check that is dishonored,
but that likewise the accused has actually been notified in writing of the fact of dishonor. The
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consistent rule is that penal statutes have to be construed strictly against the State and liberally in
favor of the accused.

XI

If the drawer or maker is an officer of the corporation , is notice of dishonor to said

corporation sufficient?

ANSWER: No. If the drawer or maker is an officer of a corporation, the notice of

dishonor to the said corporation is not notice to the employee or officer who drew or issued the
check for and in its behalf.

In Marigomen v. People, the Supreme Court held that responsibility under B.P. 22 is
personal to the accused. Hence, personal knowledge of the notice of dishonor is necessary.
Consequently, constructive notice to the corporation is not enough to satisfy due process.
Moreover, it is the officer of the corporation who is the corporation’s agent for purposes of
receiving notices and other documents, and not the other way around. It is but axiomatic that
notice to the corporation, which has a personality distinct and separate from the officer, does not
constitute notice to the latter.

COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

(REP. ACT NO. 9165)

What are the main principles underlying the Comprehensive Dangerous Drugs Act?

ANSWER: The main principles underlying the Comprehensive Dangerous Drugs Act
are:

1. The presence of any controlled precursor and essential chemical or laboratory

equipment in a clandestine laboratory is prima facie evidence of manufacture
of any dangerous drug.

2. In the offense of Illegal Possession of Dangerous Drugs, Section 11 of the

Comprehensive Dangerous Drugs Act provides for a graduated penalty of life
imprisonment to death and a fine from P500,000.00 to P10Million, under
certain quantities and slides down as the quantity decreases.

3. Illegal Possession of Equipment and Paraphernalia for Dangerous Drugs gives

rise to the prima facie presumption that the possessor has used a dangerous
drug.

4. The aggravating circumstances in undertaking or establishing clandestine

laboratory are the following:

a. Any phase of the manufacturing process was conducted in the

presence or with the help of minors;

b. Any phase or manufacturing process was established or

undertaken within 100 meters of a residential, business, church or
school premises;

c. Any clandestine laboratory was secured or protected with booby

traps;

d. Any clandestine laboratory was concealed with legitimate business

operations; or

e. Any employment of a practitioner, chemical engineer, public

official or foreigner.

5. Possession of dangerous drugs or paraphernalia during a party, or at a social

gathering or meeting, or in the proximate company of at least 2 persons are
special aggravating circumstances. Special aggravating circumstances will
warrant the imposition of the maximum penalty for illegal possession of
dangerous drugs under Section 11 or illegal possession of paraphernalia under
Section 14 of the Comprehensive Dangerous Drugs Act.
 12

6. Under Section 15, a person apprehended or arrested who is found to be

positive for the use of any dangerous drug, after a confirmatory test, shall be
imposed a penalty of a minimum of 6 months rehabilitation in a government
center for the first offense. If apprehended using any dangerous drug for the
second time, he or she shall suffer the penalty of imprisonment ranging from 6
years and 1 day to 12 years and a fine ranging from P50,000.00 to
P200,000.00. Section 15 shall not be applicable where the person tested is also
found to have in his or her possession such quantity of any dangerous drug
provided for in Section 11, in which case the latter section shall apply.

7. Thus, a person cannot be prosecuted for both illegal use and illegal possession
of prohibited drugs. A person may be prosecuted only for either illegal
possession or illegal use of prohibited drugs. If a person tested positive after a
confirmatory drug test has also in his possession prohibited drugs in the
quantity punishable under Section 11, he shall be prosecuted only for illegal
possession under Article 15.

8. In addition to imprisonment ranging from life imprisonment to death and a

fine from P500,000.00 to P10M, the land or portions thereof and/or
greenhouses on which any of said plants is cultivate, planted or cultured shall
be confiscated and escheated in favor of the State, unless the owner thereof can
prove lack of knowledge of such planting, cultivation or culture despite the
exercise of due diligence on his or her part. If the land involved is part of the
public domain, the maximum penalty shall be imposed upon the offender
under Section 16.

9. Regardless of the imposable penalty, a person charged in a drugs case cannot

avail himself of plea bargaining.

10. Regardless of the imposable penalty, a person cannot avail of probation if he is

convicted of drug trafficking or drug pushing.

11. Being under the influence of dangerous drugs is a special qualifying

circumstance in the commission of a crime.

12. Mere attempts or conspiracy to commit the crime are punishable with the same
penalty prescribed for the principal in the following cases: (1) importation of
any dangerous drug and/or controlled precursor and essential chemical; (2)
sale, trading, administration, dispensation, delivery, distribution and
transportation of any dangerous drug and/or controlled precursor and
essential chemical; (3) maintenance of a den, dive or resort where any
dangerous drug is used in any form; (4) manufacture of any dangerous drug
and/or controlled precursor and essential chemical; and (5) cultivation or
culture of plants which are sources of dangerous drugs.

II

Why was the Comprehensive Dangerous Drugs Act enacted by the Philippines?

ANSWER: The Comprehensive Dangerous Drugs Act was enacted (1) to safeguard the
integrity of Philippine territory and the well-being of its citizenry particularly the youth, from the
harmful effects of dangerous drugs on their physical and mental well-being; (2) to provide
effective mechanisms or measures to reintegrate into society individuals who have fallen victims
to drug abuse or dangerous drug dependence through sustainable programs of treatment and
rehabilitation.

III

What are the penalties imposed under the Comprehensive Dangerous Drugs Act?

ANSWER: For elective local or national officials found to have benefited from the
proceeds of trafficking of dangerous drugs, or have received any financial or material
contributions or donations from natural or juridical persons found guilty of trafficking dangerous
drugs – they shall be removed from office and perpetually disqualified from holding any elective
or appointive positions in the government, its divisions, subdivisions, and intermediaries,
including government-owned or controlled corporations.
 13

For those found guilty of “planting” any dangerous drug and/or controlled precursor and
essential chemical, regardless of quantity and purity, the imposable penalty is reclusion perpetua.

Officers of partnerships, corporations, associations or any juridical entity, specifically, the

partner, president, director, manager, trustee, estate administrator, or officer who consents to or
knowingly tolerates such violation shall be held criminally liable as a co-principal in drugs cases –
the penalty provided for the offenses under the law shall be imposed upon the partner, president,
director, manager, trustee, estate administrator or officer who knowingly authorizes, tolerates or
consents to the use of a vehicle, vessel, aircraft, equipment or other facility, as an instrument in
the importation, sale, trading, administration, dispensation, delivery, distribution, transportation
or manufacture of dangerous drugs, or chemical diversion, if such vehicle, vessel, aircraft,
equipment or other instrument is owned by or under the control or supervision of the
partnership, corporation, association or juridical entity in which they are affiliated.

Under Sections 66 and 67, an accused over 15 but under 18 years of age may be given the
benefit of a suspended sentence if a first time offender, and placed under rehabilitation and on
final discharge, the proceedings shall be dismissed.

Under Section 15, a minor offender may be granted probation even if the sentence is more
than 6 years or community service for conviction for illegal drug use in lieu of imprisonment.

With regard to accessory penalties, a person convicted under the Comprehensive

Dangerous Drugs Act shall be disqualified to exercise his or her civil rights such as but not limited
to, the rights of parental authority or guardianship, either as to the person or property of any
ward, the 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 rights shall also be
suspended during the pendency of an appeal from such conviction.

IV

What is the effect of rehabilitation?

ANSWER: The drug dependent is exempt from criminal liability under Section 15
(Illegal Use of Dangerous Drugs).

HEINOUS CRIMES ACT

(REP. ACT NO. 7659, AS AMENDED BY REP. ACT NO. 9346 ABOLISHING THE
DEATH PENALTY)

NOTE: Rep. Act No. 9346 is an act which prohibits the imposition of the
death penalty in the Philippines. Rep. Act No. 8177 (Lethal Injection Law) has been
repealed. Rep. Act No. 7659 (Death Penalty Law), and all other laws, executive
orders and decrees, insofar as they impose the death penalty have been repealed or
amended accordingly. (Rep. Act No. 9346, Sec. 1)

In lieu of the death penalty, the penalty of reclusion perpetua shall be

imposed when the law violated makes use of the nomenclature of the penalties of
the Revised Penal Code, or the penalty of life imprisonment when the law violated
does not make use of the nomenclature of the penalties of the Revised Penal Code.
(Id., Sec. 2)

Persons convicted of offenses punished with reclusion perpetua, or whose

sentences will be reduced to reclusion perpetua, by reason of Rep. Act No. 9346,
shall not be eligible for parole under Act No. 4103, otherwise known as the
“Indeterminate Sentence Law,” as amended. (Id., Sec. 3)

The Board of Pardons and Parole shall cause the publication at least once a
week for three consecutive weeks in a newspaper of general circulation of the
names of persons convicted of offenses punished with reclusion perpetua or life
imprisonment by reason of this Act who are being considered or recommended for
commutation or pardon: Provided, however, That nothing in this Act shall limit the
power of the President to grant executive clemency under Section 19, Article VII of
the Constitution. (Id., Sec. 4)

What are heinous crimes?

 14

ANSWER: Crimes punishable by reclusion perpetua to death (now punishable by

reclusion perpetua due to the enactment of Rep. Act No. 9346 which amended the Heinous
Crimes Law, prohibiting the imposition of the death penalty) are heinous for being grievous,
odious and hateful offenses and which by reason of their inherent or manifest wickedness,
viciousness, atrocity and perversity are repugnant and outrageous to the common standards and
norms of decency and morality in a just, civilized and ordered society.

II

Why was the heinous crimes law enacted?

ANSWER: The heinous crimes law was enacted:

(1) To rationalize and harmonize the penal sanctions for heinous crimes;

(2) To curb the alarming upsurge of heinous crimes which has:

a) affected the nation’s efforts towards sustainable economic development;

b) undermined the people’s faith in Government and the latter’s ability to

maintain peace and order;

c) to ensure obedience to authority;

d) to promote the maintenance of peace and order, the protection of life, liberty
and property, and the promotion of the general welfare which are essential
for the enjoyment by all the people of the blessings of democracy in a just and
humane society.

III

What specific crimes are punishable by reclusion perpetua under the Heinous Crimes
Law, as amended (formerly the penalty of reclusion perpetua to death)?

ANSWER: The following crimes are punishable by reclusion perpetua:

1. Treason (Revised Penal Code, Art. 114)

2. Qualified Piracy (Revised Penal Code, Art. 128)

3. Qualified Bribery (Revised Penal Code, Art. 211-A)

4. Parricide (Revised Penal Code, Art. 246)

5. Murder (Revised Penal Code, Art. 248)

6. Infanticide (Revised Penal Code, Art. 255)

7. Kidnapping and Serious Illegal Detention (Revised Penal Code, Art. 267)

8. Robbery with Violence Against or Intimidation of Persons (Revised Penal Code, 294)

9. Destructive arson (Revised Penal Code, Art. 320)

10. Rape committed with the use of deadly weapon or by 2 or more persons

11. Attempted Rape with Homicide

12. Plunder (Rep. Act No. 7080, Sec. 2)

Any public officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a combination
or series of overt or criminal acts as described in Section 1 (d) in the aggregate
amount or total value of at least P50Million shall be guilty of the crime of plunder and
shall be punished by reclusion perpetua to death. Any person who participated with
the said public officer in the commission of an offense contributing to the crime of
plunder shall likewise be punished of such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating
 15

circumstances, as provided by the Revised Penal Code, shall be considered by the

court. The court shall declare any and all ill-gotten wealth and their interests and
other incomes and assets including the properties and shares of stocks derived from
the deposit or investment thereof forfeited in favor of the State.

With the prohibition on the imposition of the death penalty under Rep. Act No. 9346,
the penalty to be imposed is now reclusion perpetua or life imprisonment with no
right to parole, but may be pardoned by the President.

13. Prohibited Drugs; the importation, sale, administration, delivery, distribution and
transportation of illegal drugs; the maintenance of a den, dive or resort of prohibited
drugs; manufacture; possession or use of prohibited drugs; cultivation of plants as
sources of prohibited drugs

14. Carnapping with homicide

IV

Does reclusion perpetua have a duration? If so what is it?

ANSWER: Yes, it has a duration from 20 years and 1 day to 40 years.

Under Rep. Act No. 9346, what are the crimes punishable by the single indivisible penalty
of death, which is now reduced to reclusion perpetua?

ANSWER: Under Rep. Act No. 9346, the crimes punishable by reclusion perpetua are:

2) Rape with Homicide

3) Rape attended with the following circumstances:

a. When the victim is under 18 years of age and the offender is a

parent, ascendant, stepparent, guardian, relative by consanguinity
or affinity within the third civil degree, or the common-law spouse
of the parent of the victim.

b. When the victim is under the custody of the police or military

authorities.

c. When the rape is committed in full view of the husband, parent,

any of the children or other relatives within the third degree of
consanguinity.

d. When the victim is a religious or a child below 7 years old.

e. When the offender knows that he is afflicted with Acquired

Immune Deficiency Syndrome (AIDS).

f. When committed by any member of the Armed Forces of the

Philippines or the Philippine National Police or any law
enforcement agency.

g. When by reason or on the occasion of the rape, the victim has

suffered permanent physical mutilation.

4) Planting of evidence committed by employees and officers of the Philippine

National Police and the Armed Forces of the Philippines in drugs cases

5) Qualified bribery committed by public officers who ask or demand gifts or

presents

6) Kidnapping or Illegal Detention for Ransom

7) Kidnapping with Rape

8) Kidnapping with Homicide

 16

9) Kidnapping attended with facts of torture or dehumanizing acts on the victim

VI

When is the imposable penalty in the maximum regardless of mitigating circumstances?

ANSWER: The penalty is imposed in the maximum regardless of mitigating

circumstances when: (1) in the commission of a crime, advantage is taken by the offender of his
public position; and (2) If the offense is by any person who belongs to an organized/syndicated
crime group, which means a group of 2 or more persons collaborating, confederating or mutually
helping one another for purposes of gain in the commission of any crime.

ANTI-MONEY LAUNDERING ACT OF 2001

(REP. ACT NO. 9160)

What is money laundering?

ANSWER: Money laundering is a crime whereby the proceeds of an unlawful activity as

defined under the Anti-Money Laundering Law are transacted, thereby making them appear to
have originated from legitimate sources.

II

Why was the Anti-Money Laundering Law enacted?

ANSWER: The Anti-Money Laundering Law was enacted:

(1) To protect and preserve the integrity and confidentiality of bank accounts;

(2) To ensure that the Philippines shall not be used as a money laundering site for the
proceeds of any unlawful activity;

(3) To extend cooperation in transnational investigations and prosecutions of persons

involved in money laundering activities wherever committed.

III

How is the criminal offense of money laundering committed?

ANSWER: The criminal offense of money laundering is committed by:

(1) Any person knowing that any monetary instrument or property represents, involves,
or relates to the proceeds of any unlawful activity, transacts or attempts to transact
said monetary instrument or property;

(2) Any person knowing that any monetary instrument or property involves the
proceeds of any unlawful activity, performs or fails to perform any act as a result of
which he facilitates the offense of money laundering referred to in the previous
paragraph;

(3) Any person knowing that any monetary instrument or property is required under
this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC),
fails to do so.

IV

What are the covered transactions under the Anti-Money Laundering Law?

ANSWER: Under Section 3 (b) of the Anti-Money Laundering Law, covered transactions
are transactions in cash or other equivalent monetary instrument, involving a total amount in
excess of P500,000.00 within one (1) banking day.

Who are the covered institutions under the Anti-Money Laundering Law?
 17

ANSWER: Under Section 3 (a) of the Anti-Money Laundering Law, covered institutions
refer to:

1) banks, non-banks, quasi-banks, trust entities and all other institutions and their
subsidiaries and affiliates supervised or regulated by the Bangko Sentral ng Pilipinas;

2) insurance companies and all other institutions supervised or regulated by the

Insurance Commission; and

3) (i) securities dealers, brokers, salesmen, investment houses and other similar entities
managing securities or rendering services as investment agent, advisor, or consultant,
(ii) mutual funds, close and investment companies, common trust funds, pre-need
companies and other similar entities, (iii) foreign exchange corporations, money
changers, money payment, remittance, and transfer companies and other similar
entities, and (iv) other entities administering or otherwise dealing in currency,
commodities or financial derivatives based thereon, valuable object, cash substitutes
and other similar monetary instruments or property supervised or regulated by the
Securities and Exchange Commission.

VI

What are suspicious transactions under the Anti-Money Laundering Law?

ANSWER: Under Section 3 (b)(1) of the Anti-Money Laundering Law as amended by

Rep. Act No. 9194, suspicious transactions are transactions with covered institutions, regardless
of the amounts involved, where any of the following circumstances exist:

1. There is no underlying legal or trade obligation, purpose or economic justification;

2. The client is not properly identified;

3. The amount involved is not commensurate with the business or financial capacity of
the client;

4. Taking into account all known circumstances, it may be perceived hat the client’s
transaction is structured in order to avoid being the subject of reporting requirements
under the Act;

5. Any circumstance relating to the transaction which is observed to deviate from the
profile of the client and/or the client’s past transactions with the covered institution;

6. The transaction is in any way related to an unlawful activity or offense under this Act
that is about to be, is being, or has been committed; or

7. Any transaction that is similar or analogous to any of the foregoing.

VII

What constitutes unlawful activity under the Anti-Money Laundering Law?

ANSWER: Under Section 3 (j) of the Anti-Money Laundering Law, unlawful activity
refers to any act or omission or series or combination thereof involving or having direct relation
to the following:

1. Kidnapping for ransom under Article 267 of Act No. 3815, otherwise known as the
Revised Penal Code, as amended;

2. Sections 4-6, 8-10, 12-16 of Rep. Act No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002;

3. Section 3, paragraphs b, c, e, g, h and i of Rep. Act No. 3019, as amended, otherwise

known as the Anti-Graft and Corrupt Practices Act;

4. Plunder under Rep. Act No. 7080, as amended;

5. Robbery and Extortion under Articles 294-296, 299-302 of the Revised Penal Code,
as amended;

6. Jueteng and Masiao punished as illegal gambling under P.D. No. 1602;
 18

7. Piracy on the high seas under the Revised Penal Code, as amended and P.D. No. 532;

8. Qualified theft under Article 310 of the Revised Penal Code, as amended;

9. Swindling under Article 315 of the Revised Penal Code, as amended;

10. Smuggling under Rep. Act Nos. 455 and 1937;

11. Violations under Rep. Act No. 8792, otherwise known as the Electronic Commerce
Act of 2000;

12. Hijacking and other violations under Rep. Act No. 6235; destructive arson and
murder, as defined under the Revised Penal Code, as amended, including those
perpetrated by terrorists against non-combatant persons and similar targets;

13. Fraudulent practices and other violations under Rep. Act No. 8799, otherwise known
as the Securities Regulation Code of 2000;

14. Felonies or offenses of a similar nature that are punishable under the penal laws of
other countries.

VIII

What are the measures to prevent money laundering?

ANSWER: The measures to prevent money laundering are:

1. Customer identification and recording

2. Anonymous and fictitious accounts are absolutely prohibited

3. Peso and foreign currency non-checking numbered accounts are allowed, subject to
the conduct by the BSP of annual testing solely limited to the determination of the
existence and true identity of the owners of such accounts

4. Record-keeping for 5 years from date of transaction

5. Reporting of covered transactions (in excess of P500,000.00 in one day) or

suspicious transactions by the covered institutions to the Anti-Money Laundering
Council within 5 days

6. Freezing of monetary instrument or property by the Court of Appeals

The Court of Appeals, upon application ex parte by the Anti-Money Laundering

Council and after determination that probable cause exists that any monetary instrument
or property is in any way related to an unlawful activity as defined in Section 3 (i), may
issue a freeze order which shall be effective immediately. The freeze order shall be for a
period of twenty (20) days unless extended by the court.

7. Inquiry into bank deposits by the Anti-Money Laundering Council

The Anti-Money Laundering Council may inquire into or examine any particular
deposit o investment with any banking institution or non-bank financial institution upon
order of any competent court in case of violation of this Act, when it has been established
that there is probable cause that the deposits or investments are related to an unlawful
activity as defined in Section 3 (i) or a money laundering offense under Section 4; except
that no court order shall be required in cases involving unlawful activities.

The Bangko Sentral ng Pilipinas may inquire into or examine any deposit or
investment with any banking institution or non-bank financial institution when the
examination is made in the course of a periodic or special examination, in accordance
with the rules of examination of the Bangko Sentral ng Pilipinas.

OBSTRUCTION OF JUSTICE
(P.D. NO. 1829)

I
 19

What is Obstruction of Justice?

ANSWER: Obstruction of justice is a criminal offense committed by any person who

knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and
the investigation and prosecution of criminal cases.

II

Why was P.D. 1829 enacted?

ANSWER: The law on obstruction of justice was enacted to discourage public

indifference or apathy towards the apprehension and prosecution of criminal offenders by
penalizing acts which obstruct or frustrate or tend to obstruct or frustrate the successful
apprehension and prosecution of criminal offenders.

III

How is Obstruction of Justice committed?

ANSWER: Obstruction of justice is committed by any of the following acts:

(a) Preventing witnesses from testifying in any criminal proceeding or from

reporting the commission of any offense or the identity of any offender or
offenders by means of bribery, misrepresentation, deceit, intimidation, force or
threats;

(b) Altering, destroying, suppressing or concealing any paper, record, document, or

object with intent to impair its verity, authenticity, legibility, availability, or
admissibility as evidence in any investigation of or official proceedings in
criminal cases, or to be used in the investigation of, or official proceedings in
criminal cases;

(c) Harboring or concealing, or facilitating the escape of, any person he knows, or
has reasonable ground to believe or suspect, has committed any offense under
existing penal laws in order to prevent his arrest, prosecution and conviction;

(d) Publicly using a fictitious name for the purpose of concealing a crime, evading
prosecution or the execution of a judgment, or concealing his true name and
other personal circumstances for the same purpose or purposes;

(e) Delaying the prosecution of criminal cases by obstructing the service of process
or court orders or disturbing proceedings in the fiscal’s offices, in the
Tanodbayan, or in the courts;

(f) Making, presenting or using any record, document, paper or object with
knowledge of its falsity and with intent to affect the course or outcome of the
investigation of, or official proceedings in criminal cases;

(g) Soliciting, accepting, or agreeing to accept any benefit in consideration of

abstaining from discontinuing, or impending the prosecution of a criminal
offender;

(h) Threatening, directly or indirectly, another with the infliction of any wrong upon
his person, honor or property or that of any immediate member or members of
his family in order to prevent such person from appearing in the investigation of,
or official proceedings in criminal cases, or imposing a condition, whether lawful
or unlawful, in order to prevent a person from appearing in he investigation of, or
in official proceedings in criminal cases;

(i) Giving of false or fabricated information to mislead or prevent the law

enforcement agencies from apprehending the offender or from protecting the life
or property of the victim; or fabricating information from the data gathered in
confidence by investigating authorities for purposes of background information
and not for publication and publishing or disseminating the same to mislead the
investigator or the court.

PLUNDER
(REP. ACT NO. 7080)
 20

What is plunder?

ANSWER: Under Rep. Act No. 7080, plunder is committed by any public officer who, by
himself or in connivance with members of his family, relatives by affinity or consanguinity,
business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten
wealth through a combination or series of overt or criminal acts:

a. misappropriation or malversation of public funds;

b. receiving any commission or kickbacks by reason of his public position;

c. illegal disposition of assets belonging to the government;

d. receiving or accepting shares of stocks for equity in any business enterprise or

undertaking;

e. establishing monopolies or combinations or implementation of decrees and others

intended to benefit particular persons;

f. taking undue advantage amount of official position to the prejudice of the

government in the aggregate amount of at least P50Million.

Under Serapio v. Sandiganbayan, G.R. No. 148468, 28 January 2003, the Court held
that the foregoing predicate acts merely constitute acts of plunder and are not crimes separate
and independent of the crime of plunder.

II

What is the nature of the crime of plunder?

ANSWER: Under Estrada v. Sandiganbayan, G.R. No. 148560, 2 November 2001, the
Supreme Court held that the crime of plunder is mala in se, although punishable under special
law because it is inherently evil, being included among the heinous crimes punishable with
reclusion perpetua to death and, its constitutive crimes are mala in se, such as malversation of
public funds, bribery and monopolies and combinations.

NEW FIREARMS LAW

(REP. ACT NO. 8294 AMENDING P.D. NO. 1866)

What are the main principles of the new firearms law?

ANSWER: The following are the main principles of the new firearms law:

1. The use of unlicensed firearms to commit homicide or murder is now an aggravating

circumstance. Thus, only one crime is committed, homicide or murder, and only one
information shall be filed.

2. Violation of Section 3 (tampering of firearms serial number) in furtherance of or

incident to, or in connection with the crime of rebellion, insurrection, sedition or
attempted coup d’etat, shall be absorbed as an element of the crime of rebellion or
insurrection, edition or attempted coup d’etat, thus such use has no effect on the
penalty.

3. The penalty for mere possession of unlicensed firearm shall be based on whether the
firearm is low-powered or high-powered. High-powered firearms are those with
bores bigger than.38 caliber and 9 mm and those with lesser bores but considered as
powerful, such as a .357 caliber and .22 center-fire magnum, and firearms with firing
capability of full automatic or by a burst of two or three.

4. “Unlicensed firearm” shall include: a) firearms with expired license, or b)

unauthorized use of licensed firearm in the commission of the crime.

5. Simple illegal possession of firearms can only be committed if no other crime was
committed with such firearm by the possessor.
 21

6. In People v. Castillo, G.R. Nos. 131592-93, 15 February 2000, the Supreme Court had
occasion to address the concept of unlicensed firearms. Unlicensed firearms no
longer simply means a firearm without a license duly issued by lawful authority. The
scope of the term has been expanded in Section 5 of Rep. Act No. 8294 to include
unauthorized use of a weapon which has been duly licensed in the name of its
owner/possessor, thus, may still aggravate the resultant crime. In Castillo, although
appellants may have been issued their respective licenses to possess firearms, their
carrying of such weapons outside their residences and their unauthorized use thereof
in the killing of Bonifacio may be appreciated as a special aggravating circumstance in
imposing the proper penalty for murder.

7. In People v. Nepomuceno, G.R. No. 130800, 29 June 1999, the Supreme Court was
given another opportunity to interpret the concept of illegal possession of firearms in
the light of the amendments of Rep. Act No. 8294. The Court held that under the
second paragraph of Section 1 of P.D. No. 1866, if the killing of a person is committed
with the use of the unlicensed firearm, the accused can be prosecuted for, and
convicted of: (1) illegal possession of firearm in the aggravated form, and (2) either
murder or homicide. But pursuant to the amendment of Rep. Act No. 8294, the use of
an unlicensed firearm in the commission of murder or homicide is treated as an
aggravating circumstance. Hence, the illegal possession or use of the unlicensed
firearm is no longer separately punished. Only one offense should be punished: either
homicide or murder, and the use of the unlicensed firearm should only be considered
as an aggravating circumstance. Being a statute favorable to the accused, this
provision may be given retroactive application. Considering that the accused in fact
was convicted for parricide, it follows that he should be acquitted in the case for
illegal possession of firearm.

8. However, in People v. Nuñez, G.R. No. 112092, 1 March 2001, the accused committed
homicide and frustrated homicide with the use of an unlicensed firearm but was
charged for illegal possession of firearm under an information separate from the
charges for homicide and frustrated homicide which were raffled to different
branches. The Supreme Court ruled that the cases could be tried separately because
they were not consolidated. Thus, the accused can be convicted for simple illegal
possession of firearm because the evidence as to the homicide was neither presented
nor adopted in the trial court trying the illegal possession case. For the use of
unlicensed firearm to be merely an aggravating circumstance, only one information
should be filed and the trial should be joint for both the homicide/murder and the
illegal possession. If two informations were filed and tried separately, the accused can
be convicted for both.