UPDATED

SPECIAL PENAL LAWS

By:
JUDGE OSCAR B. PIMENTEL
Regional Trial Court, Branch 148,
Makati City
INDETERMINATE SENTENCE LAW
(Act No. 4103 as amended by Act No. 4225)
WHEN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE
IS NOT ENTITLED TO THE APPLICATION OF THE INDETERMINATE
SENTENCE LAW
Accused-appellant cannot avail of the benefits of the Indeterminate
Sentence Law because Indeterminate Sentence Law does not apply to
persons convicted of offenses punishable with reclusion perpetua.
(People v. Aquino; GR 125906, Jan. 16, 98)
APPLICATION OF INDETERMINATE
SENTENCE LAW EXPLAINED
In the case of People vs. Gabres, the Court has had occasion to so
state that
"Under the Indeterminate Sentence Law, the maximum term
of the penalty shall be 'that which, in view of the attending
circumstances, could be properly imposed' under the Revised Penal
Code, and the minimum shall be within the range of the penalty next
lower to that prescribed' 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 it 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 circumstances are considered only in the
imposition of the maximum term of the indeterminate sentence.
"The fact that the amounts involved in the instant case
exceed P22,000.00 should not be considered in the initial
determination of the indeterminate penalty; instead, the matter

should be so taken as analogous to modifying circumstances in the

imposition of the maximum term of the full indeterminate sentence.
This interpretation of the law accords with the rule that penal laws
should be construed in favor of the accused. Since the penalty
prescribed by law for the estafa charge against accused-appellant is
prision correccional maximum to prision mayor minimum, the penalty
next lower would then be prision correccional minimum to medium.
Thus, the minimum term of the indeterminate sentence should be
anywhere within six (6) months and one (1) day to four (4) years and
two (2) months . . ."
(People v. Saley; GR 121179, July 2, 98)
INDETERMINATE SENTENCE LAW;
APPLICABLE ALSO IN DRUG CASES:
The final query is whether or not the Indeterminate Sentence Law is
applicable to the case now before us. Apparently it does, since drug offenses
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
involve reclusion perpetua or death, provided, of course, that the penalty as
ultimately resolved will exceed one year of imprisonment. The more
important aspect, however, is how the indeterminate sentence shall be
ascertained. It is true that Section 1 of said law, after providing for
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
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" We hold that this quoted
portion of the section indubitably refers to an offense under a special law
wherein the penalty imposed was not taken from and is without reference to
the Revised Penal Code, as discussed in the preceding illustrations, such
that it may be said that the "offense is punished" under that law. There can
be no sensible debate that the aforequoted rule on indeterminate sentence
for offenses under special laws was necessary because of the nature of the
former type of penalties under said laws which were not included or
contemplated in the scale of penalties in Article 71 of the Code, hence there
could be no minimum "within the range of the penalty next lower to that
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
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.
7659, has unqualifiedly adopted the penalties under the Revised Penal Code
in their technical terms, hence with their technical signification and effects. In

fact, for purposes of determining

the maximum of said sentence,
we have applied the provisions of
the amended Section 20 of said
law
to
arrive
at
prision
correccional and Article 64 of the
Code to impose the same in the
medium period. Such offense,
although provided for in a special
law, is now in the effect punished
by and under the Revised Penal
Code.
(
People v
Martin
Simon)

i.

j.

WHEN THE BENEFITS OF

INDETERMINATE
SENTENCE
LAW IS NOT APPLICABLE;

does
not
exceed one year.
Those who are
already serving
final
judgment
upon
the
approval of the
Indeterminate
Sentence Law.
those offenses or
crimes
not
punishable
by
imprisonment
such as distierro
and suspension.

RECIDIVISTS ARE ENTITLED

TO THE BENEFITS OF THE
INDETERMINATE SENTENCE

a.

Offenses
punished
by
death
or
life
imprisonment.
b.
Those convicted
of treason (Art.
114), conspiracy
or proposal to
commit treason
(Art. 115).
c.
Those convicted
of misprision of
treason
(Art.
116),
rebellion
(Art.
134),
sedition
(Art.
139),
or
espionage (Art.
117).
d.
Those convicted
of piracy (Art. 122).
e.
Habitual
delinquents (Art. 62, par.
5).
f.
Those
who
escaped
from
confinement
or
those
who
evaded sentence.
g.
Those
granted
conditional
pardon and who
violated the terms
of the same (Art.
159). (People v.
Corral, 74 Phil.
359).
h.
Those
whose
maximum period
of imprisonment

Recidivists are entitled to

an
indeterminate
sentence.
(People v. Jaramilla, L-28547,
Feb. 22, 1974). Offender is not
disqualified to avail of the benefits
of the law even if the crime is
committed while he is on parole.
(People v. Clareon, CA 78 O.G.
6701, Nov. 19, 1982).
(Bacar

v.

De

Guzman)
NATURE OF PENALTY
OF RECLUSION PERPETUA
In "People -vs- Conrado
Lucas, 240 SCRA 66, the
Supreme Court declared that
despite the amendment of Article
27 of the Revised Penal Code,
reclusion perpetua remained an
indivisible penalty. Hence, the
penalty does not have any
minimum, medium and maximum
period. Hence, there is no such
penalty of medium period of
reclusion perpetua.
(People versus Tiburcio Baculi,
246 SCRA)
IMPOSITION
PENALTY:
IT
DOES
FINALITY

OF

WRONG

NOT

OBTAIN

Suppose
the
court
imposed a penalty of 25 years of
reclusion 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
because it imposed a nonexistent penalty. Hence, the court
may nevertheless correct the
penalty imposed on the accused,
that is, reclusion perpetua, it is
merely performing a duty inherent
in the court.
(People versus Nigel Gatward,
GR No.
119772-73, February 7, 1997)

Where the law violated

provides for the penalty of
reclusion 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.
(People -vs- Rolando Madriaga,
211 SCRA 698)
THE
REASON
WHY
RECLUSION PERPETUA HAS A
RANGE DESPITE THE SAME
BEING INDIVISIBLE

DIFFERENCE BETWEEN
RECLUSION PERPETUA AND
LIFE IMPRISONMENT

There we also said that "if

reclusion
perpetua
was
reclassified as a divisible penalty,
then Article 63 of the Revised
Penal Code would lose its reason
and basis for existence." The
imputed duration of thirty (30)
years of reclusion perpetua,
therefore, only serves as the
basis for determining the convict's
eligibility for pardon or for the
application of the three-fold rule in
the service of multiple penalties.
(People -vs- Aspolinar Raganas,
et al
GR No. 101188, October 12,
1999)

The penalty of reclusion

perpetua is different from life
imprisonment. The former carries
with it accessory penalties,
whereas life imprisonment does
not carry with it any accessory
penalties; reclusion perpetua is
that provided for under the
Revised Penal Code and under
crimes defined by special laws
using the nomenclature under the
Revised Penal Code ; life
imprisonment is that provided for
violations of the Revised Penal
Code. Reclusion Perpetua may
be reduced by one or two
degrees while life imprisonment
cannot be so reduced.
(People -vs- Rolnando Madriaga,
GR No. 82293, July 23, 1992.)
WHICH IS MORE
BURDENSOME LIFE
IMPRISONMENT OF
RECLUSION PERPETUA

RARE CASE OF APPLICATION

OF RPC IN A SUPPLETORY
CHARACTER DESPITE THE
PENALTY
BEING
LIFE
IMPRISONMENT

Reclusion perpetua has

accessory penalties while life
imprisonment does not. However,
life imprisonment does not have a
fixed duration or extent while
reclusion perpetua has a duration
of from twenty years and one day
to forty years. life imprisonment
may span the natural life of the
convict.
(People -versus- Rallagan,
247 SCRA 537)

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
of
voluntary
surrender, the court should
impose
life
imprisonment
applying,
in
a
suppletory
character, Articles 13 and 63 of
the Revised Penal Code.

RECLUSION PERPETUA AND

LIFE IMPRISONMENT CANNOT
BE INTER-CHANGED WHEN
IMPOSED AS PENALTY

(People -vs- Priscilla Balasa, GR

No.
106357, September 3, 1998)

and its AMENDMENTS

PROBATION, ITS MEANING:

ACCUSED
WHO
IS
SENTENCED TO RECLUSION
PERPETUA IS STILL ENTITLED
TO EITHER FULL OR OF HIS
PREVENTIVE IMPRISONMENT

A disposition under which a

defendant, after conviction and
sentence, is subject to conditions
imposed by the Court and under
the supervision of a probation
officer.

If, during the trial, the

accused was detained but, after
trial, he was meted the penalty of
reclusion perpetua, he is still
entitled to the full credit of his
preventive imprisonment because
Article 29 of the Revised Penal
Code does not distinguish
between divisible and indivisible
penalties.
(People -vs- Rolando Corpuz,
231 SCRA 480)

PURPOSES OF PROBATION:
a.

to promote the correction and

rehabilitation of an offender by
providing him with personalized
community based treatment;
b.
to provide an opportunity for
his reformation and reintegration
into the community;
c.
to prevent the commission of
offenses.

QUALIFIED THEFT

SUBMISSION OF PETITION
AND
TIME OF FILING OFPETITION

QUALIFIED THEFT IS
PENALIZED BY RECLUSION
PERPETUA IF AMOUNT
INVOLVED IS OVER P22,000.00

The petition or application

for probation must be filed directly
with the Court which sentenced
the accused within 15 days from
date of promulgation of the
decision convicting the accused,
or in short within the period to
appeal otherwise the judgment
shall become final and the
accused shall be deemed to have
waived his right to probation.

Under Article 309 of the

Revised
Penal
Code,
the
maximum of the penalty for
qualified theft is prision mayor to
reclusion temporal. However,
under Article 310 of the Revised
Penal Code, the penalty for the
crime shall be two (2) degrees
higher than the specified in Article
309 of the Code. Under Article 74
of the Revised Penal Code, the
penalty higher by one degree
than another given penalty, and if
such higher penalty is death, the
penalty
shall
be
reclusion
perpetua of forty (40) years with
the accessory penalties of death
under Article 40 of the Revised
Penal Code. The accused shall
not be entitled to pardon before
the lapse of forty (40) years.

EFFECT
OF
FILING
OF
PETITION FOR PROBATION
Upon filing of petition for
probation, the court shall suspend
the execution of sentence.
Likewise, the filing of a
petition for probation shall be
deemed a 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, that is within fifteen days
from date of promulgation shall
be deemed a withdrawal of the
appeal.

(People -vs- Fernando Canales,

297 SCRA 667)

THE PROBATION LAW (P.D. 968)

PENDING RESOLUTION OF
PETITION,
WHAT ARE THE PRIVILEDGE
THAT MAYBE GIVEN TO THE
ACCUSED-PETITIONER?

It will also include the

psychological
and
social
information
regarding
the
probationer; evaluation of the
petitioner; suitability for probation;
his potential for rehabilitation; and
may include the program for
supervision and suggested terms
of conditions of probation and a
recommendation either to deny or
grant the 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 case;
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 of a
community who shall guarantee
his
appearance
whenever
required by the court.

WHAT ARE THE MANDATORY

CONDITIONS OF PROBATION?

IN CASE THE APPLICANT FOR

PROBATION
CANNOT
BE
PRODUCED
BY
THE
CUSTODIAN
ON
RECOGNIZANCE,
WHAT
HAPPENS?

a.

To present himself to the

probation officer concerned for
supervision within 72 hours from
receipt of said order and

b.

to report to the probation

officer at least once a month
during the period of probation.
WHAT ARE THE OTHER
CONDITIONS OF PROBATION?

The custodian must be

asked to explain why he should
not be cited for contempt for
failing to produce the probationer
when required by the court;
Summary hearing will be held for
indirect
contempt,
and
if
custodian cannot produce the
petitioner, nor to explain his
failure to produce the petitioner,
the custodian on recognizance
shall be held in contempt of court.

cooperate with a program of

supervision;
meet his family responsibilities;
devote himself to a specific
employment and not to charge
said employment without prior
written approval of the probation
officer;
comply with a program of
payment of civil liability to the
victim of his heirs;
undergo medical, psychological
or psychiatric examination and
treatment and/or enter and
remain in a specific institution,
when required for that purposes;
pursue a prescribed secular study
or vocational training;
attend or reside in a facility
established for instruction or
recreation
of
persons
on
probation;
refrain from visiting houses of illrepute;
abstain from drinking intoxicating
beverages to excess;
permit the probation officer or an
authorized social worker to visit
his home and place of work;
reside at premises approved by
the court and not to change his
residence w/o prior written
approval; and
satisfy any other condition related
to the rehabilitation of the

WHAT IS A POST SENTENCE

INVESTIGATION REPORT?
It is a report of the Parole
and Probation Officer after
conducting
post
sentence
investigation
and
interviews
containing the circumstances
surrounding the offense for which
the petitioner was convicted. The
findings should be drawn from the
court records, police records,
statement of defendants, the
aggrieved
party
and
other
persons who may know the
petitioner and all other matters
material to the petition.

probationer and not unduly

restrictive of his liberty or
incompatible with his freedom of
conscience.
m. plant trees ( see circular of the
SC )

No. 968 and under these rules

shall be privileged and shall not
be disclosed directly or indirectly
to anyone other than the
probation administration or the
court concerned the court which
granted the probation or where
the probation was transferred
may allow the probationer to
inspect the aforesaid documents
or his lawyer, whenever such
disclosure may be desirable or
helpful to them.

RULES ON OUTSIDE TRAVEL

OF PROBATIONER
A
probationer
who
desires to travel outside the
jurisdiction of the city or provincial
probation officer for not more than
30 days, the permission of 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.

Any government office

may ask for the records of
probation from the court for its
official
use
or
from
the
administrator.
Sec. 29, PD 968: VIOLATION OF
CONFIDENTIAL NATURE OF
PROBATION RECORDS.
The
penalty of imprisonment ranging
from six months and one day to
six years and a fine ranging from
hundred to six thousand pesos
shall be imposed upon any
person who violates Section 17
hereof.

EFFECT OF APPEAL BY THE

ACCUSED
OF
HIS
CONVICTION
If the accused appeals his
conviction for the purpose of
totally reversing his conviction, he
is deemed to have waived his
right to probation.

MODIFICATION OF CONDITION
OR PERIOD OF PROBATION
The court, on motion, or
motu propio may modify the
conditions of probation or modify
the period of probation as
circumstances may warrant.

The rule that if the accused

appeals his conviction only with
respect to the penalty, as he
believes the penalty is excessive
or wrong, as the penalty is
probationable, and the appellate
court sustains the accused may
still apply for probation, has
already been abandoned.
An
appeal therefore, 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 therefore, irrespective of
its purpose, to overturn the entire
decision or only with respect to
penalty is a waiver to probation.
CONFIDENTIALITY
RECORDS
OF PROBATION

WHO ARE DISQUALIFIED

TO UNDERGO PROBATION
Those sentenced to serve a
maximum term of imprisonment
of more than six years.
Those convicted of any offense
against the security of the state;
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 fine of
not less than P200.00;
Those who have been once on
probation under the provisions of
this decree.
Those convicted of RA 9156.
Those convicted of violation of
election laws.

OF

The investigation report

and the supervision and history of
a probationer obtained under PD

PERIOD OF PROBATION

UNDERLYING PHILOSOPHY OF
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;
In case the penalty is fine, the
probation shall not be less than
the
period
of
subsidiary
imprisonment nor more than twice
of the subsidiary imprisonment.

The underlying philosophy of

probation is indeed one of
liberality towards the 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
criminal justice. In line with the
public policy behind probation,
the right of appeal should not be
irrevocably lost from the moment
a convicted accused files an
application for probation. Appeal
and probation spring from the
same policy considerations of
justice,
humanity,
and
compassion. (Yusi v Morales,
4/28/83)

AMENDMENT TO SECTION 4
OF PD 968:
"Sec. 4. Grant of Probation. Subject to the provisions of this
Decree, the trial court may, after it
shall
have
convicted
and
sentenced a defendant, and upon
application by said defendant
within the period for perfecting an
appeal, suspend the execution of
the sentence and place the
defendant on probation for such
period and upon such terms and
conditions as it may deem best;
Provided, That no application for
probation shall be entertained or
granted if the defendant has
perfected the appeal from the
judgment of conviction.

PROBATION IS NOT A RIGHT

BUT A PRIVILEGE
Probation is a mere privilege and
its grant rests solely upon the
discretion of the court. As aptly
noted in U.S. vs. Durken, this
discretion is to be exercised
primarily for the benefit of
organized society and only
incidentally for the benefit of the
accused. (Tolentino v. Alconcel,
G.R. No. 63400, 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.

"Probation may be granted

whether the sentence imposes a
term of imprisonment or a fine
only. An application for probation
shall be filed with the trial court.
The filing of the application shall
be deemed a waiver of the right
to appeal.
"An order granting or denying
probation
shall
not
be
appealable."
Thus, a person who was
sentenced to destierro cannot
apply for probation. Reason: it
does
not
involved
imprisonment or fine.

MAIN
CRITERION
FOR
DETERMINING
WHO MAY BE GRANTED
PROBATION.

(PD 1990)

The main criterion laid down by

the Probation law in determining
who may be granted probation is
based on the penalty imposed
and not on the nature of the
crime. By the relative lightness of

JURISPRUDENCE

the offense, as measured by the

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 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 probation that,
"probation will depreciate the
seriousness of the offense
committed" would thus be writing
into the law a new ground for
disqualifying a first-offender from
the benefits of probation. (Santos
v. Cruz-Pano, 1/17/83)
TIMELINESS
APPLICATION
PROBATION

OF

MULTIPLE CONVICTIONS IN
SEVERAL CASES
PROBATIONABLE IF PENALTY
FOR EACH
CONVICTION
IS
PROBATIONABLE
." Evidently, the law does
not intend to sum up the penalties
imposed but to take each penalty,
separately and distinctly with the
others. Consequently, even if
petitioner was supposed to have
served his prison term of one (1)
year and one (1) day to one (1)
year and eight (8) months of
prision correccional sixteen (16)
times as he was sentenced to
serve the prison term for "each
crime committed on each date of
each case, as alleged in the
information(s)," and in each of the
four (4) informations, he was
charged with having defamed the
four (4) private complainants on
four (4) different, separate days,
he was still eligible for probation,
as each prison term imposed on
petitioner was probationable.
(Francisco v. CA; 4/16/95)

FILING
FOR

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 barred
from filing a Petition for Probation
(Pablo Francisco v. C.A., 4/6/95).
ORDER DENYING PROBATION
NOT APPEALABLE,
REMEDY CERTIORARI

REASON FOR FIXING CUT OFF

POINT AT A MAXIMUM OF SIX
YEARS IMPRISONMENT FOR
PROBATION.

Although an order denying

probation is not appealable, the
accused may file a motion for
Certiorari from said order (Heirs
of Francisco Abueg v. C.A., 219
SCRA 78)

Fixing the cut-off point at

a maximum term of six (6) years
imprisonment for probation is
based on the assumption that
those sentenced to higher
penalties pose too great a risk to
society, not just because of their
demonstrated capability for
serious wrongdoing but because
of the gravity and serious
consequences of the offense they
might further commit. The
Probation Law, as amended,
disqualifies only those who have
been convicted of grave felonies
as defined in Art. 9 in relation to
Art. 25 of The Revised Penal
Code, and not necessarily those
who have been convicted of
multiple offenses in a single
proceeding who are deemed to
be less perverse. Hence, the
basis of the disqualification is

EFFECT OF FILING PETITION

FOR PROBATION, WAIVER OF
RIGHT TO APPEAL AND
FINALITY OF JUDGEMENT
A judgment of conviction
becomes final when the accused
files a petition for probation.
However, the judgement is not
executory until the petition for
probation is resolved. The filing of
the petition for probation is a
waiver by the accused of his right
to appeal the judgement of
conviction (Heirs of Francisco
Abueg v. C.A., supra).

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 generally
considered callous, hard core
criminals, and thus may avail of
probation
VIOLATION OF RA 6425,
A
VALID
CAUSE
DISMISSAL
IN
SERVICE
IN
GOVERNMENT
DESPITE PROBATION

are 'high.' While spreading such

drugs, the drug-pusher is also
abetting, through his agreed and
irresponsibility, the commission of
other crimes." The image of the
judiciary is tarnished by conduct,
which involves moral turpitude.
While indeed the purpose of the
Probation Law (P.D. No. 968, as
amended) 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 reenter
government service, but only after
he has shown that he is fit to
serve once again. It cannot be
repeated too often that a public
office is a public trust, which
demands of those in its service
the highest degree of morality.
(OCA v. Librado 260 SCRA 624,
8/22/96)

FOR
THE

Drug-pushing, as a crime,
has been variously condemned
as "an especially vicious crime,"
"one of the most pernicious evils
that has ever crept into our
society." For those who become
addicted to it "not only slide into
the ranks of the living dead, what
is worse, they become a grave
menace to the safety of lawabiding members of society,"
while "peddlers of drugs are
actually agents of destruction.
The deserve no less than the
maximum penalty [of death]."

PETITIONER
MAY
STILL
EXHORT OFFENDER
TO PERFORM CERTAIN ACTS
DESPITE
DISCHARGE
FROM
PROBATION IN
CERTAIN CASES

There is no doubt that

drug-pushing is a crime which
involves moral turpitude and
implies "every thing which is done
contrary to justice, honesty,
modesty or good morals"
including "acts of baseness,
vileness, or depravity in the
private and social duties which a
man owes to his fellowmen or to
society in general, contrary to the
accepted rule of right and duty
between man and man." Indeed
nothing is more depraved than for
anyone to be a merchant of death
by selling prohibited drugs, an act
which, as this Court said in one
case, "often breeds other crimes.
It is not what we might call a
'contained' crime whose
consequences are limited to that
crime alone, like 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

Petitioner Arthur M. Cuevas, Jr.'s

discharge from probation without
any infraction of the attendant
conditions therefor and the
various certifications attesting to
his righteous, peaceful and civicoriented character prove that he
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 prepared
to give him the benefit of the
doubt, taking judicial notice of the
general tendency of the youth to
be
rash,
temerarious
and
uncalculating. Let it be stressed
to herein petitioner that the
lawyer's oath is not a mere
formality recited for a few minutes
in the glare of flashing cameras
and before the presence of select
witnesses. Petitioner is exhorted
to conduct himself beyond

reproach at all times and to live

strictly according to his oath and
the
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 hopes that" Mr.
Cuevas, Jr., "will continue with the
assistance he has been giving to
his community. As a lawyer he will
now be in a better position to
render legal and other services to
the more unfortunate members of
society". (In Re: Cuevas, Jr.;
1/27/98)

Pamintuan vs. People,

111426, 11 July 94).

GR

EXPIRATION OF PERIOD OF
PROBATION
IS
NOT
TERMINATION,
ORDER OF
COURT REQUIRED

THE PURPOSE OF ENACTING

PD 1612

BRIEF HISTORY OF PD 1612

OR THE ANTI-FENCING LAW
Presidential Decree No.
1612 or commonly known as the
Anti-Fencing Law of 1979 was
enacted under the authority of
therein
President
Ferdinand
Marcos. The law took effect on
March 2, 1979. The Implementing
Rules and Regulations of the
Anti-Fencing
Law
were
subsequently formulated and it
took effect on June 15, 1979.

The Anti-Fencing Law was made to curtail

and put an end to the rampant robbery of
government and private properties. With the
existence of "ready buyers", the "business" of
robbing and stealing have become profitable.
Hence, a law was enacted to also punish those
who buy stolen properties. For if there are no
buyers then the malefactors could not profit from
their wrong doings.

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 of 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 (Manuel
Bala v. Martinez, 181 SCRA
459).

WHAT IS FENCING LAW AND

HOW IT CAN BE COMMITTED
"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. A
"Fence" includes any person,
firm, association corporation or
partnership or other organization
who/ which commits the act of
fencing.

ANTI-FENCING LAW
OF 1979 (PD NO. 1612)
DEFINITION
Fencing as defined in
Sec. 2 of PD No. 1612 (AntiFencing Law) 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 manner deal in
any article, item, object or
anything of value which he
knows or should be known to
him, or to have been derived
from the proceeds of the crime
of robbery or theft. (Dizon-

WHO ARE LIABLE FOR THE

CRIME OF FENCING; AND ITS
PENALTIES:
The person liable is the
one buying, keeping, concealing

10

and selling 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 should have know the
fact that the offense was
committed.

is more than 200

pesos but not
exceeding 6,000
pesos;
d. The penalty of
arresto mayor in
its medium period
to
prision
correccional in its
minimum period,
if the value of the
property involved
is over 50 but not
exceeding
200
pesos;

The law provide for

penalty
range
for
persons
convicted of the crime of fencing.
Their penalty depends on the
value of the goods or items stolen
or bought:
a. The penalty of prision
mayor, if the value of the
property involved is more
than 12,000 pesos but
not exceeding 22,000
pesos; 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 penalty which may
be imposed shall not
exceed twenty years. In
such cases, the penalty
shall be termed reclusion
temporal
and
the
accessory
penalty
pertaining
thereto
provided in the Revised
Penal Code shall also be
imposed.

e. The penalty of
arresto mayor in
its medium period
if such value is
over
five
(5)
pesos but not
exceeding
50
pesos.
f.

RULES REGARDING BUY AND

SELL
OF
GOODS
PARTICULARLY
SECOND
HAND GOODS
The law requires the
establishment engaged in the
buy and sell of goods to
obtain a clearance or permit
to sell "used second hand
items", to give effect to the
purpose of the law in putting
an end to buying and selling
stolen items. Failure of which
makes the owner or manager
liable as a fence.

b. The penalty of
prision
correccional in its
medium
and
maximum
periods, if the
value
of
the
property robbed
or stolen is more
than 6,000 pesos
but not exceeding
12, 000 pesos;
c.

The penalty of
arresto mayor in
its
minimum
period if such
value does not
exceed 5 pesos.

DEFINITION OF TERMS
The Implementing Rules
provides for the guidelines of
issuance of clearances or permits
to sell used or secondhand items
and it provided for the definition of
the following terms:

The penalty of
prision
correccional in its
minimum
and
medium periods,
if the value of the
property involved

1. "Used
secondhand
article" shall

11

refer to any
goods,
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.

transaction
whereby one
purchases
used
secondhand
articles
for
the purpose
of resale to
third persons;
5. "Station
Commander"
shall refer to
the
Station
Commander
of
the
Integrated
National
Police within
the territorial
limits of the
town or city
district where
the
store,
establishmen
t or entity
dealing in the
buying and
selling
of
used
secondhand
articles
is
located.

2. "Unlicensed
dealer/suppli
er" shall refer
to
any
persons,
partnership,
firm,
corporation,
association
or any other
entity
or
establishmen
t not licensed
by
the
government
to engage in
the business
of dealing in
or
of
supplying the
articles
defined in the
preceding
paragraph;

PROCEDURE FOR SECURING

PERMIT/CLEARANCE
The Implementing Rules
provided for the method of
obtaining clearance or permit. No
fee will be charged for the
issuance of the clearance/permit.
Failure
to
secure
clearance/permit
shall
be
punished as a fence, that may
result to the cancellation of
business license.

3. "Store",
"establishme
nt" or "entity"
shall
be
construed to
include any
individual
dealing in the
buying and
selling used
secondhand
articles,
as
defined
in
paragraph
hereof;

DUTIES
AND
RESPONSIBILIES
OF
STATION
MANAGER AND
OWNER OF SECONDHAND
STORES
1. The
Station
Commander
shall
require the owner of
a
store
or
the
President, manager
or responsible officer
in having in stock

4. "Buy
and
Sell" refer to
the

12

used
secondhand
articles, to submit an
initial affidavit within
thirty (30) days from
receipt of notice for
the purpose thereof
and
subsequent
affidavits once every
fifteen
(15)
days
within five (5) days
after
the
period
covered, which shall
contain:
a. complete inventory of
such
articles
including the names
and addresses from
whom the articles
were acquired.
b. Full list of articles to
be sold or offered for
sale including the
time and place of
sale
c. Place
where
the
articles are presently
deposited.

c.

Include the receipt or

document
showing
proof of legitimacy of
acquisition.
3. The
Station
Commander
shall
examine
the
documents attached
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:
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 of the one
seeking
clearance/permit, in a
newspaper of general
circulation for two
consecutive
days,
stating:
articles acquired from
unlicensed
dealer
or
supplier
the names and
addresses of the persons
from whom they were
acquired
that such articles are
to be sold or offered for
sale to the public at the
address of the store,
establishment or other
entity
seeking
the
clearance/permit.
4. If there are no
newspapers
in
general
circulation,
the party seeking the
clearance/permit
shall, post a notice
daily for one week on
the bulletin board of
the municipal building
of the town where the
store,
firm,
establishment
or
entity is located or, in
the case of an
individual, where the

WHAT
MAYBE
REQUIRED BY THE
STATION COMMANDER
OR
OWNER
OF
SECONDHAND
STORES OR DEALERS
The
Station
Commander may, require
the submission of an
affidavit accompanied by
other documents showing
proof of legitimacy of
acquisition.
2. Those who wish to
secure
the
permit/clearance,
shall
file
an
application with the
Station Commander
concerned,
which
states:
a. name, address and
other
pertinent
circumstances
b. article to be sold or
offered for sale to the
public and the name
and address of the
unlicensed dealer or
supplier from whom
such
article
was
acquired.

13

articles
in
his
possession are to be
sold or offered for
sale.
5. If after 15 days, upon
expiration
of
the
period of publication
or of 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.
6. If before expiration of
the same period for
the publication of the
notice or its posting, it
shall appear that any
of the articles in
question is stolen
property, the Station
Commander
shall
hold the article in
restraint as evidence
in any appropriate
case to be filed.
Articles
held
in
restraint shall kept
and disposed of as
the circumstances of
each case permit. In
any case it shall be
the duty of the
Station Commander
concerned
to
advise/notify
the
Commission on Audit
of the case and
comply with such
procedure as may be
proper
under
applicable
existing
laws,
rules
and
regulations.
7. The
Station
Commander
shall,
within
seventy-two
(72)
hours
from
receipt
of
the
application,
act
thereon by either
issuing
the
clearance/permit
requested or denying
the same. Denial of
an application shall
be in writing and shall
state in brief the
reason/s thereof.

8. Any
party
not
satisfied with the
decision
of
the
Station Commander
may appeal the same
within 10 days to the
proper
INP (now
PNP)
District
Superintendent and
further to the INP
(now PNP) Director.
The decision of the
Director can still be
appealed top the
Director-General,
within
10
days,
whose decision may
be appealed with the
Minister
(now
Secretary) of National
Defense, within 15
days, which decision
is final.
PRIMAFACIE
FENCING.

EVIDENCE

OF

Mere possession of any

good, article, item, object or
anything of value which has been
the subject of robbery or thievery,
shall be prima facie evidence of
fencing.
ELEMENTS OF VIOLATION OF
THE ANTI- FENCING LAW.
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, possess, 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.

14

(Dizon-Pamintuan vs People,
GR 111426, 11 July 94)
DISCUSSION
ELEMENTS.

OF

because of the fact that Crisilita

was willing to part with a
considerable number of jewelry at
measly sum, and this should have
apprised Norma of the possibility
that they were stolen goods. The
approximate total value of the
jewelry were held to be at
P20,000.00, and 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 gold and silver, which
business is very well exposed to
the practice of fencing. This
requires more than ordinary case
and caution in dealing with
customers. As noted by the trial
court:

THE

A. As regards the first

element, the crime of robbery or
theft should have been committed
before crime of fencing can be
committed.
The
person
committing the crime of robbery
or theft, may or may not be the
same person committing the
crime of fencing. As in the case of
D.M. Consunji, Inc., vs. Esguerra,
quantities of phelonic plywood
were stolen and the Court held
that qualified theft had been
committed. In People vs. Lucero
there was first a snatching
incident, where the bag of Mrs.
Maripaz Bernard Ramolete was
snatch in the public market of
Carbon, Cebu City, where she
lost a Chinese Gold Necklace and
pendant worth some P4,000.00 to
snatchers Manuel Elardo and
Zacarias Pateras. The snatchers
sold the items to Manuel Lucero.
Consequently,
Lucero
was
charged with violation of the AntiFencing Law. However, in this
case, no eyewitness pointed to
Lucero as the perpetrator and the
evidence of the prosecution was
not strong enough to convict him
(read this case).

". . . the Court is not

inclined to accept the accused's
theory of buying in good faith and
disclaimer of ever seeing, much
more, buying the 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 expense of innocent
owners.
WHEN POSSESSION UNDER
CERTAIN
CIRCUMSTANCES
SUCH AS DISPLAYING THE
SAME IN THE SHELVES IS AN
ACT OF FENCING.
The Court in convicting
Ernesto Dunlao Sr., noted that the
stolen articles composed of
farrowing crates and G.I. pipes
were
found
displayed
on
petitioner's shelves inside his
compound. (Dunalao, Sr. v. CA,
08/22/96)

B. The second element

speaks of the overt act of
keeping,
buying,
receiving,
possessing,
acquiring,
concealing, selling or disposing or
in any manner deals with stolen
items. It is thus illustrated in the
case of Lim vs. Court of Appeals,
where the accused, Juanito Lim
stored and kept in his bodega and
subsequently bought or disposed
of the nine (9) pieces of stolen
tires with rims owned by Loui
Anton Bond.

WHEN THEFT OR ROBBERY

AS FIRST ELEMENT WAS NOT
PROVEN.
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 Kenwood Stereo
Unit in the store Danvir Trading,
owned by the spouses Muere.
The store is engaged in buying
and selling of second hand
merchandise located at Pasay
Road, Makati. The said stereo

C. The accused know or

should have known that the
goods were 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 that the jewelry were stolen

15

was bought from Wynn's Audio,

an existing establishment. The
court held that there is no proof
that the spouses Muere, had
knowledge of the fact that the
stereo was stolen. The spouses
Muere purchased the stereo from
a known merchant and the unit is
displayed for sale in their store.
These actions are not indicative
of a conduct of a guilty person.

DELIBERATE
INTENT
OR
DOLO OR DECEIT IS NOT
ALSO MATERIAL IN ANTIFENCING.
Likewise, dolo or deceit is
immaterial in crimes punishable
by special statute like the AntiFencing Law. It is the act itself
which constitutes the offense and
not the motive or intent. Intent to
gain is a mental state, the
existence
if
which
is
demonstrated by the overt acts of
the person. The 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
demonstrated by the overt acts of
person, as the keeping of stolen
items for subsequent selling.

WHEN THERE IS NO PROOF

THAT THE ACCUSED BOUGHT
OR SOLD ARTICLES KNOWING
THE SAME TO BE STOLEN.
THUS THE THIRD ELEMENT IS
NOT PRESENT.
On the same vein, the
third element did not exist in the
case of D.M. Consunji, Inc.
(Consunji v. Esguerra, 07/30/96)
where the subject of the court
action are the alleged stolen
phelonic plywood owned by D.M.
Consunji, Inc., later found to be in
the premises of MC Industrial
Sales
and
Seato
trading
Company, owned respectively by
Eduardo Ching and the spouses
Sy. Respondents presented sales
receipts covering their purchase
of the items 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.

A
FENCE
MAY
BE
PROSECUTED
UNDER THE RPC OR PD 1612
OR BOTH.
The state may thus
choose to prosecute him either
under the RPC or PD NO. 1612
although the preference for the
latter would seem inevitable
considering that fencing is a
malum prohibitum, and PD No.
1612 creates a presumption of
fencing and prescribes a higher
penalty based on the value of the
property. (supra)

INTENT TO GAIN NEED NOT

BE PROVEN IN ANTI-FENCING
LAW.

MERE POSSESSION
OF
STOLEN ARTICLE
PRIMA FACIE EVIDENCE OF
FENCING.

The last element is that

there is intent to gain for himself
or for another. However, intent to
gain need not be proven in crimes
punishable by a special law such
as the Anti-Fencing Law. The
crimes punishable by 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 Gatdner v. People,
as cited in US v. Go Chico, 14
Phils. 134) When the act is
prohibited by law, intent is
immaterial.

Since Sec. 5 of PD NO.

1612 expressly provides that
mere possession of any good,
article, item, object or anything of
value which has been the subject
of robbery or thievery shall be
prima facie evidence of fencing.
It follows that the accused is
presumed to have knowledge of
the fact that the items found in
her
possession
were
the
proceeds of robbery or theft. The
presumption does not offend the

16

presumption
of
innocence
enshrined in the fundamental law.

known that the items were stolen.

Participation of each 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 peaceful dominion
for gain. (Supra) Both crimes
negated the principle of each
person's duty to his fellowmen not
to appropriate things that they do
not own or return something
acquired by mistake or with
malice. This signifies moral
turpitude with moral unfitness.

DISTINCTION BETWEEN
FENCING AND ROBBERY.
The law on fencing does
not require the accused to have
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).

In the case of Dela Torre,

he was declared disqualified from
running 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 Government
Code, of persons running for
elective position -"Sec. 40
Disqualifications - (a) Those
sentenced by final judgement for
an offense involving moral
turpitude..."

DISTINCTION
BETWEEN
ROBBERY AND FENCING
Robbery is the taking of
personal property belonging to
another, with intent to gain, by
means of violence against or
intimidation of any person, or
using force upon anything.
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, 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 shall be known to him,
to have been derived from the
proceeds of the crime of robbery
or theft.
FENCING
AS
A
INVOLVING
MORAL TURPITUDE.

Dela
Torre
was
disqualified because of his prior
conviction of the crime of fencing
wherein he admitted all the
elements of the crime of fencing.

ESSENCE OF VIOLATION OF
PD 1612,
SEC. 2 OR ANTI-FENCING
PD 1612, Section 2
thereof requires that the offender
buys or otherwise acquires and
then sells or disposes of any
object of value which he knows or
should he known to him to have
been derived from the proceeds
of the crime of robbery or theft.
(Caoili v CA; GR 128369,
12/22/97)

CRIME

In violation of the AntiFencing Law, actual knowledge

by the "fence" 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. (Dela
Torre v. COMELEC 07/05/96)

PROOF OF PURCHASE WHEN

GOODS
ARE IN POSSESSION OF
OFFENDER
NOT NECESSARY IN ANTIFENCING

Moral turpitude can be

derived from the third element accused knows or should have

17

The law does not require

proof of purchase of the stolen
articles by petitioner, as mere
possession thereof is enough to
give rise to a presumption of
fencing.

subsequently charged, be offered

in
evidence
because
the
gravamen of the offense charged
is the act of knowingly issuing a
check with insufficient funds.
Clearly, it was error to convict
complainant on the basis of 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 decision.
Rather, it is at most an error in
judgment, for which, as a general
rule,
he
cannot
be
held
administratively liable.
In this
regard, we reiterate the prevailing
rule in our jurisdiction as
established
by
current
jurisprudence.
(Gutierrez v
Pallatao; 8/8/98)

It was incumbent upon

petitioner to overthrow this
presumption by sufficient and
convincing evidence. (Caoili v.
CA; GR 128369, 12/22/97)
BATAS PAMBANSA BLG.
22
BOUNCING CHECKS LAW
ACTS PUNISHABLE IN BP 22
a. any person who makes or draws
and issues any check to apply on
account or for value, knowing at
the time of issue that he does not
have sufficient funds in or credit
with the drawee bank, for the
payment of such check in full
upon its presentment, which
check is subsequently dishonored
by
the
drawee
bank for
insufficiency of funds, or credit, or
would have been dishonored for
the same reason had not the
drawee, without any valid reason,
ordered the bank to stop
payment.

NOTICE, AN INDISPENSABLE
REQUISITE
FOR
PROSECUTION
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 issuance, and
upon notice the drawer has five
days within which to make
arrangements for the payment of
the check or pay the same in full.

b. Any person who having sufficient

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

DUTY OF THE DRAWEE BANK

The drawee bank has the
duty to cause to be written,
printed or stamped in plain
language thereon, or attached
thereto the reason for the
drawees dishonor or refusal to
pay the same. If the drawee bank
fails to do so, prosecution for
violation of BP 22 may not
prosper.

Any person who issue any check

whose account already closed
whether the drawee knows that
his account is closed or not.
HOW TO ESTABLISH GUILT
OF ACCUSED IN BP 22
To establish her guilt, it is
indispensable that the checks she
issued for which she was

18

DUTY OF THE BANK AND

RULE
IN CASE OF DISHONOR
DUE TO STOP PAYMENT

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 or uttered in the
Philippines, even if the same is
payable outside of the Philippines
(De Villa v. CA)

The drawee bank has not

only the duty to indicate that the
drawer stopped the payment and
the reason for the stop payment.
The drawee bank is further
obligated to state whether the
drawer of the check has sufficient
funds in the bank or not.

GUARANTEE
CHECKS,
DRAWER IS NOT LIABLE IF
THE
LESSOR
WHO
IS
RECIPIENT OF GUARANTEE
CHECK PULLED OUT OF THE
LOANED EQUIPMENT.

AGREEMENT OF PARTIES
REGARDING THE CHECK
IS NOT A DEFENSE

The mere act of issuing a

worthless check is punishable.
Offender cannot claim good faith
for it is malum prohibitum.

In the case of People vs

Nitafan,
215
SCRA,
the
agreement of the parties in
respect to the issuance of the
check is inconsequential or will
not affect the violation of BP 22, if
the check is presented to the
bank and the same was
dishonored due to insufficiency of
funds.

In the case of Magno vs

CA, when accused issued a
check as warranty deposit for
lease of certain equipment, even
knowing that he has no funds or
insufficient funds in the bank is
not liable, if the lessor of the
equipment pulled out the loaned
equipment. The drawer has no
obligation to make good the
check because there is no more
deposit to guaranty.

CHECKS ISSUED IN PAYMENT

OF INSTALLMENT STILL IN
VIOLATION OF B.P. 22
Checks
issued
in
payment for installment covered
by promissory 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. (Caram
Resources v. Contreras)

ISSUANCE OF GUARANTEE
CHECKS
WHICH WAS DISHONORED IS
STILL A VIOLATION OF BP 22.
PREJUDICE OR DAMAGE IS
NOT NECESSARRY
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.

In this case, the Judge

was even held administratively
liable.
CHECK DRAWN AGAINST
A DOLLAR ACCOUNT IN
FOREIGN COUNTRY IS STILL A
VIOLATION OF B.P. 22 AS
LONG AS THE CHECK IS
DELIVERED ON THE PHILS.
AND IF IT IS PAYABLE
OUTSIDE OF THE PHILS.

The
agreement
surrounding the issuance of the
checks need not be first locked
into, since the law has provided
that the mere issuance of any
kind of check; regardless of the
intent of the parties, i.e., whether
the check is intended merely to

19

serve as guarantee or deposit,

but which checks is subsequently
dishonored, makes the person
who issued the check liable.
(Lazaro vs CA, et al., GR
105461).

drawer, without valid reason,

ordered the bank to stop
payment. (Uy v Court of Appeals,
GR 119000, July 28, 1997)

RULES OR JURISDICTION IN
RELATION TO THE COURTS
WHERE
BP 22 CASES MAYBE FILED

CAN A PERSON BE HELD

LIABLE FOR VIOLATION OF
B.P. 22 IN ISSUING A CHECK
WITH SUFFICIENT FUNDS?

In
respect
of
the
Bouncing checks case, the
offense also appears to be
continuing in nature. It is true that
the offense is committed by the
very fact of its performance
(Colmenares vs. Villar, No. L27126, 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
place of the issuance of the
check". However, it is likewise
true that 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 itself a
continuing eventuality, whether
the accused be within one
territory or another (People vs.
Hon. Manzanilla, G.R. Nos.
66003-04, December 11, 1987).
Accordingly, jurisdiction to take
cognizance of the offense also
lies in the Regional Trial Court of
Pampanga (now M.T.C. of the
proper town of Pampanga).

Yes.
Paragraph 2 of
Section 1 of BP 22 provides:
The same penalty shall
be imposed upon any person who
having sufficient funds in or credit
with the drawee bank when he
makes or draws and issues a
check, shall fail to keep sufficient
funds or to maintain a credit to
cover the full amount of the check
if presented within a period of 90
days from the date appearing
thereon, for which reason, it is
dishonored by the drawee bank.
DIFFERENCE
BETWEEN
ESTAFA
AND VIOLATION OF BP 22
In the crime of estafa,
deceit and damage are essential
elements of the offense and have
to be established with satisfactory
proof to warrant conviction. For
violation of the Bouncing Checks
Law, on the other hand, the
elements of deceit and damage
are neither essential nor required.
Rather, the elements of B.P. Blg.
22 are (a) the making, drawing
and issuance of any check to
apply to account or for value; (b)
the maker, drawer or issuer
knows 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 insufficiency of funds or credit
or would have been dishonored
for the same reason had not the

And, as pointed out in the

Manzanilla case, jurisdiction or
venue is 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

20

specifically alleges that the crime

was committed in San Fernando
Pampanga and therefore within
the jurisdiction of the Court below.

guarantee only for the feeds

delivered to him" and that there is
no estafa if a check is issued in
payment
of
a
pre-existing
obligation, the Court of Appeals
pointed out that the petitioner
obviously failed to distinguish a
violation of B.P. Blg. 22 from
estafa under 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 guarantee or for deposit only,
for it makes no distinction as to
whether the checks within its
contemplation are issued in
payment of an obligation or
merely to guarantee the said
obligation and the history of its
enactment evinces the definite
legislative intent to make the
prohibition all-embracing.
(Ibasco vs CA, 261 SCRA
572)

This ruling was reiterated

in the case of Lim vs. Rodrigo,
167 SCRA 487, where it was
held:
Besides, it was held in
People v. Hon. Manzanilla, supra,
that as "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 credit with
the drawee bank . . . shall fail to
keep sufficient funds or to
maintain a credit to cover the full
amount of the check if presented
within a period of ninety (90) days
from the date appearing thereon,
for which reason it is dishonored
by
the
drawee
bank,"
"knowledge" is an essential
ingredient of the offense charge.
As defined by the statute,
knowledge, is, by itself, a
continuing eventuality, whether
the accused be within one
territory or another. This being the
case, the Regional Trial Court of
Baguio City has jurisdiction to try
Criminal Case No. 2089-R (688).

ACTUAL KNOWLEDGE
OF
INSUFFICIENCY
OF FUNDS ESSENTIAL IN BP
22
Knowledge
of
insufficiency of funds or credit in
the drawee bank for the payment
of a check upon its presentment
is an essential element of the
offense. There is a prima facie
presumption of the existence of
this element from the fact of
drawing, issuing or making a
check, the payment of which was
subsequently
refused
for
insufficiency of funds. It is
important to stress, however, that
this
is
not
a
conclusive
presumption that forecloses or
precludes the presentation of
evidence to the contrary. (Lim
Lao v CA 274 SCRA 572)

Moreover, we ruled in the

same case of People v. Hon.
Manzanilla, reiterated in People
vs.
Grospe,
supra,
that
jurisdiction
or
venue
is
determined by the allegations in
the information. The allegation in
the
information
under
consideration that the offense
was committed in Baguio City is
therefore controlling and sufficient
to vest jurisdiction upon the
Regional Trial Court of Baguio
City.
In the case at bench it
appears that the three (3) checks
were deposited in Lucena City. As
to the second error wherein the
petitioner asserted that the
checks were issued "as a

WHEN LACK OF KNOWLEDGE

AND
LACK OF POWER TO FUND
THE

21

CHECKS IN CASES OF BP 22 A
DEFENSE

ANTI-GRAFT & CORRUPT

PRACTICES ACT
(RA NO 3019)

After a thorough review of

the case at bar, the Court finds
that Petitioner Lina Lim Lao did
not have actual knowledge of the
insufficiency of funds in the
corporate accounts at the time
she affixed her signature to the
checks involved in this case, at
the time the same were issued,
and even at the time the checks
were subsequently dishonored by
the drawee bank.

ANTI-GRAFT AND CORRUPT

PRACTICES ACT
Corrupt
public officers.

The scope of petitioner's

duties and responsibilities did not
encompass the funding of the
corporation's checks; her duties
were limited to the marketing
department of the Binondo
branch. Under the organizational
structure of Premiere Financing
Corporation, funding of checks
was the sole responsibility of the
Treasury Department. (Lim Lao v
CA 274 SCRA 572)

The notice of dishonor

may be sent by the offended party
or the drawee bank. The trial
court itself found absent a
personal notice of dishonor to
Petitioner Lina Lim Lao by the
drawee bank based on the
unrebutted testimony of Ocampo
"(t)hat the checks bounced when
presented with the drawee bank
but she did not inform anymore
the Binondo branch and Lina 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; 6/20/97)

22

of

(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 part, 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
thirteen of this 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

LACK OF ADEQUATE NOTICE

OF
DISHONOR, A DEFENSE
There can be no prima
facie evidence of knowledge of
insufficiency of funds in the
instant case because no notice of
dishonor was actually sent to or
received by the petitioner.

practices

one
year
termination.
(e)

after

its

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
transaction or acts by the
board, panel or group to
which they belong.

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.
( j)

( 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
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)

(h)

(i)

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.

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.
Director or indirectly having
financing
or
pecuniary
interest in any business,
contract or transaction in
connection with which he
intervenes or takes part in
his official capacity, or in
which he is prohibited by the
Constitution or by any law
from having any interest.

UNEXPLAINED WEALTH,
MEANING
Prima facie evidence of
and dismissal due to unexplained
wealth. If in accordance with the
provisions of RA 1379, 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.
Note:
Unsolicited gifts or
presents of small or insignificant
value shall be offered or given as
a mere ordinary token of gratitude

Directly
or
indirectly
becoming interested, for
personal gain, or having a

23

or friendship according to local

customs or usage shall be
exempted from the provision of
this act.

EVIDENT BAD
INEXCUSABLE
NEGLIGENCE

FAITH,

OR

Sec. 3. Corrupt practices

of public officers. - In addition to
acts or omissions of public
officers already penalized by
existing law, the following shall
constitute corrupt practices of any
public officer and are hereby
declared to be unlawful:

MEANING OF
CAUSING UNDUE INJURY
The act of giving any
private party any unwarranted
benefit, advantage or preference
is not an indispensable element
of causing any undue injury to
any part, although there may be
instances where both elements
concur.
(Santiago
vs
Garchitorena, et al., 2 Dec. 93).

xxx

xxx

xxx

(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.

In
Mejoroda
v
Sandiganbayan, the Supreme
Court has ruled that the offender
in causing undue injury does not
refer only to those who are in
charge of giving permits, licenses
or concessions but all acts of
public officers or employees
which have caused undue injury
to others.
ELEMENTS OF NEGLECT OF
DUTY UNDER
SEC. 3 OF RA 3019

VIOLATION OF SECTION 3 (E)

OF RA 3019
REQUIRES PROOF OF THE
FOLLOWING
FACTS, VIZ:

a. the offender is a public

officer;
b. the said officer has neglected
or has refused to act without
sufficient justification after
due demand or request has
been made upon him;
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 indirectly from any person
interested in the matter some
pecuniary or material benefit
or advantage in favor of an
interested
party
or
discriminating
against
another.
Coronado
v
Sandiganbayan.

a. the accused is a public officer

discharging administrative or
official functions or private
persons
charged
in
conspiracy with them;
b. the public officer committed
the prohibited act during the
performance of his official
duty or in relation to his public
position;
c.

the public officer acted with

manifest partiality evident bad
faith or gross, inexcusable
negligence; and

d. his action caused undue

injury to the government or
any private party, or gave any
party
any
unwarranted
benefit,
advantage
or
preference to such parties.

WHERE
PUBLIC
OFFICER
ACTED
WITH MANIFEST PARTIALITY,

24

under a valid information for any

of the above-described crimes for
the purpose of granting or
denying
the
sought
for
suspension.
(Bolastig
vs.
Sandiganbayan, 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,
preventive suspension will last for
less than ninety (90) days only if
the case is decided within that
period; otherwise, it will continue
for ninety (90) days." (Conducto
v. Monzon; A.M. No. MTJ-981147, July 2, 1998) (see also sec
13)

CAUSING
UNDUE
INJURY
UNDER SEC. 3,
LETTER (e) OF RA 3019.
INCLUDES
ALL
PUBLIC
OFFICERS INCLUDING THOSE
THAT DOES
NOT
ISSUE
LICENSE OR PERMIT OR
CONCESSION.
Section 3 enumerates in
eleven subsections the corrupt
practices of any public officer
declared unlawful. Its reference
to any public officer is without
distinction or qualification and it
specifies the acts declared
unlawful. We agree with the view
adopted by the Solicitor General
that the last inclusion of officers
and employees of offices or
government corporations which,
under the ordinary concept of
public officer may not come
within the term. It is a strained
construction of the provision to
read it as applying exclusively to
public officers charged with the
duty of granting license or permits
or other concessions. (Mejorada
v Sandiganbayan, 151 SCRA
399).

PUBLIC OFFICER MAY BE

SUSPENDED
FROM
HIS
PRESENT POSITION EVEN IF
THE CRIME WHICH HE IS
BEING
CHARGED
WAS
COMMITTED
DURING
HIS
PREVIOUS TERM
Judge
Monzon's
contention denying complainant's
Motion for Suspension because
"offenses committed during the
previous term (is) not a cause for
removal during the present term"
is untenable. In the case of
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-election to office
operates as a condonation of the
officer's previous 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 criminal cases . . ."
Likewise,
it
was
specifically declared in the case
of Ingco vs. Sanchez, G.R. No. L23220, 18 December 1967, 21
SCRA 1292, that "The ruling,
therefore, that 'when the people
have elected a man to office it
must be assumed that they did
this with knowledge of his life and
character
and
that
they
disregarded or forgave his faults
or misconduct if he had been

SUSPENSION UNDER R.A.

3019 MANDATORY
BUT COURTS ARE ALLOWED
TO DETERMINE
WHETHER INFORMATION IS
VALID OR NOT
It is well settled that
Section 13 of RA 3019 makes it
mandatory for the Sandiganbayan
(or the Court) to suspend any
public officer against whom a
valid
information
charging
violation of this law, Book II, Title
7 of the RPC, or any offense
involving fraud upon government
or public funds or 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 accused from using his office
to
intimidate
witnesses
or
frustrate his prosecution or
continue committing malfeasance
in office. All that is required is for
the court to make a finding that
the accused stands charged

25

guilty of any' refers only to an

action for removal from office and
does not apply to a criminal case"

does not include reelection to

office as one of them, at least
insofar as a public officer is
concerned. Also, under the
Constitution, it is only the
President who may grant the
pardon of a criminal offense.
(Conducto v. Monzon; A.M.
No. MTJ-98-1147, July 2,
1998)

Clearly, even if the

alleged unlawful appointment was
committed during Maghirang's
first term as barangay chairman
and the Motion for his suspension
was only filed in 1995 during his
second term, his re-election is not
a bar to his suspension as the
suspension sought for is in
connection with a criminal case.
(Conducto v. Monzon 291 scra
619)

PRE-CONDITION
SUSPENSION
(PREVENTIVE) UNDER
13, RA 3019

RE-ELECTION
IN
PUBLIC
OFFICE
EXTINGUISHING ONLY HIS
ADMINISTRATIVE
LIABILITY
BUT
NOT HIS CRIMINAL LIABILITY

OF
SEC.

It is mandatory for the

court to place under preventive
suspension a public officer
accused before it. Imposition of
suspension, however, is not
automatic or self-operative. A precondition thereof is the existence
of a valid information, determined
at a pre-suspension hearing.
Such a hearing is in accord with
the spirit of the law, considering
the serious and far-reaching
consequences of a suspension of
a public official even before his
conviction, and the demands of
public interest for a speedy
determination of the issues
involved in the case.
The
purpose of the pre-suspension
hearing is basically 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 merits of the case, or
refuse suspension of the latter
and dismiss the case, or correct
any part of the proceeding which
impairs its validity. The accused
should
be given adequate
opportunity to challenge the
validity or regularity of the
criminal proceedings against him;
e.g. that he has not been afforded
the 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)
warranting
his
mandatory
suspension from office under
Section 13 of the Act; or that the
information is subject to quashal
on any of the grounds set out in
Rule 117 of the Rules of Court.

As early as 18 December
1967 in Ingco v. Sanchez, 17 this
Court explicitly ruled that the reelection of a public official
extinguishes
only
the
administrative, but not the
criminal, liability incurred by him
during his previous term of office,
thus:
The ruling, therefore,
that "when the people
have elected a man to his
office it must be assumed that
they did this with knowledge
of his life and character and
that they disregarded or
forgave
his
faults
or
misconduct if he had been
guilty of any" refers only to
an action for 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, and is injurious
not only to a person or group
of persons but to the State as
a whole. This must be the
reason why Article 89 of the
Revised Penal Code, which
enumerates the grounds for
extinction of criminal liability,

26

But once a proper determination

of the validity of the information
has been made, it becomes the
ministerial duty of the court to
forthwith issue the order of
preventive suspension. The court
has no discretion, for instance, to
hold in abeyance the suspension
of the accused official on the
pretext that the order denying the
latter's motion to quash is
pending review before the
appellate courts.
(Segovia v.
Sandiganbayan;
GR 124067,
Mar. 27, 1998)

trial court would no longer

be necessary. What is
indispensable is that the
trial court duly hear the
parties at a hearing held for
determining the validity of
the
information,
and
thereafter hand down its
ruling,
issuing
the
corresponding order of
suspension should it uphold
the
validity
of
the
information or withhold
such suspension in the
contrary case.

GUIDELINES
TO
BE
FOLLOWED
IN PREVENTIVE SUSPENSION
CASES

(d)
No
specific rules need be laid
down
for
such
presuspension hearing. Suffice
it to state that the accused
should be given a fair and
adequate opportunity to
challenge the validity of the
criminal
proceedings
against him, e.g., that he
has not been afforded the
right of due preliminary
investigation, the act for
which he stands 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 of
the Act, or he may present
a motion to quash the
information on any of the
grounds provided in Rule
117 of the Rules of Court.
The mandatory suspension
decreed by the act upon
determination
of
the
pendency in court or a
criminal prosecution for
violation of the Anti-Graft
Act or for bribery under a
valid information requires at
the same time that the
hearing be expeditious, and
not unduly protracted such
as to thwart the prompt
suspension envisioned by
the Act. Hence, if the trial
court, say, finds the ground
alleged in the quashal
motion
not
to
be
indubitable, then it shall be
called upon to issue the

"In the leading case of

Luciano, et al. vs. Mariano, et al.
(L-32950, July 30, 1971, 40
SCRA 187), we have set out the
guidelines to be followed by the
lower courts in the exercise of the
power of suspension under
Section 13 of the law, to wit:
(c)
By way
of broad guidelines for the
lower courts in the exercise
of the power of suspension
from office of public officers
charged under a valid
information
under
the
provisions of Republic Act
No. 3019 or under the
provisions of the Revised
Penal Code on bribery,
pursuant to section 13 of
said Act, it may be briefly
stated that upon the filing of
such information, the trial
court should issue an order
with proper notice requiring
the accused officer to show
cause at a specific date of
hearing why he should not
be ordered suspended from
office pursuant to the cited
mandatory provisions of the
Act. Where either the
prosecution
seasonably
files a motion for an order
of suspension or the
accused in turn files a
motion to quash the
information or challenges
the validity thereof, such
show-cause order of the

27

suspension order upon its

upholding the validity of the
information and setting the
same for trial on the merits.'
(Segovia
v.
Sandiganbayan)

MEANING OF BAD FAITH

UNDER
SECTION 3(e) OF RA 3019
"Bad faith does not
simply connote bad judgment or
negligence; it imputes a dishonest
purpose or some moral obliquity
and conscious doing of a wrong;
a breach of sworn duty through
some motive or intent or ill will; it
partakes of the nature of fraud.
(Spiegel v Beacon Participations,
8 NE 2nd 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
(Air
France
v.
Carrascoso, 18 SCRA 155, 166167). Evident bad faith connotes
a manifest deliberate intent on the
part of the accused to do wrong
or cause damage."

WHEN MAY A PUBLIC OFFICER

BE
LIABLE FOR CAUSING UNDUE
INJURY
UNDER SEC. 3(e) of RA 3019
xxx
xxx
(c)

xxx

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."

In Jacinto, evident bad

faith
was
not
appreciated
because the actions taken by the
accused were not entirely without
rhyme or reason; he refused to
release the complainant's salary
because the latter failed to submit
her daily time record; he refused
to
approve
her
sick-leave
application because 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 actions were measures
taken by a superior against an
erring employee who studiously
ignored, if not defied, his
authority.
(Llorente v.
Sandiganbayan)

To hold a person liable under

this section, the concurrence of
the following elements must be
established beyond reasonable
doubt by the prosecution:
"(1) That the accused is a public
officer or a private person
charged in conspiracy with
the former;
(2) That said public officer
commits the prohibited acts
during the performance of his
or her official duties or in
relation to his or her public
positions;
(3) That he or she causes undue
injury to any party, whether
the government or a private
party; and
(4)
That the public officer has
acted with manifest partiality,
evident bad faith or gross
inexcusable negligence."
(Llorente v.
Sandiganbayan;
GR 122166,
Mar. 11, 1998)

WHEN OFFENDER IS NOT

LIABLE UNDER
SEC. 3(e) BUT UNDER SEC. (f)
OF RA 3019
It would appear that
petitioner's failure or refusal to act
on the complainant's vouchers, or
the delay in his acting on them
more properly falls under Sec.
3[f]:

28

"(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
or
advantage, or for purpose
of favoring his own
interest or giving undue
advantage in favor of or
discriminating
against
any
other
interested
party."

(Llorente
v. Sandiganbayan)
SUSPENSION
(PREVENTIVE)
OF
LOCAL
OFFICIALS
SHALL
ONLY
BE FOR 60 DAYS
On the other hand, we
find merit in petitioner's second
assigned
error.
The
Sandiganbayan erred in imposing
a 90 day suspension upon
petitioner for the single case filed
against him. Under Section 63 (b)
of the Local Government Code,
"any single preventive suspension
of local elective officials shall not
extend beyond sixty (60) days."

Here, the neglect or

refusal to act within a reasonable
time is the criminal act, not the
causing of undue injury. Thus, its
elements are:

(Rios v. Sandiganbayan;
GR 129913, Set. 26, 1997)
APPROVAL OF LEAVE OF
ABSENCE
NOT A BAR TO SUSPENSION

"1) The offender is a public

officer;
2) Said officer has
neglected or has refused
to act without sufficient
justification after due
demand or request has
been made on him;
3) Reasonable time has
elapsed
from
such
demand
or
request
without the public officer
having acted on the
matter pending before
him; and
4) Such failure to so act is
'for the purpose of
obtaining,
directly
or
indirectly,
from
any
person interested in the
matter some pecuniary or
material
benefit
or
advantage in favor of an
interested
party,
or
discriminating
against
another."

Since the petitioner is an

incumbent public official charged
in a valid information with an
offense punishable under the
Constitution and the laws (RA
3019 and PD 807), the law's
command that he "shall be
suspended from office" pendente
lite must be obeyed. His
approved leave of absence is not
a
bar
to
his
preventive
suspension for as indicated by
the
Solicitor
General,
an
approved leave, whether it be for
a fixed or indefinite period, may
be cancelled or shortened at will
by the incumbent. (Doromal v.
Sandiganbayan 177 SCRA 354)
UNDUE
DELAY
IN
PRELIMINARY
INVESTIGATIONS
VIOLATIVE
OF
DUE
PROCESS
AND
A
GROUND TO DISMISS

However, petitioner is not

charged with a violation of Sec.
3[f]. Hence, further disquisition is
not proper. Neither may this Court
convict petitioner under Sec. 3[f]
without violating his constitutional
right to due process.

After a careful review of

the facts and circumstances of
this case, we are constrained to

29

hold that the inordinate delay in

terminating
the
preliminary
investigation and filing the
information in the instant case is
violative of the constitutionally
guaranteed right of the petitioner
to due process and to a speedy
disposition of the cases against
him. Accordingly, the informations
in Criminal Cases Nos. 10499,
10500, 10501, 10502 and 10503
should be dismissed. In view of
the foregoing, we find it
unnecessary to rule on the other
issues raised by petitioner.
(Tatad v. Sandiganbayan)

entitled to respect even for that

short moment."
(People v.
Alfeche)
WHEN RELATIONSHIP IS NOT
AN
ALTERNATIVE
CIRCUMSTANCE
UNDER ART. 15 OF THE RPC
Clearly then, the fatherdaughter relationship in rape
cases, or between accused and
Relanne, in this case, has been
treated by Congress in the nature
of a special circumstance which
makes the imposition of the death
penalty
mandatory.
Hence,
relationship as an alternative
circumstance under Article 15 of
the
Revised
Penal
Code,
appreciated as an aggravating
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
foregoing
amendment,
relationship would still be an
aggravating circumstance in the
crimes of rape (Article 335) and
acts of lasciviousness (Article
336). 57

DEATH PENALTY LAW

(RA 7659)
PROSTITUTES CAN
VICTIM OF RAPE

BE

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 can be
victims of rape.
(People v.
Alfeche)
REASON WHY DWELLING
IS
AN
AGGRAVATING
CIRCUMSTANCE

If relationship in the
instant case were to be
appreciated under Article 15 of
the Revised Penal Code, the
penalty imposable on accused
then would not be death, but
merely reclusion perpetua for,
assuming
that
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 Article 335 which
imposes a penalty higher than
reclusion perpetua or of reclusion
perpetua to death. (People v.
Manyuhod, Jr.)

Dwelling is considered an
aggravating
circumstance
because primarily of the sanctity
of privacy the law accords to
human abode. The dwelling need
not be owned by the victim.
Thus, in People v. Basa, dwelling
was appreciated, although the
victims were killed while sleeping
as guests in 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
because as [an] invited guest [or
a housemaid as in the instant
case], he, the stranger, is
sheltered by the same roof and
protected by the same intimacy of
life it affords. It may not be his
house, but it is, even for a brief
moment, "home" to him. He is

WHEN OFFENDER IS STEP

GRANDPARENT,
HE IS NOT CONSIDERED AN
ASCENDANT
UNDER RA 8353 AND RA 7659

30

PERPETUA WAS IMPOSED TO

SAME
OFFENSE,
THE
PENALTY THAT SHOULD BE
IMPOSED
IS
RECLUSION
PERPETUA

The trial court has thus

held incorrectly in considering
appellant, who is legally married
to Roxan's natural grandmother,
as among those named in the
enumeration. Appellant is merely
a step-grandparent who obviously
is neither an "ascendant" nor a
"step-parent" of the victim. In the
recent case of People vs. Atop,
24 the Court rejected the
application of the mandatory
death penalty to the rape of a 12year old victim by the commonlaw husband of the girl's
grandmother. The Court said:

Since reclusion perpetua

is a lighter penalty than life
imprisonment, 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 the accused
should be reclusion perpetua and
not life imprisonment.
(People
v. Latura)

"It is a basic
rule of statutory
construction
that
penal statutes are
to
be
liberally
construed in favor
of the accused.
Court's must not
bring cases within
the provision of a
law which are not
clearly embraced
by it. No act can be
pronounced
criminal which is
not clearly made so
by statute; 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."

JUSTIFICATION
FOR
THE
IMPOSITION
OF THE DEATH PENALTY
Although its origins seem
lost in obscurity, the imposition of
death as punishment for violation
of law or custom, religious or
secular, is an ancient practice.
We do know that our forefathers
killed to avenge themselves and
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.

(Peopl
e v.
Deleve
rio)

The
dawning
of
civilization brought with it both the
increasing
sensitization
throughout the later generations
against past barbarity and the
institutionalization of state power
under the rule of law. Today every
man or woman is both an
individual person with inherent
human rights recognized and
protected by the state and a
citizen with the duty to serve the
common weal and defend and
preserve society.
One of the indispensable
powers of the state is the power
to
secure
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,

RECLUSION PERPETUA IS
LIGHTER
THAN
LIFE
IMPRISONMENT AND IF ONE IS
SENTENCED
TO
LIFE
IMPRISONMENT AND LATER
THE PENALTY OF RECLUSION

31

the executive agencies enforce

these laws, and the judiciary tries
and sentences the criminals in
accordance with these laws.

DEATH PENALTY WAS NOT

ABOLISHED
BUT
MERELY
SUSPENDED

Although
penologists,
throughout history, have not
stopped debating on the causes
of criminal behavior and the
purposes of criminal punishment,
our criminal laws have been
perceived as relatively stable and
functional 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 for the
death penalty in specified crimes
under specific circumstances. As
early as 1886, though, capital
punishment had entered our legal
system through the old Penal
Code, which was a modified
version of the Spanish Penal
Code of 1870.
(People v.
Echegaray)

A reading of Section 19
(1) of Article III will readily show
that there is really nothing therein
which expressly declares the
abolition of the death penalty. The
provision merely says that the
death penalty shall not be
imposed unless for compelling
reasons involving heinous crimes
the Congress hereafter provides
for it and, if already imposed,
shall be reduced to reclusion
perpetua. The language, while
rather awkward, is still plain
enough". (People v. Echegaray)
DEFINITION
CRIMES

OF

HEINOUS

". . . the crimes

punishable by death under this
Act 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." (People v.
Echegaray)

WHY DEATH PENALTY IS NOT

A CRUEL AND UNUSUAL
PUNISHMENT
"The penalty complained
of is neither cruel, unjust nor
excessive. In Ex-parte Kemmler,
136 U.S., 436, the United States
Supreme
Court
said
that
'punishments are cruel when they
involve torture or a lingering
death, but the 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.'"

WHAT ARE THE CRIMES

PUNISHABLE
BY RECLUSION PERPETUA TO
DEATH
UNDER RA 7659
Under R.A. No. 7659, the
following crimes are penalized by
reclusion perpetua to death:

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
judicial officers to respect and
apply the law regardless of their
private opinions," and this we
have reiterated in the 1995 case
of
People
v.
Veneracion.
(People v. Echegaray)

(1)
Treason (Sec. 2);
(2)
Qualified piracy
(Sec. 3);
(3)
Parricide
(Sec.
5);
(4)
Murder (Sec. 6);
(5)
Infanticide (Sec.
7);
(6)
Kidnapping and
serious
illegal

32

(7)

(8)

detention
if
attended by any
of the following
four
circumstances:
(a) the victim was
detained for more
than three days;
(b)
it
was
committed
simulating public
authority;
(c)
serious physical
injuries
were
inflicted on the
victim or threats
to kill him were
made; and (d) if
the victim is a
minor,
except
when
the
accused is any of
the
parents,
female or a public
officer (Sec. 8);
Robbery
with
homicide, rape or
intentional
mutilation (Sec.
9);
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
building
or
factory in the
service of public
utilities; (e) a
building for the
purpose
of
concealing
or
destroying
evidence Or a
crime;
(f)
an
arsenal, fireworks
factory,
or
government
museum; and (g)
a storehouse or
factory
of
explosive
materials located
in an inhabited
place;
or
regardless
of
what is burned, if

the
arson
is
perpetrated
by
two
or
more
persons
(Sec.
10);
(9)
Rape attended by
any
of
the
following
circumstances:
(a) the rape is
committed with a
deadly weapon;
(b) the rape is
committed by two
or more persons;
and (c) the rape
is attempted or
frustrated
and
committed
with
homicide
(Sec.
11);
(10)
Plunder involving
at
least
P50
million (Sec. 12);
(11)
Importation
of
prohibited drugs
(Sec. 13);
(12)
Sale,
administration,
delivery,
distribution,
and
transportation of
prohibited drugs
(id.);
(13)
Maintenance
of
den, dive or resort
for
users
of
prohibited drugs
(id.);
(14)
Manufacture
of
prohibited drugs (id.);
(15)
Possession or use
of prohibited drugs
in certain specified
amounts (id.);
(16)
Cultivation
of
plants which are
sources
of
prohibited drugs
(id.)
(17)
Importation
of
regulated drugs
(Sec. 14);
(18)
Manufacture
of
regulated drugs (id.);
(19)
Sale,
administration,
dispensation,
delivery,
transportation, and
distribution
of

33

(20)

(21)

(22)

(23)

(24)

regulated
drugs
(id.);
Maintenance
of
den, dive, or resort
for
users
of
regulated
drugs
(Sec. 15);
Possession or use
of regulated drugs
in
specified
amounts
(Sec.
16);
Misappropriation,
misapplication or
failure to account
dangerous drugs
confiscated by the
arresting
officer
(Sec. 17);
Planting evidence
of
dangerous
drugs in person or
immediate vicinity
of
another
to
implicate the latter
(Sec. 19); and
Carnapping where
the owner, driver
or occupant of the
carnapped motor
vehicle is killed or
raped (Sec. 20)
(People
v.
Echegaray)

If it is the public officer who asks

or demands such gift or present,
he shall suffer the penalty of
death." (Sec. 4)
(2)
Kidnapping and serious
illegal detention for ransom
resulting in the death of the victim
or the victim is raped, tortured or
subjected to dehumanizing acts
"The penalty shall be
death where the kidnapping or
detention was committed for the
purpose of ransom from the
victim or any other person, even if
none of the circumstances abovementioned were present in the
commission of the offense.
When the victim is killed
or dies as a consequence of the
detention or is raped, or is subject
to torture or dehumanizing acts,
the maximum penalty [of death]
shall be imposed." (Sec. 8)
(3)
Destructive
resulting in death

"If as a consequence of
the commission of any of the acts
penalized under this Article, death
results, the mandatory penalty of
death shall be imposed." (Sec.
10)
(4)
Rape with the victim
becoming insane, rape with
homicide and qualified

WHAT ARE THE MANDATORY

CRIMES
PUNISHABLE
BY
MANDATORY
DEATH PENALTY UNDER RA
7659

"When by reason or on
the occasion of the rape, the
victim has become insane, the
penalty shall be death.

On the other hand, under R.A.

No. 7659, the mandatory penalty
of death is imposed in the
following crimes:
(1)

arson

xxx
xxx

xxx

The death penalty shall also be

imposed if the crime of rape is
committed with any of the
following
attendant
circumstances:

Qualified bribery

"If any public officer is

entrusted with law enforcement
and he refrains from arresting or
prosecuting an offender who has
committed a crime punishable by
reclusion perpetua and/or death
in consideration of any offer,
promise, gift or present, he shall
suffer the penalty for the offense
which was not prosecuted.

1.
when the victim is
under eighteen (18) years
of age and the offender is
a parent, ascendant,
step-parent,
guardian,
relative by consanguinity
or affinity within the third
civil degree, or the

34

common-law spouse of
the parent or the victim.
2.
when the victim is
under the custody of the
police
or
military
authorities.
3.
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.
4.
when the victim is
a religious or a child
below seven (7) years old
5.
when
the
offender knows that he is
afflicted with Acquired
Immune
Deficiency
Syndrome
(AIDS)
disease.
6.
when committed
by any member of the
Armed Forces of the
Philippines
or
the
Philippine National Police
or any law enforcement
agency.
7.
when by reason
or on the occasion of the
rape, the victim has
suffered
permanent
physical mutilation." (Sec.
11 )

(People v.
Echegaray)
TWO
INSTANCES
DEATH MAY
BE
IMPOSED
CONSTRUED
UNDER RA 7659

WHEN
WHEN

Thus, construing R.A. No.

7659 in pari materia with the
Revised Penal Code, death may
be imposed when (1) aggravating
circumstances
attend
the
commission of the crime as to
make operative the provision of
the
Revised
Penal
Code
regarding the imposition of the
maximum penalty; and (2) other
circumstances
attend
the
commission of the crime which
indubitably characterize the same
as heinous in contemplation of
R.A. No. 7659 that justify the
imposition of the death, albeit the
imposable penalty is reclusion
perpetua to death. (People v.
Echegaray)
WHY DEATH PENALTY
IS IMPOSED ON HEINOUS
CRIMES

(5)
In all the crimes in RA.
No. 7659 in their qualified form

The death penalty is

imposed in heinous crimes
because the perpetrators thereof
have committed unforgivably
execrable acts that have so
deeply dehumanized a person or
criminal acts with severely
destructive effects on the national
efforts to lift the masses from
abject poverty through organized
governmental strategies based on
a disciplined and honest citizenry,
and because they have so
caused
irreparable
and
substantial injury to both their
victim and the society and a
repetition of their acts would pose
actual threat to the safety of
individuals and the survival of
government, they must be
permanently
prevented
from
doing so. At any rate, this court
has no doubts as to the innate
heinousness of the crime of rape,
as we have held in the case of

"When in the commission

of the crime, advantage was
taken by the offender of his public
position, the penalty to be
imposed shall be in its maximum
[of death] regardless of mitigating
circumstances.
The maximum penalty [of
death] shall be imposed if the
offense was committed by any
person who belongs to an
organized/syndicated
crime
group.
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

35

People v. Cristobal.
Echegaray)

(People v.

Appellant in this case

was convicted and meted the
penalty of life imprisonment and
fine of twenty thousand pesos
under RA 6425 for transporting
more or less 6 kilos of marijuana
on July 1990. RA 7659, which
took effect on December 31/93,
amended the provisions of RA
6425, increasing the imposable
penalty for the sale or transport of
750 grams or 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 and has
a higher amount of fine which in
accordance with ART 22 of the
same code should not be given
retroactive effect.
The court,
therefore, finds and so holds that
the penalty of life imprisonment
and fine in the amount of twenty
thousand
pesos
correctly
imposed by the trial court should
be retained.
(PP v Carreon,
12/9/97)

WHY RAPE IS A HEINOUS

CRIME
"Rape is the forcible
violation of the sexual intimacy of
another person. It does injury to
justice and charity. Rape deeply
wounds the respect, freedom,
and physical and moral integrity
to which every person has a right.
It causes grave damage that can
mark the victim for life. It is
always an intrinsically evil act . . .
an outrage upon decency and
dignity that hurts not only the
victim but the society itself."
(People v. Echegaray)
WHY CAPITAL PUNISHMENT
SHOULD NOT BE ABOLISHED
"Capital
punishment
ought not to be abolished solely
because
it
is
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
hyperfastidiousness that seeks to
expunge from the society all that
appears harsh and suppressive. If
we are to preserve the humane
society we will 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 likely that capital
punishment is a . . . necessary, if
limited factor in that maintenance
of social tranquillity and ought to
be retained on this ground. To do
otherwise is to indulge in the
luxury of permitting a sense of
false delicacy to reign over the
necessity of social survival."
(People v. Echegaray)

COURTS SHOULD NOT BE

CONCERNED
ABOUT WISDOM, EFFICACY
OR MORALITY
OF LAWS
It is a well settled rule
that the courts are not concerned
with the wisdom, efficacy or
morality of laws. That question
falls
exclusively
within
the
province of the Legislature which
enacts them and the Chief
Executive who approves or
vetoes them. The only function of
the judiciary is to interpret the
laws and, if not in disharmony
with the Constitution, to apply
them. And for the guidance of the
members of the judiciary we feel
it incumbent upon us to state that
while they as citizens or as
judges may regard a certain law
as harsh, unwise or morally
wrong, and may recommend to
the authority or 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

RA 6425 AS AMENDED BY RA
7659
WHEN PENALTY IN NEW LAW NOT
FAVORABLE
TO ACCUSED IT SHOULD BE
RETAINED

36

decreed by the law-making body.

(People v. Veneracion)

Neither shall death penalty be

imposed, unless, for compelling
reasons involving heinous crimes,
the Congress hereafter provides
for it. Any death penalty already
imposed shall be reduced to
reclusion perpetua" (Emphasis
supplied) only the penalty of
reclusion perpetua could be
imposed by the trial court. Hence,
the
attended
aggravating
circumstances in this case had no
impact upon the determination of
the proper penalty by the trial
court. By Republic Act No. 7659
(effective 31 December 1993),
Congress re-imposed the death
penalty for certain heinous
crimes, including robbery with
homicide and robbery with rape.
By the same statute, Article 294
of the Revised Penal Code was
amended to read as follows: "Any
person guilty of robbery with the
use of violence against or
intimidation on any person shall
suffer: 1. The penalty of reclusion
perpetua to death, when by
reason or on occasion of the
robbery, the crime of homicide
shall have been committed, or
when the robbery shall have been
accompanied
by
rape
or
intentional mutilation or arson. . . .
(Emphasis supplied) Article 294
of the Revised Penal Code, as
amended by 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)

REASON FOR DURATION OF

RECLUSION PERPETUA
OF 30 OR 40 YEARS
The imputed duration of
thirty (30) years for reclusion
perpetua, therefore, is only to
serve as the basis for determining
the convict's eligibility for pardon
or for the application of the threefold rule in the service of multiple
penalties. (People v. Lucas)
ROBBERY WITH HOMICIDE,
NUMBER OF PERSONS
KILLED DOES NOT ALTER
CHARACTERIZATION OF THE
OFFENSE
BUT CAN BE APPRECIATED
AS AGGRAVATING
CIRCUMSTANCE.
While the number of
persons killed does not alter the
characterization of the offense as
robbery with homicide, the
multiplicity of the victims slain
should have been appreciated as
an aggravating circumstance.
This
would
preclude
an
anomalous situation where, from
the standpoint of the gravity of the
offense, robbery with one killing
would be treated in the same way
that robbery with multiple killings
would be. (People V. Timple)
ROBBERY WITH HOMICIDE
AND ROBBERY WITH RAPE;
PROVISION OF ARTICLE 294
OF THE REVISED PENAL
CODE AS AMENDED BY
REPUBLIC ACT 7659 CANNOT
BE APPLIED RETROACTIVELY;
CASE AT BAR.

A
PERSON
MAY
BE
CONVICTED OF
GRAVE COERCION ALTHOUGH
THE CHARGE IS KIDNAPPING

Under Article 294 (1) of

the Revised Penal Code, robbery
with homicide is punishable by
reclusion perpetua to death. In
view, however, of the first
paragraph of Section 19, Article III
of the 1987 Constitution, which
provides that: "Sec. 19. (1)
Excessive fines shall not be
imposed, nor cruel, degrading or
inhuman punishment inflicted.

The Information, dated

March 24, 1992, filed against
Astorga
contains
sufficient
allegations constituting grave
coercion, the elements of which
were sufficiently proved by the
prosecution. Hence, a conviction
for said crime is appropriate
under Section 4, Rule 120 of the

37

1988
Rules
on
Criminal
Procedure.
(People -vs- Astorga)

SECTIONS
15
AND
20
THEREOF AS AMENDED BY
R.A. NO. 7659.

ELEMENTS
COERCION

In People vs. Martin

Simon y Sunga, (G.R. No.
93028), decided on 29 July 1994,
this Court ruled as follows: (1)
Provisions of R.A. No. 7659
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 dangerous
drug involved is less than the
quantities stated in the first
paragraph of Section 20 of R.A.
No. 6425, the penalty to be
imposed shall range from prision
correccional
to
reclusion
temporal, and not reclusion
perpetua. The reason is that there
is an overlapping error, probably
through oversight in the drafting,
in the provisions on the penalty of
reclusion 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
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 is less
than those so specified in the first
paragraph. (3) Considering that
the aforesaid penalty of prision
correccional to reclusion temporal
shall depend upon the quantity of
the dangerous drugs involved,
each of the component penalties
thereof prision correccional,
prision mayor, and reclusion
temporal shall be considered
as a principal imposable penalty
depending on the quantity, such
that the quantity of the drugs
enumerated in the second
paragraph should then be divided
into three, with the resulting
quotient, and double or treble the
same,
as
the
bases
for
determining
the
appropriate
component penalty. (4) The
modifying circumstances in the
Revised Penal Code may be
appreciated to determine the
proper
period
of
the
corresponding imposable penalty
or even to effect its reduction by
one or more degrees; provided,

OF

GRAVE

Grave Coercion or coaccion

grave has three elements:
a. That any person is prevented
by another from doing
something not prohibited by
law, or compelled to do
something against his or her
will, be it right or wrong;
b. That the prevention or
compulsion is effected by
violence, either by material
force or such a display of it as
would produce intimidation
and, consequently, control
over the will of the offended
party; and
c.

that the person who restrains

the will and liberty of another
has no right to do so or, in
other words, that the restraint
is not made under authority of
a law or in the exercise of any
lawful right.
(People
-vs- Astorga)

ACTUAL
DETENTION
OR
LOCKING UP, AN ESSENTIAL
ELEMENT OF KIDNAPPING
Actual
detention
or
"locking up" is the primary
element of kidnapping. If the
evidence does not adequately
prove this element, the accused
cannot be held liable for
kidnapping. In the present case,
the prosecution merely proved
that appellant forcibly dragged the
victim toward a place only he
knew. There being no actual
detention or confinement, the
appellant may be convicted only
of grave coercion.
(People -vs- Astorga; GGR
110097, December 22, 1997)

DANGEROUS DRUGS ACT OF

1972
(R.A.
NO.
6425);

38

however, that in no case should

such graduation of penalties
reduce the imposable penalty
lower than prision correccional.
(5) In appropriate instances, the
Indeterminate Sentence Law shall
be applied and considering that
R.A. No. 7659 has unqualifiedly
adopted the penalties under the
Revised Penal Code with their
technical signification and effects,
then the 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 Indeterminate Sentence
Law, the indeterminate penalty
which may be imposed shall be
one whose maximum shall be
within the range of the imposable
penalty and whose minimum shall
be within the range of the penalty
next lower in degree to the
imposable penalty. With the
foregoing as our touchstones,
and it appearing that the quantity
of the shabu recovered from the
accused in this case is only
0.0958 gram, the imposable
penalty
under
the
second
paragraph of Section 20 of R.A.
No. 6425, as further amended by
Section 17 of R.A. No. 7659,
should be prision correccional.
Applying
the
Indeterminate
Sentence Law, the accused may
then be sentenced to suffer an
indeterminate penalty ranging
from six (6) months of arresto
mayor as minimum to six (6)
years of prision correccional as
maximum.

penalty for 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
by two degrees.
Thus, the
penalty prescribed for the offense
committed of qualified theft of
motor
vehicle
is
reclusion
temporal
in its medium and
maximum periods to be imposed
in its maximum period. (PP -vsRicardo Dela Cruz alias Pawid,
Manuel dela Cruz alias Pawid,
Danilo Dela Cruz and John Doe
alias Henry Balintawak and
Orlando Padilla y Mendoza,
Accused.
RICARDO DELA
CRUZ alias Pawid,
AccusedAppellant. G.R. No. 125936
Feb. 23, 2000 )
PERIOD
WHEN
BAIL
IS
EFFECTIVE
AFTER
CONVICTION
IN
LOWER
COURTS
The bail bond that the
accused previously posted can
only be used during the 15-day
period to appeal (Rule 122) and
not during the entire 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 all stages of the
case, unless sooner cancelled,
until the promulgation of the
judgment of the Regional Trial
Court, irrespective of whether the
case was 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
case until its full determination,
and thus even during the period
of appeal.

WHEN THEFT OF MOTOR

VEHICLE IS QUALIFIED THEFT.
(STRAY DECISION)
In this case, the stolen
property is a Yamaha RS
motorcycle bearing plate no. CZ2932 with sidecar valued at
P30,000.00.
Since this value
remains undisputed, we accept
this amount for the purpose of
determining
the
imposable
penalty. In simple theft, such
amount carries the corresponding
penalty of prision mayor in its
minimum and medium periods to
be imposed in the maximum
period.
Considering that the

Moreover,
under
the
present rule, for the accused to
continue his provisional liberty on
the same bail bond during the
period to appeal, consent of the
bondsman is necessary. From
the record, it appears that the
bondsman, AFISCO Insurance
Corporation, filed a motion in the

39

trial court on January 06, 1987 for

the cancellation of petitioners' bail
bond for the latter's failure to
renew the same upon its
expiration. Obtaining the consent
of the bondsman was, thus,
foreclosed.
( Aniceto Sabbun
Maguddatu
and
Laureana
Sabbun Maguddatu, Petitioners,
-vs- Honorable COURT OF
APPEALS (Fourth Division and
People
of
the
Philippines,
Respondents.
G.R. No.
139599, Feb. 23, 2000)

The use of
a motor
vehicle qualifies the killing to
murder if the same was
perpetrated by means thereof.
(PP -vs- THADEOS ENGUITO
Defendant-Appellant.
G.R.
128812, Feb. 28, 2000)
ELEMENTS
PREMEDITATION

OF

EVIDENT

(1) The time when the

offender determined to commit
the crime; (2) an act manifestly
indicating that the offender had
clung to his determination; and
(3)
sufficient lapse of time
between the determination and
the execution to allow the
offender to reflect on the
consequences of his act. (PP
-vsROGELIO
GALAM,
Accused-Appellant.
G.R. No.
114740, Feb. 15, 2000)

WHEN ABUSE OF SUPERIOR

STRENGTH IS PRESENT.
We find, however, that
the aggravating circumstance of
abuse of superior strength
attended the killing.
"To
appreciate abuse of superior
strength as an aggravating
circumstance, what should be
considered is not that there were
three, four or more assailants of
one victim, but whether the
aggressors took advantage of
their combined strength in order
to consummate the offense. It is
therefore necessary to show that
the attackers cooperated in such
a way as to secure advantage of
their superiority in strength."

WHEN
AGGRAVATING

NIGHTTIME

IS

Nighttime
as
an
aggravating circumstance must
have specially been sought to
consummate the crime, facilitate
its success or prevent recognition
of the felon.
(PP
-vsCONSTANCIO MERINO and
ARNULFO SIERVO, AccusedAppellants. G.R. No. 132329,
Dec. 17, 1999)

In this case, appellants

and their companions purposely
gathered together and armed
themselves to take advantage of
their combined strength to ensure
that Reynaldo Danao would be
able to kill the victim without any
interference
from
other
bystanders.

TREACHERY IS PRESENT ON
SECOND STAGE OF ACCIDENT
There is treachery when
the offender commits any of the
crimes against the person
employing means, methods or
forms in the execution thereof
which
tend
directly
and
specifically to insure its execution
without risk to himself arising form
the defense which the offended
party might make.
As earlier
mentioned, the deceased was
already
rendered
completely
helpless and defenseless when
he was stabbed by Pedro
Lumacang. Although he was able
to run a short distance, he had

However, not having

been alleged in the Information,
abuse of superior strength can
only be considered as a generic
aggravating circumstance. (PP
-vs- CIELITO BULURAN Y
RAMIREZ
and
LEONARDO
VALENZUELA Y CASTILLO,
Accused-Appellants.
G.R. No.
113940, Feb. 15, 2000)
USE OF MOTOR VEHICLE AS
QUALIFYING
AGGRAVATING
CIRCUMSTANCE

40

absolutely no means of defending

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 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, abuse of superior
strength should not have been
considered separately inasmuch
as it is absorbed in treachery.
(PP -vs- PEDRO LUMACANG,
PABLO
LUMACANG
and
DOMINGO
LUMACANG,
Accused-Appellants. G.R. No.
120283, Feb. 1, 2000)
WHY
AGGRAVATING

DWELLING

appreciated
the
qualifying
circumstance of treachery. (PP
-vs- CORNELIA SUELTO alias
"ELY" alias "ROGELIA SUELTO",
G.R. No. 126097, Feb. 8, 2000)
DATE OF EFFECTIVITY OF RA
7659, ETC.
Republic Act No. 7659
took effect on 31 December 1993.
Accordingly, the said law only
applies to crimes defined therein,
including rape, which were
committed after its effectivity. It
cannot be applied retroactively
because, to do so, would go
against
the
constitutional
prohibition on ex post facto laws.
For this reason, in order for the
death penalty to be imposable, it
is
incumbent
upon
the
prosecution to establish beyond a
shadow of doubt that the case of
the accused is already covered
by Republic Act No. 7659.

IS

"The home is a sort of

sacred place for its owner. He
who goes to another's house to
slander him, hurt him or do him
wrong, is more guilty than he who
offends him elsewhere."
(PP
-vs- JOSE & NESTOR BiAS,
Accused-Appellant.
G.R. No.
121630, Dec. 8, 1999)

AN EX POST FACTO LAW HAS

BEEN DEFINED AS ONE
WHICH
(a)

makes criminal an act

before the passage of the
law and which was
innocent when done, and
punishes such an act;

(b)

aggravate a crime, or
makes it greater than it
was, when committed;

(c)

changes the punishment

and inflicts a greater
punishment than the law
annexed to the crime
when committed;

(d)

alters the legal rules of

evidence, and authorizes
conviction upon less or
different testimony than
the law required at the
time of the commission of
the offense;

(e)

assuming to regulate civil

rights and remedies only,
in effect imposes penalty
or deprivation of a right
for
something
which

EVEN
FRONTAL
ATTACK
WOULD
AMOUNT
TO
TREACHERY
Moreover, Milyn Ruales
also testified that the knife used
by accused was hidden from
view. Thus, Isabel Ruales was
not prepared for such a violent
attack, especially considering
that, at the time, she was
unarmed and was burdened with
a large basket filled with about six
kilos of corn and dried 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
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. Thus, we
hold that the trial court correctly

41

when done was lawful;

and
(f)

"The penalty of
prision mayor in its
minimum period and a
fine of Thirty thousand
pesos (P30,000) shall be
imposed if the firearm is
classified
as
high
powered firearm which
includes those with bores
bigger in diameter than .
38
caliber
and
9
millimeter such as caliber
.40, .41, .44, .45 and also
lesser calibered firearms
but considered powerful
such as caliber .357 and
caliber .22 center-fire
magnum
and
other
firearms
with
firing
capability of full automatic
and by burst of two or
three: Provided, however,
That no other crime was
committed by the person
arrested.

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
acquittal,
or
a
proclamation of amnesty.
(PP
-vsCHARITO
ISUG MAGBANUA, G.R.
No. 128888, Dec. 3,
1999)

ILLEGAL POSSESSION OF
FIREARMS
(REPUBLIC ACT NO. 8294)
SECTION 1.
Section
1
Presidential Decree No. 1866, as
amended, is hereby further
amended to read as follows:

"If homicide or
murder is committed with
the use of an unlicensed
firearm, such use of an
unlicensed firearm shall
be considered as an
aggravating
circumstance.

"SECTION
1.
Unlawful
Manufacture,
Sale,
Acquisition, 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 period and a
fine of not less than
Fifteen thousand pesos
(P15,000)
shall
be
imposed
upon
any
person
who
shall
unlawfully manufacture,
deal in, acquire, dispose,
or possess any low
powered firearm, such as
rimfire handgun, .380 or .
32 and other firearm of
similar firepower, part of
firearm, ammunition, or
machinery,
tool
or
instrument
used
or
intended to be used in
the manufacture of any
firearm or ammunition:
Provided, That no other
crime was committed.

"If the violation of

this
Section
is
in
furtherance of or incident
to, or in connection with
the crime of rebellion or
insurrection, sedition, or
attempted coup d'etat,
such violation shall be
absorbed as an element
of the crime of rebellion,
or insurrection, sedition,
or attempted coup d'etat.
"The
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 knowingly allow any of
the firearms owned by
such
firm,
company,
corporation or entity to be
used by any person or

42

persons found guilty of

violating the provisions of
the preceding paragraphs
or 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.

special laws with the use

of the aforementioned
explosives,
detonation
agents
or
incendiary
devices, which results in
the death of any person
or persons, the use of
such
explosives,
detonation agents or
incendiary devices shall
be considered as an
aggravating
circumstance.

"The penalty of
arresto mayor shall be
imposed
upon
any
person who shall carry
any
licensed
firearm
outside his residence
without legal authority
therefore."

"If the violation of

this
Section
is
in
furtherance of, or incident
to, or in connection with
the crime of rebellion,
insurrection, sedition or
attempted coup d'etat,
such violation shall be
absorbed as an element
of the crimes of rebellion,
insurrection, sedition or
attempted coup d'etat.

SECTION 2.
Section
3
of
Presidential Decree No. 1866, as
amended, is hereby further
amended to read as follows:
"SECTION
3.
Unlawful
Manufacture,
Sale,
Acquisition, Disposition or
Possession
of
Explosives.

The
penalty of prision mayor
in its maximum period to
reclusion temporal and a
fine of not less than Fifty
thousand
pesos
(P50,000)
shall
be
imposed
upon
any
person
who
shall
unlawfully manufacture,
assemble,
deal
in,
acquire,
dispose
or
possess
hand
grenade(s),
rifle
grenade(s), and other
explosives, including but
not limited to 'pillbox,'
'molotov cocktail bombs,'
'fire bombs,' or other
incendiary
devices
capable of producing
destructive
effect
on
contiguous objects or
causing injury or death to
any person.

"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 knowingly allow any of
the explosives owned by
such
firm,
company,
corporation or entity, to
be used by any person or
persons found guilty of
violating the provisions of
the
preceding
paragraphs."
SECTION 3.
Section
5
of
Presidential Decree No. 1866, as
amended, is hereby further
amended to read as follows:
"SECTION
5.
Tampering
of
Firearm's Serial Number.
The penalty of prision
correccional shall be
imposed
upon
any
person
who
shall
unlawfully
tamper,
change, deface or erase

"When a person
commits any of the
crimes defined in the
Revised Penal Code or

43

the serial number of any

firearm."

The essence of the crime

of illegal possession is the
possession, whether actual or
constructive, of the subject
firearm, without which there can
be no conviction for illegal
possession.

SECTION 4.
Section
6
of
Presidential Decree No. 1866, as
amended, is hereby further
amended to read as follows:

After
possession
is
established by the prosecution, it
would only be a matter of course
to determine whether the accused
has a license to possess the
firearm. (People v. Bansil, 304
SCRA 384)

"SECTION
6.
Repacking
or
Altering the Composition
of Lawfully Manufactured
Explosives.

The
penalty
of
prision
correccional shall be
imposed
upon
any
person
who
shall
unlawfully repack, alter or
modify the composition of
any
lawfully
manufactured
explosives."

Possession
of
any
firearm becomes unlawful only if
the necessary permit or license
therefore is not first obtained. The
absence of license and legal
authority constitutes an essential
ingredient of the offense of illegal
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
essential
ingredient of the offense which
the prosecution has the duty not
only to allege but also to prove
beyond
reasonable
doubt.
(People v. Khor, 307 scra 295)

SECTION 5.
Coverage of the
Term Unlicensed Firearm. The
term unlicensed firearm shall
include:
1) firearms with expired
license; or
2) unauthorized use of
licensed firearm in
the commission of
the crime.

"To convict an accused

for illegal possession of firearms
and explosives under P.D. 1866,
as amended, two (2) essential
elements must be indubitably
established, viz: (a) the existence
of the subject firearm or 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 established by the
testimony or certification of a
representative of
the PNP
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)

RULE ON ILLEGAL
POSSESSION OF FIREARMS
BEFORE AN ACCUSED
MAYBE CONVICTED
In crimes involving illegal
possession
of firearm,
the
prosecution has the burden of
proving the elements thereof, viz:
a. the existence of the
subject firearm; and
b. the fact that the
accused who owned
or possessed it does
not have the license
or permit to possess
the same. (People v.
Castillo, 325 SCRA
613)

44

We stress that the

essence of the crime penalized
under P.D. 1866 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)

This
statutory
amendment may have been an offshoot
of our remarks in Pp. V. Tac-an and Pp.
V. Quijada :
Neither is the 2nd
paragraph of Sec.1
meant
to
punish
homicide or murder
with death if either
crime is committed with
the
use
of
an
unlicensed firearm, i.e.,
to consider such use
merely as a qualifying
circumstance and not
as an offense. That
could not have been
the intention of the
lawmaker because the
term penalty in the
subject provision is
obviously meant to be
the penalty for illegal
possession of firearm
and not the penalty for
homicide or murder.
We explicitly stated in
Tac-an :

Illegal
possession
of
firearm is a crime punished by
special law, a 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, there must
be possession coupled with intent
to possess (animus possidendi)
the firearm. (Supra)
PRESENT MEANING OF ILLEGAL
POSSESSION OF FIREARM
Unlicensed firearm no longer
simply means a firearm without a license
duly issued by lawful authority. The scope
of the term has been expanded in Sec.5
of R.A. 8294.

There is no law which

renders the use of an
unlicensed firearm as
an
aggravating
circumstance
in
homicide or murder.
Under an information
charging homicide or
murder, the fact that
the death weapon was
an unlicensed firearm
cannot be used to
increase the penalty for
the 2nd offense of
homicide or murder to
death (or reclusion
perpetua under the
1987
Constitution).
The essential point is
that the unlicensed
character or condition
of the instrument used
in destroying human
life or committing some
other crime, is not
included
in
the
inventory
of
aggravating
circumstances set out
in Article 14 of the
Revised Penal Code.

Thus, the unauthorized use of a

weapon which has been duly licensed in
the name of its owner/possessor may still
aggravate the resultant crime. In the case
at bar, although appellants may have
been issued their respective licenses to
possess firearms, their carrying of such
weapons outside their residences and
their unauthorized use thereof in the
killing of the victim may be appreciated as
an aggravating circumstance in imposing
the proper penalty for murder. (Pp. V.
Molina; Gr 115835-36; July 22, 1998)
ILLEGAL POSSESSION OF FIREARM
ONLY
SPECIAL
AGGRAVATING
CIRCUMSTANCE
IN CRIMES OF HOMICIDE AND
MURDER.
Where
murder
or
homicide was committed, the separate
penalty for illegal possession shall no
longer be meted out since it becomes
merely
a
special
aggravating
circumstance.

45

2. "If homicide or murder is

committed with the use of an
unlicensed firearm, such use of
an unlicensed firearm shall be
considered as an aggravating
circumstance.

A law may, of course, be enacted

making use of an unlicensed firearm as a
qualifying circumstance. (People v.
Molina; GR 115835-36, July 22, 1998)
NEW PENALTY
POWERED
FIREARM
IN
POSSESSION
OF FIREARMS

FOR

3. "If the violation of this Section

is in furtherance of or incident to,
or in connection with the crime of
rebellion or insurrection, sedition,
or attempted coup d'etat, such
violation shall be absorbed as an
element of the crime of rebellion,
or insurrection, sedition, or
attempted coup d'etat.

LOW

ILLEGAL

Petitioner, fortunately for

him, is nonetheless not entirely
bereft of relief. The enactment
and approval on 06 Jun 1997 of
RA 8294, being 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.

4. "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 knowingly allow any of
the firearms owned by such firm,
company, corporation or entity to
be used by any person or
persons found guilty of violating
the provisions of the preceding
paragraphs
or
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.

Applying
the
Indeterminate Sentence Law, the
present penalty that 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 minimum, up to
anywhere from four years, two
moths and one day to six years of
prision
correccional
in
its
maximum period, as maximum..
The court 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 tribunal.
(Mario Rabaja v CA, et al., Oct
8/97)

5. The penalty of arresto mayor

shall be imposed upon any
person who shall carry any
licensed firearm outside his
residence without legal authority
therefore
6. Any person who shall unlawfully
tamper, change, deface or erase
the serial number of any firearm.

ACTS PUNISHABLE:

7. Any person who shall unlawfully

repack, alter or modify the
composition of any lawfully
manufactured explosives.

1. upon any person who shall

unlawfully manufacture, deal in,
acquire, dispose, or possess any
low powered firearm, such as
rimfire handgun, .380 or .32 and
other firearm of similar firepower,
part of firearm, ammunition, or
machinery, tool or instrument
used or intended to be used in
the manufacture of any firearm or
ammunition

CRIME
OF
ILLEGAL
POSSESSION OF FIREARM
MALUM PROHIBITUM
The offense of illegal
possession of firearm is a malum
prohibitum punished by a special
law, in which case good faith and

46

absence of criminal intent are not

valid defenses. (People v De
Gracia, 7/6/94)

without criminal
intent
is
sufficient
on
which to render
a judgment of
conviction.
1.2. HOWEVER,
possession
must
be
established
beyond
reasonable
doubt, and in
view of the
special
meaning that
possession
has in criminal
law, discovery
by
police,
officers alone
of a firearm in
the baggage or
gloves
compartment of
a car will not
necessarily be
sufficient
to
sustain
a
conviction
of
the car owner
or
driver.
Essential to the
legal concept
of possession
in
illegal
possession
cases
is
animus
possidendio.
(People v. de la
Rosa,
supra;
People
v.
Sayang,
110
Phil 565).

1. Manufacture, deal in, acquire,

dispose or possess. It is
these
acts
relative
to
firearms.
The
obvious
underlying principle is the
undesirability
of
the
proliferation of firearms and
their
free
traffic
and
possession. This is clear from
the first two whereas clause
of P.D. 1866. It is then clear
that illegal possession, etc. is
a malum prohibitum. For
purpose of simplicity we will
confine our analysis to
possession, although what
we will discuss hereunder
applies
to
manufacture,
dealing in, acquiring or
disposing as well.
1.1. it is not correct
to say without
qualification
that intent is
immaterial.
Intent as to
possession is
immaterial.
Intention
to
possess
is
material.
Whatever the
purpose of the
possession
may
be
is
consistently
immaterial.
That one was
in possession
of
an
unlicensed
firearms merely
for
ones
protection
without
intending harm
on anybody is
a
fruitless
defense. It is
the
clear
doctrine
of
such cases as
People v. de la
Rosa,
284
SCRA 158 that
mere
possession

1.3. How
is
animus
possidendi
established
?
These
must
be
proved
either
by
direct
or
circumstant
ial
evidence of
the intent
of
the
accused to
possess, or

47

to keep the
firearm.
a.)
Animus
Possidendi
is
determined by
recourse
to
overt acts prior
to
or
simultaneous
with possession
and
other
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.
b.)Animus
possidendi may
also be inferred
from the fact
that
an
unlicensed
firearms
was
under
the
apparent control
and power of the
accussed.
(People
v.
Verches,
33
SCRA 174)
c.) People v. de
Guzman, G.R.
117952-53
(February
14,
2001) holds that
the gravamen
for the offense
of violation of
P.D.1866 is the
possession
of
firearm without
the
necessary
permit
and/or
license.
The
crime
is
immediately
consummated
upon
mere
possession of a
firearm devoid
of
legal
authority, since it
is assumed that
the same is
possed
with

animus
possidendi
Does it then
follow
that
everyone found
with the firearm
is
in
possession
thereof for the
purpose
of
prosecution and
conviction under
P.D. 1866 as
amended
by
R.A. 8294? The
results would be
patently absurd.
i.

ii.

48

A person
who finds
a firearms
and takes
it with him
to
the
police
station for
the
purpose of
turning it
over to the
police
should be
commend
ed, rather
than
prosecute
d.
A person
who
is
stopped at
a checkpoint
at
which it is
discovere
d
that
there
is
firearms
placed
either
advertentl
y
or
inadverten
tly in his
baggage
compartm
ent
without
his
knowledg
e - cannot
be
held
liable for

iii.

iv.

illegal
possessio
n.
If
the
offender
was
in
possessio
n of an
unlicense
d only on
the
occasion
of
the
shooting
for
transitory
purpose
and
for
the short
moment in
connectio
n with the
shooting,
the Supre
Court held
in People
v.
Macasling
,
237
SCRA 299
that there
was
no
evidence
of animus
possidend
i.
It
then
appears to
be
the
more
reasonabl
e position
that where
a person
is
apprehen
ded with
an
unlicense
d weapon,
animus
possidend
i will be
disputably
presumed.
The
accused
may
controvert
the
presumpti
on
of

animus
possidend
i.
To
convict,
the court
needs
proof
beyond
reasonabl
e doubt of
animus
possidend
i.
WHAT
THE
PROSECUTION
MUST
PROVE IN CASES OF
ILLEGAL 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 absence of a
license or a permit
to
possess.
(People v. Rugay,
291 SCRA 692)
a.) To prove the
existence of the
firearm, it is not
absolutely
necessary that the
object evidence be
presented. It is
very well possible
that the accused
effectively conceals
the weapon before
his apprehension.
Incontrovertible
testimonial
evidence
may
successfully
established
the
existence of the
firearm. (People v.
Narvasa,
G.R.
132878 [November
16, 1998]),
b.) An interesting
question
arises.
The present law
makes
penalties
depend on the
caliber
of
the
firearm, i.e, on

49

whether it is highpowered or lowpowered In People

v. Gutierrez, G.R.
132878
(January
18,
1999)
the
Supreme
Court
ruled that a U.S.
carbine M1 caliber .
30
was
highpowered because it
was capable of
ejecting more than
one bullet in one
squeeze. If it is the
criterion,
then
logically,
caliber
can be established
by
testimony
establishing
the
manner in which
the firearm ejected
bullets.
The
distinguishing
features
of
particularly
firearms,
furthermore,
that
may be recited by
keen
observer
sworn in a s
witness my identify
the firearm as well
as it caliber. This
can be established
by
a
judicious
combination of the
testimonial
evidence
of
observers
abd
experts.

ILLEGAL POSSESSION BUT IN

GOOD FAITH:
A
security
guard
employed by a security agency
and issued a 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 522).
A
PERSON
WHO
ACCEPTS A FIREARM FOR
SAFEKEEPING MAYBE HELD
LIABLE IF HE CARRIES THE
SAME.
The case is obviously
different, however, if a police
officer leaves with a cousin for
safekeeping his firearm. The
cousin knows fully well that he
has no permit or authority to keep
the firearm. If he accepts to do
this favor, he is indictable.
(People v. Sayong, 110 Phil 565)
ILLEGAL POSSESSION OF
FIREARM MAYBE PROVEN
Provided
no
other
crime is committed. It is this
proviso in the amendatory law
that has visited countless woes
on numerous judges and has
occasioned
not
easily
reconcilable decisions by the
Supreme Court .it is obviously a
case of not only poor but
miserable draftsmanship!

WHEN THERE IS AN ILLEGAL

POSSESSION OF FIREARM
A firearm is unlicensed
when a certification from the
Firearms and 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 outside his residence
when he has no permit to carry it
outside his residence (Pastrano v.
Court of Appeals, 281 SCRA
287). A fortiori, the use of a
licensed firearm by one not
licensed or permitted to use it
would still be illegal possession.

2.1 It is clear that where

there is no other offense
except
the
unlawful
possession of a firearm,
the penalties provided for
in the amended Section
1 shall be imposed:
prision correccional in its
maximum period for lowpowered firearms, and
prision mayor in its
maximum periods for
high-powered
firearms.
Thus in People v. Nunez,
G.R. 112092 (March 1,
2001) holds that a person

50

may be convicted of
simple illegal possession
if the illegal possession is
proved and the frustrated
murder and murder case
involving the use of the
illegal possession has
not
been
sufficiently
proved.
People
v.
Avecilla, G.R. 117033
(February
15,
2001)
teaches that the crime of
illegal
possession
of
firearms, in its simple
form, is committed any of
the crimes of murder,
homicide,
rebellion,
insurrection, sedition or
attempted coup detat.

the case, the amended

law came into force. The
court then held that
insofar as R.A. 8294 was
favorable to the accused
in that it spared him from
separate prosecution for
illegal possession, the
charge
for
illegal
possession was dropped.
Insofar, however, as it
increased the penalty for
robbery with homicide,
the
aggravating
circumstances of the use
of unlicensed weapon
could not be appreciated.
Rule 110, Section 9 of
the Revised Rules of
Criminal Procedure will
apply: As an aggravating
circumstances, the use of
the unlicensed weapon
must be alleged in the
information.

2.2. It is also clear that

where either homicide or
murder is committed with
the use of an unlicensed
firearm, such use shall
constitute
an
aggravating
circumstances. It is well
known that R.A. 8294
was initiated by Senator
Ramon Revilla as a favor
to his friend Robin Padilla
who was then serving
sentence
for
illegal
possession.
It
was
therefore meant to be
more benevolent, as it is
in the penalties it impose.
Senator Revilla, however,
could not see far enough
(and regrettably neither
could other legislators)
and the effect at least in
the case of murder is that
it may send the accused
to the lethal injection
chamber where otherwise
he would not be meted
out the death penalty.
People v. Montinola, G.R.
131856-57 (July 1, 2001)
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 firearms.
During the pendency of

2.3 When the violation of

the
law
penalizing
unlicensed weapon is in
furtherance of or incident
to, or in connection with
the crimes of rebellion,
insurrection, sedition or
attempted coup detat
then the violation is
absorbed in the main
offense.
(R.A.
8294,
Section 1).
2.4 What happens when
an unlicensed weapon is
used in the commission
of other offenses other
that homicide, murder,
rebellion,
insurrection,
sedition or attempted
coup d etata? People v.
Walpandladjaalam, G.R.
1361149-51 ( September
19, 2000) provides the
answer in the distinctively
clear language of Justice
Panganiban: The law is
clear: the accused can be
convicted of simple illegal
possession of firearms,
provided that no other
crime was committed by
the person arrested. If
the intention of the law in
the second paragraph
were to refer only to

51

homicide and murder, it

should have expressly
said so, as it did in the
third paragraph. Verily,
where the law does not
distinguish,
neither
should we. In brief,
where
the
accused
commits a crime other
than those enumerated
with the use of an
unlicensed weapon, no
separate charge for such
use will be brought
against him. Consistent
with this is the disposition
by the Supreme court
decreed: Accordingly, all
pending cases for illegal
possession of firearms
should be dismissed if
they arose from the
commission of crimes
other
than
those
indicated in Section 1 and
3 of R.A. 8294.

subjection of the thing to ones

control and management.
INTENT TO POSSESS, OR
ANIMUS POSSIDENDI IS
ESSENTIAL
A distinction should be
made between criminal intent and
intent to possess. While mere
possession without criminal intent
is sufficient to convict a person for
illegal possession of firearms, it
must still be shows that there was
animus possidendi or an intent to
possess on the part of the
accused.
There is no evidence of
animus possedendi if the offender
was in possession of an
unlicensed firearm only on the
occasion of the shooting for a
transitory purpose and for the
short moment in connection with
the shooting.

2.5 Clearly the law leads

to absurd results, for
when the use of an
unlicensed
weapon
attends the commission
of a crime, no matter how
trivial, the case of illegal
possession recedes into
judicial irrelevance. The
matter is definitely one
that calls for a curative
statute and the Supreme
Court has referred the
matter to the Congress
for another look. One
moral lesson can be
learned: Laws passed as
favor to ones friend is a
poor laws!
OWNERSHIP IS
ESSENTIAL
ELEMENT
OF
POSSESSION

NOT

Lack of evidence is an
essential element of the crime
and that the same must be
alleged in the Information and
duly proved.
(People -vs- Macasling, 237
SCRA 299)
Ownership of the gun is
immaterial
or
irrelevant
in
violation of PD 1866, as
amended. One may be convicted
of possession of an unlicensed
firearm even if he is not the owner
thereof.
(People -vs- Reynaldo
Cruz, GR No.
76728, August 3, 1988)
Even if the gun is
"paltik," there is a need to secure
license for the gun, and if found
without any license therefor, the
offender is liable for violation of
PD 1866.
(People vs- Filemon Ramos, 222
SCRA 557)

AN

ILLEGAL

The rule is that ownership

is not an essential element of
illegal possession of firearms and
ammunition.
What the law
requires is merely possession
which includes not only actual
physical possession but also
constructive possession or the

If an unlicensed
firearm is used to commit a crime
other than homicide or murder,
such a direct assault with
attempted homicide, the use of an

52

unlicensed firearm is neither an

aggravating circumstances nor a
separate offense. Since the law
uses the word Homicide or
Murder,
possession
of
an
unlicensed
firearm
is
not
aggravating
in
Attempted
Homicide.
(People -vs- Walpan Ladjaamlam,
et al.,
GR No. 136149-51, September
19, 2000)

(People -vs- Rodolfo Dela

Rosa, et al., 284 SCRA 158)
Temporary,
incidental,
casual or harmless possession of
firearm is not punishable. Hence,
stealing a firearm to render the
owner defenseless is not a crime
under the law. (idem, supra)
Possession
includes
actual physical possession and
constructive possession. The
animus can be determined from
the overt acts of the accused prior
to or coetaneous with and other
surrounding circumstances of
such possession. Hence, where
the accused found a gun and was
on his way to deliver the gun to
the police authority and was
arrested, in the process, there is
no animus possedendi.
(People -vs- Rodolfo Dela Rosa, et al.,
supra)

Where the accused was

charged of Murder and violation
of PD 1866 and that, in the
meantime, Republic Act 8294
took effect, the accused should
be convicted only of Murder. The
use of unlicensed firearm should
not be 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 the
offense, the death penalty cannot
as yet, be imposed. However, in
his concurring opinion, Chief
Justice
Hilario
Davide,
Jr.
declared that, under such a
factual milieu, the charge of
violation of PD 1866 should
continue and if the accused is
found guilty, he should be meted
the death penalty under Republic
Act 8294.
(People -vs- Victor Macoy, GR
No.
126253, August 16, 2000)

Even if a paltik is a
homemade gun and thus illegally
manufactured nevertheless, the
Prosecution is burdened to prove
that the accused has no license
for the gun.
(People -vs- Felimon Ramos, et al., 222
SCRA 557)
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 that
the accused who owned or
possessed the firearm does not
have the corresponding license or
permit to possess the same.
(People -vs- Ricolito Rugay, et al.,
291 SCRA 692)

Where the prosecution

failed to adduce the gun in
evidence coupled 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 prosecution, the latter failed to
discharge its burden.
(People -vs- Ricolito Rugay, et al., 291
SCRA 692)

Where the accused is

convicted of violation of Republic
Act 8294 and meted a penalty
less than six (6) years, and a fine
of P15,000.00, he should be
ordered to undergo subsidiary
imprisonment
in
case
of
insolvency.
(Mario Rabaja -vs- Court of
Appealss, et al., 280 SCRA 290)

Mere possession without

criminal intent is sufficient on
which to render a judgment of
conviction for violation of PD
1866, as amended. 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 intent.

In the light of "People -vsMartin Simon," 234 SCRA 555,

and Articles 13 and 14, in relation

53

to Article 63, of the Revised Penal

Code and 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
6425, as amended.

license, the security guard is not

criminally liable. The security
guard has the right to assume
that the security agency secured
the license.
(Ernesto Cuenca -vs- People, 33
SCRA 522)

Even if a person is
licensed to possess a firearms
but brings out firearm outside of
his residence without permit
therefor, he is guilty of 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
be issued to one licensed to
possess a firearm.
(Pedrito Pastrano -vs- Court of
Appeals, et al., 281 SCRA 287)

If a constabulary soldier
entrusted his gun to the accused
for safekeeping and later the
accused found in possession of
the gun, the accused is guilty of
possession of unlicensed firearm.
To exculpate himself, the accused
must prove absence of animus
possidendi.
(People -vs- Perlito Soyang, et
al., 110 Phil. 565, 583)
A secured a loan from B
and pledged his unlicensed
firearm as security for the loan. A
promised to pay his loan and
retrieve the firearm as 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 possession by B of
the unlicensed firearm because
there was no way to determine
when A could pay his account.
(People -vs- Cornelio Melgas,
100 Phil. 298)

If the accused borrowed

a gun from another who is
licensed to possess firearm, may
the former be liable for violation of
PD 1866, as 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 firearm and a permit to carry a
licensed firearm outside of his
residence is not transferable.
(Pedrito Pastrano -vs- Court of
Appeals, et al., supra)

If a licensed firearm if
used to commit Murder or
Homicide, such circumstances is
merely a special aggravating
circumstance which must be
alleged in the Information and
cannot be offset by any mitigating
circumstance.
(People
-vsMeriato Molina, et al., G.R. No.
115835, July 22, 1998; People
-vs- Narvasa, G.R. no. 128618
November 18, 1998)

Even if the firearm

subject of the crime is not
adduced in evidence one may still
be convicted of possession of an
unlicensed firearm as long as
proof was adduced that the
acused was in possession of a
firearm.
(People -vs- Felicisimo Narvasa,
GR No.
128618, November 16, 1998)
NOTE: Under Republic Act 8294,
the penalty depends upon the
caliber of the gun. Suppose there
is no testimony as to the caliber
of the gun?

The
Decision of the
Supreme Court in People -vsPaterno Tac-an, 182 SCRA 601;
People -vs- Jesus Deunida, and
People -vs- Barros and People
-vs- Daniel Quijada 259 SCRA
191 had been overtaken by
Republic Act 8294.

Where a security guard

was given by his employer, a
security agency, a firearm, and
the accused assumed that the
employer secured the license for
the firearm but that it turned out
that the employer failed to get any

Under the amendment,

the death penalty may now be
imposed if the accused is
convicted of Murder with the use

54

of
licensed
firearms.

or

unlicensed

unlicensed firearm as mere a

special aggravating circumstance.

As long as the accused is

proved
to
have
been
in
possession of the unlicensed
firearm even if the firearm is not
adduced in evidence, conviction
under the law is proper.
(People -vs- Felicisimo Narvasa,
supra)

Murder, under Republic

Act 8294, is used in its generic
term and, hence, includes
Parricide
(People versus Octavio
Mendoza,
GR No. 109270-80, January
18,1999)
A United States carbine
M1, caliber .3-0 is a high-powered
gun because it is capable of
emitting two or three bullets in
one squeeze.
(People -vs- Eduardo Gutierrez,
GR No. 132878, September
1999)

Republic Act 8294 took effect

on July 6, 1997.
If the accused is charged
of Murder and violation of PD
1866 and during the trial,
Republic Act 8294 took effect, the
accused cannot be convicted of
violation of PD 1866, as
amended. Neither should the
possession of an unlicensed
firearm be considered as an
aggravating circumstance as it
will be less favorable to the
accused. If the accused used a
sumpak to kill the victim, the
prosecution must prove that he
had no license or permit to
possess the sumpak.
(People -vs- Cipriano de Vera,
G.R. No. 121462-63, June 9,
1999)

It is not necessary that

the firearm be produced and
offered in evidence for Republic
Act 8294 to apply. It is not enough
that there is evidence of the
existence of the gun which can be
established either by testimony or
presentation of the gun itself.
Possession
of
an
unlicensed firearm and used in
killing is a special aggravating
circumstance.
(People -vs- Felicisimo Narvasa,
GR No. 128618, November 18,
1998)

Compare "People -vsWilfredo Filoteo," 290 SCRA 627

where the accused was convicted
of Murder and violation of PD
1866 and during the 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 violation of PD
1866, as amended, and applied
the penalty for the crimes under
the amendment.

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 longer true.
Possession under the law
may either be actual physical
possession
or
constructive
possession. However, although
the crime under PD 1866, as
amended, is malum prohibitum,
however, there must be animus
possidendi, or intent to possess.
Animus possidendi may be
inferred from the fact that an
unlicensed firearm is under the
apparent control and power of the
accused.
however,
animus
possidendi may be contradicted if
a person in possession of an

In "People -vs- Veriato

Molina, et al.," 292 SCRA 742,
our Supreme Court En Banc
declared that where the accused
was convicted of said crio,es, by
the Trial Court but that during the
pendency of the appeal, with the
Supreme Court, Republic Act
8294 took effect, the accused
should only be convicted of
Murder with the use of an

55

unlicensed firearm does

assert a right thereto.

not

aggravated
by
illegal
possession of firearm, the
correct denomination for the
crime,
and
not
illegal
possession
of
firearm,
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.

If the possession of an
unlicensed
gun
is
merely
temporary, incidental or transient,
the same is not punishable under
PD 1866. However, the law does
not provide for a fixed period of
time for one to be deemed in
"possession" of an unlicensed
firearm. (People -vs- Rolando
Verches, 233 SCRA 174). Each
factual
milieu
must
be
considered.

EVEN IF ACCUSED ADMITTED

THAT HE HAS NO LICENSE,
SUCH ADMISSION IS NOT
SUFFICIENT
PROOF
OF
ILLEGAL POSSESSION OF
FIREARM

IMPLICATION BY RA 8294 ON
PD
1866
(ILLEGAL
POSSESSION OF FIREARMS)

Hence, in the case at bar,

although the appellant himself
admitted that he had no license
for the gun recovered from his
possession, his admission will
not relieve the prosecution of
its duty to establish beyond
reasonable
doubt
the
appellant's lack of license or
permit to possess the gun. In
People
vs.
Solayao,
we
expounded on this doctrine, thus:

P.D. 1866, which codified

the laws on illegal possession of
firearms, was amended on June
6, 1997 by Republic Act 8264.
Aside from lowering the penalty
for said crime, R.A. 8294 also
provided that if homicide or
murder is committed with the
use of an unlicensed firearm,
such use shall be considered
as a special aggravating
circumstance. This amendment
has two (2) implications: first,
the use of an unlicensed firearm
in the commission of homicide or
murder shall not be treated as a
separate offense, but merely as a
special aggravating circumstance;
second, as only a single crime
(homicide or murder with the
aggravating
circumstance
of
illegal possession of firearm) is
committed under the law, only
one penalty shall be imposed on
the accused.

"x x x by its very nature,

an admission is the mere
acknowledgement of a fact or of
circumstances from which guilt
may be inferred, tending to
incriminate the speaker, but not
sufficient of itself to establish his
guilt." In other words, it is a
statement by defendant of fact or
facts pertinent to issues 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 is insufficient to prove
beyond doubt the commission
of the crime charged.

Prescinding
therefrom,
and
considering
that
the
provisions of the amendatory law
are favorable to herein appellant,
the
new
law
should
be
retroactively applied in the case
at bar. It was thus error for the
trial court to convict the appellant
of two (2) separate offenses, i.e.,
Homicide and Illegal Possession
of Firearms, and punish him
separately for each crime. Based
on the facts of the case, the crime
for which the appellant may be
charged
is
homicide,

"Moreover,
said
admission is extrajudicial in
nature. As such, it does not fall
under Section 4 of Rule 129 of
the Revised Rules of Court which
states:
An admission, verbal or
written, made by a party in the

56

course of the trial or other

proceedings in the same case
does not require proof.

verification. This explains why no

certification or testimony was
adduced by the prosecution at
the trial to prove that appellant
Cortez 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 crime penalized
under P.D. 1866 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.

"Not being a judicial

admission, said statement by
accused-appellant does not
prove
beyond
reasonable
doubt the second element of
illegal possession of firearm. It
does not even establish a prima
facie 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) (PP -vsJULIAN CASTILLO Y LUMAYRO,
G.R. No. 131592-93, Feb. 15,
2000)

MAY EXPLOSIVES BE GIVEN A

PERMIT OR LICENSE?

ELEMENTS
OF
ILLEGAL
POSSESSION OF FIREARMS

In the case of an
explosive, a permit or license to
possess it is usually granted to
mining
corporations,
military
personnel and other legitimate
users.
(PP -vs- BERNIE
CORTEZ Y NATANIO, ET AL.,
G.R. Nos. 131619-20, Feb. 1,
2000)

To convict an accused for

illegal possession of firearms and
explosive under P.D. 1866 as
amended, two (2) essential
elements must be indubitably
established, viz:
(a)
the
existence of the subject firearm
or 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
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.

UNDER R.A. 8294 A SEPARATE

CONVICTION FOR ILLEGAL
POSSESSION OF FIREARMS
AND FOR HOMICIDE IS NOT
ALLOWED
With respect to the conviction of
accused-appellant
for
illegal
possession of firearms under P.D.
No. 1866, it was held in the case
of People vs. Molina and
reiterated in the recent case of
People vs. Ronaldo Valdez, that
in cases where murder or
homicide is committed with the
use of an unlicensed 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
introduced
by
Republic
Act
No.
8294.
Thereunder,
the
use
of
unlicensed firearm in murder or
homicide is simply considered as
an aggravating circumstance in
the murder or homicide and no
longer as a separate offense.

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 possess the
hand grenade. Although the hand
grenade seized by PO2 Santos
from appellant was presented in
court, the records bear that PO2
Santos did not submit the
grenade to the PNP Firearms
and
Explosives
Unit
for

57

Furthermore, the penalty for

illegal possession of firearms
shall be imposed provided that no
crime is committed.
In other
words, where murder or homicide
was committed, the penalty for
illegal possession of firearms is
no longer imposable since it
becomes merely a special
aggravating circumstance. (PP
-vsAUGUSTO LORETO
RINGOR, JR., G.R. No. 123918,
Dec. 9, 1999)

shall not be covered by this

prohibition.

LISTENING
CONVERSATION
IN
EXTENSION
LINE
TELEPHONE
IS NOT WIRE-TAPPING

TO
OF

An extension telephone
cannot be placed in the same
category as a dictaphone,
dictagraph or the other devices
enumerated in Section 1 of RA
4200 as the use thereof cannot
be considered as tapping the wire
or cable of a telephone line. The
telephone extension in this case
was not installed for that purpose.
It just happened to be there for
ordinary office use. It is a rule 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 taken as
detached
and
isolated
expressions, but the whole and
every part thereof must be
considered in fixing the meaning
of any of its parts. (66 SCRA
113,120)

ANTI-WIRE TAPPING LAW

(RA 4200)
Sec. 1. It shall be unlawful for
any person, not being authorized
by all the parties to any private
communication or spoken word,
to tap any wire or cable, or by
using any other device or
arrangement,
to
secretly
overhear, intercept, or record
such communication or spoken
word by using a device commonly
known as a dictaphone or
dictagraph or dectaphone or
walkie-talkie or tape recorder, or
however otherwise described:
It shall also be unlawful
for any person, be he a
participant or not in the act or acts
penalized in the next preceding
sentence, to knowingly possess
any tape record, wire record, disc
record, or any other such record,
or copies thereof, of any
communication or spoken word
secured either before or after the
effective date of this Act in the
manner prohibited by this law; or
to replay the same for any other
person or persons; or to
communicate
the
contents
thereof, either verbally or in
writing, or to furnish transcriptions
thereof, whether complete or
partial, to any other person:
Provided, That the use of such
record or any copies thereof as
evidence in any civil, criminal
investigation or trial of offenses
mentioned in section 3 hereof,

A PERSON CALLING ANOTHER

BY PHONE
MAY SAFELY PRESUME THAT
THE OTHER
MAY HAVE AN EXTENSION
LINE AND
RUNS THE RISK OF BEING
HEARD BY A
3RD PARTY.
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 radius of a
kilometer or more.
A person
should safely presume that the
party he is calling at the other end
of the line probably has an
extension telephone and he runs
the risk of a third party listening
as in the case of a party line or a

58

telephone unit which shares its

line with another.

"2)
By any person who,
under any of the circumstances
mentioned in paragraph 1 hereof,
shall commit an act of sexual
assault by inserting his penis into
another person's mouth or anal
orifice, or any instrument or
object, into the genital or anal
orifice of another person.

MERE ACT OF LISTENING TO A

TELEPHONE CONVERSATION
IN AN
EXTENSION LINE IS NOT
PUNISHED BY
ANTI-WIRE TAPPING LAW
It can be readily seen that
our lawmakers intended to
discourage through punishment,
persons such as government
authorities or representatives of
organized groups from installing
devices in order to gather
evidence for use in court or to
intimidate, blackmail or gain some
unwarranted advantage over the
telephone users. Consequently,
the mere act of listening, in order
to be punishable must strictly be
with the use of the enumerated
devices in RA 4200 or others of
similar nature. We are of the view
that an extension telephone is not
among
such
devices
or
arrangements.

WHEN
INEXCUSABLE
IMPRUDENCE ON
PART OF VICTIM AS TO
IDENTITY OF
OFFENDER IS NOT RAPE,
WHEN A WOMAN FAILED TO
ASCERTAIN THE IDENTITY OF
THE MAN.
The evidence shows that
this mistake was purely a
subjective
configuration
of
Zareen's mind an assumption
entirely contrived by her. Our
impression is that Silvino had
nothing to do with the formulation
of this belief; he did nothing to
mislead or deceive Zareen into
thinking that he was Enrico. In
fact, Silvino precisely, and
confidently, told her, "Zareen, it's
not 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 and
to nobody else. Clearly, the fault
was
hers.
She
had
the
opportunity to ascertain the
identity of the man but she
preferred to remain passive and
allow things to happen as they
did. Silvino never used force on
her and was even most possibly
encouraged by the fact that when
he pulled down her panties she
never objected; when her legs
were being parted she never
objected; and, when he finally
mounted her she never objected.
Where then was force?

RAPE AS CRIME AGAINST

PERSONS
(R.A. 8353)
Rape,
When
Committed

And

How

"1)
By a man who shall have
carnal knowledge of a woman
under any of the following
circumstances:
"a)
Through
force,
threat, or intimidation;
"b)
When
the
offended party is deprived
of reason or otherwise
unconscious;
"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
above be present.

Third, Zareen was not

deprived of reason or otherwise
unconscious when the accused
had intercourse with her. Her
lame excuse was that she was
half-asleep.
However
she
admitted that in the early morning

59

of 1 May 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, 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 sexual act; she knew, hence
was conscious, when the man
was pulling down his briefs to
prepare himself likewise for the
copulation; she knew, hence was
conscious,
when
the
man
mounted her and lusted after her
virtue. Her justification was that
she never objected to the sexual
act from the start because she
thought that the man was her
boyfriend with whom she was
having sex almost every night for
the past three (3) weeks as they
were getting married and wanted
already to have a baby. In other
words, her urge could not wait for
the more appropriate time.
(People v. Salarza, Jr.)

Intimidation in rape cases

is not calibrated nor governed by
hard and fast rules. Since it is
addressed to the victim's and is
therefore subjective, it must be
viewed in light of the victim's
perception and judgment at the
time of the commission of the
crime. It is enough that the
intimidation produced fear 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
thereof,
thereby
rendering
resistance futile, it would be the
height of unreasonableness to
expect the victim to resist with all
her might and strength. If
resistance would nevertheless be
futile because of intimidation,
then offering none at all does not
mean consent to the assault so
as
to
make
the
victim's
submission to the sexual act
voluntary.

NATURE OF INTIMIDATION
IN RAPE CASES

In any event, in a rape

committed by a father against his
own 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
mature and experienced woman
who would know what to do under
the circumstances, or to have
courage and intelligence to
disregard the threat. Even in
cases of rape of mature women,
this Court recognized their
different
and
unpredictable
reactions. Some may shout;
some may faint; and some may
be shocked into insensibility;
while others may openly welcome
the intrusion.
(People v.
Agbayani; GR 122770, Jan. 16,
98)

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
the light of the victims perception and
judgement at the time of the crime.
In the case at bar, at the
time the crime was committed, the victim
was 40 yrs. old, 5 months pregnant,
unarmed and married to a person older
than her by almost 20 yrs.. In contrast,
appellant was in his 20s, armed with a
gun and purportedly in the company of
several NPA members.
The crime
happened in the evening and in a place
where help was impossible. The nearest
neighbor of the 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)
WHEN MORAL ASCENDANCY
IS
SUSTAINED
AS
INTIMIDATION IS RAPE.

TEST TO DETERMINE
WHETHER A WOMAN

60

VOLUNTARILY SUBMITTED TO
SEXUAL INTERCOURSE OR
NOT DUE TO INTIMIDATION

CHILD BORN BY REASON OF

RAPE
MUST BE ACKNOWLEDGED
BY OFFENDER
UPON
ORDERS
OF
THE
COURT

Physical
resistance is not the sole test to
determine whether or not a
woman involuntarily succumbed
to the lust of an accused.
Jurisprudence holds that even
though a man lays no hand on a
woman, yet if by array of physical
forces he so overpowers her mind
that she does not resist or she
ceases resistance through fear of
greater harm, the consummation
of unlawful intercourse by the
man is rape.
(Pp. V.
Mostrales; GR 125937, Aug.28,
1998)

Furthermore,
since
ANALIZA begot a child by reason
of the rape, DANTE must
acknowledge and support the
offspring pursuant to Article 345
of the Revised Penal Code in
relation to Article 201 of the
Family Code. (People v. Alfeche)
DWELLING AS AGGRAVATING
CIRCUMSTANCE
IN
RAPE
CASES

DATE OF COMMISSION OF
RAPE NOT ESSENTIAL
ELEMENT OF SAID CRIME

It
is
clear,
however, that the aggravating
circumstance of dwelling is
attendant in the commission of
the crime. Article 14(5) of the
Revised Penal Code provides
that this circumstance aggravates
a felony where the crime is
committed in the dwelling of the
offended party, if the latter has not
given provocation. In the instant
case, the aforesaid circumstance
of dwelling was definitely present
in the commission of the crime of
rape with the use of a deadly
weapon. (Pp. V. Prades; GR
127569, July 30, 1998)

It is settled that
even a variance of a few months
between 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
reversal of a conviction solely on
that score. The failure of the
complainant to state the exact
date and time of the commission
of the rape is a minor matter.
(Pp.
V.
Bernaldez;
GR
109780,Aug. 17, 1998)

INDEMNITY
CASES OF RAPE

EXAMPLE OF VIRTUAL
CONFESSION OF FACT AND
NOT IN LAW IN CASES OF
RAPE

IN

CERTAIN

The
recent
judicial prescription is that the
indemnification for the victim shall
be in the increased amount of
P75,000.00 if the crime of rape is
committed or effectively qualified
by any of the circumstances
under which the death penalty is
authorized by the applicable
amendatory laws. (Pp. V. Prades;
GR127569, July 30, 1998)

It is conceded
that after the rape, Accused sent
complainant two letters in which
he implored her forgiveness and
offered to leave his wife 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.
(Pp. V. Prades; GR
127569, July 30, 1998)

MORAL DAMAGES NEED NOT

BE ALLEGED
AND PROVED IN CASES OF
RAPE

61

Indeed,
the
conventional
requirement
of
allegata et probata in civil
procedure and for essentially civil
cases should be dispensed with
in criminal prosecutions for rape
with the civil aspect included
therein, since no appropriate
pleadings are file wherein such
allegations can be made. (Pp. V.
Prades; GR 127569, July 30,
1998)
MEANING
OF
WEAPON
IN CASES OF RAPE

constitute rape. (People v. Hector

Estares; 12/5/97)
USE
OF
FORCE
OR
INTIMIDATION NOT
AN ELEMENT OF STATUTORY
RAPE
In any event, the use of
force or intimidation is not an
element of statutory rape. The
offense is established upon proof
that the accused sexually violated
the offended party, who was
below 12 years of age at the time
of the sexual assault. In other
words, it is not relevant to this
case whether appellant slapped
or boxed the victim, or whether he
used a single-bladed or a doubleedged knife.
(People v. Oliva;
12/5/97)

DEADLY

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 likely to
produce death or serious bodily
harm. In our jurisdiction, it has
been held that a knife is a deadly
weapon. (Pp. V. Alfeche; GR
124213, Aug. 17, 1998)
FORCE AND
NOT
NEEDED
IN
RETARDATE

RAPE CAN BE COMMITTED IN

DIFFERENT PLACES EVEN
THOSE IN HIGH VENUES
It has been emphasized
that rape can be committed in
many different places, including
places which to many would
appear to be unlikely and highrisk venues for sexual advances.
Thus, rape has been committed
even in places where people
congregate, in parks, along the
roadside, within school premises,
inside a house where there are
other occupants, and even in the
same room where other members
of the family are also sleeping.
(People v. Gementiza;
1/29/98)

INTIMIDATION
RAPE

OF

Although the information

alleged force, threats, and
intimidation, it nevertheless also
explicitly stated that Tessie is a
mentally retarded person. 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 the bestial
desires of the accused, or even if
the circumstances of force or
intimidation or of the victim being
deprived of reason or otherwise
unconscious are absent, the
accused would still be liable for
rape under the 3rd circumstance
of Art. 335. The rationale therefor
is that if sexual intercourse with a
victim under 12 years of age is
rape, then it should follow that
carnal knowledge of a woman
whose mental age is that of a
child below 12 years would

WHEN
SWEETHEART
DEFENSE
IS TENABLE IN RAPE
The sweetheart defense
put up by the accused merits
serious consideration. While the
theory does not often gain favor
with the court, such 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 relationship is either
illicit, or the parents are against it.

62

In such instances, it is not

improbable
that
when
the
relationship is uncovered, the
victims parents would take the
risk of instituting a criminal action
rather than admit to the
indiscretion of their daughter.
And this, as the records reveal, is
what happened in this case.
(People vs Rico Jamlan Salem,
October 16/97)

Filipino family invent a charge

that would only bring shame and
humiliation upon them and their
own family and make them the
object of gossip among their
classmates and friends.
It is
unbelievable
that
Jacqueline
would fabricate a serious criminal
charge just to get even with her
father and to emphasize with her
sister.
The sisters would not
contrive stories of defloration and
charge their own father with rape
unless these stories are true. For
that matter, no young Filipina of
decent repute would falsely and
publicly admit that she had been
ravished and abused considering
the social stigma thereof. People
v Tabugoca, GR No. 125334)

A MEDICAL EXAMINATION OF
VICTIM
IS NOT ELEMENT OF RAPE
A medical examination is
not an indispensable element in a
prosecution for rape.
The
accused may be convicted on the
sole basis of complainants
testimony, if credible, and the
findings of the medico-legal
officer do not disprove the
commission of rape. People v
Jenelito Escober Y Resuento,
Nov 6/97)

SODOMY IS NOT THE SAME

AS IGNOMINY NOR CAN IT BE
CONSIDERED AS IGNOMINY.
"Ignominy
is
a
circumstance pertaining to the
moral order, which adds disgrace
and obliloquy to the material
injury caused by the crime."
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. This is clearly not the case
here
for
accused-appellant's
intention was shown to be the
commission of sexual abuse on
the victim as an act of revenge for
his similar experience as a child.

HEINOUSNESS OF RAPE OF
ONES DESCENDANT
In the case before us, the
accused raped his own flesh and
blood at such a tender age of
eleven. He thus violated not only
he purity and her trust but also
the mores of his society which he
has scornfully defined.
By
inflicting his animal greed on her
in a disgusting coercion of
incestuous lust, he forfeits all
respect as human being and is
justly spurned by all, not least of
all, by the fruit of his own loins
whose progeny he has forever
stained with his shameful and
shameless lechery.
People v
jenelito Escober Y Resuento, Nov
6/97)

WHEN THE INFORMATIONS ON

RAPE CASES FAILED TO
ALLEGE
ACTUAL
RELATIONSHIP ETC. HENCE
DEATH PENALTY CANNOT BE
IMPOSED

MERE
DISCIPLINARY
CHASTISEMENT
IS NOT ENOUGH TO DOUBT
CREDIBILITY
OF RAPE VICTIM WHO IS A
DESCENDANT

In
this
case,
the
information's in Criminal Case
Nos.
8899-8900 alleged that
accused-appellant, "who is the
stepfather of the private offended
party" by "force, violence and
intimidation" succeeded in having
carnal knowledge of the latter
when she was then 14 and 13
years old, respectively. On the

Mere
disciplinary
chastisement is not strong
enough to make daughters in a

63

otherhand, the information in

Criminal Case Nos. 8945-8946
alleged that accused-appellant,
"who. is the stepfather of victim
Jenny Macaro" succeeded in
having carnal knowledge of the
latter, who was a girl below 12
years old.
As already noted,
contrary to these allegations,
accused-appellant is not really
the stepfather of complainants
Lenny and Jenny because
accused-appellant
and
complainants' mother were not
legally married but 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-inlaw, Rosalie Macaro, also testified
that her "mother-in-law is not
legally married to accusedappellant."
Accused-appellant
likewise said on direct and crossexamination that he was not
legally married to the mother of
the complainants, and he referred
to her as his live-in partner. This
was confirmed by Emma Macaro,
mother of the complainants.
Although the rape of a person
under eighteen (18) years of age
by the common-law spouse of the
victim's mother is punishable by
death, this penalty cannot be
imposed on accused-appellant in
these
cases
because
this
relationship was not what was
alleged in the information's. What
was alleged was that he is the
stepfather of the complainants.

punishable
by
"reclusion
perpetua."
When the rape is
committed "with the use of a
deadly weapon," i.e., when a
deadly weapon is used to make
the victim submit to the will of the
offender, the penalty is reclusion
perpetua to death."
This
circumstance must however be
alleged
in
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 her after
threatening her with a knife, the
"use of a deadly weapon" in the
commission of the crime was not
alleged in
the information.
Therefore, even 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 this case, cannot affect
the penalty to be impose, i.e.,
reclusion perpetua. Accordingly,
the accused-appellant should be
sentenced to the penalty of
reclusion perpetua. Accordingly,
the accused-appellant should be
sentenced to the penalty of
reclusion perpetua for each of
the four counts of rape. (PP -vsFELIXBERTO
FRAGA
Y
BAYLON, G.R. Nos. 134130-33,
April 12, 2000)

EXAMINATIONS
OF
ALL
SPECIMENS IN DRUG CASES
NOT NECESSARY
We are not persuaded by
the claim of accused-appellants
that in order for them to be
convicted of selling 2,800 grams
of marijuana, the whole specimen
must be tested considering that
Republic Act 7659 imposes a
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-

INFORMATION IN RAPE CASES

WITH
USE
OF
DEADLY
WEAPON MUST BE ALLEGED
OTHERWISE DEATH PENALTY,
CANNOT BE IMPOSED
Neither can accusedappellant be meted the death
penalty in 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 Code, simple rape is

64

appellant. (PP -vs- DIOLO

BARITA Y SACPA, ET AL., G.R.
No. 123541, Feb. 8, 2000)

WHAT ARE THE ELEMENTS OF

RAPE?
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 intimidation; or
when the woman is deprived of
reason or otherwise unconscious;
or when the woman is under
twelve years of age or is
demented.

MEDICAL EXAMINATION NOT

REQUIRED IN RAPE CASES
This Court has also ruled
that a medical examination is not
indispensable to the prosecution
of rape as long as the evidence
on hand convinces the court that
a conviction of rape is proper.

MEANING
OF
TAKING
ADVANTAGE OF SUPERIOR
STRENGTH IN RAPE CASES

WHEN CARNAL KNOWLEDGE

IS CONSUMATED

Taking
advantage
of
superior strength means to
purposely use excessive force out
of proportion to the means
available to the person attacked.
It is abuse of superior numbers or
employment of means to weaken
the defense. This circumstance is
always considered whenever
there is notorious inequality of
forces between the victim and the
aggressor, assuming a situation
of
superiority
notoriously
advantageous for the aggressor
deliberately chosen by him in the
commission of the crime.
To
properly appreciate it, it is
necessary to evaluate not only
the physical condition of the
parties and the arms or objects
employed but the incidents in the
total development of the case as
well.

It is worth mentioning that

in rape cases, the prosecution is
not required to establish penile
penetration because even the
slightest touching of the female
genitalia, or mere introduction of
the male organ into the labia of
the pudendum constitutes carnal
knowledge.
(PP
-vsFERNANDO
CALANG
MACOSTA, alias "DODONG"
G.R. No. 126954, Dec. 14,
1999)
THE CHARGE OF RAPE DO
NOT
INCLUDE
SIMPLE
SEDUCTION. HENCE, IF ONE
IS CHARGE WITH RAPE AND IS
NT
PROVEN,
ACCUSED
CANNOT BE HELD GUILTY OF
SIMPLE SEDUCTION.

Moreover, like the crime

of parricide by a husband on his
wife, abuse 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)

Even as the prosecution

failed to proved the use of force,
violence and intimidation by the
accused-appellant, we cannot
convict the accused-appellant of
the crime of simple seduction
without
offense
to
the
constitutional
rights
of
the
accused-appellant to due process
and to be informed the accusation
against him. The charge of rape
does
not
include
simple
seduction.
(PP -vs LOLITO
MORENO Y LANCION alias
"LOLOY"
G.R. No. 115191,
Dec. 21, 1999)

WHEN TESTIMONY OF VICTIM

IS OVERLY GENERALIZED IN
CRIME OF RAPE

65

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 doubt.
The victim's testimony was overly
generalized and lacked specific
details on how each of the
alleged sixteen rapes
was
committed. Her bare statement
that she was raped so many
times on certain weeks is clearly
inadequate
and
grossly
insufficient to establish the guilt of
accused-appellant insofar as the
other sixteen rapes charged are
concerned. In People vs. Garcia,
this Court succinctly observed
that:

against him and consequently, a

denial of due process if he is
charged with simple rape and
convicted of its qualified form
punishable by death although the
attendant
circumstances
qualifying
the
offense
and
resulting in capital punishment
were not set forth in the
indictment on which he was
arraigned. (PP -vs- CHARITO
ISUG MAGBANUA, G.R. No.
128888, Dec. 3, 1999)

QUALIFYING CIRCUMSTANCE
IN RAPE CASES MUST BE
ALLEGED IN ORDER THAT
DEATH
PENALTY
MAYBE
IMPOSED

xxx
the indefinite testimonial
evidence that complainant was
raped every week is decidedly
inadequate
and
grossly
insufficient to establish the guilt of
appellant therefor with the
required quantum of evidence.
So much of such indefinite
imputations of rape, which are
uncorroborated by any other
evidence fall within this category.
(PP -vs- EDMUNDO DE LEON
Y JESUS,
G.R. No 130985,
Dec. 3, 1999

This Court has ruled in a

long line of cases that the
circumstance
under
the
amendatory provisions of Section
11 of Republic Act 7659, the
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 unless
alleged with particularity in the
information
unlike
ordinary
aggravating circumstances which
affect only the period of the
penalty and which may be proven
even if not alleged in the
information. It would be a denial
of the right of the accused to be
informed of the charge against
him and consequently, a denial of
due process, if he is charged
with simple rape and will be
convicted of its qualified form
punishable by death although the
attendant circumstance qualifying
the offense and resulting in
capital punishment was not
alleged in the indictment under
which
he
was
arraigned.
Procedurally, then, while the
minority of Renelyn and her
relationship to the accusedappellant were established during
the trial, the accused-appellant
can only be convicted of simple
rape because he cannot be
punished for a graver offense that
that with which he was charged.
Accordingly,
the
imposable
penalty is reclusion perpetua.

CONCURRENCE OF MINORITY
OF
VICTIM
AND
RELATIONSHIPS
IN
RAPE
MUST BE ALLEGED SO THAT
DEATH
PENALTY
MAYBE
IMPOSED
The concurrence of the
minority of the victim and her
relationship to the offender should
be specifically alleged in the
information conformably 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 be imposed
because
these
qualifying
circumstances were not specified
in the information. It would be a
denial of the right of the appellant
to be informed of the charges

66

(PP -vs- EDWIN R. DECENA,

G.R. No.
131843, May 31,
2000)

it is 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.

IMPORTANT CONSIDERATION
IN RAPE

Second. The deportment

of the private complainant after
the alleged rape accentuates the
dubiety of her testimony. After the
alleged rape, she did not leave
immediately but even refused to
be separated from her supposed
defiler despite the prodding of the
latter. Worse, she went with him
to the house of his sister and
there they slept together. Indeed
this attitude runs counter to logic
and common sense.
Surely
private complainant would not risk
a
second
molestation
and
undergo a reprise of the
harrowing
experience.
To
compound matters, it took her
four (4) days to inform her
parents about this agonizing
episode in her life. Truly, her
insouciance is very disturbing, to
say the least.

Neither is the absence of

spermatozoa in Delia's genitalia
fatal to the prosecution's case.
The presence or absence of
spermatozoa is immaterial 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 male organ.
(PP -vsRODOLFO BATO alias 'RUDY
BATO," G.R. No. 134939, Feb.
16, 2000)

WHEN
RAPE
IS
NOT
COMMITTED
AND
SWEETHEART THEORY GIVEN
CREDENCE

Finally. The prosecution

failed to substantiated any of its
allegations. 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)

First.
Private
complainant never objected or
showed any resistance when
accused-appellant
allegedly
dragged her forcibly across the
pedestrian overpass and brought
her to an undisclosed place at
Quiapo. Although he was holding
her wrist tightly, she could have
easily extricated herself form him
on several occasions: (a) while
they were inside the bus bound
for Quiapo;
(b)
when they
alighted form
the bus and
roamed the sidestreets of Quiapo;
and especially so, (c) when they
entered the hotel and finally the
room where the alleged rape took
place.
Accused-appellant was
unarmed and his tight grip could
not have prevented private
complainant from
at least
shouting for help. Her demeanor
was simply inconsistent with that
of the ordinary Filipina whose
instinct dictates that the summon
every ounce of her strength and
courage to thwart any attempt to
besmirch her honor and blemish
her purity. True, women react
differently in similar situations, but

WHEN TWO AFFIDAVITS ARE

EXECUTED
BY
THE
COMPLAINANT IN A RAPE
CASE, ONE FOR ATTEMPTED
RAPE AND ANOTHER FOR
CONSUMMATED RAPE AND
ARE INCONSISTENT WITH
EACH OTHER, CONVICTION
CANNOT BE HAD
It is true that affidavits are
generally
subordinated
in
importance
to
open
court
declarations. The general rule is
that
variance
between
an
extrajudicial sworn statement of
the
complainant
and
here

67

testimony in court does not impair

the complainant's credibility when
the said variance does not alter
the 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 which
the accused or the complainant
wore at the time of the incident do
not
generally diminish
the
complainant's
credibility.
However, the serious discrepancy
between
the
two
sworn
statements executed a day apart
by the complainant in this case,
bearing on a material fact, is very
substantial because it pertains to
the essential nature of the
offense, i.e., whether the offense
was consummated or merely
attempted.
In People vs.
Ablaneda, wherein a housewife
executed a sworn statement for
attempted rape and later changed
the accusation to consummated
rape
without
a
rational
explanation, this Court held that
the general rule does not apply
when the complainant completely
changed the nature of her
accusation.
The contradiction
does not concern a trivial or
inconsequential
detail
but
involves the essential fact of the
consummation of the rape. (PP
-vs- ALBERT ERNEST WILSON,
G.R. No. 135915, Dec. 21,
1999)
NATURE

OF

the culprit is further reduced to a

level lower than the lowly animal
and forfeits all respect otherwise
due him as a human. (PP -vsMELANDRO
NICOLAS
Y
FAVELLA,
G.R. Nos. 12512527, Feb. 4, 2000)

LOVE RELATIONSHIP DO NOT

RULE OUT RAPE
Even assuming ex gratia
argumenti that accused-appellant
and private complainant were
indeed sweethearts as he claims,
this fact alone will not extricate
him from his predicament. The
mere assertion of a "love
relationship"
would
not
necessarily rule out the use of
force to consummate 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.
Thus, granting
arguendo that the accused and
the victim were really lovers this
Court has reiterated time and
again that "A sweetheart cannot
be forced to have sex against her
will. Definitely, a man cannot
demand sexual gratification from
a fiance, 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)

INCESTUOUS

RAPE
Incestuous rape of a
daughter by a father has
heretofore been bitterly and
vehemently denounced by this
Court as more than just a
shameful and shameless crime.
Rape in itself is a nauseating
crime
that
deserves
the
condemnation of all decent
persons who recognize that a
woman's cherished chastity is
hers alone to surrender at her
own free will, and whoever
violates this norm descends to
the level of the odious beast. But
the act becomes doubly repulsive
where the outrage is perpetrated
on one's own flesh and blood for

PLACES NOTORIOUS FOR

HOLD-UPS DONE AT NIGHT IS
CONSIDERED
AGGRAVATING AS NIGHT TIME
Considering
that
the
place where the crime took place
was "notorious for hold-ups done
at night, precisely to maximize the
advantage of darkness,"
we
cannot but agree with the trial
court
that
nighttime
was
purposely sought by accusedappellants
"for
the
more
successful consummation may be
perpetrated unmolested or so that
they
could
escape
more

68

thoroughly." (PP -vs- FELIMON

ALIPAYO Y TEJADA, ET AL.,
G.R. No. 122979, Feb. 2, 2000)

COMPENSATORY DAMAGES IN
CASES OF QUALIFIED RAPE
With regard to the award of
compensatory damages, we have
rule in People vs. Victor, which
was later reaffirmed in People vs.
Prades, that "if the crime of rape
is committed or effectively
qualified
by
any
of
the
circumstances under which the
death penalty is authorized by the
present amended
law, the
indemnity of the victim shall be in
the increased amount of not less
than P75,000.00."
(PP
-vsANTONIO
MAGAT
Y
LONDONIO, G.R. No. 130026,
May 31, 2000)

RAPE MAY BE COMMITTED IN

ALMOST ALL PLACES
Appellant considers it
quite improbable for rape to be
committed at a place within a
well-lighted and fairly wellpopulated neighborhood.
This
argument does not hold water.
Rape can be commi9tted even in
places where people congregate,
in parks, along the roadside,
within school premises, inside a
house where there are other
occupants, and even in the same
room in the presence of other
members of the family.
|An
overpowering wicked urge has
been shown not to be deterred by
circumstances of time or place.

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 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,
when a rape victim becomes
paralyzed with fear, she cannot
be expected to think and act
coherently,
her
failure
to
immediately take advantage of
the early opportunity to escape
does not automatically vitiate the
credibility
of
her
account.
"Complainant cannot be faulted
for not taking any action
inasmuch as different people
react differently to a given type of
situation, there being no standard
form
of
human
behavioral
response when one is confronted
with a strange, startling or frightful
experience."
(PP
-vsVICENTE
BALORA
Y
DELANTAR, G.R. No. 124976,
May 31, 2000)

DEATH PENALTY CANNOT BE

IMPOSED
WHEN
INFORMATION
FAILED
TO
INDICATE THE AGE OF THE
VICTIM AND HER CORRECT
RELATIONSHIP
WITH
THE
ACCUSED
The penalty of death
cannot be properly imposed since
the indictment has failed to
indicate the age of the victim and
her correct relationship with
appellant, concurrent qualifying
circumstances, essential in the
imposition
of
that
penalty.
Furthermore, appellant is not a
"parent, ascendant, step-parent,
guardian,
relative
by
consanguinity or affinity within the
third civil degree, or the commonlaw spouse of the parent of the
victim." The latter's grandmother,
Remedios
Lustre,
herself
acknowledges that appellant has
just for a time been her commonlaw husband.
(PP -vsFEDERICO
LUSTRE
Y
ENCINAS, G.R. No. 134562,
April 6, 2000)

EACH AND EVERY RAPE

ALLEGED MUST BE PROVEN

69

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 doubt. The
victim's testimony was overly
generalized and lacked specific
details on how each of the
alleged sixteen rapes was
committed. Her bare statement
that she was raped so many
times on certain weeks is clearly
inadequate
and
grossly
insufficient to establish the guilt of
accused-appellant insofar as the
other sixteen rapes charged are
concerned. In People vs. Garcia
this Court succinctly observed
that:

allegedly without the consent of

complainant. During this period,
four children were born to
complainant
and
accusedappellant.
Complainant
and
accused-appellant
practically
cohabited,
choosing
the
baptismal sponsors for their
children, and even inviting friends
and relatives to the feasts. The
relationship was known to
neighbors.
Thus,
their
relationship might be incestuous,
but it was not by reason of force
or intimidation. For their part,
while
in
the
beginning
complainant's mother and sisters
may have disapproved of the
relationship, in the end, it would
appear that subsequently they
just turned a blind eye on the
whole affair. Given these facts,
we cannot say that on September
19, 1995 when accused-appellant
had sexual intercourse with
complainant, he committed rape.
(People v. Villalobos, G.R.
134294, 05/21/2001)

xxx
the indefinite testimonial
evidence that complainant was
raped every week is decidedly
inadequate
and
grossly
insufficient to establish the guilt of
appellant therefor with the
required quantum of evidence.
So much of such indefinite
imputations of rape, which are
uncorroborated by any other
evidence fall within this category.
(PP -vs- EDMUNDO DE LEON
Y JESUS, G.R. No. 130985,
Dec. 3, 1999)

THE DELAY AND INITIAL

RELUCTANCE OF A RAPE
VICTIM TO MAKE PUBLIC THE
ASSAULT ON HER VIRTUE IS
NEITHER
UNKNOWN
OR
UNCOMMON.
AS HELD IN
LTHE CASE OF PEOPLE VS.
MALAGAR

AT THE START THERE MUST

BE RAPE, BUT SUBSEQUENT
EVENTS MAY BECOME A
FACTOR
THAT
THE
REALTIONSHIP,
ALTHOUGH
INCESTOUS,
CONVICTION
FOR RAPE CANNOT BE HAD

"Vacillation in the filing of

complaint by rape victim is not an
uncommon phenomenon. This
crime is normally accompanied
by the rapist's threat on the
victim's life, and the fear can last
for quit a while. There is also the
natural reluctance of a woman to
admit
her
sullied
chastity,
accepting thereby all the stigma it
leaves, and to then expose
herself to the 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
her
vindication
and
the
punishment of the rapist.
In
People vs. Coloma (222 SCRA
255) we have even considered an
8-year delay in reporting the long
history of rape by the victim's
father as understandable and so

"Complainant could have

been raped the first time
accused-appelant had carnal
knowledge of her, when she was
13 years old. This however, is not
a prosecution for such rape.
When she complained of having
been raped in this case, she was
already 30 or 31 years old, 17 or
18 years after she had been
allegedly ravished for the first
time by her father, the herein
accused-appelant. During the
said period of 17 or 18 years,
neither complainant nor her
parents denounced accusedappellant despite the fact that he
continued to have sexual relation

70

not enough to render incredible

the complaint of a 13-year old
daughter. (PP -vs- CONRADO
CABANA @ RANDY, G.R. No.
127124, May 9, 2000)

RELATIONS OF COMPLAINANT
AND ACCUSED IMPELS THE
COMPLAINANT
OR
HER
RELATIVES
TO
FILE
COMPLAINT
OF
RAPE
AGAINST THE ACCUSED BUT
DID NOT PROSPER

WHEN THERE IS A SEPARATE

CRIME
OF
RAPE
AND
ROBBERY IS COMMITTED

Thus in People vs.

Lamarroza, a case involving an
eighteen-year
old
woman
"intellectually weak and gullible,"
the Court found that the alleged
victim's family was "obviously
scandalized and embarrassed by
(the victim) Elena's 'unexplained'
pregnancy," prompting them to
cry "rape." The Court acquitted
the accused.

As
related
by
Private
Complainant Amy de Guzman,
accused-appellant
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 undress, and gained
carnal knowledge of her against
her will and consent. Thereafter,
he ordered her to proceed
upstairs to get some clothes, so
he could bring her out, saying he
was not leaving her alive. At this
point, appellant conceived the
idea of robbery because, before
they could reach the upper floor,
he suddenly pulled Amy down
and started mauling her until she
lost consciousness; then he freely
ransacked the place. Leaving
Amy for dead after repeatedly
banging her head, first on the
wall, then on the toilet bowl, he
took her bracelet, ring and
wristwatch. He then proceeded
upstairs where he took as well the
jewelry box containing other
valuables belonging to his victim's
employer.

In People vs. Domogoy,

private complainant was seen
having sexual intercourse in the
school premises with appellant
therein by the latter's co-accused.
"It is thus not farfetched," the
Court held, "for complainant to
have instituted the complainant
for rape against the three to avoid
being bruited around as a woman
of loose morals."
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 sexual
intercourse on a stage near the
vicinity where the JS program
was being held and prying eyes
and ears abound."

Under
these
circumstance,
appellant cannot be convicted of
the special complex crime of
robbery with rape.
However,
since it was clearly proven
beyond reasonable doubt that he
raped Amy de Guzman and
thereafter robbed her and Ana
Marinay of valuables totaling
P16,000.00, he committed two
separate offenses -rape with the
use of deadly weapon and simple
robbery
with
force
and
intimidation against persons.

In People vs. Bawar, the

complainant was caught in
flagrante by her sister-in-law
engaging in sexual intercourse
with the accused, a neighbor.
The Court gathered from the
complainant's testimony that "she
filed the case because she
thought it would be better to cry
'rape' and bring suit to salvage
and redeem her honor, rather
than have reputation sullied in the
community by being bruited
around and stigmatized as an
adulterous woman."

CASES
WHEREIN
THE
SCANDAL RESULTING FROM

71

People vs. Godoy also

involved
an
adulterous
relationship
between
the
accused, who was married, and
his seventeen-year old student.
In acquitting the accused, the
Court held:

the court would take the cudgels

for them than for the woman to
admit
her
own
acts
of
indiscretion. (PP -vs- ERWIN
AGRESOR, G.R. Nos. 11983739, Dec. 9, 1999)

The Court takes judicial

cognizance of the fact that in
rural areas in 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 character
humiliates their entire families. It
could
precisely
be
that
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, she had to
weave the scenario of this rape
drama.

JUDGES SHOULD NOT BE

OVERLY
PROTECTIVE
OF
EVERY WOMAN IN RAPE
CASES. THEY MUST LOOK AT
THE CHARGE WITH EXTREME
CAUTION
AND
CIRCUSMPECTION
Rape is a very emotional
word, and the natural human
reactions to it are categorical:
sympathy for the victim and
admiration for her in publicly
seeking
retribution
for
her
outrageous
misfortune,
and
condemnation of the rapist.
However, being interpreters of the
law and dispensers of justice,
judges must look at a rape charge
without those proclivities and deal
and with it with extreme caution
and circumspection.
Judges
must free themselves of the
natural
tendency
to
be
overprotective of every woman
decrying
her
having
been
sexually abused and demanding
punishment for the abuser. While
they ought to be cognizant of the
anguish and humiliation 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.
(PP -vsEDWIN LADRILLO, G.R. No.
124342, Dec. 8, 1999)

Here, the elopement of a

thirteen-year
old
with
her
nineteen-year old second cousin
no doubt caused quite a tempest
in
the
otherwise
serene
community of Vintar, Ilocos Norte.
That complainant's parents were
against their relationship, as
evidenced in one of her letters,
makes it more likely that the
charges of rape were instigated to
salvage the complainant's and
her family's honor.
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 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 uncovered, the alleged victim
or her parents for that matter
would take the risk of instituting a
criminal action in the hope that

SEXUAL HARASSMENT LAW

(RA 7877)
WORK,
EDUCATION
OR
TRAINING-RELATED
SEXUAL
HARASSMENT
DEFINED.
Work, education or trainingrelated sexual harassment is
committed by an employer,
employee, manager, supervisor,
agent of the employer, teacher,

72

instructor,
professor,
coach,
trainor, or any other person who,
having authority, influence or
moral ascendancy over another in
a work or training or education
environment, demands, requests
or otherwise requires any sexual
favor from the other, regardless of
whether the demand, request or
requirement for submission is
accepted by the object of said
Act.

(2)

WHEN SEXUAL HARASSMENT

IS COMMITTED:

(3)

Work, Education or Training-related

Sexual Harassment Defined
Work,
education
or
training-related
sexual
harassment is committed by an
employer, employee, manager,
supervisor, agent of the employer,
teacher, instructor, professor,
coach, trainor, or any other
person who, having authority,
influence or moral ascendancy
over another in a work or training
or
education
environment,
demands, requests or otherwise
requires any sexual favor from
the other, regardless of whether
the
demand,
request
or
requirement for submission is
accepted by the object of said
Act.

In an education or training
environment:
(1)

(2)

(3)

In work-related or employment
environment:
(1)

any
way
would
discriminate, deprive
or
diminish
employment
opportunities
or
otherwise adversely
affect
said
employee;
The above acts
would impair the
employee's rights or
privileges
under
existing labor laws;
or
The above acts
would result in an
intimidating, hostile,
or
offensive
environment for the
employee.

The sexual favor is

made as a condition
in the hiring or in the
employment,
reemployment
or
continued
employment of said
individual,
or
in
granting
said
individual favorable
compensation,
terms,
conditions,
promotions,
or
privileges; or the
refusal to grant the
sexual favor results
in
limiting,
segregating
or
classifying
the
employee which in

(4)

Against one who is

under
the
care,
custody
or
supervision of the
offender;
Against one whose
education, training,
apprenticeship
or
tutorship
is
entrusted to the
offender;
When the sexual
favor is made a
condition
to
the
giving of a passing
grade,
or
the
granting of honors
and scholarships or
the payment of a
stipend, allowance
or other benefits,
privileges,
or
considerations; or
When the sexual
advances result in
an
intimidating,
hostile or offensive
environment for the
student, trainee or
apprentice.
Any person who
directs
or
induces
another to commit any
act of sexual harassment
as herein defined, or who
cooperates
in
the
commission thereof by

73

another without which it

would not have been
committed, shall also be
held liable under this Act.

such fine and imprisonment at the

discretion of the court: Provided,
That if the violation is committed
by a foreigner, he shall also be
subject to deportation.

CHILD AND YOUTH WELFARE

CODE
( PD 603 with Amendments)

CARE
OF
YOUTHFUL
OFFENDER
HELD FOR EXAMINATION OR
TRIAL

RELIGIOUS INSTRUCTION
A youthful offender held for
physical and mental examination
or trial or pending appeal, if
unable to furnish bail, shall from
the time of his arrest be
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 the
absence of any such center or
agency within a reasonable
distance from 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 or
other
agency
or
agencies
authorized by the Court, release a
youthful
offender
on
recognizance, to the custody of
his parents or other suitable
person who shall be responsible
for his appearance whenever
required.

The religious education of

children in all public and private
schools is a legitimate concern of
the Church to which the students
belong. All churches may offer
religious instruction in public and
private elementary and secondary
schools,
subject
to
the
requirements of the Constitution
and existing laws.
TERMINATION OF RIGHTS OF
PARENTS
When a child shall have been
committed to the Department of
Social Welfare or any duly
licensed child placement agency
or individual pursuant to an order
of the court, his parents or
guardian shall thereafter exercise
no authority over him except upon
such conditions as the court may
impose.
VIOLATION OF PD 603 BY A
CHILD
Prohibited Acts:

SUSPENSION OF SENTENCE
AND COMMITMENT
OF YOUTHFUL OFFENDER

It shall be unlawful for any child to

leave the person or institution to
which he has been judicially or
voluntarily committed or the
person under whose custody he
has been placed in accordance
with the next preceding article, or
for any person to induce him to
leave such person or institution,
except in case of grave physical
or moral danger, actual or
imminent, to the child.
Any violation of this article shall
be
punishable
by
an
imprisonment of not more than
one year or by a fine of not more
than two thousand pesos, or both

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 court
shall determine the imposable
penalty, including any civil liability
chargeable against him. However,
instead of pronouncing judgment
of conviction, the court shall
suspend all further proceedings
and shall commit such minor to
the custody or care of the
Department of Social Welfare, or

74

to any training institution operated

by the government, or duly
licensed agencies or any 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 reports and
recommendations
of
the
Department of Social Welfare or
the agency or responsible
individual under whose care he
has been committed.

whenever required. However, in

the case of those whose cases
fall
under
the
exclusive
jurisdiction
of
the
Military
Tribunals, they may be committed
at any military detention or
rehAbilitation center.
PD 1210
ARTICLE 192 OF PD 603 AS
AMENDED IS FURTHER
AMENDED TO READ AS
FOLLOWS:

The youthful offender shall be

subject
to
visitation
and
supervision by a representative of
the Department of Social Welfare
or any duly licensed agency or
such other officer as the Court
may designate subject to such
conditions as it may prescribe.

"Art. 192.
Suspension
of
sentence and Commitment of
Youthful Offender. - 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 court,
shall determine the imposable
penalty, including any civil liability
chargeable against him. However,
instead of pronouncing judgment
of conviction, the court upon
application
of
the
youthful
offender and if it finds that the
best interest of the public as well
as that of the offender will be
served thereby, may suspend all
further proceedings and commit
such minor to the custody or care
of the Department of Social
Services and Development or to
any training institution operated
by the government or any 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 reports and
recommendations
of
the
Department of Social Services
and
Development
or
the
government training institution or
responsible person under whose
care he has been committed.

PD 1210
ARTICLE 191 OF PD 603 IS
HEREBY
AMENDED TO READ AS
FOLLOWS
"Article 101.
Care of Youthful
Offender Held for Examination or
Trial. - A youthful offender held for
physical and mental examination
or trial or pending appeal, if
unable to furnish bail, shall from
the time of his arrest be
committed 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 responsible for
his appearance in court whenever
required: Provided, that in the
absence of any such center or
agency within a reasonable
distance from 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 Services &
Development or other agency or
agenciesWauthorized
by
the
CouRt, rElease a youthFul
offender onWrecognizance, to the
custody of his parents or other
suitable persoN who shall be
responsible for his appearance

Upon receipt of the

application
of
the
youthful
offender for suspension of his
sentence, the court may require
the
Department
of
Social
Services and Development to
prepare and submit to the court a
social case study report over the
offender and his family.

75

The Youthful offender

shall be subject to visitation and
supervision by a representative of
the
Department
of
Social
Services & Development or
government training institution as
the court may designate subject
to such conditions as it may
prescribe.

his sentence with the full time

spent in actual commitment and
detention effected under the
provisions of this Chapter."

RA 7610
CHILD ABUSE LAW

The benefits of this article

shall not apply to a youthful
offender who has once enjoyed
suspension of sentence under its
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 by the
Military Tribunals.

CHILD PROSTITUTION AND

OTHER SEXUAL ABUSE
Children, whether male or female,
who for money, profit, or any
other consideration or due to the
coercion or influence of any adult,
syndicate or group, indulge in
sexual intercourse or lascivious
conduct, are deemed to be
children exploited in prostitution
and other sexual abuse.

PD 1179
APPEAL
The order of the court denying an
application for suspension of
sentence under the provisions of
Article 192 above shall not be
appealable."

The penalty of reclusion temporal

in its medium period to reclusion
perpetua shall be imposed upon
the following:
(a)
Those who engage in or
promote, facilitate or induce child
prostitution which include, but are
not limited to, the following:

RETURN OF THE YOUTHFUL

OFFENDER TO THE COURT
Whenever the youthful
offender
has
been
found
incorrigible or has 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 returned to the committing
court for the pronouncement of
judgment.
When
the
youthful
offender has reached the age of
twenty-one while in commitment,
the court shall determine whether
to dismiss the case in accordance
with the extent preceding article
or to pronounce the judgment
conviction. In the latter case, the
convicted offender may apply for
probation under the provisions of
Presidential Decree Numbered
Nine Hundred and Sixty-Eight.

(1) Acting
as
a
procurer of a child
prostitute;
(2) Inducing
a
person to be a client of
a child prostitute by
means of written or oral
advertisements or other
similar means;
(3) Taking advantage
of
influence
or
relationship to procure
a child as prostitute;
(4) Threatening
or
using violence towards
a child to engage him
as a prostitute; or
(5) Giving monetary
consideration goods or
other pecuniary benefit
to a child with intent to
engage such child in
prostitution.

In any case covered by

this article, the youthful offender
shall be credited in the service of

(b)
Those who commit the
act of sexual intercourse of
lascivious conduct with a child

76

exploited in prostitution or subject

to other sexual abuse; Provided,
That when the victims is under
twelve (12) years of age, the
perpetrators shall be prosecuted
under Article 335, paragraph 3,
for rape and Article 336 of Act No.
3815, as amended, the Revised
Penal Code, for rape or lascivious
conduct, as the case may be:
Provided, That the penalty for
lascivious conduct when the
victim is under twelve (12) years
of age shall reclusion temporal in
its medium period; and

principals of the attempt to

commit the crime of child
prostitution under this Act, or, in
the proper case, under the
Revised Penal Code.
CHILD TRAFFICKING
Any person who shall
engage in trading and dealing
with children including, but not
limited to, the act of buying and
selling of a child for money, or for
any other consideration, or barter,
shall suffer the penalty of
reclusion temporal to reclusion
perpetua. The penalty shall be
imposed in its maximum period
when the victim under twelve (12)
years of age.

(c)
Those who derive profit
or advantage therefrom, whether
as manager or owner of the
establishment
where
the
prostitution takes place, or of the
sauna, disco, bar, resort, place of
entertainment or establishment
serving as a cover or which
engages in prostitution in addition
to the activity for which the
license has been issued to said
establishment.

ATTEMPT TO COMMIT
CHILD TRAFFICKING
There is an attempt to
commit child trafficking under
Section 7 of this Act:

ATTEMPT TO COMMIT
CHILD PROSTITUTION

(a)
When a child
travels alone to a foreign
country without
valid
reason
therefor
and
without clearance issued
by the Department of
Social
Welfare
and
Development or written
permit or justification from
the child's parents or
legal guardian;

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 found
alone with the said child inside
the room or cubicle of a house,
an inn, hotel, motel, pension
house, apartelle or other similar
establishments, vessel, vehicle or
any other hidden or secluded
area under circumstances which
would lead a reasonable person
to believe that the child is about
to be exploited in prostitution and
other sexual abuse.

(b)
When a person,
agency, establishment or
child-caring
institution
recruits
women
or
couples to bear a children
for the purpose of child
trafficking; or

There is also an attempt

to commit child prostitution, under
paragraph (b) of Section 5 hereof
when any person is receiving
services from a child in a sauna
parlor or bath, massage clinic,
health club and other similar
establishments. A penalty lower
by two (2) degrees than that
prescribed for the consummated
felony under Section 5 hereof
shall be imposed upon the

(c)
When
doctor,
hospital or clinic official or
employee,
nurse,
midwife,
local
civil
registrar or any other
person simulates birth for
the purpose of child
trafficking;
(d)
When a person
engages in the act of
finding children among

77

low-income
families,
hospitals,
clinics,
nurseries,
day-care
centers, or other childduring institutions who
can be offered for the
purpose
of
child
trafficking.

(a)
Any person who
shall commit any other acts of
child abuse, cruelty or exploitation
or to be responsible for other
conditions prejudicial to the child's
development including those
covered by Article 59 of
Presidential Decree No. 603, as
amended, but not covered by the
Revised
Penal
Code,
as
amended, shall suffer the penalty
of prision mayor in its minimum
period.

A penalty lower two (2)

degrees than that prescribed for
the consummated felony under
Section 7 hereof shall be imposed
upon the principals of the attempt
to commit child trafficking under
this Act.

(b)
Any person who
shall keep or have in his company
a minor, twelve (12) years or
under or who in ten (10) years or
more his junior in any public or
private place, hotel, motel, beer
joint,
discotheque,
cabaret,
pension
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 fine of not less than
Fifty thousand pesos (P50,000):
Provided, That this provision shall
not apply to any person who is
related within the fourth degree of
consanguinity or affinity or any
bond recognized by law, local
custom and tradition or acts in the
performance of a social, moral or
legal duty.

OBSCENE PUBLICATIONS
AND INDECENT SHOWS
Any person who shall
hire, employ, use, persuade,
induce or coerce a child to
perform in obscene exhibitions
and indecent shows, whether live
or in video, or model in obscene
publications
or
pornographic
materials or to sell or distribute
the said materials shall suffer the
penalty of prision mayor in its
medium period.
If the child used as a
performer,
subject
or
seller/distributor is below twelve
(12) years of age, the penalty
shall be imposed in its maximum
period.

(c)
Any person who
shall induce, deliver or offer a
minor to any one prohibited by
this Act to keep or have in his
company a minor as 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,
stepparent or guardian of the
minor, the penalty to be imposed
shall be 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 ascendant, guardian,

or person entrusted in any
capacity with 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 medium
period.
OTHER ACTS OF NEGLECT,
ABUSE,
CRUELTY OR EXPLOITATION
AND
OTHER
CONDITIONS
PREJUDICIAL
TO
THE
CHILDS
DEVELOPMENT

(d)
Any
person,
owner, manager or one entrusted
with the operation of may public
or
private
place
of

78

accommodation,
whether
for
occupancy,
food,
drink
or
otherwise, including residential
places, who allows 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 and a fine of not
less than Fifty thousand pesos
(P50,000), and the loss of the
license to operate such a place or
establishment.

entrusted to the care of the

department of Social Welfare and
Development.
CHILDREN

(2)

(3)

ZONES

OF

Children
are
hereby
declared as Zones of Peace. It
shall be the 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 this objective, the
following
policies
shall
be
observed.

(e)
Any person who
shall use, coerce, force or
intimidate a street child or any
other child to :
(1)

AS

PEACE

Beg or use begging

as a means of
living;
Act as conduit or
middlemen in drug
trafficking
or
pushing; or
Conduct any illegal
activities,
shall
suffer the penalty of
prision correccional
in
its
medium
period to reclusion
perpetua.

(a)
Children shall not
be the object of attack and shall
be entitled to special respect.
They shall be protected from any
form of threat, assault, torture or
other
cruel,
inhumane
or
degrading treatment;
(b)
Children shall not
be recruited to become members
of the Armed Forces of the
Philippines of its civilian units or
other armed groups, nor be
allowed to take part in the
fighting, or used as guides,
couriers, or spies;

For purposes of this Act,

the penalty for the commission of
acts punishable under Articles
248, 249, 262, paragraph 2, and
263, paragraph 1 of Act No. 3815,
as amended, the Revised Penal
Code, for the crimes of murder,
homicide,
other
intentional
mutilation, and serious physical
injuries, 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 337, 339, 340 and
341 of Act No. 3815, as
amended, the Revised Penal
Code, for the crimes of qualified
seduction, acts of lasciviousness
with the consent of the offended
party, corruption of minors, and
white slave trade, respectively,
shall bEWOne ( dEgree higher
tHan thatWimposed by law when
the victim is under twelve (12)
years age.
The victim of the acts committed
under this section shall be

(c)
Delivery of basic
social
services
such
as
education, primary health and
emergency relief services shall be
kept unhampered;
(d)
The safety and
protection of those who provide
services including those involved
in fact-finding missions from both
government and non-government
institutions shall be ensured.
They shall not be subjected to
undue
harassment
in
the
performance of their work;
(e)
Public
infrastructure such as schools,
hospitals and rural health units
shall not be utilized for military
purposes such as command
posts, barracks, detachments,
and supply depots; and
(f)
All
appropriate
steps shall be taken to facilitate

79

the reunion of families temporarily

separated due to armed conflict.

agency or responsible individual

under whose care he has been
committed.

RIGHTS
OF
CHILDREN
ARRESTED
FOR REASONS RELATED TO
ARMED CONFLICT

The aforesaid child shall

subject
to
visitation
and
supervision Development or any
duly-licensed agency such other
officer as the court may designate
subject to such conditions as it
may prescribe.
The aforesaid child whose
sentence is suspended can
appeal from the order of the court
in the same manner as appeals in
criminal cases.

Any child who has been

arrested for reasons related to
armed
conflict,
either
as
combatant, courier, guide or spy
is entitled to the following units;
(a)
Separate
detention from adults
except where families are
accommodated as family
units;
(b)
Immediate
free
legal assistance;
(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)
hours to the custody of
the Department of Social
Welfare
and
Development
or
any
responsible member of
the
community
as
determined by the court.

CONFIDENTIALITY
At the instance of the
offended party, his name may be
withheld from the public until the
court acquires jurisdiction over
the case.
It shall be unlawful for
any editor, publisher, and reporter
or 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 the
movie industry, to cause undue
and sensationalized publicity of
any case of violation of this Act
which results in the moral
degradation and suffering of the
offended party.

If after hearing the

evidence
in
the
proper
proceedings the court should find
that the aforesaid child committed
the acts charged against him, the
court
shall
determine
the
imposable penalty, including any
civil liability chargeable against
him.
However,
instead
of
pronouncing
judgment
of
conviction,
the
court
shall
suspend all further proceedings
and shall commit 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 duly-licensed
agencies or any other responsible
person, until he has had reached
eighteen (18) years of age or, for
a shorter period as the court may
deem proper, after considering
the reports and recommendations
of the Department of Social
Welfare and Development or the

PEDOPHILIA IS NOT INSANITY

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 center, pedophilia
being dissimilar to insanity.
RA 7658
EMPLOYMENT OF CHILDREN
Children below fifteen (15) years
of age shall not be employed
except:
1)
When a child
works directly under the sole

80

responsibility of 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 development; Provided,
further, That the parent or legal
guardian shall provide the said
minor child with the prescribed
primary
and/or
secondary
education; or

Employment which shall ensure

observance of the child.
The Department of Labor
and
Employment
shall
promulgate rules and regulations
necessary for the effective
implementation of this Section."
IF MINOR DO NOT APPLY FOR
SUSPENSION OF SENTENCE
IT IS
DEEMED
WAIVED.
THE
COURT CANNOT
MOTU PROPIO GIVE HIM THE
BENEFITS
OF ART. 192

2)
Where a child's
employment or participation in
public
entertainment
or
information
through
cinema,
theater, radio or television is
essential:
Provided,
The
employment
contract
is
concluded by the child's parents
or legal guardian, with the
express agreement of the child
concerned, if possible, and the
approval of the Department of
Labor and Employment: and
Provided, That the following
requirements in all instances are
strictly complied with:

The record, unfortunately

for accused-appellant Buena,
does not show that he filed with
the trial court an application for
suspension of 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 this privilege.

(a)
The
employer
shall
ensure
the
protection, health, safety,
morals
and
normal
development of the child;
(b)
The
employer
shall institute measures
to prevent the child's
exploitation
or
discrimination taking into
account the system and
level of remuneration,
and the duration and
arrangement of working
time; and
(c)
The
employer
shall
formulate
and
implement, subject to the
approval and supervision
of competent authorities,
a continuing program for
training
and
skills
acquisition
of
the
requirements.

DISCHARGE; REPORT AND

ECOMMENDATION
OF THE DEPARTMENT OF
SOCIAL WELFARE,
SUBJECT TO JUDICIAL
REVIEW
It is not the responsibility
of this Court to order the release
of accused Ricky Galit without the
benefit of a review of the
recommendation
of
the
Department of Social Welfare by
the trial court. Art 196 of PD 603
provides: "Art. 196. Dismissal of
the case. If it is shown to the
satisfaction of the court that the
youthful offender whose sentence
has been suspended, has
behaved properly and has shown
his capability to be a useful
member of 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 the
DSWD
recommends
the
discharge of a youthful offender, it
is the trial court before whom the

In the above exceptional

cases where any such child may
be employed, the employer shall
first secure, before engaging such
child, a work permit from the
Department
of
Labor
and

81

report and recommendation is

subject
to
judicial
review.
Recommendation alone is not
sufficient to warrant the release of
a youthful offender. In reviewing
the DSWD's recommendation, the
trial judge must not base his
judgment on mere conclusions
but should seek out concrete,
material and relevant facts to
confirm that the youthful offender
has indeed been reformed and is
ready to re-enter society as a
productive
and
law-abiding
citizen. Caution, however, is given
to the trial court. To begin with,
the youthful offender is not to be
tried inew for the same act for
which he was charged. The
inQuiry is not a CriminaL
prosecution but is ratheR limited
to the determination of the
offender'sWproper education and
rehabilitation
during
his
commitment in the Training
Center and his moral and social
fitness to re-join the community.
(Pp. V. Galit; GR 97432, 3/1/94)

imprisonment or to one
who is convicted for an
offense by the Military
Tribunals." (Par. 4, Sec.
2, P.D. No. 1179, as
amended by P.D. No.
1210; emphasis supplied)
(Pp.

v.

Galit,

supra.)

YOUTHFUL OFFENDER, TO BE
CRIMINALLY
LIABLE,
ACCUSED, A 13 YEAR OLD,
MUST
ACT
WITH
DISCERNMENT
There
is
a
further
obstacle that stands in the way of
Estorque's conviction. While it
has been proven that he was only
thirteen years old at the time of
the incident, there are no
allegations in both informations
that Estorque had acted with
discernment. And even if we are
to consider the allegations that he
had committed the imputed acts
"with intent to kill" as sufficient
compLiance As we hAve in the
past he wou,d still not be held
liable as no proof was offered
during trial that he had so acted
with discernment. Accordingly,
even if he was indeed a coconspirator or an accessory, he
would still be exempt from
criminal liability. (Pp. V. Cordo~a;
GR 83373-74, 7/5/93)

SUSPENSION OF SENTENCE
NOT APPLICABLE
IF PENALTY IS RECLUSION
PERPETUA,
LIFE
IMPRISONMENT
OR
DEATH
As aforesaid, however,
accused Ricky Galit and Raquel
Tagalog did not appeal from the
judgment of the trial court. Neither
did the People question the
suspension of their sentence. The
benefits
of
suspension
of
sentence are not available where
the youthful offender has been
convicted
of
an
offense
punishable by life imprisonment
or death. The last paragraph of
section 2 of Presidential Decree
No. 1210, which amended certain
provisions of P.D. 603, provides:

EVERY
ACCUSED
IS
PRESUMED TO BE SANE AT
THE TIME OF COMMISSION OF
THE CRIME

"The benefits of
this article shall not apply
to a youthful offender who
has
once
enjoyed
suspension of sentence
under its provisions or to
one who is convicted of
an offense punishable by
death
or
life

The law presumes all

acts to be voluntary, and that it is
improper To presume that acts
were done uNconsciously. The
quantUm of eviDence required to
overthrow the presumption of
sanity is proof beyond reasonable
doubt. Since insanity is in the

82

nature of a confession and

avoidance, it musT be proven
beyond
reasonaBle
doubt.
Moreover,
an
accused
is
presumed to have been sane at
the time of the commission of the
crime in the absence of pOsitive
evidence to show that he had lost
his reason or was demented priOr
to or during the Perpetration of
the crime.
(Pp. v. Cordova, supra.)

SUSPENSION OF SENTENCE;
CANNOT
BE AVAILED OF WHERE
OFFENDER IS ALREADY OVER
21 YEARS OLD AT THE
TIMEOOF PROMULGATION OF
HIS SENTENCE
It is true that Venancio
Villanueva
was
a
youthful
offendez as defined by Art. 19
because he was under 21
yearsWoF
AGe
when
he
coMmitteD the oFfense on
February 22, 1974. However,
when he was sentenced on JuLy
30, 1975, he was over 21 years
old and under the terms of Art.
192 (as well as Art. 197) he was
no longer entitled to suspension
of sentence. (Villanueva v. CFI;
GR L-45798, 12/15/82)

FAILURE OF DEFENSE TO ASK FOR

SUSPENSION OF ARRAIGNMENT
NEGATES INSANITY
Appellant
Eduardo
Cordova did not even ask for the
suspension of his arraignment on
the ground that he was suffering
from insanity. Paragraph (a),
Section 12, Rule 116 of the
Revised Rules of Court provides
that the 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.)

WHEN PRESIDENTIAL DECREE

NO. 603
MAY BE GIVEN RETROACTIVE
EFFECT
Where P.D. 603 is more
favorable to the accused in that
the 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 the laudable
policies for which the P.D.
otherwise known as the Child and
Youth
Welfare
Code
was
promulgated, hut also in the light
of the provisions of Article 22 of
the Revised Penal Code. (People
v. Garcia;
GR L-45280-81,
6/11/81)

CHILD & YOUTH WELFARE

CODE,
NOT APPLICABLE TO DEATH
OR
RECLUSION
PERPETUA
SENTENCE
The Child and Youth
Welfare Code does not apply to
those convicted of offenses
punishable by death, or reclusion
perpetua (Presidential Decree
No. 603, as amended by
Presidential Decree N. 603, as
amended by Presidential Decree
Nos. 1179 and 1210). The fact is
Bolioc is 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).
(Pp. V. Mendez; GR L-48131;
5/30/83)

PRESIDENTIAL DECREE NO.

603;
ALTERNATIVE COURSES OF
ACTION
OF
THE
COURT
WHEN
YOUTHFUL
OFFENDER
IS
RETURNED
AFTER
REACHING THE AGE OF
MAJORITY
The trial court has two
alternative courses of action with
respect to a youthful offender
whose
sentence
it
had

83

suspended and who is returned to

the court upon his reaching the
age of majority. These are: (1) to
dismiss the case and order the
final dischargeWof said offender;
or (2) to prOnounce the judgment
of conviction. InWPlain and
siMpLe language, It is either
dismIssal or sENtence. (Pp. V.
Garcia; supra.)

to obtain money, good, 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 protect the
rights and define the liabilities of
parties
in
commercial
transactions involving them.

CIVIL LIABILITY OF YOUTHFUL

OFFENDER, DEFINED

Essentially,
the
law
imposes duties both to the access
device issuer and holder, and
penalize certain acts deemed
unlawful for being detrimental to
either the issuer or holder, or
both.

The civil liability for

damages referred to is apparently
that obligation cReated by or
arIsing from the crime, otherwise
known as ex delicto the
imposition of which is mandated
byWArticles 100, 104(3), 107 and
345(1) of the Revised Penal
Code, (People vs. Pea, L-36434,
December 20, 1977, 80 SCRA
589, 599) and is based upon a
finding of the guilt of the accused.
(Pp. V. Garcia, supra.)

The law mandates an

access device issuer, or "card
issuer," to disclose either in
writing or orally in any application
or solicitation to open a credit
card account the following: 1)
annual percentage rate; 2) annual
and other fees; 3) and balance
calculation method; 4) cash
advance fee; and 5)) over the
limit fee.

REPUBLIC ACT NO. 8484

(The Access Device
Regulation)

Moreover,
the
computation used in order to
arrive at such charges 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.

An act regulating the

issuance and use of access
devices, prohibiting fraudulent
acts committed relative thereto,
providing penalties and for other
purposes.
The recent advances in
modern technology have led to
the extensive use of certain
devices
in
commercial
transactions, prompting the State
to regulate the same. hence, on
February 3, 1998, Congress
enacted Republic Act Number
8484, otherwise known as The
Access Devices Regulation Act of
1998.

Nonetheless, there are

certain exceptions for the above
requirement of disclosure not to
apply. This is when application or
solicitation is made through
telephone, provided that the
issuer does not impose any
annual fee, and fee in connection
with telephone solicitation unless
the customer signifies acceptance
by using the card, and that a clear
disclosure of the information
enumerated in the preceding
paragraph is made in writing
within thirty (30) after the
consumer requests for the card,
but in no event later than the date
of the delivery of the card, and
that the consumer is not obligated
to accept the card or account and
the consumer will not be

Termed
as
"access
devices" by RA No. 8484, any
card, plate,
code, account
number, electronic serial number,
personal identification number, or
other telecommunication service,
equipment,
or
instrumental
identifier, or other means of
account access t hat can be used

84

obligated to pay any fees or

charges disclosed unless the
consumer accepts the card or
account by using the card.

device issuer's vulnerability to

abuse the provisions of the
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
promulgated.

Failure on the part of the

issuer to fulfill the above
requirements will 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 Securities and Exchange
Commission and such other
government agencies.

Nonetheless, in American
Express International Co., Inc. vs.
IAC (GR NO. 70766, November
9, 1988) Supreme Court turned
down the argument of private
respondent grounded on the
adhesion principle saying indeed,
in a contract of adhesion the
maker of the contract has all the
advantages, however, the one to
whom it is offered has the
absolute prerogative to accept or
deny the same.

In sum therefore, the

above
omission
is
made
punishable if the
following
elements occur. One, there is an
application
or
solicitation.
Second, such application or
solicitation should include the
information required by law. and
third, failure on the part of the
issuer
to
disclose
such
information.

On the other hand, an

access device holder may be
penalized when he or she
fraudulently applied for such
device.
An
access
device
fraudulently applied for means
any access device that was
applied for or issued on account
of the use of falsified document,
false
information,
fictitious
identities and addresses, or any
form of false pretense or
misrepresentation. Thus, the use,
trafficking in, possession, and
inducing, enticing or in any
manner allowing one to use
access
device
fraudulently
applied for are considered
unlawful.

In one case (Ermitano v.

GR No. 127246, April 21, 1999),
the Supreme Court had the
occasion to rule on the validity of
contracts involving credit cards.
The
credit
cards
holder
contended that the credit card
company should be blamed for
the charges the same being
unwarranted by the contract. As
stipulated, once a lost card has
been reported, purchases made
thereafter should not accrue on
the part of the holder.
The
Court
said
notwithstanding the fact that the
contract of the parties is a
contract of adhesion the same is
valid. However, if the same
should include terms difficult to
interpret as to hide the true intent
to the 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.

The element of fraud is

indispensable for this provision of
RA 8484 to apply. It is a condition
sine qua non before one may be
charged with the defined offense.
Thus, the law provides for
presumptions of Intent to defraud
on the basis of mere possession,
control or custody of: a) an
access device without 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 written not in the
ordinary
course
of
the
possessor's business; or d) any

Clearly, in this case

decided in 1999, the Court was
concerned about an access

85

genuine access device, not in the

name of the possessor.

on the other hand, fraudulently

misrepresents himself by giving
wrong identity, false profession or
employment, or bloated income.

A card holder who

abandons
or
surreptitiously
leaves the place of employment,
business or residence stated in
his application for credit card,
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
outstanding and unpaid balance
is past due for at least ninety (90)
days and is more than ten
thousand pesos (P10,000.00),
shall be prima facie presumed to
have used his credit card with
intent to defraud.

Take
the
case
for
instance of Citibank v. Gatchalian
(GR No. 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.
In
this
case,
two
employees of the Asian-Pacific
Broadcasting Co,. 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 involves
an illegal dismissal case where a
Citibank employee was found
guilty of gross negligence for
effecting the delivery of the credit
cards. Her dismissal was affirmed
in this case.

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 of law. it may
be
argued
that
such
presumptions
are
rebuttable
ones. However, the danger lies in
the shifting of the burden of proof
from the prosecution to the
defense.

Insofar as access device

issuers are concerned, Eermitano
v. C.A., may be a case in point.
The credit card holder lost his
credit card which he immediately
reported to the card issuer. The
contract stipulated that in case of
lost, the same should be reported
immediately, otherwise purchases
made 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 Court in
this case held the issuer in
breach of the contract.

The law provides for

sixteen (16) prohibited acts which
refer to the production, use,
possession of or trafficking in
unauthorized
or
counterfeit
access devices. It also includes
acts deemed fraudulent that
increase the amount involved in
commercial transactions using
access devices. Obtaining money
or anything of value through the
use of an access device with
intent to defraud or gain, and
fleeing thereafter.

The penalties provided

for by RA 8484 are imprisonment
and fine. Imprisonment is from six
(6) years to ten (10) years and
fine ranges from ten thousand
pesos (10,000.00) or twice the
value of the offense, whichever is
higher.

In the final analysis, the

law basically seeks to address
the issue of fraud in the issuance
and use of access devices,
especially credit cards. Fraud
may be committed by the issuer
by making false or vague
information in the application or
solicitation to open credit card
accounts. The applicant or holder,

The
penalties
are
increased in case the offender
has a similar previous conviction,
meaning if he was previously
found violating RA 8484. In which

86

case, the accused shall suffer

imprisonment of not less than
twelve (12) years and not more
than twenty (20) years.

allowing an unlawful or suspect

consignment of any dangerous
drug and/or controlled precursor
and
essential
chemical,
equipment or paraphernalia, or
property believed to be derived
directly or indirectly from any
offense, to pass into, through or
out of the country under the
supervision of any unauthorized
officer, with a view to gathering
evidence to identify any person
involved in any dangerous drug
related offense, or to facilitate
prosecution of that offense.

The two other stages of

felony, as defined by the Revised
Penal Code is also made
punishable. Thus, attempted and
frustrated are meted out with the
penalties of imprisonment and
fine albeit only in fractions of the
above penalties.
R.A. 8484 may seem to
favor the issuer. A credit card
company may only be meted out
the penalty of cancellation or
suspension, which may be
considered
as
mere
administrative sanctions. In fact, it
is not the courts which impose
such sanctions but administrative
agencies such as the Bangko
Sentral and the Securities and
Exchange Commission.

Controlled
Precursor
and
Essential Chemicals Includes
those listed in Tables I and II of
the 1988 UN Convention Against
Illicit Traffic in Narcotic Drugs and
Psychotropic
Substances
as
enumerated in the attached
annex, which is an integral part of
this Act.
Drug Dependence As based on
the World Health Organization
definition, it is a cluster of
physiological, behavioral and
cognitive phenomena of variable
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 take the
substance and the difficulties in
controlling
substance-taking
behavior in terms of its onset,
termination, or levels of use.

On the other hand, a

holder or mere possessor of a
counterfeit fraudulently applied for
access device may be convicted
and
be
made
to
suffer
imprisonment and fine.

DANGEROUS DRUG ACT OF 2002

(Republic Acts No. 9165)
DEFINITIONS OF TERMS
Chemical Diversion the sale,
distribution, supply or transport of
legitimately imported, in-transit,
manufactured
or
procured
controlled
precursors
and
essential chemicals, in diluted,
mixtures or in concentrated form,
to any person or entity engaged
in the manufacture of any
dangerous drug, and shall include
packaging, repackaging, labeling,
relabeling or concealment of such
transaction
through
fraud,
destruction
of
documents,
fraudulent
use
of
permits,
misdeclaration, use of front
companies or mail fraud.
Controlled
Delivery

investigative
technique

Drug Syndicate Any organized

group of two (2) or more persons
forming or joining together with
the intention of committing any
offense prescribed under this Act.
Illegal Trafficking The illegal
cultivation,
culture,
delivery,
administration,
dispensation,
manufacture,
sale,
trading,
transportation,
distribution,
importation, exportation, and
possession of any dangerous
drug and/or controlled precursor
and essential chemical.
Protector/Coddler Any person
who knowingly and willfully

The
of

87

consents to the unlawful acts

provided for in this Act and uses
his/her influence, power or
position in shielding, harboring,
screening or facilitating the
escape of any person he/she
knows, or has reasonable ground
to believe on or suspects, has
violated the provision of this Act in
order to prevent the arrest,
prosecution and conviction of the
violator.

Before, only law enforcement

agents.
4. the provisions of the Revised
Penal
Code
have
no
suppletory effect except for
minors who may be sentenced
to reclusion perpatua.
What are the new kinds of
drugs
that are included in 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 transit or transports
dangerous drugs or who acts as a
broker in any of such transaction,
in violation of this Act.

Methylenedioxymethamphe
tamine (MDMA) or commonly
known as 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.
Paramethoxyamphetamine (PMA),
Trimethoxyamphetamine
(TMA),
lysergic acid diethylamine (LSD),
gamma hydroxybutyrate (GHB) and
those similarly designed or newly
introduced
drugs
and
their
derivatives, without having any
therapeutic value or if the quantity
possessed
is
far
beyond
therapeutic
requirement,
as
determined and promulgated by the
Board in accordance to Section 93,
Art XI of this Act of R.A. 9165.

Planting of evidence the willful

act by any person of maliciously
and
surreptitiously
inserting,
placing, adding or attaching
directly or indirectly, through any
overt or covert act whatever
quantity of any dangerous drug
and/or controlled precursor and
essential chemical in the person,
house, effects or in the immediate
vicinity of an innocent individual
for the purpose of implicating,
incriminating, or imputing the
commission of any violation of
this Act.

ACTS PUNISHABLE UNDER THE LAW

1.) Importation
of
any
dangerous
drug,
regardless of the quantity
and
purity
involved,
including any and all
species of opium poppy
or any part thereof or
substances
derived
thereform even for floral,
decorative and culinary
purposes.
2.) Importation
of
any
controlled precursor and
essential chemical.
3.) Importation
of
any
dangerous drug and/or
controlled precursor and
essential
chemical
through the use of a
diplomatic
passport,
diplomatic facilities or any
other means involving
his/her
official
status

What are the significant Provisions in

R.A. 6425
that have been changed?
1. Under this Act there is no more
distinction between prohibited
drug and regulated drugs
and/or controlled precursors
and
essential
chemicals
enumerated in Tables I and II
of the 1988 UN Convention
against Illicit Traffic in Narcotic
Drugs
and
Psychotropic
Substances.
2. The penalties provided by R.A.
7659 was changed , adopting
partially the penalties in R.A.
6425.
3. In planting evidence any
person now maybe held liable.

88

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.
5.) Acting
as
protector/coddler
of
anyone
who
violates
Section 4 of the Law.
6.) Sale,
trading,
administration,
dispensation, distribution
and transportation of
dangerous
drugs,
regardless of quantity
and purity involved, or
acting as a broker in any
of such transactions.
7.) Sale,
trading,
administration,
dispensation, distribution
and transportation of any
controlled precursor and
essential chemical, or
acting as a broker in such
transaction.
8.) Use by drug pushers of
minors
or
mentally
incapacitated 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. 5.
10.) Maintenance of a Den,
Dive or Resort where any
dangerous drug is used
or sold in any form.
11.) Maintenance of a Den,
Dive or Resort where
any
controlled
precursors and essential
chemical is used or sold
in any form.
12.)
Acting
as
protector/coddler of a
maintainer of a Den,
Dive, or Resort
13.) Employees and Visitors
of a Den, Drive, or
Resort
14.)
Manufacture
of
Dangerous Drugs and/or

Controlled
Precursors
and Essential Chemicals
15.) Acting as a protector or
coddler of any violator of
Sec. 8
16.)
Illegal
Chemical
Diversion of Controlled
Precursor and Essential
Chemicals.
17.) Manufacture or Delivery
of Equipment, Instrument,
Apparatus, and other
Paraphernalia
for
Dangerous Drugs and/or
Controlled
Precursors
and Essential Chemicals.
18.) Possession of Drug.
19.)
Possession
of
equipment,
Instrument,
Apparatus, and Other
Paraphernalia
for
Dangerous Drugs
20.)
Possession
of
Dangerous Drugs During
Parties, Social Gathering
or Meetings.
21.)
Possession
of
Equipment, Instrument,
Apparatus and Other
Paraphernalia
for
Dangerous Drugs during
Parties, Social Gathering
or Meetings.
22.) Use of Dangerous Drugs.
23.) Cultivation or Culture of
Plants
Classified
as
Dangerous Drugs or are
Sources thereof.
24.)
Maintenance
and
keeping
of
Original
Records of Transaction
on Dangerous Drugs
and/or
Controlled
Precursors and Essential
Chemicals
25. Unnecessary Prescription
of Dangerous Drugs
26.) Unlawful Prescription of
Dangerous Drugs
27.) Attempt or Conspiracy to
commit
the
following
unlawful
acts:
(a)
Importation
of
any
dangerous drugs and/or
controlled precursor and
essential chemical; (b)
Sale,
trading,
administration,
dispensation,
delivery,
distribution,
and
transportation of any
dangerous drug and/or

89

controlled precursor and

essential chemical; (c)
Maintenance of a den,
dive, or resort where
dangerous drugs is used
in
any
form;
(d)
Manufacture
of
any
dangerous drug and/or
controlled precursor and
essential chemical; and
(e) Cultivation or culture
of plants which are
sources of dangerous
drugs.

dangerous
drugs,
or
chemical diversion, if such
vehicle, aircraft, equipment
or other instrument is
owned by or under the
control or supervision of the
partnership,
corporation,
association
or
juridical
entity to which they are
affiliated.
CRIMINAL
LIABLITY
PUBLIC
OFFICERS
EMPLOYEES

OF
OR

1. Any public officer or

employee
who
(1)
misappropriates,
(2)
misapplies or (3) fails to
account for confiscated,
seized
or
surrendered
drugs, plant sources of
dangerous drugs, controlled
precursors and essential
chemicals,
instruments/paraphernalia
and/or
laboratory
equipment including the
proceeds or properties
obtained from the unlawful
acts punished under the
Law shall be penalized with
life imprisonment to death
and
a
fine
ranging
fromP500,000.00
to
P10,000,000.00 and with
perpetual
disqualification
from any public office
(Sec.27).

CRIMINAL LIABILITY OF
ALIENS, OFFICERS
OF PARTNERSHIP,
CORPORATION,
ASSOCIATIONS, OR OTHER
JURIDIUCAL ENTITIES
1. In addition to the penalties
prescribed in the unlawful
act committed, any alien
who
violates
such
provisions of the Law, after
service of sentences, shall
be deported immediately
without further proceedings,
unless the penalty is death.
2. In case the violation of the
Law is committed by a
partnership,
corporation,
association or any juridical
entity,
the
partner,
president,
director,
manager, trustee, estate
administrator, or officer who
consents to or knowingly
tolerates such violation
shall be held criminally
liable as co-principal.
3. The penalty provided for
the offense 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

2. Any government official or

employee found guilty of
the unlawful acts punished
under the Law shall be
imposed the maximum
penalties provided for the
offense and shall be
absolutely
perpetually
disqualified from holding
any public office. (Sec. 28).

CRIMINAL LIABILITY OF ELECTIVE

LOCAL OR NATIONAL OFFICIALS
WHO 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.

90

1. Any elective local or national official

found to have (1) benefited from the
proceeds of the trafficking of
dangerous drugs as prescribed in the
Law, or has (2) received any financial
or material contributions or donations
from natural or juridical persons found
guilty of trafficking dangerous drug as
prescribed in the law, shall be removed
from office and perpetually disqualified
from holding any elective or appointive
positions in the government, its
divisions,
subdivisions,
and
intermediaries, including governmentowned or controlled corporations
(\sec.27)

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 (Sec.35)
AGGRAVATING CIRCUMSTANCES
DRUG RELATED CASES
1.) If the importation or
bringing into the Philippines
of any dangerous drugs
and/or controlled precursor
and essential chemicals was
done through the use of
diplomatic
passport,
diplomatic facilities or any
other means involving his/her
official status intended to
facilitate the unlawful entry of
the same

CRIMINALLIABILITY OF PRIVATE
INDIVIDUAL
2. Any person found guilty of planting
any dangerous drug and/or controlled
precursor and essential chemical,
regardless of quantity and purity, shall
be punished with death. (Sec. 29).
3. Any person violating any regulation
issued by the Dangerous Drug Board
shall be punished with imprisonment
ranging from 6 months and 1 day to 4
years and a fine ranging from
P10,000.00 to P50,000.00 in addition
to the administrative sanction which
may be imposed by the Board (Sec.
32)

2.)
The
sale
trading,
administration, dispensation,
delivery,
distribution
or
transportation
of
any
dangerous
drug
and/or
controlled precursor and
essential
chemical
transpired
within
one
hundred (100) meters from
the school
3.) The drug pusher use minors
or mentally incapacitated
individuals
as
runners,
couriers and messenger, or
in any other capacity directly
connected to the dangerous
drug
and/or
controlled
precursor
and
essential
chemical trade.

CRIMINAL LIABILITY FOR

PLANTING OF EVIDENCE
Any person who is found
guilty of planting nay dangerous drug
and/ or controlled precursor and
essential chemicals, regardless of
quantity and purity, shall suffer the
penalty of death. (Sec. 29).
Previosly, only law enforcement
agent maybe held liable (R.A. 7659).

4.) The victim of the offense

is a minor or mentally
incapacitated individual, or
should a dangerous drug
and/or controlled precursor
and essential chemicals
involved `in any offense be
the proximate cause of
death of a victim.

ACCESORY PENALTIES
Any person convicted under
this Law (R.A.9165) shall be
disqualified to exercise his/her civil
rights such as, but not limited to, the
right 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

5.) In case the clandestine

laboratory is undertaken or
established under the
following circumstances:
a.) Any phase
of
the
manufacturi

91

b.)

c.)

d.)

e.)

ng process
was
conducted
in
the
presence or
with the help
of minor/s
Any phase
of
manufacturi
ng process
was
established
or
undertaken
within one
hundred
(100)
meters of a
residential,
business,
church
or
school
premises.
Any
clandestine
laboratory
was secured
or protected
with booby
traps.
Any
clandestine
laboratory
was
concealed
with
legitimate
business
operations.
Any
employment
of
a
practitioner,
chemical
engineer,
public
official
or
foreigner.

or
in
the
proximate
company of at least two (2)
person.
8.) Possession or having
under his/her control any
equipment,
instrument,
apparatus
and
other
paraphernalia fit of intended
for smoking, consuming,
administering,
injecting,
ingesting or introducing any
dangerous drug into the
body, during parties, social
gatherings or meetings, or
in the proximate company
of at least two (2) person
WHAT ARE THE PRIVILEGE NOT
AVAILABLE TO VIOLATOR OF THIS
ACT?
1.) Any person charged
under any provision
of this Act regardless
of the imposable
penalty shall not be
allowed to avail of the
provision on pleabargaining.
2.) Any person convicted
for drug trafficking or
pushing under this
Act, regardless of the
penalty imposed by
the Court, cannot
avail of the privilege
granted
by
the
Probation Law of P.D.
No.
968,
as
amended,
except
minors who are firsttime offenders.
Note:-

6.) In case the person uses

a minor or a mentally
incapacitated individual to
deliver
equipment,
instrument, apparatus and
other paraphernalia use for
dangerous drugs.

Pendency of appeal
suspend the right of the
accused
Rights
to
Selfincrimination do not refer
to giving blood.

IMMUNITY FROM PROSECUTION

AND PUNISHMENT
Immunity
from
Prosecution and punishment

Notwithstanding
the
provision of Section 17, Rule
119 of the Revised Rules of
Criminal Procedure and the

7.) Any person found

possessing any dangerous
drug during a party, or a
social gathering or meeting,

92

provisions of Republic Act No.

6981
or
the
Witness
Protection,
Security
and
Benefits Act of 1991, any
person who has violated
Sections 7,11, 12, 14, 15 and
19, Article II of this Act, who
voluntarily gives information
about any violation of Section
4, 5, 6, 8, 13 and 16, Article II
of this Act as well as any
violation of the offenses
mentioned if committed by
drug syndicate, or of any
information leading to the
whereabouts, identities and
arrest of all or any of the
members thereof; and who
willingly testifies against such
persons as described above,
shall be exempted from the
prosecution or punishment for
the offense with reference to
which his/her information of
testimony in bar of such
prosecution; Provided, that
the
following
condition
concur:

previously
convicted
of a crime
involving
moral
turpitude,
except
when
there is no
other
direct
evidence
available
for
the
State
other than
the
informatio
n
and
testimony
of
said
informant
or
witness;
and
5.) The
informant
or witness
shall
strictly
and
faithfully
comply
without
delay, any
condition
or
undertakin
g, reduced
into
writing,
lawfully
imposed
by
the
State as
further
considerat
ion for the
grant
of
immunity
from
prosecutio
n
and
punishme
nt.

1.) The
informatio
n
and
testimony
are
necessary
for
the
conviction
of
the
person
described
above;
2.) Such
informatio
n are not
yet in the
possessio
n of the
State;
3.) Such
informatio
n
and
testimony
can
be
corroborat
ed on its
material
points;
4.) The
informant
or witness
has
not
been

Provided, further, That

this immunity may be
enjoyed
by
such
informant or witness
who does not appear to
be most guilty for the

93

offense with reference

to
which
his/her
information
or
testimony were given.
Provide, finally, that
there is no direct
evidence available for
the State except for the
information
and
testimony of the said
informant or witness.

PERSON/S WHO ARE SUBJECT

TO THE MANDATORY DRUG
TESTING
a.) Applicants for drivers
license no drivers
license shall be issued or
renewed to nay person
unless he/she presents a
certification that he/she
has
undergone
a
mandatory drug test and
indicating thereon that
he/she is free from the
use of dangerous drugs.
b.) Applicants for firearms
license and permit to
carry firearms outside of
residence.

All
applicants for firearms
license and permit to
carry firearms outside of
residence shall undergo a
mandatory drug test to
ensure that they are free
from
the
use
of
dangerous
drugs;
Provided,
That
all
persons who by the
nature of their profession
carry
firearms
shall
undergo drug testing;
c.) Officers and employees
of public and private
offices. Officers and
employees of public and
private offices, whether
domestic or overseas,
shall be subjected to
undergo a random drug
test as contained in the
companys work unless
and regulation, which
shall be borne by the
employer, for purposes of
reducing the risk in the
workplace. Any officer or
employee found positive
for the sue of dangerous
drug shall be dealt with
administratively
which
shall be a ground for
suspension
or
termination, subject to the
provision Article 282 of
the Labor Code and
pertinent provisions of the
Civil Service Law.
d.) Officers and members of
the military, police and
other law enforcement
agencies. Officers and

TERMINATION OF THE
GRANT OF IMMUNITY
The
immunity
abovegranted shall not attach should
it turn out subsequently that the
information and/or testimony is
false, malicious, or made only
for the purpose of harassing,
molesting or in any way
prejudicing
the
persons
described in Section 33 against
whom such information or
testimony is directed. In such
case, the informant or witness
shall be subject to prosecution
and the enjoyment of all rights
and
benefits
previously
accorded him under the Law or
any other law, decree or order
shall be deemed terminated.
In case the informant or
witness under the Law fails or
refuse to testify without just
cause, and when lawfully
obliges to do so, or should
he/she violate any condition
accompanying such immunity
as provided above, his/her
immunity shall be removed and
he/she shall be likewise be
subjected to contempt and/or
criminal prosecution, as the
case may be and the enjoyment
of all rights and benefits
previously accorded him under
the Law or in any other law,
decree or order shall be
deemed terminated. (Sec 34.)
In case the informant or
witness referred to under the
Law falls under the applicability
of Section 34, such individual
cannot avail of the provision
under Article VIII of the Law.

94

members of the military,

police and other law
enforcement
agencies
shall undergo an annual
mandatory drug test.
e.) All
persons
charged
before the prosecutors
office with a criminal
offense
having
an
imposable penalty of
imprisonment of not less
than six (6) years and
one (1) day shall have
undergo a mandatory
drug test.
f.) All candidates for public
office whether appointed
or elected both in the
national
or
local
government
shall
undergo a mandatory
drug test.

accused, shall discharge the

accused
and
dismiss
all
proceedings.
Upon the dismissal of the
proceedings against the accused,
the court shall enter an order to
expunge all official records, other
than the confidential record to be
retained by the DOJ relating to
the case. Such an order, which
shall be kept confidential, shall
restore the accused to his/her
status prior to the case. He/she
shall not be held thereafter to be
guilty of perjury or of concealment
or misrepresentation by reason of
his/her failure to acknowledge the
case or recite any fact related
therto in response to any inquiry
madeof him for any purpose
(Sec. 67)
THE DANGEROUS DRUGS
BOARD AND
PHILIPPINE DRUG
ENFORCEMENT AGENCY

CONFIDENTIALITY OF
RECORDS UNDER
THE COMPULSARY
SUBMISSION PROGRAM

The Dangerous Drug Board

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 Section 60 of
this Act (R.A. 9165). However, the
record of a drug dependant who
was not rehabilitated, or who
escaped but did not surrender
himself/herself
within
the
prescribed period, shall be
forwarded to the court and their
use shall be determined by the
court, taking into consideration
public interest and the welfare of
the drug dependant (Sec. 64)

A. Function
The Dangerous Drug
Board shall be the policymaking
and
strategy
formulating body in the
planning and formulation
of policies and programs
on drug prevention and
control. (Sec. 77)
B. Composition
Under R.A. 6424 as
amended, the Dangerous
Drug
board
was
composed of seven ex
officio
members
as
follows: (a) The Minister of
Health
or
his
representative; (b) the
Minister of Justice or his
representative; (c) The
Minister
of
National
Defense
or
his
representative; (d) The
Minister of Education and
Culture
or
his
representative; (e) The
Minister of Finance or his
representative; (f) The
Minister of Social Service

DISCHARGED AFTER
COMPLIANCE WITH
CONDITIONS OF SUSPENDED
SENTENCE OF A FIRST-TIME
MINOR OFFENDER
If the accused first time
minor offender under suspended
sentence complies with the
applicable rules and regulation of
the Board, including confinement
in a Center, the court, upon a
favorable recommendation of the
Board for a final discharge of the

95

and Development or his

representative; and (g)
The Minister of Local
Government
or
his
representative (Sec. 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
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 which are
permanent
members,
twelve (12) shall be in ex
officio capacity, and the
remaining two (2) shall be
regular members.
The
three
(3)
permanent members, who
shall possess At least
seven-year training and
experience in the field of
dangerous drugs and in
any of the following fields:
in
law,
medicine,
criminology, psychology or
social work, shall be
appointed by the President
of the Philippines. The
President shall designate
a Chairman, who shall
have the rank of a
secretary from among the
three
(3)
permanent
members who shall serve
for six (6) years. Of the
two (2) other members,
who shall have the rank of
undersecretary, one (1)
shall serve for four (4) and
the other for two (2) years.
Thereafter, the person
appointed to succeed such
members shall hold office
for a term of six (6) years
and until their successors
shall have been duly
appointed and qualified.
The other twelve (12)
members who shall be ex
officio members of the
Board are the following:
(1) Secretary of the
Department of Justice or

his/her representative; (2)

Secretary
of
the
Department of Health or
his/her representative; (3)
Secretary
of
the
Department of National
Defense
or
his/her
representative;
(4)
Secretary
of
the
Department of Finance or
his/her representative; (5)
Secretary
of
the
Department of Labor and
Employment or his/her
representative;
(6)
Secretary
of
the
Department of Interior and
Local
Government
or
his/her representative; (7)
Secretary
of
the
Department
of
Social
Welfare and Development
or his/her representative;
(8) Secretary of the
Department of Foreign
Affairs
or
his/her
representative;
(9)
Secretary
of
the
Department of Education
or his/her representative;
(10) Chairman of the
Commission of Higher
Education
or
his/her
representative;
(11)
Chairman of the National
Youth Commission; and
(12) Director General of
the
Philippine
Drug
Enforcement Agency.
Cabinet
secretaries
who are members of the
Board may designate their
duly
authorized
and
permanent representatives
whose rank shall in no
case be lower than
undersecretary.
The two (2) regular
members shall be as
follows: (a) The President
of the Integrated Bar of the
Philippines; and (b) The
chairman or president of a
nonchairman
or
president of a nonchairman or president of a
non-government
organization involved in
dangerous drug campaign
to be appointed by the
President
of
the
Philippines.

96

The
Philippine
Enforcement
(PDEA)

relative to the use, abuse

or trafficking of any
dangerous drug and/or
controlled precursor and
essential chemicals as
provided for in this Act and
the
provisions
of
Presidential Decree No.
1619;
c.)
Administer oath, issue
subpoena and subpoena
duces tecum relative to
the
conduct
of
investigation
involving
violation of this Act;
d.)
Arrest and apprehend as well
as search all violators and
seize or confiscate, the
effects or proceeds of the
crime as provided by law
and take custody thereof,
for
this
purpose
the
prosecutors
and
enforcement agents are
authorized
to
possess
firearms, in accordance
with the existing laws;
e.)
Take charge and have
custody of all dangerous
drugs and/or controlled
precursors and essential
chemicals
seized,
confiscated or surrendered
to any national, provincial
or local law enforcement
agency; if no longer needed
for purposes of evidence in
court.
f.)
Establish
forensic
laboratories in each PNP
office in every province and
city in order to facilitate
action
on
seized
or
confiscated drugs; thereby
hastening its destruction
without delay;
g.)
Recommend to the DOJ the
forfeiture of properties and
other assets of persons
and/or corporations found
to
be
violating
the
provisions of this Act and in
accordance
with
the
pertinent provisions of the
Anti-Money Laundering Act
of 2002.
h.)
Prepare for prosecution or
cause
the
filing
of
appropriate criminal and
civil cases for violation of
laws on dangerous drugs,
controlled precursors and

Drug
Agency

A. Funct
ions
Carry
out
the
provision
of
the
Dangerous Drug act of
2002. The Agency shall
served
as
the
implementing arm of the
Dangerous Drug Board,
and shall be responsible
for the efficient and
effective law enforcement
of all provisions of any
dangerous drug and/or
controlled precursor and
essential chemicals as
provided for in the Law.
(Sec. 82). The existing
Secretariat of the National
Drug Law Enforcement
and
Prevention
Coordinating Center as
created
by
Executive
Order No. 61 is hereby
modified and absorbed by
the PDEA (Sec. 83, R.A.
9165)
B.) Powers and Duties
a.)

b.)

Implement or cause the

efficient
and
effective
implementation of the
national
drug
control
strategy formulated by the
Board thereby carrying out
a national drug campaign
program
which
shall
include
drug
law
enforcement, control and
prevention campaign with
the
assistance
of
concerned
government
agencies;
Undertake
the
enforcement
of
the
provision of article II of this
Act relative to the unlawful
acts
and
penalties
involving any dangerous
drug and/or controlled
precursor and essential
chemical and investigate
all violators and other
matters involved in the
commission of any crime

97

i.)

j.)

k.)

l.)

m.)

essential chemicals, and

other similar controlled
substance,
and
assist,
support and coordinate with
other government agencies
for the proper and effective
prosecution of the same;
Monitor and if warranted by
circumstances,
in
coordination
with
the
Philippine Postal Office and
the Bureau of Customs,
inspect
all
air
cargo
packages, parcels and
mails in the central post
office, which appear from
the packages and address
itself to be a possible
importation of dangerous
drugs and/or controlled
precursors and essential
chemicals, through on-line
or cyber shops via the
internet or cyberspace;
Conduct
eradication
programs to destroy wild or
illegal growth of plants from
which dangerous drugs
may be extracted;
Initiate and undertake the
formation of a nationwide
organization which shall
coordinate and supervise
all activities against drug
abuse in every province,
city,
municipality
and
barangay with active and
direct participation of all
such local government units
and
non-governmental
organizations, including the
citizenry, subject to the
provisions of previously
formulated programs of
action against dangerous
drugs;
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 drug lords;
Established and maintain
close
coordination,
cooperation and linkages
with
international
drug
control and administration
agencies and organization
and
implement
the

n.)

o.)

p.)

q.)

r.)

98

applicable provisions of
international
conventions
and agreement related to
dangerous drugs to which
the
Philippines
is
a
signatory;
Create and maintain an
efficient
special
enforcement unit to conduct
an
investigation,
file
charges
and
transmit
evidence to the proper
court, wherein members of
the said unit shall possess
suitable
and
adequate
firearms for their protection
in connection with the
performance of their duties;
Provided, That no previous
special permit for such
possession
shall
be
required;
Require all government and
private hospitals, clinics,
doctors, dentists and other
practitioners to submit a
report to it, in coordination
with the Board, about all
dangerous drugs and/or
controlled precursors and
essential chemicals which
they have attended to for
data
and
information
purposes;
Coordinate with the Board for
the facilitation of the
issuance
of
necessary
guidelines,
rules
and
regulations for the proper
implementation of this Act;
Initiate and undertake a
national campaign for drug
prevention and drug control
programs, where it may
enlist the assistance of any
department, bureau, office,
agency, or instrumentality
of
the
government,
including
governmentowned and/or
controlled
corporations, in the antiillegal drugs drive, which
may include the use of their
respective
personnel,
facilities, and resources for
a more resolute detection
and investigation of drugrelated
crimes
and
prosecution of the drug
traffickers; and
Submit an annual and
periodic report to the Board

as may be required form

time to time, and perform
such other functions as
may be authorized or
required under existing
laws and as directed by the
President himself/herself or
as recommended by the
congressional committees
concerned.

under this Act shall be

terminated within the period of
thirty (30) days from the date
of their filing
When the preliminary
investigation is conducted by a
public prosecutor and probable
cause is established, the
corresponding
information
shall be filed in court within
twenty-four (24) hours from the
termination
of
the
investigation. If the preliminary
investigation is conducted by a
judge and a probable cause is
found
to
exist,
the
corresponding
information
shall be filed by the proper
prosecutor within forty-eight
(48) hours from the date of
receipt of the records of the
case. (Sec. 90)

Note:
There are however
certain power and duties of
the PDEA enumerated under
Section 84 of R.A. 9165
which seems to overlap with
the functions of prosecutors
such as (1) the preparation
for prosecution or the
causing of the filing of
appropriate criminal cases
for violation of the Law; and
(2) filing of charges and
transmittal of evidence to the
proper court and which have
to be clarified in the
Implementing Rules and
Regulation that may be
issued by the DDB and the
PDEA later.
JURISDICTION
RELATED CASES

OVER

The Department of
Justice shall designate special
prosecutors to exclusively
handle
cases
involving
violations of the Dangerous
Drug Act of 2002 (Sec. 90)

DRUG

The Supreme Court

shall designate special
court from among the
existing
Regional
Trial
Court in each judicial region
to exclusively try and hear
cases involving violations of
this Act. The number of
courts designated in each
judicial region shall be
based in their respective
jurisdiction.

Notwithstanding
the
provision of any law to the
contrary, a positive finding for
the use of dangerous drugs
shall
be
a
qualifying
aggravating circumstance in
the commission of a crime by
an
offender,
and
the
application of the penalty
provided for in the Revised
Penal Code shall be applicable
(Sec. 25)

The DOJ shall designate

special
prosecutor
to
exclusively handle cases
involving violations of this
Act.

Confiscation
and
Forfeiture of the Proceeds or
Instruments of the Unlawful
Act, including the Properties
or Proceeds Derived from the
Illegal
Trafficking
of
Dangerous Drugs and/or
Precursors and Essential
Chemicals

PRELIMINARY INVESTIGATION
OF DANGEROUS DRUG CASES
The
preliminary
investigation of cases filed

99

Every penalty imposed for the

unlawful
importation,
sale,
trading,
administration,
dispensation,
delivery,
distribution, transportation or
manufacture of any dangerous
drug and/or controlled precursor
and essential chemical, the
cultivation or culture of plants
which are sources of dangerous
drugs, and the possession of any
equipment, instrument, apparatus
and other paraphernalia for
dangerous drugs including other
laboratory equipment, shall carry
with it the confiscation and
forfeiture, in favor of the
government, of all the proceeds
and properties derived from
unlawful act, including, but not
limited to, money and other
assets obtained thereby, and the
instruments or tools with which
the particular unlawful act was
committed, unless they are the
property of a third person not
liable for the unlawful act, but
those which are not of lawful
commerce shall be ordered
destroyed without delay pursuant
to the provisions of Section 21 of
this Act.

admitted for the release of the

same.
The proceeds of any sale or
disposition of any property
confiscated under this section,
forfeiture,
custody
and
maintenance of the property
pending disposition, as well as
the expense for publication and
court costs. The proceeds in
excess of the above expenses
shall accrue to the Board to be
used in its campaign against
illegal drugs.
CUSTODY AND
DISPOSITION OF
CONFISCATED, SEIZED
AND/OR SURRENDERED
DANGEROUS DRUGS, ETC.
The PDEA shall take charge
and have
custody of
all
dangerous drugs, plant sources
of dangerous drugs, controlled
precursors
and
essential
chemicals,
as
well
as
instruments/paraphernalia and/or
laboratory equipment that was
confiscated,
seized
and/or
surrendered,
for
proper
disposition in the following
manner:

After
conviction
in
the
Regional Trial Court in the
appropriate criminal case filed,
the Court shall immediately
schedule a hearing for the
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 name of some
other persons if the same shall be
found to be manifestly out 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)
days
upon
order
of
confiscation or forfeiture.

1. The
apprehending
team
having
initial
custody and control of
the
drugs
shall,
immediately
after
seizure
and
confiscation, physically
inventory
and
photograph the same in
the presence of the
accused
or
the
person/s from whom
such
items were
confiscated
and/or
seized,
or
his/her
representative
or
counsel,
a
representative from the
media
and
the
Department of Justice
(DOJ) and any elected
public official who shall
be required to sign the
copies of the inventory

During the pendency of the

case in the Regional Trial Court,
no property, or income derived
thereform,
which
may
be
confiscated and forfeited, shall be
disposed, alienated or transferred
and the same shall be in custodio
legis and no bond shall be

100

and be given a copy

thereof;

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 such items
were confiscated and/or
seized,
or
his/her
representative
or
counsel,
a
representative from the
media and the DOJ, civil
society group and any
elected public official.
The Board shall draw up
the guidelines on the
manner
of
proper
disposition
and
destruction
of
such
item/s which shall be
borne by the offender;
Provided, That those
item/s
of
lawful
commerce,
as
determined
by
the
Board, shall be donated,
used or recycled for
legitimate
purposes;
Provided, further, That a
representative sample,
duly
weighed
and
recorded, is retained;

2. Within twenty-four (24)

hours
upon
confiscation/seizure of
dangerous drugs, plant
sources of dangerous
drugs,
controlled
precursors
and
essential chemicals, as
well
as
instruments/parapherna
lia and/or laboratory
equipment, the same
shall be submitted to
the PDEA Forensic
Laboratory
for
a
qualitative examination;
3. A certification of the
forensic
laboratory
examination
results,
which shall be under
oath by the forensic
laboratory
examiner,
shall be issued within
twenty-four (24) hours
after the receipt of the
subject
items/s:
Provided, that when the
volume of dangerous
drugs, and controlled
precursors
and
essential
chemicals
does not allow the
completion of testing
within the time frame, a
partial
laboratory
examination
report
shall be provisionally by
the forensic laboratory:
Provided, however, that
a final certification on
the same within the
next twenty-four (24)
hours;

5. The Board shall then

issue a sworn statement
as to the fact of
destruction or burning of
the
subject
item/s
together
with
the
representative sample/s
shall be kept to a
minimum quantity as
determined
by
the
Board;

4. After the filing of the

criminal case, the Court
shall within seventy-two
(72) hours, conduct an
ocular inspection of the
confiscated,
seized
and/or
surrendered
dangerous drugs, plant
sources of dangerous
drugs, and controlled
precursor and essential
chemicals, including the
instruments/paraphernali
a
and/or
laboratory

6. The alleged offender or

his/her representative or
counsel shall be allowed
to personally observe all
of
the
above
proceedings and his/her
presence
shall
not
constitute an admission
of guilt. In case the said
offender or accused
refuses or fails to
appoint a representative
after due notice in
writing to the accused or

101

his/her counsel within

seventy-two (72) hours
before the actual or
destruction
of
the
evidence in question,
the Secretary of Justice
shall appoint a member
of the public attorneys
office to represent the
former;

SUSPENSION OF SENTENCE OF
FIRST-TIME MINOR OFFENDER
An accused who is over
fifteen (15) years of age at the
time of the commission of the
offense mentioned in Section 11
of R.A. 9165 but not more that
eighteen (18) years of age at
the time when the judgment
should have been promulgated
after having been found guilty
of said offense, may be given
the benefits of a suspended
sentence, subject to the
following conditions:

7. After the promulgation

of judgment in the
criminal case wherein
the
representative
sample/s
was
presented as evidence
in court, the trial
prosecutor shall inform
the Board of the final
termination of the case
and in turn, shall
request the court for
leave to turn over the
said
representative
sample/s to the PDEA
for proper disposition
and destruction within
twenty-foru (24) hours
from receipt of the
same; and

a.) He/She
has
not
been
previously
convicted
of
violating any provision of this
Act, or of the Dangerous
Drugs Act of 1972, as
amended; or of the Revised
Penal Code; or any special
penal laws;
b.) He/She
has
not
been
previously committed to a
Center or to the care of a
DOH-accredited
physician;
and
c.) The
Board
favorably
recommends
that
his/her
sentence be suspended.

8. Transitory Provision: a.)

Within
twenty-four
hours
from
the
effectivity of this Act
(R.A. 9165), dangerous
drugs defined herein
which are presently in
possession
of
law
enforcement agencies
shall, with leave of
court, be burned or
destroyed,
in
the
presence
of
representative of the
Court,
DOJ,
Department of Health
(DOH) and the accused
and/or his/her counsel,
and b.) Pending the
organization of the
PDEA, the custody,
disposition, and burning
of
seized
or
surrendered dangerous
drugs provided under
this Section shall be
implemented by the
DOH (Sec. 21, Art. 2,
R.A. 9165)

PRIVILEGE OF SUSPENDED
SENTENCE CAN BE AVAIL
ONLY ONCE BY A FIRST-TIME
MINOR OFFENDER
The
privilege
of
suspended sentence shall be
availed of only once by accused
drug dependent who is a first-time
offender over fifteen (15) years of
age at the time of the commission
of the violation of Section 15 of
this Act but not more than
eighteen (18) years of age at the
time when judgment should have
been promulgated. (Sec. 68)
PROMULAGATION OF SENTENCE
FOR FIRST-TIME OFFENDER
If the accused first-time
minor offender violates any of the
conditions of his/her suspended
sentence, the applicable rules

102

and regulations of the Board

exercising
supervision
and
rehabilitative surveillance over
him, including the rules and
regulations of the Center should
confinement be required, the
court shall pronounce judgment of
conviction and he/she shall serve
sentence as any other convicted
person. (Sec. 69)

If
the
sentence
promulgated by the court require
imprisonment, the period spent in
the Center by the accused shall
be deducted from the sentence to
be served. ( Sec. 70)
WHAT ARE THE LIABILITY AND
RESPONSIBILITY OF A
MEMBER OF LAW
ENFORCEMENT AGENCIES
AND OTHER GOVERNMENT
OFFICIALS IN TESTIFYING AS
PROSECUTION WITNESSES IN
DANGEROUS DRUG CASES?

PROBATION OR COMMUNITY
SERVICE FOR A FIRST-TIME
MINOR OFFENDER IN LIEU OF
IMPRISONMENT
Upon promulgation of the
sentence, the court may, in its
discretion, 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 community service in lieu
of imprisonment. In case of
probation, the supervision and
rehabilitative surveillance shall be
undertaken by the Board through
the DOH in coordination with the
Board of Pardons and Parole and
the Probation Administration.
Upon
compliance
with
the
conditions of the probation, the
Board shall submit a written
report to the court recommending
termination of probation and a
final discharge of the probationer,
whereupon the court shall issue
such an order.

Any member of law

enforcement agencies or any
other government official and
employee who, after due notice,
fails or refuse intentionally or
negligently, to appear as a
witness for the prosecution in any
proceedings, 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 (20) years and a fine of
not less than Five hundred
thousand pesos (P500,000.00), in
addition to the administrative
liability he/she may be meted out
by his/her immediate superior
and/or appropriate body.
The immediate superior
of the member of the law
enforcement 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 than ten thousand
(P10,000.00) but not more than
Fifty thousand (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 does not exert reasonable
effort to present the latter to the
court

The community service

shall be complied with under
conditions, time and place as may
be determined by the court in its
discretion
and
upon
the
recommendation of the Board
and shall apply only to violators of
Section 15 of this Act. The
completion of the community
service shall be under the
supervision and rehabilitative
surveillance of the Board during
the period required by the court.
Thereafter, the Board shall render
a report on the manner of
compliance of said community
service. The court in its discretion
may require extension of the
community service or order a final
discharge.

The member of the law

enforcement agency or any other
government employee mentioned
in the proceeding paragraphs

103

shall not be transferred or reassigned

to
any
other
government office located in
another
territorial
jurisdiction
during the pendency of the case
in court. However, the concerned
member of the law enforcement
agency or government employee
may be transferred or re-assigned
for compelling reason: Provided,
that his/her immediate superior
shall notify the court where the
case is pending of 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 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 than two (2) months and
one (1) day but not more than six
(6) years and a fine of not less
than Ten thousand (P10,000.00)
but not more than Fifty thousand
pesos (P50,000.00) and in
addition,
perpetual
absolute
disqualification from public office,
should he/she fails to notify the
court of such order to transfer or
re-assign.

The DOJ shall keep a

confidential
record
of
the
proceedings on suspension of
sentence and shall not be used
for any purpose other than to
determine whether or not a
person accused under this Act is
a first-time offender. (Sec. 71)
LIABILITY OF A PERSON WHO
VIUOLATES
THE CONFIDENTIALITY OF
RECORDS
The
Penalty
of
imprisonment ranging from six (6)
months and one (1) day to six (6)
years and a fine ranging from
One thousand pesos (P1,000.00)
to
Six
thousand
pesos
(P6,000.00), shall be imposed
upon any person who, having
official custody of or access to the
confidential records of any drug
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 imposed, in
addition to the absolute perpetual
disqualification from any public
office, when the offender is a
government official or employee.
Should the records be used for
unlawful purposes, such as
blackmail of the drug defendant of
the members of his/her family, the
penalty imposed for the crime of
violation of confidentiality shall be
in addition to whatever crime
he/she convicted of. (Sec. 72)

DELAY ANF BUNGLING IN

THE
PROSECUTION OF DRUG
CASES
Any government officer
employee
tasked
with
the
prosecution of drug-related cases
under this Act, who through patent
laxity,
inexcusable
neglect,
unreasonable delay or deliberately
causes
the
unsuccessful
prosecution and/or dismissal of the
said drug cases, shall suffer the
penalty of imprisonment ranging
from twelve (12) years and one (1)
day to twenty (20) years without
prejudice to his/her prosecution
under the pertinent provision of the
Revised Penal Code.

LIABILITY OF A PARENTS,
SPOUSE OR
GUARDIAN WHO REFUSE TO
COOPERATE
WITH THE BOARD OR ANY
CONCERNED AGENCY
Any parent, spouse or
guardian who, without valid
reason
parent,
spouse
or
guardian who, without valid
reason, refuses to cooperate with
the Board or any concerned

RECORDS TO BE KEPT BY
THE
DEPARTMENT OF JUSTICE

104

agency in the treatment and

rehabilitation of a drug defendant
who is a minor, or in any manner,
prevents or delay the after-care,
follow-up or other programs for
the welfare of the accused drug
defendant,
whether
under
voluntary submission program or
compulsory submission program,
may be cited in contempt by the
court.

arresting officer to make a search

upon the person arrested. An
officer making an arrest may take
from the person arrested any
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 evidence in the trial of the
case. (People v. Musa; GR
96177, 1/27/93)

COST-SHARING
IN
THE
TREATMENT
AND
REHABILITATION OF A DRUG
DEFENDENT

LIKE ALIBI, FRAME

EASY
TO
FABRICATE,
DIFFICULT
TO PROVE

The parents, spouse,

guardian or any relative within the
fourth degree of consanguinity of
any person who is confined under
the voluntary submission program
or
compulsory
submission
program shall be charged a
certain percentage of the cost of
his/her
treatment
and
rehabilitation, the guidelines of
which shall be formulated by the
DSWD taking into consideration
the economic status of the family
of the person confined. The
guidelines therein formulated
shall be implemented by a social
worker of the local government
unit. (Sec. 74)

UP

IS

BUT

Frame-up, like alibi, is a

defense that has been viewed by
courts with disfavor for it can just
as easily be connected and is a
common and standard line of
defense in most prosecution
arising from violations of the
Dangerous Drugs Act. In order
for that defense to prosper, the
evidence adduced must be clear
and convincing.
(People v.
Girang; GR 27949, 2/1/95)
BUY-BUST OPERATION

LIMITED APPLICABILITY OF
THE REVISED PENAL CODE

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.
Entrapment has received judicial
sanction as long as it is carried
out
with
due
regard
to
constitutional
and
legal
safeguards. (People v. Basilgo;
GR 107327, 8/5/94)

Notwithstanding any law,

rule or regulation to the contrary,
the provisions of the Revised
Penal Code (Act. 3814) as
amended, shall not apply to the
provision of this Act, except in the
case of minor offenders. Where
the offender is a minor, the
penalty for acts punishable by life
imprisonment to death provided
therein
shall
be
reclusion
perpetua to death. (Sec. 98)

POSEUR-BUYER, GENERALLY
NEED NOT TESTIFY
The testimony of the
poseur-buyer
or
of
the
confidential informant is no longer
material
considering
that
accused-appellants drug pushing
was
positively
attested
to.
Moreover,
informants
are
generally not presumed in court

EXCEPTION TO NECESSITY
OF A SEARCH WARRANT
There is no doubt that the
warrantless search incidental to a
lawful arrest authorizes the

105

because of the need to hide their

identity and preserve their
invaluable service to the police.
(People v. Girang; GR 97949,
2/1/95)

be criminally charged in court is

essentially an executive function,
not a judicial one. As the officer
authorized to direct and control
the prosecution of all criminal
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. Esparas; GR
120034, July 10, 1998)

EFFECT
OF
LIMITATION
UNDER
SECTION 19, ART. VII OF THE
CONSTITUTION ON GRANT OF
PARDON

WHEN THERE IS A WAIVER

OF WARRANTLESS ARREST

The "conviction by final

judgment"
limitation
under
Section 19, Article VII of the
present Constitution prohibits the
grant of pardon, whether full or
conditional, to an accused during
the pendency of his appeal from
his conviction by the trial court.
Any application therefor, if one is
made, should not be acted upon
or the process toward its grant
should not be begun unless the
appeal is withdrawn. Accordingly,
the agencies or instrumentalities
of the Government concerned
must require proof from the
accused that he has not appealed
from his conviction or that he has
withdrawn his appeal Such proof
may be in the form of a
certification issued by the trial
court or the appellate court, as
the case may be The acceptance
of the pardon shall not operate as
an abandonment or waiver of the
appeal, and the release of an
accused by virtue of a pardon,
commutation of sentence, or
parole before the withdrawal of an
appeal
shall
render
those
responsible
therefor
administratively
liable
Accordingly, those in custody of
the accused must not solely rely
on the pardon as a basis for the
release of the accused from
confinement.
(People
v.
Maquilan)

The appellants are now

precluded from assailing the
warrantless 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
drugs and their vehicle, were
brought to the police station for
investigation and subsequent
prosecution. We have ruled in a
long line of cases that:
"When
one
voluntarily
submits
to
a
search
or
consents to have
it made on his
person
or
premises, he is
precluded
from
later complaining
thereof (Cooley,
Constitutional
Limitations, 8th
ed., vol. I, page
631). The right to
be secure from
unreasonable
search may, like

RULE AS TO WHO SHOULD

BE CRIMINALLY CHARGED
The settled rule is that
the determination of who should

106

every right, be
waived and such
waiver may be
made
either
expressly
or
impliedly."
The appellants effectively
waived their constitutional right
against the search and seizure in
question by their voluntary
submission to the jurisdiction of
the trial court, when they entered
a plea of not guilty upon
arraignment and by participating
in the trial. (People v. Correa;
GR 119246, Jan. 30, 98)

(b)

WHEN
USE
OF
MOTOR
VEHICLE
IN DRUG CASES OR ANY
OTHER
CASE IS NOT AGGRAVATING

(a) a
prior
valid
intrusion based on the
valid warrantless arrest
in which the police are
legally present in the
pursuit of their official
duties;
the evidence was
inadvertently
discovered
by
the
police who had the right
to be
where they are;
(c)
the
evidence
must be immediately
apparent, and
(d) "plain
view"
justified mere seizure of
evidence
without
further search;

3.
Search of a moving
vehicle. Highly regulated by the
government,
the
vehicle's
inherent
mobility
reduces
expectation of privacy especially
when its transit in public
thoroughfares furnishes a highly
reasonable suspicion amounting
to probable cause that the
occupant committed a criminal
activity;

Simply stated, the motor

vehicle which was used to
transport prohibited drugs was
not purposely sought to facilitate
the commission of the crime since
such
act
of
transporting
constitutes the crime itself,
punishable under Section 4,
Article II of Republic Act No.
6425, as amended. That a motor
vehicle was used in committing
the crime is merely incidental to
the act of transporting prohibited
drugs. The use of a motor vehicle
is inherent in the crime of
transporting as it must of
necessity
accompany
the
commission thereof; hence, such
use is not an aggravating
circumstance. (People
v.
Correa)

4.
Consented
warrantless
search;
5.
Customs search;
6.
Stop and Frisk; and
7.
Exigent and Emergency
Circumstances.
(People v. Menguin;
GR 120915, Apr. 13, 98)
CASES
WHEN
SEARCH
WITHOUT
A WARRANT WAS VALID
In People v. Tangliben,
acting on information supplied by
informers,
police
officers
conducted a surveillance at the
Victory Liner Terminal compound
in San Fernando, Pampanga
against persons who may commit
misdemeanors and also on those
who may be engaging in the
traffic of dangerous drugs. At 9:30
in the evening, the policemen
noticed a person carrying a red
travelling bag who was acting
suspiciously. They confronted him
and requested him to open his

CASES WHEN WARRANTLESS

SEARCH IS ALLOWED
1.
Warrantless
search
incidental to a lawful arrest
recognized under Section 12,
Rule 126 of the Rules of Court
and by prevailing jurisprudence;
2.
Seizure of evidence in
"plain view," the elements of
which are:

107

bag but he refused. He acceded

later on when the policemen
identified themselves. Inside the
bag were marijuana leaves
wrapped in a plastic wrapper. The
police officers only knew of the
activities of Tangliben on the night
of his arrest.

ascertained. Third, Aruta was not

acting
suspiciously.
Fourth,
Malmstedt was searched aboard
a moving vehicle, a legally
accepted exception to the warrant
requirement. Aruta, on the other
hand, was searched while about
to cross a street.

In instant case, the

apprehending officers already
had prior 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 traffickers as their "business
address".
More
significantly,
Tangliben
was
acting
suspiciously. His actuations and
surrounding circumstances led
the policemen to reasonably
suspect
that
Tangliben
is
committing a crime. In instant
case, there is no single indication
that
Aruta
was
acting
suspiciously.

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
informant that a woman having
the same appearance as that of
accused-appellant
would
be
bringing marijuana from up north.
They likewise had probable cause
to search accused-appellant's
belongings since she fitted the
description
given
by
the
NARCOM informant. Since there
was a valid warrantless search by
the NARCOM agents, any
evidence obtained in the course
of said search is admissible
against accused-appellant. Again,
this case differs from Aruta as this
involves a search of a moving
vehicle plus the fact that the
police
officers
erected
a
checkpoint. Both are exceptions
to the requirements of a search
warrant.

In People v. Malmstedt,
the Narcom agents received
reports that vehicles coming from
Sagada
were
transporting
marijuana. They likewise received
information that a Caucasian
coming
from
Sagada
had
prohibited drugs on his person.
There was no reasonable time to
obtain
a
search
warrant,
especially since the identity of the
suspect could not be readily
ascertained. His actuations also
aroused the suspicion of the
officers conducting the operation.
The Court held that in light of
such circumstances, to deprive
the agents of the ability and
facility to act promptly, including a
search without a warrant, would
be to sanction impotence and
ineffectiveness
in
law
enforcement, to the detriment of
society.

In Manalili v. Court of
Appeals and People,
the
policemen
conducted
a
surveillance in an area of the
Kalookan Cemetery based on
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" on drugs.
He was observed to have reddish
eyes and to be walking in a
swaying manner. Moreover, he
appeared to be trying to avoid the
policemen. When approached
and asked what he was holding in
his hands, he tried to resist.
When he showed his wallet, it
contained marijuana. The Court
held that the policemen had
sufficient reason to accost
accused-appellant to determine if
he was actually "high" on drugs

Note,
however,
the
glaring differences of Malmstedt
to the instant case. In present
case, the police officers had
reasonable time within which to
secure a search warrant. Second,
Aruta's identity was priorly

108

due to his suspicious actuations,

coupled with the fact that based
on information, this area was a
haven for drug addicts.

companions were accosted by

government agents. In the instant
case, there was no observable
manifestation that could have
aroused the suspicion of the
NARCOM agents as to cause
them to "stop and frisk" accusedappellant. To reiterate, accusedappellant was merely crossing the
street when apprehended. Unlike
in the abovementioned cases,
accused-appellant
never
attempted to flee from the
NARCOM agents when the latter
identified themselves as such.
Clearly, this is another indication
of the paucity of probable cause
that would sufficiently provoke a
suspicion that accused-appellant
was committing a crime.

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
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 that
there was probable cause,
indeed, to justify the issuance of a
warrant. Instead of securing a
warrant first, they proceeded to
apprehend Aminnudin. When the
case was brought before this
Court, the arrest was held to be
illegal; hence any item seized
from Aminnudin could not be
used against him.

This Court cannot agree

with the Solicitor General's
contention for the Malasugui case
is inapplicable to the instant case.
In said case, there was probable
cause for the warrantless arrest
thereby making the warrantless
search
effected
immediately
thereafter equally lawful. On the
contrary, the most essential
element of probable cause, as
expounded above in detail, is
wanting in the instant case
making the warrantless arrest
unjustified
and
illegal.
Accordingly, the search which
accompanied the warrantless
arrest was likewise unjustified
and illegal. Thus, all the articles
seized
from
the
accusedappellant could not be used as
evidence against her. (People
v. Menguin)

Another recent case is

People v. Encinada where the
police
likewise
received
confidential information the day
before at 4:00 in the afternoon
from their informant that Encinada
would be bringing in marijuana
from Cebu City on board M/V
Sweet Pearl at 7:00 in the
morning of the following day. This
intelligence information regarding
the culprit's identity, the particular
crime he allegedly committed and
his exact whereabouts could have
been a basis of probable cause
for the lawmen to secure a
warrant. This Court held that in
accordance with Administrative
Circular No. 13 and Circular No.
19, series of 1987, the lawmen
could have applied for a warrant
even after court hours. The failure
or neglect to secure one cannot
serve as an excuse for violating
Encinada's constitutional right.

WHEN SEARCH IS NOT VALID

Accused-appellant Aruta
cannot be said to be committing a
crime. Neither was she about to
commit one nor had she just
committed a crime. Accusedappellant was merely crossing the
street and was not acting in any
manner that would engender a
reasonable
ground for the
NARCOM agents to suspect and
conclude that she was committing
a crime. It was only when the
informant pointed to accused-

People
v.
Solayao,
applied the stop and frisk
principle which has been adopted
in Posadas v. Court of Appeals.
In said case, Solayao attempted
to flee when he and his

109

appellant and identified her to the

agents as the carrier of the
marijuana that she was singled
out as the suspect. The NARCOM
agents
would
not
have
apprehended accused-appellant
were it not for the furtive finger of
the informant because, as clearly
illustrated by the evidence on
record, there was no reason
whatsoever for them to suspect
that
accused-appellant
was
committing a crime, except for the
pointing finger of the informant.
This the Court could neither
sanction nor tolerate as it is a
clear violation of the constitutional
guarantee against unreasonable
search and seizure. Neither was
there any semblance of any
compliance
with
the
rigid
requirements of probable cause
and warrantless arrests.

submission
or
an
implied
acquiescence
to
the
unreasonable search. The instant
case is similar to People v.
Encinada.
(People
v.
Menguin)
WHEN SEARCH IS NOT
ALLOWED AFTER
AN ARREST IS MADE
In the case of People v. Lua, this
Court held:
"As regards the brick of
marijuana found inside the
appellant's house, the trial court
correctly ignored it apparently in
view of its inadmissibility. While
initially the arrest as well as the
body search was 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
same being limited to body
search and to that point within
reach or control of 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 admittedly outside
his house when he was arrested.
Hence, it can hardly be said that
the inner portion of his house was
within his reach or control.
(Espano v.
C.A.; GR 120431, April 1, 98)

Consequently, there was

no legal basis for the NARCOM
agents to effect a warrantless
search of accused-appellant's
bag, there being no probable
cause and the accused-appellant
not having been lawfully arrested.
Stated otherwise, the arrest being
incipiently illegal, it logically
follows that the subsequent
search was similarly illegal, it
being not incidental to a lawful
arrest.
The
constitutional
guarantee against unreasonable
search and seizure must perforce
operate in favor of accusedappellant. As such, the articles
seized could not be used as
evidence
against
accusedappellant for 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)

MEANING
OF
TRANSPORT
IN DRUG CASES

TO

In People vs. Lo Ho
Wing, the Court defined the term
"transport", as used under the
Dangerous Drugs Act to mean "to
carry or convey from one place to
another" , the operative words
being "to carry or to convey". The
fact
that
there
is
actual
conveyance suffices to support a
finding that the act of transporting
was committed. It is immaterial
whether or not the place of
destination was reached. (People
v. Latura)

WHEN
VOLUNTARY
SUBMISSION
TO SEARCH IS INAPPLICABLE
Aside
from
the
inapplicability of the abovecited
case, the act of herein accusedappellant in handing over her bag
to the NARCOM agents could not
be construed as voluntary

110

ILLEGAL AND VOID AB INITIO

WHEN
POLICE
OFFICERS
INTENTIONALLY
PEEPED
THRU A WINDOW THEN WENT
INSIDE
AND
ARRESTED
THOSE INSIDE WHO ARE
PACKING MARIJUANA.
THE
SAME IS ILLEGAL

As a general rule, the

procurement of a search warrant
is required before law enforcer
may validly search or seize the
person, house, papers or effects
of any individual. In People v.
Valdez, the court ruled that
search and seizure conducted
without the requisite judicial
warrant is illegal and void ab
initio.

The
police
officers
intentionally peeped first through
the window 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 moving vehicle, a
consented warrantless search, a
customs search, or a stop and
frisk; it cannot even fall under
exigent
and
emergency
circumstances, for the evidence
at hand is bereft of any such
showing.

x
x

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 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.

On the contrary, it
indicates that the apprehending
officers should have conducted
first a surveillance considering
that the identities and address of
the suspected culprits were
already ascertained.
After
conducting the surveillance and
determining the existence of
probable cause for arresting
accused-appellants, they should
have secured a search warrant
prior to effecting a valid arrest and
seizure. The arrest being illegal
ab initio, the accompanying
search was likewise illegal. Every
evidence thus obtained during the
illegal search cannot be used
against
accused-appellants;
hence, their acquittal must follow
in faithful obeisance to the
fundamental law.
(PP -vsZENAIDA
BOLASA
Y
NAKOBOAN, ET AL., G.R. No.
125754, Dec. 22, 1999)
SEARCH
WITHOUT
JUDICIAL

In this case, the prosecutions

evidence clearly established that
the police conducted a search of
accuseds
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)

AND
SEIZURE
THE
REQUISITE
WARRANT
IS

111