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University of San Carlos

CRIMINAL LAW REVIEW TRANSCRIPTION


Judge M. Paredes

MAY 31, 2010


CRIMES AND PENALTIES
Assignment: Related Special Penal Laws; Human
Security Act/Anti-terrorism Law; R.A. 9851: IHL;
P.D. 532: Piracy
Title One: CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
Why punish crimes against national security.
Constitution, the defense of the state is the prime duty of
government. That's why Commonwealth Act No. 1 and
RPC were passed by the law-making body then. You know
of course what is Commonwealth Act No. 1: National
Defense Act, what is the leading case? Lagman vs
People. Is there any obligation of a citizen to render
military service? The answer is yes, Commonwealth Act
No. 1.
Chapter One: CRIMES AGAINST NATIONAL
SECURITY
Section One. Treason and espionage
Going back to crimes against national security,
there are four crimes. Crimes against national security
triable here in the Philippines even if the act/s were
committed outside Philippine territorial jurisdiction.
Rebellion does not fall under crimes against national
security, it falls under crimes against public order,
although the essence is it's a crime against national
security. Crimes against the law of nations, why punish?
Because we adopt the generally accepted principles of
international law as part of the law of the land. There are
five crimes against law of nations, triable anywhere.
1) Art. 114. Treason. Any person who, owing
allegiance to (the United States or) the Government of the
Philippine Islands, not being a foreigner, levies war
against them or adheres to their enemies, giving them aid
or comfort within the Philippine Islands or elsewhere, shall
be punished by reclusion temporal to death and shall pay
a fine not to exceed P20,000 pesos.
No person shall be convicted of treason unless on
the testimony of two witnesses at least to the same overt
act or on confession of the accused in open court.
Likewise, an alien, residing in the Philippine
Islands, who commits acts of treason as defined in
paragraph 1 of this Article shall be punished by prision
mayor to death and shall pay a fine not to exceed
P20,000 pesos. (As amended by E.O. No. 44, May 31,
1945).
Offenders here may be Filipino citizen or resident
alien. Non-resident aliens are not liable under Section
114, paragraph 1. This can only be committed during war
time, if there is no war, there is no treason. It is violation
by a subject of his allegiance to his sovereign or to the
supreme authority of the state.
'Allegiance' means obligation of fidelity or loyalty
and obedience. Allegiance may either be permanent or
temporary allegiance. Permanent = Filipino citizens,
temporary = resident aliens. The war here must be
directed against the government.
What is the meaning of 'adherence to the
government? It means intent to betray.
'Aid or comfort', what is the meaning? It means
an act which strengthens or tends to strengthen the
enemy in the conduct of war against the traitor country.
Adherence alone without aid or comfort does not
constitute
treason.
So
emotional
or
intellectual

attachment or sympathy to the enemy, without giving the


enemy aid or comfort, is not treason. The aid and comfort
must be given to the enemy by some kind of action. So
there must be some physical deed or activity.
The aid or comfort given to the enemies must be
after the declaration of war. The enemies must be the
subject of a foreign power. I repeat, there is no treason if
there is no war. The war must be declared. There are two
kinds of war: war in the formal sense, meaning, there is a
declaration of war, and war in the material sense, there is
armed conflict without formal declaration of war.
No complex crime of treason with murder,
physical injuries because murder, physical injuries, etc are
inherent in treason. When killings and other common
crimes are charged as overt acts of treason, they cannot
be regarded as separate crimes or as complexed with
treason.
Treason by Filipino citizen can be committed
outside of the Philippines. Treason by an alien must be
committed in the Philippines.
Paragraph 2 is actually rule of evidence. How do
you prove treason? 1) Testimony of two witnesses, at
least to the same overt act; 2) confession in open court,
not extra-judicial confession.
Defense of suspended allegiance and change of
sovereignty is not accepted. But defense of obedience to
de facto government is a good defense.
2) Art. 115. Conspiracy and proposal to commit
treason; Penalty. The conspiracy or proposal to commit
the crime of treason shall be punished respectively, by
prision mayor and a fine not exceeding P10,000 pesos,
and prision correccional and a fine not exceeding P5,000
pesos.
You know the meaning of conspiracy under
Volume 1, you know what is the meaning of proposal. X, Y
and Z conspired to commit treason on January 21. On
January 22, they committed treason. What crime did they
commit? Answer is TREASON. Why? Because conspiracy to
commit treason is committed only if there is no overt act
of treason. So mere conspiracy is already punished by the
Revised Penal Code.
Proposal to commit treason. X proposed to A, B,
C and D to commit treason. A, B, C and D was swayed to
commit treason. What crime is committed? Answer is
TREASON. Why? Because when X proposed to A, B, C and
D to commit treason, they committed treason, X is
principal by induction. So proposal to commit treason may
only be committed if there is no treason.
Two-witness rule does not apply to conspiracy or
proposal to commit treason.
3) Art. 116. Misprision of treason. Every
person owing allegiance to (the United States) the
Government of the Philippine Islands, without being a
foreigner, and having knowledge of any conspiracy
against them, conceals or does not disclose and make
known the same, as soon as possible to the governor or
fiscal of the province, or the mayor or fiscal of the city in
which he resides, as the case may be, shall be punished
as an accessory to the crime of treason.
In the Philippines, general rule, there is no crime
for failure to report any commission of a crime. But there
are exceptions, one of which is misprision of treason. It is
failure to report a conspiracy to commit treason. X knew
that A, B, C and D will commit treason, he knew about the
conspiracy. A, B, C and D committed treason. Is X liable
for misprision of treason? Answer is NO. Why? Because
treason has already been committed. What is punished by
the revised Penal Code is the failure to report the
conspiracy immediately to the mayor or city prosecutor or
governor or provincial prosecutor. If there is already an
overt act of treason, failure to report is not misprision of
treason.
The law says 'every person owing allegiance to
the Government of the Philippine Islands, without being a

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foreigner', meaning, only a Filipino


punished for misprision of treason.

citizen

may

be

Then next phrase 'having knowledge of any


conspiracy against them', knowledge of any conspiracy,
not knowledge of the commission of treason; who
'conceals or does not disclose and make known the same',
so this is a crime by omission, failure to report the
conspiracy.
The law says 'as soon as possible' Why? So that
the authorities will be alerted or informed of the
conspiracy to commit treason, so that the conspirators will
not make good their plan to commit treason. To whom?
The law says 'to the governor or fiscal of the province, or
the mayor or fiscal of the city in which he resides'.
What is the liability here
Accessory to the crime of treason.

of

the

accused?

Article 116 does not apply when the crime of


treason is already committed by someone and the accused
does not report its commission to the proper authorities.
The offender is the principal in the crime of misprision of
treason but he is punished as an accessory to the crime of
treason.
Article 116 is an exception to the rule that mere
silence does not make a person criminally liable.
4) Art. 117. Espionage. The penalty of prision
correccional shall be inflicted upon any person who:
1. Without authority therefor, enters a warship, fort,
or naval or military establishment or reservation to
obtain any information, plans, photographs, or other
data of a confidential nature relative to the defense of
the Philippine Archipelago; or
2. Being in possession, by reason of the public office
he holds, of the articles, data, or information referred
to in the preceding paragraph, discloses their
contents to a representative of a foreign nation.
The penalty next higher in degree shall be
imposed if the offender be a public officer or employee.
It is not necessary that the information has been
actually obtained, it is enough that the purpose is to
obtain such information. If he entered the places the
places mentioned under Article 117 but the purpose is not
to obtain information, the crime is not espionage, but
some other crime.
Next is 'disclosing their contents to a
representative of a foreign nation', the law does not
distinguish, friendly or hostile nation.
'Plans, photographs, or other data of a
confidential nature', if it is ot of a confidential nature,
then there is no violation of Article 117 but there may
violation of some other provisions of the Revised Penal
Code or special penal laws.
Please take note also 'being in possession, by
reason of the public office he holds', so under number, the
offender must be a public officer. Now if the public officer
discloses data or information of confidential information he
may also be held R.A. 3019: Anti-Graft and Corrupt
Practices Act and R.A. 6713: Code of Conduct and Ethical
Standards of Public Officers or Employees.
To be liable under paragraph 1, the offender must
have the intention to obtain information relative to the
defense of the Philippines. It is not necessary that
information is obtained. Persons liable in 2 ways of
committing espionage, citizenship here is immaterial.
Now there is a special penal law, C.A. 616. There are
several acts punished:
a. unlawfully obtaining or permitting to be
obtained information affecting national defense; If it does
not affect national defense and the offender is a public
officer, he is liable under R.A. 3019: Anti-Graft and
Corrupt Practices Act and R.A. 6713: Code of Conduct and
Ethical Standards of Public Officers or Employees.

b. unlawfully disclosing information affecting


national defense;
c. dicloyal acts or words in time of peace;
d. disloyal acts or words in time of war; so
espionage here under C.A. 616 may be committed in time
of peace and in time of war.
e. conspiracy to violate preceding sections;
f. harboring or concealing violators of law; special
penal law which may be involved is P.D. 1829, it is
included in the bar exam. There are several provisions int
he RPC where we have to refer to P.D. 1829. What is P.D.
1829? Obstruction of justice.
As to harboring or concealing violators of law. If
the purpose of the offender is to prevent prosecution or
apprehension of criminal offenders, in addition to C.A.
616, the accused may also be held liable under P.D. 1829.
in P.D. 1829, there is also harboring and concealing
violators of the law but the main purpose of P.D 1829 is
to prevent prosecution or apprehension of criminal
offenders.
You should distinguish espionage from treason.
Treason can only be committed in time of war, espionage
(either under RPC or under C.A. 616) may be committed
in time of peace or in time of war. Citizenship is not
important in espionage; it may be committed by a Filipino
citizenor an alien (either resident or non-resident alien).
There are 2 ways of committing treason, there are several
ways in committing espionage.
Section Two.
Provoking war and disloyalty in case of war
There are four classes of crimes under Section 2.
1)
Art. 118. Inciting to war or giving
motives for reprisals. The penalty of reclusion temporal
shall be imposed upon any public officer or employee, and
that of prision mayor upon any private individual, who, by
unlawful or unauthorized acts provokes or gives occasion
for a war involving or liable to involve the Philippine
Islands or exposes Filipino citizens to reprisals on their
persons or property.
You have studied international law, you came
across Charter of the UN, the government should see to it
that its citizens should not provoke neighbouring
countries, you should not form armed groups to invade or
conduct armed activities in neighbouring countries.
There are 2 persons who may be held liable.
Public officer/employee or private person. What is the act
committed here? Unlawful or unauthorized acts provoking
or giving occasion for a war involving or liable to involve
the Philippines or exposes Filipino citizens to reprisals on
their person or property. If you form an armed group to
invade Sabah, Malaysia or any neighbouring country, the
person who organizes the armed group may be held liable
for violation of Article 118.
This crime is not committed in time of war but
time of peace. Because if there is war already, there is no
point of provoking war. The intention of the offender is
immaterial. Penalty is higher if committed by a public
officer/employee.
Please
take
note
unlawful
or
unauthorized acts.
2)
Art. 119. Violation of neutrality. The
penalty of prision correccional shall be inflicted upon
anyone who, on the occasion of a war in which the
Government is not involved, violates any regulation issued
by competent authority for the purpose of enforcing
neutrality.
This can only be committed if there are two
countries involved in war in which the Philippines is NOT
involved. The offender here violates any regulation issued
by competent authority for the purpose of enforcing
neutrality. Suppose there is war between Malaysia and
Indonesia, so who is the competent authority? The
President. There is a regulation to respect our position
that is to be neutral and the accused committed acts in
violation of the regulation. Example, do not sell war
materials to any of the two warring countries; however,

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you sent ammunition to Malaysia, that is in violation of the


regulation. If the Governor of Cebu says do not sell
ammunitions to Malaysia or Indonesia because they are at
war. You violate the provincial ordinance, is there violation
of neutrality under Article 119? The answer is NO.
Because the governor is not the competent authority
mentioned in Article 119. The competent authority to
declare neutrality is either the President or persons in
charge of foreign affairs in the Philippines.
3) Art. 120. Correspondence with hostile country.
Any person who in time of war, shall have
correspondence with an enemy country or territory
occupied by enemy troops shall be punished:
1. By prision correccional, if the correspondence has
been prohibited by the Government;
2. By prision mayor, if such correspondence be
carried on in ciphers or conventional signs; and
3. By reclusion temporal, if notice or information be
given thereby which might be useful to the enemy. If
the offender intended to aid the enemy by giving
such notice or information, he shall suffer the penalty
of reclusion temporal to death.

complement nor a passenger of the vessel. Essence of


piracy is robbery or forcible depredation. If an outsider
enters a vessel, stole jewelleries silently and fled, is that
piracy? NO. Why? Because there is no element of robbery;
violence against, intimidation of persons or force upon
things.
Mutiny means unlawful resistance to superior
officer, or the raising of commotions and disturbances on
board a ship.
You should distinguish piracy from mutiny. Most
important distinction, in piracy-there is intent to gain while
in mutiny-there may be intent to gain or not. Piracy are
usually committed by outsiders while mutiny by fellow
officers or even passengers.
Art. 123. Qualified
temporal to death
commit any of the
article, under any of

piracy. The penalty of reclusion


shall be imposed upon those who
crimes referred to in the preceding
the following circumstances:

Obsolete. Correspondence here means sending of


letters. Why send letters when there is already text
message.

1. Whenever they have seized a vessel by boarding


or firing upon the same;
2. Whenever the pirates have abandoned their
victims without means of saving themselves; or
3. Whenever the crime is accompanied by murder,
homicide, physical injuries or rape.

So who is liable? Any person, resident alien, non-resident


alien, Filipino citizen, private individual, public officer or
employee, who in time of war, shall have correspondence
with an enemy country or territory.

I repeat. The essence is robbery. If there is no


violence, intimidation etc, the crime is theft only. Article
123 enumerates the instances when the piracy is
qualified.

And the correspondence here may be innocent


correspondence provided there is prohibition by the
government. It says here if notice or information given
thereby which might be useful to the enemy. If the
offender intended to aid the enemy then the penalty is
higher. Correspondece is communication by means of
letters even if correspondence contains innocent matters.

The question to be asked is what is the main


purpose of entering or boarding the vessel. If the main
purpose is to kill, it's not qualified piracy, but murder. So if
persons boarded a vessel because they wanted to kill one
of the passengers and after killing the passenger they
stole personal belongings, the crime is not qualified piracy,
it's murder AND theft or robbery as the case may be.

3)
Art. 121. Flight to enemy country.
The penalty of arresto mayor shall be inflicted upon any
person who, owing allegiance to the Government,
attempts to flee or go to an enemy country when
prohibited by competent authority.

'Accompanied by homicide', if the main purpose


is to kill without the qualifying circumstance of treachery,
etc, the crime os homicide only. 'Physical injuries', what
kind of physical injuries? This should be serious and less
serious because if it is slight, it is absorbed in qualified
piracy. 'Accompanied by rape', if the main purpose of the
culprits in boarding the vessel is to rape a passenger, it's
rape. So the main purpose here should be piracy. Murder,
homicide, physical injuries or rape are just afterthoughts
or consequence of piracy.

Consummated by mere attempt to flee to an


enemy country. There must be war wherein the Philippines
is involved. 'Any person who, owing allegiance to the
Government'; a resident alien owes temporary allegiance,
so I believe a resident alien may be liable. Acts
committed: attempting to flee or going to an enemy
country when prohibited by competent authority. So there
must be a prohibition by competent authority, if there is
none, there is no crime.
Section Three. Piracy and mutiny on the high seas
We have 3 Piracy laws in the Philippines: 1)
piracy under the RPC, 2) piracy under P.D. 532 and 3) R.A.
6235: Anti-hijacking law.
Art. 122. Piracy in general and mutiny on the high seas.
The penalty of reclusion temporal shall be inflicted
upon any person who, on the high seas, shall attack or
seize a vessel or, not being a member of its complement
nor a passenger, shall seize the whole or part of the cargo
of said vessel, its equipment, or personal belongings of its
complement or passengers.
The same penalty shall be inflicted in case of
mutiny on the high seas.
The offender must be an outsider, not a member
of the crew, not an officer or not a passenger of the
vessel. Because if he were an insider, even an officer of
the vessel, even a passenger and he robs a co-passenger
in Philippine waters, it is piracy under P.D. 532. So piracy
committed in Philippine waters-under P.D. 532, the culprit
may be an insider whereas under the RPC-an outsider.
Same penalty shall be inflicted in case of mutiny on the
high seas or Philippine waters. Most important element of
piracy under Article 122, offenders are not members of its

Qualified piracy is a special complex crime


punishable by death regardless of the number of victims.
Since there is no death penalty, the penalty will be
downgraded to reclusion perpetua without possibility of
parole under the new law.
Then the third kind of piracy is P.D. 532. Piracy in
Philippine waters. Philippines waters is not defined by
Article 122 of the RPC but defined by P.D. 532. Meaning
'all bodies of water, such as but not limited to, seas, gulfs,
bays around, between and connecting each of the Islands
of the Philippine Archipelago, irrespective of its depth,
breadth, length or dimension, and all other waters
belonging to the Philippines including territorial sea, the
sea-bed, the insular shelves and submarine areas over
which the Philippines has sovereignty or jurisdiction.
Next important definition under P.D. 532 is
'vessel'. Vessel refers to any vessel or watercraft used for
transport of passengers and cargo from one place to
another through Philippine waters. It shall include all
types of vessels or boats used in fishing. What is the
precedent case People vs Catantan. The Pilapil brothers
riding a pump boat has been followed Catantan and
company. Pilapil brothers were forced to jump out of the
vessel. What was the charge? Piracy under P.D. 532.
Catantan's argument is that it is only grave coercion,
Pilapil brother were only compelled to do something
against their will. Supreme court said, you read the law
Mr. Catantan, it says 'all types of vessels or boats'. In one
of the whereases, one of the reasons why P.D. 532 was

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decreed by President Marcos was to protect the fishing


industry, the Philippines being an archipelago.
In People vs Roger Tulin, the vessel has been
sea-jacked in Bataan, what they did was repaint the
vessel, load the cargoes and went to Singapore to unload
the cargoes. They argued that P.D. 532 will not apply
because they only loaded the cargoes in Batangas but
unloaded the cargoes in Singapore, outside Philippine
waters. Supreme Court said, you loaded the cargoes in
Philippines waters and unloaded it in international waters,
it does not matter, as long as the loading took place in
Philippine waters.
Then abetting piracy. Please take note, one of the
distinctions of piracy under Article 122 from P.D. 532 is
that if a person acquires or receives property taken by
pirates, under Article 122 of the RPC, he is only an
accessory while in P.D. 532, the accused it an accomplice,
not an accessory, take note of that. The law says 'any
person who knowingly and in any manner aids or protects
pirates, such as giving them information about the
movement of police or other peace officers of the
government, or acquires or receives property taken by
such pirates or in any manner derives any benefit
therefrom; or any person who directly or indirectly abets
the commission of piracy, shall be considered as an
accomplice of the principal offenders and be punished with
the Rules prescribed by the Revised Penal Code.
Last law on Philippine piracy, R.A. 6235: An Act
Prohibiting Certain Acts Inimical to Civil Aviation. Warning:
there is no attempted stage. There are two aircrafts under
this law: aircraft of Philippine registry and aircraft foreign
registry. The distinction is important.
What are the acts punished?
1.

It shall be unlawful for any person to compel


a change in the course or destination of an
aircraft of Philippine registry. (Section 1,
paragraph 1)

This law originated from People vs Ang Chio


Kio, R.A. 6235 was not yet in effect. The accused (a
Chinese national) here compelled the pilot to change the
course of the airplane from Laoag to Amoy (China) instead
of directing it to Apari and, in not complying with such
illegal requirement killed him. After that incident,
Congress passed R.A. 6235.
2.

It shall be unlawful to seize or usurp the


control thereof, while it is in flight. (Section
1, paragraph 1)

The phrase while it is in flight is important. This


phrase applies only to aircraft of Philippine registry. What
is the meaning of aircraft is in flight? An aircraft is in flight
from the moment all its external doors are closed
following embarkation until any of such doors is opened
for disembarkation. It the accused committed such acts
while all the external doors are not yet closed, what is the
crime committed?
Its either grave threat or grave
coercion; if it is to compel, it is grave coercion; if threat
only then grave threat especially if there is threat to kill.
You should know when an aircraft is in flight according to
how it is defined by law, not according to our
understanding.
Next paragraph is aircraft of foreign registry.
3.

4.

It shall be unlawful for any person to compel


an aircraft of foreign registry to land in
Philippine territory or to seize or usurp the
control thereof while it is within the said
territory. Even if it is not in flight. (Section 1,
paragraph 2)
It shall be unlawful for any person, natural or
juridical, to ship, load or carry in any
passenger aircraft operating as a public
utility within the Philippines, any explosive,
flammable, corrosive or poisonous substance
or material. Does not apply to private
aircraft. (Section 3)

5.

The shipping, loading or carrying of any


substance or material mentioned in the
preceding section in any cargo aircraft
operating as a public utility within the
Philippines shall be in accordance with
regulations issued by the Civil Aeronautics
Administration. Does not apply to private
aircraft. (Section 4)

6.

For any death or injury to persons or


damage to property resulting from a
violation of Sections three and four hereof,
the persons responsible therefor may be held
liable in accordance with the applicable
provisions of the RPC. (Section7)
JUNE 3, 2010

CRIM 2-A
Additional items in
Security and Law of Nations

Crimes

against

National

Treason absorbs crimes in furtherance thereof.


There is NO treason thru negligence, it is always
deliberate. The overt act of giving aid and comfort must
be intentional. Mere acceptance of office and discharge of
official duties under the enemy does not per se constitute
treason, EXCEPTION when the position is PolicyDetermining (Laurel vs. Misa). Mere expression of opinion
does not constitute an act of treason. NO complex crime
of treason with murder and other common crimes.
Does the crime of treason admit three stages
(attempted, frustrated, consummated)? The answer is NO.
Mere attempt constitutes the crime of treason.
How do you distinguish treason from sedition?
Treason, violation of the subject of his fidelity or
loyalty or allegiance to his sovereign. Sedition is raising of
commotions or disturbances in a state. Treason may only
be committed in time of war, meaning after the
declaration of war. In treason, the Philippines is involved
in a war international. In Sedition, the conflict is merely
internal.
How about treason vs. rebellion?
If the purpose is to deliver the government to a
foreign power or to pave the way for the coming of an
enemy, the crime is treason. In rebellion, the purpose is
political; to change the government with the rebels own
form of government.
In misprision of treason, the offender is punished as an
accessory to treason, but he is a principal in the crime of
misprision of treason.
Under the first mode of committing espionage, is
it necessary that the offender succeeds in obtaining
information? Answer is NO. Is wiretapping under 4200 a
form of espionage? Qualify your answer. If the purpose is
to obtain information especially if its national defense, its
espionage. But if the purpose has nothing to do with the
countrys defense or national security, it is simply
wiretapping under RA 4200.
Is it necessary that the country is at war for the
crime of espionage to be committed? The answer is NO.
The crime of espionage may be committed in times of
peace or war.
How do you distinguish espionage from treason?
Espionage may be committed both in time of
peace and in time of war. Treason is essentially committed
only in time of war. Espionage may be committed in many
ways. Treason may be committed in two ways only.
Reprisal in inciting to war or giving motives of
reprisal - is any kind of forcible or coercive measure
whereby one state seeks to exercise a deterrent effect or

Criminal Law Review 1st Installment

obtain redress or satisfaction for the consequences of the


illegal acts of another state. Inciting to war is committed
in time of peace.
Who has the authority to issue regulation for the
enforcement of neutrality? It is the chief executive, the
President of the Philippines, or the chief of staff of the
Armed Forces of the Philippines, being the alter ego of the
President.
There is authority to the effect that correspondence to
hostile country contemplates correspondence to officials of
the enemy country, not correspondence to private
individuals in the enemy country (although some authors
do not distinguish).
Flight to enemys country, mere attempt to flee
consummates the felony.
What is the essence of piracy under the RPC?
It is robbery or deprivation in the high seas. So if
there is no force, intimidation or force upon anything,
personal property is taken while the ship is in the high
seas, the crime is not piracy or robbery but THEFT only. It
is done without lawful authority and done with animo
furandi. But in time of war, under international law, if
citizens deprive enemy ships of personal property, the
crime is not robbery, it is considered as an act of war.
Piracy is a crime against all mankind.
Art. 122 vs. PD 532
Art. 122 limits the offenders to non-passengers
or non-members of the crew. PD 532, no qualification as
to the criminal, hence, offender may be a passenger, a
crew or a stranger.

Crime against Humanity, Crime against the


Law of Nations (Sec. 2)
The State recognizes that the fight against
terrorism requires comprehensive approach; political,
economic, diplomatic, military and legal, taking into
account the root causes of terrorism. Measures shall
include conflict management, post-conflict peace building
and addressing the root causes of the conflict. The main
root is poverty and neglect.
Section 3. Definition of Terrorism
Terrorism may be committed by any person:
public officers or private persons. This may be committed
by one single act or series of acts.
This may be
committed by a single individual who commits an act
punishable under any of the following provisions of the
RPC and other laws. So before a person may be charged
under this law, he must commit another crime. There
must be a PREDICATE CRIME before one may be charged
of terrorism. The crimes are enumerated, like:
Art. 122 Piracy and Mutiny;
Art. 134 Rebellion or Insurrection, is a
predicate crime when committed in furtherance of
Terrorism; thus rebellion is absorbed in Terrorism;
Art.134-a Coup dEtat, including acts
committed by private persons, why is including acts
included? Because Coup dEtat is committed by military
officers or police officers with or without civilian support,
unlike Rebellion which is mainly committed by private
persons;
Article 248 (Murder);

Piracy vs. Robbery on the High Seas


Piracy, offender is an outsider. Robbery on the
high seas, offender is a member of the compliment or a
passenger of the vessel.
When piracy is committed and accompanied with
murder, homicide, rape or physical injuries, it cannot be
complex with piracy, it is Qualified Piracy.
The Anti-Hijacking law will not apply and the
crime is punished under RPC or the applicable special
penal laws, if the aircraft is a Philippine registry but is NOT
in flight. Crime committed is either grave coercion or
grave threat; if somebody is killed the crime is homicide
or murder, as the case may be. If the aircrafts is of foreign
registry, is it required to be in flight before RA 6235 to
apply? The answer is NO, because aircrafts of foreign
registry are considered as in transit while they are in
foreign countries. Is there hijacking in the attempted
stage? NO.

Article 267 (Kidnapping and Serious Illegal


Detention);
Article 324 (Crimes Involving Destruction);
Special Penal Laws

1.

Presidential Decree No. 1613 (The Law on


Arson);

2.

Republic Act No. 6969 (Toxic Substances


and Hazardous and Nuclear Waste Control
Act of 1990) Importation, manufacturing,
processing, distributing, selling and disposing of
unregulated chemicals as well as keeping or
storage and disposal of nuclear waste and
hazardous substances, even in transit;

3.

Republic Act No. 5207, (Atomic Energy


Regulatory and Liability Act of 1968)
Production and use of atomic energy facilities and
atomic energy materials which is subject by the
control of the state. Here nuclear damage,
licensing dangerous substances is not allowed;

4.

Republic Act No. 6235 (Anti-Hijacking Law);

5.

Presidential Decree No. 532 (Anti-Piracy


and Anti-Highway Robbery Law of 1974);
and,

Crimes against the Law of Nations vs. Crimes


against National Security
Crimes against the law of nations can be
prosecuted anywhere in the world, because these crimes
are considered as crimes against humanity. Crimes
against national security may only be tried in the
Philippines. The acts against national security may be
committed abroad and still be punishable under our law,
but it cannot be tried under foreign law.
An Act to Secure the State and Protect our People
from Terrorism
R.A. 9372: The Human Security Act of 2007
It is the policy of the State:

1.
2.

To protect life, liberty, property


To condemn terrorism
How do you classify terrorism?
The law says: Crime against National
Security, Crime against the Filipino People,

Criminal Law Review 1st Installment

6.

Presidential Decree No. 1866, as amended


(Decree Codifying the Laws on Illegal and
Unlawful Possession, Manufacture, Dealing
in, Acquisition or Disposition of Firearms,
Ammunitions or Explosives)

These are the predicate crimes. Any one, two or


three of these crimes must be committed in furtherance of
Terrorism. If other crime/s is committed in furtherance of
terrorism, it does not fall under this law.
Next element: thereby sowing and creating a condition of
widespread and extraordinary fear and panic among the
populace. Widespread and extraordinary fear must be
proven. Widespread and extraordinary no definition
(grey area). Also to be proven, panic among the populace.
What is the purpose? The purpose is to coerce the
government to give in to an unlawful demand;
otherwise, there is no terrorism. So if you commit
widespread and extraordinary fear and panic but no
demand, there is NO terrorism. Purpose must be proven.
Unlawful demand no definition. Penalty is 40 years of
imprisonment without the benefit of parole.
There is also a crime known as conspiracy to
commit terrorism.
X, Y and Z conspired to commit terrorism, but did
not commit terrorism. They are liable for Conspiracy only.
There is conspiracy when two or more persons come to an
agreement concerning the commission of the crime of
terrorism and decide to commit the same. But they have
not commit terrorism; they only decided to commit
terrorism.
Accomplice any person not being principal,
cooperates in the execution of either the crime of
terrorism or conspiracy to commit terrorism. Penalty is 17
years 4 months to 20 years.
Accessory, just follow the definition of Art. 17 and
18 of RPC.
Letter C here says (c) by harboring, concealing,
or assisting in the escape of the principal or conspirator of
the crime. So if a person harbors or conceals or assists in
the escape of the principal or conspirator, he is liable
under Sec. 6 (RA9372) as well as violation of PD 1829.
Because the law (PD 1829) says, any person who
knowingly or willfully obstructs, impedes, frustrates, etc.,
the apprehension of suspects and the prosecution and
investigation of criminal cases x x x, there is a long
enumeration, one of which states: (c) harboring,
concealing, facilitating the escape of any person, he knows
or has reasonable ground to believe or suspect has
committed any offense under existing penal laws. So the
accused is charged under Sec. 6 RA 9372 as well as PD
1829 Sec. 1 (c)
Section 7. Surveillance of Suspects
Interception and Recording of Communications.

and

Related law is Republic Act 4200. It is not true


that you cannot wiretap, you can wiretap under 4200 if
there is a court order; and the crimes are specified. You
can file petition to wiretap with the Regional Trial Court.
In RA 9372, to conduct surveillance, interception and
recording of communication of terrorists or suspected
terrorists or members of terrorist organizations, you have
to apply with the Court of Appeals. BUT there must be a
recommendation from the ATC, Anti Terrorist Council.
Section 7 states: The provisions of Republic Act
No. 4200 to the contrary notwithstanding, a police or law
enforcement official and the members of his team may,
upon a written order of the Court of Appeals, listen to,
intercept and record, with the use of any mode, etc., of
electronic or other surveillance equipment or intercepting
and tracking devices, or with the use of any other suitable
ways and means for that purpose, any communication,
message, conversation, discussion, etc. x x x.
Who are the targets? Members of judicially
declared an outlawed terrorist organizations, any person

charged with or suspected of the crime of terrorism or


conspiracy to commit terrorism.
EXCEPTION: No surveillance, no interception - between
lawyers and clients (privileged communication), doctors
and patients (privileged communication), journalists and
their sources (under the gag law) and confidential
business correspondence.
There must be a formal application for judicial
authorization to intercept, record, etc. Application is EX
PARTE. Duly authorized in writing by the ATC is required.
Section 9. Classification and Contents of the
Order of the Court - Classified information
Section 10 Effective period.
This is the order of the Court of Appeals. Effective
for the length of time specified in the order which shall not
exceed a period of 30 days from receipt of written order,
after which it becomes fuctos officio (not sure). What is
the lifetime of a search warrant? 10 days. How about writ
of execution? Actually, no lifetime but you can serve it
within 5 years, after which you have to file revival of
judgment.
Extendible or renewable for 30 days from
expiration of original period, it is granted only if public
interest is involved. If the original applicant is physically
disabled or is deceased, then one next in rank shall file
the application. If no case is filed within 30 days, the
applicant police or law enforcement official shall
immediately notify the person subject of the surveillance,
interception and recording of the termination of such
surveillance, interception and recording.
Section 11. Custody of Intercepted and Recorded
Communications.
Who shall be the custodian?
Deposit it with the authorizing division of the
Court of Appeals in a sealed envelop or sealed package
accompanied by joint affidavit.
Section 12. Contents of Joint Affidavit
Section 13. Disposition of Deposited Material.
Materials shall be deemed and are hereby
declared classified information, sealed envelope or sealed
package shall not shall not be divulged, revealed, etc., as
evidence unless authorized by written order of the
authorizing division of the Court of Appeals. If you want to
open the sealed envelop, you should file an application
with the Court of Appeals stating the purpose or reason.
Section 15. Evidentiary Value of Deposited Materials.
What is the evidentiary value of the listened to,
intercepted or recorded communications, messages,
conversations, etc.? It shall absolutely not be admissible
and usable as evidence against anybody in any judicial,
quasi-judicial, legislative, or administrative investigation,
inquiry, proceeding, or hearing.
There is a penalty for an unauthorized or
malicious interception, 10 years and 1 day to 12 years.
(Sec. 16)
(important) Section 17. Proscription of Terrorist
Organizations, Association, or Group of Persons. Any
organization, etc., organized for the purpose of engaging
in terrorism, or which, although not organized for that
purpose, actually uses the acts of terrorism to sow and
create a condition of widespread and extraordinary fear
and panic among the populace x x x.
It has to sow AND create a condition of widespread AND
extraordinary fear.
So if you want to declare an organization,
association, etc. illegal, file an application with the
Regional Trial Court initiated by the Department of
Justice, with due notice and opportunity to be heard; be
declared as a terrorist and outlawed organization,
association, or group of persons by the said RTC. So the

Criminal Law Review 1st Installment

leaders and members may be punished under Art 147 of


the RPC, Illegal Association. There is no mention of filing
fee under Sec. 17.
Section 18 is important because the RPC and portions of
the Rules of Court are modified. In Art. 125 Delay in the
delivery of detained person to the proper judicial
authorities; in a warrantless arrest, you have to file for a
criminal charge within 36 hours (max). It is different
under RA 9372, x x x duly authorized in writing by the
Anti-Terrorism Council has taken custody of a person
charged with or suspected of the crime of terrorism or the
crime of conspiracy to commit terrorism shall, without
incurring any criminal liability for delay in the delivery of
detained persons to the proper judicial authorities, deliver
said charged or suspected person to the proper judicial
authority within a period of three days (72 hours)
counted from the moment the said charged or suspected
person has been apprehended or arrested, detained, and
taken into custody. Those suspected of the crime of
terrorism or conspiracy to commit terrorism must result
from the surveillance under Section 7 and examination of
bank deposits under Section 27.

Section 23, there is a requirement to keep a


securely and orderly maintained official custodial log book.

Procedure is different. If an ordinary criminal is


arrested, it is taken directly to the police station or
nearest jail, while under this law he is taken directly to the
judge, for the judge to see personally. The law says, the
police or law enforcement personnel concerned shall,
before detaining the person suspected of the crime of
terrorism, present him or her before any judge at the
latter's residence or office nearest the place where the
arrest took place at any time of the day or night.

Under Philippine laws, before this law, there is no


house arrest. In the RPC, there is somewhat house arrest
but only when the crime is punishable by arresto menor, if
accused cannot be placed in jail. This law (RA9372), for
the first time provide for house arrest, states, x x x he or
she may also be placed under house arrest by order of the
court at his or her usual place of residence, BUT cannot
use telephone, cell phone, email, internet or any other
means of communication. When the accused is acquitted,
the restriction shall be terminated.

What is the duty of the judge?


-

To ascertain the identity of the police or law


enforcement personnel (CCPO, NBI, etc.) and the
person or persons they have arrested and
presented before him or her
To inquire of them the reasons why they have
arrested
the
person
and
determine
by
questioning and personal observation whether or
not the suspect has been subjected to any
physical, moral or psychological torture by whom
and why.
Submit a written report of what he/she had
observed when the subject was brought before
him to the proper court that has jurisdiction over
the case of the person thus arrested. The judge
shall forthwith submit his/her report within three
calendar days from the time the suspect was
brought to his/her residence or office.

Immediately after taking custody of a person


charged with or suspected of the crime of terrorism or
conspiracy to commit terrorism, the police or law
enforcement personnel shall notify in writing the judge of
the court nearest the place of apprehension or arrest:
Provided, That where the arrest is made during Saturdays,
Sundays, holidays or after office hours, the written notice
shall be served at the residence of the judge x x x.
Section 19 Period of detention in the event of an
actual or imminent terrorist attack.
In the event of an imminent terrorist attack, suspect may
not be detained for more than 3 days without written
authority or approval of either of the following: municipal,
city or regional official of a human rights commission,
MTC, RTC, Sandiganbayan or CA.
If the arrest is made during a Saturday, Sunday,
holiday or after office hours, residence of any of the
officials mentioned above. The approval in writing of any
of the said officials shall be secured by the police or law
enforcement personnel concerned within 5 days after the
date of the detention of the person concerned. Penalty for
failure to deliver the suspect is 10 years and 1 day to 12
years.
Section 21 Rights of the person under custodial
investigation (reiteration of previous laws). Penalty of
violation of the rights of detainees is 10 years and 1 day
to 12 years (Sec. 22).

Section 24 No torture, coercion, investigation and


interrogation. Penalty is 10 years and 1 day to 12 years
(Sec. 25).
(important) Section 26 Restriction on travel. In
cases where evidence of guilt is not strong and the person
charged with the crime of terrorism or conspiracy to
commit terrorism is entitled to bail and is granted the
same, the court upon application by the prosecution shall
limit the right to travel of the accused to within the
municipality or city where he resides or where the case is
pending.
So, granted bail because the evidence is not
strong; the suspect is freed but there are restrictions, one
of which is to limit the right to travel. Travel outside the
municipality or city without authorization means violation
of the terms and conditions of bail, which means bail will
be cancelled and the suspect will be re-incarcerated.

Section 27 Judicial authorization to examine bank


deposits.
Related law is Anti-Money Laundering Law. Under
the Anti-Money Laundering Law, if you want to inquire to
bank deposits, there must be a recommendation from the
Anti-Money Laundering Council (AMLC). Under the
Anti-Terrorism law, there must be a recommendation also
but from Anti-terrorism council (ATC), who shall also
file the application. Under Sec. 27, the application shall be
filed with the Court of Appeals (designated as special
court to handle anti-terrorism cases). You must prove the
existence of probable cause. What is the prayer? To
examine or cause the examination of the deposit and
gather or cause the gathering of any relevant information
about such deposits, placements or trust accounts.
Section 28 Application
There must be a written order of the CA
authorizing the examination of bank deposits, etc.
Section 29 Classification and contents of court order
authorizing the examination of bank deposits.
There must be an order issued by the Court of
Appeals. What is the nature of bank deposits, etc.?
CLASSIFIED information (for your eyes only).
Section 30 Effective period of court authorization
Effective for the length of time specified in the
written order of the authorizing division of the CA which
shall not exceed 30 days from date of receipt of the
written order. It may be extended or renewed but not for
more than 30 days. If no case is filed within 30 day
period, then applicant police or law enforcement official
shall immediately notify in writing the person subject of
the bank examination.
Section 31 Custody of bank data and information
obtained
Where deposited? In the authorizing division of
the Court of Appeals which is accompanied by a joint
affidavit, contents of which are mentioned in Sec. 32.
Section 33 Disposition of bank materials
The sealed envelop or sealed package and
contents thereof which is deposited shall be deemed and
hereby declared classified information.

Criminal Law Review 1st Installment

Section 34 Procedure in application to open bank


materials
Section 35 Evidentiary value of information, data,
excerpts, summary, etc., shall absolutely NOT be
admissible and usable as evidence against anybody in any
judicial, quasi-judicial, legislative or administrative
investigation, inquiry, proceeding or hearing. Penalty for
unauthorized or malicious examination is 10 years and 1
day to 12 years (Sec. 36).
Penalty of bank officials or employees defying
court order, meaning refusal to allow examination of
deposits, 10 years and 1 day to 12 years (Sec. 37).
There is also a penalty for false or untruthful
statement or misrepresentation of material fact in joint
affidavit, 10 years and 1 day to 12 years (Sec. 38).
Section 39 Seizure and sequestration
The deposits and their outstanding balances,
placements, trusts, etc., shall be seized, sequestered, and
frozen in order to prevent their use, transfer, or
conveyance for purposes that are inimical to the safety
and security of the people or injurious to the interest of
the State.
So a suspected terrorist who has funds in the
bank, there is a freeze order. You cannot use the funds of
bank deposit.
EXCEPTION (second par.), accused or a person
suspected of may withdraw such sums as may be
reasonably needed by the monthly needs of his family,
etc. family's medical needs upon approval of the court.
What is the nature of the seized, sequestered and
frozen bank deposits?
Section 40 Deemed as property held in trust by
the bank or financial institution.
Section
41
Disposition
of
Sequestered and Frozen Bank Deposits

the

Seized,

Suppose the suspect is found innocent or is


acquitted after his arraignment or his case is dismissed,
the seizure, sequestration and freezing of his bank
deposits, placements, etc., shall forthwith be deemed
lifted shall be deemed released from such seizure,
sequestration and freezing, and shall be restored to him
without any delay.
If convicted then trial court may issue an order for the
automatic forfeiture of the sequestered and frozen bank
deposits in favor of the government.
Suppose you are a suspected terrorist, you
deposited P20, 000, which was seized - (last par.) upon
his or her acquittal or the dismissal of the charges against
him or her, the amount of P500.000.00 a day for the
period in which his properties, assets or funds were seized
shall be paid to him on the concept of liquidated damages.
(No assessment)
One of the dangers sought is collusion between
the suspected terrorist and law enforcement personnel.
Aside from the P500,000.00 a day as liquidated damages,
you also have P500,000.00 a day of detention; it would be
P1,000,000.00 a day, taken from the police funds.
Penalty for unjustified refusal to restore, etc.
penalty of ten (10) years and one day to twelve (12)
years of imprisonment. (sec. 42)
Penalty for the loss, misuse, diversion or
dissipation of seized, sequestered and frozen bank
deposits, placements, trust accounts, assets and records.
penalty of ten (10) years and one day to twelve (12)
years of imprisonment. (Sec. 43)
There is a different law on infidelity in the
custody of detained persons.

Any public officer who has direct custody of a


detained person etc. and who by his deliberate act,
misconduct, or inexcusable negligence; the penalty is
twelve (12) years and one day to twenty (20) years of
imprisonment (Sec. 44). In RPC its only prision
correccional.
Section 45
government witnesses

Immunity

and

protection

of

Section 46 Penalty for unauthorized revelation of


classified materials, 10 years and 1 day to 12 years of
imprisonment.
Section 47 Penalty for furnishing false evidence,
forged document, or spurious evidence, penalty of 12
years and 1 day to 20 years
Section 48 Continuous trial, Monday to Friday
Section 49 Prosecution under this act shall be a bar to
another prosecution under the RPC or any special penal
laws (that is the consequence). The acquittal of the
accused or the dismissal of the case shall be a bar to
another prosecution for any offense or felony which is
necessarily included in the offense charged under this Act.
Remember the predicate crimes. If you commit
kidnapping, when acquitted in terrorism, you are also
acquitted in kidnapping.
Section 50 Damages for unproven charge of
terrorism
Upon acquittal, any person who is accused of
terrorism shall be entitled to the payment of damages in
the amount of P500,000.00 for every day that he or she
has been detained or deprived of liberty or arrested
without a warrant as a result of such an accusation.
So P500, 000 per day if acquitted plus
sequestered funds P500, 000. You have P1 million a day.
Where is it taken? The law says, the amount of
damages shall be automatically charged against the
appropriations of the police agency and shall also be
released within 15 days from the date of the acquittal of
the accused.
The award of damages mentioned above shall be
without prejudice to the right of the acquitted person to
file criminal or administrative charges against those
responsible for charging him with terrorism.
Any officer, employee, personnel, or person who
delays the release or refuses to release the amounts shall
suffer the penalty of six months imprisonment.
Section 51 Duty to record and report the name
and address of the informant. Real name and the specific
address of the informant
There is an Anti-Terrorism Council task to
implement the anti-terrorism policy of the country (Sec.
53).
Before this law, under our jurisprudence, CHR may only
investigate but cannot prosecute. Its no longer under this
law.
Section 55 The Commission on Human Rights
shall have the concurrent jurisdiction to prosecute
public officials, law enforcers, and other persons who may
have violated the civil and political rights of persons
suspected of, or detained for the crime of terrorism or
conspiracy to commit terrorism.
Section 56 Grievance Committee
Section 57 Ban on Extraordinary Rendition
(primer discussion) Section 58 is important
because this is an exception to Art. 2 of the RPC on
territorial jurisdiction.
One of the provisions, when you are already a naturalized
foreign citizen and you are a victim of terrorism, the
Philippine government can prosecute the terrorist even if

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you are no longer a Filipino as long as you are a foreigner


of Filipino descent.

There are ten (10)


fundamental laws of the state.

crimes

against

the

Section One. Arbitrary detention and expulsion


R.A. 9372: Human Security Act of 2007
Sec. 58 is not an amendment but an addition to
Art. 2 of the RPC on territorial jurisdiction. Subject to the
provisions of an existing treaty of which the Philippines is
a signatory and to any contrary provision of any law of
preferential application like RA 75. The provisions of this
Act shall apply: (1) to individual persons who commit any
of the crimes defined and punished in this Act within the
terrestrial domain (meaning land), interior waters (like
lakes or bays), maritime zones and air space of the
Philippines; [number 2 is an exception to principle of
territoriality] (2) to individual persons, who although
physically outside the territorial limits of the Philippines,
commit any of said crimes on board Philippine ship or
Philippine air ship. How do you determine citizenship of a
ship or air ship? Its registration, not actual ownership.
The next is also an exception to the principle of
territoriality (3) to individual persons who commit any of
said crimes within any embassy, consulate, or diplomatic
premises belonging to the Republic of the Philippines or
occupied by Philippine government in an official capacity
[ownership here is not material; what is important is
occupancy by government officials]; [Judge skipped this:
(4) to individual persons who, although physically outside
the territorial limits of the Philippines, commit, conspire or
plot to commit any of the crimes defined and punished in
this Act inside the territorial limits of the Philippines] (5)
to individual persons who, although physically outside the
territorial limits of the Philippines, commit said crimes
against Philippine citizens or persons of Philippine descent,
where their citizenship or ethnicity was a factor in the
commission of the crime [so Filipino citizen whos already
an American citizen, after naturalization, and is the object
of a terrorist attack, Philippine courts can take cognizance
of the case and exercise jurisdiction over the offense
charged]; and (6) to individual persons who, although
physically outside the territorial limits of the Philippines,
commit said crimes directly against the Philippine
government. I repeat this law is an exception to the
principle of territoriality.
Sec. 59 Joint Oversight Committee. The Committee shall
render semi-annual report to both Houses of Congress on
the effectivity and enforcement of this law. The report
may include where necessary a recommendation to
reassess the effects of globalization on terrorist activities
on the people. The courts dealing with anti-terrorism
cases shall submit to Congress and the President a report
every six (6) months. So those are the salient features of
the Anti-Terrorism Law.
Title Two: CRIMES AGAINST THE
FUNDAMENTAL LAWS OF THE STATE
You know what is the fundamental law the
Constitution. Constitutional provisions relative to rights of
people found in Art. III Bill of Rights. What are the
rights of persons under Art. III? To be secure in their
houses, papers and effects against unreasonable searches
and seizure, freedom of expression, freedom of speech,
freedom to peaceably assemble, etc. These fundamental
freedoms must be protected and any violation of Art. III
must be criminalized. That is the reason why its included
in Title II crimes against the fundamental laws of the
state. You know what is the purpose of the Bill of Rights?
To protect citizens, including aliens, from excesses, from
abuses, committed by public officers and employees. So,
usually, crimes against the fundamental laws of the state
are committed by public officers and employees. But
private persons may also be held liable for violation of
crimes against the fundamental laws of the state if private
persons conspire with public officers and employees in
committing the offenses.
Chapter
One:
ARBITRARY
DETENTION
OR
EXPULSION,
VIOLATION
OF
DWELLING,
PROHIBITION, INTERRUPTION, AND DISSOLUTION
OF PEACEFUL MEETINGS AND CRIMES AGAINST
RELIGIOUS WORSHIP

There three (3) classes of arbitrary detention, the


first of which is Art. 124, the epigraph is arbitrary
detention. Who is the offender? Opening statement of Art.
124, any public officer or employee. But make no mistake
about this not all public officers or employees may be
held liable for arbitrary detention. Only public officers
vested with authority to detain or order the detention of
persons accused of crime like police officers, agents of the
law, judges and mayors. If the detention is perpetrated by
other public officers, the crime committed is not arbitrary
detention, but illegal detention under Art. 267 or Art. 268
of the RPC. Here, the public officer or employee detains a
person without legal grounds. Meaning, the act of the
public officer or employee is illegal from the beginning.
Please take note of the words without legal grounds,
meaning no probably cause. In warrantless arrest or
lawful warrantless arrest, there must be probable cause. If
there is none, then the arrest and detention are illegal.
When is there a detention? When a person is placed in
confinement or there is restraint on his person. Id like to
emphasize the second restraint because restraint here is
the essence of arbitrary detention. Without legal
grounds there are legal grounds for detaining a person.
Arbitrary detention may be committed through
imprudence.
The law does not fix any minimum period of
detention. It may be three minutes, three hours, three
days. The penalty varies. If the detention has not
exceeded three days, if the detention has continued more
than three days but not more than fifteen days, if the
detention has continued for more than 15 days but not
more than six months or if the detention shall have
exceeded six months.
There are legal grounds for detaining a person
under Art. 124 commission of a crime, violent insanity
or any other ailment requiring compulsory confinement.
Art. 125 Delay in the delivery of detained
persons to the proper judicial authorities. Delivery here
does not mean physical delivery of the person detained.
Deliver here means filing of a criminal action in court.
Detention here is legal from the beginning. It became
illegal after the lapse of a certain period. The law says
public officer or employee who shall detain any person for
some legal ground meaning there is lawful warrantless
arrest, there is probable cause to effect a warrantless
arrest, but the public officer or employee failed to deliver
the person arrested to the proper judicial authorities,
meaning no case was filed within the following periods:
twelve (12) hours, for crimes or offenses punishable by
light penalties, or their equivalent; eighteen (18) hours,
for crimes or offenses punishable by correctional
penalties, or their equivalent and thirty-six (36) hours, for
crimes, or offenses punishable by afflictive or capital
penalties, or their equivalent. And do not forget under the
Anti-Terrorism Law, how many days? 3 days (72 hours).
There are rights of persons arrested under
custodial interrogation or detained. There is a special law.
In addition to right to remain silent, right to counsel, a
person detained and arrested has a right to be visited by a
member of the family, right to be visited by a doctor or
physician, right to be visited by a priest or minister of the
gospel or imam, in the case of Muslims, and other rights
under said special law.
Now if the offender here is a private person, the
crime is illegal detention. Suppose, a police officer saw a
person walking briskly and then looking side by side and
he was arrested. He was asked in court, of course, he was
cross examined, why did you arrest the accused?
Answer: Because he looked suspicious. What do you
mean by he looked suspicious? When arrested, there
was shabu. That is a classic case of arbitrary detention
no probable cause. But suppose there are facts and
circumstances in support of the claim of the police officer
that that guy really committed a crime. He arrested the

Criminal Law Review 1st Installment

accused. He turned out to be innocent. Is the police officer


liable for arbitrary detention? The answer is no because
there was probable cause but it turned out to be false. In
other words, if the police officer is in good faith, he is not
liable criminally or administratively. So what is the
meaning of this phrase shall fail to deliver such person to
the proper judicial authorities? In many cases, the
Supreme Court said, it does not consist in the physical
delivery but in making an accusation or charge or filing of
information against the person arrested with the
corresponding court or judge. If there is warrantless
arrest, the procedure is to conduct an inquest
investigation. What is the purpose of inquest to be
conducted by the prosecutor? The purpose is to ascertain
whether there was probable cause for effecting
warrantless arrest.
Proper judicial authorities mean courts of
justice or judges of said courts. Remember under the AntiTerrorism Law, the suspect must be brought to the
residence of the judge if the courts are not open. There
are periods to be remembered here 12, 18, 36. Suppose
the police officer arrests and detains a person on top of a
mountain and when they came down, there was flood.
They could not cross. Three (3) days have passed and
there was still flood. Is he justified in releasing the
suspect because its already more than 36 hours? The
answer is no. You have to consider several factors in
computing the number of hours. So for the purpose of
determining criminal liability, a person or an officer
detaining a person for more than the time prescribed by
Art. 125, the following shall be considered: means of
communication; hour of arrest and other circumstances; if
the courts are closed; if the office of the city prosecutor is
closed, meaning, you cannot file case against the suspect,
you cannot institute any criminal action, then the time
when the courts and offices of the prosecutors are closed
should not be considered.

reasonable doubt. Second paragraph, the BBRC jail


warden is directed to release the accused unless there is
any other legal ground for his continued detention. There
is an order of release. It was served on the warden but
the latter did not release the accused right away. Thats
violation of number two, Art. 126]; (3) unduly delaying
the proceedings upon any petition for the liberation of
such person [there is a petition for the issuance of a writ
of amparo, there is a petition for the issuance of writ of
habeas corpus. The Rule says the two (2) petitions must
be given preference. Number one in the calendar because
it involves the life and liberty of a person. The judge may
be held liable. There may be compelling reasons not to
give preference to those cases. Wardens and jailers are
the public officers most likely to violate Art. 126.
Art. 127 Expulsion. This is a violation of the
constitutional right of a citizen liberty of abode or of
changing the same. Only the President of the Philippines
can expel or deport an alien under the act of state
doctrine. Art. 127 says public officer or employee who,
not being authorized by law: (1) shall expel a person from
the Philippines; or (2) shall compel such person to change
his residence. If these were committed by a private
individual, these may be a crime known as grave coercion
or maybe grave threats. Are there exceptions to Art. 127?
Yes, there are exceptions. You can compel a person to
change his residence. What are the cases? (1)
expropriation [of course, if the court will issue a writ of
possession, it means that the occupant shall be ousted
from the premises to place the plaintiff in peaceful
position; (2) ejectment; (3) in cases of emergency when
public safety requires [When the volcano is about to
erupt. You are living at the peak of that volcano and you
are not willing to evacuate. You may be forced to evacuate
the place
Section Two. Violation of domicile

Violation of Art. 125 does not affect the legality


of confinement and their process issued by a court.

There are three (3) crimes known as violation as violation


of domicile.

The illegality of detention is not cured by the


filing of information in court. In criminal procedure, if your
client was illegally arrested, before arraignment, you must
file a motion to quash. On what ground? Lack of
jurisdiction over the person of the accused. Why lack of
jurisdiction? Because he was illegally arrested. If before
arraignment, you did not file a motion to quash, the
consequence is that you are deemed to have waived your
right to question the legality of the arrest.

Art. 128 Violation of domicile proper. There are


three [3] acts under Art. 128: (1) entering any dwelling
against the will of the owner thereof [this may be express
or implied prohibition. If the police officer passed through
the window, even if there was not prohibition, thats
violation of domicile. You are not supposed to pass
through the window if there is a door. Worse, if the police
officer would insist on entering the dwelling, that s
violation of domicile; (2) searching papers or other effects
found therein without the previous consent of such owner
[a police officer who was looking for the suspect knocked
on the door and was allowed to enter the house. While
inside, he opened the cabinets and got papers. That is
violation of domicile. Remember, in the example, he was
allowed to enter the house. But then there was violation of
domicile because he searched papers and other effects
without the previous consent of the owner. It does not
matter what kind of paper, harmful or harmless or
whatever as long as the search is unauthorized, it is
violation of domicile under Art. 128; (3) refusing to leave
the premises, after having surreptitiously entered said
dwelling, and after having been required to leave the
same [a police officer surreptitiously entered the house
through the backdoor because it was opened. When the
owner saw him, he was asked to leave and he left. Is
there violation of domicile? None. There is only unjust
vexation. Why? Because the law says after having been
required to leave the same, refused. He did not refuse.
He left when asked to leave. Its only violation of domicile
if he refused to leave.

The prosecutor is not liable. He recommended


the filing of information so the judge issued a warrant of
arrest. Is he liable if it turned out that the arrest is illegal?
The answer is no. The only exception is if he conspired
with the public officer in illegally arresting and detaining a
suspect.
What is the remedy if a warrant of arrest is
illegally or improvidently issued? The remedy is to file a
motion to quash the warrant of arrest. Habeas corpus is
not the remedy. Certiorari is not the remedy. In fact
before you file a petition for certiorari, you must file a
motion for reconsideration per Rule 65. So you have to
distinguish Art. 124 (Arbitrary Detention) and
Art. 125 (Delay). Arbitrary detention detention
is illegal from the beginning; delay detention was legal
from the beginning but it later became illegal for failure to
commence or institute criminal action.
Art. 126 is Delaying release. There are three (3)
acts punished: (1) delaying the performance of any
judicial or executive order for the release of a prisoner [by
the way, only the court can order the release of a prisoner.
There is already a decision acquitting the accused for
failure of the prosecution to prove his guilt beyond
reasonable doubt, but the judge did not issue an order of
release so the jail warden will not release the accused in
the absence of a court order. Thats an example of number
one]; (2) unduly delaying the service of notice of such
order to said prisoner [Wherefore judgment is hereby
rendered acquitting the accused of the crime charged for
failure of the prosecution to prove his guilt beyond

The offender must be a public officer or


employee. If committed by a private person, what is the
crime? Trespass to dwelling. But if a private person
conspires with a public officer or employee to commit
violation of domicile, then the private person is liable.
Against the will of the owner. It presupposes
opposition or prohibition by the owner whether express or
implied. Lack of consent would not suffice. Offenders
entry must be over the objection of the occupant under
the first mode.

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Art. 129 Search warrants maliciously obtained


and abuse in the service of those legally obtained. When
is a search warrant said to be maliciously obtained?
Answer is when there is no probable cause; when the
police officer lied to the court [He said there is shabu
there, firearms there, but all false. He said so just so he
could enter the house. That is search warrant maliciously
obtained.
Abuse in the service of those legally obtained.
Here, the search warrant was legally obtained. There was
probable cause but there was abuse in the service thereof.
Procuring search warrant without just cause. The
witnesses lied to the judge. What are the crimes
committed? Two crimes search warrants maliciously
obtained and perjury. There is no double jeopardy because
the law says in addition to the liability attaching to the
offender for the commission of any other offense. The
phrase in addition to the liability means that if the public
officer lied to the court, he may be held liable for perjury.
So, in addition to Art. 129, perjury is committed.
Then next, exceeding his authority. Search
warrant says violation of Sec. 11, Art. 2, RA 9165
(possession of dangerous drugs). When they entered the
house, they were looking for firearms. That is exceeding
authority. Search warrant says search house no. 5. they
searched nos. 5 and 6. That is exceeding authority.

Public Assembly Law.


Salient features of the law. If you want to
conduct mass action and you want to use government
property, ask permit from the municipal mayor. The
municipal mayor is given a certain number of days to act,
either to deny or to grant. If the mayor fails to act on the
application, then you can conduct peaceful mass action
sans any permit. If you are going to conduct mass action
in a private place, you only need to ask permission from
the owner. The law says every city or municipality must
have a freedom park where you can conduct mass action
even without a permit. Theres none in Cebu City. We have
a freedom park but the freedom park there is a place
where people sell flowers, dried fish. Theres none. Three
[3] acts are punished under Art. 131: (1) by prohibiting or
interrupting, without legal ground, the holding of a
peaceful meeting, or dissolving the same [you know the
constitutional right to peaceably assemble and to seek
redress of grievances. The meeting must, however, be
peaceful. If the meeting is peaceful, it must not be
dissolved. Who is the offender? Public officer or employee,
who without legal ground.]; (2) hindering any person from
joining any lawful association or from attending any of its
meetings [self-explanatory]; (3) prohibiting or hindering
any person from addressing any petition to the authorities
for the correction of abuses or redress of grievances.

Using unnecessary severity in executing a search


warrant. The search warrant was perfectly valid. There is
probable cause. I invite your attention to knock-andannounce rule in political law. If you have a search
warrant, you must knock first at the door then introduce
yourself as a police officer and show the search warrant.
In People vs. Wang, they were Chinese nationals, they
were in a hotel room and there were reports that they
were in possession of large quantities of drugs. So search
warrant was issued. Perfectly valid. You know what they
did? When they arrived in the hotel room, they kicked the
door so the door was destroyed and seized the dangerous
drugs. Convicted by the RTC, acquitted by the Supreme
Court. Supreme Court said even if they are not Filipino
citizens, they are covered by Art. III of the Constitution.
You violated the knock-and-announce rule. Although the
search warrant was valid, there is a crime known as abuse
in the service of a legally procured search warrant.
Although there is an exception to that rule knock-andannounce - what is that exception? Exception is armed
and dangerous.

The right to peaceful meeting is not absolute.


There are many cases Navarro v. Villegas, Reyes v. CA
and other cases.

Another example is severity in executing the


search warrant. They are looking for shabu. According to
them, the drugs are inside the jars, which are expensive.
The said jars are found inside the locked cabinet. Instead
of waiting for the owner to get the keys of the lock, the
police officers hit the cabinet. That is unnecessary
severity. Its a violation of Art. 129.

Take note of the meaning of ceremonies or


manifestations of any religion.

The offender here must be a stranger, not a


participant of a peaceful meeting. Because if he were a
participant, he may be liable for violation of Art. 287
unjust vexation.
Interrupting and dissolving the meeting of
municipal council by a public officer is a crime against
legislative body, not punished under Art. 131. If theres a
meeting of the Sanggunian and you are making noise, it
does not fall under crimes against the fundamental laws of
the state.
Section Four. Crimes against religious worship
Art. 132 Interruption of religious worship. Any
public officer or employee who shall prevent or disturb the
ceremonies or manifestations of any religion.

Qualified interruption if committed with violence


or threats. Violence and threats are absorbed in
interruption of religious worship.

Art. 130 Searching domicile without witnesses.


Under the Revised Penal Code, Rules of Court, if you
search a house and you have a search warrant, there
must be witnesses, preferably the owner of the house, the
occupant of the house, if none, relatives, if none, two [2]
residents of the place. The procedure of the police in the
raid in Pasil, the barangay tanod was from Pardo. Wrong!
Residents of the place. So searching domicile without
witnesses.

Art. 133 Offending the religious feelings. Take


note that this is the only crime under Art. 133 where a
private person may be held liable. It says any person, not
public officer or employee. The law says shall be imposed
upon anyone, not necessarily public officer or employee,
in a place devoted to religious worship or during the
celebration of any religious ceremony shall perform acts
notoriously offensive to the feelings of the faithful. Place
devoted to religious worship. It is not necessary that there
is a religious ceremony going on. Religious ceremonies are
those acts performed outside of a church like processions.
Acts notoriously offensive to the feelings of the faithful,
meaning, the acts must be directed against religious
practice or dogma or ritual for the purpose of ridicule,
smocking or scoffing at or attempting to damage an object
of religious veneration.

In cases where search is proper, but the search


was done in the absence of the owner of the place or any
member of his family, or in their default, without the
presence of two witnesses residing in the same locality.

There must be deliberate intent to hurt the


feelings of the faithful. If there is none, then the crime
may be committed under other provisions of the Revised
Penal Code.

There is a test of lack of just cause: whether the


affidavit filed in support of the application for search
warrant has been drawn in such a manner that perjury
could be charged thereon and the affiant be held liable for
damages caused.

Section Three. Prohibition, interruption and


dissolution of peaceful meetings
Art. 131 Prohibition, interruption and dissolution of
peaceful meetings.

Short Quiz
1-3.

Give at least three (3) predicate crimes of


terrorism.
Piracy,
mutiny,
rebellion,
insurrection,
coup
detat,
murder,

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kidnapping, serious illegal detention, crimes


involving destruction, law on arson, toxic
substances, anti-hijacking, anti-piracy
4.

What is the lifetime or effective period of a Court


of Appeals order authorizing surveillance of
terrorist suspects and interception and recording
of their communications? 30 days maximum

5.

Who shall have custody of intercepted and


recorded communications of terrorist suspects?
Authorizing division of the CA

6.

If a suspected terrorist is legally arrested without


warrant, within what period should he be charged
in court? 3 days (72 hours)

7.

What is the duty of the police or law enforcement


personnel before detaining a person suspected of
committing the crime of terrorism? Present him
to the judge

8.

What is the effective period of court authorization


to examine and obtain information on bank
deposits, assets, etc. and records of suspected
terrorist? 30 days

9.

How much shall be paid to a suspected terrorist if


his bank deposits, assets or funds were seized
but the charges against him were dismissed?
Php500,000.00

10.

The accused was charged with terrorism with


insurrection as the predicate crime. If he is
acquitted of the crime of terrorism, may he be
charged of insurrection? No

Useful notes (Starting from Art. 124):


Is it necessary that the public officer be a police
officer for him to be held liable for arbitrary detention? No.
It is important, however, that the public officer must be
vested with the authority to detain or order the detention
of persons accused of crime. A treasurer is a public officer.
If he arrests and detains a person without legal ground or
grounds, he is not liable for arbitrary detention but for
serious illegal detention.
Arbitrary detention vs. Illegal detention
Arbitrary detention vs. Unlawful arrest
In arbitrary detention, the offender is a public
officer or employee possessed with authority to make
arrests; in unlawful arrest, the offender may be any
person, public officer or employee, or private person.
Most important is, what is the purpose? In
arbitrary detention, the purpose for detaining the offended
party is to deny him of his liberty, restraint of liberty; in
unlawful arrest, the purpose is to accuse the offended
party of a crime he did not commit, to deliver the person
to the proper authority and to file necessary charges in a
way trying to incriminate him. Almost always, there is
incriminating innocent person plus unlawful arrest. Usual
cause for arbitrary detention is arrest without warrant.
Astorga v. People decided on Oct. 1, 2003. The
mayor of a municipality in his capacity as mayor connived
with other persons and detained DENR employees without
legal and valid grounds by not allowing them to leave the
municipality. In fact, the victims were allowed to go down
from the house they were brought, but they were not
allowed to leave the barangay. So the mayor was charged
with the crime of arbitrary detention. He argued that he
cannot be made liable because the victims were not kept
in an enclosure. In fact, the victims or offended parties
were free to go out from the house where they were
confined. Supreme Court said arbitrary detention because
the essence of the crime is restraint of liberty. Supreme
Court said arbitrary detention exists even if the victims
were not kept in an enclosure. In establishing the intent to
deprive the victim of his liberty, it is not necessary that he
be kept within an enclosure to restrict her freedom of
locomotion. The prevailing jurisprudence on kidnapping

and illegal detention is that the curtailment of the victims


liberty need not involve any physical restraint upon the
victims person. If the acts and actuations of the accused
can produce such fear in the mind of the victim sufficient
to paralyze the latter to the extent that the victim is
compelled to limit his own actions and movements in
accordance with the wishes of the accused then the victim
is, for all intents and purposes, detained against his will.
If a person is arrested pursuant to a warrant of
arrest, within what period should the police officer
turnover the arrested person to the judicial authority?
Actually, there is no time limit. The Rules of Court only say
after the arrest, the arrestee should be turned over to
the nearest police station or jail. No period is fixed by the
court.
What is the essence of the crime of expulsion?
Essence is coercion. If committed by a private person, it is
coercion. If committed by a public officer, its expulsion.
If any of the punishable acts under Art. 127 is
committed by private person, what crime can he be made
responsible for? According to majority of the authorities,
grave coercion. See also Villavicencio v. Lucban.
What is the crime committed if aliens are
deported without an order of the President or the
Commissioner of the BI? The crime committed is
expulsion.
Who has the authority to order a person to
change his residence? Only the courts by final judgment.
Are the provisions of Art. 128 violation of
domicile applicable if the occupant of the premises is not
the owner? The answer is yes. It would be sufficient if the
inhabitant is the lawful occupant, using the premises as
his dwelling although he is not the owner of the place.
Art. 131 Prohibition, interruption, dissolution
(PID) to be held liable it is necessary that the offender
be a stranger, not a participant of the meeting that has
been interrupted and dissolved. If the offender is a
participant of the meeting he is liable for unjust vexation.
If the application for the permit to peaceably
assemble is arbitrarily denied, what crime is committed
(under the Public Assembly Law)?
What is the distinction between PID (prohibition,
interruption or dissolution) from tumults and other
disturbances of public order (Art. 153)?
In Art. 131, PID ((prohibition, interruption or
dissolution), the public officer is not a participant of the
meeting; he is a third party. Under tumults, the public
officer is a participant of the assembly. PID, committed by
public officer; tumults, offender need not be a public
officer.
Offending religious feelings. Art. 133 is the only
crime against fundamental laws of the state that may be
committed not only by a public officer but also by a
private person.
What are religious ceremonies covered by Art.
132 and 133? They are those religious acts performed
outside of a church.
What is the meaning of notoriously offensive?
Offense or feeling is judged from complainants point of
view. There must be intent to hurt the feelings of the
faithful.
Title Three: CRIMES AGAINST PUBLIC ORDER
There are twenty-four (24) crimes against public order.
Chapter one is rebellion, coup detat, sedition,
disloyalty. Subject of several debates, is there complex
crime of coup detat with rebellion. Its discussed by some
authors.

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Art. 134 is rebellion or insurrection. Actually,


insurrection here is misplaced. Theres no word
insurrection in the 1987 Constitution. Committed by rising
publicly and taking arms against the government. What is
the purpose? There are two [2] purposes. (1) Remove
from the allegiance of said government or its laws the
territory, etc. or any body of land, etc.; (2) Deprive the
Chief Executive or Congress, wholly or partially, of any of
their powers or prerogatives.
Rebellion is a political crime. Why political?
Because the object is to change the political order of
society. Take note public uprising, taking arms against the
government. But make not mistake about rebellion. Not all
those who take arms against the government will be
spared from prosecution because in rebellion, there are
armed and unarmed components (spies, couriers, nurses,
doctors, etc.) who may not have been engaged in actual
combat against the forces of the government. If the
unarmed components conspired with those who directly
take up arms or engage in combat against the forces of
the government, they are equally liable.
Rebellion is a continuing crime. One of the cases,
Pumil v. Ramos. An NPA was recuperating in the hospital
because he suffered gunshot wounds. He unarmed. He
was arrested by police officers. He said what crime did I
commit? Supreme Court said rebellion is a continuing
crime. You cannot split several acts of the accused and
file several cases of rebellion. If you fire one thousand
bullets, there is only one crime rebellion. If you ambush
in Leyte then you go to Samar, then to Bohol, continuing
crime. Only one crime rebellion.
Take note of the purposes because we have to
distinguish rebellion from coup detat. We should know
what the purpose of the offenders in coup detat is.
Rebellion and insurrection are not synonymous.
The purpose of rebellion is overthrow of the government.
Insurrection, to effect some change of minor importance
or to prevent the exercise of governmental authority with
respect to particular matters or subjects. If the EDSA, socalled revolution, failed, the crime is not rebellion, but
insurrection only, but it succeeded.
Nature of the crime of rebellion, crime of masses
or multitude. Coup detat can be committed by a single
person. Only one may commit coup detat. Actual clash of
arms and the forces of government, not necessary to
convict the accused who is in conspiracy with others
actually takings arms against the government. There are
armed and unarmed components.
You should know the purpose or motive of
uprising. If the motive is personal, not political, it is not
rebellion. It may be kidnapping, murder, homicide or
arson.
Rebellion vs. Treason
If the act of levying war against the government
is to give aid or comfort to the enemy, the crime is
treason. If otherwise, then its rebellion.
Never mind the distinction between rebellion and
subversion because Republic Act 1700, the AntiSubversion Law, as amended by Batas Pambansa 885,
was already repealed.
Is there complex crime of rebellion and common
crimes? The jurisprudence still remains. People v.
Hernandez, Enrile v. Salazar. Others contend that
rebellion can be complexed with common crimes like
Boado, Ortega and others. But we should follow the
Supreme Court decision Enrile v. Salazar.
Art. 134-A Coup detat. Coup means swift.
How committed? Swift attack accompanied by violence,
intimidation, threat, strategy or stealth. Thats the mode
of attack. Rebellion, rising publicly and taking up arms.
More or less protracted war, prolonged. Why swift?
Because offenders are insiders. They may even be inside
Malacanang. They have positions in the government. Only
military officers and policemen can commit coup detat

with or without civilian support. Coup d etat swift.


Rebellion protracted. Mode? Rebellion rising publicly
and taking up arms. Coup d etat swift attack. Directed
against whom? Against duly constituted authorities of the
Republic of the Philippines or any military camp or
installation, communication network, public utilities or
other facilities needed for the exercise and continued
possession of power. Rebellion crime of the multitude or
the masses. Its a mass movement. There is a mass
action. Coup d etat the law says, singly or
simultaneously carried out anywhere in the Philippines by
any person or persons. Can be committed by one person.
If I were the Chief of Staff of the Armed Forces or the Sec.
of National Defense, Ill arm myself with a 45 caliber
pistol. I will enter the room of the President, Mr.
President, Im taking over. The armed forces is with me.
Thats coup d etat. Swift. Why? He is an insider. That is
the essence of coup d etat. In the case of Honasan v.
Panel of Investigators, the Supreme Court, through Jusitce
Ynarez-Santiago, coup d etat can only be committed by
members of the military or police or holding public office
or employment, with or without civilian support. Coup d
etat consists mainly of the military personnel and public
officers and employees, seizing the controlling levers of
the government. What are the controlling levers?
Communications network, public utilities, television, radio,
etc. Belonging to the military or police or holding any
public office or employment, with or without civilian
support or participation. And what is the purpose? Purpose
is to seize and diminish state power. It does not
necessarily mean replacement of the system of
government. Coup d etat is a crime committed in relation
to office. Which court has jurisdiction? According to
Ynarez-Santiago, only Sandiganbayan. But who will
conduct the preliminary investigation? In the case of
Honasan v. Panel of Investigators, DOJ or Ombudsman
may conduct preliminary investigation. The responsibility
to conduct preliminary investigation is a shared
responsibility, meaning, concurrent.
Art. 135 Penalties. When the rebellion,
insurrection, or coup d'etat shall be under the command
of unknown leaders, any person who in fact directed the
others, spoke for them, signed receipts, etc. or performed
similar acts, on behalf of the rebels shall be deemed a
leader. So penalty depends upon leadership and
participation.
Political crimes v. Common crimes.
Political directly aimed against political order.
Art. 136 Conspiracy and proposal to commit
coup d'etat, rebellion or insurrection. If X, Y, Z, W and 100
others conspired to commit rebellion, etc., theyre already
liable under Art. 136 even if they did not commit overt
acts of rebellion. If they conspired and took up arms
publicly or rise publicly and take arms against the
government, the crime is not only conspiracy, its
rebellion. In conspiracy, there must be no rebellion
committed. In proposal, the persons to whom rebellion is
proposed must not commit rebellion. Because if the
person who proposes rebellion is so effective and then
after proposing rebellion, the people committed rebellion,
he is principal by induction in the crime of rebellion,
insurrection or coup detat. He is not only liable for
proposal under Art. 136. In proposal, there must be no
overt act of rebellion. Merely agreeing and deciding to rise
publicly and take up arms, etc. for purposes of rebellion is
already subject to punishment.
Disloyalty of public officers or employees. From
the President down to the barangay captain. They take
their oath of office to defend the Constitution, obey the
laws and the duly constituted authorities. There is only
one duly constituted authority. If you join the rebels, then
you are disloyal because the rebels are not the duly
constituted authorities. There is no crime of disloyalty if
there is no rebellion. The law says public officers or
employees who have failed to resist a rebellion by all the
means in their power. Thats number one. (1) Failing to
resist a rebellion by all the means in their power.
Offenders public officer or employee. Theres a mayor,
20 policemen with machine gun, m14, armalite, tank.
When attacked with 15 NPAs, they ran away. That is
disloyalty. Why? They failed to resist the rebellion by all

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the means in their power. Another example: NPAs entered


the town. The mayor was told to continue acting as the
mayor. There is only one duly constituted authority. You
are committing number two, (2) continuing to discharge
the duties of their offices under the control of the rebels.
Thats disloyalty under Art. 137. Third act (3) accepting
appointment to office under them. Rebel: What is your
rank? Offender: Sergeant. Rebel: I will make you
lieutenant. Thus, he became lieutenant under the rebels.
That is disloyalty for accepting appointment to office
under them. Another example: NPAs sent the mayor a
letter informing him that they would attack in the evening.
The mayor told them not to worry for he would order all
the policemen to R and R. What crime did he commit?
Rebellion, not only disloyalty. Why? Because he conspired
with the rebels in committing rebellion. According to
Reyes, the crime of disloyalty of public officers
presupposes the existence of rebellion by other persons.
The offender must not be in conspiracy with the rebels
because if he were in conspiracy with the rebels, then he
is not only liable for disloyalty but also for the crime of
rebellion.
Art. 138 Inciting to rebellion or insurrection.
Any person who, without taking arms or being in open
hostility against the Government, shall incite others to the
execution of any of the acts mentioned in Art. 134. If he
participated in taking arms against the government or if
he was in open hostility against the government, then he
is not liable for inciting to rebellion only but he is liable for
rebellion. Shall incite others. If after inciting, the people
committed rebellion, he is not liable for inciting to
rebellion only, but liable for rebellion as principal by
induction. How? By means of speeches, proclamations,
writings, emblems, banners or other representations
tending to the same end. The inciter must not be a
participant because if he were a participant, then he is
liable for rebellion. Rebellion or insurrection does not
result because if it resulted in rebellion or insurrection,
then he is liable for rebellion. The incitement or the
inciting to rebellion must be premeditated. There must be
purpose to incite. If outburst only, the crime is not inciting
to rebellion, some other crime.
Inciting to rebellion must be distinguished from
proposal to commit rebellion. Rebellion should not be
committed.
Art. 139 Sedition. By the way, coup detat and
rebellion are political crimes. Sedition is not necessarily
political. Object may be political or social. Act of hate or
revenge even against private persons. Sedition, how
committed? Rising publicly and tumultuously. No words
taking arms. In order to attain by force, intimidation, or
by other means outside of legal methods. Sedition, even if
without force or intimidation, but there are other means
outside of legal methods, the offender is liable for sedition
under any of these numbers 1-5.
Rebellion rising publicly, taking up arms against
the government. Coup detat swift attack. Sedition
rising publicly and tumultuously. In sedition, the purpose
is not to change the government; its to create disorder,
commotion, chaos, etc.
First act (1) to prevent the promulgation or
execution of any law or the holding of any popular election
[before, former Mayor Borres was sued for sedition
because he was shouting at the radio that those in
COMELEC are cheaters. Bomb them! Throw grenade,
dynamite at them. He wanted to prevent the holding of
election]; (2) to prevent the National Government, or any
provincial or municipal government or any public officer
from freely exercising its or his functions, or prevent the
execution of any administrative order [it must be public
and tumultuous. If against public officer or employee, but
not public and tumultuous, direct assault. Direct assault
has the same aim as sedition minus tumultuous uprising];
(3) to inflict any act of hate or revenge upon the person or
property of any public officer or employee [the rubblerouser then said This government is a cheater. Theres
one bodega of NFA rice, but the rice were just stolen by
people in NFA. Lets attack them! Lets destroy the door of
that bodega and well get the rice! That is sedition, if the
act is characterized as tumultuous]; (4) to commit, for

any political or social end, any act of hate or revenge


against private persons or any social class [Tenant: Our
landlord, our haciendero, we were not given our rightful
share. Their bodega is full of rice but ours is only root
crops. Lets attack their bodega! Lets kill our landlord!
But the landlord was not around. That is sedition. Act of
hate or revenge against private person. Not only public
officers or employees or government could be offended
parties, but also private persons]; (5) to despoil, for any
political or social end, any person, municipality or
province, or the National Government, of all its property
or any part thereof [same problem, same situation: if the
tenants attacked the bodega of the landlord and took the
rice, it is sedition because the law says to despoil. What
is the meaning of to despoil? To rob. For any political or
social end, any person, (may be private person), of all its
property or any part thereof. Nature of crime raising of
commotions or disturbances in the state. Ultimate
objective violation of public peace.
What distinguishes rebellion from sedition is the
objective or purpose. If the purpose is to overthrow the
government, its rebellion. In sedition, it is sufficient that
the public uprising is tumultuous.
Sedition must be distinguished from treason.
Sedition cannot be committed by one person. Its rising
publicly and tumultuously. Tumultuous means more than
three persons armed with means of violence.
Art. 140 Penalty for sedition.
Art. 141 Conspiracy to commit sedition. Mere
conspiracy is punished. X, Y, Z, W conspired to commit
sedition liable. There is no proposal to commit sedition,
limited to conspiracy only.
JUNE 08, 2010
Quiz:
1.

A group of civilians swiftly attack the Supreme Court,


Congress, Office of the President etc. for the purpose
of seizing or diminishing state power. Is this coup
d'etat? NO.

What is the reason? Because rebellion is directed


against the Executive and Congress, not Judiciary.
2.

Armed rebels by means of speeches, proclamation,


writing and etc incited the people to commit rebellion.
What is the answer? Rebellion. Remember armed
rebel. Not inciting to rebellion because in inciting to
rebellion, the inciter must not be a rebel. Di ba
without taking arms against the government by
means of speeches.

Mary Ann: Sir, it's not rebellion, you mentioned of armed


rebel, one rebel, but rebellion is a crime of masses, you
did not mention that there were other rebels. So my
answer was no crime.
Judge: Ah, there is a presumption that he was in
conspiracy with the other rebels. Armed rebel, meaning, a
participant in the crime of rebellion.
Mary Ann: But there was no mention that there were
other rebels.
Judge: I presumed, ok, just give consideration, inciting to
rebellion.
3.

yes or no? yes (not discussed)

4.

While congress was in session, a policeman arrested a


Congressman with a pending warrant of arrest for
homicide, is the police liable for parliamentary
immunity? No. Because the peanalty for homicide is
reclusion temporal. Mulapas na gani sa pricion
correccional, wala nay parliamentary immunity. (If
the penalty of the crime for which the person is
accused of exceeds pricion correccional, there is no
longer parliamentary immunity)
R.A. 8294: ILLEGAL POSSESSION

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In relation to rebellion, sedition, coup dtat, we


have to study P.D. 1866 as amended by R.A. 8294 and
again amended lately. P.D. 1866 or R.A. 8294 is a decree
who defined the laws on illegal and unlawful possession,
manufacture, dealing in acquisition.
There are two kinds of firearms under this law: 1.
High -powered and 2. Low-powered.
There are many Supreme Court decisions
involving R.A. 8294. The last is People vs Selino. Before
Selino, People vs wanpan lajalan.
Section 1: Any person who shall unlawfully manufacture,
deal in, acquire, dispose or possess any low-powered
firearm. (What is the meaning of low-powered firearm?)
such as rimfire handgun, .380 or .32 and other firearm of
similar, part of firearm, ammunition or machinery, tool or
instrument used or intended to be used in the
manufacture of any firearm or ammunition
What are the elements of illegal possession of
firearm? The following:
1. Possession. May be constructive or actual
(physical).
e.g. You have a house, there is a firearm inside
your house, that's constructive possession. You have a car,
a firearm is found in the baggage compartment, not in
your personal possession, since you are the owner of the
car, in evidence that you're the owner, you must be in
control and possession of the thing you own, that's
constructive possession.
Personal possession, in your pocket, in your
wasteline, in a bag that you personally carry.
2. Animus possedendi. Intent to possess. Not
criminal intent because R.A. 8294 is mala in se, but mala
prohibita. Why is that important? Because if somebody
place a firearm in your bag, you may be in possession of it
but you have no intent to possess, you are not therefore
liable.
What is the length of time before a person can be
charged of illegal possession of firearm? 1 minute? 2
minutes? 1 day? Suppose 3 persons while walking on the
street found a .38 caliber revolver and Mr. X picked it up
and 3 policemen arrived and due to m\Mr. X's panic, he
passed the revolver to his companion (Mr. Y), and passed
it again to their other companion (Mr. Z). And the police
arrested Mr. Z (last touch) for illegal possession. There
was actually no intent to possess or animus possedendi. If
possession is casual, no intent to possess, or you're just
checking it out of curiosity, that's not illegal possession of
firearm.
3. Lack of license or authority. There are two
kinds of licenses. License to carry outside of residence and
license to maintain a firearm in your residence. You may
have a license to maintain a firearm in your residence but
no license to carry a firearm outside. That's illegal
possession of firearm. If the license is expired, it's illegal
possession of firearm.
Lack of license or authority. It's the Firearms and
Explosives Division of the PNP who is authorized to issue
license. You want to get a certification that you are a
licensed firearm holder? Secure it from the Firearms and
Explosives Section. It is a negative element; lack of
license or authority. So the general rule, the prosecution
must prove the third element, negative element. Because
in a long line of decisions, many accused were acquitted
for failure of the prosecution to prove the third element.
How do you prove the negative element? Present a
witness. A witness will testify, and when you ask him
whether or not he has a license, what was the answer?
No. Then you have already proven the negative element
of lack of license or authority. Better still, you secure a
certification from the Firearms and Explosives Section of
the PNP to the effect that the accused is not a licensed
firearm holder. Previous decision, paltik, you need not
prove lack of lack of license or authority. Latest edition,
2009, Supreme Court changed its previous decision,

even if its paltik, you present evidence that the


accused had no license or authority. Is there an
exception to the general rule that the prosecution has to
prove lack of license or authority? YES. If you possess
armalite or M-14, prosecution need not prove the negative
element because no civilian is authorized to possess M-14
or even hand grenade.
In another case, the accused is charged of
violation of R.A. 8294, possession of explosives.
Convicted. He argued in the Supreme Court that it's not
an explosive beacause it was not tested. Supreme Court
said that it need not be tested to be considered an
explosive.
In illegal possession of firearm, ownership is not
an element. People vs de Gracia. Sergeant de Gracia
was guarding a small building where the firearms of the
ram were placed. Hundreds of firearms were placed there
by Coronel Honasan and Coronel Matillano. He was
guarding the building; he was arrested and was charged
with illegal possession. He said "Im not the owner, the
owners are Coronel Honasan and Coronel Matillano".
Supreme Court said that ownership is immaterial.
Then Ladjalang. What is this case of Ladjalang?
In Ladjalang, the Supreme Court said that If the firearm is
used in committing another crime, you cannot prosecute
hm foe illegal possession of firearm. Even if the other
crime is punishable by arresto menor only, such as unjust
vexation, if you charge against a person unjust vexation,
you cannot prosecute him for illegal possesssion of firearm
because another crime was committed. The Supreme
Court was criticized by police officers. So it changed its
decision. In two years time gi-usab. People vs Selino.
you have to prove the other crime first before you
drop the illegal possession of firearm case. Then
another case, if you possess an unlicensed firearm during
election period, two cases: illegal possession and violation
of gun ban. So you cannot drop illegal possession. If the
prosecution can prove gun ban, illegal possession of
firearm can be dismissed.
So low-powered firearm, jurisdiction MTC,
reason: penalty is 6 years and below. Please take note,
provided that no other crime was committed in paragraph
1 because if another crime was committed, i repeat, the
illegal possession case will be dismissed but you have to
prove first that another crime was committed. We thought
before that if you possess barrel, trigger, or if a gun is no
longer working, there is no illegal possession because the
firearm is not complete. Wrong. Even if you have in you
only barrel or trigger, you can be charged of illegal
possession. Example, you have a trigger of 357 magnum,
a high powered firearm, higher penalty. But then to
accommodate Robin Padilla, Senator Revilla Sr. passed a
law, provided no other crime was committed, reducing the
penalty, nagawas si Robin Padilla. So this is called the
Robin Padilla Law, R.A. 8294. So now, if you have a barrel
or trigger of 357 magnum, what is the crime committed?
Illegal possession of low-powered firearm. Ang trigger,
trigger of a high-powered firearm is also considered illegal
possession of low-powered firearm because the laws says
in defining low-powered firearm,
"who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any low powered firearm,
such as rim fire 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"
so even if it's only a barrel or trigger of a firearm
or even a revolver, that is punishable under section 1, part
of firearm. And if what is involved is only a part of a highpowered firearm, considered low-powered firearm.
Second paragraph (Section 1) is high-powered:
RTC. 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

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15

firing capability of full automatic and by burst of two or


three: Provided, however, That no other crime was
committed by the person arrested."

person or persons, the use of such explosives, detonation


agents or incendiary devices shall be considered as an
aggravating circumstance.

meaning, if the accused used an unlicensed


firearm and another crime was committed, he cannot be
prosecuted for illegal possession of firearm but the latest
decision is Selino, you have to prove the other crime. If
homicide or murder is committed you cannot prosecute
the accused for illegal possession of firearm because such
use of an unlicensed firearm is considered as an
aggravating circumstance absorbed in homicide or murder.

"If the violation of this Sec. 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.

"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."
(3rd
paragraph,
Section
1)
"If the violation of this Sec. 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." (4th paragraph, Section 1)

"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."
What is the definition of 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.

Because in rebellion, rising publicly and taking


arms. Please take note, attempted coup d'etat. Why
attempted? Because if the coup d'etat is successful who
else would prosecute? They are the ones already in power,
why should you prosecute yourself?

Take note that the use of the these 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 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." (5th paragraph, Section 1)

Presumption of unlawful manufacture, you just read


section 4.

If you have a security agency and you give


unlicensed firearms your guards, you are also liable. Of
course you cannot imprison the corporation, so who will
be liable? The owner, president, manager, director or other
responsible officer.

If there is 357 magnum, high-powered, it has a


high penalty. While I was still on practice, we plead to a
lesser offense. So what is the lesser offense of illegal
possession of firearms? You check P.D. 1866, instead of
illegal possession of firearm, plead only tampering of
firearm's serial number. So from 17 years, you have
prision correccional, ubos kaayo, then file petition for
probation, your client is released.

For carrying licensed firearm, take note, carrying


licensed firearm, outside the residence without legal
authority, arresto mayor.
"The penalty of arresto mayor shall be imposed
upon any person who shall carry any licensed firearm
outside his residence without legal authority therefor."
(6th paragraph, Section 1)
Section 2: Presumption of illegal manufacture of
firearms and ammunition (not dicussed)
Section
3:
Unlawful
manufacture,
sale,
acquisition, disposition or possession of explosives. This
section on explosives is basically the same with firearms,
that if used in furtherance furtherance of, or incident to, or
in connection with the crime of rebellion, insurrection,
sedition or attempted coup d'etat = ABSORBED. If used in
murder or homicide = AGGRAVATING CIRCUMSTANCE

Section 5 is tampering of firearm's serial number.


Penalty is prision correccional . Probationable.
"Sec. 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 the serial number of any firearm.

Section 6 is repacking or altering the composition


of lawfully manufactured explosives (not discussed)
Section 7 is unauthorized issuance of authority to
carry firearm and ammunition.
Chapter Four: ASSAULT UPON, AND RESISTANCE
AND DISOBEDIENCE TO, PERSONS IN AUTHORITY
AND THEIR AGENTS
Next is CHAPTER 4: Assault upon and resistance and
disobedience to persons in authority and their agents.

"Sec. 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.

Art. 148. Direct assaults. Any person or persons who,


without a public uprising, shall employ force or
intimidation for the attainment of any of the purpose
enumerated in defining the crimes of rebellion and
sedition, or shall attack, employ force, or seriously
intimidate or resist any person in authority or any of his
agents, while engaged in the performance of official
duties, or on occasion of such performance, shall suffer
the penalty of prision correccional in its medium and
maximum periods and a fine not exceeding P1,000 pesos,
when the assault is committed with a weapon or when the
offender is a public officer or employee, or when the
offender lays hands upon a person in authority. If none of
these circumstances be present, the penalty of prision
correccional in its minimum period and a fine not
exceeding P500 pesos shall be imposed.

"When a person commits any of the crimes


defined in the Revised Penal Code or special laws with the
use of the aforementioned explosives, detonation agents
or incendiary devices, which results in the death of any

Article 148: Direct Assault. If you want to answer


correctly, you should know the essence of the crime, you
should know the reason behind the law or passage of the
law. What is the essence or nature of direct assaults.

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Direct assault punishes spirit of lawless and contempt or


hatred for the authority or the rule of law. You do not
respect authority. If there's a police, you know he's a
police, serving a warrant of arrest, you disobeyed, then
you defy authority. If there's a mayor, enforcing an
ordinance and you know he's a mayor, sukol ka, that is
direct assault. You do not respect authority. That is the
essence of direct assault. If there's a professor of a
recognized private school that you don't like, you boxed
him, that is direct assault. Other examples: a layer crossexamining, a sherrif serving writ of attachment or writ of
execution.
Direct assault may be committed against private
persons.In direct assault there may be material
consequences, it may result in death, it may result in
frustrated homicide, it may result in physical injuries. That
is only incidental to the main purpose of lawlessness. or
lack of respect. Int he case of Ladjalang, Lagjalang knew
that police officers were going to serve a search warrant,
he picked up his armalite and fired upon the police officers
who served the search warrant. Defiance of law is the
spirit behind the doing of the act. So the offender is
utterly lawless or is against the law.
The accused are not numerous enough to
constitute an uprising, if more than 3 and the uprising is
tumultuous, it is sedition, if it is not tumultuous, but the
object is rebellion or sedition, it is direct assault. There is
an additional penalty for attacking an ambassador or
minister, R.A. 75. How do you distinguish direct assaults
from ordinary assaults resulting in physical injuries or
even death. Direct assaults are crimes against public
order, ordinary assaults, under Articles 263-266, crimes
against persons, murder, homicide, serious physical
injuries, less serious physical injuries, not slight pysical
injuries because it is absorbed in direct assault. There are
two ways of committing the crime of direct assaults:
1) without public uprising, by employing force or
intimidation for the attainment of any of the purposes
enumerated in defining the crimes of rebellion and
sedition. This may be committed against a private
individual, act of hatred or revenge against private
persons;
2) without public uprising,
by attacking, by
employing force, by seriously intimidating or seriously
resisting (please take note of the word 'seriously' before
intimidating and resisting) any person in authority or any
of his agents while engaged in the performance of official
duties or on the occasion of such performance.. So the
offended party may be assaulted while engaged in the
performance of official duty or by reason of the
performance of official duty. If he was assaulted by reason
of that official duty, you have to know the motive. If the
motive is not because of past performance, it is not direct
assault, it may be physical injuries. Example, if a judge
who is on his way to his court and a person, while waiting
for a taxi, had an altercation resulting to the judge being
punched, it is not direct assault because the judge was
not in the performance of his official duty, padung pa. Past
performance? No. What crime is committed? Of course if
there is no intention to kill, physical injuries, it may be
serious if a tooth has been removed, deformity. Direct
assault may be complexed with other crimes. Direct
assault with homicide. While in the performance of official
duty, a mayor has been assaulted. He went to a beach
resort to enforce and ordinance but he was shot to death
by the owner. That's direct assault with homicide. If it's
only the knee that has been shot, that's direct assault
with physical injuries. What is important is defiance. What
is the purpose? If the purpose is to defy the law, defy
authority, that is direct assault. Material consequences are
only incidental.
If the person assaulted is an agent of a person in
authority, the intimidation or resistance must be serious.
But if the person assaulted is a person in authority, the
degree of force is immaterial. However, the intimidation
must be serious. Please take note of the elements of the
first form of direct assault. Is it necessary that the
offended party in the first form of direct assault be a
person in authority or his agent? Article 148 does not
seem to require. Then take note of the elements of the

second form of direct assault. What is the meaning of


'attack'? It is an offensive or antagonistic movement or
action of any kind. What degree of force is required or is
necessary? It the offended party is only an agent of a
person in authority, the force employed must be of a
serious nature. But it need not be serious if the offended
party is a person in authority. But the intimidation or
resistance must be serious whether the offended party is
an agent only or he is a person in authority. The
resistance must be active and serious. The intimidation
must produce its effect immediately because if the
intimidation is not immediate, the crime is not direct
assault, it may be grave threat only.
=> Now who is a person in authority? Any
person directly vested with jurisdiction whether as an
individual or as a member of some court or government
corporation, etc. Brgy. Captain, Brgy. Chairman is a
person in authoriy. What is the meaning of 'directly vested
with jurisdiction'. It means the power or authority to
govern and excecute the laws. Governor, mayor are
persons in authority. Not all persons in authority are public
officers, not all public officers are persons in authority.
Who is an agent of a person in authority? An
agent of a person in authority is one who by direct
provision of law or by election or by appointment by
competent authority is charged with the maintenance of
public order and protection and security of life and
property (e.g. policemen, brgy tanods).
Third element: 'in the performance of duty or by
reason thereof' requires that at the time such assault or
intimidation is made upon the person in authority or his
agent is engaged in the actual performance of his official
duty or at least that the assault or the intimidation is done
by reason of the past performance of said duty. Now when
a person in authority goes beyond his powers and violate
any recognized rights of citizens, then the latter may
resist the invasion especially when it is clear and manifest.
Direct assault is committed even if several days
has transpired between the performance of duty and the
assault. When a person in authority or his agent is the one
who provokes and attacks another person, the latter is
entitled to defend himself and cannot be liable for direct
assault or resistance. Do not forget that in direct assault,
the accused must know that the person assaulted is a
person in authority or an agent of a person in authority.
Why is that important? Because if he knows that he is a
person in authority or an agent, and he defies him, that is
lawlessness, lack of respect. So knowledge of the accused
that the victim is a person in authority or an agent of a
person in authority is important. There is no direct assault
if the accused did not know that. One other point, this
knowledge must be alleged in the information because
this is one of the most important elements in direct
assault. If it is alleged in the information, but the
prosecution failed to prove that element, the crime is not
direct assault but physical injuries only if the victim did
not die because physical injuries is included in direct
assault as one of the elements.
What is the meaning of the phrase 'on occasion
of such performance'? It means that the impelling motive
of the attack is the performance of official duty. What is
the meaning of the phrase 'on occasion? It means the
cause or by reason of the past performance of past duty
even if at the very time of the assault no official duty is
being discharged. When is evidence of motive important in
direct assault. It is important when the assault is not done
in the actual performance of official duty.
Qualified direct assault: 1) committed with
weapon 2) offender is a public officer or employee 3)
offender lays hand upon a person in authority. Do not
forget, the crime of slight physical injuries is absorbed in
direct assault. Necessary consequence of the force or
violence inherent in all kinds of assault.
Next, Indirect Assault.
Art. 149. Indirect assaults. The penalty of prision
correccional in its minimum and medium periods and a
fine not exceeding P500 pesos shall be imposed upon any

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person who shall make use of force or intimidation upon


any person coming to the aid of the authorities or their
agents on occasion of the commission of any of the crimes
defined in the next preceding article.
Do not forget there is no indirect assault if there
is no direct assault. Any person who shall make use of
force or intimidation upon any person coming to the aid of
the authorities or their agents on occasion of the
commission of any of the crimes defined in Article 148. So
here a person in authority or his agent is the victim of the
forms of direct assault defined in Article 148 and a person
comes to the aid of such authority or his agent and then
the offender makes use of force or intimidation upon such
person coming to the aid of the person in authority or his
agent. Is the crime indirect assault if a private individual
who is aiding a policeman in making a lawful arrest is
attacked by a person to be arrested? It cannot be indirect
assault because the policeman who is being aided is not a
victim of direct assault. Is this direct assault? Answer is
no. The offended party in indirect assault may be a private
person.
Art. 150:
Disobedience to summons issued by the
National Assembly (Congress), its committees or
subcommittees, by the Constitutional Commissions, its
committees, subcommittees or divisions.
Here a person person who, having been duly
summoned to attend as a witness before the National
Assembly, (Congress), its special or standing committees
and subcommittees, the Constitutional Commissions and
its committees, subcommittees, or divisions, or before any
commission or committee chairman or member authorized
to summon witnesses, refuses, without legal excuse, to
obey such summons, or being present before any such
legislative or constitutional body or official, refuses to be
sworn or placed under affirmation or to answer any legal
inquiry or to produce any books, papers, documents, or
records in his possession, when required by them to do so
in the exercise of their functions. Or has restrain another
from attending as a witness, or who shall induce
disobedience to a summon or refusal to be sworn by any
such body or official.
Please take note of the phrase 'without legal
excuse'. If the witness is called to testify but the inquiry is
not in aid of legal legislation, but in aid of re-election, then
he will not be held liable under Article 150. The person
who disobeys may also be held in contempt of the
legislative body.
Article 151: Resistance and disobedience to a person in
authority or the agents of such person.
Any person who not being included in the
provisions of the preceding articles shall resist or seriously
disobey any person in authority, or the agents of such
person, while engaged in the performance of official
duties. The phrase 'by reason of past performance' is no
longer found here. So take note of that. What is the
concept? Failure to comply with orders directly issued by
the authorities in the exercise of their official duties. The
person in authority or his agent must be in the actual
performance of his official duty. Because there can be no
resistance or disobedience when there is nothing to resist
or disobey. The disobedience consist in the failure or
refusal to obey a direct order from the authority or his
agent. A person cannot be guilty of disobedience to an
order which is not addressed to him.
Paragraph 2 is simple imprudence.
disobedience which is not of a serious nature.

This

is

When the disobedience to an agent of a person in


authority is not of a serious nature, the penalty of arresto
menor or a fine ranging from 10 to P100 pesos shall be
imposed upon the offender.
You should distinguish direct assault from
resistance or serious disobedience. When the attack or
employment of force is not deliberate, the crime is only
resistance or disobedience.

Art. 152. Persons in authority and agents of persons in


authority; Who shall be deemed as such. Any person
directly vested with jurisdiction, whether as an individual
or as a member of some court or governmental
corporation, board, or commission, shall be deemed a
person in authority. A barrio captain and a barangay
chairman shall also be deemed a person in authority.
Meaning, power to govern, execute the laws or
administer justice. Teachers, professors, persons charged
with supervision of public or duly recognized private
schools, colleges snd universities shall be deemed persons
in authority. Also lawyers in the actual performance of
their professional duties or on the occasion of such
perfomance.Please take note that teachers, professors,
etc are persons in authority only for purposes of direct
assault, but not for indirect assault. Under the Local
Government
Code,
punong-barangay,
sangguniang
memebers and lupon members in their jurisdiction are
agents of persons in authority. So, if in one barangay, the
Chief Justice of lupong-tagapamayapa is attacked by a
respondent because of the performace of him being the
lupong-tagapamayapa, the crime is direct assault.
Chapter Five: PUBLIC DISORDERS
What is the essence of the crime? It is creating
public disorder. This crime is brought about by creating
serious disturbances in public places, public buildings and
even in private places where public functions or
performances are held. Like Cebu Coliseum, it i a
privately-owned place where public performances are
held, so if a person creates disorder, he may be held liable
under this chapter.
There are four crimes classified under public disorders.
1) Art. 153. Tumults and other disturbance of
public orders; Tumultuous disturbance or interruption
liable to cause disturbance. There are 5 acts punished
under this article:
a. causing any serious disturbance in a public place,
office, or establishment,
b. interrupting or disturbing public performances,
functions or gatherings, or peaceful meetings, if the
act is not included in the provisions of Articles 131
and 132.
c. making any outcry tending to incite rebellion or
sedition or in such place shall display placards or
emblems which provoke a disturbance of the public
order.
d. displaying placards or emblems which provoke a
disturbance of the public order in such place.
e. burying with pomp the body of a person who has
been legally executed.
The serious disturbance here must be planned or
intended. If not planned or intended, the crime may only
be punished under Article !55: Alarms. If the act of
disturbing or interrupting a meeting or religious ceremony
is committed by public officers, they're participants
therein, Article 153 should be applied.
How do you distinguish Article 131 from Article
153? In Article 131, the public officer is not a participant
while in Article 153, he is a participant. In Article 131, the
offender is a public officer, in Article 153, he need not be a
public officer.
What is the meaning of 'outcry'? In inciting to
sedition or rebellion, there is intention to incite the people
to commit sedition or rebellion. Here 'outcry', means to
shout subversive or provocative words tending to stir up
the people to obtain by means of words or violence any of
the objects of sedition or rebellion. So how do you
distinguish inciting to sedition or rebellion from public
disorder? In inciting to sedition or rebellion, the act must
be done with the idea aforethought of inducing his hearers
or readers to commit the crime of sedition or rebellion, if
the outcry is more or less an unconscious outburst which,
although rebellious or seditious in nature, is not
intentionally calculated to induce others to commit
rebellion or sedition, it is only public disorder.

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What is he meaning of the term 'tumultuos'?


More than three persons are armed with means of
violence.
2) Art. 154. Unlawful use of means of publication
and unlawful utterances. There are four acts punished:
a. publishing or causing to be published as news any
false news which may endanger the public order, or cause
damage to the interest or credit of the State;
b. encouraging disobedience to the law or to the
constituted authorities or praise, justify, or extol any act
punished by law;
c. maliciously publishing or causing to be published
any official resolution or document without proper
authority, or before they have been published officially; or
d. printing, publishing, or distributing or causing to be
printed, published, or distributed books, pamphlets,
periodicals, or leaflets which do not bear the real printer's
name, or which are classified as anonymous.
3) Art. 155. Alarms and scandals. Warning, there
is only one crime here, alarms and scandals, it's not
separate. Scandal here does not refer to immorality. The
essence here is disturbance of the tranquility and public
peace. The 'scandal' here is not grave scandal under crime
against public morals.
a. discharging any firearm, rocket, firecracker, or
other explosives calculated to cause alarm or danger;
b. instigate or take an active part in any charivari or
other disorderly meeting offensive to another or
prejudicial to public tranquility;
c. while wandering about at night or while engaged in
any other nocturnal amusements, shall disturb the public
peace; or
d. while intoxicated or otherwise, shall cause any
disturbance or scandal in public places, provided that the
circumstances of the case shall not make the provisions of
Article 153 applicable.
If the purpose is to disturb the tranquillity of the
community, it's alarms and scandals. If you discharge a
firearm, you shot the foot, without intending to kill the
person, that's discharge of firearm. But if you discharge a
firearm with the intention to kill the person, however you
missed, that's attempted homicide or murder as the case
may be. Was shot but the wound was not fatal-attempted
only; was shot and the wound was fatal but did not diefrustrated; person died-murder or homicide as the case
may be.
Instigating or taking an active part in any
charivari. E.g. Noise barrage.
Any person who while wandering about at night
or while engaged in any other nocturnal amusements. If
youre living inside a subdivision and you have a
neighbour who is practicing band disturbing the entire
subdivision, it's alarms and scandals. But if it's only you
who's being disturbed by your neighbour, that's not
alarms and scandals because it's not the entire community
that's affected. So what is the crime? Unjust vexation only
because the noise created annoyance.
In alarms and scandals, the offense must be
caused in a public place or must affect public peace but
the disturbance must only be of a minor degree, it is not
minor, that is public disorder already. It is not tumultuous.
Under paragraph 1, the discharge should not be
aimed at a person. If a person discharge a firearm in the
middle of the night without a particular target or subject,
that's alarms and scandals. But if there's a purpose such
as to threaten, as I said it's discharge of firearm.
'Which produces alarm or danger' means
calculated to cause alarm or danger. You follow the
Spanish text. If the disturbance is of a serious nature, the
case will fall under Article 153: Public disorder, not
paragraph 4 of this article.
4) Art. 156. Delivery of prisoners from jails. The
penalty of arresto mayor in its maximum period of prision
correccional in its minimum period shall be imposed upon

any person who shall remove from any jail or penal


establishment any person confined therein or shall help
the escape of such person, by means of violence,
intimidation, or bribery. If other means are used, the
penalty of arresto mayor shall be imposed.
If the escape of the prisoner shall take place
outside of said establishments by taking the guards by
surprise, the same penalties shall be imposed in their
minimum period.
So elements, there is a person confined in jail or
penal establishment, he may be a detention prisoner or a
convicted prisoner. Take the case of Rolito Go, he escaped,
his wife bribed and conspired with the guard on duty and
the guard off duty, a driver was already waiting for him
outside the jail, he was already convicted at that time.
What crime did the wife commit? Delivering prisoner from
jail. What crime did Rolito Go commit? Invasion of service
of sentence. What crime did the guard on duty commit?
Infidelity in the custody of the prisoner. Why infidelity?
Because the crime of infidelity can only be committed by a
custodian. How about the guard off duty? Delivering
prisoner from jail, not for infidelity because he was not the
custodian at that time. What crime did the driver commit?
Delivering prisoner from jail.
The offender here is usually an outsider. The
guard of the jail who is off duty may be held liable for
delivering prisoner from jail. Violence, intimidation or
bribery is not necessary. Bribery is not the offender's act
of receiving a bribe. What other crime was committed in
the Rolito Go case? On the part of the wife, in addition to
delivering prisoner from jail, corruption of public officer.
On the part of the person who received the bribe, the
crime is bribery.
A person delivering a prisoner from jail may be
held liable as accessory if the crime committed by the
prisoner for which he is confined or serving sentence is
treason, murder or parricide.
Chapter Six: EVASION OF SERVICE OF SENTENCE
There are three acts punished:
1) Art. 157. Evasion of service of sentence. The
offender is a convict by final judgment, he is serving
sentence which consist in deprivation of liberty, he evades
the service of his sentence by escaping during the term of
his sentence.
Latest decision on the matter. The judgment of
the court has scheduled for promulgation, the accused did
not appear, or he may have appeared but later on, he fled
or jumped bail, let's say the penalty will prescribe in 10
years. Then he reappeared after 10 years, he was charged
evasion of service, his defense was that he can no longer
be charged because the penalty has already prescribed.
Supreme court said NO because in evasion by escaping
which is Article 157, you will begin to count the
prescriptive period after the escape, meaning, sentence
then in jail/detain then escape. It is only after the escape
that the prescriptive period will begin to run. Supreme
court said prescription of penalty will not apply because he
never served prison. You have to at least be imprisoned,
even for an hour, before you escape in order for the
prescription of penalty to set in.
2) Art. 158. Evasion of service of sentence on the
occasion of disorder, conflagrations, earthquakes, or other
calamities; including mutiny in which he has not
participated. A convict who shall evade the service of his
sentence, by leaving the penal institution where he shall
ha ve been confined, on the occasion of disorder resulting
from a conflagration, earthquake, explosion, or similar
catastrophe, or during a mutiny in which he has not
participated, shall suffer an increase of one-fifth of the
time still remaining to be served under the original
sentence, which in no case shall exceed six months, if he
shall fail to give himself up to the authorities within fortyeight hours following the issuance of a proclamation by
the Chief Executive announcing the passing away of such
calamity.

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19

Convicts
who,
under
the
circumstances
mentioned in the preceding paragraph, shall give
themselves up to the authorities within the above
mentioned period of 48 hours, shall be entitled to the
deduction provided in Article 98.
E.g. The jail has been flooded which resulted to it
being opened in order for the prisoners to be saved; those
who returned, within 48 hours after the proclamation of
the President of the passing away of such calamity, shall
not be punished but shall instead be rewarded. So here,
it's failure to return that is punished.
3) Art. 159. Other cases of evasion of service of
sentence. Violation of conditional pardon.
Conditional pardon is a contract between the
President and the prisoner. And the president shall pardon
after the sentence shall have become final. So there is a
contract between the President and the prisoner for the
prisoner not to commit another crime during the period of
conditional pardon. If a person for example has been
charged of estafa during the period of conditional pardon,
can he be charged for violating Article 159: violation of
conditional pardon? The answer is a big NO. Why?
Because you can only be charged for violation of Article
159 after being convicted of the alleged crime committed
(2nd offense). Because there is a possibility that you will
be committed, meaning, you did not commit another
crime, you did nor violate the conditional pardon. Repeat,
a prisoner can only be charged with violation of
conditional pardon if the alleged crime committed resulted
in conviction.
The offender here can be rearrested and
reincarcerated without trial. You should distinguish
violation of conditional pardon from evasion of service.
Violation of conditional pardon does not disturb public
order. There is no evasion of service of sentence in the
following instances 1) if the escapee is only a detention
prisoner (not yet convicted); 2) if he is a youthful offender
under rehabilitation (but this is already modified by R.A
9344: Juvenile Justice Law); 3) there is no evasion if a
deportee
violates
the
deportation
order.
JUNE 10, 2010
Short Quiz
1.

PO1 Binay served a warrant of arrest issued by


the Sandiganbayan against Police Superintendent
Mar for the commission of the crime of
malversation. Police Senior Superintendent Mar
said You cannot arrest me. I am your superior
officer. Then he boxed PO1 Binay. What crime
was commited by Police Superintendent Mar?
Qualified direct assault

2.

What crime is committed if a policeman is pushed


and giving him fist blows without hitting him?
Resistance to an agent of person in
authority

3.

A lawyer cross-examined at witness. The witness


got irked. After the trial, they had an altercation
outside the court room. The following day, the
witness hit with fist blows the lawyer when they
met at the Ayala Mall. The lawyers front tooth
was extracted. What is the crime committed by
the witness? Serious physical injuries or
direct assault

4.

Is there self-defense in direct assault? Yes

5.

- 7. When is direct assault qualified?


committed with a weapon (even a stone is a
weapon); offender is public officer or
employee; offender lays hands upon a
person in authority

8. What crime is committed if a person disrupts a


meeting of the barangay council? Unjust
vexation or public disorder

9.

What crime is committed if a person fires a


handgun disturbing the tranquility of the
community? Alarms and scandals

10. What crime is committed if a person fires a


handgun for the purpose of scaring another
(there is no intention to kill)? Illegal discharge
of firearm or unjust vexation
Art. 160 Commission of another crime during
service of penalty imposed for another previous offense.
Quasi-recidivism. Art. 160 does not define a crime. It
defines a special aggravating circumstance. Where a
person, after having been convicted by final judgment [if
there is an appeal, there is no quasi-recidivism], shall
commit a new felony before beginning to serve such
sentence, or while serving the same [not after release].
Penalty maximum period prescribed by law for the new
felony. X committed estafa. Convicted. Served sentence.
While serving sentence, he was charged for violation of RA
9165 (Dangerous Drugs Law). Is he a quasi-recidivist?
The answer is no because the second offense must be a
felony (acts or omissions punishable by the Revised Penal
Code). Reverse, a person is convicted of violation of RA
9165 (Dangerous Drugs Law). While serving sentence, he
committed estafa. Is he a quasi-recidivist? Yes because
the first offense need not a felony. Only the second
offense must be a felony.
Distinguish quasi-recidivism from reiteracion. The
aggravating circumstance of reiteracion requires that the
offender against whom it is considered shall have served
out his sentence. In quasi-recidivism, while serving the
same. Served out his sentence for the prior offenses.
Basic Notes:
Can the crime of direct assault can be complexed
with the material consequence of the unlawful act? Yes.
Direct assault with homicide. Direct assault with serious
physical injuries or less serious physical injuries but not
direct assault with slight physical injuries. Slight is
absorbed in direct assault as an element.
Who is considered person in authority? Any
person directly vested with jurisdiction.
Is it important that the offender knows that the
person he is attacking is a person in authority? No, it is
enough that the offender should know that the offended
party was exercising some form of authority.
What kind of force is required to constitute to be
employed to constitute direct assault? The force must be
serious and must be of such character as to show
contempt of authority.
What brings about the crime of indirect assault?
Indirect assault comes about only when direct assault is
committed. In other words, there can be no indirect
assault when there is no direct assault.
Art. 152, as amended, when any person comes in
aid of persons in authority, said person, at that moment,
is no longer a civilian. He is considered agent of person in
authority. If such person were the one attacked, the
crime would be direct assault. Under the Rules of Court
(Criminal Procedure), a police officer, in effecting arrest,
may summon assistance from anybody. The person,
whose assistance is called, will be considered agent of
person in authority. As Art. 149 now stands, the crime of
indirect assault can only be committed if a private person
who comes in the aid of an agent of a person in authority,
on the occasion of direct assault against the latter, is
assaulted. He does not become another agent of a person
in authority.
Distinguish between resistance and direct
assault. Resistance or serious disobedience committed
only by resisting or seriously disobeying a person in
authority or his agent. Direct assault committed in four
ways: (1) attacking; (2) employing force; (3) seriously
intimidating; and (4) seriously resisting.

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Supposed the offender did not use any force in


resisting a person in authority. What crime is committed?
Its resistance or serious disobedience.
Serious disturbance requires that such must be
planned or intended.
If a firearm is discharged, what are the crimes
that may possibly arise? Alarms and scandals if the
offender discharges the firearm in a public place but the
firearm is not pointed to a particular person when
discharged. Illegal discharge if the firearm was directed to
a particular person who was not hit if intent to kill is not
proved. Attempted homicide or murder if the person was
hit. Automatically, the crime is attempted homicide or
murder if there is intent to kill. Physical injuries if the
person was hit and injured but there was no intent to kill.
Threat if the weapon was not discharged but was merely
pointed to another. Grave coercion if the threat was
directed, immediate and serious, and the person is
compelled or prevented to do something against his will.
There are two kinds of grave coercion: (1) compulsive
grave coercion [to compel] and (2) preventive grave
coercion.
Distinction between alarms and scandal, and unjust
vexation.
If directed to a particular person or family, unjust
vexation only.
Distinguish delivering prisoners from jail from infidelity.
Evasion of service of sentence.
Quasi-recidivism and recidivism proper.
Distinguish violation of conditional pardon from evasion.
When can there be a violation of conditional
pardon? When the condition is violated during the
remaining period of the sentence.
R.A. 9851

ensured by taking measures at the national level, in order


to put an end to impunity for the perpetrators of these
crimes and thus contribute to the prevention of such
crimes, it being the duty of every State to exercise its
criminal
jurisdiction
over
those
responsible
for
international crimes;
This law is one of the exceptions to the principle
of territoriality because even if the crime of genocide or
other crimes against humanity are committed outside the
Philippine territory especially if the culprit is a Filipino
citizen or if the crime is committed by foreigner but a
Filipino citizen is a victim, Philippine courts exercise
jurisdiction except if that guy was already charged or tried
in another foreign tribunal because there is double
jeopardy.
(g) The State recognizes that the application of
the provisions of this Act shall not affect the legal status
of the parties to a conflict, nor give an implied recognition
of the status of belligerency.
What is the meaning of status of belligerency?
When an armed group has already occupied a certain
territory and there is a semblance of government and they
are dealing with international groups and agencies, they
will be conferred the status of belligerency, one step
before becoming a state. The New Peoples Army dealt to
the government in the hope that it would be given the
status of belligerency. No, because they have no effective
control of any territory in the Philippines. They have
shadow government but they have no fixed place where
their leaders can givern. The MILF used to have that place
in Mindanao which Pres. Estrada ordered an assault. What
do you call that place? Camp Abubakar. They had a
government. They had judiciary Sharia Courts but when
that place was attacked, they retreated and it was found
out that they do not constitute belligerent communities
although they dealt with foreign countries with respect to
some form of trade.
Definitions (Judge Paredes stories were omitted)
(a)

"Apartheid' means inhumane acts committed


in the context of an institutionalized regime
of systematic oppression and domination by
one racial group or groups and committed
with the intention of maintaining that
regime.

(b)

"Arbitrary deportation or forcible transfer of


population" means forced displacement of
the persons concerned by expultion by
expulsion or other coercive acts.

(c)

"Armed conflict" means any use of force or


armed violence between States or a
protracted
armed
violence
between
governmental authorities and organized
armed groups or between such groups within
that
State.
Armed
conflict
may
be
international, or non-international or internal

One half is political international law, the other


half criminal law.
What is the short title of the Act? Philippine Act
on Crimes against International Humanitarian Law,
Genocide and other Crimes against Humanity.
(1) International Humanitarian Law; (2) Genocide; and
(3) other Crimes against Humanity.
Declaration of Principles and State Policies
(c) It shall be the responsibility of the State and
all other sectors concerned to resolved armed conflict in
order to promote the goal of "Children as Zones of
Peace";
What is the meaning of "Children as Zones of
Peace"? Is it defined by law? Is there any definition under
this law? You have to wait for any IRR. But under Republic
Act 7610 (Child Abuse Act), this phrase "Children as Zones
of Peace" is also mentioned. What is the historical
background? During the time of Bishop Fortich of Negros,
there was an agreement between the military and the NPA
to establish zones of peace in barangays or clusters of
barangays. The NPAs cannot recruit, conduct political
action in these barangays. The military cannot also attack
the place and conduct military operations. They were
called zones of peace. In relation to children, children
should not be utilized as soldiers. Not as spies, couriers or
runners because they are considered zones peace. Who
are guilty of employing children as soldiers? The
Philippines is guilty because there are paramilitary forces
using children. The NPAs are also guilty. They also use
children as spies, as couriers. The MNLF and MILF are also
mentioned in the report of the UN.
(e) The most serious crimes of concern to the
international community as a whole must not go
unpunished and their effective prosecution must be

Example of protracted armed violence between


governmental authority and organized armed groups.
Communist Party of the Philippines and its military wing,
the New Peoples Army, the longest running guerilla war in
the world. 33 years. Between armed groups (MILF vs.
MNLF). All these conflicts whether between countries,
between armed groups, between the governments and
armed groups, you apply IHL, Protocol I and II of the
Geneva Convention of the Code and Customs of War.
Such force or armed violence may give rise to a
situation to which the Geneva Convention of 12 August
1949 including their Common Article III. Under letter c,
Section 3 of this law, armed conflicts are classified into
international conflict, that is, between two or more states
including belligerent occupation, or non-international
armed
conflict,
between
governmental
authorities
(Philippines GRP) versus organized armed group (CPPNPA-NDF) or between such groups within a state (MNLF
vs. MILF). Are they bound by IHL? Yes.

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(d)

"Armed forces" means all organized armed


forces groups and units that belong to a
party to an armed conflict

(o)

There are requisites: (1) under a command


responsible to that party for the conduct of its
subordinates; (2) shall be subject to an internal
disciplinary system which enforces compliance with
International Humanitarian Law.
(e)
"Attack directed against any civilian
population" means a course of conduct
involving the multiple commission of acts
referred to in Section 6 of this Act against
any civilian population, pursuant to or in
furtherance of a State or organizational
policy to commit such attack.
(f)

(g)

(h)

(i)

"Effective command and control" or "


effective authority and control" means
having the material ability to prevent and
punish the commission of offenses by
subordinates.
"Enforced or involuntary disappearance of
persons" means the arrest, detention, or
abduction of persons by, or with the
authorization support or acquiescence of, a
State or a political organization

(1) feigning an intent to negotiate under a


flag of truce;
(2) feigning surrender;
(3) feigning incapacitation by wounds or
sickness;
(4) feigning civilian or noncombatant status;
and
(5) feigning protective status by use of
signs, emblems or uniforms of the United
Nations or of a neutral or other State not
party to the conflict.
(p)

"Persecution" means the international and


severe deprivation of fundamental rights
contrary to international law by reason of
identity of the group or collectivity.

(q)

"Protect(ed) person" in an armed conflict


means:
(1) a person wounded, sick or shipwrecked,
whether civilian or military;

"Enslavement" means the exercise of any or


all of the powers attaching to the right of
ownership over a person, etc.

(2) a prisoner
of liberty for
conflict;
(3) a civilian
direct part or
the hostilities
party;

"Extermination" means the international


infliction of conditions of life, inter alia, the
deprivation of access to food and medicine,
calculated to bring about the destruction of a
part of a population.

(j)

"Forced pregnancy" means the unlawful


confinement of a women to be forcibly made
pregnant, with the intent of affecting the
ethnic composition of any population
carrying out other grave violations of
international law.

(k)

"Hors de Combat" means a person who:

(m)

"Military necessity" means the necessity of


employing measures which are indispensable
to achieve a legitimate aim of the conflict
and are not otherwise prohibited by
International Humanitarian Law

(n)

"No quarter will be given' means refusing to


spare the life of anybody, even of persons
manifestly unable to defend themselves or
who clearly express their intention to
surrender.

or any person not taking a


having ceased to take part in
in the power of the adverse

(5) a member of the medical personnel


assigned exclusively to medical purposes or
to the administration of medical units or to
the operation of or administration of medical
transports; or
(6) a member of the religious personnel who
is exclusively engaged in the work of their
ministry and attached to the armed forces of
a party to the conflict, its medical units or
medical transports, or non-denominational,
noncombatant military personnel carrying
out functions similar to religious personnel.
(r)

" Superior" means:


(1) a military commander or a
person effectively acting as a
military commander; or
(2) any other superior, in as much as the
crimes arose from activities within the
effective authority and control of that
superior.

"Non-defended locality" means a locality that


fulfills the following conditions:
(1) all combatants, as well as mobile
weapons and mobile military equipment,
must have been evacuated;
(2) no hostile use of fixed military
installations or establishments must have
been made;
(3) no acts of hostility must have been
committed by the authorities or by the
population; and
(4) no activities in support of military
operations, must have been undertaken.

of war or any person deprived


reasons related to an armed

(4) a person who, before the beginning of


hostilities, was considered a stateless person
or refugee under the relevant international
instruments accepted by the parties to the
conflict concerned or under the national
legislation of the state of refuge or state of
residence;

(1) is in the power of an adverse party;


(2) has clearly expressed an intention to
surrender; or
(3) has been rendered unconscious or
otherwise incapacitated by wounds or
sickness and therefore is incapable of
defending himself: Provided, that in any of
these cases, the person form any hostile act
and does not attempt to escape.
(l)

"Perfidy" means acts which invite the


confidence of an adversary to lead him/her
to believe he/she is entitled to, or is obliged
to accord, protection under the rules of
International Humanitarian Law, with the
intent to betray that confidence, including
but not limited to:

(s)

"Torture" means the intentional infliction of


severe pain or suffering, whether physical,
mental, or psychological, upon a person in
the custody or under the control of the
accused; except that torture shall not
include pain or suffering arising only from,
inherent in or incidental to, lawful sanctions.

(t)

"Works
and
installations
containing
dangerous
forces" means works and
installations the attack of which may cause
the release of dangerous forces and
consequent severe losses among the civilian

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population, namely: dams, dikes,


nuclear, electrical generation stations.

and

Charter of the United Nations, as ling as they are


entitled to the protection given to civilians or
civilian objects under the international law of
armed conflict;

(a) In case of an international armed conflict,


grave breaches of the Geneva Conventions of 12 August
1949, namely, any of the following acts against persons
or property protected under provisions of the relevant
Geneva Convention:

(5) Launching an attack in the knowledge that


such attack will cause incidental loss of life or
injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the
natural environment which would be excessive in
relation to the concrete and direct military
advantage anticipated;

War Crimes.

(1) Willful killing;


(2) Torture or inhuman treatment, including
biological experiments;
(3) Willfully causing great suffering, or serious
injury to body or health;
(4) Extensive destruction and appropriation of
property not justified by military necessity and
carried out unlawfully and wantonly;
(5) Willfully depriving a prisoner of war or other
protected person of the rights of fair and regular
trial;
(6) Arbitrary deportation or forcible transfer of
population or unlawful confinement;
(7) Taking of hostages;
(8) Compelling a prisoner a prisoner of war or
other protected person to serve in the forces of a
hostile power; and
(9) Unjustifiable delay in the repatriation of
prisoners of war or other protected persons.
JUNE 15, 2010
CRIMES AGAINST IHL
War Crimes
There are other acts here.

(6) Launching an attack against works or


installations containing dangerous forces in the
knowledge that such attack will cause excessive
loss of life, injury to civilians or damage to
civilian objects, and causing death or serious
injury to body or health .
(7) Attacking or bombarding, by whatever
means, towns, villages, dwellings or buildings
which are undefended and which are not military
objectives, or making non-defended localities or
demilitarized zones the object of attack;
(8) Killing or wounding a person in the
knowledge that he/she is hors de combat,
including a combatant who, having laid down
his/her arms or no longer having means of
defense, has surrendered at discretion;
(9) Making improper use of a flag of truce, of the
flag or the military insignia and uniform of the
enemy or of the United Nations, as well as of the
distinctive emblems of the Geneva Conventions
or other protective signs under International
Humanitarian Law, resulting in death, serious
personal injury or capture;

(b) In case of a non-international armed conflict,


serious violations of common Article 3 to the four (4)
Geneva Conventions of 12 August 1949, namely , any of
the following acts committed against persons taking no
active part in the hostilities, including member of the
armed forces who have laid down their arms and those
placed hors de combat by sickness, wounds, detention or
any other cause;

(10) Intentionally directing attacks against


buildings dedicated to religion, education, art,
science
or
charitable
purposes,
historic
monuments, hospitals and places where the sick
and wounded are collected, provided they are not
military objectives. In case of doubt whether
such building or place has been used to make an
effective contribution to military action, it shall
be presumed not to be so used;

(1) Violence to life and person, in particular,


willful killings, mutilation, cruel treatment and
torture;
(2) Committing outrages upon personal dignity,
in
particular,
humiliating
and
degrading
treatment;
(3) Taking of hostages; and
(4) The passing of sentences and the carrying
out of executions without previous judgment
pronounced by a regularly constituted court,
affording all judicial guarantees which are
generally recognized as indispensable.

(11) Subjecting persons who are in the power of


an adverse party to physical mutilation or to
medical or scientific experiments of any kind, or
to
removal
of
tissue
or
organs
for
transplantation, which are neither justified by the
medical, dental or hospital treatment of the
person concerned nor carried out in his/her
interest, and which cause death to or seriously
endanger the health of such person or persons;

(c) Other serious violations of the laws and


customs applicable in armed conflict, within the
established framework of international law, namely:
(1) Internationally directing attacks against the
civilian population as such or against individual
civilians not taking direct part in hostilities;
(2) Intentionally directing attacks against civilian
objects, that is, object which are not military
objectives;
(3) Intentionally directing attacks against
buildings, material, medical units and transport,
and personnel using the distinctive emblems of
the Geneva Conventions or Additional Protocol III
in conformity with intentional law;
(4) Intentionally directing attacks against
personnel, installations, material, units or
vehicles involved in a humanitarian assistance or
peacekeeping mission in accordance with the

(12) Killing, wounding or capturing an adversary


by resort to perfidy;
(13) Declaring that no quarter will be given;
(14) Destroying or seizing the enemy's property
unless such destruction or seizure is imperatively
demanded by the necessities of war;
(15) Pillaging a town or place, even when taken
by assault;
(16) Ordering the displacements of the civilian
population for reasons related to the conflict,
unless the security of the civilians involved or
imperative military reasons so demand;
(17) Transferring, directly or indirectly, by the
occupying power of parts of its own civilian
population into the territory it occupies, or the
deportation or transfer of all or parts of the
population of the occupied territory within or
outside this territory;
(18) Commiting outrages upon personal dignity,
in
particular,
humiliating
and
degrading
treatments;

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(19) Commiting rape, sexual slavery, enforced


prostitution,
forced
pregnancy,
enforced
sterilization, or any other form of sexual violence
also constituting a grave breach of the Geneva
Conventions or a serious violation of common
Article 3 to the Geneva Convensions;
(20) Utilizing the presence of a civilian or other
protected person to render certain points, areas
or military forces immune from military
operations;
(21) Intentionally using starvation of civilians as
a method of warfare by depriving them of objects
indespensable to their survival, including willfully
impeding relief supplies as provided for under the
Geneva Conventions and their Additional
Protocols;
(22) In an international armed conflict,
compelling the nationals of the hostile party to
take part in the operations of war directed
against their own country, even if they were in
the
belligerent's
service
before
the
commencement of the war;
(23) In an
abolished,
of law the
the hostile

international armed conflict, declaring


suspended or inadmissible in a court
rights and actions of the nationals of
party;

(24) Commiting any of the following acts:


(i) Conscripting, enlisting or recruiting
children under the age of fifteen (15)
years into the national armed forces;
(ii) Conscripting, enlisting or recruiting
children under the age of eighteen (18)
years into an armed force or group
other than the national armed forces;
and
(iii) Using children under the age of
eighteen (18) years to participate
actively in hostilities; and
(25) Employing means of warfare which are
prohibited under international law, such as:
(i) Poison or poisoned weapons;
(ii) Asphyxiating, poisonous or other
gases, and all analogous liquids,
materials or devices;
(iii) Bullets which expand or flatten
easily in the human body, such as
bullets with hard envelopes which do
not entirely cover the core or are
pierced with incisions; and
(iv) Weapons, projectiles and material
and methods of warfare which are of the
nature to cause superfluous injury or
unecessary suffering or which are
inherently indiscriminate in violation of
the international law of armed conflict.
Then, Sec. 5. Genocide - means any of the
following acts with intent to destroy, in whole or in part, a
national, ethnic, racial, religious, social or any other
similar stable and permanent group
Sec. 6. Other Crimes against Humanity.
We are more interested in Chapters 4, 5 and 6.
The first part is political law. If ever it would come out in
the Bar, during your time, it would fall under International
Law with emphasis on IHL, Protocols I and II.
Then, penal provisions. Sec. 7 Penalties.
Violations of Secs. 4, 5 and 6, reclusion temporal.
Chapter V Some Principles of Criminal Liability.
This is important. In addition to existing
provisions in Philippine law on principles of criminal
responsibility, a person shall be criminally liable as

principal for a crime defined and penalized in this Act if


he/she:
(1) Commits such a crime, whether as an
individual, jointly with another or through
another person;
(2) Orders, solicits or induces the commission of
such a crime [this is principal by induction];
(3) In any other way contributes to the
commission or attempted commission of such a
crime:
A person shall be criminally liable as accomplice
for facilitating the commission of a crime defined and
penalized in this Act.
Then, there is attempt. A person shall be
criminally liable for a crime defined and penalized in this
Act if he/she attempts to commit such a crime.
Sec. 9 is important for purposes of taking the
Bar. This Act shall apply equally to all persons without any
distinction based on official capacity [whether as
president, prime minister, defense minister, field
commander or field soldier]. In particular, official capacity
as a head of state or government, a member of a
government or parliament, an elected representative or a
government official shall in no case exempt a person from
criminal responsibility under this Act [you cannot
interpose the defense of immunity], nor shall it, in and of
itself, constitute a ground for reduction of sentence.
However:
(a) Immunities or special procedural rules that
may be attached to the official capacity of a
person under Philippine law other than the
established constitutional immunity from suit of
the Philippine President during his/her tenure,
shall not bar the court from exercising jurisdiction
over such a person [If you are immune during
your incumbency, but after your term, you are no
longer immune from suit.]; and
(b) Immunities that may be attached to the
official capacity of a person under international
law may limit the application of this Act, not only
within the bounds established under international
law.
Then, responsibility of superiors. One of the
debates in the international community on international
law is command responsibility. What was the defense of
Hermann Gring of Air Force in Nazi, Germany during the
Nuremberg Trial, I am a soldier, Im only following the
orders of the commander in chief. But then the Tribunal
said yes, but the order of your commander in chief is
illegal in international law. What was the defense of
Tomuyuki Yamashita when he was tried here in the
Philippines? I did not order death march. I did not order
massacre of civilians. Supreme Court said Gen.
Yamashita is responsible for acts of his subordinates. He is
responsible for acts committed by unrestrained soldiers.
Sec. 10. Responsibility of Superiors. - In addition
to other grounds of criminal responsibility for crimes
defined and penalized under this Act, a superior shall be
criminally responsible as a principal for such crimes
committed by subordinates [So the issue is now settled
command responsibility] under his/her effective command
and control, or effective authority and control as the case
may be, as a result of his/her failure to properly exercise
control over such subordinates, where:
(a) That superior either knew or, owing to the
circumstances at the time, should have known
that the subordinates were committing or about
to commit such crimes [This is the defense of
Gen. Palparan for violations of human rights. But
there is command responsibility. All those soldiers
accused of murder were under his command];
(b) That superior failed to take all necessary and
reasonable measures within his/her power to
prevent or repress their commission or to submit

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the matter to the competent authorities for


investigation and prosecution.

(c) The accused has committed the said crime


against a Filipino citizen.

Sec. 11. Non-prescription. - The crimes defined


and penalized under this Act, their prosecution, and the
execution of sentences imposed on their account, shall not
be subject to any prescription.

In the interest of justice, the relevant Philippine


authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if another
court or international tribunal is already conducting the
investigation or undertaking the prosecution of such
crime.

Sec. 12. Orders from a Superior. - The fact that a


crime defined and penalized under this Act has been
committed by a person pursuant to an order of a
government or a superior, whether military or civilian,
shall not relieve that person of criminal responsibility
unless all of the following elements occur [so the following
elements must be satisfied before a defense is setup or
interposed]:
(a) The person was under a legal obligation to
obey orders of the government or the superior in
question;
(b) The person did not know that the order was
unlawful; and
(c) The order was not manifestly unlawful.
For the purposes of this section, orders to
commit genocide or other crimes against humanity are
manifestly unlawful.
Sec. 13. Protection of Victims and Witnesses.
Section 14. Reparations to Victims. - In addition
to existing provisions in Philippine law and procedural
rules for reparations to victims, the following measures
shall be undertaken:
(a) The court shall follow the principles relating
to the reparations to, or in respect of,
victims, including restitution, compensation
and rehabilitation.
Laws.

Then, applicability of International Law and Other


(a) The 1948 Genocide Convention;
(b) The 1949 Genava Conventions I-IV, their
1977 Additional Protocols I [applies only to
international armed conflicts] and II [applies to
non-international armed conflict] and their 2005
Additional Protocol III;
(c) The 1954 Hague Convention for the Protection
of Cultural Property in the Event of Armed
Conflict, its First Protocol and its 1999 Second
Protocol;
(d) The 1989 Convention on the Rights of the
Child and its 2000 Optional Protocol on the
Involvement of Children in Armed Conflict;
(e) The rules and principles of customary
international law;
(f) The judicial decisions of international courts
and tribunals;
(g) Relevant and applicable international human
rights instruments;
(h) Other relevant international treaties and
conventions ratified or acceded to by the Republic
of the Philippines; and
(i) Teachings of the most highly qualified
publicists and authoritative commentaries on the
foregoing sources as subsidiary means for the
determination of rules of international law.

Sec. 16. Suppletory Application of the Revised


Penal Code and Other General or Special Laws.
Chapter VII is important. This is an exception to
the territoriality rule.
The State shall exercise jurisdiction over persons,
whether military or civilian, suspected or accused of a
crime defined and penalized in this Act, regardless of
where the crime is committed, provided, any one [not all]
of the following conditions is met:
(a) The accused is a Filipino citizen;
(b) The accused, regardless of citizenship or
residence, is present in the Philippines; or

Then, the court which will try RTC.


JUNE 17, 2010
IHL, AMENDMENTS TO RA 8294
Section 15. Applicability of International Law.- In
the application and interpretation of this Act, Philippine
courts shall be guided by the following sources:
(a) The 1948 Genocide Convention;
(b) The 1949 Geneva Conventions I-IV, their
1977 Additional Protocols I and II and their 2005
Additional Protocol III;
(c) The 1954 Hague Convention for the Protection
of Cultural Property in the Event of Armed
Conflict, its First Protocol and its 1999 Second
Protocol;
(d) The 1989 Convention on the Rights of the
Child and its 2000 Optional Protocol on the
Involvement of Children in Armed Conflict;
(e) The rules and principles of customary
international law;
(f) The judicial decisions of international courts
and tribunals;
(g) Relevant and applicable international human
rights instruments;
(h) Other relevant international treaties and
conventions ratified or acceded to by the Republic
of the Philippines; and
(i) Teachings of the most highly qualified
publicists and authoritative commentaries on the
foregoing sources as subsidiary means for the
determination of rules of international law.
Section 16. Suppletory Application of the Revised
Penal Code and Other General or Special Laws. - The
provisions of the Revised Penal Code and other general or
special laws shall have a suppletory application to the
provisions of this Act.
[Chapter 7, Jurisdiction, is important. Again, this
is an exception to the territoriality principle.]
Section 17. Jurisdiction.- The State shall exercise
jurisdiction over persons, whether military or civilian,
suspected or accused of a crime defined and penalized in
this Act, regardless of where the crime is committed,
[even if the crime is committed in foreign jurisdictions,
Philippine courts could take cognizance of those cases]
provided, any one of the following conditions is met:
(a) The accused is a Filipino citizen;
(b) The accused, regardless of citizenship or
residence, is present in the Philippines; or [we
follow the jurisdiction over person prince. But in
other countries, they issue international warrant
of arrest]
(c) The accused has committed the said crime
against a Filipino citizen. [the law does not say
Filipino citizens. So even if there is only one
victim.]
In the interest of justice, the relevant Philippine
authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if another
court or international tribunal is already conducting the
investigation or undertaking the prosecution of such
crime. [Purpose here is to avoid double jeopardy because
double jeopardy is a principle universally observed. I said
to avoid double jeopardy because during the investigation
stage, there is no double jeopardy yet. Double jeopardy
comes after conviction by final judgment of a competent
tribunal.] Instead, the authorities may surrender or

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extradite suspected or accused persons in the Philippines


to the appropriate international court, if any, or to another
State pursuant to the applicable extradition laws and
treaties.

way to PNP to surrender. Thats a good defense. Sole


purpose of surrendering it to the proper authorities shall
not be a violation of this Section. It was applied in the
case of People vs. Abadilla.]

No criminal proceedings shall be initiated against


foreign nationals suspected or accused of having
committed the crimes defined and penalized in this Act if
they have been tried by a competent court outside the
Philippines in respect of the same offense and acquitted,
[so double jeopardy applies] or having been convicted,
already served their sentence.

Provided, finally, That in addition to the instances


provided in the two (2) immediately preceding
paragraphs, the court may determine the absence of the
intent to possess, otherwise referred to as 'animus
possidendi", in
accordance with
the facts and
circumstances of each case [Remember one of the
elements of illegal possession is intent to possess or
anumus possidendi. You may raise that issue. What are
the issues to be resolved? (1) Whether or not there was
intent to possess. That is a question of fact. The issue is
not criminal intent.

Sec. 18. Philippine Court, Prosecutors and


Investigators. - The Regional Trial Court of the Philippines
shall have original and exclusive jurisdiction over the
crimes punishable under this Act. Their judgments may be
appealed or elevated to the Court of Appeals and to the
Supreme Court as provided by law.

The there is another amendment Sec. 3-A. This is


an additional section.

The Supreme Court shall designate special courts


to try cases involving crimes punishable under this Act.
For these cases, the Commission on Human Rights, the
Department of Justice, the Philippine National Police or
other concerned law enforcement agencies shall designate
prosecutors or investigators as the case may be.

SEC
3-A.
Unlawful
Manufacture,
Sales,
Acquisition, Disposition, Importation or Possession of a
Part [part of firearm], Ingredient, Machinery, Tool or
Instrument Used or Intended to be Used for the
Manufacture, Construction, Assembly,
Delivery
or
Detonation.

The State shall ensure that judges, prosecutors


and investigators, especially those designated for
purposes of this Act, receive effective training in human
rights, International Humanitarian Law and International
Criminal Law.

Amendments to RA 8294

Provided, That the mere possession of any part,


ingredient, machinery, tool or instrument directly used in
the manufacture, construction, assembly, delivery or
detonation of any explosive or incendiary device, by any
person whose business activity, or employment does not
lawfully deal with the possession of such article shall be
prima facie evidence that such article is intended to be
used by that person in the unlawful/illegal manufacture,
construction, assembly, delivery or detonation of an
explosive or incendiary device.

Section 1. Section 3 of Presidential Decree No.


1866, as amended by RA 8294, is hereby further
amended to read as follows:

Provided, That a temporary incidental, casual,


harmless or transient possession, without the knowledge
of its existence or character, etc. [is a good defense.]

Section
3.
Unlawful
Manufacture,
Sales,
Acquisition, Disposition, Importation or Possession of an
Explosive or Incendiary Device. [the words incendiary
device are not found in RA 8294.]

Another proviso, for the sole purpose is to


surrender the materials to the authorities. Again the court
may determine the absence of intent to posses.

Coverage of the exam (Chapter 4, 5, 6). The rest


is political law.

What portions are amended? There is an


additional phrase in Sec. 3 with knowledge of its
existence and its explosive or incendiary character. With
respect to incendiary devices, the accused must have
knowledge of the incendiary device and its explosive or
incendiary character. You can therefore interpose the
defense of lack of knowledge but not criminal intent
because this is mala prohibita. Where the explosive or
incendiary device is capable of producing destructive
effect on contiguous objects or causing injury or death to
any person this is added. This is not found in the old law.
Actually, the amendments here are Supreme Court
decisions or jurisprudence.
Provided, That mere possession of any explosive
or incendiary device shall be prima facie evidence that the
person had knowledge of the existence and the explosive
or incendiary character of the device. [This is prima facie
evidence, meaning, it may be rebutted.]
Provided, however, That a temporary, incidental,
casual, harmless, or transient possession or control of any
explosive or incendiary device, without the knowledge of
its existence or its explosive or incendiary character, shall
not be a violation of this Section. [Example: While
walking, you saw what appears to be a firearm or
explosive. You are curious. You scrutinized it. That is
temporary, incidental, casual, harmless, or transient
possession. That is a good defense.]
Provided,
Further,
That
the
temporary,
incidental, casual, harmless, or transient possession or
control of any explosive or incendiary device for the sole
purpose of surrendering it to the proper authorities shall
not be a violation of this Section. [There are actually cases
involving this proviso. There is amnesty. Explosives and
firearms. You placed in it your car. You were caught at the
checkpoint. You can easily answer that you are on your

Another section is added Sec. 3-B (Penalty).


The only change is that the penalty is higher. Why?
Because not only fishermen, but terrorists use explosives.
For knowingly allowing any explosive or incendiary device
or parts thereof, the penalty is reclusion perpetua, against
owner, president, manager, director who shall willfully
allow any explosive or incendiary device to be used.
Then
Sec.
3-C
is
another
amendment.
Relationship of Other Crimes with a Violation of this
Decree and the Penalty Therefor. When a violation of
Section 3, 3-A or 3-B of this Decree is a necessary means
for committing any of the crimes defined in the RPC or
special laws, or is in furtherance of, incident to, in
connection with, by reason of, or on occasion of any of
the crimes defined in the RPC or special laws, the penalty
of reclusion perpetua and a fine ranging from One
hundred Thousand pesos (P100,000.00) to One million
pesos (P1,000,000.00) shall be imposed.
Murder with the use of explosives. Use of
explosives is special aggravating circumstance under this
amendment
Then Sec. 3-D Former Conviction or Acquittal;
Double Jeopardy. - Subject to the provisions of the Rules
of Court on double jeopardy, if the application thereof is
more favorable to the accused, the conviction or acquittal
of the accused or the dismissal of the case for violation of
this Decree shall be a bar to another prosecution of the
same accused for any offense where the violation of this
Decree was a necessary means for committing the offense
or in furtherance thereof. Example: if use of explosives or
firearm was necessary means to commit rebellion,
sedition or coup detat, its absorbed in rebellion, sedition,
coup detat, but the penalty is reclusion perpetua. The
accused can no longer be charged for violation of this
firearm and explosives law.

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The other provisions are not very important.


Sec. 4-A. Penalty for planting evidence
reclusion perpetua. If a person or policeman places inside
the handbag of another person a firearm, thats planting
evidence. The penalty is reclusion perpetua. Planting
evidence is defined in this amendment. It shall mean 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 explosive or incendiary device or any part,
ingredient, etc. for the purpose of incriminating or
imputing the commission of any violation of this Decree.
Take note, act by any person of maliciously and
surreptitiously inserting. Malicious its an RPC word
malice. Surreptitiously, secretly. If the firearm is placed
in front of you, thats not surreptitious. So thats not
planting evidence.
Then continuous trial.
If you want to import, sell, or possess chemicals
or accessories for explosives, secure a license from the
PNP Firearms and Explosives Section.
Types of Chemicals/Accessories Covered
Chlorates, nitrates, nitric acid and such other chemicals
and accessories that can be used for the manufacture of
explosives and explosive ingredients.
Title IV Crimes Against Public Interest
What is the essence of this crime? It perpetrates
a fraud upon public in general. Here, like estafa, there is
deceit or fraud, but the fraud is against public interest.
Because if the fraud is against private interest, the crime
is estafa. They are similar.
interest.

There are 28 crimes under crimes against public

Chapter 1 Forgeries. There are 10 crimes


under forgeries.
Art. 161. Counterfeiting the great seal of the
Government of the Philippine Islands, forging the
signature or stamp of the Chief Executive. There are three
(3) acts punished under Art. 161 forging great seal,
forging signature, forging stamp. Make no mistake about
Art. 161. This is forging the signature of the President in
his official capacity. For example, one makes a document,
imitating the signature of the President, appointing Mr. De
los Santos as RTC Judge. That is forging the signature of
the President in his official capacity. Because if you forge
the signature of the President in his private capacity [you
bought a car and you signed as Noynoy, hes forging the
signature of the President in his private capacity], the
crime is falsification. If you forge the signature of the
President in his official capacity, the complete name of the
crime is forging the signature of the Chief Executive.
Forgery and falsification are not acceptable. The offense is
not falsification of public document.
Art. 162. Using forged signature or counterfeit
seal or stamp mentioned in Art. 161. Do not forget, the
user is not the forger. Please take note, knowingly make
use of the counterfeit seal or forged signature. If he does
not know that it is forged or counterfeit, then he is not
liable. If a person forged the signature of the President
and he uses the document which he forged, the crime is
forging the signature of the President. Use is absorbed in
forgery. Besides, the user of the forged signature is
presumed to be the forger. Thats our consistent
jurisprudence.
Then Sec. 2 Counterfeiting Coins. There are 3
crimes under counterfeiting coins.

Art. 163. Making and importing and uttering false


coins. There are three (3) acts punished: making;
importing; uttering. In the case of uttering, such coins or
counterfeited coins be in connivance with counterfeiters or
importers. This uttering is actually passing. A coin is
false or counterfeited if it is forged or it is not authorized
by the government as legal tender. What is the meaning
of to import? Its to bring into port without authority. To
uttermeans to pass counterfeited coins. Then mutilation
of coins. Any person who shall mutilate coins of legal
currency. Those out of circulation do not fall under this
article. There must also be intent to damage or to defraud
another. Then importing or uttering in connivance with
mutilator or importer.
What is mutilation? It is taking
off part of the metal either by filing it or substituting
another it for another metal of inferior quality. So the coin
here must be legal tender. Coin of foreign currency, not
included.
Art. 165. Selling. There are 2 acts punished
possession of coin counterfeited or mutilated by another
person with intent to utter the same, knowing that it is
false or mutilated. Please take note, with intent to utter.
If you have a coin, it is false or mutilated, and you put it
under the glass of your table, you will not be prosecuted
for possession of mutilated or false coin. Why? There is no
intent to utter. There is no overt act of using it as
payment. Please take note knowing that it is false or
mutilated. Lack of knowledge is a good defense. Then
actually uttering such false or mutilated coin knowing the
same to be false or mutilated. Lack of knowledge is a
good defense.
Then Sec. 3 Forging treasury or bank notes,
obligations and securities; importing and uttering false or
forged notes, obligations and securities.
Forgery is giving a document the appearance of a
true and genuine document.
Sec. 3 applies to papers which are in the form of
obligations and securities of the Republic of the Philippines
as its own obligation and which is given the same status
as legal tender. Land Bank bonds for example. Sample of
obligations and securities sweepstakes ticket, lotto.
There was an old person who bought sweepstakes. Since
the last digit was not correct, he bought another ticket,
cut it and pasted it. When he presented it to PCSO, he
was arrested. That is forging an obligation or security.
Since he was caught immediately, the Supreme Court
ruled that it was an impossible crime of forging obligations
and securities
There 3 acts punished under Art. 166: Forging
treasury or bank notes on other documents payable to
bearer; importing, and uttering.
Art. 167. Counterfeiting, importing and uttering
instruments not payable to bearer. The purpose here is to
maintain the integrity of that currency.
Art. 168. Illegal possession and use of false
treasury or bank notes and other instruments of credit.
The accused here performs any of these acts: using any
forged or falsified document; possessing with intent to use
any of such forged or falsified document. If you have a
fake money and you frame it, you will not be prosecuted
for possession of false money bill because there is no
intent to use it to the damage of another. If there are ten
in your pocket and you use it to pay, there is already
intent to use. So its already a crime.
Art. 169. How forgery is committed. Its a
reading matter.
By the way, Land Bank bonds are certificates of
indebtedness. There is a law against defacement,
mutilation, tearing, burning or destroying of BSP notes.

By the way, what is counterfeiting? It is remaking


or manufacturing without authority. It is not necessary
that the money is legal tender. What is punished here are
persons who counterfeit coins.

Criminal Law Review 1st Installment

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Criminal Law Review 1st Installment

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