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Revised Ortega Lecture Notes i

Revised Ortega Lecture Notes i

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ortega reviesed notes
ortega reviesed notes

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Published by: sufistudent on Jun 11, 2013
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Criminal law is that branch of municipal lawhich defines crimes, treats of their nature and  provides for their punishment.It is that branch of public substantive law whichdefines offenses and prescribes their penalties.It is substantive because it defines the state’sright to inflict punishment and the liability of theoffenders. It is public law because it deals withthe relation of the individual with the state.
Limitations on the power of Congress toenact penal laws
1.Must be general in application.2.Must not partake of the nature of an
ex  post facto
law.3.Must not partake of the nature of a bill oattainder.4.Must not impose cruel and unusualpunishment or excessive fines.
Characteristics of Criminal Law
Generality of criminal law means that thecriminal law of the country governs all personswithin the country regardless of their race,belief, sex, or creed. However, it is subject tocertain exceptions brought about binternational agreement. Ambassadors, chiefsof states and other diplomatic officials areimmune from the application of penal lawswhen they are in the country where they areassigned.Note that consuls are not diplomatic officers.This includes consul-general, vice-consul or any consul in a foreign country, who aretherefore, not immune to the operation or application of the penal law of the country where they are assigned. Consuls are subject to the penal laws of the country where they areassigned.It has no reference to territory. Whenever youare asked to explain this, it does not includeterritory. It refers to persons that may begoverned by the penal law.
means that the penal laws of thecountry have force and effect only within itsterritory. It cannot penalize crimes committedoutside the same. This is subject to certainexceptions brought about by internationalagreements and practice. The territory of thecountry is not limited to the land where itssovereignty resides but includes also itsmaritime and interior waters as well as itsatmosphere.
Terrestrial jurisdiction is the jurisdictionexercised over land.Fluvial jurisdiction is the jurisdiction exercised over maritime and interior waters. Aerial jurisdiction is the jurisdiction exercised over the atmosphere.
The Archipelagic Rule
 All bodies of water comprising the maritimezone and interior waters abounding differenislands comprising the Philippine Archipelagoare part of the Philippine territory regardless of their breadth, depth, width or dimension.On the fluvial jurisdiction there is presently adeparture from the accepted International Law Rule, because the Philippines adopted the Archipelagic Rule. In the International Law Rule, when a strait within a country has a width
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of more than 6 miles, the center lane in excessof the 3 miles on both sides is considered international waters.
Question & Answer 
If a foreign merchant vessel is in thecenter lane and a crime was committed there,under the International Law Rule, what law willapply?
The law of the country where that vessel is registered will apply, because the crime isdeemed to have been committed in the highseas.Under the Archipelagic Rule as declared in Article 1, of the Constitution, all waters in thearchipelago regardless of breadth width, or dimension are part of our national territory.Under this Rule, there is no more center lane,all these waters, regardless of their dimensionor width are part of Philippine territory.So if a foreign merchant vessel is in the center lane and a crime was committed, the crime will be prosecuted before Philippine courts.
Three international law theories on aerial jurisdiction
(1) The atmosphere over the country is freeand not subject to the jurisdiction of thesubjacent state, except for the protection of its national security and  public order.Under this theory, if a crime iscommitted on board a foreign aircraft at the atmosphere of a country, the law of that country does not govern unless thecrime affects the national security.(2) Relative Theory The subjacent stateexercises jurisdiction over itsatmosphere only to the extent that it caneffectively exercise control thereof. TheRelative Theory Under this theory, if a crime wascommitted on an aircraft which isalready beyond the control of thesubjacent state, the criminal law of that state will not govern anymore. But if thecrime is committed in an aircraft withinthe atmosphere over a subjacent statewhich exercises control, then its criminal law will govern.(3) Absolute Theory The subjacent statehas complete jurisdiction over theatmosphere above it subject only toinnocent passage by aircraft of foreigncountry.Under this theory, if the crime iscommitted in an aircraft, no matter how high, as long as it can establish that it iswithin the Philippine atmosphere,Philippine criminal law will govern. Thisis the theory adopted by the Philippines.
This is also called irretrospectivity. Acts or omissions will only be subject to a penal law if they are committed after a penal law had already taken effect. Vice-versa, this act or omission which has been committed before theeffectivity of a penal law could not be penalized by such penal law because penal laws operateonly prospectively.In some textbooks, an exemption is said toexist when the penal law is favorable to theoffender, in which case it would haveretroactive application; provided that theoffender is not a habitual delinquent and thereis no provision in the law against its retroactiveapplication.The exception where a penal law may be givenretroactive application is true only with arepealing law. If it is an original penal law, that exception can never operate. What is
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contemplated by the exception is that there isan original law and there is a repealing larepealing the original law. It is the repealing law that may be given retroactive application tothose who violated the original law, if therepealing penal law is more favorable to theoffender who violated the original law. If thereis only one penal law, it can never be givenretroactive effect.
Rule of prospectivity also applies toadministrative rulings and circulars
Co v. CA, decided on October 28, 1993,
it was held that the principle of prospectivity of statutes also applies to administrative rulingsand circulars. In this case, Circular No. 4 of theMinistry of Justice, dated December 15, 1981, provides that “where the check is issued as part of an arrangement to guarantee or secure the payment of an obligation, whether pre-existinor not, the drawer is not criminally liable foeither estafa or violation of BP22.” Subsequently, the administrative interpretationof was reversed in Circular No. 12, issued on August 8, 1984, such that the claim that thecheck was issued as a guarantee or part of anarrangement to secure an obligation or tofacilitate collection, is no longer a valid defensefor the prosecution of BP22. Hence, it wasruled in Que v. People that a check issued merely to guarantee the performance of anobligation is, nevertheless, covered by BP 22.But consistent with the principle o prospectivity, the new doctrine should not apply to parties who had relied on the old doctrineand acted on the faith thereof. No retrospectiveeffect.
Effect of repeal of penal law to liability of offender 
In some commentaries, there are references asto whether the repeal is express or implied.What affects the criminal liability of an offender is not whether a penal law is expressly or impliedly repealed; it is whether it is absolutely or totally repealed, or relatively or partiallrepealed.
Total or absolute, or partial or relativerepeal.
-- As to the effect of repeal of penal law to the liability of offender, qualify your answer by saying whether the repeal is absolute or total or whether the repeal is partial or relativeonly. A repeal is absolute or total when the crime punished under the repealed law has beendecriminalized by the repeal. Because of therepeal, the act or omission which used to be acrime is no longer a crime. An example isRepublic Act No. 7363, which decriminalized subversion. A repeal is partial or relative when the crime punished under the repealed law continues tobe a crime inspite of the repeal. This meansthat the repeal merely modified the conditionsaffecting the crime under the repealed law.The modification may be prejudicial obeneficial to the offender. Hence, the following rule:
Consequences if repeal of penal law is total or absolute
(1) If a case is pending in court involvinthe violation of the repealed law, thesame shall be dismissed, even thoughthe accused may be a habituadelinquent. This is so because al persons accused of a crime are presumed innocent until they areconvicted by final judgment. Therefore,the accused shall be acquitted.(2) If a case is already decided and theaccused is already serving sentence by final judgment, if the convict is not ahabitual delinquent, then he will beentitled to a release unless there is areservation clause in the penal law that it will not apply to those servinsentence at the time of the repeal. But if there is no reservation, those who arenot habitual delinquents even if they arealready serving their sentence will 
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