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BAR 2017 LAST MINUTE FORESIGHT principle of conspiracy was again applied

IN suppletorily.
SPECIAL PENAL LAWS
However, when the penalties under
By the special law are different from and are
DEAN GEMY LITO L. FESTIN without reference or relation to those under
PUP COLLEGE OF LAW
the Revised Penal Code, there can be no
_____________________________________________________
suppletory effect of the rules, for the
1.00 WHAT IS A SPECIAL PENAL LAW? application of penalties under the Code or by
other relevant statutory provisions are
It is a penal law which punishes acts based on or applicable only to said rules for
not defined and penalized by the Penal felonies under the Code. People vs. Simon, 234
Code. U.S. vs. Serapio, 23 Phil. 584 SCRA 576

1.02 DIFFERENTIATE CRIMES PUNISHED


1.01 IS THE REVISED PENAL CODE UNDER THE REVISED PENAL CODE
APPLICABLE IN SPECIAL LAWS? FROM CRIMES PUNISHED UNDER
Article 10 of the Revised Penal Code THE SPECIAL PENAL LAW.
provides: a. In crimes punished under the
Revised Penal Code, they are
Offenses which are or in the future
generally regarded as mala in se,
may be punishable under special laws are the act committed in inherently
not subject to the provisions of this Code. wrong or immoral; under a
special penal law, crimes are
This Code shall be supplementary regarded as mala prohibita or
to such laws, unless the latter should the act is merely prohibited by
specially provide the contrary. law;

The first sentence provides for the *Exception:


general rule. Special laws are not subject to
the provisions of the Revised Penal Code. Plunder is malum in se.
Hence, the provisions on stages of execution Estrada vs. Sandiganbayan, G.R. No.
under Article 6, degree of participation of 148560. November 19, 2001.
persons who are criminally liable under Title
In the decision, the Supreme Court
Two and the appreciation of the modifying
ruled: The legislative declaration in R.A. No.
circumstances in the proper imposition of 7659 that plunder is a heinous offense implies
penalties are not applicable, as a rule, to that it is a malum in se. For when the acts
special penal laws. Consequently, in Noble vs. punished are inherently immoral or inherently
People, 77 Phil. 1086, plea of guilt as a wrong, they are mala in se and it does not
mitigating circumstance is not available to matter that such acts are punished in a special
offenses punishable under special laws. law, especially since in the case of plunder the
predicate crimes are mainly mala in se.
The second sentence refers to the Indeed, it would be absurd to treat
prosecutions for plunder as though they are
suppletory effect of the Revised Penal Code
mere prosecutions for violations of the
to special laws, unless the latter should Bouncing Check Law (B.P. Blg. 22) or of an
specially provide the contrary. In People vs. ordinance against jaywalking, without regard
Ladonga, G.R. No. 141066, February 17, 2005, to the inherent wrongness of the acts.
the Supreme Court applied the principle of
conspiracy provided under Article 6 of the b. In crimes under the Revised Penal
Revised Penal Code in suppletory character Code, good faith is a proper
to violation of B.P. 22 case. In Tan vs. Spouses defense; in a special penal law,
Tan, G.R. No. G.R. No. 168852, September 30, good faith is not a defense;
2008, in a case involving Violence Against
*Exception:
Women and Children or R.A. 9262, the
1
Plunder being malum in se, criminal f. The Revised Penal Code uses the
intent is required. The elements of mens rea nomenclature of penalties provided
must be proven in a prosecution for plunder. under the Revised Penal Code, it a
Estrada vs. Sandiganbayan, G.R. No. 148560. special penal law, it does not;
November 19, 2001.
*Exceptions:
c. Under the Revised Penal Code, the
stages of execution under Article 6 of 1. Article 6 of the Anti-Child Abuse
the Revised Penal Code is considered Law provides for the application of the
in arriving at the proper penalty to be nomenclature of penalties under the
imposed; in a special penal laws, Revised Penal Code. Ex. Under Section 10
they are not; thereof, it states that any person who shall
commit any other acts of child abuse, cruelty
d. Under the Revised Penal Code , the or exploitation or to be responsible for other
degree of participation of the conditions prejudicial to the childs
offenders under Title Two of the development including hose covered by
Revised Penal Code is taken into Article 59 of the Presidential Decree No. 603,
consideration on the penalty as amended, but not covered by the Revised
imposable; in a special penal law, it is Penal Code, as amended, shall suffer the
not; penalty of prision mayor in its minimum
period.
*Exceptions:
Although R.A. No. 7610 is a special
1. Under Sections 4 and 5 of the law, the rules in the Revised Penal Code for
Human Security Act of 2007, there may be graduating penalties by degrees or
accomplices and accessories. determining the proper period should be
2. Likewise, under Section 13 of or applied. Sanchez vs. People 588 SCRA 747,
R.A. 7610 or the Anti-Torture Act, there may June 5, 2009.
be principals and accessories. 2. Likewise, under Section 14 of R.A.
3. Under Section 2 of R.A. 7080, or 7610 or the Anti-Torture Act, it uses again
otherwise known as the Anti-Plunder Law, as the nomenclature of penalties under the
amended by Section 12 of R.A. 7659, it Revised Penal Code.
provides that in the imposition of penalties, 1.03 DIFFERENTIATE INTENT TO
the degree of participation as provided COMMIT A CRIME FROM INTENT
under the Revised Penal Code, shall be TO PERPETRATE THE ACT.
considered by the Court.
When the crime is punished by a
e. Under the Revised Penal Code, the special law, as a rule, intent to commit the
modifying circumstances are crime is not necessary. It is sufficient that the
appreciated in determining the offender has the intent to perpetrate the act
prohibited by the special law. Intent to
penalty imposable; in a special
commit the crime and intent to perpetrate
penal law, they are not; the act must be distinguished.
*Exception:
A person may not have consciously
intended to commit a crime; but he did
Under Section 2 of R.A. 7080, or
intend to commit an act, and that act is, by the
otherwise known as the Anti-Plunder Law, very nature of things, the crime itself. In the
as amended by Section 12 of R.A. 7659, it first (intent to commit the crime), there must
provides that in the imposition of penalties, be criminal intent; in the second (intent to
the attendance of mitigating and perpetrate the act) it is enough that the
extenuating circumstances as provided by prohibited act is done freely and consciously.
the Revised Penal Code, shall be considered Elenita C. Fajardo vs. People, G.R. No. 190889,
January 10, 2011
by the Court.
2
1.04 ARE SPECIAL LAWS AMENDING STILL BE GRANTED?(SEC.4)
CERTAIN PROVISIONS OF THE
REVISED PENAL CODE
No, Probation Law expressly
CONSIDERED MALA PROHIBITA?
provides:
No, special laws which are intended x x x no application for probation
merely as amendments to certain provisions shall be entertained or granted if the
of the Revised Penal Code are mala in se and defendant has perfected an appeal from
still subject to its provision. the judgment of conviction.
The Probation Law prohibits a judge
from entertaining or granting an application
for probation if the defendant has perfected
-oooOOOooo-
an appeal from the judgment of conviction.
Salvan vs People, 410 SCRA 638

CHAPTER I. PROBATION LAW In Sable vs. People, 584 SCRA 619,


April 7, 2009, the application for probation
Presidential Decree No. 968 was denied. In this case, petitioner already
filed a Notice of Appeal before the RTC before
[BAR Q. 2012, 2010, 2009, 2005, 2004, the application was instituted. The law is
2003, 2002, 2001, 1997, 1995, 1994, patently clear: "no application for probation
1993, 1992, 1990, 1986]
shall be entertained or granted if the
defendant has perfected the appeal from the
judgment of conviction."

Illustrative cases
1.00 WHAT ARE THE PURPOSES OF
PROBATION? (SEC.2) 1. BAR Q.[2010] Matt was found guilty
of drug trafficking while his younger
[BAR Q.1986, 1989] brother Jeff was found guilty of
possession of equipment, instrument,
The purposes of probation are as
follows: apparatus and other paraphernalia for
dangerous drugs under Section 12 of
(a) to promote the correction and Republic Act No. 9165. Matt filed a
rehabilitation of an offender by providing petition for probation. Jeff appealed his
him with individualized treatment; conviction during the pendency of which
he also filed a petition for probation. The
b) to provide an opportunity for the brothers counsel argued that they being
reformation of a penitent offender which
first time offenders, their petitions for
might be less probable if he were to serve a
prison sentence; and probation should be granted. How would
you resolve the brothers petitions for
(c) to prevent the commission of probation?
offenses.
Suggested Answer: Both petitions
1.01 WHEN MUST THE APPLICATION FOR should be denied. Any person found guilty of
PROBATION BE FILED? drug trafficking is disqualified to avail of the
An application for probation must benefits of probation. Hence, Matt petition
be made within the period for perfecting an should be dismissed. Insofar as Jeff is
appeal. Sable vs. People 584 SCRA 619, April 7, concerned, his act of appealing his conviction
2009 disqualifies him to avail of probation.
Probation law expressly states that no
1.02 IF THE CONVICT HAD ALREADY application for probation shall be
PERFECTED AN APPEAL, CAN AN entertained or granted if the defendant has
APPLICATION FOR PROBATION
3
perfected an appeal from the judgment of imposed the indeterminate penalty of
conviction. imprisonment of 3 years, 2 months and 1
day as minimum and six years as
2. BAR Q.[2001] A, a subdivision maximum, both a prision correctional
developer, was convicted by the RTC of and was ordered to indemnify the
Makati for failure to issue the offended party in the amount of
subdivision title to a lot buyer despite P3,000.00. He filed an application for
full payment of the lot, and sentenced to probation upon the promulgation of the
suffer one year imprisonment. A judgment. What is the legal effect of his
appealed the decision of the RTC to the application for probation on the
Court of Appeals but his appeal was judgment of conviction? Does said
dismissed. May A still apply for application interrupt the running of the
probation? Explain. period of appeal?
Suggested Answer: No, A may no Suggested Answer: The legal effect of
apply for probation. The appeal that he filed Johnnys application for probation effectively
from the judgment of conviction disqualifies waives his right to appeal. Judgment of
him to avail of probation. Probation law conviction had become final and executory
provides that no application for probation upon filing of the said application. The remedy
shall be entertained or granted if the accused of appeal is unavailing.
has perfected an appeal from the judgment of
conviction. 1.05 IS A WAIVER OF THE RIGHT TO
APPEAL FROM A JUDGMENT OF
1.03 WHAT IS THEREFORE THE CONVICTION LIKEWISE A WAIVER
IMPLICATION ON THE ON THE CIVIL LIABILITY EX
APPLICATION FOR PROBATION IF DELICTO?
AN APPEAL IS ALREADY
PERFECTED? No. In an appeal from a judgment of
By perfecting their appeal, conviction, the criminal liability and the civil
petitioners ipso facto relinquished the liability ex delicto should be considered
alternative remedy of availing of the independently, each with its own
Probation Law, the purpose of which is corresponding effects.
simply to prevent speculation or
In People vs. Efren Salvan Y Presenes,
opportunism on the part of an accused who, G.R. No. 153845 September 11, 2003, the
although already eligible, does not at once Court reiterated that the law that bars an
apply for probation, but did so only after appeal of the judgment of conviction, as well
failing in his appeal. Lagrosa vs People, 405 as its corresponding criminal liability, should
SCRA 357 not bar an appeal of the civil aspect of the
same judgment.
1.04 ON THE OTHER HAND, WHAT IS THE
IMPLICATION ON THE RIGHT TO 1.06 MAY PROBATION BE GRANTED EVEN
APPEAL IF THE APPLICATION FOR IF THE SENTENCE IMPOSES A FINE
PROBATION WAS PREVIOUSLY ONLY?
FILED ?
Yes, Section 4 of the same law states:
Section 4 of P.D. 968 as amended
Probation may be granted whether the
expressly states:
sentence imposes a term of imprisonment
The filing of the application for or a fine only.
probation shall be deemed a waiver of the
right to appeal. 1.07 IS AN ORDER GRANTING OR
DENYING PROBATION
Illustrative case
APPEALABLE? BAR Q.[2002]
BAR Q.[1992] Johnny Gitara was
convicted of the crime of estafa by the
Regional Trial Court of Manila. He was
4
1.08 HOW DOES THE PREVAILING Drugs Act Of 2002)
JURISPRUDENCE TREAT APPEAL
AND PROBATION AS REMEDIES? 1.11 ILLUSTRATION OF THE
DISQUALIFICATIONS OF
Prevailing jurisprudence treats PROBATION LAW.
appeal and probation as mutually exclusive
remedies because the law is unmistakable (1) Sentenced To Serve A Maximum
about it and, therefore petitioner cannot Term Of Imprisonment Of More Than
avail herself of both. Six Years.

1.09 WHAT IS THE LEGAL EFFECT OF Illustrative case


PROBATION?
BAR Q.[2002] A was charged with
A conviction becomes final when the homicide. After trial, he was found
accused applies for probation. guilty and sentenced to six (6) years and
one (1) day prision mayor, as
1.10 WHO ARE DISQUALIFIED TO AVAIL minimum, to twelve (12) and one (1)
OF THE BENEFITS OF PROBATION? day of reclusion temporal, as maximum.
(SEC.9) Prior to his conviction, he had been
found guilty of vagrancy and
Probation Law enumerates who are
disqualified to avail of the benefits of imprisoned for ten (10) days of arresto
probation. They are the following: menor and fined fifty pesos (P50.00). Is
he eligible for probation? Why?
SECTION 9. Disqualified Offenders.-
Suggested Answer: A is not eligible
THE BENEFITS OF THE PROBATION because his conviction exceeds six years.
DECREE SHALL NOT BE EXTENDED TO Probation does not extend to those sentenced
THOSE: to serve a maximum term of imprisonment of
more than six years. His previous
(1) Sentenced To Serve A Maximum Term convictionin this case has nothing to do with
Of Imprisonment Of More Than Six Years.
his ineligibility to avail of probation.
(2) Convicted Of Any Crime Against a. Are there exceptions where even
National Security or the Public Order.
if the convict had filed an appeal
still he is allowed to file a petition
(3) Who Have Previously Been Convicted
By Final Judgment Of An Offense Punished for probation?
By Imprisonment Of more than 6 months
and 1 day and/or a fine of more than Yes, there are exceptions and they
P1,000.00( as amended by R.A.10707); are the following:

(4) Who Have Been Once On Probation 1. One exception is provided under
Under The Provisions Of This Decree. Section 11 of RA 9265. It provides that the
accused first-time offender may avail of
suspended sentence subject to certain
(5) Who Are Already Serving Sentence At
conditions. If there is violation of any of
The Time The Substantive Provisions Of
the conditions, the court shall pronounce
This Decree Became Applicable.
judgment of conviction and he/she shall
serve sentence as any other convicted
In addition: person. The court, however, may place
the accused under probation or
(6) Who Has Perfected An Appeal From community service in lieu of
The Judgment Of Conviction. (Sec.4) imprisonment.

(7) Any Person Convicted Of Drug Upon promulgation of the sentence,


Trafficking or Pushing Regardless of the the court may, in its discretion, place the
Penalty Imposed By The Court. (Sec. 24 of accused under probation, even if the
R.A. 9165, The Comprehensive Dangerous
5
sentence provided under this Act is higher
than that provided under existing law on The Probation Law never intended to
probation, or impose community service in deny an accused his right to probation
lieu of imprisonment. through no fault of his. The underlying
philosophy of probation is one of liberality
1.20 The principle enunciated in the towards the accused. Such philosophy is not
case People vs. Arnel Colinares and now served by a harsh and stringent interpretation
embodied under R.A.10707 amending the of the statutory provisions.
probation law.
This may be true if the trial court meted
ARNEL COLINARES vs. PEOPLE out to Arnel a correct judgment of
G.R. No. 182748, December 13, 2011 conviction. Here, however, it convicted Arnel
of the wrong crime, frustrated homicide that
FACTS: Arnel Colinares was found guilty of carried a penalty in excess of 6 years. How can
frustrated homicide by the RTC and the Court expect him to feel penitent over a
sentenced him to suffer imprisonment from crime, which as the Court now finds, he did not
two years and four months of commit? He only committed attempted
prision correccional, as minimum, to six years homicide with its maximum penalty of 2 years
and one day of prision mayor, as and 4 months.
maximum. Since the maximum
probationable imprisonment under the law At any rate, what is clear is that, had the
was only up to six years, Arnel did not qualify RTC done what was right and imposed on
for probation. Arnel the correct penalty of two years and four
months maximum, he would have had the
ISSUE: Whether or not accused may still right to apply for probation. No one could say
apply for probation. with certainty that he would have availed
himself of the right had the RTC done right by
RULING: Ordinarily, Arnel would no longer him. The idea may not even have crossed his
be entitled to apply for probation, he having mind precisely since the penalty he got was
appealed from the judgment of the RTC not probationable.
convicting him for frustrated homicide.
c. What does R.A. 10707 provide where
Here, however, Arnel did not appeal an application for probation is filed
from a judgment that would have allowed but the defendant has earlier
him to apply for probation. He did not have perfected an appeal?
a choice between appeal and probation. He
was not in a position to say, "By taking this Section 4 of P.D. 968, as amended by R.A.
appeal, I choose not to apply for
No. 10707 provides that NO application
probation." The stiff penalty that the trial
court imposed on him denied him that for probation shall be entertained or
choice. Thus, a ruling that would allow Arnel granted if the defendant has perfected
to now seek probation under this Court's the appeal from the judgment of
greatly diminished penalty will not dilute the conviction: Provided, That when a
sound ruling in Francisco. It remains that judgment of conviction imposing a non-
those who will appeal from judgments of probationable penalty is appealed or
conviction, when they have the option to try
reviewed, and such judgment is modified
for probation, forfeit their right to apply for
that privilege. through the imposition of a
probationable penalty, the defendant
In a real sense, the Court's finding that shall be allowed to apply for probation
Arnel was guilty, not of frustrated homicide, based on the modified decision before
but only of attempted homicide, is an original such decision shall becomes final.
conviction that for the first time imposes on
him a probationable penalty. Had the RTC d. Would the total prison term or the
done him right from the start, it would have maximum prison term of the
found him guilty of the correct offense and
sentence be taken into account in
imposed on him the right penalty of two years
and four months maximum. This would have determining ones eligibility for
afforded Arnel the right to apply for probation?
probation.
6
The law uses the word maximum b. Probation is not applicable when the
term and not total term. It is enough that accused has been convicted by final
each of the prison term does not exceed 6 judgment of an offense punished by
imprisonment of less than one (1) month
years. The number of offenses is immaterial
and/or fine of less than P200.00.
for as long as the penalties imposed, when
taken individually and separately, are c. Probation is not applicable when accused
within the probationable period. Francisco is convicted of indirect assault. (*Indirect
vs. CA, 243 SCRA 384 assault is a crime against public order)

(2) Convicted Of Any Crime Against d. Probation is not applicable when


National Security or the Public Order. accused is convicted of indirect bribery.

The Crimes against National (3) Who Have Previously Been Convicted
Security are as follows: By Final Judgment Of An Offense Punished
By Imprisonment Of Not Less Than One
a. Treason Month And One Day And/Or A Fine Of Not
Less Than Two Hundred Pesos.
b. Conspiracy and Proposal to
Commit Treason
Illustrative case
c. Misprision of Treason BAR Q.[2004] PX was convicted and
sentenced to imprisonment of thirty days
d. Espionage
and a fine of one hundred pesos.
e. Terrorism and Conspiracy to Previously, PX was convicted of another
Commit Terrorism under R.A. 9372 crime for which the penalty imposed on
him was thirty days only. Is PX entitled to
The following are classified as Crimes probation?
against Public Order:
Suggested Answer: Yes, the
a. Rebellion, Coup d etat, Sedition penalty imposed upon him does not exceed 6
and Disloyalty years. His previous conviction for another
crime with a penalty of thirty days
b. Crimes against Legislative Bodies
and Similar Bodies, Violation Of imprisonment or not exceeding one (1) month
Pariliamentary Immunity does not disqualify him from applying for
probation.
c. Illegal Assemblies and
Associations (4) Who Have Been Once On Probation
Under The Provisions Of This Decree.
d. Assault Upon, and Resistance and
Disobedience to Persons In Authority (5) Who Are Already Serving Sentence At
and Their Agents The Time The Substantive Provisions Of
This Decree Became Applicable Pursuant
e. Public Disorders
To Section 33 Hereof.
f. Commission of Another Crime (6) Who Has Perfected An Appeal From
During Service of Penalty Imposed
The Judgment Of Conviction (Sec.4,
for Another Previous Offense
Probation Law. (*See previous discussion)
BAR Q. [2012] Under which of the
Probation essentially rejects appeals
following circumstances is probation not
and encourages an otherwise eligible convict
applicable?
to immediately admit his liability and save
a. Probation is not applicable when the the state the time, effort and expenses to
accused is sentenced to serve a maximum of jettison an appeal. Sable vs. People 584 SCRA
six (6) years. 619, April 7, 2009

7
(7) Any Person Convicted Of Drug After the period of probation and
Trafficking or Pushing Regardless of the upon consideration of the report and
Penalty Imposed By The Court. (Sec. 24 of recommendation of the probation officer, the
court may order the final discharge of the
R.A. 9165, The Comprehensive Dangerous
probationer upon finding that he has fulfilled
Drugs Act Of 2002). the terms and conditions of his probation
and thereupon the case is deemed
The Supreme Court had the occasion
terminated.
to explain this disqualification in Padua vs.
People, 559 SCRA 519, July 23, 2008, where it 1.15 WHAT IS THE CONSEQUENCE OF A
states that under Section 24 of Rep. Act No. FINAL DISCHARGE OF THE
9165, any person convicted of drug PROBATIONER? (Sec.16).
trafficking cannot avail of the privilege of
probation. In this case, the convict was The final discharge of the
charged and convicted for violation of probationer shall operate to restore to him
all civil rights lost or suspend as a result of
Section 5, Article II of Rep. Act No. 9165 for
his conviction and to fully discharge his
selling dangerous drugs. It is clear under liability for any fine imposed as to the offense
Section 24 of Rep. Act No. 9165 that any for which probation was granted.
person convicted of drug trafficking cannot
avail of the privilege of probation. 1.16 HOW IS PROBATION LAW
CONSTRUED?
1.12 WHAT IS THE PERIOD OF
PROBATION IF- (SEC.14) It is well-settled that the probation
law is not a penal statute; and therefore, the
a. the convict is sentenced to a term of principle of liberal interpretation is
imprisonment of not more than one year? inapplicable. And when the meaning is
clearly discernible from the language of the
The period of probation shall not statute, there is no room for construction or
exceed two years. interpretation. People vs. Alejandra Pablo,
G.R. No. 12510: August 3, 2000
BAR Q. [2012]The period of probation of
the offender sentenced to a term of one 1.17 IS A PROBATIONER DISQUALIFIED
(1) year shall not exceed FROM RUNNING FOR A PUBLIC
OFFICE DURING THE PERIOD OF
a. two (2) years; HIS PROBATION?
b. six (6) years;
c. one (1) year; No. In the case of Moren vs. COMELEC
d.three (3) years; and MEJES, G.R. 168550, August 10, 2006, the
Supreme Court emphasized that during the
b. the convict is sentenced to a term of period of probation, the probationer is not
imprisonment of more than one year? disqualified from running for a public office
because the accessory penalty of suspension
In all other cases, said period shall from public office is put on hold for the
not exceed six years. duration of the probation.

1.13 WHAT IS THE CONSEQUENCE IF THE The Court went on to state the case of
PROBATIONER VIOLATES ANY OF Baclayo vs. Mutia, 129 SCRA 148, where it
THE CONDITIONS OF PROBATION? ruled that an order placing defendant on
(SEC. 15) probation is not a sentence but is rather in
effect a suspension of imposition of sentence.
The court may arrest the
probationer, hold an informal summary The grant of probation to petitioner
hearing and may revoke his probation in suspended the imposition of the principal
which case, he has to serve the sentence penalty of imprisonment, as well as the
originally imposed. accessory penalties of suspension from
public office and from the right to follow the
profession or calling and that of perpetual
1.14 WHEN IS PROBATION DEEMED
TERMINATED? (Sec.16).
8
special disqualification from the right of and excessive jurisdiction of personal liberty
suffrage. and economic usefulness;

1.18 DOES THE GRANT OF PROBATION 2) It is intended to favor the accused


AFFECT THE ADMINISTRATIVE particularly to shorten his term of
ASPECT OF A CASE? imprisonment, depending upon his behavior
and his physical, mental and moral record as
No. Probation affects only the a prisoner to be determined by the Board of
Sentence.
criminal aspect of the case, not its
administrative dimension. Samalio vs Court
1.01 IF A SPECIAL LAW ADOPTS
of Appeals, 454 SCRA 462
PENALTIES UNDER THE REVISED
PENAL CODE, WILL THE
1.19 CAN THE PERIOD WITHIN WHICH A
INDETERMINATE SENTENCE LAW
PERSON IS UNDER PROBATION BE
EQUATED WITH SERVICE OF APPLY JUST AS IT WOULD IN
SENTENCE ADJUDGED? FELONIES?

No. The period within which a person Yes, where the special law adopted
is under probation cannot be equated with penalties from the Revised Penal Code, the
service of sentence adjudged. Indeterminate Sentence Law will apply just
as it would in felonies.
Section 4 of the Probation Law
specifically provides that in the grant of The Supreme Court in Sanchez vs.
probation, the probationer does not serve People 588 SCRA 747, June 5, 2009, stressed
the penalty imposed upon him by the court that although Republic Act No. 7610 is a
but is merely required to comply with all the special law, the rules in the Revised Penal
conditions prescribed by the probation
Code for graduating penalties by degrees or
order. Moren vs. Comelec and Mejes, G.R.
168550, August 10, 2006 determining the proper period should be
applied.

-ooo000ooo- The penalty for Other Acts of Child


Abuse is prision mayor in its minimum
period. This penalty is derived from, and
CHAPTER II. INDETERMINATE SENTENCE defined in, the Revised Penal Code. Although
LAW R.A. No. 7610 is a special law, the rules in the
ACT NO. 4103
Revised Penal Code for graduating penalties
as amended by Act No. 4225 and
Republic Act No. 4203 by degrees or determining the proper period
should be applied.
[BAR Q. 2014, 2010, 2009, 2007, 2005,
2003, 2002, 1999, 1994, 1991, 1990, 1.02 UNDER WHAT CIRCUMSTANCES IS
1989, 1988] THE INDETERMINATE SENTENCE
LAW NOT APPLICABLE (SEC. 2)?
___________________________________________________
[*BAR Q: State the application of the
A. IN GENERAL Indeterminate Sentence Law/ BAR Q:
Under what circumstances is the
Indeterminate Sentence Law not
1.00 CITE THE PURPOSES OF THE
applicable?]
INDETERMINATE SENTENCE LAW.
PURSUANT TO SECTION 2 OF THE
The purposes of Indeterminate
INDETERMINATE SENTENCE LAW, IT
Sentence Law are as follow:
SHALL NOT BE APPLICABLE IN THE
1) To uplift and redeem valuable FOLLOWING CASES:
human material and prevent unnecessary

9
1. Offenses punishable by death b. Query: May the privileged mitigating
or life imprisonment. circumstance of minority be appreciated in
fixing the penalty that should be imposed
2. Those convicted of treason, even if the penalty imposed is originally an
conspiracy or proposal to indivisible penalty?
commit treason.
Yes. The ISLAW is applicable because
3. Those convicted of misprision the penalty which has been originally an
of treason, rebellion, sedition indivisible penalty (reclusion perpetua to
death), where ISLAW is inapplicable, became
or espionage.
a divisible penalty (reclusion temporal) by
virtue of the presence of the privileged
4. Those convicted of piracy.
mitigating circumstance of minority. People
5. Habitual delinquents. vs. Allen Udtojan Mantalaba, G.R. No. 186227:
July 20, 2011
6. Those who escaped from
confinement or those who 2. Those Convicted of Treason,
evaded sentence. Conspiracy or Proposal to Commit
Treason.
7. Those granted with
conditional pardon and who a. TREASON
violated the terms of the b. CONSPIRACY TO COMMIT
same. TREASON.

8. Those whose maximum Illustrative Case


period of imprisonment does
not exceed one year. BAR Q.[2012] AA was convicted of
proposal to commit treason. Under
9. Those already serving final Article 115 of the Revised Penal Code,
judgment upon the approval proposal to commit treason shall be
of this act. punished by prision correccional and a
fine not exceeding P5,000.00. Is the
1.03 EXPLAIN AND ILUSTRATE THE Indeterminate Sentence Law applicable
CIRCUMSTANCES WHEN THE to AA?
INDETERMINATE SENTENCE LAW
IS NOT APPLICABLE. a. Yes. The Indeterminate Sentence Law is
applicable to AA because the maximum
1. Offenses Punishable By Death Or Life of prision correccional exceeds one (1)
Imprisonment. year.
a. May a person punished with reclusion b. Yes. The Indeterminate Sentence Law is
perpetua be entitled to the benefits of applicable to AA because there is no
ISLAW? showing that he is a habitual delinquent.

No, it is deemed included in the c. No. The Indeterminate Sentence Law is


disqualification. The Indeterminate not applicable to AA considering the
Sentence Law does not apply to persons penalty imposable for the offense of
convicted of offenses punishable with which he was convicted.
Reclusion Perpetua. People vs. Lab-eo, 373
SCRA 461 d. No. The Indeterminate Sentence Law is
not applicable considering the offense of
The Court has equated the penalty which he was convicted (*The crime for
of reclusion perpetua as synonymous to life which AA was convicted is proposal to
imprisonment for purposes of the commit treason).
Indeterminate Sentence Law. People vs.
Enriquez G.R. No. 158797 July 29, 2005 3. Habitual Delinquents.

10
Who is a Habitual maximum exceeds one year. People vs. Lapis,
Delinquent? 391 SCRA 131

He is a person who within a period 1.04 WHAT ARE THE REASONS WHY THE
of ten (10) years from the date of his release MAXIMUM AND THE MINIMUM
or last conviction of the crimes of serious, TERM OF THE INDETERMINATE
less serious physical injuries, robbery, theft, SENTENCE HAVE TO BE FIXED BY
estafa or falsification, he is found guilty of THE COURT?
any of said crimes a third time or oftener
(Article 62 of the Revised Penal Code as The maximum and minimum term of
amended). the sentence have to be fixed because of the
following reasons:
Illustrative case
1) Whenever any prisoner shall have
4. Those Who Escaped From served the minimum penalty imposed on
Confinement or Those Who Evaded him, and it shall appear to the Board of
Sentence. Indeterminate Sentence that such prisoner is
fitted by his training for release that there is
[BAR Q.] A convict serving sentence for a reasonable probability that such prisoner
robbery escaped from the penitentiary will live and remain at liberty without
and killed a rival gang member. Found violating the law, and that such release will
guilty of homicide, he was given a straight not be incompatible with the welfare of
prison term. He moved for society, said Board may authorize the release
reconsideration, contending that not of such prisoner on parole, upon such terms
being a habitual delinquent, he was and conditions as may be presented by the
entitled to an indeterminate sentence. Board;
Decide with reasons.
2) Whenever any prisoner released
Suggested Answer: Motion for on parole shall, during the period of
reconsideration is denied. While it may true surveillance, violate any of the conditions of
that A is not be a habitual delinquent, he his parole, the Board of Indeterminate
however, escaped from prison while serving Sentence may issue an order for his re-
sentence. The Indeterminate Sentence Law arrest. In such case the prisoner so re-
provides that it shall not apply to persons who arrested shall serve the remaining
escaped from confinement or evaded his unexpired portion of the maximum portion
sentence. of the maximum sentence for which he was
5. Those Whose Maximum Period of originally committed to prison, unless the
Imprisonment Does Not Exceed One Year. Board of indeterminate Sentence shall, in its
discretion, grant a new parole to the said
a. Can an indeterminate sentence be prisoner.
imposed if the maximum term of
imprisonment is less than 1 year? 3) Even if a prisoner has already
served the minimum, but he is not fitted for
The Indeterminate Sentence Law release on parole, he shall continue to serve
does not apply if the maximum term of imprisonment until the end of the maximum.
imprisonment does not exceed one year if
the trial court opts to impose penalty of 4) The need for specifying the
imprisonment less than one year, it should minimum and maximum periods of the
not impose indeterminate penalty but indeterminate sentence is to prevent the
straight penalty of one year or less instead. unnecessary and excessive deprivation of
liberty and to enhance the economic
An indeterminate sentence usefulness of the accused, since he may be
may be imposed if the minimum of the exempted from serving the entire sentence,
penalty is one year or less, and the depending upon his behavior and his
11
physical, mental, and moral record. Batistis TERM OF THE INDETERMINATE
vs. People, 608 SCRA 335, December 16, 2009 SENTENCE UNDER A SPECIAL LAW.

1.05 IS THE IMPOSITION OF Section 1 of the Indeterminate


INDETERMINATE SENTENCE Sentence Law provides that when the offense
MANDATORY IN CRIMINAL CASES? is punished by a law other than the Revised
Penal Code, the court shall sentence the
Yes. The requirement of imposing an accused to an indeterminate sentence, the
indeterminate sentence in all criminal maximum term of which shall not exceed the
offenses whether punishable by the Revised maximum fixed by law and the minimum
Penal Code or by special laws, with definite shall not be less than the minimum term
minimum and maximum terms, as the Court prescribed by the same. People vs. Bohol, 560
deems proper within the legal range of the SCRA 232, July 28, 2008
penalty specified by the law must, therefore,
be deemed mandatory. Batistis vs. People, The following rules shall apply:
608 SCRA 335, December 16, 2009
a) TO GET THE MAXIMUM:
In the instant case, the straight
penalty the Court of appeals imposed was The maximum term shall not exceed
contrary to the Indeterminate Sentence the maximum fixed by said law.
Law, whose Section 1 requires that the b) TO GET THE MINIMUM:
penalty of imprisonment should be an
indeterminate sentence. The minimum shall not be less than
the minimum term prescribed by the
1.06 IS THE LAW APPLICABLE IF THE special law.
PENALTY IS DESTIERRO?
Illustrative Cases
No, the law does not apply if the
penalty is destierro because it does not a. [BAR Q.] A was convicted of illegal
involve imprisonment. possession of grease guns and two
Thompson sub-machine guns punishable
B. RULES INVOLVING OFFENSES under the old law (RA No. 4) with
IN VIOLATION OF SPECIAL LAW imprisonment of from five (5) to ten (10)
years. The trial court sentenced the
(BAR QUESTION [2012] HOW IS THE accused to suffer imprisonment of five
INDETERMINATE SENTENCE LAW (5) years and one (1) day. Is the penalty
APPLIED IN IMPOSING A SENTENCE?)
thus imposed correct? Explain.
2.00 IN THE IMPOSITION OF SENTENCE Suggested Answer: No. The penalty
INVOLVING VIOLATION OF SPECIAL
imposed by the court is a straight penalty of
LAWS, WHAT DOES SECTION 1 OF
THE INDETERMINATE SENTENCE five (5) years imprisonment and one (1) day
LAW PROVIDE? in violation of the express provision of the
Indeterminate Sentence Law under Section 1
The rule expressly provides: If the which requires that the court in imposing a
offense is punished by any other law, the prison sentence for an offense punishable
court shall sentence the accused to an under a special law, shall sentence the
indeterminate sentence, the maximum term
accused to an indeterminate sentence, the
of which shall not exceed the maximum fixed
by said law and the minimum shall not be maximum term of which shall not exceed the
less than the minimum term prescribed by maximum fixed by the law and the minimum
the same. shall not be less than the minimum term
prescribed by the same.
2.01 GIVE THE RULES IN ARRIVING AT
THE MAXIMUM AMD MINIMUM d. THE PRESENCE OF A MITIGATING
CIRCUMSTANCE IS IMMATERIAL IN THE

12
IMPOSITION OF PENALTY INVOLVING 3.01 CITE THE RULE IN ARRIVING AT THE
VIOLATION OF A SPECIAL LAW. MAXIMUM TERM OF THE
INDETERMINATE SENTENCE
[BAR Q:]Andres is charged with an UNDER THE REVISED PENAL CODE.
offense defined by a special law. The
penalty prescribed for the offense is To Get The Maximum Term:
imprisonment of not less than five (5)
years but not more than ten (10) years. That which, in view of the
Upon arraignment, he entered the plea of attending circumstances, could be
guilty. In the imposition of the proper properly imposed under the rules of
penalty, should the Indeterminate the said code. (Sec.1, ISLAW)
Sentence Law be applied? If you were the The maximum term of the
judge trying the case, what penalty would indeterminate penalty, according to the
you impose on Andres? Indeterminate Sentence Law, is that which,
Suggested Answer: Yes, the in view of the attending circumstances, could
Indeterminate Sentence Law should be be properly imposed under the Rules of the
applied. In a special law, the indeterminate said Code. Francisco, Jr. vs. People, 579 SCRA
sentence shall consist of a maximum term 608, February 18, 2009
which shall not exceed the maximum fixed by 3.02 ARE THE RULES OF OFFSETTING
the special law and a minimum term which THE MODIFYING CIRCUMSTANCES
shall not be less than the minimum term APPLICABLE IN DETERMINING
prescribed by the same. THE MAXIMUM TERM OF THE
INDETERMINATE SENTENCE?
If I were the judge, I would impose a penalty of
imprisonment consisting of any duration not The rules of offsetting the modifying
less than 5 years as minimum term of the circumstances are applicable. The mitigating
sentence and any duration not more than 10 or aggravating circumstance is to be
years as maximum term of the sentence. considered in the imposition of the
maximum term of the indeterminate
The plea of guilty as a mitigating sentence. As ruled in Jose vs. People, 436 SCRA
circumstance cannot be appreciated because 294, the modifying circumstances are
the law violated is a special law. considered in the imposition of the
maximum term of the indeterminate
C. RULES INVOLVING CRIMES PUNISHED
sentence.
BY THE REVISED PENAL CODE.
Article 64 of the Revised Penal Code
3.00 IN THE IMPOSITION OF SENTENCE
governs the rules for the application of
INVOLVING VIOLATION OF THE
penalties which contain three periods, to
REVISED PENAL CODE, WHAT DOES
wit:
SECTION 1 OF THE INDETERMINATE
SENTENCE LAW PROVIDE?
1. When there are neither aggravating
Section 1 expressly nor mitigating circumstances, they shall
provides, Hereafter, in imposing a prison impose the penalty prescribed by law in its
sentence for an offense punished by the medium period.
Revised Penal Code, or its amendments, the
court shall sentence the accused to an 2. When only a mitigating circumstance is
indeterminate sentence the maximum term present in the commission of the act, they
of which shall be that which, in view of the shall impose the penalty in its maximum
attending circumstances, could be properly period.
imposed under the rules of the said Code, and
the minimum which shall be within the range 3. When only an aggravating
of the penalty next lower to that prescribed by circumstance is present in the commission
the Code for the offense.
of the act, they shall impose the penalty in
its maximum period.
13
4. When both mitigating and aggravating - The modifying circumstances are
circumstances are present, the court shall considered only in the imposition of the
reasonably offset those of one class maximum term of the indeterminate
against the other according to their sentence. Jarillo vs. People 601 SCRA
236, September 29, 2009
relative weight.
Illustrative Case
5. When there are two or more mitigating
circumstances and no aggravating
a. BAR Q. [2009] In a conviction for
circumstances are present, the court
homicide, the trial court appreciated
shall impose the penalty next lower to two (2) mitigating circumstances and
that prescribed by law, in the period that one (1) aggravating circumstance.
it may deem applicable, according to the Homicide under Article 249 of the
number and nature of such Revised Penal Code is punishable by
circumstances. reclusion temporal, an imprisonment
term of twelve (12) years and one (1)
3.03 CITE THE RULE IN ARRIVING AT THE day to twenty (20) years. Applying the
MINIMUM TERM OF THE Indeterminate Sentence Law,
determine the appropriate penalty to
INDETERMINATE SENTENCE
be imposed. Explain.
UNDER THE REVISED PENAL
CODE. Suggested Answer: In order to
obtain the maximum term of the
The law provides that the indeterminate sentence, the rule of offsetting
minimum should be: is applicable in view of the attending
circumstances. Since there are two (2)
within the range of the penalty next mitigating circumstances as against one (1)
lower to that prescribed by the code (rpc) aggravating circumstance, the period shall be
for the offense (Sec. 1, ISLAW) set in its minimum. Hence, the maximum term
of the indeterminate sentence is reclusion
The Indeterminate Sentence Law temporal in its minimum period. The
leaves it entirely within the sound discretion of minimum which shall be within the range of
the court to determine the minimum penalty, the penalty next lower to that prescribed by
as long as it is anywhere within the range of the Code for the offense. Since the penalty next
lower in reclusion temporal is prision mayor,
the penalty next lower without any reference
the minimum term of the indeterminate
to the periods into which it might be sentence therefore, is prision mayor, the
subdivided. People vs.Jarillo, 601 SCRA 236, period of which is upon the discretion of the
September 29, 2009 court.

CONSIDER THE FOLLOWING a. Will your answer be the same if it is a


PRINCIPLES- conviction for illegal possession of
drugs under R.A. 9165 (Dangerous
- The court has the discretion to fix as the Drugs Act of 2002), the prescribed
minimum term any period of penalty of which is also
imprisonment within the penalty next imprisonment for a term of twelve
lower to that prescribed by the Code for (12) years and one (1) day to twenty
the offense. In determining the (20) years? Why or why not?
minimum term, it is left entirely within
the discretion of the court to fix Suggested Answer: No. It is a settle rule
anywhere within the range of the that the rule of offsetting is not applicable in
penalty next lower without reference to crimes punished under a special penal law as
the periods into which it may be in this case. The presence of any generic
subdivided. The trial court is given the aggravating and ordinary mitigating
widest discretion to fix the minimum of circumstances will not affect the proper
the indeterminate penalty so long as that imposition of the penalty.
penalty is within the range provided in
the law. Garcia vs. People, 425 SCRA 221 1. WITH THE PRESENCE OF
PRIVILEGED AND ORDINARY
14
MITIGATING CIRCUMSTANCES BUT discernment, hence, the penalty becomes
WITHOUT ANY AGGRAVATING prision correccional.
CIRCUMSTANCES.
There are two or more mitigating
Illustrative case circumstances present in this case and no
aggravating circumstances present. Under
[MODIFIED BAR Q.] Homicide is Article 64 paragraph 5 of the Revised Penal
punishable by reclusion temporal. The Code, the court shall impose the penalty
accused, 17 years of age, with next lower to that prescribed by law. The
discernment, committed the crime of penalty therefore shall be reduced to
frustrated homicide while under the arresto mayor.
state of passion and obfuscation and
acting in immediate vindication of a Arresto mayor carries the maximum
grave offense committed by the deceased term of imprisonment of only six months.
against his mother. Accused thereafter The Indeterminate Sentence Law will not
surrendered voluntarily immediately apply to those whose maximum term of
after the commission of the offense, and imprisonment does not exceed one year.
pleaded guilty at the trial. What is the Consequently, the proper penalty to be
proper penalty to be imposed upon him? imposed upon the accused is a straight
penalty of arresto mayor.
a) The proper penalty is prision mayor in
its minimum period as the maximum CASES
term of the indeterminate sentence and
prision correccional as its minimum 1. DELIA D. ROMERO vs. PEOPLE OF THE
term the period of which is to be fixed PHILIPPINES
upon the courts discretion. G.R. No. 171644: November 23, 2011

b) The proper penalty is prision HELD: It is basic law that the application of
correccional in its minimum period as the the Indeterminate Sentence Law is
mandatory where imprisonment exceeds
maximum term of the indeterminate
one (1) year.
sentence and arresto mayor as its
minimum term the period of which is to 2. ROSANA ASIATICO y STA. MARIA vs.
be fixed upon the courts discretion. PEOPLE OF THE PHILIPPINES
G.R. No. 195005: September 12, 2011
c) The proper penalty is prision
correccional as the maximum term of the FACTS: Rosana Asiatico was convicted of
indeterminate sentence the period of illegal possession of dangerous drugs
which is to be fixed upon the courts penalized under Section 11, Article II of (RA)
discretion and arresto mayor in its 9165 or the Comprehensive Dangerous
Drugs Act of 2002 and sentenced to suffer of
minimum period as its minimum term.
imprisonment of twelve years and one day.
d) The proper penalty is arresto mayor only.
ISSUE: Whether or not the sentence imposed
The Indeterminate Sentence Law will not
is proper.
apply.
HELD: The courts a quo erred in imposing a
Note: The penalty imposed in consummated
straight penalty of "imprisonment of twelve
homicide is reclusion temporal. Since the (12) years and one day." Sec. 1 of the ISL
accused is convicted only of frustrated mandates that, in case of a special law, the
homicide, the penalty will be reduced by accused shall be sentenced "to an
one degree, which is prision mayor. The indeterminate sentence, the maximum term
accused who is a minor, is entitled to a of which shall not exceed the maximum fixed
privileged mitigating circumstance of one by said law and the minimum shall not be
less than the minimum term prescribed by
degree lower since he acted with
the same."

15
ADDENDUM:
The law punishes not only public
1. Parole; Section 3 of Republic Act No. officers who commit prohibited acts
9346 provides that persons convicted of enumerated under Section 3 but also those
offenses punished with reclusion perpetua, who induce or cause the public official to
or whose sentences will be reduced to commit those offenses. Santillano vs. People,
reclusion perpetua, shall not be eligible for March 03, 2010
parole under Act No. 4103, otherwise
known as the Indeterminate Sentence Law,
as amended. (People of the Philippines vs. 1.02 WHO ARE DEEMED INCLUDED AS
Vicente Candellada, 701 SCRA 19, G.R. No. PUBLIC OFFICER?
189293, July 10, 2013, Leonardo-De Castro, J.)
A public officer includes elective and
2. Effect of suspension of death penalty. appointive officials and employees,
Under Article 266-B of the Revised permanent or temporary, whether in the
Penal Code, as amended, the imposable classified or unclassified or exempt service
penalty for qualified rape is death. With the receiving compensation, even nominal, from
effectivity, however, of Republic Act No. the government; Under the Anti-Graft Law,
9346, entitled, An Act Prohibiting the the nature of one's appointment, and
Imposition of Death Penalty in the
whether the compensation one receives
Philippines, the imposition of the supreme
penalty of death has been prohibited. from the government is only nominal, is
Pursuant to Section 241 thereof, the penalty immaterial because the person so elected or
to be meted out to appellant shall be appointed is still considered a public officer.
reclusion perpetua. (People vs. Tabayan,
G.R. No. 190620, June 18, 2014.Perez, J.) Thus, in Javier v. Sandiganbayan, First
Division, 599 SCRA 324, September 11, 2009,
where petitioner was appointed by the
President to the Governing Board of the
-oooOOOooo-
NDBD and her term is only for a year, such
does not make her private person exercising
a public function. The fact that she is not
CHAPTER III receiving a monthly salary is also of no
moment. Section 7, R.A. No. 8047 provides
THE ANTI-GRAFT AND CORRUPT
that members of the Governing Board shall
PRACTICES ACT
receive per diem and such allowances as may
Republic Act No. 3019 be authorized for every meeting actually
attended and subject to pertinent laws, rules
[BAR Q. 2014, 2012, 2011, 2010, 2009, and regulations. The Supreme Court held
2003, 2000, 1999, 1997, 1991, that the nature of one's appointment, and
1990, 1988, 1985] whether the compensation one receives
___________________________________________________
from the government is only nominal, is
immaterial because the person so elected or
1.00 HOW MUST THE LAW BE appointed is still considered a public officer.
CONSTRUED?
1.03 WHO MAY BE LIABLE UNDER
Every reasonable intendment will be SECTION 3?
made in support of the presumption of
official acts in case of doubt as to an officers a. The law punishes not only public
act being lawful or unlawful, construction officers who commit prohibited acts
should be in favor of its lawfulness. Bustillo, enumerated under Sec. 3, but also
Sumilhig, Jr., and Billedo, Jr., vs. People, May those who induce or cause the public
12, 2010 official to commit those offenses.
This is supported by Sec. 9, which
1.01 WHO MAY BE LIABLE UNDER
SECTION 3 OF R.A. 3019? includes private persons as liable for
violations under Secs. 3, 4, 5, and 6.
16
b. Private persons found acting in for violation of the Anti-Graft Law with
conspiracy with public officers may the Tanodbayan against Cris Vera. Will
be held liable for the applicable the complaint prosper? Discuss with
offenses found in Section 3 of the law. reasons.
People vs.Santillano, 614 SCRA 164,
March 3, 2010 Suggested Answer: No, the
complaint against Cris Vera will not prosper.
His act does not constitute persuading,
1.04 ENUMERATE THE ACTS CONSIDERED inducing or influencing under Sec. 3 (a) of
AS CORRUPT PRACTICES OF PUBLIC Republic Act 3019. To induce, persuade or
OFFICERS UNDER SEC. 3 OF R.A.
influence connotes the giving of a price,
3019.
reward or promise. Cris Vera should have
In addition to acts or omissions of acted in view of a consideration, payment or
public officers already penalized by existing renumeration. Unsavory comments and
law, the following shall constitute corrupt furious attacks do not fall under the term to
practices of any public officer and are hereby induce, persuade or influence.
declared to be unlawful:
(B) Directly Or Indirectly Requesting Or
(A) Persuading, Inducing Or Influencing Receiving Any Gift, Present, Share,
Another Public Officer To Perform An Act Percentage, Or Benefit, For Himself Or For
Constituting A Violation Of Rules And Any Other Person, In Connection With Any
Regulations Duly Promulgated By Contract Or Transaction Between The
Competent Authority Or An Offense In Government And Any Other Part, Wherein
Connection With The Official Duties Of The Public Officer In His Official Capacity
The Latter, Or Allowing Himself To Be Has To Intervene Under The Law.
Persuaded, Induced, Or Influenced To
Commit Such Violation Or Offense. a. ELEMENTS UNDER SECTION 3 (B) OF
R.A. NO. 3019.
Illustrative case
To be convicted of violation of Section
BAR Q.[1985] Cris Vera, an influential 3(b) of R.A. No. 3019, the prosecution has the
member of the Sangguniang Panlunsod of burden of proving the following elements:
Butuan City and a well-known radio
commentator of the said place, addressed 1) the offender is a public officer;
a written communication to Director Jose
2) who requested or received a gift,
of Butuan City LTO, asking for the a present, a share, a percentage,
issuance of a temporary permit for a or benefit;
special trip to Ozamis City of a TPU
jeepney belonging to Vera's relative 3) on behalf of the offender or any
which got involved in a vehicular other person;
collision with a private car in the latter's
4) in connection with a contract or
place. The purpose of the said request is
transaction with the
to make it appear that the trip although government;
not within the authorized route of the
TPU jeepney's certificate of convenience, 5) in which the public officer, in an
was nevertheless authorized so as to official capacity under the law,
enable the owner to recover on the has the right to intervene.
Cadiao-Palacios vs. People, 582
insurance policy.
SCRA 713, March 31, 2009
Director Jose refused, fearful of
b. Explain the 4th element on the
the disastrous consequences.
phrase in connection with a
Thereafter, he was the subject of contract or transaction.
unsavory comments and furious attack
by Cris Vera in his program. Director Jose It is very clear from Section 3 (b) of RA
then countered with a criminal complaint No. 3019 that the requesting or receiving of
17
any gift, present, share, percentage, or
benefit must be in connection with a Each of these modes of committing the
contract or transaction wherein the public offense is distinct and different from one
officer in his official capacity has to intervene another. Proof of existence of any of them
under the law. What is required is that the suffices to warrant conviction. Cadiao-
transaction involved should at least be Palacios vs. People, 582 SCRA 713, March 31,
described with particularity and proven. 2009

In Garcia vs. Sandiganbayan, G.R. No. d. Must the demand be made by the
155574, November 20, 2006, the Supreme accused from the contractor himself?
Court agreed with petitioner that the
prosecution miserably failed to prove the No. It is irrelevant from whom the
existence of the fourth element. It is very accused demanded her percentage share of
clear from Section 3 (b) of RA No. 3019 that the project cost. As held in Preclaro v.
the requesting or receiving of any gift, Sandiganbayan, 247 SCRA 454 (1995), it is
present, share, percentage, or benefit must irrelevant from whom petitioner demanded
be in connection with a contract or her percentage share of the project cost
transaction wherein the public officer in his whether from the contractor himself or from
official capacity has to intervene under the the latters representative. That petitioner
law. made such a demand is all that is required by
Section 3(b) of R.A. No. 3019.
In this case, the prosecution did not
specify what transactions the Company had (E) Causing Any Undue Injury To Any
with the LTO that petitioner intervened in Party, Including The Government, Or
when he allegedly borrowed the vehicles Giving Any Private Party Any
from the Company. It is insufficient that Unwarranted Benefits, Advantage Or
petitioner admitted that Company has Preference In The Discharge Of His
continually transacted with his office. What Official Administrative Or Judicial
is required is that transaction involved Functions Through Manifest Partiality,
should at least be described with particularly Evident Bad Faith Or Gross Inexcusable
and proven. Negligence. This Provision Shall Apply To
Officers And Employees Of Offices Or
To establish existence of the fourth Government Corporations Charged With
element, the relation of the fact requesting The Grant Of Licenses Or Permits Or
and/or receiving transacts with petitioners Other Concessions.
LTO Office for the registration of its motor
vehicles, in the reporting of its engine and 1. In order to hold a person liable under
chassis number, as well as the submission of Section 3 (E) of R.A. 3019, what facts
its vehicle dealers report, and other similar need to be proved?
transactions, will not suffice. This general
statement failed to show the link between To be found guilty under said
the 56 alleged borrowings with their
provision, the following elements must
corresponding transactions.
concur:
c. What are the 3 distinct acts punished
(1) the offender is a public officer;
under this paragraph?
(2) the act was done in the discharge of the
3 (b) penalizes three distinct acts:
public officers official, administrative or
1) demanding or requesting; judicial functions;

2) receiving; or (3) the act was done through manifest


partiality, evident bad faith, or gross
3) demanding, requesting and receiving inexcusable negligence; and
any gift, present, share, percentage, or
benefit for oneself or for any other person, in (4) the public officer caused any undue
connection with any contract or transaction injury to any party, including the
between the government and any other Government, or gave any unwarranted
party, wherein a public officer in an official
capacity has to intervene under the law.
18
benefits, advantage or preference. Sison Price quotations obtained from
vs. People, 614 SCRA 670, March 9, 2010 several suppliers as well as the testimonies
of Ramon de Guzman Sevilla, Ruben Lappay
People vs. Ong and Mirasol Lappay proved that the dump
G. R. NO. 176546, September 25, 2009 truck purchased by petitioner was over-
priced, hence, had petitioner observed the
FACTS: Ong as Mayor of Angadana, Isabela, proper procurement procedure, the
bought an Isuzu dump truck for P750,000.00 municipality of Angandaan could have
from Ching for the use of the municipality. A acquired a dump truck similar to, if not
letter-complaint was filed against petitioner better than the one originally bought, at a
by her successor, Siquian and several other much lower price of not more than
Sangguniang Bayan members accusing her of P500,000.00 without doubt, petitioners
malversation of public funds and property negligence caused undue injury to the
government while at the same time gave
The Graft Investigation Officer found unwarsnted benefits to Josephine Ching.
no probable cause for the charges but she
was indicted for violation of Sec. 3 (e) of RA 2. With Respect To the 3rd Element, In
No. 3019, as amended. During trial, the sales order to be held guilty of violating
manager of Christian Motor Sales in Section 3 (e) of Republic Act No. 3019,
Cabanatuan City testified that the cost the provision itself explicitly requires
ranged from P190,000.00 P490,000.00. that the accused caused undue injury
Complainants testified that the dump truck for having acted with manifest
was bought without conducting a public partiality, evident bad faith, or with
bidding or a resolution by the Sangguniang gross inexcusable negligence, in the
Bayan. The Sandiganbayan rendered its discharge of his official administrative
Decision finding petitioner guilty beyond or judicial function.
reasonable doubt of violation of Sec. 3 (e) of
RA No. 3019. a. Must All of these Circumstances be
Present in Order to Convict the Accused?
ISSUE: Whether the act complained
of constitutes a violation of sec 3 (e) of RA No. No. Proof of any of these three in
3019. connection with the prohibited acts
mentioned in Section 3 (e) of RA 3019 is
HELD: The Supreme Court finds that enough to convict. Sison vs. People, March 09,
all the elements of the offense charged have 2010
been duly established beyond reasonable
doubt. Petitioner, being then the Mayor of b. Define Manifest Partiality.
Angandaan, Isabela is a public officer
discharging administrative and official Partiality is synonymous with bias which
functions. The act of purchasing the subject excites a disposition to see and report
truck without the requisite public bidding matters as they are wished for rather than as
and authority from the Sangguniang Bayan they are. Sison vs. People, March 09, 2010
displays gross and inexcusable negligence.
Undue injury was caused to the Government Manifest partiality exists when the
because said truck could have been accused has a clear, notorious, or plain
purchased at a much lower price. inclination or predilection to favor one side
or one person rather than another. It is
The Sandiganbayan correctly ruled synonymous with bias, which excites a
that by procuring the subject truck through a disposition to see and report matters as they
negotiated purchase without public bidding, are wished for rather than as they are. Reyes
petitioner failed to comply with the vs. People, August 04, 2010
procedure. Indeed, as the local chief
executive, petitioner is not only expected to c. Define Evident Bad Faith.
know the proper procedure in the
procurement of supplies, she is also duty Bad faith does not simply connote
bound to follow the same and her failure to bad judgment or negligence; it imputes a
discharge this duty constitutes gross and dishonest purpose or some moral obliquity
inexcusable negligence. and conscious doing of wrong; a breach of
sworn duty through some motive or intent or

19
ill will; it partakes of the nature of fraud. 4. Under the First Mode (4th element),
Sison vs. People, March 09, 2010 explain the meaning of undue injury
or damage.
Evident bad faith connotes a
manifest deliberate intent on the part of the
accused to do wrong or to cause damage. It Undue injury caused to any party,
contemplates a breach of sworn duty including the government, under Section 3
through some perverse motive or ill will. (e) of Republic Act No. 3019, could only mean
Reyes vs. People, August 04, 2010 actual injury or damage which must be
established by evidence. People vs.
d. Define Gross Negligence. Sandiganbayan, August 23, 2010

Gross negligence has been so defined as 5. Under the Second Mode, will it
negligence characterized by the want of even suffice that the accused has given
slight care acting or omitting to act in a
unjustified favor or benefit to
situation where there is a duty to act, not
inadvertently but willfully and intentionally another, in the exercise of his
with a conscious indifference to official, administrative or judicial
consequences in so far as other persons may functions?
be affected. It is the omission of that care
which even inattentive and thoughtless men Yes, in order to be found guilty under the
never fail to take on their own property. second mode, it suffices that the accused has
Sison vs. People, March 09, 2010 given unjustified favor or benefit to another,
in the exercise of his official, administrative
Gross inexcusable negligence does not
or judicial functions.
signify mere omission of duties nor plainly
the exercise of less than the standard degree As an example, in Sison vs. People 614
of prudence it refers to negligence
SCRA 670, March 9, 2010, petitioner did just
characterized by the want of even the
slightest case, acting or omitting to act in a that. The fact that he repeatedly failed to
situation where there is a duty to act, not follow the requirements of RA 7160 on
inadvertently but willfully and intentionally, personal canvass proves that unwarranted
with conscious indifference to consequences benefit, advantage or preference was given
in so far as other persons may be affected. to the winning suppliers. These suppliers
Sistoza vs. Desierto, 388 SCRA 307
were awarded the procurement contract
3. Under the 4th element, may an accused without the benefit of a fair system in
be charged under either mode or determining the best possible price for the
both? government. The private suppliers, which
were all personally chosen by respondent,
There are two ways by which Section 3(e) were able to profit from the transactions
of RA 3019 may be violated without showing proof that their prices were
the most beneficial to the government.
a. the first mode: by causing undue
injury to any party, including the 6. Application of par (3) to public
government, or bidding.

b. the second mode: by giving any (G) Entering, On Behalf Of The


private party any unwarranted Government, Into Any Contract Or
benefit, advantage or preference Transaction Manifestly And Grossly
Disadvantageous To The Same, Whether
Although neither mode constitutes a Or Not The Public Officer Profited Or Will
distinct offense, an accused may be charged Profit Thereby.
under either mode or both. The use of the
disjunctive "or" connotes that the two modes 1. What are the elements under Section
need not be present at the same time. In 3(G) of R.A. No. 3019?
other words, the presence of one would
suffice for conviction. Ibid.
20
To be indicted of the offense under Corrupt Practices Act. The Informations
Section 3(G) of R.A. No. 3019, the following were filed based on the findings of the COA
elements must be present: that there was overpricing in certain
purchase transactions of Paraaque City.
a. that the accused is a public officer;
To ascertain the prevailing price of
b. that he entered into a contract or walis tingting for the years 1996 to 1998, the
transaction on behalf of the government; audit team made a canvass of the purchase
and prices of the different merchandise dealers
of Paraaque City. The audit team attempted
c. that such contract or transaction is to purchase walis tingting from the name
grossly and manifestly disadvantageous suppliers of Paraaque City but when the
to the government. Guy vs. People, 582 audit team went to the listed addresses of the
SCRA 108, March 20, 2009 suppliers, they were occupied by other
business establishments. Thereafter, the
2. If there is an allegation of conspiracy, audit team urchased from a supplier that
may a private person be held liable sold walis tingting.in Las Pinas City.
together with the public officer?
The Sandiganbayan rendered
Yes, if there is an allegation of judgment finding petitioners Caunan and
conspiracy, a private person may be held Marquez, along with Silvester de Leon and
liable together with the public officer, in Marilou Tanael, guilty of violating Section 3
consonance with the avowed policy of the (g) of R. A. No. 3019.
Anti-Graft and Corrupt Practices Act which is
to repress certain acts of public officers and ISSUE: Whether or not petitioners are guilty
private persons alike which may constitute of violation of Section 3 (g) of R.A. No. 3019.
graft or corrupt practices or which may lead
thereto. Guy vs. People, 582 SCRA 108, March HELD: The prosecution was not able to
20, 2009 demonstrate the requisite burden of proof
beyond reasonable doubt where what was
3. Would the lack of public bidding only shown was that the audit team reached
automatically equate to a manifest a conclusion of gross overpricing based on
and gross disadvantage to the the documents which, at best, would merely
indicate the present market price of walis
government?
tingting of a different specification,
No. The lack of public bidding alone purchased from a non-supplier of Paraaque
does not automatically equate to a manifest City, and the price of walis tingting purchases
and gross disadvantage to the government. in Las Pias City the prosecution should
Caunan vs. People, 597 SCRA 538, September have presented evidence of the actual price
2, 2009. of the particular walis tingting purchased at
the time of the audited transaction or, at the
As the Supreme Court had declared in least, an approximation thereof. Failing in
Nava v. Palattao (499 SCRA 745 [2006]), the these, there is no basis to declare that there
absence of a public bidding may mean that was a glaring overprice resulting in gross and
the government was not able to secure the manifest disadvantage to the government.
lowest bargain in its favor and may open the
door to graft and corruption. However, this The audit team reached a conclusion
does not satisfy the third element of the of gross overpricing based on documents
offense charged, because the law requires which, at best, would merely indicate the
that the disadvantage must be manifest and present market price of walis tingting of
gross. a different specification, purchased from
a non-supplier of Paraaque City, and the
People vs. Caunan
price of walis tingting purchases in
G. R. NO. 181999, September 2, 2009
Las Pias City.
FACTS: Marquez and Caunan, along with
four (4) other local government officials of Effectively, the prosecution was
Paraaque City and Antonio Razo were unable to demonstrate the requisite burden
charged of violation of the Anti-Graft and of proof. Most obvious would be the market

21
price of walis tingting in Las Pias City which To illustrate, in Teves v. Sandiganbayan,
was used as proof of overpricing 447 SCRA 309 (2004), petitioner was
in Paraaque City. For a charge under convicted under the second mode for having
Section 3 (g) to prosper, the following pecuniary or financial interest in a cockpit
elements must be present: (1) that the which is prohibited under Sec. 89(2) of the
accused is a public officer; (2) that he entered Local Government Code of 1991.
into a contract or transaction on behalf of the
government; and (3) that such contract or View that under Section 3(h) of Republic
transaction is grossly and manifestly Act No. 3019, the element of "financial or
disadvantageous to the government. pecuniary interest" contemplated under the
Second Mode of violating Sec. 3(h) is one
The Supreme Court agrees with prohibited by law, a qualification not present
petitioners that the fact of overpricing is in the First Mode Teves vs. Sandiganbavan,
embedded in the third criminal element of 447 SCRA 309.
Section 3 (g) of R.A. No. 3019. Given the
factual milieu of this case, the subject 3. What are the two (2) modes by which a
contracts would be grossly and manifestly public officer may violate paragraph
disadvantageous to the government if
3(H) of R.A. 3019?
characterized by an overpriced
procurement. However, the gross and
There are two modes by which a public
manifest disadvantage to the government
was not sufficiently shown because the officer who has a direct or indirect financial or
conclusion of overpricing was not also pecuniary interest in any business, contract,
adequately proven. or transaction may violate Section 3(h) of R.A.
3019-
(H) Director Or Indirectly Having
Financing Or Pecuniary Interest In Any 1. The first mode is when the public officer
Business, Contract Or Transaction In intervenes or takes part in his official
Connection With Which He Intervenes Or capacity in connection with his financial
Takes Part In His Official Capacity, Or In or pecuniary interest in any business,
Which He Is Prohibited By The
Constitution Or By Any Law From Having contract, or transaction.
Any Interest.
2. The second mode is when he is
prohibited from having such an interest
1. THE ESSENTIAL ELEMENTS UNDER
SECTION 3(H) OF R.A NO. 3019 by the Constitution or by law.

2.00 WHAT IS THE PRESCRIPTIVE


The essential elements of the violation of
PERIOD TO FILE A CASE UNDER
said provision are as follows: THIS ACT? (Sec. 11)
1) The accused is a public officer;
All offenses punishable under this
2) he has a direct or indirect financial or Act shall prescribe in ten years.
pecuniary interest in any business, contract
2.01 CAN A PUBLIC OFFICER RESIGN OR
or tran saction; He either:
RETIRE PENDING ANY CASE
AGAINST HIM? (Sec. 12)
a) intervenes or takes part in his
official capacity in connection with such
Yes. The rule provides that no public
interest, or officer shall be allowed to resign or retire
pending an investigation, criminal or
b) is prohibited from having such administrative, or pending a prosecution
interest by the Constitution or by law. Teves against him, for any offense under this Act or
vs. The Commission on Elections, 587 SCRA 1, under the provisions of the Revised Penal
April 28, 2009. Code on bribery.

2. What is the concept of financial or 2.02 CAN A PUBLIC OFFICER BE


pecuniary interest? SUSPENDED UNDER THIS ACT?

22
(Sec. 13) Suggested Answer: The suspension
order does not partake of a penalty and in no
Section 13 of the law reads: Any public way violative of Brad Kit's constitutional
officer against whom any criminal right to be presumed innocent. Under the law,
prosecution under a valid information
suspension pendente lite applies to all public
under this Act or under the provisions of
the Revised Penal Code on bribery is officials indicted upon a valid information
pending in court, shall be suspended from under RA No. 3019, the purpose is to prevent
office. said official from hampering or influencing
the normal course of the investigation.
The law further provides that hould
he be convicted by final judgment, he shall 2.03 WHAT IS THE RULE WITH RESPECT
lose all retirement or gratuity benefits TO UNSOLICITED GIFTS OR
under any law, but if he is acquitted, he shall PRESENTS OF SMALL OR
be entitled to reinstatement and to the INSIGNIFICANT VALUE? (SEC.14)
salaries and benefits which he failed to
receive during suspension, unless in the Unsolicited gifts or presents of small or
meantime administrative proceedings have insignificant value offered or given as a mere
been filed against him. ordinary token of gratitude or friendship
according to local customs or usage, shall be
It is a settled doctrine that R.A. No. exempted from the provisions of this Act.
3019 should be read to protect the State from
fraud by its own officials. Section 13 of R.A. ADDENDUM:
No. 3019 covers two types of offenses; (1)
any offense involving fraud on the 1. Private person may be liable.
government; and (2) any offense involving
public funds or property. It bears to reiterate the settled rule
that private persons, when acting in
Illustrative case conspiracy with public officers, may be
indicted and, if found guilty, held liable for
BAR Q. [2000] A month after the the pertinent offenses under Section 3 (e) of
arraignment of Brad Kit, Commissioner R.A. 3019, in consonance with the avowed
of the Housing and Land Use Regulatory policy of the anti-graft law to repress certain
Board, who was charged with violation of acts of public officers and private persons
Section 3(h) of republic Act 3019. (Anti- alike constituting graft or corrupt practices
act or which may lead thereto. This is the
Graft and Corrupt Practices Act before
controlling doctrine as enunciated by the
the Sandiganbayan, the Office of the Court in previous cases.(Edelbert C. Uyboco
Special Prosecutor filed a Motion to vs. People, G.R. No. 211703, December 10,
Suspend Accused Pendete Lite pursuant 2014, Velasco Jr., J.)
to Section 13 of the Anti-Graft Law. The
Court granted the motion and suspended 2. Good faith of heads of offices in signing
a document.
accused Brad Kit. The court granted the
and suspended accused Brad Kit for a The good faith of heads of offices in
period of 90 days. Accused assailed the signing a document will only be appreciated
constitutional validity of the suspension if they, with trust and confidence, have relied
order on the ground that it partakes of a on their subordinates in whom the duty is
penalty before judgment of conviction is primarily lodged. (Sanchez vs. People, 703
reached and is thus violative of his SCRA 586, G.R. No. 187340, August 14,
2013,Sereno, CJ.)
constitutional right to be presumed
innocent. He also claimed that this 3. Manifest partiality, Evident bad faith
provision of the law on suspension and Gross inexcusable negligence
pendente lite applies only to elective explained.
officials and not to appointed ones like
him. Rule with reasons. In Uriarte vs. People, the Court
explained that Section 3(e) of RA 3019 may
be committed either by dolo, as when the

23
accused acted with evident bad faith or
manifest partiality, or by culpa, as when the
accused committed gross inexcusable CHAPTER IV. THE COMPREHENSIVE
negligence. There is manifest partiality DANGEROUS
when there is clear, notorious, or plain DRUGS ACT OF 2002 Republic Act No.
inclination or predilection to favor one side 9165
or person rather than another. Evident bad
faith contemplates a state of mind [BAR Q. 2014, 2010, 2009, 2007, 2006,
affirmatively operating with furtive design 2005, 2004, 2002, 2000, 1998, 1996,
or with some motive of self-interest or ill will 1992]
or for ulterior purposes. Gross inexcusable
negligence refers to negligence __________________________________________________
characterized by the want of even the
slightest care, acting or omitting to act in a
situation where there is a duty to act, not 1.00 ENUMERATE THE UNLAWFUL ACTS
inadvertently but willfully and intentionally, UNDER THE LAW. (*bar topic)
with conscious indifference to consequences
insofar as other persons may be affected. The unlawful acts are as follows:
(Jovito C. Plameras vs. People of the
Philippines, G.R. No. 187268, September 1. Importation of Dangerous Drugs
4,2013, Perez, J.) and/or Controlled Precursors and
Essential Chemicals (Sec. 4)
4. When can private persons be charged.
Illustrative case
However, private persons may
likewise be charged with violation of Section
BAR Q.[2006]After receiving a reliable
3(g) of RA 3019 if they conspired with the
public officer. (Gregorio Sing Ian, Jr. vs. information that Dante Ong, a notorious
Sandiganbayan (3rd division), The People
drug smuggler, was arriving on PAL
of the Philippines, G.R. Nos.195011-19,
September 30, 2013,Del Castillo, J.) Flight No. PR181, PNP Chief Inspector
Samuel Gamboa formed a group of anti-
5. Contract and transaction explained. drug agents. When Ong arrived at the
airport, the group arrested him and
A transaction, like a contract, is one seized his attache case. Upon inspection
which involves some consideration as in
inside the Immigration holding area, the
credit transactions and this element
(consideration) is absent in the investigation attache case yielded 5 plastic bags of
conducted by the petitioner. In the light of heroin weighing 500 grams. Chief
the foregoing, the Court agrees with the Inspector Gamboa took the attache case
petitioner that it was error for the and boarded him in an unmarked car
Sandiganbayan to have convicted him of driven by P03 Pepito Lorbes. On the way
violating Sec. 3 (b) of R.A. No. 3019. (People to Camp Crame and upon nearing White
vs. Sandiganbayan, G.R. No. 188165/G.R.
Plains corner Edsa, Chief Inspector
No. 189063 December 11, 2013, Bersamin,
J.) Gamboa ordered P03 Lorbes to stop the
car. They brought out the drugs from
Notably, the offense defined under the case in the trunk and got 3 plastic
Section 3 (e) of R.A. No. 3019 may be sacks of heroin. They then told Ong to
committed even if bad faith is not alight from the car. Ong left with the 2
attendant. remaining plastic sacks of heroin. Chief
Inspector Gamboa advised him to keep
Thus, even assuming for the sake of
argument that Coloma did not act in bad faith silent and go home which the latter did.
in rendering his report, his negligence under Unknown to them, an NBI team of agents
the circumstances was not only gross but has been following them and witnessed
also inexcusable. (Coloma vs. the transaction. They arrested Chief
Sandiganbayan, G.R. No. 205561, Inspector Gamboa and P03 Lorbes.
September 24, 2014, Mendoza, J.)
Meanwhile, another NBI team followed
-ooOOOooo-
24
Ong and likewise arrested him. All of operation-- such use of money does not
them were later charged. adversely affect the case against the accused.
There is no requirement that the police must
What are their respective apply fluorescent powder to the buy-bust
criminal liabilities? money to prove the commission of the
Suggested Answer: Chief offense; there is no law or rule of evidence
Inspector Samuel Gamboa and P03 Pepito requiring the use of fluorescent powder or
Lorbes are liable as protector/coddler to the taking of the culprit's fingerprints from
the illegal importation of the dangerous the bag containing the shabu.
drugs into the Philippines. They knew Mr. 3. What is material is the delivery of the
Ong violated the Comprehensive Drugs Act prohibited drug to the buyer which in this
yet, they used their position to facilitate his case, was sufficiently proved by the
escape with a view to prevent his arrest, prosecution through the testimony of the
prosecution and conviction . poseur-buyer and the presentation of the
The police officers are guilty of articles itself before th court. Besides, the
misappropriation and failure to account for money was already marked by the poseur
seized dangerous drugs punished under Sec buyer with his initials CG. Neither is
27 of R.A. 91165. On the other hand, Dante fingerprints a requirement in buy-bust
Ong is guilty of illegal importation of operations. There is no law or rule of
dangerous drugs under Art II Sec. 4, RA 9165. evidence requiring the use of fluorescent
powder or the taking of the culprits
2. Sale, Trading, Administration, fingerprints from the bag containing the
Dispensation, Delivery, Distribution and shabu. People vs. Saidmin Macabalang GR No.
Transportation of Dangerous Drugs 168694; Novemeber 27, 2006
and/or Controlled Precursors and
Essential (Sec. 5) 4. Mission order, court order and
surveillance progress report are not
a. What is a BUY- BUST OPERATION? required in buy-bust operation. People vs.
A buy-bust operation is a form of Ong Co, 245 SCRA 733
entrapment which had repeatedly been 5. There is no fixed procedure for conducting
accepted to be a valid means of arresting buy- bust operations. People vs. Cruda, 212
violators of the Dangerous Drugs Law; In SCRA 125
every prosecution for Illegal sale of
prohibited or regulated drugs, the following 6. In a buy-bust operation, the important
elements must be established (1) the aspect of police operatives in their modus
identity of the buyer and seller, the object operandi is not the hearing but seeing the
and the consideration; and (2) the delivery accused selling the prohibited drugs. People
of the thing sold and the payment thereof. vs. Fernandez, 228 SCRA 301
People vs.Suson and Fortich, G.R. No. 152848,
July 12, 2006 c. Is non-coordination with PDEA fatal to
the prosecutions cause?
b. Principles in Buy-Bust Operation.
Coordination with the Philippine
1. The presentation in evidence of the buy- Drug Enforcement Agency (PDEA) is not an
bust money is not indispensable for the indispensable requirement before police
authorities may carry out a buy-bust
conviction of an accused provided that the
operation a buy-bust operation is not
sale of marijuana is adequately proven by invalidated by mere non-coordination with
the prosecution. People vs. Pascual, 208 SCRA the PDEA. People vs. Roa
393

2. It is not surprising for a police officer to d. ELEMENTS NECESSARY FOR THE


use his own money during the buy-bust PROSECUTION OF ILLEGAL SALE OF
DRUGS.
25
The elements necessary for the legislature did not intend to lump these two
prosecution of illegal sale of drugs are: separate crimes into just one crime of
possession of dangerous drugs. Otherwise
(1) the identity of the buyer and the
there would be no need to specify the
seller, the object, and consideration; and
different kinds of drugs and corresponding
(2) the delivery of the thing sold and quantity in the application of the
the payment thereof. appropriate penalty. Multiple offenses can
be committed under RA 6425 even if the
What is material to the prosecution crimes are committed in the same place, at
for illegal sale of dangerous drugs is the the same time, and by the same person.
proof that the transaction or sale actually
Thus, this Court has upheld rulings of the
took place, coupled with the presentation in
court of evidence of corpus delicti. People vs. lower courts convicting an accused charged
Macatingag, G.R. No. 181037, January 19, with two separate crimes of illegal
2009 possession of shabu and illegal possession of
marijuana, even if the crimes were
e. DIFFERENTIATE THE ELEMENTS OF committed at the same time and in the same
ILLEGAL SALE FROM ILLEGAL place.
POSSESSION OF DANGEROUS DRUGS.
As ruled in People vs Tira, 430 SCRA
In a prosecution for illegal sale of
134 (2004), illegal possession of shabu and
dangerous drugs, the following elements
must first be established: (1) proof that the marijuana constitutes two separate crimes
transaction or sale took place and (2) the and therefore two informations should be
presentation in court of the corpus delicti or filed. People vs. Hon Marcial Empleo, In His
the illicit drug as evidence. Capacity As Presiding Judge Of Branch 9,
Regional Trial Court, Dipolog City, Dante Mah
In a prosecution for illegal Y Cabilin
possession of a dangerous drug, it must be
shown that (1) the accused was in possession b. Enumerate the ELEMENTS OF THE
of an item or an object identified to be a
CRIME OF ILLEGAL POSSESSION OF
prohibited or regulated drug, (2) such
possession is not authorized by law, and (3) DANGEROUS DRUGS.
the accused was freely and consciously
The elements of the crime of illegal
aware of being in possession of the drug.
People vs. Darisan, G.R. No. 176151, January possession of dangerous drugs are as
30, 2009 follow:

3. Possession of Dangerous Drugs. (Sec.11) (a) the accused was in possession


of the regulated drugs;
a. Does RA6425 prescribe a single
punishment for illegal possession of (b) the accused was fully and
shabu and marijuana committed at the consciously aware of being in
same time and in the same place? possession of the regulated drug;
and
RA 6425 does not prescribe a
single punishment for the various offenses (c) the accused had no legal
enumerated in the law; RA 6425 authority to possess the regulated
enumerates the punishable acts and its drug. Possession may actual or
corresponding penalty; it also specifies the constructive. People vs. Eliza Buan,
particular drugs and corresponding quality G.R. No. 168773, OCT. 27, 200
in the imposition of penalty. c. What is the concept of POSSESSION?
The prosecution was correct in filing The court in People vs Tira, 430
two separate Informations for the crimes of SCRA 134 (2004), ruminated on the
illegal possession of shabu and illegal juridical concept of possession and the
possession of marijuana. Clearly, the evidence necessary to prove the said crime.
26
Since the crime charged is mala prohibita, convict an accused absent a satisfactory
criminal intent is not essential element. explanation of such possession- the onus
However the prosecution must prove that probandi is shifted to the accused, to explain
the absence of knowledge or animus
the accused had the intent to possess
possidendi. With the burden of evidence
(animus posidendi) the drugs. shifted to the appellant, it was his duty to
Possession, under the law, includes not explain his innocence on the regulated drug
only actual possession, but also seized from his person. People vs. Gomez, G.R.
constructive possession. Constructive No. 175319, January 15, 2010
possession exists when the drug is under
the dominion and control of the accused or
e. What must be proved to establish
when he has the right to exercise dominion
CONSTRUCTIVE POSSESSION?
and control over the place where it is
found. Exclusive possession or control is In order to establish constructive
not necessary. The accused cannot avoid possession, the People must prove that
conviction if his right to exercise control petitioner has dominion or control on
and dominion over the place where the either the substance or the premises where
contraband is located, is shared with found. The state must prove adequate
another. Thus conviction need not be nexus between the accused and the
predicated upon exclusive possession, and prohibited substance. Possession of
the showing of non-exclusive and any dangerous drugs constitutes prima facie
reasonable inference drawn therefrom. evidence of knowledge or animus
However, the prosecution must prove that possidendi sufficient to convict an accused
the accused had knowledge of the in the absence of any satisfactory
existence and presence of the drug in the explanation of such possession. The
place under his control and dominion and burden of evidence is shifted to petitioner
the character of the drug. to explain the absence of animus
possidendi. People vs .Buan, G.R. No.
The fact that the appellant was not
168773, OCT. 27, 2006
in the residence when it was searched nor
caught in flagrante delicto possessing the Illustrative case
illicit drugs and paraphernalia does not
dent the case of the prosecution. As a BAR Q. [2002] A and his fiance B were
matter of law, when prohibited and walking in the plaza when they met a
regulated drugs (under the old law) are group of policemen who had been tipped
found in a house or other building off that A was in possession of prohibited
belonging to and occupied by a particular drugs. Upon seeing the policemen and
person, the presumption arises that such sensing that they were after him, A
person is in possession of such drugs in handed a sachet containing shabu to his
violation of law, and the fact of finding the fiance B, telling her to hide it her
same is sufficient to convict. Otherwise handbag. The policemen saw B placing
stated, the finding of the illicit drugs and the sachet inside her handbag. If B was
paraphernalia in the house owned by the unaware that A was a drug user or pusher
appellant raised the presumption of or that what was inside the sachet given
knowledge and, standing alone, was to her was shabu, is she nonetheless
sufficient to convict. People vs. Torres, G.R. liable under the Dangerous Drugs Act?
No. 170837, September 12, 2006
Suggested Answer: B is not
d. When will the PRIMA FACIE EVIDENCE OF criminally liable. The facts clearly show the
KNOWLEDGE or ANIMUS POSSIDENDI arise? absence of animus possidendi or intent to
possess which is an element of the crime of
Mere possession of a regulated drug illegal possession of drugs. The accused was
per se constitutes prima facie evidence of not fully and consciously aware of being in
knowledge or animus possidendi sufficient to
possession of the dangerous drug.
27
4. Use of Dangerous Drugs. (Sec.15) II of RA 9165 is proper. The entrapment
operation yielded the discovery of 100 grams
a. What is the rule with respect to the use of the said dangerous drug in his possession.
of dangerous drugs? However, the charge of use of marijuana is not
proper. Section 15 of Rep Act 9165 is explicit.
A person apprehended or arrested,
It excludes penalties for use of dangerous
who is found to be positive for use of any
dangerous drug, after a confirmatory test, drugs when the person tested is also found to
shall be imposed a penalty of a minimum of have in possession such quantity of any
six (6) months rehabilitation in a dangerous drug provided in Section 11 of
government center for the first offense, such Act.
subject to the provisions of Article VIII of this
Act. If apprehended using any dangerous 2.00 CHAIN OF CUSTODY (SEC. 21)
drug for the second time, he/she shall suffer
the penalty of imprisonment ranging from a. CITE THE PROPER CUSTODY AND
six (6) years and one (1) day to twelve (12) DISPOSITION OF CONFISCATED, SEIZED,
years and a fine ranging from Fifty thousand AND/OR SURRENDERED DANGEROUS
pesos (P50,000.00) to Two hundred DRUGS, PLANT SOURCES OF DANGEROUS
thousand pesos (P200,000.00). DRUGS, CONTROLLED PRECURSORS AND
ESSENTIAL CHEMICALS,
b. Is there an exception to this rule? INSTRUMENTS/PARAPHERNALIA
AND/OR LABORATORY EQUIPMENT
Yes, Section 15 of R.A. expressly UNDER SEC. 21 OF R.A.9165.
excludes penalties for the use of dangerous
drugs when the person is found to have in his Sec. 21 of R.A. 9165 expressly
possession quantity of any dangerous drug provides that:
under Section 11. It states:
The PDEA shall take charge and have
That this Section shall not be applicable custody of all dangerous drugs, plant
where the person tested is also found to sources of dangerous drugs, controlled
have in his/her possession such quantity precursors and essential chemicals, as
of any dangerous drug provided for under well as instruments/paraphernalia
Section 11 of this Act, in which case the and/or laboratory equipment so
provisions stated therein shall apply. confiscated, seized and/or surrendered,
for proper disposition in the following
Illustrative case manner:

BAR Q. [2005] Obie Juan is suspected to (1) The apprehending team having initial
have in his possession an unspecified custody and control of the drugs shall,
amount of methamphetamine immediately after seizure and
hydrochloride or shabu. An confiscation, physically inventory and
photograph the same in the presence of
entrapment operation was conducted by
the accused or the person/s from whom
police officers, resulting in his arrest such items were confiscated and/or
following the discovery of 100 grams of seized, or his/her representative or
the said dangerous drug in his counsel, a representative from the media
possession. He was subjected to a drug and the Department of Justice (DOJ), and
test and was found positive for the use of any elected public official who shall be
marijuana, another dangerous drug. He required to sign the copies of the inventory
and be given a copy thereof;
was subsequently charged with two
crimes: Violation of Section 11, Article II
(2) Within twenty-four (24) hours upon
of RA 9165 for the possession of shabu confiscation/seizure of dangerous drugs,
and violation of Section 15 for the use of plant sources of dangerous drugs,
marijuana. Are the charges proper? controlled precursors and essential
Explain. chemicals, as well as
instruments/paraphernalia and/or
Suggested Answer: The charge of laboratory equipment, the same shall be
possession of shabu under Section 11, Article submitted to the PDEA Forensic
28
Laboratory for a qualitative and over the case. In all instances, the
quantitative examination; representative sample/s shall be kept to a
minimum quantity as determined by the
(3) A certification of the forensic Board;
laboratory examination results, which
shall be done under oath by the forensic (6) The alleged offender or his/her
laboratory examiner, shall be issued representative or counsel shall be allowed
within twenty-four (24) hours after the to personally observe all of the above
receipt of the subject item/s: Provided, proceedings and his/her presence shall
That when the volume of the dangerous not constitute an admission of guilt. In
drugs, plant sources of dangerous drugs, case the said offender or accused refuses
and controlled precursors and essential or fails to appoint a representative after
chemicals does not allow the completion of due notice in writing to the accused or
testing within the time frame, a partial his/her counsel within seventy-two (72)
laboratory examination report shall be hours before the actual burning or
provisionally issued stating therein the destruction of the evidence in question, the
quantities of dangerous drugs still to be Secretary of Justice shall appoint a
examined by the forensic laboratory: member of the public attorney's office to
Provided, however, That a final represent the former;
certification shall be issued on the
completed forensic laboratory (7) After the promulgation and judgment
examination on the same within the next in the criminal case wherein the
twenty-four (24) hours; representative sample/s was presented as
evidence in court, the trial prosecutor
(4) After the filing of the criminal case, the shall inform the Board of the final
Court shall, within seventy-two (72) hours, termination of the case and, in turn, shall
conduct an ocular inspection of the request the court for leave to turn over the
confiscated, seized and/or surrendered said representative sample/s to the PDEA
dangerous drugs, plant sources of for proper disposition and destruction
dangerous drugs, and controlled within twenty-four (24) hours from
precursors and essential chemicals, receipt of the same; and
including the instruments/paraphernalia
and/or laboratory equipment, and (8) Transitory Provision: a) Within
through the PDEA shall within twenty-four twenty-four (24) hours from the effectivity
(24) hours thereafter proceed with the of this Act, dangerous drugs defined
destruction or burning of the same, in the herein which are presently in possession
presence of the accused or the person/s of law enforcement agencies shall, with
from whom such items were confiscated leave of court, be burned or destroyed, in
and/or seized, or his/her representative the presence of representatives of the
or counsel, a representative from the Court, DOJ, Department of Health (DOH)
media and the DOJ, civil society groups and the accused/and or his/her counsel,
and any elected public official. The Board and, b) Pending the organization of the
shall draw up the guidelines on the PDEA, the custody, disposition, and
manner of proper disposition and burning or destruction of
destruction of such item/s which shall be seized/surrendered dangerous drugs
borne by the offender: Provided, That provided under this Section shall be
those item/s of lawful commerce, as implemented by the DOH.
determined by the Board, shall be
donated, used or recycled for legitimate b. What does CHAIN OF CUSTODY mean?
purposes: Provided, further, That a
representative sample, duly weighed and Chain of Custody means the duly
recorded is retained; recorded authorized movements and
custody of seized drugs or controlled
(5) The Board shall then issue a sworn chemicals or plant sources of dangerous
certification as to the fact of destruction or drugs or laboratory equipment of each stage,
burning of the subject item/s which, from the time of seizure/confiscation to
together with the representative sample/s receipt in the forensic laboratory to
in the custody of the PDEA, shall be safekeeping to presentation in court for
submitted to the court having jurisdiction destruction. Such record of movements and
custody of seized item shall include the
29
identity and signature of the person who court. People vs. Kamad, G.R. No.
held temporary custody of the seized item, 174198, January 19, 2010
the date and time when such transfer of
custody were made in the course of d. Would non-compliance with the
safekeeping and used in court as evidence, prescribed procedural requirements
and the final disposition. People vs. Ruiz render the seizure void?
Garcia, G.R. No.173480 February 25, 2009
No. Mere lapses in procedures need
c. Is strict compliance with the prescribed
not invalidate a seizure if the integrity and
procedure essential?
evidentiary value of the seized items can be
shown to have been preserved.
Yes. Section 21, paragraph 1,
Article II of R.A. No. 9165 and Section
As held in the case of People vs.
21(a), Article II of the Implementing Rules
and Regulations (IRR) of RA No. 9165 give Alejandro, G.R. No. 176350, August 10, 2011,
us the procedures that the apprehending the Supreme Court pronounced that non-
team should observe in the handling of compliance with the prescribed procedural
seized illegal drugs in order to preserve requirements does not necessarily render
their identity and integrity as evidence. As the seizure and custody of the items void and
indicated by their mandatory terms, strict invalid; the seizure may still be held to be
compliance with the prescribed
valid, provided that (a) there is a
procedure is essential and the prosecution
must show compliance in every case. justifiableground for the non-
People vs. Alejandro, G.R. No. 176350, compliance, and (b) the integrity and
August 10, 2011 evidentiary value of the seized items are
shown to have been properly preserved.
Strict compliance with the
prescribed procedure is required because of Further, in another case, the Court
the illegal drugs unique characteristic stressed that the failure on the part of the
police officers to take photographs and make
rendering it indistinct, not readily
an inventory of the drugs seized from the
identifiable, and easily open to tampering, appellant was not fatal because the
alteration or substitution either by accident prosecution was able to preserve the
or otherwise. Hence, the rules on the integrity and evidentiary value of the said
measures to be observed during and after the illegal drugs. People vs. Llamado, G.R. No.
seizure, during the custody and transfer of 185278 March 13, 2009
the drugs for examination, and at all times up However, the failure to follow the
to their presentation in court. The Court procedure mandated under R.A. No. 9165
recognized the following links that must be and its IRR must be adequately explained.
established in the chain of custody in a buy- The justifiable ground for non-compliance
bust situation: must be proven as a fact. The court cannot
presume what these grounds are or that they
first, the seizure and marking, if even exist. People vs. De Guzman, G.R. No.
practicable, of the illegal drug 186498, March 26, 2010
recovered from the accused by the
apprehending officer; e. Is the presumption of regular
performance of duty conclusive in chain
second, the turnover of the illegal of custody cases?
drug seized by the apprehending
officer to the investigating officer; No. this presumption is not
conclusive and cannot, by itself, overcome
third, the turnover by the the constitutional presumption of
investigating officer of the illegal innocence. The presumption of regularity,
drug to the forensic chemist for it must be emphasized, obtains only when
laboratory examination; and there is no deviation from the regular
performance of duty.
fourth, the turnover and submission
of the marked illegal drug seized Where the official act in question
from the forensic chemist to the is irregular on its face, no presumption of
30
regularity can arise. In the present case, having initial custody and control of the drug
the procedural lapses by the shall:
apprehending team in the handling of the
seized items from their failure to mark it immediately after seizure
immediately upon confiscation, to their and confiscation, physically
failure to inventory and photograph it in inventory and photograph
the presence of the accused, or his the [drug] in the presence of
representative or counsel, a the accused or the person/s
representative from the media and the from whom such items were
DOJ, and any elected public official, confiscated and/or seized, or
without offering any justifiable ground his/her representative or
effectively negated the presumption of counsel, a representative
regularity. People vs. Alejandro, G.R. No. from the media and the
176350, August 10, 2011 Department of Justice (DOJ),
and any elected public official
f. Does the stipulation to the chemists who shall be required to sign
receipt of an allegedly confiscated the copies of the inventory
specimen which tested positive for shabu and be given a copy thereof.
sufficient?
In this case, no physical inventory
No. The stipulation referred to the was made and no photograph taken nor
chemists receipt of an allegedly confiscated markings made on the seized articles at the
specimen which tested positive for shabu is crime scene there is no reasonable assurance
not sufficient. There is no certainty that what that no tampering or substitution occurred
was submitted and subjected for chemical between the time the police seized the black
examination was the specimen obtained from bag in P. Ocampo St. in Manila until its
appellant. The failure to establish the contents were tested in the laboratory of the
evidences chain of custody is damaging to the PNP R-IV headquarters in Canlubang,
prosecutions case. People vs. Balagat, G.R. No. Laguna. In net effect, a heavy cloud of doubt
177163, April 24, 2000 hangs over the integrity and necessarily the
evidentiary value of the seized items. People
g. Cite certain important doctrines under vs. Cervantes, G.R. No. 181494, March 17, 2009
the Chain of Custody.
4. It cannot be over-emphasized that
1. The chain of custody requirement pertinent provisions of RA 9165 require that
is essential to ensure that doubts regarding the seized illegal items shall, after their
the identity of the evidence are removed inventory, be photographed in the presence
through the monitoring and tracking of the of the drug dealer, representatives of media,
movements of the seized drugs from the the Department of Justice, or any elected
accused, to the police, to the forensic public official who participated in the
chemist, and finally to the court. People v. operation. The records do not yield an
Sitco, May 14, 2010 indication that this particular requirement
has been complied with.To reiterate, the
2. The duty to prove the guilt of an chain of custody requirement is necessary in
accused is reposed in the State. Law order to remove doubts as to the identity of
enforcers and public officers have the duty to the evidence, by monitoring and tracking
preserve the chain of custody over the seized custody of the seized drugs from the accused,
drugs. This guarantee of the integrity of the until they reach the court. A failure to comply
evidence to be used against an accused goes with the aforequoted Sec. 21 (1) of RA 9165
to the very heart of his fundamental rights. implies a concomitant failure on the part of
People vs .De Guzman, G.R. No. 186498, March the prosecution to establish the identity of
26, 2010 the seized illegal items as part of the corpus
delicti. People v. Sitco, May 14, 2010
3. Given the foregoing perspective, it is
fairly evident that the police operatives 5. As a method of authenticating
trifled with the procedures in the custody of evidence, the chain of custody rule requires
seized prohibited drugs in a buy-bust that the admission of an exhibit be preceded
operation, as embodied in Sec. 21(1), Art. II of by evidence sufficient to support a finding
RA 9165, i.e., the apprehending officer/team that the matter in question is what the
proponent claims it to be. It would include
31
testimony about every link in the chain, from test and was found positive for the use of
the moment the item was picked up to the marijuana, another dangerous drug. He
time it is offered in evidence, in such a way was subsequently charged with two
that every person who touched the exhibit
crimes: Violation of Section 11, Article II
would describe how and from whom it was
received, where it was and what happened to of RA 9165 for the possession of shabu
it while in the witness possession, the and violation of Section 15 for the use of
condition in which it was received and the marijuana. X X X So as not to be sentenced
condition in which it was delivered to the to death, Obie Juan offers to plead guilty to
next link in the chain. These witnesses would a lesser offense. Can he do so? Why?
then describe the precautions taken to
ensure that there had been no change in the Suggested Answer: No, Obie Juan
condition of the item and no opportunity for cannot plead guilty to a lesser offense since
someone not in the chain to have possession this is explicitly prohibited under Section 23
of the same. Indeed, it is from the testimony
of every witness who handled the evidence of R.A. 9165. The law provides that any
that a reliable assurance can be derived that person charged under any provision of this
the evidence presented in court and that Act regardless of the imposable penalty shall
seized from the accused are one and the not be allowed to avail of the provisions on
same. People v. De Guzman, March 26, 2010 plea bargaining.
6. The chain of custody requirement 2.02 CAN A PERSON CONVICTED OF DRUG
is essential to ensure that doubts regarding TRAFFICKING OR PUSHING AVAIL OF
the identity of the evidence are removed THE BENEFITS UNDER THE
through the monitoring and tracking of the PROBATION LAW? (SEC. 24)
movements of the seized drugs from the
accused, to the police, to the forensic No, a person convicted of either drug
chemist, and finally to the court. People v. trafficking or pushing cannot avail of the
Sitco, May 14, 2010 benefits of probation. Under the express
7. The duty to prove the guilt of an provision of Section 24, it provides:
accused is reposed in the State. Law
enforcers and public officers have the duty to Any person convicted for drug trafficking
preserve the chain of custody over the seized or pushing under this Act, regardless of
drugs. This guarantee of the integrity of the the penalty imposed by the Court, cannot
evidence to be used against an accused goes avail of the privilege granted by the
to the very heart of his fundamental rights. Probation Law or Presidential Decree No.
People vs .De Guzman, G.R. No. 186498, March 968, as amended.
26, 2010
2.03 CITE THE SIGNIFICANCE IF A
2.01 IS PLEA BARGAINING ALLLOWED POSITIVE FINDING FOR THE USE
UNDER THIS LAW? (SEC. 23) OF DANGEROUS DRUGS IS FOUND
IN THE COMMISSION OF A CRIME.
Any person charged under any provision (SEC. 25)
of this Act regardless of the imposable
penalty shall not be allowed to avail of the It shall constitute as a Qualifying
provision on plea-bargaining. Aggravating Circumstance in the
commission of the crime. Republic Act 9165
Illustrative case expressly reads:

BAR Q. [2005] Obie Juan is suspected to x x x a positive finding for the use of
have in his possession an unspecified dangerous drugs shall be a qualifying
amount of methamphetamine aggravating circumstance in the
hydrochloride or shabu. An commission of a crime by an offender, and
entrapment operation was conducted by the application of the penalty provided for
in the Revised Penal Code shall be
police officers, resulting in his arrest
applicable.
following the discovery of 100 grams of
the said dangerous drug in his Illustrative case
possession. He was subjected to a drug

32
BAR Q. [2005] Candido stabbed an MINOR OFFENDERS
innocent bystander who accidentally
bumped him. The innocent bystander 3.00 WHO MAY AVAIL OF SUSPENSION OF
died as a result of the stabbing. Candido SENTENCE?
was arrested and was tested to be
A first-time minor offender who is over 15
positive for the use of shabu at the time
years of age at the time he committed an
he committed the stabbing. offense punished under Sec. 11 but not more
than 18 years at the time judgment of
What should be the proper charge conviction had been rendered may avail of
against Candido? suspension of sentence. According to R.A.
9265:
Suggested Answer: Candido is
guilty of homicide only. The act of stabbing An accused who is over fifteen (15) years
was not consciously adopted but only of age at the time of the commission of the
accidental and therefore, negates treachery. offense mentioned in Section 11 of this Act,
However, since the crime was committed but not more than eighteen (18) years of
when he was under the influence of age at the time when judgment should
have been promulgated after having been
dangerous drugs, such act becomes a
found guilty of said offense, may be given
qualifying circumstance pursuant to Section the benefits of a suspended sentence.
25, R.A. 9165.
3.01 WHAT IS THE CONSEQUENCE AFTER
2.04 UNDER THE LAW, THERE ARE ACTS COMPLIANCE WITH CONDITIONS OF
WHERE MERE ATTEMPT OR SUSPENDED SENTENCE BY A FIRST-
CONSPIRACY TO COMMIT THE TIME MINOR OFFENDER?
SAME IS ALREADY PUNISHABLE.
CITE THE UNLAWFUL ACTS.
If the accused first time minor
(SEC.26)
offender under suspended sentence
complies with the applicable rules and
Sec. 26 enumerates the acts where regulations of the Board, including
mere attempt or conspiracy to commit the confinement in a Center, the court, upon a
following unlawful acts are punished. It favorable recommendation of the Board for
states: the final discharge of the accused, shall
discharge the accused and dismiss all
Any attempt or conspiracy to commit the proceedings.
following unlawful acts shall be penalized:
Upon the dismissal of the
(a) Importation of any dangerous drug proceedings against the accused, the court
and/or controlled precursor and shall enter an order to expunge all official
essential chemical; records, other than the confidential record to
be retained by the DOJ relating to the case.
(b) Sale, trading, administration, Such an order, which shall be kept
dispensation, delivery, distribution confidential, shall restore the accused to
and transportation of any dangerous his/her status prior to the case. He/she shall
drug and/or controlled precursor not be held thereafter to be guilty of perjury
and essential chemical; or of concealment or misrepresentation by
reason of his/her failure to acknowledge the
(c) Maintenance of a den, dive or resort case or recite any fact related thereto in
where any dangerous drug is used in response to any inquiry made of him for any
any form; purpose.

(d) Manufacture of any dangerous drug 3.02 CAN THE PRIVILEGE OF SUSPENDED
and/or controlled precursor and SENTENCE BE AVAILED OF MORE
essential chemical; and THAN ONCE BY A FIRST-TIME
MINOR OFFENDER?
(e) Cultivation or culture of plants which
are sources of dangerous drugs No. The privilege of suspended
sentence shall be availed of only once by an
33
accused drug dependent who is a first-time vs. Palomares, G.R. No. 200915, February
offender over fifteen (15) years of age at the 12, 2014)
time of the commission of the violation of
Section 15 of this Act but not more than 2. Essential elements of illegal sale.
eighteen (18) years of age at the time when
judgment should have been promulgated. In this case, the prosecution failed to
prove that each and every element that
3.03 WHAT IS THE CONSEQUENCE IF THE constitutes an illegal sale of dangerous drug
ACCUSED FIRST-TIME MINOR was present to convict the accused. Upon
OFFENDER VIOLATES ANY OF THE evaluation of the testimonies of PO1
CONDITIONS OF HIS/HER Familara and PO1 Mendoza, it is apparent
SUSPENDED SENTENCE? that there is an inconsistency on the identity
and number of plastic sachets bought from
The court shall pronounce judgment the accused. In his statement, PO1 Familara
of conviction and he/she shall serve sentence recalled that upon arrival at the place of
as any other convicted person. arrest, PO1 Mendoza told him that he was
able to buy one plastic sachet of shabu from
3.04 CAN THE COURT PLACE THE Guinto. On the other hand, PO1 Mendoza
ACCUSED UNDER PROBATION OR recalled that he was able to buy two plastic
COMMUNITY SERVICE IN LIEU OF sachets instead of one. The pointed
IMPRISONMENT? inconsistency is not a minor one that can be
brushed aside as the discrepancy taints the
Yes, Section 70 allows the court, in very corpus delicti of the crime of illegal sale.
its discretion to place the accused under A vital point of contention, the prosecutions
probation or imposed community service in evidence places in reasonable doubt the
lieu of imprisonment. identification of the dangerous drug that was
presented in court. (People vs. Guinto, G.R.
No. 198314, September 24, 2014, Perez, J.)
LIMITED APPLICABILITY OF THE
REVISED PENAL CODE
In order to overcome the
presumption of regularity, there must be
4.00 ARE THE PROVISIONS OF THE clear and convincing evidence that the police
REVISED PENAL CODE APPLICABLE TO officers did not properly perform their duties
R.A. 9165? or that they were prompted with ill motive,
none of which exists in this case. (People of
The provisions of the Revised Penal the Philippines vs. Mercidita Resurreccion
Code have limited applicability. The law y Torres, G.R. No. 188310 June 13, 2013,
provides that notwithstanding any law, rule Leonardo-De Castro, J.)
or regulation to the contrary, the provisions
of the Revised Penal Code (Act No. 3814), as The Court has held that prior
amended, shall not apply to the provisions of surveillance is not necessary to render a buy-
this Act, except in the case of minor bust operation legitimate, especially when
offenders. Where the offender is a minor, the the buy-bust team is accompanied at the
penalty for acts punishable by life target area by the informant. Similarly, the
imprisonment to death provided herein shall presentation of an informant as a witness is
be reclusion perpetua to death. not regarded as indispensable to the success
in prosecuting drug-related cases. In this
ADDENDUM: case, the informant had actively participated
in the buy-bust operation and her testimony,
1. The identity of the prohibited drug if presented, would merely corroborate the
must be established. testimonies of the members of the buy-bust
team. (People vs. Monceda, G.R. No. 176269,
Proof of the chain of custody from the November 13, 2013, Brion, J.)
time of seizure to the time such evidence is
presented in court ensures the absence of 3. What is Marking
doubt concerning the integrity of such vital
evidence. This requires as a minimum that Marking is the placing by the
the police mark the seized item (1) in the apprehending officer of some distinguishing
presence of the apprehended violator and signs with his/her initials and signature on
(2) immediately upon confiscation. (People the items seized. Consistency with the chain
34
of custody rule requires that the marking (People vs. Balibay, G.R. No. 202701,
of the seized items to truly ensure that September 10, 2014, Perez, J.)
they are the same items that enter the chain
and are eventually the ones offered in First, it is not clear from the evidence
evidence should be done (1) in the that the marking, which was done in the
presence of the apprehended violator (2) police station, was made in the presence of
immediately upon confiscation. (People vs. the accused or his representative. Although
Somoza, 701 SCRA 525, G.R. No. 197250, the Court has previously ruled that the
July 17, 2013, Leonardo-De Castro, J.) marking upon immediate confiscation of
the prohibited items contemplates even that
4. Chain of custody and objective test. which was done at the nearest police station
or office of the apprehending team, the same
To establish the chain of custody in a must always be done in the presence of the
buy-bust operation, the prosecution must accused or his representative.
establish the following links, namely: First,
the seizure and marking, if practicable, of the Second, the prosecution failed to duly
illegal drug recovered from the accused by accomplish the Certificate of Inventory and
the apprehending officer; Second, the to take photos of the seized items pursuant
turnover of the illegal drug seized by the to the above-stated provision.
apprehending officer to the investigating
officer; Third, the turnover by the Third, the Court finds conflicting
investigating officer of the illegal drug to the testimony and glaring inconsistencies that
forensic chemist for laboratory examination; would cast doubt on the integrity of the
and Fourth, the turnover and submission of handling of the seized drugs. (People of the
the marked illegal drug seized by the forensic Philippines vs. Freddy Salonga y Afiado, G.
chemist to the court. R. No. 194948, September 2, 2013, Sereno,
CJ.)
The objective test is the duty of the
prosecution to present a complete picture The following are the links that must
detailing the buy-bust operation from the be established in the chain of custody in a
initial contact between the poseur-buyer and buy-bust situation: First, the seizure and
the pusher, the offer to purchase, the marking, if practicable, of the illegal drug
promise or payment of the consideration, recovered from the accused by the
until the consummation of the sale by the apprehending officer; Second, the turnover
delivery of the illegal subject of sale. (People of the illegal drug seized by the
vs. Clara, 702 SCRA 273, G.R. No. 195528, apprehending officer to the investigating
July 24, 2013, Perez, J.) officer; Third, the turnover by the
investigating officer of the illegal drug to the
6. Effect of Gaps or Lapses in the Chain of forensic chemist for laboratory examination;
Custody of Illegal Drugs. and Fourth, the turnover and submission of
the marked illegal drug seized from the
The discussion in People v. Lim is forensic chemist to the court.
apropos: x xx [A]ny apprehending team
having initial custody and control of said The first crucial link in the chain of
drugs and/or paraphernalia, should custody starts with the seizure from
immediately after seizure and confiscation, Enriquez of the dangerous drugs and its
have the same physically inventoried and subsequent marking. Nowhere in the
photographed in the presence of the accused, documentary and testimonial evidence of the
if there be any, and or his representative, prosecution can it be found when these items
who shall be required to sign the copies of were actually marked and if they were
the inventory and be given a copy marked in the presence of Enriquez or at
thereof. The failure of the agents to least his representative.
comply with such a requirement raises a
doubt whether what was submitted for The second link in the chain of
laboratory examination and presented in custody is the turnover of the illegal drug by
court was actually recovered from the the apprehending officer to the investigating
appellants. It negates the presumption officer. However, they both failed to identify
that official duties have been regularly the person to whom they turned over the
performed by the PAOC-TF agents. seized items. There is no evidence to show

35
that he was the person who received the 7. Crime of illegal sale of dangerous drugs
seized items from the apprehending officers. necessarily includes the crime of illegal
possession.
As for the third and the last links,
although records show that Chief of Police Well-settled in jurisprudence that
Erese signed the request for laboratory the crime of illegal sale of dangerous drugs
examination, he was not presented in court necessarily includes the crime of illegal
to testify as such. The testimony of Chief of possession of dangerous drugs.
Police Erese is indispensable because he
could have provided the critical link between The Court had further clarified, in
the testimony of SPO2 David, and the tenor of relation to the requirement of marking the
the testimony of P/Insp. Dizon, which the drugs immediately after seizure and
parties have stipulated on. Moreover, no one confiscation, that the marking may be
testified as to how the confiscated items undertaken at the police station rather than
were handled and cared for after the at the place of arrest for as long as it is done
laboratory examination. (People of the in the presence of the accused and that what
Philippines vs. Arturo Enriquez De los is of utmost importance is the preservation
Reyes, G.R. No. 197550, September of its integrity and evidentiary value. (People
25,2013, Leonardo-De Castro, J.) of the Philippines vs. Michael Maongco y
Yumonda, G.R. No. 196966, October
In the case at bar, instead of 23,2013, Leonardo-De Castro, J.)
immediately marking the subject drug upon
its confiscation, PO2 Tuzon marked it with 8. Failure to make an inventory and to
his initials EAT only upon arrival at the take photographs of the subject drug.
police station. While the failure of arresting
officers to mark the seized items at the place Contrary to the argument of the
of arrest does not, by itself, impair the defense, even the buy-bust teams failure to
integrity of the chain of custody and render make an inventory and to take photographs
the confiscated items inadmissible in of the subject drug did not adversely affect
evidence, such circumstance, when taken in the prosecutions case. What is essential is
light of the several other lapses in the chain that the integrity and evidentiary value of the
of custody that attend the present case, seized items which would be utilized in the
forms part of a gross, systematic, or determination of the guilt or innocence of the
deliberate disregard of the safeguards that accused are preserved. (People vs. Loks, G.R.
are drawn by the law, sufficient to create No. 203433, November 27, 2013, Reyes, J.)
reasonable doubt as to the culpability of the
accused. A proviso was added in the
implementing rules that noncompliance
6. Failure to immediately mark the seized with these requirements under justifiable
drugs. grounds, as long as the integrity and the
evidentiary value of the seized items are
To be able to create a first link in the properly preserved by the apprehending
chain of custody, then, what is required is officer/team, shall not render void and
that the marking be made in the presence of invalid such seizures of and custody over
the accused and upon immediate said items. Pertinently, it is the preservation
confiscation. Immediate confiscation has of the integrity and evidentiary value of the
no exact definition. Thus, in People v. Gum- seized items which must be proven to
Oyen, testimony that included the marking of establish the corpus delicti. (People vs.
the seized items at the police station and in Cerdon, G.R. No. 201111, August 6, 2014,
the presence of the accused was sufficient in Perez, J.)
showing compliance with the rules on chain
of custody. Marking upon immediate Coordination with the PDEA is not an
confiscation contemplates even marking at indispensable element of a proper buy-bust
the nearest police station or office of the operation. A buy-bust operation is not
apprehending team. (People of the invalidated by mere non-coordination with
Philippines vs. Giovanni Ocfemia y Chavez, the PDEA. (People vs. Montevirgen, G.R. No.
G.R. No. 185383, September 25, 2013 , 189840 December 11, 2013, Del Castillo, J.)
Leonardo-De Castro.)

36
9. What does marking upon immediate It is true that the prosecution did not
confiscation mean? formally offer in evidence the Certificate of
Inventory and the formal request for
It begins with the marking of the examination of the confiscated substance. Be
seized objects to fix its identity; Marking that as it may, the Court has previously held
upon immediate confiscation can that even if an exhibit is not formally offered,
reasonably cover marking done at the the same may still be admitted against the
nearest police station or office of the adverse party if, first, it has been duly
apprehending team, especially when the identified by testimony duly recorded and,
place of seizure is volatile and could draw second, it has itself been incorporated in the
unpredictable reactions from its records of the case. PO3 Velasquez
surroundings. (People vs. Bautista, G.R. No. categorically testified that an inventory of
198113 December 11, 2013, Abad, J.) the seized drugs was performed, a
corresponding certificate was prepared, and
10. Testimony of poseur-buyer not a formal request for examination was made.
indispensable. He further narrated that together with the
formal request, he submitted and delivered
The testimony of the poseur-buyer the confiscated drugs to the crime
was not therefore indispensable or laboratory. On the basis of the said formal
necessary; it would have been cumulative request, P/Insp. Roderos examined the
merely, or corroborative at best." His specimen and she likewise testified on this.
testimony can therefore be dispensed with Appellants counsel even asked the said
since the illicit transaction was actually prosecution witnesses regarding these
witnessed and adequately proved by the documents. Considering the said testimonies
prosecution witnesses. (People vs. Marcelo, and the fact that the documents were
G.R. No. 181541, August 18, 2014, Del incorporated in the records of the case, they
Castillo, J.) are therefore admissible against appellant.
(People vs. Baturi, G.R. No. 189812,
11. Failure to present the buy-bust September 01, 2014, Del Castillo, J.)
money.
14. Presentation of confidential
Failure to present the buy-bust informant.
money is not fatal to the prosecutions cause.
It is not indispensable in drug cases since it The non-presentation of the
is merely corroborative evidence, and the confidential informant as a witness does not
absence thereof does not create a hiatus in ordinarily weaken the State's case against
the evidence for the prosecution provided the accused. However, if the arresting
the sale of dangerous drugs is adequately lawmen arrested the accused based on the
proven and the drug subject of the pre-arranged signal from the confidential
transaction is presented before the court. informant who acted as the poseur buyer, his
(People vs. Bayan, G.R. No. 200987, August non-presentation must be credibly explained
20, 2014, Perez, J.) and the transaction established by other
ways in order to satisfy the quantum of proof
12. Actual and constructive possession beyond reasonable doubt because the
distinguished. arresting lawmen did not themselves
participate in the buy-bust transaction with
Exclusive possession or control is not the accused.
necessary. The accused cannot avoid
conviction if his right to exercise control and In People vs. Lopez (214 SCRA 323), it
dominion over the place where the was held that there was no need for the
contraband is located, is shared with prosecution to present the confidential
another. (People vs. De La Trinidad,G.R. informer as the poseur-buyer himself
No. 199898, September 03, 2014,Perez, J.) positively identified the accused as the one
who sold to him one deck of
13. Effect of failure to offer in evidence the methamphetamine hydrochloride or
Certificate of Inventory and the formal "shabu." The trial court then properly relied
request for examination of the on the testimonies of the police officers
despite the decision of the prosecution not to
confiscated substance.
present the informer. (People vs. Andaya,

37
G.R. No. 183700, October 13, 2014, causes something to be brought into the
Bersamin, J.) country, he necessarily has possession of the
same. Necessarily, therefore, importation
15. When seized item is fruit of the can never be proven without first
poisonous tree. establishing possession, affirming the fact
that possession is a condition sine qua
Records have established that both non for it would rather be unjust to convict
the arrest and the search were made without one of illegal importation of regulated drugs
a warrant. While the accused has already when he is not proven to be in possession
waived his right to contest the legality of his thereof.
arrest, he is not deemed to have equally
waived his right to contest the legality of the In a similar manner, considering that
search. (Danilo Villanueva y Alcaraz vs. illegal possession is likewise an element of
People, G.R. No. 199042, November 17, and is necessarily included in illegal
2014, Sereno, CJ. ) importation of dangerous drugs, convicting
appellants of the former, if duly established
16. Plain view doctrine and its requisites. beyond reasonable doubt, does not amount
to a violation of their right to be informed of
The plain view doctrine applies when the nature and cause of accusation against
the following requisites concur: (1) the law them. Indeed, where an accused is charged
enforcement officer in search of the evidence with a specific crime, he is duly informed not
has a prior justification for an intrusion or is only of such specific crime but also of lesser
in a position from which he can view a crimes or offenses included therein.
particular area; (2) the discovery of the
evidence in a plain view is inadvertent; and The elements of illegal possession of
(3) it is immediately apparent to the officer regulated drugs are as follows: (a) the
that the item he observes may be evidence of accused is in possession of an item or object
a crime, contraband or otherwise subject to which is identified to be a regulated drug; (b)
seizure. (Rizaldy Sanchez y Cajili vs. People, such possession is not authorized by law;
G.R. No. 204589, November 19, 2014, and (c) the accused freely and consciously
Mendoza, J.) possessed the regulated drug. The evidence
on record clearly established that appellants
17. With reference to the importation and were in possession of the bags containing the
possession of blasting caps, it seems plain regulated drugs without the requisite
beyond argument that the latter is authority. As mentioned previously, on the
inherent in the former so as to make them date of appellants arrest, the apprehending
juridically identical. There can hardly be officers were conducting a surveillance of the
importation without possession. When coast of Ambil Island in the Municipality of
one brings something or causes Looc, Occidental Mindoro, upon being
something to be brought into the country, informed by the Municipalitys Barangay
he necessarily has the possession of it. Captain that a suspicious-looking boat was
The possession ensuing from the within the vicinity. Not long after, they
importation may not be actual, but legal, spotted two (2) boats anchored side by side,
or constructive, but whatever its the persons on which were transferring
character, the importer, in our opinion, is cargo from one to the other. Interestingly, as
a possessor in the juristic sense and he is they moved closer to the area, one of the
liable to criminal prosecution. boats hurriedly sped away. Upon reaching
the other boat, the police officers found the
Applying the aforequoted ruling, this appellants with several transparent plastic
Court finds that while appellants cannot be bags containing what appeared to be shabu
held liable for the offense of illegal which were plainly exposed to the view of
importation charged in the information, their the officers. Clearly, appellants were found to
criminal liability for illegal possession, if be in possession of the subject regulated
proven beyond reasonable doubt, may drugs. (People vs. Chi Chan Liu and Hui Lao
nevertheless be sustained. As previously Chung, G.R. No. 189272, January 21, 2015,
mentioned, the crime of importation of Peralta, J.)
regulated drugs is committed by importing
or bringing any regulated drug into the 18. Decoy Solicitation.
Philippines without being authorized by
law. Indeed, when one brings something or
38
The chain of custody is not In both cases of illegal sale and illegal
established solely by compliance with the possession of dangerous drugs, the
prescribed physical inventory and prosecution must show the chain of custody
photographing of the seized drugs in the over the dangerous drug in order to establish
presence of the enumerated persons. The the corpus delicti, which is the dangerous
Implementing Rules and Regulations of R. A. drug itself. The chain of custody rule comes
No. 9165 on the handling and disposition of into play as a mode of authenticating the
seized dangerous drugs states: x x x seized illegal drug as evidence.
Provided, further, that non-compliance with
these requirements under justifiable A substantial gap in the chain of
grounds, as long as the integrity and custody renders the identity and integrity of
evidentiary value of the seized items are the corpus delicti dubious. (Lopez vs.
properly preserved by the apprehending People,G.R. No. 188653, January 29,
officer/team, shall not render void and 2014,Perez, J.)
invalid such seizures of and custody over
said items. (People vs. Rosauro, G.R. No. First link of the chain, the seizure and
209588, February 18, 2015, Perez, J.) marking, if practicable, of the illegal drug
recovered from the accused by the
19. What does deliver mean? apprehending officer.

Under Article I, Section 3(k) of the Second link of the chain, the turnover
same statute, the term deliver means any of the illegal drug seized by the
act of knowingly passing a dangerous drug to apprehending officer to the investigating
another, personally or otherwise, and by any officer.
means, with or without consideration. On
the other hand, sell as defined in Section Third link of the chain, the turnover
3(ii) refers to any act of giving away any by the investigating officer of the illegal drug
dangerous drug and/or controlled precursor to the forensic chemist for laboratory
and essential chemical whether for money or examination.
any other consideration.
Fourth link of the chain, the turnover
To establish the guilt of an accused and submission of the marked illegal drug
for the illegal delivery of a dangerous drug, seized by the forensic chemist to the court.
there must be evidence that (1) the accused (People vs. Dahil and Castro, G.R. No.
passed on possession of a dangerous drug to 212196, January 12, 2015, Mendoza, J.)
another, personally or otherwise, and by any
means; (2) such delivery is not authorized It has already been held that the
by law; and (3) the accused knowingly made infractions of the so-called Miranda rights
the delivery with or without consideration. render inadmissible only the extrajudicial
confession or admission made during
The presentation of the marked custodial investigation. Here, appellants
money is immaterial in this case since the conviction was based not on his alleged
crime of illegal delivery of a dangerous drug uncounseled confession or admission but on
can be committed even without the testimony of the prosecution witness.
consideration or payment. (People vs. Reyes, (People vs. Bio, G.R. No. 195850, February
G.R. No. 194606, February 18, 2015, Del 16, 2015, Del Castillo, J.)
Castillo, J.)

20. Chain of Custody. -oooOOOooo-

In the prosecution of illegal


possession of dangerous drugs, the
dangerous drug itself constitutes the very CHAPTER V. ANTI-VIOLENCE AGAINST
corpus delicti of the offense and, in sustaining WOMEN ANDTHEIR CHILDREN ACT OF
a conviction therefor, the identity and 2004
integrity of the corpus delicti must definitely Republic Act No. 9262
12. Actual and constructive possession [BAR 2011, 2010]
distinguished. ___________________________________________________

39
I. IN GENERAL WOMEN AND THEIR CHILDREN
UNDER SECTION 3?

1.00 WHAT IS THE POLICY OF THE STATE Section 3 states that violence against
WITH RESPECT TO THE DIGNITY OF women and children includes, but is not
WOMEN AND CHILDREN? limited to, the following acts: a) Physical
Violence b) Sexual violence c)
The State values the dignity of women and Psychological violence d) Economic abuse.
children and guarantees full respect for
human rights. It also recognizes the need to 1.03 WHAT IS "PHYSICAL VIOLENCE"?
protect the family and its members
particularly women and children, from It refers to acts that include bodily or
violence and threats to their personal safety physical harm;
and security.
1.04 WHAT IS SEXUAL VIOLENCE"?
PEOPLE VS. CABALQUINTO
G.R. No. 167693, September 19, 2006 It refers to an act which is sexual in
nature, committed against a woman or her
RULING: Taking all these opinions into child. It includes, but is not limited to:
account and in view of recent enactments
which unequivocally express the intention to a) rape, sexual harassment, acts of
maintain the confidentiality of information in lasciviousness, treating a woman or
cases involving violence against women and her child as a sex object, making
demeaning and sexually suggestive
their children, in this case and henceforth,
remarks, physically attacking the
the Court shall withhold the real name of the sexual parts of the victim's body,
victim-survivor and shall use fictitious forcing her/him to watch obscene
initials instead to represent her. Likewise, publications and indecent shows or
the personal circumstances of the victims- forcing the woman or her child to do
survivors or any other information tending indecent acts and/or make films
to establish or compromise their identities, thereof, forcing the wife and
mistress/lover to live in the conjugal
as well those of their immediate family or
home or sleep together in the same
household members, shall not be disclosed. room with the abuser;
1.01 DEFINE VIOLENCE AGAINST WOMEN
b) acts causing or attempting to
AND THEIR CHILDREN. cause the victim to engage in any
sexual activity by force, threat of
Section 3 of R.A. 9262 gives the definition
force, physical or other harm or
of Violence against women and children. It
threat of physical or other harm or
states:
coercion;
It refers to any act or a series of acts
c) Prostituting the woman or child.
committed by any person against a
woman who is his wife, former wife, or
against a woman with whom the person
1.05 WHAT IS "PSYCHOLOGICAL
has or had a sexual or dating relationship,
VIOLENCE"?
or with whom he has a common child, or
against her child whether legitimate or
illegitimate, within or without the family It refers to acts or omissions causing
abode, which result in or is likely to result or likely to cause mental or emotional
in physical, sexual, psychological harm or suffering of the victim such as but not limited
suffering, or economic abuse including to intimidation, harassment, stalking,
threats of such acts, battery, assault, damage to property, public ridicule or
coercion, harassment or arbitrary humiliation, repeated verbal abuse and
deprivation of liberty. mental infidelity. It includes causing or
allowing the victim to witness the physical,
sexual or psychological abuse of a member of
1.02 WHAT ARE THE ACTS INCLUDED IN
the family to which the victim belongs, or to
THE TERM VIOLENCE AGAINST
witness pornography in any form or to
40
witness abusive injury to pets or to unlawful 1.09 EXPLAIN THE CONCEPT OF SEXUAL
or unwanted deprivation of the right to RELATIONS.
custody and/or visitation of common
children. It refers to a single sexual act which
may or may not result in the bearing of a
1.06 WHAT IS "ECONOMIC ABUSE"?
common child.
It refers to acts that make or attempt
to make a woman financially dependent 1.10 DIFFERENTIATE DATING
which includes, but is not limited to the RELATIONSHIP FROM SEXUAL
following: RELATIONS.

1. withdrawal of financial support or Sexual relations refer to a single


preventing the victim from engaging sexual act which may or may not result in the
in any legitimate profession, bearing of a common child.
occupation, business or activity,
except in cases wherein the other R.A. 9262 provides in Section 3 that
spouse/partner objects on valid, violence against women x x x refers to any
serious and moral grounds as defined act or a series of acts committed by any
in Article 73 of the Family Code;
person against a woman x x x with whom the
2. deprivation or threat of person has or had a sexual or dating
deprivation of financial resources relationship. Clearly, the law itself
and the right to the use and distinguishes a sexual relationship from a
enjoyment of the conjugal, dating relationship. Indeed, Section 3(e)
community or property owned in above defines dating relationship while
common; Section 3(f) defines sexual relations. The
latter refers to a single sexual act which may
3. destroying household property;
or may not result in the bearing of a common
4. controlling the victims' own money child. The dating relationship that the law
or properties or solely controlling the contemplates can, therefore, exist even
conjugal money or properties. without a sexual intercourse taking place
between those involved. Rustan Ang Y Pascua
1.07 DEFINE STALKING. vs. Sagud, G.R. No. 182835, April 20, 2010

It refers to an intentional act 1.11 WHAT ARE THE ELEMENTS OF THE


committed by a person who, knowingly and CRIME OF VIOLENCE AGAINST
without lawful justification follows the WOMEN?
woman or her child or places the woman or
The elements of the crime of violence
her child under surveillance directly or
against women through harassment are:
indirectly or a combination thereof.
1. The offender has or had a sexual or
1.08 EXPLAIN THE CONCEPT OF DATING dating relationship with the offended
RELATIONSHIP. woman;

It refers to a situation wherein the 2. The offender, by himself or through


parties live as husband and wife without the another, commits an act or series of acts
benefit of marriage or are romantically of harassment against the woman; and
involved over time and on a continuing basis
3. The harassment alarms or causes
during the course of the relationship. A
substantial emotional or psychological
casual acquaintance or ordinary
distress to her. Rustan Ang Y Pascua vs.
socialization between two individuals in a
Sagud, G.R. No. 182835, April 20, 2010
business or social context is not a dating
relationship.

41
1.12 DOES A SINGLE ACT OF RULING: The Court is not persuaded quoting
HARASSMENT ENOUGH TO Sec. 3(a) of RA 9262. The law is broad in
CONVICT AN OFFENDER? scope but specifies two limiting
qualifications for any act or series of acts to
Yes. Section 3(a) of R.A. 9262 punishes be considered as a crime of violence against
any act or series of acts that constitutes women through physical harm, namely: 1) it
violence against women. This means that a is committed against a woman or her child
single act of harassment, which translates and the woman is the offenders wife, former
into violence, would be enough. The object of wife, or with whom he has or had sexual or
the law is to protect women and children. dating relationship or with whom he has a
Punishing only violence that is repeatedly common child; and 2) it results in or is likely
committed would license isolated ones. to result in physical harm or suffering.
Rustan Ang Y Pascua vs. Sagud, G.R. No.
182835, April 20, 2010 Notably, while it is required that the
offender has or had a sexual or dating
1.13 MAY A TEMPORARY PROTECTION relationship with the offended woman, for
ORDER (TPO) BE ISSUED IN FAVOR RA 9262 to be applicable, it is not
OF A MAN AGAINST HIS WIFE? indispensable that the act of violence be a
A TPO cannot be issued in favor of a man consequence of such relationship. Nowhere
against his wife under R.A. No. 9292, known in the law can such limitation be inferred.
as the Anti-Violence Against Women and Hence, applying the rule on statutory
Their Children Act of 2004.I construction that when the law does not
In one case, the judge was found guilty of distinguish, neither should the courts, then,
gross ignorance of the law for issuing a clearly, the punishable acts refer to all acts of
Temporary Protection Order (TPO) in favor violence against women with whom the
of a male petitioner. Indeed, as a family court offender has or had a sexual or dating
judge, the judge is expected to know the relationship.
correct implementation of R.A. No. 9292. See As correctly ruled by the RTC, it is
Sylvia Santo vs. Judge Arcaya-Chua, A.M. No. immaterial whether the relationship had
Rtj-07-2093, April 23, 2010 ceased for as long as there is sufficient
1.14 IS IT INDISPENSABLE THAT THE ACT evidence showing the past or present
OF VIOLENCE BE A CONSEQUENCE existence of such relationship between the
OF THE DATING OR SEXUAL offender and the victim when the physical
RELATIONSHIP? harm was committed. Dabalos Y San Diego vs.
Judge Paras Quiambao, et al., G.R. No. 193960,
This has been answered in this case- January 7, 2013

Dabalos y San Diego vs. Paras Quiambao, 1.15 WHAT IS BATTERY?


et. al.
G.R. No. 193960, January 7, 2013 It refers to an act of inflicting physical
harm upon the woman or her child resulting
ISSUE: Petitioner insists that the act which to the physical and psychological or
resulted in physical injuries to private emotional distress.
respondent is not covered by RA 9262
because its proximate cause was not their 1.16 WHAT IS THE CONCEPT OF A
dating relationship. Instead, he claims that BATTERED WOMAN SYNDROME?
the offense committed was only slight
It refers to a scientifically defined
physical injuries under the Revised Penal
pattern of psychological and behavioral
Code which falls under the jurisdiction of the symptoms found in women living in
Municipal Trial Court. battering relationships as a result of
cumulative abuse.

42
1.17 IS A BATTERED WOMEN SYNDROME tranquil, loving (or, at least, nonviolent)
A PROPER DEFENSE? phase.

Yes. Battered Women Syndrome is a During the tension-building phase,


proper defense. Section 26 of R.A. 9262 is minor battering occurs -- it could be verbal
explicit: or slight physical abuse or another form of
hostile behavior. The woman usually tries to
Victim-survivors who are found by the pacify the batterer through a show of kind,
courts to be suffering from battered nurturing behavior; or by simply staying out
woman syndrome do not incur any of his way. What actually happens is that she
criminal and civil liability allows herself to be abused in ways that, to
notwithstanding the absence of any of the her, are comparatively minor. All she wants
elements for justifying circumstances of is to prevent the escalation of the violence
self-defense under the Revised Penal Code. exhibited by the batterer. This wish,
however, proves to be double-edged,
In the determination of the state of mind of because her placatory and passive
the woman who was suffering from behavior legitimizes his belief that he has the
battered woman syndrome at the time of right to abuse her in the first place.
the commission of the crime, the courts
shall be assisted by expert psychiatrists/ The acute battering incident is said
psychologists. to be characterized by brutality,
destructiveness and, sometimes, death. The
People vs. Genosa battered woman deems this incident as
G.R. No. 135981, January 15, 2004 unpredictable, yet also inevitable. During
this phase, she has no control; only the
RULING: batterer may put an end to the violence. Its
nature can be as unpredictable as the time of
A battered woman has been defined its explosion, and so are his reasons for
as a woman who is repeatedly subjected to ending it. The battered woman usually
any forceful physical or psychological realizes that she cannot reason with him, and
behavior by a man in order to coerce her to that resistance would only exacerbate her
do something he wants her to do without condition.
concern for her rights. Battered women
include wives or women in any form of At this stage, she has a sense of
intimate relationship with detachment from the attack and the terrible
men. Furthermore, in order to be classified pain, although she may later clearly
as a battered woman, the couple must go remember every detail. Her apparent
through the battering cycle at least passivity in the face of acute violence may be
twice. Any woman may find herself in an rationalized thus: the batterer is almost
abusive relationship with a man once. If it always much stronger physically, and she
occurs a second time, and she remains in the knows from her past painful experience that
situation, she is defined as a battered it is futile to fight back. Acute battering
woman. incidents are often very savage and out of
control, such that innocent bystanders or
Battered women exhibit common intervenors are likely to get hurt.
personality traits, such as low self-esteem,
traditional beliefs about the home, the family The final phase of the cycle of
and the female sex role; emotional violence begins when the acute battering
dependence upon the dominant male; the incident ends. During this tranquil period,
tendency to accept responsibility for the the couple experience profound relief. On
batterers actions; and false hopes that the the one hand, the batterer may show a tender
relationship will improve. and nurturing behavior towards his
partner. He knows that he has been viciously
More graphically, the battered cruel and tries to make up for it, begging for
woman syndrome is characterized by the so- her forgiveness and promising never to beat
called cycle of violence, which has three her again. On the other hand, the battered
phases: (1) the tension-building phase; (2) woman also tries to convince herself that the
the acute battering incident; and (3) the battery will never happen again; that her
partner will change for the better; and that

43
this good, gentle and caring man is the real Suggested Answer: The three phases
person whom she loves. are the following: a) tension-building phase
b) acute battering incident c) tranquil and
A battered woman usually believes loving phase.
that she is the sole anchor of the emotional
stability of the batterer. Sensing his isolation C. Would the defense prosper despite the
and despair, she feels responsible for his absence of any of the elements for
well-being. The truth, though, is that the justifying circumstances of self-defense
chances of his reforming, or seeking or under the Revised Penal Code?
receiving professional help, are very slim,
especially if she remains with Suggested Answer:Yes, R.A. 9262
him. Generally, only after she leaves him expressly states that victim-survivors who are
does he seek professional help as a way of found by the courts to be suffering from
getting her back. Yet, it is in this phase of battered woman syndrome do not incur any
remorseful reconciliation that she is most criminal and civil liability notwithstanding
thoroughly tormented psychologically. the absence of any of the elements for
justifying circumstances of self-defense under
Illustrative Cases the Revised Penal Code.

1. BAR Q. [2011] A battered woman 1.18 HOW MUST THE LAW BE


claiming self-defense under the Anti- CONSTRUED?
Violence against Women and Children
must prove that the final acute battering It shall be liberally construed to promote
episode was preceded by the protection and safety of victims of
violence against women and their children.
A. 3 battering episodes.
B. 4 battering episodes. 1.19 UNDER SECTION 5 OF THE ACT, HOW
C. 5 battering episodes. IS THE CRIME OF VIOLENCE
D. 2 battering episodes AGAINST WOMEN AND CHILDREN
COMMITTED?
2. BAR Q. [2010] Jack and Jill have been
married for seven years. One night, Jack The acts constituting the crime of
came home drunk. Finding no food on the violence against women and children are
table, Jack started hitting Jill only to anumerated under Section 5 of R.A. 9262
apologize the following day. A week later, which provides:
the same episode occurred Jack came
home drunk and started hitting Jill. The crime of violence against
Fearing for her life, Jill left and stayed women and their children is committed
with her sister. To woo Jill back, Jack sent through any of the following acts:
her floral arrangements of spotted lilies
and confectioneries. Two days later, Jill
(a) Causing physical harm to the
returned home and decided to give Jack
woman or her child;
another chance. After several days,
however, Jack again came home drunk.
The following day, he was found dead. Jill (b) Threatening to cause the
was charged with parricide but raised the woman or her child physical harm;
defense of battered woman syndrome.
(c) Attempting to cause the woman
A. Define Battered Woman or her child physical harm;
Syndrome.
(d) Placing the woman or her child
Suggested Answer: It refers to a in fear of imminent physical harm;
scientifically defined pattern of
psychological and behavioral symptoms (e) Attempting to compel or
found in women living in battering compelling the woman or her child
relationships as a result of cumulative abuse. to engage in conduct which the
woman or her child has the right to
B. What are the three phases of the desist from or desist from conduct
Battered Woman Syndrome? which the woman or her child has
the right to engage in, or
44
attempting to restrict or restricting (1) Stalking or following the
the woman's or her child's freedom woman or her child in public or
of movement or conduct by force or private places;
threat of force, physical or other
harm or threat of physical or other (2) Peering in the window or
harm, or intimidation directed lingering outside the residence of
against the woman or child. This the woman or her child;
shall include, but not limited to, the
following acts committed with the (3) Entering or remaining in the
purpose or effect of controlling or dwelling or on the property of the
restricting the woman's or her woman or her child against
child's movement or conduct: her/his will;

(1) Threatening to deprive or (4) Destroying the property and


actually depriving the woman or personal belongings or inflicting
her child of custody to her/his harm to animals or pets of the
family; woman or her child; and

(2) Depriving or threatening to (5) Engaging in any form of


deprive the woman or her children harassment or violence x x x.
of financial support legally due her
or her family, or deliberately 1.20 DIFFERENTIATE SECTION 3 (A) FROM
providing the woman's children
SECTION 5 OF R.A. 9262.
insufficient financial support;
Section 3 (a) of R.A. 9262 provides that
(3) Depriving or threatening to violence against women includes an act or
deprive the woman or her child of
a legal right; acts of a person against a woman with whom
he has or had a sexual or dating relationship
(4) Preventing the woman in while Section 5 identifies the act or acts that
engaging in any legitimate constitute violence against women and these
profession, occupation, business or include any form of harassment that causes
activity or controlling the victim's substantial emotional or psychological
own mon4ey or properties, or distress to a woman.
solely controlling the conjugal or
common money, or properties; 1.21 MAY THE ABUSES BE COMMITTED BY
ANOTHER THRU CONSPIRACY?
(f) Inflicting or threatening to
inflict physical harm on oneself for Yes the principle of conspiracy is
the purpose of controlling her applicable.This is enunciated in the case of-
actions or decisions;
Sharica Mari L. Go-Tan vs. Spouses Tan
(g) Causing or attempting to cause G.R. No. 168852: September 30, 2008
the woman or her child to engage in
any sexual activity which does not FACTS: Sharica Go-Tan, married to Steven
constitute rape, by force or threat of Tan, filed a Petition with Prayer for the
force, physical harm, or through Issuance of a Temporary Protective Order
intimidation directed against the against Steven and her parents-in-law,
woman or her child or her/his Spouses Perfecto C. Tan and Juanita L. Tan.
immediate family; She alleged that Steven, in conspiracy with
her parents-in-law, was causing verbal,
(h) Engaging in purposeful, psychological and economic abuses upon
knowing, or reckless conduct, her.
personally or through another that
alarms or causes substantial ISSUE: Whether or not Sharicas parents-in-
emotional or psychological distress law may be included in the petition for the
to the woman or her child. This shall issuance of a protection order.
include, but not be limited to, the
following acts:
45
RULING: While the said provision provides and (5) Engaging in any form of harassment
that the offender be related or connected to or violence; x x x. (Emphasis supplied)
the victim by marriage, former marriage, or a
sexual or dating relationship, it does not (i) Causing mental or emotional anguish,
preclude the application of the principle of public ridicule or humiliation to the woman
conspiracy under the RPC. or her child, including, but not limited to,
repeated verbal and emotional abuse, and
In Ladonga v. People, the Court denial of financial support or custody of
applied suppletorily the principle of minor children of access to the woman's
conspiracy under Article 8 of the RPC to B.P. child/children.
Blg. 22 in the absence of a contrary provision
therein. With more reason, therefore, the 1.22 WHAT ARE THE PRESCRIPTIVE
PERIODS OF ACTS PUNISHABLE
principle of conspiracy under Article 8 of the UNDER THIS LAW?
RPC may be applied suppletorily to R.A. No.
9262 because of the express provision of Acts falling under Sections 5(a) to 5(f)
Section 47 that the RPC shall be shall prescribe in twenty (20) years. Acts
supplementary to said law. Thus, general falling under Sections 5(g) to 5(I) shall
provisions of the RPC, which by their nature, prescribe in ten (10) years.
are necessarily applicable, may be applied
suppletorily. Thus, the principle of 1.23 HOW IS THE CRIME OF VIOLENCE
AGAINST WOMEN AND CHILDREN
conspiracy may be applied to R.A. No. 9262. CLASSIFIED?
For once conspiracy or action in concert to
achieve a criminal design is shown, the act of Violence against women and their
one is the act of all the conspirators, and the children shall be considered a public offense
precise extent or modality of participation of which may be prosecuted upon the filing of a
each of them becomes secondary, since all complaint by any citizen having personal
the conspirators are principals. knowledge of the circumstances involving
the commission of the crime.
It must be further noted that Section
5 of R.A. No. 9262 expressly recognizes that 1.24 IS BEING UNDER THE INFLUENCE OF
ALCOHOL OR ANY ILLICIT DRUG A
the acts of violence against women and their
PROPER DEFENSE IN THE
children may be committed by an offender PROSECUTION OF THE OFFENSE?
through another,
Under express provision of Section 27
thus: SEC. 5. Acts of Violence Against thereof, being under the influence of alcohol,
Women and Their Children. - The crime of any illicit drug, or any other mind-altering
violence against women and their children is substance shall not be a defense under this
committed through any of the following acts: Act.
x x x (h) Engaging in purposeful, knowing, or
reckless conduct, personally or through 1.25 DOES THE REVISED PENAL CODE
HAVE SUPPLETORY APPLICATION
another, that alarms or causes substantial
UNDER THIS ACT?
emotional or psychological distress to the
woman or her child. This shall include, but Yes. For purposes of this Act, the Revised
not be limited to, the following acts: (1) Penal Code and other applicable laws, shall
Stalking or following the woman or her child have suppletory application.
in public or private places; (2) Peering in the
window or lingering outside the residence of II. PROTECTION ORDERS
the woman or her child; (3) Entering or
remaining in the dwelling or on the property 3.00 DEFINE PROTECTION ORDER UNDER
THIS ACT.
of the woman or her child against her/his
will; (4) Destroying the property and
A protection order is an order issued
personal belongings or inflicting harm to under this act for the purpose of preventing
animals or pets of the woman or her child; further acts of violence against a woman or
her child specified in Section 5 of this Act and
46
granting other necessary relief. specified by the court, and to stay away
from the residence, school, place of
3.01 WHAT IS THE IMPORTANCE OF THE employment, or any specified place
PROTECTION ORDER? frequented by the petitioner and any
designated family or household
The relief granted under a protection member;
order serve the purpose of safeguarding the
victim from further harm, minimizing any (e) Directing lawful possession and use by
disruption in the victim's daily life, and petitioner of an automobile and other
facilitating the opportunity and ability of the essential personal effects, regardless
victim to independently regain control over of ownership, and directing the
her life. The provisions of the protection appropriate law enforcement officer to
order shall be enforced by law enforcement accompany the petitioner to the
agencies. residence of the parties to ensure that
the petitioner is safely restored to the
3.02 ENUMERATE THE PROTECTION possession of the automobile and
ORDERS THAT MAY BE ISSUED other essential personal effects, or to
UNDER THIS LAW. supervise the petitioner's or
respondent's removal of personal
The protection orders that may be issued belongings;
are the barangay protection order (BPO),
temporary protection order (TPO) and (f) Granting a temporary or permanent
permanent protection order (PPO). custody of a child/children to the
petitioner;
Section 8 provides:
(g) Directing the respondent to provide
The protection orders that may be issued support to the woman and/or her child if
under this Act shall include any, some or entitled to legal support. Notwithstanding
all of the following reliefs: other laws to the contrary, the court shall
order an appropriate percentage of the
(a) Prohibition of the respondent from income or salary of the respondent to be
threatening to commit or committing, withheld regularly by the respondent's
personally or through another, any of employer for the same to be automatically
the acts mentioned in Section 5 of this remitted directly to the woman. Failure to
Act; remit and/or withhold or any delay in the
remittance of support to the woman
and/or her child without justifiable cause
(b) Prohibition of the respondent from
shall render the respondent or his
harassing, annoying, telephoning,
employer liable for indirect contempt of
contacting or otherwise
court;
communicating with the petitioner,
directly or indirectly;
(h) Prohibition of the respondent from any
use or possession of any firearm or deadly
(c) Removal and exclusion of the
weapon and order him to surrender the
respondent from the residence of the
same to the court for appropriate
petitioner, regardless of ownership of
disposition by the court, including
the residence, either temporarily for
revocation of license and disqualification
the purpose of protecting the
to apply for any license to use or possess a
petitioner, or permanently where no
firearm. If the offender is a law
property rights are violated, and if
enforcement agent, the court shall order
respondent must remove personal
the offender to surrender his firearm and
effects from the residence, the court
shall direct the appropriate authority to
shall direct a law enforcement agent to
investigate on the offender and take
accompany the respondent has
appropriate action on matter;
gathered his things and escort
respondent from the residence;
(i) Restitution for actual damages caused
by the violence inflicted, including, but not
(d) Directing the respondent to stay away
limited to, property damage, medical
from petitioner and designated family
expenses, childcare expenses and loss of
or household member at a distance
47
income; respondent to the residence, remain there
until the respondent has gathered his
(j) Directing the DSWD or any appropriate things and escort him from the residence;
agency to provide petitioner may need;
and (d) Requiring the respondent to stay away
from the offended party and any
(k) Provision of such other forms of relief designated family or household member
as the court deems necessary to protect
at a distance specified by the court;
and provide for the safety of the petitioner
and any designated family or household (e) Requiring the respondent to stay away
member, provided petitioner and any
from the residence, school, place of
designated family or household member
consents to such relief. employment or any specified place
frequented regularly by the offended
Any of the reliefs provided under this party and any designated family or
section shall be granted even in the household member;
absence of a decree of legal separation or
annulment or declaration of absolute (f) Directing lawful possession and use by
nullity of marriage. the offended party of an automobile and
other essential personal effects,
The issuance of a BPO or the pendency of regardless of ownership, and directing the
an application for BPO shall not preclude
appropriate law enforcement officer to
a petitioner from applying for, or the court
from granting a TPO or PPO. accompany the offended party to the
residence of the parties to ensure that the
3.03 WHAT ARE THE RELIEFS AVAILABLE offended party is safely restored to the
TO THE OFFENDED PARTY? (SEC.11) possession of the automobile and other
essential personal effects;
Section 11 of R.A. 9262 provides for
the reliefs available to the offended party. It (g) Ordering temporary or permanent
states: custody of the child/children with the
offended party, taking into consideration
The protection order shall include any, the best interests of the child. An offended
some or all of the following reliefs: party who is suffering from Battered
Woman Syndrome shall not be
(a) Prohibiting the respondent from disqualified from having custody of her
threatening to commit or committing, children. In no case shall custody of minor
personally or through another, acts of children be given to the batterer of a
violence against the offended party; woman who is suffering from Battered
Woman Syndrome;
(b) Prohibiting the respondent from
harassing, annoying, telephoning, (h) Directing the respondent to provide
contacting or otherwise communicating in support to the woman and/or her child, if
any form with the offended party, either entitled to legal import. Notwithstanding
directly or indirectly; other laws to the contrary, the court shall
order an appropriate percentage of the
(c) Removing and excluding the
income or salary of the respondent to be
respondent from the residence of the
withheld regularly by his employer and to
offended party, regardless of ownership of
automatically remit it directly to the
the residence, either temporally for the
offended party. Failure to withhold, remit
purpose of protecting the offended party,
or any delay in the remittance of support
or permanently where no property rights
to the offended party without justifiable
are violated. If the respondent must
cause shall render the respondent or his
remove personal effects from the
employer liable for indirect contempt of
residence, the court shall direct a law
court;
enforcement agent to accompany the
48
(i) Prohibiting the respondent from 4.00 DISCUSS BARANGAY PROTECTION
carrying or possessing any firearm or ORDERS (BPOs)
deadly weapon and ordering him to
surrender the same to the court for Barangay Protection Orders (BPOs)
refer to the protection order issued by the
appropriate disposition, including
Punong Barangay ordering the perpetrator
revocation of license and disqualification to desist from committing acts under Section
to apply for any license to carry or possess 5 (a) and (b) of this Act.
a firearm. If the respondent is .a law
enforcement agent, the court shall order 5.00 DISCUSS TEMPORARY PROTECTION
him to surrender his firearm and shall ORDERS (TPOs)
direct the appropriate authority to
investigate him and take appropriate Temporary Protection Orders (TPOs)
refer to the protection order issued by the
action thereon;
court on the date of filing of the application
after ex parte determination that such order
(j) Directing the DSWD or any appropriate
should be issued. A court may grant in a TPO
agency to prepare a program of any, some or all of the reliefs mentioned in
intervention for the offended party that this Act and shall be effective for thirty (30)
provides advocacy, temporary shelter, days.
crisis intervention, treatment, therapy,
counseling, education, training and other 5.01 DISCUSS PERMANENT PROTECTION
social services that the offended party may ORDERS (PPOs)
need;
Permanent Protection Order (PPO)
(k) Requiring the respondent to receive refers to protection order issued by the court
professional counseling from agencies or after notice and hearing.
persons who have demonstrated expertise
5.02 WHAT ARE THE PROHIBITED ACTS
and experience in anger control,
IN THE APPLICATION FOR A
management of alcohol, substance abuse PROTECTION ORDER?
and other forms of intervention to stop
violence. The program of intervention for A Punong Barangay, Barangay Kagawad
offenders must be approved by the court. or the court hearing an application for a
The agency or person is required to protection order shall not order, direct,
provide the court with regular reports of force or in any way unduly influence the
applicant for a protection order to
the progress and result of professional
compromise or abandon any of the reliefs
counseling, for which the respondent may sought in the application for protection
be ordered to pay; and under this Act. Section 7 of the Family
Courts Act of 1997 and Sections 410, 411,
(I) Awarding the offended party actual 412 and 413 of the Local Government Code
damages caused by the violence inflicted, of 1991 shall not apply in proceedings
including, but not limited to, property where relief is sought under this Act.
damage, medical expanses, childcare
expenses and loss of income; and Failure to comply with this Section shall
compensatory, moral, and exemplary render the official or judge
administratively liable.
damages, subject to Sections 26a and 35 of
this Rule.

The court may grant such other


-oooOOOooo-
forms of relief to protect the offended
party and any designated family or
household member who consents to such
relief. CHAPTER VI
BOUNCING CHECKS LAW
A] BARANGAY PROTECTION ORDER BATAS PAMBANSA BLG. 22

49
An Act Penalizing the Making Or Drawing 1.04 DOES BP.22 COVER MANAGERS
And Issuance Of A Check Without CHECK CASHIERS CHECK?
Sufficient Funds Or Credit And For Other
Purposes. No. As enunciated in the case of New
Pacific Timber and Supply Company, Inc. vs.
[BAR Q. 2014, 2010 03,02, 96, 1990, Seneres, 101 SCRA 686, by its peculiar
88,86] character and general use in the commercial
world, it is as good as the money it
________________________________________________ represents and is therefore deemed as cash.

1.05 WHAT IS AN ACCOMODATION


IN GENERAL
CHECK?

It is a check drawn for the purpose of


1.00 WHAT IS A CHECK?
lending a persons name to another.
In Mitra vs. People, July 05, 2010, the
1.06 WHAT IS A GUARANTEE CHECK?
Supreme Court had the occasion to explain
what a check is. It held that a check is a It may either be an accommodation
negotiable instrument that serves as a or any other kind of check drawn and
substitute for money and as a convenient delivered to guarantee the performance of a
form of payment in financial transactions principal obligation.
and obligations.
1.07 DOES BP.22 COVER
The use of checks as payment allows ACCOMODATION OR GUARANTEE
commercial and banking transactions to CHECK?
proceed without the actual handling of
money, thus, doing away with the need to Yes. It is covered by BP. 22 because
physically count bills and coins whenever the issuance of the check to cover the account
and its subsequent dishonor are the only
payment is made.
facts required for prosecution under the law.
Creeg vs. CA, 233 SCRA 301. In People vs. Que,
More particularly, a check is a bill of
G.R. 73217-18, September 21, 1987, it was
exchange drawn on a bank payable on held that BP 22 does not make any
demand. (Negotiable Instruments Law, distinction as to whether the bad check is
Section 185). issued in payment of an obligation or to
guarantee an obligation.
1.01 EXPLAIN A DAIF CHECK?
1.08 WHAT IS A CROSSED CHECK?
DAIF means it is drawn against
insufficient funds. A check becomes DAIF The reason for the issuance of a
when it is issued for an amount more than check is to ensure that the check is encashed
the funds available in a particular account. only by the rightful payee. In usual practice,
crossing of a check is done by placing two
1.02 EXPLAIN A DAUD CHECK? parallel lines diagonally on the left portion of
the check.
DAUD means drawn against
uncollected deposit. It is a banking phrase A cross check has the following
connoting a check with insufficient funds. effects:

1.03 WHAT IS AN INDORSED CHECK? a) that the check may not be


encashed but only deposited in the
It is one which the present holder bank;
acquires possession of the check from the
payee or another holder after the payee had b) that the check may be negotiated
indorsed it. only once to one who has an account
with a bank;

50
c) that the act of crossing the check that In the absence of contrary provision in
serves as a warning to the holder that Batas Pambansa Blg. 22, the general
the check has been issued for a provisions of the Revised Penal Code which,
definite purpose so that he must
by their nature, are necessarily applicable,
inquire if he has secured the check
pursuant to that purpose. State may be applied suppletorily, including the
Investment House vs. IAC, 175 SCRA provisions on conspiracy.
316
A. WAYS BY WHICH VIOLATION OF BP.
1.09 DOES BP.22 COVER CROSSED CHECK? 22 ARE COMMITTED.

2.00 WHAT IS THE GRAVAMEN OF BP. 22?


Yes, since it is a negotiable
instrument, it falls within the coverage of BP.
The gravamen of the offense
22.
punished by Batas Pambansa (B.P.) Blg.
1.10 WHAT DOES CREDIT MEAN? 22 is that act of making or issuing a
worthless check or a check that is
The word "credit" as used herein shall be dishonored upon its presentation for
construed to mean an arrangement or payment It is not the nonpayment of the
understanding with the bank for the obligation which the law punishes. The
payment of such check. (Sec .4) mere act of issuing a worthless check
whether as a deposit, as a guarantee or
even as evidence of pre-existing debt is
1.11 WHICH COURT HAS JURISDICTION
malum prohibitum.
OVER VIOLATION OF BP. 22?
1. The law punishes the act not as an
The MTC has exclusive original
offense against property, but an
jurisdiction in the prosecution of BP. 22 offense against public order. Thus,
cases. A.M. No. 00-11-01-SC, March 25, 2003 the mere act of issuing a worthless
check whether as a deposit, as a
1.12 CITE THE REASON BEHIND THE guarantee or even as evidence of pre-
ENACTMENT OF BP 22. existing debt is malum prohibitum.
Ambito vs. People, 579 SCRA 68,
In the case of Mitra vs. People, July 05, February 13, 2009
2010, the Supreme Court ruled that BP. 22
considers the mere act of issuing an
unfunded check as an offense not only 2. The act effectively declares the
offense to be one of malum
against property but also against public
prohibitum. The only valid query
order to stem the harm caused by these then is whether the law has been
bouncing checks to the community. breached, i.e., by the mere act of
issuing a bad check, without so much
The purpose of BP. 22 in declaring the regard as to the criminal intent of the
mere issuance of a bouncing check as malum issuer. Jose vs. Suarez, 556 SCRA 772,
prohibitum is to punish the offender in order June 30, 2008
to deter him and others from committing the
offense, to isolate him from society, to reform 3. What the law punishes is the
and rehabilitate him, and to maintain social issuance and/or drawing of a check
and upon presentment for deposit or
order. encashment, it was dishonored due
to insufficient funds [or] account
1.13 IS THE PRINCIPLE OF CONSPIRACY
closed. Jose v. Suarez, 556 SCRA 772,
UNDER THE REVISED PENAL CODE June 30, 2008
APPLICABLE IN BP.22 WHICH IS A
SPECIAL LAW? 2.01 GIVE THE ELEMENTS OF THE FIRST
PARAGRAPH OF SECTION 1 OF
Yes. This issue was clarified by the BP.22.
Supreme Court in the case of Ladonga vs.
People, 451 SCRA 673 when it expressly ruled
51
Liability for violation of B.P. 22 attaches a. When does a prima facie
when the prosecution establishes proof evidence of knowledge of insufficient funds
beyond reasonable doubt of the existence of arise? (SEC.2)
the following elements:
There is a prima facie evidence of
1. The accused makes, draws or issues knowledge of insufficiency of funds when the
any check to apply to account or for check was presented within 90 days from the
value; date appearing on the check and was
dishonored unless:
2. The accused knows at the time of the
issuance that he or she does not have a. such maker or drawer pays the
sufficient funds in, or credit with, the holder thereof the amount due
drawee bank for the payment of the thereon within 5 banking days
check in full upon its presentment . after receiving notice that such
check has not been paid by the
This element is emphasized in the drawee , or
case of Vergara vs. People, 450 SCRA 495,
b. makes arrangements for
where the Supreme Court held:
payment in full by the drawee of
such check within (5) banking
To be liable for violation of Batas
days after receiving notice of
Pambansa Blg. 22, it is not enough that the non-payment.
check was subsequently dishonored for
insufficiency of funds. It must be shown Respecting the second element of the
also beyond reasonable doubt that crime, the Supreme Court ruled in Tan v.
petitioner knew of the insufficiency of Philippine Commercial International Bank
funds at the time the check was issued. 552 SCRA 532, April 23, 2008 that the
prosecution must prove the accused knew, at
3. The check is subsequently
the time of issuance, that he does not have
dishonored by the drawee bank for
insufficiency of funds or credit or it sufficient funds or credit for the full payment
would have been dishonored for the of the check upon its presentment. The
same reason had not the drawer, element of "knowledge" involves a state of
without any valid reason, ordered mind that obviously would be difficult to
the bank to stop payment. Azarcon vs. establish, hence, the statute creates a prima
People, June 29, 2010 facie presumption of knowledge on the
insufficiency of funds or credit coincidental
2.02 WHAT DOES THE TERM ISSUE
with the attendance of the two other
MEAN?
elements.
Section 191 of the Negotiable
b. Is the 90 day-period to deposit the
Instruments Law defines "issue" as the first
check an element of BP 22?
delivery of an instrument, complete in form,
to a person who takes it as a holder. No. That the check must be deposited
within ninety (90) days is simply one of the
Significantly, delivery is the final act
conditions for the prima facie presumption of
essential to the negotiability of an
knowledge of lack of funds to arise, but it is not
instrument.
an element of the offense, and neither does it
Delivery denotes physical transfer of discharge the accused from his duty to
the instrument by the maker or drawer maintain sufficient funds in the account
coupled with an intention to convey title to within a reasonable time thereof. Nagrarnpa
the payee and recognize him as a holder. Dy vs. People, 386 SCRA 412
vs. People, 571 SCRA 59, November 14, 2008
c. What is the consequence if there is
failure to deposit the check within
2.03 PRIMA FACIE EVIDENCE OF the 90 day-period?
KNOWLEDGE OF INSUFFICIENT
FUNDS.
52
The only consequence of the failure to from receipt of such notice of
present the check for payment within the 90- dishonor by the drawee of the
day period is that there arises no prima facie check. Cabrera v. People, 407 SCRA
247
presumption of knowledge of insufficiency of
funds. Nagrarnpa vs. People, 386 SCRA 412 4. Possibilities cannot replace proof
beyond reasonable doubt. When
d. Cite the importance of notice of there is insufficient proof of
dishonor to establish a prima facie receipt of notice of dishonor, as in
evidence of knowledge of this case, the presumption of
insufficiency of funds. knowledge of insufficiency of
funds cannot arise. A notice of
The presumption is brought into dishonor personally sent to and
existence only after it is proved that the received by the accused is
issuer had received a notice of dishonor necessary before one can be held
and that within five days from receipt liable under B.P. Blg. 22. The
failure of the prosecution to prove
thereof, he failed to pay the amount of the
the receipt by petitioner of the
check or to make arrangements for its requisite written notice of
payment. dishonor and that she was given at
least five banking days within
The presumption or prima facie which to settle her account
evidence as provided in this section cannot constitutes sufficient ground for
arise, if such notice of nonpayment by the her acquittal. Ting v. Court of
drawee bank is not sent to the maker or Appeals, 344 SCRA 551
drawer, or if there is no proof as to when
5. Registry return cards must be
such notice was received by the drawer,
authenticated to serve as proof of
since there would simply be no way of receipt of letters sent through
reckoning the crucial 5-day period. Azarcon registered mail. Thus, we held: it
vs. Gonzales, G.R. No. 185906, June 29, 2010 must appear that the same was
served on the addressee or a duly
e. Cite prevailing doctrines on notice authorized agent of the addressee.
of dishonor. In fact, the registry return receipt
itself provides that [a] registered
1. Procedural due process clearly article must not be delivered to
enjoins that a notice of dishonor of anyone but the addressee, or upon
a check be given the signatory the addressees written order, in
the absence of a notice of dishonor which case the authorized agent
necessarily deprives an accused an must write the addressees name
opportunity to preclude a criminal on the proper space and then affix
prosecution. Marigomen vs. People, legibly his own signature below it.
459 SCRA 169 Suarez vs. People, 555 SCRA 238, June
19, 2008
2. Receipts for registered letters and
return receipts do not by f. Can the notice of dishonor be done
themselves prove receipt they orally?
must be properly authenticated to
serve as proof of receipt of the No. the law requires that the
letters, claimed to be a noticed of insufficiency of funds in or credit shall be
dishonor. Rico vs. People, 392 SCRA explicitly stated in the dishonor, hence, a
61 mere oral notice or demand to pay is
insufficient for conviction under BP. 22.
3. It is not enough for the Domagsang vs. CA, G.R. 139292, 5 December
prosecution to prove that a notice 2000
of dishonor was sent to the drawee
of the check. The prosecution must The notice must be in writing. A mere
also prove actual receipt of said oral notice to pay a dishonored check will not
notice because the fact of service suffice. The lack of a written notice is fatal for
provided for in the law is reckoned
53
the prosecution. Azarcon vs. Gonzales, G.R. held liable for estafa under Article 215 of
No. 185906, June 29, 2010 the Revised Penal Code, she cannot
however be found guilty of having
g. Who may send the notice of violated BP 22. Is her contention
dishonor?
correct? Explain.
The notice of dishonor of a check may be
Suggested Answer: No. BP. 22 does
sent to the drawer or maker, by the drawee
not limit its application to insufficiency of
bank, the holder of the check, or the offended
funds in the account at the time of the
party. Ambito vs. People, 579 SCRA 68,
issuance of the check. It likewise punishes
February 13, 2009
under Section 1, 2nd paragraph any person
who may have sufficient funds in the drawee
2.04 GIVE THE ELEMENTS OF THE
bank when he issued the check, but fails to
SECOND PARAGRAPH OF SECTION 1
OF BP.22. keep sufficient funds to cover the full amount
of the check when presented to the drawee
This way of committing BP.22 bank within ninety (90) days from the date
suggests that at the time the check was appearing thereon.
issued, the issuer had sufficient funds in or
credit with the drawee bank. However, the It bears stressing that if a check the
check was dishonored when presented for checks was issued to apply on account or for
payment within 90 days from its date for value, and was subsequently dishonored, for
failure to maintain sufficient funds or credit lack of insufficient funds on their due date,
to cover the amount.
such act violates BP 22.
The elements are as follows:
2.05 COMPARE VIOLATION OF BP 22 FROM
a) any person, makes or draws and ESTAFA UNDER PAR. 2 [D], ARTICLE
issues a check; 315, OF THE REVISED PENAL CODE.

b) such person has sufficient funds in First, the elements of estafa under
or credit with the drawee bank; paragraph 2(d), Article 315 of the RPC are
(1) the postdating or issuance of a check in
c) failure to keep sufficient funds or to payment of an obligation contracted at the
maintain a credit to cover the full
time the check was issued; (2) lack of
amount of the check if presented
within a period of ninety (90) days sufficiency of funds to cover the check; and
from the date appearing thereon; (3) damage to the payee. Cajigas vs. People,
d) for which reason it is dishonored by 580 SCRA 54, February 23, 2009
the drawee bank.
For violation of the Bouncing Check
Illustrative case Law, deceit and damage are not essential or
required. The essential element of that
BAR Q. [1996]The accused was convicted offense is knowledge on the part of the
under BP Blg. 22 for having issued maker or drawer of the check of the
several checks which were dishonored by insufficiency of his funds. The gravamen of
the offense is the issuance of a bad check, not
the drawee bank on their due date
the non-payment of an obligation.
because the accused closed her account
after the issuance of checks. On appeal, Second, Article 315, Par.2 (d) is a
she argued that she could not be crime against property because the issuance
convicted under BP Blg. 22 by reason of of the check is used as a means to obtain a
the closing of her account because said valuable consideration from the payee.
law applies solely to checks dishonored
On the other hand, in BP. 22, the mere
by reason of insufficiency of funds and act of issuing an unfunded check is an offense
that at the time she issued the checks against public order to stem the harm caused
concerned, she had adequate funds in the by these bouncing checks to the community.
bank. While she admits that she may be Mitra vs. People, July 05, 2010
54
something of value as a result of the
Third, in estafa, the failure of the postdating or issuance of the bad check in
drawer to deposit the amount necessary to payment of a pre-existing obligation. People
secure payment of the check within 3 days vs. Lilius, 59 Phil. 339
from receipt of notice from the bank and or
the payee or holder that said check has been Unlike in estafa, the accused in this
dishonored for lack or insufficiency of funds case obtain nothing when he issued the
is prima facie evidence of deceit constituting check, his debt for the payment thereof had
false pretense or fraudulent act. been contracted prior to its issuance.

In BP. 22, the failure of the drawer to 2.07 EXPLAIN DECEIT AS AN ELEMENT OF
pay in full the payee or holder within 5 ESTAFA.
banking days after receiving notice that the
check has been rejected by the drawee bank Deceit as an element of estafa is a
gives rise to presumption of knowledge of specie of fraud. It is actual fraud which
insufficiency of funds or credit. consists in any misrepresentation or
contrivance where a person deludes another,
Fourth, in estafa, the check is issued
in payment of a simultaneous obligation to to his hurt. There is deceit when one is
defraud the creditor. misled -- by guile, trickery or by other means
- to believe as true what is really false. Dy vs.
In BP. 22, the check is issued in People, 571 SCRA 59, November 14, 2008
payment of a pre-existing obligation.
2.08 EXPLAIN DAMAGE AS AN ELEMENT
Fifth, in estafa, an endorser who with OF ESTAFA.
knowledge that the check is worthless and
had acted with deceit, is liable. Damage as an element of estafa may
consist in (1) the offended party being
In BP. 22, the persons liable are the deprived of his money or property as a result
maker, drawer and the issuer but not an
of the defraudation; (2) disturbance in
endorser.
property right; or (3) temporary prejudice.
Lastly, since estafa is mala in se, good Nagrampa vs. People, 386 SCRA 412
faith is a proper defense.
2.09 EXPLAIN ESTAFA THRU THE
BP 22 is mala prohibitum, it is ISSUANCE OF A CHECK.
punished by a special law and therefore,
good faith is not a defense. To constitute estafa, the act of
postdating .or issuing a check in payment of
2.06 DIFFERENTIATE SIMULTANEOUS obligation must be the efficient cause of
OBLIGATION FROM PRE- defraudation and, as such, it should be either
EXISTING OBLIGATION. prior to, or simultaneous with, the act of
fraud. Nagrampa vs. People, 386 SCRA 412
Simultaneous obligation as an
element of estafa connotes that the issuance
of a check is used as a means to obtain 2.10 CAN A PERSON BE BOTH LIABLE FOR
valuable consideration from the payee. VIOLATION OF BP 22 AND ANOTHER
Deceit is the efficient cause for defraudation. PROVISION OF THE REVISED PENAL
To defraud is to deprive some right, interest, CODE? (SEC.5)
or property by deceitful devise. People
vs.Quesada, 60 Phil. 515 Yes, the filing of a criminal case under
B.P. 22 shall not prejudice any liability
In the issuance of a check in payment arising from a felony committed under the
of a pre-existing obligation, the drawer Revised Penal Code. Section 5 is explicit:
derives no material benefit in return as its
consideration had long been delivered to him Prosecution under this Act shall be
before the check was issued.Since an without prejudice to any liability for
obligation has already been contracted, it violation of any provision of the Revised
cannot be said that the payee parted with his Penal Code.
property or that the drawer has obtained
55
B. DEFENSES IN BP. 22 actually notified that the check
was dishonored, and that he or
3.00 WHAT ARE THE POSSIBLE she failed, within five (5) banking
DEFENSES IN BP 22? days from receipt of the notice, to
pay the holder of the check the
a. Checks issued to person who was amount due thereon or to make
not authorized to collect and arrangement for its payment.
receive the same are without Absent proof that the accused
valuable consideration and are received such notice, a
also considered issued for a non- prosecution for violation of the
existing account. Cario v. De Bouncing Checks Law cannot
Castro, 553 SCRA 688, April 30, prosper.
2008
In the case of Ambito vs.
b. The presentation of the registry People and CA, G.R. No. 127327, 13
card, with an unauthorized February 2009, there being no
signature, does not meet proof that he was given any
therequired proof beyond written notice informing him of
reasonable doubt that the the fact that his checks were
petitioner received such noticed, dishonored and giving him five
especially considering that he (5) banking days within which to
denied receiving it. make arrangements for payment
of the said checks, the rebuttable
As there is insufficient proof that presumption that he had
the petitioner received notice of knowledge of the insufficiency of
dishonor, the presumption that his funds has no application in
he had knowledge of the present case.
insufficiency of funds cannot
arise. Suarez v. People 555, SCRA f. To be liable under Section 1 of
238, June 19, 2008 B.P. Blg. 22, the check must be
dishonored by the drawee bank
c. Presumption of knowledge of for insufficiency of funds or
insufficiency of funds is not credit or dishonored for the same
conclusive as it may be rebutted reason had not the drawer,
by full payment. Payment is a without any valid cause, ordered
complete defense that would lie the bank to stop payment.
regardless of the strength of the
evidence presented by the
prosecution. Tan vs. Philippine In Tan vs. People, 349 SCRA 777,
Commercial International Bank 2001, the Court acquitted the petitioner
552 SCRA 532, April 23, 2008 therein who was indicted under B.P. Blg. 22,
upon a check which was dishonored for the
d. Only a full payment at the time of reason DAUD, among others. Even without
its presentment or during the relying on the credit line, petitioner's bank
five-day grace period could
account covered the check she issued
exonerate one from criminal
liability under B.P. Blg. 22 and because even though there were some
that subsequent payments can deposits that were still uncollected the
only affect the civil, but not the deposits became "good" and the bank
criminal, liability. Tan sv. certified that the check was "funded."
Philippine Commercial
International Bank 552 SCRA 532, To be liable under Section 1of B.P.
April 23, 2008 Blg. 22, the check must be dishonored by the
drawee bank for insufficiency of funds or
e. Under B.P. Blg. 22, the
credit or dishonored for the same reason had
prosecution must prove not only
that the accused issued a check not the drawer, without any valid cause,
that was subsequently ordered the bank to stop payment.
dishonored. It must also
establish that the accused was
56
g. Blg. 22 speaks only of B.P. Blg. 22. The mere act of issuing a
insufficiency of funds and does worthless check is malum
not treat of uncollected deposits. prohibitum provided the other elements of
the offense are properly proved.
In Dy vs. People, 571 SCRA 59,
November 14, 2008, the High Court declared Noteworthy to cite to illustrate this point
that the law cannot be interpreted in such a is the case of-
way as to expand its provision to encompass
the situation of uncollected deposits because Dreamwork Construction, Inc. vs.
it would make the law more onerous on the Janiola and Hon. Famini
G.R. No. 184861, 30 June 2009
part of the accused. Again, criminal statutes
are strictly construed against the FACTS: On October 18, 2004, petitioner
Government and liberally in favor of the Dreamwork Construction Inc., through its
accused. President, filed a case for violation of Batas
Pambansa Bilang 22 (BP 22) against private
h. Prescription is a proper defense. respondent. Correspondingly, petitioner
The prescriptive period is 4 years filed a criminal information for violation of
reckoned from the lapse of the 5 BP 22 against private respondent. On
banking days from notice of September 20, 2006, private respondent,
dishonor within which to make joined by her husband, instituted a civil
good the check. complaint against petitioner by filing a
Complaint for the rescission of an alleged
construction agreement between the parties,
i. Forgery of the signature as well as for damages. Notably, the checks,
appearing on the check. When a subject of the criminal cases before the MTC,
signature is forged or made were issued in consideration of the
without the authority of the per- construction agreement.
son whose signature it purports
to be the check is wholly Thereafter, on July 25, 2007, private
inoperative unless the party respondent filed a Motion to Suspend
against whom it is sought to Proceedings alleging that the civil case posed
enforce such right is precluded a prejudicial question as against the criminal
from setting up the forgery or cases.
want of authority. Ilusorio vs.
Court of Appeals, 353 SCRA 89 Petitioner opposed the suspension of
the proceedings in the criminal cases as the
3.01 IS AN AGREEMENT SURROUNDING rescission of the contract upon which the
THE ISSUANCE OF DISHONORED bouncing checks were issued is a separate
CHECKS RELEVANT TO THE and distinct issue from the issue of whether
PROSECUTION FOR VIOLATION OF private respondent violated BP 22. The MTC
BATAS PAMBANSA 22? granted the Motion to Suspend Proceedings.

No, an agreement surrounding the ISSUE: Whether the resolution of the civil
case for rescission of construction
issuance of dishonored checks is irrelevant
agreement between the parties
to the prosecution for violation of Batas determinative of the prosecution of the
Pambansa Blg. 22. Dreamwork Construction, criminal action for violation of BP 22.
Inc. v. Janiola 591 SCRA 466, June 30, 2009
RULING: Prejudicial question is inapplicable
It has been consistently declared that the in this case. The fact that there exists a valid
cause or reason for the issuance of a check is contract or agreement to support the
inconsequential in determining criminal issuance of the check/s or that the checks
culpability under B.P. Blg. 22. were issued for valuable consideration does
not make up the elements of the crime. Thus,
As held in the case of Jose v. Suarez 556 the Court has held in a long line of cases that
SCRA 772, June 30, 2008, the cause or reason the agreement surrounding the issuance of
dishonored checks is irrelevant to the
for the issuance of a check is inconsequential
prosecution for violation of BP 22. It must be
in determining criminal culpability under
57
emphasized that the gravamen of the offense took place, respondent is not exempt from
charge is the issuance of a bad check. The prosecution for violation of B.P. 22 for the
purpose for which the check was issued, the dishonored checks. Land Bank of the
terms and conditions relating to its issuance,
Philippines vs. Jacinto, G.R. No. 154622, August
or any agreement surrounding such issuance
are irrelevant to the prosecution and 3, 2010
conviction of petitioner.
It is well settled that the mere act of
To determine the reason for which issuing a worthless check, even if merely as
checks are issued, or the terms and an accommodation, is covered by B.P. 22. The
conditions for their issuance, will greatly Court has held that the agreement
erode the faith the public reposes in the surrounding the issuance of dishonored
stability and commercial value of checks as checks is irrelevant to the prosecution for
currency substitutes, and bring havoc in violation of B.P. 22.
trade and in banking communities. The clear
intention of the framers of B.P. 22 is to make 3.04 STOP PAYMENT IN BP. 22
the mere act of issuing a worthless check
malum prohibitum. a. IS STOP PAYMENT A PROPER
DEFENSE IN BP. 22?
3.02 IS LACK OF VALUABLE
CONSIDERATION A PROPER It depends. Although the drawer
DEFENSE IN VIOLATION OF BP 22?
ordered a STOP PAYMENT or
No. The issue of lack of valuable countermand, yet if it was clear from the
consideration for the issuance of checks statement of account that the check bounced
which were later on dishonored for due to insufficiency of funds, the drawer of
insufficient funds is immaterial to the the check is still liable.Chang vs. IAC, 146
success of a prosecution for violation of BP SCRA 464
22. Dreamwork Construction, Inc. v. Janiola
C. CORPORATION IN RELATION TO BP.
591 SCRA 466, June 30, 2009 22
In Lunaria vs. People, 5701 SCRA 572, 4.00 DIFFERENTIATE CORPORATE CHECK
November 11, 2008, the Supreme Court FROM A PERSONAL CHECK.
stated that even in cases where there had
been payment, through compensation or A corporate check is one signed by a
some other means, there could still be natural person in the name of the
prosecution for violation of B.P. 22. The corporation. The drawer, in effect, is the
gravamen of the offense under this law is the corporation or juridical entity while
act of issuing a worthless check or a check personal check is one drawn by a natural
that is dishonored upon its presentment for person in his name.
payment, not the nonpayment of the
obligation. 4.01 WHO IS LIABLE IF THE CHECK IS
DRAWN BY A CORPORATION,
3.03 NOVATION IN BP. 22 COMPANY OR ENTITY?

a. IS NOVATION A PROPER DEFENSE Section 1 of the law provides:


IN BP.22?
Where the check is drawn by a
No. Whether there was novation or corporation, company or entity, the
not is not determinative of respondents person or persons who actually signed the
responsibility for violation of B.P. 22, as the check in behalf of such drawer shall be
said special law punishes the act of issuing a liable under this Act.
worthless check and not the purpose for
which the check was issued or the terms and In explaining this afore-quoted rule,
conditions relating to its issuance. Thus, even the Supreme Court in Mitra vs. People, G.R.
if it be subsequently declared that novation No. 191404, July 5, 2010 held:

58
This provision recognizes the 4.04 MAY A MEMBER OF THE BOARD OF
reality that a corporation can only act DIRECTORS OF A CORPORATION
through its officers. Hence, its wording is FILE A CASE OF BP 22?
unequivocal and mandatory that the
person who actually signed the corporate Yes, provided he is authorized to sue
check shall be held liable for a violation of for and on behalf of the corporation. Under
BP 22. This provision does not contain any Section 36 of the Corporation Code, read in
condition, qualification or limitation. relation to Section 23, it is clear that where a
corporation is an injured party, its power to
It went on to elucidate: sue is lodged with its board of directors or
trustees.
In the case of Llamado v. Court of
Appeals, the Court ruled that the accused was In Muoz vs. People, 548 SCRA 473,
liable on the unfunded corporate check which March 14, 2008, Concord, a domestic
he signed as treasurer of the corporation. He corporation, was the payee of the bum check,
could not invoke his lack of involvement in the not petitioner. Therefore, it is Concord, as
negotiation for the transaction as a defense payee of the bounced check, which is the
because BP 22 punishes the mere issuance of a injured party. Since petitioner was neither a
bouncing check, not the purpose for which the payee nor a holder of the bad check, he had
check was issued or in consideration of the neither the personality to sue nor a cause of
terms and conditions relating to its issuance. action against the accused. Petitioner failed
In this case, Mitra signed the LNCC checks as to show any proof that he was authorized
treasurer. Following Llamado, she must then or deputized or granted specific powers
be held liable for violating BP 22. by Concord's board of director to sue for
and on behalf of the firm. Clearly,
4.02 EXPLAIN WHY A CORPORATE
petitioner as a minority stockholder and
OFFICER WHO ISSUED A
DISHONORED CHECK IS member of the board of directors had no
PERSONALLY LIABLE. such power or authority to sue
on Concord's behalf.
The personal liability of the
corporate officer is predicated on the D. CIVIL LIABILITY
principle that he cannot shield himself from
liability from his own acts on the ground that 5.00 CITE CERTAIN PRINCIPLES ON CIVIL
it was a corporate act and not his personal LIABILITY.
act. Gosiaco vs. Ching and Casta, G.R. 173807,
16 April 2009 a. An acquittal based on
reasonable doubt does not
4.03 WHO MUST RECEIVE THE NOTICE OF preclude the award of civil
DISHONOR IF THE BOUNCED CHECK damages.
IS DRAWN BY A CORPORATION,
COMPANY OR ENTITY?
b. The possible single civil liability
The officer who is accused of signing arising from the act of issuing a
the check must receive the notice of dishonor. bouncing check can be the
Constructive notice to the corporation, who subject of both civil actions
has a separate personality from its officer, is deemed instituted with the
estafa case and the prosecution
not enough. The Court stated its importance
for violation of Batas
when it held in Marigomen vs. People, 459 Pambansa Blg. 22,
SCRA 169, that if the drawer or maker is an simultaneously available to the
officer of a corporation, the notice of dishonor complaining party, without
to the said corporation is not notice to the traversing the prohibition
employee or officer who drew or issued the against forum shopping.
check for and in its behalf.
Under the present revised Rules, the
criminal action for violation of BP Blg. 22
59
includes the corresponding civil action to The Rules even prohibits the
recover the amount of the checks. It should reservation of a separate civil action, i.e., one
be stressed, this policy is intended to can no longer file a separate civil case after
discourage the separate filing of the civil the criminal complaint is filed in court. The
action. In fact, the Rules even prohibits the only instance when separate proceedings are
reservation of a separate civil action, i.e., one allowed is when the civil action is filed ahead
can no longer file a separate civil case after of the criminal case. Even then, the Rules
the criminal complaint is filed in court. encourage the consolidation of the civil and
criminal cases.
The only instance when separate
proceedings are allowed is when the civil IS THERE AN EXCEPTION?
action is filed ahead of the criminal case.
Even then, the Rule encourages the Yes, if there is a finding of gross
consolidation of the civil and criminal cases. mistake committed by a prosecutor in
Thus, where petitioners rights may be fully handling BP Blg. 22 cases as enunciated in
adjudicated in the proceedings before the the landmark case of Cheng vs. Sy, G. R. No.
court trying the BP Blg. 22 cases, resort to a 174238, July 7, 2009.
separate action to recover civil liability is In this case, petitioner filed two cases
clearly unwarranted on account of res of estafa before the RTC and two cases for
judicata, for failure of petitioner to appeal the violation of B. P. Blg. 22 before the MTC
civil aspect of the cases. In view of this special against the respondents for issuing to her
rule governing actions for violation of BP Blg. PBC checks in payment of their loan, both of
22, Article 31 of the Civil Code is not which were dishonored for having been
applicable. Cheng v. Sy 592, SCRA 155, July 7, drawn against a closed account. The estafa
2009 cases were dismissed for failure of the
c. The rule is that upon filing of prosecution to prove the elements of the
the estafa and Batas Pambansa crime, while the B. P. Blg. 22 cases were
Blg. 222 cases against dismissed, on demurrer, on account of the
respondents, where the failure of petitioner to identify the accused
petitioner has not made any respondents in open court. Petitioner
waiver, express reservation to indirectly faulted the prosecutor for failure
litigate separately, or has not
to protect her interest.
instituted the corresponding
civil action to collect the
The Supreme Court finds that
amount involved and damages
prior to the criminal action, the petitioner would be left without a remedy to
civil action is deemed instituted recover from respondents the allegedly
with the criminal cases. Cheng loaned from her. It ruled:
v. Sy 592 SCRA 155, July 7, 2009
It is in this light that we find petitioners
5.01 MAY PETITIONERS ACTION TO contention that she was not assisted by a
RECOVER RESPONDENTS CIVIL private prosecutor during the BP Blg. 22
LIABILITY STILL BE ALLOWED TO proceedings critical. Petitioner indirectly
PROSPER SEPARATELY AFTER THE protests that the public prosecutor failed
BP. 22 CASES WERE DISMISSED? to protect and prosecute her cause when
he failed to have her establish the
No. Under the present revised Rules, identities of the accused during the trial
the criminal action for violation of BP Blg. 22 and when he failed to appeal the civil
includes the corresponding civil action to action deemed impliedly instituted with
recover the amount of the checks. This policy the BP Blg. 22 cases. On this ground, we
is intended to discourage the separate filing agree with petitioner.
of the civil action.
Faced with the dismissal of the BP
Blg. 22 cases, petitioners recourse
60
pursuant to the prevailing rules of should ascertain whether or not the
procedure would have been to appeal the obligation itself is valid and demandable. The
civil action to recover the amount loaned to litigation of both questions could, in theory,
respondents corresponding to the bounced proceed independently and simultaneously
checks. Hence, the said civil action may without being ultimately conclusive on one
proceed requiring only a preponderance of or the other. Gosiaco vs. Ching 585 SCRA 471,
evidence on the part of petitioner. Her April 16, 2009
failure to appeal within the reglementary
period was tantamount to a waiver 5.03 CAN A COURT IMPOSE SUBSIDIARY
CIVIL LIABILITY AGAINST A
altogether of the remedy to recover the civil
CORPORATION IN BP. 22 CASE?
liability of respondents. However, due to
the gross mistake of the prosecutor in the No. In Gosiaco vs. Ching And Casta,
BP Blg. 22 cases, we are constrained to G.R. No. 173807, 16 April 2009, the Supreme
digress from this rule. Court had the occasion to explain the reason
way. It held that nowhere in B.P. Blg. 22 is it
5.02 CIVIL LIABILITY WHEN A provided that a juridical person may be
CORPORATION IS INVOLVED- impleaded as an accused or defendant in the
prosecution for violations of that law, even in
a. Under the amended rules on the litigation of the civil aspect thereof.
bouncing checks, the previous
option to directly pursue the civil It might be argued that under the
liability against the corporation current rules, if the signatory were made
that incurred the obligation is no liable for the amount of the check by reason
longer that clear. of the B.P. Blg. 22 case, such signatory would
have the option of recovering the same
B.P. Blg. 22 imposes a distinct civil
amount from the corporation.
liability on the signatory of the check which
is distinct from the civil liability of the If the signatory does not have sufficient
corporation for the amount represented assets to answer for the amount of the
from the check. The civil liability attaching to checka distinct possibility considering the
the signatory arises from the wrongful act of occasional large-scale transactions engaged
signing the check despite the insufficiency of in by corporations the corporation would
funds in the account, while the civil liability not be subsidiarily liable to the complainant,
attaching to the corporation is itself the very even if it in truth the controversy, of which
obligation covered by the check or the the criminal case is just a part, is traceable to
consideration for its execution. Yet these civil the original obligation of the corporation.
liabilities are mistaken to be indistinct. The
confusion is traceable to the singularity of While the Revised Penal Code imposes
the amount of each. Gosiaco vs. Ching, 585 subsidiary civil liability to corporations
SCRA 471, April 16, 2009 for criminal acts engaged in by their
employees in the discharge of their
b. The civil action impliedly instituted duties, said subsidiary liability applies
in the Batas Pambansa Blg 22 only to felonies, and not to crimes
action is only the civil liability of the
penalized by special laws such as B.P. Blg.
signatory and not that of the
corporation. 22. And nothing in B.P. Blg. 22 imposes
such subsidiary liability to the
It follows that the actions involving these corporation in whose name the check is
liabilities should be adjudged according to actually issued.
their respective standards and merits. In the
B.P. Blg. 22 case, what the trial court should F. ADMINISTRATIVE CIRCULAR NO. 12-
determine whether or not the signatory had 2000 AND ADMINISTRATIVE CIRCULAR
signed the check with knowledge of the NO. 13-2001
insufficiency of funds or credit in the bank
account, while in the civil case the trial court
61
6.00 WHAT IS ADMINISTRATIVE appropriate penalty to impose on each of
CIRCULAR NO. 12-2000? the petitioners.

It is a circular which refers to the In the recent case of Rosa Lim vs.
imposition of penalties for violation of B.P. People(G. R. No. 130038, 18 September
22. It provides: 2000), the Supreme Court en banc,
applying Vaca also deleted the penalty of
Section 1 of B.P. Blg. 22 (An Act Penalizing imprisonment and sentenced the drawer
the Making or Drawing and Issuance of a of the bounced check to the maximum of
Check Without Sufficient Funds for Credit the fine allowed by B.P. Blg. 22, i.e.,
and for Other Purposes) imposes the P200,000, and concluded that such would
penalty of imprisonment of not less than best serve the ends of criminal justice.
thirty (30) days but not more than one (1)
year or a fine of not less than but not more All courts and judges concerned
than double the amount of the check, should henceforth take note of the
which fine shall in no case exceed foregoing policy of the Supreme Court on
P200,000, or both such fine and the matter of the imposition of penalties
imprisonment at the discretion of the for violations of B.P. Blg. 22.
court.
The Court Administrator shall
In its decision in Eduardo Vaca vs. cause the immediate dissemination of this
Court of Appeals (G.R. No. 131714, 16 Administrative Circular to all courts and
November 1998; 298 SCRA 656, 664) the judges concerned.
Supreme Court (Second Division) per Mr.
Justice V. Mendoza, modified the sentence This Administrative Circular,
imposed for violation of B.P. Blg. 22 by referred to and approved by the Supreme
deleting the penalty of imprisonment and Court en banc, shall take effect upon its
imposing only the penalty of fine in an issuance.
amount double the amount of the check. In Issued this 21st day of November
justification thereof, the Court said: 2000. X x x
Petitioners are first-time offenders. Court has not discriminalized B.P.
They are Filipino entrepreneurs who 22 violations, nor have removed
presumably contribute to the national imprisonment as an alternative penalty.
economy. Apparently, they brought this
appeal, believing in all good faith, although Since 1998, this Court has held that
mistakenly that they had not committed a it would best serve the ends of criminal
violation of B.P. Blg. 22. Otherwise, they justice if, in fixing the penalty to be
could simply have accepted the judgment of imposed for violation of B.P. 22, the same
the trial court and applied for probation to philosophy underlying the Indeterminate
evade a prison term. It would best serve the Sentence Law be observed, i.e., that of
ends of criminal justice if in fixing the redeeming valuable human material and
penalty within the range of discretion preventing unnecessary deprivation of
allowed by Section 1, par. 1, the same personal liberty and economic usefulness
philosophy underlying the Indeterminate with due regard to the protection of the
Sentence Law is observed, namely, that of social order. This policy was embodied in
redeeming valuable human material and Supreme Court Administrative Circular
preventing unnecessary deprivation of No. 12-2000, authorizing the non-
personal liberty and economic usefulness imposition of the penalty of imprisonment
with due regard to the protection of the in B.P. 22 cases. We also clarified in
social order. In this case, we believe that a Administrative Circular No. 13-2001, as
fine in an amount equal to double the explained in Tan v. Mendez, 383 SCRA 202
amount of the check involved is an (2002), that we are not decriminalizing

62
B.P. 22 violations, nor have we removed preference in the application of the
imprisonment as an alternative penalty. penalties provided for in B.P. Blg. 22.
Needless to say, the determination of
whether the circumstances warrant the The pursuit of this purpose clearly
imposition of a fine alone rests solely upon does not foreclose the possibility of
the judge. Should the judge decide that imprisonment for violations of B.P. Blg. 22.
imprisonment is the more appropriate Neither does it defeat the legislative intent
penalty, Administrative Circular No. 12- behind the law.
2000 ought not to be deemed a hindrance.
Lunaria vs. People, 5701 SCRA 572, Thus, Administrative Circular No.
November 11, 2008. 12-2000 establishes a rule of preference in
the application of the penal provisions of
6.01 ON THE OTHER HAND ,WHAT IS B.P. Blg. 22 such that where the
ADMINISTRATIVE CIRCULAR NO. circumstances of both the offense and the
13-2001? offender clearly indicate good faith or a
clear mistake of fact without taint of
It is a circular addressed to all judges negligence, the imposition of a fine alone
which clarifies Administrative Circular No. should be considered as the more
12-2000 on the penalty for violation of Batas appropriate penalty. Needless to say, the
Pambansa blg. 22. It provides: determination of whether the
circumstances warrant the imposition of a
Clarification has been sought by fine alone rests solely upon the Judge.
concerned Judges and other parties Should the Judge decide that
regarding the operation of Administrative imprisonment is the more appropriate
Circular 12-2000 issued on 21 November penalty, Administrative Circular No. 12-
2000. In particular, queries have been 2000 ought not be deemed a hindrance.
made regarding the authority of Judges to:
It is, therefore, understood that:
1. Impose the penalty of imprisonment for
violations of Batas Pambansa Blg. 22; and 1. Administrative Circular 12-2000 does
not remove imprisonment as an
2. Impose subsidiary imprisonment in the alternative penalty for violations of B.P.
event that the accused who is found guilty Blg. 22;
of violating the provisions of B.P. Blg. 22, is
unable to pay the fine which he is 2. The Judges concerned may, in the
sentenced to pay considering that exercise of sound discretion, and taking
Administrative Circular No. 12-2000 into consideration the peculiar
adopted the rulings in Eduardo Vaca v. circumstances of each case, determine
Court of Appeals (G.R. No. 131714, 16 whether the imposition of a fine alone
November 1998, 298 SCRA 656) and Rosa would best serve the interests of justice or
Lim v. People of the Philippines (G.R. No. whether forbearing to impose
130038, 18 September 2000) as a policy of imprisonment would depreciate the
the Supreme Court on the matter of the seriousness of the offense, work violence
imposition of penalties for violations of on the social order, or otherwise be
B.P. Blg. 22, without mentioning whether contrary to the imperatives of justice;
subsidiary imprisonment could be
resorted to in case of the accused's 3. Should only a fine be imposed and the
inability to pay the fine. accused be unable to pay the fine, there is
no legal obstacle to the application of the
The clear tenor and intention of Revised Penal Code provisions on
Administrative Circular No. 12-2000 is not subsidiary imprisonment.
to remove imprisonment as an alternative
penalty, but to lay down a rule of
63
The issuance of this Administrative drawer is liable only for violation of
Circular was authorized by the Court En B.P. Blg. 22.
Banc in A.M. No. 00-11-01-SC at its session
5. If the payee (the one receiving the
of 13 February 2001.
payment) is aware of the
insufficiency or lack of fund in the
The Clerk of Court of the Supreme bank to cover the check at the time it
Court and the Court Administrator shall was issued, the drawer may be held
immediately cause the implementation of liable for violation of B. P. Blg. 22.
this Administrative Circular.
6. Even if a bad check is issued as a
This Administrative Circular shall guarantee, Batas 22 is violated.
be published in a newspaper of general
ADDENDUM:
circulation not later than 20 February
2001. Payment even beyond the 5-day period
extinguishes criminal liability.
Issued this 14th day of February, 2001. x x
x Although payment of the value of the
bounced check, if made beyond the 5-day
period provided for in B.P. Blg. 22, would
6.02 DOES ADMINISTRATIVE CIRCULAR
normally not extinguish criminal liability, the
N0. 13- 2001 DECRIMINALIZE
aforementioned cases show that the Court
VIOLATIONS OF BP. 22?
acknowledges the existence of extraordinary
cases where, even if all the elements of the
No. The Supreme Court pronounced
crime of offense are present, the conviction
in Lunaria vs. People, 5701 SCRA 572, of the accused would prove to be abhorrent
November 11, 2008, that it has not to societys sense of justice. Just like in
decriminalized B.P. 22 violations, nor have Griffith and in Tan, petitioner should not be
removed imprisonment as an alternative penalized although all the elements of
penalty. violation of B.P. Blg. 22 are proven to be
present. The fact that the issuer of the check
The Court clarified that the had already paid the value of the dishonored
determination of whether the circumstances check after having received the subpoena
from the Office of the Prosecutor should have
warrant the imposition of a fine alone rests
forestalled the filing of the Information in
solely upon the judge. Should the judge court. The spirit of the law which, for B.P.
decide that imprisonment is the more Blg. 22, is the protection of the credibility and
appropriate penalty, Administrative Circular stability of the banking system, would not be
No. 12-2000 ought not to be deemed a served by penalizing people who have
hindrance. evidently made amends for their mistakes
and made restitution for damages even
G. OTHER POINTS TO CONSIDER before charges have been filed against them.
IN BP. 22 In effect, the payment of the checks before
the filing of the information has already
attained the purpose of the law. (Ariel T. Lim
1. Each act of drawing and issuing a vs People, G.R. No. 190834, November 26,
bouncing check constitutes a 2014, Peralta, J.)
violation of B.P. Blg. 22.

2. If the drawer has a valid reason for


stopping payment, he cannot be held -oooOOOooo-
liable under B.P. Blg. 22.

3. Cross checks are negotiable


instruments, and therefore, come CHAPTER VII. THE ANTI-FENCING LAW
within the coverage of B.P. Blg. 22. OF 1979
Presidential Decree No. 1612
4. If the bouncing check was issued to
pay a pre-existing obligation, the [BAR 2010, 2009, 95, 1993, 1990,
64
1987, 1985] qualification set forth in Article 60 thereof.
______________________________________________
Evidently, the accessory in the crimes
of robbery and theft could be prosecuted as
1.00 WHAT IS THE CRIME OF "FENCING". such under the Revised Penal Code or under
(Sec. 2) P.D. No. 1612. However, in the latter case, he
ceases to be a mere accessory but becomes a
Section 2 of this Act defines fencing as: principal in the crime of fencing. Elsewise
stated, the crimes of robbery and theft, on the
It is the act of any person who, one hand, and fencing, on the other, are
with intent to gain for himself or for separate and distinct offenses.
another, shall buy, receive, possess, keep,
acquire, conceal, sell or dispose of, or shall The state may thus choose to
buy and sell, or in any other manner deal prosecute him either under the Revised
in any article, item, object or anything of Penal Code or P.D. No. 1612, although the
value which he knows, or should be known preference for the latter would seem
to him, to have been derived from the inevitable considering that fencing is a
proceeds of the crime of robbery or theft. malum prohibitum, and P.D. No. 1612 creates
a presumption of fencing and prescribes a
1.01 BAR Q. [1995] WHAT ARE THE higher penalty based on the value of the
ELEMENTS OF FENCING? property. Dizon-Pamintuan vs. People, 234
SCRA 63(1994)
The elements of fencing are:
1.03 EXPLAIN THE DIFFERENCE AND
(a) a crime of robbery or theft has been SIMILARITY BETWEEN A FENCE
committed; AND AN ACCESSORY TO THEFT OR
ROBBERY?
(b) accused, who is not a principal or
accomplice in the crime, buys, receives, a. A fence is punished as a principal
possess, keeps, acquires, conceals, or under PD, No 1612 and the penalty is higher,
disposes or buys and sells or in any whereas an accessory to robbery or theft
manner deals in any article, item object or under the Revised Penal Code is punished
anything of value, which has been derived two degrees lower than the principal as a
from the proceeds of said crime; general rule.

(c) the accused knows or should have b. Fencing is a malum prohibitum


known that said article, item, object or and therefore there is no need to prove
anything of value has been derived from criminal intent of the accused. Good faith is
the proceeds of the crime of robbery or not a defense. In accessory to robbery or
theft; and theft under the Revised Penal Code, intent is
an element of the crime and therefore, good
(d) there is, on the part of the accused, faith is a proper defense.
intent to gain for himself or for another.
C. All the acts of one who is an
1.02 ARE THE CRIMES OF ROBBERY AND accessory to the crimes of robbery or theft
THEFT SEPARATE AND DISTINCT
FROM FENCING? are included in the acts defined as fencing.
Corollarily, the accessory in the crimes of
No, the crimes of robbery and theft, robbery or theft could be prosecuted as such
on the one hand, and fencing, on the other, under the Revised Penal Code or as a fence
are separate and distinct offenses. Before P.D. under PD No. 1612.
No. 1612, a fence could only be prosecuted
for and held liable as an accessory, as the 1.04 EXPLAIN THE ELEMENT OF
term is defined in Article 19 of the Revised KNOWLEDGE OF A PARTICULAR
Penal Code. The penalty applicable to an FACT.
accessory is obviously light under the rules
prescribed in Articles 53, 55, and 57 of the When knowledge of the existence of
Revised Penal Code, subject to the a particular fact is an element of an offense,
65
such knowledge is established if a person is The law does not require proof of
aware of a high probability of its existence purchase of the stolen articles by petitioner,
unless he actually believes that it does not as mere possession thereof is enough to give
exist. Dizon-Pamintuan vs. People, 234 SCRA
rise to a presumption of fencing. Dunlao, Sr.
63(1994)
vs. Court of Appeals, 260 SCRA 788(1996)
1.05 WHAT DO THE WORDS SHOULD 1.09 WHAT DOES THE TERM "FENCE"
KNOW DENOTE?
INCLUDE? (Sec. 2)
The words should know denote the
It includes any person, firm, association,
fact that person of reasonable prudence and corporation or partnership or other
intelligence would ascertain the fact in
organization who/which commits the act of
performance of his duty to another or would
fencing.
govern his conduct upon assumption that
such fact exists.
1.10 IF THE FENCE IS A JURIDICAL
PERSON, WHO SHOULD BE LIABLE? (SEC.
Knowledge refers to a mental state of 4)
awareness about a fact. Since the court
cannot penetrate the mind of an accused and
If the fence is a partnership, firm,
state with certainty what is contained
corporation or association, the president or
therein, it must determine such knowledge
the manager or any officer thereof who
with care from the overt acts of that person.
knows or should have known the
And given two equally plausible states of
commission of the offense shall be liable.
cognition or mental awareness, the court
should choose the one which sustains the
constitutional presumption of innocence. 1.11 WHAT IS THE PRESUMPTION OF
Dizon-Pamintuan vs. People, 234 SCRA FENCING? (SEC. 5)
63(1994)
Section 5 provides for the presumption
1.06 IS THE STOLEN PROPERTY of fencing:
INDISPENSABLE TO PROVE
FENCING? Mere possession of any good, article,
item, object, or anything of value which
No. The stolen property subject of the has been the subject of robbery or thievery
charge is not indispensable to prove fencing. shall be prima facie evidence of fencing

Fencing is malum prohibitum, and 1.12 WHAT IS THE PRESUMPTION WHEN


P.D. No. 1612 creates a prima facie A STOREOWNER DISPLAYS
presumption of fencing from evidence of ARTICLES?
possession by the accused of any good,
article, item, object or anything of value When a storeowner displays articles,
which has been the subject of robbery or it is assumed that he is doing so with the
theft, and prescribes a higher penalty based intention of selling them.
on the value of the property. The stolen
property subject of the charge is not 1.13 DISCUSS THE NECESSITY OF
indispensable to prove fencing. It is merely SECURING A CLEARANCE OR PERMIT.
corroborative of the testimonies and other (SEC. 6)
evidence adduced by the prosecution to
prove the crime of fencing. Francisco vs. Section 6 underscores the
People, 434 SCRA 122(2004) importance of securing a clearance or permit
in dealing with the buy and sell activities.
1.07 MUST INTENT TO GAIN BE PROVED?
1.14 UNDER THE SAID RULES AND
Intent to gain need not be proved in
REGULATIONS, TO WHAT ITEMS
crimes punishable by a special law such as DOES THE TERM "USED
P.D. 1612. SECONDHAND ARTICLE" REFER TO?

1.08 MUST PURCHASE OF THE STOLEN It shall refer to any goods, article, item,
ARTICLES BE PROVED? object or anything of value obtained from an
66
unlicensed dealer or supplier, regardless of management. People vs.De Gracia, 233 SCRA
whether the same has actually or in fact been 716
used.
Illustrative case
-oooOOOooo-
BAR Q. [2000] A has long been wanted by
the police authorities for various crimes
CHAPTER VIII. ILLEGAL POSSESSION OF committed by him. Acting on an
FIREARM information by a tipster, the police
PD 1866 as amended by R.A. 8294 proceeded to an apartment where A was
often seen. The tipster also warned the
[BAR Q. 2011, 2002, 2000, 1998]
policeman that A was always armed. At
the given address, a lady who introduced
herself as the elder sister of A, opened the
door and let the policeman in. inside the
1.00 WHAT ARE THE ELEMENTS OF THE team found A sleeping on the floor.
CRIME OF ILLEGAL POSSESSION OF Immediately beside him was a clutch bag
FIREARM AND AMMUNITION? which when opened, contained a .38
caliber paltic revolver and a hand
In illegal possession of firearm and
grenade. After verification, the
ammunition, the prosecution has the burden
authorities discovered that A was not a
of proving the twin elements of:
licensed holder of the .38 caliber paltik
(1) the existence of the subject firearm revolver. As for the hand grenade, it was
and ammunition, and established that only military personnel
are authorized to carry hand grenades.
(2) the fact that the accused who Subsequently, A was charged with the
possessed or owned the same does not crime of illegal possession of firearms
have the corresponding license for it. and ammunition. During trial, A
Valeroso vs. People, 546 SCRA 450, maintained that the bag containing the
February 22, 2008 unlicensed firearm and hand grenade
belonged to A, his friend, and that he was
Illustrative case
not in actual possession thereof at the
BAR Q. [2011] X, Y and Z agreed among time he was arrested. Are the allegations
themselves to attack and kill A, a police meritorious? Explain.
officer,but they left their home-made
guns in their vehicle before approaching Suggested Answer: No, A's
him. What crime have they committed? allegation that he does not own the firearm is
of no significance. It is a settled rule that
A. Conspiracy to commit indirect ownership is not an essential element in the
assault. crime of illegal possession.
B. Attempted direct assault.
C. Conspiracy to commit direct Further, his defense that he was not in
assault.
possession of the same at that time he was
D. Illegal possession of firearms.
arrested has no leg to stand on. Possession
1.01 IS OWNERSHIP AN ELEMENT OF THIS includes not only actual physical possession
CRIME? but also constructive possession where the
firearm and explosives are subject to one's
No. Ownership is not an essential control and management. As long as intent to
element of illegal possession of firearm. possess is proved, A can be held liable.
What the law requires is merely possession
which includes not only physical possession 1.02 EXPLAIN THE CONCEPT OF
but also constructive possession or the POSSESSION.
subjection of the thing to ones control and

67
The kind of possession punishable was made in good faith and without criminal
under PD 1866 is one where the accused intent. Elenita C. Fajardo vs. People, G.R. No.
possessed a firearm either physically or 190889, January 10, 2011
constructively with animus possidendi or
1.04 ASIDE FROM A FIREARM WITHOUT A
intention to possess. It is not enough that the
LICENSE, WHAT DOES UNLICENSED
firearm was found in the possession of the FIREARM INCLUDE?
accused who held the same temporarily and
casually or for the purpose of surrendering The term unlicensed firearm shall
the same. People vs. Dela Rosa, 90 SCAD 143 include:

Possession of firearm and 1) firearms with expired license; or


ammunition without the requisite authority
or license, coupled with animus possidendi, 2) unauthorized use of licensed
is a violation of PD 1866. People vs. Lian, 255 firearm in the commission of the
SCRA 532 crime.

A temporary, incidental, casual, or Unlicensed firearm no longer simply


harmless possession or control of a firearm means a firearm without a license duly
cannot be considered a violation of a statute issued by lawful authority. The scope of the
prohibiting the possession of this kind of term has been expanded in Section 5 of
weapon. People vs. De Gracia, 233 SCRA 716 Republic Act No. 8294 as: (1) firearm with
expired license, or (2) unauthorized use of
To be guilty of the crime of illegal licensed firearm in the commission of the
possession of firearms and ammunition, one crime. People vs. Molina, 292 SCRA 742
does not have to be in actual physical
possession thereof. The law does not punish It follows therefore that
physical possession alone but possession in unauthorized use of weapon which has been
general, which includes constructive duly licensed in the name of its
possession or the subjection of the thing to owner/possessor may still aggravate the
the owners control. Evangelista vs. People, resultant/crime. People vs. Moliva, 292 SCRA
G.R. No. 163267, May 5, 2010 742

1.03 DIFFERENTIATE CRIMINAL INTENT 1.05 IS PROOF OF UNLICENSED FIREARM


FROM INTENT TO POSSESS. AN ESSENTIAL ELEMENT OF PD 1866?

A distinction should be made Yes. The lack of a license to possess


between criminal intent and intent to firearm is an essential element of the crime
possess. While mere possession, without of PD 1866 as amended by RA 8294 whether
criminal intent, is sufficient to convict a as an independent crime or as an aggravating
person for illegal possession of a firearm, it circumstance in murder or homicide. People
must still be shown that there was animus vs. Perez, G.R. No. 134485, October 23, 2003
possidendi or an intent to possess on the part
of the accused. Such intent to possess is, It is settled that the lack or absence of
however, without regard to any other a license is an essential ingredient of the
criminal or felonious intent which the
crime of illegal possession of firearm. Sasot
accused may have harbored in possessing
the firearm. Criminal intent here refers to the vs. Yuson, 592 SCRA 368, July 13, 2009
intention of the accused to commit an offense
with the use of an unlicensed firearm. This is 1.06 WHAT IS THE CORPUS DELICTI IN
not important in convicting a person under ILLEGAL POSSESSION OF FIREARM?
Presidential Decree No. 1866. Hence, in
order that one may be found guilty of a The corpus delicti in the crime of
violation of the decree, it is sufficient that the illegal possession of firearms is the accused's
accused had no authority or license to lack of license or permit to possess or carry
possess a firearm, and that he intended to the firearm, as possession itself is not
possess the same, even if such possession prohibited by law. To establish the corpus
68
delicti, the prosecution has the burden of provides: "If homicide or murder is committed
proving that the firearm exists and that the with the use of an unlicensed firearm, such use
accused who owned or possessed it does not of an unlicensed firearm shall be considered as
have the corresponding license or permit to an aggravating circumstance.
possess or carry the same. Sayco vs. People,
547 SRA 368, March 3, 2008 3. In People vs. Macoy Jr., 338 SCRA
217, the Supreme Court enunciated that in
1.07 HOW IS THE SECOND ELEMENT OF the light of the enactment of Republic Act No.
THE CRIME PROVEN? 8294, amending Presidential Decree No.
1866, there can be no separate conviction of
It can be proven by the testimony or the crime of illegal possession of firearm if
certification of a representative of the PNP homicide or murder is committed with the
Firearms and Explosive Unit that the accused use of an unlicensed firearm.
was not a licensee of the firearm in question.
People vs. Narvasa, 298 SCRA 638 4. In another case, the Court held that
there can be no separate offense of simple
In Valeroso vs. People, 546 SCRA 450,
illegal possession of firearms where direct
February 22, 2008, the Supreme Court ruled
assault with multiple attempted homicide
that either the testimony of a representative
was committed. People vs. Ladjaalam, 340
of, or a certification from, the Philippine
SCRA 617
National Police (PNP) Firearms and
Explosive Office attesting that a person is not 5. However, it is necessary that said
a licensee of any firearm would suffice to fact is charged in the information. The
prove beyond reasonable doubt the second accused cannot be convicted of homicide or
element of possession of illegal firearms. murder with the use of the unlicensed
firearm as aggravating where said felonies
1.08 IS THE NON-PRESENTATION OF THE
are not charged in the information but
SUBJECT FIREARM FATAL TO THE
merely mentioned as the result of the use of
PROSECUTIONS CAUSE?
the unlicensed firearm. People vs. Avecilla,
No because the existence of the 351 SCRA 462
firearm can be established by testimony even
1.10 IF AN UNLICENSED FIREARM IS USED
without the presentation of the said firearm.
IN THE COMMISSION OF ANY CRIME,
People vs. Narvasa, 100 SCAD 745
CAN THERE BE A SEPARATE
OFFENSE OF SIMPLE ILLEGAL
1.09 WHAT IS THE CONSEQUENCE IF
POSSESSION OF FIREARMS?
HOMICIDE OR MURDER IS
COMMITTED WITH THE USE OF AN
No. In People v. Ladjaalam, 340 SCRA 617
UNLICENSED FIREARM? (SEC.1)
(2000), the Supreme Court laid down the
1. Where the murder or homicide correct interpretation of the law and ruled:
results from the use of an unlicensed firearm, x x x A simple reading thereof shows that if
the crime is no longer qualified illegal an unlicensed firearm is used in the
possession, but murder or homicide, as the commission of any crime, there can be no
case may be, and the use of the unlicensed separate offense of simple illegal possession
firearm shall be appreciated as a mere
of firearms.
aggravating circumstance. People vs. Avecilla,
351 SCRA 462 The law is clear: the accused can be
convicted of simple illegal possession of
2. The use of an unlicensed firearm
firearms, provided that no other crime was
shall be considered as an aggravating
committed by the person arrested. Sison vs.
circumstance only. There can be no separate
People, 666 SCRA 645(2012)
conviction of illegal possession of firearm.
Section 1 of Presidential Decree No. 1866 as Again, if the other crime is murder or
amended by Republic Act No. 8294 expressly homicide, illegal possession of firearms

69
becomes merely an aggravating The possession of any machinery,
circumstance, not a separate offense. tool or instrument used directly in the
manufacture of firearms or ammunition,
BAR Q. [2009] TRUE or FALSE. Answer by any person whose business or
TRUE if the statement is true, or FALSE if employment does not lawfully deal with
the statement is false. Explain your the manufacture of firearms or
answer in not more than two (2) ammunition, shall be prima facie evidence
sentences. that such article is intended to be used in
the unlawful/illegal manufacture of
firearms or ammunition.
The use of an unlicensed firearm in
homicide is considered a generic
aggravating circumstance which can be 1.13 WHEN IS THE USE OF EXPLOSIVES,
offset by an ordinary mitigating DETONATION AGENTS OR
circumstance. INCENDIARY DEVICES CONSIDERED
AS AN AGGRAVATING
CIRCUMSTANCE? (SEC.3)
Suggested Answer: No, the use of an
unlicensed firearm in murder or homicide
constitutes as a special aggravating When a person commits any of the
circumstance which may not be offset by an crimes defined in the Revised Penal Code or
ordinary mitigating circumstances. (People special laws with the use of the explosives
vs. Palaganas, G.R. No. 165483; People vs. (mentioned in Sec.3), detonation agents or
Castillo, G.R.No. 131592-93, February 15, incendiary devices, which results in the
2000). death of any person or persons, the use of
such explosives, detonation agents or
incendiary devices shall be considered as an
However, in People vs. Dela Cruz,
aggravating circumstance.
December 2000, the Supreme Court ruled that
the aggravating circumstance of the use of
firearm is effectively offset by the mitigating 1.14 EXPLAIN PRESUMPTION OF
circumstance of voluntary surrender. UNLAWFUL MANUFACTURE (SEC.4).

1.11 WHAT IS THE CONSEQUENCE IF Section 4 provides the presumption


ILLEGAL POSSESSION OF FIREARM of unlawful manufacture. It reads:
IS IN FURTHERANCE OF OR
INCIDENT TO, OR IN CONNECTION The possession of any machinery,
WITH THE CRIME OF REBELLION tool or instrument directly used in the
OR INSURRECTION, SEDITION, OR manufacture of explosives, by any person
ATTEMPTED COUP D'ETAT? (SEC.1) whose business or employment does not
lawfully deal with the manufacture of
The use of an unlicensed firearm shall be explosives shall be prima facie evidence
absorbed. Section 1 of Presidential Decree that such article is intended to be used in
No. 1866 as amended by Republic Act No. the unlawful/illegal manufacture of
8294 expressly states: explosives.

"If the violation of this Section is in ADDENDUM:


furtherance of or incident to, or in
Loose firearm refers to an
connection with the crime of rebellion or
insurrection, sedition, or attempted coup unregistered firearm, an obliterated or
d'etat, such violation shall be absorbed as altered firearm, firearm which has been
an element of the crime of rebellion, or lost or stolen, illegally manufactured
insurrection, sedition, or attempted coup firearms, registered firearms in the
d'etat. possession of an individual other than
the licensee and those with revoked
1.12 EXPLAIN PRESUMPTION OF ILLEGAL
licenses in accordance with the rules and
MANUFACTURE OF FIREARMS OR
AMMUNITION (SEC.2). regulations. (R.A. No. 10591)

USE OF LOOSE FIREARM IN THE


The presumption of illegal
manufacture of firearms or ammunition is COMMISSION OF A CRIME (Sec. 29 of R.A.
embodied in section 2. It provides: No. 10591)
70
The use of loose firearm, when inherent managing securities or rendering services as
in the commission of a crime punishable investment agent, advisor, or consultant, (ii)
under the Revised Penal Code or other mutual funds, close and investment
companies, common trust funds, pre-need
special laws, shall be considered as an
companies and other similar entities, (iii)
aggravating circumstance. Provided foreign exchange corporations, money
that: changers, money payment, remittance, and
transfer companies and other similar
-If the crime committed with the use of a entities, and (iv) other entities administering
loose firearm is penalized by the law or otherwise dealing in currency,
with a maximum penalty which is lower commodities or financial derivatives based
than that prescribed in Sec. 28 of R.A. No. thereon, valuable objects, cash substitutes
10591, the penalty for illegal possession and other similar monetary instruments or
of firearm shall be imposed in lieu of the property supervised or regulated by
Securities and Exchange Commission.
penalty for the crime charged.

-If the crime committed with the use of 1.01 DEFINE SUSPICIOUS
TRANSACTIONS.
loose firearm is penalized by the law
with a maximum penalty which is equal They are transactions with covered
to that imposed under Sec. 28 of R.A. No. institutions, regardless of the amounts
10591, the penalty of prision mayor in its involved, where any of the following
minimum period shall be imposed in circumstances exist:
addition to the penalty for the crime
punishable under the Revised Penal Code 1. there is no underlying legal or
or other special laws of which he/she is trade obligation, purpose or
economic justification;
found guilty.
2. the client is not properly identified;
-oooOOOooo-
3. the amount involved is not
commensurate with the business or
financial capacity of the client;
CHAPTER IX
ANTI- MONEY LAUNDERING ACT OF 2001 4. taking into account all known
circumstances, it may be perceived
R.A. No. 9160 as amended that the client's transaction is
by R.A. 9194, R.A. 10167, R.A. 10168 and structured in order to avoid being the
R.A. 10365, also known as An Act Further subject of reporting requirements
Strengthening under the Act;
The Anti-Money Laundering Law
5. any circumstances relating to the
[BAR 2010, 2009, 2005] transaction which is observed to
___________________________________________________ deviate from the profile of the client
1.00 WHAT DOES THE TERM "COVERED and/or the client's past transactions
INSTITUTION" REFER TO? with the covered institution;

(1) banks, non-banks, quasi-banks, trust 6. the transactions is in a way related


entities, and all other institutions and their to an unlawful activity or offense
subsidiaries and affiliates supervised or under this Act that is about to be, is
regulated by the Bangko Sentral ng Pilipinas being or has been committed; or
(BSP);
7. any transactions that is similar or
(2) Insurance companies and all other analogous to any of the foregoing."
institutions supervised or regulated by the (As inserted by R.A. No. 9194)
Insurance Commission; and
1.02 DEFINE "COVERED TRANSACTION".
(3) (i) securities dealers, brokers, salesmen,
investment houses and other similar entities It is a transaction in cash or other
71
equivalent monetary instrument involving a (1) Kidnapping for ransom under Article
total amount in excess of Five hundred 267 of Act No. 3815, otherwise known as
thousand pesos (PhP 500,000.00) within one the Revised Penal Code, as amended;
(1) banking day. (as amended by RA 9194)
(2) Sections 4, 5, 6, 8, 9, 10, 11, 12, 13, 14,
1.03 AS AMENDED, DO COVERED 15 and 16 of Republic Act No. 9165,
PERSONS INCLUDE LAWYERS AND otherwise known as the Comprehensive
ACCOUNTANTS? Dangerous Drugs Act of 2002;

The term covered persons shall (3) Section 3 paragraphs B, C, E, G, H and I


of Republic Act No. 3019, as amended,
exclude lawyers and accountants acting as
otherwise known as the Anti-Graft and
independent legal professionals in relation
Corrupt Practices Act;
to information concerning their clients or
where disclosure of information would (4) Plunder under Republic Act No. 7080,
compromise client confidences or the as amended;
attorney-client relationship: Provided, That
these lawyers and accountants are (5) Robbery and extortion under Articles
authorized to practice in the Philippines and 294, 295, 296, 299, 300, 301 and 302 of the
shall continue to be subject to the provisions Revised Penal Code, as amended;
of their respective codes of conduct and/or
professional responsibility or any of its (6) Jueteng and Masiao punished as illegal
amendments. gambling under Presidential Decree No.
1602;
1.04 WHAT IS THE DUTY OF COVERED
PERSONS? (7) Piracy on the high seas under the
Revised Penal Code, as amended and
Covered persons shall report to the Presidential Decree No. 532;
AMLC all covered transactions and
(8) Qualified theft under Article 310 of the
suspicious transactions within five (5)
Revised Penal Code, as amended;
working days from occurrence thereof,
unless the AMLC prescribes a different (9) Swindling under Article 315 and Other
period not exceeding fifteen (15) working Forms of Swindling under Article 316 of
days. the Revised Penal Code, as amended;

1.05 ARE LAWYERS AND ACCOUNTANTS (10) Smuggling under Republic Act Nos.
REQUIRED TO REPORT COVERED 455 and 1937;
AND SUSPICIOUS TRANSACTIONS?
(11) Violations of Republic Act No. 8792,
Lawyers and accountants acting as otherwise known as the Electronic
independent legal professionals are not Commerce Act of 2000;
required to report covered and suspicious
transactions if the relevant information was (12) Hijacking and other violations under
obtained in circumstances where they are Republic Act No. 6235; destructive arson
subject to professional secrecy or legal and murder, as defined under the Revised
Penal Code, as amended;
professional privilege.
(13) Terrorism and conspiracy to commit
1.06 AS AMENDED BY RA 10365, WHAT
terrorism as defined and penalized under
DOES UNLAWFUL ACTIVITY REFER
Sections 3 and 4 of Republic Act No. 9372;
TO?
(14) Financing of terrorism under Section
As amended by R.A. 10365,
4 and offenses punishable under Sections
Unlawful activity refers to any act or 5, 6, 7 and 8 of Republic Act No. 10168,
omission or series or combination thereof otherwise known as the Terrorism
involving or having direct relation to the Financing Prevention and Suppression Act
following: of 2012:

72
(15) Bribery under Articles 210, 211 and (27) Violation of Presidential Decree No.
211-A of the Revised Penal Code, as 1612, otherwise known as the Anti-
amended, and Corruption of Public Fencing Law;
Officers under Article 212 of the Revised
Penal Code, as amended; (28) Violation of Section 6 of Republic Act
No. 8042, otherwise known as the
(16) Frauds and Illegal Exactions and Migrant Workers and Overseas Filipinos
Transactions under Articles 213, 214, 215 Act of 1995, as amended by Republic Act
and 216 of the Revised Penal Code, as No. 10022;
amended;
(29) Violation of Republic Act No. 8293,
(17) Malversation of Public Funds and otherwise known as the Intellectual
Property under Articles 217 and 222 of the Property Code of the Philippines;
Revised Penal Code, as amended;
(30) Violation of Section 4 of Republic Act
(18) Forgeries and Counterfeiting under No. 9995, otherwise known as the Anti-
Articles 163, 166, 167, 168, 169 and 176 of Photo and Video Voyeurism Act of 2009;
the Revised Penal Code, as amended;
(31) Violation of Section 4 of Republic Act
(19) Violations of Sections 4 to 6 of No. 9775, otherwise known as the Anti-
Republic Act No. 9208, otherwise known as Child Pornography Act of 2009;
the Anti-Trafficking in Persons Act of
2003; (32) Violations of Sections 5, 7, 8, 9, 10(c),
(d) and (e), 11, 12 and 14 of Republic Act
(20) Violations of Sections 78 to 79 of No. 7610, otherwise known as the Special
Chapter IV, of Presidential Decree No. 705, Protection of Children Against Abuse,
otherwise known as the Revised Forestry Exploitation and Discrimination;
Code of the Philippines, as amended;
(21) Violations of Sections 86 to 106 of (33) Fraudulent practices and other
Chapter VI, of Republic Act No. 8550, violations under Republic Act No. 8799,
otherwise known as the Philippine otherwise known as the Securities
Fisheries Code of 1998; Regulation Code of 2000; and

(22) Violations of Sections 101 to 107, and (34) Felonies or offenses of a similar
110 of Republic Act No. 7942, otherwise nature that are punishable under the
known as the Philippine Mining Act of penal laws of other countries.
1995;
1.07 BAR Q. [2010] DEFINE MONEY
(23) Violations of Section 27(c), (e), (f), (g) LAUNDERING. (Sec. 4)
and (i), of Republic Act No. 9147, otherwise
known as the Wildlife Resources Section 4 defines money laundering
Conservation and Protection Act; as:

(24) Violation of Section 7(b) of Republic It is a crime whereby the proceeds of an


Act No. 9072, otherwise known as the unlawful activity as herein defined are
National Caves and Cave Resources transacted, thereby making them appear
Management Protection Act; to have originated from legitimate
sources.
(25) Violation of Republic Act No. 6539,
otherwise known as the Anti-Carnapping 1.08 AS AMENDED BY RA 10365, HOW IS
Act of 2002, as amended;
THE MONEY LAUNDERING
OFFENSE COMMITTED UNDER
(26) Violations of Sections 1, 3 and 5 of
Presidential Decree No. 1866, as amended, SEC.4?
otherwise known as the decree Codifying
the Laws on Illegal/Unlawful Possession, Section 4 provides the ways by which
Manufacture, Dealing In, Acquisition or money laundering is committed. R.A. 10365
Disposition of Firearms, Ammunition or reads as follows:
Explosives;

73
Money laundering is committed proceeds from, or
by any person who, knowing that any instrumentalities used in or
monetary instrument or property intended for use in any unlawful
represents, involves, or relates to the activity as defined in Section 3(i)
proceeds of any unlawful activity: hereof;

(a) transacts said monetary instrument or 2. to require the Land Registration


property; Authority and all its Registries of
Deeds to submit to the AMLC,
(b) converts, transfers, disposes of, moves, reports on all real estate
acquires, possesses or uses said monetary transactions involving an
instrument or property; amount in excess of Five hundred
thousand pesos (P500,000.00)
(c) conceals or disguises the true nature, within fifteen (15) days from the
source, location, disposition, movement or date of registration of the
ownership of or rights with respect to said transaction, in a form to be
monetary instrument or property; prescribed by the AMLC. The
AMLC may also require the Land
(d) attempts or conspires to commit Registration Authority and all its
money laundering offenses referred to in Registries of Deeds to submit
paragraphs (a), (b) or (c); copies of relevant documents of
all real estate transactions.
(e) aids, abets, assists in or counsels the
commission of the money laundering 1.11 EXPLAIN THE PROSECUTION OF
offenses referred to in paragraphs (a), (b) MONEY LAUNDERING OFFENSE
or (c) above; and UNDER SECTION 6.

(f) performs or fails to perform any act as (a) Any person may be charged with
a result of which he facilitates the offense and convicted of both the offense of
of money laundering referred to in money laundering and the unlawful
paragraphs (a), (b) or (c) above. activity as herein defined.

1.09 IS MONEY LAUNDERING COMMITTED (b) Any proceeding relating to the


WHEN THERE IS FAILURE TO unlawful activity shall be given
REPORT A COVERED OR precedence over the prosecution of
SUSPICIOUS TRANSACTION? any offense or violation under this
Act without prejudice to the freezing
and other remedies provided.
Yes, money laundering is also
committed by any covered person who,
1.12 MAY A PERSON BE CHARGED OF
knowing that a covered or suspicious
BOTH THE OFFENSE OF MONEY
transaction is required under this Act to be
LAUNDERING AND THE
reported to the Anti-Money Laundering
UNLAWFUL ACTIVITY?
Council (AMLC), fails to do so.
Yes. As amended by RA 10365,
1.10 AS AMENDED BY RA 10365, WHAT
Section 6(a) provides that any person may be
ARE THE OTHER POWERS OF THE
charged with and convicted of both the
ANTI-MONEY LAUNDERING
offense of money laundering and the
COUNCIL (AMLC)?
unlawful activity as herein defined. In fact,
The Anti-Money Laundering Council under par(b), it further states that the
has the power to: prosecution of any offense or violation under
this Act shall proceed independently of any
1. to apply before the Court of proceeding relating to the unlawful activity.
Appeals, ex parte, for the freezing
1.13 AS AMENDED BY RA 10167, HOW IS
of any monetary instrument or
THE FREEZE ORDER OF MONETARY
property alleged to be laundered,
INSTRUMENT OR PROPERTY
74
RELATED TO UNLAWFUL ACTIVITY 1.15 WHAT IS THE REMEDY OF A PERSON
MADE? (SEC. 10) WHOSE ACCOUNT HAS BEEN
FROZEN?
R.A. No. 10167 further amended
Section 10 to read as follows: A person whose account has been
frozen may file a motion to lift the freeze
Upon a verified ex parte petition order and the court must resolve this motion
by the AMLC and after determination that before the expiration of the freeze order.
probable cause exists that any monetary
instrument or property is in any way 1.16 CAN A COURT ISSUE A TRO OR
related to an unlawful activity as defined INJUNCTION AGAINST THE FREEZE
in Section 3(i) hereof, the Court of Appeals ORDER?
may issue a freeze order which shall be
effective immediately, and which shall not No court shall issue a temporary
exceed six (6) months depending upon the restraining order or a writ of injunction
circumstances of the case: Provided, That against any freeze order, except the Supreme
if there is no case filed against a person Court.
whose account has been frozen within the
period determined by the court, the freeze 1.17 IS AMLC AUTHORIZED TO INQUIRE
order shall be deemed ipso INTO BANK DEPOSITS? (SEC. 11)
facto lifted: Provided, further, That this
new rule shall not apply to pending cases Yes. The law is clear. It states:
in the courts. In any case, the court should
act on the petition to freeze within twenty- Sec.11. Authority to Inquire into Bank
four (24) hours from filing of the petition. Deposits. -- Notwithstanding the
If the application is filed a day before a provisions of Republic Act No. 1405, as
nonworking day, the computation of the amended, Republic Act No. 6426, as
amended, Republic Act No. 8791, and other
twenty-four (24)-hour period shall
laws, the AMLC may inquire into or
exclude the nonworking days.
examine any particular deposit or
investment with any banking institution
1.14 WHICH COURT HAS THE
or non-bank financial institution.
JURISDICTION TO ISSUE FREEZE
ORDER?
1.18 UNDER WHAT CIRCUMSTANCES IS
AMLC AUTHORIZED TO INQUIRE
Pursuant to RA 9160 as amended, it INTO BANK DEPOSITS?
is solely the Court of Appeals which has the
authority to issue a freeze order.
Only upon order of any competent
court in cases of violation of this Act, when it
BAR Q. [2010] There being probable cause has been established that there is probable
to believe that certain deposits cause that the deposits or investments are
and investments in a bank are related to an related to an unlawful activities as defined in
unlawful activity of smuggling by Alessandro Section 3(I) hereof or a money laundering
as defined under Republic Act (RA) No. offense under Section 4 hereof except:
9160, as amended (Anti-Money Laundering
Act) an application for an order to inquiry
that no court order shall be required
into his deposit was filed with the Regional
in cases involving unlawful activities defined
Trial Court. After hearing the application, the
in Sections 3(I)1, (2) and (12).
court granted the application and issued a
freeze order. Pass upon the correctness of
the courts order. 1.19 DOES SECTION 11 AUTHORIZE AN EX-
PARTE ISSUANCE OF A BANK
INQUIRY ORDER?
Suggested Answer: The courts order
is invalid. The RTC has no jurisdiction to issue
No. In the instances where a court
freeze order. Section 10 of R.A. 9160 vests
exclusive jurisdiction to the Court of Appeals order is required for the issuance of the bank
to determine the existence of probable case inquiry order, nothing in Section 11
specifically authorizes that such order may
and to issue freeze order upon application by
the AMLC.
75
be issued ex parte. Republic vs. Eugenio, Jr., property, in whole or in part, directly or
545 SCRA 384(2008) indirectly, related to said report. It is the
preliminary seizure of the property in
1.20 DIFFERENTIATE SECTION 10 FROM question which brings it within the reach of
SECTION 11.
the judicial process. Republic v. Glasgow
Although oriented towards different Credit and Collection Services, Inc. , 542 SCRA
purposes, the freeze order under Section 10 95, January 18, 2008
and the bank inquiry order under Section 11
are similar in that they are extraordinary
provisional reliefs which the AMLC may
avail of to effectively combat and prosecute -oooOOOooo-
money laundering offenses. Crucially,
Section 10 uses specific language to
authorize an ex parte application for the
provisional relief therein, a circumstance CHAPTER X
absent in Section 11. If indeed the ANTI- HAZING LAW
legislature had intended to authorize ex [BAR Q. 2002]
parte proceedings for the issuance of the ___________________________________________________
bank inquiry order, then it could have easily
expressed such intent in the law, as it did
with the freeze order under Section 10. 1.00 DEFINE HAZING (Sec.1) / BAR Q.
[2002] What is hazing as defined by
With respect to freeze orders under law?
Section 10, the implementing rules do
expressly provide that the applications for Section 1 defines hazing as follows:
freeze orders be filed ex parte but no similar
clearance is granted in the case of inquiry It is an initiation rite or practice as
orders under Section 11. Republic vs. a prerequisite for admission into
Eugenio, Jr., 545 SCRA 384(2008) membership in a fraternity, sorority or
organization by placing the recruit,
1.21 IS CRIMINAL CONVICTION A neophyte or applicant in some
embarrassing or humiliating situations
PREREQUISITE FOR CIVIL
such as forcing him to do menial, silly,
FORFEITURE? foolish and other similar tasks or
activities or otherwise subjecting him to
No. A criminal conviction for an physical or psychological suffering or
unlawful activity is not a prerequisite for the injury.
institution of a civil forfeiture proceeding.
Stated otherwise, a finding of guilt for an 1.01 WHAT ARE THE REQUISITES BEFORE
unlawful activity is not an essential element HAZING OR INITIATION RITES
of civil forfeiture. Republic v. Glasgow Credit SHALL BE ALLOWED? (Sec.2)
and Collection Services, Inc., 542 SCRA 95,
A prior written notice to the school
January 18, 2008.
authorities or head of organization must be
1.22 WHAT ARE THE TWO CONDITIONS given seven (7) days before the conduct of
such initiation.
WHEN APPLYING FOR CIVIL
FORFEITURE? Section 2 of the law specifically
provides for the requisites:
RA 9160, as amended, and its
implementing rules and regulations lay There must be a prior written
down two conditions when applying for civil notice to the school authorities or head of
forfeiture: (1) when there is a suspicious organization seven (7) days before the
transaction report or a covered transaction conduct of such initiation.
report deemed suspicious after investigation
by the AMLC and (2) the court has, in a The written notice shall
petition filed for the purpose, ordered the indicate:
seizure of any monetary instrument or
76
1. the period of the initiation activities He is liable when he has actual
which shall not exceed three (3) days, knowledge of the hazing conducted therein
2. shall include the names of those to be but failed to take any action to prevent the
subjected to such activities, and same from occurring.
3. shall further contain an undertaking
that no physical violence be employed 1.06 WHEN SHALL THE PARENTS BE
by anybody during such initiation LIABLE AS PRINCIPALS? (Sec.4)
rites.
Yes, parents may be liable as
1.02 WHAT IS THE DUTY OF THE HEAD OF principals if:
SCHOOL OR ORGANIZATION WHEN
THERE IS INITIATION RITES? a. The hazing is held in the home of
(Sec.3) one of the officers or members of the
fraternity, group, or organization;
Under Section 3, when there is
initiation rites, the following duty is b. The parents have actual
incumbent: knowledge of the hazing conducted therein
but failed to take any action to prevent the
The head of the school or organization or same from occurring.
their representatives must assign at least
two (2) representatives of the school or Section 4 expressly states:
organization, as the case may be, to be
present during the initiation. If the hazing is held in the home of one of
the officers or members of the fraternity,
It is the duty of such representative to see group, or organization, the parents shall
to it that no physical harm of any kind be held liable as principals when they have
shall be inflicted upon a recruit, neophyte actual knowledge of the hazing conducted
or applicant. therein but failed to take any action to
prevent the same from occurring.
1.03 WHO ARE LIABLE IF A PERSON DIES
OR SUFFERS PHYSICAL INJURY 1.07 MAY THE SCHOOL AUTHORITIES
DURING INITIATION RITES? (Sec.4) AND FACULTY MEMBERS BE HELD
LIABLE AS ACCOMPLICES? (Sec.4)
If the person subjected to hazing or
other forms of initiation rites suffers any Yes, the school authorities and
physical injury or dies as a result thereof, the faculty members may be held liable as
officers and members of the fraternity, accomplices subject to the following
sorority or organization who actually conditions:
participated in the infliction of physical harm
shall be liable as principals. a. they consent to the hazing or who
have actual knowledge thereof;
1.04 MAY THE RESPONSIBLE OFFICIALS
OF THE SCHOOL OR OF THE POLICE, b. they failed to take any action to
MILITARY OR CITIZEN'S ARMY prevent the same from occurring.
TRAINING ORGANIZATION, IMPOSE
ADMINISTRATIVE SANCTIONS ON 1.08 CAN THE FORMER OFFICERS AND
PERSONS CHARGED? (Sec.4) ALUMNI BE LIABLE AS PRINCIPALS
EVEN IF THEY WERE ABSENT
Yes, the responsible officials of the DURING THE HAZING? (SEC.4)
school or of the police, military or citizen's
army training organization, may impose the Yes, as long as they actually planned
appropriate administrative sanctions on the the hazing.
person or the persons charged under this
provision even before their conviction.
1.09 WHEN MAY A FRATERNITY OR
SORORITY'S ADVISER LIABLE AS
1.05 WHEN IS THE OWNER OF THE PLACE PRINCIPAL? (Sec.4)
LIABLE AS AN ACCOMPLICE? (Sec.4)
He is liable when he is present when
the acts constituting the hazing were
77
committed and failed to take action to b. Article 134 (Rebellion or
prevent the same from occurring shall be Insurrection);
liable as principal.
c. Article 134-a (Coup d' Etat),
1.10 WHEN DOES THE PRIMA FACIE including acts committed by private
EVIDENCE OF PARTICIPATION AS persons;
PRINCIPAL ARISE? (Sec.4)
d. Article 248 (Murder);
Section 4 clearly states when the
prima facie evidence of participation as e. Article 267 (Kidnapping and
principal arise. It states: Serious Illegal Detention);

The presence of any person during f. Article 324 (Crimes Involving


the hazing is prima facie evidence of Destruction), or under
participation therein as principal unless
he prevented the commission of the acts 1. Presidential Decree No.
punishable herein. 1613 (The Law on Arson);

1.11 MAY A PERSON CHARGED UNDER 2. Republic Act No. 6969


THIS PROVISION BE ENTITLED TO (Toxic Substances and
THE MITIGATING CIRCUMSTANCE Hazardous and Nuclear
OF NO INTENTION TO COMMIT SO Waste Control Act of 1990);
GRAVE A WRONG? (Sec.4)
3. Republic Act No. 5207,
No. Section 4 provides: Any person (Atomic Energy Regulatory
charged under this provision shall not be and Liability Act of 1968);
entitled to the mitigating circumstance
that there was no intention to commit so 4. Republic Act No. 6235
grave a wrong. (Anti-Hijacking Law);

ADDENDUM: 5. Presidential Decree No.


532 (Anti-Piracy and Anti-
Dandy L. Dungo and Gregorio A. Sibal, Jr. vs. Highway Robbery Law of
People of the Philippines, G.R. No. 209464, 1974); and,
July 1, 2015
6. Presidential Decree No.
1866, as amended (Decree
Codifying the Laws on Illegal
-oooOOOooo- and Unlawful Possession,
Manufacture, Dealing in,
Acquisition or Disposition of
Firearms, Ammunitions or
CHAPTER I. HUMAN SECURITY ACT OF Explosives)
2007
(THE ANTI-TERRORISM LAW) 2. Second, the commission of the
Republic Act No. 9372 predicate crime sows and creates a
___________________________________________________ condition of widespread and
extraordinary fear and panic among the
1.00 WHAT ARE THE ELEMENTS OF THE populace.
CRIME OF TERRORISM? (Sec.3)
3. Third, the purpose is in order to
1. First, any person who commits coerce the government to give in to an
an act punishable under any of the unlawful demand.
following provisions of the Revised Penal
Code: 1.01 WILL THE BENEFIT OF PAROLE
UNDER THE INDETERMINATE
a. Article 122 (Piracy in General and SENTENCE LAW APPLY?
Mutiny in the High Seas or in the
Philippine Waters);
78
No. Any person guilty of the crime of Persons who conspire to commit the
terrorism and shall suffer the penalty of forty crime of terrorism shall suffer the penalty
(40) years of imprisonment, without the of forty (40) years of imprisonment.
benefit of parole as provided for under Act
No. 4103, otherwise known as the 1.05 WHO IS AN ACCOMPLICE?
Indeterminate Sentence Law, as amended.
An accomplice is defined under
1.02 EXPLAIN THE ELEMENTS OF THE Section 5. It provides:
CRIME OF TERRORISM.
Any person who, not being a principal
From the definition of the crime of under Article 17 of the Revised Penal
terrorism in the earlier cited Section 3 of RA Code or a conspirator as defined in
9372, the following elements may be culled: Section 4 hereof, cooperates in the
execution of either the crime of terrorism
(1) the offender commits an act or conspiracy to commit terrorism by
punishable under any of the cited previous or simultaneous acts shall
provisions of the Revised Penal Code, suffer the penalty of from seventeen (17)
or under any of the enumerated years, four months one day to twenty (20)
special penal laws; years of imprisonment.

(2) the commission of the predicate 1.06 WHO IS AN ACCESSORY?


crime sows and creates a condition of
widespread and extraordinary fear An accessory is defined under
and panic among the populace; and Section 6. It provides:

(3) the offender is actuated by the Any person who, having


desire to coerce the government to knowledge of the commission of the crime
give in to an unlawful demand. of terrorism or conspiracy to commit
terrorism, and without having
Before a charge for terrorism may be participated therein, either as principal or
filed under RA 9372, there must first be a accomplice under Articles 17 and 18 of the
predicate crime actually committed to Revised Penal Code, takes part subsequent
trigger the operation of the key qualifying to its commission in any of the following
phrases in the other elements of the crime, manner:
including the coercion of the government to
(a) by profiting himself or
accede to an unlawful demand. Southern
assisting the offender to profit by the
Hemisphere Engagement Network, Inc. vs. effects of the crime;
Anti-Terrorism Council G.R. No. 178552,
October 5, 2010. (b) by concealing or destroying the
body of the crime, or the effects, or
1.03 WHEN IS THERE A CONSPIRACY TO instruments thereof, in order to prevent
COMMIT TERRORISM? its discovery;

There is conspiracy when two or (c) by harboring, concealing, or


more persons come to an agreement assisting in the escape of the principal or
concerning the commission of the crime of conspirator of the crime, shall suffer the
terrorism as defined in Section 3 of R.A.9372 penalty of ten (10) years and one day to
and decide to commit the same. twelve (12) years of imprisonment.

1.04 IS MERE CONSPIRACY TO COMMIT 1.07 WHO ARE EXEMPTED FROM BEING
TERRORISM A CRIME? AN ACCESSORY?

Yes, under Section 4 thereof, mere Notwithstanding the above


conspiracy to commit terrorism is paragraph, the penalties prescribed for
punishable. It provides: accessories shall not be imposed upon those
who are such with respect to their spouses,
ascendants, descendants, legitimate,
natural, and adopted brothers and sisters, or
79
relatives by affinity within the same degrees, charged with or suspected of the crime of
with the single exception of accessories terrorism or conspiracy to commit terrorism
falling within the provisions of and fails to deliver such charged or
subparagraph (a). suspected person to the proper judicial
authority within the period of three (3) days
1.08 WHEN MAY SURVEILLANCE OF shall be criminally liable.
SUSPECTS AND INTERCEPTION
AND RECORDING OF 1.11 IS A PUBLIC OFFICER LIABLE UNDER
COMMUNICATIONS ALLOWED? THIS ACT FOR INFIDELITY IN THE
(Section 7) CUSTODY OF DETAINED PERSONS?
(Section 44)
The provisions of Republic Act No.
4200 (Anti-Wire Tapping Law) to the Yes, the law provides that any public
contrary notwithstanding, a police or law officer who has direct custody of a detained
enforcement official and the members of his person or under the provisions of this Act
team may listen to, intercept and record and who by his deliberate act, misconduct, or
communication upon a written order of the inexcusable negligence causes or allows the
Court of Appeals. escape of such detained person shall be
guilty of an
1.09 WHAT IS THE PERIOD OF
DETENTION WITHOUT JUDICIAL 1.12 DOES PROSECUTION UNDER THIS
WARRANT OF ARREST? ACT BAR ANOTHER PROSECUTION
UNDER THE REVISED PENAL CODE
Section 18 of the law provides: OR ANY SPECIAL PENAL LAWS?

The provisions of Article 125 of the Yes, the acquittal of the accused shall
Revised Penal Code to the contrary be a bar to another prosecution for any
notwithstanding, any police or law offense or felony which is necessarily
enforcement personnel, who, having been included in the offense charged. Section 49
duly authorized in writing by the Anti- states:
Terrorism Council has taken custody of a
person charged with or suspected of the When a person has been
crime of terrorism or the crime of prosecuted under a provision of this Act,
conspiracy to commit terrorism shall, upon a valid complaint or information or
without incurring any criminal liability other formal charge sufficient in form and
for delay in the delivery of detained substance to sustain a conviction and
persons to the proper judicial authorities, after the accused had pleaded to the
deliver said charged or suspected person charge, the acquittal of the accused or the
to the proper judicial authority within a dismissal of the case shall be a bar to
period of three days counted from the another prosecution for any offense or
moment the said charged or suspected felony which is necessarily included in the
person has been apprehended or arrested, offense charged under this Act.
detained, and taken into custody by the
said police, or law enforcement personnel: 1.13 IS THE ACCUSED ENTITLED TO
Provided, That the arrest of those DAMAGES FOR UNPROVEN CHARGE
suspected of the crime of terrorism or OF TERRORISM? (Section 50)
conspiracy to commit terrorism must
result from the surveillance under Section Yes, R.A. 9372 provides that upon
7 and examination of bank deposits under acquittal, any person who is accused of
Section 27 of this Act. terrorism shall be entitled to the payment of
damages in the amount of Five hundred
1.10 WHAT IS THE CONSEQUENCE FOR thousand pesos (P500,000.00) for every day
FAILURE TO DELIVER SUSPECT TO that he or she has been detained or deprived
THE PROPER JUDICIAL AUTHORITY of liberty or arrested without a warrant as a
WITHIN THREE DAYS? (Section 20) result of such an accusation.

Any police or law enforcement The award of damages mentioned


personnel who has apprehended or arrested, above shall be without prejudice to the right
detained and taken custody of a person of the acquitted accused to file criminal or
80
administrative charges against those punished in this Act inside the territorial
responsible for charging him with the case of limits of the Philippines;
terrorism.
(3) to individual persons who, although
1.14 ARE THE PROVISIONS OF BOOK I OF physically outside the territorial limits of
THE REVISED PENAL CODE the Philippines, commit any of the said
APPLICABLE TO R.A. 9372? (Section crimes on board Philippine ship or
52) Philippine airship;

Yes, Section 52 explicitly provides (4) to individual persons who commit any
that the provisions of Book I of the Revised of said crimes within any embassy,
Penal Code shall be applicable to this Act. consulate, or diplomatic premises
belonging to or occupied by the Philippine
1.15 DOES R.A. 9372 ALLOW government in an official capacity;
EXTRAORDINARY RENDITION?
(Section 57) (5) to individual persons who, although
physically outside the territorial limits of
No, there is a ban on extraordinary the Philippines, commit said crimes
rendition. No person suspected or convicted against Philippine citizens or persons of
of the crime of terrorism shall be subjected Philippines descent, where their
to extraordinary rendition to any country citizenship or ethnicity was a factor in the
unless his or her testimony is needed for commission of the crime; and
terrorist related police investigations or
judicial trials in the said country and unless (6) to individual persons who, although
his or her human rights, including the right physically outside the territorial limits of
against torture, and right to counsel, are the Philippines, commit said crimes
officially assured by the requesting country directly against the Philippine
and transmitted accordingly and approved government.
by the Department of Justice.
-oooOOOooo-
1.16 CAN AN INDIVIDUAL PERSON,
ALTHOUGH PHYSICALLY OUTSIDE
THE TERRITORIAL LIMITS OF THE
PHILIPPINES BE HELD CRIMINALLY CHAPTER II
LIABLE FOR ACTS OF TERRORISM?
THE ANTI-CHILD ABUSE LAW
Yes, the law has extra-territorial Republic Act No. 7610
application. Section 58 constitute as an ___________________________________________________
exception to the territoriality rule. It
provides: 1.00 DEFINE CHILDREN UNDER THIS ACT.
(Section 3)
Extra-Territorial Application of
this Act. - Subject to the provision of an "Children" refers to person below
existing treaty of which the Philippines is eighteen (18) years of age or those over but
a signatory and to any contrary provision are unable to fully take care of themselves or
of any law of preferential application, the protect themselves from abuse, neglect,
provisions of this Act shall apply: cruelty, exploitation or discrimination
because of a physical or mental disability or
(1) to individual persons who commit any condition.
of the crimes defined and punished in this
Act within the terrestrial domain, interior 1.01 WHAT IS THE DEFINITION OF A
waters, maritime zone, and airspace of the CHILD UNDER THE
Philippines;
IMPLEMENTING RULES OF THIS
LAW?
(2) to individual persons who, although
physically outside the territorial limits of
A mere allegation that the children
the Philippines, commit, conspire or plot
to commit any of the crimes defined and are unable to fully take care of themselves or
protect themselves from abuse, neglect,

81
cruelty, exploitation or discrimination money or profit. The law covers not only
because of a physical or mental disability or child prostitution but also other forms of
condition is not sufficient. sexual abuse.

The implementing rules elaborated 1.04 MUST PHYSICAL ABUSE BE


on this definition when it defined a "child" as HABITUAL?
one who is below 18 years of age or over
said age who, upon evaluation of a No. As defined in the law, child abuse
qualified physician, psychologist or includes physical abuse of the child, whether
psychiatrist, is found to be incapable of the same is habitual or not. 588 SCRA 747,
taking care of herself fully because of a June 5, 2009
physical or mental disability or condition or
1.05 WHAT DOES THE PHRASE
of protecting herself from abuse. People v.
"CIRCUMSTANCES WHICH GRAVELY
Abello, 582 SCRA 378, March 25, 2009 THREATEN OR ENDANGER THE
SURVIVAL AND NORMAL
1.02 DEFINE CHILD ABUSE. DEVELOPMENT OF CHILDREN"
INCLUDE?
Child abuse is defined under Section
3 (b) of R. A. 7610 as: Circumstances which gravely
threaten or endanger the survival and
"Child abuse" refers to the normal development of children" include,
maltreatment, whether habitual or not, but are not limited to, the following;
of the child which includes any of the
following: (1) Being in a community where there is
armed conflict or being affected by armed
(1) Psychological and physical conflict-related activities;
abuse, neglect, cruelty, sexual abuse and
emotional maltreatment; (2) Working under conditions hazardous to
life, safety and normal which unduly
(2) Any act by deeds or words interfere with their normal development;
which debases, degrades or demeans the
intrinsic worth and dignity of a child as a (3) Living in or fending for themselves in the
human being; streets of urban or rural areas without the
care of parents or a guardian or basic
(3) Unreasonable deprivation of services needed for a good quality of life;
his basic needs for survival, such as food
and shelter; or (4) Being a member of a indigenous cultural
community and/or living under conditions of
(4) Failure to immediately give extreme poverty or in an area which is
medical treatment to an injured child underdeveloped and/or lacks or has
resulting in serious impairment of his inadequate access to basic services needed
growth and development or in his for a good quality of life;
permanent incapacity or death.
(5) Being a victim of a man-made or natural
1.03 MUST SEXUAL ABUSE BE HABITUAL? disaster or calamity; or

No, it is inconsequential that the (6) Circumstances analogous to those


sexual abuse occurred only once. As abovestated which endanger the life, safety
expressly provided in Section 3(b) of R.A. or normal development of children.
7610, the abuse may be habitual or not. It
must be observed that Article III of R.A. 7610 1.06 WHAT DOES COMPREHENSIVE
is captioned as Child Prostitution and Other PROGRAM AGAINST CHILD ABUSE,
EXPLOITATION AND
Sexual Abuse because Congress really
DISCRIMINATION" REFER TO?
intended to cover a situation where the
minor may have been coerced or intimidated Comprehensive program against
into lascivious conduct, not necessarily for child abuse, exploitation and discrimination"
82
refers to the coordinated program of services (3) Taking advantage of influence
and facilities to protected children against: or relationship to procure a child as
prostitute;
(1) Child Prostitution and
other sexual abuse; (4) Threatening or using violence
towards a child to engage him as a
(2) Child trafficking; prostitute; or

(3) Obscene publications and (5) Giving monetary consideration


indecent shows; goods or other pecuniary benefit to a child
with intent to engage such child in
(4) Other acts of abuses; and prostitution.

(5) Circumstances which 2.02 ACTS ARE ESSENTIALLY PUNISHED


threaten or endanger the UNDER PARAGRAPH 5 (A) OF RA NO.
survival and normal 7610?
development of children.
Said paragraph essentially punishes
2.00 DEFINE CHILD PROSTITUTION AND acts pertaining to or connected with child
OTHER SEXUAL ABUSE. prostitution. In other words, under
paragraph (a), the child is abused primarily
Article III Section 5 defines Child
for profit.
Prostitution and Other Sexual Abuse as:
In the aforesaid case, the act of
Children, whether male or female,
appellant in convincing AAA, who was 12
who for money, profit, or any other
consideration or due to the coercion or years old at that time, to go with her and
influence of any adult, syndicate or thereafter, offer her for sex to a man in
group, indulge in sexual intercourse or exchange for money makes her liable under
lascivious conduct, are deemed to be paragraph 5(a) of R.A. No. 7610. People vs.
children exploited in prostitution and Dulay, 681 SCRA 638(2012)
other sexual abuse.

2.01 WHAT ACTS ARE PUNISHED 2.03 WHAT ARE THE ELEMENTS OF
UNDER SECTION 5(A) OF PARAGRAPH 5 (a) of RA 7610?
ARTICLE III, CHILD
PROSTITUTION AND OTHER The elements of paragraph 5 (a) of R.A.
SEXUAL ABUSE UNDER R.A. 7610 are the following:
7610?
1. the accused engages in, promotes,
Section 5 (a) of Article III provides: facilitates or induces child prostitution;

The penalty of reclusion temporal 2. the act is done through, but not limited
in its medium period to reclusion perpetua to, the following means:
shall be imposed upon the following:
a. acting as a procurer of a child
(a) Those who engage in or promote, prostitute;
facilitate or induce child prostitution
which include, but are not limited to, the b. inducing a person to be a client of
following: a child prostitute by means of written
or oral advertisements or other
(1) Acting as a procurer of a child
similar means;
prostitute;
c. taking advantage of influence or
(2) Inducing a person to be a client
relationship to procure a child as a
of a child prostitute by means of written or
oral advertisements or other similar prostitute;
means;

83
d. threatening or using violence 2.06 THE LAW USES THE TERM A CHILD
towards a child to engage him as a SUBJECT TO SEXUAL ABUSE. WHEN
prostitute; or IS A CHILD DEEMED SUBJECTED TO
OTHER SEXUAL ABUSE?
e. giving monetary consideration,
goods or other pecuniary benefit to a 1. A child is deemed subjected to
child with intent to engage such child other sexual abuse when the child
in prostitution; indulges in lascivious conduct
under the coercion or influence of
3. the child is exploited or intended to be any adult. R.A. 7610 covers not
exploited in prostitution; and only child prostitution but also
4. the child, whether male or female, is other forms of sexual abuse.
below 18 years of age. People vs. Dulay, Olivarez vs. Court of Appeals, 465
681 SCRA 638(2012) SCRA 465(2005)

2. The Court has ruled that a child is


2.04 ON THE OTHER HAND, WHAT
deemed subject to other sexual
ACTS ARE PUNISHED UNDER
SECTION 5 (B) OF R.A. 7610? abuse when the child is the victim
of lascivious conduct under the
Section 5 (b) of Article III of coercion or influence of any
R.A. 7610 punishes: adult. In lascivious conduct
under the coercion or influence
(b) Those who commit the act of sexual of any adult, there must be some
intercourse of lascivious conduct with a form of compulsion equivalent to
child exploited in prostitution or subject to
intimidation which subdues the
other sexual abuse; Provided, That when
the victims is under twelve (12) years of free exercise of the offended
age, the perpetrators shall be prosecuted partys free will. Jojit Garingarao
under Article 335, paragraph 3, for rape vs. People, G.R. No. 192760, July
and Article 336 of Act No. 3815, as 20, 2011
amended, the Revised Penal Code, for rape
or lascivious conduct, as the case may be: 3. In the case of Navarrete vs.
Provided, That the penalty for lascivious People, 513 SCRA 509(2007), the
conduct when the victim is under twelve Supreme Court ruled that
(12) years of age shall be reclusion
petitioners argument is
temporal in its medium period x x x
untenable. The Court
2.05 WHAT ARE THE ELEMENTS OF SEXUAL emphasized the principle In
ABUSE DEFINED UNDER SECTION People v. Larin (and reiterated in
5(B) OF THIS LAW? several subsequent cases), that
the law covers not only a
The Court in Navarrete v. People, 513 situation in which a child is
SCRA 509 (2007), held that sexual abuse abused for profit but also one in
under Section 5(b) has three elements: which a child, through coercion
or intimidation, engages in any
(1) the accused commits an act of lascivious conduct. It went on to
sexual intercourse or lascivious say that he very title of Section 5,
conduct; Article III (Child Prostitution and
(2) the said act is performed with a Other Sexual Abuse) of RA 7610
child exploited in prostitution or shows that it applies not only to a
subjected to other sexual abuse; and child subjected to prostitution
but also to a child subjected to
(3) the child is below 18 years old. other sexual abuse. A child is
deemed subjected to other
sexual abuse when he or she
84
indulges in lascivious conduct 2.08 MUST SEXUAL INTERCOURSE AND
under the coercion or influence LASCIVIOUS ACT BE HABITUAL?
of any adult. Here, BBB was
sexually abused because she was No, each incident of sexual
coerced or intimidated by intercourse and lascivious act with a child
petitioner (who poked her neck under the circumstances mentioned in Art.
with a knife) to indulge in III, 5 of R.A. No. 7160 is a separate and
lascivious conduct. distinct offense. The offense is similar to rape
or act of lasciviousness under the Revised
4. In addition, such other sexual Penal Code in which each act of rape or
abuse could fall under acts lascivious conduct should be the subject of a
encompassing [O]bscene separate information. Lavides vs. Court of
publications and indecent Appeals, 324 SCRA 321 [2001]
shows mentioned in Section
3(d)(3) of RA 7610. Thus, a child 2.09 IN A CASE WHERE A CHILD IS
performing in indecent shows in EXPLOITED IN PROSTITUTION, IS A
a cabaret is a child subjected to MERE ALLEGATION THAT
other sexual abuse. A customer COMPLAINANT HAD GIVEN
in such cabaret who commits acts CONSENT, A PROPER DEFENSE?
of lasciviousness on the child is No. In People vs. Dulay, 681 SC,RA
liable for violation of Section 5 of 638(2012), the Court held that a child
RA 7610. Also, a photographer exploited in prostitution may seem to
who commits acts of consent to what is being done to her or him
lasciviousness on a child he is and may appear not to complain.
shooting for an obscene
publication is liable for violation However, it further emphasized that
of Section 5 of RA 7610. The a child who is a person below eighteen years
penalty for such acts of of age or those unable to fully take care of
lasciviousness is more severe themselves or protect themselves from
than if the acts are committed abuse, neglect, cruelty, exploitation or
without the special discrimination because of their age or mental
circumstances of the childs disability or condition is incapable of giving
subjection to other sexual rational consent to any lascivious act or
abuse. [Olivarez vs. Court of sexual intercourse.
Appeals, 465 SCRA 465(2005)]
2.10 ON THE OTHER HAND, FOR
2.07 DEFINE SEXUAL ABUSE UNDER THE CONSENSUAL SEXUAL
IMPLEMENTING RULES. INTERCOURSE OR LASCIVIOUS
CONDUCT WITH A MINOR, WHO IS
Section 2(g) of the Rules and NOT EXPLOITED IN
Regulations on the Reporting and PROSTITUTION, TO FALL WITHIN
Investigation of Child Abuse Cases, THE PURVIEW OF SECTION 5(B)
promulgated to implement R.A. No. 7610, OF R.A. NO. 7610, WHAT MUST BE
defines sexual abuse as including the PRESENT?
employment, use, persuasion, inducement,
enticement or coercion of a child to engage In People v. Court of Appeals, 562
in, or assist another person to engage SCRA 619, August 20, 2008, the Supreme
in, sexual intercourse or lascivious conduct or Court succinctly held:
the molestation, prostitution, or incest with
children. People v. Court of Appeals, 562 For consensual sexual intercourse or
SCRA 619, August 20, 2008 lascivious conduct with a minor, who is
not exploited in prostitution, to thus fall
within the purview of Section 5(b) of R.A.

85
No. 7610, persuasion, inducement, INSTEAD OF VIOLATION OF SECTION
enticement or coercion of the child must 5 (B) OF RA 7610?
be present.
The answer is in the affirmative. The
In the case at bar, even if the accused special circumstance that the child is
were charged under Section 5(b), instead of subjected to other sexual abuse is not an
Section 10(a), he would just the same have element in the crime of acts of lasciviousness
been acquitted as there was no allegation under Article 336 of the Revised Penal Code.
that an element of the offense coercion or
influence or intimidation attended its In Olivarez vs. Court of Appeals, 465
commission. SCRA 465(2005), since the Information failed
to allege the second essential element of the
2.11 CAN A PERSON BE CHARGED OF crime as defined in Section 5 of RA 7610,
COMMITTING AN ACT PUNISHED accused Olivarez cannot be convicted for
UNDER SECTION 5(B) AND RAPE AT violation of RA 7610. The Information is void
THE SAME TIME? to charge Olivarez for violation of Section 5
of RA 7610. Otherwise, Olivarezs would be
Under Section 5(b), Article III of deprived of his constitutional right to be
Republic Act (RA) 7610 in relation to RA 8353, informed of the charge against him.
if the victim of sexual abuse is below 12 years However, the Information is sufficient to
of age, the offender should not be prosecuted charge Olivarez for violation of Article 336 of
for sexual abuse but for statutory rape under the RPC. The special circumstance that the
Article 266-A(1)(d) of the Revised Penal Code child is subjected to other sexual abuse is
and penalized with reclusion perpetua. not an element in the crime of acts of
On the other hand, if the victim is 12 lasciviousness under Article 336 of the RPC.
years or older, the offender should be charged Thus, the Information remains valid to
with either sexual abuse under Section 5(b) of charge Olivarez with acts of lasciviousness,
RA 7610 or rape under Article 266-A (except not under Section 5 of RA 7610, but under
paragraph 1[d]) of the Revised Penal Code. Article 336 of the RPC.
However, the offender cannot be accused of
2.14 WHAT ACTS ARE PUNISHED UNDER
both crimes for the same act because his
SECTION 5 (C) OF R.A. 7610?
right against double jeopardy will be
prejudiced. A person cannot be subjected Section 5 (c) of Article III of R.A.
twice to criminal liability for a single criminal 7610 punishes:
act. People vs. Abay, 580 SCRA 235(2009)
Those who derive profit or
2.12 CAN RAPE INSTEAD BE COMPLEXED advantage therefrom, whether as
WITH A VIOLATION OF SECTION 5 manager or owner of the establishment
(B) OF RA 7610? where the prostitution takes place, or of
the sauna, disco, bar, resort, place of
The answer is in the entertainment or establishment serving
negative. Likewise, rape cannot be as a cover or which engages in
complexed with a violation of Section 5(b) of prostitution in addition to the activity for
which the license has been issued to said
RA 7610. Under Section 48 of the Revised
establishment.
Penal Code (on complex crimes), a felony
under the Revised Penal Code (such as rape) 3.00 WHEN IS THERE AN ATTEMPT TO
cannot be complexed with an offense COMMIT CHILD PROSTITUTION?
penalized by a special law. People v. Abay 580 (Section 6)
SCRA 235, February 24, 2009
R.A. 7610 Section 6 on Attempt To
2.13 CAN AN ACCUSED BE CONVICTED OF Commit Child Prostitution provides:
ACTS OF LASCIVIOUSNESS PUNISH
UNDER THE REVISED PENAL CODE There is an attempt to commit
child prostitution under Section 5,
86
paragraph (a) hereof when any person 3.02 WHAT ACTS FALL UNDER THE TERM
who, not being a relative of a child, is ANY OTHER ACTS OF CHILD ABUSE?
found alone with the said child inside the
room or cubicle of a house, an inn, hotel, "Acts of child abuse" under Section
motel, pension house, apartelle or other 10 (a) of R.A. 7610 refers to those acts listed
similar establishments, vessel, vehicle or under Sec. 3 (b) of R.A. 7610, which reads as
any other hidden or secluded area under follows:
circumstances which would lead a
reasonable person to believe that the child Sec. 3. Definition of Terms
is about to be exploited in prostitution and
other sexual abuse. (a) x x x

There is also an attempt to commit (b) "Child Abuse" refers


child prostitution, under paragraph (b) of to maltreatment, whether habitual or not, of
Section 5 hereof when any person is the child which includes any of the
receiving services from a child in a sauna following:
parlor or bath, massage clinic, health club
and other similar establishments. 1) Psychological and physical abuse,
neglect, cruelty, sexual abuse and emotional
A penalty lower by two (2) degrees maltreatment;
than that prescribed for the consummated
felony under Section 5 hereof shall be 2) Any act or deeds or words which
imposed upon the principals of the debases, degrades or demeans the intrinsic
attempt to commit the crime of child worth and dignity of a child as a human
prostitution under this Act, or, in the being;
proper case, under the Revised Penal
Code. 3) Unreasonable deprivation of his
basic needs for survival, such as food and
3.01 WHO IS GUILTY OF CHILD shelter; or
TRAFFICKING? (Section 7)
4) Failure to immediately give
Any person who shall engage in medical treatment to an injured child
trading and dealing with children including, resulting in serious impairment of his
but not limited to, the act of buying and growth and development or in his
selling of a child for money, or for any other permanent incapacity or death. PEOPLE vs.
consideration, or barter, shall suffer the OLAYON, G.R. No. 171863 August 20, 2008
penalty of reclusion temporal to reclusion
perpetua. The penalty shall be imposed in its In Araneta vs. People, G.R. No. 174205,
maximum period when the victim is under
June 27, 2008, 556 SCRA 323(2008), the Court
twelve (12) years of age.
said that Section 10, Article VI of R.A. 7610
The law provides: enumerates the other acts of abuse. The
provision punishes not only those
Section 10. Other Acts of Neglect, Abuse, enumerated under Article 59 of Presidential
Cruelty or Exploitation and Other Decree No. 603, but also four distinct acts,
Conditions Prejudicial to the Child's i.e., (a) child abuse, (b) child cruelty, (c) child
Development. exploitation and (d) being responsible for
conditions prejudicial to the childs
(a) Any person who shall commit any
other acts of child abuse, cruelty or development.
exploitation or to be responsible for
3.03 HOW IS THE WORD OR BETWEEN
other conditions prejudicial to the
child's development including those EXPLOITATION AND BE
covered by Article 59 of Presidential RESPONSIBE FOR OTHER
Decree No. 603, as amended, but not CONDITIONS PREJUDICIAL TO THE
covered by the Revised Penal Code, as CHILDS DEVELOPMENT BE
amended, shall suffer the penalty of CONSTRUED?
prision mayor in its minimum
period.
87
It is a rule in statutory construction SAME AS CHILD ABUSE UNDER
that the word or is a disjunctive term SECTION 10?
signifying dissociation and Section 10(a) of
Republic Act No. 7610 before the phrase be No. Sexual Abuse defined under
responsible for other conditions prejudicial Section 5 of R.A. No. 7610 is a completely
to the childs development supposes that distinct and separate offense from child
there are four punishable acts therein. abuse as defined under Section 10 thereof.

First, the act of child abuse; In People v. Court of Appeals, 562


SCRA 619, August 20, 2008, the Supreme
second, child cruelty; Court declared that inasmuch as Section 10
refers to acts of child abuse prejudicial to the
third, child exploitation; and childs development other than child
fourth, being responsible for prostitution and other sexual abuse under
conditions prejudicial to the childs Section 5, attempt to commit child
development. prostitution, child trafficking, attempt to
commit child trafficking, and obscene
The fourth penalized act cannot be publications and indecent shows, the Court
interpreted, as petitioner suggests, as a of Appeals did not commit grave abuse of
qualifying condition for the three other acts, discretion in holding that x x x sexual abuse
because an analysis of the entire context of [as defined under Section 5] x x x is a
the questioned provision does not warrant completely distinct and separate offense
such construal. Araneta v. People 556 SCRA from child abuse [as defined under Section
323, June 27, 2008 10].

3.04 MUST THE PROSECUTION NEED TO 3.06 ARE THE RULES OF OFFSETTING THE
PROVE THAT THE ACTS OF CHILD MODIFYING CIRCUMSTANCES
ABUSE, CHILD CRUELTY AND CHILD APPLICABLE IN R.A. 7610, IT BEING
EXPLOITATION HAVE RESULTED IN A SPECIAL LAW?
THE PREJUDICE OF THE CHILDS
DEVELOPMENT? Notwithstanding that R.A. 7610 is a
special law, appellant may enjoy the benefits
No. The prosecution need not prove of the Indeterminate Sentence Law. Since the
that the acts of child abuse, child cruelty and penalty provided in R.A. 7610 is taken from
child exploitation have resulted in the the range of penalties in the Revised Penal
prejudice of the child because an act Code, it is covered by the first clause of
prejudicial to the development of the child is Section 1 of the Indeterminate Sentence Law.
different from the former acts.
Anent the penalty, for violation of the
The Rules and Regulations of the provisions of Section 5, Article III of R.A.
questioned statute distinctly and separately 7610, the penalty prescribed is reclusion
defined child abuse, cruelty and exploitation temporal in its medium period to reclusion
just to show that these three acts are perpetua. Therefore, in the absence of any
different from one another and from the act mitigating or aggravating circumstance, the
prejudicial to the childs development. proper imposable penalty is reclusion
Contrary to petitioners assertion, an temporal in its maximum period, the
accused can be prosecuted and be convicted medium of the penalty prescribed by the law.
under Section 10(a), Article VI of Republic People vs. Dulay, 681 SCRA 638(2012)
Act No. 7610 if he commits any of the four
acts therein. Araneta v. People 556 SCRA 323, ADDENDUM:
June 27, 2008 1. Elements of sexual abuse.
3.05 IS SEXUAL ABUSE DEFINED UNDER
In People v. Espinoza, it was held that
SECTION 5 OF R.A. NO. 7610 THE
healed lacerations do not negate rape. In fact,
88
lacerations, whether healed or fresh, are the penalties therefore. The act is known as the
best physical evidence of forcible defloration. "Anti-Torture Act of 2009".
x x x Moreover, in the present case, Dr.Orais 1.01 DEFINE "TORTURE".
clarified to the court that even if the alleged
sexual assault took place in the year 2005 or It refers to an act by which severe
a year after AAA was examined, the old pain or suffering, whether physical or
healed lacerations could still be found. mental, is intentionally inflicted on a person
(People vs. Sanico, G.R. No. 208469, August for such purposes as obtaining from him/her
13, 2014, Reyes, J.) or a third person information or a
confession; punishing him/her for an act
2. Higher penalty when victim is a child. he/she or a third person has committed or is
suspected of having committed; or
The slightest penetration into ones intimidating or coercing him/her or a third
sexual organ distinguishes an act of person; or for any reason based on
lasciviousness from the crime of discrimination of any kind, when such pain
rape. People v. Bonaagua discussed this or suffering is inflicted by or at the
distinction: It must be emphasized, however, instigation of or with the consent or
that like in the crime of rape whereby the acquiescence of a person in authority or
slightest penetration of the male organ or agent of a person in authority. It does not
even its slightest contact with the outer lip or include pain or Buffering arising only from,
the labia majora of the vagina already inherent in or incidental to lawful sanctions.
consummates the crime, in like manner, if the (*same definition under IRR)
tongue, in an act of cunnilingus, touches the
outer lip of the vagina, the act should also be 1.02 WHAT DOES THE TERM "OTHER
considered as already consummating the CRUEL, INHUMAN AND DEGRADING
crime of rape through sexual assault, not the TREATMENT OR PUNISHMENT"
crime of acts of MEAN?
lasciviousness. Notwithstanding, in the
present case, such logical interpretation It refers to a deliberate and
could not be applied. It must be pointed out aggravated treatment or punishment not
that the victim testified that Ireno only enumerated under Section 4 (Acts of torture)
touched her private part and licked it, but did of this Act, inflicted by a person in authority
not insert his finger in her vagina. This or agent of a person in authority against a
testimony of the victim, however, is open to person under his/her custody, which attains
various interpretation, since it cannot be a level of severity causing suffering, gross
identified what specific part of the vagina humiliation or debasement to the latter.
was defiled by Ireno. Thus, in conformity
with the principle that the guilt of an accused 1.03 ENUMERATE THE ACTS OF TORTURE
must be proven beyond reasonable doubt, PROVIDED UNDER SECTION 4.
the statement cannot be the basis for
convicting Ireno with the crime of rape For purposes of this Act, torture shall
through sexual assault. include, but not be limited to, the following:

(a) Physical torture is a form


-oooOOOooo- of treatment or punishment inflicted
by a person in authority or agent of a
person in authority upon another in
his/her custody that causes severe
pain, exhaustion, disability or
CHAPTER III. THE ANTI- TORTURE ACT
dysfunction of one or more parts of
Republic Act 9745
the body, such as:
______________________________________________________
(1) Systematic beating,
headbanging, punching, kicking,
1.00 WHAT IS REPUBLIC ACT No. 9745?
striking with truncheon or rifle butt
or other similar objects, and jumping
It is an act penalizing torture and
on the stomach;
other cruel, inhuman and degrading
treatment or punishment and prescribing
(2) Food deprivation or
forcible feeding with spoiled food,
89
animal or human excreta and other (14) Other analogous acts of
stuff or substances not normally physical torture;
eaten;
1.04 EXPLAIN THE MEANING AND SCOPE
(3) Electric shock; OF "MENTAL/PSYCHOLOGICAL
TORTURE".
(4) Cigarette burning;
burning by electrically heated rods, It refers to acts committed by a
hot oil, acid; by the rubbing of pepper person in authority or agent of a person in
or other chemical substances on authority which are calculated to affect or
mucous membranes, or acids or confuse the mind and/or undermine a
spices directly on the wound(s); person's dignity and morale, such as:

(5) The submersion of the (1) Blindfolding;


head in water or water polluted with
excrement, urine, vomit and/or (2) Threatening a person(s)
blood until the brink of suffocation; or his/her relative(s) with bodily
harm, execution or other wrongful
(6) Being tied or forced to acts;
assume fixed and stressful bodily
position; (3) Confinement in solitary
cells or secret detention places;
(7) Rape and sexual abuse,
including the insertion of foreign (4) Prolonged interrogation;
objects into the sex organ or rectum,
or electrical torture of the genitals; (5) Preparing a prisoner for a
"show trial", public display or public
(8) Mutilation or amputation humiliation of a detainee or prisoner;
of the essential parts of the body such
as the genitalia, ear, tongue, etc.; (6) Causing unscheduled
transfer of a person deprived of
(9) Dental torture or the liberty from one place to another,
forced extraction of the teeth; creating the belief that he/she shall
be summarily executed;
(10) Pulling out of
fingernails; (7) Maltreating a member/s
of a person's family;
(11) Harmful exposure to the
elements such as sunlight and (8) Causing the torture
extreme cold; sessions to be witnessed by the
person's family, relatives or any third
(12) The use of plastic bag party;
and other materials placed over the
head to the point of asphyxiation; (9) Denial of sleep/rest;

(13) The use of psychoactive (10) Shame infliction such as


drugs to change the perception, stripping the person naked, parading
memory. alertness or will of a him/her in public places, shaving the
person, such as: victim's head or putting marks on
his/her body against his/her will;
(i) The administration or
drugs to induce confession (11) Deliberately prohibiting
and/or reduce mental the victim to communicate with any
competency; or member of his/her family; and

(ii) The use of drugs to induce (12) Other analogous acts of


extreme pain or certain mental/psychological torture.
symptoms of a disease; and
1.05 UNDER SECTION 5, WHAT IS THE
MEANING OF THE TERMOTHER
90
CRUEL, INHUMAN AND DEGRADING 1.08 WHO ARE LIABLE AS PRINCIPALS?
TREATMENT OR PUNISHMENT?
1. Any person who actually participated or
It refers to a deliberate and induced another in the commission of
aggravated treatment or punishment not torture or other cruel, inhuman and
enumerated under Section 4 of this Act, degrading treatment or punishment or
inflicted by a person in authority or agent of who cooperated in the execution of the act
a person in authority against another person of torture or other cruel, inhuman and
in custody, which attains a level of severity degrading treatment or punishment by
sufficient to cause suffering, gross previous or simultaneous acts shall be
humiliation or debasement to the latter. liable as principal.

The assessment of the level of 2. Any superior military, police or law


severity shall depend on all the enforcement officer or senior government
circumstances of the case, including the official who issued an order to any lower
duration of the treatment or punishment, its ranking personnel to commit torture for
physical and mental effects and, in some whatever purpose shall be held equally
cases, the sex, religion, age and state of health liable as principals.
of the victim.
3. The immediate commanding officer of the
1.06 UNDER SECTION 6, IS FREEDOM unit concerned of the AFP or the
FROM TORTURE AND OTHER immediate senior public official of the
CRUEL, INHUMAN AND DEGRADING PNP and other law enforcement agencies
TREATMENT OR PUNISHMENT AN shall be held liable as a principal to the
ABSOLUTE BIGHT? crime of torture or other cruel or inhuman
and degrading treatment or punishment-
Yes. Torture and other cruel, for any act or omission, or negligence
inhuman and degrading treatment or committed by him/her that shall have led,
punishment as criminal acts shall apply to all assisted, abetted or allowed, whether
circumstances. directly or indirectly, the commission
thereof by his/her subordinates.
The Implementing Rules and
regulations provide: Requisites:

Section 8. Freedom from Torture a. If he/she has knowledge of or, owing to


and Other Cruel, Inhuman and the circumstances at the time, should
Degrading Treatment or have known that acts of torture or other
Punishment, An Absolute Right. - cruel, inhuman and degrading treatment
Torture and other cruel, inhuman and or punishment shall be committed, is
degrading treatment or punishment being committed, or has been committed
as criminal acts shall apply to all by his/her subordinates or by others
circumstances. A state of war or a within his/her area of responsibility and,
threat of war, internal political
instability, or any other public b. despite such knowledge, did not take
emergency, or a document or any preventive or corrective action either
determination comprising an "order before, during or immediately after its
of battle" shall not and can never be commission, when he/she has the
invoked as a justification for torture authority to prevent or investigate
and other cruel, inhuman and allegations of t;orture or other cruel,
degrading treatment or punishment. inhuman and degrading treatment or
punishment
1.07 WHO ARE THE PERSONS
CRIMINALLY LIABLE UNDER c. failed to prevent or investigate
SECTION 13? allegations of such act, whether
deliberately or due to negligence shall
The law adopted the classification of also be liable as principals.
persons criminally liable under the Revised
Penal Code, to wit: principals, accomplices 1.09 BAR Q. [2011] X, a police officer,
and accessories. placed a hood on the head of W, a
suspected drug pusher, and
91
watched as Y and Z, police trainees, No. Torture should be treated as a
beat up and tortured W to get his separate and independent crime under the
confession. X is liable as law.

A. as accomplice in violation of the Anti- Section 15 is clear. Torture as a


Torture Act. crime shall not absorb or shall not be
B. a principal in violation of the Anti-Torture absorbed by any other crime or felony
Act. committed as a consequence, or as a means
C. a principal in violation of the Anti-Hazing in the conduct or commission thereof. In
Law. which case, torture shall be treated as a
D. an accomplice in violation of the Anti- separate and independent criminal act
Hazing Law. whose penalties shall be imposable without
prejudice to any other criminal liability
1.10 WHO ARE LIABLE AS ACCOMPLICES? provided for by domestic and international
laws.
Any person who, not being included in
Section 26 hereof, cooperate in the
execution of torture or other cruel, inhuman 1.13 WHAT IS THE PENALTY IF ANY OF
and degrading treatment or punishment by THE CRIMES AGAINST PERSONS OR
previous or simultaneous acts is an AGAINST PERSONAL LIBERTY AND
accomplice. (Sec. 27, IRR) SECURITY IS ATTENDED BY
TORTURE AND SIMILAR ACTS?
1.11 WHO ARE LIABLE AS ACCESSORIES?
If the commission of any crime
Any public officer or employee shall punishable under Title Eight (Crimes Against
be liable as an accessory if he/she has Persons) and/or Title Nine (Crimes Against
knowledge that torture or other cruel, Personal Liberty and Security) of the Revised
inhuman and degrading treatment or Penal Code is attended by any of the acts
punishment is being committed and without constituting torture and other cruel,
having participated therein, either as inhuman and degrading treatment or
principal or accomplice, takes part punishment as defined herein, the penalty to
subsequent to its commission in any of the be imposed shall be in its maximum period.
following manner:
1.14 MAY A PERSON WHO IS FOUND TO
(a) By themselves profiting from or HAVE COMMITTED THE CRIME OF
assisting the offender to profit from TORTURE BE BENEFITED FROM ANY
the effects of the act of torture or SUBSEQUENT SPECIAL AMNESTY
other cruel, inhuman and degrading LAW?
treatment or punishment;
No. They are excluded from the
(b) By concealing the act of torture or coverage of special amnesty law.
other cruel, inhuman and degrading
treatment or punishment and/or 1.15 CAN A PERSON BE EXTRADITED
destroying the effects or instruments EVEN IF HE IS IN DANGER OF BEING
thereof in order to prevent its SUBJECTED TO TORTURE ?
discovery; or
No. Section 17 is clear. No person
(c) By harboring, concealing or shall be expelled, returned or extradited to
assisting m the escape of the another State where there are substantial
principal/s in the act of torture or grounds to believe that such person shall
other cruel, inhuman and degrading be in danger of being subjected to torture.
treatment or punishment: Provided,
That the accessory acts are done with 1.16 WHAT IS THE PRESCRIPTIVE PERIOD
the abuse of the official's public OF THE CRIME OF TORTURE?
functions.
It has no prescriptive period. Under
1.12 CAN TORTURE AS A CRIME ABSORB Section 45 of the Implementing Rules and
OR BE ABSORBED BY ANY OTHER Regulations, torture is a non-prescriptible
CRIME? offense. The statute of limitation or

92
prescription period shall not apply to torture
cases. It is not necessary that the demand,
request, or requirement of a sexual favor be
1.17 IS THE REVISED PENAL CODE articulated in a categorical oral or written
APPLICABLE IN THIS ACT? statement. It may be discerned, with equal
certitude, from the acts of the offender.
Yes, Section 22 clearly provides for
the applicability of the Revised Penal Code. It 2. Ma. Lourdes T. Domingo vs.
states that the provisions of the Revised Rogelio R. Rayala
Penal Code insofar as they are applicable G.R. No. 155831 February 18, 2008
shall be suppletory to this Act.
Doctrine:

-oooOOOooo- In prosecuting sexual harassment, it is


not essential that the demand,
request or requirement be made as
a condition for continued
CHAPTER IV employment or for promotion to a
higher position. It is enough that the
THE ANTI-SEXUAL HARASSMENT ACT respondents acts result in creating
OF 1995 an intimidating, hostile or offensive
Republic Act No. 7877 environment for the employee.

1.00 WHO MAY COMMIT SEXUAL


HARASSMENT? -oooOOOooo-

It is committed by an employer,
employee, manager, supervisor, agent of the
CHAPTER V. THE ANTI-TRAFFICKING IN
employer, teacher, instructor, professor,
PERSONS ACT OF 2003
coach, trainor, or any other person who,
Republic Act No. 9208
having authority, influence or moral
___________________________________________________
ascendancy over another in a work or
training or education environment,
demands, requests or otherwise requires 1.00 DEFINE TRAFFICKING IN PERSONS.
any sexual favor from the other, regardless of
whether the demand, request or Trafficking in Persons refers to the
requirement for submission is accepted by recruitment, transportation, transfer or
the object of said act (Sec.3). harboring, or receipt of persons with or
without the victim's consent or knowledge,
1.01 WHO ELSE MAY BE LIABLE? within or across national borders by means
of threat or use of force, or other forms of
coercion, abduction, fraud, deception, abuse
Any person who directs or induces
of power or of position, taking advantage of
another to commit any act of sexual
the vulnerability of the person, or, the giving
harassment as herein defined, or who
or receiving of payments or benefits to
cooperates in the commission thereof by
achieve the consent of a person having
another without which it would not have
control over another person for the purpose
been committed, shall also be held liable
of exploitation which includes at a minimum,
under this Act (Sec.3).
the exploitation or the prostitution of others
or other forms of sexual exploitation, forced
labor or services, slavery, servitude or the
removal or sale of organs.
JURISPRUDENTIAL DOCTRINES
The recruitment, transportation,
1. Dioscoro F. Bacsin vs. Eduardo O. transfer, harboring or receipt of a child for
Wahiman the purpose of exploitation shall also be
G.R. No. 146053 April 30, 2008 considered as "trafficking in persons" even if
it does not involve any of the means set forth
Doctrine: in the preceding paragraph.
93
1.01 DEFINE A CHILD UNDER THIS ACT. 1.06 BAR Q. [2012] When the adoption of
a child is effected under the Inter-
A child refers to a person below Country Adoption Act for the
eighteen (18) years of age or one who is over purpose of prostitution, what is the
eighteen (18) but is unable to fully take care
proper charge against the offender
of or protect himself/herself from abuse,
neglect, cruelty, exploitation, or who is a public officer in relation to
discrimination because of a physical or the exploitative purpose?
mental disability or condition.
a. acts that promote trafficking in persons;
1.02 WHAT IS PROSTITUTION? b. trafficking in persons;
c. qualified trafficking in persons;
Prostitution refers to any act, d. use of trafficked person.
transaction, scheme or design involving the
use of a person by another, for sexual (c) When the crime is committed by a
intercourse or lascivious conduct in syndicate, or in large scale-
exchange for money, profit or any other
consideration. c.1 When is Trafficking deemed
committed by a syndicate?
1.03 WHAT IS FORCED LABOR AND
SLAVERY? If it carried out by a group of three
(3) or more persons conspiring or
They refer to the extraction of work confederating with one another.
or services from any person by means of
enticement, violence, intimidation or threat, c.2 When is Trafficking deemed
use of force or coercion, including committed in large scale?
deprivation of freedom, abuse of authority or
moral ascendancy, debt-bondage or If it committed against three (3) or
deception. more persons, individually or as a
group.
1.04 DEFINE SEXUAL EXPLOITATION.
(d) When the offender is an
It refers to participation by a person in ascendant, parent, sibling, guardian or a
prostitution or the production of person who exercises authority over the
pornographic materials as a result of being trafficked person or when the offense is
subjected to a threat, deception, coercion, committed by a public officer or employee;
abduction, force, abuse of authority, debt
bondage, fraud or through abuse of a victim's (e) When the trafficked person is
vulnerability. recruited to engage in prostitution with any
member of the military or law enforcement
1.05 WHAT ACTS CONSTITUTE agencies;
QUALIFIED TRAFFICKING?
(f) When the offender is a member of
The following are considered as qualified the military or law enforcement agencies;
trafficking: and

(a) When the trafficked person is a (g) When by reason or on occasion of


child; the act of trafficking in persons, the offended
party dies, becomes insane, suffers
(b) When the adoption is effected mutilation or is afflicted with Human
Immunodeficiency Virus (HIV) or the
through Republic Act No. 8043, otherwise
Acquired Immune Deficiency Syndrome
known as the "Inter-Country Adoption Act of (AIDS).(Sec.6).
1995" and said adoption is for the purpose of
prostitution, pornography, sexual 1.07 IS THE USE OF TRAFFICKED
exploitation, forced labor, slavery, PERSONS PUNISHABLE?
involuntary servitude or debt bondage;

94
Yes. Any person who buys or engages (P50,000,000.00) shall be guilty of the
the services of trafficked persons for crime of plunder and shall be punished by
prostitution shall be penalized (Sec.11). reclusion perpetua to death.

1.08 WHAT IS THE PRESCRIPTIVE PERIOD Any person who participated with
IN TRAFFICKING CASES? the said public officer in the commission of
an offense contributing to the crime of
Trafficking cases under this Act shall plunder shall likewise be punished for
prescribe in ten (10) years: Provided, such offense. In the imposition of
however, That trafficking cases committed by penalties, the degree of participation and
a syndicate or in a large scale shall prescribe the attendance of mitigating and
in twenty (20) years.(Sec.12) extenuating circumstances, as provided
by the Revised Penal Code, shall be
1.09 BAR Q.[2012] Conspiracy to commit considered by the court. The court shall
felony is punishable only in cases in declare any and all ill-gotten wealth and
which the law specifically provides their interests and other incomes and
a penalty therefor. Under which of assets including the properties and shares
the following instances are the of stocks derived from the deposit or
conspirators not liable? investment thereof forfeited in favor of the
State.
a. Conspiracy to commit arson.
b. Conspiracy to commit terrorism. 1.01 STATE THE RULE OF EVIDENCE FOR
c. Conspiracy to commit child PURPOSES OF ESTABLISHING THE
pornography. CRIME OF PLUNDER.
d. Conspiracy to commit trafficking
in persons. Section 4 of R.A. 7080 provides:

For purposes of establishing the


-oooOOOooo crime of plunder, it shall not be necessary
to prove each and every criminal act done
by the accused in furtherance of the
scheme or conspiracy to amass,
CHAPTER VI. PLUNDER LAW accumulate or acquire ill-gotten wealth, it
being sufficient to establish beyond
Republic Act No. 7080 reasonable doubt a pattern of overt or
criminal acts indicative of the overall
unlawful scheme or conspiracy.
(underline supplied)
I. UNDER SECTION 1 OF THIS
1.02 WHAT IS THE PRESCRIPTIBE
ACT, DEFINE THE FOLLOWING
PERIOD OF THE CRIME OF
TERMS:
PLUNDER? (Section 6)
1.00 DEFINE THE CRIME OF PLUNDER.
The crime punishable under this Act
(Section 2)
shall prescribe in twenty (20) years.
However, the right of the State to recover
Section 12 of R.A. 7659 amended properties unlawfully acquired by public
Section 2 of R.A. 7080 to read as follows: officers from them or from their nominees or
transferees shall not be barred by
"Sec.2. Definition of the Crime of prescription, laches, or estoppel
Plunder - Any public officer who, by
himself or in connivance with members of 1.03 BAR Q. [2011] Which of the following
his family, relatives by affinity or crimes is an exception to the
consanguinity, business associates, Territoriality Rule in criminal law?
subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth
A. Violation of the Trademark Law
through a combination or series of overt
committed by an alien in the
criminal acts as described in Section 1 (d)
Philippines.
hereof in the aggregate amount or total
value of at least Fifty million pesos
95
B. Forgery of US bank notes ___________________________________________________
committed in the Philippines.
C. Crime committed by a Filipino in 1.00 WHAT ACTS ARE PUNISHED UNDER
the disputed Spratly's Island. THIS ACT? (Sec. 1)
D. Plunder committed at his place of
assignment abroad by a Philippine It shall be unlawful for any person,
public officer not being authorized by all the parties to any
private communication or spoken word, to
1.04 IS THE CRIME OF PLUNDER MALA IN tap any wire or cable, or by using any other
SE OR MALA PROHIBITA? device or arrangement, to secretly overhear,
intercept, or record such communication or
It is malum in se which requires spoken word by using a device commonly
proof of criminal intent. In Estrada v. known as a dictaphone or dictagraph or
Sandiganbayan G.R. No. 148560 dictaphone or walkie-talkie or tape recorder,
November 19, 2001, the Supreme Court or however otherwise described:
held that it is malum in se precisely
because the constitutive crimes are mala It shall also be unlawful for any
in se the element of mens rea must be person, be he a participant or not in the act
proven in a prosecution for plunder. It is or acts penalized in the next preceding
noteworthy that the amended sentence, to knowingly possess any tape
information alleges that the crime of record, wire record, disc record, or any other
plunder was committed willfully, such record, or copies thereof, of any
unlawfully and criminally. It thus alleges communication or spoken word secured
guilty knowledge on the part of either before or after the effective date of this
petitioner. Act in the manner prohibited by this law; or
to replay the same for any other person or
In support of his contention that the persons; or to communicate the contents
statute eliminates the requirement of thereof, either verbally or in writing, or to
mens rea and that is the reason he claims furnish transcriptions thereof, whether
the statute is void, petitioner cites the complete or partial, to any other person:
following remarks of Senator Taada
made during the deliberation on S.B. Provided, That the use of such record
No.733 or any copies thereof as evidence in any civil,
criminal investigation or trial of offenses
The application of mitigating and mentioned in section 3 hereof, shall not
extenuating circumstances in the
Revised Penal Code to prosecutions 1.02 WHEN IS THE COMMISSION OF SUCH
under the Anti-Plunder Law indicates ACTS DEEMED LAWFUL? (Sec.3)
quite clearly that mens rea is an element
of plunder since the degree of
It is deemed lawful when committed
responsibility of the offender is
by any peace officer, who is authorized by a
determined by his criminal intent.
written order of the Court, to execute any of
the acts declared to be unlawful in the two
The legislative declaration in R.A.
preceding sections in cases involving the
No.7659 that plunder is a heinous offense
crimes of treason, espionage, provoking war
implies that it is a malum in se. For when
and disloyalty in case of war, piracy, mutiny
the acts punished are inherently immoral
in the high seas, rebellion, conspiracy and
or inherently wrong, they are mala in se
proposal to commit rebellion, inciting to
and it does not matter that such acts are
rebellion, sedition, conspiracy to commit
punished in a special law, especially since
sedition, inciting to sedition, kidnapping as
in the case of plunder the predicate
defined by the Revised Penal Code, and
crimes are mainly mala in se.
violations of Commonwealth Act No. 616,
punishing espionage and other offenses
-oooOOOooo-
against national security.

1.03 IS THE COMMUNICATION OR


CHAPTER VII. THE ANTI WIRE-TAPPING INFORMATION OBTAINED IN
ACT VIOLATION OF THIS ACT
Republic Act No. 4200 ADMISSIBLE IN EVIDENCE? (Sec.4)
96
No. It shall not be admissible in Provided. That possession of three
evidence in any judicial, quasi-judicial, (3) or more articles of child
legislative or administrative hearing or pornography of the same form shall
investigation. be prima facie evidence of the intent
to sell, distribute, publish or
broadcast;

-oooOOOooo- (e) To knowingly, willfully and


intentionally provide a venue for the
commission of prohibited acts as, but
not limited to, dens, private rooms,
CHAPTER VIII. THE ANTI-CHILD cubicles, cinemas, houses or in
PORNOGRAPHY ACT OF 2009 establishments purporting to be a
legitimate business;
Republic Act No. 9775
(f) For film distributors, theaters and
___________________________________________________ telecommunication companies, by
themselves or in cooperation with
1.00 DEFINE "CHILD PORNOGRAPHY". other entities, to distribute any form
of child pornography;
It refers to any representation,
whether visual, audio, or written (g) For a parent, legal guardian or
combination thereof, by electronic, person having custody or control of a
mechanical, digital, optical, magnetic or any child to knowingly permit the child to
other means, of child engaged or involved in engage, participate or assist in any
real or simulated explicit sexual activities. form of child pornography;

1.01 DEFINE "INTERNET ADDRESS". (h) To engage in the luring or


grooming of a child;
It refers to a website, bulletin board
service, internet chat room or news group, or (i) To engage in pandering of any
any other internet or shared network form of child pornography;
protocol address.
(j) To willfully access any form of
1.02 WHAT ARE THE UNLAWFUL OR child pornography;
PROHIBITED ACTS ENUMERATED
UNDER THE LAW? (Sec.4) (k) To conspire to commit any of the
prohibited acts stated in this section.
The following are the unlawful or Conspiracy to commit any form of
prohibited acts: child pornography shall be
committed when two (2) or more
persons come to an agreement
(a) To hire, employ, use, persuade,
concerning the commission of any of
induce or coerce a child to perform in
the said prohibited acts and decide to
the creation or production of any
commit it; and
form of child pornography;
(l) To possess any form of child
(b) To produce, direct, manufacture
pornography.
or create any form of child
pornography;
1.03 BAR Q. [2011] Mr. P owns a
boarding house where he
(c) To publish offer, transmit, sell,
knowingly allowed children
distribute, broadcast, advertise,
to be videotaped while
promote, export or import any form
simulating explicit sexual
of child pornography;
activities. What is Mr. P's
criminal liability, if any?
(d) To possess any form of child
pornography with the intent to sell, A. Corruption of minors under the
distribute, publish, or broadcast: Penal Code
97
B. Violation of the Child Pornography REASONABLE EXPECTATION OF
Act PRIVACY".
C. Violation of the Child Abuse Law
D. None It means believe that he/she could
disrobe in privacy, without being concerned
1.04 WHEN IS A CRIME CONSIDERED AS that an image or a private area of the person
SYNDICATED CHILD was being captured; or circumstances in
PORNOGRAPHY? (Sec.5) which a reasonable person would believe
that a private area of the person would not be
The crime of child pornography is visible to the public, regardless of whether
deemed committed by a syndicate if carried that person is in a public or private place.
out by a group of three (3) or more persons
conspiring or confederating with one 1.04 WHAT ARE THE PROHIBITED ACTS
another. ENUMERATED UNDER SECTION 4?

-oooOOOooo- It is prohibited and declared


unlawful for any person:

CHAPTER IX. THE ANTI-PHOTO AND (a) To take photo or video


VIDEO VOYEURISM ACT OF 2009 coverage of a person or group of
Republic Act No. 9995 persons performing sexual act or any
___________________________________________________ similar activity or to capture an
image of the private area of a
1.00 DEFINE "BROADCAST". person/s such as the naked or
undergarment clad genitals, public
It means to make public, by any area, buttocks or female breast
means, a visual image with the intent without the consent of the person/s
that it be viewed by a person or involved and under circumstances in
persons. which the person/s has/have a
reasonable expectation of privacy;
1.01 DEFINE "CAPTURE".
(b) To copy or reproduce, or
With respect to an image, it means to to cause to be copied or reproduced,
videotape, photograph, film, record such photo or video or recording of
by any means, or broadcast. sexual act or any similar activity with
or without consideration;
1.02 DEFINE "PHOTO OR VIDEO
VOYEURISM ". (c) To sell or distribute, or
cause to be sold or distributed, such
It means the act of taking photo or photo or video or recording of sexual
video coverage of a person or group of act, whether it be the original copy or
persons performing sexual act or any similar reproduction thereof; or
activity or of capturing an image of the
private area of a person or persons without (d) To publish or broadcast,
the latter's consent, under circumstances in or cause to be published or
which such person/s has/have a reasonable broadcast, whether in print or
expectation of privacy, or the act of selling, broadcast media, or show or exhibit
copying, reproducing, broadcasting, sharing, the photo or video coverage or
showing or exhibiting the photo or video recordings of such sexual act or any
coverage or recordings of such sexual act or similar activity through VCD/DVD,
similar activity through VCD/DVD, internet, internet, cellular phones and other
cellular phones and similar means or device similar means or device.
without the written consent of the person/s
involved, notwithstanding that consent to 1.05 IS CONSENT TO RECORD OR TAKE
record or take photo or video coverage of PHOTO OR VIDEO COVERAGE
same was given by such person. CONSTITUTES AS AN EXCEPTION TO
THE PROHIBITION UNDER
1.03 DEFINE "UNDER CIRCUMSTANCES IN PARAGRAPHS (B), (C) AND (D)?
WHICH A PERSON HAS A
98
No. The prohibition shall apply internet, cellular phones and similar means or
notwithstanding that consent to record or device.
take photo or video coverage of the same was
given by such person/s. Any person who If at all, he committed acts of
violates this provision shall be liable (Sec.4). lasciviousness, as obviously, the element of
lewdness is present in this case.
1.06 WHO IS EXEMPTED FROM THE
COVERAGE OF THE LAW?
-oooOOOooo-
Any peace officer, who is authorized
by a written order of the court, to use the
record or any copy thereof as evidence in any
civil, criminal investigation or trial of the CHAPTER X. THE ANTI-DEATH PENALTY
crime of photo or video voyeurism. LAW
Republic Act No. 9346
1.07 IF ANY RECORD, PHOTO OR VIDEO,
OR COPY THEREOF IS OBTAINED IN ___________________________________________________
VIOLATION OF THIS LAW, WILL IT
BE ADMISSIBLE IN EVIDENCE? 1.00 IS THE IMPOSITION OF DEATH
PENALTY ALLOWED UNDER THE
No. It is inadmissible in any judicial, LAW?
quasi-judicial, legislative or administrative
hearing or investigation (Sec.7). No, the imposition of the penalty of
death is prohibited.
1.08 MODIFIED BAR Q. [2010] A widower
of ten years, septuagenarian Canuto 1.01 IN LIEU OF THE DEATH PENALTY,
felt that he had license to engage in WHAT SHOULD BE IMPOSED?
voyeurism. If not peeping into his
neighbors rooms through his The following shall be imposed in
powerful single-cylinder telescope, lieu of the death penalty-
he would trail young, shapely
damsels along the hallways of (a) the penalty of reclusion perpetua,
shopping malls. While going up the when the law violated makes use of
escalator, he stayed a step behind a the nomenclature of the penalties of
mini-skirted one, and in a moment the Revised Penal Code; or
of excitement, put his hand on her
left hip and massaged it. The damsel (b) the penalty of life imprisonment,
screamed and hollered for help. when the law violated does not make
Canuto was apprehended and use of the nomenclature of the
brought up on inquest. May he be penalties of the Revised Penal
liable for violation of R.A. 9995? Code.(Secs. 1 and 2)

Suggested Answer: No, the acts 1.02 ARE PERSONS CONVICTED OF


committed by Canuto do not fall under the OFFENSES PUNISHED WITH
definition of voyeurism nor under the RECLUSION PERPETUA, OR WHOSE
prohibited acts enumerated under Section 4 SENTENCES WILL BE REDUCED TO
of the Anti- Photo and Video Voyeurism Act of RECLUSION PERPETUA ELIGIBLE
2009. FOR PAROLE UNDER THE
INDETERMINATE SENTENCE LAW?
There was no taking photo or video
coverage of a person performing sexual act or No. Person convicted of offenses
any similar activity or of capturing an image punished with reclusion perpetua, or whose
of the private area of a person under sentences will be reduced to reclusion
circumstances in which such person has a perpetua, by reason of this Act, shall not be
reasonable expectation of privacy, nor there eligible for parole under Act No. 4180,
was an act of selling, copying, reproducing, otherwise known as the Indeterminate
broadcasting, sharing, showing or exhibiting Sentence Law, as amended. (Sec.3)
the photo or video coverage or recordings of
sexual act or similar activity through
99
-ooo000ooo- reconciliation of the offender, the offended
and the community; and reassurance to the
offender that he/she can be reintegrated into
society. It also enhances public safety by
CHAPTER XI. JUVENILE JUSTICE AND activating the offender, the victim and the
WELFARE ACT OF 2006 community in prevention strategies.

Republic Act No. 9344 1.05 DEFINE VICTIMLESS CRIMES.

___________________________________________________ It refers to offenses where there is no


private offended party.
1.00 WHO IS A CHILD IN CONFLICT WITH
THE LAW? 1.06 WHAT IS THE MINIMUM AGE OF
CRIMINAL RESPONSIBILITY
A child in conflict with the law refers UNDER R.A. 9334? (Sec.6)
to a child who is alleged as, accused of, or BAR Q. [2012]
adjudged as, having committed an offense
under Philippine laws. A child fifteen (15) years of age or
under at the time of the commission of the
1.01 WHAT IS A DIVERSION PROGRAM?
BAR Q.[2009] offense shall be exempt from criminal
liability. However, the child shall be
It refers to the program that the child subjected to an intervention program
in conflict with the law is required to pursuant to Section 20 of this Act.
undergo after he/she is found responsible
for an offense without resorting to formal A child above fifteen (15) years but
court proceedings. below eighteen (18) years of age shall
likewise be exempt from criminal liability
1.02 WHAT IS INTERVENTION? BAR and be subjected to an intervention program,
Q.[2009] unless he/she has acted with discernment, in
which case, such child shall be subjected to
It refers to a series of activities which
are designed to address issues that caused the appropriate proceedings in accordance
the child to commit an offense. It may take with this Act.
the form of an individualized treatment
program which may include counseling, The exemption from criminal liability
skills training, education, and other activities herein established does not include
that will enhance his/her psychological, exemption from civil liability, which shall be
emotional and psycho-social well-being. enforced in accordance with existing laws.

1.03 WHAT IS THE JUVENILE JUSTICE AND 1.07 WHAT IS THE MEANING OF THE
WELFARE SYSTEM? TERM ACTED WITH
DISCERNMENT?
It refers to a system dealing with
children at risk and children in conflict with Sec. 6 of Republic Act No. 9344
the law, which provides child-appropriate exempts a child above fifteen (15) years but
proceedings, including programs and below eighteen (18) years of age from
services for prevention, diversion,
criminal liability, unless the child is found to
rehabilitation, re-integration and aftercare
have acted with discernment, in which case,
to ensure their normal growth and the appropriate proceedings in accordance
development. with the Act shall be observed.
1.04 DEFINE RESTORATIVE JUSTICE. Discernment is that mental
capacity of a minor to fully appreciate the
It refers to a principle which requires consequences of his unlawful act. Such
a process of resolving conflicts with the capacity may be known and should be
maximum involvement of the victim, the determined by taking into consideration all
offender and the community. It seeks to the facts and circumstances afforded by the
obtain reparation for the victim;
100
records in each case. The surrounding b) baptismal certificate or
circumstances must demonstrate that the c) any other pertinent documents.
minor knew what he was doing and that it
was wrong. Such circumstance includes the 1.11 IN THE ABSENCE OF THESE
gruesome nature of the crime and the DOCUMENTS, WHERE MAY THE
minors cunning and shrewdness. AGE BE BASED UPON?

In People vs. Jacinto, G.R. No. 182239, In the absence of these documents,
March 16, 2011, the Supreme Court agreed age may be based on:
with the Court of Appeals that: (1) choosing
an isolated and dark place to perpetrate the d) information from the child
crime, to prevent detection[;] and (2) boxing himself, testimonies of other
the victim x x x, to weaken her defense are persons,
indicative of then seventeen (17) year-old e) the physical appearance of the
appellants mental capacity to fully child and other relevant
understand the consequences of his unlawful evidence.
action.
1.12 IN CASE OF DOUBT, HOW MUST THE
Discernment is again shown in the AGE BE RESOLVED?
case of Robert Remiendo vs. People, G.R. No.
184874, 09 October 2009. Since the accused is In case of doubt as to the age of the
above fifteen (15) and below eighteen (18), child, it shall be resolved in his favor.
the finding of discernment is necessary to
determine if he would be exempted from 1.13 WHAT IS THE PROCEDURE IF A
criminal liability. In this case, his act of
PERSON CONTESTS THE AGE OF THE
waiting for the victims parents to leave the
house before defiling the latter and CHILD? (Sec.7)
threatening to kick her if she should shout
Any person contesting the age of the
prove that petitioner can differentiate what
is right and wrong. child in conflict with the law prior to the
filing of the information in any appropriate
1.08 WHO IS ENTITLED TO THE court may file a case in a summary
PRESUMPTION OF MINORITY? proceeding for the determination of age
before the Family Court which shall decide
The child in conflict with the law shall the case within twenty-four (24) hours from
enjoy the presumption of minority. He shall receipt of the appropriate pleadings of all
enjoy all the rights of a child in conflict with interested parties.
the law until he is proven to be eighteen (18)
years old or older. If a case has been fiied against the
child in conflict with the law and is pending
1.09 BAR Q. [2011] A child in conflict in the appropriate court, the person shall file
with the law shall enjoy all the
a motion to determine the age of the child in
rights of a child until-
the same court where the case is pending.
A. he is found to have acted with Pending hearing on the said motion,
discernment. proceedings on the main case shall be
B. his minority is set off by some suspended.
aggravating circumstance.
C. he is proved to be 18 years or older. In all proceedings, law enforcement
D. he forfeits such rights by gross officers, prosecutors, judges and other
misconduct and immorality. government officials concerned shall exert
all efforts at determining the age of the child
1.10 HOW IS THE AGE OF A CHILD
in conflict with the law.
DETERMINED UNDER THIS ACT?

The age of a child may be determined 1.14 HOW MUST THE PROVISONS OF THIS
from the: LAW BE CONSTRUED?

a) child's birth certificate,


101
In case of doubt, the interpretation of certified by the local social welfare and
any of the provisions of this Act, including its development officer, shall give the offended
implementing rules and regulations (IRRs), party the option to institute the appropriate
shall be construed liberally in favor of the legal action.
child in conflict with the law.
The period of prescription of the
1.15 DEFINE THE TERM BEST INTEREST offense shall be suspended during the
OF THE CHILD effectivity of the diversion program, but not
exceeding a period of two (2) years.
It refers to the totality of the
circumstances and conditions which are PROSECUTION
most congenial to the survival, protection
and feelings of security of the child and most 3.00 CITE THE INSTANCES WHERE THE
encouraging to the child's physical, PROSECUTOR SHALL CONDUCT A
psychological and emotional development. It PRELIMINARY INVESTIGATION.
also means the least detrimental available (Sec. 33)
alternative for safeguarding the growth and
development of the child. The prosecutor shall conduct a
preliminary investigation in the following
TREATMENT OF CHILDREN BELOW THE instances:
AGE OF CRIMINAL RESPONSIBILITY
(a) when the child in conflict with the
DIVERSION PROGRAM law does not qualify for diversion:

2.00 WHEN IS A CONTRACT OF DIVERSION (b) when the child, his/her parents
PROPER? (Sec. 26) or guardian does not agree to
diversion as specified in Sections 27
If during the conferencing, and 28; and
mediation or conciliation, the child
voluntarily admits the commission of the act, (c) when considering the
a diversion program shall be developed assessment and recommendation of
when appropriate and desirable as the social worker, the prosecutor
determined under Section 30. Such determines that diversion is not
admission shall not be used against the child appropriate for the child in conflict
in any subsequent judicial, quasi-judicial or with the law.
administrative proceedings.
Upon serving the subpoena and the
The diversion program shall be affidavit of complaint, the prosecutor shall
effective and binding if accepted by the notify the Public Attorney's Office of such
parties concerned. The acceptance shall be in service, as well as the personal information,
writing and signed by the parties concerned and place of detention of the child in conflict
and the appropriate authorities. The local with the law.
social welfare and development officer shall
supervise the implementation of the Upon determination of probable
diversion program. The diversion cause by the prosecutor, the information
proceedings shall be completed within forty- against the child shall be filed before the
five (45) days. The period of prescription of Family Court within forty-five (45) days from
the offense shall be suspended until the the start of the preliminary investigation.
completion of the diversion proceedings but
not to exceed forty-five (45) days. COURT PROCEEDINGS

The child shall present 4.00 MUST MINORITY BE CONSIDERED IN


himself/herself to the competent authorities DETERMINING THE AMOUNT OF
that imposed the diversion program at least BAIL? (Sec. 34)
once a month for reporting and evaluation of
the effectiveness of the program. Yes, for purposes of recommending
the amount of bail, the privileged mitigating
Failure to comply with the terms and circumstance of minority shall be
conditions of the contract of diversion, as considered.
102
4.01 MAY A CHILD BE RELEASED ON at the time of the pronouncement of
RECOGNIZANCE? (Sec. 35) his/her guilt.

Yes, the law provides that where a Upon suspension of sentence and
child is detained, the court shall order: after considering the various
circumstances of the child, the court shall
(a) the release of the minor impose the appropriate disposition
on recognizance to his/her measures as provided in the Supreme
parents and other suitable Court Rule on Juveniles in Conflict with the
person; Law.

(b) the release of the child in 4.04 WHEN MAY THE CHILD IN CONFLICT
conflict with the law on bail; WITH THE LAW BE RETURNED TO
or THE COURT? (Sec. 40)

(c) the transfer of the minor The law expressly provides:


to a youth detention
home/youth rehabilitation If the court finds that the objective
center. of the disposition measures imposed upon
the child in conflict with the law have not
The court shall not order the been fulfilled, or if the child in conflict with
detention of a child in a jail pending trial or the law has willfully failed to comply with
hearing of his/her case. the conditions of his/her disposition or
rehabilitation program, the child in
4.02 WHEN IS AUTOMATIC SUSPENSION conflict with the law shall be brought
OF SENTENCE APPLICABLE? (Sec.38) before the court for execution of
judgment.
The court shall place the child under
suspended sentence instead of Query: What must the court do if
pronouncement of judgment of conviction the child in conflict with the law has
under the following: reached 18 years of age while under
suspended sentence?
Once the child who is under
eighteen (18) years of age at the time of the If said child in conflict with the law
commission of the offense is found guilty of has reached eighteen (18) years of age while
the offense charged, the court shall under suspended sentence, the court shall
determine and ascertain any civil liability determine whether:
which may have resulted from the offense
committed. a) to discharge the child in
accordance with this Act;
However, instead of pronouncing b) to order execution of sentence;
the judgment of conviction, the court shall or
place the child in conflict with the law c) to extend the suspended
under suspended sentence, without need sentence for a certain specified
of application. period or until the child reaches
the maximum age of twenty-one
4.03 WHAT IF A CHILD REACHES THE AGE (21) years. .
OF EIGHTEEN YEARS (18) OF AGE
AT THE TIME OF THE 4.05 THE LAW ENTITLES SUSPENSION OF
PRONOUNCEMENT OF GUILT, MUST SENTENCE OF THE JUVENILE WHO IS
THE SUSPENSION STILL BE ALREADY EIGHTEEN YEARS (18) OF
APPLIED?(Sec. 38) AGE OR MORE AT THE TIME OF THE
PRONOUNCEMENT OF HIS/HER
Yes, the law further provides: GUILT. MAY A PERSON, THEREFORE,
WHO IS NOW BEYOND THE AGE OF
That suspension of sentence shall TWENTY-ONE (21) YEARS, STILL
still be applied even if the juvenile is AVAIL OF THE PROVISIONS OF
already eighteen years (18) of age or more SECTIONS 38 AND 40 OF RA 9344 AS
TO HIS SUSPENSION OF SENTENCE?
103
No. A person who is now beyond the SEC. 40. Return of the Child in Conflict
with the Law to Court.If the court finds that
age of twenty-one (21) years cannot avail of
the objective of the disposition measures
the provisions of Sections 38 and 40 of R .A. imposed upon the child in conflict with the
law have not been fulfilled, or if the child in
9344 as to his suspension of sentence.
conflict with the law has willfully failed to
Section 38 states: comply with the condition of his/her
disposition or rehabilitation program, the
SEC. 38. Automatic Suspension of child in conflict with the law shall be brought
Sentence.Once the child who is under before the court for execution of judgment.
eighteen (18) years of age at the time of the
commission of the offense is found guilty of If said child in conflict with the law
the offense charged, the court shall determine has reached eighteen (18) years of age while
and ascertain any civil liability which may under suspended sentence, the court shall
have resulted from the offense committed. determine whether to discharge the child in
However, instead of pronouncing the accordance with this Act, to order execution
judgment of conviction, the court shall place of sentence, or to extend the suspended
the child in conflict with the law under sentence for a certain specified period or until
suspended sentence, without need of the child reaches the maximum age of twenty-
application: Provided, however, That one (21) years.
suspension of sentence shall still be applied
even if the juvenile is already eighteen years Hence, in PEOPLE vs. ALLEN
(18) of age or more at the time of the UDTOJAN MANTALABA, G.R. No. 186227, July
pronouncement of his/her guilt.
20, 2011, the Highest Tribunal ruled that the
Upon suspension of sentence and appellant, who is now beyond the age of
after considering the various circumstances twenty-one (21) years, can no longer avail of
of the child, the court shall impose the the provisions of Sections 38 and 40 of RA
appropriate disposition measures as 9344 as to his suspension of sentence,
provided in the Supreme Court [Rule] on because such is already moot and academic.
Juveniles in Conflict with the Law. It noted that this would not have happened if
the CA, when this case was under its
Sec. 68. Children Who Have Been
Convicted and are Serving Sentence. jurisdiction, suspended the sentence of the
Persons who have been convicted and are
appellant. The records show that the
serving sentence at the time of the effectivity
of this Act, and who were below the age of appellant filed his notice of appeal at the age
eighteen (18) years at the time of the
of 19 (2005), hence, when RA 9344 became
commission of the offense for which they were
convicted and are serving sentence, shall effective in 2006, appellant was 20 years old,
likewise benefit from the retroactive
and the case having been elevated to the CA,
application of this Act. x x x
the latter should have suspended the
While Section 38 of RA 9344
sentence of the appellant because he was
provides that suspension of sentence can still
already entitled to the provisions of Section
be applied even if the child in conflict with
38 of the same law, which now allows the
the law is already eighteen (18) years of age
suspension of sentence of minors regardless
or more at the time of the pronouncement of
of the penalty imposed as opposed to the
his/her guilt, Section 40 of the same law
provisions of Article 192 of P.D. 603.
limits the said suspension of sentence until
the child reaches the maximum age of 21. Nevertheless, the Supreme Court

The provision states: held that the appellant shall be entitled to

104
appropriate disposition under Section 51 of Yes. The child in conflict with the law
shall be credited in the services of his/her
RA No. 9344, which provides for the
sentence with the full time spent in actual
confinement of convicted children as commitment and detention under this Act.
follows:
4.09 MAY THE CHILD IN CONFLICT OF THE
LAW BE INSTEAD PLACED ON
SEC. 51. Confinement of Convicted PROBATION AS AN ALTERNATIVE
Children in Agricultural Camps and other TO IMPRISONMENT? (Sec.42)
Training Facilities.A child in conflict with
the law may, after conviction and upon order Yes. Section 42 is explicit:
of the court, be made to serve his/her
sentence, in lieu of confinement in a regular
The court may, after it shall have
penal institution, in an agricultural camp and
convicted and sentenced a child in conflict
other training facilities that may be
with the law, and upon application at any
established, maintained, supervised and
time, place the child on probation in lieu of
controlled by the BUCOR, in coordination with
service of his/her sentence taking into
the DSWD.
account the best interest of the child. For
this purpose, Section 4 of Presidential
4.06 BAR Q. [2012] A child over fifteen
Decree No. 968, otherwise known as the
(15) years of age acted with "Probation Law of 1976", is hereby
discernment in the commission of amended accordingly.
murder. What is the duty of the
court if he is already over eighteen 5.00 MAY A MINOR BE MADE TO SERVE
(18) years of age at the time of the HIS SENTENCE IN AGRICULTURAL
determination of his guilt for the
CAMPS AND OTHER TRAINING
offense charged?
FACILITIES? (Sec. 51)
a. The court shall pronounce the
judgment of conviction. Yes, R.A. 9344 is explicit:
b. The court shall place the child
under suspended sentence for a Sec. 51. Confinement of Convicted Children in
specified period or until he Agricultural Camps and Other Training
reaches twenty-one (21) years of Facilities. - A child in conflict with the law
age. may, after conviction and upon order of the
c. The court shall discharge the court, be made to serve his/her sentence, in
child for disposition measures. lieu of confinement in a regular penal
d. The court shall place the child on institution, in an agricultural camp and other
probation. training facilities that may be established,
maintained, supervised and controlled by the
4.07 BAR Q. [2009] Suppose Joes motion BUCOR, in cooperation with the DSWD.
for intervention or diversion was
denied, and he was convicted two 5.01 ARE THE BENEFITS UNDER THIS
(2) years later when Joe was
already 21 years old, should the PROVISION APPLICABLE WHEN THE
judge apply the suspension of MINOR, HAD ALREADY REACHED 21
sentence? Explain.
YEARS OF AGE OR OVER AT THE
Suggested Answer: A person who is TIME OF HIS CONVICTION?
beyond the age of twenty-one (21) years
cannot avail of the provisions of Sections 38
Yes. In PEOPLE vs. URBAN SALCEDO
and 40 of R .A. 9344 on his suspension of
sentence. ABDURAHMAN ISMAEL DIOLAGRA, G.R. No.
186523, June 22, 2011,the Supreme Court
4.08 IS THE CHILD IN CONFLICT OF THE
LAW ENTITLED TO A CREDIT IN reiterated , just for the guidance of the bench
SERVICE OF SENTENCE? (Sec. 41) and bar, that if indeed, an accused was under
eighteen (18) years of age at the time of the
105
commission of the crime, then as held in shall likewise be exempt from
People v. Sarcial, such offenders, even if criminal liability and be subjected to
already over twenty-one (21) years old at the an intervention program, unless
time of conviction, may still avail of the he/she has acted with discernment,
benefits accorded by Section 51 of R.A. No. in which case, such child shall be
9344. subjected to the appropriate
proceedings in accordance with this
5.02 WHAT IS THE CONCEPT OF STATUS Act.
OFFENSES? (Sec. 57)

Any conduct not considered an c. The age of a child may be determined


offense or not penalized if committed by an
adult shall not be considered an offense and from the childs birth certificate,
shall not be punished if committed by a child. baptismal certificate or any other

5.03 WHAT CRIMINAL OFFENSES ARE pertinent documents. In the absence


NOT APPLICABLE TO MINORS? (Sec. of these documents, age may be
58)
based on information from the child
Persons below eighteen (18) years himself/herself, testimonies of other
of age shall be exempt from prosecution for
the following crimes: persons, the physical appearance of
the child and other relevant
a) vagrancy and prostitution under
Section 202 of the Revised Penal evidence. In case of doubt as to the
Code; age of the child, it shall be resolved in
b) mendicancy under Presidential
his/her favor
Decree No. 1563; and
c) sniffing of rugby under
Presidential Decree No. 1619,
such prosecution being d. Reduction of the criminal liability by
inconsistent with the United virtue of RA 9344 does not extend to
Nations Convention on the Rights
of the Child: the civil liability. The civil liability is
not affected by the same.
Provided, that said persons shall
undergo appropriate counseling and
treatment program. e. Art. 22. Retroactive effect of penal
laws. Penal laws shall have a
6.00 SUMMARY OF SALIENT FEATURES:
retroactive effect insofar as they
a. A child fifteen (15) years of age or favor the persons guilty of a felony,
under at the time of the commission who is not a habitual criminal, as this
of the offense shall be exempt from term is defined in Rule 5 of Article 62
criminal liability. However, the child of this Code, although at the time of
shall be subjected to an intervention the publication of such laws, a final
program pursuant to Section 20 of sentence has been pronounced and
the Act. the convict is serving the same.

b. A child above fifteen (15) years but f. If the court finds that the objective of
below eighteen (18) years of age the disposition measures imposed

106
upon the child in conflict with the law sentence, in lieu of confinement in a
have not been fulfilled, or if the child regular penal institution, in an
in conflict with the law has willfully agricultural camp and other training
failed to comply with the conditions facilities that may be established,
of his/her disposition or maintained, supervised and
rehabilitation program, the child in controlled by the Bureau of
conflict with the law shall be brought Corrections (BUCOR), in
before the court for execution of coordination with the Department of
judgment. Social Welfare and Development
(DSWD).
g. Once the child who is under eighteen
(18) years of age at the time of the j. If said child in conflict with the law
commission of the offense is found has reached eighteen (18) years of
guilty of the offense charged, the age while under suspended sentence,
court shall determine and ascertain the court shall determine whether to
any civil liability which may have discharge the child in accordance
resulted from the offense committed. with this Act, to order, execution of
However, instead of pronouncing the sentence, or to extend the suspended
judgment of conviction, the court sentence for a certain specified
shall place the child in conflict with period or until the child reaches the
the law under suspended sentence, maximum age of twenty-one (21)
without need of application. years.
Provided, however, That suspension
of sentence shall still be applied even
7.00 PRINCIPLES AND DOCTRINES.
if the juvenile is already eighteen
(18) years of age or more at the time 1. DOCTRINE.
of the pronouncement of his/her
People vs. Salvador Atizado and
guilt. Salvador Monreal
G.R. No. 173822, October 13, 2010
h. Republic Act No. 9344 allows the
retroactive application of the law to
The child in conflict with the law
those who have been convicted and
shall enjoy the presumption of minority.
are serving sentence at the time of
He/She shall enjoy all the rights of a child in
the effectivity of said law, and who
conflict with the law until he/she is proven to
were below the age of 18 years at the
be eighteen (18) years old or older. The age
time of the commission of the
of a child may be determined from the childs
offense.
birth certificate, baptismal certificate or any

i. A child in conflict with the law may, other pertinent documents.

after conviction and upon order of 1. DOCTRINE.


the court, be made to serve his/her
107
Valcesar Estioca vs. People circulation of persons or transportation of
G.R. 173876, 27 June 2008 goods, articles, or property or both.

4.00 WHAT IS THE CRIME OF PIRACY?


The reckoning point in considering
Any attack upon or seizure of any
minority is the time of the commission of the vessel, or the taking away of the
crime. In this case Boniao is 14 years old whole or part thereof or its cargo,
equipment, or the personal
hence exempted from criminal liability belongings of its complement or
without prejudice to his civil liability. Art 22 passengers, irrespective of the value
thereof, by means of violence against
of the Revised Penal Code provides that or intimidation of persons or force
penal laws may be given retroactive effect if upon things, committed by any
person, including a passenger or
they are in favour of the acused. member of the complement of said
vessel, in Philippine waters, shall be
considered as piracy. The offenders
-oooOOOooo- shall be considered as pirates and
punished as hereinafter provided.

4.01 CASE.
CHAPTER XII. THE ANTI-PIRACY AND
ANTI-HIGHWAY ROBBERY LAW There is a piracy, not grave
coercion, where, as part of the act of
Presidential Decree No. 532 seizing their boat, the occupants of the
___________________________________________________ vessel were compelled to go elsewhere
other than their place of destination, such
compulsion was obviously part of the act
1.00 DEFINE PHILIPPINE WATERS of seizing their boat. The testimony of
Eugene, one of the victims, shows that the
It shall refer to all bodies of water, appellant actually seized the vessel
such as but not limited to, seas, gulfs, bays through force and intimidation.
around, between and connecting each of the
Islands of the Philippine Archipelago,
irrespective of its depth, breadth, length or People vs. Emiliano Catantan y Tayong
dimension, and all other waters belonging to G.R No. 118075, September 5, 1997
the Philippines by historic or legal title,
including territorial sea, the sea-bed, the Facts: On 27 June 1993, the Pilapil brothers
insular shelves, and other submarine areas Eugene, 21, and Juan Jr., 18, were fishing in
over which the Philippines has sovereignty the sea some 3 kilometers away from the
or jurisdiction. shores of Tabogon, Cebu. Suddenly, another
boat caught up with them. One of them, later
2.00 DEFINE VESSEL identified as the accused EmilianoCatantan
and Jose MacvenUrsalalis Bimbo, bearded
the pump boat of the Pilapils and levelled his
Any vessel or watercraft used for
gun at Eugene. With his gun, Catantan struck
transport of passengers and cargo from one
Eugene on the left cheekbone and ordered
place to another through Philippine Waters.
him and Juan Jr. to "dapa." Then Catantan
It shall include all kinds and types of vessels
told Ursal to follow him to the pumpboat of
or boats used in fishing.
the Pilapils. There they hogtied Eugene,
forced him to lie down at the bottom of the
3.00 DEFINE PHILIPPINE HIGHWAY
boat, covered him with a tarpaulin up to his
neck, stepped on him and ordered Juan Jr. to
It shall refer to any road, street, ferry them to DaanTabogon. and seized their
passage, highway and bridges or other parts fishing boat, to their damage and prejudice.
thereof, or railway or railroad within the
Philippines used by persons, or vehicles, or Issue: Whether or not the accused is liable
locomotives or trains for the movement or for grave coercion and not piracy.

108
Ruling: Presidential Decrees No. 532 section 1; If physical injuries or other
2 Par. (D), defines Piracy as "any attack upon crimes are committed as a result
or seizure of any vessel, or the taking away of or on the occasion thereof.
the whole or part thereof or its cargo,
equipment, or the personal belongings of the 2. If rape, murder or
complement or passengers, irrespective of the homicide is committed as a result
value thereof, by means of violence against or or on the occasion of piracy, or
intimidation of persons or force upon things, when the offenders abandoned
committed by any person, including a the victims without means of
passenger or member of the complement of saving themselves, or when the
said vessel, in Philippine waters, shall be seizure is accomplished by firing
considered as piracy. The offenders shall be upon or boarding a vessel.
considered as pirates and punished as
hereinafter provided." And a vessel is 4.03 BAR Q. [2008] The inter-island
construed in Sec. 2, par. (b), of the same vessel M/V Viva Lines I, while
decree as "any vessel or watercraft used for cruising off Batanes, was forced to
transport of passengers and cargo from one seek shelter at the harbor of
place to another through Philippine waters. It Kaoshiung, Taiwan because of a
shall include all kinds and types of vessels or strong typhoon. While anchored in
boats used in fishing. said harbor, Max, Baldo and Bogart
arrived in a speedboat, fired a
The Grave Coercion as defined in Art. bazooka at the bow of the vessel,
286 of the Revised Penal Code is committed boarded it and divested the
by "any person who, without authority of law, passengers of their money and
shall, by means of violence, prevent another jewelry. A passenger of M/V Viva
from doing something not prohibited by law, Lines I, Dodong, took advantage of
or compel him to do something against his the confusion to settle an old
will, whether it be right or wrong." grudge with another passenger,
and killed him. After their
This case falls squarely within the apprehension, all four were
purview of piracy. While it may be true that charged with qualified piracy
Eugene and Juan Jr. were compelled to go before a Philippine court.
elsewhere other than their place of
destination, such compulsion was obviously a) Was the charge of qualified
part of the act of seizing their boat. The piracy against the three persons
testimony of Eugene, one of the victims, (Max, Baldo and Bogart) who
shows that the appellant actually seized the boarded the inter-island vessel
vessel through force and intimidation. The correct? Explain.
direct testimony of Eugene is significant and
enlightening and the fact that the revolver Suggested answer: Yes, Max,
used by the appellant to seize the boat was Baldo and Bogart are guilty of
not produced in evidence cannot exculpate qualified piracy. They seized the
him from the crime. The fact remains, and we vessel by firing and boarding the
state it again, that Catantan and his co- vessel, and divested the passengers of
accused Ursal seized through force and their money and jewel. Moreover, on
intimidation the pump boat of the Pilapils the occasion of robbery, the death of
while the latter were fishing in Philippine one passenger resulted.
waters.
b) Was Dodong correctly charged
4.02 WHAT CIRCUMSTANCES QUALIFY before the Philippine court for
PIRACY? qualified piracy? Explain.

The law provides a higher penalty if Suggested Answer: No,


the following circumstances attended the Dodong had no intent to gain which is
commission of the crime, an essential element of qualified
piracy. His intent is merely to settle
a. In Piracy- an old grudge with his victim. Since
the crime was not one of the
exceptions in the extra-territoriality

109
principle and it was committed perpetrators is not an essential
outside the Philippine territory, requisite of the crime.
Philippine courts do not have
jurisdiction to try the same. b. If you were the defense counsel,
what are the elements of the crime
5.00 WHAT IS THE CRIME OF HIGHWAY of highway robbery that the
ROBBERY/BRIGANDAGE?
prosecution should prove to
sustain a conviction?
The seizure of any person for
ransom, extortion or other unlawful
Suggested Answer: If I were
purposes, or the taking away of the property
of another by means of violence against or the defense counsel, I will argue that
intimidation of person or force upon things the prosecution should first prove the
of other unlawful means, committed by any following:
person on any Philippine Highway(Sec.2).
a. There is taking away of the
5.01 BAR Q. [2012] A postal van property of another
containing mail matters, including committed on any Philippine
checks and treasury warrants, was Highway.
hijacked along a national highway
b. Employment of violence
by ten (10) men, two (2) of whom
against or intimidation of
were armed. They used force,
persons or force upon things
violence and intimidation against
or other unlawful means.
three (3) postal employees who
were occupants of the van, resulting c. The act must be organized
in the unlawful taking and for the purpose of committing
asportation of the entire van and its robbery indiscriminately.
contents. Acts of robbery should not be
committed against a
a. If you were the public prosecutor, predetermined or particular
would you charge the ten (10)
victim.
men who hijacked the postal van
with violation of Presidential
Decree No. 532, otherwise known 5.02 WHAT CIRCUMSTANCES QUALIFY
as the Anti-Piracy and Anti - HIGHWAY ROBBERY OR
Highway Robbery Law of 1974? BRIGANDAGE?
Explain your answer.
In Highway Robbery/ Brigandage
Suggested Answer: He is
liable under P.D. 532. There was 1. If physical injuries or other
indiscriminate highway robbery in crimes are committed during or
Philippine Highway. It was on the occasion of the
committed in a national highway commission of robbery or
used by persons, or vehicles, for the brigandage.
movement or circulation of persons or
transportation of goods, articles, or 2. If kidnapping for ransom
property or both. By means of or extortion, or murder or
violence and intimidation against homicide, or rape is committed
three (3) postal employees who were as a result or on the occasion
occupants of the van, they were able thereof.
to unlawful take the entire van and
its contents. 6.00 IS THE ACT OF AIDING PIRATES OR
HIGHWAY ROBBERY/BRIGANDS
PD 532 does not require that OR ABETTING PIRACY OR
there should be at least four armed HIGHWAY ROBBERY/BRIGANDAGE
persons forming a band of robbers. PUNISHABLE?
Under this law, the number of

110
Yes. The law provides that any A higher penalty is imposed if
person who knowingly and in any manner hijacking is committed under any of the
aids or protects pirates or highway following circumstances:
robbers/brigands, such as giving them
information about the movement of police or 1. Whenever he has fired upon the
other peace officers of the government, or pilot, member of the crew or
acquires or receives property taken by such passenger of the aircraft;
pirates or brigands or in any manner derives
any benefit therefrom; or any person who 2. Whenever he has exploded or
directly or indirectly abets the commission of attempted to explode any bomb or
piracy or highway robbery or brigandage, explosive to destroy the aircraft; or
shall be considered as an accomplice of the
principal offenders and be punished in 3. Whenever the crime is
accordance with the Rules prescribed by the accompanied by murder, homicide,
Revised Penal Code (Sec.4). serious physical injuries or rape
(Sec.2).
6.01 WHAT IS THE PRESUMPTION
PROVIDED UNDER SECTION 4? 1.03 WHAT OTHER ACT IS PUNISHED
UNDER THIS LAW?
It shall be presumed that any person
who does any of the acts provided in this It shall be unlawful for any person,
Section has performed knowingly, unless the natural or juridical, to ship, load or carry in
contrary is proven. any passenger aircraft operating as a public
utility within the Philippines, any explosive,
flammable, corrosive or poisonous
substance or material (Sec.3).
-oooOOOooo-
2. CASE

CHAPTER XIII. THE ANTI-HIJACKING LAW People vs. Susan Canton


Republic Act No. 6235 GR No. 148825, December 27, 2002
___________________________________________________
Doctrine: Section 9 of Republic Act No.
6235 (Anti Hijacking Law) constitutes
1.00 WHAT ARE THE ACTS PUNISHED another exception to the proscription
UNDER THE LAW? against warrantless searches and
seizures. R.A. No. 6235 authorizes search
It shall be unlawful for any person to for prohibited materials or substances. To
compel a change in the course or destination limit the action of the airport security
of an aircraft of Philippine registry, or to personnel to simply refusing her entry into
seize or usurp the control thereof, while it is the aircraft and sending her home (as
in flight. suggested by appellant), and thereby
depriving them of "the ability and facility
It shall likewise be unlawful for any to act accordingly, including to further
person to compel an aircraft of foreign search without warrant, in light of such
registry to land in Philippine territory or to circumstances, would be to sanction
seize or usurp the control thereof while it is impotence and ineffectivity in law
within the said territory (Sec.1). enforcement, to the detriment of society."
Thus, the strip search in the ladies room
1.01 WHEN IS AN AIRCRAFT CONSIDERED was justified under the circumstances.
IN FLIGHT?
Facts: Canton was a departing passenger
An aircraft is in flight from the bound for Saigon, Vietnam. She passed thru a
moment all its external doors are closed metal detector which emitted a beeping
following embarkation until any of such sound which prompted Cabunoc, a civilian
doors is opened for disembarkation. employee of the National Action Committee
on Highjacking and Terrorism (NACHT) and
1.02 WHAT ARE THE QUALIFYING the frisker on duty to check on her. Cabunoc
CIRCUMSTANCES OF HIJACKING? felt something bulging in several parts of
111
Canton and reported it to her supervisor. She subject to search for prohibited materials or
was brought to the ladies room where she substances.
was asked to take off her clothes. Packages
containg shabu was found on her. In this case, after the metal detector
Canton was found guilty beyond reasonable alarmed SUSAN consented to be frisked,
doubt of violating Section 16 of Art. III of RA which resulted in the discovery of packages
6425. She assailed the propriety of the on her body. It was too late in the day for her
search and seizure without warrant on the to refuse to be further searched because the
ground that the seized items were not in discovery of the packages whose contents
plain view. felt like rice granules, coupled by her
apprehensiveness and her obviously false
Issue: Whether or not the scope of the search statement that the packages contained only
pursuant to airport security procedure is not money, aroused the suspicion of the frisker
confined only to search for weapons under that SUSAN was hiding something illegal. It
the Terry Search doctrine. must be repeated that R.A. No. 6235
authorizes search for prohibited materials or
Supreme Courts Ruling: The Terry search substances. To limit the action of the airport
or the "stop and frisk" situation refers to a security personnel to simply refusing her
case where a police officer approaches a entry into the aircraft and sending her home
person who is acting suspiciously, for (as suggested by appellant), and thereby
purposes of investigating possibly criminal depriving them of "the ability and facility to
behavior in line with the general interest of act accordingly, including to further search
effective crime prevention and detection. To without warrant, in light of such
assure himself that the person with whom he circumstances, would be to sanction
is dealing is not armed with a weapon that impotence and ineffectivity in law
could unexpectedly and fatally be used enforcement, to the detriment of society."
against him, he could validly conduct a Thus, the strip search in the ladies room was
carefully limited search of the outer clothing justified under the circumstances.
of such person to discover weapons which
might be used to assault him.
-oooOOOooo-
In the present case, the search was
made pursuant to routine airport security CHAPTER XIV. THE ANTI-CARNAPPING
procedure, which is allowed under Section 9 ACT
of Republic Act No. 6235 (Anti Hijacking
Law) reading as follows: Republic Act No. 6539

___________________________________________________
SEC.9 Every ticket issued to a passenger by
the airline or air carrier concerned shall 1.00 DEFINE THE FOLLOWING TERMS:
contain among others the following
condition printed thereon: "Holder hereof
"Motor vehicle" is any vehicle
and his hand-carried luggage(s) are subject
propelled by any power other than muscular
to search for , and seizure of, prohibited
power using the public highways, but
materials or substances. Holder refusing to be
excepting road rollers, trolley cars, street-
searched shall not be allowed to board the
sweepers, sprinklers, lawn mowers,
aircraft," which shall constitute a part of the
bulldozers, graders, fork-lifts, amphibian
contract between the passenger and the air
trucks, and cranes if not used on public
carrier.
highways, vehicles, which run only on rails or
tracks, and tractors, trailers and traction
This constitutes another exception to
engines of all kinds used exclusively for
the proscription against warrantless
agricultural purposes.
searches and seizures. As admitted by SUSAN
and shown in Annex "D" of her Brief, the
afore-quoted provision is stated in the Trailers having any number of
"Notice to All Passengers" located at the final wheels, when propelled or intended to be
security checkpoint at the departure lounge. propelled by attachment to a motor vehicle,
From the said provision, it is clear that the shall be classified as separate motor vehicle
search, unlike in the Terry search, is not with no power rating.
limited to weapons. Passengers are also
112
1.01 WHAT IS THE CRIME OF possession of the property by the person
CARNAPPING? dispossessed suffices. People Vs. Artemio
Garcia Y Cruz, Jr., et al. G.R. No. 138470, April
It is the taking, with intent to gain, of 1, 2003.
a motor vehicle belonging to another without
the latter's consent, or by means of violence 1.05 DOES THE ELEMENT OF TAKING
against or intimidation of persons, or by ABSORB THE LOSS OF CASH OR
using force upon things. OTHER PERSONALPROPERTY?

1.02 WHAT ARE THE ELEMENTS OF No. Although carnapping and robbery have
CARNAPPING? the same element of taking with intent to
gain, the former specifically refers to the
The elements of carnapping are as unlawful taking of a motor vehicle.only.
follows: People vs. Dela Cruz, GR No. 174658,February
24, 2009.
1. That there is an actual taking of the
vehicle; 1.06 BAR Q. [2008] While Carlos was
approaching his car, he saw it being
2. That the offender intends to gain driven away by Paolo, a thief.
from the taking of the vehicle; Carlos tried to stop Paolo by
shouting at him, but Paolo ignored
3. That the vehicle belongs to a
him. To prevent his car from being
person other than the offender
himself; carnapped, Carlos drew his gun,
aimed at the rear wheel of the car
4. That the taking is without the and fired. The shot blew the tire
consent of the owner thereof; or that which caused the car to veer out of
the taking was committed by means control and collide with an
of violence against or intimidation of oncoming tricycle, killing the
persons, or by using force upon
tricycle driver. x x x What is the
things. People Vs. Artemio Garcia Y
Cruz, Jr., et al. G.R. No. 138470, April criminal liability of Paolo, if any?
1, 2003. Explain.

1.03 WHEN IS UNLAWFULTAKING Suggested Answer: Paolo is


DEEMED COMPLETE? guilty of carnapping. There was an
unlawful taking of a motor vehicle
Unlawful taking is the taking of a with intent to gain. Secondly, the car
vehicle without the consent of the owner, or belonged to another person. Lastly,
by means of violence against or intimidation the taking was without the consent of
of persons, or by using force upon things; it is the Carlos, the owner.
deemed complete from the moment the
offender gains possession of the thing, even 2.00 ON WHAT FACTORS MUST THE
if he has no opportunity to dispose of the IMPOSITION OF PENALTY IN
same. People vs. Artemio Garcia Y Cruz, Jr., et CARNAPPING BE DEPENDENT?
al. G.R. No. 138470, April 1, 2003. (Section 14)

1.04 DOES THE PERSON DIVESTED OF a. As a rule, when the carnapping is


THE MOTOR VEHICLE committed without violence or
NECESSARILY BE THE OWNER intimidation of persons, or force upon
THEREOF? things, irrespective of the value of motor
vehicle taken, the penalty shall be
No. The settled rule is that, in crimes of imprisonment for not less than fourteen
unlawful taking of property through years and eight months and not more than
intimidation or violence, it is not necessary seventeen years and four months.
that the person unlawfully divested of the
personal property be the owner thereof.
b. On the other hand, when the
What is simply required is that the property carnapping is committed by means of
taken does not belong to the offender. Actual
113
violence against or intimidation of any SUGGESTED ANSWER: Raul
person, or force upon things, the penalty committed the crime of carnapping
shall be by imprisonment for not less than punished under by R.A. No. 6539.
seventeen years and four months and not
Samuel, the driver of the vehicle, was
more than thirty years.
killed in the course of the commission of
2.01 WHEN IS CARNAPPING CONSIDERED the crime. Under Section 14 thereof, the
QUALIFIED OR IN AN AGGRAVATED killing serves to aggravate the crime by
FORM? increasing the penalty to be imposed on
the offender.
When the owner, driver or
occupant of the carnapped motor vehicle is 2.04 CAN THERE BE UNLAWFUL TAKING
killed in the commission of the carnapping, OF A MOTOR VEHICLE EVEN IF THE
the penalty of life imprisonment to death POSSESSION THEREOF IS COVERED
shall be imposed *(Sec. 14. The penalty is now BY A LEASE AGREEMENT?
life imprisonment with the effectivity of the
anti-death penalty law). Yes. In the case of People vs. Artemio
Garcia Y Cruz, Jr., et al. G.R. No. 138470, April
2.02 BAR Q. [2012] What should be the 1, 2003, the Supreme Court held that even if
proper charge against an offender the nature of the appellants possession of
who unlawfully took and carried the motor vehicle was initially lawful
nevertheless, the unlawful killing of the
away a motor vehicle belonging to deceased for the purpose of taking the
another without the latter's consent, vehicle radically transformed the character
killing the driver in the process? of said possession into an unlawful one.
It ruled It does not matter whether
a. The proper charge against the unlawful taking occurred within the
the offender should be period of the lease. What is decisive here is
murder with the use of the purpose of appellant and his co-accused
motor vehicle. in killing the victim. Such is the vital point on
b. The proper charge against which the crime and the nature thereof is to
the offender should be be determined In this case. The duration of
qualified carnapping or the lease of the vehicle has no bearing on the
carnapping in an aggravated culpability of the appellant. x x x The
form. (*The driver was killed prosecution was able to establish that
during the commission of appellant and his co-accused stabbed the
carnapping. A higher penalty victim to death because he refused to join
is thus to be imposed). them in their plan to appropriate the vehicle.
c. The proper charge against This undoubtedly satisfied the element of
the offender should be unlawful taking through violence, rendering
carnapping and homicide. appellant liable for the crime charged.
d. The proper charge against
the offender should be 3.00 DOCTRINE
robbery with homicide.
People vs. Arguelles
2.03 BAR Q.[1998] Samuel, a tricycle August 17, 2010
driver, plied his usual route using a
Honda motorcycle with a sidecar.
R.A. 6539, otherwise known as An
One evening, Raul rode on the
Act Preventing and Penalizing
sidecar, poked a knife at Samuel Carnapping, defines carnapping as the
and instructed him to go near the taking, with intent to gain, of a motor
bridge. Upon reaching the bridge, vehicle belonging to another without the
Raul alighted from the motorcycle latters consent, or by means of violence
and suddenly stabbed Samuel against or intimidation of persons, or by
several times until he was dead. using force upon things." More
specifically, the elements of the crime are
Raul fled from the scene taking the
as follows:
motorcycle with him. What crime
or crimes did Raul commit?
114
1 .That there is an actual taking of 1. Any ammunition factory and other
the vehicle; establishment where explosives,
inflammable or combustible
2. That the offender intends to gain materials are stored.
from the taking of the vehicle;
2. Any archive, museum, whether
3. That the vehicle belongs to a public or private, or any edifice
person other than the offender himself; devoted to culture, education or
social services.
1. That the taking is without the
consent of the owner thereof; or 3. Any church or place of worship or
that the taking was committed other building where people usually
by means of violence against or assemble.
intimidation of persons, or by
using force upon things. 4. Any train, airplane or any aircraft,
vessel or watercraft, or conveyance
A careful examination of the evidence for transportation of persons or
presented would show that all the property
elements of carnapping were proven in
this case. It cannot be denied that the 1993 5. Any building where evidence is
Nissan Sentra with plate number TKR-837 kept for use in any legislative,
was unlawfully taken from Agnes without judicial, administrative or other
her consent and by means of force or official proceedings.
intimidation, considering that he and his
co-accused 6. Any hospital, hotel, dormitory,
alternately poked a gun at Agnes. After
lodging house, housing tenement,
shooting her, appellant also flee with the shopping center, public or private
subject vehicle which shows his intent to market, theater or movie house or
gain. Agnes also positively identified any similar place or building.
appellant and Gungon as the ones who
took the subject vehicle from her.
7. Any building, whether used as a
dwelling or not, situated in a
-oooOOOooo- populated or congested area (Sec.2).

1.02 ENUMERATE THE SPECIAL


AGGRAVATING CIRCUMSTANCES IN
CHAPTER XV. THE LAW ON ARSON AS ARSON
AMENDED
The following are the special
Presidential Decree No. 1613 aggravating circumstances in Arson: (Sec.4)
___________________________________________________
1. If committed with intent to gain;
1.00 WHAT IS ARSON?
2. If committed for the benefit of
It is a crime committed by any person another;
who burns or sets fire to the property of
another or when a person sets fire to his 3. If the offender is motivated by
own property under circumstances spite or hatred towards the owner or
which expose to danger the life or occupant of the property burned;
property of another. (Sec.1)
4. If committed by a syndicate.
1.01 WHAT CONSTITUTES DESTRUCTIVE
ARSON? 1.03 WHEN IS ARSON COMMITTED BY A
SYNDICATE? (Sec.4)
It is destructive arson when the
property is burned in any of the The offense is committed by a
syndicate if it is planned or carried out by a
following:
group of three (3) or more persons.
115
1.04 WHAT IS THE CONSEQUENCE IF BY safety of the person or property of
REASON OF OR ON THE OCCASION the victim.
OF THE ARSON DEATH RESULTS?
1.06 IS THERE A CRIME OF CONSPIRACY
A higher penalty shall be imposed. TO COMMIT ARSON?

1.05 WHAT CIRCUMSTANCES Yes. Mere conspiracy to commit


CONSTITUTE PRIMA FACIE arson is punishable.
EVIDENCE OF ARSON? (Section 6)
2.00 SUPPOSE THE OFFENDER SET THE
Any of the following circumstances HOUSE OF THE VICTIM ON FIRE BY
shall constitute prima facie evidence of WAY OF REVENGE AGAINST THE
arson: LATTER. HE WAS NOT AWARE THAT
THE VICTIM WAS INSIDE AND
1. If the fire started simultaneously in CONSEQUENTLY, THE LATTER DIED
more than one part of the building or BECAUSE OF THE FIRE. WHAT CRIME
establishment. WAS COMMITTED?

2. If substantial amount of flammable The crime is mere arson. There is no


substances or materials are stored complex crime of arson with homicide. The
within the building note necessary in crime of homicide is absorbed. The
the business of the offender nor for consequence, if by reason of or on the
household us. occasion of the arson death results, is the
imposition of a higher penalty.
3. If gasoline, kerosene, petroleum or
other flammable or combustible 2.01 (a) BAR Q. [2012] With intent to
substances or materials soaked cause damage, AAA deliberately set
therewith or containers thereof, or fire upon the two-storey
any mechanical, electrical, chemical, residential house of his employer,
or electronic contrivance designed to mostly made of wooden materials.
start a fire, or ashes or traces of any
The blaze spread and gutted down
of the foregoing are found in the
ruins or premises of the burned seven neighboring houses. On the
building or property. occasion of the fire, six (6) persons
sustained burn injuries which were
4. If the building or property is the direct cause of their death.
insured for substantially more than What crime was committed by
its actual value at the time of the AAA?
issuance of the policy.
a. AAA committed the
5. If during the lifetime of the complex crime of arson
corresponding fire insurance policy with multiple homicide.
more than two fires have occurred in b. AAA committed arson
the same or other premises owned or and multiple homicide.
under the control of the offender c. AAA committed simple
and/or insured. arson (*There is no
complex crime of arson
6. If shortly before the fire, a with homicide. Homicide
substantial portion of the effects is absorbed in arson).
insured and stored in a building or d. AAA committed arson
property had been withdrawn from and multiple murder.
the premises except in the ordinary
course of business. 2.02 SUPPOSE THE OFFENDER KNEW THAT
THE VICTIM WAS INSIDE THE HOUSE
7. If a demand for money or other BEFORE THE HOUSE WAS SET ON
valuable consideration was made FIRE, WHAT CRIME WAS
before the fire in exchange for the COMMITTED?
desistance of the offender or for the

116
If the offender knew that the victim c. Arson, the homicide being absorbed
was in the house when it was set on fire, the already
crime committed, instead of arson, would be d. Arson with murder as a compound
murder. The fire constitutes as a qualifying crime
circumstance.
3.00 WHEN IS A CRIME INVOLVING
2.03(a) BAR Q. [2012] With intent to kill, DESTRUCTION AN ACT OF
GGG burned the house where F and TERRORISM?
D were staying. F and D died as a
consequence. What is the proper Under R.A. No. 9372, otherwise known
charge against GGG? as the Human Security Act of 2007, a person
who commits an act punishable under Art.
a. GGG should be charged 324 (Crimes Involving Destruction) and
with two (2) counts of thereby sowing and creating condition of
murder. widespread and extraordinary fear and
b. GGG should be charged panic among the populace, in order to coerce
with arson. the government to give in to an unlawful
c. GGG should be charged demand shall be guilty of the crime of
with complex crime of terrorism and shall suffer the penalty of forty
arson with double (40) years of imprisonment without the
murder. benefit of parole.
d. GGG should be charged
with complex crime of OTHER MATTERS TO CONSIDER
double murder (*Fire was
used to commit the The building which is the object of arson
killing.It serves as a including the land on which it is situated
qualifying circumstance shall be confiscated and escheated to the
to the crime of murder. It State, unless the owner thereof can prove
is a complex crime under that he has no participation in nor
Article 48 of the RPC knowledge of such arson despite the exercise
because the single act of of due diligence on his part. (Sec.8)
burning the house
constitutes 2 grave
felonies). -oooOOOooo-
2.04 SUPPOSE BEFORE SETTING THE
HOUSE ON FIRE, THE OFFENDER
ENTERED IN AND KILLED THE CHAPTER XVI. THE ANTI-ALIAS LAW
VICTIM, THEN HE SET IT ON FIRE TO
CONCEAL THE BODY OF THE
Republic Act No. 6085
LATTER, WHAT CRIME WAS
[BAR 2006]
COMMITTED?
___________________________________________________
If the offender killed the victim before
the house was set on fire, two crimes are 1.00 WHAT IS THE RULE WITH RESPECT
committed, murder and arson. The burning
TO THE USE OF A PERSONS
of the house to hide the killing is a separate
REGISTERED NAME?
crime. Arson was committed to conceal the
crime of murder.
The law provides that no persons shall use
any name different from the one with which
2.05(a) BAR Q.[2011] Dagami concealed
he was registered at birth in the office of the
Bugnas body and the fact that he
local civil registry, or with which he was
killed him by setting Bugnas house
baptized for the first time, or, in case of an
on fire. What crime or crimes did
alien, with which he was registered in the
Dagami commit?
bureau of immigration upon entry; or such
substitute name as may have been
a. Murder, the arson being absorbed
authorized by a competent court. (Sec.1)
already
b. Separate crimes of murder and arson

117
1.01 WHEN IS THE USE OF ALIAS document without stating or affixing his
ALLOWED BY LAW? real or original name and all names or aliases
or pseudonym he is or may have been
The use of alias is allowed as a authorized to use.
pseudonym solely for literary, cinema,
television, radio or other entertainment
purposes and in athletic events where the -oooOOOooo-
use of pseudonym is a normally accepted
practice. (Sec.1)

1.02 BAR Q.[2006] When can a Filipino CHAPTER XVIII


citizen residing in this country
use an alias legally? OBSTRUCTION OF JUSTICE
Presidential Decree No. 1829
Suggested Answer: Pursuant to [BAR 2010, 2005]
Section 1of R.A. 6085, the use of alias is ___________________________________________________
allowed as a pseudonym solely for literary,
cinema, television, radio or other 1.00 WHO MAY BE LIABLE FOR
entertainment purposes and in athletic events OBSTRUCTION OF JUSTICE ?( SEC.1)
where the use of pseudonym is a normally
accepted practice.
Any person who knowingly or
willfully obstructs, impedes, frustrates or
1.03 WHAT IS THE REQUIREMENT
delays the apprehension of suspects and the
WHEN ONE DESIRES TO USE AN
investigation and prosecution of criminal
ALIAS? (Sec.2)
cases.
Any person desiring to use an alias
1.01 WHAT DOES SECTION 1 OF P.D. 1829
shall apply for authority in proceedings like
PROVIDE?
those legally provided to obtain judicial
authority for a change of name, and no
person shall be allowed to secure such Section 1 of P.D. 1829 reads:
judicial authority for more than one alias.
The acts punishable therein are as
1.04 WHAT ARE THE CONTENTS OF A follows:
PETITION FOR ALIAS? (Sec.2)
(a) preventing witnesses from testifying
The petition for an alias shall set in any criminal proceeding or from
forth the (1) person's baptismal and family reporting the commission of any offense
name and the name recorded in the civil or the identity of any offender/s by
registry, if different, (2) his immigrant's name, means of bribery, misrepresentation,
if an alien, and his pseudonym, if he has such deceit, intimidation, force or threats;
names other than his original or real name,
specifying (3) the reason or reasons for the (b) altering, destroying, suppressing or
use of the desired alias. concealing any paper, record, document,
or object, with intent to impair its verity,
1.05 DOES A PERSON USING AN ALIAS authenticity, legibility, availability, or
REQUIRED TO STATE OR AFFIX HIS admissibility as evidence in any
REAL NAME IN ANY TRANSACTION investigation of or official proceedings in,
OR DOCUMENT? (Sec.3) criminal cases, or to be used in the
investigation of, or official proceedings
Yes. No person having been baptized in, criminal cases;
with a name different from that with
which he was registered at birth in the local (c) harboring or concealing, or
civil registry, or in case of an alien, registered facilitating the escape of, any person he
in the bureau of immigration upon entry, or knows, or has reasonable ground to
any person who obtained judicial authority believe or suspect, has committed any
to use an alias, or who uses a pseudonym, offense under existing penal laws in
shall represent himself in any public order to prevent his arrest prosecution
or private transaction or shall sign or and conviction;
execute any public or private
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(d) publicly using a fictitious name for the (a) preventing witnesses from
purpose of concealing a crime, evading testifying in any criminal proceeding
prosecution or the execution of a or from reporting the commission of
judgment, or concealing his true name any offense or the identity of any
and other personal circumstances for the offender/s by means of bribery,
same purpose or purposes; misrepresentation, deceit,
intimidation, force or threats;
(e) delaying the prosecution of criminal
cases by obstructing the service of (b) altering, destroying, suppressing
process or court orders or disturbing or concealing any paper, record,
proceedings in the fiscal's offices, in document, or object, with intent to
Tanodbayan, or in the courts; impair its verity, authenticity,
legibility, availability, or
(f) making, presenting or using any admissibility as evidence in any
record, document, paper or object with investigation of or official
knowledge of its falsity and with intent to proceedings in, criminal cases, or to
affect the course or outcome of the be used in the investigation of, or
investigation of, or official proceedings official proceedings in, criminal
in, criminal cases; cases;

(g) soliciting, accepting, or agreeing to 1.03 Illustrative case of 1(b).


accept any benefit in consideration of
abstaining from, discounting, or BAR Q. [2005] During a PNP buy-bust
impeding the prosecution of a criminal operation, Cao Shih was arrested for
offender; selling 20 grams of methamphetamine
hydrochloride (shabu) to a poseur-
(h) threatening directly or indirectly
buyer. Cao Shih, through an
another with the infliction of any wrong
upon his person, honor or property or intermediary, paid Patrick, the Evidence
that of any immediate member or Custodian of the PNP Forensic Chemistry
members of his family in order to prevent Section, the amount of 50,000.00 in
such person from appearing in the consideration for the destruction by
investigation of, or official proceedings Patrick of the drug. Patrick managed to
in, criminal cases, or imposing a destroy the drug. State with reasons
condition, whether lawful or unlawful, in
whether Patrick committed the following
order to prevent a person from
appearing in the investigation of or in crimes. X X X Obstruction of Justice under
official proceedings in, criminal cases; PD 1829.

(i) giving of false or fabricated


information to mislead or prevent the Suggested Answer: Patrick is liable
law enforcement agencies from for obstruction of justice under Section 1 (b)
apprehending the offender or from of PD 1829 because he destroyed the evidence
protecting the life or property of the intended to be used in in the criminal
victim; or fabricating information from proceeding.
the data gathered in confidence by
investigating authorities for purposes of Query: Is a public office an essential
background information and not for element under Sec.1(b)?
publication and publishing or
disseminating the same to mislead the While public office is not an
investigator or to the court. essential element of the offense of
obstruction of justice under Sec. 1(b) of
1.02 GIVE AND EXPLAIN THE ACTS P.D.1829, the circumstances surrounding the
PUNISHABLE UNDER SECTION 1. commission of the offense alleged to have
been committed by accused official are such,
Specifically, the acts punishable however, that the offense may not have been
therein are as follows: committed had said accused not held the
office of mayor.

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(a) harboring or concealing, or agencies from apprehending the offender or
facilitating the escape of, any person from protecting the life or property of the
he knows, or has reasonable ground victim; or fabricating information from the
to believe or suspect, has committed data gathered in confidence by investigating
any offense under existing penal laws authorities for purposes of background
in order to prevent his arrest information and not for publication and
prosecution and conviction; publishing or disseminating the same to
mislead the investigator or to the court.
1.04 Illustrative case of 1(c).
1.05 WHAT IS THE EFFECT IF THERE IS
BAR Q. [2011] A private person who ANOTHER LAW WHICH PUNISHES
assists the escape of a person who THE ACT WITH A HIGHER
committed robbery shall be liable- PENALTY?(SEC.1)

A. as a principal to the crime of robbery. If any of the acts mentioned herein is


B. as an accessory to the crime of robbery. penalized by any other law with a higher
C. as a principal to the crime of obstruction penalty, the higher penalty shall be imposed.
of justice.
D. as an accessory to the crime of 1.06 IF A PERSON IS NOT FOUND LIABLE
obstruction of justice. AS AN ACCESSORY, MAY HE INSTEAD
BE LIABLE UNDER PD 1829?
(d) publicly using a fictitious name for the
purpose of concealing a crime, evading Yes, he may be liable. Even if a person
prosecution or the execution of a judgment, is found not criminally liable as an accessory
or concealing his true name and other under Article 20 of the Revised Penal Code,
personal circumstances for the same he may, however, be liable for acts punished
purpose or purposes; under PD 1829.

(e) delaying the prosecution of criminal 1.07 DIFFERENTIATE AN ACCESSORY


cases by obstructing the service of process or FROM A PRINCIPAL IN PD 1829.
court orders or disturbing proceedings in the
fiscal's offices, in Tanodbayan, or in the An accessory under Article 20 of the
courts; Revised Penal Code is exempt from criminal
liability when the principal is his a) spouse b)
(f) making, presenting or using any record, ascendant c) descendant d) legitimate,
document, paper or object with knowledge of natural or adopted brother sister or relative
its falsity and with intent to affect the course by affinity within the same degree. These
or outcome of the investigation of, or official benefits are not available in PD 1829.
proceedings in, criminal cases;

(g) soliciting, accepting, or agreeing to accept


any benefit in consideration of abstaining -oooOOOooo-
from, discounting, or impeding the
prosecution of a criminal offender;

(h) threatening directly or indirectly another


TRUST IN THE LORD WITH ALL YOUR
with the infliction of any wrong upon his
person, honor or property or that of any HEART, AND LEAN NOT ON YOUR OWN
UNDERSTANDING.
immediate member or members of his family
in order to prevent such person from
appearing in the investigation of, or official IN ALL YOUR WAYS ACKNOWLEDGE HIM,
proceedings in, criminal cases, or imposing a AND HW SHALL MAKE YOUR PATHS
condition, whether lawful or unlawful, in STRAIGHT.
order to prevent a person from appearing in
the investigation of or in official proceedings Proverbs 3:5
in, criminal cases;

(i) giving of false or fabricated information to


mislead or prevent the law enforcement

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