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Special Penal Laws Reviewer
Special Penal Laws Reviewer
Crimes mala in se are felonious acts committed by dolo or culpa as defined in the Revised Penal Code. Lack of criminal
intent is a valid defense, except when the crime results from criminal negligence. On the other hand, crimes mala
prohibita are those considered wrong only because they are prohibited by statute. They constitute violations of mere
rules of convenience designed to secure a more orderly regulation of the affairs of society.
III. Distinction between crimes punished under the Revised Penal Code and crimes punished under special
laws
1
RPC SPL
As to moral trait of the offender
moral trait of the offender is not considered; it is enough that the
considered. This is why liability would prohibited act was voluntarily done.
only arise when there is dolo or culpa
in the commission of the punishable
act.
As to use of good faith as defense
valid defense; unless the crime is the not a defense
result of culpa
As to degree of accomplishment of the crime
taken into account in punishing the The act gives rise to a crime only when it is
offender; thus, there are attempted, consummated; there are no attempted or
frustrated, and consummated stages frustrated stages, unless the special law
in the commission of the crime. expressly penalize the mere attempt or
frustration of the crime.
there is more than one offender, the the degree of participation of the offenders
degree of participation of each in the is not considered. All who perpetrated the
commission of the crime is taken into prohibited act are penalized to the same
account in imposing the penalty; thus, extent. There is no principal or accomplice
offenders are classified as principal, or accessory to consider.
accomplice and accessory.
For example, a special law punishes a certain act as a crime. The special law is silent as to the civil liability of one who
violates the same.
Question: A person who violated the special law and he was prosecuted. His violation caused damage or injury to a
private party. May the court pronounce that he is civilly liable to the offended party, considering that the special law is
silent on this point?
Yes, because Article 10 of the Revised Penal Code may be given suppletory application to prevent an injustice from
being done to the offended party. Article 100 states that every person criminally liable for a felony is also civilly
liable. That article shall be applied suppletory to avoid an injustice that would be caused to the private offended party,
if he would not be indemnified for the damages or injuries sustained by him.
In People v. Rodriguez, it was held that the use of arms is an element of rebellion, so a rebel cannot be further
prosecuted for possession of firearms. A violation of a special law can never absorb a crime punishable under the
Revised Penal Code, because violations of the Revised Penal Code are more serious than a violation of a special law. But
a crime in the Revised Penal Code can absorb a crime punishable by a special law if it is a necessary ingredient of the
crime in the Revised Penal Code
In the crime of sedition, the use of firearms is not an ingredient of the crime. Hence, two prosecutions can be had: (1)
sedition; and (2) illegal possession of firearms.
But do not think that when a crime is punished outside of the Revised Penal Code, it is already a special law. For
example, the crime of cattle-rustling is not a mala prohibitum but a modification of the crime theft of large cattle. So
Presidential Decree No. 533, punishing cattle-rustling, is not a special law. It can absorb the crime of murder. If in the
course of cattle rustling, murder was committed, the offender cannot be prosecuted for murder. Murder would be a
qualifying circumstance in the crime of qualified cattle rustling. This was the ruling in People v. Martinada.
The amendments of Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972) by Republic Act No. 7659, which
adopted the scale of penalties in the Revised Penal Code, means that mitigating and aggravating circumstances can
now be considered in imposing penalties. Presidential Decree No. 6425 does not expressly prohibit the suppletory
application of the Revised Penal Code. The stages of the commission of felonies will also apply since suppletory
application is now allowed.
Part II.
I. Against National Security
A. Human Security Act
-It created the crime known as terrorism and declared it to be “a crime against the Filipino people, against humanity,
and against the law of nations”.
-act punished: sowing and creating a condition of
1. widespread and extraordinary fear &
2. panic among the populace, in order to coerce the government to give in to an unlawful demand”
2. The applicant must have been authorized in writing to file the application by the Anti Terrorism Council (The
Body created to implement the law and assume responsibility for the effective implementation of the anti-
terrorism[policy of the country)
3. The Judicial Authority is effective for a maximum period not to exceed 30 days from date of receipt of the
written order and may be extended for another similar period
B. Punishes the act of failure to notify the person subject of the surveillance, monitoring or interception, if no case
was filed within the 30 day period/life time of the Order of Court authorizing the surveillance
C. Punishes any person who conducts any unauthorized or malicious interceptions and or recording of any form of
communications, messages, conversations, discussions or spoken or written words
VI. Provides for a Judicial Declaration of Terrorists and Outlawed organization, association, or group of persons, by any
RTC upon application by the DOJ and upon prior notice to the group affected.
VII. Procedure when a suspected terrorist is arrested
A. A suspected terrorist maybe arrested by any law enforcement personnel provided:
1. The law enforcement agent was duly authorized in writing by the Anti Terrorism Council
2. The arrest was the result of a surveillance or examination of bank deposits
B. Upon arrest and prior to actual detention, the law enforcement agent must present the suspected terrorist before
any judge at the latter’s residence or office nearest the place of arrest, at any time of the day or night. The judge
shall, within three days, submit a written report of the presentation to the court where the suspect shall have been
charged.
C. Immediately after taking custody of a person charged or suspected as a terrorist, the police or law enforcement
personnel shall notify in writing the judge of the nearest place of apprehension or arrest, but if the arrest is made
during non-office days or after office hours, the written notice shall be served at the nearest residence of the judge
nearest the place of arrest
D. Failure to notify in writing is punished by 10 years and one day to12 years of imprisonment
VIII. Period of Detention : extended to 3days
A. The 3- day period is counted from the moment the person charged or suspected as terrorist has been apprehended
or arrested, detained and taken into custody
B. In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three days
without the written approval of the Human Rights Commission, or judge of the MTC RTC, Sandiganbayan or Court of
Appeals nearest the place of arrest
C. If arrest was on a nonworking day or hour, the person arrested shall be brought to the residence of any of the
above named officials nearest the place of arrest.
D. Failure to deliver the person charged or suspected as terrorists to the proper judicial; authority within three days
is punished by 10 years and one day to 12 years.
IX. Other Acts Punished As Offenses (punished by imprisonment of 10 years and one day to 12 years) which acts are
related to the arrest/detention of suspected terrorists
A. Violation of the rights of a person detained
1. Right to be informed of the nature and cause of the arrest; to remain silent; to counsel
2. To communicate and confer with counsel at any time without restriction
3. To communicate at any time and without restrictions with members of family or relatives and be visited by
them
4. To avail of the services of a physician of choice
XIII. Territorial Application of the law:
The law applies to any person who commits an act covered by the law if committed:
A. Within the terrestrial domain, interior waters, maritime zone and airspace of the Philippines
B. Inside the territorial limits of the Philippines
C. On board a Philippine ship or airship
D. Within any embassy, consulate, diplomatic premises belonging to or occupied by the Philippine government in an
official capacity
E. Against Philippine citizens or persons of Philippine descent where their citizenship or ethnicity was a factor in the
commission of the crime
F. Directly against the Philippine government.
B. Anti-Piracy Act
Question: Compelling the pilot of an aircraft of Philippine Registry to change its destination is __________.
(0.5%)
(A) grave coercion
(B) a violation of the Anti-Hijacking Law or R.A. No. 6235
(C) grave threats
(D) a violation of the Human Security Act of 2007 or the Anti-Terrorism Law
(E) All of the above.
A. Human Security Act/ Terrorism Financing Prevention Act-to protect life, liberty, and property from
acts of terrorism and to condemn terrorism and those who support and finance it and to recognize
it as inimical and dangerous to national security and the welfare of the people, and to make the
financing of terrorism a crime against the Filipino people, against humanity, and against the law of
nations.
SEC. 3. Definition
(e) Designated persons refers to:
(1) any person or entity designated and/or identified as a terrorist, one who finances terrorism, or a terrorist
organization or group under the applicable United Nations Security Council Resolution or by another
jurisdiction or supranational jurisdiction;
(2) any organization, association, or group of persons proscribed pursuant to Section 17 of the Human Security
Act of 2007; or
(3) any person, organization, association, or group of persons whose funds or property, based on probable
cause are subject to seizure and sequestration under Section 39 of the Human Security Act of 2007.
(f) Forfeiture refers to a court order transferring in favor of the government, after due process, ownership of property or
funds representing, involving, or relating to financing of terrorism as defined in Section 4 or an offense under Sections 5,
6, 7, 8, or 9 of this Act.
(g) Freeze refers to the blocking or restraining of specific property or funds from being transacted, converted, concealed,
moved or disposed without affecting the ownership thereof.
(h) Property or funds refer to financial assets, property of every kind, whether tangible or intangible, movable or
immovable, however acquired, and legal documents or instruments in any form, including electronic or digital,
evidencing title to, or interest in, such funds or other assets, including, but not limited to, bank credits, travellers cheques,
bank cheques, money orders, shares, securities, bonds, drafts, or letters of credit, and any interest, dividends or other
income on or value accruing from or generated by such funds or other assets.
(i) Terrorist refers to any natural person who:
(1) commits, or attempts, or conspires to commit terrorist acts by any means, directly or indirectly,
unlawfully and willfully;
(2) participates, as a principal or as an accomplice, in terrorist acts;
(3) organizes or directs others to commit terrorist acts; or
(4) contributes to the commission of terrorist acts by a group of persons acting with a common
purpose where the contribution is made intentionally and with the aim of furthering the terrorist act
or with the knowledge of the intention of the group to commit a terrorist act.
(j) Terrorist acts refer to the following:
(1) Any act in violation of Section 3 or Section 4 of the Human Security Act of 2007;
(2) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking
an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or
context, is to intimidate a population, or to compel a government or an international organization to do or to
abstain from doing any act; xxx
(k) Terrorist organization, association or a group of persons refers to any entity owned or controlled by any terrorist or
group of terrorists that: (1) commits, or attempts to commit, terrorist acts by any means, directly or indirectly, unlawfully
and willfully; (2) participates as an accomplice in terrorist acts; (3) organizes or directs others to commit terrorist acts; or
(4) contributes to the commission of terrorist acts by a group of persons acting with common purpose of furthering the
terrorist act where the contribution is made intentionally and with the aim of furthering the terrorist act or with the
knowledge of the intention of the group to commit a terrorist act.
SEC. 4. Financing of Terrorism. – Any person who, directly or indirectly, willfully and without lawful excuse, possesses,
provides, collects or uses property or funds or makes available property, funds or financial service or other related
services, by any means, with the unlawful and willful intention that they should be used or with the knowledge that they
are to be used, in full or in part: (a) to carry out or facilitate the commission of any terrorist act; (b) by a terrorist
organization, association or group; or (c) by an individual terrorist, shall be guilty of the crime of financing of terrorism
-person who organizes or directs others to commit financing of terrorism under the immediately preceding
paragraph shall likewise be guilty of an offense
-knowledge or intent may be established by direct evidence or inferred from the attendant circumstances.
-not necessary that the funds were actually used to carry out a crime referred to in Section 3(j).
SEC. 5. Attempt or Conspiracy– Any attempt to commit any crime under Section 4 or Section 8 under this Act.
Conspiracy - when two (2) or more persons come to an agreement concerning the commission of such offenses and
decided to commit it.
SEC. 6. Accomplice. –not principal under Article 17 of the Revised Penal Code or a conspirator as defined in Section 5
hereof, cooperates in the execution of either the crime of financing of terrorism or conspiracy to commit the crime of
financing of terrorism by previous or simultaneous acts.
SEC. 7. Accessory. –person having knowledge of the commission of the crime of financing of terrorism but without having
participated therein as a principal, takes part subsequent to its commission, by profiting from it or by assisting the
principal or principals to profit by the effects of the crime, or by concealing or destroying the effects of the crime in order
to prevent its discovery, or by harboring, concealing or assisting in the escape of a principal of the crime shall be imposed
a penalty two degrees lower than that prescribed for principals in the crime of financing terrorism.
SEC. 8. Prohibition Against Dealing with Property or Funds of Designated Persons. – Any person who, not being an
accomplice under Section 6 or accessory under Section 7 in relation to any property or fund:
(i) deals directly or indirectly, in any way and by any means, with any property or fund that he knows or has
reasonable ground to believe is owned or controlled by a designated person, organization, association or
group of persons, including funds derived or generated from property or funds owned or controlled,
directly or indirectly, by a designated person, organization, association or group of persons; or
(ii) makes available any property or funds, or financial services or other related services to a designated
and/or identified person, organization, association, or group of persons, shall suffer the penalty
of reclusion temporal in its maximum period to reclusion perpetua and a fine of not less than Five hundred
thousand pesos (Php500,000.00) nor more than One million pesos (Php1,000,000.00).
SEC. 9. Offense by a Juridical Person, Corporate Body or Alien. – who participated in, or allowed by their gross negligence,
the commission of the crime or who shall have knowingly permitted or failed to prevent its commission. If the offender
is a juridical person, the court may suspend or revoke its license. If the offender is an alien, the alien shall, in addition to
the penalties herein prescribed, be deported without further proceedings after serving the penalties herein prescribed.
SEC. 10. Authority to Investigate Financing of Terrorism. – AMLC, either upon its own initiative or at the request of the
ATC, is hereby authorized to investigate:
(a) any property or funds that are in any way related to financing of terrorism or acts of terrorism;
(b) property or funds of any person or persons in relation to whom there is probable cause to believe that such person
or persons are committing or attempting or conspiring to commit, or participating in or facilitating the financing of
terrorism or acts of terrorism as defined herein.
The AMLC may also enlist the assistance of any branch, department, bureau, office, agency or instrumentality of the
government, including government-owned and -controlled corporations in undertaking measures to counter the
financing of terrorism, which may include the use of its personnel, facilities and resources.
SEC. 11. Authority to Freeze. – AMLC, either upon its own initiative or at the request of the ATC, is hereby authorized to
issue an ex parte order to freeze without delay: (a) property or funds that are in any way related to financing of terrorism
or acts of terrorism; or (b) property or funds of any person, group of persons, terrorist organization, or association, in
relation to whom there is probable cause to believe that they are committing or attempting or conspiring to commit, or
participating in or facilitating the commission of financing of terrorism or acts of terrorism as defined herein.
The freeze order-effective not exceeding twenty (20) days and may be extended up to a period not exceeding six (6)
months upon order of the Court of Appeals provided 20 day period shall be tolled upon filing of a petition to extend the
effectivity of the freeze order.
The AMLC – should issue a freeze order with respect to property or funds of a designated organization, association, group
or any individual to comply with binding terrorism-related Resolutions, including Resolution No. 1373, of the UN Security
Council pursuant to Article 41 of the Charter of the UN. Said freeze order shall be effective until the basis for the issuance
thereof shall have been lifted. During the effectivity of the freeze order, an aggrieved party may, within twenty (20) days
from issuance, file with the Court of Appeals a petition to determine the basis of the freeze order according to the
principle of effective judicial protection.
However, if the property or funds subject of the freeze order under the immediately preceding paragraph are found to
be in any way related to financing of terrorism or acts of terrorism committed within the jurisdiction of the Philippines,
said property or funds shall be the subject of civil forfeiture proceedings as hereinafter provided.
SEC. 19. Extra-Territorial Application of this Act. – Subject to provision existing treaty, including the International
Convention for the Suppression of the Financing of Terrorism of which the Philippines is a State Party, and to any contrary
provision of any law of preferential application, the criminal provisions of this Act shall apply:
(a) to individual persons who, although physically outside the territorial limits of the Philippines, commit, conspire or plot
to commit any of the crimes defined and punished in this Act inside the territorial limits of the Philippines;
(b) to individual persons who, although physically outside the territorial limits of the Philippines, commit any of the said
crimes on board Philippine ship or Philippine airship;
(c) to individual persons who commit any of said crimes within any embassy, consulate, or diplomatic premises belonging
to or occupied by the Philippine government in an official capacity;
(d) to individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes
against Philippine citizens or persons of Philippine descent, where their citizenship or ethnicity was a factor in the
commission of the crime; and
(e) to individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes
directly against the Philippine government.
- apply to a Filipino national who, although outside the territorial jurisdiction of the Philippines, commit, conspire
or plot to commit any of the crimes defined and punished in this Act.
- alien whose extradition is requested pursuant to the International Convention for the Suppression of the
Financing of Terrorism, and that alien is not extradited to the requesting State, the Republic of the Philippines,
without exception whatsoever and whether or not the offense was committed in the Philippines, shall submit
the case without undue delay to the Department of Justice for the purpose of prosecution in the same manner
as if the act constituting the offense had been committed in the Philippines, in which case, the courts of the
Philippines shall have jurisdiction over the offense.
a. Anti-Torture Act
No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against
him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. Section 12,
Article III of the 1987 Constitution
R.A 9745 Anti Torture
(a) to value the dignity of every human person and guarantee full respect for human rights;
(b) to ensure that the rights of all persons, including suspects, detainees and prisoners are
respected at all times; that no person placed under investigation or held in custody by any person
in authority or agent of a person in authority shall be subjected to torture, physical harm, force,
violence, threat or intimidation or any act that impairs his/her free will; and that secret detention
places, solitary, incommunicado or other similar forms of detention, where torture may be carried
out with impunity, are hereby prohibited; and
2. food deprivation or forcible feeding with spoiled food, animal or human excreta
and other stuff or substances not normally eaten;
3. electric shock;
4. cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing
of pepper or other chemical substances on mucous membranes, or acids or spices
directly on the wound(s);
5. the submersion of the head in water or water polluted with excrement, urine,
vomit and/or blood until the brink of suffocation;
7. rape and sexual abuse, including the insertion of foreign bodies into the sex organ
or rectum, or electrical torture of the genitals;
8. mutilation or amputation of the essential parts of the body such as the genitalia,
ear, tongue, etc.;
11. harmful exposure to the elements such as sunlight and extreme cold;
12. the use of plastic bag and other materials placed over the head to the point of
asphyxiation;
13. the use of psychoactive drugs to change the perception, memory, alertness or
will of a person, such as: (i) the administration of drugs to induce confession and/or
reduce mental competency; or (ii) the use of drugs to induce extreme pain or
certain symptoms of a disease; and
4. prolonged interrogation;
5. preparing a prisoner for a “show trial”, public display or publichumiliation of a
detainee or prisoner;
6. causing unscheduled transfer of a person deprived of liberty from one place to
another, creating the belief that he/she shall be summarily executed;
7. maltreating a member/s of a person’s family;
8. causing the torture sessions to be witnessed by the person’s family, relatives or
any third party;
9. denial of sleep/rest;
10. shame infliction such as stripping the person naked, parading him/her in public
places, shaving the victim’s head or putting marks on his/her body against his/her
will;
11. deliberately prohibiting the victim to communicate with any member of his/her
family; and
12. other analogous acts of mental/psychological torture.
ii. Penalty.
(1) penalty of reclusion perpetua upon the perpetrators of the following acts:
1. Torture resulting in the death of any person;
2. Torture resulting in mutilation;
3. Torture with rape;
4. Torture with other forms of sexual abuse and, in consequence of
torture, the victim shall have become insane, imbecile, impotent,
blind or maimed for life; and
5. Torture committed against children.
(2) reclusion temporal shall be imposed on those who commit any act of
mental/psychological torture resulting in insanity, complete or partial
amnesia, fear of becoming insane or suicidal tendencies of the victim due
to guilt, worthlessness or shame.
(3) prision mayor in its medium and maximum periods shall be imposed if, in
consequence of torture, the victim shall have lost the power of speech or
the power to hear or to smell; or shall have lost an eye, a hand, a foot, an
arm or a leg; or shall have lost the use of any such member; or shall have
become permanently incapacitated for labor.
(6) prision correccional in its minimum and medium period shall be imposed
if, in consequence of torture, the victim shall have been ill or incapacitated
for labor for thirty (30) days or less.
(7) arresto mayor shall be imposed for acts constituting cruel, inhuman or
degrading treatment or punishment
Question: X, a police officer, placed a hood on the head of W, a suspected drug pusher, and watched as Y and Z, police
trainees, beat up and tortured W to get his confession. X is liable as
Such deprivation caused him physical discomfort. What crime, if any, was committed in connection with the solitary
confinement and food deprivation of AA? Explain your answer. (5%)
ANSWER:
The crime committed is Violation of RA 9745, The Anti-Torture Act. Food deprivation and
confinement in solitary cell are considered as physical and psychological torture under Section 4(2) of RA 9745.
b. Custodial Investigation
Any person under investigation for the commission of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in
the presence of counsel. Section 12 (1), Article III of the 1987 Constitution
This is different from preliminary investigation but it serves the same purpose: to protect the rights of a detained person.
Custodial investigation involves any questioning by law enforcement people after a person is taken into custody or
deprived of his freedom in any significant manner. That includes "inviting" a person to be investigated in connection of a
crime of which he's suspect and without prejudice to the "inviting" officer for any violation of law. If a person is taken
into custody and the interrogation/questioning tends to elicit incriminating statements, RA 7438 becomes operative
(People vs. Tan, GR 117321, February 11, 1998.) Application of actual force or restraint isn't necessary; intent to arrest
is sufficient as well as the intent of the detainee/arrested person to submit while thinking that submission is necessary.
It will also apply if the "invitation" is given by the military and the designated interrogation site is a military outpost
(Sanchez vs. Demetriou, GR 111771-77, November 9, 1993.)
Once a person has been taken into police custody the rules of RA 7438 are to be applied. The rights of a person under
custodial investigation are the following:
The immediate family includes the following: spouse, parents, children, siblings, grandparents,
grandchildren, uncles, aunts, nephews, nieces, guardians, wards and girlfriends and boyfriends.
If the assisting counsel is a private practitioner, he is entitled to the certain amount for his services
in the custodial investigation:
If counsel is absent, a custodial investigation can't proceed and the detainee must be treated in
accordance with Art. 125 of the Revised Penal Code.
Obstructing counsel, immediate family members, doctors, priests or religious ministers from visiting or conferring with
the detainee at any time of the day (or night in urgent cases, like when the detainee needs to have the sacrament of
anointing the sick administered to him) will be penalized by 4 to 6 years' imprisonment and a fine of Php4,000.
A person under a normal audit investigation is not considered to be under custodial investigation since a COA
audit examiner isn't considered an arresting officer under RA 7438 (Navallo vs. Sandiganbayan, 234 SCRA 175.)
The law does not prohibit the recording of private communications that are authorized by ALL parties.
-ALL the parties to the private conversation expressly or impliedly consent to its being recorded.
-If one party to the communication authorizes the recording, but the other party does not, the party who recorded the
conversation is liable for violating R.A. 4200
What must be proven to sustain a charge of wiretapping or using any other device or arrangement to secretly overhear,
intercept or record a private communication? The prosecution must prove that a wiretap or other device was actually
used to secretly overhear, intercept or record a private communication without a court order.
What must be proven to sustain a charge of possessing a tape, wire, disc or other record, or copies of an illegally obtained
recording of a private communication?
R.A. 4200 requires that the accused knowingly possesses the illegally obtained recording. The Revised Rules on Evidence
define personal knowledge as facts derived from one’s own perception.
(1) that an illegal wiretap actually took place;
(2) that the recording in the possession of the accused emanates from that illegal wiretap; &
(3) that the accused knew, i.e., had personal knowledge, that the recording was obtained illegally. To hold otherwise
would mean that persons could be convicted based on hearsay.
Question: C told his lawyer, Atty. T, to settle the criminal case he filed against L, and so Atty. T called up through telephone
L, and informed him that C is willing to have the case dismissed provided that L pays P8, 000.00 and makes a public
apology. L told Atty. T to call him up the following day as he would consult his lawyer. The following day when Atty. T
called up L, the latter requested his lawyer Atty. X, who was in his (L's) office at that time, to secretly listen to the
telephone conversation through a telephone extension. When the P8, 000.00 agreed upon on the telephone was
delivered to Atty. T at the appointed place and time, he (Atty, T) was arrested by the police for Robbery/Extortion on
complaint of L who was accompanied by his lawyer, Atty. X. Atty. X executed an affidavit stating that he heard Atty. T
demanding P8,000.00 for the withdrawal of the criminal complaint through a telephone extension. On the basis of this
affidavit, Atty, T filed a criminal complaint against Atty. X and L for violation of sec. 1 of RA. No. 4200, otherwise known
as the Anti-Wire Tapping Act. which says: "It shall be unlawful for any person not being authorized by all the parties to
any private conversation or spoken word to tap any wire or cable or by using any other device or arrangement, to secretly
overhear, intercept or record such communication or spoken word by using a device commonly known as Dictaphone or
dictograph or detectaphone, walkie talkie or tape recorder, or however otherwise described." If you were the Judge,
would you convict or acquit L and his lawyer, Atty. X? Support your decision with reasons.
Answer: No, because it is a telephone extension and those enumerated by law means an extension with permanent
recording of which a telephone extension is not. (Gaanan vs. IAC, 145 SCRA 112)
Does a person who has, listens to, distributes or replays, a copy of the alleged “Gloria-Garci” recording violate R.A. 4200?
To violate R.A. 4200, there must first be proof that (1) an illegal wiretap actually occurred; (2) that the recording listened to,
replayed or distributed emanates from that illegal wiretap; and (3) that the person who listened to, replayed or distributed the
recording knew (i.e., had personal knowledge) that the recording was illegally obtained.
Third party’s claim that the recording was wiretapped is not enough to constitute a violation of R.A. 4200, since that is hearsay.
Can a person be arrested without a warrant for possessing or playing or distributing the alleged “Gloria-Garci” recording?
For a person to be validly arrested without a warrant, that person must be caught in the act of committing or attempting to commit
a crime, or when a crime has just been committed and the arresting officer has personal knowledge that that person probably
committed that crime.
Applied to R.A. 4200, law enforcement agents can only arrest a person without a warrant if they have probable cause based on
personal knowledge that the person to be arrested possesses or plays or distributes the recording knowing that it was illegally
obtained. Thus, even if the police have probable cause to believe that a person possesses the alleged “Gloria-Garci” recordings,
they cannot arrest that person unless they also have probable cause that that person has personal knowledge that the recording in
his possession was illegally obtained.
Can the media be prohibited from airing voice recordings that are allegedly illegally obtained?
Freedom of speech, freedom of the press and freedom to assemble and petition the government for redress of grievances are
founded on the need to discuss publicly and truthfully any matter of public concern without censorship or punishment. That is why
our courts have consistently rejected any prior restraint on the communication of views and free exchange of information on
matters of public concern.
Are illegally obtained voice recordings admissible in impeachment proceedings? Section 4 of R.A. 4200 expressly declares that
illegally obtained recordings are inadmissible “in any judicial, quasi-judicial, legislative or administrative hearing or investigation.”
Assuming that a voice recording is admissible in evidence under R.A. 4200, how is it duly authenticated in civil, criminal and
administrative cases? SC requires that “A voice recording is authenticated by the testimony of a witness (1) that he personally
recorded the conversation; (2) that the tape played in court was the one he recorded; and (3) that the voices on the tape are those
of the persons such are claimed to belong.”
Rule 11, Section 1 of the Rules on Electronic Evidence: “audio, photographic and video evidence of events, acts or transactions
shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or
authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof.”
What are the penalties for violating the Anti-Wire Tapping Law?
The direct participants to the wiretapping, and any one who aids, permits or causes the violation are, upon conviction, punished
by imprisonment of not less than six months nor more than six years. If the offender is a public official at the time of the offense,
he shall suffer the accessory penalty of perpetual absolute disqualification from public office. If the offender is a foreigner, he shall
be subject to deportation.