UPDATED

SPECIAL PENAL LAWS

By:
JUDGE OSCAR B. PIMENTEL
Regional Trial Court, Branch 148,
Makati City
INDETERMINATE SENTENCE LAW
(Act No. 4103 as amended by Act No. 4225)
WHEN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE
IS NOT ENTITLED TO THE APPLICATION OF THE INDETERMINATE
SENTENCE LAW
Accused-appellant cannot avail of the benefits of the Indeterminate
Sentence Law because Indeterminate Sentence Law does not apply to
persons convicted of offenses punishable with reclusion perpetua.
(People v. Aquino; GR 125906, Jan. 16, 98)
APPLICATION OF INDETERMINATE
SENTENCE LAW EXPLAINED
In the case of People vs. Gabres, the Court has had occasion to so
state that
"Under the Indeterminate Sentence Law, the maximum term
of the penalty shall be 'that which, in view of the attending
circumstances, could be properly imposed' under the Revised Penal
Code, and the minimum shall be within the range of the penalty next
lower to that prescribed' for the offense. The penalty next lower
should be based on the penalty prescribed by the Code for the
offense, without first considering any modifying circumstance
attendant to the commission of the crime. The determination of the
minimum penalty is left by law to the sound discretion of the court
and it can be anywhere within the range of the penalty next lower
without any reference to the periods into which it might be
subdivided. The modifying circumstances are considered only in the
imposition of the maximum term of the indeterminate sentence.

"The fact that the amounts involved in the instant case

exceed P22,000.00 should not be considered in the initial
determination of the indeterminate penalty; instead, the matter
should be so taken as analogous to modifying circumstances in the
imposition of the maximum term of the full indeterminate sentence.
This interpretation of the law accords with the rule that penal laws
should be construed in favor of the accused. Since the penalty
prescribed by law for the estafa charge against accused-appellant is
prision correccional maximum to prision mayor minimum, the penalty
next lower would then be prision correccional minimum to medium.
Thus, the minimum term of the indeterminate sentence should be
anywhere within six (6) months and one (1) day to four (4) years and
two (2) months . . ."
(People v. Saley; GR 121179, July 2, 98)
INDETERMINATE SENTENCE LAW;
APPLICABLE ALSO IN DRUG CASES:
The final query is whether or not the Indeterminate Sentence Law is
applicable to the case now before us. Apparently it does, since drug offenses
are not included in nor has appellant committed any act which would put him
within the exceptions to said law and the penalty to be imposed does not
involve reclusion perpetua or death, provided, of course, that the penalty as
ultimately resolved will exceed one year of imprisonment. The more
important aspect, however, is how the indeterminate sentence shall be
ascertained. It is true that Section 1 of said law, after providing for
indeterminate sentence for an offense under the Revised Penal Code, states
that "if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less
than the minimum term prescribed by the same" We hold that this quoted
portion of the section indubitably refers to an offense under a special law
wherein the penalty imposed was not taken from and is without reference to
the Revised Penal Code, as discussed in the preceding illustrations, such
that it may be said that the "offense is punished" under that law. There can
be no sensible debate that the aforequoted rule on indeterminate sentence
for offenses under special laws was necessary because of the nature of the
former type of penalties under said laws which were not included or
contemplated in the scale of penalties in Article 71 of the Code, hence there
could be no minimum "within the range of the penalty next lower to that
prescribed by the Code for the offense," as is the rule for felonies therein. In
the illustrative examples of penalties in special laws hereinbefore provided,
this rule applied, and would still apply, only to the first and last examples.

Furthermore, considering the vintage of Act No. 4103 as earlier noted, this
holding is but an application and is justified under the rule of contemporanea
expositio. Republic Act No. 6425, as now amended by Republic Act No.
7659, has unqualifiedly adopted the penalties under the Revised Penal Code
in their technical terms, hence with their technical signification and effects. In
fact, for purposes of determining the maximum of said sentence, we have
applied the provisions of the amended Section 20 of said law to arrive at
prision correccional and Article 64 of the Code to impose the same in the
medium period. Such offense, although provided for in a special law, is now
in the effect punished by and under the Revised Penal Code.
(People v Martin Simon)

OF RECLUSION PERPETUA

WHEN THE BENEFITS OF INDETERMINATE SENTENCE LAW IS NOT

APPLICABLE;

Suppose the court imposed a penalty of 25 years of reclusion

perpetua for the crime of rape and the accused did not appeal, does the
judgment become final and executory? No, such judgment is null and void
because it imposed a non-existent penalty. Hence, the court may
nevertheless correct the penalty imposed on the accused, that is, reclusion
perpetua, it is merely performing a duty inherent in the court.
(People versus Nigel Gatward, GR No.
119772-73, February 7, 1997)

a.
b.
c.
d.
e.
f.
g.
h.
exceed one year.
i.
j.

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

Offenses punished by death or life imprisonment.

Those convicted of treason (Art. 114), conspiracy or
proposal to commit treason (Art. 115).
Those convicted of misprision of treason (Art. 116), rebellion
(Art. 134), sedition (Art. 139), or espionage (Art. 117).
Those convicted of piracy (Art. 122).
Habitual delinquents (Art. 62, par. 5).
Those who escaped from confinement or those who evaded
sentence.
Those granted conditional pardon and who violated the
terms of the same (Art. 159). (People v. Corral, 74 Phil. 359).
Those whose maximum period of imprisonment does not

DIFFERENCE BETWEEN RECLUSION PERPETUA AND LIFE

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

Those who are already serving final judgment upon the

approval of the Indeterminate Sentence Law.
those offenses or crimes not punishable by imprisonment
such as distierro and suspension.

RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE

INDETERMINATE SENTENCE

WHICH IS MORE BURDENSOME LIFE IMPRISONMENT OF RECLUSION

PERPETUA

Recidivists are entitled to an indeterminate sentence. (People v.

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

Reclusion perpetua has accessory penalties while life imprisonment

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

NATURE OF PENALTY

RECLUSION PERPETUA AND LIFE IMPRISONMENT CANNOT BE

INTER-CHANGED WHEN IMPOSED AS PENALTY

his preventive imprisonment because Article 29 of the Revised Penal Code

does not distinguish between divisible and indivisible penalties.
(People -vs- Rolando Corpuz,
231 SCRA 480)

Where the law violated provides for the penalty of reclusion

perpetua, impose the said penalty and not the penalty of life imprisonment.
Where the law imposes the penalty of life imprisonment, do not impose
reclusion perpetua.

QUALIFIED THEFT

(People -vs- Rolando Madriaga, 211 SCRA 698)

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

THE REASON WHY RECLUSION PERPETUA HAS A RANGE DESPITE

THE SAME BEING INDIVISIBLE

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

There we also said that "if reclusion perpetua was reclassified as a

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

(People -vs- Fernando Canales, 297 SCRA 667)

RARE CASE OF APPLICATION OF RPC IN A SUPPLETORY

CHARACTER DESPITE THE PENALTY BEING LIFE IMPRISONMENT

THE PROBATION LAW (P.D. 968)

and its AMENDMENTS

Where the accused committed qualified violation of PD 704 (fishing

with the use of explosives), the imposable penalty for which is life
imprisonment to death. If the accused is entitled to a mitigating circumstance
of voluntary surrender, the court should impose life imprisonment applying, in
a suppletory character, Articles 13 and 63 of the Revised Penal Code.

PROBATION, ITS MEANING:

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

(People -vs- Priscilla Balasa, GR No.

106357, September 3, 1998)
ACCUSED WHO IS SENTENCED TO RECLUSION PERPETUA IS STILL
ENTITLED TO EITHER FULL OR
OF HIS PREVENTIVE
IMPRISONMENT

PURPOSES OF PROBATION:
a. to promote the correction and rehabilitation of an offender by providing
him with personalized community based treatment;
b. to provide an opportunity for his reformation and reintegration into the
community;

If, during the trial, the accused was detained but, after trial, he was
meted the penalty of reclusion perpetua, he is still entitled to the full credit of

c.

to prevent the commission of offenses.

SUBMISSION OF PETITION AND

TIME OF FILING OFPETITION

WHAT IS A POST SENTENCE

INVESTIGATION REPORT?

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

It is a report of the Parole and Probation Officer after conducting post

sentence investigation and interviews containing the circumstances
surrounding the offense for which the petitioner was convicted. The findings
should be drawn from the court records, police records, statement of
defendants, the aggrieved party and other persons who may know the
petitioner and all other matters material to the petition.

EFFECT OF FILING OF PETITION FOR PROBATION

It will also include the psychological and social information regarding
the probationer; evaluation of the petitioner; suitability for probation; his
potential for rehabilitation; and may include the program for supervision and
suggested terms of conditions of probation and a recommendation either to
deny or grant the probation.

Upon filing of petition for probation, the court shall suspend the
execution of sentence.
Likewise, the filing of a petition for probation shall be deemed a
waiver of the right to appeal and in case an appeal is made immediately after
conviction, a filing of petition for probation still within the period to appeal,
that is within fifteen days from date of promulgation shall be deemed a
withdrawal of the appeal.

WHAT ARE THE MANDATORY

CONDITIONS OF PROBATION?
a. To present himself to the probation officer concerned for supervision
within 72 hours from receipt of said order and

PENDING RESOLUTION OF PETITION,

WHAT ARE THE PRIVILEDGE THAT MAYBE GIVEN TO THE ACCUSEDPETITIONER?

b. to report to the probation officer at least once a month during the period
of probation.

1. if the accused, prior to the promulgation of decision of conviction is out

on bail, he may be allowed on temporary liberty under his bail filed in said
case;
2. if he is under detention, upon motion, he may be allowed temporary
liberty, if he cannot post a bond, on a recognizance of a responsible member
of a community who shall guarantee his appearance whenever required by
the court.

WHAT ARE THE OTHER

CONDITIONS OF PROBATION?
cooperate with a program of supervision;
meet his family responsibilities;
devote himself to a specific employment and not to charge said employment
without prior written approval of the probation officer;
comply with a program of payment of civil liability to the victim of his heirs;
undergo medical, psychological or psychiatric examination and treatment
and/or enter and remain in a specific institution, when required for that
purposes;
pursue a prescribed secular study or vocational training;
attend or reside in a facility established for instruction or recreation of
persons on probation;
refrain from visiting houses of ill-repute;
abstain from drinking intoxicating beverages to excess;

IN CASE THE APPLICANT FOR PROBATION CANNOT BE PRODUCED

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

permit the probation officer or an authorized social worker to visit his home
and place of work;
reside at premises approved by the court and not to change his residence
w/o prior written approval; and
satisfy any other condition related to the rehabilitation of the probationer and
not unduly restrictive of his liberty or incompatible with his freedom of
conscience.
m. plant trees ( see circular of the SC )

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

RULES ON OUTSIDE TRAVEL

OF PROBATIONER

MODIFICATION OF CONDITION
OR PERIOD OF PROBATION

A probationer who desires to travel outside the jurisdiction of the city

or provincial probation officer for not more than 30 days, the permission of
the parole and probation officer must be sought. If for more than thirty (30)
days, aside from the permission of the parole and probation officer, the
permission of the court must likewise be sought.

The court, on motion, or motu propio may modify the conditions of

probation or modify the period of probation as circumstances may warrant.
WHO ARE DISQUALIFIED
TO UNDERGO PROBATION

EFFECT OF APPEAL BY THE

ACCUSED OF HIS CONVICTION

Those sentenced to serve a maximum term of imprisonment of more than six

years.
Those convicted of any offense against the security of the state;
Those who have been previously convicted by final judgment of an offense
punished by imprisonment of not less than one moth and one day and/or a
fine of not less than P200.00;
Those who have been once on probation under the provisions of this decree.
Those convicted of RA 9156.
Those convicted of violation of election laws.

If the accused appeals his conviction for the purpose of totally reversing his
conviction, he is deemed to have waived his right to probation.
The rule that if the accused appeals his conviction only with respect to the
penalty, as he believes the penalty is excessive or wrong, as the penalty is
probationable, and the appellate court sustains the accused may still apply
for probation, has already been abandoned.
An appeal therefore,
irrespective of its purpose, to overturn the entire decision or only with respect
to penalty is a waiver to probation, has already been abandoned. An appeal
therefore, irrespective of its purpose, to overturn the entire decision or only
with respect to penalty is a waiver to probation.

PERIOD OF PROBATION
If the probationer has been sentenced to an imprisonment of not more than
one year, the probation shall not exceed two years;
In all other cases, not to exceed six years;
In case the penalty is fine, the probation shall not be less than the period of
subsidiary imprisonment nor more than twice of the subsidiary imprisonment.

CONFIDENTIALITY OF RECORDS
OF PROBATION
The investigation report and the supervision and history of a
probationer obtained under PD No. 968 and under these rules shall be
privileged and shall not be disclosed directly or indirectly to anyone other
than the probation administration or the court concerned the court which
granted the probation or where the probation was transferred may allow the
probationer to inspect the aforesaid documents or his lawyer, whenever such
disclosure may be desirable or helpful to them.

AMENDMENT TO SECTION 4 OF PD 968:

"Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial
court may, after it shall have convicted and sentenced a defendant, and upon
application by said defendant within the period for perfecting an appeal,
suspend the execution of the sentence and place the defendant on probation
for such period and upon such terms and conditions as it may deem best;

Provided, That no application for probation shall be entertained or granted if

the defendant has perfected the appeal from the judgment of conviction.

MAIN CRITERION FOR DETERMINING

WHO MAY BE GRANTED PROBATION.

"Probation may be granted whether the sentence imposes a term of

imprisonment or a fine only. An application for probation shall be filed with
the trial court. The filing of the application shall be deemed a waiver of the
right to appeal.

The main criterion laid down by the Probation law in determining who may be
granted probation is based on the penalty imposed and not on the nature of
the crime. By the relative lightness of the offense, as measured by the
penalty imposed, more than by its nature, as the law so ordains the offender
is not such a serious menace to society as to be wrested away therefrom, as
the more dangerous type of criminals should be. Hence, in the case at bar,
the first reason given by the respondent judge for his denial of the petition for
probation that, "probation will depreciate the seriousness of the offense
committed" would thus be writing into the law a new ground for disqualifying
a first-offender from the benefits of probation. (Santos v. Cruz-Pano,
1/17/83)

"An order granting or denying probation shall not be appealable."

Thus, a person who was sentenced to destierro cannot apply for
probation. Reason: it does not involved imprisonment or fine.
(PD 1990)
JURISPRUDENCE

TIMELINESS OF FILING APPLICATION FOR PROBATION

UNDERLYING PHILOSOPHY OF PROBATION

The accused must file a Petition for Probation within the period for appeal. If
the decision of conviction has become final and executory, the accused is
barred from filing a Petition for Probation (Pablo Francisco v. C.A., 4/6/95).

The underlying philosophy of probation is indeed one of liberality towards the

accused. It is not served by a harsh and stringent interpretation of the
statutory provisions. Probation is a major step taken by our Government
towards the deterrence and minimizing of crime and the humanization of
criminal justice. In line with the public policy behind probation, the right of
appeal should not be irrevocably lost from the moment a convicted accused
files an application for probation. Appeal and probation spring from the same
policy considerations of justice, humanity, and compassion. (Yusi v Morales,
4/28/83)

ORDER DENYING PROBATION NOT APPEALABLE,

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

PROBATION IS NOT A RIGHT

BUT A PRIVILEGE

EFFECT OF FILING PETITION FOR PROBATION, WAIVER OF RIGHT TO

APPEAL AND FINALITY OF JUDGEMENT

Probation is a mere privilege and its grant rests solely upon the discretion of
the court. As aptly noted in U.S. vs. Durken, this discretion is to be
exercised primarily for the benefit of organized society and only incidentally
for the benefit of the accused. (Tolentino v. Alconcel, G.R. No. 63400,
3/18/83). Even if a convicted person is not included in the list of offenders
disqualified from the benefits of a decree, the grant of probation is
nevertheless not automatic or ministerial, (Pablo Bernardo v. Balagot, 215
SCRA 526) therefore a petition for probation may be denied by the Court.

A judgment of conviction becomes final when the accused files a petition for
probation. However, the judgement is not executory until the petition for probation is
resolved. The filing of the petition for probation is a waiver by the accused of his right
to appeal the judgement of conviction (Heirs of Francisco Abueg v. C.A., supra).

MULTIPLE CONVICTIONS IN SEVERAL CASES

PROBATIONABLE IF PENALTY FOR EACH
CONVICTION IS PROBATIONABLE

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

There is no doubt that drug-pushing is a crime which involves moral

turpitude and implies "every thing which is done contrary to justice, honesty,
modesty or good morals" including "acts of baseness, vileness, or depravity
in the private and social duties which a man owes to his fellowmen or to
society in general, contrary to the accepted rule of right and duty between
man and man." Indeed nothing is more depraved than for anyone to be a
merchant of death by selling prohibited drugs, an act which, as this Court
said in one case, "often breeds other crimes. It is not what we might call a
'contained' crime whose consequences are limited to that crime alone, like
swindling and bigamy. Court and police records show that a significant
number of murders, rapes, and similar offenses have been committed by
persons under the influence of dangerous drugs, or while they are 'high.'
While spreading such drugs, the drug-pusher is also abetting, through his
agreed and irresponsibility, the commission of other crimes." The image of
the judiciary is tarnished by conduct, which involves moral turpitude. While
indeed the purpose of the Probation Law (P.D. No. 968, as amended) is to
save valuable human material, it must not be forgotten that unlike pardon
probation does not obliterate the crime of which the person under probation
has been convicted. The reform and rehabilitation of the probationer cannot
justify his retention in the government service. He may seek to reenter
government service, but only after he has shown that he is fit to serve once
again. It cannot be repeated too often that a public office is a public trust,
which demands of those in its service the highest degree of morality. (OCA
v. Librado 260 SCRA 624, 8/22/96)

REASON FOR FIXING CUT OFF POINT AT A MAXIMUM OF SIX YEARS

IMPRISONMENT FOR PROBATION.
Fixing the cut-off point at a maximum term of six (6) years
imprisonment for probation is based on the assumption that those sentenced
to higher penalties pose too great a risk to society, not just because of their
demonstrated capability for serious wrongdoing but because of the gravity
and serious consequences of the offense they might further commit. The
Probation Law, as amended, disqualifies only those who have been
convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The
Revised Penal Code, and not necessarily those who have been convicted of
multiple offenses in a single proceeding who are deemed to be less
perverse. Hence, the basis of the disqualification is principally the gravity of
the offense committed and the concomitant degree of penalty imposed.
Those sentenced to a maximum term not exceeding six (6) years are not
generally considered callous, hard core criminals, and thus may avail of
probation

PETITIONER MAY STILL EXHORT OFFENDER

TO PERFORM CERTAIN ACTS DESPITE
DISCHARGE FROM PROBATION IN
CERTAIN CASES

VIOLATION OF RA 6425,
A VALID CAUSE FOR DISMISSAL
IN SERVICE IN THE GOVERNMENT
DESPITE PROBATION

Petitioner Arthur M. Cuevas, Jr.'s discharge from probation without any

infraction of the attendant conditions therefor and the various certifications
attesting to his righteous, peaceful and civic-oriented character prove that he
has taken decisive steps to purge himself of his deficiency in moral character
and atone for the unfortunate death of Raul I. Camaligan. The Court is
prepared to give him the benefit of the doubt, taking judicial notice of the
general tendency of the youth to be rash, temerarious and uncalculating. Let
it be stressed to herein petitioner that the lawyer's oath is not a mere
formality recited for a few minutes in the glare of flashing cameras and before
the presence of select witnesses. Petitioner is exhorted to conduct himself
beyond reproach at all times and to live strictly according to his oath and the
Code of Professional Responsibility. And, to paraphrase Mr. Justice Padilla's
comment in the sister case of Re: Petition of Al Argosino To Take The
Lawyer's Oath, Bar Matter No. 712, March 19, 1997, "[t]he Court sincerely

Drug-pushing, as a crime, has been variously condemned as "an

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

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

robbing and stealing have become profitable. Hence, a law was enacted to also punish those
who buy stolen properties. For if there are no buyers then the malefactors could not profit
from their wrong doings.
WHAT IS FENCING LAW AND HOW IT CAN BE COMMITTED

EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION,

ORDER OF COURT REQUIRED

"Fencing" is the act of any person who, with intent to gain for himself
or for another, shall buy receive, possess, keep, acquire, conceal, sell or
dispose of, or shall buy and sell, or in any other manner deal in any article,
item, object or anything of value which he knows, or should be known to him,
to have been derived from the proceeds of the crime of robbery or theft. A
"Fence" includes any person, firm, association corporation or partnership or
other organization who/ which commits the act of fencing.

The mere expiration of the period for probation does not, ipso facto,
terminate the probation. Probation is not co-terminus with its period, there
must be an order from the Court of final discharge, terminating the probation.
If the accused violates the condition of the probation before the issuance of
said order, the probation may be revoked by the Court (Manuel Bala v.
Martinez, 181 SCRA 459).

WHO ARE LIABLE FOR THE CRIME OF FENCING; AND ITS PENALTIES:
ANTI-FENCING LAW
OF 1979 (PD NO. 1612)

The person liable is the one buying, keeping, concealing and selling
the stolen items. If the fence is a corporation, partnership, association or firm,
the one liable is the president or the manager or the officer who knows or
should have know the fact that the offense was committed.

DEFINITION
Fencing as defined in Sec. 2 of PD No. 1612 (Anti-Fencing Law)
is the act of any person who, with intent to gain for himself or for
another, shall buy, receive, possess, keep, acquire, conceal, sell or
dispose of, or shall buy and sell, or in any manner deal in any article,
item, object or anything of value which he knows or should be known
to him, or to have been derived from the proceeds of the crime of
robbery or theft. (Dizon-Pamintuan vs. People, GR 111426, 11 July 94).

The law provide for penalty range for persons convicted of the crime
of fencing. Their penalty depends on the value of the goods or items stolen
or bought:

a.

The penalty of prision mayor, if the value of the property

involved is more than 12,000 pesos but not exceeding 22,000 pesos;
if the value of such property exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but the total
penalty which may be imposed shall not exceed twenty years. In
such cases, the penalty shall be termed reclusion temporal and the
accessory penalty pertaining thereto provided in the Revised Penal
Code shall also be imposed.

BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING LAW

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

b.

The penalty of prision correccional in its medium and

maximum periods, if the value of the property robbed or
stolen is more than 6,000 pesos but not exceeding 12, 000
pesos;

THE PURPOSE OF ENACTING PD 1612

c.

The penalty of prision correccional in its minimum

and medium periods, if the value of the property involved is
more than 200 pesos but not exceeding 6,000 pesos;

The Anti-Fencing Law was made to curtail and put an end to the rampant robbery of
government and private properties. With the existence of "ready buyers", the "business" of

5.
"Station Commander" shall refer to the Station
Commander of the Integrated National Police within the territorial limits of the
town or city district where the store, establishment or entity dealing in the
buying and selling of used secondhand articles is located.

d.

The penalty of arresto mayor in its medium period to

prision correccional in its minimum period, if the value of the
property involved is over 50 but not exceeding 200 pesos;

PROCEDURE FOR SECURING PERMIT/CLEARANCE

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

The Implementing Rules provided for the method of obtaining

clearance or permit. No fee will be charged for the issuance of the
clearance/permit. Failure to secure clearance/permit shall be punished as a
fence, that may result to the cancellation of business license.

RULES REGARDING BUY AND SELL OF GOODS PARTICULARLY

SECOND HAND GOODS

DUTIES AND RESPONSIBILIES OF STATION MANAGER AND OWNER

OF SECONDHAND STORES

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

1.
The Station Commander shall require the owner of a store or
the President, manager or responsible officer in having in stock used secondhand
articles, to submit an initial affidavit within thirty (30) days from receipt of notice for
the purpose thereof and subsequent affidavits once every fifteen (15) days within five
(5) days after the period covered, which shall contain:
a.
complete inventory of such articles including the names and
addresses from whom the articles were acquired.
b.
Full list of articles to be sold or offered for sale including the time
and place of sale
c.
Place where the articles are presently deposited.

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

WHAT MAYBE REQUIRED BY THE STATION COMMANDER OR

OWNER OF SECONDHAND STORES OR DEALERS

1.
"Used secondhand article" shall refer to any goods,
article, items, object or anything of value obtained from an unlicensed dealer
or supplier, regardless of whether the same has actually or in fact been used.

The Station Commander may, require the submission of an

affidavit accompanied by other documents showing proof of
legitimacy of acquisition.

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

2.
Those who wish to secure the permit/clearance, shall file an
application with the Station Commander concerned, which states:
a.
name, address and other pertinent circumstances
b.
article to be sold or offered for sale to the public and the name
and address of the unlicensed dealer or supplier from whom such article was
acquired.
c.
Include the receipt or document showing proof of legitimacy of
acquisition.
3.
The Station Commander shall examine the documents attached
to the application and may require the presentation of other additional documents, if
necessary, to show satisfactory proof of the legitimacy of acquisition of the article,
subject to the following conditions:

3.
"Store", "establishment" or "entity" shall be construed to
include any individual dealing in the buying and selling used secondhand
articles, as defined in paragraph hereof;
4.
"Buy and Sell" refer to the transaction whereby one
purchases used secondhand articles for the purpose of resale to third
persons;

a.
if the Station Commander is not satisfied with the proof of
legitimacy of acquisition, he shall cause the publication of the notice, at the expense
of the one seeking clearance/permit, in a newspaper of general circulation for two
consecutive days, stating:
> articles acquired from unlicensed dealer or supplier
> the names and addresses of the persons from whom they were
acquired
> that such articles are to be sold or offered for sale to the public at
the address of the store, establishment or other entity seeking the
clearance/permit.
4.
If there are no newspapers in general circulation, the party
seeking the clearance/permit shall, post a notice daily for one week on the bulletin
board of the municipal building of the town where the store, firm, establishment or
entity is located or, in the case of an individual, where the articles in his possession
are to be sold or offered for sale.
5.
If after 15 days, upon expiration of the period of publication or of
the notice, no claim is made to any of the articles enumerated in the notice, the
Station Commander shall issue the clearance or permit sought.
6.
If before expiration of the same period for the publication of the
notice or its posting, it shall appear that any of the articles in question is stolen
property, the Station Commander shall hold the article in restraint as evidence in any
appropriate case to be filed.
Articles held in restraint shall kept and disposed of as the
circumstances of each case permit. In any case it shall be the
duty of the Station Commander concerned to advise/notify the
Commission on Audit of the case and comply with such
procedure as may be proper under applicable existing laws,
rules and regulations.
7.
The Station Commander shall, within seventy-two (72) hours
from receipt of the application, act thereon by either issuing the clearance/permit
requested or denying the same. Denial of an application shall be in writing and shall
state in brief the reason/s thereof.
8.
Any party not satisfied with the decision of the Station
Commander may appeal the same within 10 days to the proper INP (now PNP)
District Superintendent and further to the INP (now PNP) Director. The decision of
the Director can still be appealed top the Director-General, within 10 days, whose
decision may be appealed with the Minister (now Secretary) of National Defense,
within 15 days, which decision is final.

ELEMENTS OF VIOLATION OF THE ANTI- FENCING LAW.

1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the commission
of the crime of robbery or theft, buys, receives, possess, keeps, acquires,
conceals, sells, or disposes, or buys and sells, or in any manner deals in
any article, item, object or anything of value, which has been derived
from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item,
or object or anything of value has been derived from the proceeds of the
crime of robbery or theft; and
4. There is, on the part of the accused, intent to gain for himself or for
another. (Dizon-Pamintuan vs People, GR 111426, 11 July 94)
DISCUSSION OF THE ELEMENTS.
A. As regards the first element, the crime of robbery or theft should
have been committed before crime of fencing can be committed. The person
committing the crime of robbery or theft, may or may not be the same person
committing the crime of fencing. As in the case of D.M. Consunji, Inc., vs.
Esguerra, quantities of phelonic plywood were stolen and the Court held that
qualified theft had been committed. In People vs. Lucero there was first a
snatching incident, where the bag of Mrs. Maripaz Bernard Ramolete was
snatch in the public market of Carbon, Cebu City, where she lost a Chinese
Gold Necklace and pendant worth some P4,000.00 to snatchers Manuel
Elardo and Zacarias Pateras. The snatchers sold the items to Manuel
Lucero. Consequently, Lucero was charged with violation of the Anti-Fencing
Law. However, in this case, no eyewitness pointed to Lucero as the
perpetrator and the evidence of the prosecution was not strong enough to
convict him (read this case).
B. The second element speaks of the overt act of keeping, buying,
receiving, possessing, acquiring, concealing, selling or disposing or in any
manner deals with stolen items. It is thus illustrated in the case of Lim vs.
Court of Appeals, where the accused, Juanito Lim stored and kept in his
bodega and subsequently bought or disposed of the nine (9) pieces of stolen
tires with rims owned by Loui Anton Bond.
C. The accused know or should have known that the goods were
stolen. As pointed out in the case of People vs. Adriatico, the court in
convicting Norma Adriatico, stated that it was not impossible for her to know
that the jewelry were stolen because of the fact that Crisilita was willing to
part with a considerable number of jewelry at measly sum, and this should
have apprised Norma of the possibility that they were stolen goods. The

PRIMAFACIE EVIDENCE OF FENCING.

Mere possession of any good, article, item, object or anything of
value which has been the subject of robbery or thievery, shall be prima facie
evidence of fencing.

10

approximate total value of the jewelry were held to be at P20,000.00, and

Norma having bought it from Crisilita for only P2,700. The court also
considered the fact that Norma engage in the business of buying and selling
gold and silver, which business is very well exposed to the practice of
fencing. This requires more than ordinary case and caution in dealing with
customers. As noted by the trial court:

INTENT TO GAIN NEED NOT BE PROVEN IN ANTI-FENCING LAW.

The last element is that there is intent to gain for himself or for
another. However, intent to gain need not be proven in crimes punishable by
a special law such as the Anti-Fencing Law. The crimes punishable by
special laws are called "acts mala prohibita". The rule on the subject is that in
acts mala prohibita, the only inquiry is that, has the law been violated? (in
Gatdner v. People, as cited in US v. Go Chico, 14 Phils. 134) When the act is
prohibited by law, intent is immaterial.

". . . the Court is not inclined to accept the accused's theory of

buying in good faith and disclaimer of ever seeing, much more, buying the
other articles. Human experience belies her allegations as no businessman
or woman at that, would let go of such opportunities for a clean profit at the
expense of innocent owners.

DELIBERATE INTENT OR DOLO OR DECEIT IS NOT ALSO MATERIAL

IN ANTI-FENCING.

WHEN POSSESSION UNDER CERTAIN CIRCUMSTANCES SUCH AS

DISPLAYING THE SAME IN THE SHELVES IS AN ACT OF FENCING.
The Court in convicting Ernesto Dunlao Sr., noted that the stolen
articles composed of farrowing crates and G.I. pipes were found displayed on
petitioner's shelves inside his compound. (Dunalao, Sr. v. CA, 08/22/96)

Likewise, dolo or deceit is immaterial in crimes punishable by special

statute like the Anti-Fencing Law. It is the act itself which constitutes the
offense and not the motive or intent. Intent to gain is a mental state, the
existence if which is demonstrated by the overt acts of the person. The
mental state is presumed from the commission of an unlawful act. (Dunlao v.
CA) again, intent to gain is a mental state, the existence of which is
demonstrated by the overt acts of person, as the keeping of stolen items for
subsequent selling.

WHEN THEFT OR ROBBERY AS FIRST ELEMENT WAS NOT PROVEN.

In the case of People v. Muere (G.R.12902, 10/18/94), the third
element was not proven. This case involves the selling of alleged stolen
Kenwood Stereo Unit in the store Danvir Trading, owned by the spouses
Muere. The store is engaged in buying and selling of second hand
merchandise located at Pasay Road, Makati. The said stereo was bought
from Wynn's Audio, an existing establishment. The court held that there is no
proof that the spouses Muere, had knowledge of the fact that the stereo was
stolen. The spouses Muere purchased the stereo from a known merchant
and the unit is displayed for sale in their store. These actions are not
indicative of a conduct of a guilty person.

A FENCE MAY BE PROSECUTED

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

WHEN THERE IS NO PROOF THAT THE ACCUSED BOUGHT OR SOLD

ARTICLES KNOWING THE SAME TO BE STOLEN. THUS THE THIRD
ELEMENT IS NOT PRESENT.

MERE POSSESSION OF STOLEN ARTICLE

PRIMA FACIE EVIDENCE OF FENCING.
Since Sec. 5 of PD NO. 1612 expressly provides that mere
possession of any good, article, item, object or anything of value which has
been the subject of robbery or thievery shall be prima facie evidence of
fencing. It follows that the accused is presumed to have knowledge of the
fact that the items found in her possession were the proceeds of robbery or
theft. The presumption does not offend the presumption of innocence
enshrined in the fundamental law.

On the same vein, the third element did not exist in the case of D.M.
Consunji, Inc. (Consunji v. Esguerra, 07/30/96) where the subject of the court
action are the alleged stolen phelonic plywood owned by D.M. Consunji, Inc.,
later found to be in the premises of MC Industrial Sales and Seato trading
Company, owned respectively by Eduardo Ching and the spouses Sy.
Respondents presented sales receipts covering their purchase of the items
from Paramount Industrial, which is a known hardware store in Caloocan,
thus they had no reason to suspect that the said items were products of theft.

11

Government Code, of persons running for elective position -"Sec. 40

Disqualifications - (a) Those sentenced by final judgement for an offense
involving moral turpitude..."

DISTINCTION BETWEEN
FENCING AND ROBBERY.

Dela Torre was disqualified because of his prior conviction of the

crime of fencing wherein he admitted all the elements of the crime of fencing.

The law on fencing does not require the accused to have

participation in the criminal design to commit or to have been in any wise
involved in the commission of the crime of robbery or theft. Neither is the
crime of robbery or theft made to depend on an act of fencing in order that it
can be consummated. (People v De Guzman, GR 77368).

ESSENCE OF VIOLATION OF PD 1612,

SEC. 2 OR ANTI-FENCING

DISTINCTION BETWEEN ROBBERY AND FENCING

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

Robbery is the taking of personal property belonging to another, with

intent to gain, by means of violence against or intimidation of any person, or
using force upon anything.
On the other hand, fencing is the act of any person who, with intent
to gain for himself or for another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in any other manner deal
in any article, item, object or anything of value which he knows, or shall be
known to him, to have been derived from the proceeds of the crime of
robbery or theft.

PROOF OF PURCHASE WHEN GOODS

ARE IN POSSESSION OF OFFENDER
NOT NECESSARY IN ANTI-FENCING
The law does not require proof of purchase of the stolen articles by
petitioner, as mere possession thereof is enough to give rise to a
presumption of fencing.

FENCING AS A CRIME INVOLVING

MORAL TURPITUDE.

It was incumbent upon petitioner to overthrow this presumption by

sufficient and convincing evidence. (Caoili v. CA; GR 128369, 12/22/97)

In violation of the Anti-Fencing Law, actual knowledge by the "fence"

of the fact that property received is stolen displays the same degree of
malicious deprivation of one's rightful property as that which animated the
robbery or theft which by their very nature are crimes of moral turpitude.
(Dela Torre v. COMELEC 07/05/96)

BATAS PAMBANSA BLG. 22

BOUNCING CHECKS LAW

Moral turpitude can be derived from the third element - accused

knows or should have known that the items were stolen. Participation of each
felon, one being the robber or the thief or the actual perpetrators, and the
other as the fence, differs in point in time and degree but both invaded one's
peaceful dominion for gain. (Supra) Both crimes negated the principle of
each person's duty to his fellowmen not to appropriate things that they do not
own or return something acquired by mistake or with malice. This signifies
moral turpitude with moral unfitness.

ACTS PUNISHABLE IN BP 22
a.
any person who makes or draws and issues any check to apply on
account or for value, knowing at the time of issue that he does not have
sufficient funds in or credit with the drawee bank, for the payment of such
check in full upon its presentment, which check is subsequently dishonored
by the drawee bank for insufficiency of funds, or credit, or would have been
dishonored for the same reason had not the drawee, without any valid
reason, ordered the bank to stop payment.

In the case of Dela Torre, he was declared disqualified from running

the position of Mayor in Cavinti, Laguna in the last May 8, 1995 elections
because of the fact of the disqualification under Sec. 40 of the Local

12

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

DUE TO STOP PAYMENT

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

c.

Any person who issue any check whose account already closed
whether the drawee knows that his account is closed or not.

AGREEMENT OF PARTIES
REGARDING THE CHECK
IS NOT A DEFENSE

HOW TO ESTABLISH GUILT

OF ACCUSED IN BP 22

In the case of People vs Nitafan, 215 SCRA, the agreement of the

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

To establish her guilt, it is indispensable that the checks she issued

for which she was subsequently charged, be offered in evidence because the
gravamen of the offense charged is the act of knowingly issuing a check with
insufficient funds. Clearly, it was error to convict complainant on the basis of
her letter alone. Nevertheless, despite this incorrect interpretation of a rule
on evidence, we do not find the same as sufficiently constitutive of the
charges of gross ignorance of the law and of knowingly rendering an unjust
decision. Rather, it is at most an error in judgment, for which, as a general
rule, he cannot be held administratively liable. In this regard, we reiterate the
prevailing rule in our jurisdiction as established by current jurisprudence.
(Gutierrez v Pallatao; 8/8/98)

CHECKS ISSUED IN PAYMENT

OF INSTALLMENT STILL IN VIOLATION OF B.P. 22
Checks issued in payment for installment covered by promissory
note and said checks bounced, the drawer is liable if the checks were drawn
against insufficient funds, especially that the drawer, upon signing of the
promissory note, closed his account. Said check is still with consideration.
(Caram Resources v. Contreras)

NOTICE, AN INDISPENSABLE
REQUISITE FOR PROSECUTION

In this case, the Judge was even held administratively liable.

Section 3 of BP 22 requires that the holder of the check or the

drawee bank, must notify the drawer of the check that the same was
dishonored, if the same is presented within ninety days from date of
issuance, and upon notice the drawer has five days within which to make
arrangements for the payment of the check or pay the same in full.

CHECK DRAWN AGAINST

A DOLLAR ACCOUNT IN FOREIGN COUNTRY IS STILL A VIOLATION
OF B.P. 22 AS LONG AS THE CHECK IS DELIVERED ON THE PHILS.
AND IF IT IS PAYABLE OUTSIDE OF THE PHILS.
A check drawn against a dollar account in a foreign country is still
violative of the provisions of BP 22 so long as the check is issued, delivered
or uttered in the Philippines, even if the same is payable outside of the
Philippines (De Villa v. CA)

DUTY OF THE DRAWEE BANK

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

GUARANTEE CHECKS, DRAWER IS NOT LIABLE IF THE LESSOR WHO

IS RECIPIENT OF GUARANTEE CHECK PULLED OUT OF THE LOANED
EQUIPMENT.

DUTY OF THE BANK AND RULE

IN CASE OF DISHONOR

13

The mere act of issuing a worthless check is punishable. Offender

cannot claim good faith for it is malum prohibitum.

In the crime of estafa, deceit and damage are essential elements of

the offense and have to be established with satisfactory proof to warrant
conviction. For violation of the Bouncing Checks Law, on the other hand, the
elements of deceit and damage are neither essential nor required. Rather,
the elements of B.P. Blg. 22 are (a) the making, drawing and issuance of any
check to apply to account or for value; (b) the maker, drawer or issuer knows
at the time of issuance that he does not have sufficient funds in or credit with
the drawee bank for the payment of such check in full upon its presentment;
and, (c) the check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit or would have been dishonored for the same
reason had not the drawer, without valid reason, ordered the bank to stop
payment. (Uy v Court of Appeals, GR 119000, July 28, 1997)

In the case of Magno vs CA, when accused issued a check as

warranty deposit for lease of certain equipment, even knowing that he has no
funds or insufficient funds in the bank is not liable, if the lessor of the
equipment pulled out the loaned equipment. The drawer has no obligation to
make good the check because there is no more deposit to guaranty.
ISSUANCE OF GUARANTEE CHECKS
WHICH WAS DISHONORED IS STILL A VIOLATION OF BP 22.
PREJUDICE OR DAMAGE IS NOT NECESSARRY
The intention of the framers of BP 22 is to make a mere act of
issuing a worthless check malum prohibitum. In prosecutions for violation of
BP 22, therefore, prejudice or damage is not prerequisite for conviction.
The agreement surrounding the issuance of the checks need not be
first locked into, since the law has provided that the mere issuance of any
kind of check; regardless of the intent of the parties, i.e., whether the check is
intended merely to serve as guarantee or deposit, but which checks is
subsequently dishonored, makes the person who issued the check liable.
(Lazaro vs CA, et al., GR 105461).

RULES OR JURISDICTION IN RELATION TO THE COURTS WHERE

BP 22 CASES MAYBE FILED
In respect of the Bouncing checks case, the offense also appears to
be continuing in nature. It is true that the offense is committed by the very
fact of its performance (Colmenares vs. Villar, No. L-27126, May 29, 1970,
33 SCRA 186); and that the Bouncing Checks Law penalizes not only the
fact of dishonor of a check but also the act of making or drawing and
issuance of a bouncing check (People vs. Hon. Veridiano, II, No. L-62243,
132 SCRA 523). The case, therefore, could have been filed also in Bulacan.
As held in Que vs. People of the Philippines, G.R. Nos. 75217-18,
September 11, 1987 "the determinative factor (in determining venue) is the
place of the issuance of the check". However, it is likewise true that
knowledge on the part of the maker or drawer of the check of the
insufficiency of his funds, which is an essential ingredient of the offense is by
itself a continuing eventuality, whether the accused be within one territory or
another (People vs. Hon. Manzanilla, G.R. Nos. 66003-04, December 11,
1987). Accordingly, jurisdiction to take cognizance of the offense also lies in
the Regional Trial Court of Pampanga (now M.T.C. of the proper town of
Pampanga).

CAN A PERSON BE HELD LIABLE FOR VIOLATION OF B.P. 22 IN

ISSUING A CHECK WITH SUFFICIENT FUNDS?
Yes. Paragraph 2 of Section 1 of BP 22 provides:
The same penalty shall be imposed upon any person who having
sufficient funds in or credit with the drawee bank when he makes or draws
and issues a check, shall fail to keep sufficient funds or to maintain a credit to
cover the full amount of the check if presented within a period of 90 days
from the date appearing thereon, for which reason, it is dishonored by the
drawee bank.

And, as pointed out in the Manzanilla case, jurisdiction or venue is

determined by the allegation in the Information, which are controlling (Arches
vs. Bellosillo, 81 Phil. 190, cited in Tuzon vs. Cruz, No. L-27410, August 28,
1975, 66 SCRA 235). The Information filed herein specifically alleges that the
crime was committed in San Fernando Pampanga and therefore within the
jurisdiction of the Court below.

DIFFERENCE BETWEEN ESTAFA

AND VIOLATION OF BP 22

14

from the fact of drawing, issuing or making a check, the payment of which
was subsequently refused for insufficiency of funds. It is important to stress,
however, that this is not a conclusive presumption that forecloses or
precludes the presentation of evidence to the contrary. (Lim Lao v CA 274
SCRA 572)

This ruling was reiterated in the case of Lim vs. Rodrigo, 167 SCRA
487, where it was held:
Besides, it was held in People v. Hon. Manzanilla, supra, that as
"violation of the bad checks act is committed when one 'makes or draws and
issues any check [sic] to apply on account or for value, knowing at the time
issue that he does not have sufficient funds' or having sufficient funds in or
credit with the drawee bank . . . shall fail to keep sufficient funds or to
maintain a credit to cover the full amount of the check if presented within a
period of ninety (90) days from the date appearing thereon, for which reason
it is dishonored by the drawee bank," "knowledge" is an essential ingredient
of the offense charge. As defined by the statute, knowledge, is, by itself, a
continuing eventuality, whether the accused be within one territory or
another. This being the case, the Regional Trial Court of Baguio City has
jurisdiction to try Criminal Case No. 2089-R (688).

WHEN LACK OF KNOWLEDGE AND

LACK OF POWER TO FUND THE
CHECKS IN CASES OF BP 22 A DEFENSE
After a thorough review of the case at bar, the Court finds that
Petitioner Lina Lim Lao did not have actual knowledge of the insufficiency of
funds in the corporate accounts at the time she affixed her signature to the
checks involved in this case, at the time the same were issued, and even at
the time the checks were subsequently dishonored by the drawee bank.

Moreover, we ruled in the same case of People v. Hon. Manzanilla,

reiterated in People vs. Grospe, supra, that jurisdiction or venue is
determined by the allegations in the information. The allegation in the
information under consideration that the offense was committed in Baguio
City is therefore controlling and sufficient to vest jurisdiction upon the
Regional Trial Court of Baguio City.

The scope of petitioner's duties and responsibilities did not

encompass the funding of the corporation's checks; her duties were limited to
the marketing department of the Binondo branch. Under the organizational
structure of Premiere Financing Corporation, funding of checks was the sole
responsibility of the Treasury Department. (Lim Lao v CA 274 SCRA 572)

In the case at bench it appears that the three (3) checks were
deposited in Lucena City. As to the second error wherein the petitioner
asserted that the checks were issued "as a guarantee only for the feeds
delivered to him" and that there is no estafa if a check is issued in payment of
a pre-existing obligation, the Court of Appeals pointed out that the petitioner
obviously failed to distinguish a violation of B.P. Blg. 22 from estafa under
Article 315 (2) [d] of the Revised Penal Code. It further stressed that B.P.
Blg. 22 applies even in cases where dishonored checks were issued as a
guarantee or for deposit only, for it makes no distinction as to whether the
checks within its contemplation are issued in payment of an obligation or
merely to guarantee the said obligation and the history of its enactment
evinces the definite legislative intent to make the prohibition all-embracing.
(Ibasco vs CA, 261 SCRA 572)

LACK OF ADEQUATE NOTICE OF

DISHONOR, A DEFENSE
There can be no prima facie evidence of knowledge of insufficiency
of funds in the instant case because no notice of dishonor was actually sent
to or received by the petitioner.
The notice of dishonor may be sent by the offended party or the
drawee bank. The trial court itself found absent a personal notice of dishonor
to Petitioner Lina Lim Lao by the drawee bank based on the unrebutted
testimony of Ocampo "(t)hat the checks bounced when presented with the
drawee bank but she did not inform anymore the Binondo branch and Lina
Lim Lao as there was no need to inform them as the corporation was in
distress." The Court of Appeals affirmed this factual finding. Pursuant to
prevailing jurisprudence, this finding is binding on this Court. (Lim Lao v CA;
6/20/97)

ACTUAL KNOWLEDGE OF INSUFFICIENCY

OF FUNDS ESSENTIAL IN BP 22
Knowledge of insufficiency of funds or credit in the drawee bank for
the payment of a check upon its presentment is an essential element of the
offense. There is a prima facie presumption of the existence of this element

ANTI-GRAFT & CORRUPT PRACTICES ACT

(RA NO 3019)

15

(g)
ANTI-GRAFT AND CORRUPT
PRACTICES ACT
(h)
Corrupt practices of public officers.
(a)

Persuading, inducing or influencing another public officer to perform an

act constituting a violation of rules and regulations duly promulgated by
competent authority or an offense in connection with the official duties of
the latter, or allowing himself to be persuaded, induced, or influenced to
commit such violation or offense.

(b)

Directly or indirectly requesting or receiving any gift, present, share,

percentage, or benefit, for himself or for any other person, in connection
with any contract or transaction between the Government and any other
part, wherein the public officer in his official capacity has to intervene
under the law.

(c)

Directly or indirectly requesting or receiving any gift, present or other

pecuniary or material benefit, for himself or for another, from any person
for whom the public officer, in any manner or capacity, has secured or
obtained, or will secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without prejudice to
Section thirteen of this Act.

(d)

Accepting or having any member of his family accept employment in a

private enterprise which has pending official business with him during
the pendency thereof or within one year after its termination.

(e)

Causing any undue injury to any party, including the Government, or

giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant
of licenses or permits or other concessions.

Entering, on behalf of the Government, into any contract or transaction

manifestly and grossly disadvantageous to the same, whether or not the
public officer profited or will profit thereby.
Director or indirectly having financing or pecuniary interest in any
business, contract or transaction in connection with which he intervenes
or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.

(i)

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

material interest in any transaction or act requiring the approval of a
board, panel or group of which he is a member, and which exercises
discretion in such approval, even if he votes against the same or does
not participate in the action of the board, committee, panel or group.
Interest for personal gain shall be presumed against those public
officers responsible for the approval of manifestly unlawful, inequitable,
or irregular transaction or acts by the board, panel or group to which
they belong.

( j)

Knowingly approving or granting any license, permit, privilege or benefit

in favor of any person not qualified for or not legally entitled to such
license, permit, privilege or advantage, or of a mere representative or
dummy of one who is not so qualified or entitled.

(k) Divulging valuable information of a confidential character, acquired by his

office or by him on account of his official position to unauthorized
persons, or releasing such information in advance of its authorized
release date.
UNEXPLAINED WEALTH,
MEANING
Prima facie evidence of and dismissal due to unexplained wealth. If
in accordance with the provisions of RA 1379, a public official has been
found to have acquired during his incumbency, whether in his name or in the
name of other persons, an amount of property and/or money manifestly out
of proportion to his salary and to his other lawful income, that fact shall be a
ground for dismissal or removal.

( f ) Neglecting or refusing, after due demand or request, without sufficient

justification, to act within a reasonable time on any matter pending
before him for the purpose of obtaining, directly or indirectly, from any
person interested in the matter some pecuniary or material benefit or
advantage, or for the purpose of favoring his own interest or giving
undue advantage in favor of or discriminating against any other
interested party.

Note: Unsolicited gifts or presents of small or insignificant value shall be

offered or given as a mere ordinary token of gratitude or friendship according
to local customs or usage shall be exempted from the provision of this act.
MEANING OF
CAUSING UNDUE INJURY

16

The act of giving any private party any unwarranted benefit,

advantage or preference is not an indispensable element of causing any
undue injury to any part, although there may be instances where both
elements concur. (Santiago vs Garchitorena, et al., 2 Dec. 93).

VIOLATION OF SECTION 3 (E) OF RA 3019

REQUIRES PROOF OF THE FOLLOWING
FACTS, VIZ:

In Mejoroda v Sandiganbayan, the Supreme Court has ruled that the

offender in causing undue injury does not refer only to those who are in
charge of giving permits, licenses or concessions but all acts of public
officers or employees which have caused undue injury to others.

a. the accused is a public officer discharging administrative or official

functions or private persons charged in conspiracy with them;

ELEMENTS OF NEGLECT OF DUTY UNDER

SEC. 3 OF RA 3019

c. the public officer acted with manifest partiality evident bad faith or
gross, inexcusable negligence; and

b. the public officer committed the prohibited act during

performance of his official duty or in relation to his public position;

a. the offender is a public officer;

b. the said officer has neglected or has refused to act without sufficient
justification after due demand or request has been made upon him;
c. reasonable time has elapsed from such demand or request without
the public officer having acted on the matter pending before him;
d. such failure to so act is for the purpose of obtaining directly or
indirectly from any person interested in the matter some pecuniary or
material benefit or advantage in favor of an interested party or
discriminating against another. Coronado v Sandiganbayan.

d. his action caused undue injury to the government or any private

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

WHERE PUBLIC OFFICER ACTED

WITH MANIFEST PARTIALITY,
EVIDENT BAD FAITH, OR INEXCUSABLE
NEGLIGENCE
Sec. 3. Corrupt practices of public officers. - In addition to acts or
omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:
xxx

xxx

the

xxx

SUSPENSION UNDER R.A. 3019 MANDATORY

BUT COURTS ARE ALLOWED TO DETERMINE
WHETHER INFORMATION IS VALID OR NOT

(e).
Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official administrative or
judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees
of offices or government corporations charged with the grant of licenses or
permits or other concessions.

It is well settled that Section 13 of RA 3019 makes it mandatory for

the Sandiganbayan (or the Court) to suspend any public officer against
whom a valid information charging violation of this law, Book II, Title 7 of the
RPC, or any offense involving fraud upon government or public funds or
property is filed in court. The court trying a case has neither discretion nor
duty to determine whether preventive suspension is required to prevent the

17

accused from using his office to intimidate witnesses or frustrate his

prosecution or continue committing malfeasance in office. All that is required
is for the court to make a finding that the accused stands charged under a
valid information for any of the above-described crimes for the purpose of
granting or denying the sought for suspension. (Bolastig vs. Sandiganbayan,
G.R. No. 110503 [August 4, 1994], 235 SCRA 103).In the same case, the
Court held that "as applied to criminal prosecutions under RA 3019,
preventive suspension will last for less than ninety (90) days only if the case
is decided within that period; otherwise, it will continue for ninety (90) days."
(Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998) (see also sec
13)

As early as 18 December 1967 in Ingco v. Sanchez, 17 this Court

explicitly ruled that the re-election of a public official extinguishes only the
administrative, but not the criminal, liability incurred by him during his
previous term of office, thus:
The ruling, therefore, that "when the people have elected a
man to his office it must be assumed that they did this with knowledge of
his life and character and that they disregarded or forgave his faults or
misconduct if he had been guilty of any" refers only to an action for
removal from office and does not apply to criminal case, because a crime
is a public wrong more atrocious in character than mere misfeasance or
malfeasance committed by a public officer in the discharge of his duties,
and is injurious not only to a person or group of persons but to the State
as a whole. This must be the reason why Article 89 of the Revised Penal
Code, which enumerates the grounds for extinction of criminal liability,
does not include reelection to office as one of them, at least insofar as a
public officer is concerned. Also, under the Constitution, it is only the
President who may grant the pardon of a criminal offense. (Conducto v.
Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

PUBLIC OFFICER MAY BE SUSPENDED FROM HIS PRESENT

POSITION EVEN IF THE CRIME WHICH HE IS BEING CHARGED WAS
COMMITTED DURING HIS PREVIOUS TERM
Judge Monzon's contention denying complainant's Motion for
Suspension because "offenses committed during the previous term (is) not a
cause for removal during the present term" is untenable. In the case of
Rodolfo E. Aguinaldo vs. Hon. Luis Santos and Melvin Vargas, 212 SCRA
768, the Court held that "the rule is that a public official cannot be removed
for administrative misconduct committed during a prior term since his reelection to office operates as a condonation of the officer's previous
misconduct committed during a prior term, to the extent of cutting off the right
to remove him therefor. The foregoing rule, however, finds no application to
criminal cases . . ."
Likewise, it was specifically declared in the case of Ingco vs.
Sanchez, G.R. No. L-23220, 18 December 1967, 21 SCRA 1292, that "The
ruling, therefore, that 'when the people have elected a man to office it must
be assumed that they did this with knowledge of his life and character and
that they disregarded or forgave his faults or misconduct if he had been guilty
of any' refers only to an action for removal from office and does not apply to a
criminal case"

PRE-CONDITION OF SUSPENSION
(PREVENTIVE) UNDER SEC. 13, RA 3019
It is mandatory for the court to place under preventive suspension a
public officer accused before it. Imposition of suspension, however, is not
automatic or self-operative. A pre-condition thereof is the existence of a valid
information, determined at a pre-suspension hearing. Such a hearing is in
accord with the spirit of the law, considering the serious and far-reaching
consequences of a suspension of a public official even before his conviction,
and the demands of public interest for a speedy determination of the issues
involved in the case. The purpose of the pre-suspension hearing is basically
to determine the validity of the information and thereby furnish the court with
a basis to either suspend the accused and proceed with the trial on the
merits of the case, or refuse suspension of the latter and dismiss the case, or
correct any part of the proceeding which impairs its validity. The accused
should be given adequate opportunity to challenge the validity or regularity of
the criminal proceedings against him; e.g. that he has not been afforded the
right to due preliminary investigation; that the acts imputed to him do not
constitute a specific crime (under R.A. 3019 or the Revised Penal Code)
warranting his mandatory suspension from office under Section 13 of the Act;
or that the information is subject to quashal on any of the grounds set out in
Rule 117 of the Rules of Court. But once a proper determination of the
validity of the information has been made, it becomes the ministerial duty of

Clearly, even if the alleged unlawful appointment was committed

during Maghirang's first term as barangay chairman and the Motion for his
suspension was only filed in 1995 during his second term, his re-election is
not a bar to his suspension as the suspension sought for is in connection
with a criminal case. (Conducto v. Monzon 291 scra 619)
RE-ELECTION IN PUBLIC OFFICE
EXTINGUISHING ONLY HIS
ADMINISTRATIVE LIABILITY BUT
NOT HIS CRIMINAL LIABILITY

18

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

Graft Act or for bribery under a valid information requires at the same
time that the hearing be expeditious, and not unduly protracted such as
to thwart the prompt suspension envisioned by the Act. Hence, if the
trial court, say, finds the ground alleged in the quashal motion not to be
indubitable, then it shall be called upon to issue the suspension order
upon its upholding the validity of the information and setting the same
for trial on the merits.' (Segovia v. Sandiganbayan)

GUIDELINES TO BE FOLLOWED
IN PREVENTIVE SUSPENSION CASES
"In the leading case of Luciano, et al. vs. Mariano, et al. (L-32950,
July 30, 1971, 40 SCRA 187), we have set out the guidelines to be followed
by the lower courts in the exercise of the power of suspension under Section
13 of the law, to wit:

WHEN MAY A PUBLIC OFFICER BE

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

(c)
By way of broad guidelines for the lower courts in
the exercise of the power of suspension from office of public officers
charged under a valid information under the provisions of Republic Act
No. 3019 or under the provisions of the Revised Penal Code on
bribery, pursuant to section 13 of said Act, it may be briefly stated that
upon the filing of such information, the trial court should issue an order
with proper notice requiring the accused officer to show cause at a
specific date of hearing why he should not be ordered suspended from
office pursuant to the cited mandatory provisions of the Act. Where
either the prosecution seasonably files a motion for an order of
suspension or the accused in turn files a motion to quash the
information or challenges the validity thereof, such show-cause order
of the trial court would no longer be necessary. What is indispensable
is that the trial court duly hear the parties at a hearing held for
determining the validity of the information, and thereafter hand down its
ruling, issuing the corresponding order of suspension should it uphold
the validity of the information or withhold such suspension in the
contrary case.

xxx

xxx

(c)
Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or preference
in the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions."
To hold a person liable under this section, the concurrence of the
following elements must be established beyond reasonable doubt by the
prosecution:
"(1) That the accused is a public officer or a private person charged in
conspiracy with the former;
(2) That said public officer commits the prohibited acts during the
performance of his or her official duties or in relation to his or her public
positions;
(3) That he or she causes undue injury to any party, whether the
government or a private party; and
(4)
That the public officer has acted with manifest partiality, evident bad
faith or gross inexcusable negligence."
(Llorente v. Sandiganbayan;
GR 122166, Mar. 11, 1998)

(d)
No specific rules need be laid down for such presuspension hearing. Suffice it to state that the accused should be
given a fair and adequate opportunity to challenge the validity of the
criminal proceedings against him, e.g., that he has not been afforded
the right of due preliminary investigation, the act for which he stands
charged do not constitute a violation of the provisions of Republic Act
No. 3019 or of the bribery provisions of the Revised Penal Code which
would warrant his mandatory suspension from office under Section 13
of the Act, or he may present a motion to quash the information on any
of the grounds provided in Rule 117 of the Rules of Court. The
mandatory suspension decreed by the act upon determination of the
pendency in court or a criminal prosecution for violation of the Anti-

MEANING OF BAD FAITH UNDER

SECTION 3(e) OF RA 3019
"Bad faith does not simply connote bad judgment or negligence; it
imputes a dishonest purpose or some moral obliquity and conscious doing of

19

a wrong; a breach of sworn duty through some motive or intent or ill will; it
partakes of the nature of fraud. (Spiegel v Beacon Participations, 8 NE 2nd
Series 895, 1007). It contemplates a state of mind affirmatively operating with
furtive design or some motive of self interest or ill will for ulterior purposes
(Air France v. Carrascoso, 18 SCRA 155, 166-167). Evident bad faith
connotes a manifest deliberate intent on the part of the accused to do wrong
or cause damage."

or material benefit or advantage in favor of an interested party, or

discriminating against another."
However, petitioner is not charged with a violation of Sec. 3[f].
Hence, further disquisition is not proper. Neither may this Court convict
petitioner under Sec. 3[f] without violating his constitutional right to due
process.
(Llorente v. Sandiganbayan)

In Jacinto, evident bad faith was not appreciated because the actions
taken by the accused were not entirely without rhyme or reason; he refused
to release the complainant's salary because the latter failed to submit her
daily time record; he refused to approve her sick-leave application because
he found out that she did not suffer any illness; and he removed her name
from the plantilla because she was moonlighting during office hours. Such
actions were measures taken by a superior against an erring employee who
studiously ignored, if not defied, his authority.
(Llorente v.
Sandiganbayan)

SUSPENSION (PREVENTIVE) OF
LOCAL OFFICIALS SHALL ONLY
BE FOR 60 DAYS
On the other hand, we find merit in petitioner's second assigned
error. The Sandiganbayan erred in imposing a 90 day suspension upon
petitioner for the single case filed against him. Under Section 63 (b) of the
Local Government Code, "any single preventive suspension of local elective
officials shall not extend beyond sixty (60) days."
(Rios v. Sandiganbayan; GR 129913, Set. 26, 1997)

WHEN OFFENDER IS NOT LIABLE UNDER

SEC. 3(e) BUT UNDER SEC. (f) OF RA 3019
APPROVAL OF LEAVE OF ABSENCE
NOT A BAR TO SUSPENSION

It would appear that petitioner's failure or refusal to act on the

complainant's vouchers, or the delay in his acting on them more properly falls
under Sec. 3[f]:

Since the petitioner is an incumbent public official charged in a valid

information with an offense punishable under the Constitution and the laws
(RA 3019 and PD 807), the law's command that he "shall be suspended from
office" pendente lite must be obeyed. His approved leave of absence is not a
bar to his preventive suspension for as indicated by the Solicitor General, an
approved leave, whether it be for a fixed or indefinite period, may be
cancelled or shortened at will by the incumbent. (Doromal v. Sandiganbayan
177 SCRA 354)

"(f)
Neglecting or refusing, after due demand or request,
without sufficient justification, to act within a reasonable time on any
matter pending before him for the purpose of obtaining, directly or
indirectly, from any person interested in the matter some pecuniary
or material benefit or advantage, or for purpose of favoring his own
interest or giving undue advantage in favor of or discriminating
against any other interested party."
Here, the neglect or refusal to act within a reasonable time is the
criminal act, not the causing of undue injury. Thus, its elements are:

UNDUE DELAY IN PRELIMINARY

INVESTIGATIONS VIOLATIVE OF
DUE PROCESS AND A GROUND TO DISMISS

"1) The offender is a public officer;

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

After a careful review of the facts and circumstances of this case, we

are constrained to hold that the inordinate delay in terminating the
preliminary investigation and filing the information in the instant case is
violative of the constitutionally guaranteed right of the petitioner to due
process and to a speedy disposition of the cases against him. Accordingly,
the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and

20

10503 should be dismissed. In view of the foregoing, we find it unnecessary

to rule on the other issues raised by petitioner. (Tatad v. Sandiganbayan)

circumstance in the crimes of rape (Article 335) and acts of lasciviousness

(Article 336). 57
If relationship in the instant case were to be appreciated under
Article 15 of the Revised Penal Code, the penalty imposable on accused
then would not be death, but merely reclusion perpetua for, assuming that
Relanne's testimony in court would have confirmed what she narrated in her
sworn statement (Exhibit "C"), no circumstance then attended the
commission of the rape which could bring the crime under any provision of
Article 335 which imposes a penalty higher than reclusion perpetua or of
reclusion perpetua to death. (People v. Manyuhod, Jr.)

DEATH PENALTY LAW

(RA 7659)
PROSTITUTES CAN BE A VICTIM OF RAPE
As to the suggestion that ANALIZA was a prostitute, that alone, even
if it be conceded, cannot absolve him of his liability for rape. First, prostitutes
can be victims of rape. (People v. Alfeche)

WHEN OFFENDER IS STEP GRANDPARENT,

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

REASON WHY DWELLING

IS AN AGGRAVATING CIRCUMSTANCE

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

Dwelling is considered an aggravating circumstance because

primarily of the sanctity of privacy the law accords to human abode. The
dwelling need not be owned by the victim. Thus, in People v. Basa, dwelling
was appreciated, although the victims were killed while sleeping as guests in
the house of another. As aptly stated in People v. Balansit: "[O]ne does not
lose his right of privacy where he is offended in the house of another
because as [an] invited guest [or a housemaid as in the instant case], he, the
stranger, is sheltered by the same roof and protected by the same intimacy
of life it affords. It may not be his house, but it is, even for a brief moment,
"home" to him. He is entitled to respect even for that short moment." (People
v. Alfeche)

"It is a basic rule of statutory construction that penal

statutes are to be liberally construed in favor of the accused.
Court's must not bring cases within the provision of a law
which are not clearly embraced by it. No act can be
pronounced criminal which is not clearly made so by statute;
so, too, no person who is not clearly within the terms of a
statute can be brought within them. Any reasonable doubt
must be resolved in favor of the accused."
(People v. Deleverio)

WHEN RELATIONSHIP IS NOT AN

ALTERNATIVE CIRCUMSTANCE
UNDER ART. 15 OF THE RPC
Clearly then, the father-daughter relationship in rape cases, or
between accused and Relanne, in this case, has been treated by Congress
in the nature of a special circumstance which makes the imposition of the
death penalty mandatory. Hence, relationship as an alternative circumstance
under Article 15 of the Revised Penal Code, appreciated as an aggravating
circumstance, should no longer be applied in view of the amendments
introduced by R.A. No. 7659. It may be pointed, however, that without the
foregoing amendment, relationship would still be an aggravating

RECLUSION PERPETUA IS LIGHTER THAN LIFE IMPRISONMENT AND

IF ONE IS SENTENCED TO LIFE IMPRISONMENT AND LATER THE
PENALTY OF RECLUSION PERPETUA WAS IMPOSED TO SAME
OFFENSE, THE PENALTY THAT SHOULD BE IMPOSED IS RECLUSION
PERPETUA
Since reclusion perpetua is a lighter penalty than life imprisonment,
and considering the rule that criminal statutes with a favorable effect upon
the accused have, as to him, a retroactive effect, the penalty imposable upon

21

the accused should be reclusion perpetua and not life imprisonment.

(People v. Latura)

'punishments are cruel when they involve torture or a lingering death, but the
punishment of death is not cruel, within the meaning of that word as used in
the constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life.'"

JUSTIFICATION FOR THE IMPOSITION

OF THE DEATH PENALTY

as long as that penalty remains in the statute books, and as long as

our criminal law provides for its imposition in certain cases, it is the duty of
judicial officers to respect and apply the law regardless of their private
opinions," and this we have reiterated in the 1995 case of People v.
Veneracion. (People v. Echegaray)

Although its origins seem lost in obscurity, the imposition of death as

punishment for violation of law or custom, religious or secular, is an ancient
practice. We do know that our forefathers killed to avenge themselves and
their kin and that initially, the criminal law was used to compensate for a
wrong done to a private party or his family, not to punish in the name of the
state.

DEATH PENALTY WAS NOT

ABOLISHED BUT MERELY SUSPENDED

The dawning of civilization brought with it both the increasing

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

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

One of the indispensable powers of the state is the power to secure

society against threatened and actual evil. Pursuant to this, the legislative
arm of government enacts criminal laws that define and punish illegal acts
that may be committed by its own subjects, the executive agencies enforce
these laws, and the judiciary tries and sentences the criminals in accordance
with these laws.

DEFINITION OF HEINOUS CRIMES

". . . the crimes punishable by death under this Act are heinous for
being grievous, odious and hateful offenses and which, by reason of their
inherent or manifest wickedness, viciousness, atrocity and perversity are
repugnant and outrageous to the common standards and norms of decency
and morality in a just, civilized and ordered society." (People v. Echegaray)

Although penologists, throughout history, have not stopped debating

on the causes of criminal behavior and the purposes of criminal punishment,
our criminal laws have been perceived as relatively stable and functional
since the enforcement of the Revised Penal Code on January 1, 1932, this
notwithstanding occasional opposition to the death penalty provisions
therein. The Revised Penal Code, as it was originally promulgated, provided
for the death penalty in specified crimes under specific circumstances. As
early as 1886, though, capital punishment had entered our legal system
through the old Penal Code, which was a modified version of the Spanish
Penal Code of 1870. (People v. Echegaray)

WHAT ARE THE CRIMES PUNISHABLE

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

WHY DEATH PENALTY IS NOT

A CRUEL AND UNUSUAL PUNISHMENT

(1)
(2)
(3)
(4)
(5)

"The penalty complained of is neither cruel, unjust nor excessive. In

Ex-parte Kemmler, 136 U.S., 436, the United States Supreme Court said that

22

Treason (Sec. 2);

Qualified piracy (Sec. 3);
Parricide (Sec. 5);
Murder (Sec. 6);
Infanticide (Sec. 7);

(6)

Kidnapping and serious illegal detention if attended by any of

the following four circumstances: (a) the victim was detained
for more than three days; (b) it was committed simulating
public authority; (c) serious physical injuries were inflicted on
the victim or threats to kill him were made; and (d) if the
victim is a minor, except when the accused is any of the
parents, female or a public officer (Sec. 8);
(7)
Robbery with homicide, rape or intentional mutilation (Sec.
9);
(8)
Destructive arson if what is burned is (a) one or more
buildings or edifice; (b) a building where people usually
gather; (c) a train, ship or airplane for public use; (d) a
building or factory in the service of public utilities; (e) a
building for the purpose of concealing or destroying evidence
Or a crime; (f) an arsenal, fireworks factory, or government
museum; and (g) a storehouse or factory of explosive
materials located in an inhabited place; or regardless of what
is burned, if the arson is perpetrated by two or more persons
(Sec. 10);
(9)
Rape attended by any of the following circumstances: (a) the
rape is committed with a deadly weapon; (b) the rape is
committed by two or more persons; and (c) the rape is
attempted or frustrated and committed with homicide (Sec.
11);
(10)
Plunder involving at least P50 million (Sec. 12);
(11)
Importation of prohibited drugs
(Sec. 13);
(12)
Sale, administration, delivery, distribution, and transportation
of prohibited drugs (id.);
(13)
Maintenance of den, dive or resort for users of prohibited
drugs (id.);
(14)
Manufacture of prohibited drugs (id.);
(15)
Possession or use of prohibited drugs in certain specified
amounts (id.);
(16)
Cultivation of plants which are sources of prohibited drugs
(id.)
(17)
Importation of regulated drugs
(Sec. 14);
(18)
Manufacture of regulated drugs (id.);
(19)
Sale, administration, dispensation, delivery, transportation,
and distribution of regulated drugs (id.);
(20)
Maintenance of den, dive, or resort for users of regulated
drugs (Sec. 15);
(21)
Possession or use of regulated drugs in specified amounts
(Sec. 16);

(22)
(23)
(24)

Misappropriation, misapplication or failure to account

dangerous drugs confiscated by the arresting officer (Sec.
17);
Planting evidence of dangerous drugs in person or immediate
vicinity of another to implicate the latter (Sec. 19); and
Carnapping where the owner, driver or occupant of the
carnapped motor vehicle is killed or raped (Sec. 20)
(People v. Echegaray)

WHAT ARE THE MANDATORY

CRIMES PUNISHABLE BY MANDATORY
DEATH PENALTY UNDER RA 7659
On the other hand, under R.A. No. 7659, the mandatory penalty of death is
imposed in the following crimes:
(1)

Qualified bribery

"If any public officer is entrusted with law enforcement and he

refrains from arresting or prosecuting an offender who has committed a crime
punishable by reclusion perpetua and/or death in consideration of any offer,
promise, gift or present, he shall suffer the penalty for the offense which was
not prosecuted.
If it is the public officer who asks or demands such gift or present, he shall
suffer the penalty of death." (Sec. 4)
(2)
Kidnapping and serious illegal detention for ransom resulting in the
death of the victim or the victim is raped, tortured or subjected to
dehumanizing acts
"The penalty shall be death where the kidnapping or detention was
committed for the purpose of ransom from the victim or any other person,
even if none of the circumstances above-mentioned were present in the
commission of the offense.
When the victim is killed or dies as a consequence of the detention
or is raped, or is subject to torture or dehumanizing acts, the maximum
penalty [of death] shall be imposed." (Sec. 8)
(3)

Destructive arson resulting in death

"If as a consequence of the commission of any of the acts penalized

under this Article, death results, the mandatory penalty of death shall be
imposed." (Sec. 10)

23

(People v. Echegaray)
(4)
Rape with the victim becoming insane, rape with homicide and
qualified
TWO INSTANCES WHEN DEATH MAY
BE IMPOSED WHEN CONSTRUED
UNDER RA 7659

"When by reason or on the occasion of the rape, the victim has

become insane, the penalty shall be death.
xxx

xxx

xxx

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

The death penalty shall also be imposed if the crime of rape is committed
with any of the following attendant circumstances:
1.
when the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the commonlaw spouse of the parent or the victim.
2.
when the victim is under the custody of the police or military
authorities.
3.
when the rape is committed in full view of the husband,
parent, any of the children or other relatives within the third degree of
consanguinity.
4.
when the victim is a religious or a child below seven (7)
years old
5.
when the offender knows that he is afflicted with Acquired
Immune Deficiency Syndrome (AIDS) disease.
6.
when committed by any member of the Armed Forces of the
Philippines or the Philippine National Police or any law enforcement
agency.
7.
when by reason or on the occasion of the rape, the victim
has suffered permanent physical mutilation." (Sec. 11 )
(5)

WHY DEATH PENALTY

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

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

"When in the commission of the crime, advantage was taken by the

offender of his public position, the penalty to be imposed shall be in its
maximum [of death] regardless of mitigating circumstances.

WHY RAPE IS A HEINOUS CRIME

"Rape is the forcible violation of the sexual intimacy of another
person. It does injury to justice and charity. Rape deeply wounds the respect,
freedom, and physical and moral integrity to which every person has a right.
It causes grave damage that can mark the victim for life. It is always an
intrinsically evil act . . . an outrage upon decency and dignity that hurts not
only the victim but the society itself." (People v. Echegaray)

The maximum penalty [of death] shall be imposed if the offense was
committed by any person who belongs to an organized/syndicated crime
group.
An organized/syndicated crime group means a group of two or more
persons collaborating, confederating or mutually helping one another for
purposes of gain in the commission of any crime." (Sec. 23) include those in
R.A. 7165

24

WHY CAPITAL PUNISHMENT

SHOULD NOT BE ABOLISHED

harsh, unwise or morally wrong, and may recommend to the authority or

department concerned, its amendment, modification, or repeal, still, as long
as said law is in force, they must apply it and give it effect as decreed by the
law-making body. (People v. Veneracion)

"Capital punishment ought not to be abolished solely because it is

substantially repulsive, if infinitely less repulsive than the acts which invoke it.
Yet the mounting zeal for its abolition seems to arise from a sentimentalized
hyperfastidiousness that seeks to expunge from the society all that appears
harsh and suppressive. If we are to preserve the humane society we will
have to retain sufficient strength of character and will to do the unpleasant in
order that tranquillity and civility may rule comprehensively. It seems very
likely that capital punishment is a . . . necessary, if limited factor in that
maintenance of social tranquillity and ought to be retained on this ground. To
do otherwise is to indulge in the luxury of permitting a sense of false delicacy
to reign over the necessity of social survival." (People v. Echegaray)

REASON FOR DURATION OF

RECLUSION PERPETUA
OF 30 OR 40 YEARS
The imputed duration of thirty (30) years for reclusion perpetua,
therefore, is only to serve as the basis for determining the convict's eligibility
for pardon or for the application of the three-fold rule in the service of multiple
penalties. (People v. Lucas)
ROBBERY WITH HOMICIDE, NUMBER OF PERSONS KILLED DOES
NOT ALTER CHARACTERIZATION OF THE OFFENSE
BUT CAN BE APPRECIATED AS AGGRAVATING CIRCUMSTANCE.

RA 6425 AS AMENDED BY RA 7659

WHEN PENALTY IN NEW LAW NOT FAVORABLE
TO ACCUSED IT SHOULD BE RETAINED

While the number of persons killed does not alter the

characterization of the offense as robbery with homicide, the multiplicity of
the victims slain should have been appreciated as an aggravating
circumstance. This would preclude an anomalous situation where, from the
standpoint of the gravity of the offense, robbery with one killing would be
treated in the same way that robbery with multiple killings would be. (People
V. Timple)

Appellant in this case was convicted and meted the penalty of life
imprisonment and fine of twenty thousand pesos under RA 6425 for
transporting more or less 6 kilos of marijuana on July 1990. RA 7659, which
took effect on December 31/93, amended the provisions of RA 6425,
increasing the imposable penalty for the sale or transport of 750 grams or
more of marijuana to reclusion perpetua to death and a fine ranging from five
hundred thousand pesos to ten million pesos. Such penalty is not favorable
to the appellant as it carries the accessory penalties provided under the RPC
and has a higher amount of fine which in accordance with ART 22 of the
same code should not be given retroactive effect. The court, therefore, finds
and so holds that the penalty of life imprisonment and fine in the amount of
twenty thousand pesos correctly imposed by the trial court should be
retained. (PP v Carreon, 12/9/97)

ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE; PROVISION

OF ARTICLE 294 OF THE REVISED PENAL CODE AS AMENDED BY
REPUBLIC ACT 7659 CANNOT BE APPLIED RETROACTIVELY; CASE
AT BAR.
Under Article 294 (1) of the Revised Penal Code, robbery with
homicide is punishable by reclusion perpetua to death. In view, however, of
the first paragraph of Section 19, Article III of the 1987 Constitution, which
provides that: "Sec. 19. (1) Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither shall death penalty be
imposed, unless, for compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death penalty already imposed shall
be reduced to reclusion perpetua" (Emphasis supplied) only the penalty of
reclusion perpetua could be imposed by the trial court. Hence, the attended
aggravating circumstances in this case had no impact upon the
determination of the proper penalty by the trial court. By Republic Act No.
7659 (effective 31 December 1993), Congress re-imposed the death penalty

COURTS SHOULD NOT BE CONCERNED

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

25

for certain heinous crimes, including robbery with homicide and robbery with
rape. By the same statute, Article 294 of the Revised Penal Code was
amended to read as follows: "Any person guilty of robbery with the use of
violence against or intimidation on any person shall suffer: 1. The penalty of
reclusion perpetua to death, when by reason or on occasion of the robbery,
the crime of homicide shall have been committed, or when the robbery shall
have been accompanied by rape or intentional mutilation or arson. . . .
(Emphasis supplied) Article 294 of the Revised Penal Code, as amended by
R.A. No. 7659, however, cannot be applied retroactively in this case. To do
so would be to subject the appellant to the death penalty which could not
have been constitutionally imposed by the court a quo under the law in effect
at the time of the commission of the offenses. (People v. Timple)

Actual detention or "locking up" is the primary element of kidnapping.

If the evidence does not adequately prove this element, the accused cannot
be held liable for kidnapping. In the present case, the prosecution merely
proved that appellant forcibly dragged the victim toward a place only he
knew. There being no actual detention or confinement, the appellant may be
convicted only of grave coercion.

A PERSON MAY BE CONVICTED OF

GRAVE COERCION ALTHOUGH
THE CHARGE IS KIDNAPPING

In People vs. Martin Simon y Sunga, (G.R. No. 93028), decided on

29 July 1994, this Court ruled as follows: (1) Provisions of R.A. No. 7659
which are favorable to the accused shall be given retroactive effect pursuant
to Article 22 of the Revised Penal Code. (2) Where the quantity of the
dangerous drug involved is less than the quantities stated in the first
paragraph of Section 20 of R.A. No. 6425, the penalty to be imposed shall
range from prision correccional to reclusion temporal, and not reclusion
perpetua. The reason is that there is an overlapping error, probably through
oversight in the drafting, in the provisions on the penalty of reclusion
perpetua as shown by its dual imposition, i.e., as the minimum of the penalty
where the quantity of the dangerous drugs involved is more than those
specified in the first paragraph of the amended Section 20 and also as the
maximum of the penalty where the quantity of the dangerous drugs involved
is less than those so specified in the first paragraph. (3) Considering that the
aforesaid penalty of prision correccional to reclusion temporal shall depend
upon the quantity of the dangerous drugs involved, each of the component
penalties thereof prision correccional, prision mayor, and reclusion
temporal shall be considered as a principal imposable penalty depending
on the quantity, such that the quantity of the drugs enumerated in the second
paragraph should then be divided into three, with the resulting quotient, and
double or treble the same, as the bases for determining the appropriate
component penalty. (4) The modifying circumstances in the Revised Penal
Code may be appreciated to determine the proper period of the
corresponding imposable penalty or even to effect its reduction by one or
more degrees; provided, however, that in no case should such graduation of
penalties reduce the imposable penalty lower than prision correccional. (5) In
appropriate instances, the Indeterminate Sentence Law shall be applied and
considering that R.A. No. 7659 has unqualifiedly adopted the penalties under
the Revised Penal Code with their technical signification and effects, then the
crimes under the Dangerous Drugs Act shall now be considered as crimes
punished by the Revised Penal Code; hence, pursuant to Section 1 of the

(People -vs- Astorga; GGR 110097, December 22, 1997)

DANGEROUS DRUGS ACT OF 1972 (R.A. NO. 6425); SECTIONS 15 AND

20 THEREOF AS AMENDED BY R.A. NO. 7659.

The Information, dated March 24, 1992, filed against Astorga

contains sufficient allegations constituting grave coercion, the elements of
which were sufficiently proved by the prosecution. Hence, a conviction for
said crime is appropriate under Section 4, Rule 120 of the 1988 Rules on
Criminal Procedure.
(People -vs- Astorga)
ELEMENTS OF GRAVE COERCION
Grave Coercion or coaccion grave has three elements:
a.
That any person is prevented by another from doing something not
prohibited by law, or compelled to do something against his or her will, be it right or
wrong;
b.
That the prevention or compulsion is effected by violence, either by
material force or such a display of it as would produce intimidation and,
consequently, control over the will of the offended party; and
c.
that the person who restrains the will and liberty of another has no right
to do so or, in other words, that the restraint is not made under authority of a law or in
the exercise of any lawful right.
(People -vs- Astorga)
ACTUAL DETENTION OR LOCKING UP, AN ESSENTIAL ELEMENT OF
KIDNAPPING

26

Indeterminate Sentence Law, the indeterminate penalty which may be

imposed shall be one whose maximum shall be within the range of the
imposable penalty and whose minimum shall be within the range of the
penalty next lower in degree to the imposable penalty. With the foregoing as
our touchstones, and it appearing that the quantity of the shabu recovered
from the accused in this case is only 0.0958 gram, the imposable penalty
under the second paragraph of Section 20 of R.A. No. 6425, as further
amended by Section 17 of R.A. No. 7659, should be prision correccional.
Applying the Indeterminate Sentence Law, the accused may then be
sentenced to suffer an indeterminate penalty ranging from six (6) months of
arresto mayor as minimum to six (6) years of prision correccional as
maximum.

Moreover, under the present rule, for the accused to continue his
provisional liberty on the same bail bond during the period to appeal, consent
of the bondsman is necessary. From the record, it appears that the
bondsman, AFISCO Insurance Corporation, filed a motion in the trial court
on January 06, 1987 for the cancellation of petitioners' bail bond for the
latter's failure to renew the same upon its expiration. Obtaining the consent
of the bondsman was, thus, foreclosed. ( Aniceto Sabbun Maguddatu and
Laureana Sabbun Maguddatu, Petitioners, -vs- Honorable COURT OF
APPEALS (Fourth Division and People of the Philippines, Respondents.
G.R. No. 139599, Feb. 23, 2000)
WHEN ABUSE OF SUPERIOR STRENGTH IS PRESENT.

WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED THEFT. (STRAY

DECISION)

We find, however, that the aggravating circumstance of abuse of

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

In this case, the stolen property is a Yamaha RS motorcycle bearing

plate no. CZ-2932 with sidecar valued at P30,000.00. Since this value
remains undisputed, we accept this amount for the purpose of determining
the imposable penalty.
In simple theft, such amount carries the
corresponding penalty of prision mayor in its minimum and medium periods
to be imposed in the maximum period. Considering that the penalty for
qualified theft is two degrees higher than that provided for simple theft, the
penalty of prision mayor in its minimum and medium periods must be raised
by two degrees. Thus, the penalty prescribed for the offense committed of
qualified theft of motor vehicle is reclusion temporal in its medium and
maximum periods to be imposed in its maximum period. (PP -vs- Ricardo
Dela Cruz alias Pawid, Manuel dela Cruz alias Pawid, Danilo Dela Cruz and
John Doe alias Henry Balintawak and Orlando Padilla y Mendoza, Accused.
RICARDO DELA CRUZ alias Pawid, Accused-Appellant. G.R. No. 125936
Feb. 23, 2000 )

In this case, appellants and their companions purposely gathered

together and armed themselves to take advantage of their combined strength
to ensure that Reynaldo Danao would be able to kill the victim without any
interference from other bystanders.
However, not having been alleged in the Information, abuse of
superior strength can only be considered as a generic aggravating
circumstance. (PP -vs- CIELITO BULURAN Y RAMIREZ and LEONARDO
VALENZUELA Y CASTILLO, Accused-Appellants. G.R. No. 113940, Feb.
15, 2000)

PERIOD WHEN BAIL IS EFFECTIVE AFTER CONVICTION IN LOWER

COURTS
The bail bond that the accused previously posted can only be used
during the 15-day period to appeal (Rule 122) and not during the entire
period of appeal. This is consistent with Section 2(a) of Rule 114 which
provides that the bail "shall be effective upon approval and remain in force at
all stages of the case, unless sooner cancelled, until the promulgation of the
judgment of the Regional Trial Court, irrespective of whether the case was
originally filed in or appealed to it." This amendment, introduced by SC
Administrative Circular 12-94 is a departure from the old rules which then
provided that bail shall be effective and remain in force at all stages of the
case until its full determination, and thus even during the period of appeal.

USE OF MOTOR
CIRCUMSTANCE

VEHICLE

AS

QUALIFYING

AGGRAVATING

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

27

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

Moreover, Milyn Ruales also testified that the knife used by accused
was hidden from view. Thus, Isabel Ruales was not prepared for such a
violent attack, especially considering that, at the time, she was unarmed and
was burdened with a large basket filled with about six kilos of corn and dried
fish hanging from her shoulders and thus, could not have possibly warded off
the blow or run away from her assailant. Although Milyn Ruales described
the attack having been frontal, this does not negate treachery since the
essence of treachery is the suddenness and unexpectedness of the attack,
giving the victim no opportunity to repel it or offer any defense of his person.
Thus, we hold that the trial court correctly appreciated the qualifying
circumstance of treachery. (PP -vs- CORNELIA SUELTO alias "ELY" alias
"ROGELIA SUELTO", G.R. No. 126097, Feb. 8, 2000)

WHEN NIGHTTIME IS AGGRAVATING

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

DATE OF EFFECTIVITY OF RA 7659, ETC.

TREACHERY IS PRESENT ON SECOND STAGE OF ACCIDENT

Republic Act No. 7659 took effect on 31 December 1993.

Accordingly, the said law only applies to crimes defined therein, including
rape, which were committed after its effectivity. It cannot be applied
retroactively because, to do so, would go against the constitutional
prohibition on ex post facto laws. For this reason, in order for the death
penalty to be imposable, it is incumbent upon the prosecution to establish
beyond a shadow of doubt that the case of the accused is already covered
by Republic Act No. 7659.

There is treachery when the offender commits any of the crimes

against the person employing means, methods or forms in the execution
thereof which tend directly and specifically to insure its execution without risk
to himself arising form the defense which the offended party might make. As
earlier mentioned, the deceased was already rendered completely helpless
and defenseless when he was stabbed by Pedro Lumacang. Although he
was able to run a short distance, he had absolutely no means of defending
himself from the three brothers who were armed with hunting knives, bent on
finishing him off. The wounded victim had not even so much as a stick or a
stone to parry off their blows. It should be noted, however, at this point that
inasmuch as treachery has been appreciated as a qualifying circumstance,
abuse of superior strength should not have been considered separately
inasmuch as it is absorbed in treachery. (PP -vs- PEDRO LUMACANG,
PABLO LUMACANG and DOMINGO LUMACANG, Accused-Appellants.
G.R. No. 120283, Feb. 1, 2000)

AN EX POST FACTO LAW HAS BEEN DEFINED AS ONE WHICH

(a)
makes criminal an act before the passage of the law and which was
innocent when done, and punishes such an act;
(b)

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

(c)
changes the punishment and inflicts a greater punishment than the
law annexed to the crime when committed;

WHY DWELLING IS AGGRAVATING

(d)
alters the legal rules of evidence, and authorizes conviction upon
less or different testimony than the law required at the time of the commission of the
offense;

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

(e)
assuming to regulate civil rights and remedies only, in effect imposes
penalty or deprivation of a right for something which when done was lawful; and

EVEN FRONTAL ATTACK WOULD AMOUNT TO TREACHERY

(f)

deprives person accused of a crime of some lawful protection to

which he has become entitled, such as the protection of a former conviction or

28

acquittal, or a proclamation of amnesty. (PP -vs- CHARITO ISUG MAGBANUA,

G.R. No. 128888, Dec. 3, 1999)

"The same penalty shall be imposed upon the owner,

president, manager, director or other responsible officer of any public
or private firm, company, corporation or entity, who shall willfully or
knowingly allow any of the firearms owned by such firm, company,
corporation or entity to be used by any person or persons found
guilty of violating the provisions of the preceding paragraphs or
willfully or knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of their
residence in the course of their employment.

ILLEGAL POSSESSION OF FIREARMS

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

"The penalty of arresto mayor shall be imposed upon any

person who shall carry any licensed firearm outside his residence
without legal authority therefore."

"SECTION 1. Unlawful Manufacture, Sale, Acquisition,

Disposition or Possession of Firearms or Ammunition or Instruments
Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. The penalty of prision correccional in its maximum
period and a fine of not less than Fifteen thousand pesos (P15,000)
shall be imposed upon any person who shall unlawfully manufacture,
deal in, acquire, dispose, or possess any low powered firearm, such
as rimfire handgun, .380 or .32 and other firearm of similar firepower,
part of firearm, ammunition, or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.

SECTION 2.
Section 3 of Presidential Decree No. 1866, as amended, is
hereby further amended to read as follows:
"SECTION 3. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Explosives. The penalty of prision
mayor in its maximum period to reclusion temporal and a fine of not
less than Fifty thousand pesos (P50,000) shall be imposed upon any
person who shall unlawfully manufacture, assemble, deal in, acquire,
dispose or possess hand grenade(s), rifle grenade(s), and other
explosives, including but not limited to 'pillbox,' 'molotov cocktail
bombs,' 'fire bombs,' or other incendiary devices capable of
producing destructive effect on contiguous objects or causing injury
or death to any person.

"The penalty of prision mayor in its minimum period and a

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

"When a person commits any of the crimes defined in the

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

"If homicide or murder is committed with the use of an

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

"If the violation of this Section is in furtherance of, or incident

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

"If the violation of this Section is in furtherance of or incident

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

"The same penalty shall be imposed upon the owner,

president, manager, director or other responsible officer of any public
or private firm, company, corporation or entity, who shall willfully or

29

knowingly allow any of the explosives owned by such firm, company,

corporation or entity, to be used by any person or persons found
guilty of violating the provisions of the preceding paragraphs."

The essence of the crime of illegal possession is the possession,

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

SECTION 3.
Section 5 of Presidential Decree No. 1866, as amended, is
hereby further amended to read as follows:

After possession is established by the prosecution, it would only be a

matter of course to determine whether the accused has a license to possess
the firearm. (People v. Bansil, 304 SCRA 384)

"SECTION 5. Tampering of Firearm's Serial Number.

The penalty of prision correccional shall be imposed upon any
person who shall unlawfully tamper, change, deface or erase the
serial number of any firearm."

Possession of any firearm becomes unlawful only if the necessary

permit or license therefore is not first obtained. The absence of license and
legal authority constitutes an essential ingredient of the offense of illegal
possession of firearm and every ingredient or essential element of an offense
must be shown by the prosecution by proof beyond reasonable doubt. Stated
otherwise, the negative fact of lack or absence of license constitutes an
essential ingredient of the offense which the prosecution has the duty not
only to allege but also to prove beyond reasonable doubt. (People v. Khor,
307 scra 295)

SECTION 4.
Section 6 of Presidential Decree No. 1866, as amended, is
hereby further amended to read as follows:
"SECTION 6. Repacking or Altering the Composition of
Lawfully Manufactured Explosives. The penalty of prision
correccional shall be imposed upon any person who shall unlawfully
repack, alter or modify the composition of any lawfully manufactured
explosives."

"To convict an accused for illegal possession of firearms and

explosives under P.D. 1866, as amended, two (2) essential elements must
be indubitably established, viz: (a) the existence of the subject firearm or
explosive which may be proved by the presentation, of the subject firearm or
explosive or by the testimony of witnesses who saw accused in possession
of the same, and (b) the negative fact that the accused had no license or
permit to own or possess the firearm or explosive which fact may be
established by the testimony or certification of a representative of the PNP
Firearms and Explosive Unit that the accused has no license or permit to
possess the subject firearm or explosive." (Del Rosario v. People, 05/31/01)

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

We stress that the essence of the crime penalized under P.D. 1866
is primarily the accused's lack of license or permit to carry or possess the
firearm, ammunition or explosive as possession by itself is not prohibited by
law. (People v. Cortez, 324 scra 335, 344)

RULE ON ILLEGAL POSSESSION OF FIREARMS BEFORE AN

ACCUSED
MAYBE CONVICTED

Illegal possession of firearm is a crime punished by special law, a

malum prohibitum, and no malice or intent to commit a crime need be
proved. (People v. Lubo, 101 Phil. 179) To support a conviction, however,
there must be possession coupled with intent to possess (animus
possidendi) the firearm. (Supra)

In crimes involving illegal possession of firearm, the prosecution has

the burden of proving the elements thereof, viz:
a.

the existence of the subject firearm; and

PRESENT MEANING OF ILLEGAL
POSSESSION OF FIREARM

b.

the fact that the accused who owned or possessed it does not
have the license or permit to possess the same. (People v. Castillo, 325 SCRA 613)

30

Unlicensed firearm no longer simply means a firearm without a license duly

issued by lawful authority. The scope of the term has been expanded in Sec.5 of
R.A. 8294.

A law may, of course, be enacted making use of an unlicensed firearm as a

qualifying circumstance. (People v. Molina; GR 115835-36, July 22, 1998)

Thus, the unauthorized use of a weapon which has been duly licensed in the
name of its owner/possessor may still aggravate the resultant crime. In the case at
bar, although appellants may have been issued their respective licenses to possess
firearms, their carrying of such weapons outside their residences and their
unauthorized use thereof in the killing of the victim may be appreciated as an
aggravating circumstance in imposing the proper penalty for murder. (Pp. V. Molina;
Gr 115835-36; July 22, 1998)

NEW PENALTY FOR LOW POWERED

FIREARM IN ILLEGAL POSSESSION
OF FIREARMS
Petitioner, fortunately for him, is nonetheless not entirely bereft of
relief. The enactment and approval on 06 Jun 1997 of RA 8294, being
favorable to him, should now apply. Under this new law, the penalty for
possession of any low powered firearm is only prision correccional in its
maximum period and a fine of not less than P15,000.00.

ILLEGAL POSSESSION OF FIREARM ONLY

SPECIAL AGGRAVATING CIRCUMSTANCE
IN CRIMES OF HOMICIDE AND MURDER.

Applying the Indeterminate Sentence Law, the present penalty that

may be imposed is anywhere from two years, four months and one day to
four years and two months of prision correccional in its medium period, as
minimum, up to anywhere from four years, two moths and one day to six
years of prision correccional in its maximum period, as maximum.. The court
in addition, may impose a fine consistent with the principle that an appeal in
a criminal case throws the whole case open for review by the appellate
tribunal. (Mario Rabaja v CA, et al., Oct 8/97)

Where murder or homicide was committed, the separate penalty for

illegal possession shall no longer be meted out since it becomes merely a special
aggravating circumstance.
This statutory amendment may have been an offshoot of our
remarks in Pp. V. Tac-an and Pp. V. Quijada :
Neither is the 2nd paragraph of Sec.1 meant to punish homicide or
murder with death if either crime is committed with the use of an
unlicensed firearm, i.e., to consider such use merely as a
qualifying circumstance and not as an offense. That could not
have been the intention of the lawmaker because the term
penalty in the subject provision is obviously meant to be the
penalty for illegal possession of firearm and not the penalty for
homicide or murder. We explicitly stated in Tac-an :

ACTS PUNISHABLE:
1.
upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low powered firearm, such as rimfire handgun, .380
or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture
of any firearm or ammunition
2.
"If homicide or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.

There is no law which renders the use of an unlicensed firearm as

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

3. "If the violation of this Section is in furtherance of or incident to, or in

connection with the crime of rebellion or insurrection, sedition, or attempted
coup d'etat, such violation shall be absorbed as an element of the crime of
rebellion, or insurrection, sedition, or attempted coup d'etat.
4. "The same penalty shall be imposed upon the owner, president, manager,
director or other responsible officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly allow any of the firearms
owned by such firm, company, corporation or entity to be used by any person

31

or persons found guilty of violating the provisions of the preceding

paragraphs or willfully or knowingly allow any of them to use unlicensed
firearms or firearms without any legal authority to be carried outside of their
residence in the course of their employment.

officers alone of a firearm in the baggage or gloves

compartment of a car will not necessarily be sufficient to
sustain a conviction of the car owner or driver. Essential to
the legal concept of possession in illegal possession
cases is animus possidendio. (People v. de la Rosa,
supra; People v. Sayang, 110 Phil 565).

5.

The penalty of arresto mayor shall be imposed upon any person

who shall carry any licensed firearm outside his residence without legal
authority therefore

1.3.

How is animus possidendi established? These must

be proved either by direct or circumstantial evidence of
the intent of the accused to possess, or to keep the
firearm.
a.) Animus Possidendi is determined by recourse to overt acts
prior to or simultaneous with possession and other
surrounding circumstances. (People v. de la Rosa) when it
is established that the accused purchased the weapon in
question, a good case for animus possidendi is made.
b.)Animus possidendi may also be inferred from the fact that an
unlicensed firearms was under the apparent control and
power of the accussed. (People v. Verches, 33 SCRA 174)
c.) People v. de Guzman, G.R. 117952-53 (February 14, 2001)
holds that the gravamen for the offense of violation of
P.D.1866 is the possession of firearm without the
necessary permit and/or license. The crime is immediately
consummated upon mere possession of a firearm devoid of
legal authority, since it is assumed that the same is possed
with animus possidendi Does it then follow that everyone
found with the firearm is in possession thereof for the
purpose of prosecution and conviction under P.D. 1866 as
amended by R.A. 8294? The results would be patently
absurd.

6.
Any person who shall unlawfully tamper, change, deface or erase
the serial number of any firearm.
7.
Any person who shall unlawfully repack, alter or modify the
composition of any lawfully manufactured explosives.
CRIME OF ILLEGAL POSSESSION OF FIREARM
MALUM PROHIBITUM
The offense of illegal possession of firearm is a malum prohibitum
punished by a special law, in which case good faith and absence of criminal
intent are not valid defenses. (People v De Gracia, 7/6/94)

1.

Manufacture, deal in, acquire, dispose or possess. It is these acts

relative to firearms. The obvious underlying principle is the undesirability of the
proliferation of firearms and their free traffic and possession. This is clear from the
first two whereas clause of P.D. 1866. It is then clear that illegal possession, etc. is
a malum prohibitum. For purpose of simplicity we will confine our analysis to
possession, although what we will discuss hereunder applies to manufacture,
dealing in, acquiring or disposing as well.

1.1.

1.2.

i.

it is not correct to say without qualification that intent is

immaterial. Intent as to possession is immaterial.
Intention to possess is material. Whatever the purpose
of the possession may be is consistently immaterial. That
one was in possession of an unlicensed firearms merely
for ones protection without intending harm on anybody is
a fruitless defense. It is the clear doctrine of such cases as
People v. de la Rosa, 284 SCRA 158 that mere
possession without criminal intent is sufficient on which to
render a judgment of conviction.
HOWEVER, possession must be established beyond
reasonable doubt, and in view of the special meaning
that possession has in criminal law, discovery by police,

ii.

iii.

32

A person who finds a firearms and takes it with him to

the police station for the purpose of turning it over to
the police should be commended, rather than
prosecuted.
A person who is stopped at a check-point at which it
is discovered that there is firearms placed either
advertently or inadvertently in his baggage
compartment without his knowledge - cannot be
held liable for illegal possession.
If the offender was in possession of an unlicensed
only on the occasion of the shooting for transitory
purpose and for the short moment in connection with
the shooting, the Supre Court held in People v.

iv.

Macasling, 237 SCRA 299 that there was no

evidence of animus possidendi.
It then appears to be the more reasonable position
that where
a person is apprehended with an
unlicensed weapon, animus possidendi will be
disputably presumed. The accused may controvert
the presumption of animus possidendi. To convict,
the court needs proof beyond reasonable doubt of
animus possidendi.

outside his residence when he has no permit to carry it outside his residence
(Pastrano v. Court of Appeals, 281 SCRA 287). A fortiori, the use of a
licensed firearm by one not licensed or permitted to use it would still be illegal
possession.
ILLEGAL POSSESSION BUT IN GOOD FAITH:
A security guard employed by a security agency and issued a
firearm by the agency has the right to assume that the firearm issued to him
is a licensed firearm. If it turns out that the firearm is not licensed, there is no
animus possidendi of an unlicensed firearm. (Cuenco v. People, 33 SCRA
522).

WHAT THE PROSECUTION MUST PROVE IN CASES OF ILLEGAL

POSSESSION OF FIREARMS.
1.4 What the prosecution must prove for it to succeed under the law
is two-fold: first, the existence of the firearm; second, the
absence of a license or a permit to possess. (People v. Rugay,
291 SCRA 692)

A PERSON WHO ACCEPTS A FIREARM FOR SAFEKEEPING

MAYBE HELD LIABLE IF HE CARRIES THE SAME.
The case is obviously different, however, if a police officer leaves
with a cousin for safekeeping his firearm. The cousin knows fully well that he
has no permit or authority to keep the firearm. If he accepts to do this favor,
he is indictable. (People v. Sayong, 110 Phil 565)

a.) To prove the existence of the firearm, it is not absolutely

necessary that the object evidence be presented. It is very
well possible that the accused effectively conceals the weapon
before his apprehension. Incontrovertible testimonial evidence
may successfully established the existence of the firearm.
(People v. Narvasa, G.R. 132878 [November 16, 1998]),

ILLEGAL POSSESSION OF FIREARM MAYBE PROVEN

Provided no other crime is committed. It is this proviso in the
amendatory law that has visited countless woes on numerous judges and
has occasioned not easily reconcilable decisions by the Supreme Court .it is
obviously a case of not only poor but miserable draftsmanship!

b.) An interesting question arises. The present law makes

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

2.1 It is clear that where there is no other offense except the unlawful
possession of a firearm, the penalties provided for in the amended
Section 1 shall be imposed: prision correccional in its maximum
period for low-powered firearms, and prision mayor in its maximum
periods for high-powered firearms. Thus in People v. Nunez, G.R.
112092 (March 1, 2001) holds that a person may be convicted of
simple illegal possession if the illegal possession is proved and the
frustrated murder and murder case involving the use of the illegal
possession has not been sufficiently proved. People v. Avecilla,
G.R. 117033 (February 15, 2001) teaches that the crime of illegal
possession of firearms, in its simple form, is committed any of the
crimes of murder, homicide, rebellion, insurrection, sedition or
attempted coup detat.

WHEN THERE IS AN ILLEGAL

POSSESSION OF FIREARM
A firearm is unlicensed when a certification from the Firearms and
Explosives Unit attests that no license has been issued. There will still be a
case for illegal possession if one holding a firearm duly licensed carries it

33

2.2. It is also clear that where either homicide or murder is committed

with the use of an unlicensed firearm, such use shall constitute an
aggravating circumstances. It is well known that R.A. 8294 was
initiated by Senator Ramon Revilla as a favor to his friend Robin
Padilla who was then serving sentence for illegal possession. It was
therefore meant to be more benevolent, as it is in the penalties it
impose. Senator Revilla, however, could not see far enough (and
regrettably neither could other legislators) and the effect at least in
the case of murder is that it may send the accused to the lethal
injection chamber where otherwise he would not be meted out the
death penalty. People v. Montinola, G.R. 131856-57 (July 1, 2001)
with the Chief Justice himself as ponente illustrates the complication
the law has introduced. In this case, the accused had been charged
with two offenses: robbery with homicide and illegal possession of
firearms. During the pendency of the case, the amended law came
into force. The court then held that insofar as R.A. 8294 was
favorable to the accused in that it spared him from separate
prosecution for illegal possession, the charge for illegal possession
was dropped. Insofar, however, as it increased the penalty for
robbery with homicide, the aggravating circumstances of the use of
unlicensed weapon could not be appreciated. Rule 110, Section 9 of
the Revised Rules of Criminal Procedure
will apply: As an
aggravating circumstances, the use of the unlicensed weapon must
be alleged in the information.

illegal possession of firearms should be dismissed if they arose from

the commission of crimes other than those indicated in Section 1
and 3 of R.A. 8294.
2.5 Clearly the law leads to absurd results, for when the use of an
unlicensed weapon attends the commission of a crime, no matter
how trivial, the case of illegal possession recedes into judicial
irrelevance. The matter is definitely one that calls for a curative
statute and the Supreme Court has referred the matter to the
Congress for another look. One moral lesson can be learned: Laws
passed as favor to ones friend is a poor laws!
OWNERSHIP IS NOT AN ESSENTIAL
ELEMENT OF ILLEGAL POSSESSION
The rule is that ownership is not an essential element of illegal
possession of firearms and ammunition. What the law requires is merely
possession which includes not only actual physical possession but also
constructive possession or the subjection of the thing to ones control and
management.
INTENT TO POSSESS, OR ANIMUS POSSIDENDI IS ESSENTIAL

2.3 When the violation of the law penalizing unlicensed weapon is in

furtherance of or incident to, or in connection with the crimes of
rebellion, insurrection, sedition or attempted coup detat then the
violation is absorbed in the main offense. (R.A. 8294, Section 1).

A distinction should be made between criminal intent and intent to

possess. While mere possession without criminal intent is sufficient to
convict a person for illegal possession of firearms, it must still be shows that
there was animus possidendi or an intent to possess on the part of the
accused.

2.4 What happens when an unlicensed weapon is used in the

commission of other offenses other that homicide, murder, rebellion,
insurrection, sedition or attempted coup d etata? People v.
Walpandladjaalam, G.R. 1361149-51 ( September 19, 2000)
provides the answer in the distinctively clear language of Justice
Panganiban: The law is clear: the accused can be convicted of
simple illegal possession of firearms, provided that no other crime
was committed by the person arrested. If the intention of the law in
the second paragraph were to refer only to homicide and murder, it
should have expressly said so, as it did in the third paragraph. Verily,
where the law does not distinguish, neither should we. In brief,
where the accused commits a crime other than those enumerated
with the use of an unlicensed weapon, no separate charge for such
use will be brought against him. Consistent with this is the disposition
by the Supreme court decreed: Accordingly, all pending cases for

There is no evidence of animus possedendi if the offender was in

possession of an unlicensed firearm only on the occasion of the shooting for
a transitory purpose and for the short moment in connection with the
shooting.
Lack of evidence is an essential element of the crime and that the
same must be alleged in the Information and duly proved.
(People -vs- Macasling, 237 SCRA 299)
Ownership of the gun is immaterial or irrelevant in violation of PD
1866, as amended. One may be convicted of possession of an unlicensed
firearm even if he is not the owner thereof.
(People -vs- Reynaldo Cruz, GR No.
76728, August 3, 1988)

34

Possession includes actual physical possession and constructive

possession. The animus can be determined from the overt acts of the
accused prior to or coetaneous with and other surrounding circumstances of
such possession. Hence, where the accused found a gun and was on his
way to deliver the gun to the police authority and was arrested, in the
process, there is no animus possedendi.
(People -vs- Rodolfo Dela Rosa, et al., supra)

Even if the gun is "paltik," there is a need to secure license

for the gun, and if found without any license therefor, the offender is liable for
violation of PD 1866.
(People vs- Filemon Ramos, 222 SCRA 557)
If an unlicensed firearm is used to commit a crime other than
homicide or murder, such a direct assault with attempted homicide, the use
of an unlicensed firearm is neither an aggravating circumstances nor a
separate offense. Since the law uses the word Homicide or Murder,
possession of an unlicensed firearm is not aggravating in Attempted
Homicide.
(People -vs- Walpan Ladjaamlam, et al.,
GR No. 136149-51, September 19, 2000)

Even if a paltik is a homemade gun and thus illegally manufactured

nevertheless, the Prosecution is burdened to prove that the accused has no
license for the gun.
(People -vs- Felimon Ramos, et al., 222 SCRA 557)
For the accused to be guilty of violation of PD 1866 as amended the
Prosecution must prove: (a) the existence of the subject firearm; (b) the fact
that the accused who owned or possessed the firearm does not have the
corresponding license or permit to possess the same.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)

Where the accused was charged of Murder and violation of PD 1866

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

Where the accused is convicted of violation of Republic Act 8294

and meted a penalty less than six (6) years, and a fine of P15,000.00, he
should be ordered to undergo subsidiary imprisonment in case of insolvency.
(Mario Rabaja -vs- Court of Appealss, et al., 280 SCRA 290)
In the light of "People -vs- Martin Simon," 234 SCRA 555, and
Articles 13 and 14, in relation to Article 63, of the Revised Penal Code and
the Indeterminate Sentence Law for violation of the Revised Penal Code may
now be applied for violation of PD 1866, as amended and Rep[ublic Act
6425, as amended.

Where the prosecution failed to adduce the gun in evidence coupled

with the fact that per Certification of the FEU, " no available information
regarding the license for the gun and the inconsistency in the evidence of the
prosecution, the latter failed to discharge its burden.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)

Even if a person is licensed to possess a firearms but brings out

firearm outside of his residence without permit therefor, he is guilty of
violation of the last paragraph of Section 1 of PD 1866, as amended. A
Mission Order cannot take the place of a license. A Mission Order can only
be issued to one licensed to possess a firearm.
(Pedrito Pastrano -vs- Court of Appeals, et al., 281 SCRA 287)

Mere possession without criminal intent is sufficient on which to

render a judgment of conviction for violation of PD 1866, as amended.
However, there must be animus possedendi or intent to possess without any
license or permit. Good faith is not a defense. Neither is lack of criminal
intent.
(People -vs- Rodolfo Dela Rosa, et al., 284 SCRA 158)

If the accused borrowed a gun from another who is licensed to

possess firearm, may the former be liable for violation of PD 1866, as
amended? Yes. Even if the gun is licensed to one and lends it to another, the
latter is liable for violation of PD 1866, as amended. A license to possess a
firearm and a permit to carry a licensed firearm outside of his residence is not
transferable.
(Pedrito Pastrano -vs- Court of Appeals, et al., supra)

Temporary, incidental, casual or harmless possession of firearm is

not punishable. Hence, stealing a firearm to render the owner defenseless is
not a crime under the law. (idem, supra)

35

Even if the firearm subject of the crime is not adduced in evidence

one may still be convicted of possession of an unlicensed firearm as long as
proof was adduced that the acused was in possession of a firearm.
(People -vs- Felicisimo Narvasa, GR No.
128618, November 16, 1998)

As long as the accused is proved to have been in possession of the

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

NOTE: Under Republic Act 8294, the penalty depends upon the caliber of
the gun. Suppose there is no testimony as to the caliber of the gun?

Republic Act 8294 took effect on July 6, 1997.

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

Where a security guard was given by his employer, a security

agency, a firearm, and the accused assumed that the employer secured the
license for the firearm but that it turned out that the employer failed to get any
license, the security guard is not criminally liable. The security guard has the
right to assume that the security agency secured the license.
(Ernesto Cuenca -vs- People, 33 SCRA 522)
If a constabulary soldier entrusted his gun to the accused for
safekeeping and later the accused found in possession of the gun, the
accused is guilty of possession of unlicensed firearm. To exculpate himself,
the accused must prove absence of animus possidendi.
(People -vs- Perlito Soyang, et al., 110 Phil. 565, 583)

Compare "People -vs- Wilfredo Filoteo," 290 SCRA 627 where the
accused was convicted of Murder and violation of PD 1866 and during the
pendency of the appeal, Republic Act 8294 took effect. Our Supreme Court
affirmed the conviction of the Accused of two (2) crime of Homicide and
violation of PD 1866, as amended, and applied the penalty for the crimes
under the amendment.

A secured a loan from B and pledged his unlicensed firearm as

security for the loan. A promised to pay his loan and retrieve the firearm as
soon as he had money. B found in possession of the unlicensed firearm. For
the court to sustain the contention of B is to authorize the indefinite
possession by B of the unlicensed firearm because there was no way to
determine when A could pay his account.
(People -vs- Cornelio Melgas, 100 Phil. 298)

In "People -vs- Veriato Molina, et al.," 292 SCRA 742, our Supreme
Court En Banc declared that where the accused was convicted of said
crio,es, by the Trial Court but that during the pendency of the appeal, with the
Supreme Court, Republic Act 8294 took effect, the accused should only be
convicted of Murder with the use of an unlicensed firearm as mere a special
aggravating circumstance.

If a licensed firearm if used to commit Murder or Homicide, such

circumstances is merely a special aggravating circumstance which must be
alleged in the Information and cannot be offset by any mitigating
circumstance. (People -vs- Meriato Molina, et al., G.R. No. 115835, July 22,
1998; People -vs- Narvasa, G.R. no. 128618 November 18, 1998)

Murder, under Republic Act 8294, is used in its generic term and,
hence, includes Parricide
(People versus Octavio Mendoza,
GR No. 109270-80, January 18,1999)

The Decision of the Supreme Court in People -vs- Paterno Tac-an,

182 SCRA 601; People -vs- Jesus Deunida, and People -vs- Barros and
People -vs- Daniel Quijada 259 SCRA 191 had been overtaken by Republic
Act 8294.

A United States carbine M1, caliber .3-0 is a high-powered gun

because it is capable of emitting two or three bullets in one squeeze.
(People -vs- Eduardo Gutierrez,
GR No. 132878, September 1999)

Under the amendment, the death penalty may now be imposed if the
accused is convicted of Murder with the use of licensed or unlicensed
firearms.

It is not necessary that the firearm be produced and offered in

evidence for Republic Act 8294 to apply. It is not enough that there is

36

evidence of the existence of the gun which can be established either by

testimony or presentation of the gun itself.

retroactively applied in the case at bar. It was thus error for the trial court to
convict the appellant of two (2) separate offenses, i.e., Homicide and Illegal
Possession of Firearms, and punish him separately for each crime. Based
on the facts of the case, the crime for which the appellant may be charged is
homicide, aggravated by illegal possession of firearm, the correct
denomination for the crime, and not illegal possession of firearm,
aggravated by homicide as ruled by the trial court, as it is the former
offense which aggravates the crime of homicide under the amendatory law.

Possession of an unlicensed firearm and used in killing is a special

aggravating circumstance.
(People -vs- Felicisimo Narvasa,
GR No. 128618, November 18, 1998)
The Decision of the Supreme Court in People versus Rex Bergante,
et. al., GR No. 120369, February 27, 1998, that the use of an unlicensed
firearm to commit murder is only a generic aggravating circumstance is no
longer true.

EVEN IF ACCUSED ADMITTED THAT HE HAS NO LICENSE, SUCH

ADMISSION IS NOT SUFFICIENT PROOF OF ILLEGAL POSSESSION OF
FIREARM

Possession under the law may either be actual physical possession

or constructive possession. However, although the crime under PD 1866, as
amended, is malum prohibitum, however, there must be animus possidendi,
or intent to possess. Animus possidendi may be inferred from the fact that an
unlicensed firearm is under the apparent control and power of the accused.
however, animus possidendi may be contradicted if a person in possession
of an unlicensed firearm does not assert a right thereto.

Hence, in the case at bar, although the appellant himself admitted

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

If the possession of an unlicensed gun is merely temporary,

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

"x x x by its very nature, an admission is the mere acknowledgement

of a fact or of circumstances from which guilt may be inferred, tending to
incriminate the speaker, but not sufficient of itself to establish his guilt." In
other words, it is a statement by defendant of fact or facts pertinent to issues
pending, in connection with proof of other facts or circumstances, to prove
guilt, but which is, of itself, insufficient to authorize conviction. From the
above principles, this Court can infer that an admission in criminal cases
is insufficient to prove beyond doubt the commission of the crime
charged.

IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL POSSESSION OF

FIREARMS)
P.D. 1866, which codified the laws on illegal possession of firearms,
was amended on June 6, 1997 by Republic Act 8264. Aside from lowering
the penalty for said crime, R.A. 8294 also provided that if homicide or
murder is committed with the use of an unlicensed firearm, such use
shall be considered as a special aggravating circumstance. This
amendment has two (2) implications: first, the use of an unlicensed firearm
in the commission of homicide or murder shall not be treated as a separate
offense, but merely as a special aggravating circumstance; second, as only
a single crime (homicide or murder with the aggravating circumstance of
illegal possession of firearm) is committed under the law, only one penalty
shall be imposed on the accused.

"Moreover, said admission is extrajudicial in nature. As such, it

does not fall under Section 4 of Rule 129 of the Revised Rules of Court
which states:
An admission, verbal or written, made by a party in the course of the
trial or other proceedings in the same case does not require proof.
"Not being a judicial admission, said statement by accusedappellant does not prove beyond reasonable doubt the second element
of illegal possession of firearm. It does not even establish a prima facie
case. It merely bolsters the case for the prosecution but does not stand as
proof of the fact of absence or lack of a license." (emphasis supplied)
(PP -vs- JULIAN CASTILLO Y LUMAYRO, G.R. No. 131592-93, Feb. 15,
2000)

Prescinding therefrom, and considering that the provisions of the

amendatory law are favorable to herein appellant, the new law should be

37

firearm, there can be no separate conviction for the crime of illegal

possession of firearms under P.D. No. 1866 in view of the amendments
introduced by Republic Act No. 8294. Thereunder, the use of unlicensed
firearm in murder or homicide is simply considered as an aggravating
circumstance in the murder or homicide and no longer as a separate offense.
Furthermore, the penalty for illegal possession of firearms shall be imposed
provided that no crime is committed. In other words, where murder or
homicide was committed, the penalty for illegal possession of firearms is no
longer imposable since it becomes merely a special aggravating
circumstance. (PP -vs- AUGUSTO LORETO RINGOR, JR., G.R. No.
123918, Dec. 9, 1999)

ELEMENTS OF ILLEGAL POSSESSION OF FIREARMS

To convict an accused for illegal possession of firearms and
explosive under P.D. 1866 as amended, two (2) essential elements must be
indubitably established, viz: (a) the existence of the subject firearm or
explosive which may be proved by the presentation of the subject firearm or
explosive or by the testimony of witnesses who saw accused in possession
of the same, and (b) the negative fact that the accused had no license or
permit to own or possess the firearm or explosive which fact may be
established by the testimony or certification of a representative of the PNP
Firearms and Explosives Unit that the accused has no license or permit to
possess the subject firearm or explosive.

ANTI-WIRE TAPPING LAW

(RA 4200)

In the case at bar, the prosecution failed to prove the second

element of the crime, i.e., the lack of license or permit of appellant Cortez to
possess the hand grenade. Although the hand grenade seized by PO2
Santos from appellant was presented in court, the records bear that PO2
Santos did not submit the grenade to the PNP Firearms and Explosives
Unit for verification. This explains why no certification or testimony was
adduced by the prosecution at the trial to prove that appellant Cortez
was not licensed to possess the explosive. The failure of the prosecution
to adduce this fact is fatal to its cause. We stress that the essence of the
crime penalized under P.D. 1866 is primarily the accused's lack of license
or permit to carry or possess the firearm, ammunition or explosive as
possession by itself is not prohibited by law.

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

MAY EXPLOSIVES BE GIVEN A PERMIT OR LICENSE?

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

LISTENING TO CONVERSATION
IN EXTENSION LINE OF TELEPHONE
IS NOT WIRE-TAPPING

UNDER R.A. 8294 A SEPARATE CONVICTION FOR ILLEGAL

POSSESSION OF FIREARMS AND FOR HOMICIDE IS NOT ALLOWED

An extension telephone cannot be placed in the same category as a

dictaphone, dictagraph or the other devices enumerated in Section 1 of RA
4200 as the use thereof cannot be considered as tapping the wire or cable of
a telephone line. The telephone extension in this case was not installed for
that purpose. It just happened to be there for ordinary office use. It is a rule

With respect to the conviction of accused-appellant for illegal possession of

firearms under P.D. No. 1866, it was held in the case of People vs. Molina
and reiterated in the recent case of People vs. Ronaldo Valdez, that in
cases where murder or homicide is committed with the use of an unlicensed

38

in statutory construction that in order to determine the true intent of the

legislature, the particular clauses and phrases of the statute should not be
taken as detached and isolated expressions, but the whole and every part
thereof must be considered in fixing the meaning of any of its parts. (66
SCRA 113,120)

"a)
Through force, threat, or intimidation;
"b)
When the offended party is deprived of reason or otherwise
unconscious;
"c)
By means of fraudulent machination or grave abuse of
authority; and
"d)
When the offended party is under twelve (12) years of age or
is demented, even though none of the circumstances mentioned
above be present.

A PERSON CALLING ANOTHER BY PHONE

MAY SAFELY PRESUME THAT THE OTHER
MAY HAVE AN EXTENSION LINE AND
RUNS THE RISK OF BEING HEARD BY A
3RD PARTY.

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

An extension telephone is an instrument which is very common

especially now when the extended unit does not have to be connected by
wire to the main telephone but can be moved from place to place within a
radius of a kilometer or more. A person should safely presume that the party
he is calling at the other end of the line probably has an extension telephone
and he runs the risk of a third party listening as in the case of a party line or a
telephone unit which shares its line with another.

WHEN INEXCUSABLE IMPRUDENCE ON

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

MERE ACT OF LISTENING TO A

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

Third, Zareen was not deprived of reason or otherwise unconscious

when the accused had intercourse with her. Her lame excuse was that she
was half-asleep. However she admitted that in the early morning of 1 May
1994 she woke up to find someone removing her underwear. Thuswise it
cannot be said that she was deprived of reason or unconscious. She knew,
hence was conscious, when her panties were being pulled down; she knew,
hence was conscious, when her legs were being parted to prepare for the
sexual act; she knew, hence was conscious, when the man was pulling down
his briefs to prepare himself likewise for the copulation; she knew, hence was

RAPE AS CRIME AGAINST PERSONS

(R.A. 8353)
Rape, When And How Committed
"1)
By a man who shall have carnal knowledge of a woman under any of
the following circumstances:

39

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

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

NATURE OF INTIMIDATION
IN RAPE CASES

TEST TO DETERMINE WHETHER A WOMAN VOLUNTARILY

SUBMITTED TO SEXUAL INTERCOURSE OR NOT DUE TO
INTIMIDATION

Intimidation is addressed to the mind of the victim. It is subjective

and its presence cannot be tested by any hard-and-fast rule, but must be viewed in
the light of the victims perception and judgement at the time of the crime.
In the case at bar, at the time the crime was committed, the victim
was 40 yrs. old, 5 months pregnant, unarmed and married to a person older than her
by almost 20 yrs.. In contrast, appellant was in his 20s, armed with a gun and
purportedly in the company of several NPA members. The crime happened in the
evening and in a place where help was impossible. The nearest neighbor of the
victim is some 3 kms. from their hut. Considering all these circumstances, we hold
that the victim was intimidated to submit to the lustful desire of the appellant. (Pp. V.
Mostrales; GR 125937, Aug.28, 1998)

Physical resistance is not the sole test to determine whether

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

WHEN MORAL ASCENDANCY IS SUSTAINED AS INTIMIDATION IS

RAPE.

It is settled that even a variance of a few months between

the time set out in the indictment and that established by the evidence during
the trial has been held not to constitute an error so serious as to warrant
reversal of a conviction solely on that score. The failure of the complainant
to state the exact date and time of the commission of the rape is a minor
matter.
(Pp. V. Bernaldez; GR 109780,Aug. 17, 1998)

Intimidation in rape cases is not calibrated nor governed by hard and

fast rules. Since it is addressed to the victim's and is therefore subjective, it
must be viewed in light of the victim's perception and judgment at the time of
the commission of the crime. It is enough that the intimidation produced fear
fear that if the victim did not yield to the bestial demands of the accused,
something far worse would happen to her at that moment. Where such
intimidation existed and the victim was cowed into submission as a result
thereof, thereby rendering resistance futile, it would be the height of
unreasonableness to expect the victim to resist with all her might and
strength. If resistance would nevertheless be futile because of intimidation,
then offering none at all does not mean consent to the assault so as to make
the victim's submission to the sexual act voluntary.

EXAMPLE OF VIRTUAL CONFESSION OF FACT AND NOT IN LAW IN

CASES OF RAPE
It is conceded that after the rape, Accused sent complainant
two letters in which he implored her forgiveness and offered to leave his wife
so that he could be with her. In fine, appellant sealed his own fate by
admitting his crime under a seal of virtual confession in fact, if not in law.
(Pp. V. Prades; GR 127569, July 30, 1998)

In any event, in a rape committed by a father against his own

daughter, as in this case, the former's moral ascendancy or influence over
the latter substitutes for violence or intimidation. Likewise, it must not be
forgotten that at her tender age of 14 years, EDEN could not be expected to
act with the equanimity of disposition and with nerves of steel, or to act like a

CHILD BORN BY REASON OF RAPE

40

MUST BE ACKNOWLEDGED BY OFFENDER

UPON ORDERS OF THE COURT

held that a knife is a deadly weapon. (Pp. V. Alfeche; GR 124213, Aug. 17,
1998)

Furthermore, since ANALIZA begot a child by reason of the rape,

DANTE must acknowledge and support the offspring pursuant to Article 345
of the Revised Penal Code in relation to Article 201 of the Family Code.
(People v. Alfeche)

FORCE AND INTIMIDATION NOT

NEEDED IN RAPE OF RETARDATE
Although the information alleged force, threats, and intimidation, it
nevertheless also explicitly stated that Tessie is a mentally retarded person.
We have held in a long line of cases that if the mental age of a woman above
12 years is that of a child below 12 years, even if she voluntarily submitted to
the bestial desires of the accused, or even if the circumstances of force or
intimidation or of the victim being deprived of reason or otherwise
unconscious are absent, the accused would still be liable for rape under the
3rd circumstance of Art. 335. The rationale therefor is that if sexual
intercourse with a victim under 12 years of age is rape, then it should follow
that carnal knowledge of a woman whose mental age is that of a child below
12 years would constitute rape. (People v. Hector Estares; 12/5/97)

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

USE OF FORCE OR INTIMIDATION NOT

AN ELEMENT OF STATUTORY RAPE

INDEMNITY IN CERTAIN CASES OF RAPE

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

In any event, the use of force or intimidation is not an element of

statutory rape. The offense is established upon proof that the accused
sexually violated the offended party, who was below 12 years of age at the
time of the sexual assault. In other words, it is not relevant to this case
whether appellant slapped or boxed the victim, or whether he used a singlebladed or a double-edged knife. (People v. Oliva; 12/5/97)

MORAL DAMAGES NEED NOT BE ALLEGED

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

RAPE CAN BE COMMITTED IN

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

MEANING OF DEADLY WEAPON

IN CASES OF RAPE
A deadly weapon is any weapon or instrument made and
designed for offensive or defensive purposes, or for the destruction of life or
thee infliction of injury; or one which, from the manner used, is calculated or
likely to produce death or serious bodily harm. In our jurisdiction, it has been

WHEN SWEETHEART DEFENSE

IS TENABLE IN RAPE

41

stories are true. For that matter, no young Filipina of decent repute would
falsely and publicly admit that she had been ravished and abused
considering the social stigma thereof. People v Tabugoca, GR No. 125334)

The sweetheart defense put up by the accused merits serious

consideration. While the theory does not often gain favor with the court, such
is not always the case if the hard fact is that the accused and the supposed
victim are in fact intimately related except that, as is true in most cases, the
relationship is either illicit, or the parents are against it. In such instances, it
is not improbable that when the relationship is uncovered, the victims
parents would take the risk of instituting a criminal action rather than admit to
the indiscretion of their daughter. And this, as the records reveal, is what
happened in this case. (People vs Rico Jamlan Salem, October 16/97)

SODOMY IS NOT THE SAME AS IGNOMINY NOR CAN IT BE

CONSIDERED AS IGNOMINY.
"Ignominy is a circumstance pertaining to the moral order, which
adds disgrace and obliloquy to the material injury caused by the crime."
Thus, for ignominy to be appreciated as an aggravating circumstance in the
instant case, it must be shown that the sexual assault on Francis Bart was
done by accused-appellant to put the former to shame before killing him.
This is clearly not the case here for accused-appellant's intention was shown
to be the commission of sexual abuse on the victim as an act of revenge for
his similar experience as a child.

A MEDICAL EXAMINATION OF VICTIM

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

WHEN THE INFORMATIONS ON RAPE CASES FAILED TO ALLEGE

ACTUAL RELATIONSHIP ETC. HENCE DEATH PENALTY CANNOT BE
IMPOSED

HEINOUSNESS OF RAPE OF
ONES DESCENDANT

In this case, the information's in Criminal Case Nos. 8899-8900

alleged that accused-appellant, "who is the stepfather of the private offended
party" by "force, violence and intimidation" succeeded in having carnal
knowledge of the latter when she was then 14 and 13 years old, respectively.
On the otherhand, the information in Criminal Case Nos. 8945-8946 alleged
that accused-appellant, "who. is the stepfather of victim Jenny Macaro"
succeeded in having carnal knowledge of the latter, who was a girl below 12
years old. As already noted, contrary to these allegations, accused-appellant
is not really the stepfather of complainants Lenny and Jenny because
accused-appellant and complainants' mother were not legally married but
were merely living in common-law relation. In fact, Lenny and Jenny
interchangeably referred to accused-appellant as their stepfather, "kabit,"
"live-in partner ng Mama ko," "tiyo," and
"tiyuhin." Complainants' sisterin-law, Rosalie Macaro, also testified that her "mother-in-law is not legally
married to accused-appellant." Accused-appellant likewise said on direct
and cross-examination that he was not legally married to the mother of the
complainants, and he referred to her as his live-in partner. This was
confirmed by Emma Macaro, mother of the complainants. Although the rape
of a person under eighteen (18) years of age by the common-law spouse of
the victim's mother is punishable by death, this penalty cannot be imposed
on accused-appellant in these cases because this relationship was not what
was alleged in the information's. What was alleged was that he is the
stepfather of the complainants.

In the case before us, the accused raped his own flesh and blood at
such a tender age of eleven. He thus violated not only he purity and her trust
but also the mores of his society which he has scornfully defined. By
inflicting his animal greed on her in a disgusting coercion of incestuous lust,
he forfeits all respect as human being and is justly spurned by all, not least of
all, by the fruit of his own loins whose progeny he has forever stained with his
shameful and shameless lechery. People v jenelito Escober Y Resuento,
Nov 6/97)
MERE DISCIPLINARY CHASTISEMENT
IS NOT ENOUGH TO DOUBT CREDIBILITY
OF RAPE VICTIM WHO IS A DESCENDANT
Mere disciplinary chastisement is not strong enough to make
daughters in a Filipino family invent a charge that would only bring shame
and humiliation upon them and their own family and make them the object of
gossip among their classmates and friends.
It is unbelievable that
Jacqueline would fabricate a serious criminal charge just to get even with her
father and to emphasize with her sister. The sisters would not contrive
stories of defloration and charge their own father with rape unless these

42

This Court has also ruled that a medical examination is not

indispensable to the prosecution of rape as long as the evidence on hand
convinces the court that a conviction of rape is proper.

INFORMATION IN RAPE CASES WITH USE OF DEADLY WEAPON

MUST BE ALLEGED OTHERWISE DEATH PENALTY, CANNOT BE
IMPOSED
Neither can accused-appellant be meted the death penalty in
Criminal Case No. 8900 where he committed the rape after threatening the
victim, Lenny Macaro, with a knife. Under Art. 335 of the Revised Penal
Code, simple rape is punishable by "reclusion perpetua." When the rape is
committed "with the use of a deadly weapon," i.e., when a deadly weapon is
used to make the victim submit to the will of the offender, the penalty is
reclusion perpetua to death." This circumstance must however be alleged in
the information because it is also in the nature of a qualifying circumstance
which increases the range of the penalty to include death. In Criminal Case
No. 8900, while complainant Lenny testified that accused-appellant raped
her after threatening her with a knife, the "use of a deadly weapon" in the
commission of the crime was not alleged in the information. Therefore, even
if the same was prove, it cannot be appreciated as a qualifying circumstance.
The same can only be treated as generic aggravating circumstance which, in
this case, cannot affect the penalty to be impose, i.e., reclusion perpetua.
Accordingly, the accused-appellant should be sentenced to the penalty of
reclusion perpetua. Accordingly, the accused-appellant should be sentenced
to the penalty of reclusion perpetua for each of the four counts of rape. (PP
-vs- FELIXBERTO FRAGA Y BAYLON, G.R. Nos. 134130-33, April 12,
2000)

EXAMINATIONS
NECESSARY

OF

ALL

SPECIMENS

IN

DRUG

CASES

WHEN CARNAL KNOWLEDGE IS CONSUMATED

It is worth mentioning that in rape cases, the prosecution is not
required to establish penile penetration because even the slightest touching
of the female genitalia, or mere introduction of the male organ into the labia
of the pudendum constitutes carnal knowledge. (PP -vs- FERNANDO
CALANG MACOSTA, alias "DODONG" G.R. No. 126954, Dec. 14, 1999)
THE CHARGE OF RAPE DO NOT INCLUDE SIMPLE SEDUCTION.
HENCE, IF ONE IS CHARGE WITH RAPE AND IS NT PROVEN,
ACCUSED CANNOT BE HELD GUILTY OF SIMPLE SEDUCTION.
Even as the prosecution failed to proved the use of force, violence
and intimidation by the accused-appellant, we cannot convict the accusedappellant of the crime of simple seduction without offense to the
constitutional rights of the accused-appellant to due process and to be
informed the accusation against him. The charge of rape does not include
simple seduction. (PP -vs LOLITO MORENO Y LANCION alias "LOLOY"
G.R. No. 115191, Dec. 21, 1999)
WHAT ARE THE ELEMENTS OF RAPE?

NOT

The elements of rape are: (1) that the offender had carnal
knowledge of a woman; (2) that such act is accomplished by using force or
intimidation; or when the woman is deprived of reason or otherwise
unconscious; or when the woman is under twelve years of age or is
demented.

We are not persuaded by the claim of accused-appellants that in

order for them to be convicted of selling 2,800 grams of marijuana, the whole
specimen must be tested considering that Republic Act 7659 imposes a
penalty dependent on the amount or the quantity of drugs seized or taken.
This Court has ruled that a sample from one of the packages is logically
presumed to be representative of the entire contents of the package unless
proven otherwise by accused-appellant. (PP -vs- DIOLO BARITA Y
SACPA, ET AL., G.R. No. 123541, Feb. 8, 2000)

MEANING OF TAKING ADVANTAGE OF SUPERIOR STRENGTH IN

RAPE CASES
Taking advantage of superior strength means to purposely use
excessive force out of proportion to the means available to the person
attacked. It is abuse of superior numbers or employment of means to
weaken the defense. This circumstance is always considered whenever

MEDICAL EXAMINATION NOT REQUIRED IN RAPE CASES

43

there is notorious inequality of forces between the victim and the aggressor,
assuming a situation of superiority notoriously advantageous for the
aggressor deliberately chosen by him in the commission of the crime. To
properly appreciate it, it is necessary to evaluate not only the physical
condition of the parties and the arms or objects employed but the incidents in
the total development of the case as well.

be imposed because these qualifying circumstances were not specified in the

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

Moreover, like the crime of parricide by a husband on his wife, abuse

of superior strength Is inherent in rape. It is generally accepted that under
normal circumstances a man who commits rape on a woman is physically
stronger than the latter. (PP -vs- EDGARDO DE LEON Y SANTOS, G.R.
No. 128436, Dec. 10, 1999)

QUALIFYING CIRCUMSTANCE IN RAPE CASES MUST BE ALLEGED IN

ORDER THAT DEATH PENALTY MAYBE IMPOSED
This Court has ruled in a long line of cases that the circumstance
under the amendatory provisions of Section 11 of Republic Act 7659, the
attendance of any of which mandates the single indivisible penalty of death
are in the nature of qualifying circumstances which cannot be proved as such
unless alleged with particularity in the information unlike ordinary aggravating
circumstances which affect only the period of the penalty and which may be
proven even if not alleged in the information. It would be a denial of the right
of the accused to be informed of the charge against him and consequently, a
denial of due process, if he is charged with simple rape and will be convicted
of its qualified form punishable by death although the attendant circumstance
qualifying the offense and resulting in capital punishment was not alleged in
the indictment under which he was arraigned. Procedurally, then, while the
minority of Renelyn and her relationship to the accused-appellant were
established during the trial, the accused-appellant can only be convicted of
simple rape because he cannot be punished for a graver offense that that
with which he was charged. Accordingly, the imposable penalty is reclusion
perpetua. (PP -vs- EDWIN R. DECENA, G.R. No. 131843, May 31,
2000)

WHEN TESTIMONY OF VICTIM IS OVERLY GENERALIZED IN CRIME OF

RAPE
Each and every charge of rape is a separate and distinct crime so
that each of the sixteen other rapes charged should be proven beyond
reasonable doubt. The victim's testimony was overly generalized and lacked
specific details on how each of the alleged sixteen rapes was committed.
Her bare statement that she was raped so many times on certain weeks is
clearly inadequate and grossly insufficient to establish the guilt of accusedappellant insofar as the other sixteen rapes charged are concerned. In
People vs. Garcia, this Court succinctly observed that:
xxx
the indefinite testimonial evidence that complainant was raped every
week is decidedly inadequate and grossly insufficient to establish the guilt of
appellant therefor with the required quantum of evidence. So much of such
indefinite imputations of rape, which are uncorroborated by any other
evidence fall within this category.
(PP -vs- EDMUNDO DE LEON Y
JESUS, G.R. No 130985, Dec. 3, 1999

IMPORTANT CONSIDERATION IN RAPE

Neither is the absence of spermatozoa in Delia's genitalia fatal to the
prosecution's case. The presence or absence of spermatozoa is immaterial
in a prosecution for rape. The important consideration in rape cases is not
the emission of semen but the unlawful penetration of the female genitalia by
the male organ. (PP -vs- RODOLFO BATO alias 'RUDY BATO," G.R. No.
134939, Feb. 16, 2000)

CONCURRENCE OF MINORITY OF VICTIM AND RELATIONSHIPS IN

RAPE MUST BE ALLEGED SO THAT DEATH PENALTY MAYBE
IMPOSED
The concurrence of the minority of the victim and her relationship to
the offender should be specifically alleged in the information conformably
with the accused's right to be informed of the accusation against him. In this
case, although the minority of Poblica and her relationship with appellant
were established by the prosecution beyond doubt, the death penalty cannot

44

WHEN RAPE IS NOT COMMITTED AND SWEETHEART THEORY GIVEN

CREDENCE

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

First. Private complainant never objected or showed any resistance

when accused-appellant allegedly dragged her forcibly across the pedestrian
overpass and brought her to an undisclosed place at Quiapo. Although he
was holding her wrist tightly, she could have easily extricated herself form
him on several occasions: (a) while they were inside the bus bound for
Quiapo; (b) when they alighted form the bus and roamed the sidestreets of
Quiapo; and especially so, (c) when they entered the hotel and finally the
room where the alleged rape took place. Accused-appellant was unarmed
and his tight grip could not have prevented private complainant from at least
shouting for help. Her demeanor was simply inconsistent with that of the
ordinary Filipina whose instinct dictates that the summon every ounce of her
strength and courage to thwart any attempt to besmirch her honor and
blemish her purity. True, women react differently in similar situations, but it is
too unnatural for an intended rape victim, as in this case, not to make even
feeble attempt to free herself despite a myriad of opportunities to do so.

NATURE OF INCESTUOUS RAPE

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

Incestuous rape of a daughter by a father has heretofore been

bitterly and vehemently denounced by this Court as more than just a
shameful and shameless crime. Rape in itself is a nauseating crime that
deserves the condemnation of all decent persons who recognize that a
woman's cherished chastity is hers alone to surrender at her own free will,
and whoever violates this norm descends to the level of the odious beast.
But the act becomes doubly repulsive where the outrage is perpetrated on
one's own flesh and blood for the culprit is further reduced to a level lower
than the lowly animal and forfeits all respect otherwise due him as a human.
(PP -vs- MELANDRO NICOLAS Y FAVELLA, G.R. Nos. 125125-27, Feb.
4, 2000)

Finally. The prosecution failed to substantiated any of its allegations.

Instead, it opted to stand or fall on the uncorroborated and implausible
testimony of the private complainant. It is elementary in our rules of
evidence that a party must prove the affirmative of his allegations. (PP -vsTOMAS CLAUDIO Y MENIJIE, G.R. No. 133694, Feb. 29, 2000)

LOVE RELATIONSHIP DO NOT RULE OUT RAPE

Even assuming ex gratia argumenti that accused-appellant and
private complainant were indeed sweethearts as he claims, this fact alone
will not extricate him from his predicament. The mere assertion of a "love
relationship" would not necessarily rule out the use of force to consummate
the crime. It must be stressed that in rape case, the gravamen of the offense
is sexual intercourse with a woman against her will or without her consent.
Thus, granting arguendo that the accused and the victim were really lovers
this Court has reiterated time and again that "A sweetheart cannot be forced
to have sex against her will. Definitely, a man cannot demand sexual

WHEN TWO AFFIDAVITS ARE EXECUTED BY THE COMPLAINANT IN A

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

45

gratification from a fiance, worse, employ violence upon her on the pretext
of love. Love is not a license for lust." (PP -vs- DANTE CEPEDA Y
SAPOTALO, G.R. No. 124832, Feb. 1, 2000)
COMPENSATORY DAMAGES IN CASES OF QUALIFIED RAPE
PLACES NOTORIOUS FOR HOLD-UPS DONE
CONSIDERED AGGRAVATING AS NIGHT TIME

AT

NIGHT

With regard to the award of compensatory damages, we have rule in People

vs. Victor, which was later reaffirmed in People vs. Prades, that "if the
crime of rape is committed or effectively qualified by any of the
circumstances under which the death penalty is authorized by the present
amended law, the indemnity of the victim shall be in the increased amount of
not less than P75,000.00." (PP -vs- ANTONIO MAGAT Y LONDONIO,
G.R. No. 130026, May 31, 2000)

IS

Considering that the place where the crime took place was
"notorious for hold-ups done at night, precisely to maximize the advantage of
darkness," we cannot but agree with the trial court that nighttime was
purposely sought by accused-appellants "for the more successful
consummation may be perpetrated unmolested or so that they could escape
more thoroughly." (PP -vs- FELIMON ALIPAYO Y TEJADA, ET AL., G.R.
No. 122979, Feb. 2, 2000)

NATURE OF INTIMIDATION IN CASE OF RAPE

In People vs. Luzorata, the Court held that intimidation was
addressed to the mind of the victim and therefore subjective, and its
presence could not be tested by any hard-and-fast rule but must be viewed in
light of the victim's perception and judgment at the time of the crime. Thus,
when a rape victim becomes paralyzed with fear, she cannot be expected to
think and act coherently, her failure to immediately take advantage of the
early opportunity to escape does not automatically vitiate the credibility of her
account. "Complainant cannot be faulted for not taking any action inasmuch
as different people react differently to a given type of situation, there being no
standard form of human behavioral response when one is confronted with a
strange, startling or frightful experience." (PP -vs- VICENTE BALORA Y
DELANTAR, G.R. No. 124976, May 31, 2000)

RAPE MAY BE COMMITTED IN ALMOST ALL PLACES

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

EACH AND EVERY RAPE ALLEGED MUST BE PROVEN

DEATH PENALTY CANNOT BE IMPOSED WHEN INFORMATION FAILED

TO INDICATE THE AGE OF THE VICTIM AND HER CORRECT
RELATIONSHIP WITH THE ACCUSED

Each and every charge of rape is a separate and distinct crime so that each
of the sixteen other rapes charged should be proven beyond reasonable
doubt. The victim's testimony was overly generalized and lacked specific
details on how each of the alleged sixteen rapes was committed. Her bare
statement that she was raped so many times on certain weeks is clearly
inadequate and grossly insufficient to establish the guilt of accusedappellant insofar as the other sixteen rapes charged are concerned. In
People vs. Garcia this Court succinctly observed that:

The penalty of death cannot be properly imposed since the

indictment has failed to indicate the age of the victim and her correct
relationship with appellant, concurrent qualifying circumstances, essential in
the imposition of that penalty. Furthermore, appellant is not a "parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within
the third civil degree, or the common-law spouse of the parent of the victim."
The latter's grandmother, Remedios Lustre, herself acknowledges that
appellant has just for a time been her common-law husband.
(PP -vsFEDERICO LUSTRE Y ENCINAS, G.R. No. 134562, April 6, 2000)

xxx
the indefinite testimonial evidence that complainant was raped
every week is decidedly inadequate and grossly insufficient to establish the

46

guilt of appellant therefor with the required quantum of evidence. So much

of such indefinite imputations of rape, which are uncorroborated by any
other evidence fall within this category. (PP -vs- EDMUNDO DE LEON Y
JESUS, G.R. No. 130985, Dec. 3, 1999)

enough to render incredible the complaint of a 13-year old daughter.

(PP
-vs- CONRADO CABANA @ RANDY, G.R. No. 127124, May 9, 2000)
WHEN THERE IS A SEPARATE CRIME OF RAPE AND ROBBERY IS
COMMITTED

AT THE START THERE MUST BE RAPE, BUT SUBSEQUENT EVENTS

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

As related by Private Complainant Amy de Guzman, accused-appellant

suddenly jumped over the counter, strangled her, poked a knife at the left
side of her neck, pulled her towards the kitchen where he forced her to
undress, and gained carnal knowledge of her against her will and consent.
Thereafter, he ordered her to proceed upstairs to get some clothes, so he
could bring her out, saying he was not leaving her alive. At this point,
appellant conceived the idea of robbery because, before they could reach the
upper floor, he suddenly pulled Amy down and started mauling her until she
lost consciousness; then he freely ransacked the place. Leaving Amy for
dead after repeatedly banging her head, first on the wall, then on the toilet
bowl, he took her bracelet, ring and wristwatch. He then proceeded upstairs
where he took as well the jewelry box containing other valuables belonging to
his victim's employer.

"Complainant could have been raped the first time accused-appelant

had carnal knowledge of her, when she was 13 years old. This however, is
not a prosecution for such rape. When she complained of having been raped
in this case, she was already 30 or 31 years old, 17 or 18 years after she
had been allegedly ravished for the first time by her father, the herein
accused-appelant. During the said period of 17 or 18 years, neither
complainant nor her parents denounced accused-appellant despite the fact
that he continued to have sexual relation allegedly without the consent of
complainant. During this period, four children were born to complainant and
accused-appellant. Complainant and accused-appellant practically
cohabited, choosing the baptismal sponsors for their children, and even
inviting friends and relatives to the feasts. The relationship was known to
neighbors. Thus, their relationship might be incestuous, but it was not by
reason of force or intimidation. For their part, while in the beginning
complainant's mother and sisters may have disapproved of the relationship,
in the end, it would appear that subsequently they just turned a blind eye on
the whole affair. Given these facts, we cannot say that on September 19,
1995 when accused-appellant had sexual intercourse with complainant, he
committed rape. (People v. Villalobos, G.R. 134294, 05/21/2001)

Under these circumstance, appellant cannot be convicted of the special

complex crime of robbery with rape. However, since it was clearly proven
beyond reasonable doubt that he raped Amy de Guzman and thereafter
robbed her and Ana Marinay of valuables totaling P16,000.00, he committed
two separate offenses -rape with the use of deadly weapon and simple
robbery with force and intimidation against persons.

CASES WHEREIN THE SCANDAL RESULTING FROM RELATIONS OF

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

THE DELAY AND INITIAL RELUCTANCE OF A RAPE VICTIM TO MAKE

PUBLIC THE ASSAULT ON HER VIRTUE IS NEITHER UNKNOWN OR
UNCOMMON. AS HELD IN LTHE CASE OF PEOPLE VS. MALAGAR
"Vacillation in the filing of complaint by rape victim is not an
uncommon phenomenon. This crime is normally accompanied by the
rapist's threat on the victim's life, and the fear can last for quit a while. There
is also the natural reluctance of a woman to admit her sullied chastity,
accepting thereby all the stigma it leaves, and to then expose herself to the
morbid curiosity of the public whom she may likely perceived rightly or
wrongly, to be more interested in the prurient details of the ravishment than
in her vindication and the punishment of the rapist. In People vs. Coloma
(222 SCRA 255) we have even considered an 8-year delay in reporting the
long history of rape by the victim's father as understandable and so not

Thus in People vs. Lamarroza, a case involving an eighteen-year old

woman "intellectually weak and gullible," the Court found that the alleged
victim's family was "obviously scandalized and embarrassed by (the victim)
Elena's 'unexplained' pregnancy," prompting them to cry "rape." The Court
acquitted the accused.
In People vs. Domogoy, private complainant was seen having sexual
intercourse in the school premises with appellant therein by the latter's coaccused. "It is thus not farfetched," the Court held, "for complainant to have

47

instituted the complainant for rape against the three to avoid being bruited
around as a woman of loose morals."

cudgels for them than for the woman to admit her own acts of indiscretion.
(PP -vs- ERWIN AGRESOR, G.R. Nos. 119837-39, Dec. 9, 1999)

Similarly, in People vs. Castillon, the Court considered the

complainant's agreement to engage in pre-marital sexual intercourse
"already a disgrace to her family, what more of her acquiescence to have
sexual intercourse on a stage near the vicinity where the JS program was
being held and prying eyes and ears abound."

JUDGES SHOULD NOT BE OVERLY PROTECTIVE OF EVERY WOMAN

IN RAPE CASES. THEY MUST LOOK AT THE CHARGE WITH EXTREME
CAUTION AND CIRCUSMPECTION

In People vs. Bawar, the complainant was caught in flagrante by her

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

Rape is a very emotional word, and the natural human reactions to it

are categorical: sympathy for the victim and admiration for her in publicly
seeking retribution for her outrageous misfortune, and condemnation of the
rapist. However, being interpreters of the law and dispensers of justice,
judges must look at a rape charge without those proclivities and deal and
with it with extreme caution and circumspection.
Judges must free
themselves of the natural tendency to be overprotective of every woman
decrying her having been sexually abused and demanding punishment for
the abuser. While they ought to be cognizant of the anguish and humiliation
the rape victim goes through as she demands justice, judges should equally
bear in mind that their responsibility is to render justice based on the law.
(PP -vs- EDWIN LADRILLO, G.R. No. 124342, Dec. 8, 1999)

People vs. Godoy also involved an adulterous relationship between

the accused, who was married, and his seventeen-year old student. In
acquitting the accused, the Court held:
The Court takes judicial cognizance of the fact that in rural areas in
the Philippines, young ladies are strictly required to act with circumspection
and prudence. Great caution is observed so that their reputations shall
remain untainted. Any breath of scandal which brings dishonor to their
character humiliates their entire families. It could precisely be that
complainant's mother wanted to save face in the community where
everybody knows everyone else, and in an effort to conceal her daughter's
indiscretion and escape the wagging tongues of their small rural community,
she had to weave the scenario of this rape drama.

SEXUAL HARASSMENT LAW

(RA 7877)
WORK, EDUCATION OR TRAINING-RELATED
SEXUAL HARASSMENT DEFINED.
Work, education or training-related sexual harassment is committed by an
employer, employee, manager, supervisor, agent of the employer, teacher,
instructor, professor, coach, trainor, or any other person who, having
authority, influence or moral ascendancy over another in a work or training or
education environment, demands, requests or otherwise requires any sexual
favor from the other, regardless of whether the demand, request or
requirement for submission is accepted by the object of said Act.

Here, the elopement of a thirteen-year old with her nineteen-year old

second cousin no doubt caused quite a tempest in the otherwise serene
community of Vintar, Ilocos Norte. That complainant's parents were against
their relationship, as evidenced in one of her letters, makes it more likely that
the charges of rape were instigated to salvage the complainant's and her
family's honor.
While the "sweetheart theory" does not often gain favor with this
Court, such is not always the case if the hard fact is that the accused and the
supposed victim are, in truth, intimately related except that, as is usual in
most cases, either the relationship is illicit or the victim's parents are against
it. It is not improbable that in some instances, when the relationship is
uncovered, the alleged victim or her parents for that matter would take the
risk of instituting a criminal action in the hope that the court would take the

WHEN SEXUAL HARASSMENT IS COMMITTED:

Work, Education or Training-related Sexual Harassment Defined
Work, education or training-related sexual harassment is committed
by an employer, employee, manager, supervisor, agent of the employer,

48

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

The religious education of children in all public and private schools is a

legitimate concern of the Church to which the students belong. All churches
may offer religious instruction in public and private elementary and
secondary schools, subject to the requirements of the Constitution and
existing laws.

In work-related or employment environment:

(1)

(2)
(3)

The sexual favor is made as a condition in the hiring or in the

employment, re-employment or continued employment of said
individual, or in granting said individual favorable compensation,
terms, conditions, promotions, or privileges; or the refusal to
grant the sexual favor results in limiting, segregating or
classifying the employee which in any way would discriminate,
deprive or diminish employment opportunities or otherwise
adversely affect said employee;
The above acts would impair the employee's rights or privileges
under existing labor laws; or
The above acts would result in an intimidating, hostile, or
offensive environment for the employee.

TERMINATION OF RIGHTS OF PARENTS

When a child shall have been committed to the Department of Social Welfare
or any duly licensed child placement agency or individual pursuant to an
order of the court, his parents or guardian shall thereafter exercise no
authority over him except upon such conditions as the court may impose.
VIOLATION OF PD 603 BY A CHILD
Prohibited Acts:
It shall be unlawful for any child to leave the person or institution to which he
has been judicially or voluntarily committed or the person under whose
custody he has been placed in accordance with the next preceding article, or
for any person to induce him to leave such person or institution, except in
case of grave physical or moral danger, actual or imminent, to the child.
Any violation of this article shall be punishable by an imprisonment of not
more than one year or by a fine of not more than two thousand pesos, or
both such fine and imprisonment at the discretion of the court: Provided, That
if the violation is committed by a foreigner, he shall also be subject to
deportation.

In an education or training environment:

(1)
(2)
(3)

(4)

Against one who is under the care, custody or supervision of

the offender;
Against one whose education, training, apprenticeship or
tutorship is entrusted to the offender;
When the sexual favor is made a condition to the giving of a
passing grade, or the granting of honors and scholarships or the
payment of a stipend, allowance or other benefits, privileges, or
considerations; or
When the sexual advances result in an intimidating, hostile or
offensive environment for the student, trainee or apprentice.

CARE OF YOUTHFUL OFFENDER

HELD FOR EXAMINATION OR TRIAL

Any person who directs or induces another to commit any

act of sexual harassment as herein defined, or who cooperates in the
commission thereof by another without which it would not have been
committed, shall also be held liable under this Act.

A youthful offender held for physical and mental examination or trial or

pending appeal, if unable to furnish bail, shall from the time of his arrest be
committed to the care of the Department of Social Welfare or the local
rehabilitation center or a detention home in the province or city which shall be
responsible for his appearance in court whenever required: Provided, That in
the absence of any such center or agency within a reasonable distance from
the venue of the trial, the provincial, city and municipal jail shall provide
quarters for youthful offenders separate from other detainees. The court may,
in its discretion, upon recommendation of the Department of Social Welfare
or other agency or agencies authorized by the Court, release a youthful

CHILD AND YOUTH WELFARE CODE

( PD 603 with Amendments)
RELIGIOUS INSTRUCTION

49

offender on recognizance, to the custody of his parents or other suitable

person who shall be responsible for his appearance whenever required.

exclusive jurisdiction of the Military Tribunals, they may be committed at any

military detention or rehAbilitation center.

SUSPENSION OF SENTENCE AND COMMITMENT

OF YOUTHFUL OFFENDER

PD 1210
ARTICLE 192 OF PD 603 AS AMENDED IS FURTHER
AMENDED TO READ AS FOLLOWS:

If after hearing the evidence in the proper proceedings, the court should find
that the youthful offender has committed the acts charged against him the
court shall determine the imposable penalty, including any civil liability
chargeable against him. However, instead of pronouncing judgment of
conviction, the court shall suspend all further proceedings and shall commit
such minor to the custody or care of the Department of Social Welfare, or to
any training institution operated by the government, or duly licensed
agencies or any other responsible person, until he shall have reached
twenty-one years of age or, for a shorter period as the court may deem
proper, after considering the reports and recommendations of the
Department of Social Welfare or the agency or responsible individual under
whose care he has been committed.

"Art. 192.
Suspension of sentence and Commitment of Youthful
Offender. - If after hearing the evidence in the proper proceedings, the court
should find that the youthful offender has committed the acts charged against
him, the court, shall determine the imposable penalty, including any civil
liability chargeable against him. However, instead of pronouncing judgment
of conviction, the court upon application of the youthful offender and if it finds
that the best interest of the public as well as that of the offender will be
served thereby, may suspend all further proceedings and commit such minor
to the custody or care of the Department of Social Services and
Development or to any training institution operated by the government or any
other responsible person until he shall have reached twenty one years of
age, or for a shorter period as the court may deem proper, after considering
the reports and recommendations of the Department of Social Services and
Development or the government training institution or responsible person
under whose care he has been committed.

The youthful offender shall be subject to visitation and supervision by a

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

Upon receipt of the application of the youthful offender for

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

PD 1210
ARTICLE 191 OF PD 603 IS HEREBY
AMENDED TO READ AS FOLLOWS

The Youthful offender shall be subject to visitation and supervision

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

"Article 101.
Care of Youthful Offender Held for Examination or Trial. - A
youthful offender held for physical and mental examination or trial or pending
appeal, if unable to furnish bail, shall from the time of his arrest be committed
to the care of the Dept. of Social Services and Development or the local
rehabilitation center or a detention home in the province or city which shall be
responsible for his appearance in court whenever required: Provided, that in
the absence of any such center or agency within a reasonable distance from
the venue of the trial, the provincial, city and municipal jail shall provide
quarters for youthful offenders separate from other detainees. The court may,
in its discretion upon recommendation of the Department of Social Services
& Development or other agency or agencies50authorized by the CouRt,
rElease a youthFul offender on50recognizance, to the custody of his parents
or other suitable persoN who shall be responsible for his appearance
whenever required. However, in the case of those whose cases fall under the

The benefits of this article shall not apply to a youthful offender who
has once enjoyed suspension of sentence under its provisions or to one who
is convicted of an offense punishable by death or life imprisonment or to one
who is convicted for an offense by the Military Tribunals.
PD 1179
APPEAL
The order of the court denying an application for suspension of sentence
under the provisions of Article 192 above shall not be appealable."

50

(3) Taking advantage of influence or relationship to procure a

child as prostitute;
(4) Threatening or using violence towards a child to engage him
as a prostitute; or
(5) Giving monetary consideration goods or other pecuniary
benefit to a child with intent to engage such child in prostitution.

RETURN OF THE YOUTHFUL

OFFENDER TO THE COURT
Whenever the youthful offender has been found incorrigible or has
wilfully failed to comply with the conditions of his rehabilitation programs, or
should his continued stay in the training institution be inadvisable, he shall be
returned to the committing court for the pronouncement of judgment.

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

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

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

In any case covered by this article, the youthful offender shall be

credited in the service of his sentence with the full time spent in actual
commitment and detention effected under the provisions of this Chapter."

ATTEMPT TO COMMIT
CHILD PROSTITUTION
RA 7610
CHILD ABUSE LAW

There is an attempt to commit child prostitution under Section 5,

paragraph (a) hereof when any person who, not being a relative of a child, is
found alone with the said child inside the room or cubicle of a house, an inn,
hotel, motel, pension house, apartelle or other similar establishments, vessel,
vehicle or any other hidden or secluded area under circumstances which
would lead a reasonable person to believe that the child is about to be
exploited in prostitution and other sexual abuse.

CHILD PROSTITUTION AND

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

There is also an attempt to commit child prostitution, under

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

The penalty of reclusion temporal in its medium period to reclusion perpetua

shall be imposed upon the following:
(a)
Those who engage in or promote, facilitate or induce child
prostitution which include, but are not limited to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by
means of written or oral advertisements or other similar means;

CHILD TRAFFICKING

51

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

If the child used as a performer, subject or seller/distributor is below

twelve (12) years of age, the penalty shall be imposed in its maximum period.
Any ascendant, guardian, or person entrusted in any capacity with
the care of a child who shall cause and/or allow such child to be employed or
to participate in an obscene play, scene, act, movie or show or in any other
acts covered by this section shall suffer the penalty of prision mayor in its
medium period.

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

OTHER ACTS OF NEGLECT, ABUSE,

CRUELTY OR EXPLOITATION AND
OTHER CONDITIONS PREJUDICIAL
TO THE CHILDS DEVELOPMENT

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

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

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

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

(c)
When doctor, hospital or clinic official or employee, nurse,
midwife, local civil registrar or any other person simulates birth for
the purpose of child trafficking;
(d)
When a person engages in the act of finding children among
low-income families, hospitals, clinics, nurseries, day-care centers,
or other child-during institutions who can be offered for the purpose
of child trafficking.
A penalty lower two (2) degrees than that prescribed for the
consummated felony under Section 7 hereof shall be imposed upon the
principals of the attempt to commit child trafficking under this Act.

(c)
Any person who shall induce, deliver or offer a minor to any
one prohibited by this Act to keep or have in his company a minor as
provided in the preceding paragraph shall suffer the penalty of prision mayor
in its medium period and a fine of not less than Forty thousand pesos
(P40,000); Provided, however, That should the perpetrator be an ascendant,
stepparent or guardian of the minor, the penalty to be imposed shall be
prision mayor in its maximum period, a fine of not less than Fifty thousand
pesos (P50,000), and the loss of parental authority over the minor.

OBSCENE PUBLICATIONS
AND INDECENT SHOWS
Any person who shall hire, employ, use, persuade, induce or coerce
a child to perform in obscene exhibitions and indecent shows, whether live or
in video, or model in obscene publications or pornographic materials or to
sell or distribute the said materials shall suffer the penalty of prision mayor in
its medium period.

(d)
Any person, owner, manager or one entrusted with the
operation of may public or private place of accommodation, whether for
occupancy, food, drink or otherwise, including residential places, who allows
any person to take along with him to such place or places any minor herein
described shall be imposed a penalty of prision mayor in its medium period

52

and a fine of not less than Fifty thousand pesos (P50,000), and the loss of
the license to operate such a place or establishment.

(d)
The safety and protection of those who provide services
including those involved in fact-finding missions from both government and
non-government institutions shall be ensured. They shall not be subjected to
undue harassment in the performance of their work;

(e)
Any person who shall use, coerce, force or intimidate a
street child or any other child to :
(1)
(2)
(3)

(e)
Public infrastructure such as schools, hospitals and rural
health units shall not be utilized for military purposes such as command
posts, barracks, detachments, and supply depots; and

Beg or use begging as a means of living;

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

(f)
All appropriate steps shall be taken to facilitate the reunion
of families temporarily separated due to armed conflict.

For purposes of this Act, the penalty for the commission of acts
punishable under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1
of Act No. 3815, as amended, the Revised Penal Code, for the crimes of
murder, homicide, other intentional mutilation, and serious physical injuries,
respectively, shall be reclusion perpetua when the victim is under twelve (12)
years of age. The penalty for the commission of acts punishable under Article
337, 339, 340 and 341 of Act No. 3815, as amended, the Revised Penal
Code, for the crimes of qualified seduction, acts of lasciviousness with the
consent of the offended party, corruption of minors, and white slave trade,
respectively, shall bE53One (
dEgree higher tHan that53imposed by law
when the victim is under twelve (12) years age.
The victim of the acts committed under this section shall be entrusted to the
care of the department of Social Welfare and Development.

RIGHTS OF CHILDREN ARRESTED

FOR REASONS RELATED TO
ARMED CONFLICT
Any child who has been arrested for reasons related to armed
conflict, either as combatant, courier, guide or spy is entitled to the following
units;
(a)
Separate detention from adults except where families are
accommodated as family units;
(b)
Immediate free legal assistance;
(c)
Immediate notice of such arrest to the parents or guardians
of the child; and
(d)
Release of the child on recognizance within twenty-four (24)
hours to the custody of the Department of Social Welfare and
Development or any responsible member of the community as
determined by the court.

CHILDREN AS ZONES OF PEACE

Children are hereby declared as Zones of Peace. It shall be the
responsibility of the State and all other sectors concerned to resolve armed
conflicts in order to promote the goal of children as zones of peace. To attain
this objective, the following policies shall be observed.

If after hearing the evidence in the proper proceedings the court

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

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

53

The aforesaid child shall subject to visitation and supervision

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

Employment: and Provided, That the following requirements in all instances

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

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

In the above exceptional cases where any such child may be

employed, the employer shall first secure, before engaging such child, a work
permit from the Department of Labor and Employment which shall ensure
observance of the child.

PEDOPHILIA IS NOT INSANITY

The Department of Labor and Employment shall promulgate rules

and regulations necessary for the effective implementation of this Section."

When accused-appellant was committed to the National Center for Mental

Health, he was not diagnosed as insane but was suffering from pedophilia. Thus,
there is no doubt in our mind that he was sane during his two-year confinement in the
center, pedophilia being dissimilar to insanity.

IF MINOR DO NOT APPLY FOR

SUSPENSION OF SENTENCE IT IS
DEEMED WAIVED. THE COURT CANNOT
MOTU PROPIO GIVE HIM THE BENEFITS
OF ART. 192

RA 7658
EMPLOYMENT OF CHILDREN

The record, unfortunately for accused-appellant Buena, does not

show that he filed with the trial court an application for suspension of
sentence so as to put into operation the benevolent provisions of Presidential
Decree No. 603. The Court, therefore, has no other choice but to deny him
this privilege.

Children below fifteen (15) years of age shall not be employed except:
1)
When a child works directly under the sole responsibility of
his parents or legal guardian and where only members of the employer's
family are employed: Provided, however, That his employment neither
endangers his life, safety, health and morals, nor impairs his normal
development; Provided, further, That the parent or legal guardian shall
provide the said minor child with the prescribed primary and/or secondary
education; or

DISCHARGE; REPORT AND ECOMMENDATION

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

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

54

the community, even before reaching the age of majority, upon

recommendation of the Department of Social Welfare, it shall dismiss the
case and order his final discharge." It is therefore clear that in cases where
the DSWD recommends the discharge of a youthful offender, it is the trial
court before whom the report and recommendation is subject to judicial
review. Recommendation alone is not sufficient to warrant the release of a
youthful offender. In reviewing the DSWD's recommendation, the trial judge
must not base his judgment on mere conclusions but should seek out
concrete, material and relevant facts to confirm that the youthful offender has
indeed been reformed and is ready to re-enter society as a productive and
law-abiding citizen. Caution, however, is given to the trial court. To begin
with, the youthful offender is not to be tried inew for the same act for which
he was charged. The inQuiry is not a CriminaL prosecution but is ratheR
limited to the determination of the offender's55proper education and
rehabilitation during his commitment in the Training Center and his moral and
social fitness to re-join the community. (Pp. V. Galit; GR 97432, 3/1/94)

There is a further obstacle that stands in the way of Estorque's

conviction. While it has been proven that he was only thirteen years old at
the time of the incident, there are no allegations in both informations that
Estorque had acted with discernment. And even if we are to consider the
allegations that he had committed the imputed acts "with intent to kill" as
sufficient compLiance As we hAve in the past he wou,d still not be held
liable as no proof was offered during trial that he had so acted with
discernment. Accordingly, even if he was indeed a co-conspirator or an
accessory, he would still be exempt from criminal liability. (Pp. V. Cordo~a;
GR 83373-74, 7/5/93)
EVERY ACCUSED IS PRESUMED TO BE SANE AT THE TIME OF
COMMISSION OF THE CRIME

SUSPENSION OF SENTENCE NOT APPLICABLE

IF PENALTY IS RECLUSION PERPETUA,
LIFE IMPRISONMENT OR DEATH

The law presumes all acts to be voluntary, and that it is improper To

presume that acts were done uNconsciously. The quantUm of eviDence
required to overthrow the presumption of sanity is proof beyond reasonable
doubt. Since insanity is in the nature of a confession and avoidance, it musT
be proven beyond reasonaBle doubt. Moreover, an accused is presumed to
have been sane at the time of the commission of the crime in the absence of
pOsitive evidence to show that he had lost his reason or was demented priOr
to or during the Perpetration of the crime.
(Pp. v. Cordova, supra.)

As aforesaid, however, accused Ricky Galit and Raquel Tagalog did

not appeal from the judgment of the trial court. Neither did the People
question the suspension of their sentence. The benefits of suspension of
sentence are not available where the youthful offender has been convicted of
an offense punishable by life imprisonment or death. The last paragraph of
section 2 of Presidential Decree No. 1210, which amended certain provisions
of P.D. 603, provides:

FAILURE OF DEFENSE TO ASK FOR

SUSPENSION OF ARRAIGNMENT
NEGATES INSANITY

"The benefits of this article shall not apply to a youthful

offender who has once enjoyed suspension of sentence under its
provisions or to one who is convicted of an offense punishable by
death or life imprisonment or to one who is convicted for an offense
by the Military Tribunals." (Par. 4, Sec. 2, P.D. No. 1179, as
amended by P.D. No. 1210; emphasis supplied)
(Pp. v. Galit, supra.)

Appellant Eduardo Cordova did not even ask for the suspension of
his arraignment on the ground that he was suffering from insanity. Paragraph
(a), Section 12, Rule 116 of the Revised Rules of Court provides that the
arraignment of an accused who appears to be suffering from an unsound
mental condition which effectively renders him unable to fully understand the
charge against him and to plead intelligently thereto, shall be suspended. In
the case at bar, Eduardo Cordova even took the witness stand to testify.
(Pp. V. Cordova, supra.)

YOUTHFUL OFFENDER, TO BE CRIMINALLY LIABLE, ACCUSED, A 13

YEAR OLD, MUST ACT WITH DISCERNMENT

CHILD & YOUTH WELFARE CODE,

NOT APPLICABLE TO DEATH OR

55

RECLUSION PERPETUA SENTENCE

case and order the final discharge56of said offender; or (2) to prOnounce the
judgment of conviction. In56Plain and siMpLe language, It is either dismIssal
or sENtence. (Pp. V. Garcia; supra.)

The Child and Youth Welfare Code does not apply to those
convicted of offenses punishable by death, or reclusion perpetua
(Presidential Decree No. 603, as amended by Presidential Decree N. 603, as
amended by Presidential Decree Nos. 1179 and 1210). The fact is Bolioc is
now twenty-three years old. He is not entitled to a suspended sentence. He
is entitled to a two-degree reduction of the penalty (Art. 68, RPC).
(Pp. V. Mendez; GR L-48131; 5/30/83)

CIVIL LIABILITY OF YOUTHFUL

OFFENDER, DEFINED
The civil liability for damages referred to is apparently that obligation
cReated by or arIsing from the crime, otherwise known as ex delicto the
imposition of which is mandated by56Articles 100, 104(3), 107 and 345(1) of
the Revised Penal Code, (People vs. Pea, L-36434, December 20, 1977, 80
SCRA 589, 599) and is based upon a finding of the guilt of the accused.
(Pp. V. Garcia, supra.)

SUSPENSION OF SENTENCE; CANNOT

BE AVAILED OF WHERE OFFENDER IS ALREADY OVER 21 YEARS
OLD AT THE
TIME56OF PROMULGATION OF HIS SENTENCE

REPUBLIC ACT NO. 8484

(The Access Device Regulation)

It is true that Venancio Villanueva was a youthful offendez as defined

by Art. 19 because he was under 21 years56oF AGe when he coMmitteD the
oFfense on February 22, 1974. However, when he was sentenced on JuLy
30, 1975, he was over 21 years old and under the terms of Art. 192 (as well
as Art. 197) he was no longer entitled to suspension of sentence.
(Villanueva v. CFI; GR L-45798, 12/15/82)

An act regulating the issuance and use of access devices, prohibiting

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

WHEN PRESIDENTIAL DECREE NO. 603

MAY BE GIVEN RETROACTIVE EFFECT
Where P.D. 603 is more favorable to the accused in that the
sentence against them may he suspended, said Decree may be given
retroactive effect, not only with the end in view of giving force and effect to
the laudable policies for which the P.D. otherwise known as the Child and
Youth Welfare Code was promulgated, hut also in the light of the provisions
of Article 22 of the Revised Penal Code. (People v. Garcia; GR L-45280-81,
6/11/81)

Termed as "access devices" by RA No. 8484, any card, plate, code,

account number, electronic serial number, personal identification number, or
other telecommunication service, equipment, or instrumental identifier, or
other means of account access t hat can be used to obtain money, good,
services or any other thing of value or to initiate transfer of funds (other than
transfer originated solely by paper instrument) is now subject to regulation.
The issuance and use of access devices are ought to regulate in order to
protect the rights and define the liabilities of parties in commercial
transactions involving them.

PRESIDENTIAL DECREE NO. 603;

ALTERNATIVE COURSES OF ACTION
OF THE COURT WHEN YOUTHFUL
OFFENDER IS RETURNED AFTER
REACHING THE AGE OF MAJORITY

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

The trial court has two alternative courses of action with respect to a
youthful offender whose sentence it had suspended and who is returned to
the court upon his reaching the age of majority. These are: (1) to dismiss the

The law mandates an access device issuer, or "card issuer," to

disclose either in writing or orally in any application or solicitation to open a

56

credit card account the following: 1) annual percentage rate; 2) annual and
other fees; 3) and balance calculation method; 4) cash advance fee; and 5))
over the limit fee.

Clearly, in this case decided in 1999, the Court was concerned about
an access device issuer's vulnerability to abuse the provisions of the
contract. It is quite surprising, however, that the Court did not make reference
to RA No. 8484 to think that it was already in effect when the resolution was
promulgated.

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

and fees required, to the extent practicable, to be explained in detail and a
clear illustration of the manner by which it is made to apply is also necessary.

Nonetheless, in American Express International Co., Inc. vs. IAC

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

Nonetheless, there are certain exceptions for the above requirement

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

On the other hand, an access device holder may be penalized when

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

Failure on the part of the issuer to fulfill the above requirements will
result in the suspension or cancellation of its authority to issue credit cards,
after due notice and hearing, by the Banko Sentral ng Pilipinas, the
Securities and Exchange Commission and such other government agencies.

The element of fraud is indispensable for this provision of RA 8484 to

apply. It is a condition sine qua non before one may be charged with the
defined offense.

In sum therefore, the above omission is made punishable if the

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

Thus, the law provides for presumptions of Intent to defraud on the

basis of mere possession, control or custody of: a) an access device without
lawful authority; b) a counterfeit access device; any device making or altering
equipment; c) an access device or medium on which an access device is
written not in the ordinary course of the possessor's business; or d) any
genuine access device, not in the name of the possessor.

In one case (Ermitano v. GR No. 127246, April 21, 1999), the

Supreme Court had the occasion to rule on the validity of contracts involving
credit cards. The credit cards holder contended that the credit card company
should be blamed for the charges the same being unwarranted by the
contract. As stipulated, once a lost card has been reported, purchases made
thereafter should not accrue on the part of the holder.

A card holder who abandons or surreptitiously leaves the place of

employment, business or residence stated in his application for credit card,
without informing the credit card company of the place where he could
actually be found, if at the time of such abandonment or surreptitious leaving,
the outstanding and unpaid balance is past due for at least ninety (90) days
and is more than ten thousand pesos (P10,000.00), shall be prima facie
presumed to have used his credit card with intent to defraud.

The Court said notwithstanding the fact that the contract of the
parties is a contract of adhesion the same is valid. However, if the same
should include terms difficult to interpret as to hide the true intent to the
detriment of the holder, holding it void requires no hesitation. Thus, contracts
which provide for ambiguous terms of payment, imposition of charges and
fees may be held void invoking the principle of the contract of adhesion.

At first glance, the above presumptions, when applied in real cases,

may suffer from constitutional infirmities. The constitution provides that a
person shall not be held to answer to a criminal offense without due process

57

of law. it may be argued that such presumptions are rebuttable ones.

However, the danger lies in the shifting of the burden of proof from the
prosecution to the defense.

The penalties are increased in case the offender has a similar

previous conviction, meaning if he was previously found violating RA 8484. In
which case, the accused shall suffer imprisonment of not less than twelve
(12) years and not more than twenty (20) years.

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

The two other stages of felony, as defined by the Revised Penal

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

In the final analysis, the law basically seeks to address the issue of
fraud in the issuance and use of access devices, especially credit cards.
Fraud may be committed by the issuer by making false or vague information
in the application or solicitation to open credit card accounts. The applicant or
holder, on the other hand, fraudulently misrepresents himself by giving wrong
identity, false profession or employment, or bloated income.

On the other hand, a holder or mere possessor of a counterfeit

fraudulently applied for access device may be convicted and be made to
suffer imprisonment and fine.

Take the case for instance of Citibank v. Gatchalian (GR No.

111222, January 18, 1995) which shows how credit card applicants through
false representation were able to amass in simple terms P790,000.00 from
petitioner.

DANGEROUS DRUG ACT OF 2002

(Republic Acts No. 9165)

In this case, two employees of the Asian-Pacific Broadcasting Co,.

Inc. (ABCI) applied for nineteen (19( credit cards with Citibank using different
names other than their real names. The Citibank approved the applications
and the credit cards were delivered to them for use. However, this case
involves an illegal dismissal case where a Citibank employee was found
guilty of gross negligence for effecting the delivery of the credit cards. Her
dismissal was affirmed in this case.

DEFINITIONS OF TERMS
Chemical Diversion the sale, distribution, supply or transport of legitimately
imported, in-transit, manufactured or procured controlled precursors and
essential chemicals, in diluted, mixtures or in concentrated form, to any
person or entity engaged in the manufacture of any dangerous drug, and
shall include packaging, repackaging, labeling, relabeling or concealment of
such transaction through fraud, destruction of documents, fraudulent use of
permits, misdeclaration, use of front companies or mail fraud.

Insofar as access device issuers are concerned, Eermitano v. C.A.,

may be a case in point. The credit card holder lost his credit card which he
immediately reported to the card issuer. The contract stipulated that in case
of lost, the same should be reported immediately, otherwise purchases made
shall be charged to the holder. In this case, despite the prompt reporting of
the holder, the issuer still charged the purchases against the former. The
Court in this case held the issuer in breach of the contract.

Controlled Delivery The investigative technique of allowing an unlawful or

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

The penalties provided for by RA 8484 are imprisonment and fine.

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

58

Controlled Precursor and Essential Chemicals Includes those listed in

Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances as enumerated in the attached annex,
which is an integral part of this Act.

1.
Under this Act there is no more distinction between prohibited drug and
regulated drugs and/or controlled precursors and essential chemicals enumerated in
Tables I and II of the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances.

Drug Dependence As based on the World Health Organization definition, it

is a cluster of physiological, behavioral and cognitive phenomena of variable
intensity, in which the use of psychoactive drug takes on a high priority
thereby involving, among others, a strong desire or a sense of compulsion to
take the substance and the difficulties in controlling substance-taking
behavior in terms of its onset, termination, or levels of use.

2.
The penalties provided by R.A. 7659 was changed , adopting partially the
penalties in R.A. 6425.
3.
In planting evidence any person now maybe held liable. Before, only law
enforcement agents.

4.

the provisions of the Revised Penal Code have no suppletory effect

except for minors who may be sentenced to reclusion perpatua.

Drug Syndicate Any organized group of two (2) or more persons forming or
joining together with the intention of committing any offense prescribed under
this Act.

What are the new kinds of drugs

that are included in R.A. 9165?

Illegal Trafficking The illegal cultivation, culture, delivery, administration,

dispensation, manufacture, sale, trading, transportation, distribution,
importation, exportation, and possession of any dangerous drug and/or
controlled precursor and essential chemical.

Methylenedioxymethamphetamine (MDMA) or commonly known as

Ecstasy, or its any other name which refers to the drugs having such
chemical composition, including any of its isomers or derivatives in any form.
Paramethoxyamphetamine (PMA), Trimethoxyamphetamine (TMA), lysergic
acid diethylamine (LSD), gamma hydroxybutyrate (GHB) and those similarly
designed or newly introduced drugs and their derivatives, without having any
therapeutic value or if the quantity possessed is far beyond therapeutic
requirement, as determined and promulgated by the Board in accordance to
Section 93, Art XI of this Act of R.A. 9165.

Protector/Coddler Any person who knowingly and willfully consents to the

unlawful acts provided for in this Act and uses his/her influence, power or
position in shielding, harboring, screening or facilitating the escape of any
person he/she knows, or has reasonable ground to believe on or suspects,
has violated the provision of this Act in order to prevent the arrest,
prosecution and conviction of the violator.
Pusher Any person who sells, trades, administers, dispenses, delivers, or
gives away to another, on any terms whatsoever, or distributes, dispatches in
transit or transports dangerous drugs or who acts as a broker in any of such
transaction, in violation of this Act.

ACTS PUNISHABLE UNDER THE LAW

1.) Importation of any dangerous drug, regardless of the quantity and
purity involved, including any and all species of opium poppy or any
part thereof or substances derived thereform even for floral,
decorative and culinary purposes.
2.) Importation of any controlled precursor and essential chemical.
3.) Importation of any dangerous drug and/or controlled precursor
and essential chemical through the use of a diplomatic passport,
diplomatic facilities or any other means involving his/her official
status intended to facilitate the unlawful entry.
4.) Organizing, managing, or acting as a financier of any of the
illegal activities penalized under Section 4 of the Law.
5.) Acting as protector/coddler of anyone who violates Section 4 of
the Law.

Planting of evidence the willful act by any person of maliciously and

surreptitiously inserting, placing, adding or attaching directly or indirectly,
through any overt or covert act whatever quantity of any dangerous drug
and/or controlled precursor and essential chemical in the person, house,
effects or in the immediate vicinity of an innocent individual for the purpose of
implicating, incriminating, or imputing the commission of any violation of this
Act.
What are the significant Provisions in R.A. 6425
that have been changed?

59

6.) Sale, trading, administration, dispensation, distribution and

transportation of dangerous drugs, regardless of quantity and purity
involved, or acting as a broker in any of such transactions.
7.) Sale, trading, administration, dispensation, distribution and
transportation of any controlled precursor and essential chemical, or
acting as a broker in such transaction.
8.) Use by drug pushers of minors or mentally incapacitated
individuals as runners, couriers and messengers, or in any other
capacity directly connected to the trade of dangerous drugs and/or
controlled precursor and chemicals.
9.) Acting as a protector/coddler of any violator of the provision of Sec.
5.
10.) Maintenance of a Den, Dive or Resort where any dangerous drug is
used or sold in any form.
11.) Maintenance of a Den, Dive or Resort where any controlled
precursors and essential chemical is used or sold in any form.
12.) Acting as protector/coddler of a maintainer of a Den, Dive, or
Resort
13.) Employees and Visitors of a Den, Drive, or Resort
14.) Manufacture of Dangerous Drugs and/or Controlled Precursors and
Essential Chemicals
15.) Acting as a protector or coddler of any violator of Sec. 8
16.) Illegal Chemical Diversion of Controlled Precursor and Essential
Chemicals.
17.) Manufacture or Delivery of Equipment, Instrument, Apparatus, and
other Paraphernalia for Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals.
18.) Possession of Drug.
19.) Possession of equipment, Instrument, Apparatus, and Other
Paraphernalia for Dangerous Drugs
20.) Possession of Dangerous Drugs During Parties, Social Gathering or
Meetings.
21.) Possession of Equipment, Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs during Parties, Social Gathering
or Meetings.
22.) Use of Dangerous Drugs.
23.) Cultivation or Culture of Plants Classified as Dangerous Drugs or
are Sources thereof.
24.) Maintenance and keeping of Original Records of Transaction on
Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals
25. Unnecessary Prescription of Dangerous Drugs
26.) Unlawful Prescription of Dangerous Drugs
27.) Attempt or Conspiracy to commit the following unlawful acts: (a)
Importation of any dangerous drugs and/or controlled precursor and

essential chemical; (b) Sale, trading, administration, dispensation,

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

CRIMINAL LIABILITY OF ALIENS, OFFICERS

OF PARTNERSHIP, CORPORATION, ASSOCIATIONS, OR OTHER
JURIDIUCAL ENTITIES
1.
In addition to the penalties prescribed in the unlawful act committed,
any alien who violates such provisions of the Law, after service of sentences, shall be
deported immediately without further proceedings, unless the penalty is death.
2.
In case the violation of the Law is committed by a partnership,
corporation, association or any juridical entity, the partner, president, director, manager,
trustee, estate administrator, or officer who consents to or knowingly tolerates such
violation shall be held criminally liable as co-principal.
3.
The penalty provided for the offense under the Law shall be imposed
upon the partner, president, director, manager, trustee, estate administrator, or officer
who knowingly authorizes, tolerates, or consents to the use of a vehicle, vessel,
aircraft, equipment or other facility as an instrument in the importation, sale, trading,
administration, dispensation, delivery, distribution, transportation, or manufacture of
dangerous drugs, or chemical diversion, if such vehicle, aircraft, equipment or other
instrument is owned by or under the control or supervision of the partnership,
corporation, association or juridical entity to which they are affiliated.
CRIMINAL LIABLITY OF PUBLIC OFFICERS OR EMPLOYEES
1.
Any public officer or employee who (1) misappropriates, (2)
misapplies or (3) fails to account for confiscated, seized or surrendered
drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, instruments/paraphernalia and/or laboratory
equipment including the proceeds or properties obtained from the
unlawful acts punished under the Law shall be penalized with life
imprisonment to death and a fine ranging fromP500,000.00 to
P10,000,000.00 and with perpetual disqualification from any public
office (Sec.27).
2.
Any government official or employee found guilty of the
unlawful acts punished under the Law shall be imposed the maximum

60

penalties provided for the offense and shall be absolutely perpetually

disqualified from holding any public office. (Sec. 28).

rights shall also be suspended during the pendency of an appeal from such
conviction (Sec.35)
AGGRAVATING CIRCUMSTANCES
DRUG RELATED CASES

CRIMINAL LIABILITY OF ELECTIVE LOCAL OR NATIONAL OFFICIALS WHO

BENEFITS FROM DRUG TRAFFICKING whether or not he know that it came
from drugs, but the one who gave must be convicted first by final judgment.

1.) If the importation or bringing into the Philippines of any dangerous

drugs and/or controlled precursor and essential chemicals was done
through the use of diplomatic passport, diplomatic facilities or any other
means involving his/her official status intended to facilitate the unlawful
entry of the same

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

2.) The sale trading, administration, dispensation, delivery, distribution

or transportation of any dangerous drug and/or controlled precursor and
essential chemical transpired within one hundred (100) meters from the
school

CRIMINALLIABILITY OF PRIVATE INDIVIDUAL

3.) The drug pusher use minors or mentally incapacitated individuals

as runners, couriers and messenger, or in any other capacity directly
connected to the dangerous drug and/or controlled precursor and
essential chemical trade.

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

4.) The victim of the offense is a minor or mentally incapacitated

individual, or should a dangerous drug and/or controlled precursor and
essential chemicals involved `in any offense be the proximate cause of
death of a victim.
5.) In case the clandestine laboratory is undertaken or established
under the following circumstances:

CRIMINAL LIABILITY FOR

PLANTING OF EVIDENCE

a.) Any phase of the manufacturing process was

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

Any person who is found guilty of planting nay dangerous drug and/ or
controlled precursor and essential chemicals, regardless of quantity and purity,
shall suffer the penalty of death. (Sec. 29). Previosly, only law enforcement
agent maybe held liable (R.A. 7659).
ACCESORY PENALTIES
Any person convicted under this Law (R.A.9165) shall be disqualified to
exercise his/her civil rights such as, but not limited to, the right of parental
authority or guardianship, either as to the person or property of any ward, the
rights to dispose of such property by any act or any conveyance inter vivos, and
political rights such as but not limited to, the right to vote and be voted for. Such

61

6.) In case the person uses a minor or a mentally incapacitated

individual to deliver equipment, instrument, apparatus and other
paraphernalia use for dangerous drugs.

offense with reference to which his/her information of testimony in bar of

such prosecution; Provided, that the following condition concur:
1.)
The information and testimony are
necessary for the conviction of the person described
above;
2.)
Such information are not yet in the
possession of the State;
3.)
Such information and testimony can be
corroborated on its material points;
4.)
The informant or witness has not been
previously convicted of a crime involving moral
turpitude, except when there is no other direct
evidence available for the State other than the
information and testimony of said informant or
witness; and
5.)
The informant or witness shall strictly and
faithfully comply without delay, any condition or
undertaking, reduced into writing, lawfully imposed by
the State as further consideration for the grant of
immunity from prosecution and punishment.

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

Provided, further, That this immunity may be enjoyed by such

informant or witness who does not appear to be most guilty for the
offense with reference to which his/her information or testimony
were given. Provide, finally, that there is no direct evidence
available for the State except for the information and testimony of
the said informant or witness.

Note:- Pendency of appeal suspend the right of the accused

- Rights to Self-incrimination do not refer to giving blood.
IMMUNITY FROM PROSECUTION
AND PUNISHMENT

TERMINATION OF THE
GRANT OF IMMUNITY

Immunity from Prosecution and punishment Notwithstanding the

provision of Section 17, Rule 119 of the Revised Rules of Criminal
Procedure and the provisions of Republic Act No. 6981 or the Witness
Protection, Security and Benefits Act of 1991, any person who has
violated Sections 7,11, 12, 14, 15 and 19, Article II of this Act, who
voluntarily gives information about any violation of Section 4, 5, 6, 8, 13
and 16, Article II of this Act as well as any violation of the offenses
mentioned if committed by drug syndicate, or of any information leading
to the whereabouts, identities and arrest of all or any of the members
thereof; and who willingly testifies against such persons as described
above, shall be exempted from the prosecution or punishment for the

The immunity above-granted shall not attach should it turn out

subsequently that the information and/or testimony is false, malicious, or
made only for the purpose of harassing, molesting or in any way
prejudicing the persons described in Section 33 against whom such
information or testimony is directed. In such case, the informant or witness
shall be subject to prosecution and the enjoyment of all rights and benefits
previously accorded him under the Law or any other law, decree or order
shall be deemed terminated.
In case the informant or witness under the Law fails or refuse to
testify without just cause, and when lawfully obliges to do so, or should
he/she violate any condition accompanying such immunity as provided

62

above, his/her immunity shall be removed and he/she shall be likewise be

subjected to contempt and/or criminal prosecution, as the case may be and
the enjoyment of all rights and benefits previously accorded him under the
Law or in any other law, decree or order shall be deemed terminated. (Sec
34.)

f.)
All candidates for public office whether appointed or elected
both in the national or local government shall undergo a mandatory
drug test.
CONFIDENTIALITY OF RECORDS UNDER
THE COMPULSARY SUBMISSION PROGRAM

In case the informant or witness referred to under the Law falls under
the applicability of Section 34, such individual cannot avail of the provision
under Article VIII of the Law.

The records of a drug dependent who was rehabilitated and

discharged from the Center under the compulsory submission program, or
who was charged for violation of Section 15 of this Act, shall be covered by
Section 60 of this Act (R.A. 9165). However, the record of a drug dependant
who was not rehabilitated, or who escaped but did not surrender
himself/herself within the prescribed period, shall be forwarded to the court
and their use shall be determined by the court, taking into consideration
public interest and the welfare of the drug dependant (Sec. 64)

PERSON/S WHO ARE SUBJECT

TO THE MANDATORY DRUG TESTING

a.) Applicants for drivers license no drivers license shall be

issued or renewed to nay person unless he/she presents a
certification that he/she has undergone a mandatory drug test and
indicating thereon that he/she is free from the use of dangerous
drugs.
b.) Applicants for firearms license and permit to carry firearms
outside of residence. All applicants for firearms license and permit
to carry firearms outside of residence shall undergo a mandatory
drug test to ensure that they are free from the use of dangerous
drugs; Provided, That all persons who by the nature of their
profession carry firearms shall undergo drug testing;
c.) Officers and employees of public and private offices. Officers
and employees of public and private offices, whether domestic or
overseas, shall be subjected to undergo a random drug test as
contained in the companys work unless and regulation, which shall
be borne by the employer, for purposes of reducing the risk in the
workplace. Any officer or employee found positive for the sue of
dangerous drug shall be dealt with administratively which shall be a
ground for suspension or termination, subject to the provision Article
282 of the Labor Code and pertinent provisions of the Civil Service
Law.
d.) Officers and members of the military, police and other law
enforcement agencies. Officers and members of the military, police
and other law enforcement agencies shall undergo an annual
mandatory drug test.
e.)
All persons charged before the prosecutors office with a
criminal offense having an imposable penalty of imprisonment of not
less than six (6) years and one (1) day shall have undergo a
mandatory drug test.

DISCHARGED AFTER COMPLIANCE WITH CONDITIONS OF

SUSPENDED SENTENCE OF A FIRST-TIME MINOR OFFENDER
If the accused first time minor offender under suspended sentence
complies with the applicable rules and regulation of the Board, including
confinement in a Center, the court, upon a favorable recommendation of the
Board for a final discharge of the accused, shall discharge the accused and
dismiss all proceedings.
Upon the dismissal of the proceedings against the accused, the court
shall enter an order to expunge all official records, other than the confidential
record to be retained by the DOJ relating to the case. Such an order, which
shall be kept confidential, shall restore the accused to his/her status prior to
the case. He/she shall not be held thereafter to be guilty of perjury or of
concealment or misrepresentation by reason of his/her failure to
acknowledge the case or recite any fact related therto in response to any
inquiry madeof him for any purpose (Sec. 67)
THE DANGEROUS DRUGS BOARD AND
PHILIPPINE DRUG ENFORCEMENT AGENCY
The Dangerous Drug Board
A. Function
The Dangerous Drug Board shall be the policy-making and
strategy formulating body in the planning and formulation of policies
and programs on drug prevention and control. (Sec. 77)

63

representative; (11) Chairman of the National Youth Commission; and

(12) Director General of the Philippine Drug Enforcement Agency.
Cabinet secretaries who are members of the Board may
designate their duly authorized and permanent representatives whose
rank shall in no case be lower than undersecretary.
The two (2) regular members shall be as follows: (a) The
President of the Integrated Bar of the Philippines; and (b) The
chairman or president of a non- chairman or president of a nonchairman or president of a non-government organization involved in
dangerous drug campaign to be appointed by the President of the
Philippines.

B. Composition
Under R.A. 6424 as amended, the Dangerous Drug board was
composed of seven ex officio members as follows: (a) The Minister of
Health or his representative; (b) the Minister of Justice or his
representative; (c) The Minister of National Defense or his
representative; (d) The Minister of Education and Culture or his
representative; (e) The Minister of Finance or his representative; (f)
The Minister of Social Service and Development or his representative;
and (g) The Minister of Local Government or his representative (Sec.
35 Art. 8, R.A. 6424)
The Minister of Health shall be the Chairman of the Board and the
Director of the National Bureau of Investigation shall be the
permanent consultant of the Board.
Under Section 78 of R.A. 9165, the membership of the Dangerous
Drugs Board was expanded to seventeen (17) members, three (3) of
which are permanent members, twelve (12) shall be in ex officio
capacity, and the remaining two (2) shall be regular members.
The three (3) permanent members, who shall possess At least
seven-year training and experience in the field of dangerous drugs
and in any of the following fields: in law, medicine, criminology,
psychology or social work, shall be appointed by the President of the
Philippines. The President shall designate a Chairman, who shall
have the rank of a secretary from among the three (3) permanent
members who shall serve for six (6) years. Of the two (2) other
members, who shall have the rank of undersecretary, one (1) shall
serve for four (4) and the other for two (2) years. Thereafter, the
person appointed to succeed such members shall hold office for a
term of six (6) years and until their successors shall have been duly
appointed and qualified.
The other twelve (12) members who shall be ex officio members
of the Board are the following: (1) Secretary of the Department of
Justice or his/her representative; (2) Secretary of the Department of
Health or his/her representative; (3) Secretary of the Department of
National Defense or his/her representative; (4) Secretary of the
Department of Finance or his/her representative; (5) Secretary of the
Department of Labor and Employment or his/her representative; (6)
Secretary of the Department of Interior and Local Government or
his/her representative; (7) Secretary of the Department of Social
Welfare and Development or his/her representative; (8) Secretary of
the Department of Foreign Affairs or his/her representative; (9)
Secretary of the Department of Education or his/her representative;
(10) Chairman of the Commission of Higher Education or his/her

The Philippine Drug Enforcement Agency (PDEA)

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

Implement or cause the efficient and effective implementation of the

national drug control strategy formulated by the Board thereby
carrying out a national drug campaign program which shall include
drug law enforcement, control and prevention campaign with the
assistance of concerned government agencies;
b.) Undertake the enforcement of the provision of article II of this Act
relative to the unlawful acts and penalties involving any dangerous
drug and/or controlled precursor and essential chemical and
investigate all violators and other matters involved in the commission
of any crime relative to the use, abuse or trafficking of any dangerous
drug and/or controlled precursor and essential chemicals as provided
for in this Act and the provisions of Presidential Decree No. 1619;
c.) Administer oath, issue subpoena and subpoena duces tecum relative
to the conduct of investigation involving violation of this Act;
d.) Arrest and apprehend as well as search all violators and seize or
confiscate, the effects or proceeds of the crime as provided by law and
take custody thereof, for this purpose the prosecutors and enforcement

64

agents are authorized to possess firearms, in accordance with the

existing laws;
e.) Take charge and have custody of all dangerous drugs and/or
controlled precursors and essential chemicals seized, confiscated or
surrendered to any national, provincial or local law enforcement
agency; if no longer needed for purposes of evidence in court.
f.)Establish forensic laboratories in each PNP office in every province and
city in order to facilitate action on seized or confiscated drugs; thereby
hastening its destruction without delay;
g.) Recommend to the DOJ the forfeiture of properties and other assets of
persons and/or corporations found to be violating the provisions of this
Act and in accordance with the pertinent provisions of the Anti-Money
Laundering Act of 2002.
h.) Prepare for prosecution or cause the filing of appropriate criminal and
civil cases for violation of laws on dangerous drugs, controlled
precursors and essential chemicals, and other similar controlled
substance, and assist, support and coordinate with other government
agencies for the proper and effective prosecution of the same;
i.)Monitor and if warranted by circumstances, in coordination with the
Philippine Postal Office and the Bureau of Customs, inspect all air
cargo packages, parcels and mails in the central post office, which
appear from the packages and address itself to be a possible
importation of dangerous drugs and/or controlled precursors and
essential chemicals, through on-line or cyber shops via the internet or
cyberspace;
j.)Conduct eradication programs to destroy wild or illegal growth of plants
from which dangerous drugs may be extracted;
k.) Initiate and undertake the formation of a nationwide organization which
shall coordinate and supervise all activities against drug abuse in every
province, city, municipality and barangay with active and direct
participation of all such local government units and non-governmental
organizations, including the citizenry, subject to the provisions of
previously formulated programs of action against dangerous drugs;
l.)Establish and maintain a national drug intelligence system in cooperation
with law enforcement agencies, other government agencies/offices and
local government units that will assist in its apprehension of big time
drug lords;
m.) Established and maintain close coordination, cooperation and linkages
with international drug control and administration agencies and
organization and implement the applicable provisions of international
conventions and agreement related to dangerous drugs to which the
Philippines is a signatory;
n.) Create and maintain an efficient special enforcement unit to conduct
an investigation, file charges and transmit evidence to the proper court,
wherein members of the said unit shall possess suitable and adequate

o.)

p.)
q.)

r.)

firearms for their protection in connection with the performance of their

duties; Provided, That no previous special permit for such possession
shall be required;
Require all government and private hospitals, clinics, doctors, dentists
and other practitioners to submit a report to it, in coordination with the
Board, about all dangerous drugs and/or controlled precursors and
essential chemicals which they have attended to for data and
information purposes;
Coordinate with the Board for the facilitation of the issuance of necessary
guidelines, rules and regulations for the proper implementation of this
Act;
Initiate and undertake a national campaign for drug prevention and drug
control programs, where it may enlist the assistance of any
department, bureau, office, agency, or instrumentality of the
government, including government-owned and/or
controlled
corporations, in the anti-illegal drugs drive, which may include the use
of their respective personnel, facilities, and resources for a more
resolute detection and investigation of drug-related crimes and
prosecution of the drug traffickers; and
Submit an annual and periodic report to the Board as may be required
form time to time, and perform such other functions as may be
authorized or required under existing laws and as directed by the
President himself/herself or as recommended by the congressional
committees concerned.

Note:
There are however certain power and duties of the PDEA
enumerated under Section 84 of R.A. 9165 which seems to overlap with
the functions of prosecutors such as (1) the preparation for prosecution
or the causing of the filing of appropriate criminal cases for violation of
the Law; and (2) filing of charges and transmittal of evidence to the
proper court and which have to be clarified in the Implementing Rules
and Regulation that may be issued by the DDB and the PDEA later.
JURISDICTION OVER DRUG RELATED CASES
The Supreme Court shall designate special court from among
the existing Regional Trial Court in each judicial region to exclusively
try and hear cases involving violations of this Act. The number of
courts designated in each judicial region shall be based in their
respective jurisdiction.
The DOJ shall designate special prosecutor to exclusively handle
cases involving violations of this Act.

65

After conviction in the Regional Trial Court in the appropriate criminal

case filed, the Court shall immediately schedule a hearing for the
confiscation and forfeiture of all the proceeds of the offense and all the
assets and properties of the accused either owned or held by him or in the
name of some other persons if the same shall be found to be manifestly out
of proportion to his/her lawful income; Provided, however, That if the forfeited
property is a vehicle, the same shall be auctioned off not later than five (5)
days upon order of confiscation or forfeiture.

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

During the pendency of the case in the Regional Trial Court, no property,
or income derived thereform, which may be confiscated and forfeited, shall
be disposed, alienated or transferred and the same shall be in custodio legis
and no bond shall be admitted for the release of the same.
The proceeds of any sale or disposition of any property confiscated
under this section, forfeiture, custody and maintenance of the property
pending disposition, as well as the expense for publication and court costs.
The proceeds in excess of the above expenses shall accrue to the Board to
be used in its campaign against illegal drugs.

The Department of Justice shall designate special prosecutors to

exclusively handle cases involving violations of the Dangerous Drug Act of
2002 (Sec. 90)
Notwithstanding the provision of any law to the contrary, a
positive finding for the use of dangerous drugs shall be a qualifying
aggravating circumstance in the commission of a crime by an offender,
and the application of the penalty provided for in the Revised Penal Code
shall be applicable (Sec. 25)

CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED

AND/OR SURRENDERED DANGEROUS DRUGS, ETC.
The PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory equipment
that was confiscated, seized and/or surrendered, for proper disposition in the
following manner:

Confiscation and Forfeiture of the Proceeds or Instruments of the

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

66

1.

The apprehending team having initial custody and control of the

drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused
or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ) and any elected
public official who shall be required to sign the copies of the
inventory and be given a copy thereof;

2.

Within twenty-four (24) hours upon confiscation/seizure of

dangerous drugs, plant sources of dangerous drugs, controlled
precursors
and
essential
chemicals,
as
well
as
instruments/paraphernalia and/or laboratory equipment, the same

shall be submitted to the PDEA Forensic Laboratory for a

qualitative examination;

3.

4.

A certification of the forensic laboratory examination results, which

shall be under oath by the forensic laboratory examiner, shall be
issued within twenty-four (24) hours after the receipt of the subject
items/s: Provided, that when the volume of dangerous drugs, and
controlled precursors and essential chemicals does not allow the
completion of testing within the time frame, a partial laboratory
examination report shall be provisionally by the forensic laboratory:
Provided, however, that a final certification on the same within the
next twenty-four (24) hours;
After the filing of the criminal case, the Court shall within seventytwo (72) hours, conduct an ocular inspection of the confiscated,
seized and/or surrendered dangerous drugs, plant sources of
dangerous drugs, and controlled precursor and essential chemicals,
including the instruments/paraphernalia
and/or laboratory
equipment, and through the PDEA shall within twenty-four (24)
hours thereafter proceed with the destruction or burning of the
same, in the presence of the accused or the person/s from which
such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the
DOJ, civil society group and any elected public official. The Board
shall draw up the guidelines on the manner of proper disposition
and destruction of such item/s which shall be borne by the offender;
Provided, That those item/s of lawful commerce, as determined by
the Board, shall be donated, used or recycled for legitimate
purposes; Provided, further, That a representative sample, duly
weighed and recorded, is retained;

5.

The Board shall then issue a sworn statement as to the fact of

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

6.

The alleged offender or his/her representative or counsel shall be

allowed to personally observe all of the above proceedings and
his/her presence shall not constitute an admission of guilt. In case
the said offender or accused refuses or fails to appoint a
representative after due notice in writing to the accused or his/her
counsel within seventy-two (72) hours before the actual or
destruction of the evidence in question, the Secretary of Justice
shall appoint a member of the public attorneys office to represent
the former;

7.

After the promulgation of judgment in the criminal case wherein the

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

8.

Transitory Provision: a.) Within twenty-four hours from the

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

SUSPENSION OF SENTENCE OF
FIRST-TIME MINOR OFFENDER
An accused who is over fifteen (15) years of age at the time of the
commission of the offense mentioned in Section 11 of R.A. 9165 but not
more that eighteen (18) years of age at the time when the judgment should
have been promulgated after having been found guilty of said offense, may
be given the benefits of a suspended sentence, subject to the following
conditions:
a.) He/She has not been previously convicted of violating any provision
of this Act, or of the Dangerous Drugs Act of 1972, as amended; or of the
Revised Penal Code; or any special penal laws;
b.) He/She has not been previously committed to a Center or to the care
of a DOH-accredited physician; and
c.) The Board favorably recommends that his/her sentence be
suspended.
PRIVILEGE OF SUSPENDED SENTENCE CAN BE AVAIL ONLY ONCE
BY A FIRST-TIME MINOR OFFENDER
The privilege of suspended sentence shall be availed of only once by
accused drug dependent who is a first-time offender over fifteen (15) years of

67

age at the time of the commission of the violation of Section 15 of this Act but
not more than eighteen (18) years of age at the time when judgment should
have been promulgated. (Sec. 68)

OFFICIALS IN TESTIFYING AS PROSECUTION WITNESSES IN

DANGEROUS DRUG CASES?
Any member of law enforcement agencies or any other government
official and employee who, after due notice, fails or refuse intentionally or
negligently, to appear as a witness for the prosecution in any proceedings,
involving violation of this Act, without any valid reason shall be punished with
imprisonment of not less than twelve (12) years and one (1) day to twenty
(20) years and a fine of not less than Five hundred thousand pesos
(P500,000.00), in addition to the administrative liability he/she may be meted
out by his/her immediate superior and/or appropriate body.

PROMULAGATION OF SENTENCE
FOR FIRST-TIME OFFENDER
If the accused first-time minor offender violates any of the conditions
of his/her suspended sentence, the applicable rules and regulations of the
Board exercising supervision and rehabilitative surveillance over him,
including the rules and regulations of the Center should confinement be
required, the court shall pronounce judgment of conviction and he/she shall
serve sentence as any other convicted person. (Sec. 69)

The immediate superior of the member of the law enforcement

agency or any other government employee mentioned in the preceding
paragraph shall be penalized with imprisonment of not less than two (2)
months and one (1) day but not more than six (6) years and a fine of not less
than ten thousand (P10,000.00) but not more than Fifty thousand
(P50,000.00) and in addition, perpetual absolute disqualification from public
office if despite due notice to them and to the witness concerned the former
does not exert reasonable effort to present the latter to the court

PROBATION OR COMMUNITY SERVICE FOR A FIRST-TIME MINOR

OFFENDER IN LIEU OF IMPRISONMENT
Upon promulgation of the sentence, the court may, in its discretion,
place the accused under probation, even if the sentence provided under this
Act is higher than that provided under existing law on probation, or impose
community service in lieu of imprisonment. In case of probation, the
supervision and rehabilitative surveillance shall be undertaken by the Board
through the DOH in coordination with the Board of Pardons and Parole and
the Probation Administration. Upon compliance with the conditions of the
probation, the Board shall submit a written report to the court recommending
termination of probation and a final discharge of the probationer, whereupon
the court shall issue such an order.

The member of the law enforcement agency or any other

government employee mentioned in the proceeding paragraphs shall not be
transferred or re-assigned to any other government office located in another
territorial jurisdiction during the pendency of the case in court. However, the
concerned member of the law enforcement agency or government employee
may be transferred or re-assigned for compelling reason: Provided, that
his/her immediate superior shall notify the court where the case is pending of
the order to transfer or re-assign, within twenty-four (24) hours from its
approval: Provided further, that his/her immediate superior shall be penalized
with imprisonment of not less than two (2) months and one (1)day but not
more than six (6) years and a fine of not less than two (2) months and one
(1) day but not more than six (6) years and a fine of not less than Ten
thousand (P10,000.00) but not more than Fifty thousand pesos (P50,000.00)
and in addition, perpetual absolute disqualification from public office, should
he/she fails to notify the court of such order to transfer or re-assign.

The community service shall be complied with under conditions, time

and place as may be determined by the court in its discretion and upon the
recommendation of the Board and shall apply only to violators of Section 15
of this Act. The completion of the community service shall be under the
supervision and rehabilitative surveillance of the Board during the period
required by the court. Thereafter, the Board shall render a report on the
manner of compliance of said community service. The court in its discretion
may require extension of the community service or order a final discharge.
If the sentence promulgated by the court require imprisonment, the
period spent in the Center by the accused shall be deducted from the
sentence to be served. ( Sec. 70)

DELAY ANF BUNGLING IN THE

PROSECUTION OF DRUG CASES
Any government officer employee tasked with the prosecution of drugrelated cases under this Act, who through patent laxity, inexcusable neglect,
unreasonable delay or deliberately causes the unsuccessful prosecution and/or
dismissal of the said drug cases, shall suffer the penalty of imprisonment

WHAT ARE THE LIABILITY AND RESPONSIBILITY OF A MEMBER OF

LAW ENFORCEMENT AGENCIES AND OTHER GOVERNMENT

68

ranging from twelve (12) years and one (1) day to twenty (20) years without
prejudice to his/her prosecution under the pertinent provision of the Revised
Penal Code.

COST-SHARING IN THE TREATMENT AND REHABILITATION OF A

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

RECORDS TO BE KEPT BY THE

DEPARTMENT OF JUSTICE
The DOJ shall keep a confidential record of the proceedings on
suspension of sentence and shall not be used for any purpose other than to
determine whether or not a person accused under this Act is a first-time
offender. (Sec. 71)

LIMITED APPLICABILITY OF THE REVISED PENAL CODE

LIABILITY OF A PERSON WHO VIUOLATES
THE CONFIDENTIALITY OF RECORDS

Notwithstanding any law, rule or regulation to the contrary, the

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

The Penalty of imprisonment ranging from six (6) months and one (1)
day to six (6) years and a fine ranging from One thousand pesos (P1,000.00)
to Six thousand pesos (P6,000.00), shall be imposed upon any person who,
having official custody of or access to the confidential records of any drug
dependent under voluntary submission programs, or any one who, having
gained possession of said records, whether lawfully or not, reveals their
content to any person other than those charged with the prosecution of the
offense under this Act and its implementation. The maximum penalty shall be
imposed, in addition to the absolute perpetual disqualification from any public
office, when the offender is a government official or employee. Should the
records be used for unlawful purposes, such as blackmail of the drug
defendant of the members of his/her family, the penalty imposed for the
crime of violation of confidentiality shall be in addition to whatever crime
he/she convicted of. (Sec. 72)

EXCEPTION TO NECESSITY
OF A SEARCH WARRANT
There is no doubt that the warrantless search incidental to a lawful
arrest authorizes the arresting officer to make a search upon the person
arrested. An officer making an arrest may take from the person arrested any
money or property found upon his person which was used in the commission
of the crime or was in fruit of the crime or which might furnish the prisoner
with the means of committing violence or of escaping, which may be used as
evidence in the trial of the case. (People v. Musa; GR 96177, 1/27/93)

LIABILITY OF A PARENTS, SPOUSE OR

GUARDIAN WHO REFUSE TO COOPERATE
WITH THE BOARD OR ANY CONCERNED AGENCY

LIKE ALIBI, FRAME UP IS EASY

TO FABRICATE, BUT DIFFICULT
TO PROVE

Any parent, spouse or guardian who, without valid reason parent,

spouse or guardian who, without valid reason, refuses to cooperate with the
Board or any concerned agency in the treatment and rehabilitation of a drug
defendant who is a minor, or in any manner, prevents or delay the after-care,
follow-up or other programs for the welfare of the accused drug defendant,
whether under voluntary submission program or compulsory submission
program, may be cited in contempt by the court.

Frame-up, like alibi, is a defense that has been viewed by courts

with disfavor for it can just as easily be connected and is a common and
standard line of defense in most prosecution arising from violations of the
Dangerous Drugs Act. In order for that defense to prosper, the evidence

69

adduced must be clear and convincing.

2/1/95)

(People v. Girang; GR 27949,

the accused must not solely rely on the pardon as a basis for the release of
the accused from confinement. (People v. Maquilan)

BUY-BUST OPERATION

RULE AS TO WHO SHOULD

BE CRIMINALLY CHARGED

Is a form of entrapment employed by peace officers as an effective

way of apprehending a criminal in the act of the commission of the offense.
Entrapment has received judicial sanction as long as it is carried out with due
regard to constitutional and legal safeguards.
(People v. Basilgo; GR
107327, 8/5/94)

The settled rule is that the determination of who should be criminally

charged in court is essentially an executive function, not a judicial one. As
the officer authorized to direct and control the prosecution of all criminal
actions, the prosecutor is tasked to ascertain whether there is sufficient
ground to engender a well-founded belief that an offense has been
committed and that the accused is probably guilty thereof. (People v.
Esparas; GR 120034, July 10, 1998)

POSEUR-BUYER, GENERALLY
NEED NOT TESTIFY
The testimony of the poseur-buyer or of the confidential informant is
no longer material considering that accused-appellants drug pushing was
positively attested to. Moreover, informants are generally not presumed in
court because of the need to hide their identity and preserve their invaluable
service to the police. (People v. Girang; GR 97949, 2/1/95)

WHEN THERE IS A WAIVER

OF WARRANTLESS ARREST
The appellants are now precluded from assailing the warrantless
search and seizure when they voluntarily submitted to it as shown by their
actuation during the search and seizure. The appellants never protested
when SPO3 Jesus Faller, after identifying himself as a police officer, opened
the tin can loaded in the appellants' vehicle and found eight (8) bundles. And
when Faller opened one of the bundles, it smelled of marijuana. The NBI
later confirmed the eight (8) bundles to be positive for marijuana. Again, the
appellants did not raise any protest when they, together with their cargo of
drugs and their vehicle, were brought to the police station for investigation
and subsequent prosecution. We have ruled in a long line of cases that:

EFFECT OF LIMITATION UNDER

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

"When one voluntarily submits to a search or

consents to have it made on his person or premises, he is
precluded from later complaining thereof (Cooley,
Constitutional Limitations, 8th ed., vol. I, page 631). The right
to be secure from unreasonable search may, like every right,
be waived and such waiver may be made either expressly or
impliedly."

The "conviction by final judgment" limitation under Section 19, Article

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

The appellants effectively waived their constitutional right against the

search and seizure in question by their voluntary submission to the
jurisdiction of the trial court, when they entered a plea of not guilty upon
arraignment and by participating in the trial. (People v. Correa; GR 119246,
Jan. 30, 98)

70

WHEN USE OF MOTOR VEHICLE

IN DRUG CASES OR ANY OTHER
CASE IS NOT AGGRAVATING

CASES WHEN SEARCH WITHOUT

A WARRANT WAS VALID
In People v. Tangliben,
acting on information supplied by
informers, police officers conducted a surveillance at the Victory Liner
Terminal compound in San Fernando, Pampanga against persons who may
commit misdemeanors and also on those who may be engaging in the traffic
of dangerous drugs. At 9:30 in the evening, the policemen noticed a person
carrying a red travelling bag who was acting suspiciously. They confronted
him and requested him to open his bag but he refused. He acceded later on
when the policemen identified themselves. Inside the bag were marijuana
leaves wrapped in a plastic wrapper. The police officers only knew of the
activities of Tangliben on the night of his arrest.

Simply stated, the motor vehicle which was used to transport

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

In instant case, the apprehending officers already had prior

knowledge from their informant regarding Aruta's alleged activities. In
Tangliben policemen were confronted with an on-the-spot tip. Moreover, the
policemen knew that the Victory Liner compound is being used by drug
traffickers as their "business address". More significantly, Tangliben was
acting suspiciously. His actuations and surrounding circumstances led the
policemen to reasonably suspect that Tangliben is committing a crime. In
instant case, there is no single indication that Aruta was acting suspiciously.

CASES WHEN WARRANTLESS SEARCH IS ALLOWED

1.
Warrantless search incidental to a lawful arrest recognized under
Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence;
2.

Seizure of evidence in "plain view," the elements of which are:

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

In People v. Malmstedt, the Narcom agents received reports that

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

3.
Search of a moving vehicle. Highly regulated by the government, the
vehicle's inherent mobility reduces expectation of privacy especially when its
transit in public thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a criminal activity;
4.
5.
6.
7.

Note, however, the glaring differences of Malmstedt to the instant

case. In present case, the police officers had reasonable time within which to
secure a search warrant. Second, Aruta's identity was priorly ascertained.
Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched
aboard a moving vehicle, a legally accepted exception to the warrant
requirement. Aruta, on the other hand, was searched while about to cross a
street.

Consented warrantless search;

Customs search;
Stop and Frisk; and
Exigent and Emergency Circumstances.
(People v. Menguin; GR 120915, Apr. 13, 98)

In People v. Bagista, the NARCOM officers had probable cause to

stop and search all vehicles coming from the north to Acop, Tublay, Benguet
in view of the confidential information they received from their regular

71

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

People v. Solayao, applied the stop and frisk principle which has
been adopted in Posadas v. Court of Appeals. In said case, Solayao
attempted to flee when he and his companions were accosted by
government agents. In the instant case, there was no observable
manifestation that could have aroused the suspicion of the NARCOM agents
as to cause them to "stop and frisk" accused-appellant. To reiterate,
accused-appellant was merely crossing the street when apprehended. Unlike
in the abovementioned cases, accused-appellant never attempted to flee
from the NARCOM agents when the latter identified themselves as such.
Clearly, this is another indication of the paucity of probable cause that would
sufficiently provoke a suspicion that accused-appellant was committing a
crime.

In Manalili v. Court of Appeals and People, the policemen

conducted a surveillance in an area of the Kalookan Cemetery based on
information that drug addicts were roaming therein. Upon reaching the place,
they chanced upon a man in front of the cemetery who appeared to be "high"
on drugs. He was observed to have reddish eyes and to be walking in a
swaying manner. Moreover, he appeared to be trying to avoid the policemen.
When approached and asked what he was holding in his hands, he tried to
resist. When he showed his wallet, it contained marijuana. The Court held
that the policemen had sufficient reason to accost accused-appellant to
determine if he was actually "high" on drugs due to his suspicious actuations,
coupled with the fact that based on information, this area was a haven for
drug addicts.

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

This case is similar to People v. Aminnudin where the police

received information two days before the arrival of Aminnudin that the latter
would be arriving from Iloilo on board the M/V Wilcon 9. His name was
known, the vehicle was identified and the date of arrival was certain. From
the information they had received, the police could have persuaded a judge
that there was probable cause, indeed, to justify the issuance of a warrant.
Instead of securing a warrant first, they proceeded to apprehend Aminnudin.
When the case was brought before this Court, the arrest was held to be
illegal; hence any item seized from Aminnudin could not be used against him.

WHEN SEARCH IS NOT VALID

Accused-appellant Aruta cannot be said to be committing a crime.
Neither was she about to commit one nor had she just committed a crime.
Accused-appellant was merely crossing the street and was not acting in any
manner that would engender a reasonable ground for the NARCOM agents
to suspect and conclude that she was committing a crime. It was only when
the informant pointed to accused-appellant and identified her to the agents
as the carrier of the marijuana that she was singled out as the suspect. The
NARCOM agents would not have apprehended accused-appellant were it not
for the furtive finger of the informant because, as clearly illustrated by the
evidence on record, there was no reason whatsoever for them to suspect
that accused-appellant was committing a crime, except for the pointing finger
of the informant. This the Court could neither sanction nor tolerate as it is a
clear violation of the constitutional guarantee against unreasonable search
and seizure. Neither was there any semblance of any compliance with the
rigid requirements of probable cause and warrantless arrests.

Another recent case is People v. Encinada where the police

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

Consequently, there was no legal basis for the NARCOM agents to

effect a warrantless search of accused-appellant's bag, there being no

72

probable cause and the accused-appellant not having been lawfully arrested.
Stated otherwise, the arrest being incipiently illegal, it logically follows that
the subsequent search was similarly illegal, it being not incidental to a lawful
arrest. The constitutional guarantee against unreasonable search and
seizure must perforce operate in favor of accused-appellant. As such, the
articles seized could not be used as evidence against accused-appellant for
these are "fruits of a poisoned tree" and, therefore, must be rejected,
pursuant to Article III, Sec. 3(2) of the Constitution.
(People
v.
Menguin)

In People vs. Lo Ho Wing, the Court defined the term "transport", as

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

WHEN VOLUNTARY SUBMISSION

TO SEARCH IS INAPPLICABLE

The police officers intentionally peeped first through the window

before they saw and ascertained the activities of accused-appellants inside
the room. In like manner, the search cannot be categorized as a search of a
moving vehicle, a consented warrantless search, a customs search, or a stop
and frisk; it cannot even fall under exigent and emergency circumstances, for
the evidence at hand is bereft of any such showing.

WHEN POLICE OFFICERS INTENTIONALLY PEEPED THRU A WINDOW

THEN WENT INSIDE AND ARRESTED THOSE INSIDE WHO ARE
PACKING MARIJUANA. THE SAME IS ILLEGAL

Aside from the inapplicability of the abovecited case, the act of

herein accused-appellant in handing over her bag to the NARCOM agents
could not be construed as voluntary submission or an implied acquiescence
to the unreasonable search. The instant case is similar to People v.
Encinada.
(People v. Menguin)

On the contrary, it indicates that the apprehending officers should

have conducted first a surveillance considering that the identities and
address of the suspected culprits were already ascertained. After conducting
the surveillance and determining the existence of probable cause for
arresting accused-appellants, they should have secured a search warrant
prior to effecting a valid arrest and seizure. The arrest being illegal ab initio,
the accompanying search was likewise illegal. Every evidence thus obtained
during the illegal search cannot be used against accused-appellants; hence,
their acquittal must follow in faithful obeisance to the fundamental law. (PP
-vs- ZENAIDA BOLASA Y NAKOBOAN, ET AL., G.R. No. 125754, Dec.
22, 1999)

WHEN SEARCH IS NOT

ALLOWED AFTER
AN ARREST IS MADE
In the case of People v. Lua, this Court held:
"As regards the brick of marijuana found inside the appellant's
house, the trial court correctly ignored it apparently in view of its
inadmissibility. While initially the arrest as well as the body search was
lawful, the warrantless search made inside the appellant's house became
unlawful since the police operatives were not armed with a search warrant.
Such search cannot fall under "search made incidental to a lawful arrest," the
same being limited to body search and to that point within reach or control of
the person arrested, or that which may furnish him with the means of
committing violence or of escaping. In the case at bar, appellant was
admittedly outside his house when he was arrested. Hence, it can hardly be
said that the inner portion of his house was within his reach or control.
(Espano v. C.A.; GR 120431, April 1, 98)

SEARCH AND SEIZURE WITHOUT THE

WARRANT IS ILLEGAL AND VOID AB INITIO

REQUISITE

JUDICIAL

As a general rule, the procurement of a search warrant is required

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

MEANING OF TO TRANSPORT
IN DRUG CASES

Lawmen cannot be allowed to violate the very law they are expected to
enforce. The Court is not unmindful of the difficulties of law enforcement

73

agencies in suppressing the illegal traffic of dangerous drugs. However,

quick solutions of crimes and apprehension of malefactors do not justify a
callous disregard of the Bill of Rights. We need not underscore that the
protection against illegal search and seizures is constitutionally mandated
and only under specific instances are seizures allowed without warrants.
In this case, the prosecutions evidence clearly established that the police
conducted a search of accuseds backyard garden without warrant; they had
sufficient time to obtain a search warrant; they failed to secure one. There
was no showing of urgency or necessity for the warrantless search, or the
immediate seizure of the marijuana plants. (People vs. Alberto Pasudag)

74