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

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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

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now in the effect punished by and under the
Revised Penal Code.
(People v Martin Simon)

WHEN THE BENEFITS OF INDETERMINATE

SENTENCE LAW IS NOT APPLICABLE;

a. Offenses punished by death or life

imprisonment.
b. Those convicted of treason (Art. 114),
conspiracy or proposal to commit
treason (Art. 115).
c. Those convicted of misprision of treason
(Art. 116), rebellion (Art. 134), sedition
(Art. 139), or espionage (Art. 117).
d. Those convicted of piracy (Art. 122).
e. Habitual delinquents (Art. 62, par. 5).
f. Those who escaped from confinement or
those who evaded sentence.
g. Those granted conditional pardon and
who violated the terms of the same
(Art. 159). (People v. Corral, 74 Phil. 359).
h. Those whose maximum period of
imprisonment does not exceed
one year.
i. Those who are already serving final
judgment upon the approval of the
Indeterminate Sentence Law.
j. those offenses or crimes not punishable
by imprisonment such as distierro and
suspension.

RECIDIVISTS ARE ENTITLED TO THE

BENEFITS OF THE INDETERMINATE
SENTENCE

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)

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NATURE OF PENALTY
OF RECLUSION PERPETUA

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

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)

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.)

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WHICH IS MORE BURDENSOME LIFE
IMPRISONMENT OF RECLUSION PERPETUA

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)

RECLUSION PERPETUA AND LIFE

IMPRISONMENT CANNOT BE INTER-CHANGE
WHEN IMPOSED AS PENALTY

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.

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

THE REASON WHY RECLUSION PERPETUA

HAS A RANGE DESPITE THE SAME BEING
INDIVISIBLE

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)

RARE CASE OF APPLICATION OF RPC IN A

SUPPLETORY CHARACTER DESPITE THE
PENALTY BEING LIFE IMPRISONMENT

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 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.

(People -vs- Priscilla Balasa, GR No.

106357, September 3, 1998)

ACCUSED WHO IS SENTENCED TO

RECLUSION PERPETUA IS STILL ENTITLED
TO EITHER FULL OR ¾ OF HIS PREVENTIVE
IMPRISONMENT

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 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)

QUALIFIED THEFT

QUALIFIED THEFT IS PENALIZED BY

RECLUSION PERPETUA IF AMOUNT
INVOLVED IS OVER P22,000.00

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

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accused shall not be entitled to pardon before the
lapse of forty (40) years.

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

THE PROBATION LAW (P.D. 968)

and its AMENDMENTS

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.

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;
c. to prevent the commission of offenses.

SUBMISSION OF PETITION AND

TIME OF FILING OFPETITION

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.

EFFECT OF FILING OF PETITION FOR

PROBATION

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 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.

PENDING RESOLUTION OF PETITION,

WHAT ARE THE PRIVILEDGE THAT MAYBE
GIVEN TO THE ACCUSED-PETITIONER?

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.

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.

WHAT IS A POST SENTENCE

INVESTIGATION REPORT?

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

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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.

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.

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

b. to report to the probation officer at least once a

month during the period of probation.

WHAT ARE THE OTHER

CONDITIONS OF PROBATION?

a. cooperate with a program of supervision;

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

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j. permit the probation officer or an authorized social
worker to visit his home and place of work;
k. reside at premises approved by the court and not to
change his residence w/o prior written approval; and
l. 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 )

RULES ON OUTSIDE TRAVEL

OF PROBATIONER

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.

EFFECT OF APPEAL BY THE

ACCUSED OF HIS CONVICTION

a. If the accused appeals his conviction for the

purpose of totally reversing his conviction, he is
deemed to have waived his right to probation.

b. 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.

CONFIDENTIALITY OF RECORDS
OF PROBATION

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 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.

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.

MODIFICATION OF CONDITION
OR PERIOD OF PROBATION

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

1. Those sentenced to serve a maximum term of

imprisonment of more than six years.
2. Those convicted of any offense against the
security of the state;
3. 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;
4. Those who have been once on probation under
the provisions of this decree.
5. Those convicted of RA 9156.
6. Those convicted of violation of election laws.

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PERIOD OF PROBATION

1. If the probationer has been sentenced to an

imprisonment of not more than one year, the
probation shall not exceed two years;
2. In all other cases, not to exceed six years;
3. 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.

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.

"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.

"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

UNDERLYING PHILOSOPHY OF PROBATION

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 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)

PROBATION IS NOT A RIGHT

BUT A PRIVILEGE

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.

MAIN CRITERION FOR DETERMINING

WHO MAY BE GRANTED PROBATION.

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

14
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)

TIMELINESS OF FILING APPLICATION FOR

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).

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)

EFFECT OF FILING PETITION FOR PROBATION,

WAIVER OF RIGHT TO APPEAL AND FINALITY OF
JUDGEMENT

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

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 ." 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)

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

VIOLATION OF RA 6425,
A VALID CAUSE FOR DISMISSAL

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IN SERVICE IN THE GOVERNMENT
DESPITE PROBATION

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]."

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

17
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)

PETITIONER MAY STILL EXHORT OFFENDER

TO PERFORM CERTAIN ACTS DESPITE
DISCHARGE FROM PROBATION IN
CERTAIN CASES

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 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)

EXPIRATION OF PERIOD OF PROBATION IS

NOT TERMINATION, ORDER OF COURT
REQUIRED

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 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).

ANTI-FENCING LAW
OF 1979 (PD NO. 1612)

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).

BRIEF HISTORY OF PD 1612 OR THE ANTI-

FENCING LAW

Presidential Decree No. 1612 or commonly

known as the Anti-Fencing 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.

THE PURPOSE OF ENACTING PD 1612

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

19
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

"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.

WHO ARE LIABLE FOR THE CRIME OF

FENCING; AND ITS PENALTIES:

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.

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

20
 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.

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;

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;

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;

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.

RULES REGARDING BUY AND SELL OF GOODS

PARTICULARLY SECOND HAND GOODS

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.

21
 The Implementing Rules provides for the
guidelines of issuance of clearances or permits to
sell used or secondhand items. It provided for the
definition of the following terms:

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.

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;

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;

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.

22
PROCEDURE FOR SECURING
PERMIT/CLEARANCE

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.

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.

The Station Commander may, require the

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

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.

23
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:
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

24
 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.

PRESUMPTION

Mere possession of any good, article, item,

object or anything fo value which has been the
subject of robbery or thievery, shall be prima facie
evidence of fencing.

ELEMENTS

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;

25
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)

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.

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.

The accused known 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
impossible for her to know that the jewelry were
stolen because of the fact that Crisilita was willing

26
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
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:

". . . 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.’’

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)

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.

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

27
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.

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.

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.

A FENCE MAY BE PROSECUTED

UNDER THE RPC OR PD 1612

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)

28
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.

DISTINCTION BETWEEN
FENCING AND ROBBERY

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).

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.

29
FENCING AS A CRIME INVOLVING
MORAL TURPITUDE.

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)

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.

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 Government Code, of persons
running for elective position -"Sec. 40
Disqualifications - (a) Those sentenced by final
judgement for an offense involving moral
turpitude..."

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.

ESSENCE OF VIOLATION OF PD 1612,

SEC. 2 OR ANTI-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

30
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)

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.

It was incumbent upon petitioner to

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

BATAS PAMBANSA BLG. 22

BOUNCING CHECKS LAW

ACTS PUNISHABLE:

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.

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.

31
HOW TO ESTABLISH GUILT
OF ACCUSED IN BP 22

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)

NOTICE, AN INDISPENSABLE
REQUISITE FOR PROSECUTION

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.

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
drawee’s dishonor or refusal to pay the same. If
the drawee bank fails to do so, prosecution for
violation of BP 22 may not prosper.

32
RULE IN CASE OF DISHONOR
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.

AGREEMENT OF PARTIES
REGARDING THE CHECK
IS NOT A DEFENSE

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.

CHECKS ISSUED IN PAYMENT

OF INSTALLMENT

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)

In this case, the Judge was even held

administratively liable.

CHECK DRAWN AGAINST

A DOLLAR ACCOUNT. RULE:

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

33
uttered in the Philippines, even if the same is
payable outside of the Philippines (De Villa v. CA)
GUARANTEE CHECKS, DRAWER,
STILL LIABLE

The mere act of issuing a worthless check is

punishable. Offender cannot claim good faith for
it is malum prohibitum.

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 IN VIOLATION
AND PURPOSE OF THE LAW

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).

CAN A PERSON BE HELD LIABLE FOR

ISSUING A CHECK WITH SUFFICIENT
FUNDS FOR VIOLATION OF BP 22?

34
 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.

RULE ON RENDERING UNJUST

JUDGMENT, IGNORANCE, ETC.
BY A JUDGE

In the case of De la Cruz vs. Concepcion

this Court declared:

"Mere errors in the appreciation of

evidence, unless so gross and patent as to
produce an inference of ignorance or bad faith,
or of knowing rendition of an unjust decision,
are irrelevant and immaterial in an
administrative proceeding against him. No one,
called upon to try facts or interpret the law in
the process of administering justice, can be
infallible in his judgment. All that is expected of
him is that he follow the rules prescribed to
ensure a fair and impartial hearing, assess the
different factors that emerge therefrom and
bear on the issues presented, and on the basis
of the conclusions he finds established, with
only his conscience and knowledge of the law
to guide him, adjudicate the case accordingly."
(Gutierrez v Pallatao; Adm. Matter #RTJ-95-
1326, July 8, 1998)

DIFFERENCE BETWEEN ESTAFA

AND VIOLATION OF BP 22

35
 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)

JURISDICTION IN
BP 22 CASES

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

36
of the offense also lies in the Regional Trial Court
of Pampanga.

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.

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).

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.

37
 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,
9/5/96)

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 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;
6/20/97)

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

38
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.

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; 6/20/97

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)

ANTI-GRAFT & CORRUPT PRACTICES ACT

(RA NO 3019)

ANTI-GRAFT AND CORRUPT

PRACTICES ACT

39
 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.

40
( 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.

(g)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.
(h)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.

41
(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.

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”

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).

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.

ELEMENTS OF NEGLECT OF DUTY UNDER

SEC. 3 OF RA 3019

42
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.

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 xxx

(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.

VIOLATION OF SECTION 3 (E) OF RA 3019

REQUIRES PROOF OF THE FOLLOWING
FACTS, VIZ:

43
a. the accused is a public officer discharging
administrative or official functions or private
persons charged in conspiracy with them;

b. the public officer committed the prohibited act

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

c. the public officer acted with manifest partiality

evident bad faith or gross, inexcusable
negligence; and

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. MEANING.

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).

SUSPENSION UNDER R.A. 3019 MANDATORY

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

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

44
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 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)

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 re-election 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

45
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"

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; A.M. No. MTJ-98-1147, July 2, 1998)

RE-ELECTION IN PUBLIC OFFICE

EXTINGUISHING ONLY HIS
ADMINISTRATIVE LIABILITY BUT
NOT HIS CRIMINAL LIABILITY

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

46
 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)

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 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

47
motion to quash is pending review before the
appellate courts. (Segovia v. Sandiganbayan;
GR 124067, Mar. 27, 1998)

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:

(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.

(d) No specific rules need be laid down

for such pre-suspension hearing. Suffice it to
state that the accused should be given a fair
and adequate opportunity to challenge the

48
 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-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)

WHEN MAY A PUBLIC OFFICER BE

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

xxx 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

49
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)

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 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."

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

50
a superior against an erring employee who
studiously ignored, if not defied, his authority.
(Llorente v. Sandiganbayan)

WHEN OFFENDER IS NOT LIABLE UNDER

SEC. 3(e) BUT UNDER SEC. (f) OF RA 3019

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]:

"(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:

"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 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

51
petitioner under Sec. 3[f] without violating his
constitutional right to due process.
(Llorente v.
Sandiganbayan)

SUSPPENSION (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)

APPROVAL OF LEAVE OF ABSENCE

NOT A BAR TO SUSPENSION

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; GR 85468, Sepr. 7, 1989)

UNDUE DELAY IN PRELIMINARY

INVESTIGATIONS VIOLATIVE OF
DUE PROCESS AND A GROUND TO DISMISS

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

52
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 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)

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)

REASON WHY DWELLING

IS AN AGGRAVATING CIRCUMSTANCE

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)

WHEN RELATIONSHIP IS NOT AN

53
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
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.)

WHEN OFFENDER IS STEP GRANDPARENT,

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

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

54
common-law husband of the girl's grandmother.
The Court said:

"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)

RECLUSION PERPETUA IS LIGHTER THAN

LIFE IMPRISONMENT AND IF ONE IS
SENTENCED TO LIFE IMPRISONMENT AND
LATER IMPOSED RECLUSION PERPETUA 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 the accused should be
reclusion perpetua and not life imprisonment.
(People v. Latura)

JUSTIFICATION FOR THE IMPOSITION

OF THE DEATH PENALTY

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.

55
 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.

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.

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)

WHY DEATH PENALTY IS NOT

A CRUEL AND UNUSUAL PUNISHMENT

"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 'punishments are cruel when they involve
torture or a lingering death, but the punishment of

56
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.'"

“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)

DEATH PENALTY WAS NOT

ABOLISHED BUT MERELY SUSPENDED

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)

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)

WHAT ARE THE CRIMES PUNISHABLE

BY RECLUSION PERPETUA TO DEATH
UNDER RA 7659

57
Under R.A. No. 7659, the following crimes are
penalized by reclusion perpetua to death:

(1) Treason (Sec. 2);

(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);
(5) 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

58
 (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) Misappropriation, misapplication or
failure to account dangerous drugs
confiscated by the arresting officer (Sec.
17);
(23) Planting evidence of dangerous drugs in
person or immediate vicinity of another
to implicate the latter (Sec. 19); and
(24) 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

59
 "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)

(4) Rape with the victim becoming insane, rape

with homicide and qualified

"When by reason or on the occasion of the

rape, the victim has become insane, the penalty
shall be death.

xxx xxx xxx

60
 When by reason or on the occasion of the
rape, a homicide is committed, the penalty shall
be death.

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 common-law 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) Sale, administration, delivery, distribution

and transportation of prohibited drugs where the
victim is a minor or the victim dies

"Notwithstanding the provision of Section 20 of

this Act to the contrary, if the victim of the offense
is a minor, or should a prohibited drug involved in
any offense under this Section be the proximate
cause of the death of victim thereof, the maximum
penalty [of death] herein provided shall be
imposed." (Sec. 13)

61
(6) Maintenance of den, dive, or resort for users
of prohibited drugs where the victim is a minor or
the victim dies

"Notwithstanding the provisions of Section 20

of this Act to the contrary, the maximum of the
penalty [of death] shall be imposed in every case
where a prohibited drug is administered, delivered
or sold to a minor who is allowed to use the same
in such place.
Should a prohibited drug be the proximate case of
the death of a person using the same in such den,
dive or resort, the maximum penalty herein
provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of
this Act to the contrary." (Sec. 13)

(7) Sale, administration, dispensation, delivery,

distribution and transportation of regulated drugs
where the victim is a minor or the victim dies

"Notwithstanding the provisions of Section 20

of this Act to the contrary, if the victim of the
offense is a minor, or should a regulated drug
involved in any offense under this Section be the
proximate cause of the death of a victim thereof,
the maximum penalty [of death] herein provided
shall be imposed." (Sec. 14)

(8) Maintenance of den, dive, or resort for users

of regulated drugs where the victim is a minor or
the victim dies

"Notwithstanding the provisions of Section 20

of this Act to the contrary, the maximum penalty
[of death] herein provided shall be imposed in
every case where a regulated drug is
administered, delivered or sold to a minor who is
allowed to use the same in such place.
Should a regulated drug be the proximate cause of
death of a person using the same in such den,
dive or resort, the maximum penalty herein
provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of
this Act to the contrary." (Sec. 15)

62
(9) Drug offenses if convicted are government
officials, employees or officers including members
of police agencies and armed forces

"The maximum penalties [of death] provided

for in Section 3, 4 (1), 5(1), 6, 7, 8, 9, 11,12 and
13 of Article II and Sections 14, 14-A, 14(1), 15A
(1), 16, and 19 of Article III [of the Dangerous
Drugs Act of 1972] shall be imposed, if those
found guilty or any of the same offenses are
government officials, employees or officers
including members of police agencies and the
armed forces." (Sec. 19)

(10) Planting of dangerous drugs as evidence in

drug offenses with the mandatory death penalty if
convicted are government officials, employees or
officers
"Any such above government official,
employee or officer who is found guilty of
'planting' any dangerous drugs punished in
Section s 3, 4, 7, 8, 9 and 13 of Article II and
Sections 14, 14-A, 15, and 16 of Article III
(of the Dangerous Drugs Act of 1972) in the
person or in the immediate vicinity of another
as evidence to implicate the latter, shall
suffer the same penalty as therein provided."
(Sec. 19)

(11) 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.

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

63
purposes of gain in the commission of any crime."
(Sec. 23)
(People v. Echegaray)

TWO INSTANCES WHEN DEATH MAY

BE IMPOSED WHEN CONSTRUED
UNDER RA 7659

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)

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)

64
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)

WHY CAPITAL PUNISHMENT

SHOULD NOT BE ABOLISHED

"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)

RA 6425 AS AMENDED BY RA 7659

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

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

65
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)

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
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)

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

66
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.

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)

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

67
penalty 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)

A PERSON MAY BE CONVICTED OF

GRAVE COERCION ALTHOUGH
THE CHARGE IS KIDNAPPING

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

68
 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

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.

(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.

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

69
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 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

70
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.

WHEN THEFT OF MOTOR VEHICLE IS

QUALIFIED THEFT. (STRAY DECISION)

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 )

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

71
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.

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.

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, 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

72
circumstance. (PP -vs- CIELITO BULURAN Y
RAMIREZ and LEONARDO VALENZUELA Y
CASTILLO, Accused-Appellants. G.R. No.
113940, Feb. 15, 2000)

USE OF MOTOR VEHICLE AS QUALIFYING

AGGRAVATING CIRCUMSTANCE

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

(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 -vs- ROGELIO GALAM, Accused-
Appellant. G.R. No. 114740, Feb. 15, 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)

TREACHERY IS PRESENT ON SECOND STAGE

OF ACCIDENT

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

73
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)

WHY DWELLING IS AGGRAVATING

"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 BiñAS, Accused-Appellant. G.R.
No. 121630, Dec. 8, 1999)

EVEN FRONTAL ATTACK WOULD AMOUNT TO

TREACHERY

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

74
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)

DATE OF EFFECTIVITY OF RA 7659, ETC.

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.

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;

(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;

(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

(f) deprives person accused of a crime of some

lawful protection to which he has become
entitled, such as the protection of a former

75
 conviction or acquittal, or a proclamation of
amnesty. (PP -vs- CHARITO ISUG
MAGBANUA, G.R. No. 128888, Dec. 3,
1999)

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:

"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.

"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:

76
 Provided, however, That no other crime was
committed by the person arrested.

"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 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 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.

"The penalty of arresto mayor shall be

imposed upon any person who shall carry
any licensed firearm outside his residence
without legal authority therefor."

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

77
 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.

"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 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.

"The same penalty shall be imposed

upon the owner, president, manager, director
or other responsible officer of any public or
private firm, company, corporation or entity,
who shall willfully or knowingly allow any of
the explosives owned by such firm, company,
corporation or entity, to be used by any
person or persons found guilty of violating
the provisions of the preceding paragraphs."

SECTION 3. Section 5 of Presidential Decree

No. 1866, as amended, is hereby further amended
to read as follows:

78
 "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."

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."

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.

RULE ON ILLEGAL POSSESSION OF

FIREARMS BEFORE AN ACCUSED
MAYBE CONVICTED

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

b. the fact that the accsused who owned or

possessed it does not have the license or
permit to possess the same. (People v.
Castillo, 325 scra 613)

79
 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.

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)

Possession of any firearm becomes unlawful

only if the necessary permit or license therefor 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)

"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)

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

80
possession by itself is not prohibited by law.
(People v. Cortez, 324 scra 335, 344)

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)

PRESENT MEANING OF ILLEGAL

POSSESSION OF FIREARM

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.

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)

ILLEGAL POSSESSION OF FIREARM ONLY

SPECIAL AGGRAVATING CIRCUMSTANCE
IN CRIMES OF HOMICIDE, ETC.

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 :

81
 “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 :

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.

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)

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.

82
 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)

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.”

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 or persons found guilty of
violating the provisions of the preceding

83
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.”

5. “The penalty of arresto mayor shall be

imposed upon any person who shall carry any
licensed firearm outside his residence without
legal authority therefor”

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”.

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. it is not correct to say without

qualification that “intent” is immaterial.
Intent as to possession is
immaterial. Intention to possess is

84
 material. Whatever the purpose of
the possession may be is consistently
immaterial. That one was in possession
of an unlicensed firearms merely for
one’s 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”.
1.2. HOWEVER, possession must be
established beyond reasonable
doubt, and in view of the special
meaning that “possession” has in
criminal law, discovery by police,
officers alone of a firearmin 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).

1.3. How is animus possidendi

established? There must be proved
either by direct or circumstantial
evidence 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

85
“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.

i. 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.
ii. 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.
iii. 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.
Macasling, 237 SCRA 299 that there
was no evidence of “animus
possidendi”.
iv. 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

86
 reasonable doubt of animus
possidendi.

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.) 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]),

b.) An interesting question arises. The

present law makes penalties depend on
the caliberof 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
teetimony 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.

c.) A firearm is unlicensed when a

certification from the “Firearms and

87
 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 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.

d.) 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). 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)

2. 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!

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 –

88
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 d’etat”.

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.

89
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 d’etat” then the violation is
absorbed in the main offense. (R.A. 8294,
Section 1).

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 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.

90
 One moral lesson can be learned: Laws
passed as favor to one’s 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 one’s control and
management.

INTENT TO POSSESS, OR ANIMUS

POSSIDENDI IS ESSENTIAL

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.

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)

91
 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)

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 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)

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

92
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)

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)

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 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 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

93
Revised Penal Code may now be applied for
violation of PD 1866, as amended and Rep[ublic
Act 6425, as amended.

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)

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)

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)

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?

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)

94
 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)

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)

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)

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.

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.

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)

Republic Act 8294 took effect on July 6,

1997.

95
 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)

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.

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.

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)

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)

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

96
evidence of the existence of the gun which can be
established either by testimony or presentation of
the gun itself.

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.

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.

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.

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

97
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.

Prescinding therefrom, and considering that

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

EVEN IF ACCUSED ADMITTED THAT HE HAS

NO LICENSE, SUCH ADMISSION IS NOT
SUFFICIENT PROOF OF ILLEGAL POSSESSION
OF FIREARM

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:

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

mere acknowledgement of a fact or of

98
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.

"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 accused-appellant 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)

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

99
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.

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.

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)

UNDER R.A. 8294 A SEPARATE CONVICTION

FOR ILLEGAL POSSESSION OF FIREARMS
AND FOR HOMICIDE IS NOT ALLOWED

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

100
People vs. Ronaldo Valdez, that in cases where
murder or homicide is committed with the use of
an unlicensed 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)

ANTI-WIRE TAPPING LAW

(RA 4200)

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 walkie-talkie 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

101
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.

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

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 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 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.

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.

102
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.

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:

"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.

"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.

103
WHEN INEXCUSABLE IMPRUDENCE ON
PART OF VICTIM AS TO IDENTITY OF
OFFENDER IS NOT RAPE

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?

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
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

104
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.)

NATURE OF INTIMIDATION
IN RAPE CASES

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 victim’s 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
20’s, 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)

WHEN INTIMIDATION IS SUSTAINED

BY MORAL ASCENDANCY IN RAPE

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

105
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.

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 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)

TEST TO DETERMINE WHETHER A WOMAN

VOLUNTARILY SUBMITTED TO SEXUAL
INTERCOURSE

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

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

106
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)

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)

CHILD BORN BY REASON OF RAPE

MUST BE ACKNOWLEDGED BY OFFENDER
UPON ORDERS OF THE COURT

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)

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)

107
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)

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

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

108
accused would still be liable for rape under the 3 rd
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)

USE OF FORCE OR INTIMIDATION NOT

AN ELEMENT OF STATUTORY RAPE

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 single-bladed or a double-edged knife.
(People v. Oliva; 12/5/97)
RAPE CAN BE COMMITTED IN
MANY DIFFERENT PLACES

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)

WHEN SWEETHEART DEFENSE

IS TENABLE IN RAPE

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

109
improbable that when the relationship is
uncovered, the victim’s 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)

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
complainant’s 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)

HEINOUSNESS OF RAPE OF
ONE’S DESCENDANT

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

110
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 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)

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.

WHEN THE INFORMATIONS ON RAPE CASES

FAILED TO ALLEGE ACTUAL RELATIONSHIP
ETC. HENCE DEATH PENALTY CANNOT BE
IMPOSED

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

111
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' sister-in-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.

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

112
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 OF ALL SPECIMENS IN DRUG

CASES NOT NECESSARY

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)

MEDICAL EXAMINATION NOT REQUIRED IN

RAPE CASES

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.

WHEN CARNAL KNOWLEDGE IS

CONSUMATED

It is worth mentioning that in rape cases, the

prosecution is not required to establish penile

113
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 accused-
appellant 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?

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.

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 there is notorious
inequality of forces between the victim and the

114
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.

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)

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 accused-appellant 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

115
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 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)

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

116
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)

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)

WHEN RAPE IS NOT COMMITTED AND

SWEETHEART THEORY GIVEN CREDENCE

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

117
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.

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.

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 -vs- TOMAS CLAUDIO Y MENIJIE, G.R. No.
133694, Feb. 29, 2000)

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 impair the

118
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)

NATURE OF INCESTUOUS RAPE

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)

119
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
gratification from a fiancée, 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)

PLACES NOTORIOUS FOR HOLD-UPS DONE

AT NIGHT - IS CONSIDERED AGGRAVATING
AS NIGHT TIME

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)

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

120
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.

DEATH PENALTY CANNOT BE IMPOSED WHEN

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

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 -vs- FEDERICO LUSTRE Y
ENCINAS, G.R. No. 134562, April 6, 2000)

COMPENSATORY DAMAGES IN CASES OF

QUALIFIED RAPE

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)

121
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)

EACH AND EVERY RAPE ALLEGED MUST BE

PROVEN

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 accused-appellant 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.

122
(PP -vs- EDMUNDO DE LEON Y JESUS, G.R. No.
130985, Dec. 3, 1999)

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

"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)

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

123
 "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 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

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.

Under these circumstance, appellant cannot be

convicted of the special complex crime of robbery

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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

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 co-
accused. "It is thus not farfetched," the Court
held, "for complainant to have instituted the
complainant for rape against the three to avoid
being bruited around as a woman of loose
morals."

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."

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

125
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."

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.

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 cudgels

126
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)

JUDGES SHOULD NOT BE OVERLY

PROTECTIVE OF EVERY WOMAN IN RAPE
CASES. THEY MUST LOOK AT THE CHARGE
WITH EXTREME CAUTION AND
CIRCUSMPECTION

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)

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

127
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.

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, 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.

In work-related or employment environment:

(1) 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;
(2) The above acts would impair the
employee's rights or privileges under
existing labor laws; or
(3) The above acts would result in an
intimidating, hostile, or offensive
environment for the employee.

128
In an education or training environment:

(1) Against one who is under the care,

custody or supervision of the offender;
(2) Against one whose education, training,
apprenticeship or tutorship is entrusted to
the offender;
(3) 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
(4) When the sexual advances result in an
intimidating, hostile or offensive
environment for the student, trainee or
apprentice.

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.

CHILD AND YOUTH WELFARE CODE

( PD 603 with Amendments)

RELIGIOUS INSTRUCTION

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.

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

129
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.

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 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 offender on
recognizance, to the custody of his parents or

130
other suitable person who shall be responsible for
his appearance whenever required.

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
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.

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.

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

"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

131
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
agencies authorized by the Court, release a
youthful offender on recognizance, 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 exclusive jurisdiction of the
Military Tribunals, they may be committed at any
military detention or rehabilitation center.

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

"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

132
Development or the government training
institution or responsible person under whose care
he has been committed.

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.

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.

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."

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.

133
 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.

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."

RA 7610
CHILD ABUSE LAW

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.

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;

134
 (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.

(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

(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.

ATTEMPT TO COMMIT
CHILD PROSTITUTION

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.

135
 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.

CHILD TRAFFICKING

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.

ATTEMPT TO COMMIT
CHILD TRAFFICKING

There is an attempt to commit child

trafficking under Section 7 of this 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;

(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

(c) When doctor, hospital or clinic official or

employee, nurse, midwife, local civil registrar

136
 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.

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.

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.

OTHER ACTS OF NEGLECT, ABUSE,

CRUELTY OR EXPLOITATION AND
OTHER CONDITIONS PREJUDICIAL
TO THE CHILD’S DEVELOPMENT

137
 (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) 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) 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.

(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 and a fine of
not less than Fifty thousand pesos (P50,000), and

138
the loss of the license to operate such a place or
establishment.

(e) Any person who shall use, coerce, force

or intimidate a street child or any other child to :

(1) Beg or use begging as a means of living;

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

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 be one (1) degree higher than
that imposed 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.

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.

(a) Children shall not be the object of attack

and shall be entitled to special respect. They shall

139
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;

(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) 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

(f) All appropriate steps shall be taken to

facilitate the reunion of families temporarily
separated due to armed conflict.

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

140
 (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.

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.

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.

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,

141
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.

PEDOPHILIA IS NOT INSANITY

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.

RA 7658

EMPLOYMENT OF CHILDREN

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

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 Employment: and
Provided, That the following requirements in all
instances are strictly complied with:

142
 (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.

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.

The Department of Labor and Employment

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

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

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.

DISCHARGE; REPORT AND ECOMMENDATION

OF THE DEPARTMENT OF SOCIAL WELFARE,
SUBJECT TO JUDICIAL REVIEW

143
 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 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 anew 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's
proper 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)

SUSPENSION OF SENTENCE NOT APPLICABLE

IF PENALTY IS RECLUSION PERPETUA,
LIFE IMPRISONMENT OR DEATH

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

144
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:

"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.)

YOUTHFUL OFFENDER, TO BE CRIMINALLY

LIABLE, ACCUSED, A 13 YEAR OLD, MUST
ACT WITH DISCERNMENT

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 would 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. Cordova; GR 83373-74, 7/5/93)

EVERY ACCUSED IS PRESUMED TO BE SANE

AT THE TIME OF COMMISSION OF THE CRIME

145
 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.)

FAILURE OF DEFENSE TO ASK FOR

SUSPENSION OF ARRAIGNMENT
NEGATES INSANITY

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.)

CHILD & YOUTH WELFARE CODE,

NOT APPLICABLE TO DEATH OR
RECLUSION PERPETUA SENTENCE

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

146
of the penalty (Art. 68, RPC). (Pp. V. Mendez;
GR L-48131; 5/30/83)

SUSPENSION OF SENTENCE; CANNOT

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

It is true that Venancio Villanueva was a

youthful offender as defined by Art. 189 because
he was under 21 years of 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)

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)

PRESIDENTIAL DECREE NO. 603;

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

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

147
the court upon his reaching the age of majority.
These are: (1) to dismiss the case and order the
final discharge of said offender; or (2) to
pronounce the judgment of conviction. In plain
and simple language, it is either dismissal or
sentence. (Pp. V. Garcia; supra.)

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 by Articles 100,
104(3), 107 and 345(1) of the Revised Penal
Code, (People vs. Peña, 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.)

REPUBLIC ACT NO. 8484

(The Access Device Regulation)

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.

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

148
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.

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 law mandates an access device issuer, or

"card issuer," to disclose either in writing or orally
in any application or solicitation to open a 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.

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, 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.

149
 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.

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.

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.

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.

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.

150
 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.

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.

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.

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.

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

151
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.

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 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 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.

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.

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.

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

152
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.

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.

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.

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 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.

153
 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.

DANGEROUS DRUG ACT OF 2002

(Republic Acts No. 9165)

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.

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.

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.

154
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.

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.

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.

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.

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

155
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?

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.

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.

What are the new kinds of drugs

that are included in R.A. 9165?

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.

156
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.
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.

157
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)

158
 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

159
 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 penalties
provided for the offense and shall be
absolutely perpetually disqualified from
holding any public office. (Sec. 28).

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. 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)

CRIMINALLIABILITY OF PRIVATE INDIVIDUAL

160
 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)

CRIMINAL LIABILITY FOR

PLANTING OF EVIDENCE

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 rights shall
also be suspended during the pendency of an appeal
from such conviction (Sec.35)

AGGRAVATING CIRCUMSTANCES
DRUG RELATED CASES

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

161
means involving his/her official status intended
to facilitate the unlawful entry of the same

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

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.

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:

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.

162
 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.

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.

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

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 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 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.

164
 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.

TERMINATION OF THE
GRANT OF IMMUNITY

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 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.)

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.

165
PERSON/S WHO ARE SUBJECT
TO THE MANDATORY DRUG TESTING

a.) Applicants for driver’s license – no

driver’s 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 firearm’s 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
company’s 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
prosecutor’s 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.
f.) All candidates for public office whether
appointed or elected both in the national or

166
 local government shall undergo a mandatory
drug test.

CONFIDENTIALITY OF RECORDS UNDER

THE COMPULSARY SUBMISSION PROGRAM

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)

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

167
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)

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
andexperience in the field of dangerous drugs
andin 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

168
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
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 non- chairman or president of a non-
government organization involved in
dangerous drug campaign to be appointed by
the President of the Philippines.

169
The Philippine Drug Enforcement Agency
(PDEA)

A. Functions
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;

170
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 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;

171
 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
firearms for their protection in connection with
the performance of their duties; Provided,
That no previous special permit for such
possession shall be required;
o.) 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;
p.) Coordinate with the Board for the facilitation of
the issuance of necessary guidelines, rules and
regulations for the proper implementation of
this Act;
q.) Initiate and undertake a national campaign for
drug prevention and drug control programs,

172
 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
r.) 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.

173
 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)

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)

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

174
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.

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.

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.

175
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:

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. 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:

176
 Provided, however, that a final certification
on the same within the next twenty-four
(24) hours;

4. After the filing of the criminal case, the

Court shall within seventy-two (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

177
 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 attorney’s
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:

178
 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 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)

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)

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

179
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 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)

WHAT ARE THE LIABILITY AND

RESPONSIBILITY OF A MEMBER OF LAW
ENFORCEMENT AGENCIES AND OTHER
GOVERNMENT 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

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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.

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

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.

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DELAY ANF BUNGLING IN THE
PROSECUTION OF DRUG CASES

Any government officer employee tasked with

the prosecution of drug-related 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 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.

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)

LIABILITY OF A PERSON WHO VIUOLATES

THE CONFIDENTIALITY OF RECORDS

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

182
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)

LIABILITY OF A PARENTS, SPOUSE OR

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

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.

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)

LIMITED APPLICABILITY OF THE REVISED

PENAL CODE

Notwithstanding any law, rule or regulation

to the contrary, the provisions of the Revised
Penal Code (Act. 3814) as amended, shall not

183
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)

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)

LIKE ALIBI, FRAME UP IS EASY

TO FABRICATE, BUT DIFFICULT
TO PROVE

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 adduced must be clear and convincing.
(People v. Girang; GR 27949, 2/1/95)

BUY-BUST OPERATION

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

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regard to constitutional and legal safeguards.
(People v. Basilgo; GR 107327, 8/5/94)

POSEUR-BUYER, GENERALLY
NEED NOT TESTIFY

The testimony of the poseur-buyer or of the

confidential informant is no longer material
considering that accused-appellant’s 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)

EFFECT OF LIMITATION UNDER

SECTION 19, ART. VII OF THE
CONSTITUTION ON GRANT OF PARDON

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

185
Accordingly, those in custody of the accused must
not solely rely on the pardon as a basis for the
release of the accused from confinement. (People
v. Maquilan)

RULE AS TO WHO SHOULD

BE CRIMINALLY CHARGED

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)

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:

"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.

186
 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 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)

WHEN USE OF MOTOR VEHICLE

IN DRUG CASES OR ANY OTHER
CASE IS NOT AGGRAVATING

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)

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:

187
 (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;

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. Consented warrantless search;

5. Customs search;
6. Stop and Frisk; and
7. Exigent and Emergency Circumstances.
(People v. Menguin; GR 120915, Apr. 13, ’98)

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.

188
 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.

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.

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.

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 informant that a woman having

189
the same appearance as that of accused-appellant
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.

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 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

190
be illegal; hence any item seized from Aminnudin
could not be used against him.

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.

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.

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

191
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)

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.

Consequently, there was no legal basis for

the NARCOM agents to effect a warrantless search
of accused-appellant's bag, there being no
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

192
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)

WHEN VOLUNTARY SUBMISSION

TO SEARCH IS INAPPLICABLE

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)

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)

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MEANING OF “TO TRANSPORT”
IN DRUG CASES

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 POLICE OFFICERS INTENTIONALLY

PEEPED THRU A WINDOW THEN WENT
INSIDE AND ARRESTED THOSE INSIDE WHO
ARE PACKING MARIJUANA. THE SAME IS
ILLEGAL

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.

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

194
-vs- ZENAIDA BOLASA Y NAKOBOAN, ET AL.,
G.R. No. 125754, Dec. 22, 1999)

SEARCH AND SEIZURE WITHOUT THE

REQUISITE JUDICIAL WARRANT IS ILLEGAL
AND VOID AB INITIO

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.

x x x

“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 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 prosecution’s evidence clearly

established that the police conducted a search of
accused’s 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)

195