S P E C I A L P E N A L LA WS EXECUTIVE SUMMARY
AND
JURISPRUDENCE
FOR: ATTY. RONALD C. CHUA BY:
SPL CLASS 2012-2013 ATENEO LAW SCHOOL
ARIK AARON C. ABU GOLDA MARGARETH D. ARGEL JOSE ANTONIO A. CERTEZA MARIA FAIVA S. CIMATU MARIO LORENZO V. CORPUS KRISTINE CLARISSE L. CRUZ PATRICIA JANELLI A. DAVIDE MARIA GRACIA D. DYOCO ATHENA LOUISE F. ERANDIO BERNADETTE A. EUGENIO DAN ABRAHAM G. GUINIGUNDO YLA GLORIA MARIE P. PARAS LAURICE CLAIRE C. PENAMANTE JAN JORDAN L. POON KATHRINA SHEENA MARIE L. QUE ALBERT MICHELSON D. RONO JOSE ANDONI L. SANTOS MIKHAELLA Z. SOLLANO APRIL GAYLE U. SOLLER NICO P. TAN KRISTEL FRANCINE L. TIU LORIS MARRIEL B. VILLAR
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TABLE OF CONTENTS
Access Devices Regulation Act ........................................................................................................... Anti-Alias Law ....................................................................................................................................... Anti-Arson Law ...................................................................................................................................... Anti-Carnapping Act ............................................................................................................................. Anti-Child Pornography Law ............................................................................................................. Anti-Fencing Law and its IRRs ......................................................................................................... Anti-Graft and Corrupt Practices Act .............................................................................................. Anti-Hazing Law..................................................................................................................................... Anti-Hijacking ........................................................................................................................................ Anti-Money Laundering Act ............................................................................................................... Anti-Photo and Video Voyeurism Act .............................................................................................. Anti-Piracy and Anti-Highway robbery ........................................................................................... Anti-Plunder Act ................................................................................................................................... Anti-Sexual Harassment Act .............................................................................................................. Anti-Torture ........................................................................................................................................... Anti-Trafficking in Persons Act ........................................................................................................ Anti-Violence against Women and their Children Act ................................................................ Anti-Wire Tapping Act ....................................................................................................................... Bank Secrecy Law ................................................................................................................................. Bouncing Checks Law .......................................................................................................................... Child and Youth Welfare Code ........................................................................................................... Comprehensive Dangerous Drugs Act ............................................................................................. Death Penalty ......................................................................................................................................... Employment of Children ..................................................................................................................... Forfeiture Law......................................................................................................................................... Government Procurement Reform Act ............................................................................................ Human Security Act .............................................................................................................................. Illegal Possession of Firearms ............................................................................................................ Indeterminate Sentence Law ............................................................................................................... Juvenile Justice and Welfare Act ....................................................................................................... Obstruction of Justice ........................................................................................................................... Probation Law ........................................................................................................................................ Special Protection of Children Against Child Abuse, Exploitation, & Discrimination .........
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Effectivity Date: February 11, 1998 What is the purpose and coverage of R.A. 8484? The Act recognizes the recent advances in technology and the widespread use of access devices in commercial transactions. Under the Act, the rights and liabilities of the parties in such commercial transactions are protected by regulating the issuance and use of access devices. What is an “Access Device”? It is any card, plate, code, account number, electronic serial number, personal identification number, or other telecommunications service, equipment, or instrumental identifier, or other means of account access that can be used to obtain money, good, services, or any other thing of value or to initiate a transfer of funds (other than a transfer originated solely by paper instrument). Note: For instance, changing of grades online is not covered because these are not commercial transactions. Note: Credit cards are covered because these are used for commercial transactions. What is a “Credit Card”? It is any card, plate, coupon book, or other credit device existing for the purpose of obtaining money, goods, property, labor or services or any thing of value on credit. What are the requirements for disclosure of information under credit card application and solicitation? The disclosure may be oral or in writing. The following information must be disclosed: (a) Annual Percentage Rate 1) Each annual percentage rate of interest on the amount of credit obtained by the credit card holder under such credit plan. Where an extension of credit is subject to a variable rate, the fact that the rate is variable, and the annual percentage rate in effect at the time of the mailing. 2) Where more than one rate applies, the range of balances to which each rate applies. (b) Annual and other Fees 1) Any annual fee, other periodic fee, or membership fee imposed for the issuance or availability of a credit card, including any account maintenance fee or any other charge imposed based on activity or inactivity for the account during the billing cycle. 2) Any minimum finance charge imposed for each period during which any extension of credit which is subject to a finance charge is outstanding. 3) Any transaction charge imposed in connection with use of the card to purchase goods or services. 4) Any fee, penalty or surcharge imposed for the delay in payment of an account.
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(c) Balance Calculation Method – the name or a detailed explanation of the balance calculation method used in determining the balance upon which the finance charge is computed. (d) Cash Advance Fee – any fee imposed for an extension of credit in the form of cash. (e) Over-the-Limit-Fee – any fee imposed in connection with an extension of credit in excess of the amount of credit authorized to be extended with respect to such amount: Provided, however, That in case the application or solicitation to open a credit card account for any person under an open-end consumer credit plan be made through catalogs, magazines, or other publications, the following additional information shall be disclosed: 1) A statement, in a conspicuous and prominent location on the application or solicitation, that: i) the information is accurate as of the date the application or solicitation was printed; ii) the information contained in the application or solicitation is subject to change after such date; iii) the applicant should contact the creditor for information on any change in the information contained in the application or solicitation since it was printed; (2) The date the application or solicitation was printed; and (3) In a conspicuous and prominent location on the application or solicitation, a toll free telephone number or mailing address which the applicant may contact to obtain any change in the information provided in the application or solicitation since it was printed. Is there any other requirement aside from disclosure? A credit card issuer must, to the extent practicable, provide a detailed explanation and a clear illustration of the manner by which all charges and fees are computed. Is there any exception to the requirement of disclosure? Yes. The disclosure may be omitted in any telephone solicitation or application if the credit card issuer: (a) does not impose any fee in connection with paragraph (b)(1), Section 4 of this Act; (b) does not impose any fee in connection with telephone solicitation unless the consumer signifies acceptance by using the card; (c) discloses clearly the information described in Section 4 of this Act in writing within thirty (30) days after the consumer requests the card, but in no event later than the date of delivery of the card; and (d) discloses clearly 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 elects to accept the card or account by using the card. Is there any other information required to be disclosed prior to renewal? Yes. Except in telephone solicitations, a card issuer that imposes any fee described in Section 4 shall transmit to a consumer’s credit card account a clear and conspicuous disclosure of: 1. the date by which, the month by which, or the billing period at the close of which, the account will expire if not renewed; 2. the information described above shall be transmitted to a consumer at least thirty (30) days prior to the scheduled renewal date of the consumer’s credit card account; 3. the information described in 4 (a) (1) above, which shall be transmitted to a consumer’s credit card account; and 4. the method by which the consumer may terminate the continued credit availability under the account.
Disclosure must be prior to posting a fee described in 4 (b) (1) above, or with the periodic billing statement first disclosing that the fee has been posted to the account subject to the condition that the consumer is given thirty (30) day period to avoid payment of the fee or to have the fee 5
recredited to the account in any case where the consumer does not wish to continue the availability of the credit. What will happen if there is failure to disclose? After due notice and hearing, those who fail to disclose the required information shall be subject to suspension and cancellation of their authority to issue credit cards by the BSP, SEC and such other government agencies. What are the prohibited acts? The following acts shall constitute access device fraud and are hereby declared to be unlawful: (a) producing, using, trafficking in one or more counterfeit access devices; (b) trafficking in one or more unauthorized access devices or access devices fraudulently applied for; (c) using, with intent to defraud, an unauthorized access device; (d) using an access device fraudulently applied for; (e) possessing one or more counterfeit access devices or access devices fraudulently applied for; (f) producing, trafficking in, having control or custody of, or possessing device-making or altering equipment without being in the business or employment, which lawfully deals with the manufacture, issuance, or distribution of such equipment; (g) inducing, enticing, permitting or in any manner allowing another, for consideration or otherwise to produce, use, traffic in counterfeit access devices, unauthorized access devices or access devices fraudulently applied for; (h) multiple imprinting on more than one transaction record, sales slip or similar document, thereby making it appear that the device holder has entered into a transaction other than those which said device holder had lawfully contracted for, or submitting, without being an affiliated merchant, an order to collect from the issuer of the access device, such extra sales slip through an affiliated merchant who connives therewith, or, under false pretenses of being an affiliated merchant, present for collection such sales slips, and similar documents; (i) disclosing any information imprinted on the access device, such as, but not limited to, the account number or name or address of the device holder, without the latter's authority or permission; (j) obtaining money or anything of value through the use of an access device, with intent to defraud or with intent to gain and fleeing thereafter; (k) having in one's possession, without authority from the owner of the access device or the access device company, an access device, or any material, such as slips, carbon paper, or any other medium, on which the access device is written, printed, embossed, or otherwise indicated; (l) writing or causing to be written on sales slips, approval numbers from the issuer of the access device of the fact of approval, where in fact no such approval was given, or where, if given, what is written is deliberately different from the approval actually given; (m) making any alteration, without the access device holder's authority, of any amount or other information written on the sales slip; (n) effecting transaction, with one or more access devices issued to another person or persons, to receive payment or any other thing of value; (o) without the authorization of the issuer of the access device, soliciting a person for the purpose of: 1) offering an access device; or 2) selling information regarding or an application to obtain an access device; or (p) without the authorization of the credit card system member or its agent, causing or arranging for another person to present to the member or its agent, for payment, one or more evidence or records of transactions made by credit card. Note: If someone applied for a credit card but never paid, it will be covered by the Act under Section 9 (j) if there is intent to defraud or intent to gain and fleeing thereafter. However, there is no Supreme Court case yet clarifying this matter.
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What are other punishable acts under the law? Conspiracy to commit access device fraud – punished as in the case of doing of the act, the accomplishment of which is the object of the conspiracy. Frustrated and attempted access device fraud – punished with one half (1/2) of the fine and imprisonment provided for the consummated offenses listed in Section 9. Accessory to access device fraud – punished with one half (1/2) of the fine and imprisonment provided for the consummated offenses listed in Section 9. What are the prima facie evidence of intent to defraud? The mere possession, control or custody of: (a) an access device, without permission of the owner or without any lawful authority; (b) a counterfeit access device; (c) access device fraudulently applied for; (d) any device-making or altering equipment by any person whose business or employment does not lawfully deal with the manufacture, issuance, or distribution of access device; (e) an access device or medium on which an access device is written, not in the ordinary course of the possessor's trade or business; or (f) a genuine access device, not in the name of the possessor, or not in the ordinary course of the possessor's trade or business. What are the prima facie presumptions of intent to defraud? A cardholder who abandons or surreptitiously leaves the place of employment, business or residence stated in his application or credit card, without informing the credit card company of the place where he could actually be found, if at the time of such abandonment or surreptitious leaving, the outstanding and unpaid balance is past due for at least ninety (90) days and is more than Ten thousand pesos (P10,000.00), shall be prima facie presumed to have used his credit card with intent to defraud. What must be done in case of loss of access device? In case of loss of an access device, the holder must notify the issuer of the access device of the details and circumstances of such loss upon knowledge of the loss. Full compliance with such procedure would absolve the access device holder of any financial liability from fraudulent use of the access device from the time the loss or theft is reported to the issuer.
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Effectivity Date: November 7, 1936 General Rule: No person shall use any name different from the one which he was registered at birth in the office of the local civil registry, or with which he was baptized for the first time, or in case of an alien, with which he was registered in the Bureau of Immigration, or such substitute name as may have been authorized by a competent court. Except: 1. As a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice; 2. When the use of the second name or alias is judicially authorized and duly recorded in the proper local civil registry; 3. The use of a fictitious name or a different name belonging to a single person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth. (Ursua v. CA, April 10, 1996). Penalties: Fine of P5,000.00 to P10, 000.00 and, Imprisonment of 1 year to 5 years. Notes: Q: Did Juan dela Cruz violate the Anti- Alias law when he entered into a contract under the name Ronald Chua? A: NO. The law is not violated as long as the use of the fictitious name or the different name belonging to a single person is for a single instance without any sign or indication that he intends to be known by this name in addition to his real name from that day forth.
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Effectivity Date: March 7, 1979 3 Kinds Of Arson: 1. Arson a. Any person who burns or sets fire to property of another; b. Any person who sets fire to his own property which exposes to danger the life or property of another. 2. Destructive Arson – If the property burned is: a. Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored b. Any archive, museum, whether public or private, or any edifice devoted to culture education or social services; c. Any church or place of worship or other building where people usually assemble; d. Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of person or property e. Any building where evidence is kept for use in any legislative, judicial, administrative or other official proceedings; f. Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building; g. Any building, whether used as a dwelling or not, situated in a populated or congested area. 3. Other Cases of Arson – If the property burned is: a. Any building used as offices of the government or any of its agencies; b. Any inhabited house or dwelling; c. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel; d. Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest; e. Any rice mill, sugar mill, cane mill or mill central; f. Any railway or bus station, airport, wharf or warehouse. Penalties: 1. Arson – Prision Mayor 2. Destructive Arson – Reclusion Temporal Maximum to Reclusion Perpetua 3. Other Cases of Arson – Reclusion Temporal to Reclusion Perpetua 4. If death results by reason or on occasion of Arson – Reclusion Perpetua to Death 5. Special Aggravating Circumstances – Maximum of the Period Imposed a. If committed with intent to gain; b. If committed for the benefit of another;
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c. If offender is motivated by spite or hatred towards the owner or occupant of the property burned; d. If committed by a syndicate. 6. Conspiracy to commit Arson – Prision Mayor Minimum Prima Facie Evidence Of Arson: 1. If the fire started simultaneously in more than one part of the building or establishment; 2. If substantial amount of flammable substances or materials are stored within the building not necessary in the business of the offender nor for household use; 3. If gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked therewith or containers thereof, or any mechanical, electrical, chemical, or electronic contrivance designed to start a fire, or ashes or traces of any of the foregoing are found in the ruins of premises of the burned building or property; 4. If the building or property is insured for substantially more than its actual value at the time of issuance of the policy; 5. If during the lifetime of the corresponding fire insurance policy more than 2 fires have occurred in the same or other premises owned under the control of the offender and/or insured; 6. If shortly before the fire, a substantial portion of the effects insured and stored in the building or property had been withdrawn from the premises except in the ordinary course of business; 7. If a demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the safety of the person of the victim. Notes: The corpus delicti rule is generally satisfied by proof of the bare occurrence of the fire and of its having been intentionally caused, and the uncorroborated testimony of a single eyewitness, if credible, may be enough… Even if the whole house has not been completely gutted by the fire, the crime is still consummated arson. It is enough that a portion thereof is shown to have been destroyed. (People v. Gutierrez) The RPC provision regarding burning property less than P 25 as Malicious Mischief is expressly repealed by PD 1613. If a person impelled by a single criminal impulse, burned several buildings, the crime is not distinct arsons but one crime of destructive arson akin to a continued crime. Failure to allege the fact that the house was inhabited, or was located in a populated or congested area in the information, should be deemed to have been charged with arson only, instead of the more appropriate destructive arson or other cases of arson.
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Effectivity Date: August 26, 1972
CARNAPPING is the taking, with intent to gain, of a motor vehicle belonging to another without the latter’s consent, or by means of ciolence against or intimidation of persons, or by using force upon things. The crime of carnapping is malum prohibitum. ―Motor vehicle‖ is any vehicle propelled by any power other than muscular power using the public highways (except: road rollers, trolley cars, street-sweepers, sprinklers, lawn mowers, etc.). The law also punishes the defacing or tampering with serial numbers of motor vehicle engines, engine blocks and chassis.
Nature Of Offense Of Carnapping With Homicide/ Rape The intention of the law is to make carnapping with homicide or rape a special complex crime, by way of analogy with paragraphs 1 to 4 of Article 294 of the RPC (robbery with violence against or intimidation of persons). Compared With Robbery/Theft Under The Rpc Common features and characteristics include unlawful taking, intent to gain, and that personal property belonging to another is taken without the latter’s consent. RA 6539 is a special law and particularly deals with theft and robbery of motor vehicles. Penalty For carnapping: o Without violence or intimidation of persons or force upon things; akin to theft (14 years and 8 months to 17 uears and 4 months) o By means of violence or intimidation of persons or force upon things; akin to robbery (17 years and 4 months to 30 years) o Special complex crime of carnapping with homicide or rape (reclusion perputua) For violations of other provisions of the law: imprisonment of two to six years plus fine equal to the acquisition cost of the vehicle.
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This Act shall be known as the “Anti-Child Pornography Act of 2009.” The law is enacted for the State to: Guarantee the fundamental rights of every child from all forms of neglect, cruelty and other conditions prejudicial to his/her development; Protect every child from all forms of exploitation and abuse including, but not limited to: - The use of a child in pornographic performances and materials; and - The inducement or coercion of a child to engage or be involved in pornography through whatever means; and
Comply with international treaties to which the Philippines is a signatory or a State party concerning the rights of children In the case of A. Pollo vs. Civil Service Commission, the Court quoted a case decided by the US Court of Appeals Eighth Circuit where it held that, where a government agency's computer use policy prohibited electronic messages with pornographic content and in addition expressly provided that employees do not have any personal privacy rights regarding their use of the agency information systems and technology, the government employee had no legitimate expectation of privacy as to the use and contents of his office computer, and therefore evidence found during warrantless search of the computer was admissible in prosecution for child pornography.1 Definition of Child Pornography Any representation, whether visual, audio or written combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means, of child engaged or involved in real or simulated explicit sexual activities. Explicit Sexual Activity includes actual or simulated As to form: Sexual intercourse or lascivious act including, but not limited to, contact involving genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex; Bestiality; Masturbation Sadistic or masochistic abuse; Lascivious exhibition of the genitals, buttocks breasts, breasts, pubic area and/or anus; or Use of any object or instrument for lasciviousness acts.
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A. Pollo vs. Civil Service Commission, G.R. No. 181881, 18 October 2011
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Definition of Child A child refers to a person below eighteen (18) years of age or over, but is able to fully take care of himself/herself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. A child shall also refer to: - Person regardless of age who is presented, depicted or portrayed as a child as defined herein; and - Computer-generated, digitally or manually crafted images or graphics of a person who is represented or who is made to appear to be a child as defined herein. I. Punishable acts: To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of child pornography; To produce, direct, manufacture or create any form of child pornography; To publish, offer, transmit, sell, distribute, broadcast, advertise, promote, export or import any form of child pornography To possess any form of child pornography with the intent to sell, distribute, publish, or broadcast; To knowingly, willfully and intentionally provide a venue for the commission of prohibited acts such as dens, private rooms, cubicles, cinemas, houses or in establishments purporting to be a legitimate business; For film distributors, theaters and telecommunication companies, by themselves or in cooperation with other entities, to distribute any form of child pornography; For a parent, legal guardian or person having custody or control of a child knowingly permit the child to engage, participate or assist in any form of child pornography; To engage in the luring or grooming of a child. To engage in pandering of any form of child pornography. To willfully access any form of child pornography To conspire to commit any of these prohibited acts To possess any form of child pornography. II. Syndicated child pornography The crime of child pornography is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another and shall be punished. III. Duties of an Internet Service Provider All Internet service providers shall notify the Philippine National Police or the National Bureau of Investigation within seven (7) days from obtaining facts and circumstances that any form of child pornography is being committed using its server or facility. IV. Internet Content Host Responsibility An Internet content host shall not host any form of child pornography on its Internet address Within seven (7) days, report the presence of any form of child pornography, as well as the particulars of the person maintaining, hosting, distributing or in any manner contributing to such internet address, to the proper authorities. The Internet service provider and Internet content host shall preserve such evidence for purpose of investigation and prosecution by relevant authorities. Furthermore, they shall, upon the request of proper authorities, furnish the particulars of users who gained or attempted to gain access to Internet address that contains any form of child pornography. An Internet service provider or Internet content host who shall knowingly, willfully and intentionally violate this provision shall be criminally liable. 13
Note: The failure of the Internet content host to remove any form of child pornography within forty-eight (48) hours from receiving the notice that any form of child pornography is hitting its server shall be conclusive evidence of willful and intentional violation thereof. V. Responsibility of Mall Owners/Operators and Owners or lessors of Other Business Establishments All mall operators and owners or lessors of other business establishments shall notify the PNP or the NBI within seven (7) days from obtaining facts and circumstances that child pornography is being committed in their premises. Note: The law creates a conclusive presumption of knowledge of the mall owners/operators and owners of other business establishments of violating said Act in case there is public display of any form of child pornography within their premises. The law creates a disputable presumption of knowledge by mall owners/operators and owners or lessors of other business establishments VI. Duty of Photo developers, information technology professionals, credit card companies and banks and any person who has direct knowledge of any form of child pornography activities Photo developers, information technology professionals, credit card companies and banks and any person who has direct knowledge of any form of child pornography activities shall have the duty to report any suspected child pornography materials or transactions to the proper authorities within seven (7) days from discovery thereof. Any willful and intentional violation of the aforesaid acts or duties by persons mentioned in Roman numeral V and VI shall be held criminally liable. VII. Confidentiality The right to privacy of the child shall be ensured at any stage of the investigation, prosecution and trial of an offense under this law. Violation of this provision on confidentiality shall be a ground for criminal liability.
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Effectivity Date: March 2, 1979 Fencing, definition Sec. 2(a) defines fencing as the act of any person who, with intent to gain for himself or 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 other 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. Elements of fencing 1) The crime of robbery or theft has been committed; 2) The accused, who is not the principal or accomplice in the crime of robbery or theft, 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 has been derived from the proceeds of the said crime; 3) The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; 4) There is, on the part of the accused, intent to gain for himself or another. (Dizon-Pamintuan v. People, G.R. No. 111426, July 11, 1994). Fencing is a crime involving moral turpitude The knowledge of the accused that items were stolen and that by obtaining such item he unjustly enriches himself at the expense of another, the third element of the offense, ―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.‖ The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on ―Human Relations‖ and ―Solutio Indebiti.‖(Dela Torre v. COMELEC, G.R. No. 121529, July 5, 1996). Prima facie presumption of possession Sec. 5 states that the 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. Proof of purchase thereof is not necessary. Good faith is a defense Yes, if you can show a proof of your good faith, that you did not know or could not have known that the object was a proceed of the crime. Fence, includes natural or juridical persons A fence, who commits the act of fencing, may be: (a) a natural person; or 15
(b) the president, manager or any officer of a firm, association, corporation or partnership or other organization, who knew or should have known of the offense (Sec. 4). Penalty to be imposed depends on the value of the item fenced (Sec. 3) 22k < X exceeds 12k ≤ 22k exceeds 6k ≤ 12k exceeds 200 ≤ 6k exceeds 50 ≤ 200 exceeds 5 but ≤ 50 X≤5
prision mayor maximum, adding 1 year for each additional 10k PROVIDED the total penalty shall not exceed 20yrs prision mayor prision correccional med and max periods prision correccional min and med periods, arresto mayor med to prision correccional min arresto mayor med arresto mayor min
Sellers of second-hand goods must obtain clearance or permit to sell The sellers must acquire the necessary clearance or permit from the Station Commander of the PNP in the town or city where the store is located (Sec. 6). Failure to obtain such will result in conviction as a fence and suspension of the business license (). Definition of terms (IRR) "Used secondhand article (USA)": 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. "Unlicensed dealer/supplier": Any persons, partnership, firm, corporation, association or any other entity or establishment not licensed by the gov’t to engage in the business of dealing in or of supplying of USA. "Store", "establishment" or "entity": Includes also any individual dealing in the buying and selling of used secondhand articles. "Buy and Sell": Transaction whereby one purchases USAs for the purpose of resale to third persons. "Station Commander": The Station Commander of the Integrated National Police w/in 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. Guidelines for issuance of clearance or permits (IRRs) The Station Commander shall: I. On his own, require the store owner, president manager, or responsible officer to submit an initial affidavit within 30 days from receipt of notice, and once every 15 days within 5 days after the period covered, stating: A. Inventory of items and names and addresses where they were acquired; B. Full list of items for sale, including the time and place of sale; C. Place where items are deposited; D. And to append another affidavit and other documents proving legitimacy of acquisition. II. Upon application for permit/clearance, require the applicant to submit: 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. He must also include the receipt or document showing proof of legitimacy of acquisition. 16
III.
IV. V.
Within 72 hours after receipt of the application, examine the content of the application and the attachments; A. If upon presentation of proof of legitimacy of acquisition of the articles, he finds it sufficient, shall issue the permit; B. If he finds it insufficient, he shall either state the reason therefor in writing or: i. Cause notice to be published, at the expense of applicant; 1. The notice shall contain: a. Articles acquired from unlicensed dealer or supplier; b. The names and addresses of the persons from whom they were acquired; c. That such articles are to be sold or offered for sale to the public at the address of the store seeking the clearance/permit. 2. Notice shall be published a. In a news paper of general circulation for two consecutive days; Or b. In the absence thereof, shall post a notice daily for 1 week on the bulletin board of the municipal building of the town where the store is located; c. In the case of an individual, where the articles in his possession are to be sold or offered for sale. ii. If after 15 days, upon expiration of the period of publication or of the notice, no claim is made to any of the articles, he shall issue the permit or clearance. iii. If before expiration of the 15 days, it shall appear that any of the articles in question is stolen: a. The SC shall hold the article in restraint as evidence in any appropriate case to be filed. b. Articles held in restraint shall be kept and disposed of as the circumstances of each case permit. c. Shall advise/notify the Commission on Audit of the case. If the SC finds the application insufficient, he shall state the reasons for insufficiency in writing. The applicant may appeal the decision of the SC. A. Within 10 days to the PNP District Superintendent and PNP Director; B. Within 10 days from the decision, the decision of the Director may be appealed to the Director-General; C. Within 15 days from the decision, the decision of the Director-Generalmay be appealed to the Secretary of National Defense, which decision is final.
Offender may be prosecuted under the RPC or PD 1612 One who acts as a fence or commits the act of fencing may be prosecuted against either as an accessory to the crime of robbery or theft, OR as a principal under the Anti-Fencing Law. (Dizon-Pamintuan v. People, 234 SCRA 63 [1994]). Fencing versus Robbery Robbery and theft are distinct from fencing. The intent in enacting PD 1612 was to impose heavy penalties on persons who profit from the effects of theft and robbery. (Dizon-Pamintuan v. People, 234 SCRA 63 [1994]). Fencing does not require that the accused participate in the criminal design to commit robbery or theft. (People v. De Guzman, G.R. No. 77368, October 05, 1993).
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Effectivity Date: August 17, 1960 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. 2 ways of violating – the public officer may do the persuading, inducing or influencing of another public officer or he himself may have allowed himself to be persuaded induced of influenced. (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. Punishes 3 distinct acts: 1. demanding or requesting 2. receiving, or 3. demanding, requesting and receiving The elements of Sec 3 (b) are: a. offender if a public officer b. he requested and/or received a gift or consideration c. such was for the public officer’s benefit d. such was requested and/or received in connection with a contract/transaction with the government; and e. the officer has the right to intervene in such a contract/transaction in his official capacity. (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 The elements are the same as in Sec 3 (b) only that what is meant to be secured is a government permit of license. (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.
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(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. Two ways of violating Sec 3 (e): 1. by causing any undue injury to any party, including the government; and 2. by giving any party an unwarranted advantage, benefit or preference. Elements of the crime: 1. accused are public officers or private persons charged in conspiracy with them; 2. public officers commit the prohibited acts during the performance of their official duties or in relation to their positions 3. they cause undue injury to any party, private or the government 4. such injury is caused by giving unwarranted benefits, advantage or preference to such parties; and 5. the public officers have acted with manifest partiality, evident bad faith or gross inexcusable negligence. (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. The dereliction must be without justification AND must be for the purpose of: 1. obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit in favour of an interested party, or 2. discriminating against another 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. Elements of the crime: 1. Offender is a public officer 2. He directly or indirectly has some financial or pecuniary interest in any business, contract or transaction 3. In connection with which he intervenes or takes part in his official capacity, or; 4. in which he is prohibited by the Constitution, or; 5. 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.
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Here, his interest in the transaction is that it shall benefit and/or require 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 or does not participate in the same. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. What is meant by "Receiving any gift"? It includes the act of accepting directly or indirectly a gift from a person other than a member of the public officer's immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive. Exception: Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage, shall be excepted from the provisions of this Act. Rules on family and other private persons: 1. Unlawful to capitalize, exploit or take advantage of family relation or close personal relation with the public officer by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene.
―Family relation‖ shall include the spouse or relatives by consanguinity or affinity in the third civil degree. ―Close personal relation" shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer.
2. Unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Sec 3. Rules on certain relatives: 1. Unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President, Vice-President, President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government. Instances where relation with the above named officials does not disqualify one from doing business with the government:
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a. Not applicable to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business. b. Not applicable to any transaction, contract or application already existing or pending at the time of such assumption of public office. c. Not applicable to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law. d. Not applicable to any act lawfully performed in an official capacity or in the exercise of a profession. Prohibition for Members of Congress Elements: 1. Offender is an incumbent Member of the Congress 2. He acquires or receives any personal pecuniary interest in any specific business enterprise (during his incumbency) 3. Such business enterprise was directly and particularly favored or benefited by any law or resolution 4. Such law or resolution was authored by him which was previously approved or adopted by the Congress during the same term, or; 5. The offender having such interest prior to the approval of such law or resolution authored or recommended by him, continues to retain such interest 30 days after the said approval. 6. Any other public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution, and acquires or receives any such interest during his incumbency is also liable. Statement of Assets and Liabilities True detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year. Every public office shall prepare and file a SAL a. after assuming office, and within the month of January of every other year thereafter, and; b. upon the expiration of his term of office, or; c. upon his resignation or separation from office, d. public officers assuming office less than two months before the end of the calendar year, may file their statements in the following months of January. Where to file: a. with the office of the corresponding Department Head, or b. in the case of a Head of Department or chief of an independent office, with the Office of the President, c. or in the case of Members of the Congress and the officials and employees thereof, with the Office of the Secretary of the corresponding House Dismissal due to unexplained wealth - 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. Properties in the name of the spouse and unmarried children of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown. Bank 21
deposits shall be taken into consideration in the enforcement of this section, notwithstanding any provision of law to the contrary. Other provisions: Prescription of offenses - All offenses punishable under this Act shall prescribe in ten years. Termination of office - No public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery. Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.
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Effectivity Date: June 7, 1995 What Is Hazing? An initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority, or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him/her to do menial, silly, foolish and similar tasks or activities or otherwise subjecting him/her to physical or psychological suffering or injury. Elements Of Hazing 1. An initiation rite or practice prerequisite for admission into membership 2. Placing the recruit in some embarrassing or humiliating situations, OR subjecting him/her to physical or psychological suffering or injury What Is An Organization? It includes any club or the AFP, PNP, PMA or cadet corps of the Citizen’s Military Training, or Citizen’s Army Training. Does It Include The Testing Procedures Of The Abovementions Government Agencies? No. The physical, mental and psychological testing and training procedure and practices to determine and enhance the physical, mental, and psychological fitness of prospective regular members of the AFP and the PNP are not considered as hazing for the purpose of this act. Written Notice A written notice to the school authorities or head of organization 7 days before the conduct of hazing or initiation rites in any form or manner by a fraternity, sorority or organization. The notice includes the period of the initiation activities, not more than 3 days, and also includes the names of those to be subjected. The notice also includes an undertaking that no physical violence may be employed by anybody during such initiation rites. Representatives During Initiation The head of school or organization must assign at least 2 representatives to be present during initiation. The representatives’ duty is to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant. Who Is The Principal In Case The Person Dies Or Suffers Physical Injuries? The officers and members of the fraternity, who actually participated in the infliction of physical harm are liable as principals. 23
Penalties Reclusion perpetual o if death, rape, sodomy or mutilation results therefrom Reclusion temporal in its maximum period o if the victim becomes insane, imbecile, impotent or blind Reclusion temporal in its medium period o if the victim has lost of speech or the power to hear, or to smell o if the victim has lost an eye, a hand, a foot, an arm, or a leg, or shall have lost the use of any such member shall have become incapacitated for the activity or work in which he was habitually engaged. Reclusion temporal in its minimum period o if the victim shall become deformed o have lost any other part of his body, or lost the use thereof o have been ill or incapacitated for the performance or work in which he was habitually engaged for more than 90 days. Prison mayor in its maximum period o If the victim shall have been ill or incapacitated for the performance or work in which he was habitually engaged for more than 30 days Prison mayor in its medium period o Ill or incapacitated for 10 days or more, or o The injury sustained requires medical assistance for the same period Prison mayor in its minimum o Ill or incapacitated from 1 to 9 days, or o The injury sustained requires medical assistance for the same period Prison correccional in its maximum period o Victim sustained physical injuries which do not prevent him from engaging in his habitual activity or work, or doesn’t require medical attendance Administrative Sanctions Officials of the school or the police, military or CAT organization may impose appropriate administrative sanctions even before conviction. The maximum penalty is imposed in the case of: Recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join When the recruit initially consents to join but upon learning that hazing will be committed, is prevented from quitting; When the recruit is prevented from reporting the unlawful acts to his parents/guardians, or the proper school authorities, or the police, through force, violence, threat or intimidation When the hazing is committed outside of the school/institution The victim is below 12 years at the time of the hazing Accomplices The owner of the place where the hazing is conducted is liable as an accomplice when he has actual knowledge but failed to take any action to prevent it from occurring. The parents of the members, if the hazing took place in his or her home, and they have actual knowledge but failed to take any action. The school authorities, including faculty members who consent to the hazing or who have actual knowledge, but failed to take any action
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Other Principals The officers, former officers or alumni of the organization who actually planned the hazing although not present when the acts were committed A fraternity or sorority’s adviser who is present when the acts were committed and failed to take action to prevent it Prima Facie As A Principal Presence of a person during the hazing is prima facie evidence of participation as principal EXEMPTION: he prevented the commission of such acts Notes The mitigating circumstance that there was no intention to commit so grave a wrong is not applicable. Hazing as a prerequisite for employment is covered. Such applies to the president, manager, director or other responsible officer of a corporation. Psychological and emotional suffering is not included in the law.
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Effectivity Date: June 19, 1971 Four Acts Punishable under R.A. 6235: 1. Compelling the pilot of an aircraft of Philippine registry to change course or destination, or otherwise usurping or seizing control while it is in flight. The aircraft is ―in flight‖ when all the exterior doors thereof are closed following embarkation until opened for disembarkation, although it has not moved away. If not in flight, R.A. 6235 is not violated, but it may be considered a crime under the RPC, such as grave threats or coercion. 2. Compelling an aircraft of foreign registry to land in any part of the Philippine territory or usurping or seizing control of such. (no requirement that it be in flight) When the two acts mentioned above are accompanied by murder, rape, homicide or serious physical injuries, a special complex crime is committed. 3. Carrying or loading on board a passenger aircraft operating as a public utility in the Philippines, substances which are corrosive, flammable, explosive, or poisonous. 4. Shipping or loading such substances on a cargo aircraft operating as a public utility in the Philippines in a manner not in accord with the rules and regulations issued by the Air Transportation Office. In passenger aircraft under no. 3, mere carrying or loading of the prohibited materials gives rise to criminal liability; unlike in no. 4, mere carrying is not criminal – the carrying should not be in accordance with the rules and regulation of the ATO to give rise to criminal liability. In cases of injury, damage to property, etc., brought about by carrying or loading prohibited substances, these respective crimes can also be prosecuted under the RPC. In case of damage to property, destructive arson or malicious mischief may be committed. In usurping under nos. 1 and 2, these are qualifying circumstances. Intent is not inquired into as the crime is malumprohibitum. Other Notes on R.A. 6235. Aircraft companies which operate as public utilities, or operators of aircraft which are for hire, are authorized to open and investigate suspicious packages and cargoes in the presence of the (a) owner or shipper, or (b) his authorized representative if present; If the owner or shipper, or his representative, refuses have the same opened and inspected, the airline or carrier is authorized to refuse the loading thereof; Every ticket issued to a passenger by the airline or air carrier should contain a notice of the search requirement, and consequence in case of refusal.
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Effectivity Date: March 23, 2003 1. Declared Policy – Sec. 2 a. Protect and preserve the integrity and confidentiality of bank accounts and ensure that the Philippines shall not be used as a money laundering site for the proceeds of any unlawful activity. 2. Covered Institutions – Sec. 3(a) a. Banks, non-banks, quasi-banks, trust entities, and other entities, their subsidiaries and affiliates, supervised/regulated by BSP b. Insurance companies and other entities supervised/regulated by Insurance Commission c. SEC supervised/regulated entities2 3. Obligations of Covered Institutions – Sec. 9 a. Customer Identification: Establish and record, and maintain a system of verifying true identities of clients, including legal existence and organizational structure of corporate clients, and their representatives, based on official documents. Anonymous accounts, accounts under fictitious names, and other similar accounts are absolutely prohibited. b. Record Keeping: Keep records for 5 years counted from dates of the transactions. In case of closed accounts, within 5 years from dates when they were closed. c. Reporting of Covered and Suspicious Transactions: Report Covered Transactions and Suspicious Transactions to AMLC3, within 5 working days from occurrence, which shall not violate the Law on Secrecy of Bank Deposits, FCDA, and GBL. The period can be extended to 10 working days whenever prescribed by the Supervising Authority. The fact that a covered transaction report was made, its contents, and other information in relation thereto shall not be communicated to any person, entity or media. 4. Covered Transactions: Transaction, in cash or other equivalent monetary instrument involving a total amount in excess of P500,000 within 1 banking day – Sec. 3(b) 5. Suspicious Transactions: Transaction with Covered Institution, regardless of amount involved, where any of the enumerated suspicious circumstances exist – Sec. 3(b-1) a. There is no underlying legal or trade obligation, purpose, or economic justification b. The client is not properly identified c. Amount involved is not commensurate to the business or financial capacity of the client 2 (a) Securities dealers, brokers, salesmen, investment houses, and other entities managing securities or rendering services as investment agents, advisor, or consultants; (b) Mutual funds, closed-end investment companies, common trust funds, pre-need companies, and other similar entities; (c) Foreign exchange corporations, money changers, money payment, remittance, and transfer companies, and other similar entities; (d) Other entities administering or dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property 3 Anti-Money Laundering Council
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d. Clients transaction is structured in order to avoid the subject of reporting requirements e. Any circumstance which is observed to deviate from the profile of the client and/or his past transaction with the covered institution f. Transaction is related to an unlawful activity or offense g. Any transaction similar or analogous to the foregoing 6. Money-Laundering Crime: Committed when the proceeds of an Unlawful Activity are transacted to make them appear to have originated from legitimate sources, by the following acts: – Sec. 4 a. Transacting or attempting to transact, with monetary instrument or property, knowing it represents, involves, or relates to proceeds of any Unlawful Activity b. Facilitating money-laundering referred to in Item (a) above, by failing to perform an act c. Failing to disclose and file report with AMLC of any monetary instrument or property as required under AMLA 7. Unlawful Activities or Predicate Crimes: Act or omission or series or combination thereof, involving or having relation to the crimes enumerated – Sec. 3(i) a. Kidnapping for ransom b. Drug trafficking, sale, trading, administration, delivery, manufacture, importation, possession, and use c. Graft and corrupt practices d. Plunder e. Robbery and extortion f. Jueteng and masiao g. Piracy on the high seas h. Qualified theft i. Swindling j. Smuggling k. Violations of the E-Commerce Act of 2000 l. Hijacking, destructive arson and murder, including acts of terrorism against non-combatant persons and similar targets m. Fraudulent practices under the Securities Regulation Code n. Felonies or offenses of similar nature that are punishable under the penal laws of other countries. 8. Jurisdiction: – Sec. 5 a. Regional Trial Court – all cases on money laundering b. Sandiganbayan – committed by public officers and private persons who are in conspiracy with the public officer 9. Prosecution – Sec. 6 a. Person can be charged and convicted for both offenses: money laundering and the unlawful activity (as defined in Sec 3(i)) b. Proceeding for the unlawful activity shall proceed first without prejudice to freezing and other remedies provided in AMLA 10. Prohibition against Political Harassment: No case may be filed against and no assets shall be frozen to the prejudice of a candidate for an electoral office during election period– Sec. 16 11. Penalties and Other Consequences a. Penalties – Sec. 14 (i) Money laundering 28
(ii) (iii) (iv) c. Civil
Failure to keep records Malicious reporting Breach of confidentiality Forfeiture – Sec. 12 Rules on Civil Forfeiture4; Republic v. Glasgow Credit and Collection Services, Inc., 542 SCRA 95 (2008): 2 conditions: (1) there is a suspicious transaction report or a covered transaction report deemed suspicious after investigation by AMLC; and (2) court has, in a petition filed for the purpose, ordered seizure of any monetary instrument or property related to such report. Criminal action for an unlawful activity is not a prerequisite for institution of civil forfeiture proceeding, which is in rem.
12. Freezing of Accounts: Issued by Court of Appeals upon ex-parte application of AMLC after determination of probable cause that monetary instrument or property is in any way related to Unlawful Activity, effective immediately and for a period of 20 days unless extended – Sec. 10 13. Examination of Accounts – Sec. 11 a. Upon order of a competent court based on an ex parte application in cases of violation of the AMLA where there is probable cause of money laundering, AMLC may inquire into and examine any particular deposit or investment, including related accounts, except that no court order is required in cases of kidnapping for ransom, drug trafficking, hijacking, destructive arson and murder, including those perpetrated by terrorists against noncombatants and similar targets. b. BSP inquiry into or examination of deposits or investments with any bank, when the inquiry or examination is made in the course of the BSP’s periodic of special examination of said bank to ensure compliance with AMLA 14. AMLC; Composition and Powers – Sec. 7 a. Chairman: Governor of the BSP; Members: Commissioner of Insurance Commission and Chairman of the SEC b. Powers: (1) to require and receive covered transaction reports from covered institutions; (2) to issue orders addressed to the appropriate Supervising Authority or the covered institution to determine the true identity of the owner of any monetary instrument or property subject of a covered transaction report or request for assistance from a foreign State, or believed by the Council, on the basis of substantial evidence, to be, in whole or in part, wherever located, representing, involving, or related to, directly or indirectly, in any manner or by any means, the proceeds of an unlawful activity; (3) to institute civil forfeiture proceedings and all other remedial proceedings through the Office of the Solicitor General; (4) to cause the filing of complaints with the Department of Justice or the Ombudsman for the prosecution of money laundering offenses; (5) to initiate investigations of covered transactions, money laundering activities and other violations of this Act; (6) to freeze any monetary instrument or property alleged to be proceeds of any unlawful activity; (7) to implement such measures as may be necessary and justified under this Act to counteract money laundering; (8) to receive and take action in respect of, any request from foreign states for assistance in their own anti-money laundering operations provided in this Act;
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SC Circular A.M. No. 05-11-04-SC
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(9) to develop educational programs on the pernicious effects of money laundering, the methods and techniques used in money laundering, the viable means of preventing money laundering and the effective ways of prosecuting and punishing offenders; and (10) to enlist the assistance of any branch, department, bureau, office, agency or instrumentality of the government, including government-owned and -controlled corporations, in undertaking any and all anti-money laundering operations, which may include the use of its personnel, facilities and resources for the more resolute prevention, detection and investigation of money laundering offenses and prosecution of offenders 15. Mutual Assistance among States: Governed by the Principles of Mutuality and Reciprocity – Sec. 13 AMLC may request for assistance from any foreign State by: a. Tracking down, freezing, restraining, and seizing assets alleged to be the proceeds of unlawful activity; b. Giving information needed by the foreign state; c. Applying for an order of forfeiture of any monetary instrument or property in court.
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Effectivity Date: February 5, 2010 PURPOSE OF THE LAW Penalizes acts that would destroy the honor, dignity and integrity of a person PROHIBITED ACTS 1. To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, pubic area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy. 2. To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration. It is immaterial if consent to record or take photo or video coverage of the same was given by such person/s. 3. To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof. It is immaterial if consent to record or take photo or video coverage of the same was given by such person/s. 4. To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device. It is immaterial if consent to record or take photo or video coverage of the same was given by such person/s. 2, 3 & 4 – applies even when there is consent to record or to take photo; person who sells or copies would still be liable CIRCUMSTANCES IN WHICH A PERSON HAS REASONABLE EXPECTATION OF PRIVACY 1. A person may remove his or her clothes in privacy, without being concerned that somebody might see him or her. (i.e., dressing rooms, fitting rooms, public bathrooms) 2. A person believes that the public will not see his/her private part, even if he or she is in a private or public place. (i.e., a woman’s underwear when she’s wearing skirts) PENALTY Not less than 3 years; not more than 7 years Not less than 100k; not more than 500k Court may impose a fine, imprisonment, or both. If juridical person, license/franchise may be revoked o Persons liable: officers, including editor/report, or station manager, editor, broadcaster Public officer, employee, or a professional – administratively liable Alien – deportation proceedings after service of sentence and fine payment 31
INADMISSIBILITY AS EVIDENCE GR: any record or copy obtained or secured violation of the above sections shall not be admissible in evidence in any judicial, quasi-judicial, legislative, or administrative hearing or investigation EXEMPTION TO THE ADMISSIBILITY A peace officer, authorized by a court order, may use the record or any copy of such as evidence in proceedings or trial of the crime of photo/video voyeurism, provided: o That an order is issued upon written application; showing of reasonable grounds to believe that such has been committed or about to be committed; evidence is essential to the conviction NOTES Only female breasts are covered; male breasts are not. Even if the nipples are not seen or shown, a part of the female breast or any portion thereof is still covered by the law. Even if the private parts are covered by underwear, it is still covered by the law. The law provides that such parts may be naked or clad with undergarments. Even if the offended party consented to the recording or making of the photo, but the not to the broadcasting or sharing, the offending party may still be held liable under the law.
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Effectivity Date: August 8. 1974 Piracy, defined (P.D. 532): Any attack upon or seizure of any vessel, OR the taking away of the whole or part of its cargo, equipment, personal belongings (irrespective of value); By means of violence against or intimidation of persons or force upon things; By any person, including a passenger or member of the complement of the vessel; In Philippine waters. Qualifiying Circumstances: If physical injuries or other crimes are committed as a result or on occasion thereof (not found in RPC Piracy); If committed with rape, murder or homicide; If victims abandoned without means of saving themselves If seizure is accomplished by firing upon or boarding the vessel. Two Laws on Piracy: Article 122 of the RPC, and P.D. 532, distinctions. On malefactors, the RPC Piracy involves persons who are NOT members of the complement of a vessel nor a passenger (outsiders); P.D. 532, on the other hand, embraces any person, even passengers or members of the complement; In effect, P.D. 532 expands the coverage of the law regarding persons who may commit piracy; As to the locus of the crime, the RPC Piracy involves piracy in the high seas and Philippine waters; whereas P.D. 532 Piracy covers only Philippine waters; As to qualifying circumstances, the RPC Piracy is qualified by boarding or firing upon the vessel to seize it; by abandoning the victims without means of saving themselves; or by committing the crime of murder, homicide, physical injuries, or rape (only four crimes); P.D. 532 embraces the same qualifying circumstances, except that ―other crimes‖ are included as qualifying. In effect, any crime can qualify piracy in P.D. 532; There is no contradiction nor ambiguity between Art. 122 of the RPC and P.D. 532; hence, Art. 122 of the RPC, as amended, and P.D. 532, exist harmoniously as separate laws. Piracy, discussion. Piracy is committed whether the vessel is anchored or moving, as long as it is committed aboard the vessel, since the law does not distinguish; Under the RPC, if the offenders are passengers or crew, the crime is robbery, as piracy can only be committed by outsiders;
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Piracy is an exception to territoriality in criminal law. Hence, Philippine courts have jurisdiction over piracy committed in the high seas and even in countries outside its territorial jurisdiction Piracy is a crime against the whole world (hosteshumani generis).
Highway Robbery/Brigandage, defined. Seizure of any person; For ransom, extortion, or other unlawful purposes; Or the taking away of property of another; By means of violence against or intimidation of person or force upon things or other unlawful means; Committed by any person; On any Philippine Highway. Qualifying Circumstances: If physical injuries or other crimes are committed during or on occasion thereof; If kidnapping for ransom or extortion, murder or homicide, or rape is committed as a result or on occasion thereof. Highway Robbery/Brigandage, discussed. Philippine Highway refers to any road, street, passage, highway and bridges or other parts thereof, railroads and railway within the Philippines; To convict for highway robbery, the prosecution should prove that the accused were organized to commit robbery indiscriminately; Indiscriminate robbery – purpose of brigandage is to victimize any person, or if the robbery is not an isolated case (if only a particular robbery, it is only robbery or robbery in band). Two Laws on Brigandage, Art.306 of RPC and P.D. 532, discussion. Brigandage under P.D. 532 contemplates that the offender moves from place to place, and plunders any victim he may come across, regardless of whether the victim has the potential of being robbed of something or nothing; There is no preconceived victim under P.D. 532; if there were a preconceived victim in mind, although committed in a highway, the crime is robbery under Art. 294 of the RPC; What is penalized under Art. 306 of the RPC is the mere formation of a band, whose purpose is to commit highway robbery; it is brigandage only under the RPC as long as they have not carried out their purpose; In brigandage, those who participate in the loot commit the crime of abetting brigandage; they are neither accessories nor fence, they are accomplices; The number of offenders in highway robbery is no longer an essential element (used to be at least four); Other Notes on P.D. 532: Abettors of piracy and brigandage are punished as accomplices; There is a presumption that the acts of abettors are committed knowingly.
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Effectivity Date: July 27, 1991 Definition Of Terms Public Officer - Any person holding any public office in the Philippine Government by virtue of an appointment, election or contract. Government - It includes the National Government, and any of its subdivisions, agencies or instrumentalities, including GOCCs and their subsidiaries. Person - It includes any natural or juridical person, unless the context indicates otherwise. Persons Who Can Be Guilty Of Plunder 1. Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt criminal acts in the aggregate amount or total value of at least P50 million. 2. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. Ill-Gotten Wealth Any asset, property, business enterprise or material possession of any person, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of specific or similar criminal means or schemes. Means Of Acquiring Ill-Gotten Wealth 1. Misappropriation, conversion, misuse, or malversation: Public funds or raids on the public treasury 2. Receive (directly or indirectly) in connection with any government contract or project or by reason of the office or position : Commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity 3. Illegal or fraudulent conveyance or disposition : Assets of the Government or any of its subdivisions, agencies or instrumentalities or GOCCs and their subsidiaries 4. Obtaining, receiving or accepting (directly or indirectly) in any business enterprise or undertaking : Shares of stock, equity or any other form of interest or participation including promise of future employment 5. Establishing the ff. to benefit particular persons or special interests : Agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders 6. Taking undue advantage of the following to unjustly enrich himself at the expense and to the damage and prejudice of the country and its citizens : Official position, authority, relationship, connection or influence
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Total Value Or Aggregate Amount Of Ill-Gotten Wealth The ill-gotten wealth must be at least P50 Million. (as amended by R.A. 7659) Penalties Reclusion perpetua to death. (as amended by R.A. 7659) Determination Of Penalty In the imposition of penalties, the degree of participation and the attendance of mitigating circumstances shall be considered by the court. Forfeiture Of The Ill-Gotten Wealth In Favor Of The State Any or all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof shall be forfeited in favor of the State. Court Of Competent Jurisdiction The Sandiganbayan in its original jurisdiction, until otherwise provided by law. Establishing The Crime Of Plunder By Means Of Evidence It shall not be necessary to prove each and every criminal act done by the accused. It is sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. Suspension From Office Any public officer against whom any criminal prosecution under a valid information under this Act in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Effect Of Conviction By Final Judgment The public officer shall lose all retirement or gratuity benefits under any law. Effect Of Acquittal The public officer shall be entitled to reinstatement and to the salaries and other benefits which he failed to receive during suspension, unless in the meantime, administrative proceedings have been filed against him. Prescription Of The Crime Of Plunder The crime of plunder prescribes in 20 years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches, or estoppel. Jurisprudence The crime of plunder is considered as mala in se and therefore the mensrea or criminal intent must also be proved. (Estrada vs. Sandiganbayan) The words ―combination‖ and ―series‖ should be interpreted in their natural, plain and ordinary acceptation and signification.(Estrada vs. Sandiganbayan)
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Effectivity Date: March 5, 1995 Work, Education Or Training-Related Sexual Harassment 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 or by 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. HOW COMMITTED: demands, requests or otherwise requires any sexual favor from the other regardless of whether the demand, request or requirement for submission is accepted Work-Related Or Employment Environment Sexual Harassment: 1. Sexual favor is made as a condition in hiring or in the employment, re-employment or continued employment of said individual or in granting said individual favorable compensation, terms of 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 ordiminish 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. Education Or Training Environment, Sexual Harassment: 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 consideration; or 4. When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice. Duty Of The Employer Or Head Of Office In A Work-Related, Education Or Training Environment: 1. Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing for the investigation of sexual harassment cases and administrative sanctions therefor. 2. Create a committee on decorum and investigation of cases on sexual harassment. a. In case of work-related environment, the committee shall be composed of at least 1 representative each from the management, the union, if any, the employees form the supervisory rank and from the rank and file employees. 37
b. In case of the educational or training institution, the committee shall be composed of at least 1 representative from the administration, the trainors, instructors, professors, or coaches and students or trainees, as the case may be. Solidary Liability Of The Employer The employer or head shall be solidarily liable for damages arising from the acts of sexual harassment committed in the employment, education or training environment if such employer is informed of such acts by the offended party and no immediate action is taken. But nothing in the law shall preclude the victim from instituting a separate and independent action for damages and other affirmative relief. Penalties Imprisonment of not less than 1 month nor more than 6 months OR A fine of not less than P 10, 000.00 nor more than P 20, 000.00 OR Both at the discretion of the court Jurisprudence Sexual harassment in the workplace is not about a man taking advantage of a woman by reason of sexual desire; it is about power being exercised by as superior officer over his women subordinates. The power emanates from the fact that the superior can remove the subordinate from his workplace if the latter would refuse his amorous advances (Floralde v. Court of Appeals, G.R. No. 123048, 8 August 2000). A violation of this law calls for a demand, request or requirement of a sexual favor either in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender (Domingo v. Rayala, G.R. No. 155831, 8 February 2000).
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Effectivity Date: August 26, 1972 Definition TORTURE refers to an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession; punishing him for an act he or a third person has committed or is suspected of having committed; or intimidating or coercing him or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority. Offenders are mainly a person in authority or agents of such persons, though private persons can be liable also as principal by conspiracy as direct participator, inducer, or indispensable cooperator (usually superior military, police, law enforcement officer or immediate commanding officer of AFP/PNP). Accomplices are punished as principals, based on Section 13 which states that any person ―who cooperated in the execution of the act of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts shall be liable as principal.‖ Examples: o Physical Beating, head bangin, punching, kicking Electric shock Submersion of head in water until the brink of suffocation Rape and sexual abuse Asphyxiation o Mental/ psychological Blindfolding Threatening victim or his relatives with bodily harm, execution or other wrongful acts Confinement in solitary cells or secret detention places Prolonged interrogation Kinds Of Torture Physical torture o Involves treatment or punishment inflicted by a person in authority or his agent upon another in his custody causing severe pain, exhaustion, disability or dysfunction of one or more parts of the body Mental/ psychological torture o Involves treatment or punishment which affects or confuses the mind and/or undermines one’s dignity and morale Other cruel, inhuman and degrading treatment or punishment 39
o
Refers to deliberate and aggravated treatement or punishment other than acts of torture against a person under his custody at a level of severity causing suggering, gross humiliation, or debasement to the victim (assessment of severity depends on all circumstances)
Penalty Reclusion perpetua o Torture with homicide o Torture resulting in mutilation o Torture with rape o Torture with other forms of sexual abuse (resulting into the imbecility, impotence, insanity of victim) o Torture committed against children Offender is exluded from any special amnestly law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions Relationship With RPC And Other Laws The Revised Penal Code is suppletory to RA 9475 (Section 22). Torture as a crime shall not absorb or shall be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commision thereof. In which case, it shall be treated as a separate and independent criminal act whose penalties shall be imposable without prejudice to any other criminal liability provided for by domestic and international laws. No person shall be expelled, returned, or extradited to another State where there are substantial grounds to believe that such person shall be in danger of being subjected to torture (Refouler rule under Section 17)
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Effectivity Date: June 19, 2003 Punishable Acts ―Trafficking in persons‖ refers to the following unlawful acts committed by any person, natural or juridical: a. To recruit, transport, transfer, harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; b. To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; c. To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage; d. To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation; e. To maintain or hire a person to engage in prostitution or pornography; f. To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; g. To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; and h. To recruit, transport or adopt a child to engage in armed activities in the Philippines or abroad.
The following ―acts that promote trafficking in persons‖ shall likewise be unlawful: a. To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons; b. To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons; c. To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons; d. To assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to 41
provide pre-departure registration and services for departing persons for the purpose of promoting trafficking in persons; e. To facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons; f. To confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; and g. To knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery.
The following acts are deemed ―qualified trafficking in persons‖: a. When the trafficked person is a child; b. When the adoption is effected through Republic Act No. 8043, otherwise known as the "InterCountry Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; c. When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group; d. When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; e. When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies; f. When the offender is a member of the military or law enforcement agencies; and g. When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS).
Institutional Mechanisms for the Protection and Support of Trafficked Persons Who may file complaint for trafficking: a. Any person who has personal knowledge of the commission of any offense under this Act; b. The trafficked person; c. The parents; d. The spouse; e. The siblings; f. The children; or g. The legal guardian.
Where complaint for trafficking may be filed: a. Where the offense was committed; b. Where any of its elements occurred; or c. Where the trafficked person actually resides at the time of the commission of the offense. Provided, That the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts.
Confidentiality provision: At any stage of the investigation, prosecution and trial of an offense
under this Act, law enforcement officers, prosecutors, judges, court personnel and medical practitioners, as well as parties to the case, shall recognize the right to privacy of the trafficked person and the accused.
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Prescriptive period: Trafficking cases under this Act shall prescribe in ten (10) years: Provided, however, That trafficking cases committed by a syndicate or in a large scale shall prescribe in twenty (20) years. Preventive, protective and rehabilitative programsfor trafficked persons shall be implemented by government agencies such as the DFA, DSWD, DOLE, DOJ, NCRFW, BI, PNP, POEA, DILG, and LGUs. Trafficked persons shall be recognized as victims of the act or acts of trafficking and as such shall not be penalized for crimes directly related to the acts of trafficking enumerated in this Act or in obedience to the order made by the trafficker in relation thereto. In this regard, the consent of a trafficked person to the intended exploitation set forth in this Act shall be irrelevant. Any provision of Republic Act No. 6981 to the contrary notwithstanding, any trafficked person shall be entitled to the witness protection program provided therein. Subject to the guidelines issued by the Inter-Agency Council Against Trafficking, trafficked persons in the Philippines who are nationals of a foreign country shall also be entitled to appropriate protection, assistance and services available to trafficked persons under this Act: Provided, That they shall be permitted continued presence in the Philippines for a length of time prescribed by the Council as necessary to effect the prosecution of offenders. The following mandatory services to trafficked persons shall be made available by concerned government agencies to ensure the victims’ recovery, rehabilitation and reintegration into the mainstream of society: a. Emergency shelter or appropriate housing; b. Counseling; c. Free legal services which shall include information about the victims' rights and the procedure for filing complaints, claiming compensation and such other legal remedies available to them, in a language understood by the trafficked person; d. Medical or psychological services; e. Livelihood and skills training; and f. Educational assistance to a trafficked child. Sustained supervision and follow through mechanism that will track the progress of recovery, rehabilitation and reintegration of the trafficked persons shall be adopted and carried out.
Other services for trafficked personsinclude legal assistance and Overseas Filipino Resource Centers under Republic Act No. 8042, and The Country Team Approach under Executive Order No. 74 of 1993. The DFA, in coordination with DOLE and other appropriate agencies, shall have the primary responsibility for the repatriation of trafficked persons, regardless of whether they are documented or undocumented. The DOJ, in consultation with DFA, shall endeavor to include offenses of trafficking in persons among extraditable offenses.
Penalties and Sanctions If found guilty of any of the acts of trafficking in persons: imprisonment of twenty (20) years and a fine of not less than Php1,000,000.00but not more than Php2,000,000.00. If found guilty of any of the acts that promote trafficking in persons:imprisonment of fifteen (15) years and a fine of not less than Php500,000.00 but not more than Php1,000,000.00. If found guilty ofqualified trafficking in persons:life imprisonment and a fine of not less than Php2,000,000.00 but not more than Php5,000,000.00. If found guilty of breaching the confidentiality provision: imprisonment of six (6) years and a fine of not less than Php500,000.00 but not more than Php1,000,000.00. If the offender is a corporation, partnership, association, club, establishment or any juridical person, the penalty shall be imposed upon the owner, president, partner, manager, and/or any responsible 43
officer who participated in the commission of the crime or who shall have knowingly permitted or failed to prevent its commission. The registration with the Securities and Exchange Commission (SEC) and license to operate of the erring agency, corporation, association, religious group, tour or travel agent, club or establishment, or any place of entertainment shall be cancelled and revoked permanently. The owner, president, partner or manager thereof shall not be allowed to operate similar establishments in a different name. If the offender is a foreigner, he shall be immediately deported after serving his sentence and be barred permanently from entering the country. Any employee or official of government agencies who shall issue or approve the issuance of travel exit clearances, passports, registration certificates, counseling certificates, marriage license, and other similar documents to persons, whether juridical or natural, recruitment agencies, establishments or other individuals or groups, who fail to observe the prescribed procedures and the requirement as provided for by laws, rules and regulations, shall be held administratively liable, without prejudice to criminal liability under this Act. The concerned government official or employee shall, upon conviction, be dismissed from the service and be barred permanently to hold public office. His/her retirement and other benefits shall likewise be forfeited. Conviction by final judgment of the adopter for any offense under this Act shall result in the immediate rescission of the decree of adoption. Any person who buys or engages the services of trafficked persons for prostitution shall be penalized as follows: First offense - six (6) months of community service as may be determined by the court and a fine of Php50,000.00; and Second and subsequent offenses - imprisonment of one (1) year and a fine of Php100,000.00.
In addition to the penalty imposed for the violation of this Act, the court shall order the confiscation and forfeiture, in favor of the government, of all the proceeds and properties derived from the commission of the crime, unless they are the property of a third person not liable for the unlawful act; Provided, however, That all awards for damages shall be taken from the personal and separate properties of the offender; Provided, further, That if such properties are insufficient, the balance shall be taken from the confiscated and forfeited properties.
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Effectivity Date: March 8, 2004 Define “violence against women and their children”. It refers to any act or a series of acts committed by any person against: 1) a woman who is a) his wife, former wife, or b) with whom the person has or had a sexual or dating relationship, or c) with whom he has a common child, or 2) her child a) whether legitimate or illegitimate, b) within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse. Enumerate the specific acts of violence penalized under the law. 1) Physical Violence – acts that include bodily of physical harm e.g. battering, assault, coercion, harassment or arbitrary deprivation of liberty 2) Sexual Violence – act which is sexual in nature e.g. rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim’s body, forcing her to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser, prostituting the woman or her child 3) Psychological Violence – acts or omissions causing or likely to cause mental or emotional suffering of the victim e.g. intimidation, harassment, staking, damage to property, public ridicule or humiliation, repeated verbal abuse, marital infidelity 4) Economic Abuse – acts that make or attempt to make a woman financially dependent e.g. withdrawal of financial support or preventing victim from engaging in any legitimate profession, occupation, business or activity, deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common, destroying household property, controlling the victim’s own money or properties What court has original and exclusive jurisdiction over cases of violence against women and children? The Regional Trial Court designated as a Family Court where the offense was committed. In the absence of such, it shall be filed in the Regional Trial Court where the crime or any of its elements was committed at the option of the complainant.
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Enumerate the protective policies under the law. 1) Protection Orders are issued upon application to prevent further acts of violence against a woman or her child and granting other necessary relief: a) Barangay Protection Order (BPO) b) Temporary Protection Order (TPO) c) Permanent Protection Order (PPO) 2) Battered Woman Syndrome as a Defense – victims who are found by courts to be suffering from BWS do not incur criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the RPC. Who is a battered woman? One who is repeatedly subjected to any forceful physical or psychological behaviour by a man in order to coerce her to do something he wants her to do without concern for her rights Includes wives or women in any form of intimate relationship with men To be classified as such, the couple must go through the battering cycle at least twice What is the Battered Woman Syndrome (BWS)? It is characterized by the ―cycle of violence‖ which has three phases: 1) Tension-building phase – minor battering occurs in the form of verbal, physical abuse or other form of hostile behavior 2) Acute battering incident – characterized by brutality, destructiveness, and sometimes, death 3) Tranquil, loving phase – where the batterer may show a tender and nurturing behaviour towards his partner BWS as a ground for self-defense: For the BWS to absolve the accused, she must prove that all three phases of cycle of violence have occurred at least twice. BWS as a mitigating circumstance: If the invocation of self-defense fails, the BWS may give rise to two mitigating circumstances: 1) Psychological paralysis or dimution of freedom of action, intelligence or intent analogous to illness that diminishes exercise of will power without depriving her of consciousness of her acts 2) Passion and obfuscation, of having acted upon an impulse so powerful as to have naturally produced such (Hypothetical questions raised in class) A is dating B. A had two children in his first marriage, and B had the same. Now they are dating. If A will hurt his own child, will he be liable under VAWC? NO. A will be liable under the law on Child Abuse. Can a woman be convicted of VAWC? YES. As long as the victim is a woman or a child, as defined in the law. A victim who is a man is not covered by the law.
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Effectivity Date: June 19, 1965 Acts prohibited R.A. 4200 prohibits any person, not being authorized by all the parties to any private communication or spoken word: a. to tap any wire, or cable, 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, dictagraph, detectaphone, walkie-talkie, tape recorder, or however otherwise described,5 b. to knowingly possess any tape record, wire record, disc record, or any other such record, 6 c. to replay the same for any other person or persons,7 or d. to communicate the contents thereof, whether complete or partial, to any other person.8 The recording of private conversations without the consent of the parties contravenes the provisions of Rep. Act No. 4200, otherwise known as the Anti-Wire Tapping Law, and renders the same inadmissible in evidence in any proceeding. The law covers even those recorded by persons privy to the private communications.9 Purpose The purpose of the law is to protect a person’s right to privacy over the communications made by him to another person. However, this can be subject to a limitation when the communication involved is a matter of important public concern. The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public concern—the Constitution guarantees the people’s right to information on matters of public concern.10 The statute’s intent to penalize all persons unauthorized to make such recording underscored by the use of the qualifier ―any.‖ Consequently, even a person privy to a communication who records his private conversation with another without the knowledge of the latter qualifies as a violator of R.A. 4200.11 Penalty A person who is found guilty of the abovementioned acts shall be punished by imprisonment of not less than six (6) months but not more than six (6) years, which may also carry with it the accessory penalty of absolute perpetual disqualification from public office should the offender be a public official at the time Sec. 1(1), R.A. 4200. Sec. 1(2), R.A. 4200. 7 Id. 8 Id. 9 Mamba v. Garcia, 359 SCRA 426 (2001). 10 Chavez v. Gonzales, 545 SCRA 441 (2008). 11 Ramirez v. Court of Appeals, 248 SCRA 590 (1995). 5 6
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of the commission of the offense. Should the offender be an alien, he shall immediately be subject to deportation proceedings.12 Inadmissibility of evidence Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning f the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the law shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.13 Wire-tapping, when valid Where a peace officer, under the authority of a written order of the Court, commits such acts otherwise declared unlawful by R.A. 4200 in cases involving: a. Treason; b. Espionage; c. Provoking war and disloyalty in case of war; d. Piracy; e. Mutiny in the high seas; f. Rebellion; g. Conspiracy and proposal to commit rebellion; h. Inciting to rebellion; i. Sedition; j. Conspiracy to commit sedition; k. Inciting to sedition; l. Kidnapping as defined by the Revised Penal Code; and m. Violations of Commonwealth Act No. 616 (punishing espionage and other crimes against national security. Such officer shall not be considered violating the law provided that such written order was issued and granted upon written application and examination under oath or affirmation of the applicant and the witnesses that he may produce showing reasonable grounds to believe that the abovementioned crimes has been committed, being committed, or about to be committed.14 There should also be belief that evidence that will be acquired will be essential for conviction, and that there are no other means readily available to obtain such evidence.15 In cases of rebellion, conspiracy and proposal to omit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition have actually been or are being committed (i.e., not about to be committed).16
Sec. 2, R.A. 4200. Sec. 4, R.A. 4200. 14 Sec. 3, R.A. 4200. 15 Id. 16 Id. 12 13
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Effectivity Date: September 9, 1955 State Policy: Give encouragement to the people to deposit their money in banking institutions and to discourage private hoarding so that the same may be properly utilized by banks in authorized loans to assist in the economic development of the country. Scope: General Rule: All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government, its political subdivisions and its instrumentalitiesare considered absolutelyconfidential and may NOT be examined inquired or looked into by any person, government official, bureau or office. o Exceptions: upon written permission of the depositor; cases of impeachment; upon order of a competent court in cases of bribery or dereliction of duty of public officials; and cases where the money deposited or invested is the subject matter of the litigation. Punished Acts: Disclosure of any information concerning said deposits by any official or employee of a banking institution to any person other than those provided for. Penalty: Imprisonment of not more than 5 years OR a fine of not more than Pho 20,000OR both, in the discretion of the court.
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Effectivity Date: April 18, 1979 Elements of the crime: 1. The making, drawing and issuance of any check to apply or account or for value; 2. The knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; 3. The subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment Other Punishable Acts: Failure to keep sufficient funds or to maintain a credit to cover the full amount of the check drawn if presented within a period of 90 days from the date appearing thereon, for which reason it is dishonored Penalty: Admin Circular 13-2001 has amended the penalties found in BP Blg. 22: o The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice. o Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment. If drawn by a corporation, it shall be imposed on the person/s who actually signed the check on behalf of the drawer Prosecution hereunder is without prejudice to any liability under the RPC Evidence of Knowledge of Insufficient Funds: The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within 90 days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or creditunless: o such maker or drawer pays the holder the amount due; or o makes arrangements for payment in full by the drawee of such check within 5 banking days after receiving notice that such check has not been paid by the drawee. Duty of Drawee: When refusing to pay the holder upon presentment of the check, the drawee must: 50
o o
Write, print or stamp, in plain language, or attach thereto the reason for dishonor and refusal to pay Explicitly state, in the notice of dishonor or refusal, that there are insufficient funds in or credit with the drawee bank, notwithstanding receipt by it of an order to stop payment
Rule on Evidence: The dishonored check, having the drawee’s refusal to pay written, stamped or attached thereto along with the reason thereof shall be prima facie evidenceof: o the making or issuance of said check; o the due presentment to the drawee for payment; o the dishonor thereof; and o that the same was properly dishonored for the reason stated therein Notes: Rationale: public interest Credit- arrangement or understanding with the bank for the payment of such check Gravamen of the offense is the act of issuing a worthless check or a check that is dishonored upon its presentment for payment B.P. 22 creates a presumption juristantum that the second element prima facie exists when the first and third elements of the offense are present—but such may be rebutted o The maker’s knowledge is presumed from the dishonor of the check for insufficiency of funds B.P. 22 is a continuing/ transitory offense o Venue is determined by the place where the elements of making, issuing or drawing of the check and delivery thereof are committed o May be tried in any jurisdiction where the offense was in part committed Important periods: 1. 5 banking days- maker or issuer must make arrangements to make good the check to escape criminal liability for issuing a rubber check; 2. 90 days- maintain sufficient funds within this period of time to destroy the prima facie presumption of knowledge of insufficiency of funds to back up the check; 3. 180 days- failure of payee to deposit or encash the check within this period will make the check stale or valueless, hence, no criminal action can arise therefrom All kinds of checks are covered by the law For the presumption of knowledge of insufficiency of funds to arise the maker must receive a notice of dishonor and, within 5 banking days thereafter failed to satisfy the amount of the check or make arrangements for its payment o Must be in writing o For corporations, the notice must be personal to the maker There is nothing in the text of B.P. 22 which would prevent the RPC from supplementing it B.P. 22 ESTAFA Even though the check was issued in payment Checks should be issued concurrently and of a pre-existing obligation, liability is reciprocally in payment of the exchange incurred consideration. Check should not be for a preexisting obligation Damage or deceit id immaterial Damage and deceit are essential Crime against public interest (disastrous effect Crime against property to the stability of banking system and 51
prejudice to economy) Only drawer is liable; if juridical person, the officer who signed the check. Indorser is NOT liable Drawer given 5 banking days from notice of dishonor to make good the check Malumprohibitum o o
Drawer and indorsee liable if the latter was aware at time of indorsement of insufficiency of funds Drawer given only 3 days after notice to make good the check Mala in se
No double jeopardy for B.P. 22 and estafa Both offenses are and should be treated as separate offenses and their respective essential ingredients need to be proven
Defenses against B.P. 22: 1. Check was not issued to apply to an account or for value but as a guarantee deposit 2. Required notice of dishonor had not been given 3. Dishonor was not due to insufficiency of funds 4. Check was presented for payment beyond 180 days from maturity 5. Valid cause to stop payment (installment buyer under P.D. 957—townhouse buyers) 6. Complainant was informed by issuer beforehand that the account had been closed Failure or lack of consideration is NOT a defense
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Effectivity Date: December 10, 1974 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 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 other suitable person who shall be responsible for his appearance whenever required.
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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. 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 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. 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 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.
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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. 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.
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Effectivity Date: June 7, 2002 Definition ―Dangerous drug‖ - include those listed in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to the 1971 Single Convention on Psychotropic Substances as enumerated in the attached annex which is an integral part of this Act(Sec. 3). Nature of violations of Dangerous Drugs Law A violation of the Dangerous Drugs Law ismalumprohibitum. As such, -
-
The mere commission of said act is what constitutes the offense punished and it suffices to validly charge and convict the individual caught committing the act regardless of criminal intent(People vs. Tang WaiLan, G.R. Nos. 118736-37, July 23, 1997). Violation is deemed a wrong against society as a whole and is generally unattended with any particular harm to a definite person (People vs. Doria, G.R. No. 125299, January 22, 1999).
Presumptions under the law 1. The possession of equipment, instruments, apparatus, and other paraphernalia or dangerous drugs fit or intended for smoking, consuming, administering, injecting, or introducing any dangerous drug into the body shall be prima facie evidence that the possessor has smoked, consumed, administered to himself, injected, ingested, or used a dangerous drug, and that he has violated Section 15 of this Act. (Sec. 12) 2. The presence of any controlled precursor and essential chemical or laboratory equipment in the clandestine laboratory is a prima facie proof of manufacture of any dangerous drug(Sec. 8). Offenses: 1. Sale, trading, administration, dispensation, delivery, distribution and transportation of dangerous drugs and/or controlled precursors and essential chemicals (Sec. 5). The commission of the offense of illegal sale of prohibited drugs requires merely the consummation of the selling transaction which happens at the moment the buyer receives the drug from the seller (People vs. Simon, G.R. No. 93028, July 29, 1994); payment is no longer material in the charge of illegal sale (People vs. UtohLakibul, G.R. No. 94337, January 27, 1993). When the seller is apprehended, the quantity he is possessing must be equal to that being sold by him. If so, it will be illegal sale only, possession being absorbed by the sale. But if the quantity possessed by him is greater than the quantity negotiated, he is still liable for illegal possession equal to the excess amount (People vs. Salamat, G.R. No. 103295, August 20, 1993). 56
2. Manufacture of dangerous drugs and/or controlled precursors and essential chemicals(Sec. 8) and equipment, instrument, apparatus, and other paraphernalia for such (Sec. 10). 3. Illegal chemical diversion of controlled precursors and essential chemicals(Sec. 9). “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 (Sec. 3(d)) 4. Use of dangerous drugs(Sec. 15). “Use” - Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system of the body, and of the dangerous drugs (Sec. 3(kk)). 5. Possession of any dangerous drug, regardless of the degree of purity (Sec. 11), and any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body (Sec. 12). Possession of instruments for administering drugs is punished separately. If the offender is caught smoking with a pipe, the possession of the pipe is absorbed. If he is found possessing the pipe and opium, and he is not smoking, two crimes are committed: illegal possession of opium and illegal possession of opium pipe. The essential elements of the crime of illegal possession of regulate drugs are: 1) actual possession of an item or object identified as a prohibited drug, 2) such possession is not authorized by law, and 3) the accused freely or consciously possessed the said drug. (People vs. Lagman, G.R. No. 186695, December 8, 2008). Exclusive possession is not necessary. 6. Cultivation or culture of plants classified as dangerous drugs or are sources thereof (Sec. 16). 7. Failure of any practitioner, manufacturer, wholesaler, importer, distributor, dealer or retailer to maintain and keep the original records of transactions on any dangerous drug and/or controlled precursor and essential chemical in accordance with Sec. 40 of this Act (Sec. 17). 8. Unnecessary (Sec. 18) and unlawful (Sec. 19) prescription of dangerous drugs. 9. Attempt or conspiracy (Sec. 26) to commit the following acts shall be penalized by the same penalty prescribed for the commission of the same as provided under this Act: (a) Importation of any dangerous drug 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 any dangerous drug is used in any form; (d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and 57
(e) Cultivation or culture of plants which are sources of dangerous drugs. 10. Misappropriation, misapplication or failure to account for the confiscated, seized and/or surrendered dangerous 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 act committedbyany public officer or employee(Sec. 27). 11. Planting as evidence of any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity (Sec. 29). 12. Violation of any regulation duly issued by the Dangerous Drug Board (Sec. 32). 13. Issuance of false or fraudulent drug test results knowingly, willfully or through gross negligence (Sec. 37). 14. Violates the confidentiality of records by any person who, having official custody of or access to the confidential records of any drug dependent, or anyone who, having gained possession of said records, reveals their content to any person other than those charged with the prosecution of the offenses under this Act and its implementation(Sec. 72). 15. Failure of or refusal by any member of law enforcement agencies or any other government official and employee, after due notice, to testify as prosecution witness involving violations of this Act, without any valid reason(Sec. 91). 16. Delay and bungling in the prosecution of drug cases byany government officer or 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(Sec. 92). New Offenders: 1. “Financier” - any person who pays for, raises or supplies money for, or underwrites any of the illegal activities prescribed under this Act. 2. ―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 grounds to believe on or suspects, has violated the provisions of this Act in order to prevent the arrest, prosecution and conviction of the violator. Qualifying/Aggravating Circumstances 1. Commission of a crime by an offender under the influence of dangerous drugs- Notwithstanding the provisions 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 RPC shall be applicable. (Sec. 25) 2. Possessing any dangerous drug during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) persons, shall suffer the maximum penalties provided for in Section 11 of this Act, regardless of the quantity and purity of such dangerous drugs. (Sec. 13) 3. Possessing or having control over any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or 58
introducing any dangerous drug into the body, during parties, social gatherings or meetings, or in the proximate company of at least two (2) persons. 4. The presence of any controlled precursor and essential chemical or laboratory equipment in the clandestine laboratory shall be considered an aggravating circumstance if 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 or 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; or (e) Any employment of a practitioner, chemical engineer, public official or foreigner (Sec. 8). Program for Treatment and Rehabilitation of Drug Dependents A drug dependent or any person who violates Section 15 may: 1. Voluntarily submit himself/herself, or through his/her parent, spouse, guardian or relativie within the fourth degree of consanguinity or affinity, to confinement, treatment and rehabilitation. Upon such application, the DDB shall bring the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination results in the issuance of a certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board for a period of not less than six (6) months(Sec. 54), and be: (a) Exempt from criminal liability (Sec. 55); (b) If he does not qualify for exemption from criminal liability, he shall be placed on probation and undergo a community service (Sec. 57); or (c) If the drug dependent is not rehabilitated after the second commitment to the Center under the voluntary submission program, shall be charged for violation of Section 15 and prosecuted like any other offender. If convicted, he/she shall be credited for the period of confinement and rehabilitation in the Center in the service of his/her sentence(Sec. 58). 2. Compulsorily confinedif herefuses to apply under the Voluntary Submission Programupon petition by the DDB or any of its authorized representative, be confined for treatment and rehabilitation in any Center duly designated or accredited for the purpose(Sec. 61). Jurisdiction Over Dangerous Drugs Cases The Supreme Court shall designate special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of this Act. The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act. The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing.When the preliminary investigation is conducted by a public prosecutor and a 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. Trial of the case under this Section shall be finished by the court not later than sixty (60) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case for resolution.(Sec. 90) 59
Penalties Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death (Sec. 98). In the imposition of the proper penalty, the courts, taking into account the circumstances attendant in the commission of the offense, are given the discretion to impose either life imprisonment or death, and the fine as provided for by law. However, pursuant to R.A.9346, the imposition of the death penalty has been prohibited. Consequently, the penalty shall only be life imprisonment to fine. Accessory Penalties A person convicted under this Act shall be disqualified to exercise his/her civil rights such as but not limited to, the rights 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). Immunity from Prosecution and Punishment 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 Sections 4, 5, 6, 8, 10, 13, and 16, Article II of this Act as well as any violation of the offenses mentioned if committed by a drug syndicate, or 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 prosecution or punishment for the offense with reference to which his/her information of testimony were given, and may plead or prove the giving of such information and testimony in bar of such prosecution,provided, that the following conditions concur: 1. The information and testimony are necessary for the conviction of the persons described above; 2. Such information and testimony 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; 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. 6. 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; and 7. That there is no direct evidence available for the State except for the information and testimony of the said informant or witness.
Plea-bargaining is not allowed for any person who is charged under any provision of this Act, regardless of the imposable penalty (Sec. 23). The Probation Law does not apply to any person convicted of drug trafficking orpushing, regardless of the penalty imposed by the Court (Sec. 24). The Indeterminate Sentence Law applies to drug offenses when the penalty to be imposed does not involve life imprisonment, reclusion perpetua, or death, provided, that the penalty as ultimately resolved will exceed one (1) year imprisonment.
Limited Applicability of the RPC The non-applicability of the provisions of the RPC to this Act is mandatory, except in the case of minor offenders(Sec. 98). 60
Effectivity Date: December 31, 1993 This law has been repealed by R.A. 9346, discussed below. Heinous Crime is defined as ―one which, by reason of its inherent or manifest wickedness, viciousness, atrocity or perversity, is repugnant and outrageous to the common standards of decency and morality in a just and civilized society‖.17 The reason behind the imposition of death penalty on heinous crimes, as explained in People vs. Echegaray, is due to the fact that, 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.18 This Act imposes a penalty of Reclusion Perpetua to Death on the following crimes: 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; 17 18
People vs. Echegaray, G.R. No. 117472, 7 February 1999 Id.
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9.
10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.
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); 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); Plunder involving at least P50 million (Sec. 12); Importation of prohibited drugs (Sec. 13); Sale, administration, delivery, distribution, and transportation of prohibited drugs (Sec 13); Maintenance of den, dive or resort for users of prohibited drugs (Sec 13); Manufacture of prohibited drugs ((Sec 13); Possession or use of prohibited drugs in certain specified amounts (Sec 13); Cultivation of plants which are sources of prohibited drugs (Sec 13) Importation of regulated drugs (Sec 13); Manufacture of regulated drugs (Sec 13); Sale, administration, dispensation, delivery, transportation, and distribution of regulated drugs (Sec 13); Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15); Possession or use of regulated drugs in specified amounts (Sec. 16); Misappropriation, misapplication or failure to account dangerous drugs confiscated by the arresting officer (Sec.17); Planting evidence of dangerous drugs in person or immediate vicinity of another to implicate the latter (Sec. 19); and Carnapping where the owner, driver or occupant of the carnapped motor vehicle is killed or raped (Sec. 20)
This Act imposes a penalty of death penalty on the following crimes: 1. Qualified Bribery (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. (Sec. 8); 3. Destructive arson resulting in death (Sec.10) 4. Rape with the victim becoming insane, rape with homicide and qualified (Sec. 11); and 5. In all the crimes in RA. No. 7659 in their qualified form (those committed by a public officer of a person belonging to an organized/syndicated crime group) (Sec. 23) Automatic review of death penalty cases (Sec. 22) - When death penalty is imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review and judgment by the Court en banc, - Period : within 20 days but not earlier than 15 days after promulgation of the judgment or notice of denial of any motion for new trial or reconsideration. - Transcript will be forwarded within 10 days from the filing thereof by the stenographic reporter The Death Penalty shall not be imposed on the following persons (Sec. 22): 1. person is below eighteen (18) years of age at the time of the commission of the crime; 2. person is more than seventy years of age; or 3. when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the imposition of the death penalty in which cases the penalty shall be reclusion perpetua.
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When and How Death Penalty is executed (Sec. 24) - by putting the person under sentence to death by electrocution - executed under the authority of the Director of Prisons - persons under sentence may request to be anesthetized at the moment of execution - shall be carried out not later than 1 year after the judgment has become final Instances when the execution of death penalty shall be suspended (Sec. 25): 1. The convicted person is pregnant; 2. The woman just gave birth and the execution falls within 1 year after delivery; or 3. Persons over 70 years old. - the death sentence shall be commuted to the penalty of reclusion perpetua with accessory penalties The date of effectivity of this law cannot be applied retroactively because it would be a violation on the constitutional prohibition against Ex Post Facto Law. R.A. NO. 9346 AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES This Act prohibits the imposition of death penalty. Thus, repealing the following: 1. Act Designating Death by Lethal Injection (R.A. No. 8177 ); 2. Death Penalty Law (R.A. 7659); and 3. All other laws, executive orders and decrees, insofar as they impose the death penalty. In lieu of death penalty, the following shall be imposed : 1. the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or 2. the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. Those convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, are not eligible for parole under the Indeterminate Sentence Law. A list of the names of persons convicted of offenses punished with reclusion perpetua or life imprisonment who are being considered or recommended for commutation or pardon shall be published by the Board of Pardons and Parole. Such publication must be made at least once (1) a week for three (3) consecutive weeks in a newspaper of general circulation. The prohibition against the imposition of death penalty does not declassify the enumerated crimes as heinous. It merely prevents the application of death penalty but not change the definition and classification of crimes. As held in People vs. Quiachon, R.A. No. 9346 has a retroactive effect.19 The principle incorporated under Article 22 of the Revised Penal Code provides that penal laws which are favorable to the accused are given retroactive effect. Thus, the prohibition against the implementation of the death penalty shall take effect even prior to its publication because it is favorable to the offender.
19
People v. Quiachon, G.R. No. 170236, 31 August 2006.
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Effectivity Date: November 9, 1993 General Rule: 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: a. That his employment neither endangers his life, safety, health and morals; b. Does not impair his normal development; and c. That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education 2. Where a child’s employment or participation in public entertainment or information through cinema, theater, radio or television is essential. Provided that the employment contracts 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 are, in ALL INSTANCES strictly complied with: a. The employer shall ensure the protection, health, safety, morals and normal development of the child; b. The employer shall institute measures to prevent the child’s exploitation or discrimination taking into account the system and level of remuneration and the duration and arrangement of working time; and c. The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the requirements. Further Conditions For Employment Of Children In Public Entertainment Or Information Through Cinema, Theater, Radio Or Television Under Department Order No. 18 (IRR) 1. Employment does not involve advertisements or commercials promoting alcoholic beverages, intoxicating drinks, tobacco and its by-products or exhibiting violence; 2. There is a written contract approved by the DOLE; 3. The conditions under the second punishable act under R.A. 7658 are complied with. Pre-Employment Requirement: The employer must first secure a work permit from the Regional Office of theDOLE having jurisdiction over the workplace, which shall ensure observance of the child. Penalties: Fine not less than P 1, 000.00 but nor more than P 10, 000.00 or Imprisonment of not less than 3 months but not more than 3 years Or both at the discretion of the court In cases of repeated violations, the offender’s license to operate shall be revoked. 64
Effectivity Date: June 18, 1955 DEFINITION OF TERMS Public officer or employee - Any person holding any public office or employment by virtue of an appointment, election or contract, and any person holding any office or employment, by appointment or contract, in any State owned or controlled corporation or enterprise. Other legitimately acquired property - Any real or personal property, money or securities which the respondent has at any time acquired by inheritance and the income thereof, or by gift inter vivos before his becoming a public officer or employee, or any property (or income thereof) already pertaining to him when he qualified for public office or employment, or the fruits and income of the exclusive property of the respondent's spouse. It shall not include: 1. Property unlawfully acquired by the respondent, but its ownership is concealed by its being recorded in the name of, or held by, the respondent's spouse, ascendants, descendants, relatives, or any other person. 2. Property unlawfully acquired by the respondent, but transferred by him to another person or persons on or after the effectivity of this Act. 3. Property donated to the respondent during his incumbency, unless he can prove to the satisfaction of the court that the donation is lawful. PUNISHABLE ACTS Any public officer or employee who shall transfer or convey any unlawfully acquired property. Any person who shall knowingly accept such transfer or conveyance. PENALTIES Imprisonment for a term not exceeding five years, or a fine not exceeding ten thousand pesos, or both such imprisonment and fine. PRIMA FACIE PRESUMPTION OF UNLAWFULLY ACQUIRED PROPERTY Whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired. GRANT OF IMMUNITY The Solicitor General may grant immunity from criminal prosecution to any person who testifies to the unlawful manner in which the respondent has acquired any of the property in question in cases where such testimony is necessary to prove violations of this Act.
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Effectivity Date: January 26, 2003 R.A. 9184 or the new law on public bidding aims to promote the ideals of good governance in all branches, departments, agencies, subdivisions and instrumentalities of the government including government owned and/or controlled corporations and local government units.20 Acts penalized under the new law on public bidding: Without prejudice to the provisions of R.A. 3019 or the Anti-Graft Law, the following are prohibited acts under R.A. 9184: 1. Opening any sealed Bid including but not limited to Bids that may have been submitted through the electronic system and any and all documents required to be sealed or divulging their contents prior to the appointed time for the public opening of Bids or other documents. 2. Delaying, without justifiable cause, the screening for eligibility, opening of bids, evaluation and post evaluation of bids, and awarding of contracts beyond the prescribed periods of action provided for in the IRR. 3. Unduly influencing or exerting undue pressure on any member of the BAC or any officer or employee of the procuring entity to take a particular action which favors, or tends to favor a particular bidder. 4. Splitting of contracts which exceed procedural purchase limits and competitive bidding. 5. When the head of the agency abuses the exercise of his power to reject any and all bids as mentioned under Section 41 of this Act with manifest preference to any bidder who is closely related to him in accordance with Section 47 of this Act Private persons & public officers who connive shall suffer the same penalty for the ff acts: 1. When two or more bidders agree and submit different Bids as if they were bona fide, when they knew that one or more of them was so much higher than the other that it could not be honestly accepted and that the contract will surely be awarded to the pre- arranged lowest Bid. 2. When a bidder maliciously submits different Bids through two or more persons, corporations, partnerships or any other business entity in which he has interest to create the appearance of competition that does not in fact exist so as to be adjudged as the winning bidder. 3. When two or more bidders enter into an agreement which call upon one to refrain from bidding for Procurement contracts, or which call for withdrawal of Bids already submitted, or which are otherwise intended to secure an undue advantage to any one of them. 4. When a bidder, by himself or in connivance with others, employ schemes which tend to restrain the natural rivalry of the parties or operates to stifle or suppress competition and thus produce a result disadvantageous to the public. 20
Leonor D. Boado, Notes and Cases on Special Penal Laws(2011), p. 633
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5. Submitting eligibility requirements of whatever kind and nature that contain false information or falsified documents calculated to influence the outcome of the eligibility screening process or conceal such information in the eligibility requirementswhen the information will lead to a declaration of ineligibility from participating in public bidding. 6. Submitting Bidding Documents of whatever kind and nature that contain false information or falsified documents or conceal such information in the Bidding Documents, in order to influence the outcome of the public bidding. 7. Participating in a public bidding using the name of another or allow another to use one’s name for the purpose of participating in a public bidding. 8. Withdrawing a Bid, after it shall have qualified as the Lowest Calculated Bid/Highest Rated Bid, or refuse to accept an award, without just cause or for the purpose of forcing the Procuring Entity to award the contract to another bidder. This shall include the non-submission within the prescribed time, or delaying the submission of requirements such as, but not limited to, performance security, preparatory to the final award of the contract. When the bidder is a juridical entity, criminal liability and the accessory penalties shall be imposed on its directors, officers or employees who actually committed the foregoing acts. In a public bidding, there must be competition that is legitimate, fair, and honest. Thus, the three principles of a public bidding are: 1. the offer to the public; 2. an opportunity for competition; and 3. a basis for exact comparison of bids. A contract granted without the competitive bidding required by the law is void, and the party to whom it is awarded cannot benefit from it.21
21Oani
vs. People of the Philippines, GR No. 139984, March 31, 2005)
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Effectivity Date: March 6, 2007 I.
II.
III.
The law defines and punishes the crime of terrorism. Terrorism is defined as, a. The commission of ―any of the crimes of:‖ i. Under the Revised Penal Code 1. Piracy in General and Mutiny in the High Seas or in the Philippines Waters (Article 122) 2. Rebellion or Insurrection (Article 134) 3. Coup d’etat, including acts committed by private persons (Article 134-a) 4. Murder (Article 248) 5. Kidnapping and Serious Illegal Detention (Article 267) 6. Crimes Involving Destruction (Article 324) ii. Under Special Laws 1. The Law on Arson (P.D. 1613) 2. Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990 (R.A. 6969) 3. Atomic Energy Regulatory and Liability Act of 1968 (R.A. 5207) 4. Anti-Hijacking Law (R.A. 6235) 5. Anti-piracy and Anti-highway Robbery Law of 1974 (P.D. 532) 6. Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives (P.D. 1866) b. thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace c. in order to coerce the government to give in to an unlawful demand Requirements for Terrorism a. The accused (an individual or a group) commits any of the above-enumerated crimes b. There results a condition of widespread and extraordinary fear and panic among the populace i. The extent and degree of fear and panic, including the number of people affected in order to meet the term ―populace,‖ are questions of facts to be determined by the courts and on a case to case basis. c. The purpose of the accused must be to coerce the government to give into an unlawful demand i. The word ―demand‖ is too broad as to cover not only political, criminal or monetary demands but also those which may be categorized as social or economic. This is however qualified by the word ―unlawful.‖ Penalties a. Principal/Conspiracy – Forty (40) years of imprisonment, without the benefit of parole
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IV.
V.
VI.
VII.
b. Accomplice – Seventeen (17) years, four (4) months and one (1) day to Twenty (20) years of imprisonment c. Accessory – Ten (10) years and one (1) day to Twelve (12) years of imprisonment Surveillance of Suspects and Interception and Recording of Communications a. A police or law enforcement official and the members of his team may, upon written order of the Court of Appeals, listen to, intercept and record […] any communication, conversation, discussion, or spoken or written words between members of i. A judicially declared and outlawed terrorist organization, association, or group of persons, or ii. Of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. b. The Judicial Authorization can only be issued by the Court of Appeals: i. Upon an ex parte written application of a police or of a law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council ii. Upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish 1. Probable cause that terrorism/conspiracy to commit terrorism has been committed, or is about to be committed; 2. Probable cause that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of, any such crimes will be obtained; and 3. That there is no other effective means readily available for acquiring such evidence. iii. Effectivity period of the Judicial Authorization 1. Time specified in the written order, which shall not exceed thirty (30) days from the date of receipt of said order by the applicant 2. Extendable or renewable for another non-extendable period of not exceeding thirty (30) days from expiration of original period. iv. Filing of information and Notification 1. The applicant police/law enforcement official shall have thirty (30) days after the termination of the period granted by the Court of Appeals within which to filed the appropriate case 2. If no case is filed within the thirty (30)-day period, the police/law enforcement official shall immediately notify the person subject of the surveillance. Custody of Intercepted and Recorded Communications a. All tapes, discs, and recordings, excerpts, summaries, etc. shall, within 48 hours after the expiration of the period fixed in the Judicial Authorization or its renewed/extended period, be deposited with the authorizing division of the Court of Appeals. b. The law enforcement official and his team shall execute a joint affidavit pursuant to Section 12 of the law Proscription of Terrorist Organizations, Association, or Group of Persons a. Any organization, association, or group or persons (i) organized for the purpose of engaging in terrorism, or which, (ii) although not organized for that purpose, actually uses acts of terrorism i. Upon application for the Department of Justice before a competent Regional Trial Court ii. With due notice and opportunity to be heard given to such organization, etc. Arrest of Suspected Terrorist a. A suspected terrorist may be arrested by any law enforcement personnel provided: i. The law enforcement agent was duly authorizes in writing by the AntiTerrorism Council 69
VIII.
IX.
X.
ii. The arrest was the result of a surveillance or examination of bank deposits b. Upon arrest and prior to actual detention, the law enforcement agent must present the suspected terrorist before any judge, at the latter’s residence or office nearest the place of arrest, at any time of the day or night. The judge shall, within 3 days, submit a written report of the presentation to the court where the suspect shall have been charged. c. Immediately after taking custody of a person charged or suspected as a terrorist, the police or law enforcement personnel shall notify in writing the judge of the nearest place of apprehension or arrest, but it the arrest is made during non-office hours, the written notice shall be served at the nearest residence of the judge nearest the place of arrest. d. Restriction on Travel i. In cases where evidence of guilty is not strong, the person charged with the crime is entitled to bail, with limitation to the right of travel of the accused within the municipality or city where he resides or where the case is pending. ii. Travel outside, without authorization of the court, shall be deemed a violation of the terms and conditions of his bail. iii. He may also be placed under house arrest. Period of Detention in the Event of an Actual or Imminent Terrorist Attack a. In the event of an actual or imminent terrorist attack, suspects may not be detained for more than 3 days without the written approval of the Human Rights Commission, or judge of the MTC/RTC, Sandiganbayan or Court of Appeals nearest the place of arrest. b. If the arrest was on a non-working daw or hour, the person arrested shall be brought to the residence of any of the above named officials nearest the place of arrest. c. The 3-day period is counted from the moment the person charged or suspected as terrorist has been apprehended or arrested, detained and taken into custody. d. The custodial unit shall keep an official logbook detailing the name of the person arrested, the date and time of initial admission for custody and arrest state his health; date and time of removal from his cell and his return thereto; date and time of visits and by whom; all other important date bearing on his treatment while under arrest and custody Other acts punished as offenses in relation to the arrest/detention of suspected terrorists a. Violation of the rights of a person detained i. Right to be informed of the nature and cause of the arrest; to remain silent; to counsel (Miranda Rights) ii. To communicate and confer with counsel at any time without restriction iii. To communicate at any time and without restrictions with members of family or relatives and be visited by them iv. To avail of the services of a physician of choice b. Offenses relating to an official log book i. Failure to keep an official logbook ii. Failure to promptly issue a certified true copy of the entries of the log book upon demand of lawyer/s, members of the family or relative within the 4th civil degree of consanguinity or affinity, physician. c. Using threat, intimidation coercion, inflicting physical pain, or torment or mental, emotional, moral or psychological pressure which shall vitiate the free will d. Infidelity in the custody of detained persons e. Knowingly furnishing false testimony, forged document or spurious evidence in any investigation or hearing under the law Judicial Authority to Examine Bank Deposits a. Written order issued by the authorizing division of the Court of Appeals
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XI. XII.
XIII.
XIV.
b. Upon an ex parte application of a police or a law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council c. Upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish the facts that will justify the need and urgency of examining and freezing the back deposits, placements, trust accounts, assets, and records, of i. Person charged/suspected of the crime of terrorism or conspiracy to commit terrorism ii. Judicially declared and outlawed terrorist organizations iii. Any member of such organization d. Effectivity i. Effective for the length of time specified in the written order which shall not exceed a period of 30 days from the date of receipt by the applicant ii. Extendable/renewable for another period which shall not exceed 30 days renewable to another 30days from the expiration of the original period. e. Filing of case and Notification i. The applicant law enforcement official shall have 30 days after the termination of the period to file the appropriate case ii. If no case is filed within the 30 days period, the applicant shall immediately notify in writing the person subject of the bank examination and freezing of account. f. Same rules as to Custody, Joint-Affidavit, Disposition, Application to Open g. The bank or financial institution concerned shall not refuse to allow such examination or to provide the desired information. Continuous Trial a. To ensure speedy trial, the judge shall set the case for continuous trial on a daily basis from Monday to Friday or other short-term trial calendar Consequences of Prosecution Under This Law a. Prosecution under this act shall be a bar to another prosecution under the RPC or any other special law for any offense or felony which is necessarily included in the offense charged b. If the suspect is acquitted, he is entitled to P500,000.00 for every day of detention without a warrant of arrest i. Any person who delays the release or refuses to release the amount shall be punished by imprisonment of 6 months ii. He should be release within 15 days from the date of acquittal of the accused. Provisions on the Identity of the Informant a. The officer to whom the name of the suspect was first revealed shall record the real name and specific address of the informant and shall report the same to his superior officer who shall in turn transmit the information to the Congressional Oversight Committee within 5 days after the suspect was placed under arrest, or his properties sequestered, seized, or frozen. i. The data shall be considered confidential and shall not be revealed until after the proceedings against the suspect shall have been terminated. Territorial Application of the Law a. The law applies to any person who committed an act covered by the law if committed: i. Within the terrestrial domain, interior waters, maritime zone and airspace of the Philippines ii. Inside the territorial limits of the Philippines iii. On board a Philippine ship or airship iv. Within any embassy, consulate, diplomatic premises belonging to or occupied by the Philippines government in an official capacity
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XV. XVI.
v. Against Philippine citizens or person of Philippine descent where their citizenship or ethnicity was a factor in the commission of the crime vi. Directly against the Philippine government The provisions of the law shall be automatically suspended 1 month before and 2 months after the holding of any election. Acts punished under this law:
ACTS PUNISHED Terrorism and Conspiracy Accomplice Accessory Failure to notify the subject (when no case is filed 30 days after surveillance) Removal, deletion, expunction, incineration, shredding or destruction of surveillance materials Violation of proscription in the execution of join affidavit as required by Section 12 Failure to notify the subject (application for Judicial Authority for surveillance) Failure to notify the concerned party (application to open the deposited sealed envelope/package containing the surveillance materials) Unauthorized or malicious interceptions and/or recordings Maliciously obtaining Judicial Authority from the Court of Appeals
PENALTIES 40 years of imprisonment, without the benefit of parole 17 years, 4 months and 1 day – 20 years of imprisonment 10 years and 1 day – 12 years of imprisonment 10 years and 1 day – 12 years of imprisonment 6 years and 1 day – 12 years of imprisonment 10 years and 1 day – 12 years of imprisonment 6 years and 1 day – 8 years of imprisonment 6 years and 1 day – 8 years of imprisonment 10 years and 1 day – 12 years of imprisonment
10 years and 1 day – 12 years of imprisonment, perpetual absolute disqualification from public office (without prejudice to liability for other offense) Failure to notify the judge after taking custody of 10 years and 1 day – 12 years of imprisonment a person arrested Failure to deliver suspect to proper judicial 10 years and 1 day – 12 years of imprisonment authority within 3 days Violation of rights of detainee 10 years and 1 day – 12 years of imprisonment Offenses relating to logbook 10 years and 1 day – 12 years of imprisonment Threat, intimidation, coercion, or torture in the 12 years and 1 day – 20 years of imprisonment investigation and interrogation of detainee (When dean or serious permanent disability 12 years and 1 day – 20 years of imprisonment occurs) Failure to notify subject person (when no case is 10 years and 1 day – 12 years of imprisonment filed 30days after examination of bank accounts) – application police/law enforcer (any person, law enforcement official or judicial 6 years and 1 day – 8 years of imprisonment authority who violates his duty to notify in writing – in case of examination of bank accounts) Copying, removal, deletion, expunction, 6 years and 1 day – 12 years of imprisonment incineration, shredding, or destruction of bank data Failure to notify party in case of disposition of 6 years and 1 day – 8 years of imprisonment bank materials Unauthorized or malicious examination of bank or 10 years and 1 day – 12 years of imprisonment 72
a financial institution Maliciously obtaining authority from the Court of Appeals (examination of bank) Defying a court authorization (Bank officials and employees) False or untruthful statement or misrepresentation of material fact in JointAffidavits (required by Sec. 12 and 32) Unjustified refusal to follow the order of the Court of Appeals authorizing the accused to withdraw sequestered/frozen property Unjustified refusal to restore/delay in restoring seized/sequestered/frozen bank deposits, etc. Loss, misuse, diversion, dissipation of seized/sequestered, frozen bank deposits, etc. Infidelity in the custody of detainee (prisoner of final judgment) Infidelity in the custody of detainee (detention prisoner) Unauthorized revelation of classified materials Furnishing false evidence, forged document or spurious evidence
10 years and 1 day – 12 years of imprisonment (without prejudice to liability for other offense) 10 years and 1 day – 12 years of imprisonment 10 years and 1 day – 12 years of imprisonment 10 years and 1 day – 12 years of imprisonment 10 years and 1 day – 12 years of imprisonment 10 years and 1 day – 12 years of imprisonment 12 years and 1 day – 20 years of imprisonment 6 years and 1 day – 12 years 10 years and 1 day – 12 years of imprisonment 12 years and 1 day 20 years of imprisonment
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Effectivity Date: December 22, 2008 PUNISHABLE ACTS: 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; 2. Carrying licensed firearm outside residence without legal authority or PERMIT TO CARRY 3. Unlawful manufacture, sale, acquisition, disposition, importation or possession of EXPLOSIVES and INCENDIARY DEVICE; 4. OFFICERS of a corporation who knowingly or willfully allow the use of owned articles in violation of the decree 5. Tampering of firearm’s SERIAL NUMBER; 6. Unlawful manufacture, sales, acquisition, disposition, importation or possession of a PART, INGREDIENT, MACHINERY, TOOL OR INSTRUMENT used or Intended to be used for the manufacture, construction, assembly, delivery or detonation of explosives or incendiary device;* 7. Failure or Refusal of Law Enforcement Agencies and Other Government Officials and Employees in TESTIFYING as Prosecution Witnesses;* 8. PLANTING of Evidence;* 9. Repacking or altering the COMPOSITION of lawfully manufactured explosives; 10. Unauthorized Issuance of Authority to Carry Firearm and/or Ammunition Outside of Residence. *as amended by RA9516
Changes made by RA 8294 on PD 1866 (June 6, 1997)
The use of unlicensed firearm to commit homicide or murder is now an aggravating circumstance Unlawful manufacture, sale, acquisition, disposition, or possession of firearms and ammunitions are absorbed as an element of the crime of rebellion, insurrection, sedition or attempted coup d’etat Penalty for mere possession of unlicensed firearm is based on whether the firearm is high or low grade Definition of unlicensed firearm Simple illegal possession may only be committed if no other crime was committed by the possessor
Changes made under RA 9516 on PD 1866 (December 22, 2008)
Added several punishable acts under the law, including importation of prohibited articles Provides for penalty for the owner, president, manager, director or other responsible officer of public or private corporations or entities in violation of the law 74
Penalty when violation is a necessary means for committing crimes in the RPC or special laws Application of double jeopardy, in so far as it is favorable to the accused, when violation was a necessary means in committing the offense Provision for a continuous trial for cases of violation Authority to import, sell or possess chemicals or accessories for explosives, duty to record such transactions and cancellation of license in case of violation
ELEMENTS OF ILLEGAL POSSESSION OF FIREARM: 1. The existence of the subject firearm; 2. The fact that accused who owned or possessed it does not have the corresponding license or permit to possess the same. Law does not prohibit possession in itself; the prosecution has the burden of proving the lack of license or permit to carry or possess firearm. Ownership is not an essential element. The merely requires possession, which includes ACTUAL and CONSTRUCTIVE possession. PENALTY: Although PD 1866 is a special law, the penalties stated therein were taken from the RPC. Hence, the rules in the RPC for graduating of penalties and the Indeterminate Sentence Law are applicable. UNLICENSED FIREARM includes: Unlicensed firearm per se Firearms with expired license, or Unauthorized use of licensed firearms in the commission of the crime
Criminal Liabilities involving unlicensed firearms 1. Simple Illegal Possession of Firearm (there must be no other crime committed) 2. Aggravating Circumstance when committed in homicide or murder 3. Absorbed and penalty not affected when committed in crimes of rebellion, insurrection, sedition of coup d’etat 4. Absolved or Exonerated when committed in any other crime not mentioned (no separate offense of simple illegal possession) PRESUMPTIONS IN THE LAW: PRESUMPTION OF ILLEGAL MANUFACTURE OF FIREARMS AND AMMUNITION by mere possession of any machinery, tool or instrument used directly in the manufacture of firearms and ammunitions PRESUMPTION OF UNLAWFUL MANUFACTURE OF EXPLOSIVES by mere possession of any machinery, tool or instrument used directly in the manufacture of explosives by a person whose business or employment does not lawfully deal with such PRESUMPTION OF KNOWLEDGE OF EXISTENCE AND CHARACTER OF DEVICE by mere possession of explosive or incendiary device. PRESUMPTION OF INTENT TO USE IN THE ILLEGAL MANUFACTURE, CONSTRUCTION, ASSEMBLY, DELIVERY OR DETONATION by mere possession of any part, ingredient, machinery, tool or instrument directly used for the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device.
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RULES ON MISSION ORDERS AND MEMORANDUM RECEIPTS Special or confidential civilian agents who are not part of the regular plantilla of any government agency involved in law enforcement or do not receive regular compensation for services rendered must obtain regular license to possess and permit to carry Special or confidential civilian agents are not qualified to obtain, receive and possess government-owned firearms, even with the issuance of MRs Special or confidential civilian agents do not qualify for MOs to carry firearms (private or government-owned) outside residence
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Coverage of the law: The Indeterminate Sentence Law(ISL) modified the imposition of penalties both for violations of the RPC and special penal laws. In imposing a prison sentence, the courts are mandated to fix a minimum and a maximum period of penalty. The minimum sentence must be served and thereupon the convict becomes eligible for parole. When released, he does not become actually discharged because the rest of his sentence is served out of prison under the supervision of a parole officer.22 Objectives: - to avoid unnecessary imprisonment - to decongest jails by having convicts serve their sentences outside of prison - to save government expenditures - to promote reformation Offenses where ISL does not apply: (1) all cases wherein the law prescribes a single indivisible penalty (2) To those persons convicted of offenses punished with: Death penalty Life imprisonment (3) Those convicted of: Treason, conspiracy or proposal to commit treason, misprision of treason Rebellion Sedition Espionage Piracy To those who are habitual delinquents To those who have escaped from confinement or evaded sentence To those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof To those whose maximum term of imprisonment does not exceed 1 year To those already sentenced by final judgment at the time of approval of this Act, except as provided in Section 5 hereof (referring to parole) (4)Others: Those convicted of offenses punished with reclusion perpetua When the application of the ISL will be unfavorable to the accused
22
Leonor D. Boado, Notes and Cases on Special Penal Laws(2011), p. 102
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Computation of ISL For felonies under the RPC: First, determine the maximum period by considering the presence of modifying circumstances applying the rules under Art. 64, RPC. Privileged mitigating circumstances must first be considered before applying the said rules.23 Computing maximum term: If punished under RPC: Apply the rules of RPC (e.g. attending circumstances such as mitigating, aggravating, privileged mitigating), meaning it should be within the proper period of the penalty that may be imposed were the sentence is a penalty.24The mitigating or aggravating circumstance is required to be considered only in the imposition of the maximum term of the indeterminate sentence.25 If punished by any other law: Should not exceed the maximum term fixed by that law Computing minimum term: If punished under RPC: The minimum term ―shall be within the range of the penalty next lower to that prescribed by the Code for the offense‖ The penalty next lower must be based on the penalty prescribed by the Code for the offense, without considering in the meantime the modifying circumstances, such as, the mitigating or aggravating circumstances.26 ―Within the range‖ means it does not make reference to the three periods into which it may be subdivided.27 If punished by any other law: Should not be less than the minimum term fixed by that law For Complex felonies: For purposes of determining the next lower degree, the full range of the penalty prescribed by the law for the offense, not merely the imposable penalty because of its complex nature, should, a priori, be considered.28 For violations of special penal laws: For violation of special penal laws, the maximum term shall be any period not to exceed the maximum fixed by the said law and the minimum shall be any period not less than the minimum term prescribed by the same. This is due to the fact that in special laws, there are no mitigating or aggravating circumstances, or periods of divisible penalty. 29 Parole and Pardon: In parole, the minimum sentence must be served; in pardon, service is not required for the grant thereof. Parole is a benefit granted by law, specifically the ISL; pardon is an exercise of the power of the President under the Constitution.30
Leonor D. Boado, Notes and Cases on Special Penal Laws(2011), p. 105 vs. People, G.R. No. L-39483 (1974) 25 People vs. De Joya, 98 Phil. 238, 240 26People vs. Gonzales. 73 Phil. 549, 552 27People vs. Ducosin, 59 Phil. 109, 116) 28 Leonor D. Boado, Notes and Cases on Special Penal Laws(2011), p. 108 29 Leonor D. Boado, Notes and Cases on Special Penal Laws(2011), p. 109 30 Leonor D. Boado, Notes and Cases on Special Penal Laws(2011), p. 113 23
24Basan
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Effectivity Date: May 20, 2006 Definition of child in conflict with the law "Child in Conflict with the Law" refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. Rights of the Child in Conflict with the Law Every child in conflict with the law shall have the following rights, including but not limited to: (a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; (b) the right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release; (c) the right not to be deprived, unlawfully or arbitrarily, of his/her liberty; detention or imprisonment being a disposition of last resort, and which shall be for the shortest appropriate period of time; (d) the right to be treated with humanity and respect, for the inherent dignity of the person, and in a manner which takes into account the needs of a person of his/her age. In particular, a child deprived of liberty shall be separated from adult offenders at all times. No child shall be detained together with adult offenders. He/She shall be conveyed separately to or from court. He/She shall await hearing of his/her own case in a separate holding area. A child in conflict with the law shall have the right to maintain contact with his/her family through correspondence and visits, save in exceptional circumstances; (e) the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on such action; (f) the right to bail and recognizance, in appropriate cases; (g) the right to testify as a witness in hid/her own behalf under the rule on examination of a child witness; (h) the right to have his/her privacy respected fully at all stages of the proceedings; (i) the right to diversion if he/she is qualified and voluntarily avails of the same; (j) the right to be imposed a judgment in proportion to the gravity of the offense where his/her best interest, the rights of the victim and the needs of society are all taken into consideration by the court, under the principle of restorative justice; (k) the right to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the more appropriate penalty; (I) in general, the right to automatic suspension of sentence; (m) the right to probation as an alternative to imprisonment, if qualified under the Probation Law; (n) the right to be free from liability for perjury, concealment or misrepresentation; and (o) other rights as provided for under existing laws, rules and regulations. Minimum age of criminal responsibility 79
a. Age 15 or under at the time of the commission of the offense: exempt from criminal liability. However, the child shall be subjected to an intervention program. b. Age above 15 but below 18 years: shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. * Note that the exemption from criminal liability herein established DOES NOT include exemption from civil liability, which shall be enforced in accordance with existing laws. Determination of age The child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. The age of a child may be determined from the child's birth certificate, baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based on information from the child himself/ herself, testimonies of other persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor. Any person contesting the age of the child in conflict with the law prior to the filing of the information in any appropriate court may file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty-four(24) hours from receipt of the appropriate pleadings of all interested parties. If a case has been filed against the child in conflict with the law and is pending in the appropriate court, the person shall file a motion Treatment Of Children Below The Age Of Criminal Responsibility If it has been determined that the child taken into custody is 15 years old or below, the authority which will have an initial contact with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child's nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following centers listed in Sec. 20 of this act. Punishable acts 1. Labeling and Shaming. - In the conduct of the proceedings beginning from the initial contact with the child, the competent authorities must refrain from branding or labeling children as young criminals, juvenile delinquents, prostitutes or attaching to them in any manner any other derogatory names. Likewise, no discriminatory remarks and practices shall be allowed particularly with respect to the child's class or ethnic origin (Sec. 60). 2. Other Prohibited Acts. - The following and any other similar acts shall be considered prejudicial and detrimental to the psychological, emotional, social, spiritual, moral and physical health and well-being of the child in conflict with the law and therefore, prohibited: (a) Employment of threats of whatever kind and nature; (b) Employment of abusive, coercive and punitive measures such as cursing, beating, stripping, and solitary confinement; (c) Employment of degrading, inhuman end cruel forms of punishment such as shaving the heads, pouring irritating, corrosive or harmful substances over the body of the child in conflict with the law, or forcing him/her to walk around the community embarrass, (d) wearing humiliate, signs and which degrade his/her personality and dignity; and 80
Compelling the child to perform involuntary servitude in any and all forms under any and all instances (Sec. 61).
To determine the age of the child in the same court where the case is pending. Pending hearing on the said motion, proceedings on the main case shall be suspended. (Sec. 7).
Status Offenees. Any conduct not considered an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child(Sec. 57). Offenses Not Applicable to Children. Persons below eighteen (18) years of age shall be exempt from prosecution for the crime of vagrancy and prostitution under Section 202 of the Revised Penal Code, of mendicancy under Presidential Decree No. 1563, and sniffing of rugby under Presidential Decree No. 1619, such prosecution being inconsistent with the United Nations Convention on the Rights of the Child: Provided, That said persons shall undergo appropriate counseling and treatment program(Sec. 58). Exemption from the Application of Death Penalty. The provisions of the Revised Penal Code, as amended, Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and other special laws notwithstanding, no death penalty shall be imposed upon children in conflict with the law(Sec. 59). Juvenile justice and welfare system Juvenile Justice and Welfare System refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development (Sec. 4[m]). "Diversion" refers to an alternative, child-appropriate process of determining the offense without resorting to formal court responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. "Diversion Program" refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an proceedings. "Intervention" refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being.
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Effectivity Date: January 16, 1981 OBSTRUCTION OF JUSTICE The act of knowingly or willfully obstructing, impeding, frustrating or delaying the: 1. Apprehension of suspects; and 2. Investigation and prosecution of criminal cases How committed: a. By means of bribery, misrepresentation, deceit, intimidation, force or threats preventing witness from testifying in any criminal proceeding, or reporting the commission of any offense or identity of offender b. Altering, destroying, suppressing or concealing any object of evidence affecting its admissibility c. Harboring, concealing or facilitating the escape of an offender d. Publicly using fictitious name or other personal circumstances to conceal a crime, evade prosecution or execution e. Obstructing the service of process, court orders or proceedings in the fiscal’s office, Tanodbayan or courts f. Making, presenting or using false document or object with knowledge of its falsity with intent to affect the outcome of the proceeding g. Soliciting, accepting or agreeing to abstaining, discount or impede the prosecution of a criminal offender for any benefit h. Threatening, directly and indirectly another or any member of his family with any wrong or imposing a condition, whether lawful or unlawful to prevent such person from appearing in investigation or proceedings of a criminal case i. Misleading law enforcement agencies by giving false or fabricated information Penalty:
Prision Correccional (maximum) or Fine (P1, 000-P6, 000) or both Perpetual Disqualification from holding office for public officials
If any other law punishes the acts committed, higher penalty is imposed. Obstruction of Justice vis-à-vis Accessories under par. 3 of Art. 19 of the RPC Obstruction of Justice Accessory Punished as a SEPARATE CRIME Part of the ORIGINAL CRIME Offender punished as a Principal Offender punished as an Accessory Covers different prohibited acts in Punishes the act of HARBORING, the APPREHENSION, CONCEALING, or ASSISTING in the INVESTIGATION and Escape of a Principal of a crime PROSECUTION of the crime Punishes both public and private Punishes a PUBLIC OFFICIAL who individuals, but provides an acts with abuse of public functions or additional penalty for a PUBLIC PRIVATE INDIVIDUALS but only in 82
OFFICIAL; and does not limit crimes of treason, attempt on the life of application to particular crimes the Chief Executive, murder, parricide or a principal known to be habitually guilty of some other crime.
Covers investigation and prosecution of criminal offenses, when it is a fact-finding Allows for reasonable justification when prohibited acts are committed. o Posadas vs. Ombudsman (G.R. No. 131492, 29 September 2000): certain officials of the University of the Philippines (UP) were charged for violating PD 1829 (paragraph c above). The UP officers objected to the warrantless arrest of certain students by the National Bureau of Investigation (NBI). According to the Supreme Court, the police had no ground for the warrantless arrest. The UP Officers, therefore, had a right to prevent the arrest of the students at the time because their attempted arrest was illegal. The ―need to enforce the law cannot be justified by sacrificing constitutional rights.‖ No separate charge under PD 1829 is allowed if act is absorbed in rebellion. o Ponce Enrile v. Hon. Omar U. Amin (G.R. No. 93335 September 13, 1990): Juan Ponce Enrile was charged under PD 1829, for allegedly accommodating Col. Gregorio Honasan by giving him food and comfort on 1 December 1989 in his house. ―Knowing that Colonel Honasan is a fugitive from justice, Sen. Enrile allegedly did not do anything to have Honasan arrested or apprehended.‖ The Supreme Court ruled that Sen. Enrile could not be separately charged under PD 1829, as this is absorbed in the charge of rebellion already filed against Sen. Enrile.
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Effectivity Date: July 24, 1976 Probation defined Probation is a disposition under which a defendant, after conviction and sentence, is released to conditions imposed by the court and to the supervision of a probation officer.31 A court, after conviction and execution of sentence, may grant probation after application made by the defendant to suspend the execution of said sentence and place the defendant on probation for such period as the court may deem best. Such application must be filed with the trial court, with notice to the appellate court if an appeal has been taken from the sentence of conviction.32 However, no person shall be placed on probation except upon prior investigation by the probation officer and a determination by the court that the ends of justice and the best interest of the public as well as that of the defendant will be served thereby.33 An order granting or denying probation shall not be appealable.34 The law expressly requires that an accused must not have appealed his conviction before he can avail of probation. This outlaws the element of speculation on the part of the accused—to wager on the result of his appeal—that when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an ―escape hatch‖ thus rendering nugatory the appellate court’s affirmance of his conviction. Consequently, probation should be availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated, who manifest spontaneity, contrition and remorse.35 The present law on probation, Presidential Decree (P.D.) 1990, which amends section 4 of P.D. 968, clearly states that ―no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction.36 Purpose Probation is a mere privilege, not a right. Its benefits cannot extend to those not expressly included. Probation is not a right of an accused, but rather an act of grace and clemency or immunity conferred by the state which may be granted by the court to a seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands convicted. It is a special prerogative granted by law to a person or group of persons not enjoyed by others or by all. 37
Sec. 3(a), P.D. No. 968. Sec. 4, P.D. No. 968. 33 Sec. 5, P.D. No. 968. 34 Id. 35 Francisco v. Court of Appeals, 243 SCRA 384 (1995). 36Bala v. Martinez, 181 SCRA 459 (1990). 37 Francisco v. Court of Appeals, 243 SCRA 384 (1995). 31 32
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The grant of probation rests solely upon the discretion of the court which is to be exercised primarily for the benefit of organized society, and only incidentally for the benefit of the accused. The Probation Law should not therefore be permitted to divest the state or its government of any of the latter’s prerogatives, rights or remedies, unless the intention of the legislature to this end is clearly expressed, and no person should benefit from the terms of the law who is not clearly within them.38 Conditions Every probation order issued by the court shall contain conditions requiring that the probationer shall: a. present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within seventy-two hours from receipt of said order; b. report to the probation officer at least once a month at such time and place as specified by said officer.39 Grounds for denial Probation shall be denied if the courts find that: a. the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; b. there is undue risk that during the period of probation the offender will commit another crime; or c. probation will depreciate the seriousness of the offense committed.40 Grounds for disqualification The benefits of this Decree shall not be extended to those: a. sentenced to serve a maximum term of imprisonment of more than six years; b. convicted of any offense against the security of the State; c. who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos; d. who have been once on probation under the provisions of this Decree; and e. who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof;41 f. who have perfected an appeal because appeal and probation are mutually exclusive remedies;42 g. who committed election offenses punishable with imprisonment of not less than one (1) year but not more than six (6) years with disqualification for probation;43 and h. who maliciously reported money laundering transactions. 44 Duration The period of probation of a defendant sentenced to a term of imprisonment of not more than one year shall not exceed two years, and in all other cases, said period shall not exceed six years.45 When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment in case of insolvency, the period of probation shall not be less than nor to be more than twice the total number of days of subsidiary imprisonment as computed at the rate established, in Article thirty-nine of the Revised Penal Code, as amended.46 Id. Sec. 10, P.D. No. 968. 40 Sec. 8, P.D. No. 968. 41 Sec. 9, P.D. No. 968. 42 Sec. 4, P.D. No. 968. 43 R.A. 9160, as amended by R.A. 9194. 44 Id. 45 Sec. 14, P.D. No. 968. 46 Id. 38 39
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Effectivity Date: June 17, 1992 Prohibited Acts and Penalties: 1. Child Prostitution and 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; (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 When the victim 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 The penalty for lascivious conduct when the victim is under twelve (12) years of age shall be 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 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. There is also an attempt to commit child prostitution when: - any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments. 86
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. 2. Child Trafficking - Includes, but is 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 is 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 pregnant mother executes an affidavit of consent for adoption for a consideration (c) When a person, agency, establishment or child-caring institution recruits women or couples to bear children for the purpose of child trafficking; or (d) When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking; or (e) 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. 3. Obscene Publication 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. 4. Other Acts of Abuse (a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or 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 (P50,000.00) - 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 o
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penalty of prision mayor in its medium period and a fine of not less than Forty thousand pesos (P40,000.00) - 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 (P50,000.00), and the loss of parental authority over the minor. (d) Any person, owner, manager or one entrusted with the operation of any 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 (P50,000.00), and 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 prisioncorreccional 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 Articles 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 of age. The victim of the acts committed under this section shall be entrusted to the care of the Department of Social Welfare and Development. 5. Sanctions for Establishments and Enterprises - All establishments and enterprises which promote or facilitate child prostitution and other sexual abuse, child trafficking, obscene publications and indecent shows, and other acts of abuse shall be immediately closed and their authority or license to operate cancelled, without prejudice to the owner or manager thereof being prosecuted under this Act and/or the Revised Penal Code, as amended, or special laws. A sign with the words "off limits" shall be conspicuously displayed outside the establishments or enterprises by the Department of Social Welfare and Development for such period which shall not be less than one (1) year, as the Department may determine. The unauthorized removal of such sign shall be punishable by prisioncorreccional. - An establishment shall be deemed to promote or facilitate child prostitution and other sexual abuse, child trafficking, obscene publications and indecent shows, and other acts of abuse if the acts constituting the same occur in the premises of said establishment under this Act or in violation of the Revised Penal Code, as amended. An enterprise such as a sauna, travel agency, or recruitment agency which; promotes the aforementioned acts as part of a tour for foreign tourists; exhibits children in a lewd or indecent show; provides child masseurs for adults of the same or opposite sex and said services include any lascivious conduct with the customers; or solicits children or activities constituting the aforementioned acts shall be deemed to have committed the acts penalized herein
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Remedial Procedures 1. Who may file a complaint: a) Offended party b) Parents or guardians c) Ascendant or collateral relative within the third degree of consanguinity d) Officer, social worker or representative of a licensed child-caring institution e) Officer or social worker of the Department of Social Welfare and Development f) Barangay chairman g) At least three (3) concerned responsible citizens where the violation occurred 2. Protective Custody of the Child - In the regular performance of this function, the officer of the Department of Social Welfare and Development shall be free from any administrative, civil or criminal liability. 3. Confidentiality - At the instance of the offended party, his name may be withheld from the public until the court acquires jurisdiction over the case. - It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio broadcasting, producer and director of the film in case of the movie industry, to cause undue and sensationalized publicity of any case of violation of this Act which results in the moral degradation and suffering of the offended party. 4. Special Court Proceedings - Cases involving violations of this Act shall be heard in the chambers of the judge of the Regional Trial Court duly designated as Juvenile and Domestic Court. - Any provision of existing law to the contrary notwithstanding and with the exception of habeas corpus, election cases, and cases involving detention prisoners and persons covered by Republic Act No. 4908, all courts shall give preference to the hearing or disposition of cases involving violations of this Act. Common Penal Provisions 1. The penalty provided under this Act shall be imposed in its maximum period if the offender has been previously convicted under this Act; 2. When the offender is a corporation, partnership or association, the officer or employee thereof who is responsible for the violation of this Act shall suffer the penalty imposed in its maximum period; 3. The penalty provided herein shall be imposed in its maximum period when the perpetrator is an ascendant, parent guardian, stepparent or collateral relative within the second degree of consanguinity or affinity, or a manager or owner of an establishment which has no license to operate or its license has expired or has been revoked; 4. When the offender is a foreigner, he shall be deported immediately after service of sentence and forever barred from entry to the country; 5. The penalty provided for in this Act shall be imposed in its maximum period if the offender is a public officer or employee: Provided, however, That if the penalty imposed is reclusion perpetua or reclusion temporal, then the penalty of perpetual or temporary absolute disqualification shall also be imposed: Provided, finally, That if the penalty imposed is prisioncorreccional or arresto mayor, the penalty of suspension shall also be imposed; and A fine to be determined by the court shall be imposed and administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense.
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