UPDATED

SPECIAL PENAL LAWS

By:
JUDGE OSCAR B. PIMENTEL
Regional Trial Cour! Bran"# $%&!
Ma'ai Ciy
INDETERMINATE SENTENCE LAW
(Act No. 4103 as amended by Act No. 4225)
W(EN AN ACCUSED IS SENTENCED TO
RECLUSION PERPETUA! (E IS NOT ENTITLED
TO T(E APPLICATION O) T(E INDETERMINATE
SENTENCE LAW
Accused-appellant cannot avail of the benefts
of the Indeterminate Sentence Law because
Indeterminate Sentence Law does not apply to
persons convicted of ofenses punishable with
reclusion perpetua.
(People v. Auino! "# $%&'()* +an. $)* ,'-.
APPLICATION O) INDETERMINATE SENTENCE
LAW E*PLAINED
In the case of People vs. Gabres* the /ourt has
had occasion to so state that 0
12nder the Indeterminate Sentence Law* the
ma3imum term of the penalty shall be 4that which*
in view of the attendin5 circumstances* could be
properly imposed4 under the #evised Penal /ode*
and the minimum shall be within the ran5e of the
penalty ne3t lower to that prescribed4 for the
ofense. 6he penalty ne3t lower should be based on
the penalty prescribed by the /ode for the ofense*
without frst considerin5 any modifyin5
circumstance attendant to the commission of the
crime. 6he determination of the minimum penalty
is left by law to the sound discretion of the court
and it can be anywhere within the ran5e of the
penalty ne3t lower without any reference to the
periods into which it mi5ht be subdivided. 6he
modifyin5 circumstances are considered only in the
imposition of the ma3imum term of the
indeterminate sentence.
16he fact that the amounts involved in the
instant case e3ceed P%%*(((.(( should not be
considered in the initial determination of the
indeterminate penalty! instead* the matter should
be so ta7en as analo5ous to modifyin5
circumstances in the imposition of the ma3imum
term of the full indeterminate sentence. 6his
interpretation of the law accords with the rule that
penal laws should be construed in favor of the
accused. Since the penalty prescribed by law for
the estafa char5e a5ainst accused-appellant is
prision correccional ma3imum to prision mayor
minimum* the penalty ne3t lower would then be
prision correccional minimum to medium. 6hus* the
minimum term of the indeterminate sentence
should be anywhere within si3 (). months and one
($. day to four (8. years and two (%. months . . .1
(People v. Saley! "# $%$$9'* +uly %* ,'-.
INDETERMINATE SENTENCE LAW+
APPLICABLE ALSO IN DRUG CASES:
6he fnal uery is whether or not the
Indeterminate Sentence Law is applicable to the
case now before us. Apparently it does* since dru5
ofenses are not included in nor has appellant
2
committed any act which would put him within the
e3ceptions to said law and the penalty to be
imposed does not involve reclusion perpetua or
death* provided* of course* that the penalty as
ultimately resolved will e3ceed one year of
imprisonment. 6he more important aspect*
however* is how the indeterminate sentence shall
be ascertained. It is true that Section $ of said law*
after providin5 for indeterminate sentence for an
ofense under the #evised Penal /ode* states that
1if the ofense is punished by any other law* the
court shall sentence the accused to an
indeterminate sentence* the ma3imum term of
which shall not e3ceed the ma3imum f3ed by said
law and the minimum shall not be less than the
minimum term prescribed by the same1 :e hold
that this uoted portion of the section indubitably
refers to an ofense under a special law wherein
the penalty imposed was not ta7en from and is
without reference to the #evised Penal /ode* as
discussed in the precedin5 illustrations* such that it
may be said that the 1ofense is punished1 under
that law. 6here can be no sensible debate that the
aforeuoted rule on indeterminate sentence for
ofenses under special laws was necessary because
of the nature of the former type of penalties under
said laws which were not included or contemplated
in the scale of penalties in Article 9$ of the /ode*
hence there could be no minimum 1within the
ran5e of the penalty ne3t lower to that prescribed
by the /ode for the ofense*1 as is the rule for
felonies therein. In the illustrative e3amples of
penalties in special laws hereinbefore provided*
this rule applied* and would still apply* only to the
frst and last e3amples. ;urthermore* considerin5
the vinta5e of Act <o. 8$(= as earlier noted* this
holdin5 is but an application and is >ustifed under
the rule of contemporanea expositio . #epublic Act
<o. )8%&* as now amended by #epublic Act <o.
9)&'* has unualifedly adopted the penalties
3
under the #evised Penal /ode in their technical
terms* hence with their technical si5nifcation and
efects. In fact* for purposes of determinin5 the
ma3imum of said sentence* we have applied the
provisions of the amended Section %( of said law to
arrive at prision correccional and Article )8 of the
/ode to impose the same in the medium period.
Such ofense* althou5h provided for in a special
law* is now in the efect punished by and under the
#evised Penal /ode.
(People v ?artin Simon.
W(EN T(E BENE)ITS O) INDETERMINATE
SENTENCE LAW IS NOT APPLICABLE+
a. @fenses punished by death or life
imprisonment.
b. 6hose convicted of treason (Art. $$8.*
conspiracy or proposal to commit treason
(Art. $$&..
c. 6hose convicted of misprision of treason (Art.
$$).* rebellion (Art. $=8.* sedition (Art. $='.*
or espiona5e (Art. $$9..
d. 6hose convicted of piracy (Art. $%%..
e. Aabitual delinuents (Art. )%* par. &..
f. 6hose who escaped from confnement or
those who evaded sentence.
5. 6hose 5ranted conditional pardon and who
violated the terms of the same (Art. $&'..
(People v. Corral* 98 Phil. =&'..
h. 6hose whose ma3imum period of
imprisonment does not e3ceed one
year.
i. 6hose who are already servin5 fnal >ud5ment
upon the approval of the Indeterminate
Sentence Law.
>. 6hose ofenses or crimes not punishable by
imprisonment such as distierro and
suspension.
4
RECIDI,ISTS ARE ENTITLED TO T(E BENE)ITS
O) T(E INDETERMINATE SENTENCE
#ecidivists are entitled to an indeterminate
sentence. (People v. Jaramilla* L-%-&89* ;eb. %%*
$'98.. @fender is not disualifed to avail of the
benefts of the law even if the crime is committed
while he is on parole. (People v. Clareon* /A 9-
@.". )9($* <ov. $'* $'-%..
(Bacar v. Ce "uDman.
NATURE O) PENALT- O) RECLUSION
PERPETUA
In 1People -vs- Conrado Lucas* %8( S/#A ))*
the Supreme /ourt declared that despite the
amendment of Article %9 of the #evised Penal
/ode* reclusion perpetua remained an indivisible
penalty. Aence* the penalty does not have any
minimum* medium and ma3imum period. Aence*
there is no such penalty of medium period of
reclusion perpetua.
(People versus 6iburcio Baculi* %8) S/#A.
IMPOSITION O) WRONG PENALT-:
IT DOES NOT OBTAIN )INALIT-
Suppose the court imposed a penalty of %&
years of reclusion perpetua for the crime of rape
and the accused did not appeal* does the >ud5ment
become fnal and e3ecutoryE <o* such >ud5ment is
null and void because it imposed a non-e3istent
penalty. Aence* the court may nevertheless correct
5
the penalty imposed on the accused* that is*
reclusion perpetua* it is merely performin5 a duty
inherent in the court.
(People versus <i5el "atward*
"# <o. $$'99%-9=* ;ebruary 9* $''9.
DI))ERENCE BETWEEN RECLUSION PERPETUA
AND LI)E IMPRISONMENT
6he penalty of reclusion perpetua is diferent
from life imprisonment. 6he former carries with it
accessory penalties* whereas life imprisonment
does not carry with it any accessory penalties!
reclusion perpetua is that provided for under the
#evised Penal /ode and under crimes defned by
special laws usin5 the nomenclature under the
#evised Penal /ode ! life imprisonment is that
provided for violations of the #evised Penal /ode.
Reclusion Perpetua may be reduced by one or two
de5rees while life imprisonment cannot be so
reduced.
(People -vs- #olnando ?adria5a* "# <o. -%%'=*
+uly %=* $''%..
W(IC( IS MORE BURDENSOME LI)E
IMPRISONMENT O) RECLUSION PERPETUA
#eclusion perpetua has accessory penalties
while life imprisonment does not. Aowever* life
imprisonment does not have a f3ed duration or
e3tent while reclusion perpetua has a duration of
from twenty years and one day to forty years. Life
mprisonment may span the natural life of the
convict.
(People -versus- #alla5an* %89 S/#A &=9.
RECLUSION PERPETUA AND LI)E
IMPRISONMENT CANNOT BE INTER.C(ANGED
W(EN IMPOSED AS PENALT-
6
:here the law violated provides for the penalty
of reclusion perpetua* impose the said penalty and
not the penalty of life imprisonment. :here the law
imposes the penalty of life imprisonment* do not
impose reclusion perpetua.
(People -vs- #olando ?adria5a* %$$ S/#A )'-.
T(E REASON W(- RECLUSION PERPETUA (AS
A RANGE DESPITE T(E SAME BEING
INDI,ISIBLE
6here we also said that 1if reclusion perpetua
was reclassifed as a divisible penalty* then Article
)= of the #evised Penal /ode would lose its reason
and basis for e3istence.1 6he imputed duration of
thirty (=(. years of reclusion perpetua* therefore*
only serves as the basis for determinin5 the
convict4s eli5ibility for pardon or for the application
of the three-fold rule in the service of multiple
penalties.
(People -vs- Aspolinar #a5anas* et al
"# <o. $($$--* @ctober $%* $'''.
RARE CASE O) APPLICATION O) RPC IN A
SUPPLETOR- C(ARACTER DESPITE T(E
PENALT- BEING LI)E IMPRISONMENT
:here the accused committed ualifed
violation of PC 9(8 (fshin5 with the use of
e3plosives.* the imposable penalty for which is life
imprisonment to death. If the accused is entitled to
a miti5atin5 circumstance of voluntary surrender*
the court should impose life imprisonment
applyin5* in a suppletory character* Articles $= and
)= of the #evised Penal /ode.
(People -vs- Priscilla Balasa* "# <o.
$()=&9* September =* $''-.
7
ACCUSED W(O IS SENTENCED TO RECLUSION
PERPETUA IS STILL ENTITLED TO EIT(ER )ULL
OR / O) (IS PRE,ENTI,E IMPRISONMENT
If* durin5 the trial* the accused was detained
but* after trial* he was meted the penalty of
reclusion perpetua* he is still entitled to the full
credit of his preventive imprisonment because
Article %' of the #evised Penal /ode does not
distin5uish between divisible and indivisible
penalties.
(People -vs- #olando /orpuD*
%=$ S/#A 8-(.
0UALI)IED T(E)T
0UALI)IED T(E)T IS PENALI1ED B-
RECLUSION PERPETUA I) AMOUNT IN,OL,ED
IS O,ER P22!333.33
2nder Article =(' of the #evised Penal /ode*
the ma3imum of the penalty for ualifed theft is
prision mayor to reclusion temporal. Aowever*
under Article =$( of the #evised Penal /ode* the
penalty for the crime shall be two (%. de5rees
hi5her than the specifed in Article =(' of the /ode.
2nder Article 98 of the #evised Penal /ode* the
penalty hi5her by one de5ree than another 5iven
penalty* and if such hi5her penalty is death* the
penalty shall be reclusion perpetua of forty (8(.
years with the accessory penalties of death under
Article 8( of the #evised Penal /ode. 6he accused
shall not be entitled to pardon before the lapse of
forty (8(. years.
(People -vs- ;ernando /anales* %'9 S/#A ))9.
8
9
THE PROBATION A! (P.". #$%)
and &ts A'EN"'ENT(
PROBATION! ITS MEANING:
A disposition under which a defendant* after
conviction and sentence* is sub>ect to conditions
imposed by the /ourt and under the supervision of
a probation oFcer.
PURPOSES O) PROBATIONG
a. to promote the correction and rehabilitation
of an ofender by providin5 him with personaliDed
community based treatment!
b. to provide an opportunity for his reformation
and reinte5ration into the community!
c. to prevent the commission of ofenses.
SUBMISSION O) PETITION AND TIME O)
)ILING O)PETITION
6he petition or application for probation must
be fled directly with the /ourt which sentenced the
accused within $& days from date of promul5ation
of the decision convictin5 the accused* or in short
within the period to appeal otherwise the >ud5ment
shall become fnal and the accused shall be
deemed to have waived his ri5ht to probation.
E))ECT O) )ILING O) PETITION )OR
PROBATION
2pon flin5 of petition for probation* the court
shall suspend the e3ecution of sentence.
10
Li7ewise* the flin5 of a petition for probation
shall be deemed a waiver of the ri5ht to appeal
and in case an appeal is made immediately after
conviction* a flin5 of petition for probation still
within the period to appeal* that is within ffteen
days from date of promul5ation shall be deemed a
withdrawal of the appeal.
PENDING RESOLUTION O) PETITION! W(AT
ARE T(E PRI,ILEDGE T(AT MA-BE GI,EN TO
T(E ACCUSED.PETITIONER4
$. if the accused* prior to the promul5ation of
decision of conviction is out on bail* he may be
allowed on temporary liberty under his bail fled in
said case!
%. if he is under detention* upon motion* he
may be allowed temporary liberty* if he cannot
post a bond* on a reco5niDance of a responsible
member of a community who shall 5uarantee his
appearance whenever reuired by the court.
IN CASE T(E APPLICANT )OR PROBATION
CANNOT BE PRODUCED B- T(E CUSTODIAN
ON RECOGNI1ANCE! W(AT (APPENS4
6he custodian must be as7ed to e3plain why he
should not be cited for contempt for failin5 to
produce the probationer when reuired by the
court! Summary hearin5 will be held for indirect
contempt* and if custodian cannot produce the
petitioner* nor to e3plain his failure to produce the
petitioner* the custodian on reco5niDance shall be
held in contempt of court.
11
W(AT IS A POST SENTENCE IN,ESTIGATION
REPORT4
It is a report of the Parole and Probation @Fcer
after conductin5 post sentence investi5ation and
interviews containin5 the circumstances
surroundin5 the ofense for which the petitioner
was convicted. 6he fndin5s should be drawn from
the court records* police records* statement of
defendants* the a55rieved party and other persons
who may 7now the petitioner and all other matters
material to the petition.
It will also include the psycholo5ical and social
information re5ardin5 the probationer! evaluation
of the petitioner! suitability for probation! his
potential for rehabilitation! and may include the
pro5ram for supervision and su55ested terms of
conditions of probation and a recommendation
either to deny or 5rant the probation.
W(AT ARE T(E MANDATOR- CONDITIONS O)
PROBATION4
a.6o present himself to the probation oFcer
concerned for supervision within 9% hours from
receipt of said order and
b.6o report to the probation oFcer at least once a
month durin5 the period of probation.
W(AT ARE T(E OT(ER CONDITIONS O)
PROBATION4
a.cooperate with a pro5ram of supervision!
b.meet his family responsibilities!
12
c. devote himself to a specifc employment and
not to char5e
d.said employment without prior written
approval of the probation oFcer!
e.comply with a pro5ram of payment of civil
liability to the victim of his heirs!
f. under5o medical* psycholo5ical or psychiatric
e3amination and treatment andHor enter and
remain in a specifc institution* when reuired
for that purposes!
5.pursue a prescribed secular study or
vocational trainin5!
h.attend or reside in a facility established for
instruction or recreation of persons on
probation!
i. refrain from visitin5 houses of ill-repute!
>. abstain from drin7in5 into3icatin5 bevera5es
to e3cess!
7. permit the probation oFcer or an authoriDed
social wor7er to visit his home and place of
wor7!
l. reside at premises approved by the court and
not to chan5e his residence wHo prior written
approval! and
m. satisfy any other condition related to the
rehabilitation of the probationer and not
unduly restrictive of his liberty or
incompatible with his freedom of conscience.
n. plant trees ( see circular of the S/ .

RULES ON OUTSIDE TRA,EL O) PROBATIONER
A probationer who desires to travel outside the
>urisdiction of the city or provincial probation oFcer
for not more than =( days* the permission of the
parole and probation oFcer must be sou5ht. If for
more than thirty (=(. days* aside from the
permission of the parole and probation oFcer* the
permission of the court must li7ewise be sou5ht.
13
E))ECT O) APPEAL B- T(E ACCUSED O) (IS
CON,ICTION
If the accused appeals his conviction for the
purpose of totally reversin5 his conviction* he is
deemed to have waived his ri5ht to probation.
6he rule that if the accused appeals his
conviction only with respect to the penalty* as he
believes the penalty is e3cessive or wron5* as the
penalty is probationable* and the appellate court
sustains the accused may still apply for probation*
has already been abandoned. An appeal therefore*
irrespective of its purpose* to overturn the entire
decision or only with respect to penalty is a waiver
to probation* has already been abandoned. An
appeal therefore* irrespective of its purpose* to
overturn the entire decision or only with respect to
penalty is a waiver to probation.
CON)IDENTIALIT- O) RECORDS O)
PROBATION
6he investi5ation report and the supervision
and history of a probationer obtained under PC <o.
')- and under these rules shall be privile5ed and
shall not be disclosed directly or indirectly to
anyone other than the probation administration or
the court concerned the court which 5ranted the
probation or where the probation was transferred
may allow the probationer to inspect the aforesaid
documents or his lawyer* whenever such disclosure
may be desirable or helpful to them.
Any 5overnment oFce may as7 for the records
of probation from the court for its oFcial use or
from the administrator.
14
Sec. %'* PC ')-G II@LA6I@< @; /@<;ICJ<6IAL
<A62#J @; P#@BA6I@< #J/@#CS. 6he penalty of
imprisonment ran5in5 from si3 months and one
day to si3 years and a fne ran5in5 from hundred to
si3 thousand pesos shall be imposed upon any
person who violates Section $9 hereof.
MODI)ICATION O) CONDITION
OR PERIOD O) PROBATION
6he court* on motion* or motu propio may
modify the conditions of probation or modify the
period of probation as circumstances may warrant.
W(O ARE DIS0UALI)IED TO UNDERGO
PROBATION
a.6hose sentenced to serve a ma3imum term of
imprisonment of more than si3 years.
b.6hose convicted of any ofense a5ainst the
security of the state.
c. 6hose who have been previously convicted by
fnal >ud5ment of an ofense punished by
imprisonment of not less than one moth and
one day andHor a fne of not less than P%((.((.
d.6hose who have been once on probation under
the provisions of this decree.
e.6hose convicted of #A '$&).
f. 6hose convicted of violation of election laws.
PERIOD O) PROBATION
If the probationer has been sentenced to an
imprisonment of not more than one year* the
probation shall not e3ceed two years!
In all other cases* not to e3ceed si3 years!
15
In case the penalty is fne* the probation shall not
be less than the period of subsidiary imprisonment
nor more than twice of the subsidiary
imprisonment.
AMENDMENT TO SECTION % O) PD 56&
1Sec. 8. "rant of Probation. - Sub>ect to the
provisions of this Cecree* the trial court may* after
it shall have convicted and sentenced a defendant*
and upon application by said defendant within the
period for perfectin5 an appeal* suspend the
e3ecution of the sentence and place the defendant
on probation for such period and upon such terms
and conditions as it may deem best! Provided* 6hat
no application for probation shall be entertained or
5ranted if the defendant has perfected the appeal
from the >ud5ment of conviction.
1Probation may be 5ranted whether the sentence
imposes a term of imprisonment or a fne only. An
application for probation shall be fled with the trial
court. 6he flin5 of the application shall be deemed
a waiver of the ri5ht to appeal.
1An order 5rantin5 or denyin5 probation shall not
be appealable.1
T#u7! a 8er7on 9#o 9a7 7enen"e: o
:e7ierro "anno a88ly ;or 8ro<aion. Rea7on:
i :oe7 no in=ol=e: i>8ri7on>en or ?ne.
(PC $''(.
)*RI(PR*"EN+E
UNDERL-ING P(ILOSOP(- O) PROBATION
16
6he underlyin5 philosophy of probation is indeed
one of liberality towards the accused. It is not
served by a harsh and strin5ent interpretation of
the statutory provisions. Probation is a ma>or step
ta7en by our "overnment towards the deterrence
and minimiDin5 of crime and the humaniDation of
criminal >ustice. In line with the public policy
behind probation* the ri5ht of appeal should not be
irrevocably lost from the moment a convicted
accused fles an application for probation. Appeal
and probation sprin5 from the same policy
considerations of >ustice* humanity* and
compassion. (Kusi v ?orales* 8H%-H-=.
PROBATION IS NOT A RIG(T
BUT A PRI,ILEGE
Probation is a mere privile5e and its 5rant rests
solely upon the discretion of the court. As aptly
noted in 2.S. vs. Cur7en* this discretion is to be
e3ercised primarily for the beneft of or5aniDed
society and only incidentally for the beneft of the
accused. (6olentino v. Alconcel* ".#. <o. )=8((*
=H$-H-=.. Jven if a convicted person is not included
in the list of ofenders disualifed from the
benefts of a decree* the 5rant of probation is
nevertheless not automatic or ministerial* (Pablo
Bernardo v. Bala5ot* %$& S/#A &%). therefore a
petition for probation may be denied by the /ourt.
MAIN CRITERION )OR DETERMINING
W(O MA- BE GRANTED PROBATION.
6he main criterion laid down by the Probation law
in determinin5 who may be 5ranted probation is
based on the penalty imposed and not on the
nature of the crime. By the relative li5htness of the
ofense* as measured by the penalty imposed*
17
more than by its nature* as the law so ordains the
ofender is not such a serious menace to society as
to be wrested away therefrom* as the more
dan5erous type of criminals should be. Aence* in
the case at bar* the frst reason 5iven by the
respondent >ud5e for his denial of the petition for
probation that* 1probation will depreciate the
seriousness of the ofense committed1 would thus
be writin5 into the law a new 5round for
disualifyin5 a frst-ofender from the benefts of
probation. (Santos v. /ruD-Pano* $H$9H-=.
TIMELINESS O) )ILING APPLICATION )OR
PROBATION
6he accused must fle a Petition for Probation
within the period for appeal. If the decision of
conviction has become fnal and e3ecutory* the
accused is barred from flin5 a Petition for
Probation (Pablo ;rancisco v. /.A.* 8H)H'&..
ORDER DEN-ING PROBATION NOT
APPEALABLE!
REMED- CERTIORARI
Althou5h an order denyin5 probation is not
appealable* the accused may fle a motion for
/ertiorari from said order (Aeirs of ;rancisco Abue5
v. /.A.* %$' S/#A 9-.
E))ECT O) )ILING PETITION )OR PROBATION!
WAI,ER O) RIG(T TO APPEAL AND )INALIT-
O) JUDGEMENT
A >ud5ment of conviction becomes fnal when
the accused fles a petition for probation. Aowever*
the >ud5ement is not e3ecutory until the petition
18
for probation is resolved. 6he flin5 of the petition
for probation is a waiver by the accused of his ri5ht
to appeal the >ud5ement of conviction (Aeirs of
;rancisco Abue5 v. /.A.* supra..
MULTIPLE CON,ICTIONS IN SE,ERAL CASES
PROBATIONABLE I) PENALT- )OR EAC(
CON,ICTION IS PROBATIONABLE
.1 Jvidently* the law does not intend to sum up the
penalties imposed but to ta7e each penalty*
separately and distinctly with the others.
/onseuently* even if petitioner was supposed to
have served his prison term of one ($. year and
one ($. day to one ($. year and ei5ht (-. months of
prision correccional si3teen ($). times as he was
sentenced to serve the prison term for 1each crime
committed on each date of each case* as alle5ed in
the information(s.*1 and in each of the four (8.
informations* he was char5ed with havin5 defamed
the four (8. private complainants on four (8.
diferent* separate days* he was still eli5ible for
probation* as each prison term imposed on
petitioner was probationable. (;rancisco v. /A!
8H$)H'&.
REASON )OR )I*ING CUT O)) POINT AT A
MA*IMUM O) SI* -EARS IMPRISONMENT )OR
PROBATION.
;i3in5 the cut-of point at a ma3imum term of si3
(). years imprisonment for probation is based on
the assumption that those sentenced to hi5her
penalties pose too 5reat a ris7 to society* not >ust
because of their demonstrated capability for
serious wron5doin5 but because of the 5ravity and
serious conseuences of the ofense they mi5ht
19
further commit. 6he Probation Law* as amended*
disualifes only those who have been convicted of
5rave felonies as defned in Art. ' in relation to Art.
%& of 6he #evised Penal /ode* and not necessarily
those who have been convicted of multiple
ofenses in a sin5le proceedin5 who are deemed to
be less perverse. Aence* the basis of the
disualifcation is principally the 5ravity of the
ofense committed and the concomitant de5ree of
penalty imposed. 6hose sentenced to a ma3imum
term not e3ceedin5 si3 (). years are not 5enerally
considered callous* hard core criminals* and thus
may avail of probation
,IOLATION O) RA 6%2@!
A ,ALID CAUSE )OR DISMISSAL
IN SER,ICE IN T(E GO,ERNMENT
DESPITE PROBATION
Cru5-pushin5* as a crime* has been variously
condemned as 1an especially vicious crime*1 1one
of the most pernicious evils that has ever crept into
our society.1 ;or those who become addicted to it
1not only slide into the ran7s of the livin5 dead*
what is worse* they become a 5rave menace to the
safety of law-abidin5 members of society*1 while
1peddlers of dru5s are actually a5ents of
destruction. 6he deserve no less than the
ma3imum penalty Lof deathM.1
6here is no doubt that dru5-pushin5 is a crime
which involves moral turpitude and implies 1every
thin5 which is done contrary to >ustice* honesty*
modesty or 5ood morals1 includin5 1acts of
baseness* vileness* or depravity in the private and
social duties which a man owes to his fellowmen or
to society in 5eneral* contrary to the accepted rule
of ri5ht and duty between man and man.1 Indeed
nothin5 is more depraved than for anyone to be a
20
merchant of death by sellin5 prohibited dru5s* an
act which* as this /ourt said in one case* 1often
breeds other crimes. It is not what we mi5ht call a
4contained4 crime whose conseuences are limited
to that crime alone* li7e swindlin5 and bi5amy.
/ourt and police records show that a si5nifcant
number of murders* rapes* and similar ofenses
have been committed by persons under the
inNuence of dan5erous dru5s* or while they are
4hi5h.4 :hile spreadin5 such dru5s* the dru5-pusher
is also abettin5* throu5h his a5reed and
irresponsibility* the commission of other crimes.1
6he ima5e of the >udiciary is tarnished by conduct*
which involves moral turpitude. :hile indeed the
purpose of the Probation Law (P.C. <o. ')-* as
amended. is to save valuable human material* it
must not be for5otten that unli7e pardon probation
does not obliterate the crime of which the person
under probation has been convicted. 6he reform
and rehabilitation of the probationer cannot >ustify
his retention in the 5overnment service. Ae may
see7 to reenter 5overnment service* but only after
he has shown that he is ft to serve once a5ain. It
cannot be repeated too often that a public oFce is
a public trust* which demands of those in its
service the hi5hest de5ree of morality. (@/A v.
Librado %)( S/#A )%8* -H%%H').
PJ6I6I@<J# ?AK S6ILL JOA@#6 @;;J<CJ#
6@ PJ#;@#? /J#6AI< A/6S CJSPI6J
CIS/AA#"J ;#@? P#@BA6I@< I<
/J#6AI< /ASJS
Petitioner Arthur ?. /uevas* +r.4s dischar5e from
probation without any infraction of the attendant
conditions therefor and the various certifcations
attestin5 to his ri5hteous* peaceful and civic-
oriented character prove that he has ta7en decisive
steps to pur5e himself of his defciency in moral
21
character and atone for the unfortunate death of
#aul I. /amali5an. 6he /ourt is prepared to 5ive
him the beneft of the doubt* ta7in5 >udicial notice
of the 5eneral tendency of the youth to be rash*
temerarious and uncalculatin5. Let it be stressed
to herein petitioner that the lawyer4s oath is not a
mere formality recited for a few minutes in the
5lare of Nashin5 cameras and before the presence
of select witnesses. Petitioner is e3horted to
conduct himself beyond reproach at all times and
to live strictly accordin5 to his oath and the /ode of
Professional #esponsibility. And* to paraphrase ?r.
+ustice Padilla4s comment in the sister case of #eG
Petition of Al Ar5osino 6o 6a7e 6he Lawyer4s @ath*
Bar ?atter <o. 9$%* ?arch $'* $''9* 1LtMhe /ourt
sincerely hopes that1 ?r. /uevas* +r.* 1will continue
with the assistance he has been 5ivin5 to his
community. As a lawyer he will now be in a better
position to render le5al and other services to the
more unfortunate members of society1. (In #eG
/uevas* +r.! $H%9H'-.
JOPI#A6I@< @; PJ#I@C @; P#@BA6I@< IS <@6
6J#?I<A6I@<* @#CJ# @; /@2#6 #JP2I#JC
6he mere e3piration of the period for probation
does not* ipso facto* terminate the probation.
Probation is not co-terminus with its period* there
must be an order from the /ourt of fnal dischar5e*
terminatin5 the probation. If the accused violates
the condition of the probation before the issuance
of said order* the probation may be revo7ed by the
/ourt (?anuel Bala v. ?artineD* $-$ S/#A 8&'..
22
ANTI.)ENCING LAWO) $ 5A5
BPD NO. $6$2C
DE)INITION
)en"ing a7 :e?ne: in Se". 2 o; PD No.
$6$2 BAni.)en"ing La9C i7 D#e a" o; any
8er7on 9#o! 9i# inen o gain ;or #i>7el; or
;or ano#er! 7#all <uy! re"ei=e! 8o77e77! 'ee8!
a"Euire! "on"eal! 7ell or :i78o7e o;! or 7#all
<uy an: 7ell! or in any >anner :eal in any
ari"le! ie>! o<Fe" or any#ing o; =alue
9#i"# #e 'no97 or 7#oul: <e 'no9n o #i>!
or o #a=e <een :eri=e: ;ro> #e 8ro"ee:7 o;
#e "ri>e o; ro<<ery or #e;. BDiGon.
Pa>inuan =7. Peo8le! GR $$$%26! $$ July
5%C.
BRIE) (ISTOR- O) PD $6$2 OR T(E ANTI.
)ENCING LAW
Presidential Cecree <o. $)$% or commonly
7nown as the Anti-;encin5 Law of $'9' was
enacted under the authority of therein President
;erdinand ?arcos. 6he law too7 efect on ?arch %*
$'9'. 6he Implementin5 #ules and #e5ulations of
the Anti-;encin5 Law were subseuently
formulated and it too7 efect on +une $&* $'9'.
T(E PURPOSE O) ENACTING PD $6$2
6he Anti-;encin5 Law was made to curtail and
put an end to the rampant robbery of 5overnment
and private properties. :ith the e3istence of
1ready buyers1* the 1business1 of robbin5 and
stealin5 have become proftable. Aence* a law was
enacted to also punish those who buy stolen
23
properties. ;or if there are no buyers then the
malefactors could not proft from their wron5
doin5s.
W(AT IS )ENCING LAW AND (OW IT CAN BE
COMMITTED
1;encin51 is the act of any person who* with
intent to 5ain for himself or for another* shall buy
receive* possess* 7eep* acuire* conceal* sell or
dispose of* or shall buy and sell* or in any other
manner deal in any article* item* ob>ect or anythin5
of value which he 7nows* or should be 7nown to
him* to have been derived from the proceeds of the
crime of robbery or theft. A 1;ence1 includes any
person* frm* association corporation or partnership
or other or5aniDation whoH which commits the act
of fencin5.
W(O ARE LIABLE )OR T(E CRIME O)
)ENCING+ AND ITS PENALTIES:
6he person liable is the one buyin5* 7eepin5*
concealin5 and sellin5 the stolen items. If the fence
is a corporation* partnership* association or frm*
the one liable is the president or the mana5er or
the oFcer who 7nows or should have 7now the fact
that the ofense was committed.
6he law provides for penalty ran5e for person
convicted of the crime of fencin5. 6heir penalty
depends on the value of the 5oods or items stolen
or bou5htG
a.6he penalty of prision mayor* if the value of the
property involved is more than $%*((( pesos
but not e3ceedin5 %%*((( pesos! if the value of
24
such property e3ceeds the latter sum* the
penalty provided in this para5raph shall be
imposed in its ma3imum period* addin5 one
year for each additional $(*((( pesos! but the
total penalty which may be imposed shall not
e3ceed twenty years. In such cases* the
penalty shall be termed reclusion temporal and
the accessory penalty pertainin5 thereto
provided in the #evised Penal /ode shall also
be imposed.
b.6he penalty of prision correccional in its
medium and ma3imum periods* if the value of
the property robbed or stolen is more than
)*((( pesos but not e3ceedin5 $%* ((( pesos!
c. 6he penalty of prision correccional in its
minimum and medium periods* if the value of
the property involved is more than %(( pesos
but not e3ceedin5 )*((( pesos!
d.6he penalty of arresto mayor in its medium
period to prision correccional in its minimum
period* if the value of the property involved is
over &( but not e3ceedin5 %(( pesos!
e.6he penalty of arresto mayor in its medium
period if such value is over fve (&. pesos but
not e3ceedin5 &( pesos.
f. 6he penalty of arresto mayor in its minimum
period if such value does not e3ceed & pesos.
RULES REGARDING BU- AND SELL O) GOODS
PARTICULARL- SECOND (AND GOODS
6he law reuires the establishment en5a5ed in
the buy and sell of 5oods to obtain a clearance or
permit to sell 1used second hand items1* to 5ive
25
efect to the purpose of the law in puttin5 an end
to buyin5 and sellin5 stolen items. ;ailure of which
ma7es the owner or mana5er liable as a fence.
DE)INITION O) TERMS
6he Implementin5 #ules provides for the
5uidelines of issuance of clearances or permits to
sell used or secondhand items and it provided for
the defnition of the followin5 termsG
$.12sed secondhand article1 shall refer to any
5oods* article* items* ob>ect or anythin5 of
value obtained from an unlicensed dealer or
supplier* re5ardless of whether the same has
actually or in fact been used.
%.12nlicensed dealerHsupplier1 shall refer to any
persons* partnership* frm* corporation*
association or any other entity or
establishment not licensed by the 5overnment
to en5a5e in the business of dealin5 in or of
supplyin5 the articles defned in the precedin5
para5raph!
=.1Store1* 1establishment1 or 1entity1 shall be
construed to include any individual dealin5 in
the buyin5 and sellin5 used secondhand
articles* as defned in para5raph hereof!
8.1Buy and Sell1 refer to the transaction whereby
one purchases used secondhand articles for
the purpose of resale to third persons!
&.1Station /ommander1 shall refer to the Station
/ommander of the Inte5rated <ational Police
within the territorial limits of the town or city
district where the store* establishment or entity
26
dealin5 in the buyin5 and sellin5 of used
secondhand articles is located.
PROCEDURE )OR SECURING
PERMITHCLEARANCE
6he Implementin5 #ules provided for the
method of obtainin5 clearance or permit. <o fee
will be char5ed for the issuance of the
clearanceHpermit. ;ailure to secure
clearanceHpermit shall be punished as a fence*
which may result to the cancellation of business
license.
DUTIES AND RESPONSIBILIES O) STATION
MANAGER AND OWNER O) SECOND(AND
STORES

6he Station /ommander shall reuire the
owner of a store or the President* mana5er or
responsible oFcer in havin5 in stoc7 used
secondhand articles* to submit an initial
aFdavit within thirty (=(. days from receipt of
notice for the purpose thereof and subseuent
aFdavits once every ffteen ($&. days within
fve (&. days after the period covered* which
shall containG
a.complete inventory of such articles
includin5 the names and addresses from
whom the articles were acuired.
b.;ull list of articles to be sold or ofered for
sale includin5 the time and place of sale
c. Place where the articles are presently
deposited.
27
W(AT MA-BE RE0UIRED B- T(E STATION
COMMANDER OR OWNER O) SECOND(AND
STORES OR DEALERS
6he Station /ommander may* reuire the
submission of an aFdavit accompanied by other
documents showin5 proof of le5itimacy of
acuisition.
$.6hose who wish to secure the
permitHclearance* shall fle an application with
the Station /ommander concerned* which
statesG
a.name* address and other pertinent
circumstances
b.article to be sold or ofered for sale to the
public and the name and address of the
unlicensed dealer or supplier from whom
such article was acuired.
c. Include the receipt or document showin5
proof of le5itimacy of acuisition.
2. 6he Station /ommander shall e3amine the
documents attached to the application and
may reuire the presentation of other
additional documents* if necessary* to show
satisfactory proof of the le5itimacy of
acuisition of the article* sub>ect to the
followin5 conditionsG
If the Station /ommander is not satisfed
with the proof of le5itimacy of acuisition* he
shall cause the publication of the notice* at
the e3pense of the one see7in5
clearanceHpermit* in a newspaper of 5eneral
circulation for two consecutive days* statin5G
a.articles acuired from unlicensed dealer
or supplier
b. the names and addresses of the persons
from whom they were acuired
28
c. that such articles are to be sold or
ofered for sale to the public at the
address of the store* establishment or
other entity see7in5 the
clearanceHpermit.
=.If there are no newspapers in 5eneral
circulation* the party see7in5 the
clearanceHpermit shall* post a notice daily for
one wee7 on the bulletin board of the
municipal buildin5 of the town where the store*
frm* establishment or entity is located or* in
the case of an individual* where the articles in
his possession are to be sold or ofered for
sale.
8.If after $& days* upon e3piration of the period
of publication or of the notice* no claim is
made to any of the articles enumerated in the
notice* the Station /ommander shall issue the
clearance or permit sou5ht.

&.If before e3piration of the same period for the
publication of the notice or its postin5* it shall
appear that any of the articles in uestion is
stolen property* the Station /ommander shall
hold the article in restraint as evidence in any
appropriate case to be fled.
).Articles held in restraint shall 7ept and
disposed of as the circumstances of each case
permit. In any case it shall be the duty of the
Station /ommander concerned to adviseHnotify
the /ommission on Audit of the case and
comply with such procedure as may be proper
under applicable e3istin5 laws* rules and
re5ulations.
9.6he Station /ommander shall* within seventy-
two (9%. hours from receipt of the application*
29
act thereon by either issuin5 the
clearanceHpermit reuested or denyin5 the
same. Cenial of an application shall be in
writin5 and shall state in brief the reasonHs
thereof.
-.Any party not satisfed with the decision of the
Station /ommander may appeal the same
within $( days to the proper I<P (now P<P.
Cistrict Superintendent and further to the I<P
(now P<P. Cirector. 6he decision of the Cirector
can still be appealed top the Cirector-"eneral*
within $( days* whose decision may be
appealed with the ?inister (now Secretary. of
<ational Cefense* within $& days* which
decision is fnal.
PRIMA)ACIE E,IDENCE O) )ENCING
?ere possession of any 5ood* article* item*
ob>ect or anythin5 of value which has been the
sub>ect of robbery or thievery* shall be prima facie
evidence of fencin5.
ELEMENTS O) ,IOLATION O) T(E ANTI.
)ENCING LAW
$.A crime of robbery or theft has been
committed!
%.6he accused* who is not a principal or
accomplice in the commission of the crime of
robbery or theft* buys* receives* possess*
7eeps* acuires* conceals* sells* or disposes* or
buys and sells* or in any manner deals in any
article* item* ob>ect or anythin5 of value* which
has been derived from the proceeds of the said
crime!
30
=.6he accused 7nows or should have 7nown that
the said article* item* or ob>ect or anythin5 of
value has been derived from the proceeds of
the crime of robbery or theft! and
8.6here is* on the part of the accused* intent to
5ain for himself or for another. (CiDon-
Pamintuan vs People* "# $$$8%)* $$ +uly '8.
DISCUSSION O) T(E ELEMENTS.
A. As re5ards the frst element* the crime of
robbery or theft should have been committed
before crime of fencin5 can be committed. 6he
person committin5 the crime of robbery or theft*
may or may not be the same person committin5
the crime of fencin5. As in the case of D.M.
Consunji !nc. vs. "s#uerra* uantities of phelonic
plywood were stolen and the /ourt held that
ualifed theft had been committed. In People vs.
Lucero there was frst a snatchin5 incident* where
the ba5 of ?rs. ?aripaD Bernard #amolete was
snatch in the public mar7et of /arbon* /ebu /ity*
where she lost a /hinese "old <ec7lace and
pendant worth some P8*(((.(( to snatchers
?anuel Jlardo and Qacarias Pateras. 6he snatchers
sold the items to ?anuel Lucero. /onseuently*
Lucero was char5ed with violation of the Anti-
;encin5 Law. Aowever* in this case* no eyewitness
pointed to Lucero as the perpetrator and the
evidence of the prosecution was not stron5 enou5h
to convict him $read t%is case&.
B. 6he second element spea7s of the overt act
of 7eepin5* buyin5* receivin5* possessin5*
acuirin5* concealin5* sellin5 or disposin5 or in any
manner deals with stolen items. It is thus
illustrated in the case of Lim vs. /ourt of Appeals*
where the accused* +uanito Lim stored and 7ept in
his bode5a and subseuently bou5ht or disposed of
31
the nine ('. pieces of stolen tires with rims owned
by Loui Anton Bond.
/. 6he accused 7now or should have 7nown
that the 5oods were stolen. As pointed out in the
case of People vs. Adriatico* the court in convictin5
<orma Adriatico* stated that it was not impossible
for her to 7now that the >ewelry were stolen
because of the fact that /risilita was willin5 to part
with a considerable number of >ewelry at measly
sum* and this should have apprised <orma of the
possibility that they were stolen 5oods. 6he
appro3imate total value of the >ewelry were held to
be at P%(*(((.((* and <orma havin5 bou5ht it from
/risilita for only P%*9((. 6he court also considered
the fact that <orma en5a5e in the business of
buyin5 and sellin5 5old and silver* which business
is very well e3posed to the practice of fencin5. 6his
reuires more than ordinary case and caution in
dealin5 with customers. As noted by the trial courtG
1. . . the /ourt is not inclined to accept the
accused4s theory of buyin5 in 5ood faith and
disclaimer of ever seein5* much more* buyin5 the
other articles. Auman e3perience belies her
alle5ations as no businessman or woman at that*
would let 5o of such opportunities for a clean proft
at the e3pense of innocent owners.,,
W(EN POSSESSION UNDER CERTAIN
CIRCUMSTANCES SUC( AS DISPLA-ING T(E
SAME IN T(E S(EL,ES IS AN ACT O) )ENCING
6he /ourt in convictin5 Jrnesto Cunlao Sr.*
noted that the stolen articles composed of
farrowin5 crates and ".I. pipes were found
displayed on petitioner4s shelves inside his
compound. (Cunalao* Sr. v. /A* (-H%%H').
32
W(EN T(E)T OR ROBBER- AS )IRST ELEMENT
WAS NOT PRO,EN.
In the case of People v. Muere (".#.$%'(%*
$(H$-H'8.* the third element was not proven. 6his
case involves the sellin5 of alle5ed stolen Renwood
Stereo 2nit in the store Canvir 6radin5* owned by
the spouses ?uere. 6he store is en5a5ed in buyin5
and sellin5 of second hand merchandise located at
Pasay #oad* ?a7ati. 6he said stereo was bou5ht
from :ynn4s Audio* an e3istin5 establishment. 6he
court held that there is no proof that the spouses
?uere* had 7nowled5e of the fact that the stereo
was stolen. 6he spouses ?uere purchased the
stereo from a 7nown merchant and the unit is
displayed for sale in their store. 6hese actions are
not indicative of a conduct of a 5uilty person.
W(EN T(ERE IS NO PROO) T(AT T(E
ACCUSED BOUG(T OR SOLD ARTICLES
INOWING T(E SAME TO BE STOLEN. T(US
T(E T(IRD ELEMENT IS NOT PRESENT.
@n the same vein* the third element did not
e3ist in the case of D.M. Consunji !nc. (/onsun>i v.
Js5uerra* (9H=(H'). where the sub>ect of the court
action are the alle5ed stolen phelonic plywood
owned by C.?. /onsun>i* Inc.* later found to be in
the premises of ?/ Industrial Sales and Seato
tradin5 /ompany* owned respectively by Jduardo
/hin5 and the spouses Sy. #espondents presented
sales receipts coverin5 their purchase of the items
from Paramount Industrial* which is a 7nown
hardware store in /aloocan* thus they had no
reason to suspect that the said items were
products of theft.
33
INTENT TO GAIN NEED NOT BE PRO,EN IN
ANTI.)ENCING LAW.
6he last element is that there is intent to 5ain
for himself or for another. Aowever* intent to 5ain
need not be proven in crimes punishable by a
special law such as the Anti-;encin5 Law. 6he
crimes punishable by special laws are called 1acts
mala pro%ibita1. 6he rule on the sub>ect is that in
acts mala pro%ibita the only inuiry is that* has the
law been violatedE (in "atdner v. People* as cited in
2S v. "o /hico* $8 Phils. $=8. :hen the act is
prohibited by law* intent is immaterial.
DELIBERATE INTENT OR DOLO OR DECEIT IS
NOT ALSO MATERIAL IN ANTI.)ENCING.
Li7ewise* dolo or deceit is immaterial in crimes
punishable by special statute li7e the Anti-;encin5
Law. It is the act itself which constitutes the ofense
and not the motive or intent. Intent to 5ain is a
mental state* the e3istence if which is
demonstrated by the overt acts of the person. 6he
mental state is presumed from the commission of
an unlawful act. (Cunlao v. /A. a5ain* intent to 5ain
is a mental state* the e3istence of which is
demonstrated by the overt acts of person* as the
7eepin5 of stolen items for subseuent sellin5.
A )ENCE MA- BE PROSECUTED
UNDER T(E RPC OR PD $6$2 OR BOT(
6he state may thus choose to prosecute him
either under the #P/ or PC <@. $)$% althou5h the
preference for the latter would seem inevitable
considerin5 that fencin5 is a malum pro%ibitum*
and PC <o. $)$% creates a presumption of fencin5
34
and prescribes a hi5her penalty based on the value
of the property. (supra.
MERE POSSESSION O) STOLEN ARTICLE
PRIMA )ACIE E,IDENCE O) )ENCING.
Since Sec. & of PC <@. $)$% e3pressly provides
that Smere possession of any 5ood* article* item*
ob>ect or anythin5 of value which has been the
sub>ect of robbery or thievery shall be prima facie
evidence of fencin5T. It follows that the accused is
presumed to have 7nowled5e of the fact that the
items found in her possession were the proceeds of
robbery or theft. 6he presumption does not ofend
the presumption of innocence enshrined in the
fundamental law.
DISTINCTION BETWEEN )ENCING AND
ROBBER-
6he law on fencin5 does not reuire the
accused to have participation in the criminal
desi5n to commit or to have been in any wise
involved in the commission of the crime of robbery
or theft. <either is the crime of robbery or theft
made to depend on an act of fencin5 in order that
it can be consummated. (People v Ce "uDman* "#
99=)-..
DISTINCTION BETWEEN ROBBER- AND
)ENCING
#obbery is the ta7in5 of personal property
belon5in5 to another* with intent to 5ain* by means
of violence a5ainst or intimidation of any person* or
usin5 force upon anythin5.
35
@n the other hand* fencin5 is the act of any
person who* with intent to 5ain for himself or for
another* shall buy* receive* possess* 7eep* acuire*
conceal* sell or dispose of* or shall buy and sell* or
in any other manner deal in any article* item*
ob>ect or anythin5 of value which he 7nows* or
shall be 7nown to him* to have been derived from
the proceeds of the crime of robbery or theft.
)ENCING AS A CRIME IN,OL,ING MORAL
TURPITUDE
In violation of the Anti-;encin5 Law* actual
7nowled5e by the 1fence1 of the fact that property
received is stolen displays the same de5ree of
malicious deprivation of one4s ri5htful property as
that which animated the robbery or theft which by
their very nature are crimes of moral turpitude.
(Cela 6orre v. /@?JLJ/ (9H(&H').
?oral turpitude can be derived from the third
element - accused 7nows or should have 7nown
that the items were stolen. Participation of each
felon* one bein5 the robber or the thief or the
actual perpetrators* and the other as the fence*
difers in point in time and de5ree but both invaded
one4s peaceful dominion for 5ain. (Supra. Both
crimes ne5ated the principle of each person4s duty
to his fellowmen not to appropriate thin5s that they
do not own or return somethin5 acuired by
mista7e or with malice. 6his si5nifes moral
turpitude with moral unftness.
In the case of Cela 6orre* he was declared
disualifed from runnin5 the position of ?ayor in
/avinti* La5una in the last ?ay -* $''& elections
because of the fact of the disualifcation under
Sec. 8( of the Local "overnment /ode* of persons
runnin5 for elective position -1Sec. 8(
36
Cisualifcations - (a. 6hose sentenced by fnal
>ud5ement for an ofense involvin5 moral
turpitude...1
Cela 6orre was disualifed because of his prior
conviction of the crime of fencin5 wherein he
admitted all the elements of the crime of fencin5.
ESSENCE O) ,IOLATION O) PD $6$2!
SEC. 2 OR ANTI.)ENCING
PC $)$%* Section % thereof reuires that the
ofender buys or otherwise acuires and then sells
or disposes of any ob>ect of value which he 7nows
or should he 7nown to him to have been derived
from the proceeds of the crime of robbery or theft.
(/aoili v /A! "# $%-=)'* $%H%%H'9.
PROO) O) PURC(ASE W(EN GOODS
ARE IN POSSESSION O) O))ENDER
NOT NECESSAR- IN ANTI.)ENCING
6he law does not reuire proof of purchase of
the stolen articles by petitioner* as mere
possession thereof is enou5h to 5ive rise to a
presumption of fencin5.
It was incumbent upon petitioner to overthrow
this presumption by suFcient and convincin5
evidence. (/aoili v. /A! "# $%-=)'* $%H%%H'9.
37
BATAS PAMBANSA BLG. 22
BOUNCING C(ECIS LAW
ACTS PUNIS(ABLE IN BP 22
a.any person who ma7es or draws and issues any
chec7 to apply on account or for value*
7nowin5 at the time of issue that he does not
have suFcient funds in or credit with the
drawee ban7* for the payment of such chec7 in
full upon its presentment* which chec7 is
subseuently dishonored by the drawee ban7
for insuFciency of funds* or credit* or would
have been dishonored for the same reason had
not the drawee* without any valid reason*
ordered the ban7 to stop payment.
b.Any person who havin5 suFcient funds in or
credit with the drawee ban7 when he ma7es or
draws and issues a chec7* shall fail to 7eep
suFcient funds or to maintain a credit to cover
the full amount of the chec7 if presented within
a period of ninety days from date appearin5
thereon* for which reason* it is dishonored by
the drawee ban7.
c. Any person who issue any chec7 whose
account already closed whether the drawee
7nows that his account is closed or not.
(OW TO ESTABLIS( GUILT
O) ACCUSED IN BP 22
6o establish her 5uilt* it is indispensable that
the chec7s she issued for which she was
subseuently char5ed* be ofered in evidence
because the 5ravamen of the ofense char5ed is
the act of 7nowin5ly issuin5 a chec7 with
38
insuFcient funds. /learly* it was error to convict
complainant on the basis of her letter alone.
<evertheless* despite this incorrect interpretation
of a rule on evidence* we do not fnd the same as
suFciently constitutive of the char5es of 5ross
i5norance of the law and of 7nowin5ly renderin5 an
un>ust decision. #ather* it is at most an error in
>ud5ment* for which* as a 5eneral rule* he cannot
be held administratively liable. In this re5ard* we
reiterate the prevailin5 rule in our >urisdiction as
established by current >urisprudence. ("utierreD v
Pallatao! -H-H'-.
NOTICE! AN INDISPENSABLE
RE0UISITE )OR PROSECUTION
Section = of BP %% reuires that the holder of
the chec7 or the drawee ban7* must notify the
drawer of the chec7 that the same was dishonored*
if the same is presented within ninety days from
date of issuance* and upon notice the drawer has
fve days within which to ma7e arran5ements for
the payment of the chec7 or pay the same in full.
DUT- O) T(E DRAWEE BANI
6he drawee ban7 has the duty to cause to be
written* printed or stamped in plain lan5ua5e
thereon* or attached thereto the reason for the
drawee,s dishonor or refusal to pay the same. If
the drawee ban7 fails to do so* prosecution for
violation of BP %% may not prosper.
DUT- O) T(E BANI AND RULE IN CASE O)
DIS(ONOR DUE TO STOP PA-MENT
39
6he drawee ban7 has not only the duty to
indicate that the drawer stopped the payment and
the reason for the stop payment. 6he drawee ban7
is further obli5ated to state whether the drawer of
the chec7 has suFcient funds in the ban7 or not.
AGREEMENT O) PARTIES REGARDING T(E
C(ECI IS NOT A DE)ENSE
In the case of People vs 'itafan* %$& S/#A* the
a5reement of the parties in respect to the issuance
of the chec7 is inconseuential or will not afect the
violation of BP %%* if the chec7 is presented to the
ban7 and the same was dishonored due to
insuFciency of funds.
C(ECIS ISSUED IN PA-MENT O)
INSTALLMENT STILL IN ,IOLATION O) B.P. 22
/hec7s issued in payment for installment
covered by promissory note and said chec7s
bounced* the drawer is liable if the chec7s were
drawn a5ainst insuFcient funds* especially that the
drawer* upon si5nin5 of the promissory note*
closed his account. Said chec7 is still with
consideration. (/aram #esources v. /ontreras.
In this case* the +ud5e was even held
administratively liable.
C(ECI DRAWN AGAINST A DOLLAR ACCOUNT
IN )OREIGN COUNTR- IS STILL A ,IOLATION
O) B.P. 22 AS LONG AS T(E C(ECI IS
DELI,ERED ON T(E P(ILIPPINES AND I) IT IS
PA-ABLE OUTSIDE O) T(E P(ILS.
A chec7 drawn a5ainst a dollar account in a
forei5n country is still violative of the provisions of
40
BP %% so lon5 as the chec7 is issued* delivered or
uttered in the Philippines* even if the same is
payable outside of the Philippines (Ce Iilla v. /A.
GUARANTEE C(ECIS! DRAWER IS NOT LIABLE
I) T(E LESSOR W(O IS RECIPIENT O)
GUARANTEE C(ECI PULLED OUT O) T(E
LOANED E0UIPMENT.
6he mere act of issuin5 a worthless chec7 is
punishable. @fender cannot claim 5ood faith for it
is malum prohibitum.
In the case of Ma#no vs C(* when accused
issued a chec7 as warranty deposit for lease of
certain euipment* even 7nowin5 that he has no
funds or insuFcient funds in the ban7 is not liable*
if the lessor of the euipment pulled out the loaned
euipment. 6he drawer has no obli5ation to ma7e
5ood the chec7 because there is no more deposit
to 5uaranty.
ISSUANCE O) GUARANTEE C(ECIS W(IC(
WAS DIS(ONORED IS STILL A ,IOLATION O)
BP 22. PREJUDICE OR DAMAGE IS NOT
NECESSARR-
6he intention of the framers of BP %% is to
ma7e a mere act of issuin5 a worthless chec7
malum prohibitum. In prosecutions for violation of
BP %%* therefore* pre>udice or dama5e is not
prereuisite for conviction.
6he a5reement surroundin5 the issuance of the
chec7s need not be frst loc7ed into* since the law
has provided that the mere issuance of any 7ind of
chec7! re5ardless of the intent of the parties* i.e.*
41
whether the chec7 is intended merely to serve as
5uarantee or deposit* but which chec7s is
subseuently dishonored* ma7es the person who
issued the chec7 liable. (LaDaro vs /A* et al.* "#
$(&8)$..
CAN A PERSON BE (ELD LIABLE )OR
,IOLATION O) B.P. 22 IN ISSUING A C(ECI
WIT( SU))ICIENT )UNDS4
)es. Para5raph % of Section $ of BP %%
providesG
6he same penalty shall be imposed upon any
person who havin5 suFcient funds in or credit with
the drawee ban7 when he ma7es or draws and
issues a chec7* shall fail to 7eep suFcient funds or
to maintain a credit to cover the full amount of the
chec7 if presented within a period of '( days from
the date appearin5 thereon* for which reason* it is
dishonored by the drawee ban7.
DI))ERENCE BETWEEN ESTA)A
AND ,IOLATION O) BP 22
In the crime of estafa* deceit and dama5e are
essential elements of the ofense and have to be
established with satisfactory proof to warrant
conviction. ;or violation of the Bouncin5 /hec7s
Law* on the other hand* the elements of deceit and
dama5e are neither essential nor reuired. #ather*
the elements of B.P. Bl5. %% are (a. the ma7in5*
drawin5 and issuance of any chec7 to apply to
account or for value! (b. the ma7er* drawer or
issuer 7nows at the time of issuance that he does
not have suFcient funds in or credit with the
drawee ban7 for the payment of such chec7 in full
upon its presentment! and* (c. the chec7 is
42
subseuently dishonored by the drawee ban7 for
insuFciency of funds or credit or would have been
dishonored for the same reason had not the
drawer* without valid reason* ordered the ban7 to
stop payment. (2y v /ourt of Appeals* "# $$'(((*
+uly %-* $''9.
RULES OR JURISDICTION IN RELATION TO T(E
COURTS W(ERE
BP 22 CASES MA-BE )ILED
In respect of the Bouncin5 chec7s case* the
ofense also appears to be continuin5 in nature. It
is true that the ofense is committed by the very
fact of its performance (/olmenares vs. Iillar* <o.
L-%9$%)* ?ay %'* $'9(* == S/#A $-).! and that the
Bouncin5 /hec7s Law penaliDes not only the fact of
dishonor of a chec7 but also the act of ma7in5 or
drawin5 and issuance of a bouncin5 chec7 (People
vs. Aon. Ieridiano* II* <o. L-)%%8=* $=% S/#A &%=..
6he case* therefore* could have been fled also in
Bulacan. As held in Pue vs. People of the
Philippines* ".#. <os. 9&%$9-$-* September $$*
$'-9 1the determinative factor (in determinin5
venue. is the place of the issuance of the chec71.
Aowever* it is li7ewise true that 7nowled5e on the
part of the ma7er or drawer of the chec7 of the
insuFciency of his funds* which is an essential
in5redient of the ofense is by itself a continuin5
eventuality* whether the accused be within one
territory or another (People vs. Aon. ?anDanilla*
".#. <os. ))((=-(8* Cecember $$* $'-9..
Accordin5ly* >urisdiction to ta7e co5niDance of the
ofense also lies in the #e5ional 6rial /ourt of
Pampan5a $no* M.+.C. of t%e proper to*n of
Pampan#a&.
And* as pointed out in the ?anDanilla case*
>urisdiction or venue is determined by the
43
alle5ation in the Information* which are controllin5
(Arches vs. Bellosillo* -$ Phil. $'(* cited in 6uDon
vs. /ruD* <o. L-%98$(* Au5ust %-* $'9&* )) S/#A
%=&.. 6he Information fled herein specifcally
alle5es that the crime was committed in San
;ernando Pampan5a and therefore within the
>urisdiction of the /ourt below.
6his rulin5 was reiterated in the case of Lim vs.
Rodri#o* $)9 S/#A 8-9* where it was heldG
Besides* it was held in People v. ,on.
Man-anilla* supra* that as 1violation of the bad
chec7s act is committed when one 4ma7es or draws
and issues any chec7 LsicM to apply on account or
for value* 7nowin5 at the time issue that he does
not have suFcient funds4 or havin5 suFcient funds
in or credit with the drawee ban7 . . . shall fail to
7eep suFcient funds or to maintain a credit to
cover the full amount of the chec7 if presented
within a period of ninety ('(. days from the date
appearin5 thereon* for which reason it is
dishonored by the drawee ban7*1 17nowled5e1 is an
essential in5redient of the ofense char5e. As
defned by the statute* 7nowled5e* is* by itself* a
continuin5 eventuality* whether the accused be
within one territory or another. 6his bein5 the case*
the #e5ional 6rial /ourt of Ba5uio /ity has
>urisdiction to try /riminal /ase <o. %(-'-# ()--..
?oreover* we ruled in the same case of People
v. Aon. ?anDanilla* reiterated in People vs. Grospe*
supra* that >urisdiction or venue is determined by
the alle5ations in the information. 6he alle5ation in
the information under consideration that the
ofense was committed in Ba5uio /ity is therefore
controllin5 and suFcient to vest >urisdiction upon
the #e5ional 6rial /ourt of Ba5uio /ity.
44
In the case at bench it appears that the three
(=. chec7s were deposited in Lucena /ity. As to the
second error wherein the petitioner asserted that
the chec7s were issued 1as a 5uarantee only for
the feeds delivered to him1 and that there is no
estafa if a chec7 is issued in payment of a pre-
e3istin5 obli5ation* the /ourt of Appeals pointed
out that the petitioner obviously failed to
distin5uish a violation of B.P. Bl5. %% from estafa
under Article =$& (%. LdM of the #evised Penal /ode.
It further stressed that B.P. Bl5. %% applies even in
cases where dishonored chec7s were issued as a
5uarantee or for deposit only* for it ma7es no
distinction as to whether the chec7s within its
contemplation are issued in payment of an
obli5ation or merely to 5uarantee the said
obli5ation and the history of its enactment evinces
the defnite le5islative intent to ma7e the
prohibition all-embracin5. (Ibasco vs /A* %)$
S/#A &9%.
ACTUAL INOWLEDGE O) INSU))ICIENC- O)
)UNDS ESSENTIAL IN BP 22
Rnowled5e of insuFciency of funds or credit in
the drawee ban7 for the payment of a chec7 upon
its presentment is an essential element of the
ofense. 6here is a prima facie presumption of the
e3istence of this element from the fact of drawin5*
issuin5 or ma7in5 a chec7* the payment of which
was subseuently refused for insuFciency of
funds. It is important to stress* however* that this is
not a conclusive presumption that forecloses or
precludes the presentation of evidence to the
contrary. (Lim Lao v /A %98 S/#A &9%.
45
W(EN LACI O) INOWLEDGE AND LACI O)
POWER TO )UND T(E C(ECIS IN CASES O)
BP 22 A DE)ENSE
After a thorou5h review of the case at bar* the
/ourt fnds that Petitioner Lina Lim Lao did not
have actual 7nowled5e of the insuFciency of funds
in the corporate accounts at the time she aF3ed
her si5nature to the chec7s involved in this case* at
the time the same were issued* and even at the
time the chec7s were subseuently dishonored by
the drawee ban7.
6he scope of petitioner4s duties and
responsibilities did not encompass the fundin5 of
the corporation4s chec7s! her duties were limited to
the mar7etin5 department of the Binondo branch.
2nder the or5aniDational structure of Premiere
;inancin5 /orporation* fundin5 of chec7s was the
sole responsibility of the 6reasury Cepartment.
(Lim Lao v /A %98 S/#A &9%.
LACI O) ADE0UATE NOTICE O) DIS(ONOR! A
DE)ENSE
6here can be no prima facie evidence of
7nowled5e of insuFciency of funds in the instant
case because no notice of dishonor was actually
sent to or received by the petitioner.
6he notice of dishonor may be sent by the
ofended party or the drawee ban7. 6he trial court
itself found absent a personal notice of dishonor to
Petitioner Lina Lim Lao by the drawee ban7 based
on the unrebutted testimony of @campo 1(t.hat the
chec7s bounced when presented with the drawee
ban7 but she did not inform anymore the Binondo
branch and Lina Lim Lao as there was no need to
inform them as the corporation was in distress.1
46
6he /ourt of Appeals aFrmed this factual fndin5.
Pursuant to prevailin5 >urisprudence* this fndin5 is
bindin5 on this /ourt. (Lim Lao v /A! )H%(H'9.
47
ANTI.GRA)T J CORRUPT PRACTICES ACT
BRA NO K3$5C
ANTI.GRA)T AND CORRUPT
PRACTICES ACT
Corrupt practices of public o.cers.
(a. Persuadin5* inducin5 or inNuencin5 another
public oFcer to perform an act constitutin5
a violation of rules and re5ulations duly
promul5ated by competent authority or an
ofense in connection with the oFcial duties
of the latter* or allowin5 himself to be
persuaded* induced* or inNuenced to commit
such violation or ofense.
(b. Cirectly or indirectly reuestin5 or
receivin5 any 5ift* present* share*
percenta5e* or beneft* for himself or for any
other person* in connection with any
contract or transaction between the
"overnment and any other part* wherein the
public oFcer in his oFcial capacity has to
intervene under the law.
(c. Cirectly or indirectly reuestin5 or
receivin5 any 5ift* present or other pecuniary
or material beneft* for himself or for
another* from any person for whom the
public oFcer* in any manner or capacity* has
secured or obtained* or will secure or obtain*
any "overnment permit or license* in
consideration for the help 5iven or to be
5iven* without pre>udice to Section thirteen
of this Act.
(d. Acceptin5 or havin5 any member of his
family accept employment in a private
48
enterprise which has pendin5 oFcial
business with him durin5 the pendency
thereof or within one year after its
termination.
(e. /ausin5 any undue in>ury to any party*
includin5 the "overnment* or 5ivin5 any
private party any unwarranted benefts*
advanta5e or preference in the dischar5e of
his oFcial administrative or >udicial functions
throu5h manifest partiality* evident bad faith
or 5ross ine3cusable ne5li5ence. 6his
provision shall apply to oFcers and
employees of oFces or 5overnment
corporations char5ed with the 5rant of
licenses or permits or other concessions.
( f . <e5lectin5 or refusin5* after due demand
or reuest* without suFcient >ustifcation* to
act within a reasonable time on any matter
pendin5 before him for the purpose of
obtainin5* directly or indirectly* from any
person interested in the matter some
pecuniary or material beneft or advanta5e*
or for the purpose of favorin5 his own
interest or 5ivin5 undue advanta5e in favor
of or discriminatin5 a5ainst any other
interested party.
(5. Jnterin5* on behalf of the "overnment* into
any contract or transaction manifestly and
5rossly disadvanta5eous to the same*
whether or not the public oFcer profted or
will proft thereby.
(h. Cirector or indirectly havin5 fnancin5 or
pecuniary interest in any business* contract
or transaction in connection with which he
intervenes or ta7es part in his oFcial
capacity* or in which he is prohibited by the
49
/onstitution or by any law from havin5 any
interest.
(i. Cirectly or indirectly becomin5 interested*
for personal 5ain* or havin5 a material
interest in any transaction or act reuirin5
the approval of a board* panel or 5roup of
which he is a member* and which e3ercises
discretion in such approval* even if he votes
a5ainst the same or does not participate in
the action of the board* committee* panel or
5roup.
Interest for personal 5ain shall be presumed
a5ainst those public oFcers responsible for
the approval of manifestly unlawful*
ineuitable* or irre5ular transaction or acts
by the board* panel or 5roup to which they
belon5.
( >. Rnowin5ly approvin5 or 5rantin5 any
license* permit* privile5e or beneft in favor
of any person not ualifed for or not le5ally
entitled to such license* permit* privile5e or
advanta5e* or of a mere representative or
dummy of one who is not so ualifed or
entitled.
(7. Civul5in5 valuable information of a
confdential character* acuired by his oFce
or by him on account of his oFcial position
to unauthoriDed persons* or releasin5 such
information in advance of its authoriDed
release date.
UNE*PLAINED WEALT(! MEANING
Prima facie evidence of and dismissal due to
une3plained wealth. If in accordance with the
provisions of #A $=9'* a public oFcial has been
50
found to have acuired durin5 his incumbency*
whether in his name or in the name of other
persons* an amount of property andHor money
manifestly out of proportion to his salary and to his
other lawful income* that fact shall be a 5round for
dismissal or removal.
'oteG 2nsolicited 5ifts or presents of small or
insi5nifcant value shall be ofered or 5iven as a
mere ordinary to7en of 5ratitude or friendship
accordin5 to local customs or usa5e shall be
e3empted from the provision of this act.
MEANING O) DCAUSING UNDUE INJUR-L
6he act of 5ivin5 any private party any
unwarranted beneft* advanta5e or preference is
not an indispensable element of causin5 any undue
in>ury to any part* althou5h there may be instances
where both elements concur. (Santia5o vs
"architorena* et al.* % Cec. '=..
In Mejoroda v /andi#anbayan* the Supreme
/ourt has ruled that the ofender in causin5 undue
in>ury does not refer only to those who are in
char5e of 5ivin5 permits* licenses or concessions
but all acts of public oFcers or employees which
have caused undue in>ury to others.
ELEMENTS O) NEGLECT O) DUT- UNDER SEC.
K O) RA K3$5
a.the ofender is a public oFcer!
b.the said oFcer has ne5lected or has refused
to act without suFcient >ustifcation after due
demand or reuest has been made upon him!
51
c. reasonable time has elapsed from such
demand or reuest without the public oFcer
havin5 acted on the matter pendin5 before
him!
d.such failure to so act is for the purpose of
obtainin5 directly or indirectly from any
person interested in the matter some
pecuniary or material beneft or advanta5e in
favor of an interested party or discriminatin5
a5ainst another. /oronado v Sandi5anbayan.
W(ERE PUBLIC O))ICER ACTED WIT(
MANI)EST PARTIALIT-!
E,IDENT BAD )AIT(! OR INE*CUSABLE
NEGLIGENCE
Sec. =. /orrupt practices of public oFcers. - In
addition to acts or omissions of public oFcers
already penaliDed by e3istin5 law* the followin5
shall constitute corrupt practices of any public
oFcer and are hereby declared to be unlawfulG
333 333 333
(e.. /ausin5 any undue in>ury to any party*
includin5 the "overnment* or 5ivin5 any private
party any unwarranted benefts* advanta5e or
preference in the dischar5e of his oFcial
administrative or >udicial functions throu5h
manifest partiality* evident bad faith or 5ross
ine3cusable ne5li5ence. 6his provision shall apply
to oFcers and employees of oFces or 5overnment
corporations char5ed with the 5rant of licenses or
permits or other concessions.
,IOLATION O) SECTION K BEC O) RA K3$5
RE0UIRES PROO) O) T(E )OLLOWING )ACTS!
,I1:
52
a.the accused is a public oFcer dischar5in5
administrative or oFcial functions or private
persons char5ed in conspiracy with them!
b.the public oFcer committed the prohibited act
durin5 the performance of his oFcial duty or in
relation to his public position!
c. the public oFcer acted with manifest partiality
evident bad faith or 5ross* ine3cusable
ne5li5ence! and
d.his action caused undue in>ury to the
5overnment or any private party* or 5ave any
party any unwarranted beneft* advanta5e or
preference to such parties.
CAUSING UNDUE INJUR- UNDER SEC. K!
LETTER BeC O) RA K3$5. INCLUDES ALL
PUBLIC O))ICERS INCLUDING T(OSE T(AT
DOES NOT ISSUE LICENSE OR PERMIT OR
CONCESSION.
Section = enumerates in eleven subsections
the corrupt practices of any public oFcer declared
unlawful. Its reference to any public oFcer is
without distinction or ualifcation and it specifes
the acts declared unlawful. :e a5ree with the view
adopted by the Solicitor "eneral that the last
inclusion of oFcers and employees of oFces or
5overnment corporations which* under the ordinary
concept of Spublic oFcerT may not come within the
term. It is a strained construction of the provision
to read it as applyin5 e3clusively to public oFcers
char5ed with the duty of 5rantin5 license or
permits or other concessions. (?e>orada v
Sandi5anbayan* $&$ S/#A =''..
53
SUSPENSION UNDER R.A. K3$5 MANDATOR-
BUT COURTS ARE ALLOWED TO DETERMINE
W(ET(ER IN)ORMATION IS ,ALID OR NOT
It is well settled that Section $= of #A =($'
ma7es it mandatory for the Sandi5anbayan (or the
/ourt. to suspend any public oFcer a5ainst whom
a valid information char5in5 violation of this law*
Boo7 II* 6itle 9 of the #P/* or any ofense involvin5
fraud upon 5overnment or public funds or property
is fled in court. 6he court tryin5 a case has neither
discretion nor duty to determine whether
preventive suspension is reuired to prevent the
accused from usin5 his oFce to intimidate
witnesses or frustrate his prosecution or continue
committin5 malfeasance in oFce. All that is
reuired is for the court to ma7e a fndin5 that the
accused stands char5ed under a valid information
for any of the above-described crimes for the
purpose of 5rantin5 or denyin5 the sou5ht for
suspension. (Bolasti5 vs. Sandi5anbayan* ".#. <o.
$$(&(= LAu5ust 8* $''8M* %=& S/#A $(=..In the
same case* the /ourt held that 1as applied to
criminal prosecutions under #A =($'* preventive
suspension will last for less than ninety ('(. days
only if the case is decided within that period!
otherwise* it will continue for ninety ('(. days.1
(/onducto v. ?onDon! A.?. <o. ?6+-'--$$89* +uly
%* $''-. (see also sec $=.
PUBLIC O))ICER MA- BE SUSPENDED )ROM
(IS PRESENT POSITION E,EN I) T(E CRIME
W(IC( (E IS BEING C(ARGED WAS
COMMITTED DURING (IS PRE,IOUS TERM
+ud5e ?onDon4s contention denyin5
complainant4s ?otion for Suspension because
1ofenses committed durin5 the previous term (is.
54
not a cause for removal durin5 the present term1 is
untenable. In the case of #odolfo J. A5uinaldo vs.
Aon. Luis Santos and ?elvin Iar5as* %$% S/#A 9)-*
the /ourt held that 1the rule is that a public oFcial
cannot be removed for administrative misconduct
committed durin5 a prior term since his re-election
to oFce operates as a condonation of the oFcer4s
previous misconduct committed durin5 a prior
term* to the e3tent of cuttin5 of the ri5ht to
remove him therefor. 6he fore5oin5 rule* however*
fnds no application to criminal cases . . .1
Li7ewise* it was specifcally declared in the
case of !n#co vs. /anc%e-* ".#. <o. L-%=%%(* $-
Cecember $')9* %$ S/#A $%'%* that 16he rulin5*
therefore* that 4when the people have elected a
man to oFce it must be assumed that they did this
with 7nowled5e of his life and character and that
they disre5arded or for5ave his faults or
misconduct if he had been 5uilty of any4 refers only
to an action for removal from oFce and does not
apply to a criminal case1
/learly* even if the alle5ed unlawful
appointment was committed durin5 ?a5hiran54s
frst term as baran5ay chairman and the ?otion for
his suspension was only fled in $''& durin5 his
second term* his re-election is not a bar to his
suspension as the suspension sou5ht for is in
connection with a criminal case. (/onducto v.
?onDon %'$ scra )$'.
RE.ELECTION IN PUBLIC O))ICE
E*TINGUIS(ING ONL- (IS ADMINISTRATI,E
LIABILIT- BUT NOT (IS CRIMINAL LIABILIT-
As early as $- Cecember $')9 in !n#co v.
/anc%e-* $9 this /ourt e3plicitly ruled that the re-
election of a public oFcial e3tin5uishes only the
administrative* but not the criminal* liability
55
incurred by him durin5 his previous term of oFce*
thusG
6he rulin5* therefore* that 0 1when the people
have elected a man to his oFce it must be
assumed that they did this with 7nowled5e of his
life and character and that they disre5arded or
for5ave his faults or misconduct if he had been
5uilty of any1 0 refers only to an action for
removal from oFce and does not apply to criminal
case* because a crime is a public wron5 more
atrocious in character than mere misfeasance or
malfeasance committed by a public oFcer in the
dischar5e of his duties* and is in>urious not only to
a person or 5roup of persons but to the State as a
whole. 6his must be the reason why Article -' of
the #evised Penal /ode* which enumerates the
5rounds for e3tinction of criminal liability* does not
include reelection to oFce as one of them* at least
insofar as a public oFcer is concerned. Also* under
the /onstitution* it is only the President who may
5rant the pardon of a criminal ofense. (/onducto
v. ?onDon! A.?. <o. ?6+-'--$$89* +uly %* $''-.
PRE.CONDITION O) SUSPENSION
BPRE,ENTI,EC UNDER SEC. $K! RA K3$5
It is mandatory for the court to place under
preventive suspension a public oFcer accused
before it. Imposition of suspension* however* is not
automatic or self-operative. A pre-condition thereof
is the e3istence of a valid information* determined
at a pre-suspension hearin5. Such a hearin5 is in
accord with the spirit of the law* considerin5 the
serious and far-reachin5 conseuences of a
suspension of a public oFcial even before his
conviction* and the demands of public interest for a
speedy determination of the issues involved in the
case. 6he purpose of the pre-suspension hearin5 is
56
basically to determine the validity of the
information and thereby furnish the court with a
basis to either suspend the accused and proceed
with the trial on the merits of the case* or refuse
suspension of the latter and dismiss the case* or
correct any part of the proceedin5 which impairs its
validity. 6he accused should be 5iven adeuate
opportunity to challen5e the validity or re5ularity
of the criminal proceedin5s a5ainst him! e.5. that
he has not been aforded the ri5ht to due
preliminary investi5ation! that the acts imputed to
him do not constitute a specifc crime (under #.A.
=($' or the #evised Penal /ode. warrantin5 his
mandatory suspension from oFce under Section $=
of the Act! or that the information is sub>ect to
uashal on any of the 5rounds set out in #ule $$9
of the #ules of /ourt. But once a proper
determination of the validity of the information has
been made* it becomes the ministerial duty of the
court to forthwith issue the order of preventive
suspension. 6he court has no discretion* for
instance* to hold in abeyance the suspension of the
accused oFcial on the prete3t that the order
denyin5 the latter4s motion to uash is pendin5
review before the appellate courts. (Se5ovia v.
Sandi5anbayan! "# $%8()9* ?ar. %9* $''-.
GUIDELINES TO BE )OLLOWED
IN PRE,ENTI,E SUSPENSION CASES
1In the leadin5 case of Luciano et al. vs.
Mariano* et al. (L-=%'&(* +uly =(* $'9$* 8( S/#A
$-9.* we have set out the 5uidelines to be followed
by the lower courts in the e3ercise of the power of
suspension under Section $= of the law* to witG
(c. By way of broad 5uidelines for the lower
courts in the e3ercise of the power of suspension
from oFce of public oFcers char5ed under a valid
57
information under the provisions of #epublic Act
<o. =($' or under the provisions of the #evised
Penal /ode on bribery* pursuant to section $= of
said Act* it may be brieNy stated that upon the
flin5 of such information* the trial court should
issue an order with proper notice reuirin5 the
accused oFcer to show cause at a specifc date of
hearin5 why he should not be ordered suspended
from oFce pursuant to the cited mandatory
provisions of the Act. :here either the prosecution
seasonably fles a motion for an order of
suspension or the accused in turn fles a motion to
uash the information or challen5es the validity
thereof* such show-cause order of the trial court
would no lon5er be necessary. :hat is
indispensable is that the trial court duly hear the
parties at a hearin5 held for determinin5 the
validity of the information* and thereafter hand
down its rulin5* issuin5 the correspondin5 order of
suspension should it uphold the validity of the
information or withhold such suspension in the
contrary case.
(d. <o specifc rules need be laid down for
such pre-suspension hearin5. SuFce it to state that
the accused should be 5iven a fair and adeuate
opportunity to challen5e the validity of the criminal
proceedin5s a5ainst him* e.5.* that he has not been
aforded the ri5ht of due preliminary investi5ation*
the act for which he stands char5ed do not
constitute a violation of the provisions of #epublic
Act <o. =($' or of the bribery provisions of the
#evised Penal /ode which would warrant his
mandatory suspension from oFce under Section $=
of the Act* or he may present a motion to uash
the information on any of the 5rounds provided in
#ule $$9 of the #ules of /ourt. 6he mandatory
suspension decreed by the act upon determination
of the pendency in court or a criminal prosecution
for violation of the Anti-"raft Act or for bribery
58
under a valid information reuires at the same time
that the hearin5 be e3peditious* and not unduly
protracted such as to thwart the prompt
suspension envisioned by the Act. Aence* if the
trial court* say* fnds the 5round alle5ed in the
uashal motion not to be indubitable* then it shall
be called upon to issue the suspension order upon
its upholdin5 the validity of the information and
settin5 the same for trial on the merits.4 (Se5ovia v.
Sandi5anbayan.
W(EN MA- A PUBLIC O))ICER BE LIABLE )OR
CAUSING UNDUE INJUR- UNDER SEC. KBeC o;
RA K3$5
333 333 333
(c. /ausin5 any undue in>ury to any party*
includin5 the "overnment* or 5ivin5 any private
party any unwarranted benefts* advanta5e or
preference in the dischar5e of his oFcial*
administrative or >udicial functions throu5h
manifest partiality* evident bad faith or 5ross
ine3cusable ne5li5ence. 6his provision shall apply
to oFcers and employees of oFces or 5overnment
corporations char5ed with the 5rant of licenses or
permits or other concessions.1
6o hold a person liable under this section* the
concurrence of the followin5 elements must be
established beyond reasonable doubt by the
prosecutionG
$. 6hat the accused is a public oFcer or a
private person char5ed in conspiracy with
the former!
%. 6hat said public oFcer commits the
prohibited acts durin5 the performance of
his or her oFcial duties or in relation to his
or her public positions!
59
=. 6hat he or she causes undue in>ury to any
party* whether the 5overnment or a private
party! and
8. 6hat the public oFcer has acted with
manifest partiality* evident bad faith or
5ross ine3cusable ne5li5ence.
(Llorente v. Sandi5anbayan!
"# $%%$))* ?ar. $$* $''-.
MEANING O) BAD )AIT( UNDER
SECTION KBeC O) RA K3$5
10ad fait% does not simply connote bad
>ud5ment or ne5li5ence! it imputes a dishonest
purpose or some moral obliuity and conscious
doin5 of a wron5! a breach of sworn duty throu5h
some motive or intent or ill will! it parta7es of the
nature of fraud. (Spie5el v Beacon Participations* -
<J %nd Series -'&* $((9.. It contemplates a state
of mind aFrmatively operatin5 with furtive desi5n
or some motive of self interest or ill will for ulterior
purposes (Air ;rance v. /arrascoso* $- S/#A $&&*
$))-$)9.. Jvident bad faith connotes a manifest
deliberate intent on the part of the accused to do
wron5 or cause dama5e.1
In Jacinto* evident bad faith was not
appreciated because the actions ta7en by the
accused were not entirely without rhyme or reason!
he refused to release the complainant4s salary
because the latter failed to submit her daily time
record! he refused to approve her sic7-leave
application because he found out that she did not
sufer any illness! and he removed her name from
the plantilla because she was moonli5htin5 durin5
oFce hours. Such actions were measures ta7en by
a superior a5ainst an errin5 employee who
studiously i5nored* if not defed* his authority.
(Llorente v. Sandi5anbayan.
60
W(EN O))ENDER IS NOT LIABLE UNDER
SEC. KBeC BUT UNDER SEC. B;C O) RA K3$5
It would appear that petitioner4s failure or
refusal to act on the complainant4s vouchers* or the
delay in his actin5 on them more properly falls
under Sec. =LfMG
1(f. <e5lectin5 or refusin5* after due demand
or reuest* without suFcient >ustifcation* to act
within a reasonable time on any matter pendin5
before him for the purpose of obtainin5* directly or
indirectly* from any person interested in the matter
some pecuniary or material beneft or advanta5e*
or for purpose of favorin5 his own interest or 5ivin5
undue advanta5e in favor of or discriminatin5
a5ainst any other interested party.1
Aere* the ne5lect or refusal to act within a
reasonable time is the criminal act* not the causin5
of undue in>ury. 6hus* its elements areG
1$. 6he ofender is a public oFcer!
%. Said oFcer has ne5lected or has refused to act
without suFcient >ustifcation after due demand or
reuest has been made on him!
=. #easonable time has elapsed from such demand
or reuest without the public oFcer havin5 acted
on the matter pendin5 before him! and
8. Such failure to so act is 4for the purpose of
obtainin5* directly or indirectly* from any person
interested in the matter some pecuniary or
material beneft or advanta5e in favor of an
interested party* or discriminatin5 a5ainst
another.1
Aowever* petitioner is not char5ed with a
violation of Sec. =LfM. Aence* further disuisition is
61
not proper. <either may this /ourt convict
petitioner under Sec. =LfM without violatin5 his
constitutional ri5ht to due process.
(Llorente v. Sandi5anbayan.
SUSPENSION BPRE,ENTI,EC O)
LOCAL O))ICIALS S(ALL ONL-
BE )OR 63 DA-S
@n the other hand* we fnd merit in petitioner4s
second assi5ned error. 6he Sandi5anbayan erred in
imposin5 a '( day suspension upon petitioner for
the sin5le case fled a5ainst him. 2nder Section )=
(b. of the Local "overnment /ode* 1any sin5le
preventive suspension of local elective oFcials
shall not e3tend beyond si3ty ()(. days.1
(#ios v. Sandi5anbayan! "# $%''$=* Set. %)*
$''9.
APPRO,AL O) LEA,E O) ABSENCE
NOT A BAR TO SUSPENSION
Since the petitioner is an incumbent public
oFcial char5ed in a valid information with an
ofense punishable under the /onstitution and the
laws (#A =($' and PC -(9.* the law4s command
that he 1shall be suspended from oFce1 pendente
lite must be obeyed. Ais approved leave of
absence is not a bar to his preventive suspension
for as indicated by the Solicitor "eneral* an
approved leave* whether it be for a f3ed or
indefnite period* may be cancelled or shortened at
will by the incumbent.
(Coromal v. Sandi5anbayan $99 S/#A =&8.
62
UNDUE DELA- IN PRELIMINAR-
IN,ESTIGATIONS ,IOLATI,E O)
DUE PROCESS AND A GROUND TO DISMISS
After a careful review of the facts and
circumstances of this case* we are constrained to
hold that the inordinate delay in terminatin5 the
preliminary investi5ation and flin5 the information
in the instant case is violative of the
constitutionally 5uaranteed ri5ht of the petitioner
to due process and to a speedy disposition of the
cases a5ainst him. Accordin5ly* the informations in
/riminal /ases <os. $(8''* $(&((* $(&($* $(&(%
and $(&(= should be dismissed. In view of the
fore5oin5* we fnd it unnecessary to rule on the
other issues raised by petitioner. (6atad v.
Sandi5anbayan.
63
DEAT( PENALT- LAW
BRA A6@5C
PROSTITUTES CAN BE A ,ICTIM O) RAPE
As to the su55estion that A<ALIQA was a
prostitute* that alone* even if it be conceded*
cannot absolve him of his liability for rape. ;irst*
prostitutes can be victims of rape. (People v.
Alfeche.
REASON W(- DWELLING
IS AN AGGRA,ATING CIRCUMSTANCE
Cwellin5 is considered an a55ravatin5
circumstance because primarily of the sanctity of
privacy the law accords to human abode. 6he
dwellin5 need not be owned by the victim. 6hus* in
People v. 0asa* dwellin5 was appreciated*
althou5h the victims were 7illed while sleepin5 as
5uests in the house of another. As aptly stated in
People v. 0alansitG 1L@Mne does not lose his ri5ht of
privacy where he is ofended in the house of
another because as LanM invited 5uest Lor a
housemaid as in the instant caseM* he* the stran5er*
is sheltered by the same roof and protected by the
same intimacy of life it afords. It may not be his
house* but it is* even for a brief moment* 1home1 to
him. Ae is entitled to respect even for that short
moment.1
(People v. Alfeche.
W(EN RELATIONS(IP IS NOT AN
ALTERNATI,E CIRCUMSTANCE
UNDER ART. $@ O) T(E RPC
64
/learly then* the father-dau5hter relationship in
rape cases* or between accused and #elanne* in
this case* has been treated by /on5ress in the
nature of a special circumstance which ma7es the
imposition of the death penalty mandatory. Aence*
relationship as an alternative circumstance under
Article $& of the #evised Penal /ode* appreciated
as an a55ravatin5 circumstance* should no lon5er
be applied in view of the amendments introduced
by #.A. <o. 9)&'. It may be pointed* however* that
without the fore5oin5 amendment* relationship
would still be an a55ravatin5 circumstance in the
crimes of rape (Article ==&. and acts of
lasciviousness (Article ==)..
If relationship in the instant case were to be
appreciated under Article $& of the #evised Penal
/ode* the penalty imposable on accused then
would not be death* but merely reclusion perpetua
for* assumin5 that #elanne4s testimony in court
would have confrmed what she narrated in her
sworn statement (J3hibit 1/1.* no circumstance
then attended the commission of the rape which
could brin5 the crime under any provision of Article
==& which imposes a penalty hi5her than reclusion
perpetua or of reclusion perpetua to death.
(People v. ?anyuhod* +r..
W(EN O))ENDER IS STEP GRANDPARENT!
(E IS NOT CONSIDERED AN ASCENDANT
UNDER RA &K@K AND RA A6@5
6he trial court has thus held incorrectly in
considerin5 appellant* who is le5ally married to
#o3an4s natural 5randmother* as amon5 those
named in the enumeration. Appellant is merely a
step-5randparent who obviously is neither an
1ascendant1 nor a 1step-parent1 of the victim. In
the recent case of People vs. Atop* %8 the /ourt
65
re>ected the application of the mandatory death
penalty to the rape of a $%-year old victim by the
common-law husband of the 5irl4s 5randmother.
6he /ourt saidG
1It is a basic rule of statutory construction that
penal statutes are to be liberally construed in favor
of the accused. /ourt4s must not brin5 cases within
the provision of a law which are not clearly
embraced by it. <o act can be pronounced criminal
which is not clearly made so by statute! so* too* no
person who is not clearly within the terms of a
statute can be brou5ht within them. Any
reasonable doubt must be resolved in favor of the
accused.1
(People v. Celeverio.
RECLUSION PERPETUA IS LIG(TER T(AN LI)E
IMPRISONMENT AND I) ONE IS SENTENCED
TO LI)E IMPRISONMENT AND LATER T(E
PENALT- O) RECLUSION PERPETUA WAS
IMPOSED TO SAME O))ENSE! T(E PENALT-
T(AT S(OULD BE IMPOSED IS RECLUSION
PERPETUA
Since reclusion perpetua is a li5hter penalty
than life imprisonment* and considerin5 the rule
that criminal statutes with a favorable efect upon
the accused have* as to him* a retroactive efect*
the penalty imposable upon the accused should be
reclusion perpetua and not life imprisonment.
(People v. Latura.
JUSTI)ICATION )OR T(E IMPOSITION
O) T(E DEAT( PENALT-
Althou5h its ori5ins seem lost in obscurity* the
imposition of death as punishment for violation of
66
law or custom* reli5ious or secular* is an ancient
practice. :e do 7now that our forefathers 7illed to
aven5e themselves and their 7in and that initially*
the criminal law was used to compensate for a
wron5 done to a private party or his family* not to
punish in the name of the state.
6he dawnin5 of civiliDation brou5ht with it both
the increasin5 sensitiDation throu5hout the later
5enerations a5ainst past barbarity and the
institutionaliDation of state power under the rule of
law. 6oday every man or woman is both an
individual person with inherent human ri5hts
reco5niDed and protected by the state and a citiDen
with the duty to serve the common weal and
defend and preserve society.
@ne of the indispensable powers of the state is
the power to secure society a5ainst threatened and
actual evil. Pursuant to this* the le5islative arm of
5overnment enacts criminal laws that defne and
punish ille5al acts that may be committed by its
own sub>ects* the e3ecutive a5encies enforce these
laws* and the >udiciary tries and sentences the
criminals in accordance with these laws.
Althou5h penolo5ists* throu5hout history* have
not stopped debatin5 on the causes of criminal
behavior and the purposes of criminal punishment*
our criminal laws have been perceived as relatively
stable and functional since the enforcement of the
#evised Penal /ode on +anuary $* $'=%* this
notwithstandin5 occasional opposition to the death
penalty provisions therein. 6he #evised Penal /ode*
as it was ori5inally promul5ated* provided for the
death penalty in specifed crimes under specifc
circumstances. As early as $--)* thou5h* capital
punishment had entered our le5al system throu5h
the old Penal /ode* which was a modifed version
of the Spanish Penal /ode of $-9(.
67
(People v. Jche5aray.
W(- DEAT( PENALT- IS NOT
A CRUEL AND UNUSUAL PUNIS(MENT
16he penalty complained of is neither cruel*
un>ust nor e3cessive. In J3-parte Remmler* $=)
2.S.* 8=)* the 2nited States Supreme /ourt said
that 4punishments are cruel when they involve
torture or a lin5erin5 death* but the punishment of
death is not cruel* within the meanin5 of that word
as used in the constitution. It implies there
somethin5 inhuman and barbarous* somethin5
more than the mere e3tin5uishment of life.41
Sas lon5 as that penalty remains in the statute
boo7s* and as lon5 as our criminal law provides for
its imposition in certain cases* it is the duty of
>udicial oFcers to respect and apply the law
re5ardless of their private opinions*1 and this we
have reiterated in the $''& case of People v.
Ieneracion.
(People v. Jche5aray.
DEAT( PENALT- WAS NOT
ABOLIS(ED BUT MEREL- SUSPENDED
A readin5 of Section $' ($. of Article III will
readily show that there is really nothin5 therein
which e3pressly declares the abolition of the death
penalty. 6he provision merely says that the death
penalty shall not be imposed unless for compellin5
reasons involvin5 heinous crimes the /on5ress
hereafter provides for it and* if already imposed*
shall be reduced to reclusion perpetua. 6he
lan5ua5e* while rather aw7ward* is still plain
enou5h1. (People v. Jche5aray.
68
DE)INITION O) (EINOUS CRIMES
1. . . the crimes punishable by death under this
Act are heinous for bein5 5rievous* odious and
hateful ofenses and which* by reason of their
inherent or manifest wic7edness* viciousness*
atrocity and perversity are repu5nant and
outra5eous to the common standards and norms of
decency and morality in a >ust* civiliDed and
ordered society.1
(People v. Jche5aray.
W(AT ARE T(E CRIMES PUNIS(ABLE B-
RECLUSION PERPETUA TO DEAT( UNDER RA
A6@5

2nder #.A. <o. 9)&'* the followin5 crimes are
penaliDed by reclusion perpetua to deathG
$. 6reason (Sec. %.!
%. Pualifed piracy (Sec. =.!
=. Parricide (Sec. &.!
8. ?urder (Sec. ).!
&. Infanticide (Sec. 9.!
). Ridnappin5 and serious ille5al detention if
attended by any of the followin5 four
circumstancesG (a. the victim was detained for
more than three days! (b. it was committed
simulatin5 public authority! (c. serious physical
in>uries were inNicted on the victim or threats
to 7ill him were made! and (d. if the victim is a
minor* e3cept when the accused is any of the
parents* female or a public oFcer (Sec. -.!
9. #obbery with homicide* rape or intentional
mutilation (Sec. '.!
-. Cestructive arson if what is burned is (a.
one or more buildin5s or edifce! (b. a buildin5
where people usually 5ather! (c. a train* ship or
69
airplane for public use! (d. a buildin5 or factory
in the service of public utilities! (e. a buildin5
for the purpose of concealin5 or destroyin5
evidence @r a crime! (f. an arsenal* frewor7s
factory* or 5overnment museum! and (5. a
storehouse or factory of e3plosive materials
located in an inhabited place! or re5ardless of
what is burned* if the arson is perpetrated by
two or more persons (Sec. $(.!
'. #ape attended by any of the followin5
circumstancesG (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. $$.!
$(. Plunder involvin5 at least P&( million (Sec.
$%.!
11) Importation of prohibited dru5s (Sec. $=.!
$%. Sale* administration* delivery* distribution*
and transportation of prohibited dru5s (id..!
$=. ?aintenance of den* dive or resort for users
of prohibited dru5s (id..!
$8. ?anufacture of prohibited dru5s (id..!
$&. Possession or use of prohibited dru5s in
certain specifed amounts (id..!
$). /ultivation of plants which are sources of
prohibited dru5s (id..
$9. Importation of re5ulated dru5s
$-. (Sec. $8.!
$'. ?anufacture of re5ulated dru5s (id..!
%(. Sale* administration* dispensation*
delivery* transportation* and distribution of
re5ulated dru5s (id..!
%$. ?aintenance of den* dive* or resort for
users of re5ulated dru5s (Sec. $&.!
%%. Possession or use of re5ulated dru5s in
specifed amounts (Sec. $).!
%=. ?isappropriation* misapplication or failure
to account dan5erous dru5s confscated by the
arrestin5 oFcer (Sec. $9.!
70
%8. Plantin5 evidence of dan5erous dru5s in
person or immediate vicinity of another to
implicate the latter (Sec. $'.! and
%&. /arnappin5 where the owner* driver or
occupant of the carnapped motor vehicle is
7illed or raped (Sec. %(.
(People v. Jche5aray.
W(AT ARE T(E MANDATOR-
CRIMES PUNIS(ABLE B- MANDATOR-
DEAT( PENALT- UNDER RA A6@5
@n the other hand* under #.A. <o. 9)&'* the
mandatory penalty of death is imposed in the
followin5 crimesG
$1& 2uali3ed bribery
1If any public oFcer is entrusted with law
enforcement and he refrains from arrestin5 or
prosecutin5 an ofender who has committed a
crime punishable by reclusion perpetua andHor
death in consideration of any ofer* promise* 5ift or
present* he shall sufer the penalty for the ofense
which was not prosecuted.
If it is the public oFcer who as7s or demands such
5ift or present* he shall sufer the penalty of
death.1 (Sec. 8.
$4& 5idnappin# and serious ille#al detention for
ransom resultin# in t%e deat% of t%e victim or t%e
victim is raped tortured or subjected to
de%umani-in# acts
16he penalty shall be death where the
7idnappin5 or detention was committed for the
purpose of ransom from the victim or any other
person* even if none of the circumstances above-
71
mentioned were present in the commission of the
ofense.
:hen the victim is 7illed or dies as a
conseuence of the detention or is raped* or is
sub>ect to torture or dehumaniDin5 acts* the
ma3imum penalty Lof deathM shall be imposed.1
(Sec. -.
$6& Destructive arson resultin# in deat%
1If as a conseuence of the commission of any
of the acts penaliDed under this Article* death
results* the mandatory penalty of death shall be
imposed.1 (Sec. $(.
$7& Rape *it% t%e victim becomin# insane rape
*it% %omicide and 8uali3ed
1:hen by reason or on the occasion of the
rape* the victim has become insane* the penalty
shall be death.
333 333 333
6he death penalty shall also be imposed if the
crime of rape is committed with any of the
followin5 attendant circumstancesG
$. when the victim is under ei5hteen ($-. years of
a5e and the ofender is a parent* ascendant* step-
parent* 5uardian* relative by consan5uinity or
aFnity within the third civil de5ree* or the
common-law spouse of the parent or the victim.
%. when the victim is under the custody of the
police or military authorities.
=. when the rape is committed in full view of the
husband* parent* any of the children or other
relatives within the third de5ree of consan5uinity.
8. when the victim is a reli5ious or a child below
seven (9. years old
72
&. when the ofender 7nows that he is aUicted
with Acuired Immune Cefciency Syndrome (AICS.
disease.
). when committed by any member of the Armed
;orces of the Philippines or the Philippine <ational
Police or any law enforcement a5ency.
9. when by reason or on the occasion of the rape*
the victim has sufered permanent physical
mutilation.1 (Sec. $$ .
$9& !n all t%e crimes in R(. 'o. :;9< in t%eir
8uali3ed form
1:hen in the commission of the crime*
advanta5e was ta7en by the ofender of his public
position* the penalty to be imposed shall be in its
ma3imum Lof deathM re5ardless of miti5atin5
circumstances.
6he ma3imum penalty Lof deathM shall be
imposed if the ofense was committed by any
person who belon5s to an or5aniDedHsyndicated
crime 5roup.
An or5aniDedHsyndicated crime 5roup means a
5roup of two or more persons collaboratin5*
confederatin5 or mutually helpin5 one another for
purposes of 5ain in the commission of any crime.1
(Sec. %=. include those in #.A. 9$)&
(People v. Jche5aray.
TWO INSTANCES W(EN DEAT( MA-
BE IMPOSED W(EN CONSTRUED
UNDER RA A6@5
6hus* construin5 #.A. <o. 9)&' in pari materia
with the #evised Penal /ode* death may be
imposed when ($. a55ravatin5 circumstances
attend the commission of the crime as to ma7e
73
operative the provision of the #evised Penal /ode
re5ardin5 the imposition of the ma3imum penalty!
and (%. other circumstances attend the commission
of the crime which indubitably characteriDe the
same as heinous in contemplation of #.A. <o. 9)&'
that >ustify the imposition of the death* albeit the
imposable penalty is reclusion perpetua to death.
(People v. Jche5aray.
W(- DEAT( PENALT-
IS IMPOSED ON (EINOUS CRIMES
6he death penalty is imposed in heinous crimes
because the perpetrators thereof have committed
unfor5ivably e3ecrable acts that have so deeply
dehumaniDed a person or criminal acts with
severely destructive efects on the national eforts
to lift the masses from ab>ect poverty throu5h
or5aniDed 5overnmental strate5ies based on a
disciplined and honest citiDenry* and because they
have so caused irreparable and substantial in>ury
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 5overnment* they
must be permanently prevented from doin5 so. At
any rate* this court has no doubts as to the innate
heinousness of the crime of rape* as we have held
in the case of People v. /ristobal. (People v.
Jche5aray.
W(- RAPE IS A (EINOUS CRIME
1#ape is the forcible violation of the se3ual
intimacy of another person. It does in>ury to >ustice
and charity. #ape deeply wounds the respect*
freedom* and physical and moral inte5rity to which
every person has a ri5ht. It causes 5rave dama5e
74
that can mar7 the victim for life. It is always an
intrinsically evil act . . . an outra5e upon decency
and di5nity that hurts not only the victim but the
society itself.1 (People v. Jche5aray.
W(- CAPITAL PUNIS(MENT
S(OULD NOT BE ABOLIS(ED
1/apital punishment ou5ht not to be abolished
solely because it is substantially repulsive* if
infnitely less repulsive than the acts which invo7e
it. Ket the mountin5 Deal for its abolition seems to
arise from a sentimentaliDed hyperfastidiousness
that see7s to e3pun5e from the society all that
appears harsh and suppressive. If we are to
preserve the humane society we will have to retain
suFcient stren5th of character and will to do the
unpleasant in order that tranuillity and civility
may rule comprehensively. It seems very li7ely that
capital punishment is a . . . necessary* if limited
factor in that maintenance of social tranuillity and
ou5ht to be retained on this 5round. 6o do
otherwise is to indul5e in the lu3ury of permittin5 a
sense of false delicacy to rei5n over the necessity
of social survival.1 (People v. Jche5aray.
RA 6%2@ AS AMENDED B- RA A6@5
W(EN PENALT- IN NEW LAW NOT
)A,ORABLE
TO ACCUSED IT S(OULD BE RETAINED
Appellant in this case was convicted and meted
the penalty of life imprisonment and fne of twenty
thousand pesos under #A )8%& for transportin5
more or less ) 7ilos of mari>uana on +uly $''(. #A
9)&'* which too7 efect on Cecember =$H'=*
amended the provisions of #A )8%&* increasin5 the
imposable penalty for the sale or transport of 9&(
75
5rams or more of mari>uana to reclusion perpetua
to death and a fne ran5in5 from fve hundred
thousand pesos to ten million pesos. Such penalty
is not favorable to the appellant as it carries the
accessory penalties provided under the #P/ and
has a hi5her amount of fne which in accordance
with A#6 %% of the same code should not be 5iven
retroactive efect. 6he court* therefore* fnds and
so holds that the penalty of life imprisonment and
fne in the amount of twenty thousand pesos
correctly imposed by the trial court should be
retained.
(PP v /arreon* $%H'H'9.
COURTS S(OULD NOT BE CONCERNED
ABOUT WISDOM! E))ICAC- OR MORALIT-
O) LAWS
It is a well settled rule that the courts are not
concerned with the wisdom* eFcacy or morality of
laws. 6hat uestion falls e3clusively within the
province of the Le5islature which enacts them and
the /hief J3ecutive who approves or vetoes them.
6he only function of the >udiciary is to interpret the
laws and* if not in disharmony with the
/onstitution* to apply them. And for the 5uidance
of the members of the >udiciary we feel it
incumbent upon us to state that while they as
citiDens or as >ud5es may re5ard a certain law as
harsh* unwise or morally wron5* and may
recommend to the authority or department
concerned* its amendment* modifcation* or repeal*
still* as lon5 as said law is in force* they must apply
it and 5ive it efect as decreed by the law-ma7in5
body.
(People v. Ieneracion.
76
REASON )OR DURATION O) RECLUSION
PERPETUA
O) K3 OR %3 -EARS
6he imputed duration of thirty (=(. years for
reclusion perpetua* therefore* is only to serve as
the basis for determinin5 the convict4s eli5ibility for
pardon or for the application of the three-fold rule
in the service of multiple penalties.
(People v. Lucas.
ROBBER- WIT( (OMICIDE! NUMBER O)
PERSONS IILLED DOES NOT ALTER
C(ARACTERI1ATION O) T(E O))ENSE
BUT CAN BE APPRECIATED AS AGGRA,ATING
CIRCUMSTANCE
:hile the number of persons 7illed does not
alter the characteriDation of the ofense as robbery
with homicide* the multiplicity of the victims slain
should have been appreciated as an a55ravatin5
circumstance. 6his would preclude an anomalous
situation where* from the standpoint of the 5ravity
of the ofense* robbery with one 7illin5 would be
treated in the same way that robbery with multiple
7illin5s would be.
(People I. 6imple.
ROBBER- WIT( (OMICIDE AND ROBBER-
WIT( RAPE+ PRO,ISION O) ARTICLE 25% O)
T(E RE,ISED PENAL CODE AS AMENDED B-
REPUBLIC ACT A6@5 CANNOT BE APPLIED
RETROACTI,EL-+ CASE AT BAR.
2nder Article %'8 ($. of the #evised Penal
/ode* robbery with homicide is punishable by
reclusion perpetua to death. In view* however* of
the frst para5raph of Section $'* Article III of the
77
$'-9 /onstitution* which provides thatG 1Sec. $'.
($. J3cessive fnes shall not be imposed* nor cruel*
de5radin5 or inhuman punishment inNicted.
<either shall death penalty be imposed* unless* for
compellin5 reasons involvin5 heinous crimes* the
/on5ress hereafter provides for it. Any death
penalty already imposed shall be reduced to
reclusion perpetua1 (Jmphasis supplied. only the
penalty of reclusion perpetua could be imposed by
the trial court. Aence* the attended a55ravatin5
circumstances in this case had no impact upon the
determination of the proper penalty by the trial
court. By #epublic Act <o. 9)&' (efective =$
Cecember $''=.* /on5ress re-imposed the death
penalty for certain heinous crimes* includin5
robbery with homicide and robbery with rape. By
the same statute* Article %'8 of the #evised Penal
/ode was amended to read as followsG 1Any person
5uilty of robbery with the use of violence a5ainst or
intimidation on any person shall suferG $. 6he
penalty of reclusion perpetua to death* when by
reason or on occasion of the robbery* the crime of
homicide shall have been committed* or when the
robbery shall have been accompanied by rape or
intentional mutilation or arson. . . . (Jmphasis
supplied. Article %'8 of the #evised Penal /ode* as
amended by #.A. <o. 9)&'* however* cannot be
applied retroactively in this case. 6o do so would be
to sub>ect the appellant to the death penalty which
could not have been constitutionally imposed by
the court a uo under the law in efect at the time
of the commission of the ofenses. (People v.
6imple.
A PERSON MA- BE CON,ICTED O) GRA,E
COERCION ALT(OUG( T(E C(ARGE IS
IIDNAPPING
78
6he Information* dated ?arch %8* $''%* fled
a5ainst Astor5a contains suFcient alle5ations
constitutin5 5rave coercion* the elements of which
were suFciently proved by the prosecution. Aence*
a conviction for said crime is appropriate under
Section 8* #ule $%( of the $'-- #ules on /riminal
Procedure.
(People -vs- Astor5a.
ELEMENTS O) GRA,E COERCION
"rave /oercion or coaccion #rave has three
elementsG
a.6hat any person is prevented by another
from doin5 somethin5 not prohibited by law*
or compelled to do somethin5 a5ainst his or
her will* be it ri5ht or wron5!
b.6hat the prevention or compulsion is efected
by violence* either by material force or such
a display of it as would produce intimidation
and* conseuently* control over the will of
the ofended party! and
c. that the person who restrains the will and
liberty of another has no ri5ht to do so or* in
other words* that the restraint is not made
under authority of a law or in the e3ercise of
any lawful ri5ht.
(People -vs- Astor5a.
ACTUAL DETENTION OR LOCIING UP! AN
ESSENTIAL ELEMENT O) IIDNAPPING
79
Actual detention or 1loc7in5 up1 is the primary
element of 7idnappin5. If the evidence does not
adeuately prove this element* the accused cannot
be held liable for 7idnappin5. In the present case*
the prosecution merely proved that appellant
forcibly dra55ed the victim toward a place only he
7new. 6here bein5 no actual detention or
confnement* the appellant may be convicted only
of 5rave coercion.
(People -vs- Astor5a! ""# $$(('9* Cecember %%*
$''9.
DANGEROUS DRUGS ACT O) $5A2 BR.A. NO.
6%2@C+ SECTIONS $@ AND 23 T(EREO) AS
AMENDED B- R.A. NO. A6@5.
In People vs. Martin /imon y /un#a* (".#. <o.
'=(%-.* decided on %' +uly $''8* this /ourt ruled
as followsG ($. Provisions of #.A. <o. 9)&' which are
favorable to the accused shall be 5iven retroactive
efect pursuant to Article %% of the #evised Penal
/ode. (%. :here the uantity of the dan5erous
dru5 involved is less than the uantities stated in
the frst para5raph of Section %( of #.A. <o. )8%&*
the penalty to be imposed shall ran5e from prision
correccional to reclusion temporal* and not
reclusion perpetua. 6he reason is that there is an
overlappin5 error* probably throu5h oversi5ht in
the draftin5* in the provisions on the penalty of
reclusion perpetua as shown by its dual imposition*
i.e.* as the minimum of the penalty where the
uantity of the dan5erous dru5s involved is more
than those specifed in the frst para5raph of the
amended Section %( and also as the ma3imum of
the penalty where the uantity of the dan5erous
dru5s involved is less than those so specifed in the
frst para5raph. (=. /onsiderin5 that the aforesaid
penalty of prision correccional to reclusion
temporal shall depend upon the uantity of the
80
dan5erous dru5s involved* each of the component
penalties thereof 0 prision correccional prision
mayor and reclusion temporal 0 shall be
considered as a principal imposable penalty
dependin5 on the uantity* such that the uantity
of the dru5s enumerated in the second para5raph
should then be divided into three* with the
resultin5 uotient* and double or treble the same*
as the bases for determinin5 the appropriate
component penalty. (8. 6he modifyin5
circumstances in the #evised Penal /ode may be
appreciated to determine the proper period of the
correspondin5 imposable penalty or even to efect
its reduction by one or more de5rees! provided*
however* that in no case should such 5raduation of
penalties reduce the imposable penalty lower than
prision correccional. (&. In appropriate instances*
the Indeterminate Sentence Law shall be applied
and considerin5 that #.A. <o. 9)&' has
unualifedly adopted the penalties under the
#evised Penal /ode with their technical
si5nifcation and efects* then the crimes under the
Can5erous Cru5s Act shall now be considered as
crimes punished by the #evised Penal /ode! hence*
pursuant to Section $ of the Indeterminate
Sentence Law* the indeterminate penalty which
may be imposed shall be one whose ma3imum
shall be within the ran5e of the imposable penalty
and whose minimum shall be within the ran5e of
the penalty ne3t lower in de5ree to the imposable
penalty. :ith the fore5oin5 as our touchstones* and
it appearin5 that the uantity of the shabu
recovered from the accused in this case is only
(.('&- 5ram* the imposable penalty under the
second para5raph of Section %( of #.A. <o. )8%&*
as further amended by Section $9 of #.A. <o. 9)&'*
should be prision correccional. Applyin5 the
Indeterminate Sentence Law* the accused may
then be sentenced to sufer an indeterminate
penalty ran5in5 from si3 (). months of arresto
81
mayor as minimum to si3 (). years of prision
correccional as ma3imum.
W(EN T(E)T O) MOTOR ,E(ICLE IS
0UALI)IED T(E)T. BSTRA- DECISIONC
In this case* the stolen property is a Kamaha #S
motorcycle bearin5 plate no. /Q-%'=% with sidecar
valued at P=(*(((.((. Since this value remains
undisputed* we accept this amount for the purpose
of determinin5 the imposable penalty. In simple
theft* such amount carries the correspondin5
penalty of prision mayor in its minimum and
medium periods to be imposed in the ma3imum
period. /onsiderin5 that the penalty for ualifed
theft is two de5rees hi5her than that provided for
simple theft* the penalty of prision mayor in its
minimum and medium periods must be raised by
two de5rees. 6hus* the penalty prescribed for the
ofense committed of ualifed theft of motor
vehicle is reclusion temporal in its medium and
ma3imum periods to be imposed in its ma3imum
period. (PP -vs- Ricardo Dela Cru- alias Pa*id
Manuel dela Cru- alias Pa*id Danilo Dela Cru- and
Jo%n Doe alias ,enry 0alinta*a= and >rlando
Padilla y Mendo-a (ccused. R!C(RD> D"L( CR?@
alias Pa*id (ccused-(ppellant. G.R. 'o. 149<6;
Aeb. 46 4BBB &
PERIOD W(EN BAIL IS E))ECTI,E A)TER
CON,ICTION IN LOWER COURTS
6he bail bond that the accused previously
posted can only be used durin5 the $&-day period
to appeal (#ule $%%. and not durin5 the entire
period of appeal. 6his is consistent with Section
%(a. of #ule $$8 which provides that the bail 1shall
82
be efective upon approval and remain in force at
all sta5es of the case* unless sooner cancelled*
until the promul5ation of the >ud5ment of the
#e5ional 6rial /ourt* irrespective of whether the
case was ori5inally fled in or appealed to it.1 6his
amendment* introduced by S/ Administrative
/ircular $%-'8 is a departure from the old rules
which then provided that bail shall be efective and
remain in force at all sta5es of the case until its full
determination* and thus even durin5 the period of
appeal.
?oreover* under the present rule* for the
accused to continue his provisional liberty on the
same bail bond durin5 the period to appeal*
consent of the bondsman is necessary. ;rom the
record* it appears that the bondsman* A;IS/@
Insurance /orporation* fled a motion in the trial
court on +anuary ()* $'-9 for the cancellation of
petitioners4 bail bond for the latter4s failure to
renew the same upon its e3piration. @btainin5 the
consent of the bondsman was* thus* foreclosed.
$(niceto /abbun Ma#uddatu and Laureana
/abbun Ma#uddatu Petitioners -vs- ,onorable
C>?R+ >A (PP"(L/ $Aourt% Division and People of
t%e P%ilippines Respondents. G.R. 'o. 16<9<<
Aeb. 46 4BBB&
W(EN ABUSE O) SUPERIOR STRENGT( IS
PRESENT.
:e fnd* however* that the a55ravatin5
circumstance of abuse of superior stren5th
attended the 7illin5. 16o appreciate abuse of
superior stren5th as an a55ravatin5 circumstance*
what should be considered is not that there were
three* four or more assailants of one victim* but
whether the a55ressors too7 advanta5e of their
combined stren5th in order to consummate the
83
ofense. It is therefore necessary to show that the
attac7ers cooperated in such a way as to secure
advanta5e of their superiority in stren5th.1
In this case* appellants and their companions
purposely 5athered to5ether and armed
themselves to ta7e advanta5e of their combined
stren5th to ensure that #eynaldo Canao would be
able to 7ill the victim without any interference from
other bystanders.

Aowever* not havin5 been alle5ed in the
Information* abuse of superior stren5th can only be
considered as a 5eneric a55ravatin5 circumstance.
$PP -vs- C!"L!+> 0?L?R(' ) R(M!R"@ and
L">'(RD> C(L"'@?"L( ) C(/+!LL> (ccused-
(ppellants. G.R. 'o. 116<7B Aeb. 19 4BBB&
USE O) MOTOR ,E(ICLE AS 0UALI)-ING
AGGRA,ATING CIRCUMSTANCE
6he use of a motor vehicle ualifes the 7illin5
to murder if the same was perpetrated by means
thereof.
$PP -vs- +,(D">/ "'G?!+> Defendant-
(ppellant. G.R. 14DD14 Aeb. 4D 4BBB&
ELEMENTS O) E,IDENT PREMEDITATION
(1) 6he time when the ofender determined to
commit the crime!
(2) an act manifestly indicatin5 that the ofender
had clun5 to his determination! and
(=. suFcient lapse of time between the
determination and the e3ecution to allow the
ofender to reNect on the conseuences of his
act.
84
$PP -vs- R>G"L!> G(L(M (ccused-(ppellant.
G.R. 'o. 117:7B Aeb. 19 4BBB&
W(EN NIG(TTIME IS AGGRA,ATING
<i5httime as an a55ravatin5 circumstance
must have specially been sou5ht to consummate
the crime* facilitate its success or prevent
reco5nition of the felon.
$PP -vs- C>'/+('C!> M"R!'> and (R'?LA>
/!"RC> (ccused-(ppellants. G.R. 'o. 16464<
Dec. 1: 1<<<&
TREAC(ER- IS PRESENT ON SECOND STAGE
O) ACCIDENT
6here is treachery when the ofender commits
any of the crimes a5ainst the person employin5
means* methods or forms in the e3ecution thereof
which tend directly and specifcally to insure its
e3ecution without ris7 to himself arisin5 form the
defense which the ofended party mi5ht ma7e. As
earlier mentioned* the deceased was already
rendered completely helpless and defenseless
when he was stabbed by Pedro Lumacan5.
Althou5h he was able to run a short distance* he
had absolutely no means of defendin5 himself from
the three brothers who were armed with huntin5
7nives* bent on fnishin5 him of. 6he wounded
victim had not even so much as a stic7 or a stone
to parry of their blows. It should be noted*
however* at this point that inasmuch as treachery
has been appreciated as a ualifyin5 circumstance*
abuse of superior stren5th should not have been
considered separately inasmuch as it is absorbed
in treachery.
$PP -vs- P"DR> L?M(C('G P(0L> L?M(C('G E
D>M!'G> L?M(C('G (ccused-(ppellants.
G.R. 'o. 14B4D6 Aeb. 1 4BBB&
85
W(- DWELLING IS AGGRA,ATING
16he home is a sort of sacred place for its
owner. Ae who 5oes to another4s house to slander
him* hurt him or do him wron5* is more 5uilty than
he who ofends him elsewhere.1
$PP -vs- J>/" E '"/+>R 0iF(/ (ccused-
(ppellant. G.R. 'o. 141;6B Dec. D 1<<<&
E,EN )RONTAL ATTACI WOULD AMOUNT TO
TREAC(ER-
?oreover* ?ilyn #uales also testifed that the
7nife used by accused was hidden from view.
6hus* Isabel #uales was not prepared for such a
violent attac7* especially considerin5 that* at the
time* she was unarmed and was burdened with a
lar5e bas7et flled with about si3 7ilos of corn and
dried fsh han5in5 from her shoulders and thus*
could not have possibly warded of the blow or run
away from her assailant. Althou5h ?ilyn #uales
described the attac7 havin5 been frontal* this does
not ne5ate treachery since the essence of
treachery is the suddenness and une3pectedness
of the attac7* 5ivin5 the victim no opportunity to
repel it or ofer any defense of his person. 6hus*
we hold that the trial court correctly appreciated
the ualifyin5 circumstance of treachery.
$PP -vs- C>R'"L!( /?"L+> alias G"L)G alias
GR>G"L!( /?"L+>G G.R. 'o. 14;B<: Aeb. D
4BBB&
DATE O) E))ECTI,IT- O) RA A6@5! ETC.
#epublic Act <o. 9)&' too7 efect on =$
Cecember $''=. Accordin5ly* the said law only
86
applies to crimes defned therein* includin5 rape*
which were committed after its efectivity. It
cannot be applied retroactively because* to do so*
would 5o a5ainst the constitutional prohibition on
ex post facto la*s. ;or this reason* in order for the
death penalty to be imposable* it is incumbent
upon the prosecution to establish beyond a shadow
of doubt that the case of the accused is already
covered by #epublic Act <o. 9)&'.
AN E* POST )ACTO LAW (AS BEEN DE)INED
AS ONE W(IC(
a.ma7es criminal an act before the passa5e of the
law and which was innocent when done* and
punishes such an act!
b.a55ravate a crime* or ma7es it 5reater than it
was* when committed!
c. chan5es the punishment and inNicts a 5reater
punishment than the law anne3ed to the crime
when committed!
d.alters the le5al rules of evidence* and authoriDes
conviction upon less or diferent testimony than
the law reuired at the time of the commission of
the ofense!
e.assumin5 to re5ulate civil ri5hts and remedies
only* in efect imposes penalty or deprivation of a
ri5ht for somethin5 which when done was lawful!
and
f. deprives person accused of a crime of some
lawful protection to which he has become
entitled* such as the protection of a former
conviction or acuittal* or a proclamation of
amnesty.
87
$PP -vs- C,(R!+> !/?G M(G0('?(
G.R. 'o. 14DDDD Dec. 6 1<<<&
88
Pre7i:enial De"ree No. $&25
PENALI1ING OBSTRUCTION O)
APPRE(ENSION AND PROSECUTION O)
CRIMINAL O))ENDERS
:hereas* crime and violence continue to
proliferate despite the sustained vi5orous eforts of
the 5overnment to efectively contain them!
:hereas* to discoura5e public indiference or
apathy towards the apprehension and prosecution
of criminal ofenders* it is necessary to penaliDe
acts which obstruct or frustrate or tend to obstruct
or frustrate the successful apprehension and
prosecution of criminal ofenders!
<@:* 6AJ#J;@#J* I* ;J#CI<A<C J. ?A#/@S*
President of the Philippines* by virtue of the powers
vested in me by law do hereby decree and order
the followin5G
SECTION $. 6he penalty of prision correccional in
its ma3imum period* or a fne ran5in5 from $*(((
to )*((( pesos* or both* shall be imposed upon any
person who 7nowin5ly or willfully obstructs*
impedes* frustrates or delays the apprehension of
suspects and the investi5ation and prosecution of
criminal cases by committin5 any of the followin5
actsG
(a. Preventin5 witnesses from testifyin5 in any
criminal proceedin5 or from reportin5 the
commission of any ofense or the identity of any
ofenderHs by means of bribery* misrepresentation*
deceit* intimidation* force or threats!
(b. Alterin5* destroyin5* suppressin5 or concealin5
any paper* record* document* or ob>ect with intent
to impair its verity* authenticity* le5ibility*
availability* or admissibility as evidence in any
89
investi5ation of or oFcial proceedin5s in criminal
cases* or to be used in the investi5ation of* or
oFcial proceedin5s in* criminal cases!
(c. Aarborin5 or concealin5* or facilitatin5 the
escape of* any person he 7nows* or has reasonable
5round to believe or suspect* has committed any
ofense under e3istin5 penal laws in order to
prevent his arrest* prosecution and conviction!
(d. Publicly usin5 a fctitious name for the purpose
of concealin5 a crime* evadin5 prosecution or the
e3ecution of a >ud5ment* or concealin5 his true
name and other personal circumstances for the
same purpose or purposes!
(e. Celayin5 the prosecution of criminal cases by
obstructin5 the service of process or court orders
or disturbin5 proceedin5s in the fscals, oFces* in
6anodbayan* or in the courts!
(f. ?a7in5* presentin5 or usin5 any record*
document* paper or ob>ect with 7nowled5e of its
falsity and with intent to afect the course or
outcome of the investi5ation of* or oFcial
proceedin5s in* criminal cases!
(5. Solicitin5* acceptin5* or a5reein5 to accept any
beneft in consideration of abstainin5 from*
discontinuin5* or impedin5 the prosecution of a
criminal ofender!
(h. 6hreatenin5 directly or indirectly another with
the inNiction of any wron5 upon his person* honor
or property or that of any immediate member or
members of his family in order to prevent a person
from appearin5 in the investi5ation of* or oFcial
proceedin5s in* criminal cases* or imposin5 a
condition* whether lawful or unlawful* in order to
prevent a person from appearin5 in the
90
investi5ation of or in oFcial proceedin5s in criminal
cases!
(i. "ivin5 of false or fabricated information to
mislead or prevent the law enforcement a5encies
from apprehendin5 the ofender or from protectin5
the life or property of the victim! or fabricatin5
information from the data 5athered in confdence
by investi5atin5 authorities for purposes of
bac75round information and not for publication and
publishin5 or disseminatin5 the same to mislead
the investi5ator or the court.
If any of the acts mentioned herein is penaliDed by
any other law with a hi5her penalty* the hi5her
penalty shall be imposed.
SEC. 2. If any of the fore5oin5 acts is committed
by a public oFcial or employee* he shall* in
addition to the penalties provided thereunder*
sufer perpetual disualifcation from holdin5 public
oFce.
SEC. K. 6his Cecree shall ta7e efect immediately.
Cone in the /ity of ?anila* this $)th day of +anuary*
in the year of @ur Lord* nineteen hundred and
ei5hty-one.
W#a i7 #e 7ae: 8ur8o7e o; PD $&254
As stated in the law* its purpose is to discoura5e
public indiference or apathy towards the
apprehension and prosecution of criminal
ofenders* it is necessary to penaliDe acts which
obstruct or frustrate or tend to obstruct or frustrate
the successful apprehension and prosecution of
criminal ofenders.
91
W#a i7 #e 8enaly ;or DO<7ru"ion o;
Ju7i"eL4
6he penalty is imprisonment* fne or both.
Imprisonment ran5es from 8 years* % months and $
day to ) years (prision correccional in its ma3imum
period.. 6he fne ran5es from P$*((( V P)*(((.
W#o >ay <e "#arge: un:er PD $&254
Any person 0 whether private or public 0 who
commits the acts enumerated below may be
char5ed with violatin5 PC $-%'. In case a public
oFcer is found 5uilty* he shall also sufer perpetual
disualifcation from holdin5 public oFce.
W#a are #e a"7 8uni7#a<le un:er #i7 la94
6he law covers the followin5 acts of any person
who 7nowin5ly or willfully obstructs* impedes*
frustrates or delays the apprehension of suspects
and the investi5ation and prosecution of criminal
casesG
a. Preventin5 witnesses from testifyin5 in any
criminal proceedin5 or from reportin5 the
commission of any ofense or the identity of any
ofenderHs by means of bribery* misrepresentation*
deceit* intimidation* force or threats.
b. Alterin5* destroyin5* suppressin5 or concealin5
any paper* record* document* or ob>ect with intent
to impair its verity* authenticity* le5ibility*
availability* or admissibility as evidence in any
investi5ation of or oFcial proceedin5s in criminal
cases* or to be used in the investi5ation of* or
oFcial proceedin5s in* criminal cases.
c. Aarborin5 or concealin5* or facilitatin5 the
escape of* any person he 7nows* or has reasonable
92
5round to believe or suspect* has committed any
ofense under e3istin5 penal laws in order to
prevent his arrest* prosecution and conviction.
d. Publicly usin5 a fctitious name for the purpose
of concealin5 a crime* evadin5 prosecution or the
e3ecution of a >ud5ment* or concealin5 his true
name and other personal circumstances for the
same purpose or purposes.
e. Celayin5 the prosecution of criminal cases by
obstructin5 the service of process or court orders
or disturbin5 proceedin5s in the fscals, oFces* in
6anodbayan* or in the courts.
f. ?a7in5* presentin5 or usin5 any record*
document* paper or ob>ect with 7nowled5e of its
falsity and with intent to afect the course or
outcome of the investi5ation of* or oFcial
proceedin5s in* criminal cases.
5. Solicitin5* acceptin5* or a5reein5 to accept any
beneft in consideration of abstainin5 from*
discontinuin5* or impedin5 the prosecution of a
criminal ofender.
h. 6hreatenin5 directly or indirectly another with
the inNiction of any wron5 upon his person* honor
or property or that of any immediate member or
members of his family in order to prevent a person
from appearin5 in the investi5ation of* or oFcial
proceedin5s in* criminal cases* or imposin5 a
condition* whether lawful or unlawful* in order to
prevent a person from appearin5 in the
investi5ation of or in oFcial proceedin5s in criminal
cases.
i. "ivin5 of false or fabricated information to
mislead or prevent the law enforcement a5encies
from apprehendin5 the ofender or from protectin5
93
the life or property of the victim! or fabricatin5
information from the data 5athered in confdence
by investi5atin5 authorities for purposes of
bac75round information and not for publication and
publishin5 or disseminatin5 the same to mislead
the investi5ator or the court.
W#a are 7o>e o; #e in7an"e7 9#en
Eue7ion7 again7 "#arge7 un:er PD $&25
rea"#e: #e Su8re>e Cour4
In Posadas vs. @mbudsman (".#. <o. $=$8'%* %'
September %(((.* certain oFcials of the 2niversity
of the Philippines (2P. were char5ed for violatin5
PC $-%' (para5raph c above.. 6he 2P oFcers
ob>ected to the warrantless arrest of certain
students by the <ational Bureau of Investi5ation
(<BI.. Accordin5 to the Supreme /ourt* the police
had no 5round for the warrantless arrest. 6he 2P
@Fcers* therefore* had a ri5ht to prevent the arrest
of the students at the time because their
attempted arrest was ille5al. 6he Sneed to enforce
the law cannot be >ustifed by sacrifcin5
constitutional ri5hts.T
In another case* Sen. +uan Ponce Jnrile was
char5ed under PC $-%'* for alle5edly
accommodatin5 /ol. "re5orio Aonasan by 5ivin5
him food and comfort on $ Cecember $'-' in his
house. SRnowin5 that /olonel Aonasan is a fu5itive
from >ustice* Sen. Jnrile alle5edly did not do
anythin5 to have Aonasan arrested or
apprehended.T 6he Supreme /ourt ruled that Sen.
Jnrile could not be separately char5ed under PC
$-%'* as this is absorbed in the char5e of rebellion
already fled a5ainst Sen. Jnrile.
94
"AN,ERO*( "R*, A+T O- 2002
(Re./b0&c Acts No. #1$5)
DE)INITIONS O) TERMS
+1em&ca0 "&2e3s&on V the sale* distribution*
supply or transport of le5itimately imported* in-
transit* manufactured or procured controlled
precursors and essential chemicals* in diluted*
mi3tures or in concentrated form* to any person or
entity en5a5ed in the manufacture of any
dan5erous dru5* and shall include pac7a5in5*
repac7a5in5* labelin5* relabelin5 or concealment of
such transaction throu5h fraud* destruction of
documents* fraudulent use of permits*
misdeclaration* use of front companies or mail
fraud.
+ont3o00ed "e0&2e3y V 6he investi5ative techniue
of allowin5 an unlawful or suspect consi5nment of
any dan5erous dru5 andHor controlled precursor
and essential chemical* euipment or
paraphernalia* or property believed to be derived
directly or indirectly from any ofense* to pass into*
throu5h or out of the country under the supervision
of any unauthoriDed oFcer* with a view to
5atherin5 evidence to identify any person involved
in any dan5erous dru5 related ofense* or to
facilitate prosecution of that ofense.
+ont3o00ed P3ec/3so3 and Essent&a0 +1em&ca0s
V Includes those listed in 6ables I and II of the $'--
2< /onvention A5ainst Illicit 6raFc in <arcotic
Cru5s and Psychotropic Substances as enumerated
in the attached anne3* which is an inte5ral part of
this Act.
"3/4 "e.endence V As based on the :orld
Aealth @r5aniDation defnition* it is a cluster of
95
physiolo5ical* behavioral and co5nitive phenomena
of variable intensity* in which the use of
psychoactive dru5 ta7es on a hi5h priority thereby
involvin5* amon5 others* a stron5 desire or a sense
of compulsion to ta7e the substance and the
diFculties in controllin5 substance-ta7in5 behavior
in terms of its onset* termination* or levels of use.
"3/4 (ynd&cate V Any or5aniDed 5roup of two (%.
or more persons formin5 or >oinin5 to5ether with
the intention of committin5 any ofense prescribed
under this Act.
I00e4a0 T3a5c6&n4 V 6he ille5al cultivation*
culture* delivery* administration* dispensation*
manufacture* sale* tradin5* transportation*
distribution* importation* e3portation* and
possession of any dan5erous dru5 andHor
controlled precursor and essential chemical.
P3otecto37+odd0e3 V Any person who 7nowin5ly
and willfully consents to the unlawful acts provided
for in this Act and uses hisHher inNuence* power or
position in shieldin5* harborin5* screenin5 or
facilitatin5 the escape of any person heHshe 7nows*
or has reasonable 5round to believe on or
suspects* has violated the provision of this Act in
order to prevent the arrest* prosecution and
conviction of the violator.
P/s1e3 V Any person who sells* trades*
administers* dispenses* delivers* or 5ives away to
another* on any terms whatsoever* or distributes*
dispatches in transit or transports dan5erous dru5s
or who acts as a bro7er in any of such transaction*
in violation of this Act.
P0ant&n4 o8 e2&dence V the willful act by any
person of maliciously and surreptitiously insertin5*
placin5* addin5 or attachin5 directly or indirectly*
96
throu5h any overt or covert act whatever uantity
of any dan5erous dru5 andHor controlled precursor
and essential chemical in the person* house*
efects or in the immediate vicinity of an innocent
individual for the purpose of implicatin5*
incriminatin5* or imputin5 the commission of any
violation of this Act.
W#a are #e 7igni?"an Pro=i7ion7 in R.A.
6%2@ #a #a=e <een "#ange:4
$.2nder this Act there is no more distinction
between prohibited dru5 and re5ulated dru5s
andHor controlled precursors and essential
chemicals enumerated in 6ables I and II of the
$'-- 2< /onvention a5ainst Illicit 6raFc in
<arcotic Cru5s and Psychotropic Substances.
%.6he penalties provided by #.A. 9)&' was
chan5ed * adoptin5 partially the penalties in
#.A. )8%&.
=.In plantin5 evidence any person now maybe
held liable. Before* only law enforcement
a5ents.
8.6he provisions of the #evised Penal /ode have
no suppletory efect e3cept for minors who
may be sentenced to reclusion perpatua.
W#a are #e ne9 'in:7 o; :rug7 #a are
in"lu:e: in R.A. 5$6@4
?ethylenedio3ymethamphetamine (?C?A. or
commonly 7nown as SJcstasyT* or its any other
name which refers to the dru5s havin5 such
chemical composition* includin5 any of its isomers
97
or derivatives in any form.
Parametho3yamphetamine (P?A.*
6rimetho3yamphetamine (6?A.* lyser5ic acid
diethylamine (LSC.* 5amma hydro3ybutyrate ("AB.
and those similarly desi5ned or newly introduced
dru5s and their derivatives* without havin5 any
therapeutic value or if the uantity possessed is far
beyond therapeutic reuirement* as determined
and promul5ated by the Board in accordance to
Section '=* Art OI of this Act of #.A. '$)&.
ACTS PUNIS(ABLE UNDER T(E LAW
$. Importation of any dan5erous dru5*
re5ardless of the uantity and purity
involved* includin5 any and all species of
opium poppy or any part thereof or
substances derived thereform even for Noral*
decorative and culinary purposes.
%. Importation of any controlled precursor and
essential chemical.
=. Importation of any dan5erous dru5 andHor
controlled precursor and essential chemical
throu5h the use of a diplomatic passport*
diplomatic facilities or any other means
involvin5 hisHher oFcial status intended to
facilitate the unlawful entry.
8. @r5aniDin5* mana5in5* or actin5 as a
SfnancierT of any of the ille5al activities
penaliDed under Section 8 of the Law.
&. Actin5 as SprotectorHcoddlerT of anyone who
violates Section 8 of the Law.
). Sale* tradin5* administration* dispensation*
distribution and transportation of dan5erous
dru5s* re5ardless of uantity and purity
involved* or actin5 as a bro7er in any of such
transactions.
98
9. Sale* tradin5* administration* dispensation*
distribution and transportation of any
controlled precursor and essential chemical*
or actin5 as a bro7er in such transaction.
-. 2se by dru5 pushers of minors or mentally
incapacitated individuals as runners* couriers
and messen5ers* or in any other capacity
directly connected to the trade of dan5erous
dru5s andHor controlled precursor and
chemicals.
'. Actin5 as a protectorHcoddler of any violator
of the provision of Sec. &.
$(. ?aintenance of a Cen* Cive or #esort
where any dan5erous dru5 is used or sold in
any form.
11. ?aintenance of a Cen* Cive or #esort where
any controlled precursors and essential
chemical is used or sold in any form.
$%. Actin5 as SprotectorHcoddlerT of a
maintainer of a Cen* Cive* or #esort
$=. Jmployees and Iisitors of a Cen* Crive* or
#esort
$8. ?anufacture of Can5erous Cru5s andHor
/ontrolled Precursors and Jssential
/hemicals
$&. Actin5 as a protector or coddler of any
violator of Sec. -
$). Ille5al /hemical Civersion of /ontrolled
Precursor and Jssential /hemicals.
$9. ?anufacture or Celivery of Juipment*
Instrument* Apparatus* and other
Paraphernalia for Can5erous Cru5s andHor
/ontrolled Precursors and Jssential
/hemicals.
$-. Possession of Cru5.
$'. Possession of euipment* Instrument*
Apparatus* and @ther Paraphernalia for
Can5erous Cru5s
%(. Possession of Can5erous Cru5s Curin5
Parties* Social "atherin5 or ?eetin5s.
99
%$. Possession of Juipment* Instrument*
Apparatus and @ther Paraphernalia for
Can5erous Cru5s durin5 Parties* Social
"atherin5 or ?eetin5s.
%%. 2se of Can5erous Cru5s.
%=. /ultivation or /ulture of Plants /lassifed as
Can5erous Cru5s or are Sources thereof.
%8. ?aintenance and 7eepin5 of @ri5inal
#ecords of 6ransaction on Can5erous Cru5s
andHor /ontrolled Precursors and Jssential
/hemicals
%&. 2nnecessary Prescription of Can5erous
Cru5s
%). 2nlawful Prescription of Can5erous Cru5s
%9. Attempt or /onspiracy to commit the
followin5 unlawful actsG (a. Importation of
any dan5erous dru5s andHor controlled
precursor and essential chemical! (b. Sale*
tradin5* administration* dispensation*
delivery* distribution* and transportation of
any dan5erous dru5 andHor controlled
precursor and essential chemical! (c.
?aintenance of a den* dive* or resort where
dan5erous dru5s is used in any form! (d.
?anufacture of any dan5erous dru5 andHor
controlled precursor and essential chemical!
and (e. /ultivation or culture of plants which
are sources of dan5erous dru5s.
CRIMINAL LIABILIT- O) ALIENS!
O))ICERS O) PARTNERS(IP!
CORPORATION! ASSOCIATIONS!
OR OT(ER JURIDIUCAL ENTITIES
$.In addition to the penalties prescribed in the
unlawful act committed* any alien who violates
such provisions of the Law* after service of
sentences* shall be deported immediately
100
without further proceedin5s* unless the penalty
is death.
%.In case the violation of the Law is committed
by a partnership* corporation* association or
any >uridical entity* the partner* president*
director* mana5er* trustee* estate
administrator* or oFcer who consents to or
7nowin5ly tolerates such violation shall be held
criminally liable as co-principal.
=.6he penalty provided for the ofense under the
Law shall be imposed upon the partner*
president* director* mana5er* trustee* estate
administrator* or oFcer who 7nowin5ly
authoriDes* tolerates* or consents to the use of
a vehicle* vessel* aircraft* euipment or other
facility as an instrument in the importation*
sale* tradin5* administration* dispensation*
delivery* distribution* transportation* or
manufacture of dan5erous dru5s* or chemical
diversion* if such vehicle* aircraft* euipment or
other instrument is owned by or under the
control or supervision of the partnership*
corporation* association or >uridical entity to
which they are aFliated.
CRIMINAL LIABLIT- O) PUBLIC O))ICERS OR
EMPLO-EES
$.Any public oFcer or employee who ($.
misappropriates* (%. misapplies or (=. fails to
account for confscated* seiDed or surrendered
dru5s* plant sources of dan5erous dru5s*
controlled precursors and essential chemicals*
instrumentsHparaphernalia andHor laboratory
euipment includin5 the proceeds or properties
obtained from the unlawful acts punished under
the Law shall be penaliDed with life imprisonment
101
to death and a fne ran5in5 fromP&((*(((.(( to
P$(*(((*(((.(( and with perpetual
disualifcation from any public oFce (Sec.%9..
%.Any 5overnment oFcial or employee found 5uilty
of the unlawful acts punished under the Law shall
be imposed the ma3imum penalties provided for
the ofense and shall be absolutely perpetually
disualifed from holdin5 any public oFce. (Sec.
%-..
CRIMINAL LIABILIT- O)
ELECTI,E LOCAL OR NATIONAL O))ICIALS
W(O BENE)ITS )ROM DRUG TRA))ICIING V
whether or not he 7now that it came from dru5s*
but the one who 5ave must be convicted frst by
fnal >ud5ment.
$. Any elective local or national oFcial found to
have ($. benefted from the proceeds of the
traFc7in5 of dan5erous dru5s as prescribed in the
Law* or has (%. received any fnancial or material
contributions or donations from natural or >uridical
persons found 5uilty of traFc7in5 dan5erous dru5
as prescribed in the law* shall be removed from
oFce and perpetually disualifed from holdin5 any
elective or appointive positions in the 5overnment*
its divisions* subdivisions* and intermediaries*
includin5 5overnment-owned or controlled
corporations (sec.%9.
CRIMINAL LIABILIT- O) PRI,ATE INDI,IDUAL
$.Any person found 5uilty of Splantin5T any
dan5erous dru5 andHor controlled precursor
and essential chemical* re5ardless of uantity
and purity* shall be punished with death. (Sec.
%'..
102
%.Any person violatin5 any re5ulation issued by
the Can5erous Cru5 Board shall be punished
with imprisonment ran5in5 from ) months and
$ day to 8 years and a fne ran5in5 from
P$(*(((.(( to P&(*(((.(( in addition to the
administrative sanction which may be imposed
by the Board (Sec. =%.

CRIMINAL LIABILIT- )OR
PLANTING O) E,IDENCE
Any person who is found 5uilty of plantin5 nay
dan5erous dru5 andH or controlled precursor and
essential chemicals* re5ardless of uantity and
purity* shall sufer the penalty of death. (Sec. %'..
Previously* only law enforcement a5ent maybe
held liable (#.A. 9)&'..
ACCESOR- PENALTIES
Any person convicted under this Law
(#.A.'$)&. shall be disualifed to e3ercise hisHher
civil ri5hts such as* but not limited to* the ri5ht of
parental authority or 5uardianship* either as to the
person or property of any ward* the ri5hts to
dispose of such property by any act or any
conveyance inter vivos* and political ri5hts such as
but not limited to* the ri5ht to vote and be voted
for. Such ri5hts shall also be suspended durin5 the
pendency of an appeal from such conviction
(Sec.=&.
AGGRA,ATING CIRCUMSTANCES
RUG RELATED CASES
$. If the importation or brin5in5 into the
Philippines of any dan5erous dru5s andHor
103
controlled precursor and essential chemicals
was done throu5h the use of diplomatic
passport* diplomatic facilities or any other
means involvin5 hisHher oFcial status intended
to facilitate the unlawful entry of the same
%. 6he sale tradin5* administration*
dispensation* delivery* distribution or
transportation of any dan5erous dru5 andHor
controlled precursor and essential chemical
transpired within one hundred ($((. meters
from the school
=. 6he dru5 pusher use minors or mentally
incapacitated individuals as runners* couriers
and messen5er* or in any other capacity
directly connected to the dan5erous dru5
andHor controlled precursor and essential
chemical trade
8. 6he victim of the ofense is a minor or
mentally incapacitated individual* or should a
dan5erous dru5 andHor controlled precursor
and essential chemicals involved in any ofense
be the pro3imate cause of death of a victim
&. In case the clandestine laboratory is
underta7en or established under the followin5
circumstancesG
a.. Any phase of the manufacturin5 process
was conducted in the presence or with
the help of minorHs
b.. Any phase of manufacturin5 process
was established or underta7en within
one hundred ($((. meters of a
residential* business* church or school
premises.
c.. Any clandestine laboratory was secured
or protected with booby traps.
104
d.. Any clandestine laboratory was
concealed with le5itimate business
operations.
e.. Any employment of a practitioner*
chemical en5ineer* public oFcial or
forei5ner.
). In case the person uses a minor or a mentally
incapacitated individual to deliver euipment*
instrument* apparatus and other paraphernalia use
for dan5erous dru5s.
9. Any person found possessin5 any dan5erous
dru5 durin5 a party* or a social 5atherin5 or
meetin5* or in the pro3imate company of at least
two (%. person.
-. Possession or havin5 under hisHher control any
euipment* instrument* apparatus and other
paraphernalia ft of intended for smo7in5*
consumin5* administerin5* in>ectin5* in5estin5 or
introducin5 any dan5erous dru5 into the body*
durin5 parties* social 5atherin5s or meetin5s* or in
the pro3imate company of at least two (%. person
W(AT ARE T(E PRI,ILEGE NOT
A,AILABLE TO ,IOLATOR O) T(IS ACT4
$.Any person char5ed under any provision of this
Act re5ardless of the imposable penalty shall not
be allowed to avail of the provision on plea-
bar5ainin5.
%.Any person convicted for dru5 traFc7in5 or
pushin5 under this Act* re5ardless of the penalty
imposed by the /ourt* cannot avail of the
privile5e 5ranted by the Probation Law of P.C. <o.
')-* as amended* e3cept minors who are frst-
time ofenders.
105
Noe:- Pendency of appeal suspend the ri5ht of the
accused
- #i5hts to Self-incrimination do not refer to 5ivin5
blood.
IMMUNIT- )ROM PROSECUTION AND
PUNIS(MENT
Immunity from Prosecution and punishment V
<otwithstandin5 the provision of Section $9* #ule
$$' of the #evised #ules of /riminal Procedure and
the provisions of #epublic Act <o. )'-$ or the
:itness Protection* Security and Benefts Act of
$''$* any person who has violated Sections 9*$$*
$%* $8* $& and $'* Article II of this Act* who
voluntarily 5ives information about any violation of
Section 8* &* )* -* $= and $)* Article II of this Act as
well as any violation of the ofenses mentioned if
committed by dru5 syndicate* or of any information
leadin5 to the whereabouts* identities and arrest of
all or any of the members thereof! and who
willin5ly testifes a5ainst such persons as
described above* shall be e3empted from the
prosecution or punishment for the ofense with
reference to which hisHher information of testimony
in bar of such prosecution! Provided* that the
followin5 condition concurG
$.6he information and testimony are necessary for
the conviction of the person described above!
%.Such information are not yet in the possession of
the State!
=.Such information and testimony can be
corroborated on its material points!
8.6he informant or witness has not been previously
convicted of a crime involvin5 moral turpitude*
e3cept when there is no other direct evidence
available for the State other than the information
and testimony of said informant or witness! and
106
&.6he informant or witness shall strictly and
faithfully comply without delay* any condition or
underta7in5* reduced into writin5* lawfully
imposed by the State as further consideration for
the 5rant of immunity from prosecution and
punishment.
Provided furt%er* 6hat this immunity may be
en>oyed by such informant or witness who does not
appear to be most 5uilty for the ofense with
reference to which hisHher information or testimony
were 5iven. Provide 3nally* that there is no direct
evidence available for the State e3cept for the
information and testimony of the said informant or
witness.
TERMINATION O) T(E
GRANT O) IMMUNIT-
6he immunity above-5ranted shall not attach
should it turn out subseuently that the
information andHor testimony is false* malicious* or
made only for the purpose of harassin5* molestin5
or in any way pre>udicin5 the persons described in
Section == a5ainst whom such information or
testimony is directed. In such case* the informant
or witness shall be sub>ect to prosecution and the
en>oyment of all ri5hts and benefts previously
accorded him under the Law or any other law*
decree or order shall be deemed terminated.
In case the informant or witness under the Law
fails or refuse to testify without >ust cause* and
when lawfully obli5es to do so* or should heHshe
violate any condition accompanyin5 such immunity
as provided above* hisHher immunity shall be
removed and heHshe shall be li7ewise be sub>ected
to contempt andHor criminal prosecution* as the
case may be and the en>oyment of all ri5hts and
107
benefts previously accorded him under the Law or
in any other law* decree or order shall be deemed
terminated. (Sec =8..
In case the informant or witness referred to
under the Law falls under the applicability of
Section =8* such individual cannot avail of the
provision under Article IIII of the Law.
PERSONHS W(O ARE SUBJECT
TO T(E MANDATOR- DRUG TESTING
a. Applicants for driver,s license V no driver,s
license shall be issued or renewed to nay person
unless heHshe presents a certifcation that heHshe
has under5one a mandatory dru5 test and
indicatin5 thereon that heHshe is free from the
use of dan5erous dru5s.
b. Applicants for frearm,s license and permit to
carry frearms outside of residence. V All
applicants for frearms license and permit to
carry frearms outside of residence shall under5o
a mandatory dru5 test to ensure that they are
free from the use of dan5erous dru5s! Provided
6hat all persons who by the nature of their
profession carry frearms shall under5o dru5
testin5!
c. @Fcers and employees of public and private
oFces. V @Fcers and employees of public and
private oFces* whether domestic or overseas*
shall be sub>ected to under5o a random dru5 test
as contained in the company,s wor7 unless and
re5ulation* which shall be borne by the employer*
for purposes of reducin5 the ris7 in the
wor7place. Any oFcer or employee found
positive for the sue of dan5erous dru5 shall be
dealt with administratively which shall be a
5round for suspension or termination* sub>ect to
108
the provision Article %-% of the Labor /ode and
pertinent provisions of the /ivil Service Law.
d. @Fcers and members of the military* police and
other law enforcement a5encies. V @Fcers and
members of the military* police and other law
enforcement a5encies shall under5o an annual
mandatory dru5 test.
e.All persons char5ed before the prosecutor,s oFce
with a criminal ofense havin5 an imposable
penalty of imprisonment of not less than si3 ().
years and one ($. day shall have under5o a
mandatory dru5 test.
f. All candidates for public oFce whether appointed
or elected both in the national or local
5overnment shall under5o a mandatory dru5
test.
CON)IDENTIALIT- O) RECORDS UNDER
T(E COMPULSAR- SUBMISSION PROGRAM
6he records of a dru5 dependent who was
rehabilitated and dischar5ed from the /enter under
the compulsory submission pro5ram* or who was
char5ed for violation of Section $& of this Act* shall
be covered by Section )( of this Act (#.A. '$)&..
Aowever* the record of a dru5 dependant who was
not rehabilitated* or who escaped but did not
surrender himselfHherself within the prescribed
period* shall be forwarded to the court and their
use shall be determined by the court* ta7in5 into
consideration public interest and the welfare of the
dru5 dependant $/ec. ;7&
DISC(ARGED A)TER COMPLIANCE WIT(
CONDITIONS O) SUSPENDED SENTENCE O) A
)IRST.TIME MINOR O))ENDER
109
If the accused frst time minor ofender under
suspended sentence complies with the applicable
rules and re5ulation of the Board* includin5
confnement in a /enter* the court* upon a
favorable recommendation of the Board for a fnal
dischar5e of the accused* shall dischar5e the
accused and dismiss all proceedin5s.
2pon the dismissal of the proceedin5s a5ainst
the accused* the court shall enter an order to
e3pun5e all oFcial records* other than the
confdential record to be retained by the C@+
relatin5 to the case. Such an order* which shall be
7ept confdential* shall restore the accused to
hisHher status prior to the case. AeHshe shall not be
held thereafter to be 5uilty of per>ury or of
concealment or misrepresentation by reason of
hisHher failure to ac7nowled5e the case or recite
any fact related therto in response to any inuiry
madeof him for any purpose $/ec. ;:&
T(E DANGEROUS DRUGS BOARD AND
P(ILIPPINE DRUG EN)ORCEMENT AGENC-
T1e "an4e3o/s "3/4 Boa3d
A. )un"ion
6he Can5erous Cru5 Board shall be the policy-
ma7in5 and strate5y formulatin5 body in the
plannin5 and formulation of policies and pro5rams
on dru5 prevention and control. (Sec. 99.
B. Co>8o7iion
2nder #.A. )8%8 as amended* the Can5erous
Cru5 board was composed of seven ex o.cio
members as followsG (a. 6he ?inister of Aealth or
his representative! (b. the ?inister of +ustice or his
representative! (c. 6he ?inister of <ational Cefense
or his representative! (d. 6he ?inister of Jducation
and /ulture or his representative! (e. 6he ?inister
110
of ;inance or his representative! (f. 6he ?inister of
Social Service and Cevelopment or his
representative! and (5. 6he ?inister of Local
"overnment or his representative (Sec. =& Art. -*
#.A. )8%8.
6he ?inister of Aealth shall be the /hairman of
the Board and the Cirector of the <ational Bureau
of Investi5ation shall be the permanent consultant
of the Board.
2nder Section 9- of #.A. '$)&* the membership
of the Can5erous Cru5s Board was e3panded to
seventeen ($9. members* three (=. of which are
permanent members* twelve ($%. shall be in ex
o.cio capacity* and the remainin5 two (%. shall be
re5ular members.
6he three (=. permanent members* who shall
possess At least seven-year trainin5 and
e3perience in the feld of dan5erous dru5s and in
any of the followin5 feldsG in law* medicine*
criminolo5y* psycholo5y or social wor7* shall be
appointed by the President of the Philippines. 6he
President shall desi5nate a /hairman* who shall
have the ran7 of a secretary from amon5 the three
(=. permanent members who shall serve for si3 ().
years. @f the two (%. other members* who shall
have the ran7 of undersecretary* one ($. shall
serve for four (8. and the other for two (%. years.
6hereafter* the person appointed to succeed such
members shall hold oFce for a term of si3 ().
years and until their successors shall have been
duly appointed and ualifed.
6he other twelve ($%. members who shall be
ex o.cio members of the Board are the followin5G
($. Secretary of the Cepartment of +ustice or
hisHher representative! (%. Secretary of the
Cepartment of Aealth or hisHher representative! (=.
111
Secretary of the Cepartment of <ational Cefense or
hisHher representative! (8. Secretary of the
Cepartment of ;inance or hisHher representative!
(&. Secretary of the Cepartment of Labor and
Jmployment or hisHher representative! ().
Secretary of the Cepartment of Interior and Local
"overnment or hisHher representative! (9.
Secretary of the Cepartment of Social :elfare and
Cevelopment or hisHher representative! (-.
Secretary of the Cepartment of ;orei5n Afairs or
hisHher representative! ('. Secretary of the
Cepartment of Jducation or hisHher representative!
($(. /hairman of the /ommission of Ai5her
Jducation or hisHher representative! ($$. /hairman
of the <ational Kouth /ommission! and ($%.
Cirector "eneral of the Philippine Cru5
Jnforcement A5ency.
/abinet secretaries who are members of the
Board may desi5nate their duly authoriDed and
permanent representatives whose ran7 shall in no
case be lower than undersecretary.
6he two (%. re5ular members shall be as
followsG (a. 6he President of the Inte5rated Bar of
the Philippines! and (b. 6he chairman or president
of a non- chairman or president of a non- chairman
or president of a non-5overnment or5aniDation
involved in dan5erous dru5 campai5n to be
appointed by the President of the Philippines.
T1e P1&0&..&ne "3/4 En8o3cement A4ency
(P"EA)
A.C )un"ion7
/arry out the provision of the Can5erous Cru5
act of %((%. 6he A5ency shall served as the
implementin5 arm of the Can5erous Cru5 Board*
and shall be responsible for the eFcient and
112
efective law enforcement of all provisions of any
dan5erous dru5 andHor controlled precursor and
essential chemicals as provided for in the Law.
(Sec. -%.. 6he e3istin5 Secretariat of the <ational
Cru5 Law Jnforcement and Prevention
/oordinatin5 /enter as created by J3ecutive @rder
<o. )$ is hereby modifed and absorbed by the
PCJA (Sec. -=* #.A. '$)&.
B.C Po9er7 an: Duie7
a. Implement or cause the eFcient and
efective implementation of the national
dru5 control strate5y formulated by the
Board thereby carryin5 out a national dru5
campai5n pro5ram which shall include dru5
law enforcement* control and prevention
campai5n with the assistance of concerned
5overnment a5encies!
b. 2nderta7e the enforcement of the provision
of article II of this Act relative to the
unlawful acts and penalties involvin5 any
dan5erous dru5 andHor controlled precursor
and essential chemical and investi5ate all
violators and other matters involved in the
commission of any crime relative to the
use* abuse or traFc7in5 of any dan5erous
dru5 andHor controlled precursor and
essential chemicals as provided for in this
Act and the provisions of Presidential
Cecree <o. $)$'!
c. Administer oath* issue subpoena and
subpoena duces tecum relative to the
conduct of investi5ation involvin5 violation
of this Act!
d. Arrest and apprehend as well as search all
violators and seiDe or confscate* the
efects or proceeds of the crime as
provided by law and ta7e custody thereof*
for this purpose the prosecutors and
113
enforcement a5ents are authoriDed to
possess frearms* in accordance with the
e3istin5 laws!
e. 6a7e char5e and have custody of all
dan5erous dru5s andHor controlled
precursors and essential chemicals seiDed*
confscated or surrendered to any national*
provincial or local law enforcement a5ency!
if no lon5er needed for purposes of
evidence in court.
f. Jstablish forensic laboratories in each P<P
oFce in every province and city in order to
facilitate action on seiDed or confscated
dru5s! thereby hastenin5 its destruction
without delay!
5. #ecommend to the C@+ the forfeiture of
properties and other assets of persons
andHor corporations found to be violatin5
the provisions of this Act and in accordance
with the pertinent provisions of the Anti-
?oney Launderin5 Act of %((%.
h. Prepare for prosecution or cause the flin5
of appropriate criminal and civil cases for
violation of laws on dan5erous dru5s*
controlled precursors and essential
chemicals* and other similar controlled
substance* and assist* support and
coordinate with other 5overnment a5encies
for the proper and efective prosecution of
the same!
i. ?onitor and if warranted by circumstances*
in coordination with the Philippine Postal
@Fce and the Bureau of /ustoms* inspect
all air car5o pac7a5es* parcels and mails in
the central post oFce* which appear from
the pac7a5es and address itself to be a
possible importation of dan5erous dru5s
andHor controlled precursors and essential
chemicals* throu5h on-line or cyber shops
via the internet or cyberspace!
114
>. /onduct eradication pro5rams to destroy
wild or ille5al 5rowth of plants from which
dan5erous dru5s may be e3tracted!
7. Initiate and underta7e the formation of a
nationwide or5aniDation which shall
coordinate and supervise all activities
a5ainst dru5 abuse in every province* city*
municipality and baran5ay with active and
direct participation of all such local
5overnment units and non-5overnmental
or5aniDations* includin5 the citiDenry*
sub>ect to the provisions of previously
formulated pro5rams of action a5ainst
dan5erous dru5s!
l. Jstablish and maintain a national dru5
intelli5ence system in cooperation with law
enforcement a5encies* other 5overnment
a5enciesHoFces and local 5overnment
units that will assist in its apprehension of
bi5 time dru5 lords!
m. Jstablished and maintain close
coordination* cooperation and lin7a5es with
international dru5 control and
administration a5encies and or5aniDation
and implement the applicable provisions of
international conventions and a5reement
related to dan5erous dru5s to which the
Philippines is a si5natory!
n. /reate and maintain an eFcient special
enforcement unit to conduct an
investi5ation* fle char5es and transmit
evidence to the proper court* wherein
members of the said unit shall possess
suitable and adeuate frearms for their
protection in connection with the
performance of their duties! Provided 6hat
no previous special permit for such
possession shall be reuired!
o. #euire all 5overnment and private
hospitals* clinics* doctors* dentists and
115
other practitioners to submit a report to it*
in coordination with the Board* about all
dan5erous dru5s andHor controlled
precursors and essential chemicals which
they have attended to for data and
information purposes!
p. /oordinate with the Board for the
facilitation of the issuance of necessary
5uidelines* rules and re5ulations for the
proper implementation of this Act!
. Initiate and underta7e a national campai5n
for dru5 prevention and dru5 control
pro5rams* where it may enlist the
assistance of any department* bureau*
oFce* a5ency* or instrumentality of the
5overnment* includin5 5overnment-owned
andHor controlled corporations* in the anti-
ille5al dru5s drive* which may include the
use of their respective personnel* facilities*
and resources for a more resolute detection
and investi5ation of dru5-related crimes
and prosecution of the dru5 traFc7ers! and
r. Submit an annual and periodic report to
the Board as may be reuired form time to
time* and perform such other functions as
may be authoriDed or reuired under
e3istin5 laws and as directed by the
President himselfHherself or as
recommended by the con5ressional
committees concerned.
NOTE:
6here are however certain power and duties of
the PCJA enumerated under Section -8 of #.A.
'$)& which seems to overlap with the functions of
prosecutors such as ($. the preparation for
prosecution or the causin5 of the flin5 of
appropriate criminal cases for violation of the Law!
and (%. flin5 of char5es and transmittal of
evidence to the proper court and which have to be
116
clarifed in the Implementin5 #ules and #e5ulation
that may be issued by the CCB and the PCJA later.
JURISDICTION O,ER DRUG RELATED CASES
6he Supreme /ourt shall desi5nate special
court from amon5 the e3istin5 #e5ional 6rial /ourt
in each >udicial re5ion to e3clusively try and hear
cases involvin5 violations of this Act. 6he number
of courts desi5nated in each >udicial re5ion shall be
based in their respective >urisdiction.
6he C@+ shall desi5nate special prosecutor to
e3clusively handle cases involvin5 violations of this
Act.
PRELIMINAR- IN,ESTIGATION O) DANGEROUS
DRUG CASES
6he preliminary investi5ation of cases fled
under this Act shall be terminated within the period
of thirty (=(. days from the date of their flin5
:hen the preliminary investi5ation is
conducted by a public prosecutor and probable
cause is established* the correspondin5 information
shall be fled in court within twenty-four (%8. hours
from the termination of the investi5ation. If the
preliminary investi5ation is conducted by a >ud5e
and a probable cause is found to e3ist* the
correspondin5 information shall be fled by the
proper prosecutor within forty-ei5ht (8-. hours
from the date of receipt of the records of the case.
$/ec. <B&
6he Cepartment of +ustice shall desi5nate
special prosecutors to e3clusively handle cases
117
involvin5 violations of the Can5erous Cru5 Act of
%((% (Sec. '(.

<otwithstandin5 the provision of any law to the
contrary* a positive fndin5 for the use of
dan5erous dru5s shall be a ualifyin5 a55ravatin5
circumstance in the commission of a crime by an
ofender* and the application of the penalty
provided for in the #evised Penal /ode shall be
applicable (Sec. %&.
/onfscation and ;orfeiture of the Proceeds or
Instruments of the 2nlawful Act* includin5 the
Properties or Proceeds Cerived from the Ille5al
6raFc7in5 of Can5erous Cru5s andHor Precursors
and Jssential /hemicals
Jvery penalty imposed for the unlawful
importation* sale* tradin5* administration*
dispensation* delivery* distribution* transportation
or manufacture of any dan5erous dru5 andHor
controlled precursor and essential chemical* the
cultivation or culture of plants which are sources of
dan5erous dru5s* and the possession of any
euipment* instrument* apparatus and other
paraphernalia for dan5erous dru5s includin5 other
laboratory euipment* shall carry with it the
confscation and forfeiture* in favor of the
5overnment* of all the proceeds and properties
derived from unlawful act* includin5* but not
limited to* money and other assets obtained
thereby* and the instruments or tools with which
the particular unlawful act was committed* unless
they are the property of a third person not liable for
the unlawful act* but those which are not of lawful
commerce shall be ordered destroyed without
delay pursuant to the provisions of Section %$ of
this Act.
118
After conviction in the #e5ional 6rial /ourt in the
appropriate criminal case fled* the /ourt shall
immediately schedule a hearin5 for the
confscation and forfeiture of all the proceeds of
the ofense and all the assets and properties of the
accused either owned or held by him or in the
name of some other persons if the same shall be
found to be manifestly out of proportion to hisHher
lawful income! Provided %o*ever 6hat if the
forfeited property is a vehicle* the same shall be
auctioned of not later than fve (&. days upon
order of confscation or forfeiture.
Curin5 the pendency of the case in the #e5ional
6rial /ourt* no property* or income derived
thereform* which may be confscated and forfeited*
shall be disposed* alienated or transferred and the
same shall be in custodio le#is and no bond shall
be admitted for the release of the same.
6he proceeds of any sale or disposition of any
property confscated under this section* forfeiture*
custody and maintenance of the property pendin5
disposition* as well as the e3pense for publication
and court costs. 6he proceeds in e3cess of the
above e3penses shall accrue to the Board to be
used in its campai5n a5ainst ille5al dru5s.
CUSTOD- AND DISPOSITION O)
CON)ISCATED! SEI1ED
ANDHOR SURRENDERED DANGEROUS DRUGS!
ETC.
6he PDEA shall ta7e char5e and have custody
of all dan5erous dru5s* plant sources of dan5erous
dru5s* controlled precursors and essential
chemicals* as well as instrumentsHparaphernalia
andHor laboratory euipment that was confscated*
119
seiDed andHor surrendered* for proper disposition in
the followin5 mannerG
$.6he apprehendin5 team havin5 initial custody
and control of the dru5s shall* immediately
after seiDure and confscation* physically
inventory and photo5raph the same in the
presence of the accused or the personHs from
whom such items were confscated andHor
seiDed* or hisHher representative or counsel* a
representative from the media and the
Cepartment of +ustice (C@+. and any elected
public oFcial who shall be reuired to si5n the
copies of the inventory and be 5iven a copy
thereof!
%.:ithin twenty-four (%8. hours upon
confscationHseiDure of dan5erous dru5s* plant
sources of dan5erous dru5s* controlled
precursors and essential chemicals* as well as
instrumentsHparaphernalia andHor laboratory
euipment* the same shall be submitted to the
PCJA ;orensic Laboratory for a ualitative
e3amination!
=.A certifcation of the forensic laboratory
e3amination results* which shall be under oath
by the forensic laboratory e3aminer* shall be
issued within twenty-four (%8. hours after the
receipt of the sub>ect itemsHsG Provided* that
when the volume of dan5erous dru5s* and
controlled precursors and essential chemicals
does not allow the completion of testin5 within
the time frame* a partial laboratory
e3amination report shall be provisionally by the
forensic laboratoryG Provided %o*ever that a
fnal certifcation on the same within the ne3t
twenty-four (%8. hours!
120
8.After the flin5 of the criminal case* the /ourt
shall within seventy-two (9%. hours* conduct an
ocular inspection of the confscated* seiDed
andHor surrendered dan5erous dru5s* plant
sources of dan5erous dru5s* and controlled
precursor and essential chemicals* includin5
the instrumentsHparaphernalia andHor
laboratory euipment* and throu5h the PCJA
shall within twenty-four (%8. hours thereafter
proceed with the destruction or burnin5 of the
same* in the presence of the accused or the
personHs from which such items were
confscated andHor seiDed* or hisHher
representative or counsel* a representative
from the media and the C@+* civil society 5roup
and any elected public oFcial. 6he Board shall
draw up the 5uidelines on the manner of
proper disposition and destruction of such
itemHs which shall be borne by the ofender!
Provided* 6hat those itemHs of lawful
commerce* as determined by the Board* shall
be donated* used or recycled for le5itimate
purposes! Provided* furt%er 6hat a
representative sample* duly wei5hed and
recorded* is retained!
&.6he Board shall then issue a sworn statement
as to the fact of destruction or burnin5 of the
sub>ect itemHs to5ether with the representative
sampleHs shall be 7ept to a minimum uantity
as determined by the Board!
).6he alle5ed ofender or hisHher representative
or counsel shall be allowed to personally
observe all of the above proceedin5s and
hisHher presence shall not constitute an
admission of 5uilt. In case the said ofender or
accused refuses or fails to appoint a
representative after due notice in writin5 to the
accused or hisHher counsel within seventy-two
121
(9%. hours before the actual or destruction of
the evidence in uestion* the Secretary of
+ustice shall appoint a member of the public
attorney,s oFce to represent the former!
9.After the promul5ation of >ud5ment in the
criminal case wherein the representative
sampleHs was presented as evidence in court*
the trial prosecutor shall inform the Board of
the fnal termination of the case and in turn*
shall reuest the court for leave to turn over
the said representative sampleHs to the PCJA
for proper disposition and destruction within
twenty-four (%8. hours from receipt of the
same! and
-.6ransitory ProvisionG a.. :ithin twenty-four
hours from the efectivity of this Act (#.A.
'$)&.* dan5erous dru5s defned herein which
are presently in possession of law enforcement
a5encies shall* with leave of court* be burned
or destroyed* in the presence of representative
of the /ourt* C@+* Cepartment of Aealth (C@A.
and the accused andHor hisHher counsel* and b..
Pendin5 the or5aniDation of the PCJA* the
custody* disposition* and burnin5 of seiDed or
surrendered dan5erous dru5s provided under
this Section shall be implemented by the C@A
(Sec. %$* Art. %* #.A. '$)&.
SUSPENSION O) SENTENCE O) )IRST.TIME
MINOR O))ENDER
An accused who is over ffteen ($&. years of
a5e at the time of the commission of the ofense
mentioned in Section $$ of #.A. '$)& but not more
that ei5hteen ($-. years of a5e at the time when
the >ud5ment should have been promul5ated after
havin5 been found 5uilty of said ofense* may be
122
5iven the benefts of a suspended sentence*
sub>ect to the followin5 conditionsG

a.AeHShe has not been previously convicted of
violatin5 any provision of this Act* or of the
Can5erous Cru5s Act of $'9%* as amended! or of
the #evised Penal /ode! or any special penal
laws!
b.AeHShe has not been previously committed to a
/enter or to the care of a C@A-accredited
physician! and
c. 6he Board favorably recommends that hisHher
sentence be suspended.
PRI,ILEGE O) SUSPENDED SENTENCE CAN BE
A,AIL ONL- ONCE B- A )IRST.TIME MINOR
O))ENDER
6he privile5e of suspended sentence shall be
availed of only once by accused dru5 dependent
who is a frst-time ofender over ffteen ($&. years
of a5e at the time of the commission of the
violation of Section $& of this Act but not more than
ei5hteen ($-. years of a5e at the time when
>ud5ment should have been promul5ated. $/ec. ;D&
PROMULAGATION O) SENTENCE )OR )IRST.
TIME O))ENDER
If the accused frst-time minor ofender violates
any of the conditions of hisHher suspended
sentence* the applicable rules and re5ulations of
the Board e3ercisin5 supervision and rehabilitative
surveillance over him* includin5 the rules and
re5ulations of the /enter should confnement be
reuired* the court shall pronounce >ud5ment of
123
conviction and heHshe shall serve sentence as any
other convicted person. $/ec. ;<&
PROBATION OR COMMUNIT- SER,ICE )OR A
)IRST.TIME MINOR O))ENDER IN LIEU O)
IMPRISONMENT
2pon promul5ation of the sentence* the court
may* in its discretion* place the accused under
probation* even if the sentence provided under this
Act is hi5her than that provided under e3istin5 law
on probation* or impose community service in lieu
of imprisonment. In case of probation* the
supervision and rehabilitative surveillance shall be
underta7en by the Board throu5h the C@A in
coordination with the Board of Pardons and Parole
and the Probation Administration. 2pon compliance
with the conditions of the probation* the Board
shall submit a written report to the court
recommendin5 termination of probation and a fnal
dischar5e of the probationer* whereupon the court
shall issue such an order.
6he community service shall be complied with
under conditions* time and place as may be
determined by the court in its discretion and upon
the recommendation of the Board and shall apply
only to violators of Section $& of this Act. 6he
completion of the community service shall be
under the supervision and rehabilitative
surveillance of the Board durin5 the period
reuired by the court. 6hereafter* the Board shall
render a report on the manner of compliance of
said community service. 6he court in its discretion
may reuire e3tension of the community service or
order a fnal dischar5e.
If the sentence promul5ated by the court
reuire imprisonment* the period spent in the
124
/enter by the accused shall be deducted from the
sentence to be served. $ /ec. :B&
W(AT ARE T(E LIABILIT- AND
RESPONSIBILIT- O) A MEMBER O) LAW
EN)ORCEMENT AGENCIES AND OT(ER
O,ERNMENT O))ICIALS IN TESTI)-ING AS
PROSECUTION WITNESSES IN DANGEROUS
DRUG CASES4

Any member of law enforcement a5encies or
any other 5overnment oFcial and employee who*
after due notice* fails or refuse intentionally or
ne5li5ently* to appear as a witness for the
prosecution in any proceedin5s* involvin5 violation
of this Act* without any valid reason shall be
punished with imprisonment of not less than
twelve ($%. years and one ($. day to twenty (%(.
years and a fne of not less than ;ive hundred
thousand pesos (P&((*(((.((.* in addition to the
administrative liability heHshe may be meted out by
hisHher immediate superior andHor appropriate
body.
6he immediate superior of the member of the
law enforcement a5ency or any other 5overnment
employee mentioned in the precedin5 para5raph
shall be penaliDed with imprisonment of not less
than two (%. months and one ($. day but not more
than si3 (). years and a fne of not less than ten
thousand (P$(*(((.((. but not more than ;ifty
thousand (P&(*(((.((. and in addition* perpetual
absolute disualifcation from public oFce if
despite due notice to them and to the witness
concerned the former does not e3ert reasonable
efort to present the latter to the court
6he member of the law enforcement a5ency or
any other 5overnment employee mentioned in the
125
proceedin5 para5raphs shall not be transferred or
re-assi5ned to any other 5overnment oFce located
in another territorial >urisdiction durin5 the
pendency of the case in court. Aowever* the
concerned member of the law enforcement a5ency
or 5overnment employee may be transferred or re-
assi5ned for compellin5 reasonG Provided* that
hisHher immediate superior shall notify the court
where the case is pendin5 of the order to transfer
or re-assi5n* within twenty-four (%8. hours from its
approvalG Provided furt%er that hisHher immediate
superior shall be penaliDed with imprisonment of
not less than two (%. months and one ($.day but
not more than si3 (). years and a fne of not less
than two (%. months and one ($. day but not more
than si3 (). years and a fne of not less than 6en
thousand (P$(*(((.((. but not more than ;ifty
thousand pesos (P&(*(((.((. and in addition*
perpetual absolute disualifcation from public
oFce* should heHshe fails to notify the court of
such order to transfer or re-assi5n.

DELA- AN) BUNGLING IN T(E
PROSECUTION O) DRUG CASES
Any 5overnment oFcer employee tas7ed with
the prosecution of dru5-related cases under this
Act* who throu5h patent la3ity* ine3cusable
ne5lect* unreasonable delay or deliberately causes
the unsuccessful prosecution andHor dismissal of
the said dru5 cases* shall sufer the penalty of
imprisonment ran5in5 from twelve ($%. years and
one ($. day to twenty (%(. years without pre>udice
to hisHher prosecution under the pertinent provision
of the #evised Penal /ode.
126
RECORDS TO BE IEPT B- T(E
DEPARTMENT O) JUSTICE
6he C@+ shall 7eep a confdential record of the
proceedin5s on suspension of sentence and shall
not be used for any purpose other than to
determine whether or not a person accused under
this Act is a frst-time ofender. $/ec. :1&
LIABILIT- O) A PERSON W(O ,IUOLATES
T(E CON)IDENTIALIT- O) RECORDS
6he Penalty of imprisonment ran5in5 from si3
(). months and one ($. day to si3 (). years and a
fne ran5in5 from @ne thousand pesos (P$*(((.((.
to Si3 thousand pesos (P)*(((.((.* shall be
imposed upon any person who* havin5 oFcial
custody of or access to the confdential records of
any dru5 dependent under voluntary submission
pro5rams* or any one who* havin5 5ained
possession of said records* whether lawfully or not*
reveals their content to any person other than
those char5ed with the prosecution of the ofense
under this Act and its implementation. 6he
ma3imum penalty shall be imposed* in addition to
the absolute perpetual disualifcation from any
public oFce* when the ofender is a 5overnment
oFcial or employee. Should the records be used for
unlawful purposes* such as blac7mail of the dru5
defendant of the members of hisHher family* the
penalty imposed for the crime of violation of
confdentiality shall be in addition to whatever
crime heHshe convicted of. (Sec. 9%.
LIABILIT- O) A PARENTS! SPOUSE OR
GUARDIAN W(O RE)USE TO COOPERATE
WIT( T(E BOARD OR AN- CONCERNED
AGENC-
127
Any parent* spouse or 5uardian who* without
valid reason parent* spouse or 5uardian who*
without valid reason* refuses to cooperate with the
Board or any concerned a5ency in the treatment
and rehabilitation of a dru5 defendant who is a
minor* or in any manner* prevents or delay the
after-care* follow-up or other pro5rams for the
welfare of the accused dru5 defendant* whether
under voluntary submission pro5ram or compulsory
submission pro5ram* may be cited in contempt by
the court.
COST.S(ARING IN T(E TREATMENT AND
RE(ABILITATION O) A DRUG DE)ENDENT
6he parents* spouse* 5uardian or any relative
within the fourth de5ree of consan5uinity of any
person who is confned under the voluntary
submission pro5ram or compulsory submission
pro5ram shall be char5ed a certain percenta5e of
the cost of hisHher treatment and rehabilitation* the
5uidelines of which shall be formulated by the
CS:C ta7in5 into consideration the economic
status of the family of the person confned. 6he
5uidelines therein formulated shall be implemented
by a social wor7er of the local 5overnment unit.
(Sec. 98.
LIMITED APPLICABILIT- O) T(E RE,ISED
PENAL CODE
<otwithstandin5 any law* rule or re5ulation to
the contrary* the provisions of the #evised Penal
/ode (Act. =-$8. as amended* shall not apply to
the provision of this Act* e3cept in the case of
minor ofenders. :here the ofender is a minor* the
penalty for acts punishable by life imprisonment to
128
death provided therein shall be reclusion perpetua
to deat%. $/ec. <D&

E*CEPTION TO NECESSIT- O) A SEARC(
WARRANT
6here is no doubt that the warrantless search
incidental to a lawful arrest authoriDes the arrestin5
oFcer to ma7e a search upon the person arrested.
An oFcer ma7in5 an arrest may ta7e from the
person arrested any money or property found upon
his person which was used in the commission of
the crime or was in fruit of the crime or which
mi5ht furnish the prisoner with the means of
committin5 violence or of escapin5* which may be
used as evidence in the trial of the case. (People
v. ?usa! "# ')$99* $H%9H'=.
LIIE ALIBI! )RAME UP IS EAS- TO )ABRICATE!
BUT DI))ICULT
TO PRO,E
;rame-up* li7e alibi* is a defense that has been
viewed by courts with disfavor for it can >ust as
easily be connected and is a common and standard
line of defense in most prosecution arisin5 from
violations of the Can5erous Cru5s Act. In order for
that defense to prosper* the evidence adduced
must be clear and convincin5. (People v. "iran5!
"# %9'8'* %H$H'&.
BU-.BUST OPERATION
Is a form of entrapment employed by peace
oFcers as an efective way of apprehendin5 a
criminal in the act of the commission of the
ofense. Jntrapment has received >udicial sanction
129
as lon5 as it is carried out with due re5ard to
constitutional and le5al safe5uards. (People v.
Basil5o! "# $(9=%9* -H&H'8.
POSEUR.BU-ER! GENERALL- NEED NOT
TESTI)-
6he testimony of the poseur-buyer or of the
confdential informant is no lon5er material
considerin5 that accused-appellant,s dru5 pushin5
was positively attested to. ?oreover* informants
are 5enerally not presumed in court because of the
need to hide their identity and preserve their
invaluable service to the police. (People v. "iran5!
"# '9'8'* %H$H'&.
E))ECT O) LIMITATION UNDER SECTION $5!
ART. ,II O) T(E
CONSTITUTION ON GRANT O) PARDON
6he 1conviction by fnal >ud5ment1 limitation
under Section $'* Article III of the present
/onstitution prohibits the 5rant of pardon* whether
full or conditional* to an accused durin5 the
pendency of his appeal from his conviction by the
trial court. Any application therefor* if one is made*
should not be acted upon or the process toward its
5rant should not be be5un unless the appeal is
withdrawn. Accordin5ly* the a5encies or
instrumentalities of the "overnment concerned
must reuire proof from the accused that he has
not appealed from his conviction or that he has
withdrawn his appeal Such proof may be in the
form of a certifcation issued by the trial court or
the appellate court* as the case may be 6he
acceptance of the pardon shall not operate as an
abandonment or waiver of the appeal* and the
release of an accused by virtue of a pardon*
130
commutation of sentence* or parole before the
withdrawal of an appeal shall render those
responsible therefor administratively liable
Accordin5ly* those in custody of the accused must
not solely rely on the pardon as a basis for the
release of the accused from confnement. (People
v. ?auilan.
RULE AS TO W(O S(OULD BE CRIMINALL-
C(ARGED
6he settled rule is that the determination of
who should be criminally char5ed in court is
essentially an e3ecutive function* not a >udicial
one. As the oFcer authoriDed to direct and control
the prosecution of all criminal actions* the
prosecutor is tas7ed to ascertain whether there is
suFcient 5round to en5ender a well-founded belief
that an ofense has been committed and that the
accused is probably 5uilty thereof. (People v.
Jsparas! "# $%((=8* +uly $(* $''-.
W(EN T(ERE IS A WAI,ER O) WARRANTLESS
ARREST
6he appellants are now precluded from
assailin5 the warrantless search and seiDure when
they voluntarily submitted to it as shown by their
actuation durin5 the search and seiDure. 6he
appellants never protested when SP@= +esus ;aller*
after identifyin5 himself as a police oFcer* opened
the tin can loaded in the appellants4 vehicle and
found ei5ht (-. bundles. And when ;aller opened
one of the bundles* it smelled of mari>uana. 6he
<BI later confrmed the ei5ht (-. bundles to be
positive for mari>uana. A5ain* the appellants did
not raise any protest when they* to5ether with
their car5o of dru5s and their vehicle* were brou5ht
131
to the police station for investi5ation and
subseuent prosecution. :e have ruled in a lon5
line of cases thatG
1:hen one voluntarily submits to a search or
consents to have it made on his person or
premises* he is precluded from later complainin5
thereof (/ooley* /onstitutional Limitations* -th ed.*
vol. I* pa5e )=$.. 6he ri5ht to be secure from
unreasonable search may* li7e every ri5ht* be
waived and such waiver may be made either
e3pressly or impliedly.1
6he appellants efectively waived their
constitutional ri5ht a5ainst the search and seiDure
in uestion by their voluntary submission to the
>urisdiction of the trial court* when they entered a
plea of not 5uilty upon arrai5nment and by
participatin5 in the trial. (People v. /orrea! "#
$$'%8)* +an. =(* ,'-.
W(EN USE O) MOTOR ,E(ICLE IN DRUG
CASES OR AN- OT(ER CASE IS NOT
AGGRA,ATING
Simply stated* the motor vehicle which was
used to transport prohibited dru5s was not
purposely sou5ht to facilitate the commission of
the crime since such act of transportin5 constitutes
the crime itself* punishable under Section 8* Article
II of #epublic Act <o. )8%&* as amended. 6hat a
motor vehicle was used in committin5 the crime is
merely incidental to the act of transportin5
prohibited dru5s. 6he use of a motor vehicle is
inherent in the crime of transportin5 as it must of
necessity accompany the commission thereof!
hence* such use is not an a55ravatin5
circumstance. (People v. /orrea.
132
CASES W(EN WARRANTLESS SEARC( IS
ALLOWED
$. :arrantless search incidental to a lawful arrest
reco5niDed under Section $%* #ule $%) of the #ules
of /ourt and by prevailin5 >urisprudence!
%. SeiDure of evidence in 1plain view*1 the
elements of which areG
(a. a prior valid intrusion based on the valid
warrantless arrest in which the police are le5ally
present in the pursuit of their oFcial duties!
(b. the evidence was inadvertently
discovered by the police who had the ri5ht to be
where they are!
(c. the evidence must be immediately apparent*
and
(d. 1plain view1 >ustifed mere seiDure of evidence
without further search!
=. Search of a movin5 vehicle. Ai5hly re5ulated
by the 5overnment* the vehicle4s inherent mobility
reduces e3pectation of privacy especially when its
transit in public thorou5hfares furnishes a hi5hly
reasonable suspicion amountin5 to probable cause
that the occupant committed a criminal activity!
8. /onsented warrantless search!
&. /ustoms search!
). Stop and ;ris7! and
9. J3i5ent and Jmer5ency /ircumstances.
(People v. ?en5uin! "# $%('$&* Apr. $=*
,'-.
CASES W(EN SEARC( WIT(OUT A WARRANT
WAS ,ALID
133
In Peo.0e 2. Tan40&ben* actin5 on information
supplied by informers* police oFcers conducted a
surveillance at the Iictory Liner 6erminal
compound in San ;ernando* Pampan5a a5ainst
persons who may commit misdemeanors and also
on those who may be en5a5in5 in the traFc of
dan5erous dru5s. At 'G=( in the evenin5* the
policemen noticed a person carryin5 a red
travellin5 ba5 who was actin5 suspiciously. 6hey
confronted him and reuested him to open his ba5
but he refused. Ae acceded later on when the
policemen identifed themselves. Inside the ba5
were mari>uana leaves wrapped in a plastic
wrapper. 6he police oFcers only 7new of the
activities of 6an5liben on the ni5ht of his arrest.
In instant case* the apprehendin5 oFcers
already had prior 7nowled5e from their informant
re5ardin5 Aruta4s alle5ed activities. In 6an5liben
policemen were confronted with an on-the-spot tip.
?oreover* the policemen 7new that the Iictory
Liner compound is bein5 used by dru5 traFc7ers
as their 1business address1. ?ore si5nifcantly*
6an5liben was actin5 suspiciously. Ais actuations
and surroundin5 circumstances led the policemen
to reasonably suspect that 6an5liben is committin5
a crime. In instant case* there is no sin5le
indication that Aruta was actin5 suspiciously.
In Peo.0e 2. 'a0mstedt* the <arcom a5ents
received reports that vehicles comin5 from Sa5ada
were transportin5 mari>uana. 6hey li7ewise
received information that a /aucasian comin5 from
Sa5ada had prohibited dru5s on his person. 6here
was no reasonable time to obtain a search warrant*
especially since the identity of the suspect could
not be readily ascertained. Ais actuations also
aroused the suspicion of the oFcers conductin5
the operation. 6he /ourt held that in li5ht of such
134
circumstances* to deprive the a5ents of the ability
and facility to act promptly* includin5 a search
without a warrant* would be to sanction impotence
and inefectiveness in law enforcement* to the
detriment of society.
<ote* however* the 5larin5 diferences of
?almstedt to the instant case. In present case* the
police oFcers had reasonable time within which to
secure a search warrant. Second* Aruta4s identity
was priorly ascertained. 6hird* Aruta was not actin5
suspiciously. ;ourth* ?almstedt was searched
aboard a movin5 vehicle* a le5ally accepted
e3ception to the warrant reuirement. Aruta* on
the other hand* was searched while about to cross
a street.
In Peo.0e 2. Ba4&sta* the <A#/@? oFcers
had probable cause to stop and search all vehicles
comin5 from the north to Acop* 6ublay* Ben5uet in
view of the confdential information they received
from their re5ular informant that a woman havin5
the same appearance as that of accused-appellant
would be brin5in5 mari>uana from up north. 6hey
li7ewise had probable cause to search accused-
appellant4s belon5in5s since she ftted the
description 5iven by the <A#/@? informant. Since
there was a valid warrantless search by the
<A#/@? a5ents* any evidence obtained in the
course of said search is admissible a5ainst
accused-appellant. A5ain* this case difers from
Aruta as this involves a search of a movin5 vehicle
plus the fact that the police oFcers erected a
chec7point. Both are e3ceptions to the
reuirements of a search warrant.
In 'ana0&0& 2. +o/3t o8 A..ea0s and Peo.0e*
the policemen conducted a surveillance in an area
of the Raloo7an /emetery based on information
that dru5 addicts were roamin5 therein. 2pon
135
reachin5 the place* they chanced upon a man in
front of the cemetery who appeared to be 1hi5h1
on dru5s. Ae was observed to have reddish eyes
and to be wal7in5 in a swayin5 manner. ?oreover*
he appeared to be tryin5 to avoid the policemen.
:hen approached and as7ed what he was holdin5
in his hands* he tried to resist. :hen he showed his
wallet* it contained mari>uana. 6he /ourt held that
the policemen had suFcient reason to accost
accused-appellant to determine if he was actually
1hi5h1 on dru5s due to his suspicious actuations*
coupled with the fact that based on information*
this area was a haven for dru5 addicts.
6his case is similar to Peo.0e 2. Am&nn/d&n
where the police received information two days
before the arrival of Aminnudin that the latter
would be arrivin5 from Iloilo on board the ?HI
:ilcon '. Ais name was 7nown* the vehicle was
identifed and the date of arrival was certain. ;rom
the information they had received* the police could
have persuaded a >ud5e that there was probable
cause* indeed* to >ustify the issuance of a warrant.
Instead of securin5 a warrant frst* they proceeded
to apprehend Aminnudin. :hen the case was
brou5ht before this /ourt* the arrest was held to be
ille5al! hence any item seiDed from Aminnudin
could not be used a5ainst him.
Another recent case is Peo.0e 2. Enc&nada
where the police li7ewise received confdential
information the day before at 8G(( in the afternoon
from their informant that Jncinada would be
brin5in5 in mari>uana from /ebu /ity on board ?HI
Sweet Pearl at 9G(( in the mornin5 of the followin5
day. 6his intelli5ence information re5ardin5 the
culprit4s identity* the particular crime he alle5edly
committed and his e3act whereabouts could have
been a basis of probable cause for the lawmen to
secure a warrant. 6his /ourt held that in
136
accordance with Administrative /ircular <o. $= and
/ircular <o. $'* series of $'-9* the lawmen could
have applied for a warrant even after court hours.
6he failure or ne5lect to secure one cannot serve
as an e3cuse for violatin5 Jncinada4s constitutional
ri5ht.
Peo.0e 2. (o0ayao* applied the stop and fris7
principle which has been adopted in Posadas v.
/ourt of Appeals. In said case* Solayao attempted
to Nee when he and his companions were accosted
by 5overnment a5ents. In the instant case* there
was no observable manifestation that could have
aroused the suspicion of the <A#/@? a5ents as to
cause them to 1stop and fris71 accused-appellant.
6o reiterate* accused-appellant was merely
crossin5 the street when apprehended. 2nli7e in
the abovementioned cases* accused-appellant
never attempted to Nee from the <A#/@? a5ents
when the latter identifed themselves as such.
/learly* this is another indication of the paucity of
probable cause that would suFciently provo7e a
suspicion that accused-appellant was committin5 a
crime.
6his /ourt cannot a5ree with the Solicitor
"eneral4s contention for the ?alasu5ui case is
inapplicable to the instant case. In said case* there
was probable cause for the warrantless arrest
thereby ma7in5 the warrantless search efected
immediately thereafter eually lawful. @n the
contrary* the most essential element of probable
cause* as e3pounded above in detail* is wantin5 in
the instant case ma7in5 the warrantless arrest
un>ustifed and ille5al. Accordin5ly* the search
which accompanied the warrantless arrest was
li7ewise un>ustifed and ille5al. 6hus* all the articles
seiDed from the accused-appellant could not be
used as evidence a5ainst her. (People v. ?en5uin.
137
W(EN SEARC( IS NOT ,ALID
Accused-appellant Aruta cannot be said to be
committin5 a crime. <either was she about to
commit one nor had she >ust committed a crime.
Accused-appellant was merely crossin5 the street
and was not actin5 in any manner that would
en5ender a reasonable 5round for the <A#/@?
a5ents to suspect and conclude that she was
committin5 a crime. It was only when the
informant pointed to accused-appellant and
identifed her to the a5ents as the carrier of the
mari>uana that she was sin5led out as the suspect.
6he <A#/@? a5ents would not have apprehended
accused-appellant were it not for the furtive fn5er
of the informant because* as clearly illustrated by
the evidence on record* there was no reason
whatsoever for them to suspect that accused-
appellant was committin5 a crime* e3cept for the
pointin5 fn5er of the informant. 6his the /ourt
could neither sanction nor tolerate as it is a clear
violation of the constitutional 5uarantee a5ainst
unreasonable search and seiDure. <either was
there any semblance of any compliance with the
ri5id reuirements of probable cause and
warrantless arrests.
/onseuently* there was no le5al basis for the
<A#/@? a5ents to efect a warrantless search of
accused-appellant4s ba5* there bein5 no probable
cause and the accused-appellant not havin5 been
lawfully arrested. Stated otherwise* the arrest
bein5 incipiently ille5al* it lo5ically follows that the
subseuent search was similarly ille5al* it bein5 not
incidental to a lawful arrest. 6he constitutional
5uarantee a5ainst unreasonable search and
seiDure must perforce operate in favor of accused-
appellant. As such* the articles seiDed could not be
used as evidence a5ainst accused-appellant for
138
these are 1fruits of a poisoned tree1 and* therefore*
must be re>ected* pursuant to Article III* Sec. =(%.
of the /onstitution. (People v. ?en5uin.
W(EN ,OLUNTAR- SUBMISSION TO SEARC(
IS INAPPLICABLE
Aside from the inapplicability of the abovecited
case* the act of herein accused-appellant in
handin5 over her ba5 to the <A#/@? a5ents could
not be construed as voluntary submission or an
implied acuiescence to the unreasonable search.
6he instant case is similar to People v. Jncinada.
(People v. ?en5uin.
W(EN SEARC( IS NOT ALLOWED A)TER AN
ARREST IS MADE
In the case of People v. Lua* this /ourt heldG
1As re5ards the bric7 of mari>uana found inside
the appellant4s house* the trial court correctly
i5nored it apparently in view of its inadmissibility.
:hile initially the arrest as well as the body search
was lawful* the warrantless search made inside the
appellant4s house became unlawful since the police
operatives were not armed with a search warrant.
Such search cannot fall under 1search made
incidental to a lawful arrest*1 the same bein5
limited to body search and to that point within
reach or control of the person arrested* or that
which may furnish him with the means of
committin5 violence or of escapin5. In the case at
bar* appellant was admittedly outside his house
when he was arrested. Aence* it can hardly be said
that the inner portion of his house was within his
reach or control.
(Jspano v. /.A.! "# $%(8=$* April $*
,'-.
139
MEANING O) DTO TRANSPORTL IN DRUG
CASES
In People vs. Lo ,o Hin#* the /ourt defned
the term 1transport1* as used under the Can5erous
Cru5s Act to mean 1to carry or convey from one
place to another1 * the operative words bein5 1to
carry or to convey1. 6he fact that there is actual
conveyance suFces to support a fndin5 that the
act of transportin5 was committed. It is immaterial
whether or not the place of destination was
reached.
(People v. Latura.
W(EN POLICE O))ICERS INTENTIONALL-
PEEPED T(RU A WINDOW T(EN WENT INSIDE
AND ARRESTED T(OSE INSIDE W(O ARE
PACIING MARIJUANA. T(E SAME IS ILLEGAL
6he police oFcers intentionally peeped frst
throu5h the window before they saw and
ascertained the activities of accused-appellants
inside the room. In li7e manner* the search cannot
be cate5oriDed as a search of a movin5 vehicle* a
consented warrantless search* a customs search*
or a stop and fris7! it cannot even fall under
e3i5ent and emer5ency circumstances* for the
evidence at hand is bereft of any such showin5.
@n the contrary* it indicates that the
apprehendin5 oFcers should have conducted frst
a surveillance considerin5 that the identities and
address of the suspected culprits were already
ascertained. After conductin5 the surveillance and
determinin5 the e3istence of probable cause for
arrestin5 accused-appellants* they should have
secured a search warrant prior to efectin5 a valid
140
arrest and seiDure. 6he arrest bein5 ille5al ab
initio* the accompanyin5 search was li7ewise
ille5al. Jvery evidence thus obtained durin5 the
ille5al search cannot be used a5ainst accused-
appellants! hence* their acuittal must follow in
faithful obeisance to the fundamental law.
$PP -vs- @"'(!D( 0>L(/( ) '(5>0>(' "+
(L. G.R. 'o. 149:97 Dec. 44 1<<<&
SEARC( AND SEI1URE WIT(OUT T(E
RE0UISITE JUDICIAL WARRANT IS ILLEGAL
AND ,OID AB INITIO
As a 5eneral rule* the procurement of a search
warrant is reuired before law enforcer may validly
search or seiDe the person* house* papers or efects
of any individual. In People v. Calde- the court
ruled that search and seiDure conducted without
the reuisite >udicial warrant is ille5al and void ab
initio.
3 3 3
SLawmen cannot be allowed to violate the very
law they are e3pected to enforce.T 6he /ourt is not
unmindful of the diFculties of law enforcement
a5encies in suppressin5 the ille5al traFc of
dan5erous dru5s. Aowever* uic7 solutions of
crimes and apprehension of malefactors do not
>ustify a callous disre5ard of the Bill of #i5htsT. :e
need not underscore that the protection a5ainst
ille5al search and seiDures is constitutionally
mandated and only under specifc instances are
seiDures allowed without warrants.
In this case* the prosecution,s evidence clearly
established that the police conducted a search of
accused,s bac7yard 5arden without warrant! they
had suFcient time to obtain a search warrant! they
141
failed to secure one. 6here was no showin5 of
ur5ency or necessity for the warrantless search* or
the immediate seiDure of the mari>uana plants.
(People vs. Alberto Pasuda5.
142
ILLEGAL POSSESSION O) )IREARMS
BREPUBLIC ACT NO. &25%C
SJ/6I@< $. Section $ Presidential Cecree <o. $-))*
as amended* is hereby further amended to read as
followsG
1SJ/6I@< $. 2nlawful ?anufacture* Sale*
Acuisition* Cisposition or Possession of ;irearms or
Ammunition or Instruments 2sed or Intended to be
2sed in the ?anufacture of ;irearms or
Ammunition. 0 6he penalty of prision correccional
in its ma3imum period and a fne of not less than
;ifteen thousand pesos (P$&*(((. shall be imposed
upon any person who shall unlawfully manufacture*
deal in* acuire* dispose* or possess any low
powered frearm* such as rimfre hand5un* .=-( or .
=% and other frearm of similar frepower* part of
frearm* ammunition* or machinery* tool or
instrument used or intended to be used in the
manufacture of any frearm or ammunitionG
Provided* 6hat no other crime was committed.
16he penalty of prision mayor in its minimum
period and a fne of 6hirty thousand pesos
(P=(*(((. shall be imposed if the frearm is
classifed as hi5h powered frearm which includes
those with bores bi55er in diameter than .=-
caliber and ' millimeter such as caliber .8(* .8$* .
88* .8& and also lesser calibered frearms but
considered powerful such as caliber .=&9 and
caliber .%% center-fre ma5num and other frearms
with frin5 capability of full automatic and by burst
of two or threeG Provided* however* 6hat no other
crime was committed by the person arrested.
1If homicide or murder is committed with the
use of an unlicensed frearm* such use of an
143
unlicensed frearm shall be considered as an
a55ravatin5 circumstance.
1If the violation of this Section is in furtherance
of or incident to* or in connection with the crime of
rebellion or insurrection* sedition* or attempted
coup d4etat* such violation shall be absorbed as an
element of the crime of rebellion* or insurrection*
sedition* or attempted coup d4etat.
16he same penalty shall be imposed upon the
owner* president* mana5er* director or other
responsible oFcer of any public or private frm*
company* corporation or entity* who shall willfully
or 7nowin5ly allow any of the frearms owned by
such frm* company* corporation or entity to be
used by any person or persons found 5uilty of
violatin5 the provisions of the precedin5
para5raphs or willfully or 7nowin5ly allow any of
them to use unlicensed frearms or frearms
without any le5al authority to be carried outside of
their residence in the course of their employment.
16he penalty of arresto mayor shall be imposed
upon any person who shall carry any licensed
frearm outside his residence without le5al
authority therefore.1
SJ/6I@< %. Section = of Presidential Cecree <o.
$-))* as amended* is hereby further amended to
read as followsG
1SJ/6I@< =. 2nlawful ?anufacture* Sale*
Acuisition* Cisposition or Possession of J3plosives.
0 6he penalty of prision mayor in its ma3imum
period to reclusion temporal and a fne of not less
than ;ifty thousand pesos (P&(*(((. shall be
imposed upon any person who shall unlawfully
manufacture* assemble* deal in* acuire* dispose or
144
possess hand 5renade(s.* riNe 5renade(s.* and
other e3plosives* includin5 but not limited to
4pillbo3*4 4molotov coc7tail bombs*4 4fre bombs*4 or
other incendiary devices capable of producin5
destructive efect on conti5uous ob>ects or causin5
in>ury or death to any person.
1:hen a person commits any of the crimes
defned in the #evised Penal /ode or special laws
with the use of the aforementioned e3plosives*
detonation a5ents or incendiary devices* which
results in the death of any person or persons* the
use of such e3plosives* detonation a5ents or
incendiary devices shall be considered as an
a55ravatin5 circumstance.
1If the violation of this Section is in furtherance
of* or incident to* or in connection with the crime of
rebellion* insurrection* sedition or attempted coup
d4etat* such violation shall be absorbed as an
element of the crimes of rebellion* insurrection*
sedition or attempted coup d4etat.
16he same penalty shall be imposed upon the
owner* president* mana5er* director or other
responsible oFcer of any public or private frm*
company* corporation or entity* who shall willfully
or 7nowin5ly allow any of the e3plosives owned by
such frm* company* corporation or entity* to be
used by any person or persons found 5uilty of
violatin5 the provisions of the precedin5
para5raphs.1
SJ/6I@< =. Section & of Presidential Cecree <o.
$-))* as amended* is hereby further amended to
read as followsG
1SJ/6I@< &. 6amperin5 of ;irearm4s Serial
<umber. 0 6he penalty of prision correccional shall
145
be imposed upon any person who shall unlawfully
tamper* chan5e* deface or erase the serial number
of any frearm.1
SJ/6I@< 8. Section ) of Presidential Cecree <o.
$-))* as amended* is hereby further amended to
read as followsG
1SJ/6I@< ). #epac7in5 or Alterin5 the
/omposition of Lawfully ?anufactured J3plosives.
0 6he penalty of prision correccional shall be
imposed upon any person who shall unlawfully
repac7* alter or modify the composition of any
lawfully manufactured e3plosives.1
SJ/6I@< &. /overa5e of the 6erm 2nlicensed
;irearm. 0 6he term unlicensed frearm shall
includeG
$. frearms with e3pired license! or
%. unauthoriDed use of licensed frearm in
the commission of the crime.
RULE ON ILLEGAL POSSESSION O) )IREARMS
BE)ORE AN ACCUSED MA-BE CON,ICTED
In crimes involvin5 ille5al possession of
frearm* the prosecution has the burden of provin5
the elements thereof* viDG
a.the e3istence of the sub>ect frearm! and
b.the fact that the accused who owned or
possessed it does not have the license or
permit to possess the same. (People v. /astillo*
=%& S/#A )$=.
146
6he essence of the crime of ille5al possession
is the possession* whether actual or constructive*
of the sub>ect frearm* without which there can be
no conviction for ille5al possession.
After possession is established by the
prosecution* it would only be a matter of course to
determine whether the accused has a license to
possess the frearm. (People v. Bansil* =(8 S/#A
=-8.
Possession of any frearm becomes unlawful
only if the necessary permit or license therefore is
not frst obtained. 6he absence of license and le5al
authority constitutes an essential in5redient of the
ofense of ille5al possession of frearm and every
in5redient or essential element of an ofense must
be shown by the prosecution by proof beyond
reasonable doubt. Stated otherwise* the ne5ative
fact of lac7 or absence of license constitutes an
essential in5redient of the ofense which the
prosecution has the duty not only to alle5e but also
to prove beyond reasonable doubt. (People v. Rhor*
=(9 scra %'&.
16o convict an accused for ille5al possession of
frearms and e3plosives under P.C. $-))* as
amended* two (%. essential elements must be
indubitably established* viDG (a. t%e existence of
t%e subject 3rearm or e3plosive which may be
proved by the presentation* of the sub>ect frearm
or e3plosive or by the testimony of witnesses who
saw accused in possession of the same* and (b. the
ne5ative fact that the accused had no license or
permit to own or possess the frearm or e3plosive
which fact may be established by the testimony or
certifcation of a representative of the P<P ;irearms
and J3plosive 2nit that the accused has no license
147
or permit to possess the sub>ect frearm or
e3plosive.1 (Cel #osario v. People* (&H=$H($.
:e stress that the essence of the crime
penaliDed under P.C. $-)) is primarily the
accused4s lac7 of license or permit to carry or
possess the frearm* ammunition or e3plosive as
possession by itself is not prohibited by law.
(People v. /orteD* =%8 scra ==&* =88.
Ille5al possession of frearm is a crime
punished by special law* a malum pro%ibitum* and
no malice or intent to commit a crime need be
proved. (People v. Lubo* $($ Phil. $9'. 6o support a
conviction* however* there must be possession
coupled with intent to possess (animus possidendi.
the frearm. (Supra.
PRESENT MEANING O) ILLEGAL POSSESSION
O) )IREARM
?nlicensed 3rearm no lon5er simply means a
frearm without a license duly issued by lawful
authority. 6he scope of the term has been
e3panded in Sec.& of #.A. -%'8.
6hus* the unauthoriDed use of a weapon which
has been duly licensed in the name of its
ownerHpossessor may still a55ravate the resultant
crime. In the case at bar* althou5h appellants may
have been issued their respective licenses to
possess frearms* their carryin5 of such weapons
outside their residences and their unauthoriDed use
thereof in the 7illin5 of the victim may be
appreciated as an a55ravatin5 circumstance in
imposin5 the proper penalty for murder.
(Pp. I. ?olina! "r $$&-=&-=)! +uly %%* $''-.
148
ILLEGAL POSSESSION O) )IREARM ONL-
SPECIAL AGGRA,ATING CIRCUMSTANCE
IN CRIMES O) (OMICIDE AND MURDER.
:here murder or homicide was committed*
the separate penalty for ille5al possession shall no
lon5er be meted out since it becomes merely a
special a55ravatin5 circumstance.
6his statutory amendment may have been
an ofshoot of our remar7s in Pp. C. +ac-an and
Pp. C. 2uijada G
I'eit%er is t%e 4
nd
para#rap% of /ec.1 meant to
punis% %omicide or murder *it% deat% if eit%er
crime is committed *it% t%e use of an unlicensed
3rearm i.e. to consider suc% use merely as a
8ualifyin# circumstance and not as an oJense.
+%at could not %ave been t%e intention of t%e
la*ma=er because t%e term IpenaltyK in t%e
subject provision is obviously meant to be t%e
penalty for ille#al possession of 3rearm and not
t%e penalty for %omicide or murder. He explicitly
stated in +ac-an L
+%ere is no la* *%ic% renders t%e use of an
unlicensed 3rearm as an a##ravatin# circumstance
in %omicide or murder. ?nder an information
c%ar#in# %omicide or murder t%e fact t%at t%e
deat% *eapon *as an unlicensed 3rearm cannot
be used to increase t%e penalty for t%e 4
nd
oJense
of %omicide or murder to deat% $or reclusion
perpetua under t%e 1<D: Constitution&. +%e
essential point is t%at t%e unlicensed c%aracter or
condition of t%e instrument used in destroyin#
%uman life or committin# some ot%er crime is not
included in t%e inventory of a##ravatin#
circumstances set out in (rticle 17 of t%e Revised
Penal Code.
149
A law may* of course* be enacted ma7in5 use
of an unlicensed frearm as a ualifyin5
circumstance.T
(People v. ?olina! "# $$&-=&-=)* +uly %%* $''-.
NEW PENALT- )OR LOW POWERED
)IREARM IN ILLEGAL POSSESSION
O) )IREARMS
Petitioner* fortunately for him* is nonetheless
not entirely bereft of relief. 6he enactment and
approval on () +un $''9 of #A -%'8* bein5
favorable to him* should now apply. 2nder this
new law* the penalty for possession of any low
powered frearm is only prision correccional in its
ma3imum period and a fne of not less than
P$&*(((.((.
Applyin5 the Indeterminate Sentence Law* the
present penalty that may be imposed is anywhere
from two years* four months and one day to four
years and two months of prision correccional in its
medium period* as minimum* up to anywhere from
four years* two moths and one day to si3 years of
prision correccional in its ma3imum period* as
ma3imum.. 6he court in addition* may impose a
fne consistent with the principle that an appeal in
a criminal case throws the whole case open for
review by the appellate tribunal. (?ario #aba>a v
/A* et al.* @ct -H'9.
ACTS PUNIS(ABLE:
$.Supon any person who shall unlawfully
manufacture* deal in* acuire* dispose* or possess
any low powered frearm* such as rimfre
hand5un* .=-( or .=% and other frearm of similar
frepower* part of frearm* ammunition* or
150
machinery* tool or instrument used or intended to
be used in the manufacture of any frearm or
ammunitionT
%.1If homicide or murder is committed with the use
of an unlicensed frearm* such use of an unlicensed
frearm shall be considered as an a55ravatin5
circumstance.T
=. 1If the violation of this Section is in furtherance
of or incident to* or in connection with the crime of
rebellion or insurrection* sedition* or attempted
coup d4etat* such violation shall be absorbed as an
element of the crime of rebellion* or insurrection*
sedition* or attempted coup d4etat.T
8. 16he same penalty shall be imposed upon the
owner* president* mana5er* director or other
responsible oFcer of any public or private frm*
company* corporation or entity* who shall willfully
or 7nowin5ly allow any of the frearms owned by
such frm* company* corporation or entity to be
used by any person or persons found 5uilty of
violatin5 the provisions of the precedin5
para5raphs or willfully or 7nowin5ly allow any of
them to use unlicensed frearms or frearms
without any le5al authority to be carried outside of
their residence in the course of their employment.T
&.S6he penalty of arresto mayor shall be imposed
upon any person who shall carry any licensed
frearm outside his residence without le5al
authority thereforeT
).SAny person who shall unlawfully tamper*
chan5e* deface or erase the serial number of any
frearmT.
151
9.SAny person who shall unlawfully repac7* alter or
modify the composition of any lawfully
manufactured e3plosivesT.
CRIME O) ILLEGAL POSSESSION O) )IREARM
MALUM PRO(IBITUM
6he ofense of ille5al possession of frearm is a
malum prohibitum punished by a special law* in
which case 5ood faith and absence of criminal
intent are not valid defenses. (People v Ce "racia*
9H)H'8.
$.?anufacture* deal in* acuire* dispose or
possess. It is these acts relative to frearms.
6he obvious underlyin5 principle is the
undesirability of the proliferation of frearms
and their free traFc and possession. 6his is
clear from the frst two SwhereasT clause of
P.C. $-)). It is then clear that ille5al
possession* etc. is a malum pro%ibitum. ;or
purpose of simplicity we will confne our
analysis to SpossessionT* althou5h what we
will discuss hereunder applies to
manufacture* dealin5 in* acuirin5 or
disposin5 as well.
$.$. it is not correct to say without ualifcation
that SintentT is immaterial. Intent as to
.ossess&on &s &mmate3&a0. Intent&on to
.ossess &s mate3&a0. :hatever the
purpose of the possession may be is
consistently immaterial. 6hat one was in
possession of an unlicensed frearms merely
for one,s protection without intendin5 harm
on anybody is a fruitless defense. It is the
clear doctrine of such cases as People v. de
la Rosa %-8 S/#A $&- that Smere
possession without criminal intent is
152
suFcient on which to render a >ud5ment of
convictionT.
$.%.A@:JIJ#* .ossess&on m/st be
estab0&s1ed beyond 3easonab0e do/bt*
and in view of the special meanin5 that
SpossessionT has in criminal law* discovery
by police* oFcers alone of a frearm in the
ba55a5e or 5loves compartment of a car will
not necessarily be suFcient to sustain a
conviction of the car owner or driver.
Jssential to the le5al concept of SpossessionT
in ille5al possession cases is animus
possidendio. (People v. de la Rosa* supra!
People v. /ayan#* $$( Phil &)&..
$.=. Aow is animus possidendi establishedE 6hese
must be proved either by direct or
circumstantial evidence of the SintentT of the
accused to possess* or to 7eep the frearm.
a.& (nimus Possidendi is determined by
recourse to overt acts prior to or
simultaneous with possession and other
surroundin5 circumstances. (People v. de
la Rosa. when it is established that the
accused purchased the weapon in
uestion* a 5ood case for animus
possidendi is made.
b..(nimus possidendi may also be inferred
from the fact that an unlicensed frearms
was under the apparent control and
power of the accussed. (People v.
Cerc%es* == S/#A $98.
c.& People v. de Gu-man ".#. $$9'&%-&=
(;ebruary $8* %(($. holds that the
S5ravamenT for the ofense of violation of
P.C.$-)) is the possession of frearm
without the necessary permit andHor
license. S6he crime is immediately
consummated upon mere possession of a
153
frearm devoid of le5al authority* since it
is assumed that the same is possed with
Sanimus possidendiT Coes it then follow
that everyone found with the frearm is in
SpossessionT thereof for the purpose of
prosecution and conviction under P.C.
$-)) as amended by #.A. -%'8E 6he
results would be patently absurd.
c.1& A person who fnds a frearms and
ta7es it with him to the police station for
the purpose of turnin5 it over to the
police should be commended* rather
than prosecuted.
c.4& A person who is stopped at a chec7-
point at which it is discovered that there
is frearms V placed either advertently or
inadvertently in his ba55a5e
compartment 9&t1o/t 1&s 6no90ed4e -
cannot be held liable for ille5al
possession.
c.=. If the ofender was in possession of an
unlicensed only on the occasion of the shootin5 for
transitory purpose and for the short moment in
connection with the shootin5* the Supre /ourt held
in People v. Macaslin#* %=9 S/#A %'' that there
was no evidence of Sanimus possidendiT.
c.8. It then appears to be the more reasonable
position that where a person is apprehended with
an unlicensed weapon* animus possidendi will be
disputably presumed. 6he accused may controvert
the presumption of animus possidendi. 6o convict*
the court needs proof beyond reasonable doubt of
animus possidendi.
W(AT T(E PROSECUTION MUST PRO,E IN
CASES O) ILLEGAL POSSESSION O) )IREARMS
$.8 :hat the prosecution must prove for it to
succeed under the law is two-foldG frst* the
154
e3istence of the frearm! second* the absence of a
license or a permit to possess. (People v. Ru#ay*
%'$ S/#A )'%.
a.. 6o prove the e3istence of the frearm* it is not
absolutely necessary that the ob>ect evidence be
presented. It is very well possible that the accused
efectively conceals the weapon before his
apprehension. Incontrovertible testimonial
evidence may successfully established the
e3istence of the frearm. (People v. 'arvasa ".#.
$=%-9- L<ovember $)* $''-M.*
b.. An interestin5 uestion arises. 6he present law
ma7es penalties depend on the caliber of the
frearm* i.e* on whether it is hi5h-powered or low-
powered In People v. "utierreD* ".#. $=%-9-
(+anuary $-* $'''. the Supreme /ourt ruled that a
2.S. carbine ?$ caliber .=( was hi5h-powered
because it was capable of e>ectin5 more than one
bullet in one sueeDe. If it is the criterion* then
lo5ically* caliber can be established by testimony
establishin5 the manner in which the frearm
e>ected bullets. 6he distin5uishin5 features of
particularly frearms* furthermore* that may be
recited by 7een observer sworn in a s witness my
identify the frearm as well as it caliber. 6his can be
established by a >udicious combination of the
testimonial evidence of observers and e3perts.
W(EN T(ERE IS AN ILLEGAL POSSESSION O)
)IREARM
A frearm is unlicensed when a certifcation
from the S;irearms and J3plosives 2nitT attests
that no license has been issued. 6here will still be a
case for ille5al possession if one holdin5 a frearm
duly licensed carries it outside his residence when
he has no permit to carry it outside his residence
155
(Pastrano v. Court of (ppeals* %-$ S/#A %-9.. A
fortiori* the use of a licensed frearm by one not
licensed or permitted to use it would still be ille5al
possession.
ILLEGAL POSSESSION BUT IN GOOD )AIT(:
A security 5uard employed by a security
a5ency and issued a frearm by the a5ency has the
ri5ht to assume that the frearm issued to him is a
licensed frearm. If it turns out that the frearm is
not licensed* there is no animus possidendi of an
unlicensed frearm. (/uenco v. People* == S/#A
&%%..
A PERSON W(O ACCEPTS A )IREARM )OR
SA)EIEEPING MA-BE (ELD LIABLE I) (E
CARRIES T(E SAME.
6he case is obviously diferent* however* if a
police oFcer leaves with a cousin for safe7eepin5
his frearm. 6he cousin 7nows fully well that he has
no permit or authority to 7eep the frearm. If he
accepts to do this favor* he is indictable. (People v.
/ayon#* $$( Phil &)&.
ILLEGAL POSSESSION O) )IREARM MA-BE
PRO,EN
P3o2&ded no ot1e3 c3&me &s comm&tted. It is
this proviso in the amendatory law that has visited
countless woes on numerous >ud5es and has
occasioned not easily reconcilable decisions by the
Supreme /ourt .it is obviously a case of not only
poor but miserable draftsmanshipW
156
%.$ It is clear that where there is no other ofense
e3cept the unlawful possession of a frearm* the
penalties provided for in the amended Section $
shall be imposedG prision correccional in its
ma3imum period for low-powered frearms* and
prision mayor in its ma3imum periods for hi5h-
powered frearms. 6hus in People v. 'une- ".#.
$$%('% (?arch $* %(($. holds that a person may
be convicted of simple ille5al possession if the
ille5al possession is proved and the frustrated
murder and murder case V involvin5 the use of the
ille5al possession V has not been suFciently
proved. People v. Avecilla* ".#. $$9(== (;ebruary
$&* %(($. teaches that Sthe crime of ille5al
possession of frearms* in its simple form* is
committed any of the crimes of murder* homicide*
rebellion* insurrection* sedition or attempted coup
d,etatT.
%.%. It is also clear that where either homicide or
murder is committed with the use of an unlicensed
frearm* such use shall constitute an Sa55ravatin5
circumstancesT. It is well 7nown that #.A. -%'8 was
initiated by Senator #amon #evilla as a favor to his
friend #obin Padilla who was then servin5 sentence
for ille5al possession. It was therefore meant to be
more benevolent* as it is in the penalties it impose.
Senator #evilla* however* could not see far enou5h
(and re5rettably neither could other le5islators.
and the efect at least in the case of murder is that
it may send the accused to the lethal in>ection
chamber where otherwise he would not be meted
out the death penalty. People v. ?ontinola* ".#.
$=$-&)-&9 (+uly $* %(($. with the /hief +ustice
himself as ponente illustrates the complication the
law has introduced. In this case* the accused had
been char5ed with two ofensesG robbery with
homicide and ille5al possession of frearms. Curin5
the pendency of the case* the amended law came
into force. 6he court then held that insofar as #.A.
157
-%'8 was favorable to the accused in that it spared
him from separate prosecution for ille5al
possession* the char5e for ille5al possession was
dropped. Insofar* however* as it increased the
penalty for robbery with homicide* the a55ravatin5
circumstances of the use of unlicensed weapon
could not be appreciated. Rule 11B /ection < of
t%e Revised Rules of Criminal Procedure will applyG
As an a55ravatin5 circumstances* the use of the
unlicensed weapon must be alle5ed in the
information.
%.= :hen the violation of the law penaliDin5
unlicensed weapon is Sin furtherance of or incident
to* or in connection with the crimes of rebellion*
insurrection* sedition or attempted coup d,etatT
then the violation is absorbed in the main ofense.
(#.A. -%'8* Section $..
%.8 :hat happens when an unlicensed weapon is
used in the commission of other ofenses other that
homicide* murder* rebellion* insurrection* sedition
or attempted coup d, etataE People v.
:alpandlad>aalam* ".#. $=)$$8'-&$ ( September
$'* %(((. provides the answer in the distinctively
clear lan5ua5e of +ustice Pan5anibanG S6he law is
clearG the accused can be convicted of simple
ille5al possession of frearms* provided that Sno
other crime was committed by the person
arrested,. If the intention of the law in the second
para5raph were to refer only to homicide and
murder* it should have e3pressly said so* as it did
in the third para5raph. Ierily* where the law does
not distin5uish* neither should we.T In brief* where
the accused commits a crime other than those
enumerated with the use of an unlicensed weapon*
no separate char5e for such use will be brou5ht
a5ainst him. /onsistent with this is the disposition
by the Supreme court decreedG SAccordin5ly* all
pendin5 cases for ille5al possession of frearms
158
should be dismissed if they arose from the
commissionT of crimes other than those indicated
in Section $ and = of #.A. -%'8.
%.& /learly the law leads to absurd results* for
when the use of an unlicensed weapon attends the
commission of a crime* no matter how trivial* the
case of ille5al possession recedes into >udicial
irrelevance. 6he matter is defnitely one that calls
for a curative statute and the Supreme /ourt has
referred the matter to the /on5ress for another
loo7. @ne moral lesson can be learnedG Laws
passed as favor to one,s friend is a poor lawsW
OWNERS(IP IS NOT AN ESSENTIAL
ELEMENT O) ILLEGAL POSSESSION
6he rule is that ownership is not an essential
element of ille5al possession of frearms and
ammunition. :hat the law reuires is merely
possession which includes not only actual physical
possession but also constructive possession or the
sub>ection of the thin5 to one,s control and
mana5ement.
INTENT TO POSSESS! OR ANIMUS POSSIDENDI
IS ESSENTIAL
A distinction should be made between criminal
intent and intent to possess. :hile mere
possession without criminal intent is suFcient to
convict a person for ille5al possession of frearms*
it must still be shows that there was animus
possidendi or an intent to possess on the part of
the accused.
6here is no evidence of animus possedendi if
the ofender was in possession of an unlicensed
159
frearm only on the occasion of the shootin5 for a
transitory purpose and for the short moment in
connection with the shootin5.
Lac7 of evidence is an essential element of the
crime and that the same must be alle5ed in the
Information and duly proved.
(People -vs- ?acaslin5* %=9 S/#A %''.
@wnership of the 5un is immaterial or
irrelevant in violation of PC $-))* as amended. @ne
may be convicted of possession of an unlicensed
frearm even if he is not the owner thereof.
(People -vs- #eynaldo /ruD* "# <o.
9)9%-* Au5ust =* $'--.
Jven if the 5un is 1palti7*1 there is a need
to secure license for the 5un* and if found without
any license therefor* the ofender is liable for
violation of PC $-)).
(People vs- ;ilemon #amos* %%% S/#A &&9.
If an unlicensed frearm is used to commit
a crime other than homicide or murder* such a
direct assault with attempted homicide* the use of
an unlicensed frearm is neither an a55ravatin5
circumstances nor a separate ofense. Since the
law uses the word Aomicide or ?urder* possession
of an unlicensed frearm is not a55ravatin5 in
Attempted Aomicide.
(People -vs- :alpan Lad>aamlam* et al.*
"# <o. $=)$8'-&$* September $'* %(((.
:here the accused was char5ed of ?urder and
violation of PC $-)) and that* in the meantime*
#epublic Act -%'8 too7 efect* the accused should
be convicted only of ?urder. 6he use of unlicensed
frearm should not be considered as a55ravatin5
because the /ourt will have to impose the death
penalty which cannot be allowed because* at the
160
time of the commission of the ofense* the death
penalty cannot as yet* be imposed. Aowever* in his
concurrin5 opinion* /hief +ustice Ailario Cavide* +r.
declared that* under such a factual milieu* the
char5e of violation of PC $-)) should continue and
if the accused is found 5uilty* he should be meted
the death penalty under #epublic Act -%'8.
(People -vs- Iictor ?acoy* "# <o.
$%)%&=* Au5ust $)* %(((.
:here the prosecution failed to adduce the 5un
in evidence coupled with the fact that per
/ertifcation of the ;J2* 1 no available information
re5ardin5 the license for the 5un and the
inconsistency in the evidence of the prosecution*
the latter failed to dischar5e its burden.
(People -vs- #icolito #u5ay* et al.* %'$ S/#A )'%.
?ere possession without criminal intent is
suFcient on which to render a >ud5ment of
conviction for violation of PC $-))* as amended.
Aowever* there must be animus possedendi or
intent to possess without any license or permit.
"ood faith is not a defense. <either is lac7 of
criminal intent.
(People -vs- #odolfo Cela #osa* et al.* %-8
S/#A $&-.
6emporary* incidental* casual or harmless
possession of frearm is not punishable. Aence*
stealin5 a frearm to render the owner defenseless
is not a crime under the law. (idem* supra.
Possession includes actual physical possession
and constructive possession. 6he animus can be
determined from the overt acts of the accused
prior to or coetaneous with and other surroundin5
circumstances of such possession. Aence* where
the accused found a 5un and was on his way to
deliver the 5un to the police authority and was
161
arrested* in the process* there is no animus
possedendi.
(People -vs- #odolfo Cela #osa* et al.* supra.
Jven if a palti= is a homemade 5un and thus
ille5ally manufactured nevertheless* the
Prosecution is burdened to prove that the accused
has no license for the 5un.
(People -vs- ;elimon #amos* et al.* %%% S/#A &&9.
;or the accused to be 5uilty of violation of PC
$-)) as amended the Prosecution must proveG (a.
the e3istence of the sub>ect frearm! (b. the fact
that the accused who owned or possessed the
frearm does not have the correspondin5 license or
permit to possess the same.
(People -vs- #icolito #u5ay* et al.* %'$ S/#A
)'%.
:here the accused is convicted of violation of
#epublic Act -%'8 and meted a penalty less than
si3 (). years* and a fne of P$&*(((.((* he should
be ordered to under5o subsidiary imprisonment in
case of insolvency.
(?ario #aba>a -vs- /ourt of Appealss* et al.* %-(
S/#A %'(.
In the li5ht of 1People -vs- ?artin Simon*1 %=8
S/#A &&&* and Articles $= and $8* in relation to
Article )=* of the #evised Penal /ode and the
Indeterminate Sentence Law for violation of the
#evised Penal /ode may now be applied for
violation of PC $-))* as amended and #epLublic
Act )8%&* as amended.
Jven if a person is licensed to possess a
frearms but brin5s out frearm outside of his
residence without permit therefor* he is 5uilty of
violation of the last para5raph of Section $ of PC
$-))* as amended. A ?ission @rder cannot ta7e
162
the place of a license. A ?ission @rder can only be
issued to one licensed to possess a frearm.
(Pedrito Pastrano -vs- /ourt of Appeals* et al.* %-$
S/#A %-9.
If the accused borrowed a 5un from another
who is licensed to possess frearm* may the former
be liable for violation of PC $-))* as amendedE Kes.
Jven if the 5un is licensed to one and lends it to
another* the latter is liable for violation of PC $-))*
as amended. A license to possess a frearm and a
permit to carry a licensed frearm outside of his
residence is not transferable.
(Pedrito Pastrano -vs- /ourt of Appeals* et al.*
supra.
Jven if the frearm sub>ect of the crime is not
adduced in evidence one may still be convicted of
possession of an unlicensed frearm as lon5 as
proof was adduced that the acused was in
possession of a frearm.
(People -vs- ;elicisimo <arvasa* "# <o.
$%-)$-* <ovember $)* $''-.
NOTE: 2nder #epublic Act -%'8* the penalty
depends upon the caliber of the 5un. Suppose
there is no testimony as to the caliber of the 5unE
:here a security 5uard was 5iven by his
employer* a security a5ency* a frearm* and the
accused assumed that the employer secured the
license for the frearm but that it turned out that
the employer failed to 5et any license* the security
5uard is not criminally liable. 6he security 5uard
has the ri5ht to assume that the security a5ency
secured the license.
(Jrnesto /uenca -vs- People* == S/#A &%%.
If a constabulary soldier entrusted his 5un to
the accused for safe7eepin5 and later the accused
163
found in possession of the 5un* the accused is
5uilty of possession of unlicensed frearm. 6o
e3culpate himself* the accused must prove
absence of animus possidendi.
(People -vs- Perlito Soyan5* et al.* $$( Phil. &)&*
&-=.
A secured a loan from B and pled5ed his
unlicensed frearm as security for the loan. A
promised to pay his loan and retrieve the frearm
as soon as he had money. B found in possession of
the unlicensed frearm. ;or the court to sustain the
contention of B is to authoriDe the indefnite
possession by B of the unlicensed frearm because
there was no way to determine when A could pay
his account.
(People -vs- /ornelio ?el5as* $(( Phil. %'-.
If a licensed frearm if used to commit ?urder
or Aomicide* such circumstances is merely a
special a55ravatin5 circumstance which must be
alle5ed in the Information and cannot be ofset by
any miti5atin5 circumstance. (People -vs- Meriato
Molina et al.* ".#. <o. $$&-=&* +uly %%* $''-!
People -vs- 'arvasa ".#. no. $%-)$- <ovember
$-* $''-.
6he Cecision of the Supreme /ourt in People
-vs- Paterno 6ac-an* $-% S/#A )($! People -vs-
+esus Ceunida* and People -vs- Barros and People
-vs- Caniel Pui>ada %&' S/#A $'$ had been
overta7en by #epublic Act -%'8.
2nder the amendment* the death penalty may
now be imposed if the accused is convicted of
?urder with the use of licensed or unlicensed
frearms.

As lon5 as the accused is proved to have been
in possession of the unlicensed frearm even if the
164
frearm is not adduced in evidence* conviction
under the law is proper.
(People -vs- ;elicisimo <arvasa* supra.
Re8u<li" A" &25% oo' eMe" on July 6! $55A.
If the accused is char5ed of ?urder and
violation of PC $-)) and durin5 the trial* #epublic
Act -%'8 too7 efect* the accused cannot be
convicted of violation of PC $-))* as amended.
<either should the possession of an unlicensed
frearm be considered as an a55ravatin5
circumstance as it will be less favorable to the
accused. If the accused used a sumpa= to 7ill the
victim* the prosecution must prove that he had no
license or permit to possess the sumpa=.
(People -vs- /ipriano de Iera*
".#. <o. $%$8)%-)=* +une '* $'''.
/ompare 1People -vs- :ilfredo ;iloteo*1 %'(
S/#A )%9 where the accused was convicted of
?urder and violation of PC $-)) and durin5 the
pendency of the appeal* #epublic Act -%'8 too7
efect. @ur Supreme /ourt aFrmed the conviction
of the Accused of two (%. crime of Aomicide and
violation of PC $-))* as amended* and applied the
penalty for the crimes under the amendment.
In 1People -vs- Ceriato Molina et al.G %'% S/#A
98%* our Supreme /ourt Jn Banc declared that
where the accused was convicted of said crio*es*
by the 6rial /ourt but that durin5 the pendency of
the appeal* with the Supreme /ourt* #epublic Act
-%'8 too7 efect* the accused should only be
convicted of ?urder with the use of an unlicensed
frearm as mere a special a55ravatin5
circumstance.
165
?urder* under #epublic Act -%'8* is used in its
5eneric term and* hence* includes Parricide
(People versus @ctavio ?endoDa*
"# <o. $('%9(--(* +anuary $-*$'''.
A 2nited States carbine ?$* caliber .=-( is a
hi5h-powered 5un because it is capable of emittin5
two or three bullets in one sueeDe.
(People -vs- Jduardo "utierreD*
"# <o. $=%-9-* September $'''.
It is not necessary that the frearm be produced
and ofered in evidence for #epublic Act -%'8 to
apply. It is not enou5h that there is evidence of the
e3istence of the 5un which can be established
either by testimony or presentation of the 5un
itself.
Possession of an unlicensed frearm and used
in 7illin5 is a special a55ravatin5 circumstance.
(People -vs- ;elicisimo <arvasa*
"# <o. $%-)$-* <ovember $-* $''-.
6he Cecision of the Supreme /ourt in People
versus Rex 0er#ante et. al. "# <o. $%(=)'*
;ebruary %9* $''-* that the use of an unlicensed
frearm to commit murder is only a 5eneric
a55ravatin5 circumstance is no lon5er true.
Possession under the law may either be actual
physical possession or constructive possession.
Aowever* althou5h the crime under PC $-))* as
amended* is malum prohibitum* however* there
must be animus possidendi* or intent to possess.
Animus possidendi may be inferred from the fact
that an unlicensed frearm is under the apparent
control and power of the accused. however* animus
possidendi may be contradicted if a person in
possession of an unlicensed frearm does not
assert a ri5ht thereto.
166
If the possession of an unlicensed 5un is
merely temporary* incidental or transient* the
same is not punishable under PC $-)). Aowever*
the law does not provide for a f3ed period of time
for one to be deemed in 1possession1 of an
unlicensed frearm. (People -vs- Rolando Cerc%es
466 /CR( 1:7.. Jach factual milieu must be
considered.
IMPLICATION B- RA &25% ON PD $&66
BILLEGAL POSSESSION O) )IREARMSC
P.C. $-))* which codifed the laws on ille5al
possession of frearms* was amended on +une )*
$''9 by #epublic Act -%)8. Aside from lowerin5
the penalty for said crime* #.A. -%'8 also provided
that i; #o>i"i:e or >ur:er i7 "o>>ie: 9i#
#e u7e o; an unli"en7e: ?rear>! 7u"# u7e
7#all <e "on7i:ere: a7 a 78e"ial aggra=aing
"ir"u>7an"e. 6his amendment has two (%.
implicationsG ?r7* the use of an unlicensed
frearm in the commission of homicide or murder
shall not be treated as a separate ofense* but
merely as a special a55ravatin5 circumstance!
7e"on:* as only a sin5le crime (homicide or
murder with the a55ravatin5 circumstance of
ille5al possession of frearm. is committed under
the law* only one penalty shall be imposed on the
accused.
Prescindin5 therefrom* and considerin5 that the
provisions of the amendatory law are favorable to
herein appellant* the new law should be
retroactively applied in the case at bar. It was thus
error for the trial court to convict the appellant of
two (%. separate ofenses* i.e.* Aomicide and Ille5al
Possession of ;irearms* and punish him separately
for each crime. Based on the facts of the case* the
167
crime for which the appellant may be char5ed is
#o>i"i:e! aggra=ae: <y illegal 8o77e77ion o;
?rear>* the correct denomination for the crime*
and no illegal 8o77e77ion o; ?rear>!
aggra=ae: <y #o>i"i:e as ruled by the trial
court* as it is the former ofense which a55ravates
the crime of homicide under the amendatory law.
E,EN I) ACCUSED ADMITTED T(AT (E (AS
NO LICENSE! SUC( ADMISSION IS NOT
SU))ICIENT PROO) O) ILLEGAL POSSESSION
O) )IREARM
Aence* in the case at bar* al#oug# #e
a88ellan #i>7el; a:>ie: #a #e #a: no
li"en7e ;or #e gun re"o=ere: ;ro> #i7
8o77e77ion! #i7 a:>i77ion 9ill no relie=e #e
8ro7e"uion o; i7 :uy o e7a<li7# <eyon:
rea7ona<le :ou< #e a88ellanN7 la"' o;
li"en7e or 8er>i o 8o77e77 #e gun. In
Peo8le =7. Solayao* we e3pounded on this
doctrine* thusG
13 3 3 by its very nature* an admission is the
mere ac7nowled5ement of a fact or of
circumstances from which 5uilt may be inferred*
tendin5 to incriminate the spea7er* but not
suFcient of itself to establish his 5uilt.1 In other
words* it is a statement by defendant of fact or
facts pertinent to issues pendin5* in connection
with proof of other facts or circumstances* to prove
5uilt* but which is* of itself* insuFcient to authoriDe
conviction. ;rom the above principles* this /ourt
can infer that an a:>i77ion in "ri>inal "a7e7 i7
in7uO"ien o 8ro=e <eyon: :ou< #e
"o>>i77ion o; #e "ri>e "#arge:.
1?oreover* 7ai: a:>i77ion i7 ePraFu:i"ial
in naure. As such* it does not fall under Section
168
8 of #ule $%' of the #evised #ules of /ourt which
statesG
An admission* verbal or written* made by a
party in the course of the trial or other proceedin5s
in the same case does not reuire proof.
1<ot bein5 a >udicial admission* said
7ae>en <y a""u7e:.a88ellan :oe7 no
8ro=e <eyon: rea7ona<le :ou< #e 7e"on:
ele>en o; illegal 8o77e77ion o; ?rear>. It
does not even establish a prima facie case. It
merely bolsters the case for the prosecution but
:oe7 no 7an: a7 8roo; o; #e ;a" o;
a<7en"e or la"' o; a li"en7e.1 (emphasis
supplied. $PP -vs- J?L!(' C(/+!LL> ) L?M()R>
G.R. 'o. 1619<4-<6 Aeb. 19 4BBB&
ELEMENTS O) ILLEGAL POSSESSION O)
)IREARMS
6o convict an accused for ille5al possession of
frearms and e3plosive under P.C. $-)) as
amended* two (%. essential elements must be
indubitably established* viDG (a. the ePi7en"e o;
#e 7u<Fe" ?rear> or eP8lo7i=e which may be
proved by the presentation of the sub>ect frearm
or e3plosive or by the testimony of witnesses who
saw accused in possession of the same* and (b.
#e negai=e ;a" #a #e a""u7e: #a: no
li"en7e or 8er>i o o9n or 8o77e77 #e
?rear> or eP8lo7i=e which fact may be
established by the testimony or certifcation of a
representative of the P<P ;irearms and J3plosives
2nit that the accused has no license or permit to
possess the sub>ect frearm or e3plosive.
In the case at bar* the prosecution failed to
prove the second element of the crime* i.e.* the
lac7 of license or permit of appellant /orteD to
169
possess the hand 5renade. Althou5h the hand
5renade seiDed by P@% Santos from appellant was
presented in court* the records bear that P@%
Santos :i: no 7u<>i #e grena:e o #e PNP
)irear>7 an: EP8lo7i=e7 Uni for verifcation.
6his e3plains why no "eri?"aion or e7i>ony
9a7 a::u"e: <y #e 8ro7e"uion a #e rial
o 8ro=e #a a88ellan CoreG 9a7 no
li"en7e: o 8o77e77 #e eP8lo7i=e. 6he failure
of the prosecution to adduce this fact is fatal to its
cause. :e stress that the essence of the crime
penaliDed under P.C. $-)) is primarily the
a""u7e:N7 la"' o; li"en7e or 8er>i o "arry or
8o77e77 #e ?rear>! a>>uniion or eP8lo7i=e
a7 8o77e77ion <y i7el; i7 no 8ro#i<ie: <y
la9.
MA- E*PLOSI,ES BE GI,EN A PERMIT OR
LICENSE4
In the case of an e3plosive* a permit or license
to possess it is usually 5ranted to minin5
corporations* military personnel and other
le5itimate users. $PP -vs- 0"R'!" C>R+"@ )
'(+('!> "+ (L. G.R. 'os. 161;1<-4B Aeb. 1
4BBB&
UNDER R.A. &25% A SEPARATE CON,ICTION
)OR ILLEGAL POSSESSION O) )IREARMS AND
)OR (OMICIDE IS NOT ALLOWED
:ith respect to the conviction of accused-appellant
for ille5al possession of frearms under P.C. <o.
$-))* it was held in the case of Peo8le =7. Molina
and reiterated in the recent case of Peo8le =7.
Ronal:o ,al:eG! that in cases where murder or
homicide is committed with the use of an
unlicensed frearm* there can be no separate
conviction for the crime of ille5al possession of
170
frearms under P.C. <o. $-)) in view of the
amendments introduced by #epublic Act <o. -%'8.
6hereunder* the use of unlicensed frearm in
murder or homicide is simply considered as an
a55ravatin5 circumstance in the murder or
homicide and no lon5er as a separate ofense.
;urthermore* the penalty for ille5al possession of
frearms shall be imposed provided that no crime is
committed. In other words* where murder or
homicide was committed* the penalty for ille5al
possession of frearms is no lon5er imposable since
it becomes merely a special a55ravatin5
circumstance. $PP -vs- (?G?/+> L>R"+>
R!'G>R JR. G.R. 'o. 146<1D Dec. < 1<<<&
171
ANTI.WIRE TAPPING LAW
BRA %233C
(ec. 1. It shall be unlawful for any person* not
bein5 authoriDed by all the parties to any private
communication or spo7en word* to tap any wire or
cable* or by usin5 any other device or
arran5ement* to secretly overhear* intercept* or
record such communication or spo7en word by
usin5 a device commonly 7nown as a dictaphone
or dicta5raph or dectaphone or wal7ie-tal7ie or
tape recorder* or however otherwise describedG
It shall also be unlawful for any person* be he a
participant or not in the act or acts penaliDed in the
ne3t precedin5 sentence* to 7nowin5ly possess any
tape record* wire record* disc record* or any other
such record* or copies thereof* of any
communication or spo7en word secured either
before or after the efective date of this Act in the
manner prohibited by this law! or to replay the
same for any other person or persons! or to
communicate the contents thereof* either verbally
or in writin5* or to furnish transcriptions thereof*
whether complete or partial* to any other personG
Provided* 6hat the use of such record or any copies
thereof as evidence in any civil* criminal
investi5ation or trial of ofenses mentioned in
section = hereof* shall not be covered by this
prohibition.
LISTENING TO CON,ERSATION
IN E*TENSION LINE O) TELEP(ONE
IS NOT WIRE.TAPPING
An e3tension telephone cannot be placed in
the same cate5ory as a dictaphone* dicta5raph or
the other devices enumerated in Section $ of #A
8%(( as the use thereof cannot be considered as
172
tappin5 the wire or cable of a telephone line. 6he
telephone e3tension in this case was not installed
for that purpose. It >ust happened to be there for
ordinary oFce use. It is a rule in statutory
construction that in order to determine the true
intent of the le5islature* the particular clauses and
phrases of the statute should not be ta7en as
detached and isolated e3pressions* but the whole
and every part thereof must be considered in f3in5
the meanin5 of any of its parts. ()) S/#A $$=*$%(.
A PERSON CALLING ANOT(ER B- P(ONE
MA- SA)EL- PRESUME T(AT T(E OT(ER
MA- (A,E AN E*TENSION LINE AND
RUNS T(E RISI O) BEING (EARD B- A
K
RD
PART-.
An e3tension telephone is an instrument which
is very common especially now when the e3tended
unit does not have to be connected by wire to the
main telephone but can be moved from place to
place within a radius of a 7ilometer or more. A
person should safely presume that the party he is
callin5 at the other end of the line probably has an
e3tension telephone and he runs the ris7 of a third
party listenin5 as in the case of a party line or a
telephone unit which shares its line with another.
MERE ACT O) LISTENING TO A
TELEP(ONE CON,ERSATION IN AN
E*TENSION LINE IS NOT PUNIS(ED B-
ANTI.WIRE TAPPING LAW
It can be readily seen that our lawma7ers
intended to discoura5e throu5h punishment*
persons such as 5overnment authorities or
representatives of or5aniDed 5roups from installin5
devices in order to 5ather evidence for use in court
173
or to intimidate* blac7mail or 5ain some
unwarranted advanta5e over the telephone users.
/onseuently* the mere act of listenin5* in order to
be punishable must strictly be with the use of the
enumerated devices in #A 8%(( or others of similar
nature. :e are of the view that an e3tension
telephone is not amon5 such devices or
arran5ements.
174
RAPE AS CRIME AGAINST PERSONS
(R.A. %353)
Ra.e: !1en And Ho9 +omm&tted
1$. By a man who shall have carnal 7nowled5e of a
woman under any of the followin5 circumstancesG
1a. 6hrou5h force* threat* or intimidation!
1b. :hen the ofended party is deprived of reason
or otherwise unconscious!
1c. By means of fraudulent machination or 5rave
abuse of authority! and
1d. :hen the ofended party is under twelve ($%.
years of a5e or is demented* even thou5h none of
the circumstances mentioned above be present.
1%. By any person who* under any of the
circumstances mentioned in para5raph $ hereof*
shall commit an act of se3ual assault by insertin5
his penis into another person4s mouth or anal
orifce* or any instrument or ob>ect* into the 5enital
or anal orifce of another person.
W(EN INE*CUSABLE IMPRUDENCE ON
PART O) ,ICTIM AS TO IDENTIT- O)
O))ENDER IS NOT RAPE! W(EN A WOMAN
)AILED TO ASCERTAIN T(E IDENTIT- O) T(E
MAN.
6he evidence shows that this mista7e was
purely a sub>ective conf5uration of Qareen4s mind
0 an assumption entirely contrived by her. @ur
impression is that Silvino had nothin5 to do with
the formulation of this belief! he did nothin5 to
mislead or deceive Qareen into thin7in5 that he
was Jnrico. In fact* Silvino precisely* and
confdently* told her* 1Qareen* it4s not #ic7y* it4s
+un. I love you.1 It is thus obvious that whatever
175
mista7e there was could only be attributable to
Qareen 0 and her ine3cusable imprudence 0 and
to nobody else. /learly* the fault was hers. She had
the opportunity to ascertain the identity of the man
but she preferred to remain passive and allow
thin5s to happen as they did. Silvino never used
force on her and was even most possibly
encoura5ed by the fact that when he pulled down
her panties she never ob>ected! when her le5s
were bein5 parted she never ob>ected! and* when
he fnally mounted her she never ob>ected. :here
then was forceE
6hird* Qareen was not deprived of reason or
otherwise unconscious when the accused had
intercourse with her. Aer lame e3cuse was that she
was half-asleep. Aowever she admitted that in the
early mornin5 of $ ?ay $''8 she wo7e up to fnd
someone removin5 her underwear. 6huswise it
cannot be said that she was deprived of reason or
unconscious. She 7new* hence was conscious*
when her panties were bein5 pulled down! she
7new* hence was conscious* when her le5s were
bein5 parted to prepare for the se3ual act! she
7new* hence was conscious* when the man was
pullin5 down his briefs to prepare himself li7ewise
for the copulation! she 7new* hence was conscious*
when the man mounted her and lusted after her
virtue. Aer >ustifcation was that she never
ob>ected to the se3ual act from the start because
she thou5ht that the man was her boyfriend with
whom she was havin5 se3 almost every ni5ht for
the past three (=. wee7s as they were 5ettin5
married and wanted already to have a baby. In
other words* her ur5e could not wait for the more
appropriate time. (People v. SalarDa* +r..
NATURE O) INTIMIDATION IN RAPE CASES
176
Intimidation is addressed to the mind of
the victim. It is sub>ective and its presence cannot
be tested by any hard-and-fast rule* but must be
viewed in the li5ht of the victim,s perception and
>ud5ement at the time of the crime.
In the case at bar* at the time the crime
was committed* the victim was 8( yrs. old* &
months pre5nant* unarmed and married to a
person older than her by almost %( yrs.. In
contrast* appellant was in his %(,s* armed with a
5un and purportedly in the company of several <PA
members. 6he crime happened in the evenin5 and
in a place where help was impossible. 6he nearest
nei5hbor of the victim is some = 7ms. from their
hut. /onsiderin5 all these circumstances* we hold
that the victim was intimidated to submit to the
lustful desire of the appellant. (Pp. I. ?ostrales!
"# $%&'=9* Au5.%-* $''-.
W(EN MORAL ASCENDANC- IS SUSTAINED AS
INTIMIDATION IS RAPE.
Intimidation in rape cases is not calibrated nor
5overned by hard and fast rules. Since it is
addressed to the victim4s and is therefore
sub>ective* it must be viewed in li5ht of the victim4s
perception and >ud5ment at the time of the
commission of the crime. It is enou5h that the
intimidation produced fear 0 fear that if the victim
did not yield to the bestial demands of the
accused* somethin5 far worse would happen to her
at that moment. :here such intimidation e3isted
and the victim was cowed into submission as a
result thereof* thereby renderin5 resistance futile*
it would be the hei5ht of unreasonableness to
e3pect the victim to resist with all her mi5ht and
stren5th. If resistance would nevertheless be futile
because of intimidation* then oferin5 none at all
does not mean consent to the assault so as to
177
ma7e the victim4s submission to the se3ual act
voluntary.
In any event* in a rape committed by a father
a5ainst his own dau5hter* as in this case* the
former4s moral ascendancy or inNuence over the
latter substitutes for violence or intimidation.
Li7ewise* it must not be for5otten that at her
tender a5e of $8 years* JCJ< could not be
e3pected to act with the euanimity of disposition
and with nerves of steel* or to act li7e a mature
and e3perienced woman who would 7now what to
do under the circumstances* or to have coura5e
and intelli5ence to disre5ard the threat. Jven in
cases of rape of mature women* this /ourt
reco5niDed their diferent and unpredictable
reactions. Some may shout! some may faint! and
some may be shoc7ed into insensibility! while
others may openly welcome the intrusion.
(People v. A5bayani! "# $%%99(* +an. $)* ,'-.
TEST TO DETERMINE W(ET(ER A WOMAN
,OLUNTARIL- SUBMITTED TO SE*UAL
INTERCOURSE OR NOT DUE TO INTIMIDATION
Physical resistance is not the sole test to
determine whether or not a woman involuntarily
succumbed to the lust of an accused.
+urisprudence holds that even thou5h a man lays
no hand on a woman* yet if by array of physical
forces he so overpowers her mind that she does
not resist or she ceases resistance throu5h fear of
5reater harm* the consummation of unlawful
intercourse by the man is rape.
(Pp. I. ?ostrales! "# $%&'=9* Au5.%-*
$''-.
DATE O) COMMISSION O) RAPE
178
NOT ESSENTIAL ELEMENT O) SAID CRIME
It is settled that even a variance of a few
months between the time set out in the indictment
and that established by the evidence durin5 the
trial has been held not to constitute an error so
serious as to warrant reversal of a conviction solely
on that score. 6he failure of the complainant to
state the e3act date and time of the commission of
the rape is a minor matter.
(Pp. I. BernaldeD! "# $('9-(*Au5. $9* $''-.
E*AMPLE O) ,IRTUAL CON)ESSION O) )ACT
AND NOT IN LAW IN CASES O) RAPE
It is conceded that after the rape* Accused sent
complainant two letters in which he implored her
for5iveness and ofered to leave his wife so that he
could be with her. In fne* appellant sealed his own
fate by admittin5 his crime under a seal of virtual
confession in fact* if not in law.
(Pp. I. Prades! "# $%9&)'* +uly =(* $''-.
C(ILD BORN B- REASON O) RAPE
MUST BE ACINOWLEDGED B- O))ENDER
UPON ORDERS O) T(E COURT
;urthermore* since A<ALIQA be5ot a child by
reason of the rape* CA<6J must ac7nowled5e and
support the ofsprin5 pursuant to Article =8& of the
#evised Penal /ode in relation to Article %($ of the
;amily /ode.
(People v. Alfeche.
DWELLING AS AGGRA,ATING CIRCUMSTANCE
IN RAPE CASES
179
It is clear* however* that the a55ravatin5
circumstance of dwellin5 is attendant in the
commission of the crime. Article $8(&. of the
#evised Penal /ode provides that this circumstance
a55ravates a felony where the crime is committed
in the dwellin5 of the ofended party* if the latter
has not 5iven provocation. In the instant case* the
aforesaid circumstance of dwellin5 was defnitely
present in the commission of the crime of rape with
the use of a deadly weapon.
(Pp. I. Prades! "# $%9&)'* +uly =(* $''-.
INDEMNIT- IN CERTAIN CASES O) RAPE
6he recent >udicial prescription is that the
indemnifcation for the victim shall be in the
increased amount of P9&*(((.(( if the crime of
rape is committed or efectively ualifed by any of
the circumstances under which the death penalty
is authoriDed by the applicable amendatory laws.
(Pp. I. Prades! "#$%9&)'* +uly =(* $''-.
MORAL DAMAGES NEED NOT BE ALLEGED
AND PRO,ED IN CASES O) RAPE
Indeed* the conventional reuirement of
alle#ata et probata in civil procedure and for
essentially civil cases should be dispensed with in
criminal prosecutions for rape with the civil aspect
included therein* since no appropriate pleadin5s
are fle wherein such alle5ations can be made.
(Pp. I. Prades! "# $%9&)'* +uly =(* $''-.
MEANING O) DEADL- WEAPON IN CASES O)
RAPE
A Sdeadly weaponT is any weapon or
instrument made and desi5ned for ofensive or
180
defensive purposes* or for the destruction of life or
thee inNiction of in>ury! or one which* from the
manner used* is calculated or li7ely to produce
death or serious bodily harm. In our >urisdiction* it
has been held that a 7nife is a deadly weapon.
(Pp. I. Alfeche! "# $%8%$=* Au5. $9* $''-.
)ORCE AND INTIMIDATION
NOT NEEDED IN RAPE O) RETARDATE
Althou5h the information alle5ed Sforce*
threats* and intimidationT* it nevertheless also
e3plicitly stated that 6essie is a Smentally retarded
person.T :e have held in a lon5 line of cases that
if the mental a5e of a woman above $% years is
that of a child below $% years* even if she
voluntarily submitted to the bestial desires of the
accused* or even if the circumstances of force or
intimidation or of the victim bein5 deprived of
reason or otherwise unconscious are absent* the
accused would still be liable for rape under the =
rd
circumstance of Art. ==&. 6he rationale therefor is
that if se3ual intercourse with a victim under $%
years of a5e is rape* then it should follow that
carnal 7nowled5e of a woman whose mental a5e is
that of a child below $% years would constitute
rape.
(People v. Aector Jstares! $%H&H'9.
USE O) )ORCE OR INTIMIDATION NOT
AN ELEMENT O) STATUTOR- RAPE
In any event* the use of force or intimidation is
not an element of statutory rape. 6he ofense is
established upon proof that the accused se3ually
violated the ofended party* who was below $%
years of a5e at the time of the se3ual assault. In
other words* it is not relevant to this case whether
181
appellant slapped or bo3ed the victim* or whether
he used a sin5le-bladed or a double-ed5ed 7nife.
(People v. @liva! $%H&H'9.
RAPE CAN BE COMMITTED IN DI))ERENT
PLACES
E,EN T(OSE IN (IG( ,ENUES
It has been emphasiDed that rape can be
committed in many diferent places* includin5
places which to many would appear to be unli7ely
and hi5h-ris7 venues for se3ual advances. 6hus*
rape has been committed even in places where
people con5re5ate* in par7s* alon5 the roadside*
within school premises* inside a house where there
are other occupants* and even in the same room
where other members of the family are also
sleepin5.
(People v. "ementiDa! $H%'H'-.
W(EN SWEET(EART DE)ENSE
IS TENABLE IN RAPE
6he SsweetheartT defense put up by the
accused merits serious consideration. :hile the
theory does not often 5ain favor with the court*
such is not always the case if the hard fact is that
the accused and the supposed victim are in fact
intimately related e3cept that* as is true in most
cases* the relationship is either illicit* or the
parents are a5ainst it. In such instances* it is not
improbable that when the relationship is
uncovered* the victim,s parents would ta7e the ris7
of institutin5 a criminal action rather than admit to
the indiscretion of their dau5hter. And this* as the
records reveal* is what happened in this case.
(People vs #ico +amlan Salem* @ctober $)H'9.
182
A MEDICAL E*AMINATION O) ,ICTIM
IS NOT ELEMENT O) RAPE
A medical e3amination is not an indispensable
element in a prosecution for rape. 6he accused
may be convicted on the sole basis of
complainant,s testimony* if credible* and the
fndin5s of the medico-le5al oFcer do not disprove
the commission of rape.
(People v +enelito Jscober K #esuento* <ov )H'9.
(EINOUSNESS O) RAPE O)
ONEQS DESCENDANT
In the case before us* the accused raped his
own Nesh and blood at such a tender a5e of
eleven. Ae thus violated not only he purity and her
trust but also the mores of his society which he has
scornfully defned. By inNictin5 his animal 5reed
on her in a dis5ustin5 coercion of incestuous lust*
he forfeits all respect as human bein5 and is >ustly
spurned by all* not least of all* by the fruit of his
own loins whose pro5eny he has forever stained
with his shameful and shameless lechery.
(People v >enelito Jscober K #esuento* <ov )H'9.
MERE DISCIPLINAR- C(ASTISEMENT IS NOT
ENOUG( TO DOUBT CREDIBILIT- O) RAPE
,ICTIM W(O IS A DESCENDANT
?ere disciplinary chastisement is not stron5
enou5h to ma7e dau5hters in a ;ilipino family
invent a char5e that would only brin5 shame and
humiliation upon them and their own family and
ma7e them the ob>ect of 5ossip amon5 their
183
classmates and friends. It is unbelievable that
+acueline would fabricate a serious criminal
char5e >ust to 5et even with her father and to
emphasiDe with her sister. 6he sisters would not
contrive stories of deNoration and char5e their own
father with rape unless these stories are true. ;or
that matter* no youn5 ;ilipina of decent repute
would falsely and publicly admit that she had been
ravished and abused considerin5 the social sti5ma
thereof.
(People v 6abu5oca* "# <o. $%&==8.
SODOM- IS NOT T(E SAME AS IGNOMIN-
NOR CAN IT BE CONSIDERED AS IGNOMIN-.
1I5nominy is a circumstance pertainin5 to the
moral order* which adds dis5race and oblilouy to
the material in>ury caused by the crime.1 6hus* for
i5nominy to be appreciated as an a55ravatin5
circumstance in the instant case* it must be shown
that the se3ual assault on ;rancis Bart was done by
accused-appellant to put the former to shame
before 7illin5 him. 6his is clearly not the case here
for accused-appellant4s intention was shown to be
the commission of se3ual abuse on the victim as
an act of reven5e for his similar e3perience as a
child.
W(EN T(E IN)ORMATIONS ON RAPE CASES
)AILED TO ALLEGE ACTUAL RELATIONS(IP
ETC. (ENCE DEAT( PENALT- CANNOT BE
IMPOSED
In this case* the information4s in /riminal /ase
<os. --''--'(( alle5ed that accused-appellant*
1who is the stepfather of the private ofended
party1 by 1force* violence and intimidation1
succeeded in havin5 carnal 7nowled5e of the latter
when she was then $8 and $= years old*
184
respectively. @n the otherhand* the information in
/riminal /ase <os. -'8&--'8) alle5ed that
accused-appellant* 1whoX. is the stepfather of
victim +enny ?acaro1 succeeded in havin5 carnal
7nowled5e of the latter* who was a 5irl below $%
years old. As already noted* contrary to these
alle5ations* accused-appellant is not really the
stepfather of complainants Lenny and +enny
because accused-appellant and complainants4
mother were not le5ally married but were merely
livin5 in common-law relation. In fact* Lenny and
+enny interchan5eably referred to accused-
appellant as their stepfather* G=abitG Glive-in
partner n# Mama =oG GtiyoG and Gtiyu%in.G
/omplainants4 sister-in-law* #osalie ?acaro* also
testifed that her 1mother-in-law is not le5ally
married to accused-appellant.1 Accused-appellant
li7ewise said on direct and cross-e3amination that
he was not le5ally married to the mother of the
complainants* and he referred to her as his live-in
partner. 6his was confrmed by Jmma ?acaro*
mother of the complainants. Althou5h the rape of
a person under ei5hteen ($-. years of a5e by the
common-law spouse of the victim4s mother is
punishable by death* this penalty cannot be
imposed on accused-appellant in these cases
because this relationship was not what was alle5ed
in the information4s. :hat was alle5ed was that he
is the stepfather of the complainants.
IN)ORMATION IN RAPE CASES WIT( USE O)
DEADL- WEAPON MUST BE ALLEGED
OT(ERWISE DEAT( PENALT-! CANNOT BE
IMPOSED
<either can accused-appellant be meted the
death penalty in /riminal /ase <o. -'(( where he
committed the rape after threatenin5 the victim*
Lenny ?acaro* with a 7nife. 2nder Art. ==& of the
185
#evised Penal /ode* simple rape is punishable by
Greclusion perpetua.G :hen the rape is committed
1with the use of a deadly weapon*1 i.e.* when a
deadly weapon is used to ma7e the victim submit
to the will of the ofender* the penalty is Kreclusion
perpetua to death.1 6his circumstance must
however be alle5ed in the information because it is
also in the nature of a ualifyin5 circumstance
which increases the ran5e of the penalty to include
death. In /riminal /ase <o. -'((* while
complainant Lenny testifed that accused-appellant
raped her after threatenin5 her with a 7nife* the
1use of a deadly weapon1 in the commission of the
crime was not alle5ed in the information.
6herefore* even if the same was prove* it cannot be
appreciated as a ualifyin5 circumstance. 6he
same can only be treated as 5eneric a55ravatin5
circumstance which* in this case* cannot afect the
penalty to be impose* i.e.* reclusion perpetua.
Accordin5ly* the accused-appellant should be
sentenced to the penalty of reclusion perpetua.
Accordin5ly* the accused-appellant should be
sentenced to the penalty of reclusion perpetua for
each of the four counts of rape.
$PP -vs- A"L!M0"R+> AR(G( ) 0()L>' G.R.
'os. 16716B-66 (pril 14 4BBB&
E*AMINATIONS O) ALL SPECIMENS IN DRUG
CASES NOT NECESSAR-
:e are not persuaded by the claim of accused-
appellants that in order for them to be convicted of
sellin5 %*-(( 5rams of mari>uana* the whole
specimen must be tested considerin5 that #epublic
Act 9)&' imposes a penalty dependent on the
amount or the uantity of dru5s seiDed or ta7en.
6his /ourt has ruled that a sample from one of the
pac7a5es is lo5ically presumed to be
representative of the entire contents of the
186
pac7a5e unless proven otherwise by accused-
appellant.
(PP -vs- CI@L@ BA#I6A K SA/PA* J6 AL.* ".#.
<o. $%=&8$* ;eb. -* %(((.
MEDICAL E*AMINATION NOT RE0UIRED IN
RAPE CASES
6his /ourt has also ruled that a medical
e3amination is not indispensable to the prosecution
of rape as lon5 as the evidence on hand convinces
the court that a conviction of rape is proper.
W(EN CARNAL INOWLEDGE IS CONSUMATED
It is worth mentionin5 that in rape cases* the
prosecution is not reuired to establish penile
penetration because even the sli5htest touchin5 of
the female 5enitalia* or mere introduction of the
male or5an into the labia of the pudendum
constitutes carnal 7nowled5e.
$PP -vs- A"R'('D> C(L('G M(C>/+( alias
GD>D>'GG G.R. 'o. 14;<97 Dec. 17 1<<<&
T(E C(ARGE O) RAPE DO NOT INCLUDE
SIMPLE SEDUCTION. (ENCE! I) ONE IS
C(ARGE WIT( RAPE AND IS NT PRO,EN!
ACCUSED CANNOT BE (ELD GUILT- O)
SIMPLE SEDUCTION.
Jven as the prosecution failed to proved the
use of force* violence and intimidation by the
accused-appellant* we cannot convict the accused-
appellant of the crime of simple seduction without
ofense to the constitutional ri5hts of the accused-
appellant to due process and to be informed the
accusation a5ainst him. 6he char5e of rape does
187
not include simple seduction. $PP -vs L>L!+>
M>R"'> ) L('C!>' alias GL>L>)G G.R. 'o.
1191<1 Dec. 41 1<<<&
W(AT ARE T(E ELEMENTS O) RAPE
6he elements of rape areG
($. that the ofender had carnal 7nowled5e of
a woman!
(%. that such act is accomplished by usin5
force or intimidation! or when the woman is
deprived of reason or otherwise unconscious! or
when the woman is under twelve years of a5e or is
demented.
MEANING O) TAIING AD,ANTAGE O)
SUPERIOR STRENGT( IN RAPE CASES
6a7in5 advanta5e of superior stren5th means
to purposely use e3cessive force out of proportion
to the means available to the person attac7ed. It is
abuse of superior numbers or employment of
means to wea7en the defense. 6his circumstance
is always considered whenever there is notorious
ineuality of forces between the victim and the
a55ressor* assumin5 a situation of superiority
notoriously advanta5eous for the a55ressor
deliberately chosen by him in the commission of
the crime. 6o properly appreciate it* it is necessary
to evaluate not only the physical condition of the
parties and the arms or ob>ects employed but the
incidents in the total development of the case as
well.
?oreover* li7e the crime of parricide by a
husband on his wife* abuse of superior stren5th Is
inherent in rape. It is 5enerally accepted that
under normal circumstances a man who commits
188
rape on a woman is physically stron5er than the
latter.
$PP -vs- "DG(RD> D" L">' ) /('+>/ G.R.
'o. 14D76; Dec. 1B 1<<<&
W(EN TESTIMON- O) ,ICTIM IS O,ERL-
GENERALI1ED IN CRIME O) RAPE
Jach and every char5e of rape is a separate
and distinct crime so that each of the si3teen other
rapes char5ed should be proven beyond
reasonable doubt. 6he victim4s testimony was
overly 5eneraliDed and lac7ed specifc details on
how each of the alle5ed si3teen rapes was
committed. Aer bare statement that she was
raped so many times on certain wee7s is clearly
inadeuate and 5rossly insuFcient to establish the
5uilt of accused-appellant insofar as the other
si3teen rapes char5ed are concerned.
In People vs. Garcia this /ourt succinctly
observed thatG
xxx t%e inde3nite testimonial evidence t%at
complainant *as raped every *ee= is decidedly
inade8uate and #rossly insu.cient to establis% t%e
#uilt of appellant t%erefor *it% t%e re8uired
8uantum of evidence. /o muc% of suc% inde3nite
imputations of rape *%ic% are uncorroborated by
any ot%er evidence fall *it%in t%is cate#ory.
$PP -vs- "DM?'D> D" L">' ) J"/?/
G.R. 'o 16B<D9 Dec. 6 1<<<
CONCURRENCE O) MINORIT- O) ,ICTIM AND
RELATIONS(IPS IN RAPE MUST BE ALLEGED
SO T(AT DEAT( PENALT- MA-BE IMPOSED
6he concurrence of the minority of the victim
and her relationship to the ofender should be
189
specifcally alle5ed in the information conformably
with the accused4s ri5ht to be informed of the
accusation a5ainst him. In this case* althou5h the
minority of Poblica and her relationship with
appellant were established by the prosecution
beyond doubt* the death penalty cannot be
imposed because these ualifyin5 circumstances
were not specifed in the information. It would be
a denial of the ri5ht of the appellant to be informed
of the char5es a5ainst him and conseuently* a
denial of due process if he is char5ed with simple
rape and convicted of its ualifed form punishable
by death althou5h the attendant circumstances
ualifyin5 the ofense and resultin5 in capital
punishment were not set forth in the indictment on
which he was arrai5ned.
$PP -vs- C,(R!+> !/?G M(G0('?(
G.R. 'o. 14DDDD Dec. 6 1<<<&
0UALI)-ING CIRCUMSTANCE IN RAPE CASES
MUST BE ALLEGED IN ORDER T(AT DEAT(
PENALT- MA-BE IMPOSED
6his /ourt has ruled in a lon5 line of cases that
the circumstance under the amendatory provisions
of Section $$ of #epublic Act 9)&'* the attendance
of any of which mandates the sin5le indivisible
penalty of death are in the nature of ualifyin5
circumstances which cannot be proved as such
unless alle5ed with particularity in the information
unli7e ordinary a55ravatin5 circumstances which
afect only the period of the penalty and which
may be proven even if not alle5ed in the
information. It would be a denial of the ri5ht of the
accused to be informed of the char5e a5ainst him
and conseuently* a denial of due process* if he is
char5ed with simple rape and will be convicted of
its ualifed form punishable by death althou5h the
attendant circumstance ualifyin5 the ofense and
190
resultin5 in capital punishment was not alle5ed in
the indictment under which he was arrai5ned.
Procedurally* then* while the minority of #enelyn
and her relationship to the accused-appellant were
established durin5 the trial* the accused-appellant
can only be convicted of simple rape because he
cannot be punished for a 5raver ofense that that
with which he was char5ed. Accordin5ly* the
imposable penalty is reclusion perpetua.
$PP -vs- "DH!' R. D"C"'(
G.R. 'o. 161D76 May 61 4BBB&
IMPORTANT CONSIDERATION IN RAPE
<either is the absence of spermatoDoa in
Celia4s 5enitalia fatal to the prosecution4s case.
6he presence or absence of spermatoDoa is
immaterial in a prosecution for rape. 6he
important consideration in rape cases is not the
emission of semen but the unlawful penetration of
the female 5enitalia by the male or5an.
$PP -vs- R>D>LA> 0(+> alias NR?D) 0(+>G
G.R. 'o. 167<6< Aeb. 1; 4BBB&
W(EN RAPE IS NOT COMMITTED AND
SWEET(EART T(EOR- GI,EN CREDENCE
Airst. Private complainant never ob>ected or
showed any resistance when accused-appellant
alle5edly dra55ed her forcibly across the
pedestrian overpass and brou5ht her to an
undisclosed place at Puiapo. Althou5h he was
holdin5 her wrist ti5htly* she could have easily
e3tricated herself form him on several occasionsG
(a. while they were inside the bus bound for
Puiapo! (b. when they ali5hted form the bus and
roamed the sidestreets of Puiapo! and especially
so* (c. when they entered the hotel and fnally the
room where the alle5ed rape too7 place. Accused-
appellant was unarmed and his ti5ht 5rip could not
191
have prevented private complainant from at least
shoutin5 for help. Aer demeanor was simply
inconsistent with that of the ordinary ;ilipina whose
instinct dictates that the summon every ounce of
her stren5th and coura5e to thwart any attempt to
besmirch her honor and blemish her purity. 6rue*
women react diferently in similar situations* but it
is too unnatural for an intended rape victim* as in
this case* not to ma7e even feeble attempt to free
herself despite a myriad of opportunities to do so.
/econd. 6he deportment of the private
complainant after the alle5ed rape accentuates the
dubiety of her testimony. After the alle5ed rape*
she did not leave immediately but even refused to
be separated from her supposed defler despite the
proddin5 of the latter. :orse* she went with him to
the house of his sister and there they slept
to5ether. Indeed this attitude runs counter to lo5ic
and common sense. Surely private complainant
would not ris7 a second molestation and under5o a
reprise of the harrowin5 e3perience. 6o compound
matters* it too7 her four (8. days to inform her
parents about this a5oniDin5 episode in her life.
6ruly* her insouciance is very disturbin5* to say the
least.
Ainally. 6he prosecution failed to substantiated
any of its alle5ations. Instead* it opted to stand or
fall on the uncorroborated and implausible
testimony of the private complainant. It is
elementary in our rules of evidence that a party
must prove the aFrmative of his alle5ations.
$PP -vs- +>M(/ CL(?D!> ) M"'!J!"
G.R. 'o. 166;<7 Aeb. 4< 4BBB&
W(EN TWO A))IDA,ITS ARE E*ECUTED B-
T(E COMPLAINANT IN A RAPE CASE! ONE )OR
ATTEMPTED RAPE AND ANOT(ER )OR
CONSUMMATED RAPE AND ARE
192
INCONSISTENT WIT( EAC( OT(ER!
CON,ICTION CANNOT BE (AD
It is true that aFdavits are 5enerally subordinated
in importance to open court declarations. 6he
5eneral rule is that variance between an
e3tra>udicial sworn statement of the complainant
and here testimony in court does not impair the
complainant4s credibility when the said variance
does not alter the essential fact that the
complainant was raped. Iariance as to the time
and date of the rape* the number of times it was
committed or the 5arments which the accused or
the complainant wore at the time of the incident do
not 5enerally diminish the complainant4s credibility.
Aowever* the serious discrepancy between the two
sworn statements e3ecuted a day apart by the
complainant in this case* bearin5 on a material
fact* is very substantial because it pertains to the
essential nature of the ofense* i.e.* whether the
ofense was consummated or merely attempted.
In People vs. Ablaneda* wherein a housewife
e3ecuted a sworn statement for attempted rape
and later chan5ed the accusation to consummated
rape without a rational e3planation* this /ourt held
that the 5eneral rule does not apply when the
complainant completely chan5ed the nature of her
accusation. 6he contradiction does not concern a
trivial or inconseuential detail but involves the
essential fact of the consummation of the rape.
$PP -vs- (L0"R+ "R'"/+ H!L/>'
G.R. 'o. 169<19 Dec. 41 1<<<&
NATURE O) INCESTUOUS RAPE
Incestuous rape of a dau5hter by a father has
heretofore been bitterly and vehemently
denounced by this /ourt as more than >ust a
shameful and shameless crime. #ape in itself is a
nauseatin5 crime that deserves the condemnation
193
of all decent persons who reco5niDe that a
woman4s cherished chastity is hers alone to
surrender at her own free will* and whoever
violates this norm descends to the level of the
odious beast. But the act becomes doubly
repulsive where the outra5e is perpetrated on
one4s own Nesh and blood for the culprit is further
reduced to a level lower than the lowly animal and
forfeits all respect otherwise due him as a human.
$PP -vs- M"L('DR> '!C>L(/ ) A(C"LL(
G.R. 'os. 149149-4: Aeb. 7 4BBB&
LO,E RELATIONS(IP DO NOT RULE OUT RAPE
Jven assumin5 ex #ratia ar#umenti that
accused-appellant and private complainant were
indeed sweethearts as he claims* this fact alone
will not e3tricate him from his predicament. 6he
mere assertion of a 1love relationship1 would not
necessarily rule out the use of force to
consummate the crime. It must be stressed that in
rape case* the 5ravamen of the ofense is se3ual
intercourse with a woman a#ainst her will or
*it%out her consent. 6hus* 5rantin5 ar#uendo that
the accused and the victim were really lovers this
/ourt has reiterated time and a5ain that 1A
sweetheart cannot be forced to have se3 a5ainst
her will. Cefnitely* a man cannot demand se3ual
5ratifcation from a fancYe* worse* employ
violence upon her on the prete3t of love. Love is
not a license for lust.1
$PP -vs- D('+" C"P"D( ) /(P>+(L>
G.R. 'o. 147D64 Aeb. 1 4BBB&
PLACES NOTORIOUS )OR (OLD.UPS DONE AT
NIG(T . IS CONSIDERED AGGRA,ATING AS
NIG(T TIME
194
/onsiderin5 that the place where the crime
too7 place was 1notorious for hold-ups done at
ni5ht* precisely to ma3imiDe the advanta5e of
dar7ness*1 we cannot but a5ree with the trial court
that ni5httime was purposely sou5ht by accused-
appellants 1for the more successful consummation
may be perpetrated unmolested or so that they
could escape more thorou5hly.1
$PP -vs- A"L!M>' (L!P()> ) +"J(D( "+ (L.
G.R. 'o. 144<:< Aeb. 4 4BBB&
RAPE MA- BE COMMITTED IN ALMOST ALL
PLACES
Appellant considers it uite improbable for rape
to be committed at a place within a well-li5hted
and fairly well-populated nei5hborhood. 6his
ar5ument does not hold water. #ape can be
commi'tted even in places where people
con5re5ate* in par7s* alon5 the roadside* within
school premises* inside a house where there are
other occupants* and even in the same room in the
presence of other members of the family. ZAn
overpowerin5 wic7ed ur5e has been shown not to
be deterred by circumstances of time or place.
DEAT( PENALT- CANNOT BE IMPOSED W(EN
IN)ORMATION )AILED TO INDICATE T(E AGE
O) T(E ,ICTIM AND (ER CORRECT
RELATIONS(IP WIT( T(E ACCUSED
6he penalty of death cannot be properly
imposed since the indictment has failed to indicate
the a5e of the victim and her correct relationship
with appellant* concurrent ualifyin5
circumstances* essential in the imposition of that
penalty. ;urthermore* appellant is not a 1parent*
ascendant* step-parent* 5uardian* relative by
195
consan5uinity or aFnity within the third civil
de5ree* or the common-law spouse of the parent of
the victim.1 6he latter4s 5randmother* #emedios
Lustre* herself ac7nowled5es that appellant has
>ust for a time been her common-law husband.
$PP -vs- A"D"R!C> L?/+R" ) "'C!'(/
G.R. 'o. 1679;4 (pril ; 4BBB&
COMPENSATOR- DAMAGES IN CASES O)
0UALI)IED RAPE
:ith re5ard to the award of compensatory
dama5es* we have rule in Peo8le =7. ,i"or!
which was later reaFrmed in Peo8le =7. Pra:e7!
that 1if the crime of rape is committed or
efectively ualifed by any of the circumstances
under which the death penalty is authoriDed by the
present amended law* the indemnity of the victim
shall be in the increased amount of not less than
P9&*(((.((.1
$PP -vs- ('+>'!> M(G(+ ) L>'D>'!> G.R. 'o.
16BB4; May 61 4BBB&
NATURE O) INTIMIDATION IN CASE O) RAPE
In People vs. LuDorata* the /ourt held that
intimidation was addressed to the mind of the
victim and therefore sub>ective* and its presence
could not be tested by any hard-and-fast rule but
must be viewed in li5ht of the victim4s perception
and >ud5ment at the time of the crime. 6hus* when
a rape victim becomes paralyDed with fear* she
cannot be e3pected to thin7 and act coherently*
her failure to immediately ta7e advanta5e of the
early opportunity to escape does not automatically
vitiate the credibility of her account. 1/omplainant
cannot be faulted for not ta7in5 any action
inasmuch as diferent people react diferently to a
196
5iven type of situation* there bein5 no standard
form of human behavioral response when one is
confronted with a stran5e* startlin5 or fri5htful
e3perience.1
$PP -vs- C!C"'+" 0(L>R( ) D"L('+(R
G.R. 'o. 147<:; May 61 4BBB&
EAC( AND E,ER- RAPE ALLEGED MUST BE
PRO,EN
Jach and every char5e of rape is a separate
and distinct crime so that each of the si3teen other
rapes char5ed should be proven beyond
reasonable doubt. 6he victim4s testimony was
overly 5eneraliDed and lac7ed specifc details on
how each of the alle5ed si3teen rapes was
committed. Aer bare statement that she was
raped so many times on certain wee7s is clearly
inadeuate and 5rossly insuFcient to establish the
5uilt of accused-appellant insofar as the other
si3teen rapes char5ed are concerned. In People vs.
Garcia this /ourt succinctly observed thatG
xxx t%e inde3nite testimonial evidence
t%at complainant *as raped every *ee= is
decidedly inade8uate and #rossly insu.cient
to establis% t%e #uilt of appellant t%erefor *it%
t%e re8uired 8uantum of evidence. /o muc% of
suc% inde3nite imputations of rape *%ic% are
/nco33obo3ated by any ot1e3 e2&dence fall
*it%in t%is cate#ory.
$PP -vs- "DM?'D> D" L">' ) J"/?/
G.R. 'o. 16B<D9 Dec. 6 1<<<&
A6 6AJ S6A#6 6AJ#J ?2S6 BJ #APJ* B26
S2BSJP2J<6 JIJ<6S ?AK BJ/@?J A ;A/6@#
197
6AA6 6AJ #JAL6I@<SAIP* AL6A@2"A I</JS6@2S*
/@<II/6I@< ;@# #APJ /A<<@6 BJ AAC
1/omplainant could have been raped the frst
time accused-appelant had carnal 7nowled5e of
her* when she was $= years old. 6his however* is
not a prosecution for such rape. :hen she
complained of havin5 been raped in this case* she
was already =( or =$ years old* $9 or $- years
after she had been alle5edly ravished for the frst
time by her father* the herein accused-appelant.
Curin5 the said period of $9 or $- years* neither
complainant nor her parents denounced accused-
appellant despite the fact that he continued to
have se3ual relation alle5edly without the consent
of complainant. Curin5 this period* four children
were born to complainant and accused-appellant.
/omplainant and accused-appellant practically
cohabited* choosin5 the baptismal sponsors for
their children* and even invitin5 friends and
relatives to the feasts. 6he relationship was 7nown
to nei5hbors. 6hus* their relationship mi5ht be
incestuous* but it was not by reason of force or
intimidation. ;or their part* while in the be5innin5
complainant4s mother and sisters may have
disapproved of the relationship* in the end* it would
appear that subseuently they >ust turned a blind
eye on the whole afair. "iven these facts* we
cannot say that on September $'* $''& when
accused-appellant had se3ual intercourse with
complainant* he committed rape.
(People v. Iillalobos* ".#. $=8%'8* (&H%$H%(($.
T(E DELA- AND INITIAL RELUCTANCE O) A
RAPE ,ICTIM TO MAIE PUBLIC T(E ASSAULT
ON (ER ,IRTUE IS NEIT(ER UNINOWN OR
UNCOMMON. AS (ELD IN LT(E CASE O)
PEOPLE ,S. MALAGAR
198
1Iacillation in the flin5 of complaint by rape
victim is not an uncommon phenomenon. 6his
crime is normally accompanied by the rapist4s
threat on the victim4s life* and the fear can last for
uit a while. 6here is also the natural reluctance of
a woman to admit her sullied chastity* acceptin5
thereby all the sti5ma it leaves* and to then e3pose
herself to the morbid curiosity of the public whom
she may li7ely perceived ri5htly or wron5ly* to be
more interested in the prurient details of the
ravishment than in her vindication and the
punishment of the rapist. In People vs. /oloma
(%%% S/#A %&&. we have even considered an --
year delay in reportin5 the lon5 history of rape by
the victim4s father as understandable and so not
enou5h to render incredible the complaint of a $=-
year old dau5hter.
$PP -vs- C>'R(D> C(0('( O R('D)
G.R. 'o. 14:147 May < 4BBB&
W(EN T(ERE IS A SEPARATE CRIME O) RAPE
AND ROBBER- IS COMMITTED
As related by Private /omplainant Amy de
"uDman* accused-appellant suddenly >umped over
the counter* stran5led her* po7ed a 7nife at the left
side of her nec7* pulled her towards the 7itchen
where he forced her to undress* and 5ained carnal
7nowled5e of her a5ainst her will and consent.
6hereafter* he ordered her to proceed upstairs to
5et some clothes* so he could brin5 her out* sayin5
he was not leavin5 her alive. At this point*
appellant conceived the idea of robbery because*
before they could reach the upper Noor* he
suddenly pulled Amy down and started maulin5 her
until she lost consciousness! then he freely
ransac7ed the place. Leavin5 Amy for dead after
199
repeatedly ban5in5 her head* frst on the wall* then
on the toilet bowl* he too7 her bracelet* rin5 and
wristwatch. Ae then proceeded upstairs where he
too7 as well the >ewelry bo3 containin5 other
valuables belon5in5 to his victim4s employer.
2nder these circumstance* appellant cannot be
convicted of the special comple3 crime of robbery
with rape. Aowever* since it was clearly proven
beyond reasonable doubt that he raped Amy de
"uDman and thereafter robbed her and Ana
?arinay of valuables totalin5 P$)*(((.((* he
committed two separate ofenses -rape with the
use of deadly weapon and simple robbery with
force and intimidation a5ainst persons.
CASES W(EREIN T(E SCANDAL RESULTING
)ROM RELATIONS O) COMPLAINANT AND
ACCUSED IMPELS T(E COMPLAINANT OR (ER
RELATI,ES TO )ILE COMPLAINT O) RAPE
AGAINST T(E ACCUSED BUT DID NOT
PROSPER
6hus in People vs. Lamarro-a a case involvin5
an ei5hteen-year old woman 1intellectually wea7
and 5ullible*1 the /ourt found that the alle5ed
victim4s family was 1obviously scandaliDed and
embarrassed by (the victim. Jlena4s 4une3plained4
pre5nancy*1 promptin5 them to cry 1rape.1 6he
/ourt acuitted the accused.
In People vs. Domo#oy private complainant
was seen havin5 se3ual intercourse in the school
premises with appellant therein by the latter4s co-
accused. 1It is thus not farfetched*1 the /ourt held*
1for complainant to have instituted the
complainant for rape a5ainst the three to avoid
bein5 bruited around as a woman of loose morals.1
200
Similarly* in People vs. Castillon the /ourt
considered the complainant4s a5reement to en5a5e
in pre-marital se3ual intercourse 1already a
dis5race to her family* what more of her
acuiescence to have se3ual intercourse on a
sta5e near the vicinity where the +S pro5ram was
bein5 held and pryin5 eyes and ears abound.1
In People vs. 0a*ar the complainant was
cau5ht in Pa#rante by her sister-in-law en5a5in5 in
se3ual intercourse with the accused* a nei5hbor.
6he /ourt 5athered from the complainant4s
testimony that 1she fled the case because she
thou5ht it would be better to cry 4rape4 and brin5
suit to salva5e and redeem her honor* rather than
have reputation sullied in the community by bein5
bruited around and sti5matiDed as an adulterous
woman.1
People vs. Godoy also involved an adulterous
relationship between the accused* who was
married* and his seventeen-year old student. In
acuittin5 the accused* the /ourt heldG
+%e Court ta=es judicial co#ni-ance of t%e fact
t%at in rural areas in t%e P%ilippines youn# ladies
are strictly re8uired to act *it% circumspection and
prudence. Great caution is observed so t%at t%eir
reputations s%all remain untainted. (ny breat% of
scandal *%ic% brin#s dis%onor to t%eir c%aracter
%umiliates t%eir entire families. !t could precisely
be t%at complainantNs mot%er *anted to save face
in t%e community *%ere everybody =no*s
everyone else and in an eJort to conceal %er
dau#%terNs indiscretion and escape t%e *a##in#
ton#ues of t%eir small rural community s%e %ad to
*eave t%e scenario of t%is rape drama.
Aere* the elopement of a thirteen-year old with
her nineteen-year old second cousin no doubt
caused uite a tempest in the otherwise serene
community of Iintar* Ilocos <orte. 6hat
201
complainant4s parents were a5ainst their
relationship* as evidenced in one of her letters*
ma7es it more li7ely that the char5es of rape were
insti5ated to salva5e the complainant4s and her
family4s honor.
H%ile t%e Gs*eet%eart t%eoryG does not often
#ain favor *it% t%is Court suc% is not al*ays t%e
case if t%e %ard fact is t%at t%e accused and t%e
supposed victim are in trut% intimately related
except t%at as is usual in most cases eit%er t%e
relations%ip is illicit or t%e victimNs parents are
a#ainst it. !t is not improbable t%at in some
instances *%en t%e relations%ip is uncovered t%e
alle#ed victim or %er parents for t%at matter *ould
ta=e t%e ris= of institutin# a criminal action in t%e
%ope t%at t%e court *ould ta=e t%e cud#els for
t%em t%an for t%e *oman to admit %er o*n acts of
indiscretion.
$PP -vs- "RH!' (GR"/>R
G.R. 'os. 11<D6:-6< Dec. < 1<<<&
JUDGES S(OULD NOT BE O,ERL- PROTECTI,E
O) E,ER- WOMAN IN RAPE CASES. T(E-
MUST LOOI AT T(E C(ARGE WIT( E*TREME
CAUTION AND CIRCUSMPECTION
#ape is a very emotional word* and the natural
human reactions to it are cate5oricalG sympathy
for the victim and admiration for her in publicly
see7in5 retribution for her outra5eous misfortune*
and condemnation of the rapist. Aowever* bein5
interpreters of the law and dispensers of >ustice*
>ud5es must loo7 at a rape char5e without those
proclivities and deal and with it with e3treme
caution and circumspection. +ud5es must free
themselves of the natural tendency to be
overprotective of every woman decryin5 her
202
havin5 been se3ually abused and demandin5
punishment for the abuser. :hile they ou5ht to be
co5niDant of the an5uish and humiliation the rape
victim 5oes throu5h as she demands >ustice*
>ud5es should eually bear in mind that their
responsibility is to render >ustice based on the law.
$PP -vs- "DH!' L(DR!LL>
G.R. 'o. 147674 Dec. D 1<<<&
203
SE*UAL (ARASSMENT LAW
(RA ;%;;)
WORI! EDUCATION OR TRAINING.RELATED
SE*UAL (ARASSMENT DE)INED.
:or7* education or trainin5-related se3ual
harassment is committed by an employer*
employee* mana5er* supervisor* a5ent of the
employer* teacher* instructor* professor* coach*
trainor* or any other person who* havin5 authority*
inNuence or moral ascendancy over another in a
wor7 or trainin5 or education environment*
demands* reuests or otherwise reuires any
se3ual favor from the other* re5ardless of whether
the demand* reuest or reuirement for submission
is accepted by the ob>ect of said Act.
W(EN SE*UAL (ARASSMENT IS COMMITTEDG
Hor= "ducation or +rainin#-related /exual
,arassment De3ned
:or7* education or trainin5-related se3ual
harassment is committed by an employer*
employee* mana5er* supervisor* a5ent of the
employer* teacher* instructor* professor* coach*
trainor* or any other person who* havin5 authority*
inNuence or moral ascendancy over another in a
wor7 or trainin5 or education environment*
demands* reuests or otherwise reuires any
se3ual favor from the other* re5ardless of whether
the demand* reuest or reuirement for submission
is accepted by the ob>ect of said Act.
In 9or'.relae: or e>8loy>en en=iron>enG
204
($. 6he se3ual favor is made as a condition in
the hirin5 or in the employment* re-
employment or continued employment of
said individual* or in 5rantin5 said
individual favorable compensation* terms*
conditions* promotions* or privile5es! or the
refusal to 5rant the se3ual favor results in
limitin5* se5re5atin5 or classifyin5 the
employee which in any way would
discriminate* deprive or diminish
employment opportunities or otherwise
adversely afect said employee!
(%. 6he above acts would impair the
employee4s ri5hts or privile5es under
e3istin5 labor laws! or
(=. 6he above acts would result in an
intimidatin5* hostile* or ofensive
environment for the employee.
In an e:u"aion or raining en=iron>enG
($. A5ainst one who is under the care* custody
or supervision of the ofender!
(%. A5ainst one whose education* trainin5*
apprenticeship or tutorship is entrusted to
the ofender!
(=. :hen the se3ual favor is made a condition
to the 5ivin5 of a passin5 5rade* or the
5rantin5 of honors and scholarships or the
payment of a stipend* allowance or other
benefts* privile5es* or considerations! or
(8. :hen the se3ual advances result in an
intimidatin5* hostile or ofensive
environment for the student* trainee or
apprentice.
Any person who directs or induces another to
commit any act of se3ual harassment as herein
defned* or who cooperates in the commission
thereof by another without which it would not have
205
been committed* shall also be held liable under this
Act.
206
C(ILD AND -OUT( WEL)ARE CODE
BPD No. 63K 9i# A>en:>en7C
RELIGIOUS INSTRUCTION
6he reli5ious education of children in all public
and private schools is a le5itimate concern of the
/hurch to which the students belon5. All churches
may ofer reli5ious instruction in public and private
elementary and secondary schools* sub>ect to the
reuirements of the /onstitution and e3istin5 laws.
TERMINATION O) RIG(TS O) PARENTS
:hen a child shall have been committed to the
Cepartment of Social :elfare or any duly licensed
child placement a5ency or individual pursuant to
an order of the court* his parents or 5uardian shall
thereafter e3ercise no authority over him e3cept
upon such conditions as the court may impose.
,IOLATION O) PD 63K B- A C(ILD
Pro#i<ie: A"7:
It shall be unlawful for any child to leave the
person or institution to which he has been >udicially
or voluntarily committed or the person under
whose custody he has been placed in accordance
with the ne3t precedin5 article* or for any person to
induce him to leave such person or institution*
e3cept in case of 5rave physical or moral dan5er*
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 fne of not more than two thousand pesos* or
207
both such fne and imprisonment at the discretion
of the courtG Provided* 6hat if the violation is
committed by a forei5ner* he shall also be sub>ect
to deportation.
CARE O) -OUT()UL O))ENDER
(ELD )OR E*AMINATION OR TRIAL
A youthful ofender held for physical and
mental e3amination or trial or pendin5 appeal* if
unable to furnish bail* shall from the time of his
arrest be committed to the care of the Cepartment
of Social :elfare or the local rehabilitation center
or a detention home in the province or city which
shall be responsible for his appearance in court
whenever reuiredG Provided* 6hat in the absence
of any such center or a5ency within a reasonable
distance from the venue of the trial* the provincial*
city and municipal >ail shall provide uarters for
youthful ofenders separate from other detainees.
6he court may* in its discretion* upon
recommendation of the Cepartment of Social
:elfare or other a5ency or a5encies authoriDed by
the /ourt* release a youthful ofender on
reco5niDance* to the custody of his parents or other
suitable person who shall be responsible for his
appearance whenever reuired.
SUSPENSION O) SENTENCE AND
COMMITMENT
O) -OUT()UL O))ENDER
If after hearin5 the evidence in the proper
proceedin5s* the court should fnd that the youthful
ofender has committed the acts char5ed a5ainst
him the court shall determine the imposable
penalty* includin5 any civil liability char5eable
a5ainst him. Aowever* instead of pronouncin5
208
>ud5ment of conviction* the court shall suspend all
further proceedin5s and shall commit such minor
to the custody or care of the Cepartment of Social
:elfare* or to any trainin5 institution operated by
the 5overnment* or duly licensed a5encies or any
other responsible person* until he shall have
reached twenty-one years of a5e or* for a shorter
period as the court may deem proper* after
considerin5 the reports and recommendations of
the Cepartment of Social :elfare or the a5ency or
responsible individual under whose care he has
been committed.
6he youthful ofender shall be sub>ect to
visitation and supervision by a representative of
the Cepartment of Social :elfare or any duly
licensed a5ency or such other oFcer as the /ourt
may desi5nate sub>ect to such conditions as it may
prescribe.
PD 141B
ARTICLE $5$ O) PD 63K IS (EREB-
AMENDED TO READ AS )OLLOWS
1Article $($. /are of Kouthful @fender Aeld
for J3amination or 6rial. - A youthful ofender held
for physical and mental e3amination or trial or
pendin5 appeal* if unable to furnish bail* shall from
the time of his arrest be committed to the care of
the Cept. of Social Services and Cevelopment or
the local rehabilitation center or a detention home
in the province or city which shall be responsible
for his appearance in court whenever reuiredG
Provided* that in the absence of any such center or
a5ency within a reasonable distance from the
venue of the trial* the provincial* city and municipal
>ail shall provide uarters for youthful ofenders
separate from other detainees. 6he court may* in
its discretion upon recommendation of the
209
Cepartment of Social Services [ Cevelopment or
other a5ency or a5encies%$(authoriDed by the
/ou#t* rJlease a youth;ul ofender
on%$(reco5niDance* to the custody of his parents
or other suitable perso< who shall be responsible
for his appearance whenever reuired. Aowever* in
the case of those whose cases fall under the
e3clusive >urisdiction of the ?ilitary 6ribunals* they
may be committed at any military detention or
rehAbilitation center.
PD 141B
ARTICLE $52 O) PD 63K AS AMENDED IS
)URT(ER
AMENDED TO READ AS )OLLOWSG
1A3t. 1#2. Suspension of sentence and
/ommitment of Kouthful @fender. - If after hearin5
the evidence in the proper proceedin5s* the court
should fnd that the youthful ofender has
committed the acts char5ed a5ainst him* the court*
shall determine the imposable penalty* includin5
any civil liability char5eable a5ainst him. Aowever*
instead of pronouncin5 >ud5ment of conviction* the
court upon application of the youthful ofender and
if it fnds that the best interest of the public as well
as that of the ofender will be served thereby* may
suspend all further proceedin5s and commit such
minor to the custody or care of the Cepartment of
Social Services and Cevelopment or to any trainin5
institution operated by the 5overnment or any
other responsible person until he shall have
reached twenty one years of a5e* or for a shorter
period as the court may deem proper* after
considerin5 the reports and recommendations of
the Cepartment of Social Services and
Cevelopment or the 5overnment trainin5
institution or responsible person under whose care
he has been committed.
210
2pon receipt of the application of the youthful
ofender for suspension of his sentence* the court
may reuire the Cepartment of Social Services and
Cevelopment to prepare and submit to the court a
social case study report over the ofender and his
family.
6he Kouthful ofender shall be sub>ect to
visitation and supervision by a representative of
the Cepartment of Social Services [ Cevelopment
or 5overnment trainin5 institution as the court may
desi5nate sub>ect to such conditions as it may
prescribe.
6he benefts of this article shall not apply to a
youthful ofender who has once en>oyed
suspension of sentence under its provisions or to
one who is convicted of an ofense punishable by
death or life imprisonment or to one who is
convicted for an ofense by the ?ilitary 6ribunals.
PD 11:<
APPEAL
6he order of the court denyin5 an application
for suspension of sentence under the provisions of
Article $'% above shall not be appealable.1
RETURN O) T(E -OUT()UL
O))ENDER TO T(E COURT
:henever the youthful ofender has been
found incorri5ible or has wilfully failed to comply
with the conditions of his rehabilitation pro5rams*
or should his continued stay in the trainin5
institution be inadvisable* he shall be returned to
211
the committin5 court for the pronouncement of
>ud5ment.
:hen the youthful ofender has reached the
a5e of twenty-one while in commitment* the court
shall determine whether to dismiss the case in
accordance with the e3tent precedin5 article or to
pronounce the >ud5ment conviction. In the latter
case* the convicted ofender may apply for
probation under the provisions of Presidential
Cecree <umbered <ine Aundred and Si3ty-Ji5ht.
In any case covered by this article* the youthful
ofender shall be credited in the service of his
sentence with the full time spent in actual
commitment and detention efected under the
provisions of this /hapter.1
R( :;1B
C(ILD ABUSE LAW
C(ILD PROSTITUTION AND
OT(ER SE*UAL ABUSE
/hildren* whether male or female* who for money*
proft* or any other consideration or due to the
coercion or inNuence of any adult* syndicate or
5roup* indul5e in se3ual intercourse or lascivious
conduct* are deemed to be children e3ploited in
prostitution and other se3ual abuse.
6he penalty of reclusion temporal in its medium
period to reclusion perpetua shall be imposed upon
the followin5G
212
(a. 6hose who en5a5e in or promote* facilitate or
induce child prostitution which include* but are not
limited to* the followin5G
($. Actin5 as a procurer of a child prostitute!
(%. Inducin5 a person to be a client of a child
prostitute by means of written or oral
advertisements or other similar means!
(=. 6a7in5 advanta5e of inNuence or relationship to
procure a child as prostitute!
(8. 6hreatenin5 or usin5 violence towards a child
to en5a5e him as a prostitute! or
(&. "ivin5 monetary consideration 5oods or other
pecuniary beneft to a child with intent to en5a5e
such child in prostitution.
(b. 6hose who commit the act of se3ual
intercourse of lascivious conduct with a child
e3ploited in prostitution or sub>ect to other se3ual
abuse! Provided* 6hat when the victims is under
twelve ($%. years of a5e* the perpetrators shall be
prosecuted under Article ==&* para5raph =* for rape
and Article ==) of Act <o. =-$&* as amended* the
#evised Penal /ode* for rape or lascivious conduct*
as the case may beG Provided* 6hat the penalty for
lascivious conduct when the victim is under twelve
($%. years of a5e shall reclusion temporal in its
medium period! and
(c. 6hose who derive proft or advanta5e
therefrom* whether as mana5er or owner of the
establishment where the prostitution ta7es place*
or of the sauna* disco* bar* resort* place of
entertainment or establishment servin5 as a cover
or which en5a5es in prostitution in addition to the
activity for which the license has been issued to
said establishment.
ATTEMPT TO COMMIT
213
C(ILD PROSTITUTION
6here is an attempt to commit child
prostitution under Section &* para5raph (a. hereof
when any person who* not bein5 a relative of a
child* is found alone with the said child inside the
room or cubicle of a house* an inn* hotel* motel*
pension house* apartelle or other similar
establishments* vessel* vehicle or any other hidden
or secluded area under circumstances which would
lead a reasonable person to believe that the child
is about to be e3ploited in prostitution and other
se3ual abuse.
6here is also an attempt to commit child
prostitution* under para5raph (b. of Section &
hereof when any person is receivin5 services from
a child in a sauna parlor or bath* massa5e clinic*
health club and other similar establishments. A
penalty lower by two (%. de5rees than that
prescribed for the consummated felony under
Section & hereof shall be imposed upon the
principals of the attempt to commit the crime of
child prostitution under this Act* or* in the proper
case* under the #evised Penal /ode.
C(ILD TRA))ICIING
Any person who shall en5a5e in tradin5 and
dealin5 with children includin5* but not limited to*
the act of buyin5 and sellin5 of a child for money*
or for any other consideration* or barter* shall
sufer the penalty of reclusion temporal to
reclusion perpetua. 6he penalty shall be imposed in
its ma3imum period when the victim under twelve
($%. years of a5e.
214
ATTEMPT TO COMMIT C(ILD TRA))ICIING
6here is an attempt to commit child traFc7in5
under Section 9 of this ActG
(a. :hen a child travels alone to a forei5n country
without valid reason therefor and without clearance
issued by the Cepartment of Social :elfare and
Cevelopment or written permit or >ustifcation from
the child4s parents or le5al 5uardian!
(b. :hen a person* a5ency* establishment or child-
carin5 institution recruits women or couples to bear
a children for the purpose of child traFc7in5! or
(c. :hen doctor* hospital or clinic oFcial or
employee* nurse* midwife* local civil re5istrar or
any other person simulates birth for the purpose of
child traFc7in5!
(d. :hen a person en5a5es in the act of fndin5
children amon5 low-income families* hospitals*
clinics* nurseries* day-care centers* or other child-
durin5 institutions who can be ofered for the
purpose of child traFc7in5.
A penalty lower two (%. de5rees than that
prescribed for the consummated felony under
Section 9 hereof shall be imposed upon the
principals of the attempt to commit child traFc7in5
under this Act.
OBSCENE PUBLICATIONS AND INDECENT
S(OWS
Any person who shall hire* employ* use*
persuade* induce or coerce a child to perform in
obscene e3hibitions and indecent shows* whether
215
live or in video* or model in obscene publications or
porno5raphic materials or to sell or distribute the
said materials shall sufer the penalty of prision
mayor in its medium period.
If the child used as a performer* sub>ect or
sellerHdistributor is below twelve ($%. years of a5e*
the penalty shall be imposed in its ma3imum
period.
Any ascendant* 5uardian* or person entrusted
in any capacity with the care of a child who shall
cause andHor allow such child to be employed or to
participate in an obscene play* scene* act* movie or
show or in any other acts covered by this section
shall sufer the penalty of prision mayor in its
medium period.
OT(ER ACTS O) NEGLECT! ABUSE! CRUELT-
OR E*PLOITATION AND OT(ER CONDITIONS
PREJUDICIAL TO T(E C(ILDQS DE,ELOPMENT
(a. Any person who shall commit any other
acts of child abuse* cruelty or e3ploitation or to be
responsible for other conditions pre>udicial to the
child4s development includin5 those covered by
Article &' of Presidential Cecree <o. )(=* as
amended* but not covered by the #evised Penal
/ode* as amended* shall sufer the penalty of
prision mayor in its minimum period.
(b. Any person who shall 7eep or have in his
company a minor* twelve ($%. years or under or
who in ten ($(. years or more his >unior in any
public or private place* hotel* motel* beer >oint*
discotheue* cabaret* pension house* sauna or
massa5e parlor* beach andHor other tourist resort
or similar places shall sufer the penalty of prision
mayor in its ma3imum period and a fne of not less
216
than ;ifty thousand pesos (P&(*(((.G Provided* 6hat
this provision shall not apply to any person who is
related within the fourth de5ree of consan5uinity or
aFnity or any bond reco5niDed by law* local
custom and tradition or acts in the performance of
a social* moral or le5al duty.
(c. Any person who shall induce* deliver or
ofer a minor to any one prohibited by this Act to
7eep or have in his company a minor as provided in
the precedin5 para5raph shall sufer the penalty of
prision mayor in its medium period and a fne of
not less than ;orty thousand pesos (P8(*(((.!
Provided* however* 6hat should the perpetrator be
an ascendant* stepparent or 5uardian of the minor*
the penalty to be imposed shall be prision mayor in
its ma3imum period* a fne of not less than ;ifty
thousand pesos (P&(*(((.* and the loss of parental
authority over the minor.
(d. Any person* owner* mana5er or one
entrusted with the operation of may public or
private place of accommodation* whether for
occupancy* food* drin7 or otherwise* includin5
residential places* who allows any person to ta7e
alon5 with him to such place or places any minor
herein described shall be imposed a penalty of
prision mayor in its medium period and a fne of
not less than ;ifty thousand pesos (P&(*(((.* and
the loss of the license to operate such a place or
establishment.
(e. Any person who shall use* coerce* force or
intimidate a street child or any other child to G
($. Be5 or use be55in5 as a means of livin5!
(%. Act as conduit or middlemen in dru5 traFc7in5 or
pushin5! or
217
(=. /onduct any ille5al activities* shall sufer the
penalty of prision correccional in its medium period
to reclusion perpetua.
;or purposes of this Act* the penalty for the
commission of acts punishable under Articles %8-*
%8'* %)%* para5raph %* and %)=* para5raph $ of Act
<o. =-$&* as amended* the #evised Penal /ode* for
the crimes of murder* homicide* other intentional
mutilation* and serious physical in>uries*
respectively* shall be reclusion perpetua when the
victim is under twelve ($%. years of a5e. 6he
penalty for the commission of acts punishable
under Article ==9* =='* =8( and =8$ of Act <o.
=-$&* as amended* the #evised Penal /ode* for the
crimes of ualifed seduction* acts of lasciviousness
with the consent of the ofended party* corruption
of minors* and white slave trade* respectively* shall
be one de5ree hi5her than that%$-imposed by law
when the victim is under twelve ($%. years a5e.
6he victim of the acts committed under this
section shall be entrusted to the care of the
department of Social :elfare and Cevelopment.
C(ILDREN AS 1ONES O) PEACE
/hildren are hereby declared as Qones of
Peace. It shall be the responsibility of the State and
all other sectors concerned to resolve armed
conNicts in order to promote the 5oal of children as
Dones of peace. 6o attain this ob>ective* the
followin5 policies shall be observed.
(a. /hildren shall not be the ob>ect of attac7
and shall be entitled to special respect. 6hey shall
be protected from any form of threat* assault*
torture or other cruel* inhumane or de5radin5
treatment!
218
(b. /hildren shall not be recruited to become
members of the Armed ;orces of the Philippines of
its civilian units or other armed 5roups* nor be
allowed to ta7e part in the f5htin5* or used as
5uides* couriers* or spies!
(c. Celivery of basic social services such as
education* primary health and emer5ency relief
services shall be 7ept unhampered!
(d. 6he safety and protection of those who
provide services includin5 those involved in fact-
fndin5 missions from both 5overnment and non-
5overnment institutions shall be ensured. 6hey
shall not be sub>ected to undue harassment in the
performance of their wor7!
(e. Public infrastructure such as schools*
hospitals and rural health units shall not be utiliDed
for military purposes such as command posts*
barrac7s* detachments* and supply depots! and
(f. All appropriate steps shall be ta7en to
facilitate the reunion of families temporarily
separated due to armed conNict.
RIG(TS O) C(ILDREN ARRESTED )OR
REASONS RELATED TO
ARMED CON)LICT
Any child who has been arrested for reasons
related to armed conNict* either as combatant*
courier* 5uide or spy is entitled to the followin5
units!
(a. Separate detention from adults e3cept where
families are accommodated as family units!
(b. Immediate free le5al assistance!
219
(c. Immediate notice of such arrest to the parents
or 5uardians of the child! and
(d. #elease of the child on reco5niDance within
twenty-four (%8. hours to the custody of the
Cepartment of Social :elfare and Cevelopment or
any responsible member of the community as
determined by the court.
If after hearin5 the evidence in the proper
proceedin5s the court should fnd that the
aforesaid child committed the acts char5ed a5ainst
him* the court shall determine the imposable
penalty* includin5 any civil liability char5eable
a5ainst him. Aowever* instead of pronouncin5
>ud5ment of conviction* the court shall suspend all
further proceedin5s and shall commit such child to
the custody or care of the Cepartment of Social
:elfare and Cevelopment or to any trainin5
institution operated by the "overnment* or duly-
licensed a5encies or any other responsible person*
until he has had reached ei5hteen ($-. years of
a5e or* for a shorter period as the court may deem
proper* after considerin5 the reports and
recommendations of the Cepartment of Social
:elfare and Cevelopment or the a5ency or
responsible individual under whose care he has
been committed.
6he aforesaid child shall sub>ect to visitation
and supervision Cevelopment or any duly-licensed
a5ency such other oFcer as the court may
desi5nate sub>ect to such conditions as it may
prescribe.
6he aforesaid child whose sentence is suspended
can appeal from the order of the court in the same
manner as appeals in criminal cases.

CON)IDENTIALIT-
220
At the instance of the ofended party* his name
may be withheld from the public until the court
acuires >urisdiction 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 broadcastin5* producer and
director of the flm in case of the movie industry* to
cause undue and sensationaliDed publicity of any
case of violation of this Act which results in the
moral de5radation and suferin5 of the ofended
party.
PEDOP(ILIA IS NOT INSANIT-
:hen accused-appellant was committed to the
<ational /enter for ?ental Aealth* he was not
dia5nosed as insane but was suferin5 from
pedop%ilia. 6hus* there is no doubt in our mind
that he was sane durin5 his two-year confnement
in the center* pedop%ilia bein5 dissimilar to
insanity.
#A 9)&-
EMPLO-MENT O) C(ILDREN
/hildren below ffteen ($&. years of a5e shall not
be employed e3ceptG
$. :hen a child wor7s directly under the sole
responsibility of his parents or le5al 5uardian and
where only members of the employer4s family are
employedG Provided* however* 6hat his
employment neither endan5ers his life* safety*
health and morals* nor impairs his normal
development! Provided* further* 6hat the parent or
221
le5al 5uardian shall provide the said minor child
with the prescribed primary andHor secondary
education! or
%. :here a child4s employment or
participation in public entertainment or information
throu5h cinema* theater* radio or television is
essentialG Provided* 6he employment contract is
concluded by the child4s parents or le5al 5uardian*
with the e3press a5reement of the child concerned*
if possible* and the approval of the Cepartment of
Labor and JmploymentG and Provided* 6hat the
followin5 reuirements in all instances are strictly
complied withG
(a. 6he employer shall ensure the protection*
health* safety* morals and normal development of
the child!
(b. 6he employer shall institute measures to
prevent the child4s e3ploitation or discrimination
ta7in5 into account the system and level of
remuneration* and the duration and arran5ement
of wor7in5 time! and
(c. 6he employer shall formulate and implement*
sub>ect to the approval and supervision of
competent authorities* a continuin5 pro5ram for
trainin5 and s7ills acuisition of the reuirements.
In the above e3ceptional cases where any such
child may be employed* the employer shall frst
secure* before en5a5in5 such child* a wor7 permit
from the Cepartment of Labor and Jmployment
which shall ensure observance of the child.
6he Cepartment of Labor and Jmployment
shall promul5ate rules and re5ulations necessary
for the efective implementation of this Section.1
222
I) MINOR DO NOT APPL- )OR SUSPENSION O)
SENTENCE IT IS
DEEMED WAI,ED. T(E COURT CANNOT MOTU
PROPIO GI,E (IM T(E BENE)ITS O) ART. $52
6he record* unfortunately for accused-appellant
Buena* does not show that he fled with the trial
court an application for suspension of sentence so
as to put into operation the benevolent provisions
of Presidential Cecree <o. )(=. 6he /ourt*
therefore* has no other choice but to deny him this
privile5e.
DISC(ARGE+ REPORT AND RECOMMENDATION
O) T(E DEPARTMENT O) SOCIAL WEL)ARE!
SUBJECT TO JUDICIAL RE,IEW
It is not the responsibility of this /ourt to order
the release of accused #ic7y "alit without the
beneft of a review of the recommendation of the
Cepartment of Social :elfare by the trial court. Art
$') of PC )(= providesG 1Art. $'). Cismissal of
the case. 0 If it is shown to the satisfaction of the
court that the youthful ofender whose sentence
has been suspended* has behaved properly and
has shown his capability to be a useful member of
the community* even before reachin5 the a5e of
ma>ority* upon recommendation of the Cepartment
of Social :elfare* it shall dismiss the case and
order his fnal dischar5e.1 It is therefore clear that
in cases where the CS:C recommends the
dischar5e of a youthful ofender* it is the trial court
before whom the report and recommendation is
sub>ect to >udicial review. #ecommendation alone is
not suFcient to warrant the release of a youthful
ofender. In reviewin5 the CS:C4s
223
recommendation* the trial >ud5e must not base his
>ud5ment on mere conclusions but should see7 out
concrete* material and relevant facts to confrm
that the youthful ofender has indeed been
reformed and is ready to re-enter society as a
productive and law-abidin5 citiDen. /aution*
however* is 5iven to the trial court. 6o be5in with*
the youthful ofender is not to be tried inew for the
same act for which he was char5ed. 6he inPuiry is
not a /riminaL prosecution but is rathe# limited to
the determination of the ofender4s%%8proper
education and rehabilitation durin5 his
commitment in the 6rainin5 /enter and his moral
and social ftness to re->oin the community. (Pp. I.
"alit! "# '98=%* =H$H'8.
SUSPENSION O) SENTENCE NOT APPLICABLE
I) PENALT- IS RECLUSION PERPETUA!
LI)E IMPRISONMENT OR DEAT(
As aforesaid* however* accused #ic7y "alit and
#auel 6a5alo5 did not appeal from the >ud5ment
of the trial court. <either did the People uestion
the suspension of their sentence. 6he benefts of
suspension of sentence are not available where the
youthful ofender has been convicted of an ofense
punishable by life imprisonment or death. 6he last
para5raph of section % of Presidential Cecree <o.
$%$(* which amended certain provisions of P.C.
)(=* providesG
16he benefts of this article shall not apply to a
youthful ofender who has once en>oyed
suspension of sentence under its provisions or to
224
one who is convicted of an ofense punishable by
death or life imprisonment or to one who is
convicted for an ofense by the ?ilitary 6ribunals.1
(Par. 8* Sec. %* P.C. <o. $$9'* as amended by P.C.
<o. $%$(! emphasis supplied.
(Pp. v. "alit* supra..
-OUT()UL O))ENDER! TO BE CRIMINALL-
LIABLE! ACCUSED! A $K -EAR OLD! MUST ACT
WIT( DISCERNMENT
6here is a further obstacle that stands in the
way of Jstorue4s conviction. :hile it has been
proven that he was only thirteen years old at the
time of the incident* there are no alle5ations in
both informations that Jstorue had acted with
discernment. And even if we are to consider the
alle5ations that he had committed the imputed
acts 1with intent to 7ill1 as suFcient compLiance 0
As we have in the past 0 he would still not be held
liable as no proof was ofered durin5 trial that he
had so acted with discernment. Accordin5ly* even if
he was indeed a co-conspirator or an accessory* he
would still be e3empt from criminal liability.
(Pp. I. /ordo\a! "# -==9=-98* 9H&H'=.
E,ER- ACCUSED IS PRESUMED TO BE SANE AT
T(E TIME O) COMMISSION O) T(E CRIME
6he law presumes all acts to be voluntary* and
that it is improper 6o presume that acts were done
u<consciously. 6he uant2m of eviCence reuired
to overthrow the presumption of sanity is proof
beyond reasonable doubt. Since insanity is in the
nature of a confession and avoidance* it mus6 be
225
proven beyond reasonaBle doubt. ?oreover* an
accused is presumed to have been sane at the
time of the commission of the crime in the absence
of p@sitive evidence to show that he had lost his
reason or was demented pri@r to or durin5 the
Perpetration of the crime.
(Pp. v. /ordova* supra..
)AILURE O) DE)ENSE TO ASI )OR
SUSPENSION O) ARRAIGNMENT
NEGATES INSANIT-
Appellant Jduardo /ordova did not even as7
for the suspension of his arrai5nment on the
5round that he was suferin5 from insanity.
Para5raph (a.* Section $%* #ule $$) of the #evised
#ules of /ourt provides that the arrai5nment of an
accused who appears to be suferin5 from an
unsound mental condition which efectively renders
him unable to fully understand the char5e a5ainst
him and to plead intelli5ently thereto* shall be
suspended. In the case at bar* Jduardo /ordova
even too7 the witness stand to testify.
(Pp. I. /ordova* supra..
C(ILD J -OUT( WEL)ARE CODE!
NOT APPLICABLE TO DEAT( OR
RECLUSION PERPETUA SENTENCE
6he /hild and Kouth :elfare /ode does not
apply to those convicted of ofenses punishable by
death* or reclusion perpetua (Presidential Cecree
<o. )(=* as amended by Presidential Cecree <.
)(=* as amended by Presidential Cecree <os. $$9'
and $%$(.. 6he fact is Bolioc is now twenty-three
years old. Ae is not entitled to a suspended
sentence. Ae is entitled to a two-de5ree reduction
of the penalty (Art. )-* #P/..
226
(Pp. I. ?endeD! "# L-8-$=$! &H=(H-=.
SUSPENSION O) SENTENCE+ CANNOT
BE A,AILED O) W(ERE O))ENDER IS
ALREAD- O,ER 2$ -EARS OLD AT T(E
TIME22AO) PROMULGATION O) (IS
SENTENCE
It is true that Ienancio Iillanueva was a
youthful ofendeD as defned by Art. $' because he
was under %$ years%%9o; A"e when he co?mitteC
the o;fense on ;ebruary %%* $'98. Aowever* when
he was sentenced on +uLy =(* $'9&* he was over %$
years old and under the terms of Art. $'% (as well
as Art. $'9. he was no lon5er entitled to
suspension of sentence.
(Iillanueva v. /;I! "# L-8&9'-* $%H$&H-%.
W(EN PRESIDENTIAL DECREE NO. 63K
MA- BE GI,EN RETROACTI,E E))ECT
:here P.C. )(= is more favorable to the
accused in that the sentence a5ainst them may he
suspended* said Cecree may be 5iven retroactive
efect* not only with the end in view of 5ivin5 force
and efect to the laudable policies for which the
P.C. otherwise 7nown as the /hild and Kouth
:elfare /ode was promul5ated* hut also in the
li5ht of the provisions of Article %% of the #evised
Penal /ode.
(People v. "arcia! "# L-8&%-(--$* )H$$H-$.
PRESIDENTIAL DECREE NO. 63K+
ALTERNATI,E COURSES O) ACTION
O) T(E COURT W(EN -OUT()UL
O))ENDER IS RETURNED A)TER
227
REAC(ING T(E AGE O) MAJORIT-
6he trial court has two alternative courses of
action with respect to a youthful ofender whose
sentence it had suspended and who is returned to
the court upon his reachin5 the a5e of ma>ority.
6hese areG ($. to dismiss the case and order the
fnal dischar5e%%-of said ofender! or (%. to
pr@nounce the >ud5ment of conviction. In%%-Plain
and si?pLe lan5ua5e* It is either dismIssal or
sJ<tence.
(Pp. I. "arcia! supra..
CI,IL LIABILIT- O) -OUT()UL
O))ENDER! DE)INED
6he civil liability for dama5es referred to is
apparently that obli5ation c#eated by or arIsin5
from the crime* otherwise 7nown as ex delicto the
imposition of which is mandated by%%-Articles $((*
$(8(=.* $(9 and =8&($. of the #evised Penal /ode*
(People vs. Pe]a* L-=)8=8* Cecember %(* $'99* -(
S/#A &-'* &''. and is based upon a fndin5 of the
5uilt of the accused. (Pp. I. "arcia* supra..
228
REPUBLIC ACT NO. &%&%
BT#e A""e77 De=i"e RegulaionC
An act re5ulatin5 the issuance and use of
access devices* prohibitin5 fraudulent acts
committed relative thereto* providin5 penalties and
for other purposes.
6he recent advances in modern technolo5y
have led to the e3tensive use of certain devices in
commercial transactions* promptin5 the State to
re5ulate the same. hence* on ;ebruary =* $''-*
/on5ress enacted #epublic Act <umber -8-8*
otherwise 7nown as +%e (ccess Devices Re#ulation
(ct of 1<<D.
6ermed as 1access devices1 by #A <o. -8-8*
any card* plate* code* account number* electronic
serial number* personal identifcation number* or
other telecommunication service* euipment* or
instrumental identifer* or other means of account
access that can be used to obtain money* 5ood*
services or any other thin5 of value or to initiate
transfer of funds (other than transfer ori5inated
solely by paper instrument. is now sub>ect to
re5ulation. 6he issuance and use of access devices
are ou5ht to re5ulate in order to protect the ri5hts
and defne the liabilities of parties in commercial
transactions involvin5 them.
Jssentially* the law imposes duties both to the
access device issuer and holder* and penaliDe
certain acts deemed unlawful for bein5 detrimental
to either the issuer or holder* or both.
6he law mandates an access device issuer* or
1card issuer*1 to disclose either in writin5 or orally
in any application or solicitation to open a credit
card account the followin5G $. annual percenta5e
229
rate! %. annual and other fees! =. and balance
calculation method! 8. cash advance fee! and &..
over the limit fee.
?oreover* the computation used in order to
arrive at such char5es and fees reuired* to the
e3tent practicable* to be e3plained in detail and a
clear illustration of the manner by which it is made
to apply is also necessary.
<onetheless* there are certain e3ceptions for
the above reuirement of disclosure not to apply.
6his is when application or solicitation is made
throu5h telephone* provided that the issuer does
not impose any annual fee* and fee in connection
with telephone solicitation unless the customer
si5nifes acceptance by usin5 the card* and that a
clear disclosure of the information enumerated in
the precedin5 para5raph is made in writin5 within
thirty (=(. after the consumer reuests for the
card* but in no event later than the date of the
delivery of the card* and that the consumer is not
obli5ated to accept the card or account and the
consumer will not be obli5ated to pay any fees or
char5es disclosed unless the consumer accepts the
card or account by usin5 the card.
;ailure on the part of the issuer to fulfll the
above reuirements will result in the suspension or
cancellation of its authority to issue credit cards*
after due notice and hearin5* by the Ban7o Sentral
n5 Pilipinas* the Securities and J3chan5e
/ommission and such other 5overnment a5encies.
In sum therefore* the above omission is made
punishable if the followin5 elements occur. @ne*
there is an application or solicitation. Second* such
application or solicitation should include the
information reuired by law. and third* failure on
the part of the issuer to disclose such information.
230
In one case (Jrmitano v. "# <o. $%9%8)* April
%$* $'''.* the Supreme /ourt had the occasion to
rule on the validity of contracts involvin5 credit
cards. 6he credit cards holder contended that the
credit card company should be blamed for the
char5es the same bein5 unwarranted by the
contract. As stipulated* once a lost card has been
reported* purchases made thereafter should not
accrue on the part of the holder.
6he /ourt said notwithstandin5 the fact that
the contract of the parties is a contract of adhesion
the same is valid. Aowever* if the same should
include terms diFcult to interpret as to hide the
true intent to the detriment of the holder* holdin5 it
void reuires no hesitation. 6hus* contracts which
provide for ambi5uous terms of payment*
imposition of char5es and fees may be held void
invo7in5 the principle of the contract of adhesion.
/learly* in this case decided in $'''* the /ourt
was concerned about an access device issuer4s
vulnerability to abuse the provisions of the
contract. It is uite surprisin5* however* that the
/ourt did not ma7e reference to #A <o. -8-8 to
thin7 that it was already in efect when the
resolution was promul5ated.
<onetheless* in American J3press International
/o.* Inc. vs. IA/ ("# <@. 9(9))* <ovember '* $'--.
Supreme /ourt turned down the ar5ument of
private respondent 5rounded on the adhesion
principle sayin5 indeed* in a contract of adhesion
the ma7er of the contract has all the advanta5es*
however* the one to whom it is ofered has the
absolute prero5ative to accept or deny the same.
@n the other hand* an access device holder
may be penaliDed when he or she fraudulently
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applied for such device. An access device
fraudulently applied for means any access device
that was applied for or issued on account of the
use of falsifed document* false information*
fctitious identities and addresses* or any form of
false pretense or misrepresentation. 6hus* the use*
traFc7in5 in* possession* and inducin5* enticin5 or
in any manner allowin5 one to use access device
fraudulently applied for are considered unlawful.
6he element of fraud is indispensable for this
provision of #A -8-8 to apply. It is a condition sine
ua non before one may be char5ed with the
defned ofense.
6hus* the law provides for presumptions of
Intent to defraud on the basis of mere possession*
control or custody ofG a. an access device without
lawful authority! b. a counterfeit access device!
any device ma7in5 or alterin5 euipment! c. an
access device or medium on which an access
device is written not in the ordinary course of the
possessor4s business! or d. any 5enuine access
device* not in the name of the possessor.
A card holder who abandons or surreptitiously
leaves the place of employment* business or
residence stated in his application for credit card*
without informin5 the credit card company of the
place where he could actually be found* if at the
time of such abandonment or surreptitious leavin5*
the outstandin5 and unpaid balance is past due for
at least ninety ('(. days and is more than ten
thousand pesos (P$(*(((.((.* shall be prima facie
presumed to have used his credit card with intent
to defraud.
At frst 5lance* the above presumptions* when
applied in real cases* may sufer from
232
constitutional infrmities. 6he constitution provides
that a person shall not be held to answer to a
criminal ofense without due process of law. it may
be ar5ued that such presumptions are rebuttable
ones. Aowever* the dan5er lies in the shiftin5 of
the burden of proof from the prosecution to the
defense.
6he law provides for si3teen ($). prohibited
acts which refer to the production* use* possession
of or traFc7in5 in unauthoriDed or counterfeit
access devices. It also includes acts deemed
fraudulent that increase the amount involved in
commercial transactions usin5 access devices.
@btainin5 money or anythin5 of value throu5h the
use of an access device with intent to defraud or
5ain* and Neein5 thereafter.
In the fnal analysis* the law basically see7s to
address the issue of fraud in the issuance and use
of access devices* especially credit cards. ;raud
may be committed by the issuer by ma7in5 false or
va5ue information in the application or solicitation
to open credit card accounts. 6he applicant or
holder* on the other hand* fraudulently
misrepresents himself by 5ivin5 wron5 identity*
false profession or employment* or bloated income.
6a7e the case for instance of /itiban7 v.
"atchalian ("# <o. $$$%%%* +anuary $-* $''&.
which shows how credit card applicants throu5h
false representation were able to amass in simple
terms P9'(*(((.(( from petitioner.
In this case* two employees of the Asian-Pacifc
Broadcastin5 /o*. Inc. (AB/I. applied for nineteen
($'( credit cards with /itiban7 usin5 diferent
names other than their real names. 6he /itiban7
approved the applications and the credit cards
were delivered to them for use. Aowever* this case
233
involves an ille5al dismissal case where a /itiban7
employee was found 5uilty of 5ross ne5li5ence for
efectin5 the delivery of the credit cards. Aer
dismissal was aFrmed in this case.
Insofar as access device issuers are concerned*
Jermitano v. /.A.* may be a case in point. 6he
credit card holder lost his credit card which he
immediately reported to the card issuer. 6he
contract stipulated that in case of lost* the same
should be reported immediately* otherwise
purchases made shall be char5ed to the holder. In
this case* despite the prompt reportin5 of the
holder* the issuer still char5ed the purchases
a5ainst the former. 6he /ourt in this case held the
issuer in breach of the contract.
6he penalties provided for by #A -8-8 are
imprisonment and fne. Imprisonment is from si3
(). years to ten ($(. years and fne ran5es from ten
thousand pesos ($(*(((.((. or twice the value of
the ofense* whichever is hi5her.
6he penalties are increased in case the
ofender has a similar previous conviction* meanin5
if he was previously found violatin5 #A -8-8. In
which case* the accused shall sufer imprisonment
of not less than twelve ($%. years and not more
than twenty (%(. years.
6he two other sta5es of felony* as defned by
the #evised Penal /ode is also made punishable.
6hus* attempted and frustrated are meted out with
the penalties of imprisonment and fne albeit only
in fractions of the above penalties.
#.A. -8-8 may seem to favor the issuer. A
credit card company may only be meted out the
penalty of cancellation or suspension* which may
be considered as mere administrative sanctions. In
234
fact* it is not the courts which impose such
sanctions but administrative a5encies such as the
Ban57o Sentral and the Securities and J3chan5e
/ommission.
@n the other hand* a holder or mere possessor
of a counterfeit fraudulently applied for access
device may be convicted and be made to sufer
imprisonment and fne.
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