Special Penal Laws Notes 1u5a9

SPL NOTES

MALA IN SE VS. MALA PROHIBITA

Mala in se

Mala prohibita

Wrong from its veryWrong because it is nature, such as theft,prohibited by statute, rape, homicide, etc such as illegal possession of firearms

So serious in theirViolations of mere effects on society asrules of convenience to call for almostdesigned to secure a unanimous more orderly condemnation of itsregulation of the affairs of society Good faith is a validGood faith is not a defense; unless thedefense crime is the result of culpa Intent is an element

Criminal intent is immaterial; the only inquiry is: “has the law been violated?”; criminal intent not necessary where the acts are prohibited for reasons of public policy, as in illegal possession of firearms

Term refers generallyTerm refers generally to felonies defined andto acts made criminal penalized by the RPC by special laws

There are crimes in the RPC which were originally defined and penalized by special laws. Among them are possession of opium, malversation, brigandage and libel. The degree ofThe act gives rise to a accomplishment of thecrime only when it is crime is taken intoconsummated in punishing the offender

Complied and Transcribed by STEPHANIE NARVAEZ

Mala in se

Mala prohibita

Mitigating andMitigating aggravating aggravating circumstances arecircumstances taken into ingenerally not imposing the penalty into

and are taken

When there is moreDegree of participation than one offender, theis generally not taken degree of participationinto . All who of each in theparticipated in the act commission of theare punished to the crime is taken intosame extent Penalty is computedThe penalty imposed on the basis ofon the offenders are whether he is athe same whether they principal offender, orare merely merely an accompliceaccomplices or or accessory accessories

WHEN THE ACTS ARE INHERENTLY IMMORAL, THEY ARE MALA IN SE, EVEN IF PUNISHED UNDER SPECIAL LAW. People vs. Sunico, et al (C.A., 50 o.g. 5880) Facts: The accused were election inspectors and poll clerks whose duty among others was to transfer the names of excess voters in other precincts to the list of a newly created precinct. Several voters were omitted in the list. Because their names were not in the list, some of them were not allowed to vote. The accused were prosecuted for violation of Secs. 101 and 103 of the Revised Election Code. The accused claimed that they made the omission in good faith. The trial court seemed to believe that notwithstanding the fact that the accused committed in good faith the serious offense charged, the latter are criminally responsible therefor, because such offense is malum prohibitum, and, consequently, the act constituting the same need not be committed with malice or criminal intent to be punishable. Held: The acts of the accused cannot be merely mala prohibita - they are mala per se . 1

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The omission or failure to include a voter’s name in the registry list of voters is not only wrong because it is prohibited; it is wrong per se because it disenfranchises a voter and violates one of his fundamental rights. Hence, for such act to be punishable, it must be shown that it has been committed with malice. There is no clear showing in the instant case that the accused intentionally, willfully and maliciously omitted or failed to include in the registry list of voters the names of those voters. They cannot be punished criminally.

*

the Revised Election Code, as far as its penal provisions are concerned, is a special law, it being not a part of the RPC or its amendments. ACT 3326 - AN ACT TO ESTABLISH PERIODS OF PRESCRIPTION FOR VIOLATIONS PENALIZED BY SPECIAL ACTS AND MUNICIPAL ORDINANCES AND TO PROVIDE WHEN PRESCRIPTION SHALL BEGIN TO RUN Section 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules:

(a)

after a year for offenses punished only by a fine or by imprisonment for not more than one month, or both;

(b)

after four years for those punished by imprisonment for more than one month, but less than two years;

(c)

after eight years for those punished by imprisonment for two years or more, but less than six years; and

(d)

after twelve years for any other offense punished by imprisonment for six years or more, except the crime of treason, which shall prescribe after twenty years. Provided, however, That all offenses against any law or part of law istered by the Bureau of Internal Revenue shall prescribe after five years. Violations penalized by municipal ordinances shall prescribe after two months. (As amended by Act No. 3585 and by Act No. 3763, approved November 23, 1930.) Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of Complied and Transcribed by STEPHANIE NARVAEZ

judicial proceeding for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. Sec. 3. For the purposes of this Act, special acts shall be acts defining and penalizing violations of the law not included in the Penal Code. Sec. 4. This Act shall take effect on its approval. Approved: December 4, 1926 Panaguiton Jr vs Department of Justice G.R. No. 167571 November 25, 2008 Facts: Based from the facts culled from the records, in 1992, Rodrigo Cawili borrowed various sums of money amounting to P1,979,459.00 from petitioner. On 8 January 1993, Cawili and his business associate, Ramon C. Tongson, tly issued in favor of petitioner three (3) checks in payment of the said loans. Significantly, all three (3) checks bore the signatures of both Cawili and Tongson. Upon presentment for payment on 18 March 1993, the checks were dishonored, either for insufficiency of funds or by the closure of the . Petitioner made formal demands to pay the amounts of the checks upon Cawili on 23 May 1995 and upon Tongson on 26 June 1995, but to no avail. On 24 August 1995, petitioner filed a complaint against Cawili and Tongson for violating Batas Pambansa Bilang 22 (B.P. Blg. 22) before the Quezon City Prosecutor's Office. During the preliminary investigation, only Tongson appeared and filed his counteraffidavit. However, Tongson claimed that he had been unjustly included as partyrespondent in the case since petitioner had lent money to Cawili in the latter's personal capacity. Tongson averred that he was not Cawili's business associate; in fact, he himself had filed several criminal cases against Cawili for violation of B.P. Blg. 22. Tongson denied that he had issued the bounced checks and pointed out that his signatures on the said checks had been falsified.

2

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To counter these allegations, petitioner presented several documents showing Tongson's signatures, which were purportedly the same as those appearing on the checks. He also showed a copy of an affidavit of adverse claim wherein Tongson himself had claimed to be Cawili's business associate. In a resolution dated 6 December 1995, City Prosecutor III Eliodoro V. Lara found probable cause only against Cawili and dismissed the charges against Tongson. Petitioner filed a partial appeal before the Department of Justice (DOJ) even while the case against Cawili was filed before the proper court. In a letter-resolution dated 11 July 1997, after finding that it was possible for Tongson to co-sign the bounced checks and that he had deliberately altered his signature in the pleadings submitted during the preliminary investigation, Chief State Prosecutor Jovencito R. Zuño directed the City Prosecutor of Quezon City to conduct a reinvestigation of the case against Tongson and to refer the questioned signatures to the National Bureau of Investigation (NBI). Tongson moved for the reconsideration of the resolution, but his motion was denied for lack of merit. On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (A Sampaga) dismissed the complaint against Tongson without referring the matter to the NBI per the Chief State Prosecutor's resolution. In her resolution, A Sampaga held that the case had already prescribed pursuant to Act No. 3326, as amended, which provides that violations penalized by B.P. Blg. 22 shall prescribe after four (4) years. Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel A.J. Teehankee, dismissed the same, stating that the offense had already prescribed pursuant to Act No. 3326. Petitioner filed a motion for reconsideration of the DOJ resolution. On 3 April 2003, the DOJ, this time through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in his favor and declared that the offense had not prescribed and that the filing of the complaint with the prosecutor's office interrupted the running of the prescriptive period citing Ingco v. Sandiganbayan. However, in a resolution dated 9 August 2004, the DOJ, presumably acting on a Complied and Transcribed by STEPHANIE NARVAEZ

motion for reconsideration filed by Tongson, ruled that the subject offense had already prescribed and ordered "the withdrawal of the three (3) informations for violation of B.P. Blg. 22" against Tongson. In justifying its sudden turnabout, the DOJ explained that Act No. 3326 applies to violations of special acts that do not provide for a prescriptive period for the offenses thereunder. Since B.P. Blg. 22, as a special act, does not provide for the prescription of the offense it defines and punishes, Act No. 3326 applies to it, and not Art. 90 of the Revised Penal Code which governs the prescription of offenses penalized thereunder. Petitioner thus filed a petition for certiorari before the Court of Appeals assailing the 9 August 2004 resolution of the DOJ. The petition was dismissed by the Court of Appeals in view of petitioner's failure to attach a proper verification and certification of non-forum shopping. In the instant petition, petitioner claims that the Court of Appeals committed grave error in dismissing his petition on technical grounds and in ruling that the petition before it was patently without merit and the questions are too unsubstantial to require consideration. The DOJ, in its comment, states that the Court of Appeals did not err in dismissing the petition for non-compliance with the Rules of Court. It also reiterates that the filing of a complaint with the Office of the City Prosecutor of Quezon City does not interrupt the running of the prescriptive period for violation of B.P. Blg. 22. It argues that under B.P. Blg. 22, a special law which does not provide for its own prescriptive period, offenses prescribe in four (4) years in accordance with Act No. 3326. Issue: Whether there is prescriptive period upon violating B.P. Blg. 22 per Act No. 3326 and not Art. 90 of the RPC, on the institution of judicial proceedings for investigation and punishment? Held: It must be pointed out that when Act No. 3326 was ed on 4 December 1926, preliminary investigation of criminal offenses was conducted by justices of the peace, thus, the phraseology in the law, "institution of judicial 3

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proceedings for its investigation and punishment," and the prevailing rule at the time was that once a complaint is filed with the justice of the peace for preliminary investigation, the prescription of the offense is halted. Although, Tongson went through the proper channels, within the prescribed periods. However, from the time petitioner filed his complaint-affidavit with the Office of the City Prosecutor (24 August 1995) up to the time the DOJ issued the assailed resolution, an aggregate period of nine (9) years had elapsed. Clearly, the delay was beyond petitioner's control. After all, he had already initiated the active prosecution of the case as early as 24 August 1995, only to suffer setbacks because of the DOJ's flip-flopping resolutions and its misapplication of Act No. 3326. Aggrieved parties, especially those who do not sleep on their rights and actively pursue their causes, should not be allowed to suffer unnecessarily further simply because of circumstances beyond their control, like the accused's delaying tactics or the delay and inefficiency of the investigating agencies. The court rules and so hold that the offense has not yet prescribed. Petitioner’s filing of his complaint-affidavit before the Office of the City Prosecutor on 24 August 1995 signified the commencement of the proceedings for the prosecution of the accused and thus effectively interrupted the prescriptive period for the offenses they had been charged under B.P. Blg. 22. Moreover, since there is a definite finding of probable cause, with the debunking of the claim of prescription there is no longer any impediment to the filing of the information against petitioner. WHEREFORE, the petition is GRANTED. The resolutions of the Court of Appeals dated 29 October 2004 and 21 March 2005 are REVERSED and SET ASIDE. The resolution of the Department of Justice dated 9 August 2004 is also ANNULLED and SET ASIDE. The Department of Justice is ORDERED to REFILE the information against the petitioner. No costs. P.D. NO. 1866, as amended by R.A. NO. 8294, otherwise known as AN ACT AMENDING THE PROVISIONS OF Complied and Transcribed by STEPHANIE NARVAEZ

PRESIDENTIAL DECREE NO. 1866, AS AMENDED, ENTITLED “CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF, AND FOR RELEVANT PURPOSES” CHANGES MADE BY R.A. NO. 8294 on P.D. NO. 1866: The new law made the following changes:

1.

The use of unlicensed firearm to commit homicide or murder is now an aggravating circumstance hence only one crime is committed. I.e., homicide or murder and therefore only one information shall be filed.

2.

Violation of Section 3 in furtherance of or incident to, or in connection with the crime of rebellion, insurrection, sedition or attempted coup d’etat, shall be absorbed as an element of the crime of rebellion or insurrection, sedition or attempted coup, thus such use has no effect on the penalty.

3.

The penalty for mere possession of unlicensed firearm shall be based on whether the firearm is low-powered or high-powered. High-powered firearms are those with bores bigger than .38 cal. And 9 mm and those with lesser bores but considered as powerful, such as a .357 cal. And .22 center-fire magnum, and firearms with firing capability of full automatic or by a burst of two or three.

4.

“Unlicensed firearm” shall include:

a. Firearms with expired license; or b. Unauthorized use of licensed firearm in the commission of the crime.

5.

Simple illegal possession of firearms can only be committed if no other crime was committed with such firearm by the possessor. Unlicensed firearm no longer simply means a firearm without a license duly issued by lawful authority. The scope of the term has been expanded in Section 5 of R.A. 8294 to include unauthorized use of a weapon which 4

SPL NOTES

has been duly licensed in the name of its owner/possessor, thus may still aggravate the resultant crime. In the case at bar, although appellants may have been issued their respective licenses to possess firearms, their carrying of such weapons outside their residences and their unauthorized use thereof in the killing of Bonifacio may be appreciated as a special aggravating circumstance in imposing the proper penalty for murder (People v. Castillo). Only one offense should be punished, viz: either homicide or murder, and the use of the unlicensed firearm should only be considered as an aggravating circumstance. Being a favorable statute, this provision may be given retroactive application. Considering that accused in fact was convicted for parricide, it follows that he should be acquitted in the case for illegal possession of firearm (People v. Nepomuceno, G.R. No. 130800, June 29, 1999) (NOTE: although the law specified murder or homicide, the SC applied the same to parricide. By parity of reasoning, it appears that the provision should as well apply to infanticide)

P.D. 1866, which codified the laws on illegal possession of firearms, was amended on June 6, 1997 by R.A no. 8294. Aside from lowering the penalty for said crime, RA 8294 also provided that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as a special aggravating circumstance. This amendment has two implications:

1)

the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense, but merely as a special aggravating circumstance;

2)

As only a single crime (homicide or murder with the aggravating circumstance of illegal possession of firearm) is committed under the law, only one penalty shall be imposed on the accused (People vs. Castillo. G.R. Ons. 131592-93, February 15, 2000).

*

Murder and homicide, as defined and penalized under the RPC as crimes against persons, are mala in se because malice or dolo is a necessary ingredient therefor.

* “UNLICENSED FIREARM” shall include:

(a) (b)

firearms with expired license; or

Unauthorized use of licensed firearm in the commission of the crime. In a case, the accused committed homicide and frustrated homicide with the use of unlicensed firearm but was charged for illegal possession of firearm under an information separate from the charges for homicide and frustrated homicide which were raffled to different branches. The cases were tried separately because they were not consolidated. Thus, the accused can be convicted for simple illegal possession of firearm because the evidence as to the homicide was neither presented nor adopted in the trial court trying the illegal possession case (People vs. Nunez, G.R. No. 112092, March 1, 2001). In other words, for the use of unlicensed firearm to be merely an aggravating circumstance, only one information should be filed and the trial should be t for both the homicide/murder and the illegal possession. If two informations were filed and tried separately, the accused can be convicted for both. Complied and Transcribed by STEPHANIE NARVAEZ

Illegal possession of firearm is defined and punished by a special penal law, PD No. 1866. It is a malum prohibitum which the lawmaker so condemned not only because of its nature but also because of the larger policy consideration of containing or reducing, if not eliminating, the upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives. If intent to commit the crime were required, enforcement of the decree and its policy or purpose would be difficult to achieve. Hence there is conceded wisdom in punishing illegal possession of firearm without taking into the criminal intent of possessor. All that is needed is intent to perpetrate the act prohibited by law, coupled by animus possidendi. However, it must be clearly understood that this animus possidendi is without regard to any other criminal or felonious intent which an accused may have harbored in possessing the firearm (People v. Quijada, G.R. Nos. 115008-09, July 24, 1996). In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: 5

SPL NOTES

1. 2.

firearm, explosive or ammunition for possession by itself is not prohibited by law. In the case of an explosive, a permit or license to possess is usually granted to mining corporations, military personnel and other legitimate s. As the prosecution failed to discharge its burden of proving that appellant was not authorized to possess the grenade seized from his house, his acquittal for illegal possession of explosive is inevitable (People vs. Cortez, 334 SCRA 334).

The existence of the subject firearm; and The fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same. The latter is a negative fact, which constitutes an essential ingredient of the offense of illegal possession, and it is the duty of the prosecution not only to allege it but also to prove it beyond reasonable doubt (People vs. Tiozon, GR 89823). The testimony of a representative of, or a certification from the PNP-FEU that offender was not a licensee of the said firearm would suffice for the prosecution to prove beyond reasonable donut the second element of the crime of illegal possession (People vs. Salayao, gr. No. 119220). The absence of the testimony or certification is fatal to the prosecution’s case and renders the conviction erroneous (Mallari vs. CA).

*

the essence of the crime is the lack of license or permit to carry or possess firearm, ammunition or explosive. Possession by itself is not prohibited by law.

*

Even if accused cannot explain why he possessed such firearm or explosive, since the burden is with the prosecution to prove the guilt of the accused and not vice versa, acquittal is still in order under the system of criminal justice in this jurisdiction. To hold otherwise is speculative, i.e., the court would be speculating that the accused is not authorized to possess firearm, whereas what is required in conviction is proof beyond reasonable doubt. The philosophy behind this is the oft-quoted principle that courts would rather free ten guilty persons than convict and send to the dungeon one innocent individual. Hence, the rule is that all doubts must be construed in favor of the accused.

*

To consider the firearm used in a homicide as illegally possessed and thus aggravating, the fact that the accused who used the gun did not have the corresponding license or permit to carry it outside his residence, must be established beyond reasonable doubt by the prosecution. Although the accused himself itted that he had no license for the gun recovered from him, his ission will not relieve the prosecution of its duty to establish beyond reasonable doubt the lack of license or permit to possess the gun. The ission is extrajudicial and thus insufficient to prove beyond doubt the commission of the crime. Hence, the accused may only be held liable for simple homicide (People vs. Castillo).

*

it is really doubtful that paltik can be licensed because it has no serial number, it is homemade, hence, the maker will not issue an official receipt for its sale which is indeed illegal sale.

*

The essence of the crime is primarily the lack of license or permit to carry or possess the Complied and Transcribed by STEPHANIE NARVAEZ

KINDS OF POSSESSION The unvarying rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual possession, but also constructive possession or the subjection of the thing to one’s control and management (Gonzales vs. CA, GR no. 95523, August 18, 1997). PD 1866, which was ed to curb criminality affecting public order and safety punishes, inter alia, both actual and physical possession and constructive possession of firearms, ammunition and explosives without authority or license therefor. Ownership is thus not an essential element. In the case of constructive possession, it refers to the subjection of the articles in question to one’s control and management. Once the evidence indubitably point to possession without the requisite authority or license, coupled with animus possidendi or intent to possess on the part of the accused, conviction for violation of the said law must follow. 6

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EFFECTIVITY OF THE LAW

•

• •

In parricide, the application of RA 8294 would not be beneficial to the accused, as it would increase the penalty for parricide from reclusion perpetual to death. Hence, the new law will NOT BE GIVEN RETROACTIVE APPLICATION, as otherwise it would acquire the character of an ex post facto law (People v. Macoy, GR 126253, August 16, 2000).

•

The crime was committed before July 6, 1997, when RA 8294 took effect. This law is advantageous to the accused as it spares him from a separate conviction for the crime of illegal possession of firearm. Hence said law should be APPLIED RETROACTIVELY (People vs. Lazaro, GR 112090, October 26, 1999). Being favorable to the accused, this provision may be given retroactive effect pursuant to Article 22 of the RPC, he not being a habitual criminal (People vs. Bergante, GR Nos. 120369-70, February 27, 1998). APPLICABILITY OF INDETERMINATE SENTENCE LAW The amendatory law has both beneficial and prejudicial provisions thus its applicability shall be either prospective or retroactive depending upon the effect on the offender.

*

In accordance with the doctrine regarding special laws, People vs. Simon said that although PD 1866 is a special law, penalties therein were taken from the RPC hence the rules in said Code for graduating by degrees or determining the proper period should be applied.

*

All pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crime expressly indicated in RA 8294 is involved (murder or homicide pursuant to Macoy, parricide); rebellion, insurrection, sedition or attempted coup d’teat) (People vs. Lazaro). POSSIBLE CRIMINAL LIABILITIES INVOLVING UNLICENSED FIREARMS: The use of unlicensed forearms carries the following liabilities: Complied and Transcribed by STEPHANIE NARVAEZ

1.

Mere possession of unlicensed firearm simple illegal possession of firearm.

2.

Unjustified killing of another - one crime of homicide or murder (or parricide) with the aggravating circumstance of use of unlicensed firearm, unless the informations for the homicide or murder and the illegal possession were filed separately and separate trials were held, in which case, the accused can be convicted for both crimes.

3.

Rebellion, insurrection, sedition or attempted coup d’etat - use of unlicensed firearm is absorbed as an element. There is no effect on the penalty for the rebellion, etc.

4.

Any other crimes committed such as alarms and scandals - only for that other crime and the use of unlicensed firearm is absolved, i.e., no liability for such use and neither does it serve as an aggravating circumstance. PEOPLE VS. LADJAALAM, G.R. NOS. 136149-51, September 19, 2000 The court expounded on the fourth situation (above). Duly proved were the two elements of the crime of illegal possession of firearms. Undoubtedly, the established fact that appellant had fired an M-14 rifle upon the approaching police officers clearly showed the existence of the firearm or weapon and his possession thereof. Sufficing to satisfy the second element was prosecution’s Certification stating that he had not been given authority to carry any outside his residence. Further, it should be pointed out that his possession and use of an M-14 rifle were obviously unauthorized because this weapon could not be licensed in favor or, or carried by, a private individual. The trial court was also correct in convicting appellant of direct assault with multiple counts of attempted homicide. It found that the act of the accused of firing an M-14 rifle at the policemen who were about to enter his house to serve a search warrant constituted such complex crime. If an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the “other crime” is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide 7

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was committed in this case, appellant can no longer be held liable for illegal possession of firearms, neither can it serve as an aggravating circumstance. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of the statute’s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide or murder. Since the crime committed was not murder or homicide, illegal possession of firearms cannot be deemed an aggravating circumstance. There is no justification for limiting the proviso in the second paragraph to murder and homicide. The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that “no other crime was committed by the person arrested.” If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should the courts. The ruling effectively exonerates appellant of illegal possession of an M-14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While the penalty for illegal possession of M-14 rifle is prison mayor, for direct assault it is only prison correctional. Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable by arresto menor. This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is not subject to judicial review. Any perception that the result reached here appears unwise should be addressed to Congress. Indeed the Court has no discretion to give statutes a new meaning detached from the manifest intendment and language of the legislature. Its task is constitutionally confined only to apply the law/jurisprudence to the facts. PEOPLE VS. MOLINA, 292 SCRA 742 (1998) The court held that the use of an unlicensed weapon in the commission of Complied and Transcribed by STEPHANIE NARVAEZ

murder or homicide should now be considered simply as an aggravating circumstance and no longer a separate offense. Therein, separate informations for murder, frustrated murder and illegal possessions were filed, but the case eventually consolidated and tly tried and decided. The Molina ruling however is NOT APPLICABLE where the cases filed were all separately tried. Hence, the evidence as to the homicide and frustrated homicide cases were neither adopted nor presented before the trial court trying the illegal possession case. For this reason, there is a dearth of evidence to the finding of homicide and.or frustrated homicide in the illegal possession case. Accordingly, conviction should not only be for simple possession of firearms (People vs. Nunez, 2001).

PADILLA VS. CA, GR NO 121917, March 12. 1997 Padilla contents that he could not be convicted of violating PD 1866 because he is an appointed civilian agent authorized to possess and carry the subject firearms and ammunition as evidenced by a Mission Order (MO) and Memorandum Receipt (MR) duly issued by the PNP deputy commander of Task Force Aguila, Lianga, Surge del Sur. The contention lacks merit. In crimes involving illegal possession of firearms, two requisites must be established, viz:

(1) (2)

the existence of the subject firearm; and

The fact that the accused who owned or possessed the firearm does not have the corresponding license of permit to possess. The first element is beyond dispute as the subject firearms and ammunitions were seized from Padilla’s possession via a valid warrantless search, identified and offered in evidence during trial. As to the second element, the prosecution convincingly proved the same. Indeed, Padilla’s purported MO and MR are inferior in the face of the more formidable evidence for the prosecution as the MO and MR were afterthoughts contrived and issued under suspicious circumstances. Padilla failed to produce and present the MO and MR if they were really issued and existing before his apprehension. His alternative excuses that the subject firearms 8

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were intended for theatrical purposes, or that they were owned by the Presidential Security Group, or that his MO and MR were left at home, further compound their irregularity. As to be reasonably expected, an accused claiming innocence would grab the earliest opportunity to present the MO and MR in question and save himself from the long and agonizing public trial and spare him from proffering inconsistent excuses. The authenticity and validity of the MO and MR, moreover, were ably controverted. Police Supt. Direness denied under oath his signature on the dorsal side of the MO and declared further that he did not authorize anyone to sign in his behalf. His surname thereon was glaringly misspelled as “Durembes”. In addition, only Unit Commanders and Chief of Offices have the authority to issue MO and MR under the guidelines on the Issuance of MOs, MRs and PCFORs. The PNP supt. Who issued Padilla’s MO and MR is neither a Unit Commander nor the Chief of Police, but merely a deputy commander. Having emanated from an unauthorized source, the MO and MR are infirm and lacking in force and effect. Besides, the MO covers “Recom 1-12 Baguio City” areas outside the issuer’s area of responsibility needing prior approval “by next higher Headquarters” which is absent in this case. The MR is also uned by a certification as required by the March 5, 1988 Memorandum of the Secretary of Defense. OTHER OFFENDERS OF THE LAW

1.

Any person who shall unlawfully manufacture, deal in, acquire, dispose or possess:

a. Any

low-powered firearm, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition

private firm, company, corporation or entity, who shall willfully or knowingly allow:

a. Any

of the firearms owned by such entities to be used by any person found guilty of no. 1 above; or

b. The

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

3.

Any person who shall carry any licensed firearm outside his residence without legal authority therefor.

4.

Any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose, or possess hand grenade, rifle grenade, and other explosives or other incendiary device capable of producing destructive effect on contiguous objects for causing injury or death to any person;

5.

The owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity who shall willfully or knowingly allow any of the explosives owned by such entities to be used by any person found guilty of no. 4 above. PRESUMPTIONS IN THE LAW

1.

Presumption of illegal manufacture of firearms or ammunition by mere possession of any machinery, tool or instrument used directly in the manufacture of firearms or ammunition.

2.

Presumption of unlawful manufacture of explosives by mere possession of any machinery, tool or instrument directly used in the manufacture of explosives by any person whose business or employment does not lawfully deal with the manufacture of explosives.

b. Any

high powered firearm and lesser calibered firearms but considered powerful such as rimfire handgun, .380 or .32 and other firearms with firing capability of full automatic and by burst of two or three

2.

The owner, president, manager, director or other responsible officer of any public or Complied and Transcribed by STEPHANIE NARVAEZ

9

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C.A. NO. 142 - REGULATING THE USE OF ALIASES as amended by R.A. NO. 6085 Sec. 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name different from the one with which he was ed at birth in the office of the local civil registry, or with which he was baptized for the first time, or, in case of an alien, with which he was ed in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court: Provided, That persons, whose births have not been ed in any local civil registry and who have not been baptized, have one year from the approval of this act within which to their names in the civil registry of their residence. The name shall comprise the patronymic name and one or two surnames. Sec. 2. Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name, and no person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth the person's baptismal and family name and the name recorded in the civil registry, if different, his immigrant's name, if an alien, and his pseudonym, if he has such names other than his original or real name, specifying the reason or reasons for the use of the desired alias. The judicial authority for the use of alias the Christian name and the alien immigrant's name shall be recorded in the proper local civil registry, and no person shall use any name or names other, than his original or real name unless the same is or are duly recorded in the proper local civil registry. Sec. 3. No person having been baptized with a name different from that with which he was ed at birth in the local civil registry, or in case of an alien, ed in the bureau of immigration upon entry, or any person who obtained judicial authority to use an alias, or who uses a pseudonym, shall represent himself in any public or private transaction or shall sign or execute any public or private document without stating or affixing his real or Complied and Transcribed by STEPHANIE NARVAEZ

original name and all names or aliases or pseudonym he is or may have been authorized to use. Sec. 4. Six months from the approval of this act and subject to the provisions of section 1 hereof, all persons who have used any name and/or names and alias or aliases different from those authorized in section one of this act and duly recorded in the local civil registry, shall be prohibited to use such other name or names and/or alias or aliases. Sec. 5. Any violation of this Act shall be punished with imprisonment of from one year to five years and a fine of P5,000 to P10,000. Section 6. This Act shall take effect upon its approval, and all Acts, rules or regulations of laws inconsistent herewith are hereby repealed

CIVIL CODE PROVISIONS: ART. 379. The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped. ART. 380. Except as provided in the preceding article, no person shall use different names and surnames. RATIONALE FOR LAW: The enactment of CA 142 as amended was made primarily to curb the practice among the Chinese of adopting scores of different names and aliases which created tremendous confusion in the field of trade. Such a practice almost bordered on the crime of using fictitious names which for obvious reasons cannot be successfully maintained against the Chinese who rightly or wrongly claim they possessed a thousand and one names. CA No 142 thus penalized the act of using an alias unless the use of such alias was duly authorized by proper juridical proceedings and ed in the civil . RULE OF CONSTRUCTION CA NO 142 is a penal statute. It should be construed strictly against the State and in favor of the accused. The reason for this principle is the tenderness of the law for the 10

SPL NOTES

rights of the individuals and the object is to establish a certain rule by conformity by which mankind would be safe and the discretion of the court limited. One cannot rest easy on the proposition that the petitioner should be convicted on a law that does not clearly penalize the act done by him. There exists a valid presumption that undesirable consequences were never intended by a legislative measure and that a construction for which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences (Ursua vs. CA, April 10, 1996). WHAT IS CONSIDERED AN ALIAS? ALIAS- is a name or names used by a person or intended to be used by him publicly and habitually usually in business transactions in addition to his real name by which he is ed at birth or baptized the first time or substitute name authorized by a competent authority. A man’s NAME is simply the sound or sounds by which he is commonly designated by others and by which they distinguish him but sometimes a man is known by several different names and these are known as aliases. Hence, the use of a fictitious name or a different name belonging to a single person in a single instance without any sign or indication that the intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in CA 142. Oscar Perez is not an alias name of petitioner. There is no showing that he had used or intends to use that name as his second name or in addition to his real name. The use of the name Oscar Perez was an isolated transaction where he is not even required to expose his real identity. For, even if he had identified himself properly at the Office of the Ombudsman, petitioner would still be able to get a copy of the complaint as a matter of right, and the Office of the Ombudsman could not refuse him because the complaint was part of the public record hence open to inspection and examination by anyone under the proper circumstances. (Id).

An individual can make use of a second name without infringing upon the law in the following instances:

1.

As a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice;

2.

When the use of the second name or alias is judicially authorized and duly recorded in the proper local civil registry;

3.

The use of a fictitious name or a different name belonging to a single person in a single instance without any sign or indication that the intends to be known by this name in addition to his real name from that day forth.

INSTANCES WHEN A SECOND NAME CAN BE USED:

Complied and Transcribed by STEPHANIE NARVAEZ

11

SPL NOTES

P.D. NO. 1613 - AMENDING THE LAW ON ARSON WHEREAS, findings of the police and intelligence agencies of the government reveal that fires and other crimes involving destruction in Metro Manila and other urban centers in the country are being perpetrated by criminal syndicates, some of which have foreign connections; WHEREAS, the current law on arson suffers from certain inadequacies that impede the successful enforcement and prosecution of arsonists; WHEREAS, it is imperative that the high incidence of fires and other crimes involving destruction be prevented to protect the national economy and preserve the social, economic and political stability of the country; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order and decree as part of the law of the land, the following: Section 1. Arson. Any person who burns or sets fire to the property of another shall be punished by Prision Mayor. The same penalty shall be imposed when a person sets fire to his own property under circumstances which expose to danger the life or property of another. Section 2. Destructive Arson. The penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua shall be imposed if the property burned is any of the following: 1. Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored. 2. Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services. 3. Any church or place of worship or other building where people usually assemble. 4. Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property 4. Any building where evidence is kept for use in any legislative, judicial, istrative or other official proceedings. 5. Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building. Complied and Transcribed by STEPHANIE NARVAEZ

6. Any building, whether used as a dwelling or not, situated in a populated or congested area. Section 3. Other Cases of Arson. The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following: 1. Any building used as offices of the government or any of its agencies; 2. Any inhabited house or dwelling; 3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel; 4. Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest; 4. Any rice mill, sugar mill, cane mill or mill central; and 5. Any railway or bus station, airport, wharf or warehouse. Section 4. Special Aggravating Circumstances in Arson. The penalty in any case of arson shall be imposed in its maximum period; 1. If committed with intent to gain; 2. If committed for the benefit of another; 3. If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; 4. If committed by a syndicate. The offense is committed by a syndicate if its is planned or carried out by a group of three (3) or more persons. Section 5. Where Death Results from Arson. If by reason of or on the occasion of the arson death results, the penalty of Reclusion Perpetua to death shall be imposed. Section 6. Prima Facie evidence of Arson. Any of the following circumstances shall constitute prima facie evidence of arson: 1. If the fire started simultaneously in more than one part of the building or establishment. 2. If substantial amount of flammable substances or materials are stored within the building note necessary in the business of the offender nor for household us. 3. If gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked therewith or containers thereof, or any mechanical, electrical, chemical, or electronic contrivance designed to start a fire, or ashes or traces of any of the foregoing are found in the ruins or premises of the burned building or property. 4. If the building or property is insured for substantially more than its actual value at the time of the issuance of the policy. 12

SPL NOTES

4. If during the lifetime of the corresponding fire insurance policy more than two fires have occurred in the same or other premises owned or under the control of the offender and/or insured. 5. If shortly before the fire, a substantial portion of the effects insured and stored in a building or property had been withdrawn from the premises except in the ordinary course of business. 6. If a demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the safety of the person or property of the victim. Section 7. Conspiracy to commit Arson. Conspiracy to commit arson shall be punished by Prision Mayor in its minimum period. Section 8. Confiscation of Object of Arson. The building which is the object of arson including the land on which it is situated shall be confiscated and escheated to the State, unless the owner thereof can prove that he has no participation in nor knowledge of such arson despite the exercise of due diligence on his part. Section 9. Repealing Clause. The provisions of Articles 320 to 326-B of the Revised Penal Code and all laws, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Decree are hereby repealed or amended accordingly. Section 10. Effectivity. This Decree shall take effect immediately upon publication thereof at least once in a newspaper of general circulation. Done in the City of Manila, this 7th day of March, in the year of Our Lord, nineteen hundred and seventy-nine. DEFINITION, NATURE AND ELEMENTS ARSON is the destruction of property by means of fire or pyrotechnic materials. In arson, the corpus delicti rule is generally satisfied by proof of the bare occurrence of the fire and of its having been intentionally caused. Even if the whole house has not been completely gutted by the fire, the crime is still consummated arson. It is enough that a portion thereof is shown to have been destroyed (People vs. Gutierrez).

original provision under Art. 323 of the RPC which regarded burning of property less than P25 as malicious mischief was expressly repealed by PD 1613. This will also affect Art. 332 on exemption of certain relatives from criminal liability for the crimes dealt therein are theft, estate and malicious mischief. Therefore, there is no exemption from criminal liability of relatives for arson of property under P25.00.

*

Proof of corpus delicti is indispensable in prosecutions for felonies and offenses. CORPUS DELICTI is the body or substance of the crime. It refers to the fact that a crime has been actually committed. CORPUS DELICTI is the fact of the commission of the crime that may be proved by the testimonies of witnesses. In murder, the fact of death is the corpus delicti. In arson, the corpus delicti rule is generally satisfied by proof of the bare occurrence of the fire and of its having been intentionally caused, and the uncorroborated testimony of a single eyewitness, if credible, may be enough to prove the corpus delicti and to warrant conviction.

*

Under Art. 320 of the Code as well as PD no. 1613, if a person impelled by a single criminal impulse burned several buildings, the crime is not distinct arsons but one crime of destructive arson akin to a continued crime on delito continuado.

ELEMENTS OF ARSON UNDER SECTION 3 OF PD 1613 ARE:

1. 2.

There is intentional burning; and What is intentionally burned is an inhabited house or dwelling (People vs. Agguihao, GR No. 104725, March 10, 1994).

*

As long as fire or pyrotechnic is used to destroy any property it is arson because the Complied and Transcribed by STEPHANIE NARVAEZ

13

Even if offender burned his own property if the burning was made under circumstances which exposed the property or life of another to danger, arson is committed (Section 1, par. 2, PD No. 1613). Even if the owners of properties burned are different. There is only one crime of arson.

SPL NOTES

*

If the information charges accused with “violation of PD 1613” without specifying the particular provision breached, and the information failed to allege whether the burnt house is inhabited or not, and it has not been established that the house is situated in a populated or congested area, he should be deemed to have been charged only with plain arson under Section 1 of the Decree. Kalookan City might be a densely populated part of the metropolis but its entire territory cannot be said to be congested.

AGGRAVATING CIRCUMSTANCES The special aggravating circumstance of spite under section 4(3) of the decree, that the offender have been motivated by spite or hatred towards the owner or occupant of the property, should not be appreciated where it appears to be more of impulse, heat of anger or risen temper rather than real spite or hatred that impelled the accused to give vent to his wounded ego. PD 1613 pronounces as guilty of arson any person who deliberately burns another person’s property, wherever located. The circumstance that the property burned is located in an urban, congested or populated area qualifies the offense and converts it into “destructive arson” punishable under Sec. 2(7) of the law, by reclusion temporal in its max to reclusion perpetual. On the other hand, Sec. 4(4), the circumstance that the perpetrator of the arson is a criminal syndicate serves as a special aggravating circumstance.

Complied and Transcribed by STEPHANIE NARVAEZ

14

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Section 2. This decree shall take effect immediately. DONE in the City of Manila, this 6th day of April, in the year of Our Lord, nineteen hundred and eighty.

P.D. NO. 1689 - INCREASING THE PENALTY FOR CERTAIN FORMS OF SWINDLING OR ESTAFA WHEREAS, there is an upsurge in the commission of swindling and other forms of frauds in rural banks, cooperatives, "samahang nayon (s)", and farmers' associations or corporations/associations operating on funds solicited from the general public; WHEREAS, such defraudation or misappropriation of funds contributed by stockholders or of such rural banks, cooperatives, "samahang nayon(s)", or farmers' associations, or of funds solicited by corporations/associations from the general public, erodes the confidence of the public in the banking and cooperative system, contravenes the public interest, and constitutes economic sabotage that threatens the stability of the nation; WHEREAS, it is imperative that the resurgence of said crimes be checked, or at least minimized, by imposing capital punishment on certain forms of swindling and other frauds involving rural banks, cooperatives, "samahang nayon(s)", farmers' associations or corporations/associations operating on funds solicited from the general public; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby decree and order as follows: Section 1. Any person or persons who shall commit estafa or other forms of swindling as defined in Article 315 and 316 of the Revised Penal Code, as amended, shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of money contributed by stockholders, or of rural banks, cooperative, "samahang nayon(s)", or farmers association, or of funds solicited by corporations/associations from the general public. When not committed by a syndicate as above defined, the penalty imposable shall be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos. Complied and Transcribed by STEPHANIE NARVAEZ

CAPITAL PUNISHMENT ( life imprisonment to death) FOR SYNDICATED ESTAFA; RECLUSION TEMPORAL to PERPETUA if the amount of the fraud exceeds P100,000.00. “In the instant case, a syndicate perpetrated the Ponzi scheme. The evidence shows that at least five persons x x x collaborated, confederated and mutually helped one another in directing the foundation’s activities” (People vs. Balasa, G.R. No. 106357, September 3, 1998). ELEMENTS:

1.

Commission of estafa or other forms of swindling as defined in Article 315 and 316 of the Revised Penal Code, as amended;

2.

by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation;

3.

Which results in defraudation/misappropriation of

a. funds

contribute stockholders of:

by

the



or

i. Rural banks ii. Cooperatives iii. “samahang nayons” or iv. Farmers’ associations; or b. Funds

solicited corporations/associations general public.

from

by the

TWO OTHER ‘INGREDIENTS’ (not really elements of the crime):

1.

Erodes confidence of the public in the banking and cooperative system, contravenes the public interest; and

2.

Constitutes economic sabotage threatens the stability of the nation.

that

“ECONOMIC SABOTAGE; PREAMBLE OF STATUTE: 15

SPL NOTES

The two other “ingredients” added by appellants to constitute the cime of economic sabotage under PD 1689 have been taken from the “whereas” clause or preamble of the law. A preamble is not exactly an essential part of an act as it is an introductory or preparatory clause that explains the reason for the enactment, usually introduced by the word “whereas.” x x x Assuming arguendo that the preamble was part of the statute, appellants’ contention that they should not be held criminally liable because it was not proven that their acts constituted economic sabotage threatening the stability of the nation remains too flimsy for extensive discussion. As the preamble of PD 1689 shows, the act prohibited therein need not necessarily threaten the stability of the nation. It is sufficient that it “contravenes public interest.” Public interest was affected by the solicitation of deposits under a promise of substantial profits, as it was people coming from the lower income brackets who were victimized by the illegal scheme (People vs. Balasa, G.R. No. 106357, September 3, 1998).

return to early investors, thereby inducing more investors to place their money with him in the false hope of realizing this same extravagant rate of return themselves. This was the very same scheme practiced by the Panata Foundation (People vs. Balasa, G.R. No. 106357, September 3, 1998).

“FOUNDATION; FITS IN SECOND CATEGORY” Similarly, the fact that the entity involved was not a rural bank, cooperative, samahang nayon or farmers’ association does not take the case out of the coverage of PD 1689. Its thrid “whereas clause” states that it also applies to other “corporations/associations operating on funds solicited from the general public.” To construe the law otherwise would sanction the proliferation of minor-league schemers who opeate in the countryside. To allow these crimes to go unabated could spell disaster for people from the lower income bracket, the primary target of swindlers (People vs. Balasa, G.R. No. 106357, September 3, 1998). “PONZI SCHEME” - is an investment program that offers impossibly high returns and pays these returns to early investors out of the capital contributed by later investors. Named after Charles Ponzi who promoted the scheme in the 1920’s, the original scheme involved the issuance of bonds which offered 50% interest in 45 days or a 100% profit if held for 90 days. Basically, Ponzi used the money he received from later investors to pay extravagant rates of Complied and Transcribed by STEPHANIE NARVAEZ

16

SPL NOTES

when refusing to pay the same to the holder thereof upon presentment, to cause to be written, printed, or stamped in plain language thereon, or attached thereto, the reason for drawee's dishonor or refusal to pay the same: Provided, That where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal. In all prosecutions under this Act, the introduction in evidence of any unpaid and dishonored check, having the drawee's refusal to pay stamped or written thereon or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reason written, stamped or attached by the drawee on such dishonored check. Not with standing receipt of an order to stop payment, the drawee shall state in the notice that there were no sufficient funds in or credit with such bank for the payment in full of such check, if such be the fact. Section 4. Credit construed. - The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank for the payment of such check. Section 5. Liability under the Revised Penal Code. - Prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code. Section 6. Separability clause. - If any separable provision of this Act be declared unconstitutional, the remaining provisions shall continue to be in force. Section 7. Effectivity. - This Act shall take effect fifteen days after publication in the Official Gazette. Approved: April 3, 1979.

B.P. 22 - AN ACT PENALIZING THE MAKING OR DRAWING AND ISSUANCE OF A CHECK WITHOUT SUFFICIENT FUNDS OR CREDIT AND FOR OTHER PURPOSES and ESTAFA under Art. 315 No. 2(d), RPC Section 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court. The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank. Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act. Section 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice that such check has not been paid by the drawee. Section 3. Duty of drawee; rules of evidence. It shall be the duty of the drawee of any check, Complied and Transcribed by STEPHANIE NARVAEZ

ART. 315 NO. 2(d), RPC: ELEMENTS:

1.

That the offender postdated a check, OR issued a check in payment of an obligation

2.

That such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check.

* 17

The issuance by the offender of the check (whether postdated

SPL NOTES

or not), prior to or simultaneous with the transaction, must be for the purpose of contracting the obligation, otherwise if the check is issued in payment of a preexisting obligation no estafa is committed, only a civil obligation

* *

NOTE: defraudation must be prior to, or simultaneous with, the transaction.

1.

A person makes, draws, or issues a check as payment for or for value.

2.

That the check was dishonored by the bank due to a lack of funds, insufficiency of funds or already closed.

3.

The payee or holder of such check gives a written notice of dishonor and demand for payment.

4.

That the maker, drawer or issuer, after receiving such notice and demand, refuses or fails to pay the value of the check within FIVE BANKING DAYS

If the check was issued by the debtor only for security of the creditor, as in the nature of promissory notes but not to be encashed, no estafa will be involved

*

Good faith is a defense in a charge of estafa by postdating or issuing a check (People v. Villapando)

*

Estafa by issuing a bad check is a continuing offense

*

There is a prima facie evidence of deceit when the drawer fails to pay or make arrangement for payment three days after receiving notice of dishonor

*

NOTE: While the written notice of dishonor and demand is not an element in the violation of BP 22, the failure to give such notice to the maker, drawer or issuer of the bouncing check is FATAL to an action to hold the latter criminally liable.

BOUNCING CHECKS LAW (BP 22) OFFENSES PUNISHED:

The full payment of the amount appearing in the check within FIVE BANKING DAYS from notice of dishonor is a “complete defense” against BP 22. The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude criminal prosecution. Accordingly, procedural due process clearly ens that a notice of dishonor be actually served on the maker, drawer, or issuer of the check. He has a right to demand that the notice of dishonor be actually sent to and received by him to afford him the opportunity to avert prosecution under BP 22 (Lina Lim Lao vs. People, GR No. 119178, June 20, 1997).

A.

Making or Drawing and issuing a check knowing at the time of issue that he does not have sufficient funds. ELEMENTS:

1.

That a person makes or draws and issues any check to apply on or for value

2.

That the person knows that at the time of issue he does not have sufficient funds or credit with the drawee bank for the payment of such check upon its presentment

3.

That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. REQUISITES FOR UNDER BP 22:

CRIMINAL

LIABILITY

Complied and Transcribed by STEPHANIE NARVAEZ

it is not the making, drawing or issuance, nor the dishonor of the check which gives rise to a violation of BP 22, but rather the failure to make good the check within FIVE BANKING DAYS from receipt of the NOTICE OF DISHONOR AND DEMAND FOR PAYMENT.

B.

Failing to keep sufficient funds to cover the full amount of the check. ELEMENTS:

1.

That a person has sufficient funds with the drawee bank when he makes or draws and issues a check

18

SPL NOTES

2.

That he fails to keep sufficient funds or to maintain a credit to cover the full amount if presented within a period of 90 days from the date of appearing thereon

3.

That the check is dishonored by the drawee bank

The istrative circular merely lays down a RULE OF PREFERENCE in the application of the penalties provided for in BP 22. The circular does not delete the penalty of imprisonment, for should the judge decide that imprisonment is the more appropriate penalty, the circular ought not to be a hindrance.

NOTE: the 90 day period stated above is NOT an element of the violation of BP 22 by failing to keep sufficient funds. As such, the maker, drawer or issuer of the check is not discharged from his duty to maintain a sufficient balance in his for a reasonable time even beyond the 90 day period. A “reasonable time” according to current banking practice is 6 months or 180 days, after which the check becomes stale.

* Prosecution

under BP 22 shall be without prejudice toa ny liability for any violation in the RPC.

* The

fine under BP 22 is based on the amount of the check and is without regard to the amount of damage caused.

* The

accused will be liable for the dishonor of the check even if it was issued in payment of a preexisting legal obligation as he issued that check “to apply on .”

Thus, where a check is presented beyond the 90-day period, but within 180 days from the date indicated therein, and it is dishonored due to a failure to maintain a sufficient balance, the maker, drawer or issuer shall still be liable for violation of BP 22 (Wong v. CA, GR No. 117857, February 2, 2001). Gravamen of BP 22 is the issuance of a worthless or bum check. EVIDENCE OF KNOWLEDGE INSUFFICIENT FUNDS:

*

SOME IMPORTANT POINTS/PRINCIPLES TO CONSIDER:

1.

JURISDICTION OVER THE OFFENSE: Estafa and violation of the Bouncing Checks Law are 2 different offenses having different elements and necessarily, for a court to acquire jurisdiction each of the essential ingredients of each crime has to be satisfied. In estafa, deceit and damage are essential elements of the offense. For violation of the Bouncing Checks Law, on the other hand, the elements of deceit and damage are neither essential nor required. Hence, it is incorrect for respondent People to conclude that inasmuch as the RTC of Manila acquired jurisdiction over the estafa case, then it also acquired jurisdiction over the violations of BP 22. The two crimes have to be treated as SEPARATE OFFENSES and therefore, the essential ingredients of each have to be satisfied. (Uy vs. CA, GR No. 119000, July 28, 1997).

2.

RULE 111, Section 1(b) on Prosecution of Civil Action, Rules of Criminal Procedure “The criminal action for violation of BP Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed.

OF

Refusal of drawee bank to pay the check due to insufficiency of funds when presented within 90 days from the date of the check shall be prima facie knowledge of insufficiency of funds, unless the drawer or maker pays the holder the amount due thereon or makes arrangements for the payment thereof by the drawee within five (5) banking days after receipt of notice that the check was dishonored.

UNDER SC ISTRATIVE CIRCULAR 122000, AS CLARIFIED BY A.C. 13-2001: Where the circumstances of both the offense and the offender clearly indicated good faith or a clear mistake of fact without taint of intelligence, the imposition of fine alone should be considered as the more appropriate penalty. Complied and Transcribed by STEPHANIE NARVAEZ

19

SPL NOTES

3.

Prosecution for violations of BP 22 are covered under the REVISED RULES OF SUMMARY PROCEDURE. DEFENSES AGAINST BP 22:

1.

The check was not issued to apply to an or for value but as a guarantee deposit (Magno vs.CA).

2.

The required notice of dishonor had not been given. The drawer should be given notice of dishonor to give him the opportunity to make good the value of the check within 5 banking days. Under the RPC, for purposes of estafa, the notice should be given within 3 days.

3.

The dishonor of the check was not due to the insufficiency of funds.

4.

The check was presented for payment beyond 90 (destroys prima facie presumption) or 180 (stale check) days from maturity thereof.

5.

Valid cause to stop payment such as the right of installment of buyer under the law (PD no. 957 - buyer’s right to suspend payment until such time as the owner or developer had fulfilled its obligations to the buyer).

6.

Complainant was informed by the issuer beforehand that the had been closed. “Petitioner openly disclosed that they no longer had funds in the bank then, knowledge by the complainant that the drawer does not have sufficient funds in the bank at the time the check was issued does not give rise to a case of estafa through bouncing checks (Pacheco vs. CA).

Complied and Transcribed by STEPHANIE NARVAEZ

20

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RA 9262 - AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN, PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENALTIES THEREFORE, AND FOR OTHER PUPOSES (Approved: March 8, 2004) DEFINITION OF (Section 3)

mistress/lover to live in the conjugal home or sleep together in the same room with the ab;

2.

Acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion;

3.

Prostituting the woman or child.

A. Violence

against women and their childre - any act or a series of acts committed by any person against a woman who is his:

1. 2. 3. 4.

C.

Psychological violence - acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to:

Wife; Former wife; or Against a woman with whom the person has or had a sexual or dating relationship; or With whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such act, battery, assault, coercion, harassment or arbitrary deprivation of liberty. * Rustan argues that the one act of sending an offensive picture should not be considered a form of harassment. He claims that such would unduly ruin him personally and set a very dangerous precedent. But Section 3(a) of RA 9262 punishes “any act or series of acts” that constitute/s violence against women. This means that a single act of harassment, which translates into violence, would be enough. The object of the law is to protect women and children. Punishing only violence that is repeatedly committed would license isolated ones (Rustan Ang vs. CA).

1. 2. 3. 4. 5. 6. 7. 8.

Complied and Transcribed by STEPHANIE NARVAEZ

Stalking; Damage to property; Public ridicule or humiliation; Repeated verbal abuse; Mental infidelity; Causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs; or To witness pornography in any form; To witness abusive injury to pets; or

Unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

D.

Economic abuse - acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following:

1.

Withdrawal of financial or preventing the victim from engaging in any legitimate profession, occupation, business or activity except in cases wherein the other spous/partner objects on valid serious and moral grounds as defined in Article 73 of the Family Code;

2.

Deprivation or threat of deprivation of the use of financial resources and the right to use and enjoyment of property owned in common;

Violence - includes, but is not limited to: Rape, sexual harassment, acts of lasciviousness, treating a woman or: Her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim’s body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and

Harassment;

9. 10. 11.

B. Sexual

1.

Intimidation;

3. 4.

Destroying household property; Controlling the victim’s own money or properties or solely controlling the conjugal money or properties. 21

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(d)

Placing the woman or her child in fear of imminent physical harm;

E. Physical

abuse -refers to acts that include bodily or physical harm

(e)

Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child.

F. Dating

Relationship - situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquiantance or ordinary socialization between two individuals in a business or social context is not a dating relationship.

*

An “away-bati” or a fight-and-kiss thing between two lovers is a common occurrence. Their taking place does not mean that the romantic relationship between the two should be deemed broken up during periods of misunderstandings (Rustan Ang vs. CA).

This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct:

(1)

Threatening to deprive or actually depriving the woman or her child of custody to her/his family;

(2)

Depriving or threatening to deprive the woman or her children of financial legally due her or her family, or deliberately providing the woman's children insufficient financial ;

(3)

Depriving or threatening to deprive the woman or her child of a legal right;

(4)

Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own mon4ey or properties, or solely controlling the conjugal or common money, or properties;

G.

Sexual relations - refers to a single sexual act which may or may not result in the bearing of a common child.

H.

Children - refers to those below 18 years of age or older but are incapable of taking care of themselves as defined under RA 7610. Under this Act, it includes the biological children of the victim and other children under her care.

I.

Battered Woman Syndrome - refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.

Acts Punishable (Section 5) The crime of violence against women and their children is committed through any of the following acts:

(f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions;

(g)

Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family;

(a)

Causing physical harm to the woman or her child;

(b)

Threatening to cause the woman or her child physical harm;

(c)

(h)

Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes

Attempting to cause the woman or her child physical harm;

Complied and Transcribed by STEPHANIE NARVAEZ

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substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts:

(1)

Stalking or following the woman or her child in public or private places;

(2)

Peering in the window or lingering outside the residence of the woman or her child;

(3)

Entering or remaining in the dwelling or on the property of the woman or her child against her/his will;

(4)

Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and

(5)

Engaging in any form of harassment or violence;

(i)Causing

mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial or custody of minor children of access to the woman's child/children.

Venue for action (Section 7) The RTC designated as a Family Court shall have original and exclusive jurisdiction over cases of violence against women and their children under this law. In the absence of such court in the place where the offense was committed, the case shall be filed in the RTC where the crime or any of its elements was committed at the option of the compliant. Protection order (Section 8) - an order issued under this act for the purpose of preventing further acts of violence against a woman or her child specified in Section 5 of this Act and granting other necessary relief.

-

The relief granted under a protection order serve the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim's daily life, and facilitating the Complied and Transcribed by STEPHANIE NARVAEZ

opportunity and ability of the victim to independently regain control over her life. - The law helps the woman to “move on” - The provisions of the protection order shall be enforced by law enforcement agencies. - The protection orders that may be issued under this Act are: - the barangay protection order (BPO); - temporary protection order (TPO); and - permanent protection order (PPO)

-

All TPOs and PPOs issued under this Act shall be enforceable anywhere in the Philippines and a violation thereof shall be punishable with a fine ranging from Five Thousand Pesos (P5,000.00) to Fifty Thousand Pesos (P50,000.00) and/or imprisonment of six (6) months (section 12).

- A complaint for a violation of a BPO issued under this Act must be filed directly with any municipal trial court, metropolitan trial court, or municipal circuit trial court that has territorial jurisdiction over the barangay that issued the BPO. Violation of a BPO shall be punishable by imprisonment of thirty (30) days without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed. - A judgement of violation of a BPO ma be appealed according to the Rules of Court. During trial and upon judgment, the trial court may motu proprio issue a protection order as it deems necessary without need of an application.

-

Violation of any provision of a TPO or PPO issued under this Act shall constitute contempt of court punishable under Rule 71 of the Rules of Court, without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed. (section 21) Other reliefs granted through a protection order: (a) Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section; 23

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(b) Prohibition of the respondent from harassing, annoying, telephoning, ing or otherwise communicating with the petitioner, directly or indirectly; (c) Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership of the residence, either temporarily for the purpose of protecting the petitioner, or permanently where no property rights are violated

*

if respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent has gathered his things and escort respondent from the residence; (d) Directing the respondent to stay away from petitioner and designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member; (e) Directing lawful possession and use by petitioner of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to the possession of the automobile and other essential personal effects, or to supervise the petitioner's or respondent's removal of personal belongings; (f) Granting a temporary or permanent custody of a child/children to the petitioner; (g) Directing the respondent to provide to the woman and/or her child if entitled to legal .

*

Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent's employer for the same to be automatically

Complied and Transcribed by STEPHANIE NARVAEZ

remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court; (h) Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply for any license to use or possess a firearm

*

If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate on the offender and take appropriate action on matter; (i) Restitution for actual damages caused by the violence inflicted, including, but not limited to, property damage, medical expenses, childcare expenses and loss of income; (j) Directing the DSWD or any appropriate agency to provide petitioner may need; and (k) Provision of such other forms of relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member, provided petitioner and any designated family or household member consents to such relief. - Any of the reliefs provided under this section shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage. - The issuance of a BPO or the pendency of an application for BPO shall not preclude a petitioner from applying for, or the court from granting a TPO or PPO.

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Who may file petition for protection orders Venue for protection order (section 10) (Section 9): 1. Applications for BPOs - follow the rules on (a) the offended party; venue under Section 409 of the Local (b) parents or guardians of the offended party; Government Code of 1991 and its (c) ascendants, descendants or collateral implementing rules and regulations; relatives within the fourth civil degree of consanguinity or affinity; ♥ SEC. 409, LGC: (d) officers or social workers of the DSWD or social workers of local government units (a) Disputes between persons (LGUs); actually residing in the same (e) police officers, preferably those in charge of barangay shall be brought for women and children's desks; amicable settlement before the (f) Punong Barangay or Barangay Kagawad; lupon of said barangay; (g) lawyer, counselor, therapist or healthcare (b) Those involving actual provider of the petitioner; residents of different barangays (h) At least two (2) concerned responsible within the same city or municipality citizens of the city or municipality where the shall be brought in the barangay violence against women and their children where the respondent or any of the occurred and who has personal knowledge of respondents actually resides, at the the offense committed. election of the complaint;

(c) Under Section 11 (How to file PO): If the applicants is not the victim, the application must be accompanied by an affidavit of the applicant attesting to:

(a)

the circumstances of the abuse suffered by the victim; and

(b)

the circumstances of consent given by the victim for the filling of the application.

When disclosure of the address of the victim will pose danger to her life, it shall be so stated in the application. In such a case, the applicant shall: 1. Attest that the victim is residing in the municipality or city over which court has territorial jurisdiction; and 2. shall provide a mailing address for purpose of service processing.

All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated;

(d)

Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located. Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the same shall be deemed waived. Any legal question which may confront the punong barangay in resolving objections to venue herein referred to may be submitted to the Secretary of Justice, or his duly designated representative, whose ruling thereon shall be binding.

- An application for protection order filed with a 2. Application for a TPO or PPO; Where: court shall be considered an application for GENERAL RULE: TPO and PPO are filed in both a TPO and PPO. the family court at the place of residence of the petitioner. - Barangay officials and court personnel shall EXCEPTION: In the absence of a family court, assist applicants in the preparation of the with the regional trial court, metropolitan trial application. court, municipal trial court, municipal circuit trial court with territorial jurisdiction over the - Law enforcement agents shall also extend place of residence of the petitioner assistance in the application for protection orders in cases brought to their attention. Complied and Transcribed by STEPHANIE NARVAEZ

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KINDS OF PROTECTION ORDERS (sections 14, 15 and 16): 1.Barangay Protection Orders (BPOs): - Refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act. - A Punong Barangay who receives applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application. - If the Punong Barangay is unavailable to act on the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time for the issuance of the BPO. - BPOs shall be effective for fifteen (15) days. - Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay official to effect is personal service. - The parties may be accompanied by a nonlawyer advocate in any proceeding before the Punong Barangay. 2.Temporary Protection Orders (TPOs): - Refers to the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued. - A court may grant in a TPO any, some or all of the reliefs mentioned in this Act and shall be effective for thirty (30) days.

-

The court shall schedule a hearing on the issuance of a PPO prior to or on the date of the expiration of the TPO.

-

The court shall order the immediate personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement agents for the service.

-

The TPO shall include notice of the date of the hearing on the merits of the issuance of a PPO.

3.Permanent Protection Order (PPO): - Refers to protection order issued by the court after notice and hearing.

Complied and Transcribed by STEPHANIE NARVAEZ

- Respondents non-appearance despite proper notice, or his lack of a lawyer, or the non-availability of his lawyer shall NOT be a ground for rescheduling or postponing the hearing on the merits of the issuance of a PPO. - If despite due notice respondent fails to appear - court shall allow ex parte presentation of evidence by the applicant and render judgment on the basis of the evidence presented. The court shall allow the introduction of any history of abusive conduct of a respondent even if the same was not directed against the applicant or the person for whom the applicant is made. - If depsite due notice respondent appears without counsel - court shall appoint a lawyer for the respondent and immediately proceed with the hearing. GENERAL RULE: The court shall, to the extent possible, conduct the hearing on the merits of the issuance of a PPO in one (1) day. EXCEPTION: Where the court is unable to conduct the hearing within one (1) day and the TPO issued is due to expire, the court shall continuously extend or renew the TPO for a period of thirty (30) days at each particular time until final judgment is issued. The extended or renewed TPO may be modified by the court as may be necessary or applicable to address the needs of the applicant. - The court may grant any, some or all of the reliefs specified in Section 8 hereof in a PPO. - A PPO shall be effective until revoked by a court upon application of the person in whose favor the order was issued. The court shall ensure immediate personal service of the PPO on respondent. - The court shall not deny the issuance of protection order on the basis of the lapse of time between the act of violence and the filing of the application. - Regardless of the conviction or acquittal of the respondent, the Court must determine whether or not the PPO shall become final. - Even in a dismissal, a PPO shall be granted as long as there is no clear showing that the 26

SPL NOTES

act from which the order might arise did not exist.

* The issuance of a BPO or the

liable for any criminal, civil or istrative liability resulting therefrom (section 34). 4.

pendency of an application for BPO shall not preclude a petitioner from applying for, or the court from, granting a TPO or PPO.

(a) (b)

application for protection order filed with a court shall be considered an application for both TPO and PPO.

SOME FEATURES OF THE VAWC LAW: 1. Prohibited Defense. – Being under the influence of alcohol, any illicit drug, or any other mind-altering substance shall not be a defense under this Act (section 27). 2.

3.

Custody of children. – The woman victim of violence shall be entitled to the custody and of her child/children. Children below seven (7) years old older but with mental or physical disabilities shall automatically be given to the mother, with right to , unless the court finds compelling reasons to order otherwise. A victim who is suffering from battered woman syndrome shall not be disqualified from having custody of her children. In no case shall custody of minor children be given to the perpetrator of a woman who is suffering from Battered woman syndrome.(section 28) Persons Intervening Exempt from Liability. – In every case of violence against women and their children as herein defined, any person, private individual or police authority or barangay official who, acting in accordance with law, responds or intervenes without using violence or restraint greater than necessary to ensure the safety of the victim, shall not be Complied and Transcribed by STEPHANIE NARVAEZ

an indigent;

or there is an immediate necessity due to imminent danger or threat of danger to act on an application for a protection order, the court shall accept the application without payment of the filing fee and other fees and of transcript of stenographic notes.(section 38)

* An

Prescriptive periods (section 24) Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years.

Exemption from Payment of Docket Fee and Other Expenses. – If the victim is:

5.

Battered Woman Syndrome as a Defense. – Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists (section 26). “Battered Woman” - one who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do, without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman. (People of the Philippines V. Marivic Genosa G.R. No. 135981, 15 January 2004). “Acute battering must precede the killing” *The existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense. Crucial to the BWS defense is the state of mind of the battered woman at the time of the offense— she must 27

SPL NOTES

have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life. X x x Unlawful aggression is the most essential element of self-defense. It presupposes actual, sudden and unexpected attack—or an imminent danger thereof—on the life or safety of a person. In the present case, however, according to the testimony of Marivic herself, there was a sufficient time interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their children’s bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety. X x x The aggression if not continuous, does not warrant self-defense. In the absence of such aggression, there can be no self-defense— complete or incomplete—on the part of the victim. Thus, Marivic’s killing of Ben was not completely justified under the circumstances. (People of the Philippines V. Marivic Genosa G.R. No. 135981, 15 January 2004)

(2) The Acute Battering Incident - Characterized by brutality, destructiveness and sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. - During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. - The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition. - At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly every detail. Her apparent ivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt.

“Cycle of Violence”; three phases: (1) The Tension-building Phase - minor battering occurs, either verbal or physical or other form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. - What actually happens is that she allows herself to be abused in ways that to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish however proves to be double-edged, because her “placatory” and ive behavior legitimizes his belief that he has the right to abuse her in the first place. - However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point,

(3) The Tranquil, Loving (or, at least, nonviolent) Phase - The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her partner will change for the better; and that this “good, gentle and caring man” is the real person whom she loves. - A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of getting her

Complied and Transcribed by STEPHANIE NARVAEZ

the violence “spirals out of control” and leads to an acute battering incident.

28

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back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically.

Complied and Transcribed by STEPHANIE NARVAEZ

29