special penal laws notes

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MALA IN SE VS. MALA PROHIBITA

Mala in se Mala prohibita

Wrong from its very nature, such as theft, rape, homicide, etc

Wrong because it is prohibited by statute, such as illegal posses-sion of firearms

So serious in their ef-fects on society as to call for almost unani-mous condemnation of its members

Violations of mere rules of convenience designed to secure a more orderly regula-tion of the affairs of society

Good faith is a valid defense; unless the crime is the result of culpa

Good faith is not a de-fense

Intent is an element Criminal intent is im-material; the only in-quiry is: “has the law been violated?”; crimi-nal intent not neces-sary where the acts are prohibited for rea-sons of public policy, as in illegal posses-sion of firearms

Term refers generally to felonies defined and penalized by the RPC

Term refers generally to acts made criminal 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 of accom-plishment of the crime is taken into account in punishing the of-fender

The act gives rise to a crime only when it is consummated

Mala in se Mala prohibita

Mitigating and aggra-vating circumstances are taken into account in imposing the penalty

Mitigating and aggra-vating circumstances are generally not taken into account

When there is more than one offender, the degree of participation of each in the commis-sion of the crime is taken into account

Degree of participation is generally not taken into account. All who participated in the act are punished to the same extent

Penalty is computed on the basis of whether he is a princi-pal offender, or merely an accomplice or ac-cessory

The penalty imposed on the offenders are the same whether they are merely ac-complices or acces-sories

WHEN THE ACTS ARE INHERENTLY IM-MORAL, 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. Be-cause 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 ac-cused claimed that they made the omission in good faith.

The trial court seemed to believe that notwithstanding the fact that the accused com-mitted in good faith the serious offense charged, the latter are criminally responsible therefor, because such offense is malum pro-hibitum, 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 . The omission or failure to include a voter’s name in the registry list of voters is not only

Complied and Transcribed by STEPHANIE NARVAEZ 1

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wrong because it is prohibited; it is wrong per se because it disenfranchises a voter and vio-lates 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 spe-cial law, it being not a part of the RPC or its amendments.

ACT 3326 - AN ACT TO ESTABLISH PERI-ODS OF PRESCRIPTION FOR VIOLATIONS PENALIZED BY SPECIAL ACTS AND MU-NICIPAL 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 of-fense 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 administered by the Bureau of Internal Revenue shall prescribe after five years. Violations penal-ized by municipal ordinances shall pre-scribe after two months. (As amended by Act No. 3585 and by Act No. 3763, ap-proved 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 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 viola-tions of the law not included in the Penal Code.Sec. 4. This Act shall take effect on its ap-proval.Approved: December 4, 1926

Panaguiton Jr vs Department of JusticeG.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, jointly 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 account. 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 vio-lating Batas Pambansa Bilang 22 (B.P. Blg. 22) before the Quezon City Prosecutor's Of-fice. During the preliminary investigation, only Tongson appeared and filed his counter-affi-davit. However, Tongson claimed that he had been unjustly included as party-respondent in the case since petitioner had lent money to Cawili in the latter's personal capacity. Tong-son 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 is-sued the bounced checks and pointed out that his signatures on the said checks had been fal-sified.

To counter these allegations, peti-tioner 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 ad-verse 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. Peti-


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tioner filed a partial appeal before the Depart-ment 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 plead-ings submitted during the preliminary investiga-tion, 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 signa-tures to the National Bureau of Investigation (NBI).

Tongson moved for the reconsidera-tion of the resolution, but his motion was de-nied for lack of merit.

On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP Sampaga) dismissed the complaint against Tongson without referring the matter to the NBI per the Chief State Prosecutor's resolution. In her resolution, ACP Sampaga held that the case had already prescribed pursuant to Act No. 3326, as amended, which provides that vi-olations penalized by B.P. Blg. 22 shall pre-scribe after four (4) years. Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel A.J. Tee-hankee, dismissed the same, stating that the offense had already prescribed pursuant to Act No. 3326. Petitioner filed a motion for reconsid-eration 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 Au-gust 2004, the DOJ, presumably acting on a motion for reconsideration filed by Tongson, ruled that the subject offense had already pre-scribed 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 prescrip-tion 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 pre-scription of offenses penalized thereunder.

Petitioner thus filed a petition for cer-tiorari before the Court of Appeals assailing the

9 August 2004 resolution of the DOJ. The peti-tion was dismissed by the Court of Appeals in view of petitioner's failure to attach a proper verification and certification of non-forum shop-ping. In the instant petition, petitioner claims that the Court of Appeals committed grave er-ror 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 vio-lating 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 passed on 4 December 1926, preliminary investigation of criminal offenses was con-ducted by justices of the peace, thus, the phraseology in the law, "institution of judicial proceedings for its investigation and punish-ment," and the prevailing rule at the time was that once a complaint is filed with the justice of the peace for preliminary investigation, the pre-scription of the offense is halted.

Although, Tongson went through the proper channels, within the prescribed periods. How-ever, from the time petitioner filed his com-plaint-affidavit with the Office of the City Prose-cutor (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 prosecu-tion 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


SPL NOTES

suffer unnecessarily further simply because of circumstances beyond their control, like the ac-cused's delaying tactics or the delay and ineffi-ciency of the investigating agencies.

The court rules and so hold that the offense has not yet prescribed. Petitioner’s fil-ing of his complaint-affidavit before the Office of the City Prosecutor on 24 August 1995 sig-nified the commencement of the proceedings for the prosecution of the accused and thus ef-fectively 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 Ap-peals 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 OR-DERED 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 AMEND-ING THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866, AS AMENDED, ENTI-TLED “CODIFYING THE LAWS ON ILLE-

GAL/UNLAWFUL POSSESSION, MANUFAC-TURE, DEALING IN, ACQUISITION OR DIS-

POSITION OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS, AM-MUNITION OR EXPLOSIVES, AND IMPOS-

ING STIFFER PENALTIES FOR CERTAIN VI-OLATIONS THEREOF, AND FOR RELE-

VANT 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 com-mit homicide or murder is now an aggravat-ing 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 insur-rection, 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 posses-sor.

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 in-clude unauthorized use of a weapon which has been duly licensed in the name of its owner/possessor, thus may still aggravate the resul-tant crime. In the case at bar, although appel-lants may have been issued their respective li-censes 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 ag-gravating 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 consid-ered as an aggravating circumstance. Being a favorable statute, this provision may be given retroactive application. Considering that ac-cused in fact was convicted for parricide, it fol-lows that he should be acquitted in the case for illegal possession of firearm (People v. Nepo-muceno, G.R. No. 130800, June 29, 1999) (NOTE: although the law specified murder or homicide, the SC applied the same to parri-cide. By parity of reasoning, it appears that the provision should as well apply to infanticide)

“UNLICENSED FIREARM” shall include:

(a) firearms with expired license; or

(b) Unauthorized use of licensed firearm in the commission of the crime.

In a case, the accused committed homicide and frustrated homicide with the use


SPL NOTES

of unlicensed firearm but was charged for ille-gal possession of firearm under an information separate from the charges for homicide and frustrated homicide which were raffled to differ-ent 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 pos-session case (People vs. Nunez, G.R. No. 112092, March 1, 2001). In other words, for the use of unlicensed firearm to be merely an ag-gravating circumstance, only one information should be filed and the trial should be joint for both the homicide/murder and the illegal pos-session. If two informations were filed and tried separately, the accused can be convicted for both.

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 amend-ment 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 circum-stance;

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 im-posed 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.

* Illegal possession of firearm is de-fined and punished by a special penal law, PD No. 1866. It is a malum prohibitum which the lawmaker so condemned not only be-cause of its nature but also because of the larger policy consideration of containing or re-ducing, 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 with-out taking into account the criminal intent of possessor. All that is needed is intent to per-petrate the act prohibited by law, coupled by animus possidendi. However, it must be clearly understood that this animus possi-dendi 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:

1. The existence of the subject firearm; and

2. The fact that the accused who owned or possessed it does not have the corre-sponding license or permit to possess the same.

The latter is a negative fact, which constitutes an essential ingredient of the of-fense 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 of-fender was not a licensee of the said firearm would suffice for the prosecution to prove be-yond 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 prosecu-tion’s case and renders the conviction erro-neous (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.

* To consider the firearm used in a homicide as illegally possessed and thus ag-gravating, the fact that the accused who used the gun did not have the corresponding li-cense or permit to carry it outside his resi-dence, must be established beyond reason-able doubt by the prosecution. Although the accused himself admitted that he had no li-cense for the gun recovered from him, his ad-mission will not relieve the prosecution of its duty to establish beyond reasonable doubt


SPL NOTES

the lack of license or permit to possess the gun. The admission is extrajudicial and thus insufficient to prove beyond doubt the com-mission 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 li-censed 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 pos-sess the firearm, explosive or ammunition for possession by itself is not prohibited by law. In the case of an explosive, a permit or li-cense to possess is usually granted to mining corporations, military personnel and other le-gitimate users. 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).

* 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 sys-tem 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 rea-sonable 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 indi-vidual. Hence, the rule is that all doubts must be construed in favor of the accused.

KINDS OF POSSESSIONThe unvarying rule is that ownership

is not an essential element of illegal posses-sion of firearms and ammunition. What the law requires is merely possession which includes not only actual possession, but also construc-tive 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 passed 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 con-structive 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 au-thority or license, coupled with animus possi-dendi or intent to possess on the part of the ac-cused, conviction for violation of the said law must follow.

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 RETROAC-TIVE 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 be-ing a habitual criminal (People vs. Bergante, GR Nos. 120369-70, February 27, 1998).

APPLICABILITY OF INDETERMINATE SEN-TENCE LAW

The amendatory law has both benefi-cial and prejudicial provisions thus its applica-bility shall be either prospective or retroactive depending upon the effect on the offender.

* In accordance with the doctrine re-garding 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 ex-pressly indicated in RA 8294 is involved


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(murder or homicide pursuant to Macoy, par-ricide); rebellion, insurrection, sedition or at-tempted coup d’teat) (People vs. Lazaro).

POSSIBLE CRIMINAL LIABILITIES INVOLV-ING UNLICENSED FIREARMS:The use of unlicensed forearms carries the fol-lowing liabilities:

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 sepa-rate trials were held, in which case, the ac-cused can be convicted for both crimes.

3. Rebellion, insurrection, sedition or at-tempted 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 cir-cumstance.

PEOPLE VS. LADJAALAM, G.R. NOS. 136149-51, September 19, 2000

The court expounded on the fourth situation (above). Duly proved were the two el-ements of the crime of illegal possession of firearms. Undoubtedly, the established fact that appellant had fired an M-14 rifle upon the ap-proaching police officers clearly showed the existence of the firearm or weapon and his possession thereof. Sufficing to satisfy the sec-ond 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 unautho-rized because this weapon could not be li-censed in favor or, or carried by, a private indi-vidual.

The trial court was also correct in con-victing 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 sep-arate offense of simple illegal possession of firearms. Hence, if the “other crime” is murder or homicide, illegal possession of firearms be-comes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was commit-ted in this case, appellant can no longer be held liable for illegal possession of firearms, neither can it serve as an aggravating circum-stance.

Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of the statute’s simple lan-guage is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the leg-islative intent to favor the accused. Accord-ingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide or murder. Since the crime commit-ted was not murder or homicide, illegal posses-sion of firearms cannot be deemed an aggra-vating 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 inten-tion 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 dis-tinguish, neither should the courts.

The ruling effectively exonerates ap-pellant of illegal possession of an M-14 rifle, an offense which normally carries a penalty heav-ier 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.


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PEOPLE VS. MOLINA, 292 SCRA 742 (1998)The court held that the use of an unli-

censed weapon in the commission of murder or homicide should now be considered simply as an aggravating circumstance and no longer a separate offense. Therein, separate informa-tions for murder, frustrated murder and illegal possessions were filed, but the case eventually consolidated and jointly 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 rea-son, there is a dearth of evidence to support the finding of homicide and.or frustrated homi-cide in the illegal possession case. Accord-ingly, 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 pos-sess and carry the subject firearms and ammu-nition 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) the existence of the subject firearm; and

(2) 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 ele-ment, 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 alterna-tive excuses that the subject firearms were in-

tended 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 pub-lic trial and spare him from proffering inconsis-tent excuses.

The authenticity and validity of the MO and MR, moreover, were ably contro-verted. 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 “Durem-bes”. 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 em-anated from an unauthorized source, the MO and MR are infirm and lacking in force and ef-fect. 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 unsupported by a certifi-cation as required by the March 5, 1988 Mem-orandum of the Secretary of Defense.

OTHER OFFENDERS OF THE LAW

1. Any person who shall unlawfully man-ufacture, deal in, acquire, dispose or pos-sess:

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

b.Any high powered firearm and lesser calibered firearms but considered pow-erful such as rimfire handgun, .380 or .32 and other firearms with firing ca-pability of full automatic and by burst of two or three

2. The owner, president, manager, di-rector or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly al-low:

a.Any of the firearms owned by such enti-ties to be used by any person found guilty of no. 1 above; or


SPL NOTES

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 li-censed firearm outside his residence with-out legal authority therefor.

4. Any person who shall unlawfully man-ufacture, assemble, deal in, acquire, dis-pose, or possess hand grenade, rifle grenade, and other explosives or other in-cendiary device capable of producing de-structive effect on contiguous objects for causing injury or death to any person;

5. The owner, president, manager, di-rector or other responsible officer of any public or private firm, company, corporation or entity who shall willfully or knowingly al-low 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 per-son whose business or employment does not lawfully deal with the manufacture of ex-plosives.


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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 liter-ary, cinema, television, radio or other entertain-ment purposes and in athletic events where the use of pseudonym is a normally accepted practice, no person shall use any name differ-ent from the one with which he was registered at birth in the office of the local civil registry, or with which he was baptized for the first time, or, in case of an alien, with which he was regis-tered in the bureau of immigration upon entry; or such substitute name as may have been au-thorized by a competent court: Provided, That persons, whose births have not been regis-tered in any local civil registry and who have not been baptized, have one year from the ap-proval of this act within which to register 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 au-thority for a change of name, and no person shall be allowed to secure such judicial author-ity 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 registered at birth in the local civil registry, or in case of an alien, registered in the bureau of im-migration upon entry, or any person who ob-tained 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 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 pun-ished 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 per-sons. 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 prac-tice 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 rea-sons 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 registered in the civil register.

RULE OF CONSTRUCTIONCA 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 rights of the individuals and the object is to es-tablish 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 con-victed on a law that does not clearly penalize the act done by him. There exists a valid pre-sumption that undesirable consequences were never intended by a legislative measure and that a construction for which will avoid all ob-


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jectionable, mischievous, indefensible, wrong-ful, 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 ha-bitually usually in business transactions in ad-dition to his real name by which he is regis-tered at birth or baptized the first time or sub-stitute name authorized by a competent au-thority.

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 dif-ferent names and these are known as aliases. Hence, the use of a fictitious name or a differ-ent name belonging to a single person in a sin-gle instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth 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 sec-ond 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 cir-cumstances. (Id).

INSTANCES WHEN A SECOND NAME CAN BE USED:

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

1. As a pseudonym solely for literary, cinema, television, radio or other entertain-ment purposes and in athletic events where the use of pseudonym is a normally ac-cepted 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 dif-ferent name belonging to a single person in a single instance without any sign or indica-tion that the user intends to be known by

this name in addition to his real name from that day forth.


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P.D. NO. 1613 - AMENDING THE LAW ON ARSON

WHEREAS, findings of the police and intelli-gence 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 syn-dicates, some of which have foreign connec-tions;WHEREAS, the current law on arson suffers from certain inadequacies that impede the suc-cessful enforcement and prosecution of arson-ists;WHEREAS, it is imperative that the high inci-dence of fires and other crimes involving de-struction be prevented to protect the national economy and preserve the social, economic and political stability of the country;NOW, THEREFORE, I, FERDINAND E. MAR-COS, 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 cir-cumstances 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 establish-ment where explosives, inflammable or com-bustible materials are stored.2. Any archive, museum, whether public or pri-vate, or any edifice devoted to culture, educa-tion 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 property4. Any building where evidence is kept for use in any legislative, judicial, administrative 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.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 govern-ment 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 for-est;4. Any rice mill, sugar mill, cane mill or mill central; and5. 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 Per-petua 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 sub-stances 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 mate-rials soaked therewith or containers thereof, or any mechanical, electrical, chemical, or elec-tronic 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 sub-stantially more than its actual value at the time of the issuance of the policy.4. If during the lifetime of the corresponding fire insurance policy more than two fires have oc-curred in the same or other premises owned or under the control of the offender and/or in-sured.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


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premises except in the ordinary course of busi-ness.6. If a demand for money or other valuable consideration was made before the fire in ex-change for the desistance of the offender or for the safety of the person or property of the vic-tim.Section 7. Conspiracy to commit Arson. Con-spiracy 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 confis-cated and escheated to the State, unless the owner thereof can prove that he has no partici-pation 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 re-pealed or amended accordingly.Section 10. Effectivity. This Decree shall take effect immediately upon publication thereof at least once in a newspaper of general circula-tion.Done in the City of Manila, this 7th day of March, in the year of Our Lord, nineteen hun-dred and seventy-nine.

DEFINITION, NATURE AND ELEMENTSARSON is the destruction of property by means of fire or pyrotechnic materials. In ar-son, 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 gut-ted 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).

As long as fire or pyrotechnic is used to destroy any property it is arson because the original provision under Art. 323 of the RPC which regarded burning of property less than P25 as malicious mischief was expressly re-pealed 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 of-fenses. 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 sat-isfied by proof of the bare occurrence of the fire and of its having been inten-tionally caused, and the uncorrobo-rated testimony of a single eyewit-ness, 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 ar-sons but one crime of destructive ar-son akin to a continued crime on delito continuado.

ELEMENTS OF ARSON UNDER SECTION 3 OF PD 1613 ARE:

1. There is intentional burning; and

2. What is intentionally burned is an in-habited house or dwelling (People vs. Ag-guihao, GR No. 104725, March 10, 1994).

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

* If the information charges accused with “violation of PD 1613” without specify-ing 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 popu-lated 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 metrop-olis but its entire territory cannot be said to be congested.

AGGRAVATING CIRCUMSTANCESThe special aggravating circumstance

of spite under section 4(3) of the decree, that the offender have been motivated by spite or


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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 ar-son any person who deliberately burns another person’s property, wherever located. The cir-cumstance that the property burned is located in an urban, congested or populated area qual-ifies the offense and converts it into “destruc-tive arson” punishable under Sec. 2(7) of the law, by reclusion temporal in its max to reclu-sion perpetual. On the other hand, Sec. 4(4), the circumstance that the perpetrator of the ar-son is a criminal syndicate serves as a special aggravating circumstance.


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P.D. NO. 1689 - INCREASING THE PENALTY FOR CERTAIN FORMS OF SWINDLING OR

ESTAFA

WHEREAS, there is an upsurge in the com-mission 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 misappropri-ation of funds contributed by stockholders or members of such rural banks, cooperatives, "samahang nayon(s)", or farmers' associations, or of funds solicited by corporations/associa-tions from the general public, erodes the confi-dence of the public in the banking and cooper-ative system, contravenes the public interest, and constitutes economic sabotage that threat-ens the stability of the nation;WHEREAS, it is imperative that the resurgence of said crimes be checked, or at least mini-mized, by imposing capital punishment on cer-tain forms of swindling and other frauds involv-ing rural banks, cooperatives, "samahang nayon(s)", farmers' associations or corpora-tions/associations operating on funds solicited from the general public;NOW, THEREFORE, I, FERDINAND E. MAR-COS, 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 inten-tion of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the de-fraudation results in the misappropriation of money contributed by stockholders, or mem-bers 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 reclu-sion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos.Section 2. This decree shall take effect imme-diately.DONE in the City of Manila, this 6th day of April, in the year of Our Lord, nineteen hundred and eighty.

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 per-petrated the Ponzi scheme. The evidence shows that at least five persons x x x collabo-rated, confederated and mutually helped one another in directing the foundation’s activities” (People vs. Balasa, G.R. No. 106357, Sep-tember 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, trans-action, enterprise or scheme, and the de-fraudation;

3. Which results in the defraudation/mis-appropriation of

a. funds contribute by members or stock-holders of:

i. Rural banks

ii. Cooperatives

iii. “samahang nayons” or

iv. Farmers’ associations; or

b.Funds solicited by corporations/associ-ations from the general public.

TWO OTHER ‘INGREDIENTS’ (not really ele-ments of the crime):

1. Erodes confidence of the public in the banking and cooperative system, contra-venes the public interest; and

2. Constitutes economic sabotage that threatens the stability of the nation.

“ECONOMIC SABOTAGE; PREAMBLE OF STATUTE:

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 enact-ment, usually introduced by the word “whereas.” x x x

Assuming arguendo that the pream-ble was part of the statute, appellants’ con-


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tention 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 ex-tensive discussion. As the preamble of PD 1689 shows, the act prohibited therein need not necessarily threaten the stability of the na-tion. It is sufficient that it “contravenes public interest.” Public interest was affected by the solicitation of deposits under a promise of sub-stantial 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).

“FOUNDATION; FITS IN SECOND CATE-GORY”

Similarly, the fact that the entity in-volved 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 (Peo-ple 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 capi-tal contributed by later investors. Named after Charles Ponzi who promoted the scheme in the 1920’s, the original scheme involved the is-suance 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 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 Foun-dation (People vs. Balasa, G.R. No. 106357, September 3, 1998).


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B.P. 22 - AN ACT PENALIZING THE MAK-ING 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 account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is sub-sequently 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 pe-riod of ninety (90) days from the date appear-ing 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 insuffi-cient funds. - The making, drawing and is-suance 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 knowl-edge of such insufficiency of funds or credit un-less such maker or drawer pays the holder thereof the amount due thereon, or makes ar-rangements for payment in full by the drawee of such check within (5) banking days after re-ceiving 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, when refusing to pay the same to the holder thereof upon presentment, to cause to be writ-ten, 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 no-tice 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 evi-dence 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 separa-ble provision of this Act be declared unconsti-tutional, the remaining provisions shall con-tinue to be in force.Section 7. Effectivity. - This Act shall take ef-fect fifteen days after publication in the Official Gazette.Approved: April 3, 1979.

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

1. That the offender postdated a check, OR issued a check in payment of an obliga-tion

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.

* The issuance by the offender of the check (whether postdated 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


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is committed, only a civil obli-gation

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

* 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 in-volved

* 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 re-ceiving notice of dishonor

BOUNCING CHECKS LAW (BP 22)OFFENSES PUNISHED:

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 is-sues any check to apply on account 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 present-ment

3. That the check is subsequently dis-honored by the drawee bank for insuffi-ciency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, or-dered the bank to stop payment.

REQUISITES FOR CRIMINAL LIABILITY UN-DER BP 22:

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

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

3. The payee or holder of such check gives a written notice of dishonor and de-mand for payment.

4. That the maker, drawer or issuer, af-ter receiving such notice and demand, re-fuses or fails to pay the value of the check within FIVE BANKING DAYS

* 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 NO-TICE OF DISHONOR AND DE-MAND FOR PAYMENT.

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 FA-TAL to an action to hold the latter criminally li-able.

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 dis-honor necessarily deprives an accused an op-portunity to preclude criminal prosecution. Ac-cordingly, procedural due process clearly en-joins 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 no-tice of dishonor be actually sent to and re-ceived by him to afford him the opportunity to avert prosecution under BP 22 (Lina Lim Lao vs. People, GR No. 119178, June 20, 1997).

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

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

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,


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drawer or issuer of the check is not discharged from his duty to maintain a sufficient balance in his account for a reasonable time even beyond the 90 day period. A “reasonable time” accord-ing to current banking practice is 6 months or 180 days, after which the check becomes stale.

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 worth-less or bum check.

EVIDENCE OF KNOWLEDGE OF INSUFFI-CIENT FUNDS:

* 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 re-ceipt of notice that the check was dishonored.

UNDER SC ADMINISTRATIVE CIRCULAR 12-2000, 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 intelli-gence, the imposition of fine alone should be considered as the more appropriate penalty.

The administrative circular merely lays down a RULE OF PREFERENCE in the application of the penalties provided for in BP 22. The circu-lar does not delete the penalty of imprison-ment, for should the judge decide that impris-onment is the more appropriate penalty, the circular ought not to be a hindrance.

*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 with-

out 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 account.”

SOME IMPORTANT POINTS/PRINCIPLES TO CONSIDER:

1. JURISDICTION OVER THE OF-FENSE:

Estafa and violation of the Bouncing Checks Law are 2 different offenses having dif-ferent elements and necessarily, for a court to acquire jurisdiction each of the essential ingre-dients of each crime has to be satisfied. In estafa, deceit and damage are essential ele-ments of the offense. For violation of the Bouncing Checks Law, on the other hand, the elements of deceit and damage are neither es-sential 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 jurisdic-tion over the violations of BP 22. The two crimes have to be treated as SEPARATE OF-FENSES and therefore, the essential ingredi-ents of each have to be satisfied. (Uy vs. CA, GR No. 119000, July 28, 1997).

2. RULE 111, Section 1(b) on Prosecu-tion of Civil Action, Rules of Criminal Proce-dure

“The criminal action for violation of BP Blg. 22 shall be deemed to include the corre-sponding civil action. No reservation to file such civil action separately shall be allowed.

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 account 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 opportu-nity 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.


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

4. The check was presented for pay-ment beyond 90 (destroys prima facie pre-sumption) 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 de-veloper had fulfilled its obligations to the buyer).

6. Complainant was informed by the is-suer beforehand that the account 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).


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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 TERMS (Section 3)

A.Violence against women and their childre - any act or a series of acts com-mitted by any person against a woman who is his:

1. Wife;

2. Former wife; or

3. Against a woman with whom the per-son has or had a sexual or dating relation-ship; or

4. With whom he has a common child, or against her child whether legitimate or il-legitimate,

within or without the family abode, which result in or is likely to result in physical, sexual, psy-chological harm or suffering, or economic abuse including threats of such act, battery, assault, coercion, harassment or arbitrary de-privation 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 iso-lated ones (Rustan Ang vs. CA).

B.Sexual Violence - includes, but is not limited to:

Rape, sexual harassment, acts of lascivious-ness, treating a woman or:

1. Her child as a sex object, making de-meaning and sexually suggestive remarks, physically attacking the sexual parts of the victim’s body, forcing her/him to watch ob-scene publications and indecent shows or forcing the woman or her child to do inde-cent acts and/or make films thereof, forcing the wife and mistress/lover to live in the con-jugal home or sleep together in the same room with the abuser;

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.

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

1. Intimidation;

2. Harassment;

3. Stalking;

4. Damage to property;

5. Public ridicule or humiliation;

6. Repeated verbal abuse;

7. Mental infidelity;

8. Causing or allowing the victim to wit-ness the physical, sexual or psychological abuse of a member of the family to which the victim belongs; or

9. To witness pornography in any form;

10. To witness abusive injury to pets; or

11. Unlawful or unwanted deprivation of the right to custody and/or visitation of com-mon children.

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

1. Withdrawal of financial support or pre-venting the victim from engaging in any le-gitimate 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;

3. Destroying household property;

4. Controlling the victim’s own money or properties or solely controlling the conjugal money or properties.

E.Physical abuse -refers to acts that in-clude bodily or physical harm


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F.Dating Relationship - situation wherein the parties live as husband and wife with-out the benefit of marriage or are roman-tically involved over time and on a contin-uing basis during the course of the rela-tionship. A casual acquiantance or ordi-nary socialization between two individu-als 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 oc-currence. Their taking place does not mean that the romantic relationship between the two should be deemed broken up during periods of misunder-standings (Rustan Ang vs. CA).

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 un-der 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 psycho-logical 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 follow-ing acts:

(a) Causing physical harm to the woman or her child;

(b) Threatening to cause the woman or her child physical harm;

(c) Attempting to cause the woman or her child physical harm;

(d) Placing the woman or her child in fear of imminent 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 at-tempting 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.

This shall include, but not limited to, the follow-ing 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 fi-nancial support legally due her or her family, or deliberately provid-ing the woman's children insuffi-cient financial support;

(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, oc-cupation, business or activity or controlling the victim's own mon4ey or properties, or solely controlling the conjugal or com-mon money, or properties;

(f) Inflicting or threatening to inflict physical harm on oneself for the purpose of con-trolling 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, physi-cal harm, or through intimidation di-rected against the woman or her child or her/his immediate family;

(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substan-tial emotional or psychological distress to the woman or her child. This shall in-clude, 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 lin-gering outside the resi-dence of the woman or her child;

(3) Entering or remaining in the dwelling or on the prop-


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erty of the woman or her child against her/his will;

(4) Destroying the property and personal belongings or in-flicting harm to animals or pets of the woman or her child; and

(5) Engaging in any form of ha-rassment 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 support 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 dis-ruption in the victim's daily life, and facilitating the opportunity and ability of the victim to in-dependently 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 agen-cies.

- The protection orders that may be is-sued 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 Thou-sand Pesos (P50,000.00) and/or imprison-ment 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 appli-cation.- 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 threaten-ing to commit or committing, personally or through another, any of the acts mentioned in Section;(b) Prohibition of the respondent from harass-ing, annoying, telephoning, contacting or other-wise 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 temporar-ily for the purpose of protecting the petitioner, or permanently where no property rights are vi-olated

* if respondent must re-move personal effects from the residence, the court shall direct a law enforcement agent to accompany the re-spondent has gath-ered his things and es-cort respondent from the residence;

(d) Directing the respondent to stay away from petitioner and designated family or household


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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 desig-nated family or household member;(e) Directing lawful possession and use by pe-titioner of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement offi-cer to accompany the petitioner to the resi-dence of the parties to ensure that the peti-tioner is safely restored to the possession of the automobile and other essential personal ef-fects, or to supervise the petitioner's or respon-dent'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 support to the woman and/or her child if entitled to le-gal support.

* Notwithstanding other laws to the contrary, the court shall order an appropriate per-centage of the income or salary of the re-spondent to be with-held regularly by the respondent's employer for the same to be au-tomatically remitted di-rectly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child with-out justifiable cause shall render the re-spondent or his em-ployer liable for indi-rect 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 disqualifica-tion 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 surren-der his firearm and shall direct the appro-priate authority to in-vestigate on the of-fender and take appro-

priate action on mat-ter;

(i) Restitution for actual damages caused by the violence inflicted, including, but not limited to, property damage, medical expenses, child-care 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 pro-vide for the safety of the petitioner and any designated family or household member, pro-vided 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 pen-dency of an application for BPO shall not pre-clude a petitioner from applying for, or the court from granting a TPO or PPO.

Who may file petition for protection orders (Section 9):(a) the offended party;(b) parents or guardians of the offended party;(c) ascendants, descendants or collateral rela-tives within the fourth civil degree of consan-guinity or affinity;(d) officers or social workers of the DSWD or social workers of local government units (LGUs);(e) police officers, preferably those in charge of women and children's desks;(f) Punong Barangay or Barangay Kagawad;(g) lawyer, counselor, therapist or healthcare provider of the petitioner;(h) At least two (2) concerned responsible citi-zens of the city or municipality where the vio-lence against women and their children oc-curred and who has personal knowledge of the offense committed.

Under Section 11 (How to file PO):If the applicants is not the victim, the applica-tion 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 con-sent given by the victim for the filling of the application.


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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 ter-ritorial jurisdiction; and

2. shall provide a mailing address for purpose of service processing.

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

- Barangay officials and court person-nel shall assist applicants in the preparation of the application.

- Law enforcement agents shall also extend assistance in the application for pro-tection orders in cases brought to their atten-tion.

Venue for protection order (section 10)1. Applications for BPOs - follow the

rules on venue under Section 409 of the Lo-cal Government Code of 1991 and its imple-menting rules and regulations;

♥ SEC. 409, LGC:

(a) Disputes between persons actually residing in the same barangay shall be brought for amica-ble settlement before the lupon of said barangay;

(b) Those involving actual resi-dents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respon-dents actually resides, at the elec-tion of the complaint;

(c) 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 work-place 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 me-diation proceedings before the punong barangay; otherwise, the same shall be

deemed waived. Any legal question which may confront the punong barangay in resolving ob-jections to venue herein referred to may be submitted to the Secretary of Justice, or his duly designated representative, whose ruling thereon shall be binding.

2. Application for a TPO or PPO; Where:

GENERAL RULE: TPO and PPO are filed in the family court at the place of residence of the petitioner.EXCEPTION: In the absence of a family court, with the regional trial court, metropolitan trial court, municipal trial court, municipal circuit trial court with territorial jurisdiction over the place of residence of the petitioner

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 perpe-trator to desist from committing acts under Section 5 (a) and (b) of this Act. - A Punong Barangay who receives ap-

plications for a BPO shall issue the protection order to the applicant on the date of filing af-ter ex parte determination of the basis of the application. - If the Punong Barangay is unavailable

to act on the application for a BPO, the appli-cation shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad the order must be ac-companied by an attestation by the Barangay Kagawad that the Punong Barangay was un-available 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 ser-vice.- The parties may be accompanied by

a non-lawyer advocate in any proceeding be-fore the Punong Barangay.

2.Temporary Protection Orders (TPOs): - Refers to the protection order issued

by the court on the date of filing of the appli-cation after ex parte determination that such order should be issued.


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- 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 respon-dent 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 is-suance of a PPO.

3.Permanent Protection Order (PPO):- Refers to protection order issued by

the court after notice and hearing.- Respondents non-appearance de-

spite 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 hear-ing 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 ap-plicant 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 ap-

pears 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 ac-

quittal of the respondent, the Court must de-termine 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 act from which the order might arise did not exist.

*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.

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

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

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. Custody of children. – The woman victim of violence shall be entitled to the custody and support of her child/chil-dren. Children below seven (7) years old older but with mental or physical disabilities shall au-tomatically be given to the mother, with right to support, unless the court finds compelling rea-sons to order otherwise.

A victim who is suffering from bat-tered woman syndrome shall not be disquali-fied from having custody of her children. In no case shall custody of minor children be given


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to the perpetrator of a woman who is suffering from Battered woman syndrome.(section 28)

3. 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 li-able for any criminal, civil or administrative lia-bility resulting therefrom (section 34).

4. Exemption from Payment of Docket Fee and Other Expenses. –

If the victim is:

(a) an indigent;

(b) or there is an immediate ne-cessity due to imminent danger or threat of danger to act on an appli-cation 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)

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 ab-sence of any of the elements for justifying circumstances of self-defense under the Re-vised 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 psycho-logical behavior by a man in order to coerce her to do something he wants her to do, with-out concern for her rights. Battered women in-clude 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 abu-sive 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 relation-ship does not in itself establish the legal right of the woman to kill her abusive partner. Evi-dence 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 have actually feared imminent harm from her batterer and honestly believed in the need to kill him in or-der 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 be-tween 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 ag-gression if not continuous, does not warrant self-defense. In the absence of such aggres-sion, there can be no self-defense—complete or incomplete—on the part of the victim. Thus, Marivic’s killing of Ben was not completely jus-tified under the circumstances. (People of the Philippines V. Marivic Genosa G.R. No. 135981, 15 January 2004)

“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 al-

lows herself to be abused in ways that to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhib-ited by the batterer. This wish however proves to be double-edged, because her “pla-catory” and passive 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


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soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence “spirals out of control” and leads to an acute battering incident.

(2) The Acute Battering Incident- Characterized by brutality, destruc-

tiveness 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 vio-lence. Its nature can be as unpredictable as the time of its explosion, and so are his rea-sons for ending it. - The battered woman usually realizes

that she cannot reason with him, and that re-sistance would only exacerbate her condition.- At this stage, she has a sense of de-

tachment from the attack and the terrible pain, although she may later clearly remem-ber every detail. Her apparent passivity 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.

(3) The Tranquil, Loving (or, at least, nonvio-lent) Phase- The final phase of the cycle of vio-

lence begins when the acute battering inci-dent 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 forgive-ness 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 re-ceiving professional help, are very slim, espe-

cially if she remains with him. Generally, only after she leaves him does he seek profes-sional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented psy-chologically.


special penal laws notes

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