[ G.R. No.
142675, July 22, 2005 ] have in his possession and under his custody and control one (1) .38
VICENTE AGOTE Y MATOL, PETITIONER, VS. HON. MANUEL F.
LORENZO, PRESIDING JUDGE, RTC, BRANCH 43, MANILA AND
PEOPLE OF THE PHILIPPINES, RESPONDENTS.
DECISION
GARCIA, J.:
In this appeal by way of a petition for review on certiorari under Rule
45 of the Rules of Court, petitioner Vicente Agote y Matol seeks to
annul and set aside the following resolutions of the Court of Appeals
in CA-G.R. SP No. 2991-UDK, to wit:
1. Resolution dated September 14, 1999,[1] dismissing the Petition
for Certiorari with Prayer for the Issuance of a Temporary
Restraining Order filed by the petitioner against the Honorable
Manuel F. Lorenzo, Presiding Judge, Regional Trial Court, Manila,
Branch 43 for refusing to retroactively apply in his favor Republic
Act No. 8294[2]; and,
2. Resolution dated February 8, 2000,[3] denying petitioner's motion
for reconsideration.
As culled from the pleadings on record, the following are the
undisputed factual antecedents:
Petitioner Vicente Agote y Matol was earlier charged before the sala
of respondent judge with Illegal Possession of Firearms under
Presidential Decree No. 1866[4] and violation of COMELEC Resolution
No. 2826[5] (Gun Ban), docketed as Criminal Cases No. 96-149820
and 96-149821, respectively, allegedly committed, as follows:
CRIMINAL CASE NO. 96-149820
That on or about April 27, 1996 in the City of Manila, Philippines, the
said accused did then and there willfully, unlawfully, knowingly have in
possession and under his custody and control, One (1) .38 cal. Rev.
without serial no. with four (4) live bullets. Without first having secured
from the proper authorities the necessary license therefor.
CONTRARY TO LAW.
CRIMINAL CASE NO. 96-149821
That on or about April 27, 1996, in the City of Manila, Philippines, the
said accused did then and there, willfully, unlawfully and knowingly
cal. Rev. without serial number, with four (4) live ammunition/bullets in
the chamber, by then and there carrying the same along V. Mapa Ext.
Sta. Mesa, this City, which is a public place on the aforesaid date
which is covered by an election period, without first securing the
written authority from the COMELEC, as provided for by the
COMELEC Resolution No. 2828, in relation to RA No. 7166 (Gun
Ban).
CONTRARY TO LAW.
On arraignment, petitioner pleaded "Not Guilty" to both charges.
Thereafter, the two (2) cases were tried jointly.
Eventually, in a decision dated May 18, 1999, the trial court rendered
a judgment of conviction in both cases, separately sentencing
petitioner to an indeterminate penalty of ten (10) years and one (1)
day of prision mayor, as minimum, to eighteen (18) years eight (8)
months and one (1) day of reclusion temporal, as maximum, in
accordance with PD. No. 1866 in Crim. Case No. 96-149820 (illegal
possession of firearm), and to a prison term of one (1) year in Crim.
Case No. 96-149821 (violation of the COMELEC Resolution on gun
ban).
Meanwhile, on June 6, 1997, Republic Act No. 8294[6] was approved
into law.
Pointing out, among others, that the penalty for illegal possession of
firearms under P.D. No. 1866 has already been reduced by the
subsequent enactment of Rep. Act No. 8294, hence, the latter law,
being favorable to him, should be the one applied in determining his
penalty for illegal possession of firearms, petitioner moved for a
reconsideration of the May 18, 1999 decision of the trial court.
In its order dated July 15, 1999,[7] however, the trial court denied
petitioner's motion, saying:
While the law (R.A. 8294) is indeed favorable to the accused and
therefore should be made retroactive we are also guided by Art. 4 of
the Civil Code which states that laws shall have no retroactive effect,
unless the contrary is provided. Republic Act 8294 did not so provide
that it shall have a retroactive effect. The Supreme Court likewise in
the case of Padilla vs. CA declared: `The trial court and the
respondent court are bound to apply the governing law at the time of
the appellant's commission of the offense for it is a rule that laws are
repealed only by subsequent ones. Indeed, it is the duty of judicial
officers to respect and apply the law as it stands.
Therefrom, petitioner went to the Court of Appeals on a petition
for certiorari with prayer for a temporary restraining order, thereat
docketed as CA-G.R. SP No. 2991-UDK.
In the herein assailed resolution dated September 14, 1999,[8] the
appellate court dismissed petitioner's recourse on two (2) grounds, to
wit: (a) the remedy of certiorari availed of by petitioner is improper
since he should have appealed from the July 15, 1999 order of the
trial court; and (b) lack of jurisdiction, as the issue involved is a pure
question of law cognizable by the Supreme Court.
With his motion for reconsideration having been denied by the
appellate court in its subsequent resolution of February 8,
2000,[9] petitioner is now with us, submitting for resolution the following
issues: (1) whether the Court of Appeals erred in dismissing his
petition for certiorari; and (2) whether the courts below erred in not
giving Rep. Act No. 8294 a retroactive application.
The petition is partly meritorious.
At the outset, it must be stressed that petitioner never put in issue the
factual findings of the trial court. What he questions is said court's
legal conclusion that Rep. Act No. 8294 cannot be retroactively
applied to him. Unquestionably, the issue raised is one purely of law.
As we have said in Macawiwili Gold Mining and Development Co.,
Inc. v. Court of Appeals:[10]
For a question to be one of law, the same must not involve an
examination of the probative value of the evidence presented by the
litigants or any one of them. And the distinction is well-known: there is
a question of law in a given case when the doubt or difference arises
as to what the law is on a certain state of facts; there is a question of
fact when the doubt or difference arises as to the truth or the
falsehood of the facts alleged.
Considering that "judgments of regional trial courts in the exercise of
their original jurisdiction are to be elevated to the Court of Appeals in
cases when appellant raises questions of fact or mixed questions of
fact and law", while"appeals from judgments of the [same courts] in
the exercise of their original jurisdiction must be brought directly to the
Supreme Court in cases where the appellant raises only questions of
law"[11], petitioner should have appealed the trial court's ruling to this
Court by way of a petition for review on certiorari in accordance with
Rule 45 of the 1997 Rules of Civil Procedure, as
amended,[12] pursuant to Rule 41, Section 2 (c) of the same Rules, viz:
SEC. 2. Modes of appeal. -
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) Appeal by certiorari. - In all cases where only questions of law are
raised or involved, the appeal shall be to the Supreme Court by
petition for review on certiorari in accordance with Rule 45.
By reason, then, of the availability to petitioner of the remedy of a
petition for review under Rule 45, his right to resort to a petition
for certiorari under Rule 65 was effectively foreclosed, precisely
because one of the requirements for the availment of the latter
remedy is that "there should be no appeal, or any plain, speedy and
adequate remedy in the ordinary course of law",[13] the remedies of
appeal and certiorari being mutually exclusive and not alternative or
successive.[14]
As correctly observed by the Court of Appeals, what petitioner should
have done was to take an appeal from the trial court's order of July
15, 1999 which denied his motion for reconsideration of the May 18,
1999 judgment of conviction.
Petitioner's case is worse compounded by the fact that even his
period for appeal had already prescribed when he filed with the Court
of Appeals his certiorari petition in CA-G.R. SP No. 2991-
UDK. The Rollo of said case reveals that petitioner received his copy
of the trial court's order denying his motion for reconsideration on July
20, 1999. As the same Rollo shows, it was only on August 23, 1999,
or after more than fifteen (15) days when petitioner filed his wrong
remedy of certiorari with the appellate court.
Be that as it may, the Court feels that it must squarely address the
issue raised in this case regarding the retroactivity of Rep. Act No.
8294, what with the reality that the provisions thereof are undoubtedly
favorable to petitioner. For this purpose, then, we shall exercise our
prerogative to set aside technicalities in the Rules and "hold the bull
by its horns", so to speak. After all, the power of this Court to suspend
its own rules whenever the interest of justice requires is not without
legal authority or precedent. In Solicitor General, et. al. vs. The
Metropolitan Manila Authority,[15] we held:
Unquestionably, the Court has the power to suspend procedural rules
in the exercise of its inherent power, as expressly recognized in the
Constitution, to promulgate rules concerning `pleading, practice and
procedure in all courts.' In proper cases, procedural rules may be
relaxed or suspended in the interest of substantial justice, which
otherwise may be miscarried because of a rigid and formalistic
adherence to such rules. xxx
xxx xxx xxx
We have made similar rulings in other cases, thus:
Be it remembered that rules of procedure are but mere tools designed
to facilitate the attainment of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate rather than
promote substantial justice, must always be avoided. xxx Time and
again, this Court has suspended its own rules and excepted a
particular case from their operation whenever the higher interests of
justice so require.
We shall now proceed to determine whether the provisions of Rep.
Act No. 8294 amending P.D. No. 1866 can be retroactively applied to
this case.
Here, the two (2) crimes for which petitioner was convicted by the trial
court, i.e., (1) illegal possession of firearms under P.D. No. 1866 and
(2) violation of COMELEC Resolution No. 2826 on gun ban, were both
committed by the petitioner on April 27, 1996. For the crime of illegal
possession of firearms in Crim. Case No. 96-149820, he was
sentenced to suffer a prison term ranging from ten (10) years and one
(1) day of prision mayor, as minimum, to (18) eighteen years, eight (8)
months and one (1) day of reclusion temporal, as maximum, in
accordance with P.D. No. 1866, Section 1 of which reads:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or
Intended to be Used in the Manufacture of Firearms of Ammunition.
— The penalty of reclusion temporal in its maximum period to
reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any
firearm, part of firearm, ammunition or machinery, tool or instrument
used or intended to be used in the manufacture of any firearm or
ammunition. (Emphasis supplied)
When Rep. Act No. 8294 took effect on July 6, 1997,[16] the penalty for
illegal possession of firearms was lowered, depending on the class of
firearm possessed, viz:
SECTION 1. Section 1 of Presidential Decree No. 1866, as amended,
is hereby further amended to read as follows:
`SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or
Intended to be Used in the Manufacture of Firearms or Ammunition.
— The penalty of prision correccional in its maximum period and
a fine of not less than Fifteen thousand pesos (P15,000) shall be
imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of
firearm, ammunition, or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.
The penalty of prision mayor in its minimum period and a fine of Thirty
thousand pesos (P30,000) shall be imposed if the firearm is classified
as high powered firearm which includes those with bores bigger in
diameter than .38 caliber and 9 millimeter such as caliber .40, .41,
.44, .45 and also lesser calibered firearms but considered powerful
such as caliber .357 and caliber .22 center-fire magnum and other
firearms with firing capability of full automatic and by burst of two or
three: Provided, however, That no other crime was committed by
the person arrested. (Emphasis supplied)
Based on the foregoing, petitioner contends that the reduced penalty
under Rep. Act No. 8294 should be the one imposed on him.
Significantly, in its Manifestation In Lieu of Comment,[17] the Office
of the Solicitor General agrees with the petitioner, positing further that
the statement made by this Court in People vs. Jayson[18] to the effect
that the provisions for a lighter penalty under Rep. Act No. 8294 does
not apply if another crime has been committed, should not be applied
to this case because the proviso in Section 1 of said law that "no other
crime was committed" must refer only to those crimes committed with
the use of an unlicensed firearm and not when the other crime is not
related to the use thereof or where the law violated merely
criminalizes the possession of the same, like in the case of election
gun ban, as here.
As early as August 1997, the month after Rep. Act No. 8294 took
effect,[19] this Court has pronounced in Gonzales vs. Court of
Appeals[20] that said law must be given retroactive effect in favor of
those accused under P.D. No. 1866. Since then, this Court had
consistently adhered to the Gonzales ruling.[21]
For sure, in People vs. Valdez,[22] where the accused was charged
with the complex crime of multiple murder with double frustrated
murder and illegal possession of firearms and ammunitions under two
separate informations, this Court even took a bolder stance by
applying Rep. Act No. 8294 retroactively so that the accused therein
may not be convicted of the separate crime of illegal possession of
firearms, but refused to apply the same retroactively so as to
aggravate the crime of murder. The Valdez ruling had been applied in
a host of subsequent cases.[23]
Yet, in other cases,[24] although the Court had given Rep. Act No. 8294
retroactive effect so as to prevent the conviction of an accused of the
separate crime of illegal possession of firearm when the said
unlicensed firearm was "used" to commit the crime of murder or
homicide, the Court did not appreciate this "use" of such unlicensed
firearm as an aggravating circumstance as provided therein, when the
"use" of an unlicensed firearm was not specifically alleged in the
information, as required by the Rules on Criminal Procedure.
In the light of the existing rulings and jurisprudence on the matter, the
present case takes center stage presenting, this time, another twist,
so to speak. Petitioner, who was charged of illegal possession of
firearms was also charged of another offense: Violation of COMELEC
Resolution No. 2826 (Gun Ban), but the unlicensed firearm was not
"used" or discharged in this case. The question then which appears to
be of first impression, is whether or not the unlicensed firearm should
be actually "used" and discharged in the course of committing the
other crime in order that Sec. 1, Rep. Act No. 8294 will apply so that
no separate crime of illegal possession of firearms may be charged.
Let us take a look at the jurisprudence once again. In Cupcupin vs.
People,[25] the accused was charged and convicted for two (2)
separate crimes of illegal possession of firearms, and illegal
possession of prohibited drugs. In the more recent case of People vs.
Almeida,[26] however, although the accused was acquitted of the
separate charge of illegal possession of firearm for lack of evidence,
the Court nevertheless made the following clear pronouncement:
Furthermore, in any event, the Court has ruled in previous cases that
in view of the enactment of Republic Act No. 8294, there can be no
separate offense of illegal possession of firearms and
ammunition if there is another crime committed such as, in this
case, that of illegal possession of dangerous drugs. (Emphasis
supplied)
In Almeida, it should be noted that the unlicensed firearm was merely
found lying around, together with the prohibited drugs, and therefore,
was not being "used" in the commission of an offense.
Given this Court's aforequoted pronouncement in Almeida, can the
accused in the present case still be separately convicted of two (2)
offenses of illegal possession of firearms and violation of gun ban,
more so because as in Almeida, the unlicensed firearm was not
actually "used" or discharged in committing the other offense?
In People vs. Walpan M. Ladjaalam,[27] this Court, interpreting the
subject proviso in Section 1 of Rep. Act No. 8294, applied the basic
principles in criminal law, and categorically held:
xxx A simple reading thereof shows that if an unlicensed firearm
is used in the commission of any crime, there can be no separate
offense of simple illegal possession of firearms. Hence, if the
`other crime' is murder or homicide, illegal possession of firearms
becomes merely an aggravating circumstance, not a separate
offense. Since direct assault with multiple attempted homicide was
committed in this case, appellant can no longer be held liable for
illegal possession of firearms.
Moreover, penal laws are construed liberally in favor of the
accused. In this case, the plain meaning of RA 8294's simple
language is most favorable to herein appellant. Verily, no other
interpretation is justified, for the language of the new law
demonstrates the legislative intent to favor the accused. Accordingly,
appellant cannot be convicted of two separate offenses of illegal
possession of firearms and direct assault with attempted
homicide. xxx
xxx xxx xxx
xxx The law is clear: the accused can be convicted of simple
illegal possession of firearms, provided that `no other crime was
committed by the person arrested'. If the intention of the law in the
second paragraph were to refer only to homicide and murder, it
should have expressly said so, as it did in the third paragraph. Verily,
where the law does not distinguish, neither should we.(Emphasis
supplied).
The aforementioned ruling was reiterated and applied in the
subsequent cases of People vs. Garcia,[28] where the judgment of
conviction of the accused-appellants for illegal possession of firearms
was set aside there being another crime - kidnapping for ransom -
which they were perpetrating at the same time; People vs.
Bernal,[29] where the Court retroactively applied Rep. Act No. 8294 in
accused-appellant's favor because it would mean his acquittal from
the separate offense of illegal possession of firearms; and People vs.
Bustamante,[30] where, in refusing to convict the accused-appellant of
the separate offense of illegal possession of firearms, the Court
declared that insofar as it is favorable to the appellant, the provisions
of Rep. Act No. 8294 should be applied liberally and retroactively in
that appellant must be acquitted of the charge of illegal possession of
firearms.
Guided by the foregoing, the Court cannot but set aside petitioner's
conviction in Criminal Case No. 96-149820 for illegal possession of
firearm since another crime was committed at the same time, i.e.,
violation of COMELEC Resolution No. 2826 or the Gun Ban.
Admittedly, this ruling is not without misgivings considering that it
would mean petitioner's acquittal of the more serious offense of illegal
possession of firearms which carries a much heavier penalty than
violation of the COMELEC gun-ban resolution. However, as we have
rationalized in Ladjaalam:[31]
xxx 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 the Court's 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. Our task is constitutionally confined only to applying the
law and jurisprudence to the proven facts, and we have done so in
this case.
The solemn power and duty of the Court to interpret and apply the law
does not include the power to correct by reading into the law what is
not written therein. While we understand
respondent People's contention that the "use" of the firearm seemed
to have been the main consideration during the deliberations of the
subject provision of Rep. Act No. 8294, the fact remains that the word
"use" never found its way into the final version of the bill which
eventually became Rep. Act No. 8294. The Court's hands are now
tied and it cannot supply the perceived deficiency in the final version
without contravening the most basic principles in the interpretation of
penal laws which had always leaned in favor of the accused. Under
our system of government where powers are allocated to the three (3)
great branches, only the Legislature can remedy such deficiency, if
any, by proper amendment of Sec. 1 of Rep. Act No. 8294.
As written, Sec. 1, Rep. Act No. 8294 restrains the Court from
convicting petitioner of the separate crime of illegal possession of
firearm despite the fact that, as in Almeida, the unlicensed firearm
was not actually "used". For sure, there is, in this case, closer relation
between possession of unlicensed firearm and violation of the
COMELEC gun-ban than the illegal possession of unlicensed firearm
to the crime of illegal possession of prohibited drugs in Almeida.
WHEREFORE, Criminal Case No. 96-149820 for illegal possession of
firearms is hereby DISMISSED while the judgment of conviction in
Criminal Case No. 96-149821 for violation of COMELEC Resolution
No. 2826 in relation to Rep. Act No. 7166 (Gun Ban), is AFFIRMED.
Since petitioner has already served more than the penalty imposed
upon him by the trial court in Criminal Case No. 96-149821, his
immediate release from custody is hereby ORDERED unless detained
for some other lawful cause.
SO ORDERED
[ G.R. NO. 170562, June 29, 2007 ]
ANGEL CELINO, SR., PETITIONER, VS. COURT OF APPEALS,
CEBU CITY, HON. DELANO F. VILLARUZ, PRESIDING JUDGE,
BRANCH 16, REGIONAL TRIAL COURT, CAPIZ, ROXAS CITY, AND
PEOPLE OF THE PHILIPPINES, RESPONDENTS.
DECISION
CARPIO MORALES, J.:
This petition for certiorari under Rule 65 of the Rules of Court assails
the Court of Appeals' Decision dated April 18, 2005[1] affirming the
trial court's denial of petitioner Angel Celino, Sr.'s Motion to Quash;
and Resolution dated September 26, 2005[2] denying petitioner's
Motion for Reconsideration of the said Decision.
The following facts are not disputed:
Two separate informations were filed before the Regional Trial Court
of Roxas City charging petitioner with violation of Section 2(a) of
COMELEC Resolution No. 6446 (gun ban),[3] and Section 1,
Paragraph 2 of Republic Act No. (R.A.) 8294[4] (illegal possession of
firearm), as follows:
Criminal Case No. C-137-04
That on or about the 12th day of May, 2004, in the City of Roxas,
Philippines, and within the jurisdiction of this Honorable Court, the
said accused, did then and there willfully, unlawfully and knowingly
carry outside of his residence an armalite rifle colt M16 with serial
number 3210606 with two (2) long magazines each loaded with thirty
(30) live ammunitions of the same caliber during the election period -
December 15, 2005 to June 9, 2004 - without first having obtained the
proper authority in writing from the Commission on Elections, Manila,
Philippines.
CONTRARY TO LAW. [5]
Criminal Case No. C-138-04
That on or about the 12th day of May, 2004, in the City of Roxas,
Philippines, and within the jurisdiction of this Honorable Court, the
said accused, did then and there willfully, unlawfully and knowingly
have in his possession and control one (1) armalite rifle colt M16 with
serial number 3210606 with two (2) long magazines each loaded with
thirty (30) live ammunitions of the same caliber without first having
obtained the proper license or necessary permit to possess the said
firearm.
CONTRARY TO LAW.[6]
Upon arraignment in Criminal Case No. C-138-04, petitioner pleaded
not guilty to the gun ban violation charge.[7]
Prior to his arraignment in Criminal Case No. C-137-04, petitioner filed
a Motion to Quash[8] contending that he "cannot be prosecuted for
illegal possession of firearms x x x if he was also charged of having
committed another crime of [sic] violating the Comelec gun ban under
the same set of facts x x x."[9]
By Order of July 29, 2004,[10] the trial court denied the Motion to
Quash on the basis of this Court's[11] affirmation in Margarejo v. Hon.
Escoses[12] of therein respondent judge's denial of a similar motion to
quash on the ground that "the other offense charged x x x is not one
of those enumerated under R.A. 8294 x x x." [13] Petitioner's Motion
for Reconsideration was likewise denied by September 22, 2004
Resolution,[14] hence, petitioner filed a Petition for Certiorari[15]
before the Court of Appeals.
By Decision dated April 18, 2005,[16] the appellate court affirmed the
trial court's denial of the Motion to Quash. Petitioner's May 9, 2005
Motion for Reconsideration[17] having been denied by Resolution of
September 26, 2005,[18] petitioner filed the present petition.
The petition fails.
Petitioner's remedy to challenge the appellate court's decision and
resolution was to file a petition for review on certiorari under Rule 45
on or before October 20, 2005 or 15 days after he received a copy of
the appellate court's resolution on October 5, 2005[19]denying his
motion for reconsideration. Instead, petitioner chose to file the present
petition under Rule 65 only on December 2, 2005,[20] a good 58 days
after he received the said resolution.
Certiorari cannot be used as a substitute for lost appeal. Certiorari lies
only when there is no appeal nor any plain, speedy, and adequate
remedy in the ordinary course of law. Why the question being raised
by petitioner, i.e., whether the appellate court committed grave abuse
of discretion, could not have been raised on appeal, no reason
therefor has been advanced.[21]
While this Court, in accordance with the liberal spirit pervading the
Rules of Court and in the interest of justice, has the discretion to treat
a petition for certiorari as having been filed under Rule 45, especially
if filed within the reglementary period under said Rule, it finds nothing
in the present case to warrant a liberal application of the Rules, no
justification having been proffered, as just stated, why the petition was
filed beyond the reglementary period,[22] especially considering that it
is substantially just a replication of the petition earlier filed before the
appellate court.
Technicality aside, the petition fails just the same.
The relevant provision of R.A. 8294 reads:
SECTION 1. Section 1 of Presidential Decree No. 1866, as amended,
is hereby further amended to read as follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or
Intended to be Used in the Manufacture of Firearms or Ammunition. "
x x x.
"The penalty of prision mayor in its minimum period and a fine of
Thirty thousand pesos (P30,000) shall be imposed if the firearm is
classified as high powered firearm which includes those with bores
bigger in diameter than .38 caliber and 9 millimeter such as caliber
.40, .41, .44, .45 and also lesser calibered firearms but considered
powerful such as caliber .357 and caliber .22 center-fire magnum and
other firearms with firing capability of full automatic and by burst of
two or three: Provided, however, That no other crime was committed
by the person arrested.
"If homicide or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.
"If the violation of this Section is in furtherance of or incident to, or in
connection with the crime of rebellion or insurrection, sedition, or
attempted coup d'etat, such violation shall be absorbed as an element
of the crime of rebellion, or insurrection, sedition, or attempted coup
d'etat.

xxxx
(Underscoring supplied)
The crux of the controversy lies in the interpretation of the
underscored proviso. Petitioner, citing Agote v. Lorenzo,[23] People v.
Ladjaalam,[24] and other similar cases,[25] contends that the mere
filing of an information for gun ban violation against him necessarily
bars his prosecution for illegal possession of firearm. The Solicitor
General contends otherwise on the basis of Margarejo v. Hon.
Escoses [26] and People v. Valdez.[27]
In Agote,[28] this Court affirmed the accused's conviction for gun ban
violation but exonerated him of the illegal possession of firearm
charge because it "cannot but set aside petitioner's conviction in
Criminal Case No. 96-149820 for illegal possession of firearm since
another crime was committed at the same time, i.e., violation of
COMELEC Resolution No. 2826 or the Gun Ban."[29] Agote is based
on Ladjaalam[30] where this Court held:
x x x A simple reading [of RA 8294] shows that if an unlicensed
firearm is used in the commission of any crime, there can be no
separate offense of simple illegal possession of firearms. Hence, if the
"other crime" is murder or homicide, illegal possession of firearms
becomes merely an aggravating circumstance, not a separate
offense. Since direct assault with multiple attempted homicide was
committed in this case, appellant can no longer be held liable for
illegal possession of firearms.
Moreover, penal laws are construed liberally in favor of the accused.
In this case, the plain meaning of RA 8294's simple language is most
favorable to herein appellant. Verily, no other interpretation is justified,
for the language of the new law demonstrates the legislative intent to
favor the accused. Accordingly, appellant cannot be convicted of two
separate offenses of illegal possession of firearms and direct assault
with attempted homicide. x x x
xxxx
x x x The law is clear: the accused can be convicted of simple illegal
possession of firearms, provided that "no other crime was committed
by the person arrested." If the intention of the law in the second
paragraph were to refer only to homicide and murder, it should have
expressly said so, as it did in the third paragraph. Verily, where the
law does not distinguish, neither should we.[31]
The law is indeed clear. The accused can be convicted of illegal
possession of firearms, provided no other crime was committed by the
person arrested. The word "committed" taken in its ordinary sense,
and in light of the Constitutional presumption of innocence,[32]
necessarily implies a prior determination of guilt by final conviction
resulting from successful prosecution or voluntary admission.[33]
Petitioner's reliance on Agote, Ladjaalam, Evangelista, Garcia,
Pangilinan, Almeida, and Bernal is, therefore, misplaced. In each one
of these cases, the accused were exonerated of illegal possession of
firearms because of their commission, as shown by their conviction, of
some other crime.[34] In the present case, however, petitioner has
only been accused of committing a violation of the COMELEC gun
ban. As accusation is not synonymous with guilt, there is yet no
showing that petitioner did in fact commit the other crime charged.[35]
Consequently, the proviso does not yet apply.
More applicable is Margarejo[36] where, as stated earlier, this Court
affirmed the denial of a motion to quash an information for illegal
possession of firearm on the ground that "the other offense charged
[i.e., violation of gun ban] x x x is not one of those enumerated under
R.A. 8294 x x x."[37] in consonance with the earlier pronouncement in
Valdez[38] that "all pending cases involving illegal possession of
firearm should continue to be prosecuted and tried if no other crimes
expressly indicated in Republic Act No. 8294 are involved x x x."[39]

In sum, when the other offense involved is one of those enumerated

under R.A. 8294, any information for illegal possession of firearm
should be quashed because the illegal possession of firearm would
have to be tried together with such other offense, either considered as
an aggravating circumstance in murder or homicide,[40] or absorbed
as an element of rebellion, insurrection, sedition or attempted coup
d'etat.[41] Conversely, when the other offense involved is not one of
those enumerated under R.A. 8294, then the separate case for illegal
possession of firearm should continue to be prosecuted.

Finally, as a general rule, the remedy of an accused from the denial of

his motion to quash is for him to go to trial on the merits, and if an
adverse decision is rendered, to appeal therefrom in the manner
authorized by law.[42] Although the special civil action for certiorari
may be availed of in case there is a grave abuse of discretion,[43] the
appellate court correctly dismissed the petition as that vitiating error is
not attendant in the present case.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.
 [ G.R. No. 190779, March 26, 2010 ]
ATTY. REYNANTE B. ORCEO, PETITIONER, VS. COMMISSION
ON ELECTIONS, RESPONDENT.
DECISION
PERALTA, J.:
This is a petition for certiorari[1] questioning the validity of Resolution
No. 8714 insofar as it provides that the term "firearm" includes airsoft
guns and their replicas/imitations, which results in their coverage by
the gun ban during the election period this year.
Resolution No. 8714 is entitled Rules and Regulations on the: (1)
Bearing, Carrying or Transporting of Firearms or other Deadly
Weapons; and (2) Employment, Availment or Engagement of the
Services of Security Personnel or Bodyguards, During the Election
Period for the May 10, 2010 National and Local Elections. The
Resolution was promulgated by the Commission on Elections
(COMELEC) on December 16, 2009, and took effect on December
25, 2009.
Resolution No. 8714 contains the implementing rules and regulations
of Sec. 32 (Who May Bear Firearms) and Section 33 (Security
Personnel and Bodyguards) of Republic Act (R.A.) No. 7166,
entitled An Act Providing for Synchronized National and Local
Elections and for Electoral Reforms, Authorizing Appropriations
Therefor, and for Other Purposes.
Section 1 of Resolution No. 8714 prohibits an unauthorized person
from bearing, carrying or transporting firearms or other deadly
weapons in public places, including all public buildings, streets, parks,
and private vehicles or public conveyances, even if licensed to
possess or carry the same, during the election period.
Under Section 2 (b) of Resolution No. 8714, the term "firearm"
includes "airgun, airsoft guns, and their replica/imitation in whatever
form that can cause an ordinary person to believe that they are real."
Hence, airsoft guns and their replicas/imitations are included in the
gun ban during the election period from January 10, 2010 to June 9,
2010.
Petitioner claims that he is a real party-in-interest, because he has
been playing airsoft since the year 2000. The continuing
implementation of Resolution No. 8714 will put him in danger of
sustaining direct injury or make him liable for an election offense[2] if
caught in possession of an airsoft gun and its replica/imitation in going
to and from the game site and playing the sport during the election
period.
Petitioner contends that the COMELEC gravely abused its discretion
amounting to lack or excess of jurisdiction in including "airsoft guns
and their replicas/imitations" in the definition of "firearm" in Resolution
No. 8714, since there is nothing in R.A. No. 7166 that mentions
"airsoft guns and their replicas/imitations." He asserts that the
intendment of R.A. No. 7166 is that the term "firearm" refers to real
firearm in its common and ordinary usage. In support of this assertion,
he cites the Senate deliberation on the bill,[3] which later became R.A.
No. 7166, where it was clarified that an unauthorized person caught
carrying a firearm during the election period is guilty of an election
offense under Section 261 (q) of the Omnibus Election Code.
Further, petitioner alleges that there is no law that covers airsoft guns.
By including airsoft guns in the definition of "firearm," Resolution No.
8714, in effect, criminalizes the sport, since the possession of an
airsoft gun or its replica/imitation is now an election offense, although
there is still no law that governs the use thereof.
Petitioner prays that the Court render a decision as follows: (1)
Annulling Resolution No. 8714 insofar as it includes airsoft guns and
their replicas/imitations within the meaning of "firearm," and declaring
the Resolution as invalid; (2) ordering the COMELEC to desist from
further implementing Resolution No. 8714 insofar as airsoft guns and
their replicas/imitations are concerned; (3) ordering the COMELEC to
amend Resolution No. 8714 by removing airsoft guns and their
replicas/imitations within the meaning of "firearm"; and (4) ordering the
COMELEC to issue a Resolution directing the Armed Forces of the
Philippines, Philippine National Police and other law enforcement
agencies deputized by the COMELEC to desist from further enforcing
Resolution No. 8714 insofar as airsoft guns and their
replicas/imitations are concerned.
The main issue is whether or not the COMELEC gravely abused its
discretion in including airsoft guns and their replicas/imitations in the
term "firearm" in Section 2 (b) of R.A. No. 8714.
The Court finds that the COMELEC did not commit grave abuse of
discretion in this case.
R.A. No. 7166 (An Act Providing for Synchronized National and Local
Elections and for Electoral Reforms, Authorizing Appropriations
Therefor, and for Other Purposes)[4] provides:
SEC. 32. Who May Bear Firearms. − During the election period, no
person shall bear, carry or transport firearms or other deadly weapons
in public places, including any building, street, park, private vehicle or
public conveyance, even if licensed to possess or carry the same,
unless authorized in writing by the Commission. The issuance of
firearms licenses shall be suspended during the election period.
Only regular members or officers of the Philippine National Police, the
Armed Forces of the Philippines and other law enforcement agencies
of the Government who are duly deputized in writing by the
Commission for election duty may be authorized to carry and possess
firearms during the election period: Provided, That, when in the
possession of firearms, the deputized law enforcement officer must
be: (a) in full uniform showing clearly and legibly his name, rank and
serial number, which shall remain visible at all times; and (b) in the
actual performance of his election duty in the specific area designated
by the Commission.
xxxx
SEC. 35. Rules and Regulations. -- The Commission shall issue rules
and regulations to implement this Act. Said rules shall be published in
at least two (2) national newspapers of general circulation.
Pursuant to Section 35 of R.A. No. 7166, the COMELEC promulgated
Resolution No. 8714, which contains the implementing rules and
regulations of Sections 32 and 33 of R.A. No. 7166. The pertinent
portion of the Resolution states:
NOW, THEREFORE, pursuant to the powers vested in it by the
Constitution of the Republic of the Philippines, the Omnibus Election
Code (B.P. Blg. 881), Republic Acts Nos. 6646, 7166, 8189, 8436,
9189, 9369 and other elections laws, the Commission RESOLVED, as
it hereby RESOLVES, to promulgate the following rules and
regulations to implement Sections 32 and 33 of Republic Act No. 7166
in connection with the conduct of the May 10, 2010 national and local
elections:
SECTION 1. General Guiding Principles. - During the election
period: (a) no person shall bear, carry or transport firearms or
other deadly weapons in public places, including all public
buildings, streets, parks, and private vehicles or public
conveyances, even if licensed to possess or carry the same; and
(b) no candidate for public office, including incumbent public officers
seeking election to any public office, shall employ, avail himself of or
engage the services of security personnel or bodyguards, whether or
not such bodyguards are regular members or officers of the Philippine
National Police (PNP), the Armed Forces of the Philippines (AFP) or
other law enforcement agency of the Government.
The transport of firearms of those who are engaged in the
manufacture, importation, exportation, purchase, sale of firearms,
explosives and their spare parts or those involving the transportation
of firearms, explosives and their spare parts, may, with prior notice to
the Commission, be authorized by the Director General of the PNP
provided that the firearms, explosives and their spare parts are
immediately transported to the Firearms and Explosives Division,
CSG, PNP.
SEC. 2. Definition of Terms. - As used in this Resolution:
(a) Election Period refers to the election period prescribed in Comelec
Resolution No. 8646 dated 14 July 2009 which is from 10 January
2010 to 09 June 2010;
(b) Firearm shall refer to the "firearm" as defined in existing laws,
rules and regulations. The term also includes airgun, airsoft
guns, and their replica/imitation in whatever form that can cause
an ordinary person to believe that they are real;
(c) Deadly weapon includes bladed instrument, handgrenades or
other explosives, except pyrotechnics.
xxxx
SEC. 4. Who May Bear Firearms. − Only the following persons who
are in the regular plantilla of the PNP or AFP or other law enforcement
agencies are authorized to bear, carry or transport firearms or other
deadly weapons during the election period:
(a) Regular member or officer of the PNP, the AFP and other law
enforcement agencies of the Government, provided that when in
the possession of firearm, he is: (1) in the regular plantilla of the
said agencies and is receiving regular compensation for the
services rendered in said agencies; and (2) in the agency-
prescribed uniform showing clearly and legibly his name, rank and
serial number or, in case rank and serial number are inapplicable,
his agency-issued identification card showing clearly his name and
position, which identification card shall remain visible at all times;
(3) duly licensed to possess firearm and to carry the same outside
of residence by means of a valid mission order or letter order; and
(4) in the actual performance of official law enforcement duty, or in
going to or returning from his residence/barracks or official station.
xxxx
(b) Member of privately owned or operated security, investigative,
protective or intelligence agencies duly authorized by the PNP,
provided that when in the possession of firearm, he is: (1) in the
agency-prescribed uniform with his agency-issued identification
card prominently displayed and visible at all times, showing clearly
his name and position; and (2) in the actual performance of duty at
his specified place/area of duty.
xxxx
SEC. 8. Enforcement. - Any person who, not wearing the authorized
uniform mentioned herein, bears, carries or transports firearm or other
deadly weapon, shall be presumed unauthorized to carry firearms and
subject to arrest.[5]
Petitioner contends that under R.A. No. 7166, the term "firearm"
connotes real firearm. Moreover, R.A. No. 7166 does not mention
airsoft guns and their replicas/imitations. Hence, its implementing
rules and regulations contained in Resolution No. 8714 should not
include airsoft guns and their replicas/imitations in the definition of the
term "firearm."
The Court is not persuaded.
Holy Spirit Homeowners Association, Inc. v. Defensor[6] held:
Where a rule or regulation has a provision not expressly stated or
contained in the statute being implemented, that provision does not
necessarily contradict the statute. A legislative rule is in the nature of
subordinate legislation, designed to implement a primary legislation by
providing the details thereof. All that is required is that the
regulation should be germane to the objects and purposes of the
law; that the regulation be not in contradiction to, but in
conformity with, the standards prescribed by the law.[7]
Evidently, the COMELEC had the authority to promulgate Resolution
No. 8714 pursuant to Section 35 of R.A. No. 7166. It was granted the
power to issue the implementing rules and regulations of Sections 32
and 33 of R.A. No. 7166. Under this broad power, the COMELEC was
mandated to provide the details of who may bear, carry or transport
firearms or other deadly weapons, as well as the definition of
"firearms," among others. These details are left to the discretion of the
COMELEC, which is a constitutional body that possesses special
knowledge and expertise on election matters, with the objective of
ensuring the holding of free, orderly, honest, peaceful and credible
elections.
In its Comment,[8] the COMELEC, represented by the Office of the
Solicitor General, states that the COMELEC's intent in the inclusion of
airsoft guns in the term "firearm" and their resultant coverage by the
election gun ban is to avoid the possible use of recreational guns in
sowing fear, intimidation or terror during the election period. An
ordinary citizen may not be able to distinguish between a real gun and
an airsoft gun. It is fear subverting the will of a voter, whether brought
about by the use of a real gun or a recreational gun, which is sought
to be averted. Ultimately, the objective is to ensure the holding of free,
orderly, honest, peaceful and credible elections this year.
Contrary to petitioner's allegation, there is a regulation that governs
the possession and carriage of airsoft rifles/pistols, namely, Philippine
National Police (PNP) Circular No. 11 dated December 4, 2007,
entitled Revised Rules and Regulations Governing the Manufacture,
Importation, Exportation, Sale, Possession, Carrying of Airsoft
Rifles/Pistols and Operation of Airsoft Game Sites and Airsoft
Teams. The Circular defines an airsoft gun as follows:
Airsoft Rifle/Pistol x x x includes "battery operated, spring and gas
type powered rifles/pistols which discharge plastic or rubber pellets
only as bullets or ammunition. This differs from replica as the latter
does not fire plastic or rubber pellet.
PNP Circular No. 11 classifies the airsoft rifle/pistol as a special type
of air gun, which is restricted in its use only to sporting activities, such
as war game simulation.[9] Any person who desires to possess an
airsoft rifle/pistol needs a license from the PNP, and he shall file his
application in accordance with PNP Standard Operating Procedure
No. 13, which prescribes the procedure to be followed in the licensing
of firearms.[10] The minimum age limit of the applicant is 18 years
old.[11] The Circular also requires a Permit to Transport an airsoft
rifle/pistol from the place of residence to any game or exhibition
site.[12]
A license to possess an airsoft gun, just like ordinary licenses in other
regulated fields, does not confer an absolute right, but only a personal
privilege to be exercised under existing restrictions, and such as may
thereafter be reasonably imposed.[13]
The inclusion of airsoft guns and airguns in the term "firearm" in
Resolution No. 8714 for purposes of the gun ban during the election
period is a reasonable restriction, the objective of which is to ensure
the holding of free, orderly, honest, peaceful and credible elections.
However, the Court excludes the replicas and imitations of airsoft
guns and airguns from the term "firearm" under Resolution No. 8714,
because they are not subject to any regulation, unlike airsoft guns.
Petitioner further contends that Resolution No. 8714 is not in
accordance with the State policies in these constitutional provisions:
Art. II, Sec. 12. The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous social
institution. x x x
Art. XV, Sec. 1. The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen its solidarity
and actively promote its total development.
Art. II, Sec. 17. The State shall give priority to x x x sports to foster
patriotism and nationalism, accelerate social progress, and promote
total human liberation and development.
Petitioner asserts that playing airsoft provides bonding moments
among family members. Families are entitled to protection by the
society and the State under the Universal Declaration of Human
Rights. They are free to choose and enjoy their recreational activities.
These liberties, petitioner contends, cannot be abridged by the
COMELEC.
In its Comment, the COMELEC, through the Solicitor General, states
that it adheres to the aforementioned state policies, but even
constitutional freedoms are not absolute, and they may be abridged to No costs.
some extent to serve appropriate and important interests.
SO ORDERED.
As a long-time player of the airsoft sport, it is presumed that petitioner
has a license to possess an airsoft gun. As a lawyer, petitioner is
aware that

a licensee of an airsoft gun is subject to the restrictions imposed upon

him by PNP Circular No. 11 and other valid restrictions, such as
Resolution No. 8714. These restrictions exist in spite of the
aforementioned State policies, which do not directly uphold a
licensee's absolute right to possess or carry an airsoft gun under any
circumstance.

Petitioner's allegation of grave abuse of discretion by respondent

COMELEC implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction or, in other words, the
exercise of power in an arbitrary manner by reason of passion,
prejudice or personal hostility, and it must be so patent or gross as to
amount to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law.[14]

The Court holds that the COMELEC did not gravely abuse its
discretion in including airsoft guns and airguns in the term "firearm" in
Resolution No. 8714 for purposes of the gun ban during the election
period, with the apparent objective of ensuring free, honest, peaceful
and credible elections this year. However, the replicas and imitations
of airsoft guns and airguns are excluded from the term "firearm" in
Resolution No. 8714.

WHEREFORE, the petition is PARTLY GRANTED insofar as the

exclusion of replicas and imitations of airsoft guns from the term
"firearm" is concerned. Replicas and imitations of airsoft guns and
airguns are hereby declared excluded from the term "firearm" in
Resolution No. 8714. The petition is DISMISSED in regard to the
exclusion of airsoft guns from the term "firearm" in Resolution No.
8714. Airsoft guns and airguns are covered by the gun ban during the
election period.