MODULE 2

CRIMES AGAINST THE FUNDAMENTAL

LAW OF THE STATE

LEARNING OBJECTIVES
At the end of the module, you should be able to:
 Enumerate and explain the crimes affecting the
fundamental law of the state and their elements.
 Discuss the differences between the crimes
affecting the fundamental law of the state.

TITLE: CRIMES AGAINST THE FUNDAMENTAL LAW OF THE STATE

(ARTS. 124-133)

LESSON 1

ART. 124: ARBITRARY DETENTION

ELEMENTS:
1. That the offender is a public officer or employee
2. That he detains a person
3. That the detention is without legal grounds.

LEGAL GROUNDS FOR THE DETENTION OF PERSONS:

1. The commission of a crime
2. Violent insanity or other ailment requiring compulsory confinement of
the patient in a hospital.

** The public officers liable for arbitrary detention must be vested with authority to detain or
order the detention of persons accused of a crime, but when they detain a person they have no
legal grounds therefore.
** Such public officers are the policemen and other agents of the law, the judges or mayors.
** If the detention is perpetrated by other public officers, the crime committed may be illegal
detention, because they are acting in their private capacity.
** If the offender is a private individual, the act of detaining another is illegal detention under
Article 267 or Article 268.
** But private individuals who conspired with public officers in detaining certain policemen
are guilty of arbitrary detention.

WHEN IS THERE DETENTION?

A person is detained when he is placed in confinement or there is a restraint on his person.
Arrest without warrant is the usual cause of arbitrary detention.

Arrest without warrant – when lawful. (Sec. 5, Rule 113, Revised Rules of Criminal Procedure)

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A peace officer or a private person may, without a warrant, arrest a person:
a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
b) When an offense has in fact just been committed, and he has probable cause to
believe based on personal knowledge of facts and circumstances that the person
to be arrested has committed it; and
c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

** Exceptions to the requirement of warrant of arrest must be strictly construed.

** Under Sec. 5, Rule 113 of the Rules of Court, the actual commission of a crime by the person
detained is not necessary to justify his detention because the legality of the detention of a
person does not depend upon the actual commission of a crime by him, but upon the nature of
his deed when its characterization as crime may reasonably be inferred by the officer to whom
the law at the moment leaves the decision for the urgent purpose of suspending the liberty of
that person.
** The crime of arbitrary detention can be committed through imprudence.

PERIODS OF DETENTION PENALIZED.

(a) If the detention has not exceeded 3 days.
(b) If the detention has continued more than 3 days but not more than 15 days.
(c) If the detention has continued more than 15 days but not more than 6
months.
(d) If the detention has exceeded 6 months.

In the case of Astorga vs. People, G.R. No. 154130, October 1, 2003. The Court ruled
that the Joint Affidavit of Desistance of the private complainants is evidently not a clear
repudiation of the material points alleged in the Information and proven at the trial, but a mere
expression of the lack of interest of private complainants to pursue the case. Thus finding
Benito Astorga guilty beyond reasonable doubt of the crime of Arbitrary Detention and
sentencing him to suffer the indeterminate penalty of four months of arresto mayor, as
minimum, to one year and eight months of prision correccional, as maximum.

The crime of arbitrary detention assumes several forms:

(1) Detaining a person without legal grounds under;

(2) Having arrested the offended party for legal grounds but without warrant of arrest, and
the public officer does not deliver the arrested person to the proper judicial authority
within the period of 12, 18, or 36 hours, as the case may be; or

(3) Delaying release by competent authority with the same period mentioned in number 2.

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Distinction between arbitrary detention and illegal detention

1. In arbitrary detention --
The principal offender must be a public officer. Civilians can commit the crime of
arbitrary detention except when they conspire with a public officer committing this crime,
or become an accomplice or accessory to the crime committed by the public officer; and

The offender who is a public officer has a duty which carries with it the authority to detain
a person.

2. In illegal detention --
The principal offender is a private person. But a public officer can commit the crime of
illegal detention when he is acting in a private capacity or beyond the scope of his official
duty, or when he becomes an accomplice or accessory to the crime committed by a
private person.

The offender, even if he is a public officer, does not include as his function the power to
arrest and detain a person, unless he conspires with a public officer committing arbitrary
detention.

Note that in the crime of arbitrary detention, although the offender is a public officer, not
any public officer can commit this crime. Only those public officers whose official duties carry
with it the authority to make an arrest and detain persons can be guilty of this crime. So, if the
offender does not possess such authority, the crime committed by him is illegal detention. A
public officer who is acting outside the scope of his official duties is no better than a private
citizen.

Distinction between arbitrary detention and unlawful arrest

(1) As to offender

In arbitrary detention, the offender is a public officer possessed with authority to make
arrests.

In unlawful arrest, the offender may be any person.

(2) As to criminal intent

In arbitrary detention, the main reason for detaining the offended party is to deny him of
his liberty.

In unlawful arrest, the purpose is to accuse the offended party of a crime he did not
commit, to deliver the person to the proper authority, and to file the necessary charges in
a way trying to incriminate him.

When a person is unlawfully arrested, his subsequent detention is without legal grounds.

LESSON 2

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Art. 125: DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL
AUTHORITIES
ELEMENTS:
1. That the offender is a public officer or employee
2. That he has detained a person for some legal ground (n.b. warrantless arrest)
3. That he fails to deliver such person to the proper judicial authorities within the
prescribed period:
12 hours – light penalties or their equivalent.
18 hours – correctional penalties or their equivalent
36 hours – afflictive penalties or their equivalent

“Shall fail to deliver to proper authorities” does NOT mean physical delivery, but the making of
an accusation or charge, or filing of an information against the person arrested, with the
corresponding court or judge.

REQUEST FOR PRELIMINARY INVESTIGATION: The person so arrested without a warrant

may request for a preliminary investigation, but he must sign a waiver of Art. 126. To avail of
this, the penalty must be higher than 4 years and 2 months and 1 day.

WARRANT OF ARREST: Art. 125 is NOT applicable when the arrest is by virtue of a warrant of
arrest, in which case he can be detained indefinitely. An inquest proceeding is done to
determine the validity of the arrest

ILLEGAL DETENTION:
1. If the offender is a private individual, then the crime is Illegal detention
2. In illegal detention, the detention is legal from the beginning, but becomes illegal
after a certain period of time because the offended party is not delivered to the
proper judicial authority within the period specified.

In the case of Agbas vs.Hon. Deputy Ombudsman, G.R.No. 134503, July 2, 1999.
“Judicial Authority” as contemplated by Article 125 means “the courts of justice or judges of said
courts vested with judicial power to order the temporary detention of a person charged with
having committed a public offense – the Supreme Court and other inferior courts as may be
established by law.” A municipal court judge even in the performance of his function to conduct
preliminary investigation retains the power to issue an order of release or commitment.

Furthermore, upon filing of the complaint with the MCTC, the intent behind Article 125 is
satisfied considering that by such act, the detained person is informed of the crime imputed
against him and, upon his application with the court; he may be released on bail.

Before Article 125 may be applied, it is necessary that initially, the detention of the
arrested person must be lawful because the arrest is based on legal grounds. If the arrest is
made without a warrant, this constitutes an unlawful arrest. Article 269, not Article 125, will
apply. If the arrest is not based on legal grounds, the arrest is pure and simple arbitrary
detention. Article 125 contemplates a situation where the arrest was made without warrant but
based on legal grounds. This is known as citizen’s arrest.

LESSON 3

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ART. 126: DELAYING RELEASE
ELEMENTS:
1. that the offender is a public officer or employee
2. that there is:
a.) A judicial or executive order for the release of a prisoner or detention
prisoner, OR
b.) That there is a proceeding upon a petition for the liberation of such
person
3. that the offender without good reason
(a) delays the service of the notice of such order to the prisoner, OR
(b) the performance of such judicial or executive order for the release of the
prisoner, or the proceedings upon a petition for the release of such person

THREE ACTS ARE PUNISHABLE UNDER ART. 126.

1. By delaying the performance of a judicial or executive order for the release of a
prisoner.
2. By unduly delaying the service of the notice of such order to said prisoner.
3. By unduly delaying the proceedings upon any petition for the liberation of
such person.
** Wardens and jailers are the public officers most likely to violate Article 126 because they are
the ones who are temporarily in charge of the custody of prisoners or detained persons.

LESSON 4

ART. 127: EXPULSION

ELEMENTS:
1. that the offender is a public officer or employee
2. that he:
a. expels any person from the Philippines, (illegal deportation)
OR
b. compels a person to change his residence
2. that the offender is not authorized by law to do so

AUTHORIZED BY LAW:
1. TO DEPORT:
 Only President of the Philippines is authorized to deport aliens under the
RAC, Sec. 69 with (1) investigation by the Deportation Board and (2)
recommendation of such Board to the President
2. TO COMPEL CHANGE OF RESIDENCE:
 Only the Court by a final judgment can order a person to change his
residence. This is illustrated in ejectment proceedings, expropriation
proceedings and in the penalty of destierro.

The Court ruled in Villavicencio, et al. vs. Lukban, et al. 39 Phil. 778 that the Mayor and
the Chief of Police of Manila cannot force the prostitutes residing in that City to go and live in
Davao against their will, there being no law that authorizes them to do so. These women,
despite their being in a sense, lepers of society, are nevertheless not chattels, but Philippine
citizens, protected by the same constitutional guarantees as are other citizens.

LESSON 5

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ART. 128: VIOLATION OF DOMICILE
PUNISHABLE ACTS:
1. ENTERING any dwelling against the will of the owner. The essence of
the offense is the breaching of the express or implied opposition of
prohibition of the owner. A mere entry without consent will not
constitute this crime.
2. SEARCHING papers or other effects found therein without the previous
consent of such owner.
3. REFUSING to leave the premises:
a) After having surreptitiously entered said dwelling and
b) After having required to leave the same. THE ESSENCE of the offense is the
refusal to leave, and not the entrance without consent.

COMMON ELEMENTS:
1. That the offender is a public officer or employee
And that he is not authorized by judicial order to enter the dwelling, and/or to make a
search for papers and for other effects.

SPECIAL AGGRAVATING CIRCUMSTANCES:

1. Committed at nighttime
2. If any papers or effects not constituting evidence of a crime are not returned
immediately, after a search is made by the offender.

** The offender who enters the dwelling against the will of the owner thereof must be a
public officer or employee in order for this Article to be violated. Otherwise, if it is committed by
a private individual, the crime committed is trespass to dwelling under Article 280.
** The public officer or employee is authorized by judicial order when he is armed with a
search warrant duly issued by the court.
** To constitute a violation of domicile, the entrance by the public officer or employee
must be against the will of the owner of the dwelling, which presupposes opposition or
prohibition by said owner, whether express or implied. If the entrance by the public officer or
employee is only without the consent of the owner of the dwelling, the crime is not committed.
Neither is the crime committed if the owner of the dwelling consented to such entrance.
** An officer, in order to make an arrest either by virtue of a warrant, or without a warrant
as provided in Section 5, may break into any building or enclosure where the person to be
arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing
his authority and purpose. (Sec. 11, Rule 113, Revised Rules of Criminal Procedure)

Under Title IX (Crimes against Personal Liberty and Security), the corresponding article
is qualified trespass to dwelling under Article 280. Article 128 is limited to public officers. The
public officers who may be liable for crimes against the fundamental laws are those who are
possessed of the authority to execute search warrants and warrants of arrests.

Under Rule 113 of the Revised Rules of Court, when a person to be arrested enters a
premise and closes it thereafter, the public officer, after giving notice of an arrest, can break into
the premise. He shall not be liable for violation of domicile.

There are only three recognized instances when search without a warrant is considered
valid, and, therefore, the seizure of any evidence done is also valid. Outside of these, search
would be invalid and the objects seized would not be admissible in evidence.

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(1) Search made incidental to a valid arrest;

(2) Where the search was made on a moving vehicle or vessel such that the exigency of he
situation prevents the searching officer from securing a search warrant;

(3) When the article seized is within plain view of the officer making the seizure without
making a search therefore.

There are three ways of committing the violation of Article 128:

(1) By simply entering the dwelling of another if such entering is done against the will of the
occupant. In the plain view doctrine, public officer should be legally entitled to be in the
place where the effects were found. If he entered the place illegally and he saw the
effects, doctrine inapplicable; thus, he is liable for violation of domicile.

(2) Public officer who enters with consent searches for paper and effects without the
consent of the owner. Even if he is welcome in the dwelling, it does not mean he has
permission to search.

(3) Refusing to leave premises after surreptitious entry and being told to leave the same.
The act punished is not the entry but the refusal to leave. If the offender upon being
directed to leave, followed and left, there is no crime of violation of domicile. Entry must
be done surreptitiously; without this, crime may be unjust vexation. But if entering was
done against the will of the occupant of the house, meaning there was express or
implied prohibition from entering the same, even if the occupant does not direct him to
leave, the crime of is already committed because it would fall in number 1.

LESSON 6

ART. 129: SEARCH WARRANTS MALICIOUSLY OBTAINED AND ABUSE IN THE SERVICE
OF THOSE LEGALLY OBTAINED

PUNISHABLE ACTS:
1. By procuring a search warrant without just cause; or
2. Though having procured the same with just cause:
a. by exceeding his authority or,
b. by using unnecessary severity in executing this search warrant legally
procured

SEARCH WARRANT is an order in writing, issued in the name of the people of the Philippines,
signed by a judge and directed to a peace officer commanding him to search for personal
property described therein and bring it before the court. (Sec. 1, Rule 126, Revised Rules of
Criminal Procedure)

** Personal Property to be seized. (Sec. 3, Rule 126, Revised Rules of Criminal Procedure).

A search warrant may be issued for the search and seizure of the following personal property:
 Subject of the offense;
 Stolen or embezzled and other proceeds or fruits of the offense; or

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  Used or intended to be used as the means of committing an offense.

** Requisites for issuing search warrant. (Sec. 4, Rule 126, Revised Rules of Criminal
Procedure)
A search warrant shall not be issued except upon probable cause in connection
with one specific offense to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized which may
be anywhere in the Philippines.

** Validity of search warrant. (Sec. 10, Rule 126, Revised Rules of Criminal Procedure): 10
days from its date.

** Probable cause defined: It is such reasons, supported by facts and circumstances, as will
warrant a cautious man in the belief that his actions, and the means taken in prosecuting it, are
legally just and proper.

** Test of lack of just cause. The true test of lack of just cause is whether the affidavit filed in
support of the application for search warrant has been drawn in such a manner that perjury
could be charged thereon and affiant be held liable for damages caused. The oath required
must refer to the truth of the facts within the personal knowledge of the applicant for search
warrant or his witnesses.

** Search and seizure without warrant as an incident to lawful arrest is legal.

Sec. 12, Rule 126, of the Revised Rules on Criminal Procedure provides that a
person lawfully arrested may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without a search warrant.

In Malacat vs. Court of Appeals, the Court declared that in addition to

the cases mentioned in Rule 113, Sec. 5, of the Rules of Court, valid
warrantless searches are limited to 1) customs searches; 2) searches of
moving vehicles; 3) seizure of evidence in plain view; 4) consent searches;
5) searches incidental to lawful arrest; and 6) “stop and frisk.”

In the case of Robin Padilla vs. Court of Appeals, G.R. No. 121917,
March 12, 1997. Petitioner Robin Padilla was charged with illegal
possession of firearms and ammunitions under PD 1866 when found with
high-powered firearms with live ammunitions on October 3, 1992.
Consequently, he was sentenced to an indeterminate penalty from 17 years,
4 months and 1 day of reclusion temporal as minimum, to 21 years of
reclusion perpetua as maximum. During the investigation, Padilla claimed
that the firearms were used for shooting. He was not able to produce any
permit to carry or memorandum receipt to cover the firearms.

Penalty:
 Arresto mayor in its maximum period to prisión correccional in its minimum period and a
fine not exceeding (₱200,000).

LESSON 7

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ART. 130: SEARCHING DOMICILE WITHOUT WITNESSES
ELEMENTS:
1. that the offender is a public officer or employee
2. that he is armed with search warrant legally procured
3. that he searches the domicile, papers, or other belongings of any person
4. That the owner or any member of his family, or two witnesses residing in
the same locality is not present.

** Article 130 does not apply to searches of vehicles or other means of transportation,
because the searches are not made in dwelling.
** Search without warrant under the Tariff and Customs Code does not include a dwelling
house.

Crimes under Articles 129 and 130 are referred to as violation of domicile. In these articles, the
search is made by virtue of a valid warrant, but the warrant notwithstanding, the liability for the
crime is still incurred through the following situations:

(1) Search warrant was irregularly obtained – This means there was no probable cause
determined in obtaining the search warrant. Although void, the search warrant is entitled
to respect because of presumption of regularity. One remedy is a motion to quash the
search warrant, not refusal to abide by it. The public officer may also be prosecuted for
perjury, because for him to succeed in obtaining a search warrant without a probable
cause, he must have perjured himself or induced someone to commit perjury to convince
the court.

(2) The officer exceeded his authority under the warrant – To illustrate, let us say that there
was a pusher in a condo unit. The PNP Narcotics Group obtained a search warrant but
the name of person in the search warrant did not tally with the address stated.
Eventually, the person with the same name was found but in a different address. The
occupant resisted but the public officer insisted on the search. Drugs were found and
seized and occupant was prosecuted and convicted by the trial court. The Supreme
Court acquitted him because the public officers are required to follow the search warrant
to the letter. They have no discretion on the matter. Plain view doctrine is inapplicable
since it presupposes that the officer was legally entitled to be in the place where the
effects where found. Since the entry was illegal, plain view doctrine does not apply.

(3) When the public officer employs unnecessary or excessive severity in the
implementation of the search warrant. The search warrant is not a license to commit
destruction.

(4) Owner of dwelling or any member of the family was absent, or two witnesses residing
within the same locality were not present during the search.

LESSON 8

ART. 131: PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS

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 ELEMENTS:
1. that the offender is a public officer or employee
2. that he does any of the following prohibited acts:
a. Prohibiting or interrupting the holding of a peaceful meeting, or
dissolving the same, without legal ground;
 There is no legal ground to “prohibit” the meeting, when the danger is not
imminent and the evil to be prevented is not a serious one.
b. hindering any person from joining any lawful association or from
attending any of its meetings;
c. prohibiting or hindering any person from addressing, either alone or
together with others, any petition to the authorities for the correction
of abuses or redress of grievances

** The offender must be a stranger and not a participant thereto otherwise the crime
committed would be unjust vexation.
** The interruption of a peaceful meeting of a municipal council by a public officer is a
crime against a legislative body and not punished under this Article.

The government has a right to require a permit before any gathering could be made.
Any meeting without a permit is a proceeding in violation of the law. That being true, a meeting
may be prohibited, interrupted, or dissolved without violating Article 131 of the Revised Penal
Code.

But the requiring of the permit shall be in exercise only of the government’s regulatory
powers and not really to prevent peaceful assemblies as the public may desire. Permit is only
necessary to regulate the peace so as not to inconvenience the public. The permit should state
the day, time and the place where the gathering may be held. This requirement is, therefore,
legal as long as it is not being exercised in as a prohibitory power.

If the permit is denied arbitrarily, Article 131 is violated. If the officer would not give the
permit unless the meeting is held in a particular place which he dictates defeats the exercise of
the right to peaceably assemble, Article 131 is violated.

At the beginning, it may happen that the assembly is lawful and peaceful. If in the
course of the assembly the participants commit illegal acts like oral defamation or inciting to
sedition, a public officer or law enforcer can stop or dissolve the meeting. The permit given is
not a license to commit a crime.

There are two criteria to determine whether Article 131 would be violated:

(1) Dangerous tendency rule – applicable in times of national unrest such as to prevent
coup d’etat.

(2) Clear and present danger rule – applied in times of peace. Stricter rule.

Distinctions between prohibition, interruption, or dissolution of peaceful meetings under Article

131, and tumults and other disturbances, under Article 153

(1) As to the participation of the public officer

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In Article 131, the public officer is not a participant. As far as the gathering is concerned, the
public officer is a third party.

If the public officer is a participant of the assembly and he prohibits, interrupts, or

dissolves the same, Article 153 is violated if the same is conducted in a public place.

(2) As to the essence of the crime

In Article 131, the offender must be a public officer and, without any legal ground, he
prohibits, interrupts, or dissolves a peaceful meeting or assembly to prevent the
offended party from exercising his freedom of speech and that of the assembly to
petition a grievance against the government.

In Article 153, the offender need not be a public officer. The essence of the crime is that
of creating a serious disturbance of any sort in a public office, public building or even a
private place where a public function is being held.

LESSON 9

Art. 132: INTERRUPTION OF RELIGIOUS WORSHIP

ELEMENTS:
1. that the offender is a public officer or employee
2. that religious ceremonies or manifestations of any religion are about to
take place or are going on, and
3. that the offender prevents or disturbs the same

** This crime is qualified by violence or threats.

** Reading of a Bible and then attacking certain churches in a public plaza is not a
ceremony or manifestation of a religion, but only a meeting of a religious sect.

LESSON 10

ART. 133: OFFENDING RELIGIOUS FEELINGS

ELEMENTS:
1. that the acts complained of were performed:
(a) In a place devoted to religious worship (not necessarily during a
religious worship), OR
(b) During the celebration of any religious ceremony (not necessarily in the
place of worship);
2. And that the acts must be notoriously offensive to the feelings of the faithful.

** The construction of a fence in front of the chapel, even though irritating and vexatious to
those present in the “pabasa,” is not “notoriously offensive to the feelings of the faithful.” The
crime committed is only unjust vexation defined and penalized in Article 287. (People vs. Reyes,
60 Phil. 369)
** Religious ceremonies: are those religious acts performed outside of a church, such as
processions and special prayers for burying dead persons.

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Self- Learning Activity Module 2 Lessons 1-10
Name: ________________________ Section: _______

Instruction: Write your answers in your Activity Notebook. Answer the questions briefly
but concisely. State the legal basis of your answer and relate it with the facts given.
Erasures and markings are not allowed.

Activity No. 2

1. A janitor at the Quezon City Hall was assigned in cleaning the men’s room. One
day, he noticed a fellow urinating so carelessly that instead of urinating at the bowl, he was
actually urinating partly on the floor. The janitor resented this. He stepped out of the men’s
room and locked the same. He left. The fellow was able to come out only after several hours
when people from the outside forcibly opened the door. Is the janitor liable for arbitrary
detention?

2. A had been collecting tong from drivers. B, a driver, did not want to contribute to the
tong. One day, B was apprehended by A, telling him that he was driving carelessly. Reckless
driving carries with it a penalty of immediate detention and arrest. B was brought to the Traffic
Bureau and was detained there until the evening. When A returned, he opened the cell and told
B to go home. Was there a crime of arbitrary detention or unlawful arrest?

3. The arrest of the suspect was done in Baguio City. On the way to Manila, where the
crime was committed, there was a typhoon so the suspect could not be brought to Manila until
three days later. Was there a violation of Article 125?

4. A person surreptitiously enters the dwelling of another. What crime or crimes were
possibly committed?

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