2023 CRIMINAL LAW REVIEWER

WITH CASES PENNED BY J. HERNANDO

BY JUDGE MARLO B. CAMPANILLA

Warning: This is the intellectual property of Judge Campanilla.

Copying any parts of this work in writing materials or book for
publication without proper attribution is prohibited by law.

TERRITORIALITY - For purpose of venue under the Rules of

Criminal Procedure and territoriality principle in Article 2 of the

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Revised Penal Code, the place of commission of the criminal act and
the place of occurrence of the effect of such act, which is an element
of the offense, shall be considered. If one pulled the trigger of his gun
in Quezon City and hit the victim in the City of Manila, who died as
a consequence, Quezon City and the City of Manila, which are the
places of commission of the criminal act and the occurrence of the
criminal effect, are proper venues. If the psychological violence
consisting of marital infidelity punishable under RA No. 9262 is
committed in Singapore but the psychological effect occurred in the
Philippines since the wife of the respondent, who suffered mental
anguish, is residing in the Philippines, our court can assume
jurisdiction (see: AAA vs. BBB, G.R. no. 212448, January 11, 2018).
However, if the commission of the criminal act consummates the
crime and the effect thereof is not an element thereof, the place of
occurrence of the effect shall not be considered for purpose of venue
and territoriality rule. Bigamy committed in Singapore is beyond the
jurisdiction of our court although the offended spouse is residing in
the Philippines since the psychological effect of bigamy on her is not
an element thereof.

Convention of the law of the sea - Under the Convention on

the Law of the Sea, the flag state of a foreign merchant vessel passing
through the 12-mile territorial sea of another state has jurisdiction
over crimes committed therein. However, a coastal state such as the
Philippines can exercise jurisdiction over any crime committed on
board such ship in the following cases: (1) if its consequences extend
to the coastal State; (2) if it disturbs the peace of the country or the
good order of the territorial sea; (3) if the ship master or a diplomatic
or consular officer of the flag State requested assistance from the
local authorities; or (4) if it is for the suppression of traffic in narcotic
drugs or psychotropic substances. Murder or serious physical
injuries committed in a foreign vessel anchored in a Philippine port
against a passenger thereof is within the jurisdiction of the Philippine
court since this crime disturbs the peace of the country.

A regime of islands - Under the territoriality principle, the court

also has jurisdiction over a crime committed in Kalayaan Islands or
Scarborough Shoal because the Baseline Law (RA No. 9522) declares
that the Philippines exercise sovereignty and jurisdiction over it.

200-mile exclusive economic zone - The Philippines has no

sovereignty over the 200-mile exclusive economic zone. Under the
convention of the law of the sea, the Philippines has the sovereign
right to fish and exploit the natural resources in the zone. This
sovereign right is not equivalent to sovereignty. Under the
convention, foreign states have the freedom of navigation and
overflight over the exclusive economic zone of the Philippines.
Freedom of navigation and overflight cannot be exercised in a place
where a State has sovereignty such as its 12-mile territorial water.
Under the convention, the Philippines has limited jurisdiction over
crimes committed within the exclusive economic zone such as those
involving fiscal, custom, immigration, health, and safety. A State has
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absolute jurisdiction over crimes committed in a territory over which
it has sovereignty subject only to a few exceptions under
international laws. The recognition of freedom of navigation and
overflight and the limited jurisdiction over crimes committed in the
exclusive economic zone militates against the concept of sovereignty.

If a Chinese fishing vessel deliberately bumped a Filipino vessel

in the West Philippines Sea covered by the exclusive economic zone
of the Philippines, and as a consequence, several Filipino fishermen
died, the Philippines’ jurisdiction over the crime of murder cannot be
based on the theory that the Philippines has sovereignty over the
zone. Other principles must be used to justify its jurisdiction over a
murder committed within the zone such as flag state rule or
universality principle.

PRESIDENTIAL IMMUNITY - Under Article 14 of the Civil Code,

penal laws shall be obligatory upon all who live or sojourn in the
Philippine territory. This is the generality principle. Hence, a person
regardless of his citizenship, religion, political position or any other
status can be criminally prosecuted and convicted as long as he is
living or sojourning in the territory of the Philippines.

Under the US Constitution, an American citizen has the right to

bear firearms. Even though an American citizen has a US license to
carry a firearm, he can be prosecuted for illegal possession of a loose
firearm if he failed to obtain a permit from PNP to carry it. RA No.
105911 on a loose firearm is obligatory to him regardless of his
foreign characteristic. (People v. Galacgac, C.A., 54 O.G. 1027) The
American constitutional provision on firearms is not operative in the
Philippines.

However, penal laws shall not be obligatory upon a person, who

enjoys criminal immunity from suit. On October 21, 2015, a Chinese
diplomat and her husband killed two Chinese diplomats in Cebu. The
Philippines authorities did not prosecute the killers for murders
because of diplomatic immunity protected by the Vienna Convention
on Diplomatic Relations. The case was referred to China. They will be
prosecuted under Chinese Law.

Case law or jurisprudence recognizes presidential immunity.

Because of this immunity, penal laws are not obligatory for the
President. The President of the Philippines is entitled to immunity
from suit subject to the following conditions: (1) the immunity has
been asserted; (2) during the period of his incumbency and tenure;
and (3) the act constituting the crime is committed in the
performance of his duties. Presidential immunity will assure the
exercise of presidential duties and functions free from any hindrance
or distraction, considering that the Chief Executive is a job that
demands undivided attention. (Estrada v. Desierto, G.R. Nos.
146710-15, March 2, 2001)

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 During the period of his incumbency and tenure, President
Aquino cannot be charged with reckless imprudence resulting in
multiple homicides in connection with the Mamasapano incident
where 44 SAF members were killed because of his presidential
immunity. His decisions concerning the handling of the police
operation leading to the tragic event are official acts. However, after
the tenure of the President, he can be criminally charged since
presidential immunity is not invocable anymore. But, in Nacino v.
Office of the Ombudsman, G.R. Nos. 234789-91, October 16, 2019,
the Supreme Court found no probable cause to charge President
Aquino for reckless imprudence resulting in multiple homicides in
connection with the Mamasapano incident. It was held that Aquino
participated in the planning of the Oplan Exodus to arrest Marwan
and Usman by approving the suggested alternative date of execution
and ordering the increase in the number of troops and coordination
with the AFP. However, these acts barely qualify Aquino as an active
player in the entire scheme of the operations, more so pointing to any
criminal negligence on his part.

Vice-presidential immunity - It is submitted that a Vice

President is not immune from criminal prosecution. The job of the
Vice President, unlike the head of the executive department, does not
demand undivided attention. Hence, the circumstance, on which the
presidential immunity is based, is not obtaining if the position is vice-
presidential.

Some experts are saying that criminally prosecuting a vice

president will violate Section 2 of Article XI of the Constitution, which
mandates that the Vice President may be removed from office only
through an impeachment proceeding. It is submitted however that
there is no constitutional violation since in case of conviction, he can
function as Vice President while serving sentence in prison. However,
the accessory penalty of disqualification, which involved removal
from office, is not implementable since the enforcement thereof will
offend the impeachment provision.

MALA IN SE AND MALA PROHIBITA - Criminal law has long

divided crimes into acts wrong in themselves called "acts mala in se,"
and acts which would not be wrong but for the fact that positive law
forbids them, called "acts mala prohibita." This distinction is
important with reference to the intent with which a wrongful act is
done. The rule on the subject is that in acts mala in se, the intent
governs, but in acts mala prohibita, the only inquiry is, has the law
been violated? When an act is illegal, the intent of the offender is
immaterial. (Estrella vs. People, G.R. No. 212942, June 17, 2020)

To classify a crime as malum in se or malum prohibitum, the

nature thereof and the law that punishes it must be considered.

1. Intentional felony — Intentional felony under the Revised

Penal Code is committed by means of dolo. Since dolo or criminal
intent is an element of intentional felonies, they are mala in se.
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However, there is an exception; technical malversation is an
intentional felony, and yet, the Supreme Court declared it as malum
prohibitum.

In Ysidoro v. People, G.R. No. 192330, November 14, 2012, the

mayor, who applied 10 boxes of food appropriated for the feeding
program to the beneficiaries of the shelter assistance program, is
liable for technical malversation. Mayor’s act, no matter how noble or
minuscule the amount diverted, constitutes the crime of technical
malversation. Criminal intent is not an element of technical
malversation. The law punishes the act of diverting public property
earmarked by law or ordinance for a particular public purpose to
another public purpose. The offense is malum prohibitum, meaning
that the prohibited act is not inherently immoral but becomes a
criminal offense because positive law forbids its commission based
on considerations of public policy, order, and convenience. It is the
commission of an act as defined by the law and not the character and
not the character or effect thereof, that determines whether or not
the provision has been violated. Hence, malice or criminal intent is
completely irrelevant. Dura lex sed lex.

2. Offense under special law – If the offense punishable

under special law is not inherently wrong in nature, it shall be
classified as malum prohibitum. The following offenses under special
laws are mala prohibita for not being inherently evil: violation of BP
Blg. 22 (Ongkingco vs. Sugiyama, G.R. No. 217787, September 18,
2019); illegal recruitment (People vs. Espiritu, G.R. No. 226140,
February 26, 2020) (People vs. Sison, G.R. No. 187160, August 9,
2017); crimes involving dangerous drugs (Pang vs. People, G.R. No.
176229, October 19, 2011); and possession of loose firearms (People
vs. Peralta, G.R. No. 221991, August 30, 2017).

If the offense punishable under special law is inherently evil,

there are two views on the standard in classifying a crime as malum
in se or malum prohibitum.

First view - The first view is that if the offense is punishable

under a special law, it will be treated as malum prohibitum.

Fencing is a concept substantially similar to that of theft or

robbery committed by an accessory. Like theft or robbery committed
by an accessory, fencing is wrong in character. However, since
fencing is punishable under a special law, the Supreme Court in
Cahulugan vs. People, G.R. No. 225695, March 21, 2018, and
Estrella vs. People, G.R. No. 212942, June 17, 2020 declares it as
malum prohibitum.

Sexual harassment under RA No. 7877 (Escandor vs. People,

G.R. No. 211962, July 06, 2020) and trafficking in person under RA
No. 9208 (People vs. Dela Cruz, G.R. No. 238754, June 16, 2021) are
inherently wrong. However, the Supreme Court declared sexual

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harassment and trafficking in person as mala prohibita since they
are punishable under special criminal statutes.

Second view - The second view is that although the offense is

punishable under a special law, if the same is inherently evil it will
be treated as malum in se.

An election offense e.g., Dagdag-bawas and child pornography

under RA No. 9775 (now online sexual abuse or exploitation of
children or OSAEC under RA No. 11930) are mala in se for being
immoral per se although they are punishable under a special law.
(Garcia v. Court of Appeals, G.R. No. 157171, March 14, 2006;
Cardona vs. People, G.R. No. 244544, July 06, 2020; Cadajas vs.
People, G.R. No. 247348, June 15, 2022)
In Napoles vs. Sandiganbayan, G.R. No. 224162, November 7,
2017, the legislative declaration in RA No. 7659 that the crime of
plunder under RA No. 7080 is a heinous offense implies that it is a
malum in se. For when the acts punished are inherently immoral or
inherently wrong, they are mala in se and it does not matter that
such acts are punished in a special law, especially since in the case
of plunder the predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as though they are
mere prosecutions for violations of BP Blg. 22 or of an ordinance
against jaywalking, without regard to the inherent wrongness of the
acts. (Estrada vs. Sandiganbayan, G.R. No. 148965. February 26,
2002)

In XXX vs. Peeople, G.R. No. 221370, June 28, 2021 (Third
Division, Hernando) and XXX vs. People, G.R. No. 252087, February
10, 2021 (First Division), violence against women under RA No. 9262
was declared malum prohibitum. However, in Acharon vs. People,
G.R. No. 224946, November 9, 2021, the Supreme Court En Banc
disregarded the principle in the XXX case and XXX case and declared
violence against women as malum in se although it is punishable
under a special law.

Sexual abuse and child abuse are both punishable under RA

No. 7610, and yet, the Supreme Court classified them differently.

Sexual abuse under Section 5 (b) of RA No. 7610 is considered

by the Supreme Court as malum prohibitum simply because it is
punishable under a special law. In sum, the first view was applied in
this case. (Carbonell vs. People, G.R. No. 246702, April 28, 2021;
People vs. Udang, G.R. No. 210161, January 10, 2018, People vs.
Caoili, G.R. No. 196342, August 08, 2017; People vs. Caballo, G.R.
No. 198732, June 10, 2013, Imbo vs. People, G.R. No. 197712, April
20, 2015, and Malto vs. People, G.R. No. 164733, September 21,
2007)

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 Before child abuse under Section 10 of RA No. 7610 is
considered by the Supreme Court as malum prohibium (Lucido vs.
People, G.R. No. 217764, August 7, 2017). However, the latest cases
treated child abuse as malum in se. (People vs. Mabunot, G.R. No.
204659, September 19, 2016; Malcampo-Repollo vs. People, G.R. No.
246017, November 25, 2020) In sum, the second view was applied in
this case.

In Patulot vs. People, G.R. No. 235071, January 7, 2019, the

Supreme Court considered child abuse as malum in se. Accordingly,
when the acts complained of are inherently immoral, they are
deemed mala in se, even if a special law punishes them. Physical
abuse of a child under RA No. 7610 is inherently wrong; hence,
criminal intent on the part of the offender must be clearly established
with the other elements of the crime. In sum, the second view was
applied.

In Demata vs. People, G.R. No. 228583, September 15, 2021,

the offense of creating "conditions prejudicial to the child's
development" under Section 10 (a) of RA No. 7610 is not mala
prohibita, for there may be instances where the child finds
himself/herself in that situation without the willful intent of the
adults around him or her. For example, failure to send a child to
school would certainly be prejudicial to his/her development, but if
it was because the child lived in a remote area under the care of an
unemployed and financially struggling single parent, the latter may
not necessarily be convicted under Section 10(a) of R.A. 7610. The
same may not necessarily be said of parents who are well-off but
intentionally deprives education for their children just so that they
could always have someone to order around the house. This is the
same principle that underpins cases where this Court found the
accused guilty of slight physical injuries instead of child abuse
because the circumstances did not show the act was not intended to
debase, degrade, or demean the intrinsic worth and dignity of a child
as a human being.
This writer humbly submits that the second view is the correct
view. The first view is not based on the definition of mala in se, which
are inherently-wrong crimes. Even without a special law punishing
sexual abuse or trafficking in person, sexually abusing a child or
trafficking a person for prostitution is wrong.
Moreover, the significance of the classification of a crime as
malum in se or malum prohibitum is the acceptance or rejection of the
defense of good faith or lack of evil intent. The law penalizes malum
in se because it is inherently evil. If the accused in a case involving
malum in se committed the subject act in good faith or without evil
intention, the condition of evilness, which is why the law penalizes it,
does not exist. Hence, he will be acquitted. On the other hand, if the
accused in a case involving malum prohibitum committed the subject
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act in good faith or without evil intention, he will still be convicted.
Lack of evilness is not material in the prosecution for malum
prohibitum because the law penalizes the same not based on the evil
character of the act but due to the commission of a prohibited act. If
the first view will be observed, then the acceptance or the rejection of
the defense of lack of evil intention will absurdly depend on the
source of the law, and not on the evil or non-evil nature of the crime.
In Dungo v. People, G.R. No. 209464, July 1, 2015, it was ruled:
A common misconception is that all mala in se crimes are found in
the Revised Penal Code, while all mala prohibita crimes are provided
by special penal laws. In reality, however, there are mala in se crimes
under special laws, such as plunder under R.A. No. 7080. Similarly,
there are mala prohibita crimes under the Revised Penal Code, such
as technical malversation. The better approach to distinguish
between mala in se and mala prohibita crimes is the determination of
the inherent immorality or vileness of the penalized act. If the
punishable act or omission is immoral in itself, then it is a crime
malum in se; on the contrary, if it is not immoral in itself, but there
is a statute prohibiting its commission by public policy reasons, then
it is malum prohibitum. In Demata vs. People, G.R. No. 228583,
September 15, 2021, Cardona vs. People, G.R. No. 244544, July 06,
2020, and Cadajas vs. People, G.R. No. 247348, June 15, 2022 the
Supreme Court adopted the Dungo principle.

For purpose of the bar exam, if the crime is sexual abuse under
Section 5 of RA No. 7610, fencing, hazing, sexual harassment, sexual
abuse or trafficking in person the first view must be followed because
the Supreme Court says so. Thus, they are mala prohibita since they
are punishable under special laws. On the other hand, if the crime is
child abuse under Section 10 (a) of RA No. 7610, violence against
woman, plunder, carnapping, piracy or highway robbery/brigandage
under PD No. 532, or terrorism, the second view must be observed.
Thus, they are mala in se since they are wrong in nature.

Partakes the nature of malum prohibitum – Section 3 (g) of

RA No. 3019 punishes a public officer, who has entered, on behalf of
the government, into a contract or transaction manifestly and grossly
disadvantageous to the government. Violation of this provision
partakes of the nature of malum prohibitum. (Luciano vs. Estrella,
G.R. No. L-31622, August 31, 1970; Villa vs. Sandiganbayan, G.R.
No. 87186, April 24, 1992) Lack of benefits from the contract is not
a defense on the part of the public officer.

Private individuals, who benefitted from the contact, which is

grossly and manifestly disadvantageous to the government, will be
held liable under Section 4(b) of RA No. 3019. In other words,
notwithstanding the allegation of conspiracy with a public officer to
violate Section 3(g), the liability of these private individuals will be
based on Section 4 (b), which punishes any person for knowingly
inducing or causing the public officers to commit Section 3(g). In

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violation of Section 4 (b), criminal intent must necessarily be
proved. This is in clear recognition that Section 3(g), a malum
prohibitum specifically applies to public officers only. (Go vs. Fifth
Division, Sandiganbayan, G.R. NO. 172602, September 3, 2007) In
sum, violation of Section 4 (b) is malum in se.

Section 3 (d) of RA No. 3019 punishes a public officer or any

member of his family, who accept employment in a private enterprise
with whom such public officer has a pending official business with
during the pendency thereof or within one year from its termination
as it is considered a corrupt practice. In Villanueva vs. People, G.R.
No. 237864, July 8, 2020, the Supreme Court declared violation of
Section 3 (d) as malum prohibitum. It was held that mere acceptance
by wife of a TESDA officer, of employment with RACE, with pending
business with TESTA, renders them liable under the law.

In Luciano case, the Supreme Court declared a violation of

Section 3 (g) of RA No. 3019 as a crime that partakes of the nature of
malum prohibitum. On the other hand, in Villanueva case, the Court
considered a crime under Section 3 (d) of RA No. 3019 as malum
prohibitum.

Settled in the rule that violation of RA No. 3019 partakes of the

nature of malum prohibitum. However, the offense under Section 3 (e)
of R.A. No. 3019 may be committed either by dolo, as when the
accused acted with evident bad faith or manifest partiality, or by
culpa, as when the accused committed gross inexcusable negligence.
(Plameras v. People, G.R. No. 187268, September 4, 2013) Since
malice, evident bad faith or manifest partiality is an element of a
violation of Section 3 (e) of RA No. 3019, this crime also partakes the
character of malum in se.

ABERRATIO ICTUS – If the crimes committed against the target

victim and third person, who was hit by reason of aberratio ictus,
were produced by a single act, the accused is liable for a complex
crime. Thus, a single act of throwing a grenade or firing a gun killing
one and injuring another constitutes a complex crime of murder with
attempted murder. (People v. Julio Guillen, G.R. No. L-1477, January
18, 1950; People vs. Bendecio, G.R. No. 235016, September 08, 2020)
However, the accused is liable for separate crimes despite the
application of the aberratio ictus rule, and not a complex crime in the
following cases:

1. If the bullet that killed the target victim is different from the
bullet that killed the third person, who was hit by reason of aberratio
ictus (People v. Flora, G.R. No. 125909, June 23, 2000; People v.
Adriano, G.R. No. 205228, July 15, 2015; Cruz vs. People, G.R. No.
216642, September 8, 2020);

2. If the crime committed against the third person, who was hit
by reason of aberratio ictus, is merely a light felony such as slight

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physical injuries (People v. Violin, G.R. Nos. 114003-06, January 14,
1997);

3. If the components of a complex crime are alleged in two

different information. (People v. Umawid, G.R. No. 208719, June 9,
2014);

4. If the crime committed against the third person, who was hit
by reason of aberratio ictus, is child abuse, which is an offense
punishable under special law (Patulot vs. People, G.R. No. 235071,
January 7, 2019) Components of complex crime must be felonies.

The accused consciously poured hot cooking oil from a

casserole on CCC, consequently injuring AAA (3 years old) and BBB
(2 months old) burning their skins and faces. Accused is liable for
child abuse involving infliction of physical injury although there is no
intent to degrade, debase or demean the intrinsic worth and dignity
of AAA and BBB as human beings. In fact, the intention of the
accused is merely to inflict injury on CCC but because of aberratio
ictus or mistake of blow, AAA and BBB were also injured. In sum,
because of Article 4 of RPC, accused is liable for the wrongful act
done (child abuse against AAA and BBB) although it differs from the
wrongful act intended (physical injuries on CCC). This is not a
complex crime. Accused is convicted of two counts of child abuse.
(See: Patulot vs. People, G.R. No. 235071, January 7, 2019) He
should also be held liable for physical injuries.

Although the accused did not intend to kill Jonabel, treachery

may still be appreciated in aberratio ictus Just because Jonabel was
not the intended victim does not make accused's sudden attack any
less treacherous. (People vs. Bendecio, G.R. No. 235016, September
08, 2020)

IMPOSSIBLE CRIME – Stabbing a person without knowing that

he is already dead is an impossible crime. (Intod v. Court of Appeals,
G.R. No. 103119, October 21, 1992) However, if the accused, who
stabbed the dead body of the victim, conspired with the one who
previously hacked and killed the victim, the former is liable for
murder and not an impossible crime because of the collective
responsibility rule. The liability of the accused for murder is not
based on his act of stabbing the dead body of the victim. His liability
is based on the act of his co-conspirator in hacking and killing the
victim, which by the fiction of the law shall be treated as the act of
both of them. (People v. Callao, G.R. No. 228945, March 14, 2018,)

STAGES - The crime of grave threat is consummated as soon

as the threats come to the knowledge of the person threatened or as
soon as the victim heard the accused utter his threatening remarks.
(People vs. Bueza, G.R. No. 242513, November 18, 2020, Hernando)

When the accused intended to kill his victim, as manifested by

his use of a deadly weapon in his assault, and his victim sustained
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fatal or mortal wound/s but did not die because of timely medical
assistance, the crime committed is frustrated murder or frustrated
homicide depending on whether or not any of the qualifying
circumstances under Article 249 of the Revised Penal Code are
present. However, if the wound/s sustained by the victim in such a
case were not fatal or mortal, then the crime committed is only
attempted murder or attempted homicide. If there was no intent to
kill on the part of the accused and the wound/s sustained by the
victim were not fatal, the crime committed may be serious, less
serious or slight physical injury. (People vs. Pilen, G.R. No. 254875,
February 13, 2023, Hernando)

MITIGATING CIRCUMSTANCE - A signboard "no testing no

smoking" was posted in front of the fireworks store. Despite this
warning, the accused deliberately lit the mother rocket and directed
toward the other firecrackers on display. The burning of the
merchandise and the building (and the death of a victim) is a
foreseeable result. Judging from his action, conduct, and external
acts, there was intent to cause damage to another's property by fire.
The accused is liable for arson with homicide and the claim that he
did not intend to commit so grave a wrong as that perpetrated was
rejected. (People vs. Pugal, G.R. No. 229103, March 15, 2021)

SELF-DEFENSE – Self-defense is an affirmative allegation and

offers exculpation from liability for crimes only if satisfactorily
proved. It requires (a) unlawful aggression on the part of the victim;
(b) reasonable necessity of the means employed by the accused to
repel it; and (c) lack of sufficient provocation on his part.16 By
invoking self-defense, the burden is placed on the accused to prove
its elements clearly and convincingly. While all three elements must
concur, self-defense relies first and foremost on proof of unlawful
aggression on the part of the victim. If no unlawful aggression is
proved, no self-defense may be successfully pleaded. (People v.
Pereira, G.R. No. 220749, January 20, 2021)

Unlawful aggression is of two kinds: (a) actual or material

unlawful aggression; and (b) imminent unlawful aggression. Actual
or material unlawful aggression means an attack with physical force
or with a weapon, an offensive act that positively determines the
intent of the aggressor to cause the injury.

Imminent unlawful aggression means an attack that is

impending or at the point of happening; it must not consist in a mere
threatening attitude, nor must it be merely imaginary, but must be
offensive and positively strong (like aiming a revolver at another with
intent to shoot or opening a knife and making a motion as if to
attack). Imminent unlawful aggression must not be a mere
threatening attitude of the victim, such as pressing his right hand to
his hip where a revolver was holstered, accompanied by an angry
countenance, or like aiming to throw a pot. (Ganal, Jr. vs. People,
G.R. No. 248130, December 2, 2020)

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 INSANITY - The defense of insanity is in the nature of a
confession or avoidance because an accused invoking it admits to
have committed the crime but claims that he should not be criminally
liable therefor because of insanity, which is an exempting
circumstance. An accused invoking the exempting circumstance of
insanity bears the burden of proving it with clear and convincing
evidence because every person is presumed sane. (People vs. Mirana,
G.R. No. 219113, April 25, 2018)

The three-way test in determining whether the exempting

circumstance of insanity may be appreciated are as follows: (1),
insanity, which is the primary cause of the criminal act, must be
medically proven; (2) the effect of the insanity is the inability to
appreciate the nature and quality or wrongfulness of the act
(cognition test); and (3) insanity must be present at the time of the
commission of the crime; (People vs. Pilen, G.R. No. 254875,
February 13, 2023, Hernando)

There was no expert witness presented by the defense to testify

on the mental state of the accused from a medical standpoint. While
testimonies from medical experts are not absolutely indispensable in
cases involving the insanity defense, their observation of the accused
are considered to be more accurate and authoritative in determining
an accused's mental state. Expert testimonies enable courts to
ascertain whether the behavior of the accused actually arose from a
mental disease. The nature and degree of an accused's mental illness
can be best identified by medical experts equipped with specialized
knowledge to diagnose a person's mental health. (People vs. Pilen,
G.R. No. 254875, February 13, 2023, Hernando)

The defense claimed that accused was insane at the time of the
incident because he was tested positive for THC-metabolites, a
dangerous drug. Using drug intoxication as a defense is perplexing
taking into consideration that use of dangerous drugs is considered
a qualifying circumstance under Section 25 of RA 9165. (People vs.
Pilen, G.R. No. 254875, February 13, 2023, Hernando)

There are two tests (People v. Formigones, G.R. No. L-3246,

November 29, 1950) to determine whether the mental condition of the
accused is exempting or mitigating, to wit: the test of cognition and
test of volition.
1. Test of Cognition — Under the test of cognition, the
mental condition of the accused is an exempting circumstance of
insanity if there was a complete deprivation of intelligence in
committing the criminal act (People v. Bulagao, G.R. No. 184757,
October 5, 2011; People v. Bacolot, G.R. No. 233193, October 10,
2018); or mitigating circumstance of mental illness if there was only
a partial deprivation of intelligence. (People v. Puno, G.R. No. L-33211,
June 29, 1981)

12 | P a g e
 After satisfying his lust, the accused threatened the victim. This
implies that the accused knew what he was doing, that it was wrong,
and wanted to keep it a secret. It also indicated that the crime was
committed during one of his lucid intervals. Accused is not exempt
from liability for failure to pass the cognition test. (People v. Alipio,
G.R. No. 185285, October 5, 2009)
The accused's voluntary surrender the following day when he
killed the deceased belies his claim of insanity. This act tends to
establish that he was well aware of what he had just committed.
(People v. Bacolot, G.R. No. 233193, October 10, 2018)
2. Test of Volition — Under the test of volition, the mental
condition of the accused is a mitigating circumstance of mental
illness if there is deprivation of freedom. In sum, if a sex maniac or
homicidal maniac had merely passed the volition test but not the
cognition test, he will only be given the benefit of mitigating
circumstance of illness. Diminution of freedom is enough to mitigate
the liability of the offender suffering from illness. (see: People v.
Rafanan, Jr., G.R. No. 54135, November 21, 1991) Thus, kleptomania
is a mitigating circumstance of mental illness.
In People v. Bonoan, G.R. No. 45130, February 17, 1937, a
schizophrenic accused, who acted under an irresistible homicidal
impulse to kill, was acquitted due to insanity. In sum, the Supreme
Court merely considered the test of volition in declaring the accused
exempt from criminal liability. This is not a good rule anymore.
The basis of the exempting circumstance of insanity is lack of
intelligence and not lack of freedom. Thus, even if the mental
condition of the accused had passed the volition test (deprivation of
freedom), the plea of insanity will not prosper unless it also passed
the cognition test (deprivation of intelligence). The controlling rule is
the cognition test for purposes of the exempting circumstance of
insanity. (People v. Opuran, G.R. Nos. 147674-75, March 17, 2004)
In several Supreme Court cases, the pleas of insanity of accused
who are suffering from schizophrenia or psychosis were rejected
because of failure to pass the cognition test. In absence of evidence
that the schizophrenic or psychotic accused was deprived completely
of intelligence at the time of the commission of the crime, it is
presumed that he is sane when he committed the crime. (People v.
Medina, G.R. No. 113691, February 6, 1998; People v. Pascual, G.R.
No. 95029, March 24, 1993; 1991 Bar Exam) In People v. Marzan, G.R.
No. 207397, September 24, 2018, schizophrenia does not fall within
the stringent standard contemplated by law as an exempting
circumstance of insanity.
13 | P a g e
 Time of insanity - In order for the accused to be exempted
from criminal liability under a plea of insanity, he must successfully
show that: (1) he was completely deprived of intelligence; and (2)
such complete deprivation of intelligence must be manifest at the
time or immediately before the commission of the offense. (People v.
Bacolot, G.R. No. 233193, October 10, 2018; People vs. Mirana, G.R.
No. 219113, April 25, 2018) It is permissible to receive evidence of
his mental condition for a reasonable period both before and after the
time of the act in question. Direct testimony is not required nor are
the specific acts of derangement essential to establish insanity as a
defense. (People v. Haloc, G.R. No. 227312, September 5, 2018)

The accused underwent out-patient consultation for his

diagnosed condition of schizophrenia from August 2006 until 13
June 2009. However, there is no proof of his abnormal psychological
behavior immediately before or simultaneous with the commission of
the crime (on November 9, 2009). Thus, insanity is not exempting.
(People vs. Dela Cruz, G.R. No. 227997, October 16, 2019)

Proof of the insanity of the accused after the commission of the

crime, especially during trial, is immaterial, unless submitted to
prove that the insanity is continuous or recurring. (People vs. Toledo,
G.R. No. 229508, March 24, 2021) The mental condition of the
accused is neither an exempting circumstance nor a mitigating
circumstance if the accused was already treated for a schizophrenic
condition several years before the commission of rape. (People v.
Arevalo, Jr., G.R. Nos. 150542-87, February 3, 2004, En Banc)

IMBECILITY AND MINORITY – Mental retardation includes (a)

idiot, whose mental age is two-year old; (b) imbecile, whose mental
age is seven-year old; (c) moron or feebleminded, whose mental age
is twelve-year old and (d) borderline intelligence. (People vs. Butiong,
G.R. No. 168932, October 19, 2011; People vs. Bayrante, G.R. No.
188978, June 13, 2012; People vs. Gilles, G.R. No. 229860, March
21, 2018) For purpose of statutory rape, there is no difference
between actual age and mental age.

Having sexual intercourse with the offended party, who is under

16 years of age, is statutory rape under Article 266-A (d) of RPC as
amended by RA No. 11648. The word “age” in this provision includes
chronological age and mental age. Hence, having sexual intercourse
with idiot, imbecile, or feebleminded is statutory rape under Article
266-A (d) (People vs. Daniega, G.R. No. 212201, June 28, 2017;
People vs. Labordo, G.R. No. 239033, February 13, 2019; People vs.
XXX, G.R. No. 243988, August 27, 2020). Having sexual intercourse
with a person with borderline intelligence with a mental age of under
16 is also statutory rape.

The word “age” in the phrase “person below 18 years of age” in

Section 3 of RA No. 7610 is either chronological or mental. A person
14 | P a g e
who has a cognitive disability would be considered a child under RA
No. 7610 based on his or her mental age, not chronological age. For
purpose of Section 3 of RA No. 7610, there is no difference between
actual age and mental age. Thus, a mentally-retarded adult (24 years
of age), who had a mental age of an 8-year-old, is a child protected
by RA No. 7610. (Versoza vs. People, G.R. No. 184535, September 03,
2019) Since the concept of a child in RA No. 7610 is adopted by RA
No. 9208, a mentally-retarded adult is a child within the context of
qualified trafficking in person. (People vs. Ybanez, G.R. No. 220461,
August 24, 2016)

Under Section 5 (b) of RA No 7610 as amended by RA No. 10648,

when the child subjected to sexual abuse is under 16 years of age,
the perpetrators shall be prosecuted for rape and acts of
lasciviousness under RPC. The word “age” in the phrase “when the
victim is under sixteen (16) years of age” in Section 5 (b) of RA No.
7610 is either chronological or mental. For purpose of Section 5 (b)
of RA No. 7610, there is no difference between actual age and mental
age. Hence, the victim whose actual age is 16 years old but her
mental age is 9 years old, is considered as a victim under 16 years of
age within the contemplation of Section 5 (b). (People vs. Pusing, G.R.
No. 208009, July 11, 2016)

In exempting circumstance, there is a difference between

actual age and mental age. In exempting circumstance of imbecility,
what is important is the mental age of the accused. An idiot, whose
mental age is 2 years, and an imbecile, whose mental age is 7 years
old (People vs. Butiong, G.R. No. 168932, October 19, 2011,
Bersamin) are exempt from criminal liability. A feebleminded, whose
mental age is 12 years old, is not exempt from criminal liability since
he is not an imbecile (People vs. Nunez, G.R. No. 112429-30, July 23,
1997) but he is entitled to mitigating circumstance of mental illness
(People vs. Formigones, G.R. No. L-3246, November 29, 1950). In
exempting circumstance of minority under Section 6 of RA No. 9344,
what is important is the chronological or actual age of the accused.

If the actual age of the accused is 18 years old and mental age
is 9 years old, the exempting circumstance of minority and imbecility
shall not be appreciated because he is neither a minor nor an
imbecile (People vs. Roxas, G.R. No. 200793, June 04, 2014).

AGGRAVATING CIRCUMSTANCES - There are new guidelines

on how to allege aggravating or qualifying circumstance in the
Information. In cases where law uses a broad term to embrace
various situations in which may exist, such as but are not limited to
(1) treachery; (2) abuse of superior strength; (3) evident
premeditation; (4) cruelty, alleging in the information the name of the
modifying circumstance e.g. treachery is not enough. The
information must state the ultimate facts relative to such
circumstance e.g. alleging that the accused surreptitiously stabbed
the victim at his back to ensure that he cannot defend himself. In
case of failure to comply with the rule on allegation of ultimate facts,
15 | P a g e
the Information may be subject to a motion to quash or a motion for
a bill of particulars. Failure of the accused to avail any of the said
remedies constitutes a waiver of his right to question the defective
statement of the aggravating or qualifying circumstance in the
Information, and consequently, the same may be appreciated against
him if proven during trial. Alternatively, prosecutors may sufficiently
aver the ultimate facts relative to a qualifying or aggravating
circumstance by referencing the pertinent portions of the resolution
finding probable cause against the accused, which resolution should
be attached to the Information. (People vs. Solar, G.R. No. 225595,
August 6, 2019; People vs. Pilen, G.R. No. 254875, February 13,
2023, Hernando)

The Information for murder alleged that the killing of the victim
is qualified by the circumstances of treachery and abuse of superior
strength. This information is defective since the prosecution failed to
allege facts on which treachery and abuse of super strength are
based. (The prosecution to comply with Solar principle may allege
that accused to render the victim defenseless surreptitiously stabbed
in at his back) It was held that: Accused did not question the
supposed insufficiency of the Information filed against him through
either a motion to quash or motion for bill of particulars. He
voluntarily entered his plea during the arraignment and proceeded
with the trial. Thus, he is deemed to have waived any of the waivable
defects in the Information, including the supposed lack of
particularity in the description of the attendant circumstances.
(People vs. Solar, supra; People vs. Pilen, G.R. No. 254875, February
13, 2023, Hernando)

Treachery – Although appellant contends that there were

defensive wounds on his arms, these do not show that the victim was
able to put up an effective defense. This Court finds these wounds to
be merely the result of a reflex action on the victim's part, in a vain
attempt to avoid the thrusts of the knife. Apropos to this is the case
of People v. Go-od, where even the fact that a victim was able to stab
one of his assailants was held as not negating the presence of
treachery. (People vs. Moreno. G.R. No. 191759, March 02, 2020)

Jurisprudence teaches that the mere allegation of the victim's

minority is sufficient to qualify the crime to Murder. The killing of a
child is characterized by treachery regardless of whether the manner
of the assault is shown in the Information, as the weakness of the
victim due to his or her tender age results in the absence of any
danger to the accused. Otherwise stated, the killing of a child of
tender years is deemed ipso facto qualified by treachery due to his or
her inherent defenselessness. People vs. Pilen, G.R. No. 254875,
February 13, 2023, Hernando)

Use of dangerous drugs - It is worthy to point out that under

Section 25 of RA 9165, "notwithstanding the provisions of any law to
the contrary, a positive finding for the use of dangerous drugs shall
be a qualifying aggravating circumstance in the commission of a
16 | P a g e
crime by an offender, and the application of the penalty provided for
in the Revised Penal Code shall be applicable." However, given that
this was not alleged in the Information nor raised as an argument by
the prosecution in the proceedings below, the same shall not be
considered against accused. (People vs. Pilen, G.R. No. 254875,
February 13, 2023, Hernando)

PARTIAL RESTITUTION - The payment, indemnification, or

reimbursement of, or compromise on the amounts or funds
malversed or misappropriated, after the commission of the crime,
does not extinguish the accused's criminal liability or relieve the
accused from the penalty prescribed by the law. At best, such acts of
reimbursement may only affect the offender's civil liability, and may
be credited in his favor as a mitigating circumstance analogous to
voluntary surrender. Accused enjoys the mitigating circumstance of
voluntary surrender, due to his partial restitution of the amount
malversed (Valenzuela vs. People, G.R. No. 205693, February 14,
2018; See also: People vs. Dapitan, G.R. No. 253975, September 27,
2021)

CONSPIRACY – Conspiracy transcends mere companionship,

and mere presence at the scene of the crime does not in itself amount
to conspiracy. Even knowledge of, or acquiescence in, or agreement
to cooperate is not enough to constitute one a party to a conspiracy,
absent any active participation in the commission of the crime with
a view to the furtherance of the common design and purpose. (People
vs. De Gusman, G.R. No. 241248, June 23, 2021)

The fact that the accused prevented preventing Oliva from

reporting the shooting incident to the police is not an indication that
he conspired with co-accused in killing the victim. Mere knowledge,
acquiescence, or approval of the act, without cooperation or
agreement to cooperate, is not enough to constitute one a party to a
conspiracy. There must be intentional participation in the
transaction with a view to the furtherance of the common design and
purpose. The shooting incident transpired during a heated argument
on a drinking spree. There was no showing that the accused actively
participated in the furtherance of the common design or purpose
since the shooting transpired and was consummated even without
his cooperation or assistance. (De Los Santos vs. People, G.R. No.
231765, August 24, 2020). However, he could be held liable for
obstruction of justice.

If there is a conspiracy, the act of the public officer in violating

RA No. 3019 is imputable to the private individual although they are
not similarly situated in relation to the object of the crime. Moreover,
Section 9 of RA No. 3019 provides penalty for public officer or private
person for crime under Section 3. Hence, a private individual can be
prosecuted for violation of RA No. 3019 (Go vs. The Fifth Division,
Sandiganbayan, G.R. No. 172602, April 13, 2007). Even if the public
officer, with whom the private individual allegedly conspired, died,
the latter can still be prosecuted for violation of RA No. 3019. Death
17 | P a g e
extinguishes the criminal liability but not the crime. Hence, if there
is proof of the crime and conspiracy between the dead public officer
and private individual, the latter can still be convicted of violation of
RA No. 3019 (People vs. Go, GR No. 168539, March 25, 2014; Canlas
vs. People, G.R. Nos. 236308-09, February 17, 2020). However, if the
public officer with whom the private individual allegedly conspired is
acquitted, the latter should also be acquitted (Marcos vs.
Sandiganbayan, G.R. No. 126995, October 6, 1998).

While the primary offender in violation of RA No. 3019 and

plunder are public officers, private individuals may also be held liable
for the same if they are found to have conspired with said officers in
committing the same. This proceeds from the fundamental principle
that in cases of conspiracy, the act of one is the act of all. In this
case, Janet Napoles engaged in the illegal hemorrhaging of Senator
Enrile's PDAF. Thus, they are rightfully charged as a co-conspirator
for corruption and plunder. (Napoles vs. Carpio-Morales, G.R. Nos.
213542-43, March 15, 2016)

Private persons acting in conspiracy with public officers may be

indicted and if found guilty, be held liable for the pertinent offenses
under Section 3 of Republic Act No. 3019. (Granada vs. People, G.R.
No. 184092, February 22, 2017) When a contract that is grossly and
manifestly disadvantageous to the government is entered into, the
persons involved—whether public officers or private persons—may
be charged for violating the Anti-Graft and Corrupt Practices Act and
suffer the same penalty if found guilty beyond reasonable doubt.
(Garcia-Diaz vs. Sandiganbayan, G.R. No. 193236, September 17,
2018)

If a contract with the government involved an overprice

products or services, the public officers are liable for violation of
Section 3 (e) of RA No. 3019 for causing undue injury to the
government or giving undue advantage to the overpaid private
individual through manifest partiality and evident bad faith; or
violation of Section 3 (g) for entering into a contract, which is
manifestly and grossly disadvantageous to the government. The
overpaid private individual is also liable for violation of Section 3 (e)
or (g) of RA No. 3019 on the basis of conspiracy and Go vs. Fifth
Division of the Sandiganbayan. (Santillano vs. People, G.R. Nos.
175045-46, March 03, 2010; Uyboco vs. People, G.R. No. 211703,
December 10, 2014; Granada vs. People, supra) If the overpaid
private individual is a corporation, the responsible officers are liable
for violation of RA No. 3019. When the separate juridical personality
of a corporation is used to defeat public convenience, justify wrong,
protect fraud, or defend crime, the law will regard the corporation as
an association of persons. There is sufficient basis to pierce the
corporate veil, and responsible corporate officers e.g. president
should be held equally liable as her co-conspirators. (Granada vs.
People, supra)

18 | P a g e
 A municipal mayor allegedly obstructed and stopped the
execution of the Municipal Trial Court's valid writs of execution and
demolition of the structure illegally constructed on the lot owned by
the wife of the complainant. The Sandiganbayan convicted the mayor
of violation of Section 3 (g) of RA No. 3019 by giving unwarranted
benefit to the defendant in that civil case. However, his criminal
liability was extinguished by reason of his death. The two accused,
municipal administrator and private secretary of the mayor, were
present when the mayor intervened in the demolition site. But there
is no evidence showing their participation in the intervention
committed by the mayor. Passive presence, knowledge or approval of
the crime, or companionship is not evidence of conspiracy. (Dela Cruz
vs. People, G.R. No. 197153, October 9, 2019).

FENCING – Fencing is a malum prohibitum, and PD No. 1612

creates a prima facie presumption of Fencing from evidence of
possession by the accused of any good, article, item, object or
anything of value, which has been the subject of robbery or theft; and
prescribes a higher penalty based on the value of the property.
(Cahulugan vs. People, G.R. No. 225695, March 21, 2018)

Section 5 of PD 1612 states that mere possession of any object

which has been the subject of robbery or thievery shall be prima
facie evidence of fencing. However, this presumption was overcome
by the accused upon presentation of the notarized affidavits of the
President and Chief Mechanic of Bicycle Works that indeed, he
bought the bicycle subject of the case from their store. Without proof
that the bicycle stolen from the complainant is the same bicycle in
the possession of the accused, the presumption under Section 5 of
PD 1612 would not operate. (Lopez vs. People, G.R. No. 249196, April
28, 2021)

Actual knowledge that the property is stolen is not required.

Fencing is committed if the accused should have known that the
property is stolen taken into consideration the attending
circumstances such as (1) the price of the property is so cheap; (2)
expensive jewelry is being offered for sale at midnight in a street; (3)
accused knew that the car he bought was not properly documented
(Dimat vs. People, supra); or (4) new tires are being peddled in the
streets by an unknown seller (Ong vs. People, supra). Furthermore,
mere possession of stolen property shall be prima facie evidence of
fencing (Section 6 of PD No. 1612).

The accused should have been forewarned that the soft drinks
came from an illegal source, as his transaction with the thief did not
have any accompanying delivery and official receipts, and that the
latter did not demand that such items be replaced with empty bottles,
contrary to common practice among dealers of soft drinks. He should
have known that the goods are stolen. He was convicted of fencing.
(Cahulugan vs. People, G.R. No. 225695, March 21, 2018)

19 | P a g e
 If the information alleged that the accused “knows” that the
property is stolen, he cannot be convicted of fencing on the ground
that he “should have known” that the same was derived from the
proceeds of theft because of his constitutional right to be informed
(Lim vs. People, G.R. No. 211977, October 12, 2016).

In Lim vs. People, G.R. No. 211977, October 12, 2016, the
clearance stated in Section 6 of PD No. 1612 is only required if several
conditions, are met: first, that the person, store, establishment or
entity is in the business of buying and selling of any good, articles
item object, or anything of value; second, that such thing of value
was obtained from an unlicensed dealer or supplier thereof;
and third, that such thing of value is to be offered for sale to the
public. In the present case, the first and third requisites were not
met. Nowhere was it established that accused was engaged in the
business of buy and sell. Neither was the prosecution able to
establish that accused intended to sell or was actually selling the
subject grader to the public.

ROBBERY WITH HOMICIDE - In robbery with homicide, all

other felonies such as rape, intentional mutilation, usurpation of
authority, or direct assault with attempted homicide are integrated
into this special complex crime. This special complex crime is
committed as long as death results by reason or on occasion or
robbery without reference or distinction as to the circumstances,
causes or modes or persons intervening in the commission of the
crime (People vs. De Leon, GR No. 179943, June 26, 2009; People vs.
Jugueta, G.R. No. 202124, April 05, 2016).

There is no special complex crime of robbery with homicide and

frustrated homicide. The offense should have been designated as
robbery with homicide alone, regardless of the number of homicides
or injuries committed. (People vs. Labuguen, G.R. No. 223103,
February 24, 2020, Hernando)

The accused and his companion, intended to rob only the

eatery. In the process, they likewise took the personal belongings of
its employees, the victim, and Teresita. Taking properties from the
employees is only a consequence of their original and single impulse
and therefore cannot be taken as separate and distinct offenses. This
taking form part of the special complex crime of robbery with rape,
as they are borne from one criminal resolution, that is, to rob. The
crime of robbery with rape is a continuing crime, thus, although there
is a series of acts, there is but one crime committed. (People vs.
Coritana, G.R. No. 209584, March 03, 2021)

Homicide component – A special complex crime of robbery

with homicide takes place when a homicide is committed either by
reason, or on the occasion, of the robbery. To sustain a conviction for
robbery with homicide, the prosecution must prove the following
20 | P a g e
elements: (1) the taking of personal property belonging to another; (2)
with intent to gain; (3) with the use of violence or intimidation against
a person; and (4) on the occasion or by reason of the robbery, the
crime of homicide, as used in its generic sense, was committed. A
conviction requires certitude that the robbery is the main purpose,
and [the] objective of the malefactor and the killing is merely
incidental to the robbery. The intent to rob must precede the taking
of human life but the killing may occur before, during or after the
robbery. Homicide is said to have been committed by reason or on
occasion of robbery if, for instance, it was committed: (a) to facilitate
the robbery or the escape of the culprit; (b) to preserve the possession
by the culprit of the loot; (c) to prevent discovery of the commission
of the robbery; or (d) to eliminate witnesses in the commission of the
crime (People vs. Balute, G.R. No. 212932, January 21, 2015)

If the original design is to kill the victim (e.g., there is motive to

kill), and the accused killed him, and took his property as an
afterthought, the crimes committed are homicide or murder and theft
(People v. Atanacio, No. L-11844, November 29, 1960) or robbery.
(People vs. Natindim, G.R. No. 201867, November 4, 2020,
Hernando)

The original intention of the appellants was to kill Pepito to

exact revenge from Pepito for assaulting appellant Gerry. In fact,
appellant Edimar immediately shot Pepito on his head when the
latter looked out from his window to ascertain the people outside his
house. This shows that the appellants did not intend to commit
Robbery at the outset. Nonetheless, Robbery was committed
incidentally by the appellants when Jimmy took Pepito's air gun and
FM radio while Rogelio took the bolo after hacking the body of Pepito.
Subsequently, appellant Edimar shouted "Attack!" thereby giving the
other appellants the signal to ransack the other valuables of the
spouses Gunayan, namely, a goat, two pigs, a fighting cock and a
hen without the consent and at gun point and with use of bolos
against Judith and her children. Accused were convicted of murder
and robbery. (People vs. Natindim, supra, Hernando)

The victim was shot while the accused was robbing the
passengers of a jeepney. Even if the victim's bag was not taken, the
accused are liable for special complex crime of robbery with homicide.
In this special complex crime, it is immaterial that the victim of
homicide is other than the victim of robbery, as long as a homicide
occurs by reason of the robbery or on the occasion thereof. (People
vs. Madrelejos, G.R. No. 225328, March 21, 2018)

In robbery with homicide, the victim of the robbery did not need
to be the victim of the homicide. (People vs. Daguman, G.R. No.
219116, August 26, 2020) In robbery with homicide, it is immaterial
that the victim of homicide is a bystander (People vs. Barut, G.R. No.
L-42666 March 13, 1979), a responding policeman (People vs.
Pelagio, G.R. No. L-16177, May 24, 1967) or one of the robbers.
(People vs. Casabuena, G.R. No. 246580, June 23, 2020)
21 | P a g e
 However, in robbery with homicide there must be an intimate
connection between the robbery and the killing of one of the robbers.
This intimate connection must be established by proof beyond
reasonable doubt such as establishing that one of the robbers was
killed during the shootout between the policemen and robbers.
(People vs. Daguman, G.R. No. 219116, August 26, 2020) If the
policemen extrajudicially killed one of the robbers, the policemen are
liable for murder while the surviving robbers are only liable for
robbery, and not a special complex crime of robbery for homicide.
The criminal liability of the surviving robbers will not be increased
due to the unlawful acts of the policemen.

Collective responsibility – Case law establishes that whenever

homicide has been committed by reason of or on the occasion of the
robbery, all those who took part as principals in the robbery will also
be held guilty as principals of robbery with homicide although they
did not take part in the homicide, unless it appears that they sought
to prevent the killing. (People v. Dela Cruz, G.R. No. 168173, December
24, 2008; People v. Castro, G.R. No. 187073, March 14, 2012; People
vs. Labagala, G.R. No. 221427, July 30, 2018; People vs. Bongos,
G.R. No. 227698, January 31, 2018; People vs. Casabuena, G.R. No.
246580, June 23, 2020)

Once conspiracy is established between several accused in the

commission of the crime of robbery, they would all be equally liable
for the rape committed by anyone of them on the occasion of the
robbery, unless anyone of them proves that he endeavored to prevent
the others from committing rape. (People v. Suyu, G.R. No. 170191,
August 16, 2006; People v. De Leon, G.R. No. 179943, June 26, 2009;
People vs. Madrelejos, G.R. No. 225328, March 21, 2018; People vs.
Sanota, G.R. No. 233659, December 10, 2019; People vs. Coritana,
G.R. No. 209584, March 03, 2021)

However, in fine, the long line of jurisprudence on the special

complex crime of robbery with rape requires that the accused be
aware of the sexual act in order for him to have the opportunity to
attempt to prevent the same, without which he cannot be faulted for
his inaction. (People vs. Agaton, G.R. No. 251631, August 27, 2020)
If there is no evidence that the accused is aware of the commission
of rape, he could not have prevented the rape. Hence, the accused is
only liable for robbery and not robbery with rape. (People v.
Canturia, G.R. No. 108490, June 22, 1995)

Canturia principle where lack of awareness is a defense is

applicable to kidnapping with rape (People v. Anticamaray, G.R. No.
178771, June 8, 2011), kidnapping with homicide, robbery with
homicide (People v. Corbes, G.R. No. 113470, March 26, 1997) and
robbery with arson.

Canturia principle is not applicable to robbery with homicide.

Even though the accused was not aware of the killing by his co-
22 | P a g e
robber and had no the opportunity to attempt to prevent the same,
he is still liable for special complex crime of robbery with homicide
since the killing of the victim is an inherent consequence of the
violence which is an element of robbery.

ROBBERY AND SEXUAL ASSAULT – R.A. No. 7659 on

December 13, 1993 amended Article 294 of the Revised Penal Code
(RPC) by prescribing the penalty of reclusion perpetua to death for the
special complex crime of robbery with rape.

On October 22, 1997, RA No. 8353 amended RPC by

reclassifying rape from crime against chastity to crime against
persons, transposing the provision on rape from Article 335 of RPC
to Article 266-A, and making sexual assault in addition to sexual
intercourse as a mode of committing rape. Act of sexual assault
includes inserting his penis into another person’s mouth or anal
orifice, or any instrument or object, into the genital or anal orifice of
another person.

Rape through sexual intercourse is simply called “rape” while

rape through sexual assault is now called “sexual assault.” (People
vs. Tulugan, G.R. No. 227363, March 12, 2019; People vs. XXX, G.R.
No. 238405, December 07, 2020, Hernando) The penalty for rape is
graver than that for sexual assault. In the exercise of its discretion
and wisdom, the legislature resolved that a more severe penalty
should be imposed when rape is committed through sexual
intercourse because it may lead to unwanted procreation, an
outcome not possible nor present in sexual assault. (People vs.
Barrera, G.R. No. 230549, December 01, 2020)

At the time Congress was crafting the provision on robbery with

rape, its members were thinking of rape under Article 335 of RPC,
which is committed through sexual intercourse. There is no crime of
sexual assault in 1993 when its members were making the special
complex crime of robbery with rape a heinous crime. At that time
sexual assault was punished as acts of lasciviousness. Hence, there
is no special complex crime of robbery with sexual assault. The crime
of sexual assault in Article 266-A of RPC is not within the
contemplation of the word “rape” as a component special complex
crime of robbery with rape under Article 294. If by reason or on
occasion of robbery, sexual assault is committed, the offender is
liable for separate crimes of robbery and sexual assault. (See: People
vs. Barrera, G.R. No. 230549, December 01, 2020)

KIDNAPPING OF SEVERAL VICTIMS - There are as many

criminal impulses to deprive liberty as there are persons whose
liberty has been deprived of. Hence, the delito continuado principle
shall not apply to illegal detention committed against several victims
since the application of this rule presupposes that there is a single
criminal impulse that motivated the accused in committing several
acts in violation of a single penal provision. Without applying the
principle of delito continuado, the offender is liable for as many
23 | P a g e
kidnappings and serious illegal detention as there are persons
detained. (see: People v. Rimorin, G.R. No. 124309, May 16, 2000)
In People v. Pagalasan, G.R. Nos. 131926 and 138991, June 18,
2003, accused kidnapped two victims on the same occasion and from
the same place. However, they were animated by two sets of separate
criminal intents and criminal resolutions in kidnapping and illegally
detaining the two victims. The criminal intent in kidnapping the first
victim for ransom is different from the criminal intent in kidnapping
the second victim and detaining him for less than three days. In their
mind and conscience, they had committed two separate felonies;
hence, they are liable for kidnapping for ransom and slight illegal
detention.
In kidnapping for ransom, the principal intent of the offender is
to deprive the victim of his liberty while the secondary intent for
purpose of imposing a higher penalty is to extort money from the
victim or any other persons such as his relatives. For purpose of
applying the delito continuado principle, one must consider the
number of criminal impulses to deprive liberty, and not the number
of criminal impulses to extort money.
If the accused kidnapped five victims to extort P2 Million, he is
liable for five counts of kidnapping for ransom. Although there is a
single criminal impulse to extort P2 Million, there are several criminal
impulses to deprive liberty as many as there are victims kidnapped.
(People v. Tadah, G.R. No. 186226, February 1, 2012)

In People vs. Resurreccion, G.R. No. 248456. August 16, 2022,

the public prosecutor must file one information for every victim of
kidnapping for ransom regardless of whether they were all taken at
the same time or only one ransom was demanded by the accused.
After all, in such cases, the crimes were committed
against each person kidnapped and as a consequence, the accused
must be penalized for every count accordingly. (People v. Caloring,
G.R. No. 250980, March 15, 2022) However, there was
only one Information filed against accused for the kidnapping of
Spouses Huang for the purpose of extorting ransom money. There is
thus duplicity of the crimes charged in the Information. The records,
however, do not show that accused objected to the duplicity of the
Information by filing a motion to quash before their arraignment.
Hence, they are deemed to have waived such defect.

ROBBERY WITH HOMICIDES AND KIDNAPPINGS WITH

HOMICIDES - Under the criminal impulse principle, there are as
many crimes committed by an offender on the same occasion as there
are criminal impulses. If there is a single criminal impulse, there is a
single crime committed regardless of the acts perpetrated (delito
continuado principle). If there several criminal impulses, there are as
many crimes as there are impulses.

Robbery with homicide is a crime against property. Hence, for

purposes of applying the criminal impulse rule, intent to take

24 | P a g e
properties regardless of its owner should be considered (delito
continuado principle or single larceny rule).

A, B, C and D are members of a robbery syndicate. They planned

to commit robbery in the house of X, daughter of a businessman.
Implementing their plan, they entered the house of X and took her
money and jewelries. They also took the money of Y and Z, the maids
of X. Then, A raped X, B raped Y and C raped Z. Later on, D killed X,
Y and Z. What are the crimes committed by A, B, C and D?

One count of robbery with homicide is committed. Since there

is a single criminal impulse to rob the house of X, A, B, and C
committed a single crime of robbery although there are three victims.
Taking money from Y and Z is only a consequence of their original
and single impulse to commit robbery in the house of X, and therefore
cannot be taken as separate and distinct offenses. The crime of
robbery is a continuing crime (delito continuado), thus, although
there is a series of acts, there is but one crime committed. (People vs.
Coritana, G.R. No. 209584, March 03, 2021)

Since by reason or on occasion of robbery, X, Y and Z were

killed, A, B, C and D are liable for a special complex crime of robbery
with homicide. In this special complex crime, it is immaterial that
several persons are killed. It is also immaterial that aside from the
homicides, rapes are committed by reason or on the occasion of the
robbery. Hence, rapes committed against X, Y and Z by A, B, and C
in the course of robbery shall be integrated into one and indivisible
felony of robbery with homicide. (People vs. De Leon, G.R. No.
179943, June 26, 2009; People vs. Daguman, G.R. No. 219116,
August 26, 2020)

Kidnapping with homicide is a crime against liberty. Hence, for

purposes of applying the criminal impulse rule, intent to deprive
liberty should be considered.

A, B, C and D are members of a kidnapping syndicate. They

planned to kidnap X, daughter of a businessman, for purpose of
demanding ramson. Implementing their plan, they abducted X and
her maids, Y and Z, in Quezon City and brought them in a safehouse
in Tagaytay. A raped X, B raped Y and C raped Z. D demanded
ransom in the amount of P10 million from the parents of X as a
condition to the release of X, Y and Z. For failure to give the ransom
by her parents, D killed X, Y and Z. What are the crimes committed
by A, B, C and D?

It is a basic rule that there are as many criminal impulses to

deprive liberty as there are persons whose liberty has been deprived
of. Hence, the kidnappers are liable for as many kidnappings and
serious illegal detention as there are persons detained. (People v.
Rimorin, G.R. No. 124309, May 16, 2000; In People v. Pagalasan,
G.R. Nos. 131926 and 138991, June 18, 2003) Since there are three

25 | P a g e
victims in this case, A, B, C and D are liable for two counts of
kidnapping for ransom.

Special complex crime is committed if the kidnapped victim is

killed in the course of the detention. In this case, X, Y and Z were
kidnapped, and thereafter, they were killed. Since they killed in the
course their detention, three counts of special complex crime of
kidnapping with homicide are committed.

It is settled that rapes committed in the course of the detention

shall be integrated into one and indivisible felony of kidnapping with
homicide. (People vs. Larranaga, 138874-75, February 3, 2004) In
this case, the rapes committed by A, B and C against X, Y and Z shall
be integrated into the two special complex crime of kidnapping with
homicide, respectively.

RAPE WITH HOMICIDE - The phrase “by reason of the

rape” obviously conveys the notion that the killing is due to the rape,
which is the crime the offender originally designed to commit. The
victim of the rape is also the victim of the killing. In contrast, the
phrase “on the occasion of the rape” as shown by Senate deliberations
refers to a killing that occurs immediately before or after,
or during the commission itself of the rape, where the victim of the
homicide may be a person other than the rape victim. (People vs.
Villaflores, G.R. No. 184926, April 11, 2012; People vs. Laog, G.R.
No. 178321, October 5, 2011)

For the crime of robbery with rape, the law does not distinguish
whether the rape was committed before, during, or after the robbery,
but only that it punishes robbery that was accompanied by rape.
(People vs. Salen, G.R. No. 231013, January 29, 2020)

ARBITRARY DETENTION AND MURDER - If the victim dies or

is killed as a consequence of detention, the offender is liable for
special complex crime of kidnapping with homicide. If the victim dies
or is killed in the course of arbitrary detention, the offender is not
liable for special complex crime. Neither is he liable for complex
crime. These two crimes were not produced by a single act. Arbitrary
detention was not used as a necessary means to commit murder.
Hence, the offenders are liable for separate crimes of murder and
arbitrary detention even if they were indicted of a complex crime in
the Information. It was improper for the prosecutor to have charged
them of a complex crime as the offenses were separate and distinct
from each other and cannot be complexed. (People vs. Dongail, G.R.
No. 217972, February 17, 2020)

INCIDENTAL DEPRIVATION OF LIBERTY – Accused

committed robbery inside a factory. Before they could leave the
premises after the commission of the robbery, the police authorities
were already at the scene of the crime. Since they cannot escape, they
detained 21 victims. After 22 hours of captivity, the hostages were
rescued. Since the principal intention of the accused is to rob the
26 | P a g e
victims, and the deprivation of their liberty is just incidental to the
prevention of the responding police officers from arresting them, the
crime committed is robbery, which absorbed incidental kidnapping
and serious illegal detention. (People v. Astor, G.R. Nos. L-71765-66,
April 29, 1987)

AAA lived rent-free in a house owned by accused. Accused

intercepted AAA at the garage area and held a knife to her back and
dragged her to his room and raped her. Shortly after, police
authorities arrived; but accused refused to release her and detained
her for a period of time. Although the initial (forcible) abduction of
AAA may have been absorbed by the crime of rape, the continued
detention of AAA after the rape cannot be deemed absorbed in it.
Likewise, since the detention continued after the rape had been
completed, it cannot be deemed a necessary means for the crime of
rape. Hence, the accused is convicted of rape and slight illegal
detention (People vs. Concepcion, G.R. No. 214886, April 04, 2018)
or serious illegal detention with the qualifying circumstance that the
victim is a female.

The Astor case is not compatible with Concepcion case.

However, for purpose of the bar exam, Astor case should be applied
to robbery and detention while Concepcion case should be applied to
rape and detention. In sum, if the robbers held hostages the victims
to prevent the policemen form arresting them, the crime committed
is robbery, which absorbs illegal detention. On the other hand, if the
rapist held hostage the victim to prevent the policemen from arresting
him, the crimes committed are rape and serious illegal detention.

SPECIAL MITIGATING CIRCUMSTANCE – Under Article 64

(5), when there are two or more mitigating circumstances and no
aggravating circumstances are present, the court shall impose the
penalty next lower to that prescribed by law. This is called as special
mitigating circumstance. The title of Article 64 is rules for the
application of penalties which contain three periods. Penalties
containing three periods are called divisible penalties.

Under Article 63, par. 2 (3), when there are some mitigating
circumstances and there is no aggravating circumstance, the lesser
penalty (of reclusion perpetua) shall be applied. The title of Article 63
is rules for the application of indivisible penalties. Death and reclusion
perpetua are indivisible penalties. Article 63, par. 2 (3) is only
applicable cases in which the law prescribes a penalty composed of
two indivisible penalties. There is only one penalty composed to two
individual penalties, and that is, reclusion perpetua to death.

If the accused is convicted of parricide where the law prescribes

the penalty of reclusion perpetua to death, and there are two
mitigating circumstances (e.g., voluntary surrender and confession),
there are two views on which provision is applicable.

27 | P a g e
 First view is case of People vs. Genosa, G.R. No. 135981,
January 15, 2004. The Supreme Court appreciated special mitigating
circumstance under Article 64. Hence, reclusion perpetua to death
was graduated to reclusion temporal.

Second view is the case of People v. Takbobo, G.R. No. 102984,

June 30, 1993. Article 64 (5) on a special mitigating circumstance
that requires the graduation of penalty is only applicable if the
penalty contains three periods. Reclusion perpetua to death
prescribed for parricide is not a penalty containing three periods. The
applicable provision is Article 63 par. 2 (3) on the rule involving a
penalty composed of two indivisible penalties. Hence, the lesser
penalty shall be applied. Reclusion perpetua is lesser than death.
Hence, the accused shall be sentenced to suffer reclusion perpetua.

It is submitted that the correct view is the Takbobo case. In

People vs. Brusola, G.R. No. 210615, July 26, 2017, the court
convicted the accused of parricide and found the mitigating
circumstances of passion and surrender. The accused citing Genosa
case argued that reclusion perpetua to death should be reduced to
reclusion temporal by reason of the special mitigating circumstance.
However, the Supreme Court refused to apply the Genosa principle.
It was held that considering that the penalty for parricide consists of
two indivisible penalties (reclusion perpetua to death), Article 63, and
not Article 64, is applicable. Thus, the penalty of reclusion perpetua
was properly imposed. (See also: People vs. Padilla, G.R. No. 247603,
May 05, 2021; (People vs. Natindim, G.R. No. 201867, November 4,
2020, Hernando)

PENALTIES UNDER SPECIAL LAWS - When a special law

adopts the technical nomenclature of the penalties (e.g. prison
mayor) in RPC, the intention of the law is to adopt the provisions
under this Code on imposition of penalty (People v. Simon, G.R. No.
93028, July 29, 1994). Special aggravating circumstance of
organized/syndicated crime group (People v. Esparas, G.R. No.
120034, July 10, 1998); The privileged mitigating circumstance of
minority (People v. Montalaba, G.R. No. 186227, July 20, 2011; People
v. Musa, G.R. No. 199735, October 24, 2012); and special aggravating
circumstance of quasi-recidivism (People v. Salazar, G.R. No. 98060,
January 27, 1997) were appreciated in malum prohibitum crime
where the law punishing it adopts the technical nomenclature of the
penalty of RPC. The penalty for illegal possession of loose firearm
shall be applied in its minimum period because of the mitigating
circumstance of confession (Jacaban v. People, G.R. No. 184355,
March 23, 2015), and the penalty for sexual abuse (Malto v. People,
G.R. No. 164733, September 21, 2007), child abuse (Bantang vs.
People, GR. No. 241500, December 7, 2022) fencing (Cahulugan vs.
People, G.R. No. 225695, March 21, 2018) or violence against woman
(Melgar vs. People, G.R. No. 223477, February 14, 2018) shall be

28 | P a g e
applied in its medium period in the absence of modifying
circumstance.

If the special law has not adopted the technical nomenclature

of penalties in the Revised Penal Code, the intention of the law is not
to adopt the provisions of this Code on imposition of penalties.
Moreover, modifying circumstances cannot be appreciated since the
penalty not borrowed from the Code has no periods. The crime has
no attempted or frustrated stage since this penalty cannot be
graduated one or two degrees lower.

For example, the accused confessed to an offense where the

special law prescribes the penalty of not more than 10 years of
imprisonment but not less than 5 years (American penalty). Under
Article 63 of the Revised Penal Code, the penalty shall be applied in
its minimum period if there is a mitigating circumstance such as
confession. However, confession cannot be appreciated since the
penalty prescribed by law, which is not borrowed from the Code, has
no minimum period.

Penalty under RA No. 9165 - The Simon principle is not

applicable if the crime committed involved dangerous drugs because
R.A. No. 9165 has a special rule on the application of the provisions
of the Revised Penal Code. Under Section 98 of R.A. No. 9165,
notwithstanding any law, rule or regulation to the contrary, the
provisions of RPC shall not apply to the provisions of this Act, except
in the case of minor offenders.

R.A. No. 9165 has not adopted the technical nomenclature of

the penalties of RPC (e.g. the penalty for possession of dangerous
drugs involving shabu of less than 5 grams is imprisonment of 12
years and 1 day to 20 years). If the accused is a minor, the penal
system of RPC shall apply because Section 98 of R.A. No. 9165 say
so. To apply the penal provisions of the Code, the penalty for R.A. No.
9165 must be converted into a Spanish penalty. For example, the
penalty for sale of dangerous drugs or importation of dangerous
drugs is life imprisonment to death. If the accused is a minor, this
penalty shall be converted into reclusion perpetua to death. Taking
into consideration the privileged mitigating circumstance of minority,
reclusion perpetua to death shall be reduced to reclusion temporal.
(People v. Montalaba, G.R. No. 186227, July 20, 2011; People v. Musa,
G.R. No. 199735, October 24, 2012).

However, even though Section 98 of RA No. 9165 mandates the

application of the provisions of RPC in a case where the offender is a
minor, if the penalty for a crime involving dangerous drugs cannot be
converted into a Spanish penalty, the penal provisions of RPC shall
not apply. For example, the penalty for use of dangerous drugs
committed by a first-time offender is rehabilitation. Even if the
offender is a minor, the privileged mitigating circumstance of
minority shall not be considered because this penalty of
rehabilitation cannot be converted into Spanish penalty, and thus, it
29 | P a g e
cannot be reduced one degree lower.

American penalty – Under the Indeterminate Sentence Law, for

offense punishable under special law the imposed minimum penalty
shall not be less than the minimum penalty prescribed by law while
the imposed maximum penalty shall not be more than the maximum
penalty prescribed by law.

Possession of shabu involving less than 5 grams, or marijuana

involving less than 300 grams is punishable by imprisonment of 12
years and 1 day to 20 years. Applying the ISLAW, the minimum
penalty shall not be less than 12 years and 1 day while the maximum
penalty shall not be more than 20 years. Thus, the court can
sentence the accused to suffer 12 years and one day of imprisonment
as minimum to 14 years as maximum. (Felomino vs. People, G.R. No.
245332, October 16, 2019)

Possession of shabu involving 5 grams or more but less than 10

grams, or marijuana involving 300 grams or more, but less than 500
grams is punishable by imprisonment of twenty (20) years and one
(1) day to life imprisonment.

Applying Section 1 of ISLAW, the minimum penalty shall not be

less than 20 years and 1 day. Under Section 2 thereof, the rule on
indeterminate sentence will not apply if the penalty is life
imprisonment. Hence, the maximum penalty must be less than life
imprisonment. (Concurring opinion by Justice Peralta, People vs.
Obias, G.R. No. 222187, March 25, 2019). A penalty of more than 40
years shall be considered as life imprisonment. Hence, the maximum
penalty must be 40 years of imprisonment or less such as 30 years.
Thus, the court can sentence the accused to suffer 20 years and one
day of imprisonment as minimum to 30 years as maximum. (People
vs. Pis-an, G.R. No. 242692, July 13, 2020)

The Obias case and Pis-an case departed from the case of People
vs. Badilla, G.R. No. 218578, August 31, 2016 where the Supreme
Court did not apply the ISLAW where the penalty is 20 years and 1
day to life imprisonment.

GOOD CONDUCT ALLOWANCE – There are two kinds of

prisoners, detention prisoners, and convicted prisoners. A detention
prisoner is an accused, who is under detention although the criminal
case filed against him is still pending or on appeal. Although a
detention prisoner is not yet convicted by final judgment, he will
remain under detention if he cannot afford to post bail, or the crime
with which he is charged is non-bailable. The detention of a detention
prisoner is called preventive imprisonment.

A convicted prisoner is entitled to a good conduct time

allowance (GCTA) under Article 97 of the Revised Penal Code for good
behavior during detention. For example, a convicted prisoner is
30 | P a g e
sentenced to suffer 10 months of prision correccional for committing
serious physical injuries. Under Article 97, during the first two years
of imprisonment, he (convicted prisoner) shall be allowed a
deduction of twenty days for each month of good behavior during
detention. After serving 6 months in jail, the warden of the city jail
granted him a GCTA of 120 days (4 months). Because of the GCTA,
his sentence of 10 months of imprisonment will be considered served
out, although he was only imprisoned for 6 months.

Before the controversial GCTA Law or RA No. 10592, a detention

prisoner is not entitled to GCTA. However, RA No. 10592 now grants
GCTA to detention prisoners. Under Articles 29 of the Revised Penal
Code as amended by RA No. 10592, whenever an accused has
undergone preventive imprisonment for a period equal to the possible
maximum imprisonment of the offense charged, he shall be released
immediately; for purposes of immediate release, the computation of
preventive imprisonment shall be the actual period of detention with
GCTA.

For example, a detention prisoner is charged with less serious

physical injuries, which is punishable by arresto mayor (1 month and
1 day to 6 months). After undergoing 4 months of preventive
imprisonment, the warden granted him GCTA of 80 days (2 months
and 20 days). Because of the GCTA, his period of preventive
imprisonment will be considered 6 months and 20 days although his
actual detention is only 4 months. Since the period of his preventive
imprisonment (6 months and 20 days) is more than the possible
maximum imprisonment (6 months) of the offense charged, he shall
be released immediately.

GCTA for detention prisoners is governed by Articles 29 and 97

of the Revised Penal Code. While GCTA for convicted prisoners is
governed by Article 97 thereof.

Article 29 on GCTA for detention prisoners has a qualifying

proviso, which is quoted as follows: “Provided, finally, That recidivists,
habitual delinquents, escapees and persons charged with heinous
crimes are excluded from the coverage of this Act.” Heinous crime
refers to those listed in RA No. 7659 (Death Penalty Law) such as
murder or robbery with homicide. (Miguel vs. Director of Bureau
Prisons, UDK-15368, September 15, 2021, Hernando) Thus, a
detention prisoner, who is charged with murder, a heinous crime, is
not entitled to GCTA while undergoing preventive imprisonment.

Article 97 on GCTA for convicted prisoners has no qualifying

proviso. In sum, Article 97 does not exclude a person convicted of a
heinous crime from the benefit of GCTA.

31 | P a g e
 Can the rule under Article 29, which excludes detention
prisoners charged with a heinous crime from the benefit of GCTA, be
applied to convicted prisoners even though Article 97 and not Article
29 governs GCTA for convicted prisoners?

Under the old DOJ implementing rules of RA No. 10592, a

person convicted of a heinous crime was still entitled to GCTA. In my
opinion, this old rule is correct. GCTA for convicted prisoners is
governed by Article 97 of the Code as amended by RA No. 10592.
Unlike Article 29 on GCTA for detention prisoners, Article 97 on
GCTA for convicted prisoners does not provide an exclusionary or
disqualification clause or qualifying proviso.

However, in 2019 the DOJ issued new implementing rules of RA

No. 10592 under which detention prisoner charged with heinous
crime or convicted prisoner, who is convicted of heinous crimes, are
not entitled to GCTA, special time allowance for loyalty, and time
allowance for study, teaching, and mentoring under Articles 97 and
98 of the Codes. The Supreme Court in Miguel vs. Director of Bureau
Prisons, UDK-15368, September 15, 2021 (Hernando), recognizes
the validity of the DOJ implementing rules (2019 Revised IRR). It was
held that the GCTA Law and 2019 Revised IRR have made
abundantly clear that persons charged with and/or convicted of
heinous crimes are not entitled to the benefits under the GCTA law.

For purpose of the bar exam, the Supreme Court decision must
be followed. Thus, detention prisoners and convicted prisoners, who
are recidivists, habitual delinquents, escapees, or charged with
heinous crimes, are excluded from the beneficial coverage of RA No.
10592 on GCTA.

IMMUTABILITY OF FINAL JUDGEMENT - Under the doctrine

of finality of judgment or immutability of judgment, a decision that
has acquired finality becomes immutable and unalterable, and may
no longer be modified in any respect, even if the modification is meant
to correct erroneous conclusions of fact and law, and whether it be
made by the court that rendered it or by the Highest Court of the
land. Nonetheless, the immutability of final judgments is not a hard
and fast rule as the Court has the power and prerogative to relax the
same in order to serve the demands of substantial justice. (People vs.
Layag, G.R. No. 214875, October 17, 2016)

If the death of the accused happened prior to the finality of the

judgement convicting him of rape and acts of lasciviousness, but the
Supreme Court was belatedly informed of such death only after the
finality of such judgment, the case will be re-opened for purposes of
dismissing the case. (People vs. Layag, G.R. No. 214875, October 17,
2016) If the penalty imposed by the trial court is outside the range
prescribed by law, the Supreme Court can re-open a final and
immutable judgement to impose the correct penalty under the law.
32 | P a g e
(Bigler vs. People, G.R. No. 210972, March 19, 2016; Aguinaldo vs.
People, G.R. No. 226615, January 13, 2021) If the new law prescribes
a lesser penalty for the crime of which the accused was previously
convicted by final judgment, the Supreme Court can re-open a final
and immutable judgment judgment to impose the lesser penalty
under the new law. In sum, the new law shall be given a retroactive
effect. (Hernan vs. Honorable Sandiganbayan, G.R. No. 217874,
December 5, 2017). Layag case, Bigler and Hernan case are
exceptions to the immutability of final judgment rule.

CONDONATION - Reelection to public office (or criminal

condonation of a re-elected public officer by the electorates) is not
provided for in Article 89 of the Revised Penal Code as a mode of
extinguishing criminal liability for a crime committed by a public
officer before his re-election. (Oliveros v. Judge Villaluz, G.R. No. L-
34636, May 30, 1974; 1974 and 1980 Bar Exams) Hence, re-election
to public office or condonation of a re-elected public officer is not a
defense in a criminal case.
Under the old rule, a re-elected public official could not be
removed for an administrative offense committed during a prior term,
since his re-election to office operates as a condonation of his
misconduct to the extent of cutting off the right of the government to
remove him therefor. (Aguinaldo v. Santos, G.R. No. 94115, August
21, 1992) In sum, the reelection to public office or condonation of a
re-elected public officer was a defense in an administrative case.
However, in Morales v. CA and Binay, G.R. Nos. 217126-27,
November 10, 2015, doctrine of administrative condonation has been
abandoned because it is inconsistent with the concept of public office
is a public trust and the corollary requirement of accountability to
the people at all times, as mandated under Section 1, Article XI of the
1987 Constitution. The election is not a mode of condoning an
administrative offense. In this jurisdiction, liability arising from
administrative offenses may only be condoned by the President, and
not by the constituents of the re-elected officers. The power to grant
executive clemency under Section 19, Article VII of the 1987
Constitution extends to an administrative offense.
However, the Morales principle shall be given a prospective effect
in application for the reason that judicial decisions applying or
interpreting the laws or the Constitution, until reversed, shall form
part of the legal system of the Philippines (Ombudsman v. Mayor
Vergara, G.R. No. 216871, December 6, 2017)
The abandonment of the doctrine of condonation took effect on
April 12, 2016, when the Supreme Court denied with finality the

33 | P a g e
OMB's Motion for Reconsideration in Morales case. (Crebello v. Office
of the Ombudsman, G.R. No. 232325, April 10, 2019)
The re-elected public officer can still use the condonation as a
defense subject to two conditions: (1) the administrative complaint is
filed before April 12, 2016; and (2) the respondent was re-elected
before April 12, 2016. In Office of the Ombudsman vs. Malapitan,
G.R. No. 229811, April 28, 2021, it was held that the condonation
doctrine was abandoned on April 12, 2016, when Carpio Morales v.
Court of Appeals attained finality. Nonetheless, despite its
abandonment, the condonation doctrine can still apply to pending
administrative cases provided that the reelection is also before the
abandonment. As for cases filed after April 12, 2016, the impleaded
public official can no longer resort to the condonation doctrine.

In Office of the Ombudsman vs. Malapitan, supra, the alleged

acts imputed to Congressman Malapitan were supposedly committed
in 2009. He was re-elected as member of the House of
Representatives in 2010. On January 22, 2016, the administrative
complaint was amended to include the respondent. Since the
respondent was reelected and the administrative complaint against
him was filed before April 12, 2016, he can still use the condonation
principle as a defense. Had the case been filed against the respondent
on April 13, 2016, for instance, he could no longer rely on the
condonation doctrine.

In Herrera v. Mago, G.R. No. 231120, January 15, 2020, the

administrative complaint was instituted on January 9, 2015 (or
before April 12, 2016) but the petitioner was re-elected as vice-mayor
on May 9, 2016 (or after April 12, 2016). The Supreme Court ruled
that the condonation doctrine could not be invoked.

NOVATION - Novation is not a mode of extinguishing criminal

liability under Article 89 of the Revised Penal Code. (People v. Nery,
G.R. No. L-19567, February 5, 1964) Criminal liability for estafa is not
affected by a compromise or novation of contract. (Metropolitan Bank
and Trust Company v. Reynando, G.R. No. 164538, August 9, 2010;
1984 Bar Exam) Hence, as a general rule, novation is not a defense
in a criminal case.
However, a novation can extinguish the old contract, which
may be the basis of criminal liability. In such a case, novation is a
defense. In estafa through misappropriation, “receiving the property
in trust” is an element thereof. In sum, a contract of trust is an
ingredient of this crime. Novation may convert the contract of trust
into a loan contract, or create doubt on the original transaction’s true
nature. (People v. Nery, supra) In these situations, the accused will
be acquitted for failure to prove the element of “receipt of property in

34 | P a g e
trust.” Thus, novation is a defense in estafa through
misappropriation where the contract of agency is converted into a
sale. (Degaños v. People, G.R. No. 162826, October 14, 2013; 1988 Bar
Exam)
Moreover, “receiving the property under an obligation involving
the duty to deliver, or to return” is an element of estafa through
misappropriation. Novation may convert a contract where the
accused has the duty to return property into a new contract where
the accused has no such duty. Hence, estafa through
misappropriation is not committed. In Sorongon vs. People, G.R. No.
230669, June 16, 2021, there is no longer any duty or obligation on
the part of the accused to deliver or return the cement mixer to the
private complainant or to any other person for that matter because
the ownership thereof had already been transferred to the accused
by the private complainant's waiver and renunciation in his favor.
The accused was acquitted of the charge of estafa through
misappropriation.
Contractual Relationship — Novation can only be used as a
defense in a crime where one of its elements is the existence of a
contractual relationship between the offender and the victim. Novation
is a defense in estafa through misappropriation since the juridical
possession of the property by the offender, which is a requisite to this
crime, may be based on contract. Novation cannot be used as a
defense in case of theft or estafa through falsification of a document.
In a theft case, there is no contractual relationship or bilateral
agreement which can be modified or altered by the parties. (People v.
Tanjutco, G.R. No. L-23924, April 29, 1968) In complex of estafa by
means of false pretense through falsification of public documents,
the liability of the offender cannot be extinguished by mere novation.
(Milla v. People, G.R. No. 188726, January 25, 2012) There is no
contract where one consented due to false pretense employed by the
other party. Without a valid contract, there is nothing to extinguish
through a novation.
Novation under the Civil Code - In order for novation to
effectively prevent the incipience of criminal liability, its concept
under the Civil Code has to be followed as well. (Sorongon vs. People,
supra)
Novation may be express or implied. There is express novation
when novation has been explicitly stated and declared in unequivocal
terms. There is implied novation when the old and the new
obligations are incompatible on every point. The test of
incompatibility is whether or not the two obligations can stand

35 | P a g e
together, each one having its independent existence. If they cannot,
they are incompatible and the latter obligation novates the first.
(Sorongon vs. People, supra)
Partial payment and promise to pay the balance of obligation
under a contract of agency will not convert it into a sale. There is no
novation since the obligation of the accused in making a partial
payment is not incompatible with the obligation to give the proceeds
of the sale of the property under the contract of agency. (Degaños v.
People, supra;)
The accused received jewelry from the complainant to sell the
same on a commission basis and with the express obligation on the
part of the accused to turn over the proceeds of the sale thereof, or
to return the said jewelry, if not sold. The accused interposed the
defense that the agreement between her and the complainant was
effectively novated when the latter consented to receive payment on
installments directly from the buyers of the jewelry. The argument
was rejected. There has never been any animus novandi between or
among the parties. The changes alluded to by the accused consisted
only in the manner of payment. There was really no substitution of
debtors since the complainant merely acquiesced to the payment but
did not give her consent to enter into a new contract. (Quinto vs.
People, G.R. No. 126712, April 14, 1999)

In commodatum, ownership of the thing loaned does not pass to

the borrower. In the settlement between the private complainant and
the accused before the barangay proceedings, the former waived her
ownership over the cement mixer in favor of the latter in exchange
for the concession that he would refrain from filing any case against
her in the future. The obligation of the accused (returning the
property) under the old contract of commodatum is not compatible
with his obligation (refraining from failing a case) under the amicable
settlement. Novation had effectively occurred. Being the owner of the
cement mixer, the accused has no obligation to return the same to
the private complainant. (Sorongon vs. People) Being the owner of the
cement mixer, failure to return it to the private complainant is not
misappropriation since an owner has the right to possess his
property. Thus, estafa through misappropriation is not committed.

The obligation of the accused under a contract of agency is not

compatible with that under the contract of sale. Hence, there is
novation. (Degaños v. People, supra)

REVOCATION OF TRILLANES AMNESTY - Proclamation No.

75 issued by President Aquino on November 24, 2010 and concurred
in by Congress granted amnesty to the participants of July 27, 2003
Oakwood Mutiny, the February 2006 Marines Stand-Off and the

36 | P a g e
November 29, 2007 Manila Peninsula Incident. Under Section 2 of
Proclamation No. 75, they have to apply with the ad hoc committee
of the Department of National Defense (DND) to be entitled to the
benefit of the amnesty proclamation. In the case of Vera v. People,
G.R. No. L-18184, January 31, 1963, it was held that even though an
amnesty proclamation does not expressly impose this admission of
guilt as condition, it is still necessary for the accused to admit the
commission of the crime charged to be entitled to the benefits of
amnesty proclamation.

The DND through Secretary Voltaire Gazmin on January 21,

2011 issued certificate of amnesty in favor of Senator Trillanes.

President Duterte on August 31, 2018 issued Proclamation No.

572 declaring the granting of amnesty to Senator Trillianes as null
and void for failure to file application and as required in Section 2 of
Proclamation No. 75 and admit his guilt, which is an inherent
condition to avail of amnesty.

Revocation of certificate of amnesty - Amnesty proclamation

issued by a former President under express authority of the
Constitution and concurred in by Congress has the nature, force,
effect, and operation of a law (People vs. Macadaeg, G.R. No. L-4316,
May 28, 1952). Hence, an incumbent president cannot unilaterally
revoke the bilateral acts of the former President and Congress in
making an amnesty proclamation. Same as a law, amnesty
proclamation can only revoke by concurrent actions of the President
and Congress. Moreover, amnesty extinguishes the criminal liability
of the amnesty beneficiary. Hence, revocation made after the criminal
extinction will not prejudice the amnesty beneficiary.

President Duterte through Proclamation No. 572 did not revoke

Amnesty Proclamation No. 75; he merely declared as null and void
the granting of amnesty in favor of Trillanes for failure to apply as
required in Section 2 of Amnesty Proclamation No. 75, and for not
admitting his guilt. In sum, the President was actually nullifying the
granting of the benefit of the amnesty by DND through Secretary
Gazmin to Senator Trillianes. Proclamation No. 572 is an attack
against the decision of DND granting amnesty and not against the
bilateral acts of President Aquino and Congress in issuing
Proclamation No. 75. By basing his declaration of nullity of the
granting of amnesty on failure to file an application, the President is
in effect invoking Section 2 of Amnesty Proclamation No. 75; and by
invoking Section 2 thereof, he is in effect, validating this amnesty
proclamation rather than revoking it.

In Court of Appeals in People vs. Soriano and Trillanes, CA-G.R.

SP No. 159217, May 31, 2021, it was held that “The general grant of
amnesty by Proclamation No. 75 was not revoked or repealed by
Proclamation No. 572. Only the individualized grant to the petitioner
was revoked.

37 | P a g e
 Presidential power to revoke conditional amnesty -
President Duterte can revoke the certificate of amnesty issued by
DND through Secretary Gazmin in favor of Trillanes for failure to file
application for amnesty as an express precondition to the granting of
the benefit under an amnesty proclamation and failure to admit his
guilt. The DND is under the control power of the President. Hence,
he can nullify its decision granting amnesty benefit for failure of the
beneficiary to comply with required conditions.

In Court of Appeals in People vs. Soriano and Trillanes, CA-G.R.

SP No. 159217, May 31, 2021, it was held that the grant of
conditional amnesty to the petitioner was subject to the pre-
conditions of application and admission of guilt. If it is then found
and known that he indeed failed to fulfill these conditions originally,
then the grant of amnesty becomes susceptible to revocation. Since
the power to ultimately grant an individualized amnesty is lodged in
the President, the authority to revoke a conditional one can be
logically ceded to that office.

The granting of amnesty by the President is subject to

congressional concurrence, but the revocation of amnesty by reason
of non-compliance with required conditions is not subject to the
power of Congress to concur. (See: People vs. Soriano and Trillanes,
CA-G.R. SP No. 159217, May 31, 2021)

CONSTRUCTIVE DISCOVERY - The 10-year prescriptive

period for falsification of document shall commence to run on the
date of recording of the falsified deed of sale in the Registry of Deeds
because of the constructive notice rule under the Torren system
(People vs. Reyes, G.R. No. 74226, July 27, 1989).

The accused falsified a notarized Secretary's Certificate by

making it appear that a certain member of the board participated in
the meeting where in fact he is already dead. On the basis of this
Certificate, and Deed of Sale, the Registry of Deeds cancelled the title
of the corporation’s property and a new one was issued. Under RPC,
the period for the prescription of offenses commences from the day
on which the crime is discovered by the offended party, the
authorities, or their agents. However, the offender party
constructively discovered the crime upon registration of the Secretary
Certificate with the Deed of Sale in the Registry of Deeds because of
the rule on constructive notice to the entire world; hence, the period
for prescription commences on the date of registration of the falsified
document. The case was dismissed since the 10-year period of
prescription for falsification lapsed because the information was filed
more than 10 years from the registration of the document. (Lim vs.
People, G.R. No. 226590, April 23, 2018)

The 15-year prescriptive period for bigamy shall commence to

run on the date of actual discovery of the bigamous marriage and not
from the registration of bigamous marriage in the Office of the Civil
Registrar. The law on Civil Registry and the Family Code, which
38 | P a g e
governed registration of marriage, do not provide a rule on
constructive notice (Sermonia vs. Court of Appeals, G.R. No. 109454,
June 14, 1994).

PRESCRIPTION FOR OFFENSE – As a general rule under Act

3326, prescription for an offense punishable under special laws
begins to run from the date of the commission of the offense, if the
date of the commission of the violation is known. However, if the
necessary information, data, or records based on which the crime
could be discovered is readily available to the public, the State is to
be presumed to know that the crime has been committed. Hence, the
prescription begins to run from the date of the commission of the
offense.
There is an exception. Prescription for an offense punishable
under special laws begins to run from the date of discovery thereof if
the date of the commission of the violation is not known. However, if
the necessary information, data, or records based on which the crime
could be discovered is not readily available to the public, there is no
way for the State to know that the crime has been committed. Hence,
the prescription begins to run from the date of the discovery of the
offense. This is the blameless ignorance doctrine. Under this
principle, the State and private complainant should not be blamed
for the failure to institute the case immediately after the commission
of the crime if they are ignorant or has no reasonable means of
knowing the existence of a crime.
In sum, in determining whether it is the general rule or the
exception that should apply in a particular case, the availability or
suppression of the information relative to the crime should first be
determined. (People vs. Parba-Rural, G.R. No. 231884, June 27,
2018).

Under the law, SALNs are accessible to the public for copying
or inspection at reasonable hours. Under the circumstances, the
State is to be presumed to know of her omissions during the eight-
year period of prescription set in Act No. 3326. Hence, the general
rule applies; prescription begins to run from the date the accused
failed to file SALN. (People vs. Parba-Rural, supra)

Under the Local Government Code, contracts entered by the

Mayor are required to be posted at a conspicuous place in the
municipal hall. These posting requirements under the LGC constitute
sufficient notice of the contractual obligations the of Municipality of
Binan. The documents including the MOA involving the procurement
of the ECCE's services are available to the public. The Municipality
of Binan could have discovered the irregularities in the execution of

39 | P a g e
the MOA including the absence of competitive bidding. Reference to
the posted copies of the MOA and the other publicly available
documents regarding the transaction provides the State with
reasonable means of knowing the existence of the crime. Hence, the
general rule applies; prescription began to run upon the execution of
the MOA, which is the date of the alleged violation of Section 3(e) of
R.A. No. 3019. (Perez vs. Sandiganbayan, G.R. No. 245862.
November 3, 2020) If the mayor in conspiracy with other public
officers concealed the contract and related documents to the public,
the 20-year prescriptive shall commence to run from discovery of the
crime by person in authority or his agent. The concealment would
make it impossible for the State to discover the anomalies in the
contract. If the necessary information, data, or records based on
which the crime could be discovered is not readily available to the
public, there is no way for the State to know that the crime has been
committed.

Considering that during the Marcos regime, no person would

have dared to assail the legality of the transactions involving cronies
(such as behest loans or transactions involving the construction of
nuclear power plant, it would be unreasonable to expect that the
discovery of the unlawful transactions was possible prior to 1986.
(Disini v. Sandiganbayan, G.R. Nos. 169823-24 and 174764-65,
September 11, 2013) Hence, the prescriptive period for violation of
R.A. No. 3019 commenced from the date of its discovery in 1992 after
the Committee made an exhaustive investigation. (Presidential Ad hoc
Fact-finding Committee v. Hon. Desierto, G.R. No. 135715, April 13,
2011) To rule otherwise is to let the period of prescription run and
yet the State could not interrupt it prior to the EDSA revolution.

Necessary information, data, or records based on which the

crime committed by cronies during the Marcos regime are not readily
available to the public. The martial law prevented the filing of criminal
cases. The information about the violation was suppressed, possibly
through connivance. Thus, the exception applies and the period of
prescription shall be reckoned from the date of discovery
thereof. (People vs. Parba-Rural, supra)

INTERRUPTION OF PRESCRIPTION – Hypothetical problem:

Complaints for preliminary investigation for violation of ordinance,
violation of BP Blg. 22 and simple oral defamation are filed with the
prosecutor’s office. These cases are covered by the Rules on
Summary Procedure. Does the filing of these complaints interrupt
the running of period of prescription?

1. The filing of complaint involving violation of ordinance with

the prosecutor’s office does not interrupt the running of period of
prescription.
40 | P a g e
 The proceedings mentioned in Act No. 3326 are “judicial
proceedings.” Preliminary investigation, which is not a judicial
proceeding contemplated in Act 3326, will cause a prescriptive
interruption. (Zaldivia v. Reyes, Jr., G.R. No. 102342, July 3, 1992)
The provision in the Rules on Criminal Procedure regarding the
interruption of prescription by institution of criminal action is not
applicable to violation of ordinance because case involving this crime
is covered by the Rules on Summary Procedure. (Jadewell Parking
Systems Corp. vs. Lidua, Sr., G.R. No. 169588, October 7, 2013)

2. The filing of complaint involving violation of BP Blg. 22 with

the prosecutor’s office interrupts the running of period of
prescription. Under Act No. 3326, the running of the prescription of
offense punishable under special law shall be interrupted when
“judicial proceedings for investigation and punishment” are instituted
against the guilty person. The proceeding is described as “judicial”
since when Act No. 3326 was passed on December 4, 1926,
preliminary investigation of criminal offenses was being conducted
by justices of the peace. Considering that preliminary investigation
in criminal case for purposes of prosecution has become the exclusive
function of the executive branch, the term “proceedings” should now
be understood either as executive or judicial in character: executive
when it involves the investigation phase and judicial when it refers to
the trial and judgment stage. Hence, institution of proceeding,
whether executive or judicial, interrupts the running of prescriptive
period. (Panaguiton v. Department of Justice, G.R. No. 167571,
November 25, 2008, People v. Pangilinan, G.R. No. 152662, June 13,
2012)

Note: The Jadewell case is not compatible with Panaguiton

case, which is affirmed in Pangilinan case, and other cases, because
the former expressly reaffirmed the Zaldivia principle while latter
expressly abandoned it. For purpose of the bar exam, the Jadewell
principle should be applied if the case involved violation of ordinance.
Jadewell should not be applied to offenses under special laws even
they are covered by the rules on summary procedure.

In People vs. Lee, G.R. No. 234618, September 16, 2019, the
Supreme Court said that Jadewell presents a different factual milieu
as the issue involved therein was the prescriptive period for violation
of a city ordinance, unlike in the Pangilinan and other related
cases, where the issue refers to prescription of actions pertaining to
violation of a special law. For sure, Jadewell did not abandon the
doctrine in Pangilinan as the former even acknowledged existing
jurisprudence which holds that the filing of complaint with the Office
of the City Prosecutor tolls the running of the prescriptive period.

3. The filing of complaint involving simple oral defamation

with the prosecutor’s office interrupts the running of period of
prescription. Article 91 of the Revised Penal Code provides “the period
of prescription shall be interrupted by the filing of the complaint or
41 | P a g e
information.” The filling of compliant for preliminary investigation if
the fiscal’s office interrupts the running of prescription of simple
slander because Article 91 does not distinguish whether the
complaint is filed in the Office of the Prosecutor for preliminary
investigation or in court for action on the merits. (Francisco vs. CA,
G.R. No. L-45674, May 30, 1983)

Note: It should be noted that simple slander is covered by the

Rules on Summary Procedure. In People vs. Bautista, G.R. No.
168641, April 27, 2007, the Supreme Court applied the Francisco
principle to slight physical injuries, which is also covered by the
Rules on Summary Procedure.

Jadewell case cannot be applied to prescription of felonies

although they are covered by the Rules on Summary Procedure.
Jadewell is interpreting Act No. 3326, which governs violation of
ordinance while Francisco and Bautista are interpreting Article 91 of
the Revised Penal Code, which is rule on prescription of felonies such
as oral defamation and slight physical injuries.

For corruption under R.A. No. 3019 as amended by R.A. No.

10910, the prescriptive period is 20 years. Act No. 3326 does not
apply to corruption and sexual harassment with regards to the rules
on the period of prescription since R.A. No. 3019 provide a special
rule on the period of prescription. However, Act No. 3326 on the rule
of commencement and interruption of the running of prescriptive
period is still applicable to corruption under R.A. No. 3019. Thus, the
period of prescription will be interrupted upon the filing of complaint
for preliminary investigation for violation of RA No. 3019 with the
Ombudsman (Disini v. Sandiganbayan, G.R. Nos. 169823-24 and
174764-65, September 11, 2013; Perez vs. Sandiganbayan, G.R. No.
245862. November 3, 2020)

PROBATION – Section 9 of PD No. 968 provides that benefits of

this Decree shall not be extended to those sentenced to serve a
maximum term of imprisonment of more than six (6) years.

Accused is charged of sale of dangerous drugs. Pursuant to a

plea-bargaining agreement, he pleaded guilty to the lesser offense of
possession of drug paraphernalia, which is punishable 6 months and
1 day to 4 years. Sale of dangerous drugs is not probationable.
However, in applying for probation, what is essential is not the
offense charged but the offense to which the accused is ultimately
found guilty of. In sum, in determining the eligibility of the accused
for probation, the court shall consider possession of drug
paraphernalia for which he pleaded guilty, and not sale of dangerous
drugs with which he is charged. Possession of drug paraphernalia is
probationable since the penalty prescribed for it does not exceed 6
years of imprisonment. Under Section 24 of RA No. 9165, any person
convicted for drug trafficking or pushing cannot avail of the privilege
granted by the Probation Law. However, possession of drug
paraphernalia is not considered as drug trafficking or pushing.
42 | P a g e
Hence, the accused is eligible to apply for probation. (Pascua vs.
People, G.R. No. 250578, September 07, 2020)

Mutually exclusive remedies – Under Section 4 of PD No. 968,

no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction.
This is the rule on mutually exclusive remedies. Availing the remedy
of appeal will exclude the remedy of probation. On other hand,
availing the remedy of probation will exclude the remedy of appeal.

Section 4 of the Probation Law intends to put a stop to the

practice of appealing from judgments of conviction even if the
sentence is probationable, for the purpose of securing an acquittal
and applying for the probation only if the accused fails in his bid. An
accused must not have appealed his conviction before he can avail
himself of probation. Jurisprudence treats appeal and probation as
mutually exclusive remedies because the law is unmistakable about
it. (People vs. Galuga, G.R. No. 221428, February 13, 2019,
Hernando)

However, there is an exception to the rule on mutually exclusive

remedies. Section 4 of PD No. 968 provides when a judgment of
conviction imposing a non-probationable penalty (more than six
years of imprisonments) is appealed or reviewed, and such judgment
is modified through the imposition of a probationable penalty (six
years of imprisonment or less), the defendant shall be allowed to
apply for probation based on the modified decision before such
decision becomes final. This notwithstanding, the accused shall lose
the benefit of probation should he seek a review of the modified
decision which already imposes a probationable penalty.

In Hernan vs. Honorable Sandiganbayan, G.R. No. 217874,

December 5, 2017, accused was convicted of malversation and
sentenced to suffer a penalty of 11 years, 6 months and 21 days of
prision mayor, which is non-probationable. The judgment becomes
final prior to the effectivity of RA No. 10951. Under Article 217 of
RPCas amended by RA No. 10951, the penalty for malversation
involving an amount of not exceeding P40,000 is only prision
correccional in its medium and maximum periods. Despite the
immutability of a final judgment, the Supreme Court reduced the
penalty to 3 years, 6 months and 20 days of prision correccional in
accordance with RA No. 10951, which penalty is now probationable.
It was stated that because of RA No. 10951, not only must sentence
of the accused be modified respecting the settled rule on the
retroactive effectivity of favorable laws, she may even apply for
probation. In sum, applying Section 4 of P.D. No. 968, as amended
by R.A. No. 10707, since the judgment of conviction imposing a non-
probationable penalty is modified through the imposition of a
probationable penalty, she is now allowed to apply for probation
based on the modified decision before such decision becomes final.
(See also: Aguinaldo vs. People, G.R. No. 226615, January 13, 2021)

43 | P a g e
 COMMUNITY SERVICE - RA No. 11362, which is approved on
August 8, 2019, has introduced a new provision on community
service, and that is, Article 88-a of Revised Penal Code. Community
service is not a penalty but a mode of serving the penalty of arresto
menor or arresto mayor. Article 88-a of the Code provides:

“Article 88a. Community Service. The court in its discretion

may, in lieu of service in jail, require the penalties of arresto
menor and arresto mayor be served by the defendant by
rendering community service in the place where the crime was
committed, under such terms as the court shall determine, taking
into consideration the gravity of the offense and the
circumstances of the case, which shall be under the supervision
of a probation officer: Provided, That the court will prepare an
order imposing the community service, specifying the number of
hours to be worked and the period within which to complete the
service.

Xxx

“Community service shall consist of any actual physical

activity which inculcates civil consciousness, and is intended
towards the improvement of a public work or promotion of a
public service.

“If the defendant violates the terms of the community

service, the court shall order his/her re-arrest and the defendant
shall serve the full term of the penalty, as the case may be, in
jail, or in the house of the defendant as provided under Article
88. However, if the defendant has fully complied with the terms
of the community service, the court shall order the release of the
defendant unless detained for some other reason.

The privilege of rendering community service in lieu of

service in jail shall availed of only once.”

After promulgation of judgment or order where the imposable

penalty for the crime or offense committed by the accused is arresto
menor or arresto mayor, it shall be the court's duty to inform the
accused of and announce in open court his/her options within fifteen
(15) calendar days from date of promulgation, to wit: (a) file an
appeal; (2) apply for probation as provided by law; or (3) apply that
the penalty be served by rendering community service in the place
where the crime was committed. It shall further be explained to the
accused that if he/she chooses to appeal the conviction, such resort
thereto bars any application for community service or probation. In
the event accused opts to apply for community service, the
application must be filed within the period to perfect an appeal. (A.M.
No. 20-06-14-SC, October 6, 2020)

44 | P a g e
 If the accused is sentenced with a penalty higher than arresto
menor or arresto mayor, and on appeal the penalty was lowered to
arresto menor or arresto mayor, which became final and executory,
the accused may, upon written application with the court of origin,
seek community service in lieu of imprisonment, which may be acted
upon subject to the provisions of these guidelines. With respect
hereto, in no case shall community service be allowed if the
defendant is a habitual delinquent. (Ruego vs. People, G.R. No.
226745, May 03, 2021; A.M. No. 20-06-14-SC, October 6, 2020)
It must be emphasized that the imposition of the penalty of
community service is still within the discretion of the Court and
should not be taken as an unbridled license to commit minor
offenses. It is merely a privilege since the offended cannot choose it
over imprisonment as a matter of right. Furthermore, in requiring
community service, the Court shall consider the welfare of the society
and the reasonable probability that the person sentenced shall not
violate the law while rendering the service. With the enactment of
R.A. No. 11362, apart from the law's objective to improve public work
participation and promote public service, it is expected that the
State's policy to promote restorative justice and to decongest jails will
be achieved. (Alfonso vs. People, G.R. No. 228745, August 26, 2020)

PROBATION AND COMMUNITY SERVICE - If the penalty

imposed exceeds six (6) years of imprisonments, the accused can file
an appeal or motion for reconsideration. If the accused files a motion
for reconsideration, and the same is denied, the accused has a fresh
period of 15 days to file an appeal.

If the penalty imposed exceeds six (6) months of imprisonment

but not exceeding 6 years, the accused can file an appeal or apply for
probation. If the accused files a motion for reconsideration, and the
same is denied, the accused has a fresh period of 15 days to file an
appeal or apply for probation.

If the penalty imposed arresto menor or arrestor mayor (not

exceeding 6 months), the accused can file an appeal, or apply for
probation or community service. If the accused files a motion for
reconsideration, and the same is denied, the accused has a fresh
period of 15 days to file an appeal, or apply for probation or
community service.

Mutually exclusive remedies - These remedies of appeal and

probation are mutually exclusive. In sum, filing an appeal will
exclude applying for probation as a remedy. On the other hand,
applying for probation will exclude filing an appeal as a remedy.

These remedies of appeal, probation and community service are

mutually exclusive. In sum, filing an appeal will exclude applying for
probation or community service as a remedy; applying for probation
will exclude filing an appeal or applying for community service as a
45 | P a g e
remedy; and applying for community service will exclude filing an
appeal or application for probation as a remedy.

However, under A.M. No. 20-06-14-SC, in the event that the

court denies the application for community service and the period to
appeal has not yet lapsed, the accused may still choose to appeal or
apply for probation.

Moreover, the accused can withdraw the application for

probation and file an appeal provided that both the withdrawal and
appeal are made within the period of perfecting an appeal. (Yusi v.
Morales, G.R. No. 61958, April 28, 1983;

Lowering the penalty - The accused was sentenced to suffer 6

years and 1 day of prision mayor. On appeal, the penalty was reduced
by the Court of Appeals to 6 months of arresto mayor. In this case,
the accused has two options, to wit:

1. He can apply for probation. Under Section 4 of PD 968, when

a judgment of conviction imposing a non-probationable penalty is
appealed or reviewed, and such judgment is modified through the
imposition of a probationable penalty, the defendant shall be allowed
to apply for probation based on the modified decision before such
decision becomes final. In this case, 6 years and 1 day of prision
mayor which the accused was sentenced to suffer is non-
probationable; while 6 months of arresto mayor into which the
original penalty was reduced by the appellate court is probationable.
Hence, the accused can apply probation on the basis of the modified
decision.

2. He can apply that the penalty be served by rendering

community service. If the accused is sentenced with a penalty higher
than arresto menor or arresto mayor, and on appeal the penalty was
lowered to arresto menor or arresto mayor, which became final and
executory, the accused may, upon written application with the court
of origin, seek community service in lieu of imprisonment (Ruego vs.
People, G.R. No. 226745, May 03, 2021; A.M. No. 20-06-14-SC,
October 6, 2020)
Availing the remedies twice - Under PD No. 968, The benefits
of probation law shall not be extended to those who have been once
on probation. Under Article 88-A of RPC, the privilege of rendering
community service in lieu of service in jail shall availed of only once.
Under A.M. No. 20-06-14-SC, October 6, 2020, an accused who
has applied and was granted probation in a previous case is not
disqualified to apply for community service in a subsequent case.

Under PD No. 968, the benefits of probation law shall not be

extended to those who have been previously convicted by final
judgment of an offense punished by imprisonment of more than six
46 | P a g e
months and one day. Availing community service in a previous case
means that the penalty imposed in that case is not higher than
arresto menor or arrestor mayor. Since the penalty in his previous
case does not exceed 6 months, he can apply for probation in his
present case.
Mode of extinguishing criminal liability - Under PD No. 968
as amended by RA No. 10707, the final discharge of the probationer
shall operate to restore to him all civil rights lost or suspended as a
result of his conviction and to totally extinguish his criminal liability
as to the offense for which probation was granted.

Under Article 89 of Revised Penal Code, service of sentence will

extinguish the criminal liability of the convict. Hence, completely
rendering community service, which is form of servicing sentence,
will extinguish the criminal liability if the convict.

Extinguishing accessory penalties - Under Article 89 of RPC,

amnesty will extinguish criminal liability, the penalty and all effect
thereof. Hence, amnesty will extinguish accessory penalties since
they are effects of principal penalty.

Under Articles 40, 41, 42, 43, and 89 of the Revised Penal Code,
a pardon shall extinguish the criminal liability of the convict, and
remit the principal penalty imposed upon him; but it shall not remit
the accessory penalties; however, a pardon may expressly remit such
accessory penalties.

The suspension of service of the principal penalty of

imprisonment due to probation carries with it the suspension of the
service of the accessory penalty of disqualification. (Villareal v. People,
G.R. No. 151258, December 1, 2014) The Villareal principle is in
accordance with the rule that accessory follows the principal.
Because of the Villareal principle, it is submitted that the final
discharge of the probationer shall extinguish his criminal liability
with the consequent remission of the principal penalty and accessory
penalty of disqualification.

Rendering community service is only applicable where the

penalty is arrest menor or arresto mayor. Under Article 44 of RPC,
the accessory penalty for arresto menor or arresto mayor is
suspension of the right to hold office and the right of suffrage during
the term of the sentence. Rendition of community service will end the
term of the sentence; hence it will likewise end the term of the
accessory penalty of suspension.

DIRECT ASSAULT – Simple assault (e.g., punching) upon an

agent of a person in authority (e.g., police officer) while engaged in the
performance of duty constitutes simple resistance and not direct
assault because there is no intent to defy the law and its
representative at all hazard, which is an element thereof (U.S. vs.
Tabiana, G.R. No. 11847, February 1, 1918; U.S. vs. Agustin, G.R.
47 | P a g e
No. 13083, December 11, 1917; People vs. Lapitan, G.R. No. 38226,
November 17, 1933). But serious assault upon agent of a person in
authority while engaged in the performance of duty constitutes direct
assault (U.S. vs. Cox, G.R. No. 1406, January 6, 1904; U.S. vs.
Samonte, G.R. No. 5649, September 6, 1910).

Simple assault (e.g., punching) upon a person in authority (e.g.,

mayor or chief of police) while engaged in the performance of duty
constitutes qualified direct assault. The law does not distinguish
between serious and simple “laying of hands” upon a person in
authority as a qualifying circumstance. Hence, a simple laying of
hands upon a person in authority constitutes qualified direct assault.
The Tabiana principle is only applicable if the victim is an agent of a
person in authority (U.S. vs. Gumban, G.R. No. 13658, November 9,
1918).

The accused, an America soldier, seized the complainant, a

police officer, by the throat, threw him to the ground, and struck him
several blows with the club which he succeeded in wresting from the
policeman. He was convicted of direct assault. (United States v. Cox,
supra)

Police officers including the complainant rushed to stop the

fight between groups of women. However, accused, intoxicated,
shouted at them, "Wala kayo pakialam sa akin, hindi aka sasama sa
inyo." She then grabbed complainant by the collar, slapped his
cheek, and kicked his legs several times. Complainant suffered minor
injuries. The accused was convicted of simple resistance although he
was charged with direct assault. Simple resistance is necessary
included in the charge of direct assault (Mallari vs. People, G.R. No.
224679, February 12, 2020)

If the person in authority or his agent is engaged in the actual

performance of duties at the time of the assault, the motive for the
assault is immaterial. Direct assault is committed even if the motive
(such as non-payment of loan) was totally foreign to victim’s official
function (Sarcepuedes vs. People, G.R. No. L-3857, October 22,
1951).

The phrase "on occasion of such performance" used in Article

148 of RPC means "by reason of the past performance of official duty
because the purpose of the law is to allow them to discharge their
duties without fear of being assaulted by reason thereof (People vs.
Renegado, G.R. No. L-27031, May 31, 1974). Attacking a judge on
the street by reason of past performance of duty (such as citing the
accused in contempt) constitutes qualified direct assault (U.S. vs. vs.
Garcia, G.R. No. 6820, October 16, 1911). But attacking a retired
judge by reason of past performance of duty is not direct assault
since he is not a person in authority at the time of the assault. Note:
The mandatory retirement age of a judge is 70 year.

48 | P a g e
 The status of lawyer as persons in authority remains even the
assault is committed outside the court room as long as it is
perpetrated by reason of the performance of their professional duties
(Records of the Batasan, Volume Four, 1984-1985 of BP Blg. 873,
which amended Article 152 of RPC).

Attacking a third person who comes to the aid of a person in

authority, who is a victim of direct assault, is liable for direct assault
upon an agent of a person in authority. Attacking a third person who
comes to the aid of an agent of person in authority, who is a victim
of direct assault, is liable for indirect direct assault. Attacking a third
person who comes to the aid of an agent of person in authority, who
is a victim of simple resistance, is liable for physical injuries.

Slapping and pushing a public-school teacher, a person in

authority, against a wall divider, while engaged in the performance of
duty is direct assault. Accused initiated her tirades against the
teacher. The fact that the teacher retaliated by similar verbal
invectives against the accused, does not mean that she as a person
in authority already descended to the level of a private person. If the
victim suffered abortion, the offender is liable for complex crime of
direct assault with unintentional abortion since single act of
assaulting a person in authority constitutes two crimes. However, in
this case, the prosecution failed to prove that the proximate cause of
the abortion is the commission of direct assault since no doctor, who
examined her, was not presented as witness to testify on the causal
connection between the two (Gelig vs. People, G.R. No. 173150 July
28, 2010).

Killing a mayor or police officer while in the performance of his

duty constitute a complex crime of direct assault with murder, or
homicide. (People vs. Pitulan, G.R. No. 226486, January 22, 2020;
see also: People vs. Bautista, G.R. No. 247961, June 16, 2021)

BRIBERY - Plaintiff gave money to the judge, who in

consideration thereof subsequently rendered an unjust decision in
favor of the former. The judge is liable of direct bribery (Mangulabnan
vs. People, G.R. No. 236848, June 8, 2020) and rendering unjust
decision, while the plaintiff is liable of corruption of public officer.
But if the plaintiff gave money to the judge, who subsequently
rendered a decision against the former, the crime committed by the
judge is indirect bribery while the plaintiff is liable of corruption of
public officer. The judge is not liable of direct bribery since rendering
a decision against the corruptor indicates that the former did not
receive the money in consideration of rendering a decision in favor of
the latter. It seems that the plaintiff merely gave the money to the
judge by reason of his position as such.

SERIOUS PHYSICAL INJURIES INVOLVING DEFORMITY -

Serious physical injuries under Article 263 of the Revised Penal Code
includes the infliction of injuries in consequence thereof, the person
injured shall have become deformed, or shall have lost any other part
49 | P a g e
of his body. However, the Spanish text of this provision used the
phrase "cualquier otro miembro" which should have been accurately
translated to "any other member." The phrase "cualquier otro
miembro" means any other member than an eye, a hand, a foot, an
arm, or a leg. The Spanish word "Deforme" in Article 263 is better
translated "disfigured." (Ruego vs. People, G.R. No. 226745, May 03,
2021)

Serious physical injuries contemplate physical deformity or the

loss of a body part resulting in the alteration of one's physical
appearance. The loss of a tooth, may, in most cases, be later repaired
or replaced with an artificial tooth by a competent dentist. Thus, for
the loss of a tooth to be considered within the scope of serious
physical injuries, the circumstances surrounding its loss and
whether it caused a physical deformity or permanent alteration of
one's physical appearance must be examined on a case-to-case basis.
(Ruego vs. People, supra)

There may be cases where the loss of teeth would cause a

physical deformity that can no longer be remedied by science. Hence,
the crime committed is serious physical injuries. (Ruego vs. People,
supra)

In Ruego vs. People, supra, during the trial, the complainant

was asked to show to the trial court his tooth, to which the trial court
noted that it was already an artificial tooth. The complainant’s face
had no visible disfigurement that would warrant accused’s conviction
of serious physical injuries. He was convicted of slight physical
injuries.

In 1903 Spanish Supreme Court case mentioned in Ruego case,

it was held that the loss of an incisor of a 70-year-old woman would
not constitute as a disfigurement, since the loss of teeth was common
to those of advanced age.

RAPE – There are two kinds of rape: (1) rape through sexual
intercourse; and (2) rape through sexual assault. However, the
Supreme Court in People vs. Tulugan, G.R. No. 227363, March 12,
2019 said that rape through sexual intercourse should be called as
“rape” while rape through sexual assault should be called “sexual
assault.”

Rape, which is commonly denominated as “organ rape” or

“penile rape,” is committed by a man by having carnal knowledge
with a woman. Before was a gender crime since the offender must be
a man while the victim must be a woman. But by reason of the
amendment introduced by RA No. 11648, rape is now a gender-free
crime. The offender and offended party are any persons, regardless
of their gender. A man can now be a victim of rape.
50 | P a g e
 On the other hand, there are three kinds of sexual assault, to
wit: (1) instrument or object sexual assault, which is committed by
inserting an instrument or object into the genital or anal orifice of
another person; (2) sexual assault through oral intercourse, which is
committed by inserting his penis into another person’s mouth; and
(3) sexual assault through sodomy, which is committed by inserting
his penis into another person’s anal orifice. In sexual assault, the
gender of the offender and the victim is not material. That is why this
crime is called “gender-free sexual assault.” (see: People v. Soria, G.R.
No. 179031, November 14, 2012) However, the modes (e.g.,
intimidation) or circumstances (e.g., demented victim) in committing
the crime and the qualifying circumstances are the same whether the
crime is rape or sexual assault.

It is already a settled rule that a finger or tongue is an

instrument or object; hence inserting a finger or tongue into genital
orifice is sexual assault (People v. Chingh, G.R. No. 178323, March
16, 2011; (People vs. Bonaagua, GR No. 188897, June 6, 2011).

Vulval cleft – Rape is committed by a person who shall have

carnal knowledge of another person: (1) through force, threat, or
intimidation; (2) when the offended party is deprived of reason or
otherwise unconscious; (3) by means of fraudulent machination or
grave abuse of authority; or (4) when the offended party is under 16
years of age or is demented. (Article 226-A of the Revised Penal Code
as amended by RA No. 11648)
Carnal knowledge is defined as the act of a man having sexual
intercourse or sexual bodily connections with a woman. (People v.
Pareja, G.R. No. 188979, September 5, 2012) Thus, having sexual
intercourse with the victim by the man consummates the crime of
rape.
Under the old rule, the slightest penetration of the female organ
consummates the crime rape. (People vs. Selfaison, G.R. No. L-
14732, January 28, 1961) In sum, slightest penetration of the female
organ by the penis of the offender is equivalent to having sexual
intercourse or carnal knowledge within the contemplation of the
provision on rape.

However, the principle of slightest penetration is vague since it

failed to show which part of the female organ needed to be penetrated
by the penis to consummate rape. Would the penetration of the penis
into the vaginal orifice requires the consummation of rape or would
the penile penetration into the labia majora or minora enough to
consummate rape?

Note: Vaginal orifice is a small opening to vagina itself. Labia

majora or minora are also called lips of the pudendum since they are
51 | P a g e
similar to the lips of the mouth. Labia majora and labia minora are
located between the mons pubis (part of the vagina that is covered by
the pubic hair) and vaginal orifice.

In People vs. Campuhan, G.R. No. 129433, March 30, 2000, the
Supreme Court clarified the principle of slightest penetration. It was
explained that slightest penetration of the female organ, i.e., touching
of either labia majora or minora of the pudendum by the penis
consummated rape. In sum, penile penetration of the vaginal orifice
is not required to consummate rape.

The Campuhan principle is in accordance with the principle in

the case of People vs. Dela Pena, G.R. No. 104947, 30 June 1994. In
several cases, the Supreme Court affirmed the Campuhan principle.

However, in the latest case of People vs. Agao, G.R. No. 248049,
October 4, 2022, the Supreme Court modified the Campuhan
principle. It was held that rape of a female victim by a male person
through penile penetration reaches the consummated stage as soon
as the penis penetrates “the cleft” of the labia majora in even the
slightest degree. Simply put, mere introduction, however slight, into
the cleft of the labia majora by a penis that is capable of penetration,
regardless of whether such penile penetration is thereafter fully
achieved, consummates the crime of rape.

The labia majora begins from the walls of the vulva to the cleft
of the labia majora or major lips. The cleft between the labia majora
is the fleshy outer lip of the vulva, which is also known as the vulval
or pudendal cleft, or cleft of Venus. This cleft contains and protects
the other more delicate structures of the vulva. When the offender's
penis touches the cleft of the labia majora, it already constitutes
carnal knowledge because such act shows the consummated effort of
the offender to penetrate the more delicate structures of the vulva.

Accordingly, if the penis of the offender only touched the

extreme external portion of the labia majora, which is far from the
vulval cleft, then such act cannot be considered as consummated
rape. Absent any showing of at least this minimal level of penetration,
the crime can only be attempted rape, if not acts of lasciviousness.
(Concurring opinion of Justice Gesmundo, People vs. Agao, supra)

A mere grazing by the penis of the fleshy portion, not the vulval
cleft of the labia majora, will also constitute only attempted rape and
not consummated rape, since the same cannot be considered to have
achieved the slightest level of penetration. Stated differently, the
Court here elucidates that "mere touch" of the penis on the labia
majora legally contemplates not mere surface touch or skin contact,

52 | P a g e
but the slightest penetration of the vulval cleft, however minimum in
degree. (People vs. Agao, supra)

In People v. Ombreso, G.R. No. 142861, December 19, 2001 the

Supreme Court cautioned that when a victim is of such age that she
cannot be expected to make a distinction between partial and full
penile entry, her testimony that the accused's penis did not enter her
sex organ should be taken together with the rest of her testimony and
not taken out of context.

In Campuhan, the Supreme Court acknowledged the limitations

of a child witness. In said case, the child witness answered "yes" to
the question of whether the penis of the accused touched her organ,
but when further asked if the penis penetrated her organ, she replied
"no." The Court recognized that the child could not have been aware
of the finer distinction between touching and penetration," her
"vocabulary is yet as underdeveloped as her sex, and her language is
bereft of worldly sophistication. Hence, the Court looked into other
circumstances to assess whether the accused "made efforts to
penetrate" or "whether the penis was erect" as to consummate the
crime.

In People v. Gabayron, G.R. No. 102018, August 21, 1997 the

witness narrated that she cried in pain as the accused tried to insert
his penis. When asked to be specific on how deep the accused was
able to insert the organ, the witness simply answered "I do not know,
sir, how far it went, but I felt the pain." The Court held that the victim's
testimony established without a doubt that the accused's organ
"managed to come into contact with her vagina, enough to cause her
pain."

In People v. Grande, G.R. Nos. 141724-27, November 12, 2003

"the victim testified that she felt pain and her vagina bled," which the
Court found to be "indisputable indications of slight penetration or,
at the very least, that the penis indeed touched the labia." In another
case, the Court held that "pain could be nothing but the result of
penile penetration, sufficient to constitute rape." Indeed, when the
victim " feels pain inside her vagina," that indicates penetration.
However, the absence of pain or even bleeding does not necessarily
mean lack of penetration, as shown in People v. Deliola, G.R. No.
200157, August 31, 2016 where the accused tried to dispute that
rape occurred based on the victim's testimony that she "felt no pain
and her vagina did not bleed." The Court disagreed, and in affirming
the conviction, held that it is "carnal knowledge, not pain nor
bleeding, which is essential to consummate rape." The Court
recognized that it is "possible for physiological manifestations of rape,
such as pain, to appear only after the incident."

53 | P a g e
 To stress, where the victim did not specifically state in her
testimony that the offender's penis penetrated her vagina, whether
fully or partially, or that the offender's penis distinctively touched the
cleft of her labia majora, there may still be a conclusion that rape
was consummated based on any of the following circumstances: 1.
The victim's testimony showed that she felt pain on her genitals; 2.
Bleeding occurred in the victim's genitalia; 3. The labia minora was
gaping with redness; 4. Discoloration in the inner lips of the vagina;
5. The hymenal tags were no longer visible; or 6. Injury to the sex
organ of the victim. (Concurring opinion of Justice Gesmundo, People
vs. Agao, supra)

To convict the accused for consummated rape, the victim must

be explicit in testifying on manner and extent of penile contact or
penetration. Descriptive words and phrases used by child victims to
depict the assault, including "binundul-bundol ang kanyang ari,"
"poked," and "idinidikit ang ari” were not explicit or specific enough
to assess the nature of the penile contact. (People vs. Agao, supra)

Consummated sexual assault - In the crime of instrument or

object sexual assault, Article 266-A of the Revised Penal Code as
amended by R.A. No. 8353 uses the phrase “inserting any instrument
or object into the genital orifice of another person.” It is submitted that
the words “genital orifice” under R.A. No. 8353 and “vaginal orifice”
under medical terminology are synonymous. Hence, inserting the
instrument or object into the genital or vaginal orifice of the victim
consummates the crime of sexual assault. Touching the vulval cleft
by the instrument or object is not enough to consummate the crime.
However, the Supreme Court in the case of Agao has a different
interpretation. It was explained in that case that the threshold of
genital contact (penetrating the vulval cleft) may be applied by
analogy to acts of rape by sexual assault. Thus, a finding that the
accused has penetrated the vulval cleft of the victim through the use
of any instrument or object warrants a factual finding of
consummated rape by sexual assault. (People vs. Agao, supra)
For the bar exam, the Agao principle should be followed. The
touching of the vulval cleft by an instrument or object consummates
the crime of sexual assault. With this principle, the term “genital
orifice” under R.A. No. 8353 should be treated as a comprehensive
concept since it includes the “vulval cleft” and “vaginal orifice.”

Attempted rape, acts of lasciviousness and unjust vexation

- If there is no penetration of the victim’s vulval cleft by the offender’s
penis, the crime can only be attempted rape or acts of lasciviousness
depending upon the criminal intent. If there is intent to penetrate the
genetical organ, the crime committed is attempted rape. On the other
54 | P a g e
hand, if there is no intent to penetrate, the lewd act of the offender
constitutes acts of lasciviousness.

Intent to sexually penetrate is present if it is shown that the

erectile penis of the accused is in the position to penetrate (Cruz v.
People, G.R. No. 166441, October 8, 2014) or the accused actually
commenced to force his penis into the victim’s sexual organ. (People
v. Banzuela, G.R. No. 202060, December 11, 2013) However, there is
no attempted rape if the accused spontaneously desisted from having
sexual intercourse with the victim.
In the absence of showing that the erectile penis of the accused
is in the position to penetrate (Cruz v. People, supra) or the accused
actually commenced to force his penis into the victim’s sexual organ
(People v. Banzuela, supra), the accused cannot be convicted of
attempted rape because of lack of clear intent to sexually penetrate.
Hence, kissing and undressing the victim (People v. Sanico, G.R. No.
208469, August 13, 2014) or touching her vagina by the hand of the
accused (People v. Banzuela, G.R. No. 202060, December 11, 2013),
touching the breast and thighs of the victim and kissing her (People
v. Victor, G.R. No. 127904, December 5, 2002); or rubbing his penis
on the mons pubis of the pudendum (People v. Abanilla, G.R. Nos.
148673-75, October 17, 2003) is merely acts of lasciviousness
because intent to sexually penetrate is not clearly shown, but lewd
design is established.
If the offender, without intent to sexually penetrate and
without lewd design, touches the victim’s body without her consent,
he is liable for unjust vexation. In sum, if touching the victim’s body
does not constitute rape, attempted rape, or acts of lasciviousness,
the crime committed is unjust vexation.
The act of pressing a cloth soaked in chemicals in the mouth of
the victim, which would induce her to sleep, is not constitutive of
attempted rape or acts of lasciviousness since neither intent to have
sexual intercourse nor lewd design is not present. Hence, the crime
committed is only unjust vexation. (Baleros, Jr. v. People, G.R. No.
138033, February 22, 2006, and January 30, 2007)

Absorption rule - If the accused commits rape and acts of

lasciviousness, the latter is absorbed by the former (People vs. Dy,
G.R. Nos. 115236-37, January 29, 2002). But the doctrine of
absorption is not applicable to rape and sexual assault. Inserting
lighted cigarette into the genital orifice and anal orifice of the victim
and raping her constitutes two separate crimes of sexual assault and
rape (People vs. Crisostomo, GR No. 196435, January 29, 2014).
Inserting the penis into the mouth of the victim and into her genital

55 | P a g e
orifice constitutes separate crimes of sexual assault and rape (People
vs. Espera, G.R. No. 202868, October 2, 2013; People vs. Dereco,
G.R. No. 243625, December 2, 2020)

Withdrawal of consent - Where the woman consents, but then

withdraws her consent before penetration, and the act is
accomplished by force, it is rape. (People v. Butiong, G.R. No. 168932,
October 19, 2011) But if the woman tacitly consents to have sexual
intercourse with the accused, but then withdraws her consent in the
course of sexual intercourse because she felt pain, and the act is not
rape. It would be unfair to convict a man of rape committed against
a woman who, after giving him the impression thru her
unexplainable silence of her tacit consent and allowing him to have
sexual contact with her, changed her mind in the middle and charged
him with rape (People vs. Tionloc, G.R. No. 212193, February 15,
2017).

Stealthing - Where a woman offers to allow a man to have

intercourse with her on certain conditions and he refuses to comply
with the conditions, but accomplishes the act without her consent,
he is guilty of rape. (People v. Butiong, supra)

Stealthing is the removal of condom by the man during sex

without consent of the woman. In Germany, stealthing is a crime,
which is different and distinct from rape. In sum, stealthing under
German Law is not within the contemplation of the word “rape.”

In our country, there is no crime of stealthing in the book of

statutes. Moreover, stealthing is not equivalent to rape since lack of
consent as an element of this crime pertains to sex and not to the
removal of the condom. Nullum crimen, nulla poena sine lege.
However, if the woman expressly and categorically required the use
of condom as a condition to sex, and made it clear that she would
not give her consent to a sexual intercourse without a condom,
stealthing may constitute fraudulent machination, which is a mode
of committing rape. But absolute lack of consent must be shown to
make the man liable for rape through fraudulent machination. If the
woman failed to resist the continued sex, or register a strong
objection upon knowing that the man already removed the condom
from his penis, rape must be ruled out. Rape is a serious crime
punishable by reclusion perpetua. Hence, the acts committed by the
accused must be clearly within the contemplation of the statute on
rape; otherwise, he must be acquitted of rape based on the pro reo
principle.

Tenacious resistance - Among the amendments of the law on

rape introduced under RA No. 8353 is Section 266-D, which provides
“Any physical overt act manifesting resistance against the act of rape
in any degree from the offended party, or where the offended party is
so situated as to render her/him incapable of giving valid consent, may
be accepted as evidence in the prosecution rape” (People vs. Sabadlab,
G.R. No. 175924, March 14, 2012). The legislators agreed that Article
56 | P a g e
266-D is intended to soften the jurisprudence on tenacious
resistance (People vs. Dulay, G.R. Nos. 144344-68, July 23, 2002).
Indeed, failure to offer tenacious resistance does not make the
submission by the victim to the criminal acts of the accused
voluntary. What is necessary is that the force employed against her
be sufficient to consummate the purpose which he has in mind
(People vs. Olesco, G.R. No. 174861 April 11, 2011; People vs.
Nachor, G.R. No. 177779, December 14, 2010). It is not necessary for
the victim to sustain physical injuries. She need not kick, bite, hit or
scratch the offender with her fingernails to prove that she had been
defensive (People vs. Torres, G.R. No. 134766, January 16, 2004).
Well-settled is the rule that where the victim is threatened with bodily
injury, as when the rapist is armed with a deadly weapon, such as a
pistol, knife, ice pick or bolo, such constitutes intimidation sufficient
to bring the victim to submission to the lustful desires of the rapist
(G.R. No. 176740 June 22, 2011, People v. Dumadag).

Resistance against sexual advance may establish lack of

consent. Hence, rape is committed. On the other hand, lack of
resistance may sometimes imply consent. However, that is not always
the case. While it may imply consent, there are circumstances that
may render a person unable to express her resistance to another's
sexual advances. Thus, when a person has carnal knowledge with
another person who does not show any resistance, it does not always
mean that that person consented to such act. Lack of resistance does
not negate rape. (People vs. Ibanez, G.R. No. 231984, July 6, 2020)

Intimidated person and retarded person - If the information

alleged force, threat, or intimidation without averment of any mental
disability on the part of the victim, the accused can still be convicted
provided that sexual congress and mental incapacity, i.e. the
incapacity to give consent, are proven by clear and convincing
evidence (People vs. Quintos, G.R. No. 199402, November 12, 2014;
People vs. Gilles, G.R. No. 229860, March 21, 2018). Having sexual
intercourse with a mentally retarded person is equivalent to having
sexual intercourse with a person through intimidation. If the
Information alleged intimidation as a mode of raping the victim, but
the evidence merely proves her mental retardation, the accused can
be convicted of rape through intimidation. (People v. Balatazo, G.R.
No. 118027, January 29, 2004)

Deprived of reason and mentally retarded person – Having

sexual intercourse with the offended party, who is deprived of reason,
is rape under Article 266-A (b) of the Revised Penal Code. Having
sexual intercourse with the offended party, who is under 16 years of
age is statutory rape under Article 266-A (d) of the Revised Penal
Code as amended by RA No. 11648.

Under the old rule, having sexual intercourse with a mentally

retarded person constitutes rape under Article 266-A (b) against a
person deprived of reason. (People vs. Butiong, G.R. No. 168932,

57 | P a g e
October 19, 2011; People vs. Bayrante, G.R. No. 188978, June 13,
2012; People vs. Eleuterio, G.R. No. 219957, April 4, 2018).

Under the new rule, having sexual intercourse with a mentally

retarded person (idiot, imbecile, feebleminded, or person with
borderline intelligence with a mental age of under 16) is statutory
rape under Article 266-A (d) against a person who is under 16 years
of age, and not rape under Article 266-A (b) against a person deprived
of reason (People vs. XXX, G.R. No. 242684, February 17, 2021) The
word “age” in Article 266-A (d) includes chronological age and mental
age. (People v. Daniega, G.R. No. 212201, June 28, 2017).

The term, "deprived of reason," is associated with insanity or

madness. A person deprived of reason has mental abnormalities that
affect his or her reasoning and perception of reality and, therefore,
his or her capacity to resist, make decisions, and give consent. The
term "demented," refers to a person who suffers from a mental
condition called dementia. Dementia refers to the deterioration or
loss of mental functions such as memory, learning, speaking, and
social condition, which impairs one's independence in everyday
activities. The terms, "deprived of reason" and "demented," however,
should be differentiated from the term, "mentally retarded" or
"intellectually disabled." A mentally retarded person is not
necessarily deprived of reason or demented. Mentally retarded
persons can be credible witnesses. However, his/her maturity is not
there despite his/her physical age. He/she is deficient in general
mental abilities and has impaired conceptual, social, and practical
functioning relative to his or her age, gender, and peers. Because of
such impairment, he or she does not meet the "socio-cultural
standards of personal independence and social responsibility."
(People vs. Daniega, supra; People vs. Niebres, G.R. No. 230975,
December 04, 2017; People vs. XXX, G.R. No. 243988, August 27,
2020; People vs. Manuel, G.R. No. 247976, May 14, 2021; People vs.
Villena, G.R. No. 236305, March 17, 2021)
Mentally retarded person and demented person - Describing
a mentally retarded person in the information as demented is
improper. A mentally retarded person is not insane or demented.
However, describing the victim in the information as a "mentally
defective woman” (People vs. Martinez, G.R. No. 226394, March 7,
2018), or “a demented person whose mental age is below 7 years old”
(People v. Caoile, G.R. No. 203041, June 5, 2013) is sufficient
compliance with the constitutional mandate that an accused be
informed of the nature of the charge against him.

If the Information alleged the victim of rape is demented, but

the evidence merely proves her mental retardation, the accused
cannot be convicted of rape unless the accused failed to raise the
mistake in the Information as an objection (People v. Ventura, Sr.,
G.R. No. 205230, March 12, 2014; People vs. Eleuterio, G.R. No.
219957, April 04, 2018)

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 Marital rape - Husband can be held liable for marital rape.
Article 266-A of RPC uses the term “man” in defining rape without
regard to the rapist’s legal relationship with his victim. Under Article
266-C of RPC, in case it is the legal husband who is the offender, the
subsequent forgiveness by the wife as the offended party shall
extinguish the criminal action. RA No. 8353 has eradicated the
archaic notion that marital rape cannot exist because a husband has
absolute proprietary rights over his wife’s body and thus her consent
to every act of sexual intimacy with him is always obligatory or at
least, presumed (People vs. Jumawan, G.R. No. 187495, April 21,
2014).

Reverting to the Maria Clara rule – In in People v. Taño, G.R.

No. L-11991, October 31, 1960, the Supreme Court ruled that it is
a well-known fact that women, especially Filipinos, would not admit
that they have been abused unless that abuse had actually
happened. This is due to their natural instinct to protect their honor.
We cannot believe that the offended party would have positively
stated that intercourse took place unless it did actually take place.
(See: Also: People v. Cabilida, G.R. No. 222964, July 11, 2018) This
is the Maria Clara or the women’s honor principle.
However, People v. Amarela, G.R. Nos. 225642-43, January 17,
2018, the Supreme Court rejected the Maria Clara principle. It was
ruled: The Maria Clara or women’s honor doctrine is a standard used
by the court in assessing the credibility of a rape victim. Under this
principle, women of decent repute, especially Filipinos, would not
publicly admit that she has been sexually abused, unless that is the
truth, for it is her natural instinct to protect her honor. However, the
factual setting in 1960 when the “women’s honor” doctrine surfaced
in our jurisprudence is that it is natural for a woman to be reluctant
in disclosing a sexual assault. However, the women today have over
the years transformed into a strong and confidently intelligent and
beautiful person, willing to fight for her rights. Thus, in assessing the
credibility of a rape victim, the Maria Clara standard should not be
used. The testimony of the victim must be evaluated without gender
bias or cultural misconception. It is important to weed out the Maria
Clara notions because an accused may be convicted solely on the
testimony of the victim.
In People vs. Vibar, G.R. No. 215790, March 12, 2018, People vs.
Perez, G.R. No. 201414, April 18, 2018, and People vs. ZZZ, G.R. No.
229209, February 12, 2020, the Supreme Court affirmed the Amarela
principle. However, in People v. Tuyor, G.R. No. 241780, October 12,
2020) and People v. Nocido, G.R. No. 240229, June 17, 2020, and
CICL XXX vs. People, G.R. No. 246146, March 18, 2021, the Supreme

59 | P a g e
Court reverted to the Maria Clara or women’s honor principle or the
Taño doctrine.
In People vs. Cabales, G.R. No. 213831, September 25, 2019,
(Justice Hernando), jurisprudence has steadily held that "no
woman, least of all a child, would concoct a story of defloration, allow
examination of her private parts and subject herself to public trial or
ridicule if she has not, in truth, been a victim of rape and impelled to
seek justice for the wrong done to her being
Variance rule - If the crime charged is rape, but the crime
proven is acts of lasciviousness (or acts of lasciviousness under RPC
in relation to RA No. 7610), the accused will be convicted of the latter
because of the variance rule. Acts of lasciviousness is a lesser crime,
which is necessarily included in the charge of rape (People vs. Eulalio,
G.R. No. 214882, October 16, 2019, Hernando).

If the crime charged is rape, but the crime proven is sexual

assault, the accused cannot be convicted of the latter. The variance
rule is not applicable since sexual assault is not necessarily included
in the charge of rape. The elements of these two crimes are materially
and substantially different. (People vs. Dereco, G.R. No. 243625,
December 02, 2020) In such case, the accused will be convicted of
acts of lasciviousness (People vs. Pareja, GR No. 202122, January 15,
2014; People vs. Caoili, G.R. No. 196342, August 08, 2017); or acts
of lasciviousness under RPC in relation to RA No. 7610 (People vs.
Dagsa, G.R. No. 219889, January 29, 2018); or lascivious conduct
under RA No. 7610 (People vs. ZZZ, G.R. No. 224584, September 04,
2019). Acts of lasciviousness or lascivious conduct is a lesser crime,
which is necessarily included in the charge of rape.

If the crime charged is acts of lasciviousness, but the crime

proven is sexual assault, he will be convicted of the lesser crime of
acts of lasciviousness. Sexual assault is a crime undoubtedly greater
than acts of lasciviousness. While it is true that the crime of acts of
lasciviousness is necessarily included in the crime of sexual assault,
the crime of sexual assault however is not subsumed in the crime of
acts of lasciviousness. (People vs. Jagdon, Jr., G.R. No. 242882,
September 09, 2020)

If the information alleged the elements of both rape and sexual

assault, and the crime proven is sexual assault, the accused can be
convicted of sexual assault. In People vs. Fruelda, G.R. No. 242690,
September 3, 2020, AAA testified that while accused was moving his
finger in and out of her private part through the opening of her pants'
zipper, he took out his penis and massaged the same. Shortly
thereafter, AAA lost consciousness. When she woke up, she was
seated on the floor with her underwear and pants pulled down to her
knees. Based on the foregoing, the crime committed by accused is
sexual assault. Although it is possible that accused had carnal
knowledge of AAA while the latter was unconscious, he cannot be
convicted of the crime of rape by carnal knowledge based on a mere
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possibility. Note: In this case, the information alleged the elements of
sexual assault and rape.

Double jeopardy - The Regional Trial Court convicted the

accused of attempted rape. Finding that there is no intent to have
sex, the Court of Appeals modified the decision of the lower court and
downgraded the conviction to acts of lasciviousness. By convicting
the accused of acts of lasciviousness, the Court of Appeals technically
acquitted the accused of attempted rape, which is already final and
unappealable. Thus, double jeopardy has already set in and Solicitor
General is already barred from assailing his acquittal of attempted
rape. (People vs. Arcega, G.R. No. 237489, August 27, 2020) In sum,
the Supreme Court cannot upgrade the conviction from acts of
lasciviousness to attempted rape if the petition for review was filed
by the People of the Philippines through the Office of the Solicitor
General.

The Regional Trial Court convicted the accused of sexual

assault with the qualifying circumstance that the victim is under 7
years old. Finding lack of insertion of the accused’s finger into the
victim’s vagina, the Court of Appeals downgraded the conviction to
attempted qualified sexual assault, and sentenced him to suffer a
maximum penalty of 4 years and 2 months of prision correccional.
Finding a lack of intent to insert his finger into her vagina, the
Supreme Court convicted the accused of acts of lasciviousness under
RA No. 7610 and sentenced the accused to suffer a maximum penalty
of 15 years, 6 months and 20 days of reclusion temporal (Lutap vs.
People, G.R. No. 204061, February 5, 2018) Since the penalty for acts
of lasciviousness under RA No. 7610 is higher than that for
attempted qualified sexual assault, the Supreme Court in effect
upgraded the conviction of the accused. In sum, the Supreme Court
can upgrade the conviction if the petition for review was filed by the
accused.

DEPRIVATION OF LIBERTY - Failure to judicially charge

within the prescribed period renders the public officer effecting the
arrest liable for the crime of delay in the delivery of detained persons
under Article 125 of the Revised Penal Code. If the warrantless arrest
was without any legal ground, the arresting officers become liable
for arbitrary detention under Article 124. However, if the arresting
officers are not among those whose official duty gives them the
authority to arrest, they become liable for illegal detention under
Article 267 or 268. If the arrest is for the purpose of delivering the
person arrested to the proper authorities, but it is done without any
reasonable ground or any of the circumstances for a valid
warrantless arrest, the arresting persons become liable for unlawful
arrest under Article 269. (Duropan vs. People, G.R. No. 230825, June
10, 2020)

Offender in arbitrary detention and illegal detention - Arbitrary

detention is committed by a public officer, who has the authority to
arrest and detain a person. Thus, a police officer, judge or mayor can
61 | P a g e
commit arbitrary detention. On the other hand, illegal detention is
committed by private individual. A public officer (e.g., stenographer)
who has no authority to arrest or detain a person, is a private
individual for purpose of illegal detention since he committed the act
in his private capacity. (Duropan vs. People, G.R. No. 230825, June
10, 2020) But although a public officer (e.g., police officer) has the
authority to arrest and detain a person, he can be considered as a
private individual for purpose of illegal detention if the crime is
committed in his private capacity. (People v. Santiano, G.R. No.
123979, December 3, 1998)

The accused can be held liable for arbitrary detention if the

following circumstances concur (1) he is a public officer, who has the
authority to arrest or detain a person; (2) he committed the act in his
official capacity; (3) the mind of the accused police officer is to
investigate or prosecute the victim for being a criminal suspect; and
(4) the arrest was made without legal grounds in violation of the
constitutional right of the suspect against unreasonable seizure. If
the mind of the police officer is to kill or kidnap the criminal suspect
for ransom, he is not liable for arbitrary detention. Detention will be
treated has having been committed in his private capacity.

The element of “in pursuit of his duty to arrest” in arbitrary

detention is present if the purpose of the arrest is: (1) To deliver the
suspect to judicial authority (U.S. v. Gellada, G.R. No. L-5151,
January 31, 1910); (2) To conduct criminal investigation (U.S. v.
Agravante, G.R. No. 3947, January 28, 1908); or (3) To determine if
the victim committed a crime. (U.S. v. Hawchaw, G.R. No. L-6909,
February 20, 1912)

Thus, a police officers, who detained a suspected drug trafficker

and demanded ransom payment, committed the criminal act in their
private capacity. (People v. Gonzalez, Jr., G.R. No. 192233, February
17, 2016) Detaining any private person for the purpose of extorting
any amount of money could not, in any way, be construed as within
their official functions of police officers. Their badges or shields do
not give them immunity for any criminal act. (People vs. Popionco,
G.R. No. 200512, June 07, 2017) Hence, they are liable for
kidnapping for ransom and not arbitrary detention. Even the
subsequent prosecution of the kidnapped victim for sale of dangerous
drugs does not negate the criminal liability of the accused for the
crime the latter committed against the former. (People vs. Borja, G.R.
No. 199710, August 02, 2017)

In People v. PO1 Trestiza, G.R. No. 193833, November 16, 2011,

the public prosecutor filed a motion to withdraw information for
kidnapping before the trial court and filed a new one for robbery.
According to the public prosecutor, the accused, a police officer,
cannot be charged with kidnapping because the crime may only be
committed by private individuals. The trial court denied the motion
to withdraw. It examined the Pre Operation/Coordination Sheet
presented by the defense and found that it was neither authenticated
62 | P a g e
nor its signatories presented in court. The defense failed to show
proof of a "legitimate police operation" and, based on Santiano, the
accused were deemed to have acted in a private capacity in detaining
the victims. The Supreme Court affirmed the conviction of the police
officers for kidnapping.

In People v. Santiano, G.R. No. 123979, December 3, 1998, it

was held that the fact that they are police officers would not exempt
them from the criminal liability for kidnapping instead of arbitrary
detention. Taking the prisoner to a secluded place for purposes of
detaining and maltreating him constitutes kidnapping and serious
illegal detention qualified by the circumstance of serious physical
injuries. Arbitrary detention is not committed since the accused did
not commit the act in furtherance of official function or in the pursuit
of authority vested in them. In sum, they committed the act in their
purely private capacity.

In Osorio v. Navera, G.R. No. 223272, February 26, 2018, it was

held that it is not impossible for a public officer to be charged with
and be convicted of kidnapping as Santiano and Trestiza illustrated.
Thus, a soldier, who abducted a UP student and detained her at
military camps, barangay hall and a resort or safehouse, can be
charged with kidnapping and serious illegal detention. The civil court
and not military court has jurisdiction over the case since this crime
is not service connected. Kidnapping should never be part of the
functions of a soldier. It cannot be done in a soldier's official capacity.

Other view: In People vs. Dongail, G.R. No. 217972, February

17, 2020, accused, policemen taken the victims, who were the
subject of surveillance for alleged involvement in the illegal drug
trade. The victims were brought of various motels and interrogated
them before finishing them off. It was held: The victims were detained
for fifteen days before getting killed. Hence, when the three were
abducted and placed in the custody of accused, the felony of arbitrary
detention had already been consummated. The elements of arbitrary
detention were present because accused were police officers who
deprived the three victims of liberty on a mere surveillance and
without legal grounds. Thereafter, when they were boxed, kicked,
pistol-whipped and ultimately shot at a close range, while being
handcuffed and without means to defend themselves, another
separate crime of murder was committed. Therefore, a conviction for
the separate crimes of arbitrary detention and murder was in order.

Dongail case is not compatible with Trestiza case, Santiano case,

Osorio case. If the principle in Trestiza, Santiano, and Osorio was
followed in the Dongail case, the accused should have been charged
and convicted of special complex crime of kidnapping with murder.

ARREST – Arrest is the taking of a person into custody in order

that he may be bound to answer for the commission of an offense. It
is "an actual restraint of a person to be arrested, or by his submission
to the custody of the person making the arrest. There need not be an
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actual restraint for curtailment of liberty to be characterized as an
"arrest. Although denominated as requests, invitations from high-
ranking officials to a hearing in a military camp were deemed arrests.
(Duropan vs. People, supra,)

Arrest and invitation - Although denominated as requests,

invitations from high-ranking officials to a hearing in a military camp
were deemed arrests. This Court characterized them as authoritative
commands which may not be reasonably expected to be defied.
(Sanchez vs. Demetriou, G.R. Nos. 111771-77 November 9, 1993)

When the accused is in an environment made hostile by the

presence and actuations of law enforcers where it can be reasonably
inferred that they had no choice except to willingly go with them, then
there is an arrest. The subjective view of the accused will be
relevant—which includes among others—their station in life and
degree of education. (Duropan vs. People, supra)

In People v. Milado, G.R. No. 147677, December 1, 2003,

accused was carrying bricks of marijuana in his backpack aboard a
jeepney. Acting upon an information that there was a person
transporting marijuana in the jeepney, the police officers set up a
checkpoint. In the checkpoint, the police identified accused and told
him to stay inside the jeepney. They subsequently brought him to the
police station, where they ordered him to open his bag where the
marijuana was kept. Although no "formal arrest" had yet been made,
it is clear that appellant had already been deprived of his liberty and
taken into custody after the policemen told him to stay inside the
jeepney and instructed the driver to drive them to the police station.
The term "invited" may have been used by the police, but it was
obviously a command coming from three law enforcers who appellant
could hardly be expected to defy.

An arrest although described as a mere invitation to the police

station, can be a source of unlawful arrest or arbitrary detention.

Arrest with legal grounds - If a person arrested another person

with legal ground, he is not committing a crime since the
apprehension is made in accordance with Section 5, Rule 113 of the
Rules of Criminal Procedure.

Arrest without legal grounds - Intent to deliver a person to

judicial authority is established if the offender brought him to the
police station for investigation. In other words, arresting a person or
arresting in the form of invitation is an evidence that the offender has
the intention to make a judicial delivery of the arrestee. If the
offender, arrested a person without legal grounds, the crime of illegal
detention should be ruled out. The act of conducting the
apprehended persons to the proper authorities takes the offense out
of the crime of illegal detention. (Duropan vs. People, G.R. No.
230825, June 10, 2020) However, the person, who arrested the

64 | P a g e
suspect without legal grounds, is liable for arbitrary detention or
unlawful arrest.

If the offender is a public officer with authority to arrest and

detain a person, the crime committed is arbitrary detention. (U.S. v.
Gellada, G.R. No. L-5151, January 31, 1910; U.S. v. Agravante, G.R.
No. 3947, January 28, 1908) If the offender is a private individual or
a public officer without authority to arrest and detain a person, the
crime committed is unlawful arrest.

In US vs. Fontanilla, G.R. No. 4580, September 7, 1908,

accused found complainant, and several laborers tilling his land. One
of the complainants insisted that the land was his brother's. A fight
ensued, which ended when accused captured and tied complainants
with a rope. He then brought them to the municipal jail. It was held
that the fact that the accused, after he had apprehended the
complainants, immediately conducted them to the municipal jail,
and thus turned them over to the authorities, takes the offense out
of that provision on illegal detention and brings it within the purview
of provision on unlawful arrest.

In Duropan vs. People, supra, Accused were barangay kagawad

and barangay tanod. Complainants are members of Alimango
cooperative, which is authorized to develop, utilize, and protect a
mangrove-nipa area. Its members cut, gather, and weave nipa palms.
Accused saw complainants harvesting nipa palm and asked them
who gave authority to harvest. Pacis, one of the complainants, replied
that they were Alimango members. The accused arrested them and
brought them to Police Station. They are liable for unlawful arrest.
Barangay kagawad and barangay tanod are person in authority and
agent of a person in authority, respectively. They are not the public
officers whose official duty is to arrest or detain persons. They arrested
complainants without legal grounds. Upon hearing a reasonable
explanation as to why Pacis was harvesting the nipa leaves, accused
had no reason to suspect any wrongdoing. Accused knew Pacis and
are familiar with ALIMANGO. Since it was easy to verify if he was
indeed a member of the group, prudence dictated that they first
investigate. Had it turned out that he was not a member, a warrant
of arrest could have been obtained as they witnessed the commission
of the crime.

FALSIFICATION – Commercial documents such as promissory

note and check are, in general, documents or instruments which are
"used by merchants or businessmen to promote or facilitate trade or
credit transactions (Tanenggee vs. People, G.R. No. 179448 June 26,
2013).

Falsification of a public document is consummated upon the

execution of the false document. What is punished in falsification of
public document is principally the undermining of the public faith
and the destruction of truth as solemnly proclaimed therein. The fact
that the accused did not benefit from, or that the public was not
65 | P a g e
prejudiced by the falsified resolution is not a defense (Goma vs. CA,
G.R. No. 168437, January 08, 2009).

Making it to appear - In Constantino vs. People, G.R. No.

225696, April 08, 2019, accused, a notary public, was charged of
falsification of document by making it appear that Dr. Asuncion
participated in execution of the acknowledgement of the will and
testament by signing it as a witness, where in fact he did not sign it.
However, it was established that DR. Asuncion at the urging of
Ferrer, his son-in-law, signed the acknowledgement after the
notarization. Therefore, it was not accused who made it appear that
Dr. Asuncion participated in the execution of the Joint
Acknowledgment, but Ferrer and Dr. Asuncion himself. Accused is
not liable for falsification of document. However, accused should be
administratively sanctioned for failure to cross out Dr. Asuncion's
name when he notarized the Joint Acknowledgment, which has
allowed Dr. Asuncion to still sign the document despite not having
participated in its due execution.

Untruthful statement - Accused, a public officer, issued

Temporary Operating Permit to his own son, and made an untruthful
statement on the birthday of his son to make it appear that his son
is of legal age. Accused insists on his plea that he had no malicious
or wrongful intent to injure a third person. He was convicted of
falsification of public document. Intent to gain or intent to injure is
not an element of the crime of falsification of public document. Thus,
lack of intent to gain or injure is not a valid defense. (Liwanag vs.
People, G.R. No. 205260, July 29, 2019)

The prosecution need not identify a specific law under which

the accused has the obligation to disclose the truth. To convict the
accused for falsification of document involving making an untruthful
statement, what is important is that he has a legal obligation to
disclose the truth. In Manansala vs. People, G.R. No. 215424,
December 9, 2015, the accused made an untruthful statement in
petty cash replenishment report of a private corporation. The accused
was convicted of falsification of private document because he has a
legal obligation to disclose the truth in a report.

Notary public - The element that “the notary public takes

advantage of his official position” is presumed when the falsity
allegedly committed by him pertains to the notarization, since only
notaries public have the duty and authority to notarize documents.
(Constantino vs. People, G.R. No. 225696, April 08, 2019)

Bank officer - If the accused is an employee or officer of the

bank other than the president, e.g., bank manager, and he made a
fictitious loan by falsifying loan application, check and other
commercial document, he is liable for complex crime of estafa by
means of false pretense through falsification of commercial
documents. (Tanenggee v. People, G.R. No. 179448, June 26, 2013)

66 | P a g e
 If the accused is a president of the bank, and he made a
fictitious loan by falsifying loan applications and other commercial
documents, he could be held liable either for (1) complex crime of
estafa by means of false pretense through falsification of commercial
documents; or (2) complex crime of estafa by misappropriation
through falsification of commercial documents.

In Soriano vs. People, G.R. No. 240458, January 8, 2020, the

bank president made fictitious loans by falsifying loan applications
and other commercial documents. The accused used the proceeds
thereof for his personal benefit. He falsified commercial documents
by making it appear that a fictitious borrower is securing loan from
the bank. He used these falsified documents to defraud the bank to
release the money. He is liable for complex crime of estafa by means
of false pretense through falsification of commercial documents.

In People v. Go, G.R. No. 191015, August 6, 2014, the bank

president made fictitious loans by falsifying loan applications and
other commercial documents. The accused used the proceeds thereof
for his personal benefit. The bank president has obligation to
administer the bank fund in a fiduciary capacity. The bank is still the
owner of the money despite the transfer thereof to the accused. By
using the money to pay his creditors, he committed estafa through
misappropriation. Since falsification of commercial documents is a
necessary means to misappropriate the money, he was convicted of
a complex crime of estafa by misappropriation through falsification
of commercial documents.

Estafa through falsification of document - When the offender

commits on a public, official or commercial document any of the acts
of falsification enumerated in Article 171 as a necessary means to
commit another crime like estafa, theft or malversation, the two
crimes form a complex crime proper (Tanenggee vs. People, G.R. No.
179448 June 26, 2013; Arias vs. People, G.R. Nos. 237106-07, June
10, 2019)

Assistant Director of the Bureau of Equipment of DPWH,

falsified official documents to defraud the DPWH into paying the
claims for fictitious emergency repairs or purchase of spare parts.
Malversation is not committed since the accused is not an
accountable officer. Falsification of document is a necessary means
to commit estafa through false pretense since the accused used the
falsified official documents to defraud DPWH. Accused is liable for
complex crime of estafa through falsification of public document.
(Arias vs. People, G.R. Nos. 237106-07, June 10, 2019)

The falsification of a public, official, or commercial document

may be a means of committing estafa, because before the falsified
document is actually utilized to defraud another, the crime of
falsification has already been consummated, damage or intent to
cause damage not being an element of the crime of falsification of
public, official or commercial document. In other words, the crime of
67 | P a g e
falsification has already existed. Actually, utilizing that falsified
public, official or commercial document to defraud another is estafa.
But the damage is caused by the commission of estafa, not by the
falsification of the document. Therefore, the falsification of the public,
official or commercial document is only a necessary means to commit
estafa (Tanenggee vs. People, G.R. No. 179448 June 26, 2013; People
v. Go, G.R. No. 191015, August 6, 2014; Dela Cruz vs. People, G.R.
No. 236807, January 12, 2021)

In complex crime of estafa through falsification of a commercial,

public or official document, before the falsified document is actually
used to defraud the victim, the crime of falsification has already been
consummated since damage or intent to cause damage not being an
element of the crime of falsification of public, official or commercial
document. In other words, the crime of falsification has already
existed. Using that falsified public, official or commercial document
to defraud another is estafa. But the damage is caused by the
commission of estafa, not by the falsification of the document.
(Desmoparan vs. People, GR. No. 233598, March 27, 2019)

In Brisenio vs. People, G.R. No. 241336, June 16, 2021, the
accused used the falsified title, took advantage, and profited from it,
and successfully convinced complainant to invest her money to her
own damage and detriment. Settled is the rule that in the absence of
a satisfactory explanation, one who is found in possession of a forged
document and who used it is presumed to be the forger. The accused
is liable for complex crime of estafa through falsification of public
Documents. (See also: Loretizo vs. People, G.R. Nos. 237432-33, April
28, 2021)

FALSIFICATION AND OTHER CRIMES – If the offender

committed falsification of document and other crimes, the following
rules should be observed:

1. Complex crime - When falsification of public, official or

commercial document is a necessary means to commit malversation
(People vs. Barbas, G.R. No. L-41265, July 27, 1934), estafa (Ilumin
vs. Sandiganbayan, G.R. No. 85667, February 23, 1995; Intestate
Estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010;
Ambito vs. People, G.R. No. 127327, February 13, 2009, Tanenggee
vs. People, G.R. No. 179448, June 26, 2013) or theft (People vs.
Salonga, G.R. No. 131131, June 21, 2001), offender is liable for a
complex crime under Article 48 of RPC.

2. Separate crimes – When falsification of public, official or

commercial document is not a necessary means to commit other
crimes, this is not a complex crime. Thus, when falsification of public,
official or commercial document is a merely a means to conceal
malversation (People vs. Sendaydiego, G.R. Nos. L-33252-54,
January 20, 1978; People vs. Villanueva, G.R. No. 39047, October 31,
1933), estafa (People vs. Monteverde, G.R. No. 139610, August 12,
68 | P a g e
2002; People vs. Benito, G.R. No. 36979, November 23, 1932) or theft,
the crimes are separate.

3. Common element doctrine – Under the common element

doctrine, the use of damage as an element of falsification of private
document precludes the re-use thereof to complete the elements of
estafa, and vice versa.

Damage is an element of estafa; damage is also an element of

falsification of private document; hence, the common element
principle is applicable since damage is a common element of both
crimes. Damage is an element of estafa; however, damage is not an
element of falsification of public, official or commercial document;
hence, the common element principle is not applicable since damage
is not a common element of both crimes. Damage is an element of
falsification of private document; however, damage is not an element
of malversation; hence, the common element principle is not
appliable since damage is not a common element of both crimes. In
sum, common element doctrine is only applicable if the crimes
committed are falsification of private document and estafa.

In Zoleta v. Sandiganbayan, G.R. No. 185224, July 29, 2015,

the Governor caused the falsification of private letter requesting for
financial assistance. He was able to use this falsified private
document to release public funds to a fictitious beneficiary. Applying
Article 48, since falsification of private document is a necessary
means to commit malversation, he is liable for complex crime of
malversation through falsification of private document. Note: The
Supreme Court did not apply the common element doctrine since
damage is not an element of malversation. (See: People vs. Dapitan,
G.R. No. 253975, September 27, 2021)

If the common element principle is applicable, the accused is

liable for falsification of private document or estafa. When
falsification of private document is a necessary means to commit
estafa, the crime committed is falsification. When falsification of
private document is not a means to commit estafa, the crime
committed is estafa. (People vs. Co, G.R. No. 233015, October 16,
2019)

If the falsification of a private document (demand letter, letter of

guarantee, payroll of private company or billing statement) is
committed as a means to commit estafa, the crime committed is
falsification only. Under the common element doctrine, the use of
damage as an element in falsification of private document precludes
the re-use thereof to complete the elements of estafa. Hence, estafa
is not committed because the element of damage is not present. There
is no complex crime of estafa through falsification of private
document. (Batulanon vs. People, G.R. No. 139857, September 15,
2006; U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917; People
vs. Reyes, G.R. No. L-34516, November 10, 1931; People vs. Co, G.R.
No. 233015, October 16, 2019)
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 If a person commits falsification of private document (e.g.,
unofficial receipt) to conceal estafa, the crime is estafa only. Under
the common element doctrine, the use of damage as an element in
estafa precludes the re-use thereof to complete the elements of
falsification. Hence, falsification is not committed because the
element of damage is not present (See: People vs. Beng, 40 O.G.
1913).

USE OF FALSIFIED DOCUMENT - The crime of use of falsified

document, the person who used the forged document is different from
the one who falsified it. If the one who used the falsified document is
the same person who falsified it, the crime is only falsification and
the use of the same is not a separate crime. Falsification of a public
document and use of false document by the same person who
falsified it constitute but a single crime of falsification. (Jayme vs.
People, G.R. No. 248827, August 27, 2020)

MALVERSATION – For purpose of malversation, national officer

shall be considered as an accountable officer if he has custody or
control of public property by reason of the duties of his office
(Government Auditing Code of the Philippines). The Local
Government Code expanded the concept of accountable local officer.
Local officer shall be considered as an accountable officer if he has
custody or possession of local government funds because of the
nature of their functions or has participated in the use or application
of thereof. All public officials whose signatures were necessary for
disbursement of funds are accountable officers.

The signatures of Vice-Governor and Provincial Accountant are

needed to disburse funds of local government. Hence, they are
accountable officers. (Zoleta vs. Sandiganbayan, G.R. No. 185224,
July 29, 2015) The management and audit analyst of the province
certified that the supporting documents were complete, the provincial
treasurer certified the availability of funds and approved the
disbursement, and the Governor signed them before a check could be
approved for disbursement. Hence, they are accountable officers.
(Escobar vs. People, G.R. No. 205576, November 20, 2017) A mayor,
whose signature is needed to disburse municipal funds, is an
accountable officer. (Manuel vs. Hon. Sandiganbayan, G.R. No.
158413, February 08, 2012)

Under Government Auditing Code of the Philippines, a

management and audit analyst of the province, whose duty is to
certify that the supporting documents for the disbursement of funds
are complete is not an accountable officer because he has no custody
or control of the provincial fund. However, under the Local
Government Code, he is an accountable officer because he has
participated in the use or application of this fund.

In Escobar vs. People, G.R. No. 205576, November 20, 2017,

the governor, treasurer, management and audit analyst,
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administrator, board member and executive assistant are charged
with malversation through falsification of documents (disbursement
voucher and supporting documents e.g. request for financial
assistance). The governor, treasurer and management and audit
analyst are accountable officers since they participated in the
disbursement of public funds. On the other hand, administrator,
board member and executive assistant are not accountable officers.
If there is conspiracy between the accountable officers and non-
accountable officers, they are liable for complex crime of malversation
through falsification of documents. However, in this case there is no
conspiracy. The accountable officers (governor, treasurer,
management and audit analyst) were not aware that the beneficiary
of financial assistance is fictitious. Hence, they are liable for
malversation through negligence since they participated in
disbursement of funds without verifying the authenticity of the
documents despite the fact that the payee in the voucher is different
from the one who requested financial assistance. They are not liable
for falsification of documents since they are not aware that the
supporting documents are falsified. The administrator, board
member and executive assistant are not liable for malversation since
they are not accountable officers. However, they are liable for
complex crime of estafa through falsification of documents. They
falsified documents (request letter and project proposal) in support
of the disbursement of funds as a necessary means to defraud the
Province. Although they are charged with malversation through
falsification of documents, they can be convicted of estafa through
falsification of document because the latter is necessarily included in
the former.

Malversation is committed either intentionally or by negligence.

The dolo or the culpa is only a modality in the perpetration of the
felony. Even if the mode charged differs from the mode proved, the
same offense of malversation is still committed. (Mesina vs. People,
G.R. No. 162489, June 17, 2015) A possible exception would be when
the mode of commission alleged in the particulars of the indictment
is so far removed from the ultimate categorization of the crime that it
may be said that due process was denied by deluding the accused
into an erroneous comprehension of the charge against him or her.
Here, the said exception is not present. Accused was not prejudiced
nor does it appear that she failed to comprehend the crime charged
against her. Thus, accused was not deprived of due process. (Corpuz
vs. People, G.R. No. 241383, June 8, 2020)

Malversation and technical malversation - Malversation is

either an intentional felony (or malum in se) or a culpable felony. It
can be committed by means of dolo or culpa. Hence, public officers,
who commit malversation, can be held liable for violation of Section
3 (e) of RA No. 3019 for causing damage to the government through
evident bad faith or manifest partiality (dolo) or gross inexcusable
negligence (culpa). (Pajaro, G.R. Nos. 167860–65, June 17, 2008). On
the other hand, technical malversation is malum prohibitum (Ysidoro
v. People, G.R. No. 192330, November 14, 2012), which can be
71 | P a g e
committed without dolo and culpa. Manifest partiality and gross
inexcusable negligence are not elements of technical malversation.
Hence, public officers, who commit technical malversation, may not
be held liable for violation of Section 3 (e) of RA No. 3019 (Villarosa
vs. Hon. Ombudsman, G.R. No. 221418, January 23, 2019) unless
additional circumstance establishes manifest partiality, evident bad
faith and gross inexcusable negligence.

In Villarosa vs. Hon. Ombudsman, supra, using tobacco fund

to finance the regular operations of the municipality, which are not
in accordance with the law creating such fund constitutes technical
malversation. However, it was held that the mere act of using
government money to fund a project which is different from what the
law states you have to spend it for does not fall under the definition
of manifest partiality nor gross inexcusable negligence. It must
always be remembered that manifest partiality and gross inexcusable
negligence are not elements in the crime of technical malversation.

Culpable malversation and technical malversation -

Approving a voucher and signing a check without appropriation law
will make the approving public officer liable for technical malversation
under Article 220 of RPC. However, approving a voucher and signing
a check without appropriation law, without funding, and in violation
of law prohibiting such payment will make the approving officer liable
for the graver crime of culpable malversation under Article 217.
Culpable malversation is committed by a public officer, who
knowingly allows another or others to make use of or misappropriate
public funds or property through abandonment or negligence.

In Sarion vs. People, G.R. Nos. 243029-30, March 18, 2021, by

approving the disbursement voucher and signing the check payable
to Markbilt as payment of price escalation for the construction of
public market, despite the absence of funding and in violation of the
law that prohibits contract price escalation, the accused, a mayor,
permitted Markbilt to received public funds to which it is not entitled.
Approving the voucher and signing the check without appropriation
law is a flagrant and palpable breach of duty tantamount to gross
negligence. The accused is liable for culpable malversation under
Article 217 of RPC and violation of Section 3 (e) of RA No. 3019.

INFIDELITY IN THE CUSTODY OF DOCUMENT - The

elements of infidelity in the custody of public documents are the
following: (1) The offender must be a public officer; (2) There must be
a document abstracted, destroyed or concealed; and (3) The
document destroyed or abstracted must be entrusted to such public
officer by reason of his office; and (4) Damage or prejudice to the
public interest or to that of a third person must be caused by the
removal, destruction or concealment of such document. (Jalandoni
vs. Office of the Ombudsman, G.R. No. 211751, May 10, 2021)

In Jalandoni vs. Office of the Ombudsman, G.R. No. 211751,

May 10, 2021, Ombudsman Casimiro ordered the inventory of
pending cases and discovered that some cases already approved were
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not released for unknown reasons by Jalandoni, the former Deputy
Ombudsman for Luzon. The Office of the Ombudsman found the
elements of infidelity in the custody of public documents present.
First, Jalandoni is a public officer, and second, the documents were
entrusted to him by reason of his office. As to the other elements, it
explained that the act of patching the documents led to their
concealment because they were essentially put on hold despite being
ready for release. This delay was prejudicial to public interest and to
third persons.

ABORTION AND INFANTICIDE - There are three requisites to

make a killing as infanticide, to wit: (a) The infant must be killed
outside the maternal womb. An unborn fetus is not an infant. Hence,
killing an unborn fetus regardless of its viability or intrauterine life
is not infanticide, but abortion; (b) The infant must be viable. Even
though the fetus is born alive, if it is non-viable, it shall not be
considered as an infant for purposes of the crime of infanticide.
Killing a non-viable fetus outside the womb is still abortion; and (3)
The infant must be less than three days old. For medical purposes, a
3-month-old child is an infant. But for purpose of infanticide, an
infant is a child less than 3 days old. A child with a life of three (3)
days or more is not an infant; hence killing a child, who is not an
infant, is not infanticide but parricide or murder.
If abortion or unintentional abortion is committed, and the
mother also died, the offender is liable for a complex crime of
parricide, murder or homicide with intentional or intentional
abortion. Intent to abort is an important element of abortion. If the
intention is to kill the mother, but the fetus also died, the offender is
liable for a complex crime of parricide, murder or homicide with
intentional abortion.

TUMULTUOUS AFFRAY - Physical injuries inflicted in a

tumultuous affray is committed by person or persons identified as
responsible for using violence upon a participant of a tumultuous
affray, who suffered serious or less serious physical injuries
committed by an unidentified person in the course thereof. (Article
252 of RPC)

The provision on physical injuries inflicted in tumultuous affray

is an evidentiary measure designed to remedy a situation where the
participant thereof, who inflicted serious or less serious physical
injuries upon the victim, was not identified because of the confusion.
Since there is uncertainty on whether the one, who employed violence
against the victim, committed serious or less serious physical injuries
or merely slight physical injuries, the former will be punished for
physical injuries inflicted in a tumultuous affray with a penalty lesser
than that for serious or less serious physical injuries.

73 | P a g e
 Failure to identify the offender who inflicted less serious
physical injury upon the victim is an important element of physical
injuries inflicted in a tumultuous affray. If the accused is positively
identified as a person, who inflict the injuries on the victim, the
former is not entitled to the lesser penalty prescribed for physical
injuries inflicted in a tumultuous affray. In such a case, there is no
confusion, which is the essence of tumultuous affray. Hence, the
accused is liable for the graver crime of less serious physical injuries
(Lacson vs. People, G.R. No. 243805, September 16, 2020)

ESTAFA – The return by the accused of money belonging to the

private complainant will not reverse a consummated act of Estafa.
Quite the contrary, such action may even uphold a conviction.
Section 27, Rule 130 of the Rules of Court states that in criminal
cases, except those involving quasi-offenses or criminal negligence or
those allowed by law to be compromised, an offer of compromise by
the accused may be received in evidence as an implied admission of
guilt. In this case, Arriola's initial attempts to reimburse Del Rosario
through checks, coupled with the actual return of the latter's money
after the RTC issued its judgment of conviction, may all be considered
as unequivocal gestures to compromise and which can be measured
against Arriola as his implied admission of guilt. (Arriola vs. People,
G.R. No. 199975, February 24, 2020, Hernando)

SWINDLING – Other form of swindling under Article 316(1) is

committed by any person who pretends to be the owner of a real
property and conveys, sells, encumbers, or mortgages the same.

Accused Isidro and Elena Dulay was selling to the complainants

a certain property covered by transfer certificate of titles registered in
the name of Isidro and Virginia Dulay. When complainants inquired,
why a different name was indicated in the title, i.e., Virginia Dulay
instead of Elena, the latter explained that she and Virginia are one
and the same person. However, Isidro and Virginia Dulay mentioned
in the title are different persons from the accused (Isidro and Elena
Dulay). Because of this misrepresentation, the complaints made
advance payment of property. The crime committed is not other form
of swindling under Article 316. The accused did not exercise acts of
dominion or ownership over the property other than their false
pretense and claim that they owned it. Accused proffered a nominal
claim of ownership by showing a copy of TCT No. T-2135 and
pretending to be the same persons indicated therein as registered,
owners of the subject property. The fraudulent acts of accused in
pretending to own the real property and selling it is not equivalent to
an exercise of an act of dominion or ownership which damaged and
prejudiced the real owner of the thing. Hence, the crime committed
is estafa through false pretense under Article 315. (Dulay III vs.
People, G.R. No. 215132, September 13, 2021, Hernando)

Other form of swindling under Article 316(2) is committed by

any person who, knowing that the real property is encumbered,
shall dispose of the same, although such encumbrance is not
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recorded. The law was taken from Article 455 of the old Spanish
Penal Code. However, the words “como libre” in the Spanish Penal
Code, which means “free from encumbrance” do not appear in the
English text of the Revised Penal Code, nonetheless, the same are
deemed incorporated in the Revised Penal Code. The gravamen of the
crime is the disposition of legally encumbered real property by the
offender under the express representation that there is no
encumbrance thereon. Hence, for one to be criminally liable for estafa
under the law, the accused must make an express representation in
the deed of conveyance that the property sold or disposed of is free
from any encumbrance. (Naya v. Abing, G.R. No. 146770, February
27, 2003; Estrellado-Mainar v. People, G.R. No. 184320, July 29, 2015;
Tayamen, vs. People, G.R. No. 246986, April 28, 2021)

Failure to allege in the information that the accused expressly

represented in the deed of sale that the real property is free from
encumbrance is fatal to the prosecution of the accused. (Naya v.
Abing, supra; Tayamen, vs. People)

OTHER DECEIT - For one to be liable for “other deceits” under

Article 318, it is required that the prosecution must prove the
following essential elements: (a) false pretense, fraudulent act or
pretense other than those enumerated in Articles 315, 316, and 317;
(b) such false pretense, fraudulent act or pretense must be made or
executed prior to or simultaneously with the commission of the
fraud; and (c) as a result, the offended party suffered damage or
prejudice. It is essential that such false statement or fraudulent
representation constitutes the very cause or the only motive for the
private complainant to part with her property. (Guinhawa v. People,
G.R. No. 162822, August 25, 2005)

Article 318 includes any kind of conceivable deceit other than

those enumerated in Articles 315 to 317 of the Revised Penal Code.
It is intended as the catchall provision for that purpose with its broad
scope and intendment. (Guinhawa v. People, ibid.)

In estafa under Article 315, the false representation is

committed by using fictitious name, or falsely pretending to possess
power, influence, qualifications, property, credit, agency, business or
imaginary transactions, or by means of other similar deceits.
Following the principle of ejusdem generis, other deceit as a means
to commit estafa must be similar to pretending to possess power,
imaginary transaction etc. If the deceit is not similar to pretending to
possess power or imaginary transaction, the crime committed is
other deceit under Article 318.

In Guinhawa v. People, supra, fraudulent representation of the

seller that the van to be sold is brand new constitutes other deceit
under Article 318. On the other hand, in People v. Rubaton, C.A., 65
O.G. 5048, issue of May 19, 1969, false representation that accused
has a palay by reason of which the victim parted his money in
consideration of the palay constitutes estafa under Article 315.
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Unlike in the Guinhawa case, the transaction in Rubaton case is
imaginary.

In Osorio vs. People, G.R. No. 207711, July 02, 2018, the
accused as an agent of Philam Life was authorized to solicit money
for investment purposes. However, he misrepresented to private
complainant that the latter's money would be invested in Philam Life
Fund Management and that its proceeds may be utilized to pay for
private complainant's insurance premiums. Private complainant
parted with her funds because of the representation that her
investment's earnings would be conveniently channeled to the
payment of her insurance premiums. The false representations
committed by accused is not within the contemplation of the words
“other similar deceits" in Article 315 of RPC on estafa. Same as the
case of Guinhawa, the misrepresentation is not similar to imaginary
transaction. However, he is criminally liable for the crime of other
deceit under Article 318 of RPC. Article 318 is broad in scope
intended to cover all other kinds of deceit not falling under Articles
315, 316, and 317.

Hypothetically, if the accused is not an agent of Philam Life, but

he falsely represented himself as agent, he is liable for estafa since
the investment transaction is imaginary.

In Marcos vs. People, G.R. No. 252839, November 10, 2021,

complainant went to the subdivision and personally saw its
condition. The accused did not represent that subdivision is in good
condition. In fact, when complainants visited the subdivision, they
already noticed the defects during their tripping. This should have
signaled them to conduct their own due diligence and investigate
further to safeguard their interests. Their failure to exercise such care
and attention to their ordinary affairs will not give rise to the crime
of other deceits against the accused. The factual antecedents
in Guinhawa, which prompted the Supreme Court to convict the
accused therein of other deceits, are different from this case. Here,
the accused did not make a direct and positive representation that
the subdivision is in good condition. Hence, the only remaining issue
here is whether Consolacion's alleged concealment of the true
condition of the subdivision (i.e., that it is prone to flooding, that the
developer has failed to build and maintain the required facilities, and
that the former developer was found guilty of violation of P.D. No 957)
is fraudulent. The Supreme Court answers in the negative because
the complainants knew of the terrible condition of the subdivision.

THEFT – In Pante vs. People, G.R. No. 218969, January 18,

2021, under Article 308, par. 2 (1) of the RPC, theft is also committed
by one's failure to deliver lost property to its owner or local
authorities. A "finder" under Article 308 is not only limited to the
actual finder of the lost property since the gist of the offense is the
furtive taking and misappropriation of the property found. Though
not the actual finder, there is no dispute that the accused knew for a
fact that his two co-accused minor did not own the subject money.
76 | P a g e
He knew for a fact that his co-accused minor merely found the money
along the road while the latter was delivering bread. Instead of
returning the money, the accused convinced his co-accused minors
not to return the money and to divide it among themselves. At that
moment, the accused placed himself precisely in the situation as if
he was the actual finder. Otherwise stated, the accused was a "finder
in law," if not in fact; and his act in appropriating the money was of
precisely of the same character as if it had been originally found by
him. The rationale for the "finder in law" concept is to protect the
owner of the lost property in the event the lost property is transferred
from one individual to another and to prevent the "finder in law" from
escaping liability by claiming that he was not the actual finder thereof
but was merely entrusted custody thereof by someone who had no
intention to appropriate the same. Having obtained possession of the
complainant’s lost money, the accused had the opportunity and the
obligation to return the lost property to its rightful owner or the local
authorities, but he unjustifiably refrained from doing so. Assuming
for the sake of argument that he did not know that the money
belonged to the complainant, he is still liable for theft for failure to
surrender it to local authorities. Moreover, the RPC does not require
that the thief must know the owner of the lost property.

ROBBERY - Snatching of the shoulder bag without violence or

intimidation constitutes the crime of theft, not robbery. For the
requisite of violence to obtain in cases of simple robbery, the victim
must have sustained less serious physical injuries or slight physical
injuries in the occasion of the robbery. The fact that the necklace was
"grabbed" did not automatically mean that force attended the
taking. (Del Rosario vs. People, G.R. No. 235739, July 22, 2019)

In Poquiz vs. People, G.R. No. 238715, January 11, 2021, the
accused forcibly took the bag from the complainant, who has alighted
from a bus. In taking the bag, the accused tried to stab the
complainant and punched and kicked him. After the complainant
fired his gun, the accused fled in fear and dropped the bag. The crime
is robbery had been fully consummated. It is of no moment that the
complainant was able to subsequently recover the items forcibly
taken from him. Settled is the rule the robbery is considered complete
from the moment the offender gains possession of the thing even if
he has no opportunity to dispose of the same. The subsequent
recovery of the stolen property does not preclude the presence of
intent to gain on the part of the accused. Animus lucrandi or intent
to gain is an internal act, which can be established through the overt
acts of the offender. The offenders’ intent to gain may be presumed
from the forcible taking of useful property pertaining to another,
unless special circumstances reveal a different intent on the part of
the perpetrator.

THEFT AND ESTAFA THROUGH MISAPPROPRIATION –

Misappropriation of property may constitute theft or estafa
depending upon the character of the possession.

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 Physical possession - If the accused received the property with
the consent of the owner but he merely acquired physical possession
in doing so, misappropriation shall be considered as taking without
consent; hence, the crime committed is theft (U.S. v. De Vera, G.R.
No. L-16961, September 19, 1921) or qualified theft (People v.
Tanchanco, G.R. No. 177761 April 18, 2012).

A franchise holder must personally operate the motor vehicle.

That is the reason why government regulation prohibits operator of
motor vehicle from leasing it. In the eye of the law the driver of taxi
or passenger jeepney under boundary arrangement was only an
employee of the owner rather than a lessee. For being an employee,
his possession of the jeepney is physical (People v. Isaac G.R. No. L-
7561, April 30, 1955), and thus, misappropriation thereof is
carnapping (People vs. Bustinera, G. R. No. 148233, June 8, 2004).

In Horca vs. People, G.R. No. 224316, November 10, 2021,

Hernando, the accused is charged with theft. The information alleged
that the accused received from the Sisters of Providence the amount
of P1,005,626.50 under the express obligation of delivering Swiss Air
plane tickets for Rome to the complainant, but herein accused failed
to do so and did not return the same to the complainant, and once
in possession of the aforestated amount, she instead
misappropriated the same. It was held the accused was properly
charged with the crime of theft because she was merely entrusted
with the material or physical possession of the sum of money which
she was supposed to use for the purchase of the airline tickets.
Juridical possession, which means a possession that gives the
transferee a right over the thing transferred and that which he may
set up even against the owner, was never shown to have been
transferred to accused.

Legal possession - If the accused received the property with the

consent of the owner and he acquired legal possession in doing so by
virtue of trust, commission, administration or obligation involving
the duty to make delivery or return such as lease, deposit,
commodatum, or quasi-contract, misappropriation shall be
considered as estafa through conversion or misappropriation (Chua-
Burce vs. CA, G.R. No. 109595, April 27, 2000; D’Aigle vs. People,
G.R. No. 174181, June 27, 2012).

The element that personal property is received in trust, on

commission, for administration or with the duty to deliver of or return
the same presupposes that the offender acquires both physical
possession and juridical possession of the thing received. (Manjares
vs. People, G.R. No. 207249. May 14, 2021)

Employee - As a rule, the possession of the employee such as

bank teller, collector, cash custodian or branch manager is only
physical. Hence, misappropriation of property is qualified theft.
Abuse of confidence is present since the property is accessible to the
employee (Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000;

78 | P a g e
People vs. Tanchanco, G.R. No. 177761 April 18, 2012; People vs.
Santos, G.R. No. 237982, October 14, 2020; Manjares vs. People,
G.R. No. 207249. May 14, 2021). However, if the employee is an
officer of the company with discretion on how to use property or fund
of the company to further its interest, his possession is juridical;
hence, misappropriation thereof is estafa. Thus, the following officers
are liable for estafa for misappropriating company property: a. A bank
president who held the money in trust or administration for the bank
in his fiduciary capacity with discretion on how to administer such fund
(People vs. Go, G.R. No. 191015, August 6, 2014); b. A corporate
treasurer who received the money for safe-keeping and
administration (U.S. vs. Sevilla, G.R. No. 18056, March 16, 1922; c.
A corporate officer with discretion option on how to use bending
machine without the participation of the corporation (D’Aigle vs.
People, G.R. No. 174181, June 27, 2012). However, in Remo vs.
Devanadera, G.R. No. 192925, December 9, 2016, the Supreme
Court ruled that the directors of a corporation have no juridical
possession over the corporate funds.

Partner - Misappropriation by the industrial partner of the

share of the capitalist partner (People vs. Clemente, CA, 65 OG 6892)
or the partnership fund to be used in buying and selling mango
(People vs. Dela Cruz, G.R. No. 21732, September 3, 1924) is estafa.
Theft is not committed (US vs. Reyes, G.R. No. 2867, September 11,
1906) because possession of the industrial partner over the same is
juridical (People vs. Tan Tay Cuan, CA, 57 OG 6964).

In US vs. Clarin, G.R. No. 5840, September 17, 1910, four

individuals entered into a contract of partnership for the business
of buying and selling mangoes. When one of the partners demanded
from the other three the return of his monetary contribution, the
Supreme Court ruled that "the action that lies with the capitalist
partner for the recovery of his money is not a criminal action
for estafa, but a civil one arising from the partnership contract for a
liquidation of the partnership and a levy on its assets, if there should
be any. Simply put, if a partner demands his money back, the duty
to return the contribution does not devolve on the other partners; the
duty now belongs to the partnership itself as a separate and distinct
personality.

In 1997, a case with circumstances similar to the Clarin case

was decided differently. In Liwanag v. Court of Appeals, G.R. No.
114398 October 24, 1997, three individuals entered into a contract
of partnership for the business of buying and selling cigarettes. They
agreed that one would contribute money to buy the cigarettes while
the other two would act as agents in selling. When the capitalist
partner demanded from the industrial partners her monetary
contribution because they stopped informing her of business
updates, this time, this Court held the industrial partners liable
for estafa.

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 In Orbe vs. Miaral, G.R. No. 217777, August 16, 2017, the
Supreme Court ruled that said the OCP erred gravely when it
dismissed the case based on the Clarin case, which has already been
superseded by Liwanag case. Liwanag applies to
the partnership agreement executed between petitioner and
respondent. Petitioner's initial contributions were all for specific
purposes: for the buying and selling of garments and for the salaries
of the factory workers, respectively. When respondent failed to
account for these amounts or to return these amounts to petitioner
upon demand, there is probable cause to hold that respondent
misappropriated the amounts and had not used them for their
intended purposes. The Information for estafa should thus proceed.
Even assuming that a contract of partnership was indeed entered
into by and between the parties, when money or property had been
received by a partner for a specific purpose and he later
misappropriated it, such partner is guilty of estafa.

Ownership - If the accused received the property with the

consent of the owner and he acquired ownership in doing so by virtue
of a contract such as sale, mutuum or loan, failure to perform
obligation under such contract is neither theft nor estafa since the
same is purely civil in character (People vs. Montemayor, G.R. No. L-
17449, August 30, 1962).

In Ibanez vs. People, G.R. No. 198932, October 09, 2019, With
the transaction entered into by the parties being a sale, the accused
as the vendee did not receive the property subject of the sale in trust
or under an obligation to return. The parties' agreement to transfer
the title upon payment of the purchase price rather placed the
accused in the position of an owner and made him liable to the
transferor as a debtor for the agreed price; he was not merely an
agent who must account for the proceeds of a resale. The failure on
the part of the accused to pay the consideration in full only resulted
to the complainants being unpaid vendors. The former did not
thereby incur criminal liability for estafa, for the right of the
complainants as unpaid vendors was only to demand the fulfilment
or the cancellation of the obligation.

Seller failed to return advance payment to the buyer after

having incurred delay in the performance of obligation under a
contract of sale. The seller cannot be held liable for estafa through
misappropriation. In estafa through misappropriation, the offender
must have the obligation to return the very property that he received.
The seller acquired ownership over the money received as advance
payment. In case of failure to perform obligation under a sale contact,
the seller has no obligation to return to the buyer the very moneys
with the same serial numbers received as advance payment. In
returning the advance payment, the seller can use moneys with
different serial numbers. Hence, his obligation to return the advance
payment is merely civil in character. (People vs. Salazar, G.R. No.
149472, August 18, 2004) The Salazar case involved estafa through
misappropriation. Hence, the accused cannot use the Salazar
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principle in a case involving estafa through false pretense. In this
case, accused misrepresented that he is authorized to sell a land
owned by Candelaria (a third person) to the complainant, where in
fact he is not authorized. He was convicted of estafa through false
pretense. (Arriola vs. People, G.R. No. 199975, February 24, 2020,
Hernando)

Variance rule in estafa charged and theft proven - In Chua-

Burce vs. CA, G.R. No. 109595, April 27, 2000, Reside vs. People,
G.R. No. 210318, July 28, 2020, and Libunao vs. People, G.R. No.
194359, September 02, 2020, accused are charged in the information
with estafa through misappropriation. However, the crime proven by
evidence is qualified theft since the accused in these three cases are
employee, whose possession over the money of his employer is merely
physical. Thus, the accused cannot be held liable for estafa through
misappropriation because juridical possession, which is an
indispensable element thereof, is lacking.

The facts in these three cases are the same. In these cases, the
Supreme Court acquitted the accused of estafa. But their treatments
on convicting the accused for theft are different. In Chua-Burce case,
the accused was not held liable for qualified theft. In sum, the Court
did not apply the variance rule. However, in Reside case, the
Supreme Court applied the variance rule and convicted the accused
of qualified theft. It was held it is proper to hold accused guilty of
qualified theft because the latter crime was necessarily included in
the crime charged in the information. Qualifying circumstance of
abuse of confidence, which is alleged in the information, was
appreciated. In Libunao case, the accused was convicted of simple
theft since the Information filed against her sufficiently alleged all the
elements of theft. Qualifying circumstance of abuse of confidence was
not appreciated since the same was not alleged in the information.

In my submission, the Chua-Burce case is the correct principle.

In these three cases, their respective informations do not allege
“taking of personal property without consent of the owner” and “intent
to gain” which is indispensable elements of theft. Hence, it is
improper to convict the accused of theft, simple or qualified.
Moreover, People vs. Balerta, G.R. No. 205144, November 26, 2014,
and People vs. Benabaye, G.R. No. 203466, February 25, 2015, the
Supreme Court re-affirmed the Chua-Burce principle. Since in
Reside case and Libunao case, the Supreme Court is not sitting En
Banc, it cannot abandon the Chua-Burce case, Balerta case and
Benabaye case.

However, for purpose of the Bar Examination, since Reside case

and Libunao case are recent Supreme Court decisions, it is advisable
to follow these cases.

SYNDICATED ESTAFA - The elements of syndicated estafa

under P.D. No. 1689 are: 1. Estafa or other forms of swindling under
Articles 315 to 318 of Revised Penal Code is committed; 2. It is
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committed by a syndicate of five or more persons; and 3. Defraudation
results in the misappropriation of moneys contributed by stockholders,
or members of rural banks, cooperative, “samahang nayon,” or
farmers’ associations, or of funds solicited by
corporations/associations from the general public. (People v. Tibayan,
G.R. Nos. 209655-60, January 14, 2015)

Syndicate - A syndicate is defined as consisting of five or more

persons formed with the intention of carrying out the unlawful or
illegal act, transaction, enterprise or scheme. In illegal recruitment,
trafficking in person and child pornography, a syndicate is only
composed of at least three offenders. In syndicated/organized crime
group, a syndicate is composed of at least two offenders.

In order for any group to be considered a syndicate under P.D.

No. 1689, the perpetrators of an estafa must not only be comprised
of at least five individuals but must have also used the association
that they formed or managed to defraud its own stockholders,
members or depositors. (Home Development Mutual Fund vs. Sagun,
G.R. No. 205698, July 31, 2018)

The swindling syndicate used the association that they manage

to defraud the general public of funds contributed to the association.
Indeed, PD No. 1689 speaks of a syndicate formed with the intention
of carrying out the unlawful scheme for the misappropriation of the
money contributed by the members of the association. In other
words, only those who formed or manage associations that receive
contributions from the general public who misappropriated the
contributions can commit syndicated estafa. (Home Development
Mutual Fund vs. Sagun, supra)

There are three requisites to consider a group of swindlers as a

syndicate under PD No. 1689: 1. They must be at least five in number;
2. They must have formed or managed a rural bank, cooperative,
"samahang nayon," farmer's association or any other corporation or
association that solicits funds from the general public; 3. They formed
or managed such association with the intention of carrying out an
unlawful or illegal act, transaction, enterprise or scheme i.e., they used
the very association that they formed or managed as the means to
defraud its own stockholders, members and depositors. (Home
Development Mutual Fund vs. Sagun, supra)

In Home Development Mutual Fund vs. Sagun, supra, there are

only four officers of Globe Asiatique charged for syndicated estafa.
The fifth respondent, which will complete the requirement of at least
five swindlers in syndicated estafa, is Atty. Alvarez. However, Atty.
Alvarez was officer of HDMF whose only connection with Globe
Asiatique was by reason of his having rendered notarial services for
the latter. Since Atty. Alvarez was not related to Globe Asiatique
either by employment or by ownership, he could not be considered
as part of the syndicate supposedly formed or managed to defraud

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its stockholders, members, depositors or the public. Hence,
respondents should not have been charged with syndicated estafa.

Funds Solicited from the General Public - The fact that the
entity involved was not a rural bank, cooperative, samahang nayon
or farmers’ association does not take the case out of the coverage of
P.D. No. 1689. The law applies to other corporations or associations
operating on funds solicited from the general public. (People v.
Balasa, G.R. No. 106357, September 3, 1998) Thus, the entity can be
a commercial bank. (Galvez v. Hon. CA, G.R. No. 187919, February
20, 2013)

If the money misappropriated is not solicited from the general

public, the crime committed is simple estafa under the Revised Penal
Code. (Hao v. People, supra)

There are three parties involved in syndicated estafa, to wit: (1)

the corporation or association; (2) general public such as
stockholders and members of the association; they are the victims
and (3) the owners and members of the association, who used such
association to defraud the general public; they are the offenders.

The association or corporation can neither be a victim nor the

offender in syndicated estafa. The association is just an instrument
used by the offenders to defraud the victim. A bank cannot charge its
employees with syndicated estafa for misappropriating its money.
(Galvez v. Hon. CA, supra) The crime committed by a bank employee
or officer is estafa or theft depending upon the nature of their
position.

In Home Development Mutual Fund vs. Sagun, G.R. No.

205698, July 31, 2018, based on evidence, GLOBE ASIATIQUE (GA)
allegedly recruited "special buyers," who are not members of Pag-ibig.
For a fee, these “special buyers” would apply membership in Pag-ibig,
and then, they would obtain housing loans from Pag-Ibig but they
will not occupy the housing units involved. Then GA will sell the units
to real buyers, who would assume the balance on the loan of the
"special buyer." Because of this complex scheme involving fraudulent
buyers, a huge amount of money was transferred from the coffers of
the Pag-ibig fund by HDMF, and released to the GA. Officers of GA
including Delfin Lee were charged of syndicated estafa. In this crime,
it must be established that GA solicited funds from the general public
and at least five swindlers used GA to defraud its members or
stockholders. However, in this case, GA did not solicit funds from the
general public. The HDMF, the complainant, was not itself a
stockholder or member of GA. It was the HDMF itself, not GA, that
had solicited (Pag-ibig) funds from its members. The funds
supposedly misappropriated did not belong to GA's stockholders or
members, or to the general public, but to the HDMF. Thus,
respondents did commit syndicated estafa. However, they should be
charged with simple estafa.

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 Swindling may fall within the ambit of P.D. No. 1689 if it is
committed through an association. On the other hand, estafa is
committed regardless of the number of the accused when: (a) the
entity soliciting funds from the general public is the victim and not
the means through which the estafa is committed, or (b) the
offenders are not owners or employees who used the association to
perpetrate the crime. (Home Development Mutual Fund vs. Sagun,
supra)

ARSON – Destructive arson is characterized as heinous crime;

while simple arson under PD No. 1613 is a crime manifesting a lesser
degree of perversity. Simple arson contemplates the malicious
burning of property not included in Article 320 of the RPC (People vs.
Macabando, GR No. 188708, July 31, 2013). Burning of inhabited
house or dwelling or personal property is simple arson under Section
3 of P.D. No. 1613 because it is not included in Article 320 of RPC.
In arson, the corpus delicti rule is generally satisfied by proof of
the bare occurrence of the fire and its intentional causation. (People
vs. Pugal, G.R. No. 229103, March 15, 2021)

Intent to kill - If the main objective is to kill the victim in a

building, and fire is resorted to as the means to accomplish such
goal, the crime committed is murder only. Murder qualified by means
of fire absorbs arson since the latter is an inherent means to commit
the former (People vs. Cedenio, G.R. No. 93485, June 27, 1994).
Single act of burning the building to kill two persons constitutes
compound crime of double murders (People vs. Gaffud, G.R. No.
168050, September 19, 2008; People vs. Mercado, G.R. No. 218702,
October 17, 2018)

One has deliberately set fire to a building is presumed to have

intended to burn the building (People vs. De Leon, G. R. No. 180762,
March 4, 2009). Since intent to burn is presumed, intent to kill must
be established beyond reasonable doubt. Failure to show intent to
kill, the accused shall be convicted of arson with qualifying
circumstance of resulting death and not murder (People vs.
Baluntong, G.R. No. 182061, March 15, 2010).

Intent to burn - If the main objective is to burn the building,

but death results by reason or on the occasion of arson, the crime is
arson with qualifying circumstance of resulting death (People v.
Abayon, G.R. No. 204891, September 2016). The resulting homicide
is absorbed (People vs. Villacorta, G.R. No. 172468, October 15,
2008) since it will be considered as a modificatory circumstance.

In People vs. Dolendo, G.R. No. 223098, June 3, 2019, the

Supreme Court said that the Court of Appeals correctly modified the
accused's conviction from arson with homicide to “simple arson”
conformably with prevailing jurisprudence. In People vs. Pugal, G.R.
No. 229103, March 15, 2021, the crime is described as “destructive
arson” although a person died as a consequence thereof.
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 With due respect to the Supreme Court in Dolendo, it is
submitted that arson with homicide is the correct term.

There is no term “special complex crime” in the Revised Penal

Code and other penal laws. However, the Supreme Court in several
cases is describing two or more crimes punishable by a single penalty
under Book Two of the Revised Penal Code as a special complex
crime. The word “special” is used in the term “special complex crime”
to distinguish this concept from complex crime under Article 48,
Book One of the Revised Penal Code.

The penalty for destructive arson under Article 320 of the

Revised Penal Code or simple arson under PD No. 1613 is higher if
as a consequence thereof or by reason or on occasion thereof, death
results. Since RPC or PD No. 1613 prescribes a single penalty for
committing two crimes, to wit: destructive arson or simple arson and
homicide, arson with the circumstance of death of a victim is actually
a special complex crime. Thus, in People v. Villacorta, G.R. No.
172468, October 15, 2008 and People v. Jugueta, G.R. No. 202124,
April 5, 2016, the Supreme Court described arson with the qualifying
circumstance of resulting death as a “special complex crime of arson
with homicide” and in People vs. Al-saas, G.R. No. 242414, March 15,
2021 and People vs. Soria, G.R. No. 248372, August 27, 2020, the
Supreme Court described the crime as “arson with homicide.”

For purpose of the bar examination, if the accused burned

burning the building without intent to kill, and as a consequence,
death results, the crime may be designated as simple arson under
PD No. 1613 or destructive arson under the Revised Penal Code with
the qualifying circumstance of resulting death.

Intent to conceal - If the objective is to kill, and in fact the

offender has already done so, and arson is resorted to as a means to
cover up the killing, the offender may be convicted of two separate
crimes of either homicide or murder, and arson (People vs. Cedenio,
G.R. No. 93485, June 27, 1994).

MALICIOUS MISCHIEF – In Grana vs. People, G.R. No. 202111,

November 25, 2019 (Hernando), assuming that the accused owned
the land in controversy, he and his co-accused were not justified in
summarily destroying the improvements built thereon by the
complainant. They unlawfully took the law into their own hands
when they surreptitiously entered the complainant’s enclosed lot and
destroyed its fence and foundation. Evidently, the accused’s actions
were made out of hatred, revenge or evil motive. They did the act
complained of not for the purpose of protecting his right as the
alleged owner of the subject property but to give vent to their anger
and disgust over the complainant's act of putting the fence and
cement thereon without their consent.

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 BIGAMY – Under Article 349, bigamy is committed by any
person who shall contract a second or subsequent marriage before
the former marriage has been legally dissolved. The term "former
marriage" in Article 349 refers to a valid marriage, and not a null and
void marriage. The first element of bigamy is that the offender has
been legally married. The word “legally” means that the first marriage
must be valid.
The term "second or subsequent marriage" in Article 349 refers
to marriage, which would have been valid had it not been for the
existence of the first. In sum, the second or subsequent marriage is
invalid for being bigamous, but the other requisites (e.g., marriage
license and marriage ceremony) to make it valid are all present.
When the first marriage is void ab initio, one of the essential
elements of bigamy is absent, i.e. a prior valid marriage. There can
be no crime when the very act which was penalized by the
law, i.e. contracting another marriage during the subsistence of a
prior legal or valid marriage, is not present. The existence and the
validity of the first marriage being an essential element of the crime
of bigamy, it is but logical that a conviction for the said offense cannot
be sustained where there is no first marriage to begin with. (Pulido
vs. People, G.R. No. 220149, July 27, 2021, Hernando)
When the accused contracts a second or subsequent marriage
that is void ab initio, other than it being bigamous, he/she cannot be
held liable for bigamy as the effect of a void marriage signifies that
the accused has not entered into a second or subsequent marriage,
being inexistent from the beginning. Thus, the element, "that he or
she contracts a second or subsequent marriage" is lacking. (Pulido
vs. People, supra, Hernando)
Old rules - Under the old principle, after the
consummation of the crime of bigamy upon the celebration of the
second or subsequent bigamous marriage despite the subsistence of
the former marriage, the criminal liability shall not be extinguished
by a subsequent declaration of nullity of the first marriage (Mercado
vs. Tan, G.R. No. 137110, August 1, 2000); or the second marriage
(Tenebro vs. Honorable Court of Appeals, G.R. No. 150758, February
18, 2004); or first marriage and second marriage (Jarillo vs. People,
GR No. 164435, September 29, 2009).
To avoid criminal liability for bigamy, the declaration of nullity
of the former marriage must be made previous to the celebration of
the second or subsequent marriage, which is required by Article 40
of the Family Code, which provides: The absolute nullity of a previous
marriage may be invoked for purposes of remarriage on the basis
86 | P a g e
solely of a final judgment declaring such previous marriage void.
(Domingo vs. CA, G.R. No. 104818, September 17, 1993; Mercado vs.
Tan, supra; Marbella-Bobis v. Bobis, G.R. No. 138509, July 31, 2000;
1968 and 2013 Bar Exams)
Present rule - In Pulido vs. People, G.R. No. 220149, July 27,
2021, the Supreme Court En Banc through Justice Hernando has
abandoned the Mercado case, the Tenebro case, the Jarillo case,
Domingo case and the Marbella-Bobis and other related cases.
In Pulido vs. People, supra, it was held that it is time to abandon
the earlier precedents and adopt a more liberal view that a void ab
initio marriage can be used as a defense in bigamy even without a
separate judicial declaration of absolute nullity. Article 40 of the
Family Code did not amend Article 349 of the Revised Penal Code,
and thus, did not deny the accused the right to collaterally attack the
validity of a void ab initio marriage in the criminal prosecution for
bigamy.
Collateral attack - The accused can collaterally attack the
validity of the former marriage or the second or subsequent marriage
in the criminal prosecution for bigamy. The accused is not required
to obtain a judicial declaration of nullity of a void ab initio first and
subsequent marriages in order to raise it as a defense in a bigamy
case. (Pulido vs. People, supra)
An accused in a bigamy case should be allowed to raise the
defense of a prior void ab initio marriage through competent evidence
other than the judicial decree of nullity. (Pulido vs. People, supra)
Even without a declaration of nullity of the first marriage in a
separate proceeding by the Family court, the accused in a bigamy
case can present evidence that he and his first wife are first cousins
(1994 Bar Exam), or that they merely signed the marriage contract
without a previous marriage celebration (Morigo v. People, G.R. No.
145226, February 6, 2004). The court in a criminal case for bigamy
can declare the former marriage or the second or subsequent
marriage null and void for being incestuous or made without
marriage celebration, and render a judgment of acquittal.
The declaration of nullity of marriage by the court in a criminal
case for bigamy will only produce a criminal effect e.g., the acquittal
of the accused. Such a declaration will not produce other effects such
as loss of the spouse’s right to inheritance.
Judicial declaration of nullity - The accused may present
testimonial or documentary evidence such as the judicial declaration
of absolute nullity of the first and/or subsequent void ab

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initio marriages in the criminal prosecution for bigamy. (Pulido vs.
People, supra)
In criminal prosecutions for bigamy, the accused can validly
interpose the defense of a void ab initio marriage even without
obtaining a judicial declaration of absolute nullity. Consequently, a
judicial declaration of absolute nullity of the first and/or subsequent
marriages obtained by the accused in a separate proceeding,
irrespective of the time within which they are secured, is a valid
defense in the criminal prosecution for bigamy. (Pulido vs. People,
supra)
If the former marriage is declared null and void before or after
the celebration of the second or subsequent marriage, there is no
bigamy because the effect of such declaration will retroact to the date
of celebration of the former marriage, and thus, there is technically
no former marriage.
If the second or subsequent marriage is declared null and void
on any grounds except for being bigamous, there is no bigamy
because technically there is no second or subsequent marriage.
In Pulido vs. People, supra, the accused was acquitted of
bigamy because his first marriage and second marriage were
judicially declared null and void for lack of marriage licenses.
Bigamous former marriage - In People v. Mendoza, G.R. No. L-
5877, September 28, 1954, and People v. Aragon, G.R. No. L-10016,
February 28, 1957, the Supreme Court ruled that no judicial decree
is necessary to establish the invalidity of a prior void marriage as a
defense in the case of Bigamy.
In both Mendoza and Aragon, the accused contracted a
second marriage during the subsistence of his first marriage.
Thereafter, the accused entered into a third marriage after the death
of his first wife but during the subsistence of the second marriage.
The Court ruled that the second marriage is void for having been
contracted during the existence of the first marriage. Hence, there is
no need for a judicial declaration that said second marriage is void.
Consequently, with the second marriage being void and the first
marriage terminated due to the death of the first wife, the accused
did not commit bigamy when he contracted a third marriage.
In Lasanas v. People, G.R. No. 159031, June 23, 2014, the
Supreme Court said that the Mendoza case and Aragon case has
already been abandoned by the case of Landico and case of Sempio-
Diy. The Yap case which resurrected the Aragon and Mendoza

88 | P a g e
doctrine, had been overtaken by Article 40 of the Family Code and by
Domingo case and Te case.
However, in Pulido vs. People, G.R. No. 220149, July 27,
2021, the Supreme Court En Banc through Justice Hernando has
abandoned Lasanas case and other related cases, and reverted again
to the doctrine laid down in Mendoza and Aragon.
X contracted three marriages. His first wife is already dead
when X contracted his third marriage. (1953 Bar Exam)
1. X is liable for bigamy for contracting the second marriage
because the first was still subsisting when he contracted the second.
2. X is not liable for bigamy for contracting the third marriage
because the first marriage has already been extinguished by the
death of the first wife when he contracted the third, and the second
marriage is void for being a bigamous marriage. Applying the Pulido
case, Mendoza case, and Aragon case, X need not obtain a judicial
declaration of nullity of the second marriage for being bigamous
before entering into a third marriage for purpose of raising the
voidness of the former as a defense in bigamy. (Mendoza case, Aragon
case and Pulido case)
Voidable former or subsequent marriage - The term
"former marriage" in Article 349 refers to a valid marriage. However,
a voidable marriage is valid until annulled by the court. Hence, the
term "former marriage" in Article 349 includes voidable marriage.
Thus, the voidability of the former marriage is not a defense in
bigamy.
The term "second or subsequent marriage" in Article 349 refers
to marriage, which would have been valid had it not been for the
existence of the first. However, a voidable marriage is valid until
annulled by the court. Hence, the term "second or subsequent
marriage" in Article 349 includes voidable marriage. Thus, the
voidability of the second or subsequent marriage is not a defense in
bigamy.
If the second or subsequent marriage was annulled in civil
action due to force or intimidation committed by the accused in a
bigamy case to obtain the consent of the other party in marrying him,
he should not be acquitted on this ground. Since the accused was
the one who used the force or intimidation, he may not use his own
malfeasance to defeat the action for bigamy based on his criminal
act. (People v. Aragon, G.R. No. L-5930, February 17, 1954)
If the first marriage is merely voidable, the accused cannot
interpose an annulment decree as a defense in the criminal
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prosecution for bigamy since the voidable first marriage is considered
valid and subsisting when the second marriage was contracted. The
crime of bigamy, therefore, is consummated when the second
marriage was celebrated during the subsistence of the voidable first
marriage. The same rule applies if the second marriage is merely
considered as voidable. (See: Pulido vs. People, supra) Moreover, the
annulment of a voidable marriage that happened after the
consummation of bigamy is not a defense since annulment is not a
mode of extinguishing criminal liability. Unlike a declaration of
nullity of a void marriage, the effect of annulment of voidable
marriage will not retroact to the date of its celebration.
However, if the voidable second or subsequent marriage was
annulled in a civil action due to force or intimidation committed
against the accused in bigamy to obtain his consent in entering such
marriage, he should be acquitted. A subsequent marriage contracted
by the accused involuntarily cannot be the basis for his conviction for
the crime of bigamy. (Landicho v. Relova, G.R. No. L-22579, February
23, 1968) In sum, the acquittal for bigamy is not based on the
voidability of the second or subsequent marriage but on the
exempting circumstance of irresistible force or uncontrollable fear.
However, the second wife, who forced the accused in bigamy case to
marry her, is liable for qualified illegal marriage.
The second element of bigamy is that the former marriage has
not been legally dissolved. If the former marriage is voidable, the
accused to avoid criminal liability for bigamy must obtain a judicial
dissolution or annulment of the said marriage before contracting a
second or subsequent marriage. Without prior annulment or
dissolution of the voidable former marriage, contacting a second or
subsequent marriage is bigamy.

Muslim conversion - In Malaki vs. People, G.R. No. 221075,

November 15, 2021, it was held that a party to a civil marriage who
converts to Islam and contracts another marriage, despite the first
marriage is subsistence, is guilty of bigamy. Conversion to Islam does
not operate to exculpate them from criminal liability. Further, a
married Muslim cannot marry another. In exceptional cases, a
married Muslim man may do so if he can deal with them with equal
companionship and just treatment as enjoined by Islamic law.

While conversion to Islam is not a defense in a bigamy case

because of the Malaki principle, compliance with the Muslim Code in
contracting a subsequent marriage will exempt a Muslim convert
from criminal liability for bigamy.

In Malaki vs. People, supra, the complainant and the accused

were married under the religious rites of Iglesia ni Cristo in 1988. The
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accused and his co-accused contracted a religious marriage under
Muslim rites on June 5, 2005, and then a civil marriage that was
solemnized by a judge on June 18, 2005. The accused and co-
accused claimed that they cannot be penalized for bigamy as they
converted to Islam prior to their marriage.

Article 180 of the Muslim Code provides that the provisions of

the Revised Penal Code relative to the crime of bigamy shall not apply
to a person married in accordance with the provisions of this Code
or, before its effectivity, under Muslim law.

Under Article 162 of the Muslim Code, the consent of the wife,
or the permission of the Shari’a Circuit Court if the wife refuses to
give consent, is a condition sine qua non with respect to the
subsequent marriage. Absent the wife's consent or the court's
permission, the exculpatory provision of Article 180 shall not apply,
since it only exempts from the charge of bigamy a Muslim husband
who subsequently marries "in accordance with the provisions of the
Muslim Code."
The wife's knowledge of the impending subsequent marriage is
essential and may not be waived. The lack of knowledge of the wife
from the prior subsisting marriage does not only deprive her of the
opportunity to consent or object, but also prevents the Shari’a Circuit
Court from ruling on any objection. Therefore, the subsequent
marriage fails to satisfy the requirement of prior consent or
permission under Article 162. According to experts, a subsequent
marriage, which fails to comply with Article 162, is bigamous.
Hence, the Supreme Court in the Malaki case affirmed the
accused’s conviction of bigamy.
However, it is submitted that the Malaki principle that
“conversion to Islam does not operate to exculpate them from criminal
liability” will not apply if a Muslim covert complies with the
requirements of the Muslim Code (e.g., wife’s knowledge and consent
or court’s permission to the subsequent marriage) in contracting a
subsequent marriage.
ILLEGAL MARRIAGE – If a bar exam question involves a
situation where bigamy is not committed because former marriage,
or second or subsequent marriage is void ab initio, the examinee
must consider the possibility that illegal marriage is committed.
1. Lack of marriage license - If the first marriage or the second
marriage is null and void because the same was contracted without
a marriage license, bigamy is not committed because of the Pulido
principle. However, the responsible parties can be held liable for
illegal marriage.
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 In Pulido vs. People, supra, the accused was acquitted of
bigamy because the first marriage and the second marriage were
declared null and void for lack of marriage license after the
celebration of the second marriage. Hypothetically, the accused in
the Pulido case and the first wife and the second wife can be
prosecuted for illegal marriage.
Pedro is legally married to Maria. Using a falsified affidavit of
cohabitation instead of a marriage license, Pedro contracted a second
marriage to Claire. Pedro is not liable for bigamy because the second
marriage contracted without a marriage license is void. However,
Pedro and Claire are liable for perjury for executing a falsified
affidavit, and illegal marriage. (2004 Bar Exam)
2. Incestuous Marriage – Issa and Bobby, who were first
cousins, were married. Despite the subsistence of his marriage with
Issa, Bobby married Caring. (1994 Bar Exam) Bobby cannot be held
liable for bigamy since his former marriage is null and void for being
incestuous. Even without a judicial declaration of nullity of the
former bigamous marriage in a separate proceeding, Bobby in the
criminal case for bigamy can present documentary evidence (birth
certificates) and testimonial evidence that Issa is his first cousin, and
the criminal court can declare said marriage as bigamous and
sustain his defense. (Pulido vs. People, supra) However, Bobby can
be held liable for illegal marriage for marrying Issa in disregard of
their legal impediment to marrying each other.
A priest, who performed a marriage ceremony despite
knowledge that the couple had no marriage license, is liable for illegal
marriage. The law sets the minimum requirements constituting a
marriage ceremony: first, there should be the personal appearance of
the contracting parties before a solemnizing officer; and second, their
declaration in the presence of not less than two witnesses that they
take each other as husband and wife (Ronulo vs. People, G.R. No.
182438, July 02, 2014).

Performance of illegal marriage ceremony – The elements of

this crime are as follows: (1) authority of the solemnizing officer; and
(2) his performance of an illegal marriage ceremony. (Ronulo v. People,
G.R. No. 182438, July 2, 2014)
A person who entered into an illegal marriage is liable for
bigamy under Article 249 or illegal marriage under Article 250. On
the other hand, the priest, minister or civil authority who performed
such bigamous marriage (Sermonia v. Hon. Court of Appeals, G.R. No.
109454, June 14, 1994) or illegal marriage such as marriage without
a license (Ronulo v. People, G.R. No. 182438, July 2, 2014), is liable
for performance of illegal marriage ceremony under Article 252.
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 A priest who performed a marriage ceremony despite knowledge
that the couple had no marriage license is liable for performing illegal
marriage ceremony. The non-filing of a criminal complaint for illegal
marriage under Article 250 against the couple does not negate the
criminal liability of the priest. Article 352 does not make this an
element of the crime. (Ronulo v. People, supra)
The law sets the minimum requirements constituting a
marriage ceremony, which is an element of performance of illegal
marriage ceremony: first, there should be the personal appearance of
the contracting parties before a solemnizing officer; and second, their
declaration in the presence of not less than two witnesses that they
take each other as husband and wife. For purposes of determining if
a marriage ceremony has been conducted, a marriage certificate is
not included in the requirements. (Ronulo v. People, supra)
Erwin and Bea approached Mayor Abral and requested him to
solemnize their marriage. Mayor Abral agreed. Erwin and Bea went
to Mayor Abral’s office on the day of the ceremony, but Mayor Abral
was not there. When Erwin and Bea inquired where Mayor Abral was,
his chief of staff Donato informed them that the Mayor was
campaigning for the coming elections. Donato told them that the
Mayor authorized him to solemnize the marriage and that Mayor
Abral would just sign the documents when he arrived. Donato
thereafter solemnized the marriage and later turned over the
documents to Mayor Abral for his signature. In the marriage contract,
it was stated that the marriage was solemnized by Mayor Abral.
Since the mayor is absent, his chief of staff solemnized the
marriage between two persons, and later turned over the documents
to Mayor Abral for his signature. The chief of staff, who performed
the act of solemnizing marriage, which pertained to the mayor,
person in authority, without being lawfully entitled to do so, is liable
for usurpation of function under Article 177. The crime of
performance of illegal marriage ceremony under Article 352 is not
committed because this crime can only be committed by a person
who is authorized to solemnize marriage. (Ronulo v. People, G.R. No.
182438, July 2, 2014; 2019 Bar Exam)
Mayor Abral is liable for falsification of public document by a
public officer under Article 171. Making an untruthful statement by
stating in a marriage contract, a public document, that the marriage
was solemnized by him, is an act of falsification. The crime of
performance of illegal marriage ceremony is not committed since
Mayor Abral did not perform the marriage ceremony. (Ronulo v.
People, supra; 2019 Bar Exam)

93 | P a g e
 LIBEL - In Manila Bulletin Publishing Corporation vs. Domingo,
G.R. No. 170341, July 5, 2017, the accused published an article
where he stated that these national employees should be commended
for bringing into the open this garbage that has piled up in their own
backyard. To Joe Con's successor, the chopping board is ready. All you
need is a Muslim kris! Palakulin mo, Pare ko!. This is not libelous. On
the first statement, accused is merely commending the DTI
employees who brought into the open their complaints against the
private complainant in this case, a DTI officer. This is a fair remark.
The last three sentences merely meant that heads should roll at the
DTI office, which does not ascribe something deprecating against
complainant. Moreover, the statement does not refer to an
ascertained or ascertainable person.

In Belen vs. People, G.R. No. 211120, February 13, 2017,

accused filed a motion for reconsideration of resolution dismissing a
complaint for estafa with irrelevant and defamatory statement
against the investigating prosecutor was filed with the OCP of San
Pablo City and copy furnished to the respondent in the estafa
complaint, and the Office of the Secretary of Justice. Despite the fact
that the motion was contained in sealed envelopes, it is not
unreasonable to expect that persons other than the one defamed
would be able to read the defamatory statements in it. Hence, the
element of publicity in libel is present.

In Belen vs. People, G.R. No. 211120, February 13, 2017,

accused filed a motion for reconsideration of resolution dismissing a
complaint for estafa. The accused alleged in the said motion the
public prosecutor who dismissed the case is corrupt, stupid,
imbecile, mentally dishonest and bereft of intellectual ability. This is
not covered by the absolute privilege communication rule since the
defamatory allegations in the motion are not relevant to the issue of
whether or not the motion for reconsideration should be granted
because there is probable cause to charge the respondent in the
preliminary investigation for estafa.

CYBEL LIBEL - Content-related offenses includes cyber libel,

cybersex and cyber child pornography. A prosecution for cybercrime
offenses shall be without prejudice to any liability for violation of any
provision of RPC or special laws (Section 7). Despite of Section 7, the
offender cannot be prosecuted for cyber libel or cyber child
pornography under RA No. 10175 in addition to libel under RPC or
child pornography under RA No. 9775 since this will offend the
constitutional rule on double jeopardy (Disini vs. Secretary of
Justice, G.R. No. 203335, February 11, 2014).

Libel is not a constitutionally protected speech and that the

government has an obligation to protect private individuals from
defamation. Indeed, cyber libel is actually not a new crime since
Article 353, in relation to Article 355 of the Revised Penal Code,
already punishes it. Online defamation constitutes “similar means”
94 | P a g e
for committing libel (Disini vs. Secretary of Justice, G.R. No. 20335,
February 18. 2014).

Libel case against Ressa - On May 29, 2012, Rappler published

an article “CJ (Chief Justice Renato Corona) using SUVs of a
controversial businessman,” which imputed several crimes, including
human trafficking, murder, smuggling of illegal drugs, and fake
cigarettes, and granting of fake residence visa to Chinese nationals,
purportedly committed by Wilfredo Keng, a businessman, who was
listed by Forbes in 2010 as the 32nd richest Filipino with a net worth
of US$100 million. On February 19, 2014, the subject article was
published on Rappler’s website.

Wilfredo Keng filed a cyber-libel against Reynaldo Santos, the

writer of this Rappler’s article, and Maria Ressa, the CEO and
Executive Editor of Rappler. Maria Ressa is the first Filipino recipient
of the Nobel Peace Prize.

RTC Judge Rainelda Estacio-Montesa found Santos and Ressa

guilty of cyber-libel. In People vs. Santos and Ressa, CA-G.R. No.
44991, July 7, 2022, the Court of Appeals affirmed the conviction of
Santos and Ressa.

1. Multiple publication rule - Cybercrime law (RA No. 10175)

became effective only on October 9, 2012. The subject defamatory
article was first published on May 29, 2012, or before the effectivity
of RA No. 10175. However, the defamatory article was again
published on February 19, 2014, or after the effectivity of RA No.
10175.

It is settled that a single defamatory statement, if published

several times, gives rise to as many offenses as there are publications.
Every publication of the same libel constitutes a distinct offense. This
is the “multiple publication rule” followed in our jurisdiction. (Soriano
v. Intermediate Appellate Court, G.R. No. 72383, November 9, 1988;
Brillante v. CA, G.R. Nos. 118757 and 121571, October 19, 2004) The
Court of Appeals in People vs. Santos and Ressa affirmed this
multiple publication rule.

Applying the multiple publication rule, the republication of a

defamatory statement against Wilfredo Keng in 2014 constitutes
libel, which is separate and distinct from the previous libel arising
from the first publication of the same defamatory statement in 2012.
Hence, the accused were properly charged with and convicted of
cyber-libel involving the defamatory article that was republished in
2014 after the effectivity of RA No. 10175.

The accused argued that there is no republication of the subject

article in 2014 since the same, which was published in 2012, was
merely updated in 2014 to correct a typographical error. However,
the Court of Appeals rejected the argument. The appellate court said
that the claim that the subject article originally published on the
95 | P a g e
Rappler website on May 29, 2012 was simply updated on February
19, 2014 does not change the fact that it constituted as a
republication of the same defamatory article. In determining whether
there is a republication, it is not necessary whether the corrections
made therein were substantial or not, as what matters is that the
very exact libelous article was again published on a later date.

2. Prescription for cyber libel - One of the cybercrimes defined

under Section 4 of R.A. No. 10175 is cyber libel. Section 8 of R.A. No.
10175 prescribes penalties for all cybercrimes under Section 4
except cyber libel. It seems that through oversight Congress failed to
provide a penalty for cyber libel. Hence, an offender, who committed
libel through the internet, cannot be prosecuted for cyber libel under
Section 4 of R.A. No. 10175 simply because there is no penalty under
Section 8 for committing it.

However, libel through the internet is still punishable under

Article 355 of the Revised Penal Code. Section 6 of R.A. No. 10175,
using information or communication technology in committing a
crime will upgrade the penalty for it by one degree. In sum, one, who
committed libel through the internet shall be prosecuted for libel
under RPC with the qualifying circumstance under R.A. No. 10175.
He cannot be prosecuted for libel under Section 6 of R.A. No. 10176
since this provision does not define a crime but merely provides a
modifying circumstance that will adjust the penalty one degree
higher for a crime punishable under the Revised Penal Code.

Since an offender in committing internet libel can only be

prosecuted for libel qualified by the circumstance of using
information or communication technology under RPC in relation to
RA No. 10175, Article 90 of the Code on prescription applies.

By the same token, the period of prescriptive for homicide with

the special aggravating circumstance of use of loose firearm under
Section 29 of RA No. 10591 is still governed by Article 90 of the
Revised Penal Code, and not by Act 3326. In Tolentino vs. People,
G.R. No. 240310, August 06, 2018, the Supreme Court apply Article
90 of RPC to cyber libel.

Under Article 90 of the Revised Penal Code, the crime of libel

shall prescribe in one year while crime punishable by prision mayor
shall prescribe in 15 years. In my submission, the one-year
prescriptive period for libel under Article 90 shall apply. However, the
Supreme Court in Tolentino vs. People, supra, applied the 15 years
rule.

Under Article 90 of the Revised Penal Code, the crime of libel

shall prescribe in one year. In the case of Santos and Ressa, the
subject article was republished on February 19, 2014, while the
complaint for cyber libel was received by the Department of Justice
on March 2, 2018, after more than four (4) years from February 19,
2014. According to the accused, the case should be dismissed
96 | P a g e
because the one-year prescriptive period had already elapsed when
the complaint was filed with the DOJ.

However, the Court of Appeals rejected the argument of the

accused. In Tolentino vs. People, G.R. No. 240310, August 6, 2018,
the Supreme Court ruled that the period of prescription for cyber-
libel punishable by an afflictive penalty under the Revised Penal Code
is 15 years. In sum, the Supreme Court did not apply the rule on the
one-year-prescriptive period for libel to cyber-libel. With the Tolentino
principle, the case could not be dismissed on the ground of
prescription since the complaint was filed with the DOJ within the
period of 15 years from February 19, 2014.

MALICE – Under Article 354 of the Revised Penal Code, every

defamatory imputation is presumed to be malicious, even if it is true,
if no good intention and justifiable motive for making it are shown. X
uttered to Z a defamatory and baseless statement “kabit ka ni Dr.
Santos” in front of several people. It is presumed that the intention
of X in uttering such a statement is to ruin the reputation of Z. In
sum, the defamatory imputation is presumed to be malicious.

Malice is an element of libel. However, because malice is

presumed under Article 354, the prosecution need not prove actual
malice. As long as the statement is defamatory, malice as an element
of libel is presumed to be present.

1. Complainant - Whether the complainant is a private person

or a public officer is a matter ought to be considered in deciding libel
cases. (Orillo vs. People, G.R. No. 206905, January 30, 2023)

a. Private individual - Where the offended party is a “private

individual,” the prosecution need not prove the presence of actual
malice (malice in fact). The law explicitly presumes its existence
(malice in law) from the defamatory character of the assailed
statement. For his defense, the accused must show that he has a
justifiable reason for the defamatory statement even if it was in fact
true. (Disini v. Secretary of Justice, G.R. No. 203335, February 18,
2014)

b. Public officer or public figure - Where the offended party is

a “public officer or public figure,” the prosecution must prove actual
malice. The Supreme Court in Daquer, Jr. vs. People, G.R. No.
206015, June 30, 2021 has imposed a higher standard for criminal
libel where the complainant is a public figure, particularly a public
officer. Actual malice must be proved. It is the burden of the
prosecution to prove actual malice, not the defense's to
disprove. In Guingguing v. Hon. Court of Appeals, G.R. No. 128959,
September 30, 2005, it was held that in order to justify a conviction
for criminal libel against a public figure, it must be established

97 | P a g e
beyond reasonable doubt that the libelous statements were made or
published with actual malice.

With the Daquer, Jr. case and Guingguing case, the prosecution
cannot use the presumption under Article 354 to establish malice as
an element of libel against a public officer or public figure. The
conviction of the accused for libel committed against a public officer
or public figure must be based on actual malice (malice in fact) and
not merely on presumed malice (malice in law).

3. Private life of public officer or public figure - The law

presumes malice because of the defamatory nature of the imputation.
While it is true that criticisms against public officials or public figures
are considered privileged - and thus malice is not presumed -
according to jurisprudence, the said exception does not apply where
the comment or criticism was about, or extends to the private life of
the public figure. In this case, the subject article was talking about
the private life of the character "Doling." The article talked about the
dealings of "Doling" with her neighbors, pa1iicularly how she was
abrasive with them when she amassed wealth and gained political
power. The article talked about how "Doling" instilled fear in the
community, and that none of her neighbors could go against her
excesses. The article was not making any comment against the public
life of "Doling" or her actions as a public official, i.e., as a barangay
captain. Therefore, malice could be presumed from the defamatory
nature of the article. (Lastimosa vs. People, G.R. No. 233577,
December 5, 2022)

2. Truthful or untruthful defamation - Whether the

defamation is truthful or not is a matter ought to be considered in
deciding libel cases.

If the defamatory statement against a public officer is “truthful,”

the accused will be acquitted (Article 361 of the Revised Penal Code)
unless there are no good motives and justifiable ends in publishing
defamatory statements. (Alonzo v. CA, G.R. No. 110088, February 1,
1995) The prosecution has the burden of showing that the truthful
defamatory statement against a public officer has no good motives
and justifiable ends (Flor v. People, G.R. No. 139987, March 31, 2005)
Proof of truthfulness of imputation of a function-related defamatory
act against a public officer is a defense even though he does not prove
that the imputation was published with good motives and for
justifiable ends. (Vasquez v. CA, G.R. No. 118971, September 15,
1999)

If the defamatory statement against a public officer is

“untruthful,” the accused will still be acquitted unless he knew the
defamatory statement is not true or recklessly disregarded in
knowing whether it is true or not. The prosecution has the burden of
showing (1) that the defamatory statement against a public officer is
untruthful and (2) that the accused knew the defamatory statement

98 | P a g e
is not true or recklessly disregarded in knowing whether it is true or
not. (Daquer, Jr. vs. People, G.R. No. 206015, June 30, 2021)

The Daquer case is based on the principle in New York Times

vs. Sulivan, 376 U.S. 254, where the U.S. Supreme Court said that
honest criticisms on the conduct of public officials and public figures
are insulated from libel judgments. The guarantees of freedom of
speech and press prohibit a public official or public figure from
recovering damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with actual
malice, i.e., with knowledge that it was false or with reckless
disregard of whether it was false or not.

The United States Supreme Court in New York Times went on

to introduce the "actual malice" test. Under this test, a public official
cannot recover damages for a defamatory falsehood on their official
conduct unless they prove "that the statement was made ... with
knowledge that it was false or with reckless disregard of whether it
was false or not." In our jurisdiction, this Court adopted with
approval the actual malice test and has since applied it to several
cases involving libel. (Orillo vs. People, G.R. No. 206905, January 30,
2023)

In Daquer, Jr. vs. People, G.R. No. 206015, June 30, 2021, the
accused wrote and published an article titled "KUTO NA NAIS
MAGING KALABAW SA CITY HALL" in the column "Nitpicks" where
he called the complainant as public officer "kuto na magkaroon ng
sungay habang lumalaki and kanyang ulo," "kung umasta akala mo
gago!" "baka naman inggit ang umiiral at utak tukmol na pilit niyang
hinihila yaong mga nagbibigay ng 'feathers' sa administrasyon ni
Hagedorn." While the published article is defamatory, the
prosecution failed to prove actual malice. The prosecution did not
present enough evidence that either the article is false, or that the
accused wrote the articles with reckless disregard as to its falsity.
The accused was acquitted.

In Flor v. People, G.R. No. 139987, March 31, 2005, it was held
that only false statements made with a high degree of awareness of
their probable falsity demanded by New York Times may be the
subject of civil or criminal sanctions.

In People vs. Santos and Ressa, CA-GR No. 44991, July 7, 2022,
Rappler published an article “CJ (Chief Justice Renato Corona) using
SUVs of a controversial businessman,” which imputed several crimes,
including human trafficking, murder, smuggling of illegal drugs, and
fake cigarettes, and granting of fake residence visa to Chinese
nationals, purportedly committed by Wilfredo Keng, a businessman,

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who was listed by Forbes in 2010 as the 32nd richest Filipino with a
net worth of US$100 million.

Since Wilfredo Keng is neither a public officer nor a public

figure, malice is presumed from the defamatory character of the
statements in the article.

Assuming that Wilfredo Keng is a public figure, the accused are

still liable for cyber liber because the Court of Appeals found malice
in publishing the subject article which imputed several crimes
against Wilfredo Keng.

The subject article was written, published, and republished by

the accused without verifying the truth of the allegations reported
therein. There is no showing that they took necessary actions to verify
the allegations against Keng before publishing the subject article. On
the other hand, it was established that the allegations against Keng
were false, as supported by NBI and PDEA clearances stating that he
was not involved in any of the crimes imputed against him in the
subject article.

Keng demanded from Rappler a well-balanced report that also

includes his side of the story. In fact, a Rappler’s reporter already
drafted an article that purportedly clarified the subject article and
presented Keng’s side of the story, but such an article remained
unpublished on account of the flimsy reason that Rappler had other
urgent news to attend to at that time.

Clearly, there is actual malice on the part of the accused

considering that the subject article was republished with reckless
disregard of whether it was false or not; and its retraction could have
been made, or at the very least, a clarificatory article was published
knowing that there have been some indications of falsity in the
subject article.

In Erwin Tulfo v. People, G.R. No. 161032, September 16, 2008,

the accused in his series of articles in the column “Direct Hit” of a
daily tabloid “Remate” targeted one Atty. Carlos "Ding" So of the
Bureau of Customs as being involved in criminal activities, and was
using his public position for personal gain. He called Atty. So an
embarrassment to his religion, saying "ikaw na yata ang pinakagago
at magnanakaw sa miyembro nito." He accused Atty. So of stealing
from the government with his alleged corrupt activities. And when
Atty. So filed a libel suit against him, Tulfo wrote another article,
challenging Atty. So, saying, "Nagalit itong tarantadong si Atty. So
dahil binabantayan ko siya at in-expose ang kagaguhan niya sa
Bureau of Customs. The subject articles provide no details of the acts
committed by the subject, Atty. So. They are plain and simple
baseless accusations, backed up by the word of one unnamed source.
The allegations against Atty. So were found to be false. Tulfo did not
exert effort to verify the information before publishing his articles. In
sum, Tulfo had written and published the subject articles with
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reckless disregard of whether the same were false or not. Erwin Tulfo
was convicted of libel.

In Raffy Tulfo vs People, GR. No. 187113, January 11, 2021, the
accused published a series of articles in the column “Shoot to kill” of
Abante Tonite stating that Atty. So that he is an extortionist, a corrupt
public official, and smuggler, and has illegally acquired wealth, and
that he has an affair with a married woman. From these, it can be
deduced that the impugned articles fall within the purview of
qualified privileged communications. These columns relate to Atty.
So's exercise of his official functions. His alleged actuations refer to
matters of public interest that the citizenry ought to know. Having
established the privileged nature of the Abante Tonite articles, the
burden shifts to the prosecution to prove that actual malice
exists. The prosecution is duty bound to show that the alleged
defamatory statements were made "with knowledge that it was false
or with reckless disregard of whether it was false or not." Here,
accused Tulfo's testimony on cross-examination does not show that
the allegations were false, or that they were made with reckless
disregard of ascertaining whether the statements were false or not.
His testimony that no administrative case was filed against Atty. So
does not mean that the statements in the articles were false. It is not
unusual that columnists have no personal knowledge on the material
they report. Perhaps compelled by their societal duty to maintain
good government, people with information on matters of public
interest may contact reporters and columnists to share in confidence
what they know. Columnists cannot be compelled to reveal their
sources under the law. The confidentiality of sources serves as their
protection. That accused Tulfo has never bothered obtaining Atty.
So's side of the story, as respondent insists, cannot amount to
malice. While substantiating facts does play an important role in
reporting standards, a reporter may rely on a lone source's
information, even if such information only shows one side of the
story, for as long as the reporter "does not entertain a 'high degree of
awareness of its probable falsity.'" Raffy Tulfo was acquitted of libel.

PERSON RESPONSIBLE FOR LIBEL – Any person who shall

publish, exhibit or cause the publication or exhibition of any
defamation in writing or by similar means, shall be responsible for
the same. The author or editor of a book or pamphlet, or the editor
or business manager of a daily newspaper, magazine or serial
publication, shall be responsible for the defamation contained
therein to the same extent as if he were the author thereof. (Article
360 of the Revised Penal Code)

It is the duty of the proprietor of a public paper, which may be

used for the publication of improper communications, to use
reasonable caution in the conduct of his business that no libels be
published. One who furnishes the means for carrying on the
publication of a newspaper and entrusts its management to servants
or employees whom he selects and controls may be said to cause to
be published what actually appears, and should be held responsible
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therefore, whether he was individually concerned in the publication
or not. Criminal responsibility for the acts of an agent or servant in
the course of his employment necessarily implies some degree of guilt
or delinquency on the part of the publisher. (Fermin v. People, G.R.
No. 157643, March 28, 2008

When the accused has been specifically identified as "author,

editor, or proprietor" or "printer/publisher" of the publication, there
is no requirement to prove that they had knowledge and participation
in the publication of the libelous article. Thus, a claim of absence of
participation by those persons responsible under Article 360 will not
shield them from liability. The law is clear: These persons are liable
for libel as if they were the author of the defamatory writing.
(Macasaet vs. So, G.R. No. 187230, January 11, 2021; People vs.
Santos and Ressa, CA-G.R. No. 44991, July 7, 2022)

RECKLESS IMPRUDENCE – Two (2) prosecution witnesses

testified that they heard a thud, felt the jeepney tilt, and saw a man
lying flat on the ground; thus, they concluded that the jeepney
petitioner was driving hit the man. Another prosecution witness
testified to hearing a loud thud and then hearing some passengers
inside a jeepney shout that someone got hit. The same witness also
testified that he saw a man lying on the ground near the jeepney. No
one testified as to the manner by which petitioner was driving before
he supposedly hit Jaquilmo, or of personally witnessing the jeepney
hit Jaquilmo. The prosecution was able to prove that Jaquilmo died
on the bridge, but it failed to prove beyond reasonable doubt that
petitioner's imprudence in driving the jeepney was the proximate
cause of his death. (Valencia vs. People, G.R. No. 235573, November
09, 2020)

BP BLG. 22 – It is of no moment that the subject checks were

issued as a guarantee and upon the insistence of private
complainant. What is significant is that the accused had deliberately
issued the checks in question to cover accounts and those same
checks were dishonored upon presentment, regardless of the purpose
for such issuance. The legislative intent behind the enactment of B.P.
22, as may be gathered from the statement of the bill's sponsor when
then Cabinet Bill No. 9 was introduced before the Batasan
Pambansa, is to discourage the issuance of bouncing checks, to
prevent checks from becoming "useless scraps of paper" and to
restore respectability to checks, all without distinction as to the
purpose of the issuance of the checks. Said legislative intent is made
all the more certain when it is considered that while the original text
of the bill had contained a proviso excluding from the law's coverage
a check issued as a mere guarantee, the final version of the bill as
approved and enacted deleted the aforementioned qualifying proviso
deliberately to make the enforcement of the act more effective. It is,
therefore, clear that the real intention of the framers of B.P. 22 is to
make the mere act of issuing a worthless check malum
prohibitum and, thus, punishable under such law. (Ongkingco vs.
Sugiyama and People, G.R. No. 217787, September 18, 2019)
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 What sets apart the crime of estafa from the other offense of this
nature (i.e., Batas Pambansa Bilang 22) is the element of deceit. To
constitute estafa, deceit must be the efficient cause of the
defraudation, such that the issuance of the check should be the
means to obtain money or property from the payer resulting to the
latter's damage. In other words, the issuance of the check must have
been the inducement for the surrender by the party deceived of his
money or property. (Abalos vs. People, G.R. No. 221836, August 14,
2019)

There is no showing whatsoever that accused had knowledge of

the insufficiency of funds of the check he endorsed to private
complainant. Admittedly, the checks received by private complainant
were checks issued and paid to accused by a certain Ham. Upon
notice that the subject checks were dishonored, accused immediately
searched for Ham but the same proved to be futile considering that
the latter already left the country. The business relationship between
private complainant and accused is already 16-year, and the former
had the practice of accepting the checks of clients of the latter, even
if he did not personally know them. Thus, there is no need for the
accused to assure the complainant that the subject checks would be
sufficiently funded upon maturity before accepting the same. Clearly,
private complainant was not deceived to accept the subject checks
but did so out of a standard procedure which he and accused
developed over the years. Accused is acquitted of estafa (Juaquico vs.
People, G.R. No. 223998, March 05, 2018)

CHILD ABUSE – Section 10 (a) of RA No. 7610 punishes four

distinct acts, to wit: (a) child abuse, (b) child cruelty, (c) child
exploitation and (d) being responsible for conditions prejudicial to the
child's development. Accused can be convicted under Section 10 (a)
if he commits any of the four acts therein. The prosecution need not
prove that the acts of child abuse, child cruelty and child exploitation
have resulted in the prejudice of the child because an act prejudicial
to the development of the child is different from the former acts.
(Patulot vs. People, G.R. No. 235071, January 7, 2019)

Section 10(a) refers to child abuse or cruelty not constituting a

crime punishable under Sections 5 to 9 of R.A. No. 7610 such as
sexual abuse or child trafficking (People v. Rayon, G.R. No. 194236,
January 30, 2013) and a felony under the Revised Penal Code such
as parental indifference. (De Guzman v. Perez, G.R. No. 156013, July
25, 2006) Section 10 (a) of RA No. 7610 is a "catch-all" provision that
penalizes other acts of child abuse not specifically addressed by other
provisions of RA No. 7610 and the Revised Penal Code. (Talocod vs.
People, G.R. No. 250671, October 07, 2020)

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 Section 5 (b) of R.A. No. 7610 specifically applies in case of
sexual abuse committed against children; whereas, Section 10 (a)
thereof punishes other forms of child abuse not covered by other
provisions of R.A. No. 7610. Parenthetically, the offense will not fall
under Section 10 (a) of R.A. No. 7610 if the same is specifically
penalized by a particular provision of the law such as Section 5 (b)
for sexual abuse. (Carlo vs. AAA, G.R. No. 243034, June 28, 2021;
Joaquin vs. People, G.R. No. 244570, February 17, 2021)

In Brinas vs. People, G.R. No. 254005, June 23, 2021, Section
10 (a) of RA No. 7610 is clear in that it punishes acts of child abuse
which are "not covered by the Revised Penal Code." Hence, on this
point, Briñas is correct — she cannot be convicted of grave oral
defamation under the RPC in relation to Section 10(a) of R.A. 7610.
From the plain language of Section 10(a), the acts punished under it
and those punished under the RPC are mutually exclusive. Acts
which are already covered by the RPC are excluded from the coverage
of Section 10(a).

In Jumaquio v. Villarosa, G.R. No. 165924, January 19, 2009,

the accused was charged with physical injuries in relation to RA No.
7610. Though the crime was erroneously designated, the averments
in the informations clearly make out the offense of child abuse under
Section 10(a) of RA No. 7610. In the information, the accused was
charged with child abuse by inflicting physical injuries that debase,
demean, and degrade the dignity of the children as human beings.
What controls is not the title of the information or the designation of
the offense but the actual facts recited therein. Moreover, an
information is not duplicitous if it charges several related acts, all of
which constitute a single offense, although the acts may in
themselves be distinct offenses. The specific acts are only alleged to
complete the narration of facts.

In Jumaquio v. Villarosa, supra — The accused was charged with

grave threat in relation to RA No. 7610. The information alleged that
the accused threatened a 13-year-old boy by uttering “Putang ina
mong bata ka namumuro ka na sa akin at susunugin ko yong pamilya
mo” and that the said acts debase, degrade, and demean his dignity.
Though the crime was erroneously designated, the averments in the
informations clearly make out the offense of child abuse under
Section 10(a) of RA No. 7610.

In sum, if the offender threatened to kill a child or inflicted

injuries on him on the spur of the moment without intent to degrade,
debase or demean him, the former should be charged with grave
threat or physical injuries under the Revised Penal Code without
correlating it with RA No. 7610. On the other hand, if the offender
threatened to kill a child or inflicted injuries on him with intent to
degrade, debase or demean him, the former should be charged with
child abuse under Section 10 (a) of RA No. 7610 without correlating
it with the Revised Penal Code.

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 Degrading, demeaning or debasing the dignity of the child
– In De Vera vs. People, G.R. No. 246231, January 20, 2021, the act
of masturbating in the presence of the minor is considered lascivious
conduct and constitutes psychological abuse on the minor victim or
an act that debases, degrades or demeans the intrinsic worth of the
victim. The act of masturbation then falls within the scope of Section
10 (a) of R.A. No. 7610 and not the RPC. Coercion and influence is
not an element of child abuse under this provision.

In Dela Cruz vs. People, G.R. No. 245516, June 14, 2021, the
accused courted BBB, and in another occasion, touched her thighs
in front of her classmates, while also ordering CCC and her boyfriend
to kiss in front of him. The acts debase, degrade, and demean their
intrinsic worth and dignity as children. These acts are manifestly
prejudicial to their normal development, in light of their mental
capacity and emotional maturity as minors. The accused is liable for
child abuse under Section 10 (a) of RA No. 7610.

Bongalon principle - In Bongalon v. People, G.R. No. 169533,

March 20, 2013, accused saw the victim and his companions hurting
his minor daughters. Angered, accused struck minor-victim at the
back with his hand and slapped his face. Since the accused
committed the act at the spur of the moment, they are perpetrated
without intent to degrade the dignity of the victim. Without such
intent, the crime committed is not child abuse under R.A. No. 7610
but merely slight physical injuries.

This specific intent to degrade the dignity of the victim was

likewise found missing in Calaoagan v. People, G.R. No. 222974,
March 20, 2019 wherein the accused inflicted injuries in the heat of
an argument, during an altercation between the accused's group and
that of the minor as they met on the street without any prior
confrontation. Accused was convicted of slight physical injuries.

In Jabalde v. People, G.R. No. 195224, June 15, 2016, the

accused was informed that her daughter's head was punctured, and
whom she thought was already dead. The accused slapped, struck,
and choked a minor as a result of the former's emotional rage.
Absence of any intention to debase, degrade or demean the dignity of
the child victim, the accused's act was merely slight physical injuries.

In Escolano vs. People, G.R. No. 226991, December 10, 2018,

complainants, who are minors, threw ketchup sachets against the
daughter of the accused. But it was the accused, who was hit by the
sachets twice. Accused exclaimed, "Putang ina ninyo, gago kayo, wala
kayong pinag-aralan, wala kayong utak, subukan ninyong bumaba
dito, pakakawalan ko ang aso ko, pakakagat ko kayo sa aso ko."

Uttering “putang ina” to the minors in the heat of anger is not

child abuse. The expression "putang ina mo" is a common enough
utterance in the dialect that is often employed, not really to slander
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but rather to express anger or displeasure. In fact, more often, it is
just an expletive that punctuates one’s expression of profanity.

Threatening to release her dog to chase and bite the minors

made in the heat of anger is not child abuse. Accused merely
intended that they stop their rude behavior. Absence of any intention
to degrade the dignity of minors, accused is only liable for other light
threats.

The statement "putang ina mo" and making hacking gestures

with a bolo, which are directed against the mother of two children,
are not constitutive of child abuse involving degrading the dignity of
a child. Since the threatening acts are not directed against the
children, intent to degrade, debase or demean their dignity is not
established.

In Talocod vs. People, G.R. No. 250671, October 07, 2020, as

his playmates were bothering passing motorists by throwing sand
and gravel on the road, AAA (11-years of age) berated and told them
to stop. Upset by AAA's reprimand, one of the children, reported the
incident to her mother, the accused. The accused immediately
confronted AAA about his behavior, and while pointing a finger at the
latter, furiously shouted: "Huwag mong pansinin yan. At putang ina
yan. Mga walang kwenta yan. Mana-mana lang yan!" Accused is not
criminally liable for child abuse. There is no showing that the
utterance was specifically intended to debase, degrade, or demean
AAA's intrinsic worth and dignity as a human being. To the contrary,
it appears that accused's harsh utterances were brought about by
the spur of the moment, particularly, out of her anger and annoyance
at AAA's reprimand of her child.

In Brinas vs. People, G.R. No. 254005, June 23, 2021, the
Supreme Court affirmed the principles in Bongalon case, Jabalde
case, Calaoagan case, Talocod case, and Escolano case.

In Brinas vs. People, accused, a directress of Montessori school,

uttered "pinakamalalandi, pinakamalilibog, pinakamahadera at
hindot, Mga putang ina kayo” against two minor students. Accused’
acts were only done in the heat of anger, made after she had just
learned that the complainants had deceivingly used her daughter's
name to send a text message to another student, in what accused
thought was part of a bigger and harmful scheme against the student
body. It appears, thus, that accused’s acts were fueled by her anger
and frustration at the complainants' mischief which caused distress
not only to her and her daughter but also to another student and
parent. The accused was acquitted of child abuse for failure to prove
intent to degrade the complainants.

In Bongalon case and Jabalde case, the accused were convicted

of slight physical injuries instead of child abuse. In Escolano case,
accused was convicted of other light threats instead of child abuse.

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In Talocod case, and Brinas case, the accused were not held liable
for child abuse or any other crime.

The Bongalon principle is inapplicable: (1) if the accused did not

assault a child in the heat of anger or as a spontaneous reaction to
his misbehavior; or (2) if the child suffered severe injury or serious
bodily harm, lacerations, fractured bones, burns, or internal injuries.

1. Not in the heat of anger - In Delos Santos vs. People, G.R.

No. 227581, January 15, 2020, AAA, a minor and Daluro were on
their way to her house when the accused and his group confronted
them. Bob, brother of the accused, said "nag-iinit na ako," as he
wanted to punch Daluro. Bob attempted to hit Daluro with a rock,
but AAA apologized to prevent a commotion. Accused attempted to
punch Daluro, but he dodged it and AAA was hit on the right cheek
instead. Bob punched AAA on the chest causing her to hit a wall.
AAA asked companions of accused to call her mother for help, but
Bob interrupted and said "tama lang yan sa inyo pagtripan dahil
dinemanda n'yo kami." Accused hurled invectives at AAA, who was
calling her mother on her way to her house with Daluro. The
Supreme Court finds the Bongalon case inapplicable and convicted
the accused of child abuse. The accosting and laying of hands are
deliberately intended by accused and his group. The word "pagtripan"
signified an intention to debase or degrade that did not result from
an unexpected event. The acts of accused were offshoots of an intent
to take revenge arising from the conflict existing between his mother
and AAA's mother. Accused did not lose his self-control and the acts
were not done at the spur of the moment.

In Torres vs. People, G.R. No. 206627, January 18, 2017, in the
middle of argument in a barangay conciliation proceeding, AAA
suddenly interjected that accused damaged his uncle’s multicab and
accused him of stealing his uncle’s fish nets. Accused told AAA not
to pry in the affairs of adults. He warned AAA that he would whip
him if he did not stop. However, AAA refused to keep silent and
continued his accusation. Infuriated with AAA’s meddling, accused
whipped AAA on the neck using a wet t-shirt. Accused continued to
hit AAA causing the latter to fall down from the stairs. Whipping AAA
on the neck with a wet t-shirt is an act that debases, degrades, and
demeans the intrinsic worth and dignity of a child. It is a form of
cruelty. Being smacked several times in a public place is a
humiliating and traumatizing experience for all persons regardless of
age. Accused, as an adult, should have exercised restraint and self-
control rather than retaliate against a 14-year-old child.

In Brinas vs. People, G.R. No. 254005, June 23, 2021, the
Supreme Court affirmed the principle the Torres case.

2. Severe injury, serious bodily harm, lacerations, fractured

bones, burns, internal injuries - In Patulot vs. People, G.R. No.
235071, January 7, 2019, throwing boiling cooking oil, which
directed against the mother of a baby and 3-year-old child, which
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consequently burned the faces and skin of the minors, is not
constitutive of child abuse involving degrading the dignity of a child.
Since throwing boiling oil is not directed against the children, intent
to degrade, debase or demean their dignity is not established.
However, the accused is still liable of child abuse involving the
infliction of serious physical injury.

Section 10 (a) of RA No. 7610 punishes child abuse. There are

several crimes of child abuse under Section 3 (b) thereof, the two of
which are psychological and physical abuse and any act by deeds or
words which debases, degrades or demeans the intrinsic worth and
dignity of a child as a human being. Child abuse involving debasing,
demeaning or degrading a child under Section 3 (b) (2) is different
from child abuse involving psychological and physical abuse under
Section 3 (b) (1). Under the implementing rules, “physical injury”
includes lacerations, fractured bones, burns, internal injuries, severe
injury or serious bodily harm suffered by a child.

In the case Bongalon, the crime alleged in the information is

child abuse involving debasing, demeaning or degrading a child
under Section 3 (b) (2). Hence, for failure to prove intent to debase,
demean or degrade the complaint as a child, the accused was only
convicted of slight physical injuries. In the case of Patulot, the
information does not allege that the accused debased, demeaned or
degraded the complainants as children. The crimes alleged in the two
informations are child abuses involving burning under Section 3 (b)
(1). Hence, even without intent to degrade, debase or demean a child,
the accused was convicted of two counts of child abuse.

In Bantang vs. People, G.R. No. 241500, December 7, 2022, the

information does not allege that the accused debased, demeaned or
degraded the complainants as children. The information charged the
accused for slight physical injuries for and alleged that the accused
attacked, assaulted and employed personal violence against minor.
Accused was convicted of child abuse. It was held that the specific
intent to debase, degrade or demean the intrinsic worth and dignity
of the child is not an indispensable element in all forms of violation
of Section l0(a) of RA No. 7610. This specific intent becomes relevant
only in child abuse when when the act is described in the Information
as one that debases, degrades or demeans the child's intrinsic worth
and dignity as a human being.

In Bantang vs. People, supra the accused was charged of slight

physical injuries under the Revised Penal Code. However, the
Congressional deliberation showed that the intention in enacting RA
No. 7610 is to protect children and provide stronger deterrence
against child abuser by prescribing higher penalty for child abuse.
Since Section 10 of RA No. 7610 prescribes a heavier penalty for child
abuse compared to slight physical injuries under the Revised Penal
Code, the Supreme Court convicted the accused of child abuse.

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 Disciplinary acts - In Lucido v. People, G.R. No. 217764,
August 7, 2017, the accused, who was a neighbor of the minor's
family, was entrusted with the custody of the minor upon the
accused's request as the latter was living alone. While with the
accused, the minor suffered physical abuse through repeated
strangulation, beating, and pinching by the former, causing the child
to limp. The accused interposed the defense that her actuations were
merely intended to discipline the minor. The Court rejected the
defense, noting that the abusive acts of the accused were extreme
measures of punishment not commensurate with the discipline of an
eight-year-old child.

No provision in the Family Code prohibits the infliction of corporal

punishment upon a child by parents. However, under Section 2(c) of
implementing rules of RA No. 7610, discipline administered by a
parent or legal guardian to a child does not constitute cruelty
provided it is reasonable in manner and moderate in degree and does
not constitute psychological injury or lacerations, fractured bones,
burns, internal injuries, severe injury or serious bodily harm.

In Rosaldes v. People, G.R. No. 173988, October 8, 2014 — The

victim, a 7-year-old student accidentally bumped the knee of the
accused, his teacher, who was then asleep on a bamboo sofa. Roused
from sleep, she asked him to apologize to her. When he did not obey,
she went to him and pinched him on his thigh. Then, she held him
up by his armpits and pushed him to the floor. As he fell, his body
hit a desk. As a result, he lost consciousness. She proceeded to pick
him up by his ears and repeatedly slammed him down on the floor.
Article 233 of the Family Code prohibits the infliction of corporal
punishment by teachers. A schoolteacher in employing unnecessary
violence on her minor student, who even fainted, is liable for child
abuse under RA No. 7610.

In Brinas vs. People, G.R. No. 254005, June 23, 2021, the
Supreme Court affirmed the principle in the Rosaldes case, and the
Lucido case.

However, if the disciplinary punishment is not serious, such

circumstance may indicate a lack of intent to degrade, demean or
debase the child. Hence, the accused is not liable for child abuse not
because corporal punishment is a defense, but by reason of lack of
intent to degrade, demean or debase the complainant as a child.

In People vs. Javarez, G.R. No. 248729, September 03, 2020,

the accused, a teacher, was not shown to have intended to debase,
degrade, or demean BBB's intrinsic worth and dignity as a human
being. While hitting BBB with a broomstick is reprehensible, the
accused did so only to stop BBB and another classmate from fighting
over pop rice. Thus, he is liable for slight physical injuries, and not
child abuse. As for AAA, records show that in his effort to stop his
two (2) other students from fighting over food during his afternoon
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class, the accused got to push AAA, one of the onlookers, as a result
of which, AAA fell on the floor with his face down. Surely, the accused
did not intend to maltreat nor debase AAA's dignity as a human
being. He was in all honesty simply trying to stop his students from
fighting. He cannot, therefore, be held liable for child abuse. Neither
is he liable for slight physical injuries. Accused as a teacher was
merely trying to stop two of his students from fighting over food
during the class. AAA, a mere onlooker, was not involved in the fight.
There was no evidence showing the accused ever intended to harm
him in any way. It was possible though that as an onlooker, AAA
stood too close to the protagonists such that when the accused
stepped in to disengage the protagonists, necessarily AAA was also
pushed back, and as result, fell to the ground.

Vasectomy - Doctor performed vasectomy on Larry, a

mentally-retarded, whose mental age is 8 years, with consent of his
guardian. Complaint for child abuse involving cruelty was filed
against the doctor and the consenting guardian since Larry for being
a mentally retarded is not capable of giving consent to vasectomy.
Since the case was dismissed on technical ground, the Supreme
Court in Versoza vs. People, G.R. No. 184535, September 03, 2019
did not tackle the issue on whether conducting vasectomy on a
mentally retarded is a violation of RA No. 7610. However, individual
Justices presented their views on the matter.

Justice Coaguioa opined that there is no shred of evidence

offered to show that the guardians and doctor were impelled by any
ill-motive in facilitating the vasectomy procedure. No specific intent
to debase, degrade or demean intrinsic worth Larry as a human being
had been convincingly shown, thereby negating respondents'
criminal liability under Section 10(a) of RA 7610. Justice Peralta
agreed with this view. According to Justice Jardeleza, RA 7610 does
not criminalize vasectomy. Justice Reyes stated that Larry's
guardians have the right to decide what is best for the child they took
in and raised as their own; and such decision is clothed with the
presumption of good faith. The right of parents or guardians to
provide consent for medical procedures on behalf of intellectually
disabled persons who are unable to provide such consent is part and
parcel of their parental authority over their children or wards.

SEXUAL ABUSE – Children in EPSOSA are those exploited in

prostitution or subject to other sexual abuse. (People vs. Tulugan,
G.R. No. 227363, March 12, 2019)

Having sexual intercourse or lascivious conduct with a child

constitutes child prostitution if committed for money, profit, or any
other consideration (People vs. Jalosjos, G.R. Nos. 132875-
76, November 16, 2001); or sexual abuse is committed under
coercion or influence of any adult, syndicate or group. In child
prostitution, the victim is called child exploited in prostitution while
in sexual abuse the victim is called child subjected to other abuse
(Section 5 of RA No 7610). Coercion is either physical or
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psychological. Taking advantage of ascendency as a swimming
instructor over student is psychological coercion (People vs. Larin,
G.R. No. 128777, October, 7 1998).

Child vs. child - Accused (15 years of age) inserting his finger
into vagina of complainant (11 years old). The crime committed is
sexual assault under the RPC. Section 5 of RA No. 7610 as amended
by RA No. 11648 prescribes the penalty of reclusion temporal in its
medium period if the lascivious conduct is committed against a child
subject to sexual abuse, who is under 16 years of age. RA No. 7610
is not applicable since the accused is also a minor. RA 7610 was
enacted in order to protect children from abuse, exploitation, and
discrimination by adults and not by persons who are also children
themselves. Section 5 of RA 7610 expressly states that a child is
deemed to be sexually abused when coerced or influenced by
an adult, syndicate, or group. (BBB vs. People, G.R. No. 249307,
August 27, 2020)

Third person in sexual abuse – In coercion or influence as an

element of sexual abuse is exerted against child is clearly exerted
NOT by the offender who is liable for sexual abuse or child
prostitution under Section 5 (b) of RA No. 7610, but by the adult
(syndicate, or group), who is liable for promoting, facilitating or
inducing child prostitution under Section 5 (a) thereof. (People vs.
Tulugan, G.R. No. 227363, March 12, 2019) This view in the Tulugan
case is not controlling. Several cases affirmed the convictions for
sexual abuses of the accused, who themselves employed coercion or
influence in order for the minor victims to submit themselves to
lascivious conduct. (See: Rarang vs. People, G.R. No. 226760, August
14, 2019, Satur vs. People, G.R. No. 245375, June 19, 2019, People
vs. Veron, G.R. No. 239028, April 10, 2019; People vs. LCU, G.R. No.
234319, April 10, 2019, and De Joan vs. People, G.R. No. 232957,
September 25, 2019)

In Quimvel vs. People, G.R. No. 214497, April 18, 2017,

participation of a third person is not essential in sexual abuse. It is
immaterial whether or not the accused himself employed the coercion
or influence to subdue the will of the child for the latter to submit to
his sexual advances for him to be convicted of sexual abuse. Sexual
abuse can be committed by "any adult, syndicate or group" without
qualification.

Sex with a child per se is not a crime – There are several cases
where sex with a child constitutes crime. Sexual intercourse with a
child under 16 years of age is statutory rape. Influencing the child in
having sex constitutes sexual abuse. In Caballo v. People, G.R. No.
198732, June 10, 2013, the assurance of love, guarantee that she
would not get pregnant by using the withdrawal method and the
promise of marriage were classified as psychological coercion and
influence within the purview of Section 5 of R.A. No. 7610 used by
the accused to convince his minor girlfriend to have sex with him.
Hence, accused is guilty of sexual abuse.
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 However, sex with a child per se is not a crime. What is
punishable under R.A. No. 7610 is sexual abuse with a child. Sexual
abuse is more than a mere sexual intercourse or lascivious conduct
with a child. (see: People v. Hon. Court of Appeals, G.R. No. 171863,
August 20, 2008)

Consent is immaterial in cases involving sexual abuse under

R.A. No. 7610 where the offended party is below 12 years of age.
However, consent is material when the offended party is a child, who
is 12 years old or above. In such a case, consent of the child is a
defense in cases involving sexual abuse. Consent as a defense is
either express or implied. Consent is implied if the prosecution failed
to prove that the child had sex with accused due to money, profit or
consideration, or coercion or influence. (People vs. Tulugan, G.R. No.
227363, March 12, 2019)

Under the Civil Code, all individuals under 18 years of age have
no capacity to act or the power to do acts with legal effects. The law
limits, to varying degrees, the capacity of an individual to give
consent. While in general, under the civil law concept of consent, in
relation to capacity to act, the same concept cannot be applied to
consent within the context of sexual predation. Under civil law, the
concept of "capacity to act" under civil law limits the capacity to give
a valid consent which generally refers to the meeting of the offer and
the acceptance upon the thing and the case which are to constitute
the contract. Capacity to act under civil law cannot be equated to
capacity to give sexual consent for individuals between 12 years old
and below 18 years old. Sexual consent does not involve any
obligation within the context of civil law and instead refers to a
private act or sexual activity that may be covered by the Revised Penal
Code and R.A. 7610. (People vs. Tulugan, supra)

The age of sexual consent in the Philippines is 12 years

old. According to United Nations International Children's Emergency
Fund, this is "one of the lowest globally and the lowest in the Asia-
Pacific region." The average age of consent is 16 years old. The age of
majority, however, is 18 years old. Minors, or those below 18, have
no capacity to enter into any contracts or marriage. Yet, strictly
reading the provisions of the Revised Penal Code, any minor above
12 years old may validly consent to sexual intercourse and lascivious
conduct with an adult. (Concurring opinion of Justice Leonen in
People vs. Tulugan, supra)

In Bangayan vs. People, G.R. No. 235610, September 16, 2020,

it is now clear that consent is a material factor in determining the
guilt of accused, who is charged with sexual abuse against a child
whose age is 12 years and one month. In Monroy (G.R. No. 235799,
July 29, 2019), then 28-year-old accused was charged with violation
of Section 5 (b) of R.A. 7610 for inserting his penis into the vagina of
a 14-year-old. The Court acquitted the accused on reasonable doubt,
finding that the sexual intercourse that transpired between the
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accused and the 14-year-old was consensual and that the case
against the accused is based merely on trumped-up allegations
meant as retaliation. In Monroy, the accused was 14 years older than
victim yet the Court found that she was not subjected to other sexual
abuse due to the coercion of an adult as they were in a relationship.
Similarly, in the present case, the accused was more or less 15 years
older than AAA. While difference in age may be an indication of
coercion and intimidation and negates the presence of sexual
consent, this should not be blindly applied to all instances of alleged
sexual abuse cases. In this case, there are special circumstances
that reveal the presence consent of AAA. The sexual congress
between accused and AAA was not limited to just one incident. They
were in a relationship even after the incident alleged in the
Information and had even produced two (2) children. It is clear that
AAA, who is capable to discern good from evil, give consent to the
sexual act. Accused was acquitted.

While cohabitation between the accused and a child, who is 16

years or above, is evidence that their sexual intercourse is
consensual, which is a defense in sexual abuse under RA No. 7610,
the latter may still be held liable for the crime under RA No. 11596,
which punished an adult for cohabiting with a child outside the
wedlock. In the crime of cohabiting with a child, consent of the victim
to sexual intercourse with the offender is not a defense.

New designation of sexual abuse - Since time immemorial the

Supreme Court is using the title of a penal provision, and not a word
in the body to describe a crime. For example, the crime under Article
249 of the Revised Penal Code is called homicide since the title of this
provision is homicide. Although the word “kill” is found in the body
of this provision, there is no occasion where the crime under Article
249 is described as “killing.”

The title of Article 5 of RA No. 7610 is “child prostitution and

other sexual abuse.” However, the word “lascivious conduct” is found
in the body of Section 5 (b) of RA No. 7610. In People vs. Larin, G.R.
No. 128777, October, 7 1998 and other cases, the Supreme Court
described the crime involving lascivious conduct under Section 5 (b)
of RA No. 7610 as sexual abuse. It is submitted that this is the correct
name of the crime. However, in the case of the Tulugan case, proper
nomenclature of the offense involving lascivious conduct under
Section 5 (b) is now “lascivious conduct” under RA No. 7610. (People
vs. XXX, G.R. No. 226467, October 17, 2018; People Vergara, G.R.
No. 242477, September 2, 2019) For purpose of the bar examination,
the Tulugan case should be followed.

SEXUAL ABUSE AND FELONY - If the acts constitute sexual

abuse, and rape, sexual assault, or acts of lasciviousness, there are
two rules to be considered. Under the first rule, if the child subjected
to sexual abuse is 16 years of age or above, the offender shall be
prosecuted under the Revised Penal Code or RA No. 7610. Under the
second rule, if the child subjected to sexual abuse is under 16 years
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of age, the offender shall be prosecuted under the Revised Penal
Code, or under the Revised Penal Code in relation to RA No. 7610.

The first rule - If the victim is 16 years of age or above, and the
acts constitute sexual abuse, and rape, sexual assault, or acts of
lasciviousness, the offender shall be prosecuted either under the
Revised Penal Code or RA No. 7610 (People vs. Abay, G.R. No.
177752, February 24, 2009), whichever prescribes a graver penalty.
(Dimakuta v. People, G.R. No. 206513, October 20, 2015; People vs.
Tulugan, G.R. No. 227363, March 12, 2019) The higher penalty
under either law must be applied for the minor victim’s benefit.
Imposing a lower penalty for the offender is undeniably unfair to the
child victim. (People v. Pusing, G.R. No. 208009, July 11, 2016).

1. Special complex crime - If the victim is 16 years of age or

above, and the acts constitute sexual abuse, and a special complex
crime of rape or sexual assault with homicide, the offender shall be
prosecuted under the Revised Penal Code. The penalty under the
Revised Penal Code for special complex crime of rape or sexual
assault with homicide is graver than that prescribes for sexual abuse
under RA No. 7610.

2. Rape - If the victim is 16 years of age or above, and the acts

constitute sexual abuse, and rape, the offender shall be prosecuted
under the Revised Penal Code. The penalty under the Revised Penal
Code for rape is graver than that prescribed for sexual abuse under
RA No. 7610.

Rape is severely penalized because it may lead to unwanted

procreation; or to paraphrase the words of the legislators, it will put
an outsider into the woman who would bear a child, or to the family,
if she is married. (People vs. Tulugan, supra) Where a minor is raped,
the Revised Penal Code ought to prevail over RA 7610. (People vs.
Ejercito, supra) Moreover, RA No. 8353, which amended the Revised
Penal Code on rape, is the more recent and special penal legislation
and this law strengthens the policies of RA No. 7610. (People vs.
Briones, G.R. No. 240217, June 23, 2020; (People vs. ZZZ, G.R. No.
232329, April 28, 2021, Hernando)

The penalty for sexual abuse is reclusion temporal in its

medium period to reclusion perpetua, while the penalty for rape is
reclusion perpetua.

3. Sexual abuse or lascivious conduct - If the victim is 16

years of age or above, and the acts constitute sexual abuse, and
sexual assault or acts of lasciviousness, the offender shall be
prosecuted under RA No. 7610. The penalty for sexual abuse (now
lascivious conduct) under RA No. 7610 is graver than that for sexual
assault or acts of lasciviousness under the Revised Penal Code.

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 The penalty for sexual abuse is reclusion temporal in its
medium period to reclusion perpetua, while the penalty for sexual
assault is prision mayor and that for acts of lasciviousness is prision
correccional.

The second rule - Under Section 5 (b) of RA No. 7610 as

amended by RA No. 11648, when the victim (child exploited in
prostitution or subjected to sexual abuse) is under 16 years of age,
the perpetrators shall be prosecuted for rape, or lascivious conduct,
as the case may be: Provided, That the penalty for lascivious conduct
when the victim is under 16 years of age shall be reclusion temporal
in its medium period. An idiot, imbecile, feebleminded or borderline
intelligent person, whose mental age is under 16 years, is covered by
this rule under Section 5 (b) of RA No. 7610. (People v. Pusing, supra;
People vs. Tulugan, supra)

1. Rape - If the victim is under 16 years of age, and the acts

constitute sexual abuse, and statutory rape, the offender shall be
prosecuted under the Revised Penal Code. The penalty under the
Revised Penal Code for statutory rape is graver than that prescribed
for sexual abuse under RA No. 7610. Moreover, under Section 5 (b)
of RA No. 7610, when the child subjected to sexual abuse is under
16 years of age, the perpetrators shall be prosecuted for statutory
rape.

Sexual abuse under RA No. 7610 is separate and distinct from

statutory rape under the Revised Penal Code. Aside from being
dissimilar in the sense that the former is an offense under a special
law, while the latter is a felony under the Code, they also have
different elements. Nevertheless, sexual intercourse with a victim
who is under 16 years of age or is mentally retarded is always
statutory rape, as Section 5(b) of R.A. No. 7610 expressly states that
the perpetrator will be prosecuted under the Revised Penal Code.
(People vs. Tulugan, supra)

Even if the girl who is under 16 years old or is mentally retarded

consents to the sexual intercourse, it is always a crime of statutory
rape under the Revised Penal Code, and the offender should no longer
be held liable under R.A. No. 7610. For example, a nine (9)-year-old
girl was sold by a pimp to a customer, the crime committed by the
latter if he commits sexual intercourse with the girl is still statutory
rape (and not child prostitution), because even if the girl consented,
the law presumes that she is incapable of giving a rational consent.
(People vs. Tulugan, supra)

2. Acts of lasciviousness - If the victim is under 16 years of

age, and the acts constitute sexual abuse, and acts of lasciviousness,
the offender shall be prosecuted under the Revised Penal Code with
the penalty of reclusion in its medium period under RA No. 7610.
Under Section 5 (b) of RA No. 7610, when the child subjected to
sexual abuse is under 16 years of age, the perpetrators shall be
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prosecuted for lascivious conduct, Provided, That the penalty for
lascivious conduct when the victim is under 16 years of age shall be
reclusion temporal in its medium period. (People vs. Molejon, G.R.
No. 208091, April 23, 2018; Granton vs. People, G.R. No. 226045,
October 10, 2018; Francisco vs. People, G.R. No. 241452, March 25,
2019; People vs. ZZZ, G.R. No. 232500, July 28, 2020) Acts of
lasciviousness is within the contemplation of the words “lascivious
conduct” in Section 5 of RA No. 8710. Thus, the proper nomenclature
of this crime is acts of lasciviousness under the Revised Penal Code
in relation to RA No. 7610. (People vs. Tulugan, supra; People vs.
XXX, G.R. No. 233867, February 28, 2022, Hernando)

To apply the penalty of reclusion temporal in its medium period

pursuant to the second proviso in Section 5 (b) of RA No. 7610, the
requisites of acts of lasciviousness must be met in addition to the
requisites for sexual abuse or child prostitution. (Quimvel v. People,
supra; Ramilo vs. People, G.R. No. 234841, June 3, 2019; People vs.
Basa, G.R. No. 237349, February 27, 2019) If minority as an element
of sexual abuse is not established, the accused will be convicted of
acts of lasciviousness under RPC without correlating it with RA No.
7610. (XXX vs. People, G.R. No. 243151. September 2, 2019)

The accused is charged of acts of lasciviousness against a child,

who is under 16 years of age. The information alleged “force and
intimidation,” which is an element of acts of lasciviousness under the
Revised Penal Code but it does not aver "coercion or influence,” which
is an element of sexual abuse under RA No. 7610. But it was ruled
that the term "coercion and influence" is broad enough to cover "force
and intimidation” as alleged in the information. Committing
lascivious conduct against an under-16-year-old child is statutory
acts of lasciviousness. Committing lascivious conduct against a child
under coercion or influence is sexual abuse. Since the elements of
acts of lasciviousness and those of sexual abuse are proven, the
accused is convicted of acts of lasciviousness under RPC in relation
to RA No. 7610. (Quimvel v. People, supra)

3. Simple sexual assault - If the victim is under 16 years of

age, and the acts constitute sexual abuse, and sexual assault, the
offender shall be prosecuted for sexual assault under the Revised
Penal Code with the penalty of reclusion in its medium period under
RA No. 7610. Under Section 5 (b) of RA No. 7610, when the child
subjected to sexual abuse is under 16 years of age, the perpetrators
shall be prosecuted for lascivious conduct under the Revised Penal
Code, Provided, That the penalty for lascivious conduct when the
victim is under 16 years of age shall be reclusion temporal in its
medium period. Sexual assault shall be considered as within the
contemplation of the word “lascivious conduct” in Section 5 (b) of RA
No. 7610. In this situation, the crime should be called “sexual
assault” under the Revised Penal Code in relation to RA No. 7610.
(People vs. Tulugan, supra; Ramilo vs. People, G.R. No. 234841, June
3, 2019; People vs. XXX, G.R. No. 230981, July 15, 2020; People vs.
Pueyo. G.R. No. 192327, February 26, 2020, Hernando)

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 If the accused committed sexual assault against a child
exploited in prostitution or sexual abuse, who is under 16 years of
age or mentally retarded, the court will impose reclusion temporal in
its medium under Section 5 (b) of RA No. 7610 for lascivious conduct
and not the penalty of prision mayor for sexual assault under Article
266-B of Revised Penal Code as amended by RA No. 8353 on the
following reasons:

1. To impose the lighter penalty under the Revised Penal Code

is unfair to the victim. To prevent unfairness, the court must impose
the graver penalty under R.A. No. 7610. (People v. Chingh, G.R. No.
178323, March 16, 2011)

2. It was not the intention of Congress in subsequently enacting

RA No. 8353 on rape through sexual assault to disallow the
applicability of RA No. 7610 to sexual abuses committed to children.
Despite the passage of RA No. 8353, R.A. No. 7610 is still good law,
which must be applied when the victims are children. (People v.
Chingh, supra)

3. R.A. No. 7610 is a special law that should clearly prevail over
R.A. 8353, which is a mere general law amending the Revised Penal
Code. (Granton vs. People, G.R. No. 226045, October 10, 2018;
Ricalde v. People, G.R. No. 211002, January 21, 2015, People vs.
Adajar, G.R. No. 231306, June 17, 2019; Miranda vs. People, G.R.
No. 232192, June 22, 2020; People vs. Sumayod, G.R. No. 230626,
March 09, 2020)

In People v. Chingh, G.R. No. 178323, March 16, 2011, the

accused through force inserted his finger into the genital orifice of a
10-year-old victim.
Prior to RA No. 8353 (Anti-Rape Law), inserting a finger into the
genital orifice of a child under 12 years of age (now under 16 years of
age) is acts of lasciviousness. Hence, applying Section 5 of RA No.
7610, he would be prosecuted for acts of lasciviousness with the
penalty of reclusion temporal in its medium period under RA No.
7610.
But under RA No. 8353, inserting a finger into the genital orifice
of a child under 12 years of age (now under 16 years of age) is rape
through sexual assault. Hence, applying Section 5 of RA No. 7610,
he will be prosecuted for rape through sexual assault with the penalty
of prision mayor under the Revised Penal Code.
In sum, the penalty for sexual assault is lesser than that for act
of lasciviousness.
To impose the lighter penalty under the Revised Penal Code as
amended by RA No. 8353 is unfair to the victim. According to the
Supreme Court, it is not the intention of RA No. 8353 to disallow the
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imposition of the graver penalty under RA No. 7610 if the victim is a
child subjected to sexual abuse, who is under 16 years of age. To
prevent unfairness, the Court imposed the penalty of reclusion
temporal in its medium period under RA No. 7610 instead of the
lighter penalty of prision mayor prescribed for rape through sexual
assault under the Revised Penal Code (See also: Ricalde v. People,
G.R. No. 211002, January 21, 2015).
4. Qualified sexual assault - If the victim is under 16 years of
age, and the acts constitute sexual abuse, and qualified sexual
assault, the offender shall be prosecuted and penalized under the
Revised Penal Code. Under Section 5 (b) of RA No. 7610, when the
child subjected to sexual abuse is under 16 years of age, the
perpetrators shall be prosecuted for rape. Qualified sexual assault is
within the contemplation of the word “rape” in Section 5 (b) of RA No.
7610.

If the accused committed qualified sexual assault against a

child subjected to sexual abuse, who is under 16 years of age or
mentally retarded, the court will impose the penalty of reclusion
temporal for sexual assault under the Revised Penal Code as
amended by RA No. 8353, and not reclusion temporal in its medium
under Section 5 (b) of RA No. 7610. The court in convicting the
accused for qualified sexual assault must impose the graver penalty
under the Revised Penal Code. Since the rationale of unfairness to
the child victim that Chingh case wanted to correct is absent because
the Revised Penal Code already prescribes the high penalty, there is
no need to apply the penalty under RA No. 7610. (People v. Bonaagua,
G.R. No. 188897, June 6, 2011; People v. Pusing, G.R. No. 208009,
July 11, 2016)

In People v. Bonaagua, G.R. No. 188897, June 6, 2011, the

accused inserted his tongue (instrument or object) in the genital
orifice of his 8-year-old daughter. This is qualified rape through
sexual assault. Hence, applying Section 5 of RA No. 7610, he will be
prosecuted for qualified rape through sexual assault with the penalty
of reclusion temporal under the Revised Penal Code. The rationale of
unfairness to the child victim that the Chingh case wanted to correct
is absent because the Revised Penal Code as amended by RA No.
8353 already prescribes the penalty of reclusion temporal for this
crime. Hence, there is no need to apply the penalty of reclusion
temporal in its medium period prescribed by RA No. 7610.

Correlation – As a general rule, in a case where the victim is a

minor, accused should not be charged with a felony such as grave
threat or robbery with rape in relation to RA No. 7610. If the
information charged the accused with a felony in relation to RA No.
7610, the court must delete the correlation. (People vs. Bueza, G.R.
No. 242513, November 18, 2020, Hernando; People vs. Ybanez, G.R.
No. 247750, May 05, 2021) Felonies under RPC and crimes under RA
No. 7610 are different and independent from each other.

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 However, there are occasions where a felony defined under
Revised Penal Code is punishable by a penalty prescribed by RA No.
7610. Section 5 and 10 of RA No. 7610 as amended by RA No. 11648
prescribe penalties for: (1) acts of lasciviousness committed against
a child exploited in prostitution or other sexual abuse, who is under
16 years of age, and (2) homicide, other intentional mutilation and
serious physical injuries committed against a child under 12 years of
age. In such a case, a correlation of RPC to RA No. 7610 in charging
the accused is allowed.

If the child (16 years old or above) is a victim of an act

constituting sexual abuse under RA No. 7610 and rape under RPC,
the perpetrator shall be prosecuted under RPC because this law
prescribes a penalty higher than that under RA No. 7610 (Dimakuta
v. People, G.R. No. 206513, October 20, 2015) Since the accused is
penalized for rape under RPC, convicting the accused for rape under
RPC in relation to RA No. 7610 is improper. Hence, the correlation to
RA No. 7610 must be deleted. (See: People vs. ZZZ, G.R. No. 232329,
April 28, 2021, Hernando)

Under Section 5 of RA No. 7610, if the child (subjected to sexual

abuse involving sexual intercourse) is under 16 years of age, the
perpetrator shall be prosecuted for statutory rape under RPC. Since
the accused is penalized for statutory rape under RPC, convicting
him for rape under RPC in relation to RA No. 7610 is improper.
Hence, the correlation to RA No. 7610 must be deleted. (See: People
vs. XXX, G.R. No. 225781, November 16, 2020, Hernando; People vs.
XXX, G.R. No. 246194, November 04, 2020, Hernando)

Under Section 5 of RA No. 7610, if the child (subjected to sexual

abuse involving lascivious conduct) is under 16 years of age, the
perpetrator shall be prosecuted for acts of lasciviousness under RPC
but he shall be punished with the penalty of reclusion temporal in its
medium period. Since the accused is being prosecuted for acts of
lasciviousness under RPC but penalized under RA No. 7610,
convicting him under RPC in relation to RA No. 7610 is proper. (See:
People vs. Eulalio, G.R. No. 214882, October 16, 2019, Hernando)

In Cruz vs. People, G.R. No. 216642, September 08, 2020, the
accused was convicted of homicide committed against a 9-year-old
child. He was sentenced to suffer a maximum penalty of 12 years and
1 day of reclusion temporal. With due respect to the Supreme Court,
under Section 10 of RA No. 7610, the penalty for homicide where the
victim is under 12-years of age is reclusion perpetua.

In People v. Toledo, Sr., G.R. No. 139961, May 9, 2001, it was

alleged in the Information and proven during the trial that the victim
was only five (5) years old when she was killed. Thus, although the
accused can be convicted of homicide only, the imposable penalty is
still reclusion perpetua.

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 Double jeopardy - If the acts constitute sexual abuse (or child
prostitution), and rape or acts of lasciviousness, the offender cannot
be prosecuted for both crimes because of the rule on double jeopardy.

The essence of sexual abuse and rape or acts of lasciviousness

is having sexual intercourse or lascivious conduct with a victim
without her consent, or capacity to give consent. Since these crimes
are identical, the Supreme Court in People vs. Abay, G.R. No.
177752, February 24, 2009 ruled that the accused cannot be held
liable of both crimes because his right against double jeopardy will
be prejudiced.

Other view: In People vs. Udang, G.R. No. 210161, January

10, 2018, the Supreme Court, Third Division ruled that offender can
be liable for rape and sexual abuse because they are separate crimes
with distinct elements. It seems that Udang case is a stray decision.
The Abay principle is controlling since it was affirmed by the
Supreme Court in several cases such as People vs. Dahilig, G.R. No.
187083, June 13, 2011; People vs. Matias, G.R. No. 186469, June
18, 2012; Alberto vs. Hon. Court of Appeals, G.R. No. 182130, June
19, 2013; People vs. Ejercito, G.R. No. 229861, July 02, 2018; People
vs. Jaime, G.R. No. 225332, July 23, 2018; People vs. Mabalo, G.R.
No. 238839, February 27, 2019 and People vs. Tulugan, supra.

Sexual abuse and child abuse – Section 5 (b) of RA 7610

specifically applies in cases of sexual abuse committed against
children, which includes lascivious conduct; whereas, Section 10 (a)
thereof punishes other forms of child abuse not covered by particular
provisions of RA 7610. Evidently, the offense will not fall within the
purview of Section 10 (a) of RA 7610 if the same is specifically
penalized by a particular provision, such as Section 5 (b). (Encinares
vs. People, G.R. No. 252267, January 11, 2021)

The petitioner's acts of putting AAA's penis inside his mouth

and playing with it for ten (10) minutes constitute lascivious
conduct under Section 5 (b) of RA 7610. As such, it was an error for
the courts a quo to have convicted him under Section 10 (a) of the
same Act. True, the Information filed against petitioner charged him
under Section 10 (a) of RA 7610. However, it is a well-settled rule that
the facts alleged in the body of the information, not the technical
name given by the prosecutor appearing in the title of the
information, determine the character of the crime. (Encinares vs.
People, supra)

Pruna guidelines - The Pruna guidelines in appreciating age,

either as an element of the crime or as a qualifying circumstance, are
as follows:
1. The best evidence to prove the age of the offended party is
an original or certified true copy of the certificate of live birth of such
party.
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 2. In the absence of a certificate of live birth, similar
authentic documents such as baptismal certificates and school
records that show the victim’s date of birth would suffice to prove
age.
3. If the certificate of live birth or authentic document is
shown to have been lost or destroyed or otherwise unavailable, the
testimony, if clear and credible, of the victim’s mother or a member
of the family either by affinity or consanguinity who is qualified to
testify on matters respecting pedigree such as the exact age or date
of birth of the offended party under Section 40, Rule 130 of the Rules
on Evidence shall be sufficient under the following circumstances:
a. If the victim is alleged to be below three years of age and
what is sought to be proved is that she is less than seven years old
(e.g., the prosecution sought to establish the qualifying circumstance
in rape that the victim is under 7 years of age);
b. If the victim is alleged to be below seven years of age and
what is sought to be proved is that she is less than 12 years old (e.g.,
the prosecution sought to establish the qualifying circumstance that
the victim is under 12 years of age under RA No. 7610 in homicide);
c. If the victim is alleged to be below 12 years of age and what
is sought to be proved is that she is less than 18 years old (e.g., the
prosecution sought to establish minority as an element of a crime
such as sexual abuse under R.A. No. 7610).
4. In the absence of a certificate of live birth, authentic
document, or the testimony of the victim’s mother or relatives
concerning the victim’s age, the complainant’s testimony will suffice
provided that it is expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age
of the offended party. The failure of the accused to object to the
testimonial evidence regarding age shall not be taken against him.

6. The trial court should always make a categorical finding

as to the age of the victim. (People vs. Pruna, G.R. No. 138471,
October 10, 2002; XXX vs. People, G.R. No. 243151. September 2,
2019; People vs. Aparejano, G.R. No. 248113, December 7, 2021)

That the age of the victim is under 12 years is an element of

statutory rape, statutory acts of lasciviousness, and forcible
abduction, qualified trafficking in person under Section 7 of RA No.
7610, qualifying circumstance under Section 10 of RA No. 7610 in
homicide, serious physical injuries, and other intentional mutilation
and qualifying circumstance under Section 5 (b) of RA No. 7610 in
acts of lasciviousness and simple sexual assault. Hence, number 3
(b) of the Pruna guidelines will apply.
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 However, RA No. 11648 amended Article 266-A of the Revised
Penal Code, and Sections 5 (b) and 7 of RA No. 7610 by replacing the
phrase “under 12 years of age” with “under 16 years of age. That the
age of the victim is under 16 years is now the new element of
statutory rape, statutory acts of lasciviousness, and qualified
trafficking in person under Section 7 of RA No. 7610, and qualifying
circumstance under Section 5 (b) of RA No. 7610 in acts of
lasciviousness and simple sexual assault. The Pruna guidelines have
no rule on a situation where what is sought to be proved is that the
victim is less than 16 years old. There is a need to modify the Pruna
guidelines to govern cases covered by RA No. 11648. In the
meantime, if what is sought to be proved is that the victim is less
than 16 years old, number 3 (b) of the Pruna guidelines will apply.

Under Rule 130, Section 3, paragraph (d) of the Revised Rules

of Court, the presentation of the original document may be dispensed
with when the same is a public record in the custody of a public
officer or is recorded in a public office. Thus, a photocopy of the rape
victim's birth certificate is admissible to prove her age because its
original is a public record in the custody of the local civil registrar, a
public officer. (People vs. XXX, G.R. No. 232308, October 07, 2020)

TRAFFICKING IN PERSON – The elements of trafficking in

person are as follows:

1. The act of: (a) offering, recruitment, or obtaining; (b)

transportation, transfer or receipt; or (b) harboring, providing or
maintaining of persons with or without the victim's consent or
knowledge, within or across national borders;

2. The means used which include "threat or use of force, or

other forms of coercion, abduction, fraud, deception or abuse of
power or of position, taking advantage of the vulnerability of the
person, or, the giving or receiving of payments or benefits to achieve
the consent of a person having control over another; this means as
an element can be dispensed with when the victim is a minor; and

3. The purpose of trafficking is exploitation which includes

"exploitation or the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery, servitude or the
removal or sale of organs.

1. Acts of trafficking – a. Maintaining - If the accused is

regularly offering the sexual service of the child in exchange for
money, the crime committed is not anymore child prostitution.
Maintaining or hiring the child as purpose of prostitution constitutes
qualified trafficking in person because the former took advantage of
vulnerability of the latter as a child and as one who need money.
Minority is qualifying circumstance (People vs. Casio, G.R. No.
211465, December 03, 2014; People vs. Hirang, G.R. No. 223528,
January 11, 2017).

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 b. Transporting - Accompanying a child and offering her sexual
services in exchange for money constitutes child prostitution. The
accused who offered the victim to the one who raped her is not liable
for rape as principal indispensable cooperation since bringing the
victim to the rapist is not indispensable to the commission of the
crime of rape (People vs. Dulay, GR No. 193854, September 24,
2012). It is submitted that the accused in Dulay case, can be
prosecuted for trafficking in person instead of child prostitution.

Recruiting and transporting a child for sexual service for money

constitutes qualified trafficking in person. In People v. Aguirre, G.R.
No. 219952, November 20, 2017, accused lured several minors into
prostitution to have sex with foreigners with the promise of financial
benefit, the chance to use shabu and to travel abroad. The girls were
brought at an apartment and were instructed to primp themselves to
look good for the foreigners. Accused was convicted of qualified
trafficking in persons since the accused recruited and transported
the minors for purposes of prostitution. The victim’s consent is not a
defense in qualified trafficking in person.

c. Recruitment – Accused recruited AAA, a minor, and

transported to Saigon Disco for the purpose of engaging her to
perform illicit work, i.e., as a GRO and perform lewd acts thereat and
with customers even outside the establishment. She is liable for
qualified trafficking in person. (People vs. Garcia, G.R. No. 240692,
July 15, 2020)

In Young vs. People, G.R. No. 213910, February 03, 2016,

petitioners allegedly recruited and hired the AAA Group and,
consequently, maintained them under their employ in Jaguar for the
purpose of engaging in prostitution. Accused can be properly charged
with trafficking in person.

Illegal recruitment and trafficking in person - Recruiting

without license a person, child or adult, to work as a prostitute
abroad constitutes the crime of trafficking in person and illegal
recruitment. Syndicate is qualifying circumstance in both crimes.
Even if the accused is less than three, but the allegation and evidence
show that there are at least three traffickers and recruiters,
syndicated can be appreciated as qualifying circumstance (People vs.
Lalli, G.R. No. 195419, October 12, 2011; People vs. Hashim, G.R.
No. 194255, June 13, 2012).

Child prostitution and trafficking in person – The accused,

who provides a customer to a child exploited in prostitution, is liable
for child prostitution under Section 5 (a) (1) of RA No. 7610 for acting
as a procurer of a child prostitute and qualified trafficking in person
for recruiting a child for purpose of prostitution under Section 4 (a)
of RA No. 9208. (Brozoto vs. People, G.R. No. 233420, April 28, 2021)

2. Trafficking means – a. Fraud and deception - The accused

deceived victim by saying that her work in Malaysia would be as
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restaurant entertainer, when in fact, she would be working as a
prostitute. This is trafficking in person. Fraud and deception are
means to commit trafficking in person. (People vs. Lalli, G.R. No.
195419, October 12, 2011)

b. Taking advantage of vulnerability - It is apparent from this

case that no threat, force or coercion was employed by accused in the
trafficking of the victims. However, they took advantage of the
vulnerability of the victims to secure the consent of their parents.
They are vulnerable in the sense that they are underprivileged and it
is apparent that they needed to earn money. Considering that the
victims came from poverty-stricken families, it renders the victims
vulnerable to trafficking. Trafficking in persons can still be committed
even if the victim gives consent. (People vs. Leocadio, G.R. No.
237697, July 15, 2020)

c. Minor victim - Acts of trafficking committed for exploitive

purpose against a child, or when the adoption is induced by any form
of consideration, shall also be considered as ‘trafficking in persons’
even if they do not involve any of the means to commit trafficking.

Since the victims are minor, means to commit trafficking such

as threat or use of force, coercion, or fraud need not be established by
evidence. Even without the use of coercive, abusive, or deceptive
means, a minor’s consent is not recognized by law, (People v. Aguirre,
G.R. No. 219952, November 20, 2017) or shall not be considered as
having been given out of his or her own free will. (People vs. Ramirez,
G.R. No. 217978, January 30, 2019)

3. Exploitive Purpose - The act of trafficking is committed for

any of the following purposes: (a) Sexual exploitation such as
prostitution or pornography; (b) Labor exploitation such forced labor
or services, slavery, servitude; and (c) Organ exploitation such as
removal or sale of organs.

Section 3 of RA No. 9208 in defining trafficking in person used

the phrase “for the purpose of exploitation.” Hence, the third element
of this crime is exploitive purpose. Recruiting, hiring or transferring
the victim through the required means such as taking advantage of
her vulnerability for purpose of exploitation such as prostitution
consummates the crime of trafficking in person. Actual exploitation
is not necessary for purpose of consummation thereof.

Accused approached PO1 Nemenzo and offered him the sexual

services of four girls, two of whom were minors, for P2,400.00. The
police operation had been the result of previous surveillance. Both
minor victims testified that this incident was not the first time that
accused pimped them out to customers. It was held that the crime of
trafficking in person involving prostitution is considered
consummated even if no sexual intercourse (or no actual sexual
exploitation) had taken place since the mere transaction

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consummates the crime. (People vs. Ramirez, G.R. No. 217978,
January 30, 2019)

The fact that there were no actual indecent shows that were
performed by the victims, except for BBB, is immaterial. It is not
necessary that the victims have performed or are performing the act
of prostitution or sexual exploitation at the time when the
perpetrators were apprehended. The material fact in the crime
charged is that the purpose of the perpetrators is to engage the
victims in the said act of prostitution or sexual exploitation. (People
vs. Leocadio, G.R. No. 237697, July 15, 2020)

Labor exploitation - Accused deceived 5 complainants, who

were mostly minors, for they are made to believe that they will be
working as house helpers in Cagayan De Oro City with an enticing
salary of P1,500.00 per month. She told them that they would be
allowed to go home once a week. However, the complainants were
transported to Marawi City. The complainants would not have agreed
or would not have been allowed by their parents if accused would
directly offer them work at Marawi City. The accused deliberately
fabricated a story to delude her victims and their parents. When
complainant asked for their salary, they were told that it had already
been given to accused. This is slavery. Accused was convicted of
trafficking in person qualified by the circumstance of minority and
large scale. (People vs. Nangcas, G.R. No. 218806, June 13, 2018)

Accused and his minor son invited the latter's three (3)
schoolmates who were also minors, namely AAA, BBB, and CCC, to
their house. It was then revealed that the purpose of the meeting was
to discuss plans of accused to commit robberies with the help of AAA,
BBB, and CCC. Upon learning about this, CCC expressed his desire
to leave but accused got angry and punched him; thus, he was forced
to join the group. The children subsequently committed series of
robberies against various people. Accused was also the driver of their
getaway tricycle. Accused is liable for qualified trafficking in person.
He recruited minors by taking advantage of their vulnerability as
minors, particularly through enticement, violence, and use of force
and coercion for purpose of forced labor, or involuntary servitude.
Forced labor and slavery is defined as the extraction of work or
services from any person by means of enticement, violence,
intimidation or threat, use of force or coercion. (Arambullo vs. People,
G.R. No. 241834, July 24, 2019)

Not valid defenses – The following are not valid defenses in

trafficking in person:

1. Trafficking in person can be committed with or without the

victim’s consent or knowledge. Thus, consent of the victims, who are
minors, to engage in prostitution is not a defense in trafficking in
persons involving recruitment and transportation of trafficked
victims. (People v. Aguirre, G.R. No. 219952, November 20, 2017)

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 Victim's consent is rendered meaningless due to the coercive,
abusive, or deceptive means employed by perpetrators of human
trafficking. Even without the use of coercive, abusive, or deceptive
means, a minor's consent is not given out of his or her own free will.
(People vs. Bandojo, G.R. No. 234161, October 17, 2018)

2. The fact that there was no person to whom accused endorsed

or recruited his victims is of no moments. Neither the presence of the
trafficker's clients is required to support a finding of trafficking. To
be sure, the gravamen of the crime of trafficking is the act of
recruiting or using a fellow human being for sexual exploitation.
(People vs. Estonilo, G.R. No. 248694, October 14, 2020)

3. The acts under Section 4 (a and e) of RA 9208 do not require

proof of actual sexual intercourse to establish the purpose of
prostitution or sexual exploitation. It is enough that the act,
transaction, scheme or design involving the use of a person by
another for sexual intercourse or lascivious conduct in exchange for
a consideration is proven. In this case, BBB's and PO3 Ong's
respective testimonies that YYY offered them use of the VIP rooms for
sexual services by any of the girls working in the bar whom they
fancied for a fee consummates the offense of trafficking in persons.
(XXX vs. People, G.R. No. 225288, June 28, 2021, Hernando; see
also: People vs. Estonilo, G.R. No. 248694, October 14, 2020)

4. The accused had already been involved in the illegal

trafficking of women even prior to the entrapment operation and
arrest. The accused was not forced or induced to commit the crime.
In fact, accused readily agreed to procure girls for the poseur-buyers
and in his active recruitment of the victims. Thus, his defense of
instigation has no merit. This is a valid entrapment. (People vs.
Amurao, G.R. No. 229514, July 28, 2020)

5. The accused claims that she was not aware that private
complainants are minors as they falsely represented that they were
18 years old in their bio-datas. This would not exonerate her from
criminal liability. Qualified trafficking in persons is punished by a
special law. Hence, it belongs to a class of offenses known as mala
prohibita where good faith and absence of criminal intent are of no
moment. (People vs. Dela Cruz, G.R. No. 238754, June 16, 2021)
Promoting trafficking in person – The person, who knowingly
leases or subleases, uses or allows to be used any house, building or
establishment for the purpose of promoting trafficking in persons is
liable for promoting trafficking in person (Section 5 of RA No. 9208).
The pimp is liable for trafficking in person (Section 4). The customer
of the trafficked prostitute is liable for use of trafficked victim (Section
11). The trafficked prostitute is exempt from criminal liability for the
crime of prostitution (Sections 17 and 32)

In People vs. Sayo, G.R. No. 227704, April 10, 2019, the accused
owned a house where its room was offered for lease for every paying
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customer of the complainants, who engaged in sex for a fee. Accused
is aware of these prostitution activities since he cleaned the room
after the complainant and her customer finished using it. Moreover,
he sold condoms to complainant's male customers before using the
room. The trial court trial court convicted him of qualified trafficking
in person for knowingly leasing his house for the purpose of
promoting trafficking in persons under Section 5 of RA No. 9208. The
Supreme Court said that the trial court committed a serious error.
The crime under Section 5 of RA 9208 must be properly denominated
as “acts that promote trafficking in persons,” and not qualified
trafficking in person.

The qualifying circumstance of minority under Section 6 of RA

No. 9208 can be appreciated if the crime is trafficking in person
under Section 4. The circumstance of minority cannot qualify
promoting trafficking in person under Section 5. (People vs. Sayo,
supra)

Qualified rape and qualified trafficking in persons –The

qualifying circumstances in rape are enumerated in Article 266-B of
the Revised Penal Code, while those in trafficking in persons are
found in RA No. 9208 as amended by RA No. 11862 (June 23, 2022).

1. Trafficking in person is qualified if the trafficked person is a

child or a person below 18 years of age or one who is over 18 but is
unable to fully take care of or protect himself/herself from abuse,
neglect, cruelty, exploitation, or discrimination because of a physical
or mental disability or condition. Rape is qualified if the victim is a
child below 7 years old.

Minority cannot be appreciated as a qualifying circumstance in

trafficking in person if not alleged in the information. (People v.
Aguirre, G.R. No. 219952, November 20, 2017) To appreciate the
qualifying circumstance of minority of the victim in trafficking in
person, knowledge of the accused with regard to her minority is
inconsequential (People vs. Bandojo, G.R. No. 234161, October 17,
2018)

2. Trafficking in person is qualified if the offender is a parent,

or ascendant of the trafficked victim. On the other hand, rape is
qualified if the victim is under 18 years of age and the offender is a
parent or ascendant of the victim. Relationship alone is not enough
to qualify rape. In qualified rape, there must be a concurrence of
relationship and minority. On the other hand, relationship alone is
enough to qualify trafficking in person.

While the prosecution failed to prove the victim's minority due

to the absence of her birth certificate, it however established that the
crime was committed by the mother of the victim. Consequently, the
crime is still qualified trafficking in person. (People vs. Bawalan, G.R.
No. 232358, May 12, 2021, Hernando)

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 3. Trafficking in person is qualified if the offender is a guardian
of trafficked victim or a person who exercises authority over him/her.
On the other hand, rape is qualified if the victim is under 18 years of
age and the offender is a guardian of the victim.

In qualified rape, the guardian must be a person who has a legal

relationship with his minor ward. He must be legally appointed first
(People vs. Flores G.R. No. 188315, August 25, 2010). This rule
applies to trafficking in person. However, if the offender, who is not
legally appointed as guardian, exercises authority over the trafficked
victim, the crime is still qualified trafficking in person.

While the prosecution failed to prove the victim's minority due

to the absence of her birth certificate, it however established that the
crime was committed by a person exercising authority over the
victim. The accused is her fatherly figure whom she calls "Papa CCC.”
Consequently, the crime is still qualified trafficking in person. (People
vs. Bawalan, G.R. No. 232358, May 12, 2021, Hernando)

4. Trafficking in person is qualified if the offender is victim’s

sibling or a person who exercises authority over the victim. On the
other hand, rape is qualified if the victim is under 18 years of age and
the offender is a relative by consanguinity or affinity within the third
civil degree, or step-parent or the common-law spouse of the victim’s
parent.

Relationship includes the third civil degree of consanguinity or

affinity in order to qualify rape. In this case, the accused is the cousin
of the victim's father. Their relationship is fifth degree. Hence, the
crime is only simple rape. (People vs. XXX, G.R. No. 232308, October
7, 2020)

If the relationship between the accused and the victim of rape

is uncle and niece, the Information must allege that the offender is
“a relative by consanguinity or affinity within the third civil degree”
because there are niece-uncle relationships which are beyond the
third civil degree. However, a sister-brother relationship is obviously
in the second civil degree. Consequently, it is not necessary that the
Information should specifically state that the accused is a relative by
consanguinity within the third civil degree of the victim (People vs.
Ceredon, G.R. No. 167179, January 28, 2008). The fact that the
trafficker is the victim’s uncle will not qualify trafficking in person
unless he exercises authority over the victim.

The accused and victim have a step-relationship if the former

and the mother of the latter are married; without marriage, their
relationship is common-law. If the information alleged that the
accused is the stepfather of the victim, but the evidence shows he is
the common-law husband of her mother there being no marriage
certificate presented, the qualifying circumstance of relationship and
minority cannot be appreciated in rape. (People vs. Tuyor, G.R. No.
241780, October 12, 2020; People vs. XXX, G.R. No. 240441,
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December 04, 2019, PP v. De Guzman, G.R. 224212 , November 27,
2019, Hernando)

The fact that the trafficker is the victim’s step-parent or the

common-law spouse of the victim’s mother will not qualify trafficking
in person unless he exercises authority over the victim. In People vs.
Bawalan, G.R. No. 232358, May 12, 2021, the Supreme Court
through Justice Hernando appreciated qualifying circumstance in
trafficking in person because the trafficker, who is the common-law
spouse of victim’s mother, exercised authority over the victim.

5. Trafficking in person is qualified if the trafficked victim is a

person with disability (PWD) or if the victim suffered mental or
emotional disorder as a result of being victim of trafficking. Rape is
qualified if the offender knew of the mental disability, emotional
disorder or physical handicap of the victim at the time of the
commission of the crime.
Assuming that the accused and the victim had a romantic
relationship, carnal knowledge with the victim, even if consensual,
would amount to rape due to her mental disability. Knowledge
victim's mental retardation is not an element for the charge of rape.
However, knowledge of her mental condition is important for
purposes of qualifying the charge of rape. (People vs. Martinez, G.R.
No. 226394, March 7, 2018) Knowledge of the mental disability of the
victim is not an element of rape (People vs. Caoile, GR No. 203041,
June 5, 2013) but it is an ingredient of the qualifying circumstance
of mental disability, which must be alleged in the information (People
vs. Obogne, GR No. 199740, March 24, 2014; People vs. Lascano,
G.R. No. 192180, March 21, 2012; People v. Madeo, G.R. No. 176070
October 2, 2009)
6. Trafficking in person is qualified if by reason or on occasion
of the act of crime, the offended party is afflicted with HIV or AIDS.
Rape is qualified if the offender knows that he is afflicted with
HIV/AIDS or any other sexually transmissible disease (SDT) and the
virus or disease is transmitted to the victim.

In rape, the circumstance of HIV or AID affliction or STD, virus

or disease infection is qualifying. While in trafficking in person, the
circumstance of HIV or AID affliction is qualifying. If the trafficked
person is afflicted with other STD, virus or disease, the crime is not
qualified.

7. Trafficking is qualified if the crime has resulted in pregnancy

of the victim. Rape is qualified if the offender knew of the pregnancy
of the offended party at the time of the commission of the crime.

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 8. Trafficking in person is qualified if the trafficked person is
recruited to engage in prostitution with any member of the military
or law enforcement agencies. Rape is qualified if the victim is
under the custody of the police or military authorities or any law
enforcement or penal institution or

9. Trafficking in person is qualified if the trafficker is a public

officer or employee or a member of the military or law enforcement
agencies. Rape is qualified if the crime is committed by any AFP
member or para-military units thereof or the PNP or any law
enforcement agency or penal institution, when the offender took
advantage of his position to facilitate the commission of the crime.

10. Trafficking in person is qualified if by reason or on occasion

of the act of trafficking in persons, the offended party dies, becomes
insane, or suffers mutilation. Rape is qualified if by reason or on the
occasion of the rape, the victim has suffered permanent physical
mutilation or disability.

11. The following circumstances will also qualify trafficking in

person:

(a) If the offender is a spouse of the trafficked victim;

(b) If the adoption is effected through the Inter-Country

Adoption Act and said adoption is for the purpose of prostitution,
pornography, sexual exploitation, forced labor, slavery, involuntary
servitude or debt bondage;

(c) If the offender commits one or more acts of trafficking over a

period of at least sixty (60) days, whether those days are continuous
or not;

(d) When the offender, or through another, directs or manages

the actions of a victim in carrying out the exploitative purpose of
trafficking;

(e) When the crime is committed during a crisis, disaster, public

health concern, pandemic, a humanitarian conflict, or emergency
situation, or when the trafficked person is a survivor of a disaster or
a human-induced conflict;

(f) When the trafficked person belongs to an indigenous

community or religious minority and is considered a member of the
same;

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 (g) When the act is committed by or through the use of ICT or
any computer system; and

(h) When the crime is committed by a syndicate, or in large

scale.

Trafficking is deemed committed by a syndicate if carried out by

a group of three (3) or more persons conspiring or confederating with
one another. It is deemed committed in large scale if committed
against three (3) or more persons, individually or as a group. (People
vs. Kelley, G.R. No. 243653, June 22, 2020)

There are as many crimes of trafficking in person as there are

victims of trafficking. In People vs. XXX, G.R. No. 235652, July 09,
2018, XXX and YYY were convicted of three counts of qualified
trafficking in persons for making their three biological children
(minors) perform acts of cybersex in pornographic websites for
different foreigner customers in exchange of money or ordering them
to dance naked in front of the computer with internet connectivity
while facilitating the webcam sessions and chatting with a certain
customer. XXX is convicted of another count of qualified trafficking
in person for transporting and providing her own minor biological
child to a foreigner in Makati City for the purpose of prostitution.

It is submitted however, that if the accused is charged with

trafficking in person with the qualifying circumstance of large scale
involving three trafficking victims, he should be held liable of one
count of qualified trafficking in person.

12. The following circumstances will also qualify rape:

(a) If the rape is committed in full view of the spouse, parent,

any of the children or other relatives within the third civil degree of
consanguinity; and

(b) If the victim is a religious engaged in legitimate religious

vocation or calling and is personally known to be such by the offender
before or at the time of the commission of the crime.

OBSCENE PUBLICATION - The accused is charged in the

information the act of selling or circulating obscene materials which
is specifically punished under paragraph 3 of Article 201 of the
Revised Penal Code. The accused cannot be convicted of the crime of
obscene publications. The accused was the editor of Bagong
Toro where the alleged obscene materials are found but there is no
evidence at all proving that he actually sold or circulated the
subject Bagong Toro issue. He cannot be convicted for publishing
obscene materials as an editor under paragraph 2 of Article 201. The
offense of "selling or giving away" obscene materials is not necessarily
included in the act of "publishing" or vice versa. These are two
completely different acts as indicated by the fact that Article 201
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classified them under two different paragraphs. Hence, the variance
rule is not applicable. (Demata vs. People, G.R. No. 228583,
September 15, 2021)

Whether a given material is obscene or constitutionally

protected speech shall be decided on the following three-prong test
adopted from Miller v. California: 1. Whether the average Filipino,
applying contemporary community standards, would find the
material as appealing to prurient interests; 2. Whether, applying
contemporary community standards, the material describes or
depicts sexual conduct in a patently offensive way; and 3. Whether
the average Filipino would find the material, taken as a whole, as
seriously lacking literary, artistic, political, or scientific value.
(Demata vs. People, G.R. No. 228583, September 15, 2021)

Miller tests can be used to determine if the material is obscene

for purpose of the provision on obscene publication under Article 201
of the Revised Penal Code. However, these tests are not applicable to
determine if the material is pornographic for purpose of the provision
on trafficking in person under RA No. 9208 and that on OSAEC under
RA No. 11930.

Under the guidelines in the case of Miller v. California, the

material must depict or describe a patently offensive sexual conduct
to be considered as obscene. On the other hand, the representation
of a person engaged in real or simulated explicit sexual activities is
pornographic under RA No. 9208. The law does not require that the
sexual activities must be patently offensive to consider the
representation thereof as pornographic.
Pornography refers to any representation, through publication,
exhibition, cinematography, indecent shows, information technology,
or by whatever means, of a person engaged in real or simulated
explicit sexual activities or any representation of the sexual parts of
a person for primarily sexual purposes. (Section 3[h] of RA No. 9208)
Any representation of the sexual parts of a person for primarily
sexual purposes is pornographic under RA No. 9208. Nudity per se
is not pornographic. But nudity for primarily sexual purposes is
pornographic. There is no judicial interpretation of the phrase
primarily for sexual purposes. However, it is submitted that if the
representation of sexual parts of a person is primarily for an artistic
purpose, the same cannot be considered as pornographic. Pictures,
sculptures, and paintings of women in the nude shown in art exhibits
and art galleries for the cause of art, to be viewed and appreciated by
people interested in art, are not pornographic.

PORNOGRAPHY IN GENERAL – Reminder: OSAEC refers to

refers to the use of ICT as a means to abuse and/or exploit children
sexually, which includes cases in which offline child abuse and/or
exploitation is combined with an online component. (RA No. 11930,
July 30, 2022. RA No. 11930 on OSAEC repealed RA No. 9775 on
child pornography and the provision of RA No. 10175 on cyber child

132 | P a g e
pornography. However, RA No. 11930 does not repeal the provision
of RA No. 10175 on cybersex.

R.A. No. 9208 does not punish the trafficked person for
performing indecent shows. R.A. No. 9775 on child pornography (Now
RA No. 11930 on online sexual abuse or exploitation of children or
OSAEC), R.A. No. 10175 in relation to RA No. 9775 on cyber child
pornography (Now RA No. 11930 on OSAEC), and R.A. No. 7610 do
not likewise punish minors for performing indecent shows. The
trafficked persons and children are considered victims and not
criminals. In R.A. No. 10175 or Article 201 of the Revised Penal Code,
the persons performing indecent shows are liable for cybersex or
indecent show.

1. Pornography Involving a Child—If the person involved in

an indecent show or performance is a minor, the crime is qualified
trafficking in person under R.A. No. 9208, child pornography under
R.A. No. 9775 (Now OSAEC under RA No. 11930), cyber child
pornography under R.A. No. 10175 (Now OSAEC under RA No.
11930), or indecent show under R.A. No. 7160.

a. Qualified Trafficking in Person—XXX and YYY maintained

their three biological children (minors) to perform acts of cybersex on
pornographic websites for different foreign customers in exchange for
money or ordering them to dance naked in front of a computer with
internet connectivity while facilitating the webcam sessions and
chatting with a particular customer. They are liable for three counts
of qualified trafficking in persons. XXX and YYY achieved their
criminal design in requiring their children to perform acts of cybersex
for different foreign customers by taking advantage of their children’s
vulnerability as minors and deceiving them that the money they
make from their lewd shows is needed for the family’s daily
sustenance. The circumstances that the victims are minors and the
traffickers are ascendants of the victims qualify the crime. (People v.
XXX, G.R. No. 235652, July 9, 2018)

b. Cyber Child Pornography—XXX induced his 14-year-old

girlfriend to send him pictures of her vagina and breasts through
Facebook Messenger using a mobile phone. He was convicted of cyber
child pornography (Now OSAEC) for persuading or inducing a child
through a computer system to perform in the creation or production
of any form of child pornography. (Cadajas v. People, G.R. No.
247348, June 15, 2022)

d. Indecent Show under R.A. No. 7610—XXX induced his 14-

year-old girlfriend to dance nude during his birthday party. The crime
committed is indecent shows under Section 9 of R.A. No. 7610, which
punishes a person who shall persuade or induce a child to perform
in indecent shows, whether live or in video. Note: RA No. 11930 is
not violated since the crime is not committed through online.

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 2. Pornography Involving an Adult—If the person involved in
an indecent show or performance is an adult, the crime is trafficking
in person under R.A. No. 9208, cybersex under R.A. No. 10175, or
indecent show under Article 201 of the Revised Penal Code.

a. Trafficking in Person—XXX and YYY maintained three poor

adult women to perform acts of cybersex on pornographic websites
for different foreign customers in exchange for money or ordering
them to dance naked in front of a computer with internet connectivity
while facilitating the webcam sessions and chatting with a particular
customer. They are liable for trafficking in persons. R.A. No. 9208
punishes a person who shall maintain a person for pornography by
taking advantage of their vulnerability due to poverty.

b. Cybersex—XXX asked an adult woman to send him pictures

of her vagina and breasts through Facebook Messenger using a
mobile phone in consideration of P500,000.00. The woman agreed.
This is not trafficking in person because XXX is not hiring,
maintaining, etc. the woman to engage in pornography. Child
pornography or indecent show under R.A. No. 7610 is not committed
since the woman is not a child. XXX and the woman are liable for
cybersex since the lascivious exhibition of sexual organs was
committed with the aid of a computer system for consideration.
Cybersex under R.A. No. 10175 includes cyber pornography for favor
and consideration. (Disini v. Secretary of Justice, G.R. No. 203335,
February 18, 2014)

XXX induced his 19-year-old girlfriend to send him pictures of

her vagina and breasts through Facebook Messenger using a mobile
phone. XXX is not criminally liable. Cyber child pornography (Now
OSAEC) is not committed since his girlfriend is not a child. Cybersex
is not committed since there is no consideration involved.

c. Indecent Show under RPC—Maria, a lawyer, for

consideration of P5,000.00, danced and undressed herself in front of
Em while the music “making love out of nothing at all” was being
played. This is not trafficking in person because Em is not hiring,
maintaining, etc. Maria to engage in pornography, and there is no
taking advantage of her vulnerability. A lawyer is not vulnerable to
being exploited in pornography. Child pornography or indecent show
under R.A. No. 7610 is not committed since Maria is not a child.
Cybersex is not committed since the lascivious exhibition of sexual
organs was not made with the aid of a computer system. The crime
committed is indecent show under the Revised Penal Code, which
punishes those who shall exhibit indecent shows in theaters, fairs,
cinematographs, or any other place, whether live or in film.

DANGEROUS DRUGS – Despite the offense of illegal possession

of dangerous drugs being malum prohibitum, "[t]his, however, does
not lessen the prosecution's burden because it is still required to
show that the prohibited act was intentional."11 In cases involving
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the illegal possession of dangerous drugs, "the prosecution is not
excused from proving that possession of the prohibited act was done
'freely and consciously,' which is an essential element of the crime."
The concept of possession contemplated under Section 11 of R.A. No.
9165 goes beyond mere actual and physical possession of the drug
specimen. Otherwise, an unsuspecting person who is victimized by
the planting of evidence will be unjustly prosecuted based on the
sheer fact that illegal drugs were found to be in his possession. It
must be proven that the person in whose possession the drug
specimen was found knew that he/she was possessing illegal drugs.
(Luna vs. People, G.R. No. 231902, June 30, 2021)

Transportation - Since the crime of transportation of

dangerous drugs is malum prohibitum, it is inconsequential to prove
that the illegal drugs were delivered or transported to another person.
The only thing that had to be proven was the movement of the illegal
drugs from one place to another. (People vs. Amago, G.R. No. 227739,
January 15, 2020)

Under RA No. 9165, transportation of dangerous drugs can be

committed regardless of the quantity. However, if the quantity of the
drugs is not considerable or commercial, the offender, who is
transporting drugs, can be charged and convicted of possession of
dangerous drugs. In Asuncion v. CA, G.R. No. 125959, February 1,
1999, the accused was driving a car with 0.1216 gram of shabu. In
Sales v. People, G.R. No. 191023, February 6, 2013, the accused was
caught in possession of 0.23 gram of dried Marijuana at the
departure area of NAIA. In De Villa vs. People, G.R. No. 224039,
September 11, 2019, the accused was driving a motorcycle with 0.12
gram of shabu. The quantities of drugs in Asuncion case, Sales case
and De Villa case are not considerable or commercial, which indicate
that they possessed the same for consumption purpose. Hence, they
were charged with and convicted of possession of dangerous drug
and not the graver crime of transportation of dangerous drugs.

Importation - Accused were caught by police authorities on

board a speedboat carrying shabu. Since it was not proven that the
drugs came from China or foreign country they were convicted of
possession of dangerous drugs, which is necessarily included in the
charge of importation (People vs. Chan Liu, G.R. No. 189272,
January 21, 2015). The accused can also be held liable of
transportation of dangerous drugs since the place of origin is
inconsequential in this crime.

Sale - Even if the police transacted for the sale of shabu, the
fact that the seized drugs are ephedrine, will not warrant a reversal
of the finding of guilt of the accused. In any case, the charge in the
information was clearly for violation of Section 5 of R.A. No. 9165. It
is immaterial whether the allegation was
for shabu or ephedrine, since both are dangerous drugs. Further, the
purpose of the laboratory examination is to confirm that the seized
items are indeed dangerous drugs. The police officers cannot be
135 | P a g e
expected to conclude with certainty whether the suspected
dangerous drugs are shabu or ephedrine just by visual inspection.
What matters is that the prosecution was able to prove that the seized
items are indeed dangerous drugs and are the ones presented in
court. (People vs. Ming Tat, G.R. No. 246577, July 13, 2020)

Attempted sale or transportation - Poseur-buyer showed shabu

for sale to poseur buyer. The sale was aborted when the police
officers immediately placed accused under arrest. The crime
committed is attempted sale (People vs. Figueroa, G.R. No. 186141,
April 11, 2012).

Accused intended to transport dangerous drugs to Malaysia

through the use of drug couriers in the person of the confidential
informant and IO2 Alarde. Confidential informant and IO2 Alarde
were summoned to be given instructions regarding the transportation
of certain luggage to Malaysia. The confidential informant and IO2
Alarde were brought by accused to a Hostel, where the prohibit drugs
were discovered. At that point, the crime of transportation of
prohibited drugs is already at its attempted stage. Even in the
absence of actual conveyance, an attempt to transport prohibited
drugs is meted the same penalty prescribed for the commission
thereof under Section 26 of R.A. 9165. (People vs. Runana, G.R. No.
229055, July 15, 2020)

The accused cannot be convicted of attempted transportation of

dangerous drugs where he was caught in possession thereon inside
his car, which is not in transit. The theory of the prosecution that
there is clear intent to transport the drug is speculative. (San Juan v.
People, G.R. No. 177191, May 30, 2011) But intent to transport illegal
drugs is presumed whenever a huge volume thereof is found in the
possession of the accused until the contrary is proved. Here, five
hundred fifty-two (552) grams or half kilo of shabu is by no means a
minuscule amount indicating as well intent of the accused to deliver
and transport them in violation of Section 5, Article II of RA 9165.
(People vs. Macaspac, G.R. No. 246165, November 28, 2019)

In People v. Burton, G.R. No. 114396, February 19, 1997, the

accused came from a hotel in Parañaque, where he stayed before he
checked in at the NAIA and was bound for Sydney, Australia. At the
departure area of the airport, authorities discovered dangerous drugs
in the two pieces of luggage of the accused. It was held that it is
apparent that he wanted to bring the prohibited drug from Parañaque
to Sydney. However, because he was not able to pursue his trip, he
should be considered only to have attempted to transport the
prohibited drug to Sydney.

In People v. Dimaano, G.R. No. 174481, February 10, 2016, the

accused, who was caught in possession of dangerous drugs at the
departure area of Manila Domestic Airport was also convicted of
attempted transportation of dangerous drug. However, in People v.
Jones, G.R. No. 115581, August 29, 1997, the accused was also
136 | P a g e
caught in possession of dangerous drugs at the departure area of
NAIA, and yet, he was convicted of consummated transportation of
dangerous drugs. At any rate, the penalty prescribed for
transportation of dangerous drugs is the same as that for attempted
transportation of dangerous drugs.

Drug den - Before a person may be convicted of visiting drug

den, it must be shown that he or she knew that the place visited was
a drug den, and still visited the place despite this knowledge. True,
the drug test results sufficiently proved that accused had used drugs
some time before their arrest. However, the positive result of the drug
test cannot be used as a basis to assume that accused used drugs at
the drug den or that they were aware of the nature of the suspected
drug den before visiting it. Accused were not in possession of drugs.
Nobody was found in the act of using, selling or buying illegal drugs,
nor packaging nor hiding nor transporting the same. There is no
evidence, which would tend to show that the accused were familiar
with the nature of the place as a drug den. Accused were acquitted.
(Coronel vs. People, G.R. No. 214536, March 13, 2017)

Protector or coddler – P/Supt. Borromeo's participation was

not limited to merely protecting the violators nor facilitating their
escape. His co-conspirators regularly reported to and updated him of
the operations in the shabu laboratory. He monitored all the illegal
activities through Dante, who acted under his control and carried out
specific instructions coming from him. These acts sufficiently
established his pivotal role in the conspiracy. Thus, there was no
logical reason for the CA to downgrade his liability from that of a co-
conspirator to a mere coddler or protector. Although the prosecution,
at the time of the filing of the Information, used the words "protector"
or "coddler" to specify Borromeo's participation in the conspiracy, the
terminology is immaterial there being a clear finding of conspiracy.
The use of the words "protector" or "coddler" should not be taken to
mean that his liability as co-conspirator is automatically negated or
reduced. (People vs. CA, G.R. No. 227899, July 10, 2019)

Possession of drugs – Possession of different kinds of

dangerous drugs in a single occasion constitutes a single offense of
possession of dangerous drugs (David vs. People, G.R. No. 181861,
October 17, 2011).

Section 13 of RA 9165 prescribes a higher penalty if a person is

found possessing any dangerous drug during a party, or at a social
gathering or meeting, or in the proximate company of at least two (2)
persons. To qualify the crime, the law does not require that
possession is intended for the purpose of using illegal drugs or that
the accused is having a pot session with two persons. In fact, under
Implementing Rules and Regulations (IRR) of RA 9165, the phrase
"company of at least 2 persons" was defined to "mean the accused
plus at least two (2) others, who may or may not be in possession of
any dangerous drug." (Plan, Jr. vs. People, G.R. No. 247589, August
24, 2020)
137 | P a g e
 The purpose of Section 13 is to deter the proliferation of
prohibited drugs to other persons. Possession of dangerous drugs is
a crime in itself; but when the possessor is found in a situation where
there is a tendency or opportunity to proliferate drugs to other
persons, either through direct peddling or even some indirect
influence, the gravity of the crime is exacerbated. In addition, when
one possesses dangerous drugs, there is always a chance that the
possessor uses and consequently, becomes "under the influence."
Thus, in the circumstances stated in Section 13, the possessor does
not only become an imminent threat to his own safety and well-being,
but also to other people within his close proximity; hence, the stiffer
penalties. (Plan, Jr. vs. People, G.R. No. 247589, August 24, 2020)

Use of dangerous drugs – Use of dangerous drugs is committed

by a person apprehended or arrested, who is found to be positive for
use of any dangerous drug, after a confirmatory test. Where the
person tested is also found to have in his possession, he shall be
charged of possession of dangerous drugs and not use of dangerous
drugs (Section 15 of RA No. 9165).

Where residue of dangerous drugs is found and there is a

positive confirmatory test result, the accused should be charged with
use rather than possession of dangerous drugs. This would be in
keeping with the intent of the law to rehabilitate first time offenders
of drug use and provide them with an opportunity to recover for a
second chance at life (People vs. Matinez, G.R. No. 191366, December
13, 2010).

To be held liable for use of dangerous drugs, two distinct drug

tests are required: a screening test and a confirmatory test. A positive
screening test must be confirmed for it to be valid in a court of law.
The test conducted on the urine specimen of the accused was a Thin
Layer Chromatography or TLC - a screening test. When the urine
sample recovered from accused yielded a positive result, the
specimen should have been subjected to a second test - the
confirmatory test. It is the second or further analytical procedure to
more accurately determine the presence of dangerous drugs in the
specimen. The records are silent on any reference to a second, more
specific, examination on the urine sample. Accused was acquitted.
(People vs. Lopez, G.R. No. 247974, July 13, 2020)

Positive confirmatory test is an element of use of dangerous

drugs. However, the absence of such test cannot be raised as an issue
for the first time on appeal (Ambre vs. People, G.R. No.
191532. August 15, 2012).

Coordination with PDEA - Section 86 of RA No. 9165, which

declares PDEA shall be the "lead agency" in the investigations and
prosecutions of drug-related cases, is more of an administrative
provision. It is silent as to the consequences of failure on the part of
the law enforcers to seek the authority of the PDEA prior to
138 | P a g e
conducting a buy-bust operation (People vs. Berdadero, G.R. No.
179710 June 29, 2010). Lack of coordination with the PDEA will not
invalidate a buy-bust operation. Such coordination is not an
indispensable requirement in buy-bust operations (People vs.
Mendosa, G.R. No. 189327, February 29, 2012).

Chain of custody - The chain of custody refers to recorded

authorized movements and custody of confiscated dangerous drugs.
It involves testimony on every link in the chain - from the confiscation
of the illegal drugs to its receipt in the forensic laboratory up to its
presentation in court. Generally, there are four links in said chain of
custody: 1) the seizure and marking, if practicable, of the illegal drug
confiscated from the accused by the apprehending officer; 2) the
turnover of the seized drug by the apprehending officer to the
investigating officer; 3) the turnover by the investigating officer of said
item to the forensic chemist for examination; and, 4) the turnover
and submission thereof from forensic chemist to the court (People vs.
Gajo, G.R. No. 217026, January 22, 2018; CICL v. People,
G.R.230964, March 02, 2022, Hernando; People vs. Mariano, G.R.
No. 247522, February 28, 2022, Hernando)

Not all people who came into contact with the seized drugs are
required to testify in court. There is nothing in R.A. 9165 or in any
rule implementing the same that imposes such requirement. As long
as the chain of custody of the seized drug was clearly established not
to have been broken and that the prosecution did not fail to identify
properly the drugs seized, it is not indispensable that each and every
person who came into possession of the drugs should take the
witness stand. (Belga vs. People, G.R. No. 241836. November 11,
2021) The non-presentation as witness of the evidence custodian is
not a crucial point against the prosecution since it has the discretion
as to how to present its case and the right to choose whom it wishes
to present as witnesses. (People vs. Campugan, G.R. No. 248418,
May 5, 2021)

Marking - Marking of the seized dangerous drugs is the first

and most crucial step in proving an unbroken chain of custody in
drug-related prosecutions. While marking is not mentioned in
Section 21 of R.A. No. 9165, the importance of immediate and proper
marking of the confiscated items has been affirmed in a string of
cases. (People vs. Campugan, G.R. No. 248418, May 5, 2021)

The first link involves the seizure, marking, physical inventory,

and photographing of the seized items. Case law teaches that the
seized item must be immediately marked at the place of arrest to
obviate any possibility of tampering or switching. This precautionary
measure unfortunately, was blatantly disregarded by the police
officers. The records clearly show that the police officers did not
immediately mark the seized items at the place of the arrest. Instead,
they brought the unmarked seized items to their office on the pretext
that they felt uneasy marking the items at the place of arrest
considering the happening of several shooting incidents thereat.
139 | P a g e
Concededly, deviations from the clear-cut procedure may be allowed,
the same however (1) must be satisfactorily explained by the
prosecution; (2) the integrity and evidentiary value of the seized
evidence had been preserved; and (3) the justifiable ground for non-
compliance is proven as a fact. In this case, the apprehending team's
explanation is hardly satisfactory. There was no showing of an
imminent danger to their life. Also, the law enforcers' allegation that
the place was unsafe was self-serving. It was not established as a
fact. Hence, it does not merit any credence. (People vs. Castillo, G.R.
No. 242520, November 15, 2021)

Inventory and photography – Under Section 21 of RA No. 9165

as amended by RA No. 10640, the apprehending team having initial
custody and control of the dangerous drugs, controlled precursors
and essential chemicals, instruments/paraphernalia and/or
laboratory equipment shall, immediately after seizure and
confiscation, conduct a physical inventory of the seized items and
photograph the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her
representative or counsel, with an elected public official and a
representative of the National Prosecution Service or the media who
shall be required to sign the copies of the inventory and be given a
copy thereof.

The original version of Section 21 of RA No. 9165 expressly

stated that the drugs shall be subjected to inventory, and
photography by the apprehending officer/team. Yet, this should not
be strictly interpreted to mean that only the seized illegal drugs
should undergo the said procedure, to the exclusion of the other
items in the list, specifically "plant sources of dangerous drugs,
controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment." (CICL v.
People, G.R. 230964, March 02, 2022, Hernando) At any rate, RA
10640, which has amended Section 21 of RA No. 9165, expressly
requires that “drugs, controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment” shall be
subjected to inventory, and photography.

Under Section 21 of RA No. 9165 as amended by RA No. 10640,

the inventory and photography of the seized items must be made in
the presence of “at least three persons”, to wit: (1) the accused or the
person from whom such items were confiscated or his representative
or counsel; (2) any elected public official, and (3) the media or
representatives of National Prosecution Service. RA No. 9165 as
amended uses the disjunctive “or” in the phrase “the National
Prosecution elected public official Service or the media.” Thus, a
representative from the media and a representative from the National
Prosecution Service are now alternatives to each other (People vs.
Que, G.R. No. 212994, January 31, 2018; People vs. Baluyot, G.R.
No. 243390, October 05, 2020; CICL v. People, G.R. 230964, March
02, 2022, Hernando)

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 The original version of Section 21 of RA No. 9165 did not provide
the effect of non-compliance of the rule on inventory and photography
of the confiscated item. Section 21 of RA No. 9165 as amended by
Republic Act No. 10640, now includes a proviso that sanctions
noncompliance under "justifiable grounds": Provided, finally, That
noncompliance of these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not render
void and invalid such seizures and custody over said items (People vs.
Que, G.R. No. 212994, January 31, 2018). The justifiable ground for
non-compliance must be proven as a fact, because the Court cannot
presume what these grounds are or that they even exist. Moreover,
for the above-saving clause to apply, the prosecution must explain
the reasons behind the procedural lapses, and that the integrity and
evidentiary value of the seized evidence had nonetheless been
preserved (People vs. Paz, G.R. No. 229512, January 31, 2018).

The following are justifiable grounds for failure to comply with

the three-witnesses rule:

1. The attendance of elective official and media or NPS

representative was impossible because the place of arrest was a
remote area;

2. The safety of these required witnesses during the inventory

and photograph of the seized drugs was threatened by an immediate
retaliatory action of the accused or any person acting for and in his
behalf;

3. The elected official themselves were involved in the

punishable acts sought to be apprehended;

4. The time constraints and urgency of the anti-drug operations,

which often rely on tips of confidential assets, prevented the law
enforcers from obtaining the presence of the required witnesses even
before the offenders could escape; or

5. Earnest efforts to secure the presence of these required

witnesses within the period required under Article 125 of RPC prove
futile through no fault of the arresting officers, who face the threat of
being charged with arbitrary detention. (People vs. Lim, G.R. No.
231989, September 4, 2018; People vs. Addin, G.R. No. 223682,
October 09, 2019, Hernando; People vs. Mariano, G.R. No. 247522,
February 28, 2022, Hernando)

While PO3 Tutor testified that they exerted diligent efforts in

securing the presence of the witnesses, sheer statements of
unavailability of the witnesses given by the apprehending officers are
not justifiable reasons for noncompliance with the requirement. It
bears stressing that the "lack of evidence of serious attempts to
secure the presence of the necessary witnesses result in a substantial
gap in the chain of custody of evidence that shall adversely affect the
141 | P a g e
authenticity of the prohibited substance presented in court." (People
vs. Mariano, G.R. No. 247522, February 28, 2022, Hernando)

The police were able to explain the failure to conduct an

inventory and take photographs of the seized items. This is because
of the intervening fact that one Illuminado Acosta was shot at the
time of the buy-bust operation (People vs. Flor, G.R. No. 216017,
January 19, 2018).

In People vs. Lim, supra, an agent testified that no members of

the media and barangay officials arrived at the crime scene because
it was late at night and it was raining, making it unsafe for them to
wait at the house of the accused. Another agent similarly declared
that the inventory was made in the PDEA office considering that it
was late in the evening and there were no available media
representative and barangay officials despite their effort to contact
them. He admitted that there are times when they do not inform the
barangay officials prior to their operation as they might leak the
confidential information. These justifications are unacceptable as
there was no genuine and sufficient attempt to comply with the law.
The prosecution likewise failed to explain why they did not secure the
presence of a representative from the DOJ. Accused was acquitted.

In People v. Lim, supra, the Supreme Court, En Banc, expressly

required that the police officers must in the sworn statements state
their compliance with the requirements of Section 21 of R.A. No. 9165
or the justification for non-compliance thereof and steps taken to
preserve the integrity of the confiscated dangerous drugs; otherwise,
the investigating fiscal must not immediately file the case before the
court. Instead, he must refer the case for further preliminary
investigation. If the investigating fiscal filed the case despite such
absence, the court may exercise its discretion to either refuse to issue
a commitment order or warrant of arrest or dismiss the case outright
for lack of probable cause.

The policeman failed to comply with the rule on three-witnesses

and did not offer justifiable grounds for such non-compliance.
However, the issue of non–compliance with Section 21 of R.A. No.
9165 cannot be raised for the first time on appeal. Hence, the defense
of the accused should be rejected (People v. Badilla, G.R. No. 218578,
August 31, 2016)

When the quantity of the confiscated substance is miniscule

(e.g., 0.03 grams of shabu), the requirements of Section 21 of RA No.
9165 on the inventory and photograph-taking before the required
three-witness must be strictly complied with. (People vs. Saragena,
G.R. No. 210677, August 23, 2017) On the other hand, a large
quantity of drugs (e.g., 2,000.71 grams of cocaine) seized reduces, if
not eradicates, the possibility of planting or tampering with evidence
(People vs. Vastine, G.R. No. 258328, November 29, 2022; People vs.
Omar, G.R. No. 238870, October 06, 2021) and renders the defense
of frame-up difficult to believe. (People vs. Wai Tang, G.R. No.
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238517, November 27, 2019)

Place where inventory and photography shall be conducted

- Section 21 of RA No. 9165 as amended by RA No. 10640 includes a
specification of locations where the physical inventory and taking of
photographs must be conducted. The amended section uses the
mandatory verb "shall." If there is a search warrant, the physical
inventory and photograph shall be conducted at the place where the
warrant is served. In case of warrantless seizures, the physical
inventory and photograph shall be conducted at the nearest police
station or at the nearest office of the apprehending officer/team,
whichever is practicable (People vs. Que, G.R. No. 212994, January
31, 2018).

Laboratory examination – Under Section 21 of RA 9165, within

twenty-four (24) hours upon confiscation of dangerous drugs
paraphernalia, the same shall be submitted to the PDEA Forensic
Laboratory for examination. The charge of illegal possession of drug
paraphernalia could not prosper because the police officer did not
properly turn over the alleged paraphernalia to the crime laboratory,
as the request for laboratory examination pertained only to the seized
drug from the accused. (Cuico vs. Peoeple, G.R. No. 232293,
December 9, 2020)

There is no evidence showing that the aluminum foil, tube, and

lighters found in the petitioner's house were fit or intended for
introducing any dangerous drug into the body. The prosecution did
not bother to show that there were traces of shabu on any of these
alleged drug paraphernalia. In fact, it appears that the only evidence
that the prosecution offered to prove this charge is the existence of
the seized items by themselves. (Cuico vs. Peoeple, G.R. No. 232293,
December 9, 2020)

Plea bargaining – Section 23 of RA No. 9165, any person

charged under any crime involving dangerous drugs regardless of the
imposable penalty shall not be allowed to avail of the provision on
plea-bargaining. However, this provision was declared
unconstitutional for being contrary to the rule-making authority of
the Supreme Court (Estipona, Jr. vs. Lobrigo, G.R. No. 226679,
August 15, 2017). Following this pronouncement, the Supreme Court
issued A.M. No. 18-03-16-SC providing for a plea-bargaining
framework in drugs cases, while the Secretary of Justice issued DOJ
Circular No. 27 on plea bargaining. The Supreme Court guidelines
on acceptable plea bargaining are different from those provided by
the DOJ.

Department of Justice Circular No. 27 does not violate the rule-

making power of this Court. A.M. No. 18-03-16-SC and Office of the
Court Administrator Circular No. 90-2018 are not part of the Rules
of Court. They are, like Department of Justice Circular No.
27, internal guidelines for plea bargaining in drug offenses. Mere

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conflicting provisions among these issuances will not necessarily
render the executive issuance unconstitutional. A prosecutor's duty
is to prosecute the proper offense based on the sufficiency of the
evidence. Consent to a plea of guilty to a lower offense is solely within
prosecutorial discretion. Courts do not have the discretion to
mandate what offense the prosecution should prosecute. (Concurring
opinion of Justice Leonen in Sayre vs. Xenos, G.R. Nos. 244413 &
244415-16, February 18, 2020)

On July 26, 2022 the Supreme Court came out with a

Clarificatory Guidelines on Plea-Bargaining in Drugs Cases under
which the Dangerous Drugs Courts can overrule the objection of the
public prosecutor to accused’s motion to plea to a lesser offense and
allow plea-bargaining even without the consent to the prosecutor.

RA No. 3019 – Corruption is an independent crime. Section 3

of R.A. No. 3019 reads: “In addition to acts or omissions of public
officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer.” It is clear then that
one may be charged with v3019iolation of R.A. No. 3019 in addition
to a felony under RPC for the same act. (Ramiscal, Jr. v.
Sandiganbayan, G.R. Nos. 169727–28, August 18, 2006) Thus, the
offender in addition to violation of Section 3 of R.A. No. 3019 can be
held liable for falsification of document by public official (Suero v.
People, G.R. No. 156408, January 31, 2005); or malversation through
falsification of document (People vs. Pajaro, G.R. Nos. 167860–65,
June 17, 2008) or failure to render an accounting. (Lumauig v. People,
G.R. No. 166680, July 7, 2014); estafa (Umpa vs. People, G.R. Nos.
246265-66, March 15, 2021) or plunder (See: Senator Revilla vs.
Office of the Ombudsman, G.R. Nos. 212427-28, December 6, 2016)

In Umpa vs. People, G.R. Nos. 246265-66, March 15, 2021, the
accused misrepresented to the complainant that she had the
authority and the capacity to facilitate the issuance of the approved
plan, tax declaration, and certificate of title on Mamaril's land. As
accounting clerk of the Land Registration Authority, the accused had
no authority to process the documents. Relying on these
representations, the complainant paid the accused P640,000. The
accused is liable for estafa and violation of Section 3 (e) of RA No.
3019.

SECTION 3 (A) - Section 3 (a) of RA No. 3019 provides that

persuading, inducing or influencing another public officer to perform
an act constituting a violation of rules and regulations duly
promulgated by competent authority or an offense in connection with
the official duties of the latter, or allowing himself to be persuaded,
induced, or influenced to commit such violation or offense
constitutes corrupt practices.

In Baviera v. Zoleta, G.R. No. 169098, October 12, 2006, Acting

Secretary of Justice Merceditas N. Gutierrez allowed Sridhar Raman,
an Indian national, to leave the country despite the hold departure
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order issued by Secretary of Justice Simeon Datumanong. Gutierrez
is charged in the Office of the Ombudsman for violation of Section 3
(a) of RA No. 3019. The deliberation in the Senate regarding the bill
on anti-graft shows that the mode of committing the crime under
Section 3(a) of RA No. 3019 is persuading, inducing, or influencing a
public officer by another public officer to commit an offense or to
violate rules and regulations by means of consideration, reward,
payment, or remuneration. According to the Office of the
Ombudsman, respondent Gutierrez did not commit a violation of
Section 3 (a) as there is no proof that she received consideration in
exchange for her decision to allow Mr. Raman to travel abroad. The
Supreme Court affirmed the finding of the Office of the Ombudsman.

With due respect to the Office of the Ombudsman, although

consideration, reward, payment, or remuneration is considered an
element by the Senators, the law is still RA No. 3019 and not the
congressional deliberation. The intentions of the lawmakers
established through their deliberation are useful in interpreting the
law, but such intention cannot supplant the law. Section 3 (a) of RA
No. 3019 does not mention consideration, reward, payment, or
remuneration as an element of the crime punishable under this
provision. Hence, the same should not be considered an element of
this crime.

In the latest case of Marzan vs. People, G.R. No. 226167,

October 11, 2021, a senior jail officer released the detainees under a
recognizance issued by a provincial legal officer in disregard of a
commitment order issued by the court and in violation of BJMP rules
and regulations. The Supreme Court through Justice Hernando
convicted the senior jail officer and the provincial legal officer of
violation of Section 3 (a) of RA No. 3019 despite the fact that
consideration, reward, payment, or remuneration is neither alleged in
the information nor proven by evidence.

The crime of violation of Section 3(a) of RA 3019 may be

committed in either of the following modes: (1) when the offender
persuades, induces, or influences another public officer to perform
an act constituting a violation of rules and regulations duly
promulgated by a competent authority or an offense in connection
with the official duties of the public officer; or (2) when the public
officer allowed himself to be persuaded, induced or influenced to
perform said act which constitutes a violation of rules and
regulations promulgated by a competent authority or an offense in
connection with the official duties of the public officer. (Marzan vs.
People, G.R. No. 226167, October 11, 2021, Hernando)

In Marzan vs. People, G.R. No. 226167, October 11, 2021

(Hernando), two persons were arrested for inflicting injuries to
another person and detained by virtue of a commitment order issued
by a municipal trial court. A provincial legal officer, a prominent
figure in the political and legal arena, and a close ally of the Provincial
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Governor issued a recognizance document stating that he will take
the two detainees under his custody. A senior jail officer released the
detainees under an improperly issued Recognizance without an
accompanying Court Order in violation of the law and BJMP rules
and regulations. The provincial legal officer violated Section 3(a) of
RA 3019 of the first mode. As a public officer, the provincial legal
officer persuaded, induced, or influenced another public officer to
release the detainees in violation of BJMP rules. The senior jail officer
violated Section 3(a) of RA 3019 of the second mode. As a public
officer, the senior jail officer allowed himself to be persuaded,
induced, or influenced by the provincial legal officer to release the
detainees in violation of BJMP rules.

In the Marzan case, it was held that the law is clear that the
second mode merely requires that the offender who allowed himself
to be persuaded, induced, or influenced, is a public officer. Thus, in
reference to the second mode of Section 3(a) of RA 3019, it is
immaterial whether the one who induced him was likewise a public
officer or a private individual (such as the father of one of the
detainees).

Applying the Marzan principle, in the first mode of committing

Section 3 (a) of RA No. 3019, the inducer as the offender and the
induced are both public officers, while in the second mode, the
induced as the offender must be a public officer, but the inducer can
be a public officer or a private individual.

Summary:

If a public officer induces another public officer to violate rules

and regulations or to commit a function-related offense, and the
latter allows himself to be induced, the inducer is liable under Section
3 (a) of RA No. 3019 of the first mode, while the induced under
Section 3 (a) of the second mode.

If a private individual induced a public officer to violate rules

and regulations or to commit a function-related offense, and the
latter allows himself to be induced, the inducer is liable under Section
4 (b) of RA No. 3019 while the induced is liable under Section 3 (a) of
the second mode. Section 4 (b) provides that it shall be unlawful for
any person knowingly to induce or cause any public official to commit
any of the offenses defined in Section 3 hereof.

If a public officer or private individual induces another public

officer to violate rules and regulations or commit a function-related
offense, but the latter refuses to be induced, only the inducer is liable
under Section 3 (a) or Section 4 (b).

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 SECTION 3 (B) – Violation of Section 3 (b) is committed by a
public officer, who shall directly or indirectly request or receive any
gift, present, share, percentage, or benefit, for himself or for any other
person, in connection with any contract or transaction between the
Government and any other party, wherein the public officer in his
official capacity has to intervene under the law.

In People v. Sandiganbayan and Justice Secretary Perez, G.R.

No. 188165, December 11, 2013, an information for violation of
Section 3(b), RA No. 3019 alleged that Justice Secretary Nani Perez
demanded and received the amount of $2,000,000 from Mark
Jimenez in consideration of his desisting from pressuring him to
execute affidavits implicating target personalities involved in the
plunder case against former President Estrada. The Sandiganbayan
quashed the information considering that preliminary investigation
cannot be considered as a “contract” or “transaction” contemplated in
Section 3(b) because no “monetary consideration,” as in credit
transaction, is involved. The Supreme Court affirmed the ruling of
the Sandiganbayan.

A regional agrarian reform adjudicator, who requested and

received money and tuna fish from the complainants in exchange for
the issuance in DARAB case of a TRO in complainants' favor is not
liable for violation of Section 3 (b) of RA No. 3019 because the DARAB
proceedings cannot be considered as a “contract” or “transaction”
contemplated in the said provision because no “monetary
consideration,” as in credit transaction, is involved. (People v.
Sandiganbayan and Justice Secretary Perez, G.R. No. 188165,
December 11, 2013) However, the regional agrarian reform
adjudicator is liable for violation of Section 3 (e) of RA No. 3019
because he as a public officer committed manifest partiality and
evident bad faith, which resulted in causing undue injury to private
complainants in the DARAB case, by draining their resources to
secure the TRO. (People vs. Gelacio, G.R. Nos. 250951 and 250958.
August 10, 2022)

In Collao vs. People, G.R. No. 242539. February 1, 2021, as

barangay Chairman, signature of the accused in the purchase order
was necessary to effect payment to the contractor, for the delivery of
construction materials for a basketball court, school supplies and
other sports equipment for the Sangguniang Kabataan. This being
the case, the right of the accused to intervene in his official capacity
is undisputed. The accused, who demanded from the contractor a
commission equivalent to 30% of the contract price, is liable for
violation of Section 3 (b) of RA No. 3019.

SECTION 3 (C) – Violation of Section 3(c) of R.A. No. 3019 is

committed by a public officer who shall directly or indirectly request
or receive any gift, present or other pecuniary or material benefit, for
himself or for another, from any person for whom the public officer,
in any manner or capacity, has secured or obtained, or will secure or

147 | P a g e
obtain, any Government permit or license, in consideration for the
help given or to be given.

Under the last paragraph of Section 3, the person giving the gift,
present, share, percentage or benefit in Section 3(c) shall, together
with the offending public officer, be punished.

In Lucman vs. People, G.R. No. 238815, March 18, 2019, DENR
officer demanded P2,500,000.00 and actually received
P1,500,000.00 from private complainants in consideration of the
grant of their applications for free patents is liable under Section 3
(c).

SECTION 3 (D) – For one to be found guilty under Section 3 (d)

of RA No. 3019, the following elements must be present: (a) the
accused is a public officer; (b) he or she accepted or has a member of
his or her family who accepted employment in a private enterprise;
and (c) such private enterprise has a pending official business with
the public officer during the pendency of official business or within
one year from its termination.

Wife of accused, a TESDA officer, accepted employment in

RACE, Inc., a private enterprise, which has a pending official
business with TESDA. Accused in his official capacity approved
TESDA accreditation of RACE. Accused in conspiracy with his wife,
is liable for corruption under Section 3 (d) of RA No. 3019. Because
of conspiracy, his wife is also liable. Moreover, under Section 9 (a),
private person committing any of the unlawful acts under this law
shall also be punished. (Villanueva vs. People, G.R. No. 237864, July
08, 2020)

The fact that RACE is a non-stock and non-profit educational

association is immaterial. Regardless if the enterprise is for profit or
not, stock or non-stock, the law does not distinguish. It is an
elementary rule in statutory construction that: where the law does
not distinguish, the courts should not distinguish. (Villanueva vs.
People, supra)

Violation of Section 3 (d) of RA 3019 is considered malum

prohibitum. Mere acceptance by co-accused, a family member, of
employment with RACE renders accused liable under the law.
(Villanueva vs. People, supra)

SECTION 3 (E) - The following are the essential elements for

violation of Section 3 (e) of RA 3019: (1) The accused must be a public
officer discharging administrative, judicial or official functions; (2) He
must have acted with manifest partiality, evident bad faith or
inexcusable negligence; and (3) That his action caused any undue
injury to any party, including the government, or giving any private
party unwarranted benefits, advantage or preference in the discharge
of his functions. (Office of the Ombudsman vs. Prudente, G.R. No.

148 | P a g e
201830, November 10, 2015; PCGG vs. Gutierrez, G.R. No. 194159,
October 21, 2015)

Public bidding – A violation of a law (e.g., a law on public

bidding) that is not penal in nature does not, as it cannot,
automatically translate into a violation of Section 3(e) of RA No. 3019.
(Concurring opinion of Justice Caguioa, Villarosa vs. People, G.R.
Nos. 233155-63, June 23, 2020) Violations of the applicable
procurement laws (that generally required public bidding) do not
mean that the elements of the crime under Section 3 (e) of RA No.
3019 are already present as a matter of course. For there to be a
violation under Section 3 (e) of R.A. No. 3019 based on a breach of
applicable procurement laws, one cannot solely rely on the mere fact
that a violation of procurement laws has been committed. It must be
shown that (1) the violation of procurement laws caused undue injury
to any party or gave any private party unwarranted benefits,
advantage or preference; and (2) the accused acted with evident bad
faith, manifest partiality, or gross inexcusable negligence. (Martel vs.
People, G.R. No. 224720-23, February 2, 2021)

The lack of public bidding alone does not automatically equate

to a manifest and gross disadvantage to the government. The
absence of public bidding may mean that the government was not
able to secure the lowest bargain in its favor and may open the door
to graft and corruption. However, this does not satisfy the third
element of the offense charged, because the law requires that the
disadvantage must be manifest and gross. After all, penal laws are
strictly construed against the government. (Caunan v. People, G.R.
Nos. 181999 & 182001-04 and Marquez v. Sandiganbayan, Fourth
Division, G.R. Nos. 182020-24, September 2, 2009)

In the following cases, violation of applicable procurement laws

is not a violation of Section 3 (e) of RA No. 3019:

1. Where the accused honestly believed that their resort to

direct purchase instead of public bidding was proper; (Martel vs.
People, supra)

2. Where the urgency of the situation justifies the awarding of

contract construction of three power plants to resolve the crippling
power crisis without the benefit of public bidding; (Giduquio v. People,
G.R. No. 165927, April 24, 2009)

3. Where nobody suffers injury in awarding a contract without

the benefit of public bidding because there is no charge of over-
pricing, poor construction, kickbacks, or any form of an anomaly of
this nature. (Fernando and Mison v. Sandiganbayan, G.R. No. 96182,
August 19, 1992)

4. Where the accused resorted to emergency mode of

procurement of medicines instead of public bidding but there is no

149 | P a g e
evidence of overpricing. (Renales vs. People, G.R. No. 231530-33 and
Roque vs. Sandiganbayan, G.R. No. 231603-08, June 16, 2021)

However, awarding a government contract without the benefit

of public bidding, which is required by law, may indicate evident bad
faith, (Oani v. People, G.R. No. 139984, March 31, 2005) or gross and
inexcusable negligence. (Ong v. People, G.R. No. 176546, September
25, 2009)

In the following cases, violation of applicable procurement laws

constitutes a crime under Section 3 (e) of RA No. 3019:

1. Where the stockholders, officers, and directors of the

corporation, from which medical supplies were purchased by the
municipality without public bidding, are relatives of the mayor;
(Cabrera v. People, G.R. Nos. 191611-14, July 29, 2019; People v.
Austria, G.R. 243897, June 08, 2020)

2. Where the principal of a public school purchased fire

extinguishers and office and school supplies without the benefit of
public bidding, in gross and evident bad faith, resulting in the
considerable overpricing of the fire extinguishers and the supplies, to
the gross prejudice of the government. (Oani v. People, supra; see
also: (People vs. Caballes, G.R. No. 250367 & 250400-05, August 31,
2022, Hernando)

3. Where the mayor is aware of the provisions of RA 7160 on

personal canvass but he did not follow the law because he was merely
following the practice of his predecessors, and he admitted that the
canvass sheets sent out to the suppliers already contained his
signatures because he pre-signed these forms. (Sison v. People, G.R.
Nos. 170339, 170398-403, March 9, 2010)

4. Where the mayor and others allowed the Municipality to

purchase construction materials, and to rent construction
equipment from Double A without prior public bidding, and caused
the payment of P2,500,000.00.00 to Double A despite absence of the
required supporting documents. (Tio vs. People, G.R. No. 230132,
and Cadiz vs. Hon. Sandiganbayan, G.R. No. 230252, January 19,
2021)

Permit to construct - Accused, an Administrator of Intramuros

Administration, acted with gross inexcusable negligence when he
knowingly allowed OCDC to commence construction on the
Intramuros Walls without the required permits or clearances. By his
actions, he gave unwarranted benefits to a private party, i.e., OCDC,
to the detriment of the public insofar as the preservation and
development plans for Intramuros are concerned. He is liable for
violation of Section 3 (e) of RA No. 3019 (Ferrer vs. People, G.R. No.
240209, June 10, 2019)

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 Notice to proceed - Accused gave unwarranted benefits and
advantage to several contractors by allowing them to deploy their
equipment ahead of the scheduled public bidding. Under law, a
public contract shall be awarded to the lowest prequalified bidder.
The successful bidder may be allowed to commence work only upon
receipt of a Notice to Proceed. They are liable for violation of Section
3 (e) of RA No. 3019. (Abubakar vs. People, G.R. No. 202408, June
27, 2018)

Disbursement of fund for unauthorized travel - Accused, a

Mayor of Municipality of Taal, travelled to Manila, without securing
permission from Governor prior to his departure. As Mayor, he
approved disbursement of funds representing reimbursement for
travel expenses. When audit was conducted, he obtained travel
approval from the Governor. A travel is unauthorized because the
accused did not obtain a written permission from the governor prior
to his departure as required by law. Subsequent approval of the travel
by the Governor will not validate the travel. Unauthorized travel is
not a violation of Section 3 (e) of RA No. 3019. But approving
disbursement of public fund for reimbursement of expenses for
unauthorized travel violates this provision since it caused undue
injury to Municipality of Taal through bad faith. (Cabrera vs. People,
G.R. Nos. 191611-14, July 29, 2019)

Donating in good faith - It cannot be denied that the transfer

of the vehicles to SFWD was made to ensure the success of the
implementation of the waterworks projects in the province. The Deed
of Donation expressly provided that the subject vehicles shall be used
for the said purpose. There is no showing that the accused acted in
bad faith in donating the vehicles. Accused was acquitted of violation
of RA No. 3019 (Bustillo vs. People, G.R. No. 160718 May 12, 2010).

Granting separation pay in good faith – Quiogue vs. Estacio,

G.R. No. 218530, January 13, 2021, it is undisputed that the board
resolution which granted separation pay benefits is a corporate act
and Estacio is only one among the board of directors of IRC. Also, a
simple reading of the board resolution reveals that the corporation
has previously granted separation benefits to all employees of IRC
exclusive of its officers. In issuing the board resolution, the IRC board
of directors simply recognized that it is equitable to grant the same
separation benefits being enjoyed by IRC employees to its officers.
How can there be evident bad faith when the perceived benefit has
long been enjoyed by all employees of IRC before it was granted to
the officers such as Estacio. There is no evident bad faith or some
perverse motive or ill will on the part of Estacio as there was no
showing that he was unduly favored by the issuance of the board
resolution.

Erroneous interpretation of the law - Five percent (5%) of the

total PhilHealth honoraria was allocated to the non - health
professionals OR staff of the PCB Provider. As to who these non-
health or professionals mentioned, they were not specifically
151 | P a g e
identified. The rule does not expressly indicate whether they need be
part of the official roll of employees of the Municipal Health Office.
Non-health professionals include the rank and file employees or
administrative staff of the Municipal Health Office who are not among
the front liners providing access to health care. It also covers
volunteers and community members of health teams. This led
accused to honestly believed, albeit mistakenly, that the office of the
municipal mayor which exercises control and supervision over the
Municipal Health Office and its personnel, may likewise be covered
by the term "non-health professional." Consequently, he acted in
good faith when he received the P17,512.50 honorarium, anchored
as it was on the honest belief that he was legally entitled to the
benefit. Otherwise stated, accused did not act in bad faith when he
mistakenly interpreted Section V (G) of PhilHealth Circular No. 010
s. 2012. Erroneous interpretation of a provision of law, absent any
showing of some dishonest or wrongful purpose, does not constitute
and does not necessarily amount to bad faith. (People vs. Bacaltos,
G.R. No. 248701, July 28, 2020)

Under Section 138 of Local Government Code, permit to extract

sand, gravel and other quarry resources shall be issued exclusively
by the provincial governor. However, under Section 444 of the same,
a municipal mayor has a general authority to issue licenses and
permits. Believing in good faith that applicability of Section 444, the
accused, a municipal mayor issued extraction permits. He was
acquitted of the charge of violation of Section 3 (e) of RA No. 3019.
(Villarosa vs. People, G.R. Nos. 233155-63, June 23, 2020)

In People vs. Pallasigue, G.R. Nos. 248653-54, July 14, 2021,

the accused cannot be held guilty for violation of Section 3(e) of R.A.
No. 3019. It is settled that decisions of the CSCROs and the CSC
shall be immediately executory after 15 days from receipt thereof,
unless a motion for reconsideration or a petition for review is
seasonably filed, in which case the execution of the decision shall be
held in abeyance. Though he was mistaken in his understanding that
a writ of execution was necessary to implement the reinstatement
order, he believed in good faith that he validly issued Segura's order
of reassignment and that a writ of execution was necessary before
implementing complainant's reinstatement. Here, there is no
corruption nor self-interest that can be attributed to accused.
According to Justice Caguioa in his concurring opinion in Villarosa
v. People, it is unjust to automatically punish someone with
a criminal sentence by virtue of his non-compliance with a non-penal
rule.
Travel without permit - Pushing through with the foreign
travel despite not having a written travel authority does not violate
Section 3 (e) if there is no showing that the traveling public officer is
aware of the letter of disapproval issued by his superior officer. Errors
or mistakes are not by themselves indicative of bad faith. (Suba vs.
Sandiganbayan, G.R. No. 235418, March 03, 2021)

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 Demolition without due process of law - In Cuerpo vs. People,
G.R. No. 203382, September 18, 2019, members of Samahan
occupied lands in Quezon City as squatters. In an ejectment case,
they agreed to voluntarily vacate the properties. They planned to
relocate in Rodriguez, Rizal, but the accused, municipal mayor,
refused to allow squatters to relocate therein. Samahan bought a
property therein but Office of the Municipal Engineer refuse to
process the application for building permit. Because of the writ of
demolition issued by the Court of Quezon City, members of the
Samahan were forced moved to their purchased lot and built
temporary shelters made of lumber and tarpaulin despite the lack of
building. Accused caused the demolition the makeshift homes and
took away lumber, tarpaulin, plywood, and appliances. Accused is
liable for violation of Section 3 (e) of RA No. 3019 for causing undue
injury to the members of Samahan through manifest partiality and
evidence bad faith.

Under the Constitution, urban or rural poor dwellers shall not

be evicted nor their dwellings demolished, except in accordance with
law and a just and humane manner. Members of Samahan are urban
poor dwellers, and yet, they were evicted in disregard of the law.

Under RA No. 7279, summary eviction and demolition are also

allowed in cases pertaining to identified professional squatters,
squatting syndicates and new squatter families. "Professional
squatters'" refer to individuals or groups who occupy lands without
the express consent of the landowner and who have sufficient income
for legitimate housing. They are persons who have previously been
awarded homelots or housing units by the Government but who sold,
leased or transferred the same to settle illegally in the same place or
in another urban area, and non-bona fide occupants and intruders
of lands reserved for socialized housing. The term shall not apply to
individuals or groups who simply rent land and housing from
professional squatters or squatting syndicates. "Squatting
syndicates", on the other hand, refers to groups of persons engaged
in the business of squatter housing for profit or gain. While "new
squatter" refers to individual groups who occupy land without the
express consent of the landowner after March 28, 1992. Members of
Samahan are not squatters because the construction of makeshift
homes was made on their own property.

Under RA No. 7279, eviction or demolition, however, may be

allowed under the following situations: (a) When persons or entities
occupy danger areas such as esteros, railroad tracks, and other
public places such as sidewalks, and parks; (b) When government
infrastructure projects with available funding are about to be
implemented; or (c) When there is a court order for eviction and
demolition. None of these circumstances is obtaining in this case.

Granting that the shanties of members of Samahan were

constructed without the necessary building or development permits,
this fact does not automatically necessitate the summary demolition.
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Property rights are involved, thereby needing notices and opportunity
to be heard as provided for in the constitutionally guaranteed right
of due process. Without compliance with the laws allowing for
eviction and demolition, accused was not justified in employing
procedural sidesteps in displacing them from their property by a
mere Memorandum ordering for summary demolition issued by
accused. Accused should have undergone the appropriate proceeding
as set out in the law.

Abandonment of Sistoza principle – In Sistoza v. Desierto,

G.R. No. 144784, September 3, 2002, the Information against the
petitioner, while specifying manifest partiality and evident bad faith,
did not allege gross inexcusable negligence as a modality in the
commission of the offense charged. It was held that Section 3(e) of
RA No. 3019 is committed either by dolo or culpa. Although the
Information may have alleged only one of the modalities of committing
the offense, the other mode is deemed included in the accusation to
allow proof thereof.

However, in Villarosa vs. People, G.R. Nos. 233155-63, June 23,

2020, the Supreme Court En Banc abandoned the Sistoza principle.
It was held that the Informations filed against petitioner all accuse
the latter of violating Section 3(e) of RA 3019 through evident bad
faith only. Not one Information accused petitioner of violating the
same provision through gross inexcusable negligence. Evident bad
faith and gross inexcusable negligence are two of the three modalities
of committing violations of Section 3(e). Hence, while all three
modalities may be alleged simultaneously in a single information for
violation of Section 3(e), an allegation of only one modality without
mention of the others necessarily means the exclusion of those not
mentioned. Verily, an accusation for a violation of Section 3(e)
committed through evident bad faith only, cannot be considered as
synonymous to, or includes an accusation of violation of Section 3(e)
committed through gross inexcusable negligence.

In Buencamino vs. People, G.R. No. 216745-46, November 10,

2020, the Supreme Court through affirmed the Villarosa principle.

154 | P a g e
 Arias principle – In Arias v. Sandiganbayan, G.R. Nos. 81563
and 82512, December 19, 1989, the property bought by the City is
overpriced. When the accused was appointed as treasurer, the sale
of the property had already been consummated. Accused was
charged with violation of Section 3(e) of R.A. No. 3019 for causing
damage to the government through manifest partiality and evident
bad faith. The only evidence presented by the prosecution is his
signature on the voucher. He was acquitted. Heads of offices can rely
to a reasonable extent on their subordinates on preparation of bids,
purchase of supplies, or negotiations. Any executive head agencies
or commissions can attest to the volume of papers that must be
signed. Thus, executive head cannot be convicted on the sole basis
of signature or approval appearing on a voucher. To sustain a
conspiracy charge and conviction, evidence must be presented other
than her signature on the voucher.

In a catena of cases decided by the Supreme Court, it has been

consistently ruled that a mere signature or approval appearing on a
document does not meet the required quantum of proof to establish
the existence of conspiracy. Mere signature or approval appearing on
a voucher, check or warrant is not enough to sustain a finding of
conspiracy among public officials and employees charged with
defraudation. There must be proof to indicate that the accused had
taken part in "planning, preparation and perpetration of the alleged
conspiracy to defraud the government." Otherwise, any "careless use
of the conspiracy theory (can) sweep into jail even innocent persons
who may have (only) been made unwitting tools by the criminal
minds" really responsible for that irregularity. (Macairain vs. People,
G.R. No. 215104. March 18, 2021)

The principle in the Arias case is not applicable in the following

cases:

a. If other than the accused’s signature on the voucher,

circumstances show evident bad faith, or manifest partiality such as:
(a) Where the accused has foreknowledge of existing anomaly – e.g.,
mayor signed the inspection report and the disbursement voucher
despite the fact that he had foreknowledge that the materials
delivered by Guadines have already been confiscated by the DENR
(Escara v. People, G.R. No. 164921, July 8, 2005); or (b) where accused
approved the voucher without indication of the retention money
required by law, and he even inspected the construction site of
hospital boat being constructed, in which he should have noticed the
financial weakness of the contractor and the defective works (Rivera
v. People, G.R. No. 156577, December 3, 2014);

b. If other than the accused’s signature on the voucher,

circumstances show gross inexcusable negligence such as where
there is deviation from ordinary procedure, which necessitate further
investigation – e.g., mayor issued and encashed municipal checks
despite the facts that the disbursement vouchers were in the name
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of Kelly Lumber but the checks were payable to another person and
not to Kelly Lumber (Cruz v. The Hon. Sandiganbayan, G.R. No.
134493, August 16, 2005);

In Lihaylihay vs. People, G.R. No. 191219, July 31, 2013, the
accused in his capacity as Chairman of the Inspection and
Acceptance Committee, signed the 16 certificates of acceptance,
inventory, and delivery of articles despite its incompleteness or lack
of material dates, while co-accused certified to the correctness of the
Inspection Report Forms even if no such deliveries were made. Since
there are reasons for the heads of offices to further examine the
documents in question, accused cannot seek refuge by invoking the
Arias doctrine.

The Arias doctrine cannot exonerate accused from criminal

liability because there were circumstances that should have
prompted them to make further inquiries on the transactions subject
of this case e.g., the irregular mobilization of contractors prior to the
scheduled public bidding, and contract which contains a patently
illegal stipulation and advance payment without appropriate
documents such as purchase orders and delivery receipts to support
this disbursement. (Abubakar vs. People, G.R. No. 202408, June 27,
2018)

Caballes failed to prove that the Arias case is applicable to him.

Unlike in Arias, there exists in the instant case several
circumstances which should have alerted Caballes to be on guard
and examine the several supporting documents sent to his office with
some degree of circumspection before signing the RIVs, POs, and/or
DVs. To restate, Caballes' role in the procurement/purchases is
evident from the fact that he signed different documents at different
stages, from the RIV, to the PO, to the DV, and even until the final
stage of receiving the items delivered, as shown in the Certificates of
Acceptance which he also signed. Therefore, the Court cannot extend
the protection afforded by the Arias doctrine to Caballes. (People vs.
Caballes, G.R. No. 250367 & 250400-05, August 31, 2022,
Hernando)

c. If the public officer acting in his capacity as head of office has

not relied on his subordinates but on officers of equal rank such as
heads of the Office of the City Treasurer and, the Office of the City
Accountant in approving the cash advances in the amount of P18
million to paymaster despite of the failure to liquidate previous cash
advances (Jaca v. People, G.R. No. 166967, January 28, 2013); and

d. If the documents involving the release of funds are not so

voluminous so as to preclude him from studying each one carefully.
(Santillano v. People, G.R. Nos. 175045–46, March 3, 2010)

Malversation can be committed intentionally or through dolo.

Hence, the Arias principle cannot be applied as a defense in a case

156 | P a g e
involving malversation if there is evidence of negligence on the part
of the accountable officer.

Where there are circumstances that should have alerted heads

of offices to exercise more diligence in the performance of their duties,
they cannot escape liability by claiming that they relied on good faith
on the submissions of their subordinates. There were discrepancies
in the voucher and the check, which should have prodded. The
governor, treasurer, management and audit analyst to examine the
supporting documents for the fund disbursement. Thus, Arias is not
applicable. They are liable of malversation through negligence.
(Escobar vs. People, G.R. No. 205576, November 20, 2017)

Actual damage - In causing undue injury to the government or

any party under Section 3 (e) of RA No. 3019, offended party must
sustain actual loss or damage, which must exist as a fact and cannot
be based on speculations or conjectures. The loss or damage need
not be proven with actual certainty. However, there must be some
reasonable basis by which the court, can measure it. Aside from this,
the loss or damage must be substantial. It must be more than
necessary, excessive, improper or illegal. In giving unwarranted
benefits, advantage, or preference to a private party, proof of the
extent or quantum of damage is not thus essential. It is sufficient
that the accused has given unjustified favor or benefit to another.
(Cabrera vs. People, G.R. Nos. 191611-14, July 29, 2019; (People vs.
Caballes, G.R. No. 250367 & 250400-05, August 31, 2022,
Hernando)

SECTION 3 (F) - Violation of Section 3(f) of R.A. No. 3019 is

committed by a public officer who shall neglect or refuse without
sufficient justification to act within a reasonable time on any matter
pending before him after due demand or request for the purpose of
(1) obtaining, directly or indirectly, from any person interested in the
matter some pecuniary or material benefit or advantage; (2) favoring
his own interest; (3) giving an undue advantage in favor of other
interested parties; or (4) discriminating against other interested
parties.

In Lacap vs. Sandiganbayan, G.R. No. 198162, June 21, 2017,

while the power or authority of the accused, a municipal mayor, to
issue a business permit is discretionary, its exercise must be
according to law and ordinance. The mayor should act on the
application for a business permit; she should either approve or
disapprove the same. The accused deliberately refused to act on the
application for a business permit to discriminate against the
applicant, who was her political rival and, who filed several
complaints against her and her husband. The accused even told the
applicant in her office "Are you lucky? You filed a case against my
husband, you filed a case against me, and now, I will issue you a
permit? Get out!." Accused was convicted of violation of Section 3 (f)
of RA No. 3019.

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 SECTION 3 (G) - The elements of violation of Section 3 (g) are:
(a) that the accused is a public officer; (b) that he entered into a
contract or transaction on behalf of the government; and (c) that such
contract or transaction is grossly and manifestly disadvantageous to
the government. (PCGG vs. Gutierrez, G.R. No. 194159, October 21,
2015)

Unlike Section 3 (e) of RA No. 3019, Section 3 (g) does not

require the giving of unwarranted benefits, advantages or preferences
to private parties who conspire with public officers, its core element
being the engagement in a transaction or contract that is grossly and
manifestly disadvantageous to the government. (PCGG vs. Office of
the Ombudsman, G.R. No. 193176, February 24, 2016)

Behest loan – Granting of behest loan by government bank or

entity to private individual violates Section 3 (g) of RA No. 3019 by
entering into a contract or transaction on behalf of the government,
which is grossly and manifestly disadvantageous to the government;
or Section 3 (e) by giving unwarranted benefits, advantage or
preference to private party through evident bad faith and gross
inexcusable negligence.

The following criteria may be utilized as a frame of reference in

determining a behest loan: (1) it is under-collateralized; (2) the
borrower corporation is undercapitalized; (3) direct or indirect
endorsement by high government officials like presence of marginal
notes; (4) stockholders, officers or agents of the borrower corporation
are identified as cronies (of high government officials); (5) deviation of
use of loan proceeds from the purpose intended; (6) Use of corporate
layering; (7) non-feasibility of the project for which financing is being
sought; and (8) extraordinary speed in which the loan release was
made. (See: PCGG vs. Desierto, G.R. No. 139296, November 23, 2007)

The amount and number of loans (P16 million) obtained from

the government bank by the private company despite being
undercapitalized (P7 million capital stock) and absence of any action
by the bank to collect full payment are showing that the contract,
which is manifestly disadvantageous on the part of the government,
violates Section 3 (g) of RA No. 3019. The private individual, who
obtained that loan, and the responsible bank officers are liable for
the crime of corruption. Private persons may likewise be charged
with violation of Section 3(g) of RA 3019 if they conspired with the
public officer in consonance with the avowed policy of this law, which
is to repress certain acts of public officers and private persons
(Singian, Jr. vs. Sandiganbayan, G.R. Nos. 195011-19 September 30,
2013).

The PCGG took the position that since nearly 64% of the
collaterals were yet to be acquired, the loans granted by DBP in favor
of PPRC were undercollateralized. Even if the collaterals consisted
mostly of assets yet to be acquired, the inclusion of after-acquired
properties in a mortgage contract was held to be lawful. The elements
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of evident bad faith, manifest partiality or gross inexcusable
negligence are lacking and PCGG failed to prove that the questioned
foreign currency loans granted by the DBP to PPRC were grossly and
manifestly disadvantageous to the government. Hence, there is no
probable cause to charge the respondents with violation of Section 3
(e) or (g) of RA No. 3019. (PCGG vs. Office of the Ombudsman, G.R.
No. 195962, April 18, 2018) The transaction between DBP and PPRC
cannot be classified as behest loan.

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 Overpricing - In Caunan v. People, G.R. Nos. 181999 and
182001-04 and Marquez v. Sandiganbayan, Fourth Division, G.R.
Nos. 182020-24, September 2, 2009, the evidence of the prosecution
did not include a signed price quotation from the walis tingting
suppliers of Parañaque City. In fact, even the walis tingting furnished
the audit team by the petitioners and the other accused was different
from the walis tingting actually utilized by the Parañaque City street
sweepers at the time of ocular inspection by the audit team. At the
barest minimum, the evidence presented by the prosecution, in order
to substantiate the allegation of overpricing, should have been
identical to the walis tingting purchased in 1996-1998. Only then
could it be concluded that the walis tingting purchases were
disadvantageous to the government because only then could a
determination have been made to show that the disadvantage was so
manifest and gross as to make a public official liable under Section
3(g) of RA No. 3019.

In Lee vs. Hon. Sandiganbayan, G.R. Nos. 234664-67, January

12, 2021, it was held that the circumstances obtaining in Caunan v.
People, which involved the procurement of walis tingting, are
different from the case at bar, which involved the procurement of
fertilizers. The manufacture, production, sale, distribution, and
importation of fertilizer are regulated by law. The Fertilizer and
Pesticides Authority is mandated to implement such regulation. As
such, FPA maintains a list of licensed fertilizer handlers and
registered fertilizers that can be sold and distributed in the market.
It likewise regularly conducts price monitoring of fertilizers in the
market and prepares a list of average fertilizer prices. Thus, data,
which are required in the determination of the existence of other
fertilizers in the market as suitable substitutes, are readily available.
There is no such regulation with respect to a walis tingting. There is
no such agency that prepares and keeps relevant data for a walis
tingting. Thus, data with which to determine the prevailing prices of
a walis tingting is not available and must be supplanted by
competent evidence. In this, the Governor for the province purchase
bio nature liquid fertilizer in the amount of Php3,000,000.00, when
said quantity of fertilizer costs only Php360,000.00. The contract is
manifestly and grossly disadvantageous. He give unwarranted
preference to the exclusive distributor of nature liquid fertilizer. The
Governor and his co-accused were convicted of violation of Section 3
(e) and (g) of RA No. 3019.

SECTION 3 (H) - Violation of Section 3 (h) of RA No. 3019 is

committed by a public officer, who directly or indirectly have financial
or pecuniary interest in any business, contract or transaction in
connection with which he intervenes or takes part in his official

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capacity, or in which he is prohibited by the Constitution or by any
law from having any interest.

In People vs. Hon. Sandiganbayan, G.R. Nos. 233280-92,

September 18, 2019, the accused is a TESDA director. The Bids and
Award Committee members recommended the award to supplies
materials to CDZ Enterprises owned by the sister of the accused.
TESDA had several purchase orders from this company. Accused was
acquitted of the crime of violation of Section 3 (h) of RA No. 3019.

In this case, the prosecution merely assumed the pecuniary

interest of the accused when her sister's company, CDZ Enterprises,
was able to submit the lowest price quotations for the contracts due
to the accused's intervention. The existence of relationship per
se does not automatically translate to having direct or indirect
financial interest in the subject contracts. The prosecution was not
able to present evidence that the accused received any financial
benefit from these transactions. Mere allegation that the parties are
related to each other is not conclusive proof of such pecuniary
interest.

Indirect pecuniary benefit cannot be presumed from the mere

fact of assistance being rendered by accused to her sister in obtaining
the award at TESDA. Article 291 of the Civil Code cannot be made to
apply in this case, since the record is bereft of proof that accused was
obliged to financially support or that she was, in fact, providing
financial support to her sister or that the latter was financially
dependent on the former. Since her sister is the registered owner of
CDZ Enterprises, it is presumed that she is financially independent
from accused.

In the Tuvera case, the respondent, who is the Presidential

Executive Assistant of President Marcos, is the father of the principal
stockholder of Twin Peaks. Acting on the request of Twin Peaks,
President Marcos granted Timber License Agreement in favor of the
company. There was no public bidding. They failed to comply with
the requisites for the grant of such agreement by negotiation. Twin
Peaks was not legally capacitated to be granted such agreement
because it has insufficient logging equipment to engage in the logging
business. According to the Supreme Court in Tuvera case, certainly,
the circumstances presented by the evidence of the prosecution are
sufficient to shift the burden of evidence to respondent in
establishing that he did not violate the provisions of RA No. 3019 in
relation to the Twin Peaks' request. The burden was shifted to
respondent because he waived his right to present evidence to
disprove that he violated the allegations against him.

None of the foregoing circumstances in Tuvera case were

present in the case of People vs. Hon. Sandiganbayan. Unlike in
the Tuvera case where the totality of the prosecution evidence created
a presumption of indirect pecuniary benefit against the accused, the
prosecution in People vs. Hon. Sandiganbayan failed to show the
161 | P a g e
connection of Zurbano to CDZ Enterprises or how Zurbano's
intervention led to her acquisition of any financial interest or benefit.
The assistance rendered to a sibling maybe by reason of love or some
other concept of familial duty, without not necessarily contemplating
any monetary gain.

Receiving gift – Receiving gift by public officer (e.g policeman)

per se is not a crime.

Under Section 3 (d) of RA No.6713, "receiving any gift" includes

the act of accepting directly or indirectly, a gift from a person other
than a member of his family or relative as defined in this Act, even
on the occasion of a family celebration or national festivity like
Christmas, if the value of the gift is neither nominal nor insignificant,
or the gift is given in anticipation of, or in exchange for, a favor.

If the value of the gift is nominal or insignificant, or the gift is

not given in anticipation of, or in exchange for, a favor, the police
officer, who received such gift, is not liable under Section 7 (d) of RA
No. 6713.

In Mabini vs. Raga, A.M. No. P-06-2150, June 21, 2006,

complainant presented a letter signed by Branch 28 employees,
including respondent, thanking Governor Roño for his “donation” of
P1,500.00. However, there is no proof whatsoever that a solicitation
took place. The cash gift of P1,500.00 was received not by
respondent Lilia alone, but together with eleven other employees of
Branch 28, to purchase lechon for their Christmas party; hence, the
individual benefit of the employees may be considered nominal.
Neither does it appear from the evidence that the nominal gift was
given in anticipation of, or in exchange for, a favor. Thus, respondent
Lilia cannot be held liable under Republic Act No. 6713 because the
governor’s gift, aside from being unsolicited, was also nominal or
insignificant in value; and not given in anticipation of, or in exchange
for, a favor. The receipt of the gift does not fall within the ambit of
Section 7 (d) of RA No. 6713, in relation to Sections 3 (c) and (d).

Section 14 of RA No. 3019 recognizes as lawful receipt of

unsolicited gift of insignificant value of a gift given as a token of
gratitude. This provision provides: Unsolicited gifts or presents of
small or insignificant value offered or given as a mere ordinary token
of gratitude or friendship according to local customs or usage, shall be
excepted from the provisions of this Act.

SECTION 3 (J) – Violation of Section 3 (j) of RA No. 3019 is

committed by a public officer who knowingly approving or granting
any license, permit, privilege or benefit in favor of any person not
qualified for or not legally entitled to such license, permit, privilege
or advantage or of a mere representative or dummy of one who is not
so qualified or entitled.
The accused, a mayor, issued a business permit for the
operation of Jai-Alai betting station in the city. The law prohibits Jai-
162 | P a g e
Alai operation. The accused should have been aware that city is not
clothed with the authority to grant franchise, license, or permit for
the operation of jai-alai and other forms of gambling. To validly
operate jai-alai, the applicant must first obtain a statutory
authorization, or an express legislative grant from Congress allowing
the same. The accused is liable for the violation of Section 3 (j) of RA
No. 3019. The cancellation of the said business permit is immaterial
as the crime had already been consummated the moment the subject
permit was issued to the applicant despite not being qualified or
legally entitled to such a business permit. (Panes vs. People, G.R. No.
234561, November 11, 2021)

PLUNDER - Plunder is committed by any public officer who

shall amass, accumulate or acquire ill-gotten wealth through a
combination or series of overt or criminal acts (predicate crimes) in
the aggregate amount or total value of at least P50,000,000.00 by
himself or in connivance with other persons.

Predicate crimes - The predicates of plunder are as follows:

1. Misappropriation, conversion, misuse, or malversation of

public funds or raids on the public treasury;
2. Receiving, directly or indirectly, any commission, gift, share,
percentage, kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any government
contract or project or by reason of the office or position of the public
officer;
3. Illegal or fraudulent conveyance or disposition of assets
belonging to government;
4. By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation
including the promise of future employment in any business
enterprise or undertaking;
5. By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of decrees
and orders intended to benefit particular persons or special interests;
or
6. By taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.

The concept of malversation as a predicate crime of plunder is

the same as that of malversation under Article 217 of the Revised
Penal Code. (Gloria Macapagal Arroyo v. People, G.R. No. 220598, July
19, 2016)

The plunderer must be benefitted from the raid on public

treasury to consider this predicate crime of plunder as present. The
interpretation of the term “raid on a public treasury” should be made
in association with the words that immediately preceded it, and that
are “misappropriation, conversion, misuse or malversation of public
163 | P a g e
funds.” All of these predicate crimes presuppose that the plunderer
benefitted from them. (See: Gloria Macapagal Arroyo v. People, supra)
Justice Leonen in his dissenting opinion said that persona benefit is
not an element of plunder.

In Valencia vs. Sandiganbayan, G.R. No. 220398, June 10,

2019, the information for plunder alleged that the
accused diverted the funds and converted the same,
withdrew and received and unlawfully transferred the proceeds into
their possession and control, and that they took advantage of their
respective positions to enrich themselves. The defense filed a motion
to quash because accused only allegedly amassed the amount of
P13.3 million which was way below the P50 million threshold for
plunder. Sandiganbayan denied the motion to quash since there was
sufficient evidence to convict him of malversation, which is predicate
crime of plunder. The denial was elevated to the Supreme Court. It
was held that in averring the predicate act of malversation, the State
did not sufficiently allege the aforementioned essential elements of
malversation in the information. The omission from the information
of factual details (e.g., the accused is an accountable officer)
descriptive of the aforementioned elements of malversation
highlighted the insufficiency of the allegations. Consequently, the
position of the Sandiganbayan is entirely unfounded.

Note: Valencia principle is not be applied where the elements

of malversation as a predicate crime of plunder are sufficiently
alleged in the information.

Identification of the main plunderer - If there are several

accused in plunder case, who acted under a single conspiracy, or
wheel conspiracy, or chain conspiracy, the main plunderer must be
identified. The law on plunder requires that a particular public officer
must be identified as the one who amassed, acquired or accumulated
ill-gotten wealth in the amount of at least P50 million. Surely, the law
requires in the criminal charge for plunder against several
individuals that there must be a main plunderer and her co-
conspirators. (See: Arroyo vs. People, G.R. No. 220598, April 18,
2017)

In Arroyo vs. People, supra, a case for plunder involving the

misappropriation of PCSO funds amounting to P360 million was filed
against ten (10) accused including President Arroyo. However, the
information did not identify President Arroyo or any other accused as
the principal plunderer. Hence, the case was dismissed. It was held
that because plunder is a crime that only a public official can commit
by amassing, accumulating, or acquiring ill-gotten wealth in the
aggregate amount or total value of at least ₱50,000,000.00, the
identification in the information of such public official as the main
plunderer among the several individuals thus charged is logically
necessary under the law itself. The individuals charged therein were
10 public officials; hence, it was only proper to identify the main
plunderer or plunderers among the 10 accused who herself or himself
164 | P a g e
had amassed, accumulated, or acquired ill-gotten wealth with the
total value of at least ₱50,000,000.00.

With due respect to the Supreme Court, it is submitted that

identification of main plunderers among the accused is not
indispensable in the prosecution for plunder since all accused can be
the plunders. If 3, 5 or 9 accused out of 10 can be the main plunders,
it follows that 10 out of 10 or all accused can be the plunderers. The
information in the Arroyo case alleged that accused are all public
officers conspiring with one another amass, accumulate and
acquirePHP365,997,915.00 through any or a combination or a series
of overt or criminal acts. Thus, the information identified them all as
main plunderers. In fact, Justice Leonen and Justice Serena
dissented. But for purpose of the bar examination, the majority ruling
in Arroyo case should be followed.

Single plunderer - Plunder can be committed by the public

officer acting alone (Ejercito v. Sandiganbayan, G.R. Nos. 157294-95,
November 30, 2006, Concurring opinion of Justice Panganiban)

Conspiracy in Plunder - Plunder can be committed by the

public officer in connivance with other persons. If the public officer
committed plunder in connivance with other persons, the “other
persons” or the participants (secondary offenders) are also liable on
the basis of conspiracy. Moreover, the participants, with whom the
public officer connived in committing plunder, are liable under R.A.
No. 7080. Under Section 2 of this law, any person who participated
with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for
such offense.

Where the public officer connives with other persons in

committing plunder, their liabilities are subject to single conspiracy
or multiple conspiracies. There are two structures of multiple
conspiracies, namely: wheel or circle conspiracy and chain
conspiracy.

Single Conspiracy - In single conspiracy, the public officer

conspired with a single individual or group in committing plunder.
The main plunderer in this case must be a public officer. But the
participants in this case can be public officers or private individuals.

Hypothetical problem: A Senator conspired with private

individual, Maria, in acquiring ill-gotten wealth through a series of
misappropriation of his pork barrel amounting to P80 million. They
agreed to equally divide the money. On the basis of conspiracy, the
total amount of ill-gotten wealth acquired by the conspirators shall
be considered for purposes of determining if P50-million threshold
amount had been reached. In this case, since total amount of ill-
gotten wealth acquired by Senator and Maria is P80 million, they are
liable for plunder. Although the Senator merely acquired ill-gotten

165 | P a g e
wealth in the amount of P40 million, the act of Maria in acquiring ill-
gotten wealth amounting to P40 million shall be treated as the act of
the Senator due to conspiracy. Because of the collective responsibility
rule, the ill-gotten wealth acquired by the Senator shall be considered
as P80 million, although in reality he merely acquired P40 million.
Since the Senator is liable for plunder, Maria, with whom the Senator
connived, is also liable for plunder although she is a private
individual. In Juan Ponce Enrile v. People, G.R. No. 213455, August
11, 2015, in the crime of plunder, the amount of ill-gotten wealth
acquired by each accused in a conspiracy is immaterial for as long
as the total amount amassed, acquired or accumulated is at least
P50 million.

In single conspiracy involving plunder, the main plunderer

must be identified. (see: Gloria Macapagal Arroyo v. People, supra) In
the above-stated hypothetical problem, the principal plunder is the
Senator.

Hypothetically, if in the case Gloria Macapagal Arroyo v. People

information properly alleged, and evidence established that single
conspiracy among the ten accused existed, and that President Arroyo
is the main plunderer while the nine accused are secondary
offenders, they could be held liable for plunder even without showing
the particular amount of ill-gotten wealth acquired by each accused
out of the P360 million. Because of conspiracy, the collective acts of
all of the ten accused in acquiring P360 million shall be considered
as the acts of President Arroyo although she merely acquired certain
portion of this amount.

Wheel Conspiracy - Under the wheel or circle conspiracy,

there is a single person or group (the hub) dealing individually with
two or more other persons or groups (the spokes). (Fernan, Jr. v.
People, G.R. No. 145927, August 24, 2007) In wheel conspiracy
involving plunder, the public officer (main plunderer or the hub)
amasses, accumulates and acquires ill-gotten wealth in connivance
with others (the spokes). The rim that enclosed the spokes was the
common goal in the overall conspiracy, i.e., the amassing,
accumulation and acquisition of ill-gotten wealth.

Hypothetical problem: Pedro, the President of the Philippines,

conspired with A, private individual, in connection with his shares
on the jueteng collections in the amount of P40 million; and with B,
private individual, in connection with his P40 million commission
pertaining to transaction where GSIS and SSS bought the share of
belly corporation on his order. A and B received P20 million each out
of these transactions. This is not a single conspiracy because the
conspiracy of the President with A in connection with jueteng
collections is different from his conspiracy with B in connection with
his commission. This is a wheel conspiracy since the President is
dealing with A and B individually. The President is the hub while A
and B are spokes. Since there is wheel conspiracy in this case, the
total amount of P80 million acquired by the President, A and B shall
166 | P a g e
be considered for purposes of determining if P50-million threshold
amount had been reached. Since the total amount of ill-gotten wealth
acquired by President, A and B is P80 million, they are liable for
plunder. Although the President merely acquired ill-gotten wealth in
the total amount of P40 million, the act of A in acquiring P20 million
and the act of B in acquiring P20 million shall be treated as acts of
the President. Because of the collective responsibility rule due to
wheel conspiracy, the ill-gotten wealth acquired by the President
shall be considered as P80 million although in reality he merely
acquired P40 million. Since the President is liable for plunder, A and
B, with whom the President connived, are also liable for plunder
although they are private individuals.

In wheel conspiracy involving plunder, the main plunderer must

be identified. (see: Gloria Macapagal Arroyo v. People, supra) In the
above-stated hypothetical problem, the principal plunder is the
President.

USE OF INFORMATION TECHNOLOGY - Use of information

and communications technologies in committing felony or offense
under special law is a qualifying circumstance under Section 6 of RA
No. 10175.

Under Section 6 of RA No. 10175, the penalty for crimes

punishable under special laws committed through and with the use
of information and communication technologies shall be one degree
higher than that provided the law. However, this provision requires
the application of the rules on graduation of penalties under the
Revised Penal Code. Hence, Section 6 finds application only if special
law involved has adopted the technical nomenclature of the penalties
of Revised Penal Code.

HAZING - Hazing refers to any act that results in physical or

psychological suffering, harm, or injury inflicted on a recruit,
neophyte, applicant, or member as part of an initiation rite or
practice made as a prerequisite for admission or a requirement
for continuing membership in a fraternity, sorority, or organization.
Hazing includes paddling, whipping, beating, branding, forced
calisthenics, exposure to the weather, forced consumption of any
food, liquor, beverage, drug or other substance, or any other brutal
treatment or forced physical activity which is likely to adversely affect
the physical and psychological health of such recruit, neophyte,
applicant, or member. Hazing shall also include any activity,
intentionally made or otherwise, by one person alone or acting
with others, that tends to humiliate or embarrass, degrade, abuse,
or endanger, by requiring a recruit, neophyte, applicant, or
member to do menial, silly, or foolish tasks. (Section 2 of RA No.
8049 as amended by RA No. 11053)

The elements of the crime of hazing are: (1) That there is

initiation rite or practice made as a prerequisite for admission or
a requirement for continuing membership in a fraternity, sorority,
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or organization; (2) That during the initiation rite or practice, physical
or psychological suffering, harm, or injury is inflicted on a recruit,
neophyte, applicant, or member of the fraternity, sorority or
organization; and (3) as a consequence of the hazing, death, rape,
sodomy, or mutilation results.

Initiation or initiation rites refer to ceremonies, practices,

rituals, or other acts, whether formal or informal, that a person must
perform or take part in order to be accepted into a fraternity,
sorority, or organization as a full-fledged member. It includes
ceremonies, practices, rituals, and other acts in all stages of
membership in a fraternity, sorority, or organization. (Section 2 of
RA No. 8049 as amended by RA No. 11053)

Organization refers to an organized body of people which

includes, but is not limited to, any club, association, group,
fraternity, and sorority. This term shall include the Armed
Forces of the Philippines (AFP), the Philippine National Police
(PNP), the Philippine Military Academy (PMA), the Philippine
National Police Academy (PNPA), and other similar uniformed
service-learning institutions. (Section 2 of RA No. 8049 as amended
by RA No. 11053) The Philippine Merchant Marine Academy is
included in the term organization within the meaning of the law.
People v. Bayabos, G.R. No. 171222, February 18, 2015) Company or
private corporation is covered by the hazing law. Under RA No. 8049,
in no case shall hazing be made a requirement for employment in
any business or corporation.

Failure to allege that the physical or psychological harm were

employed as a prerequisite for admission (or a requirement for
continuing membership) would prevent the successful prosecution
of the criminal responsibility of the accused, either as principal or as
an accomplice, for the crime of hazing. Plain reference to a technical
term “hazing” is insufficient and incomplete, as it is but a
characterization of the acts allegedly committed and thus a mere
conclusion of law. (People v. Bayabos, supra) However, in Villarba vs.
CA, G.R. No. 227777, June 15, 2020, the Supreme Court did not
follow the Bayabos principle. It was held that the lack of the phrase
"prerequisite to admission" does not make the Information invalid.
Even with its absence, the alleged facts, which include the controlling
words 'fraternity,' 'initiation,' 'hazing,' and 'recruit, ' would have
reasonably informed the accused of the nature and cause of the
accusation against him.

Under the original version of RA No. 8049, the crime of hazing

is confined to a situation where the infliction of physical or
psychological harm is a prerequisite for admission to a fraternity,
sorority, or organization. However, there are occasions where the
organization will first admit the neophyte as a member, and then,
hazing will be made as a post-requisite for membership. (Note: This
was an issue raised in connection with the UST hazing incident)
Thus, RA No. 11053, which amended RA No. 8049, has expanded the
168 | P a g e
concept of hazing by covering initiation rites or practices made not
only as a prerequisite for admission but also as a requirement for
continuing membership in a fraternity, sorority, or organization.

However, there is doubt on whether RA No. 8049 as amended

by RA No. 11053 covers the “welcome rites” of a frat brother, who was
previously admitted as a member of the fraternity, completed the
hazing requirements, and belonged to a particular fraternity chapter,
and was required to undergo paddling and other physical sufferings
for the “second time” as a form of welcoming him by another
fraternity chapter. One may argue that welcome rites are not a
prerequisite for admission in the fraternity because he is already a
frat member; neither are these rites a requirement for continuing
membership in a fraternity because without these rites he will
continue to be a member of the fraternity.

Moreover, RA No. 8049 may not cover “DA” or disciplinary

action where a member is being paddled for violating fraternity rules
or orders such as non-attendance to a fraternity anniversary
celebration.

Prior to RA No. 11053, the hazing is punishable under RA No.

8049 if as a consequence of hazing, death, rape, sodomy, mutilation
or serious, less serious or slight physical injuries results. RA No.
8049 does not prescribe penalty for mere infliction of psychological
harm. RA No. 8049 as amended by RA No. 11053, declares all forms
of hazing shall be prohibited in fraternities, sororities, and
organizations. Section 14 thereof prescribes for penalties for all
forms of hazing. However, the penalty is higher where death,
rape, sodomy, mutilation results from hazing.

a. Malum Prohibitum - Prior to R.A. No. 8049, good faith is a

defense in homicide where the victim is killed during hazing. The
consent of the victim and lack of intent to kill of the accused would
negate dolo, which is an important element of homicide. Hence, the
crime committed is only reckless imprudence resulting in homicide.
(Villareal v. People, G.R. No. 151258, February 1, 2012) Now, the
participants of the hazing with or without dolo are liable for violation
of R.A. No. 8049 if the neophyte died as a consequence thereof.

Instead of amending RPC which penalizes mala in se, where

good faith is a defense, the Congress created a special law on hazing,
founded upon the principle of mala prohibita where good faith is not
a defense.

The deliberation of the Senate shows that what is important is

not the intention to kill the neophyte during the hazing but the result
of the act of hazing. Recognizing the malum prohibitum characteristic
of hazing, RA No. 8049 as amended, provides that any person
charged with the said crime shall not be entitled to the mitigating
circumstance that there was no intention to commit so grave a wrong.

169 | P a g e
 Also, the framers of the law intended that the consent of the
victim to be injured shall not be a defense in hazing. The very act of
inflicting physical or psychological pain is a punishable act. Death is
just an aggravating circumstance (Dungo v. People, G.R. No. 209464,
July 1, 2015) Section 12 of RA No. 11053 provides that the defense
that the recruit, neophyte, or applicant consented to being
subjected to hazing shall not be available to persons prosecuted for
hazing. Any form of approval, consent, or agreement, whether
written or otherwise, or of an express waiver of the right to object to
the initiation rite or proceeding, which consists of hazing, made
by a recruit, neophyte, or applicant prior to an initiation rite that
involves inflicting physical or psychological suffering, harm, or injury,
shall be void and without any binding effect on the parties.

b. Presence - Generally, mere presence at the scene of the

crime does not in itself amount to conspiracy. (Dungo v. People, supra)
However, under RA No. 8049 as amended by RA No. 11053, mere
presence can be a source of criminal liability. Section 14 punishes all
persons who are present in the conduct of the hazing. However,
the penalty is higher if the persons, who are present during the
hazing, are (1) officers of the fraternity, sorority, or organization;
(2) former officers, nonresident members, or alumni thereof; and (3)
members thereof who are intoxicated or under the influence of
alcohol or illegal drugs.

c. Actual participation - The penalty for hazing is also higher

if the person actually participated in the conduct of the hazing.
The actual participants are liable for hazing even if they are not
members of the fraternity, sorority, or organization.

R.A. No. 8049 as amended by RA No. 11053 presents a novel

provision that introduces a disputable presumption of actual
participation; and which modifies the concept of conspiracy. Section
14 thereof provides that the presence of any person, even if such
person is not a member of the fraternity, sorority, or organization,
during the hazing is prima facie evidence of participation therein as
a principal unless such person or persons prevented the commission
of the acts punishable herein or promptly reported the same to the
law enforcement authorities if they can do so without peril to their
person or their family.

This provision is unique because a disputable presumption

arises from the mere presence of the offender during the hazing,
which can be rebutted by proving that the accused took steps to
prevent the commission of the hazing or promptly reports the same
to the authorities. (Bartolome vs. People, G.R. No. 227951, June 28,
2021)

Generally, mere presence at the scene of the crime does not in

itself amount to conspiracy. Exceptionally, under R.A. No. 8049, the
participation of the offenders in the criminal conspiracy can be
proven by the prima facie evidence due to their presence during the
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hazing, unless they prevented the commission of the acts therein or
reported the matter to the authorities. (Dungo v. People, supra; 2018
Bar Exam)

The prima facie presumption under RA No. 8049 is not

applicable if the prosecution failed to prove that a hazing incident
occurred. Before the prima facie presumption can apply against
petitioners, there is a need to first satisfy the elements of hazing.
(Bartolome vs. People, G.R. No. 227951, June 28, 2021)

d. Planning – The law punishes all persons, who actually

planned the conduct of the hazing. The original version of RA No.
8049 merely punished officers, former officers, or alumni of the
fraternity, sorority or organization, who actually planned the hazing.
Under this law as amended by RA No. 11053, any person including
a non-member is criminally liable for planning the conduct of hazing.
Even though these planners were not present when the acts
constituting hazing were committed, they shall still be liable as
principals.

e. Adviser – The law also punishes the adviser of a fraternity,

sorority, or organization who is present when the acts
constituting the hazing were committed and failed to take action
to prevent the same from occurring or failed to promptly report
the same to the law enforcement authorities if such adviser or
advisers can do so without peril to their person or their family.
The liability of the adviser arises, not only from his mere presence in
the hazing, but also his failure to prevent the same. (Dungo v. People,
supra)

f. Inducement – Officers or members of a fraternity,

sorority, or organization, who knowingly cooperated in carrying out
the hazing by inducing the victim to be present thereat, are liable
for hazing. These officers or members are penalized, not because of
their direct participation in the infliction of harm, but due to their
indispensable cooperation in the crime by inducing the victim to
attend the hazing (Dungo v. People, supra; 2018 Bar Exam). However,
this rule is only applicable if the inducer is an officer, or member
of a fraternity, sorority, or organization.

The accused claim that the information avers a criminal charge

of hazing by actual participation, but the only offense proved during
the trial was hazing by inducement. The information alleged that the
accused during a planned initiation rite and being then officers of APO
fraternity used personal violence upon a neophyte resulting to his
death. The “planned initiation rite” as stated in the information
included the act of inducing victim to attend it. Accused not only
induced victim to be present at the resort, but they actually brought
him there. The hazing would not have been accomplished were it not
for the acts of the petitioners that induced the victim to be present.
Hence, they are liable for hazing. (Dungo v. People, supra)

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 g. Incumbent officers - The incumbent officers of the
fraternity, sorority, or organization concerned shall be jointly liable
with those members who actually participated in the hazing.

h. Owner or lessee – The law punishes the owner or lessee of

the place where hazing is conducted as principal for hazing, when he
has actual knowledge of the hazing conducted therein but failed to
take any action to prevent the same from occurring or failed to
promptly report the same to the law enforcement authorities if they
can do so without peril to their person or their family. (2018 Bar
Exam)
Under the old version of RA No. 8048, only owner of the place
of hazing is liable. However, under this law as amended by RA No.
11053, a lessee can be held also be held liable for hazing. Under
the old rule, such owner is only liable as an accomplice. Now, he
is responsible as principal. Moreover, under the new rule, promptly
reporting the matter to the authorities is an additional defense for
such owner.

i. Parents – Under the law, if the hazing is held in the home

of one of the officers or members of the fraternity, sorority, or
organization, the parents shall be held liable as principals for
hazing when they have actual knowledge of the hazing conducted
therein but failed to take any action to prevent the same from
occurring or failed to promptly report the same to the law
enforcement authorities if such parents can do so without peril to
their person or their family.

Under the old version of RA No. 8048, parent is only liable as

an accomplice. Under this law as amended by RA No. 11053, he is
responsible as principal. Moreover, under the new rule, promptly
reporting the matter to the authorities is an additional defense for
such parent.

j. School authorities - School authorities including faculty

members as well as barangay, municipal, or city officials shall be
liable as an accomplice for hazing conducted by fraternities,
sororities, and other organizations, if it can be shown that: (1) the
school or barangay, municipal, or city officials allowed or
consented to the conduct of hazing; or (2) where there is actual
knowledge of hazing, but such officials failed to take any action to
prevent the same from occurring or failed to promptly report to the
law enforcement authorities if the same can be done without peril
to their person or their family.

Even though school authorities and faculty members have had

no direct participation in hazing, they may nonetheless be charged
as accomplices if it is shown that (1) hazing occurred; (2) the accused
are school authorities or faculty members; and (3) they consented to
or failed to take preventive action against hazing in spite actual
knowledge thereof (People v. Bayabos, supra) or to report the matter
to the authorities.
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 The corresponding responsibilities of the principal, accomplice,
and accessory are distinct from each other. As long as the
commission of the offense (hazing) can be duly established in
evidence, the determination of the liability of the accomplice can
proceed independently of that of the principal. (People v. Bayabos,
supra)

Under Section 7 of RA No. 8049 as amended by RA No.

11053, the faculty adviser or advisers, who accepted his role
after being selected by an accredited fraternity, sorority, or
organization, shall be responsible for monitoring the activities
of the fraternity, sorority, or organization. In case of violation of
any of the provisions of this Act, it is presumed that the faculty
adviser has knowledge and consented to the commission of any of
the unlawful acts stated therein.

Under Section 4, 5, 10 and 11 of RA No. 8049 as amended

by RA No. 11053, initiation rites are allowed the fraternity,
sorority or organization obtained approvable from school
authority, or punong barangay, or city or municipal mayor,
authorities upon written application undertaking that no harm
of any kind shall be committed. During approved initiation rites,
at least two school or barangay, city or municipal representatives
must be present. If hazing is still committed despite their presence,
no liability shall attach to them unless it is proven that they failed to
perform an overt act to prevent or stop the commission thereof.

Failure to provide school representatives during the approved

initiation rites is also punishable.

Res inter alios rule - Res inter alios acta provides that a party's
rights generally cannot be prejudiced by another's act, declaration,
or omission. However, in a conspiracy, the act of one is the act of all,
rendering all conspirators as co-principals "regardless of the extent
and character of their participation. Under Rule 130, Section 30 of
the Rules of Court, an exception to the res inter alios acta rule is an
admission by a conspirator relating to the conspiracy. Hazing often
involves a conspiracy among those involved, be it in the planning
stage, the inducement of the victim, or in the participation in the
actual initiation rites. The rule on res inter alios acta, then, does not
apply. (Fuertes vs. Senate of the Philippines, G.R. No. 208162,
January 07, 2020)

Constitutionality of presumption of innocence - Under the

Constitution, the accused in a criminal case shall be presumed
innocent until the contrary is proved. Since an accused is presumed
to be innocent, the evidentiary standard to convict him of the crime
charged is high. Under the Rules on Evidence, the prosecution must
establish by evidence the guilt of the accused beyond reasonable
doubt. If there is doubt on whether the accused is guilty or innocent,
the court must acquit him.
173 | P a g e
 The constitutional rule on presumption of innocence does not
however prohibits Congress from enacting a law on presumption of
guilt. However, in crafting a provision on presumption of guilt,
Congress must identify facts to be proven by the prosecution on
which the presumption will be based. For example, Section 5 of P.D.
No. 1612 provides that mere possession of stolen properties shall be
prima facie evidence of fencing. This is a rule on presumption of guilt.
The fact to be proven by the prosecution is possession of the stolen
property by the accused. From this fact, the accused will be
presumed to have committed the crime of fencing. In other words,
the accused is presumed to be guilty of fencing once the prosecution
establishes that he is in possession of the stolen property. If the
accused cannot present clear and convincing evidence to overcome
or rebut the presumption of guilt, he will be convicted.

Ordinarily, the prosecution to cause the conviction of the

accused must prove his guilt beyond reasonable doubt. However, if
the law provides a presumption of guilt, the prosecution will only
prove beyond reasonable doubt the facts on which the presumption
will be based. While the burden of proof and evidence lies on the
prosecution, once the facts on which accused will be presumed to be
guilty are proven, the burden of evidence is shifted to the accused.
To avoid conviction, he must present clear and convincing evidence
that he is innocent.

Presumptions of guilt under the law are constitutional. The

constitutional presumption of innocence is not violated when there
is a logical connection between the fact proved and the ultimate fact
presumed. When such prima facie evidence is unexplained or not
contradicted by the accused, the conviction founded on such
evidence will be valid. (Fuertes vs. Senate of the Philippines, G.R. No.
208162, January 7, 2020)

In Dizon-Pamintuan, G.R. No. 111426, July 11, 1994, the

Supreme Court affirmed the constitutionality of Section 5 of P.D. No.
1612, which provides presumption of guilt in the crime of fencing. It
is constitutional because there is a logical connection between the
fact proved (possession of stolen property) and the ultimate fact
presumed (commission of fencing).

Presumption of guilt under the law is not offensive to the

presumption of innocence under the Constitution. These two
presumptions are compatible since they will be applied successively,
and not simultaneously. In a criminal prosecution, the accused is
initially presumed to be innocent. The Constitution cannot be
disregarded. Presumption of innocence is always the general rule.
However, this presumption is not conclusive. It can be overcome or
rebutted. Hence, the prosecution may present evidence to establish
beyond reasonable doubt the fact of accused’s guilt or the fact on
which the accused will be presumed to be guilty under the law. If the
prosecution establishes the factual basis of the legislative
174 | P a g e
presumption, the presumption of innocence will be procedurally
replaced by presumption of guilt.

Presence at the scene of the crime can be a basis of presumption

of guilt under the law. Section 14 RA No. 8049 as amended by RA No.
11053 provides that the presence of any person, even if such person
is not a member of the fraternity, sorority, or organization, during the
hazing is prima facie evidence of participation therein as a principal
unless such person or persons prevented the commission of the acts
punishable herein or promptly reported the same to the law
enforcement authorities if they can do so without peril to their person
or their family.

Section 14 of RA No. 8049 provides a presumption guilt. If the

prosecution proves beyond reasonable doubt that the accused is
present during the hazing, it will be presumed that he participated in
the hazing as principal. In sum, he is presumed to be guilty of hazing.

As a general rule, mere passive presence of a person at the scene

of the crime does not make him a co-conspirator. (People v. Silvestre
and Atienza, G.R. No. L-35748, December 14, 1931). However,
Section 14 of RA No. 8049 provides exceptions. First, this law
punishes a person who is present during hazing. Second, the law
provides a presumption of participation on the basis of presence of
the accused during the hazing. The penalty for participating in hazing
is higher than that for being presence during the hazing.

In Fuertes vs. Senate of the Philippines, supra, the Supreme

Court affirmed the constitutionality of Section 14 of RA No. 8049 on
presumption of guilt because the accused fails to show that there is
no logical relation between the fact proved (presence of a person
during the hazing) and the ultimate fact presumed (their
participation in the hazing as a principal). Neither has it been shown
how Section 14 of the Anti-Hazing Law does away with the
requirement that the prosecution must prove the participation of the
accused in the hazing beyond reasonable doubt.

Constitutionally, Congress can amend RA No. 9165 (Dangerous

Drugs Law) to include provisions on presumption of guilt.

VIOLENCE AGAINST WOMEN - Psychological violence is an

indispensable element of violation of Section 5(i) of R.A. No.
9262. Equally essential is the element of emotional anguish and
mental suffering, which are personal to the
complainant. Psychological violence is the means employed by the
perpetrator, while emotional anguish or mental suffering are the
effects caused to or the damage sustained by the offended party. The
law does not require proof that the victim became psychologically ill
due to the psychological violence done by her abuser. Rather, the law
only requires emotional anguish and mental suffering to be proven.
To establish emotional anguish or mental suffering, jurisprudence
only requires that the testimony of the victim to be presented in
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court, as such experiences are personal to this party. (Araza vs.
People, G.R. No. 247429, September 8, 2020; XXX vs. People, G.R.
No. 243049, October 05, 2020)

Section 5 (i) of RA No. 9262 on psychological violence against

woman is a catch-all provision.

Physical violence and psychological violence -Physical

violence against woman is punishable under Section 5 (a). However,
if physical violence caused mental or emotional anguish to the
victim, the offender may be prosecuted for psychological violence
against woman under Section 5 (i). Physical violence will be
considered as an element of psychological violence.

In Dinamling v. People, G.R. No. 199522, June 22, 2015,

accused’s acts of publicly punching, kicking and stripping the victim
of her pants and underwear, although obvious acts of physical
violence, are also instances of psychological violence since it was
alleged and proven that they resulted in her public ridicule and
humiliation and mental or emotional distress. Accused was convicted
of the psychological violence against woman. Physical violence was
treated as a mere element of the graver crime of psychological
violence against woman.

Economic violence and psychological violence – In Melgar

vs. People, G.R. No. 223477, February 14, 2018, the accused has a
dating and sexual relationship with AAA resulting in BBB's birth. He
failed to provide BBB support ever since the latter was just a year
old. Accused is charged with psychological violence against the
woman under Section 5 (i) of RA No. 9262 for failure to give support
which caused mental or emotional anguish, public ridicule, or
humiliation to AAA and BBB. No evidence was presented to show that
deprivation of support caused either AAA or BBB any mental or
emotional anguish. However, the accused can be convicted of
economic violence against a woman under Section 5 (e), which is
necessarily included in the charge of psychological violence against a
woman under Section 5 (i) of RA No. 9262. Deprivation or denial of
support, by itself and even without the additional element of
psychological violence, is already specifically penalized therein as
economic violence.

In Reyes vs. People, G.R. No. 232678, July 03, 2019, the
Supreme Court affirmed the Melgar principle.

With due respect to the Supreme Court in the Melgar case and
Reyes case, it is submitted that deprivation or denial of support, by
itself, is not constitutive of economic violence under the second
sentence of Section 5 (e) (2) of RA No. 9262, which provides that
violence against women x x x shall include x x x acts committed with
the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct such as depriving or threatening to

176 | P a g e
deprive the woman or her children of financial support legally due
her or her family.

The phrase “purpose or effect of controlling or restricting the

woman's or her child's movement or conduct” in the second sentence
of Section 5 (e) (2) is the criminal intent of the offender while the
phrase “depriving or threatening to deprive the woman or her children
of financial support” is the criminal omission, which is employed to
attain his criminal purpose. In sum, economic violence against
women under Section 5 (e) (2) is a concept similar to coercion under
the Revised Penal Code. The criminal purpose of the offender in
economic violence against women includes “attempting to compel or
compelling the woman or her child to engage in conduct (e.g.,
prostitution) which the woman or her child has the right to desist from
or desist from conduct (e.g., the practice of medicine) which the
woman or her child has the right to engage in” under the first sentence
of Section 5 (e) (2).

In the case of Melgar vs. People, there is neither allegations in

the information nor evidence that will show that accused’s purpose
of deprivation of financial support is to control the movement or
conduct of the complainant, yet the accused is convicted of economic
violence against women.

On November 9, 2021, in the case of Acharon vs. People, G.R.

No. 224946, the Supreme Court expressly abandoned the Melgar and
Reyes principle. It was held:

“The language of Section 5 (e) above is clear: the denial of

financial support, to be punishable, must have the purpose or effect of
controlling or restricting the woman’s movement or conduct. To be sure,
Section 5 (e) uses the word “deprive” which, like the use of the word
“denial” in Section 5 (i), connotes willfulness and intention. The denial
or deprivation of financial support under Section 5 (e) is, therefore, an
intentional act that has, for its purpose, to control or restrict the
woman’s movement or conduct. The willful deprivation of financial
support, therefore, is the actus reus of the offense, while the mens rea
is the intention to control or restrict the woman’s conduct. Thus, similar
to the discussion in Section 5 (i), Section 5 (e) cannot be read as
punishing the mere failure or one’s inability to provide financial
support.

Failure to give support – In the case of Melgar case,

deprivation or denial of support by itself is already specifically
penalized therein as economic violence under Section 5 (e) of RA No.
9262. The case of Reyes reaffirmed this Melgar. In XXX vs. Peeople,
G.R. No. 221370, June 28, 2021 (Third Division, Hernando), it was
held that Since RA 9262 is a special law, the act of deprivation of
financial support is considered malum prohibitum. However, in the
case of Acharon, the Supreme Court abandoned the Melgar, Reyes
and XXX principle.

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 Deprivation of legal support under the Family Code by a man to
his wife or children may constitute economic violence against a
woman under Section 5 (e) of RA No. 9262 or psychological violence
against a woman under Section 5 (i). However, deprivation of
financial support per se does not violate RA No. 9262 unless it is
accompanied by the other elements of economic violence or
psychological violence.

Individuals must not be sent to jail because of their mere

inability without malice or evil intention to provide for their respective
families. Poverty is not a crime and failure or inability to provide
support, without more, should not be the cause of a man’s
incarceration. (Acharon vs. People, supra)

The crimes penalized under Section 5 (i) and 5 (e) of RA No. 9262
are mala in se, and not mala prohibita, even though R.A. No. 9262 is
a special law. The acts punished therein are inherently wrong and
the language used under the said special laws requires a mental
element. Being a crime mala in se, there must thus be a concurrence
of both actus reus (criminal act) and mens rea (criminal intent) to
constitute a crime. (Acharon vs. People, supra)

The willful deprivation of financial support is the actus reus of

the offense under Section 5 (e), while the mens rea is the intention to
control or restrict the woman’s conduct. To violate Section 5 (e), there
must be allegation and proof that the act was done with intent to
control or restrict the woman’s and/or child’s or her children’s
actions or decision.

The actus reus of the offense under Section 5 (i) is the willful
denial of financial support, while the mens rea is the intention to
inflict mental or emotional anguish upon the woman. To violate
Section 5 (i), there must be allegation and proof that the accused had
the intent of inflicting mental or emotional anguish upon the woman,
with the willful denial of financial support being the means selected
by him to accomplish the said purpose.

In Acharon vs. People, supra, the Supreme Court finds the

accused not guilty of psychological violence under Section 5 (i) for he
tried, as he successfully did for a time, to provide financial support
to his wife. The accused failed to provide financial support only when
his apartment in Brunei was razed by fire, and when he met a
vehicular accident there. Moreover, he had already paid P71,000 of
the P85,000 of the debt the spouses were obligated to pay out of their
community property. The Court also found the accused not guilty of
economic violence under Section 5 (e). There is no proof that he
deliberately refused to give support in order to control the behavior
or actions of his wife. Neither was there any allegation or proof that
he prevented his wife from seeking gainful employment or pursuing
economic opportunities. The evidence simply established that he
failed or was unable to provide financial support, which is not enough
to convict him under the law.
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 In People vs. Calingasan, G.R. No. 239313, February 15, 2022,
and XXX256611 vs. People, G.R. No. 256611, October 12, 2022, the
Supreme re-affirmed the Acharon principle.

the accused, for a time, provided the private complainant and

their child financial support and that his subsequent failure to do so
was due to circumstances beyond his control. The accused was
arrested in Canada and incarcerated for almost six (6) years. When
he was released from prison, the accused tried to look for a
permanent job but was not able to find one. He had since then relied
upon the support and help of his siblings. The accused cannot be
convicted for psychological violence under Section 5 (i) of RA 9262
because there is no showing that he deliberately denied them
financial support with the intention to cause private complainant and
BBB mental or emotional anguish, public ridicule or humiliation.
Neither can the accused be convicted of economic violence under
Section 5 (e) because there is neither allegation nor proof that he
deprived them of financial support for the purpose of controlling their
actions and decisions.

In Reyes vs. People, G.R. No. 232678, July 03, 2019, the
Supreme Court made an obiter dictum that one who fails to give
support can be convicted of economic violence under Section 5 (e)
and psychological violence under Section 5 (i) of RA No. 9262.

Felony and psychological violence - Concubinage and bigamy

are punishable under the Revised Penal Code. However, if
concubinage or bigamy caused mental or emotional anguish to the
offended wife, the offending husband may be prosecuted for
psychological violence against woman.

In AAA v. BBB, G.R. No. 212448, January 11, 2018, the accused
was prosecuted for psychological violence against woman under
Section 5 (i) for having an illicit affair with a Singaporean that causes
mental or emotional anguish to his wife.

In Araza vs. People, G.R. No. 247429, September 8, 2020,

accused left his wife and decided to stay in Zamboanga City where
he maintained an illicit affair. He intentionally left his wife groping in
the dark. Without any explanation or mature conversation with his
wife, he simply left his wife causing the latter emotional and
psychological distress. Accused committed the crime of psychological
violence, through his acts of marital infidelity, which caused mental
or emotional suffering on the part of his wife. (See: XXX vs. People,
G.R. No. 241390, January 13, 2021; XXX vs. People, G.R. No.
243049, October 05, 2020; XXX vs. People, G.R. No. 250219, March
1, 2023, Hernando)

If the wife suffered emotional distress due to infidelity by the

husband, the latter could be prosecuted for violence against woman
under R.A. No. 9262 in addition to concubinage. The differences
179 | P a g e
between the two are as follows:

1. Unlike concubinage, cohabitation, maintaining a mistress, or

scandalous circumstance is not an element of violence against
women. Unlike violence against women, emotional distress is not an
element of concubinage;

2. The court has no territorial jurisdiction over concubinage

committed outside the Philippines. The court has territorial
jurisdiction over psychological violence against women if the act of
infidelity committed in a foreign country produces emotional distress
to the woman and her children in the Philippines. (AAA v. BBB, G.R.
No. 212448, January 11, 2018)

3. Concubinage, a private crime, can only be prosecuted under

two conditions: (a) a complaint is filed by the offended wife against
both the husband and his mistress; and (b) the offended wife has not
consented or pardoned the offenders. (Article 334 of the Revised
Penal Code) Violence against women and their children shall be
considered a public offense that may be prosecuted upon filing a
complaint by any citizen having personal knowledge of the
circumstances involving the commission of the crime. (Section 25 of
R.A. No. 9262)

SUPPLEMENTAL TO CRIMINAL LAW REVIEWER, VOL 2

The 2022 Bar Exam on Criminal Law did not include RA No.
11479 (Anti-terrorism Law). Hence, I (Marlo Campanilla) did not
include this law in my Criminal law Reviewer, Vol 2, 2023 Edition.
However, the 2023 Bar Examination on Criminal Law now includes
RA No. 11479. Hence, this discussion on RA No. 11479 is a necessary
supplement to my criminal law reviewer.

REPUBLIC ACT NO. 11479

ANTI-TERRORISM ACT OF 2020
Judge Marlo Campanilla

Warning: This is the intellectual property of Judge Campanilla.

Copying any parts of this work in writing materials or book for
publication without proper attribution is prohibited by law.

Terrorism is composed of a criminal act (actus reus) and

criminal intention or purpose (mens rea).

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 The criminal acts of terrorism are as follows: (1) engaging in acts
intended to cause death or serious bodily injury to any person, or
endangers a person’s life; (2) engaging in acts intended to cause
extensive damage or destruction to a government or public facility,
public place or private property; (3) engaging in acts intended to
cause extensive interference with, damage or destruction to critical
infrastructure; (4) developing, manufacturing, possessing, acquiring,
transporting, supplying or using weapons, explosives or of biological,
nuclear, radiological or chemical weapons; and (5) releasing of
dangerous substances, or causing fire, floods or explosions. (Section
4 of RA No. 11479)

In afore-said acts constitutes terrorism, when the purpose of

such act (criminal intention), by its nature and context, is (1) to
intimidate the general public or a segment thereof or to create an
atmosphere or spread a message of fear; (2) to provoke or influence
by intimidation the government or any international organization; (3)
to seriously destabilize or destroy the fundamental political,
economic, or social structures of the country; or (4) create a public
emergency or seriously undermine public safety. (Section 4 of RA No.
11479)

Section 4(a) does not punish the very act of intending death,
serious bodily injury, or danger to person’s life. To be held liable for
terrorism, one must cause or threaten to cause damage or harm of
sufficient magnitude in order to achieve his intended result/purpose,
such as to intimidate the general public, create an atmosphere or
spread a message of fear, or destabilize the government. (Calleja v.
Executive Secretary, G.R. No. 252578, December 7, 2021)

In Calleja v. Executive Secretary, G.R. No. 252578, December

7, 2021, the Court stated that the main part of Section 4 of RA No.
11479 provides for the actus reus, the mens rea, and the
corresponding imposable penalty for the crime of terrorism. The acts
constitutive of terrorism under the main part of Section 4 are clearly
forms of conduct unrelated to speech. Hence, the presumption of
constitutionality of said main part — being a primarily non-speech
provision — must stand. Terrorism, as defined by law, is neither
impermissibly vague nor overbroad. The language employed in
Section 4 on terrorism is almost identical to the language used in
other jurisdictions. This shows that Congress did not formulate the
definition of terrorism out of sheer arbitrariness, but out of a desire
to be at par with other countries.
Pedro out of jealousy threw a hand grenade at her wife and
paramour. This is not terrorism but a complex crime of parricide and
murder. The reason behind the killings is personal. There is no
intention to intimidate the general public, create an atmosphere or
spread a message of fear, or provoke or influence by intimidation the
government.
181 | P a g e
 Pedro detonated a time bomb in the LRT, and caused death and
serious bodily injury to several persons, endangered the life of others,
and caused extensive damage to a critical infrastructure. By its
nature and context, the bombing intimidated the general public and
created an atmosphere or spread a message of fear. This is terrorism.
Direct evidence that the purpose of Pedro is to intimidate the general
public is not required. The phrase “by its nature and context” means
that the court can determine that the purpose of the offender in
detonating a bomb is to intimidate the general public by taking into
consideration nature and context of criminal act.
In terrorism under RA No. 9372, a predicate crime such as
murder must create a condition of “widespread” and extraordinary
fear and panic among the populace. However, under RA No. 11479,
widespread fear to the populace is not an element of terrorism since
this crime can be committed although the intention of the terrorists
was merely to intimidate a “segment” of the general public.
The word “government” in RA No. 11479, which the terrorists
intend to provoke or influence by intimidation, includes foreign
governments. The law uses the word “government” without making a
distinction between the Philippine Government and a foreign
government. It is a well-known maxim in statutory construction that
where the law does not distinguish, the court should not distinguish.
Pedro, a member of Al-Qaeda, detonated a time bomb in the US
Embassy, Manila, and caused death and serious bodily injury to
several persons, endangered the life of others, and caused extensive
damage to a US government facility. Al-Qaeda claimed responsibility
and demanded that the US government should not interfere with the
affairs of Muslims. This is terrorism since the purpose of Pedro is to
influence the US government by intimidation.
To constitute terrorism under RA No. 9372, murder must create
a condition of fear and panic among the populace in order to coerce
the government to give in to an unlawful demand. In terrorism under
this old law, creating fear to the general public by committing
murder, and intent to coerce the government must concur. However,
under RA No. 11479, the intention of the terrorist is either to
intimidate the general public, or to influence the government through
intimidation. The concurrence of intent to intimidate the public and
intent to influence the government is not required in terrorism under
the new law.
Pedro detonated a time bomb in the LRT, and caused death and
serious bodily injury to several persons, endangered the life of others,
and caused extensive damage to a critical infrastructure. This is not
182 | P a g e
terrorism under RA No. 9372 because there was no showing that
Pedro detonated the bomb in order to coerce the government to give
in to an unlawful demand such as secession of Mindanao from the
Philippines. However, this is terrorism under RA No. 11479 since, by
its nature and context, the bombing intimidated the general public
and created an atmosphere or spread a message of fear.
The word “international organization” in RA No. 11479, which
the terrorists intend to provoke or influence by intimidation, refers to
an organization established by a treaty or other instrument governed
by international law and possessing its own international legal
personality. (Section 4) The United Nations and the World Health
Organization are international organizations.
Committing a criminal act described in Section 4 of R.A. No.
11479 such as acts intended to cause death to a person for purposes
of seriously destabilizing or destroying the fundamental political,
economic, or social structures of the country is terrorism.
Members of the CPP-NPA wage a civil war to overthrow the
government and replace it with a communist government. Since there
is a public and armed uprising to remove the territory of the
Philippines from the allegiance of the Filipino people to the present
government and its laws, they are liable for rebellion. If members of
the CPP-NPA detonate a time bomb in the LRT for purposes of
destroying the political and economic structure of the country by
converting the democratic and capitalist government to an
authoritarian and communist government, they are liable for
terrorism.
The Maute group waged a civil war against the government to
make Marawi City an Islamic State, under which Islamic laws will be
implemented by the government. They can be held liable for terrorism
for engaging in acts that causes death or serious bodily injury to
persons, and extensive damage and destruction to the government
and public facilities, public places, and private properties for
purposes of destroying the political and social structure of the country
by converting the democratic government, where freedom of religion
is recognized, into an Islamic government, where there is no freedom
of religion.
The release of dangerous substances, such as a biological
weapon, that creates a public emergency or seriously undermines
public safety is terrorism.
Pedro, a member of Al-Qaeda, set a time bomb in the US
Embassy, Manila, to explode after two hours. However, the
authorities discovered the bomb and defused it. Even though the
183 | P a g e
stage of executing the criminal design to bomb the US Embassy was
merely attempted, the crime committed is terrorism.

Doctrine of absorption is not appliable to terrorism

In Lagman v. Medialdea, G.R. No. 231658, July 4, 2017, the

Supreme Court stated that there is nothing in Article 134 of the
Revised Penal Code and RA No. 9372 (now RA No. 11479) which
states that rebellion and terrorism are mutually exclusive of each
other or that they cannot co-exist together. RA No. 9372 (now RA No.
11479) does not expressly or impliedly repeal Article 134 of the Code.
Applying the Lagman case, terrorism cannot absorb rebellion,
murder, arson, or possession of loose firearm or explosives as they
have different elements.

The objective of a “terrorist” is to intimidate the general public,

provoke or influence by intimidation the government, create an
atmosphere or spread a message of fear, or seriously destabilize or
destroy the fundamental political, economic, or social structures of
the country. This condition of fear is traditionally achieved through
bombing, kidnapping, mass killing, and beheading, among others. In
contrast, the purpose of rebellion is political, i.e., (a) to remove from
the allegiance to the Philippine Government or its laws: (i) the
territory of the Philippines or any part thereof; (ii) any body of land,
naval, or armed forces; or (b) to deprive the Chief Executive or
Congress, wholly or partially, of any of their powers and prerogatives.
(Lagman v. Medialdea, G.R. No. 231658, July 4, 2017)
In determining what crime was committed, the court must look
into the main objective of the malefactors. If it is political, such as for
the purpose of severing the allegiance of Mindanao to the Philippine
Government to establish a wilayat therein, the crime is rebellion. If,
on the other hand, the primary objective is to intimidate the general
public, provoke or influence by intimidation the government, create
an atmosphere or spread a message of fear, or seriously destabilize
or destroy the fundamental political, economic, or social structures
of the country, the crime is terrorism under RA No. 11479. (Lagman
v. Medialdea, supra)
Exclusionary provision is unconstitutional
Under the last paragraph of Section 4 of RA No. 11470,
terrorism shall not include advocacy, protest, dissent, stoppage of
work, industrial or mass action, and other similar exercises of civil
and political rights, which are not intended to cause death or serious
physical harm to a person, to endanger a person’s life, or to create a
serious risk to public safety. Applying this rule in reverse, terrorism
includes the exercise of civil and political rights (such as protest,
advocacy), which is intended to cause death or serious physical harm

184 | P a g e
to a person, to endanger a person’s life, or to create a serious risk to
public safety.

According to those who sought the invalidation of RA No. 11479,

an oppressive administration may use this provision as a way to
suppress freedom of expression by simply claiming that protesters,
dissenters, or oppositions have the intention of creating a serious risk
to public safety in order to arrest and prosecute them for the non-
bailable crime of terrorism. Thus, the Supreme Court in Calleja v.
Executive Secretary, G.R. No. 252578, December 7, 2021 declared the
qualifier in the last paragraph of Section 4 of RA No. 11479 as
unconstitutional for being overbroad and violative of freedom of
expression. With the invalidation of the qualifier, the last paragraph
of Section 4 of RA No. 11479 must now be read as follows: “Terrorism
shall not include advocacy, protest, dissent, stoppage of work,
industrial or mass action, and other similar exercises of civil and
political rights.”

Constitutional penal provision

In Calleja v. Executive Secretary, G.R. No. 252578, December 7,

2021 — The provisions penalizing the following crimes are neither
unconstitutionally vague nor overbroad: participating in the training
in the commission of terrorism; threat to commit terrorism;
conspiracy or proposal to commit terrorism, inciting to commit
terrorism, recruitment to terrorist organization, and membership to
proscribed or designated terrorist organization.

Conspiracy to Commit Terrorism

Conspiracy to commit rebellion is punishable under the law. But

if the conspirators committed rebellion, they are liable for rebellion.
They are not anymore liable for conspiracy to commit rebellion since
the same will be absorbed by rebellion. In this situation, conspiracy
as a crime is transformed into conspiracy as a mode of incurring
collective criminal liability.

It is submitted that if conspirators commit terrorism, they are

liable for terrorism. They are not anymore liable for conspiracy (or
proposal) to commit terrorism since the same will be absorbed by
terrorism. However, the implementing rules and regulations of RA
No. 11479 does not adopt the doctrine of absorption. In sum,
terrorism does not absorb conspiracy (or proposal) to commit
terrorism. Under this implementing rule, prosecution for conspiracy
(or proposal) to commit terrorism shall not be a bar to prosecution
for acts of terrorism. The DOJ should revisit these implementing
rules since prosecuting the offender for terrorism and conspiracy to
commit terrorism may offend the rule on double jeopardy because it
is submitted that the latter crime is necessarily included in the
former.

Inciting to commit a crime

185 | P a g e
 Inciting persons to commit a crime may constitute the crime of
unlawful utterance, inciting to sedition, inciting to rebellion or
inciting to commit terrorism. If a person incites policemen to kill drug
pushers, the crime committed is unlawful utterance under Article
154 of the Revised Penal Code. If a person incites poor persons to
ransack the warehouse of National Food Authority because of food
shortage due to the corona virus crisis, the crime committed is
inciting to sedition under Article 142 of the Revised Penal Code. If a
person incites several persons to rise publicly and to take up arms
against the government for purposes of overthrowing it, the crime
committed is inciting to rebellion under Article 138 of the Revised
Penal Code. If a person incites persons to bomb UP campuses to
protest tuition fee increase, the crime committed is inciting to commit
terrorism under Section 9 of RA No. 11479.

If unlawful utterance, inciting to sedition, or inciting to rebellion

is committed by using information or communication technology
such as Facebook or Twitter, the penalty for this crime shall be
increase by one degree because of Section 6 of RA No. 10175 or the
Cyber Crime Law (e.g., the penalty of arresto mayor for unlawful
utterance shall be graduated to grave penalty of prision correccional
if information technology is used in committing this crime). If this is
the case, the crime may be designated as cyber unlawful utterance,
cyber inciting to sedition, or cyber inciting to rebellion. However,
there is no cyber inciting to commit terrorism. The penalty for inciting
to commit terrorism is 12 years of imprisonment. Hence, the
qualifying circumstance of using information or communication
technology under RA No. 10175 cannot be considered to upgrade the
penalty for inciting to commit terrorism one degree higher since the
American penalty of 12 years is not subject to graduation.

Based on the legislative intent, statements may only be

penalized under Section 9 if the speaker clearly intended the hearers
to perform any of the punishable acts and for the purposes
enumerated under Section 4. Based on international understanding,
“incitement” is a direct call to engage in terrorism, with the intention
that this will promote terrorism, and in a context in which the call is
directly causally responsible for increasing the actual likelihood of a
terrorist act occurring. (Calleja v. Executive Secretary, G.R. No.
252578, December 7, 2021)

In Ponsica v. Ignalaga, G.R. No. L-72301, July 31, 1987, the

petitioner questioned the constitutionality of Article 142 of the
Revised Penal Code on inciting to sedition on the ground that it was
“borrowed” from the US Sedition Act of 1198, which in turn has been
struck down as inconsistent with the American Constitution. The
Supreme Court sustained the argument of the Solicitor General, to
wit: “Our law on inciting to sedition is not akin to the US Sedition Act
of 1798, which was imposed on the American colonies by their British
ruler. With the success of the American Revolution, the 1798 Sedition
Act naturally ceased to have effect as it would be utterly incongruous
186 | P a g e
to punish those who sought the overthrow of the British government
in America. To annul our law on sedition is to give license to those who
seek the application of lawless methods in the advancement of their
political views. Our constitution surely does not contemplate this.”

In Calleja v. Executive Secretary, G.R. No. 252578, December 7,

2021, the Supreme Court did not find Section 9 of RA No. 11479 on
inciting to commit terrorism as unconstitutional. It was held that in
UNSC Resolution 1624 (2005), the UNSC expressed its deep concern
that “incitement of terrorist acts poses a serious and growing danger
to the enjoyment of human rights, threatens the social and economic
development of all States, undermines global stability and prosperity,
and must be addressed urgently and proactively by the United
Nations and all States.” This shows that the fight against the
incitement of terrorist acts has been given importance not only in the
country but internationally as well.

Recruitment to a Terrorist Organization

RA No. 11479 punishes any person who shall recruit another to

participate in, join, commit or support terrorism or a terrorist
individual or any terrorist organization, association or group of
persons proscribed, or designated by the United Nations Security
Council as a terrorist organization, or organized for the purpose of
engaging in terrorism or who organizes or facilitates the travel of
individuals to a state other than their state of residence or nationality
for the purpose of recruitment.

Terrorist organizations designated by the United Nations

Security Council include ISIS, the Abu Sayyaf group, and Al Qaeda.
A proscribed terrorist organization is one, which commits any of
the acts penalized under RA No. 11479 (e.g., providing material
support to terrorists) or organized for the purpose of engaging in
terrorism, and which is declared by the Court of Appeals as a
terrorist and outlawed organization through a permanent order of
proscription by the Court of Appeal. Such judicial declaration shall
be made upon application of the DOJ, notice, and hearing. It shall
be the burden of the applicant to prove that the respondent is a
terrorist and an outlawed organization. The permanent order of
proscription shall be posted in a newspaper of general circulation.

Membership to terrorist organization

The Senate deliberations underscored the importance of

establishing the scienter (knowledge) element in the prosecution of
the offense. The third paragraph of Section 10 RA No. 11479 does
not intend to automatically punish members of a proscribed
organization. Instead, what the law seeks to criminalize is
voluntarily joining an organization despite knowing it to be

187 | P a g e
proscribed or designated by the UNSC. (Calleja v. Executive
Secretary, G.R. No. 252578, December 7, 2021)

RA No. 11479 punishes membership in a terrorist organization

under three instances: (1) when a person voluntarily and knowingly
joins any organization, knowing that such organization is
proscribed under Section 26 thereof; (2) when a person voluntarily
and knowingly joins any organization, knowing that such
organization has been designated by the UNSC as a terrorist
organization; and (3) when a person voluntarily and knowingly
joins any organization, knowing that such organization has been
organized for the purpose of engaging in terrorism.

In Calleja v. Executive Secretary, G.R. No. 252578, December

7, 2021, the Supreme Court found no impermissible vagueness in
the first and second instances. The Court observed that under
these two instances, persons are sufficiently given fair notice of the
conduct to avoid, and law enforcers are not given unbridled
discretion to determine who should be prosecuted and penalized.
The wording of the statute is plain enough to inform individuals
what conduct or act is prohibited, and what would make them
criminally liable. Moreover, the publication requirement for
proscription and designation ensures that the status of the
organization, association, or group is readily ascertainable to the
general public. The Court also found that penalizing membership
under the first two instances are not overbroad.

Furthermore, the first instance of membership punished

under RA No. 11479, i.e., membership in a proscribed organization,
association, or group of persons, recognizes that proscription
involves court intervention and fair notice before an organization,
association, or group of persons is outlawed. Knowingly joining
despite the fact that it has been outlawed by the court is precisely
the evil sought to be prevented by RA No. 11479. There is no
comprehensible justification to knowingly or intentionally join or
maintain membership under this instance. Thus, this is not an
unreasonable restraint in the exercise of the right to association.

In the same vein, the second instance of membership

punished under RA No. 11479, i.e., membership in a designated
terrorist organization, association, or group of persons, is limited
only to those organizations, associations, or groups designated
under the first mode, through the automatic adoption of the
designation or listing made by the UN Security Council. The law
seeks to punish the reprehensible act of knowingly joining an
internationally-recognized terrorist organization or association

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(e.g., Al-Qaeda). This is also a permissible restriction on the
exercise of the right to association.

In Calleja v. Executive Secretary, G.R. No. 252578, December 7,

2021, the third instance to commit the crime of membership in an
organization which has been organized for the purpose of engaging
in terrorism is unconstitutional. The phrase “organized for the
purpose of engaging in terrorism” must be struck down for being
vague, overbroad, and for failing to meet the strict scrutiny test.

Foreign Terrorist.

The following acts constitute the crime of foreign terrorism

under RA No. 11479:

(a) For any person to travel or attempt to travel to a state

other than his/her state of residence or nationality for the
purpose of perpetrating, planning, or preparing for, or
participating in terrorism, or providing or receiving terrorist
training;

(b) For any person to organize or facilitate the travel of

individuals who travel to a state other than their states of
residence or nationality knowing that such travel is for the
purpose of perpetrating, planning, training, or preparing for, or
participating in terrorism or providing or receiving terrorist
training; or

(c) For any person residing abroad who comes to the

Philippines to participate in perpetrating, planning, training, or
preparing for, or participating in terrorism or provide support
for or facilitate or receive terrorist training here or abroad.

Providing Material Support to Terrorists

Providing material support to terrorists is a crime under RA No.

11479. Material support shall refer to any property, tangible or
intangible, or service, including currency or monetary instruments
or financial securities, financial services, lodging, training, expert
advice or assistance, safe houses, false documentation or
identification, communications equipment, facilities, weapons, lethal
substances, explosives, personnel (one or more individuals who may
be or include oneself), and transportation. However, humanitarian
activities undertaken by the International Committee of the Red
Cross, the Philippine Red Cross, and other state-recognized impartial
humanitarian partners or organizations in conformity with the
International Humanitarian Law (IHL) are not punishable.

The terms “training” and “expert advice or assistance” requires

knowledge on the part of the provider that the individual or
organization, association, or group of persons to which he provided
such material support is committing or planning to commit an act of
terrorism. Without such knowledge, prosecution for providing
material support to terrorist must necessarily fail. Training and
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expert advice or assistance can only be penalized as material support
when they are: (1) directed to producing imminent terrorism; and (2)
is likely to produce such action. (Calleja v. Executive Secretary, G.R.
No. 252578, December 7, 2021)

In Calleja v. Executive Secretary, G.R. No. 252578, December 7,

2021, the provision which penalizes providing material support is
neither unconstitutionally vague nor overbroad.

Accessory

Principal and accessory can be held liable for terrorism. RA No.

11479 has adopted the concept of accessory under the Revised Penal
Code. There is no provision penalizing an accomplice for the crime of
terrorism since the act of an accomplice will be considered as the
crime of providing material support to terrorists under RA No. 11479.

RA No. 9372 (Old terrorism law) provides the exempting

circumstance of relationship in favor of an accessory in terrorism or
conspiracy to commit terrorism. However, RA No. 11479 provides no
person, regardless of relationship or affinity, shall be exempt from
liability as an accessory for terrorism.

Under the Revised Penal Code and RA No. 10168, the penalty
for accessory is subject to the rule on graduation, while RA No. 11479
prescribes a specific penalty for terrorism committed by an
accessory.

Unauthorized or Malicious Interceptions and/ or Recordings.

Conducting surveillance activities of a terrorist or terrorist

organization by any law enforcement agent or military personnel
without a valid judicial authorization constitutes the crime of
unauthorized or malicious interceptions and/or recordings under RA
No. 11479. If the surveillance activities are conducted by a private
individual or public officer, who is not a law enforcement agent or
military personnel, the crime committed is violation of Anti-Wire
Tapping Law or cybercrime of illegal interception under the Anti-
Cybercrime Law.

Designation of Terrorist Individual, Groups of Persons,

Organizations or Associations

Section 25 of RA No. 11479 bestows on the Anti-Terrorism

Council (ATC) the power to designate a person or an organization
as a terrorist, making the power and the process executive in
nature. It has three modes, to wit:

(1) Through the automatic adoption by the ATC of the

designation or listing made by the UN Security Council;

(2) Through the ATC’s approval of requests made by other

jurisdictions or supranational jurisdictions (e.g., the European

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Union) to designate individuals or entities that meet the criteria
under UNSC Resolution No. 1373; and

(3) Designation by the ATC itself, upon its own finding of

probable cause that the person or organization commits, or is
attempting to commit, or conspired in the commission of, the acts
defined and penalized under Sections 4 to 12 of the ATA.

In Calleja v. Executive Secretary, G.R. No. 252578, December 7,

2021, the first mode of designation is a constitutionally acceptable
counterterrorism measure. There exists a compelling state interest in
authorizing the automatic adoption of the UNSC Consolidated List.
The second and third modes of designation are constitutionally
problematic, and must be struck down. While the State has
established a compelling interest, the means employed under the
second mode of designation is not the least restrictive means to
achieve such purpose. The third mode of designation also fails to
meet the strict scrutiny test and is overly broad.

Since the ATC cannot anymore designate an organization as a

terrorist organization on the basis of the finding of probable cause,
the remedy of ATC is to file a petition with the Court of Appeals to
proscribe this organization.

Effects of designation of terrorist organization

In Calleja v. Executive Secretary, G.R. No. 252578, December 7,

2021, designation of terrorist organization may cause the freezing of
its assets, conduct of surveillance thereof, and examination of its
bank records. A designation made may potentially affect third
persons. First, it can lead to the prosecution of the donors or
supporters of the designated individual or organization, association,
or groups of persons for providing material support or for giving
material aid to a designated terrorist even if the determination was
only made by the ATC. Second, it can make bank officials and bank
employees liable for refusing to allow the examination of bank records
of designated persons, groups, or organizations.
Considering the consequences of designation, the Court emphasized
that any power or authority the ATC may exercise should thus be
limited to confirming the designation or listing made by the UN
Security Council and its Sanctions Committee, as well as affirming
the applicability of the above-discussed sanctions under the ATA to
the designee.
Proscription of Terrorist Organizations, Association, or Group
of Persons

The term “red tagging” in the Philippines pertains to the

identification of persons, groups, or associations as supporters or
members of the CPP-NPA. The word “red” is a color that represents
communism. However, there are occasions where persons or groups,
which are identified by the military as connected with the communist
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rebellion, are being subjected to human rights violations, such as
apprehending and detaining them without warrant or just cause.
According to Justice Marvic Leonen, “red-tagging” is the phenomenon
of implicating progressive civil group leaders to heinous crimes.

Under Sections 25 and 26 RA No. 11479, an organization may

be proscribed or designated as a terrorist organization. Designation
is executive in nature, the process of proscription under the ATA is
judicial in nature.

Proscription is declared by the Court of Appeals on the basis of

proof beyond reasonable doubt after a full-blown hearing. On the
other hand, the Anti-terrorism Council will automatically designate
as terrorist organizations those which are in the Consolidated List of
terrorist organizations (e.g., Al Qaeda) issued by the UN Security
Council.

The purpose of proscription or designation is to make

membership or recruitment in a terrorist organization proscribed or
designated by the UN Security Council as a crime, to freeze the assets
of, to conduct surveillance of, and to examine the bank record of a
proscribed or designated terrorist organization.

Section 8, Article III of the Constitution provides that the right

of the people to form associations for purposes not contrary to law
shall not be abridged. The Constitution does not protect an
association which is formed for purposes contrary to law. Even before
the passage of RA No. 11479, membership in a terrorist organization
was considered as the crime of illegal association under Article 147
of the Revised Penal Code.

Money is indispensable to launch a terrorist attack. According

to CBS news, the terrorists who crashed into the World Trade Center
and the Pentagon on September 11, 2001 spent an estimated
$400,000 to $500,000 to kill nearly 3,000 people. Thus, the provision
on the freezing of assets of a designated or proscribed terrorist
organization is necessary to prevent terrorism.

However, according to some experts, proscription or designation

of a group as a terrorist organization is considered as red tagging,
and unconstitutional. The Commission on Human Rights said that it
is deeply concerned with “red-tagging” under the Anti-Terrorism Act,
which poses serious dangers since persons suspected of terrorist acts
can be subjected to human rights violations.

But in Calleja v. Executive Secretary, G.R. No. 252578,

December 7, 2021, the Supreme Court did not find as
unconstitutional the rules on proscription of a terrorist organization
and automatic designation of a terrorist organization by the ATC from
the Consolidated List of terrorist organizations issued by the UN
Security Council. It was held that similar processes adopted in other

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jurisdictions show that designation and proscription are accepted
preventive and extraordinary forms of counterterrorism measures.

The publication requirement for proscription and designation

ensures that the status of the organization, association, or group is
readily ascertainable to the general public. Hence, penalizing
membership in a designated or proscribed terrorist organization is
constitutional.

However, the Court declared as unconstitutional the provision

on designation of a terrorist organization by the ATC based on
probable cause or on request for designation by other jurisdictions
or supranational jurisdictions (e.g., the European Union).

Period of detention under Article 125 of the Revised Penal Code

Section 5, Rule 113 of the Rules of Court provides that 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 just been committed and he has probable
cause to believe based on personal knowledge of facts or
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 is temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
After a warrantless arrest based on the flagrante delicto
principle, hot pursuit principle, or escapee principle (Section 5, Rule
113 of the Rules of Criminal Procedure), the law enforcement agent
or military personnel must detain the terrorist suspect within the
period stated in Article 125 of the Revised Penal Code.

The period within which a person detained for terrorism or

conspiracy to commit terrorism under RA No. 11479 must be
delivered to judicial authorities is 36 hours in accordance with Article
125 of the Revised Penal Code since the penalty of life imprisonment
prescribed for it is equivalent to an afflictive penalty. Judicial delivery
means the filing of an information in court. The mandatory period to
make a judicial delivery under the law is designed to protect the
criminal suspect since the court, to which he is delivered, may release
him if there is no probable cause that he committed a crime.

The detainee for terrorism or violation of RA No. 11479 has the

right not to be detained beyond the period stated in Article 125 of the
Revised Penal Code. The apprehending agents must either judicially
charge him in court within the period, or release him after the
expiration of the period. Detaining the suspect beyond the said period
without a formal criminal charge in court constitutes the crime of
delay in the delivery of detained persons under Article 125 of the
Revised Penal Code.
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Period of detention under Section 29 of RA No. 11479

There are occasions where evidence gathered by the arresting

law enforcement agent or military personnel is enough to support a
finding of probable cause for purposes of a lawful warrantless arrest;
but this evidence is insufficient to support a finding of probable cause
by the inquest prosecutor for purposes of filing an information in
court, or by the court for purposes of issuing a commitment order
against the person detained for a crime involving terrorism.

If the arresting law enforcement agent or military personnel

needs more time to gather more evidence to support the filing of a
case in court for the crime involving terrorism, he may secure written
authority from the ATC to extend the allowable period of detention
from 36 hours to 14 days. (Section 29 of RA No. 11479) This authority
is not a warrant of arrest since the terrorist suspect is already
arrested.

Prior to the lapse of the 36-hour period specified under Article

125 of the Revised Penal Code, the arresting law enforcement agent
or military personnel must be able to secure a written authority from
the ATC. The ATC shall issue a written authority in favor of the law
enforcement officer or military personnel upon submission of a sworn
statement stating the details of the person suspected of committing
acts of terrorism, and the relevant circumstances as basis for the
taking of custody of said person. (Implementing Rules and Regulations
of RA No. 11479)

Prior to the lapse of the 14-day period, for which the terrorist
suspect may be detained by virtue of a written authority issued by
ATC, the arresting law enforcement agent or military personnel may
secure a written authority from the ATC to extend the allowable
period of detention from 14 days to 24 days. (Section 29 of RA No.
11479)

With a written authority, a terrorist suspect even without formal

charge in court can be detained for 14/24 days. The detainee for
terrorism or violation of RA No. 11479 has the right not to be detained
beyond the period of 14/24 days. The apprehending agents must
either judicially charge him in court within the period, or release him
after the expiration of the period. Detaining the suspect beyond the
14/24-day period without a formal criminal charge in court
constitutes the crime of violation of the right of the detainee under
Section 31 of RA No. 11479.

Senator Panfilo “Ping” Lacson cited the experience of former

Philippine National Police chief and now Senator Ronald “Bato” Dela
Rosa to justify the provision of the antiterrorism bill allowing the
detention of a terrorist suspect without charges for 24 days. Lacson
said that when Dela Rosa was still the chief of the Davao City police,
his men were forced to release a terrorist suspect since they knew
the case will be dismissed due to insufficiency of evidence. The police

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then knew that they would be charged with arbitrary detention if they
kept the suspect in custody. Months later, Dela Rosa saw a video
showing the same suspect they released beheading a captive.

Section 29 of RA No. 11479 on detention without a judicial

warrant of arrest does not amend Article 125 of the Revised Penal
Code, but supplements it by providing an exceptional rule with
specific application only in cases where: (1) there is probable cause
to believe that the crime committed is that which is punished under
RA No. 11479; and (2) a written authorization from the ATC is
secured for the purpose. Both requisites must be complied with;
otherwise, the arresting officer must observe the periods provided
under Article 125 of the Revised Penal Code. (Calleja v. Executive
Secretary, G.R. No. 252578, December 7, 2021)

Some experts find this provision on detaining a terrorist suspect

for 24 days as unconstitutional for being a violation of Section 2,
Article III of the Constitution, which provides that the right of the
people to be secure in their persons against unreasonable seizures
shall be inviolable, and no warrant of arrest shall issue except upon
probable cause to be determined personally by the judge. According
to them, only a judge and not the Anti-Terrorism Council can issue
a warrant of arrest. In fact, in Salazar v. Achacoso, G.R. 81510,
March 14, 1990, the Supreme Court declared as unconstitutional
Article 38 of Labor Code, which authorized the POEA or Secretary of
Labor to issue an arrest order against an unlicensed recruiter
because only a judge under the Constitution can issue a warrant of
arrest.

However, according to Senator Panfilo Lacson, the 14-day

detention, which can be extended for 10 days, is comparable to that
of Australia. Terror suspects in Indonesia can be detained for as long
as 120 days, Singapore as long as 730 days, while Malaysia has a
detention period of 59 days to two years.

In Calleja v. Executive Secretary, G.R. No. 252578, December 7,

2021, the Supreme Court sustained the constitutionality of Section
29 of RA No. 11479 on 24-day detention of a terrorist. Section 29 is
a counterterrorism measure enacted as a response to the ever-
evolving problem of terrorism and should be seen as a measure that
aims to prevent and disrupt future terrorist acts

The written authorization of the Anti-Terrorism Council (ATC)

under Section 29 is not an executive warrant of arrest. The arrest
and detention contemplated in Section 29 does not divert from the
rule that only a judge may issue a warrant of arrest. When the
circumstances for a warrantless arrest, the government must apply
for a warrant of arrest with the proper court. The written
authorization contemplated in Section 29 does not substitute a
warrant of arrest that only the courts may issue. The written
authorization in Section 29 is not a judicial warrant.

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 Section 45 of RA No. 11479, which categorically states that the
ATC has not been granted any judicial or quasi-judicial power or
authority. A textual reading of Section 29 in relation to its
implementing rules shows that the ATC issues a written
authorization to law enforcement agents only to permit the 14/24-
day extended detention of a person arrested after a valid warrantless
arrest is made.

Since the written authority to detain a terrorist suspect for

14/24 days is issued by the ATC after a warrantless arrest is made,
the authority is not equivalent to a judicial warrant of arrest since an
arrested person cannot be arrested.

Unauthorized revelation of Classified Materials

Disclosure of secrets known to public officer by reason of his

official capacity constitutes the crime of revelation of secrets under
Article 229 of the Revised Penal Code.
Disclosure of confidential information pertaining to the
defense of the Philippines to a representative of a foreign nation by a
public officer, who in possession thereof by reason of his office,
constitutes espionage under Commonwealth Act No. 616.
Disclosure of valuable confidential information to
unauthorized persons, or releasing such information in advance of its
authorized release date is a violation of RA No. 3019.
Disclosure of confidential or classified information by public
officer to further his private interests, or give undue advantage to
anyone, or to prejudice the public interest constitutes the crime of
disclosure or misuse of confidential information under RA No. 6713.

Revelation of classified information on terrorism under RA No.

11479 is punishable under Section 41 thereof. The crime of
unauthorized revelation of classified materials under Section 41 of RA
No. 11479 is committed any person, law enforcement agent or
military personnel, judicial officer or civil servant who, not being
authorized by the Court of Appeals to do so, reveals in any manner
or form any classified information under this Act.

Infidelity in the Custody of Detained Persons

Infidelity in the custody of prisoners is committed by any public

officer who consents to the escape of a prisoner sentenced by final
judgment or a detention prisoner in his custody or charge, or allows
such escape through his negligence. If evasion is committed with his
consent, this crime can also be called as conniving with or consenting
to evasion. (Article 223 of the Revised Penal Code) If it takes place
through his negligence, it can also be called as evasion through
negligence. (Article 224 of the Revised Penal Code)

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 If the person is detained by reason of a crime involving
terrorism, a public officer who has direct custody of the detained
person under the provisions of RA No. 11479 and who, by his
deliberate act, misconduct, or inexcusable negligence, causes or
allows the escape of such detained person, is liable for infidelity in
the custody of detained persons under Section 42 of RA No. 11479.
The detained person is either a detention prisoner or a convicted
prisoner.

Giving unwarranted benefit to the mayor transferring him from

the provincial jail and detaining him at a residence is a violation of
Section 3(e) of RA No. 3019. Thus, a person, who commits infidelity
in the custody of prisoner under the Revised Penal Code or infidelity
in the custody of detained persons under RA No. 11479 can also be
charged with violation of Section 3(e) of RA No. 3019.

Furnishing False Evidence, Forged Document, or Spurious

Evidence

Under Section 1(f), PD No. 1829 making, presenting, or using any

record, document, paper, or object with knowledge of its falsity and
with intent to affect the course or outcome of the criminal
investigation or proceedings is obstruction of justice.

If the proceeding is civil, the offender is liable for use of falsified

document. In use of falsified document in a judicial proceeding under
Article 172 of the Revised Penal Code, the offender introduces a false
document in a judicial proceeding regardless of whether the case is
criminal, civil, or administrative.

Any person who shall knowingly offer in evidence a false witness

or testimony in any judicial or official proceeding, shall be punished
as guilty of false testimony under Article 184 of the Revised Penal
Code.

Any person who knowingly furnishes false testimony, forged

document, or spurious evidence in any investigation or hearing
conducted in relation to any crime involving terrorism is liable for
furnishing false evidence, forged document, or spurious evidence
under Section 43 of RA No. 11479.

Extraterritorial Application

Subject to the provision of any treaty of which the Philippines

is a signatory and to any contrary provision of any law of preferential
application, the provisions of this Act shall apply:

(a) To a Filipino citizen or national who commits any of the

acts defined and penalized RA No. 11479 outside the territorial
jurisdiction of the Philippines;

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 (b) To individual persons who, although physically outside
the territorial limits of the Philippines, commit any of the crimes
mentioned in Paragraph (a) hereof inside the territorial limits of
the Philippines;

(c) To individual persons who, although physically outside

the territorial limits of the Philippines, commit any of the said
crimes mentioned in Paragraph (a) hereof on board Philippine
ship or Philippine airship;

(d) To individual persons who commit any of said crimes

mentioned in Paragraph (a) hereof within any embassy,
consulate, or diplomatic premises belonging to or occupied by
the Philippine government in an official capacity;

(e) To individual persons who, although physically outside

the territorial limits of the Philippines, commit said crimes
mentioned in Paragraph (a) hereof against Philippine citizens or
persons of Philippine descent, where their citizenship or
ethnicity was a factor in the commission of the crime; and

(f) To individual persons who, although physically outside

the territorial limits of the Philippines, commit said crimes
directly against the Philippine government.

In case of an individual who is neither a citizen or a national of

the Philippines who commits any of the crimes mentioned in
Paragraph (a) hereof outside the territorial limits of the Philippines,
the Philippines shall exercise jurisdiction only when such individual
enters or is inside the territory of the Philippines: Provided, That, in
the absence of any request for extradition from the state where the
crime was committed or the state where the individual is a citizen or
national, or the denial thereof, the ATC shall refer the case to the BI
for deportation or to the DOJ for prosecution in the same manner as
if the act constituting the offense had been committed in the
Philippines. (Section 49 of RA No. 11479)

Article 2 of the Revised Penal Code provides two principles, to

wit: Territoriality Principle and Extra territoriality Principle. Under the
principle of extraterritoriality, the provisions of the Revised Penal Code
shall be enforced outside the Philippine territory as provided in
Article 2, pars. 1 to 5 of the Revised Penal Code.

The territoriality principle and extraterritoriality principle in

Article 2 of the Revised Penal Code are applicable even if the crime is
punishable under special laws. Thus, Article 2 on territoriality is
applicable to violence against women under RA No. 9262 (AAA v.
BBB, G.R. No. 212448, January 11, 2018), while that on
extraterritoriality applies to piracy under PD No. 532. (People v. Tulin,
G.R. No. 111709, August 30, 2001) However, Article 2 of the Code is
not applicable to crimes involving terrorism because RA No. 11479
has specific provisions for the extraterritorial rule.
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 The territoriality principle and extra territoriality principle
according to Article 2 of the Revised Penal Code are subject to treaties
and laws of preferential application. Section 49 of RA No. 11479 is a
law of preferential application.

International law principles

In Calleja v. Executive Secretary, G.R. No. 252578, December 7,

2021, the Supreme Court affirmed the constitutionality of Section 49
of RA No. 11479 and stated: It must as well be pointed out that
Section 49 of RA No. 11479 appears to simply reflect or embody the
five traditional bases of jurisdiction over extraterritorial crimes
recognized in international law, i.e., territorial, national, protective,
universal, and passive personal. These are, in fact, recognized
doctrines in the realm of private international law, more commonly
known as “conflict of laws.”

Passive personality principle

The provisions of RA No. 11479 shall apply to individual

persons who, although physically outside the territorial limits of the
Philippines, commit crimes involving terrorism against Philippine
citizens or persons of Philippine descent, where their citizenship or
ethnicity was a factor in the commission of the crime. This is based
on the passive personality principle.

The passive personality jurisdiction, which is based on the

nationality of the victim, has been accepted in international law in
limited incidents. (Calleja v. Executive Secretary, G.R. No. 252578,
December 7, 2021)

If Filipinos incidentally died in the bombing of the US embassy

in Taiwan by a terrorist group to force the USA not to interfere with
Muslim affairs, the Philippines has no jurisdiction over terrorism
since their Filipino citizenship was not a factor in the commission of
this crime.

Nationality principle

The provisions of RA No. 11479 shall apply to a Filipino citizen

or national who commits a crime involving terrorism outside the
territorial jurisdiction of the Philippines. This is the nationality
principle in international law where jurisdiction of a country is based
on the nationality or citizenship of the offender.

Universality principle

The provisions of RA No. 11479 shall apply to a non-Filipino

citizen or national who commits a crime involving terrorism outside
the territorial limits of the Philippines, and who enters or is inside
the territory of the Philippines. This rule is based on the universality
principle.

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 Under the international law principle of universality, a state has
jurisdiction over offenses considered as universal crimes regardless
of where they are committed or who committed them. Universal
crimes are those which threaten the international community as a
whole and are considered criminal offenses in all countries, e.g.,
piracy, genocide, white slave trade, hi-jacking, terrorism, war crimes.
(Outline Reviewer in Political Law by Solicitor General Antonio
Nachura) The principle of universality started with piracy. Now, the
universality principle under international law covers not just piracy
but also genocide, crimes against humanity, war crimes, aircraft
piracy, and terrorism. There is also a growing support for universal
jurisdiction over crimes against human rights. (Introduction to Public
International Law by Father Joaquin Bernas)

Universal jurisdiction, which confers authority unto the forum

that obtains physical custody of the perpetrator of certain offenses
considered particularly heinous and harmful to humanity, has been
accepted in international law. Section 2 of RA No. 11479 considers
terrorism as not only a crime against the Filipino people, but also a
crime against humanity and the Law of Nations. (Calleja v. Executive
Secretary, G.R. No. 252578, December 7, 2021)

The state where the crime was committed or the state where the
individual is a citizen or national with which the Philippines has
entered into an extradition treaty or convention, when the relevant
treaty or convention remains in force, may request for an extradition
of such person. The request for extradition shall be subject to the
procedures and requirements set forth under the Philippine
Extradition Law in so far as the same is not inconsistent with any
provision of RA No. 11479. (Implementing rules and regulations of RA
No. 11479)

In the absence of any request for extradition from the state

where the crime was committed or the state where the individual is
a citizen or national, or the denial thereof, the ATC shall refer the
case to the BI for deportation or to the DOJ for prosecution in the
same manner as if the act constituting the offense had been
committed in the Philippines. (Implementing rules and regulations of
RA No. 11479)

Territoriality and protective principle

The provisions of RA No. 11479 shall apply to individual

persons who, although physically outside the territorial limits of the
Philippines, commit crimes involving terrorism inside the territorial
limits of the Philippines. This is based on the territoriality principle
and protective principle, which are recognized by international law.

Protective principle

The provisions of RA No. 11479 shall apply to individual

persons who commit a crime involving terrorism within any embassy,
consulate, or diplomatic premises belonging to or occupied by the
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Philippine government in an official capacity or directly against the
Philippine government. This is based on the protective principle.

Flag state rule

The provisions of RA No. 11479 shall apply to individual

persons who, although physically outside the territorial limits of the
Philippines, commit a crime involving terrorism on board a Philippine
ship or Philippine airship. This is the flag state rule in international
law. This rule is the same as that in Article 2(1) of the Revised Penal
Code.

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