Criminal Law (1)

CRIMINAL LAW

Criminal law is that branch of municipal law which defines crimes, treats of their nature and provides for their punishment.

It is that branch of public substantive law which defines offenses and prescribes their penalties. It is substantive because it defines the state’s right to inflict punishment and the liability of the offenders. It is public law because it deals with the relation of the individual with the state.


Limitations on the power of Congress to enact penal laws

1. Must be general in application.
2. Must not partake of the nature of an ex post facto law.
3. Must not partake of the nature of a bill of attainder.
4. Must not impose cruel and unusual punishment or excessive fines.


Characteristics of Criminal Law

1. Generality

2. Territoriality

3. Prospectivity.


Generality

Generality of criminal law means that the criminal law of the country governs all persons within the country regardless of their race, belief, sex, or creed. However, it is subject to certain exceptions brought about by international agreement. Ambassadors, chiefs of states and other diplomatic officials are immune from the application of penal laws when they are in the country where they are assigned.

Note that consuls are not diplomatic officers. This includes consul-general, vice-consul or any consul in a foreign country, who are therefore, not immune to the operation or application of the penal law of the country where they are assigned. Consuls are subject to the penal laws of the country where they are assigned.

It has no reference to territory. Whenever you are asked to explain this, it does not include territory. It refers to persons that may be governed by the penal law.


TERRITORIALITY

Territoriality means that the penal laws of the country have force and effect only within its territory. It cannot penalize crimes committed outside the same. This is subject to certain exceptions brought about by international agreements and practice. The territory of the country is not limited to the land where its sovereignty resides but includes also its maritime and interior waters as well as its atmosphere.

Terrestrial jurisdiction is the jurisdiction exercised over land.

Fluvial jurisdiction is the jurisdiction exercised over maritime and interior waters.

Aerial jurisdiction is the jurisdiction exercised over the atmosphere.


The Archipelagic Rule

All bodies of water comprising the maritime zone and interior waters abounding different islands comprising the Philippine Archipelago are part of the Philippine territory regardless of their breadth, depth, width or dimension.

On the fluvial jurisdiction there is presently a departure from the accepted International Law Rule, because the Philippines adopted the Archipelagic Rule. In the International Law Rule, when a strait within a country has a width of more than 6 miles, the center lane in excess of the 3 miles on both sides is considered international waters.


Question & Answer

If a foreign merchant vessel is in the center lane and a crime was committed there, under the International Law Rule, what law will apply?

The law of the country where that vessel is registered will apply, because the crime is deemed to have been committed in the high seas.


Under the Archipelagic Rule as declared in Article 1, of the Constitution, all waters in the archipelago regardless of breadth width, or dimension are part of our national territory. Under this Rule, there is no more center lane, all these waters, regardless of their dimension or width are part of Philippine territory.

So if a foreign merchant vessel is in the center lane and a crime was committed, the crime will be prosecuted before Philippine courts.


Three international law theories on aerial jurisdiction

(1) The atmosphere over the country is free and not subject to the jurisdiction of the subjacent state, except for the protection of its national security and public order.

Under this theory, if a crime is committed on board a foreign aircraft at the atmosphere of a country, the law of that country does not govern unless the crime affects the national security.

(2) Relative Theory – The subjacent state exercises jurisdiction over its atmosphere only to the extent that it can effectively exercise control thereof. The Relative Theory

Under this theory, if a crime was committed on an aircraft which is already beyond the control of the subjacent state, the criminal law of that state will not govern anymore. But if the crime is committed in an aircraft within the atmosphere over a subjacent state which exercises control, then its criminal law will govern.

(3) Absolute Theory – The subjacent state has complete jurisdiction over the atmosphere above it subject only to innocent passage by aircraft of foreign country.

Under this theory, if the crime is committed in an aircraft, no matter how high, as long as it can establish that it is within the Philippine atmosphere, Philippine criminal law will govern. This is the theory adopted by the Philippines.


PROSPECTIVITY

This is also called irretrospectivity.

Acts or omissions will only be subject to a penal law if they are committed after a penal law had already taken effect. Vice-versa, this act or omission which has been committed before the effectivity of a penal law could not be penalized by such penal law because penal laws operate only prospectively.

In some textbooks, an exemption is said to exist when the penal law is favorable to the offender, in which case it would have retroactive application; provided that the offender is not a habitual delinquent and there is no provision in the law against its retroactive application.

The exception where a penal law may be given retroactive application is true only with a repealing law. If it is an original penal law, that exception can never operate. What is contemplated by the exception is that there is an original law and there is a repealing law repealing the original law. It is the repealing law that may be given retroactive application to those who violated the original law, if the repealing penal law is more favorable to the offender who violated the original law. If there is only one penal law, it can never be given retroactive effect.


Rule of prospectivity also applies to administrative rulings and circulars

In Co v. CA, decided on October 28, 1993, it was held that the principle of prospectivity of statutes also applies to administrative rulings and circulars. In this case, Circular No. 4 of the Ministry of Justice, dated December 15, 1981, provides that “where the check is issued as part of an arrangement to guarantee or secure the payment of an obligation, whether pre-existing or not, the drawer is not criminally liable for either estafa or violation of BP22.” Subsequently, the administrative interpretation of was reversed in Circular No. 12, issued on August 8, 1984, such that the claim that the check was issued as a guarantee or part of an arrangement to secure an obligation or to facilitate collection, is no longer a valid defense for the prosecution of BP22. Hence, it was ruled in Que v. People that a check issued merely to guarantee the performance of an obligation is, nevertheless, covered by BP 22. But consistent with the principle of prospectivity, the new doctrine should not apply to parties who had relied on the old doctrine and acted on the faith thereof. No retrospective effect.


Effect of repeal of penal law to liability of offender

In some commentaries, there are references as to whether the repeal is express or implied. What affects the criminal liability of an offender is not whether a penal law is expressly or impliedly repealed; it is whether it is absolutely or totally repealed, or relatively or partially repealed.

Total or absolute, or partial or relative repeal. -- As to the effect of repeal of penal law to the liability of offender, qualify your answer by saying whether the repeal is absolute or total or whether the repeal is partial or relative only.

A repeal is absolute or total when the crime punished under the repealed law has been decriminalized by the repeal. Because of the repeal, the act or omission which used to be a crime is no longer a crime. An example is Republic Act No. 7363, which decriminalized subversion.

A repeal is partial or relative when the crime punished under the repealed law continues to be a crime inspite of the repeal. This means that the repeal merely modified the conditions affecting the crime under the repealed law. The modification may be prejudicial or beneficial to the offender. Hence, the following rule:


Consequences if repeal of penal law is total or absolute

(1) If a case is pending in court involving the violation of the repealed law, the same shall be dismissed, even though the accused may be a habitual delinquent. This is so because all persons accused of a crime are presumed innocent until they are convicted by final judgment. Therefore, the accused shall be acquitted.

(2) If a case is already decided and the accused is already serving sentence by final judgment, if the convict is not a habitual delinquent, then he will be entitled to a release unless there is a reservation clause in the penal law that it will not apply to those serving sentence at the time of the repeal. But if there is no reservation, those who are not habitual delinquents even if they are already serving their sentence will receive the benefit of the repealing law. They are entitled to release.

This does not mean that if they are not released, they are free to escape. If they escape, they commit the crime of evasion of sentence, even if there is no more legal basis to hold them in the penitentiary. This is so because prisoners are accountabilities of the government; they are not supposed to step out simply because their sentence has already been, or that the law under which they are sentenced has been declared null and void.

If they are not discharged from confinement, a petition for habeas corpus should be filed to test the legality of their continued confinement in jail.

If the convict, on the other hand, is a habitual delinquent, he will continue serving the sentence in spite of the fact that the law under which he was convicted has already been absolutely repealed. This is so because penal laws should be given retroactive application to favor only those who are not habitual delinquents.


Question & Answer

A, a prisoner, learns that he is already overstaying in jail because his jail guard, B, who happens to be a law student advised him that there is no more legal ground for his continued imprisonment, and B told him that he can go. A got out of jail and went home. Was there any crime committed?

As far as A, the prisoner who is serving sentence, is concerned, the crime committed is evasion of sentence.

As far as B, the jail guard who allowed A to go, is concerned, the crime committed is infidelity in the custody of prisoners.


Consequences if repeal of penal law is partial or relative

(1) If a case is pending in court involving the violation of the repealed law, and the repealing law is more favorable to the accused, it shall be the one applied to him. So whether he is a habitual delinquent or not, if the case is still pending in court, the repealing law will be the one to apply unless there is a saving clause in the repealing law that it shall not apply to pending causes of action.

(2) If a case is already decided and the accused is already serving sentence by final judgment, even if the repealing law is partial or relative, the crime still remains to be a crime. Those who are not habitual delinquents will benefit on the effect of that repeal, so that if the repeal is more lenient to them, it will be the repealing law that will henceforth apply to them.

For example, under the original law, the penalty is six years. Under the repealing law, it is four years. Those convicted under the original law will be subjected to the four-year penalty. This retroactive application will not be possible if there is a saving clause that provides that it should not be given retroactive effect.

Under Article 22, even if the offender is already convicted and serving sentence, a law which is beneficial shall be applied to him unless he is a habitual delinquent in accordance with Rule 5 of Article 62.


Express or implied repeal. – Express or implied repeal refers to the manner the repeal is done.

Express repeal takes place when a subsequent law contains a provision that such law repeals an earlier enactment. For example, in Republic Act No. 6425 (The Dangerous Drugs Act of 1972), there is an express provision of repeal of Title V of the Revised Penal Code.

Implied repeals are not favored. It requires a competent court to declare an implied repeal. An implied repeal will take place when there is a law on a particular subject matter and a subsequent law is passed also on the same subject matter but is inconsistent with the first law, such that the two laws cannot stand together, one of the two laws must give way. It is the earlier that will give way to the later law because the later law expresses the recent legislative sentiment. So you can have an implied repeal when there are two inconsistent laws. When the earlier law does not expressly provide that it is repealing an earlier law, what has taken place here is implied repeal. If the two laws can be reconciled, the court shall always try to avoid an implied repeal. For example, under Article 9, light felonies are those infractions of the law for the commission of which a penalty of arresto mayor or a fine not exceeding P200.00 or both is provided. On the other hand, under Article 26, a fine whether imposed as a single or an alternative penalty, if it exceeds P6,000.00 but is not less than P 200.00, is considered a correctional penalty. These two articles appear to be inconsistent. So to harmonize them, the Supreme Court ruled that if the issue involves the prescription of the crime, that felony will be considered a light felony and, therefore, prescribes within two months. But if the issue involves prescription of the penalty, the fine of P200.00 will be considered correctional and it will prescribe within 10 years. Clearly, the court avoided the collision between the two articles.


Consequences if repeal of penal law is express or implied

(1) If a penal law is impliedly repealed, the subsequent repeal of the repealing law will revive the original law. So the act or omission which was punished as a crime under the original law will be revived and the same shall again be crimes although during the implied repeal they may not be punishable.

(2) If the repeal is express, the repeal of the repealing law will not revive the first law, so the act or omission will no longer be penalized.

These effects of repeal do not apply to self-repealing laws or those which have automatic termination. An example is the Rent Control Law which is revived by Congress every two years.

When there is a repeal, the repealing law expresses the legislative intention to do away with such law, and, therefore, implies a condonation of the punishment. Such legislative intention does not exist in a self-terminating law because there was no repeal at all.


BASIC MAXIMS IN CRIMINAL LAW


Doctrine of Pro Reo

Whenever a penal law is to be construed or applied and the law admits of two interpretations – one lenient to the offender and one strict to the offender – that interpretation which is lenient or favorable to the offender will be adopted.

This is in consonance with the fundamental rule that all doubts shall be construed in favor of the accused and consistent with presumption of innocence of the accused. This is peculiar only to criminal law.


Question & Answer

One boy was accused of parricide and was found guilty. This is punished by reclusion perpetua to death. Assuming you were the judge, would you give the accused the benefit of the Indeterminate Sentence Law (ISLAW)? The ISLAW does not apply when the penalty imposed is life imprisonment of death. Would you consider the penalty imposable or the penalty imposed, taking into consideration the mitigating circumstance of minority?

If you will answer "no", then you go against the Doctrine of Pro Reo because you can interpret the ISLAW in a more lenient manner. Taking into account the doctrine, we interpret the ISLAW to mean that the penalty imposable and not the penalty prescribed by law, since it is more favorable for the accused to interpret the law.


Nullum crimen, nulla poena sine lege

There is no crime when there is no law punishing the same. This is true to civil law countries, but not to common law countries.

Because of this maxim, there is no common law crime in the Philippines. No matter how wrongful, evil or bad the act is, if there is no law defining the act, the same is not considered a crime.

Common law crimes are wrongful acts which the community/society condemns as contemptible, even though there is no law declaring the act criminal.

Not any law punishing an act or omission may be valid as a criminal law. If the law punishing an act is ambiguous, it is null and void.


Actus non facit reum, nisi mens sit rea

The act cannot be criminal where the mind is not criminal. This is true to a felony characterized by dolo, but not a felony resulting from culpa. This maxim is not an absolute one because it is not applied to culpable felonies, or those that result from negligence.


Utilitarian Theory or Protective Theory

The primary purpose of the punishment under criminal law is the protection of society from actual and potential wrongdoers. The courts, therefore, in exacting retribution for the wronged society, should direct the punishment to potential or actual wrongdoers, since criminal law is directed against acts and omissions which the society does not approve. Consistent with this theory, the mala prohibita principle which punishes an offense regardless of malice or criminal intent, should not be utilized to apply the full harshness of the special law.

In Magno v CA, decided on June 26, 1992, the Supreme Court acquitted Magno of violation of Batas Pambansa Blg. 22 when he acted without malice. The wrongdoer is not Magno but the lessor who deposited the checks. He should have returned the checks to Magno when he pulled out the equipment. To convict the accused would defeat the noble objective of the law and the law would be tainted with materialism and opportunism.


DEVELOPMENT OF CRIMINAL LAW IN THE PHILIPPINES


Code of Kalantiao

If you will be asked about the development of criminal law in the Philippines, do not start with the Revised Penal Code. Under the Code of Kalantiao, there were penal provisions. Under this code, if a man would have a relation with a married woman, she is penalized. Adultery is a crime during those days. Even offending religious things, such as gods, are penalized. The Code of Kalantiao has certain penal provisions. The Filipinos have their own set of penology also.


Spanish Codigo Penal

When the Spanish Colonizers came, the Spanish Codigo Penal was made applicable and extended to the Philippines by Royal Decree of 1870. This was made effective in the Philippines in July 14, 1876.


Who is Rafael Del Pan?

He drafted a correctional code which was after the Spanish Codigo Penal was extended to the Philippines. But that correctional code was never enacted into law. Instead, a committee was organized headed by then Anacleto Diaz. This committee was the one who drafted the present Revised Penal Code.


The present Revised Penal Code

When a committee to draft the Revised Penal Code was formed, one of the reference that they took hold of was the correctional code of Del Pan. In fact, many provisions of the Revised Penal Code were no longer from the Spanish Penal Code; they were lifted from the correctional code of Del Pan. So it was him who formulated or paraphrased this provision making it simpler and more understandable to Filipinos because at that time, there were only a handful who understood Spanish.


Code of Crimes by Guevarra

During the time of President Manuel Roxas, a code commission was tasked to draft a penal code that will be more in keeping with the custom, traditions, traits as well as beliefs of the Filipinos. During that time, the code committee drafted the so-called Code of Crimes. This too, slept in Congress. It was never enacted into law. Among those who participated in drafting the Code of Crimes was Judge Guellermo Guevarra.

Since that Code of Crimes was never enacted as law, he enacted his own code of crimes. But it was the Code of Crimes that that was presented in the Batasan as Cabinet Bill no. 2. Because the code of crimes prepared by Guevarra was more of a moral code than a penal code, there were several oppositions against the code.


Proposed Penal Code of the Philippines

Through Assemblyman Estelito Mendoza, the UP Law Center formed a committee which drafted the Penal Code of the Philippines. This Penal Code of the Philippines was substituted as Cabinet Bill no. 2 and this has been discussed in the floor of the Batasang Pambansa. So the Code of Crimes now in Congress was not the Code of Crimes during the time of President Roxas. This is a different one. Cabinet Bill No. 2 is the Penal Code of the Philippines drafted by a code committee chosen by the UP Law Center, one of them was Professor Ortega. There were seven members of the code committee. It would have been enacted into law it not for the dissolution of the Batasang Pambansa dissolved. The Congress was planning to revive it so that it can be enacted into law.


Special Laws

During Martial Law, there are many Presidential Decrees issued aside from the special laws passed by the Philippine Legislature Commission. All these special laws, which are penal in character, are part of our Penal Code.


Different philosophies underlying the criminal law system

1. Classical or Juristic Philosophy
2. Positivit or Realistic Philosophy
3. Ecletic or Mixed Philosophy


Classical or Juristic Philosophy

Best remembered by the maxim “An eye for an eye, a tooth for a tooth.” [Note: If you want to impress the examiner, use the latin version – Oculo pro oculo, dente pro dente.]

The purpose of penalty is retribution. The offender is made to suffer for the wrong he has done. There is scant regard for the human element of the crime. The law does not look into why the offender committed the crime. Capital punishment is a product of this kind of this school of thought. Man is regarded as a moral creature who understands right from wrong. So that when he commits a wrong, he must be prepared to accept the punishment therefore.


Positivist or Realistic Philosophy

The purpose of penalty is reformation. There is great respect for the human element because the offender is regarded as socially sick who needs treatment, not punishment. Cages are like asylums, jails like hospitals. They are there to segregate the offenders from the “good” members of society.

From this philosophy came the jury system, where the penalty is imposed on a case to case basis after examination of the offender by a panel of social scientists which do not include lawyers as the panel would not want the law to influence their consideration.

Crimes are regarded as social phenomena which constrain a person to do wrong although not of his own volition. A tendency towards crime is the product of one’s environment. There is no such thing as a natural born killer.

This philosophy is criticized as being too lenient.


Eclectic or Mixed Philosophy

This combines both positivist and classical thinking. Crimes that are economic and social and nature should be dealt with in a positivist manner; thus, the law is more compassionate. Heinous crimes should be dealt with in a classical manner; thus, capital punishment.

Since the Revised Penal Code was adopted from the Spanish Codigo Penal, which in turn was copied from the French Code of 1810 which is classical in character, it is said that our Code is also classical. This is no longer true because with the American occupation of the Philippines, many provisions of common law have been engrafted into our penal laws. The Revised Penal Code today follows the mixed or eclectic philosophy. For example, intoxication of the offender is considered to mitigate his criminal liability, unless it is intentional or habitual; the age of the offender is considered; and the woman who killed her child to conceal her dishonor has in her favor a mitigating circumstance.


MALA IN SE AND MALA PROHIBITA

Violations of the Revised Penal Code are referred to as malum in se, which literally means, that the act is inherently evil or bad or per se wrongful. On the other hand, violations of special laws are generally referred to as malum prohibitum.


Note, however, that not all violations of special laws are mala prohibita. While intentional felonies are always mala in se, it does not follow that prohibited acts done in violation of special laws are always mala prohibita. Even if the crime is punished under a special law, if the act punished is one which is inherently wrong, the same is malum in se, and, therefore, good faith and the lack of criminal intent is a valid defense; unless it is the product of criminal negligence or culpa.

Likewise when the special laws requires that the punished act be committed knowingly and willfully, criminal intent is required to be proved before criminal liability may arise.

When the act penalized is not inherently wrong, it is wrong only because a law punishes the same.

For example, Presidential Decree No. 532 punishes piracy in Philippine waters and the special law punishing brigandage in the highways. These acts are inherently wrong and although they are punished under special law, the acts themselves are mala in se; thus, good faith or lack of criminal intent is a defense.


Distinction between crimes punished under the Revised Penal Code and crimes punished under special laws

1. As to moral trait of the offender

In crimes punished under the Revised Penal Code, the moral trait of the offender is considered. This is why liability would only arise when there is dolo or culpa in the commission of the punishable act.

In crimes punished under special laws, the moral trait of the offender is not considered; it is enough that the prohibited act was voluntarily done.

2. As to use of good faith as defense

In crimes punished under the Revised Penal Code, good faith or lack of criminal intent is a valid defense; unless the crime is the result of culpa

In crimes punished under special laws, good faith is not a defense

3. As to degree of accomplishment of the crime

In crimes punished under the Revised Penal Code, the degree of accomplishment of the crime is taken into account in punishing the offender; thus, there are attempted, frustrated, and consummated stages in the commission of the crime.

In crimes punished under special laws, the act gives rise to a crime only when it is consummated; there are no attempted or frustrated stages, unless the special law expressly penalize the mere attempt or frustration of the crime.

4. As to mitigating and aggravating circumstances

In crimes punished under the Revised Penal Code, mitigating and aggravating circumstances are taken into account in imposing the penalty since the moral trait of the offender is considered.

In crimes punished under special laws, mitigating and aggravating circumstances are not taken into account in imposing the penalty.

5. As to degree of participation

In crimes punished under the Revised Penal Code, when there is more than one offender, the degree of participation of each in the commission of the crime is taken into account in imposing the penalty; thus, offenders are classified as principal, accomplice and accessory.

In crimes punished under special laws, the degree of participation of the offenders is not considered. All who perpetrated the prohibited act are penalized to the same extent. There is no principal or accomplice or accessory to consider.


Questions & Answers

1. Three hijackers accosted the pilot of an airplane. They compelled the pilot to change destination, but before the same could be accomplished, the military was alerted. What was the crime committed?

Grave coercion. There is no such thing as attempted hijacking. Under special laws, the penalty is not imposed unless the act is consummated. Crimes committed against the provisions of a special law are penalized only when the pernicious effects, which such law seeks to prevent, arise.

2. A mayor awarded a concession to his daughter. She was also the highest bidder. The award was even endorsed by the municipal council as the most advantageous to the municipality. The losing bidder challenged the validity of the contract, but the trial court sustained its validity. The case goes to the Sandiganbayan and the mayor gets convicted for violation of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). He appeals alleging his defenses raised in the Sandiganbayan that he did not profit from the transaction, that the contract was advantageous to the municipality, and that he did not act with intent to gain. Rule.

Judgment affirmed. The contention of the mayor that he did not profit anything from the transaction, that the contract was advantageous to the municipality, and that he did not act with intent to gain, is not a defense. The crime involved is malum prohibitum.

In the case of People v. Sunico, an election registrar was prosecuted for having failed to include in the voter’s register the name of a certain voter. There is a provision in the election law which proscribes any person from preventing or disenfranchising a voter from casting his vote. In trial, the election registrar raised as good faith as a defense. The trial court convicted him saying that good faith is not a defense in violation of special laws. On appeal, it was held by he Supreme Court that disenfranchising a voter from casting his vote is not wrong because there is a provision of law declaring it as a crime, but because with or without a law, that act is wrong. In other words, it is malum in se. Consequently, good faith is a defense. Since the prosecution failed to prove that the accused acted with malice, he was acquitted.


Test to determine if violation of special law is malum prohibitum or malum in se

Analyze the violation: Is it wrong because there is a law prohibiting it or punishing it as such? If you remove the law, will the act still be wrong?

If the wording of the law punishing the crime uses the word “willfully”, then malice must be proven. Where malice is a factor, good faith is a defense.

In violation of special law, the act constituting the crime is a prohibited act. Therefore culpa is not a basis of liability, unless the special law punishes an omission.

When given a problem, take note if the crime is a violation of the Revised Penal Code or a special law.