ANTI-WIRE TAPPING LAW
(RA 4200)
Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dectaphone or walkie-talkie or tape recorder, or however otherwise described:
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.
LISTENING TO CONVERSATION
IN EXTENSION LINE OF TELEPHONE
IS NOT WIRE-TAPPING
An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA 4200 as the use thereof cannot be considered as tapping the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts. (66 SCRA 113,120)
A PERSON CALLING ANOTHER BY PHONE
MAY SAFELY PRESUME THAT THE OTHER
MAY HAVE AN EXTENSION LINE AND
RUNS THE RISK OF BEING HEARD BY A
3RD PARTY.
An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the main telephone but can be moved from place to place within a radius of a kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another.
MERE ACT OF LISTENING TO A
TELEPHONE CONVERSATION IN AN
EXTENSION LINE IS NOT PUNISHED BY
ANTI-WIRE TAPPING LAW
It can be readily seen that our lawmakers intended to discourage through punishment, persons such as government authorities or representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the enumerated devices in RA 4200 or others of similar nature. We are of the view that an extension telephone is not among such devices or arrangements.
RAPE AS CRIME AGAINST PERSONS
(R.A. 8353)
Rape, When And How Committed
"1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
"a) Through force, threat, or intimidation;
"b) When the offended party is deprived of reason or otherwise unconscious;
"c) By means of fraudulent machination or grave abuse of authority; and
"d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
"2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by 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.
WHEN INEXCUSABLE IMPRUDENCE ON
PART OF VICTIM AS TO IDENTITY OF
OFFENDER IS NOT RAPE
The evidence shows that this mistake was purely a subjective configuration of Zareen's mind — an assumption entirely contrived by her. Our impression is that Silvino had nothing to do with the formulation of this belief; he did nothing to mislead or deceive Zareen into thinking that he was Enrico. In fact, Silvino precisely, and confidently, told her, "Zareen, it's not Ricky, it's Jun. I love you." It is thus obvious that whatever mistake there was could only be attributable to Zareen — and her inexcusable imprudence — and to nobody else. Clearly, the fault was hers. She had the opportunity to ascertain the identity of the man but she preferred to remain passive and allow things to happen as they did. Silvino never used force on her and was even most possibly encouraged by the fact that when he pulled down her panties she never objected; when her legs were being parted she never objected; and, when he finally mounted her she never objected. Where then was force?
Third, Zareen was not deprived of reason or otherwise unconscious when the accused had intercourse with her. Her lame excuse was that she was half-asleep. However she admitted that in the early morning of 1 May 1994 she woke up to find someone removing her underwear. Thuswise it cannot be said that she was deprived of reason or unconscious. She knew, hence was conscious, when her panties were being pulled down; she knew, hence was conscious, when her legs were being parted to prepare for the sexual act; she knew, hence was conscious, when the man was pulling down his briefs to prepare himself likewise for the copulation; she knew, hence was conscious, when the man mounted her and lusted after her virtue. Her justification was that she never objected to the sexual act from the start because she thought that the man was her boyfriend with whom she was having sex almost every night for the past three (3) weeks as they were getting married and wanted already to have a baby. In other words, her urge could not wait for the more appropriate time. (People v. Salarza, Jr.)
NATURE OF INTIMIDATION IN RAPE CASES
Intimidation is addressed to the mind of the victim. It is subjective and its presence cannot be tested by any hard-and-fast rule, but must be viewed in the light of the victim’s perception and judgement at the time of the crime.
In the case at bar, at the time the crime was committed, the victim was 40 yrs. old, 5 months pregnant, unarmed and married to a person older than her by almost 20 yrs.. In contrast, appellant was in his 20’s, armed with a gun and purportedly in the company of several NPA members. The crime happened in the evening and in a place where help was impossible. The nearest neighbor of the victim is some 3 kms. from their hut. Considering all these circumstances, we hold that the victim was intimidated to submit to the lustful desire of the appellant. (Pp. V. Mostrales; GR 125937, Aug.28, 1998)
WHEN INTIMIDATION IS SUSTAINED
BY MORAL ASCENDANCY IN RAPE
Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victim's and is therefore subjective, it must be viewed in light of the victim's perception and judgment at the time of the commission of the crime. It is enough that the intimidation produced fear — fear that if the victim did not yield to the bestial demands of the accused, something far worse would happen to her at that moment. Where such intimidation existed and the victim was cowed into submission as a result thereof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of intimidation, then offering none at all does not mean consent to the assault so as to make the victim's submission to the sexual act voluntary.
In any event, in a rape committed by a father against his own daughter, as in this case, the former's moral ascendancy or influence over the latter substitutes for violence or intimidation. Likewise, it must not be forgotten that at her tender age of 14 years, EDEN could not be expected to act with the equanimity of disposition and with nerves of steel, or to act like a mature and experienced woman who would know what to do under the circumstances, or to have courage and intelligence to disregard the threat. Even in cases of rape of mature women, this Court recognized their different and unpredictable reactions. Some may shout; some may faint; and some may be shocked into insensibility; while others may openly welcome the intrusion. (People v. Agbayani; GR 122770, Jan. 16, ’98)
TEST TO DETERMINE WHETHER A WOMAN VOLUNTARILY SUBMITTED TO SEXUAL INTERCOURSE
Physical resistance is not the sole test to determine whether or not a woman involuntarily succumbed to the lust of an accused. Jurisprudence holds that even though a man lays no hand on a woman, yet if by array of physical forces he so overpowers her mind that she does not resist or she ceases resistance through fear of greater harm, the consummation of unlawful intercourse by the man is rape. (Pp. V. Mostrales; GR 125937, Aug.28, 1998)
DATE OF COMMISSION OF RAPE NOT ESSENTIAL ELEMENT OF SAID CRIME
It is settled that even a variance of a few months between the time set out in the indictment and that established by the evidence during the trial has been held not to constitute an error so serious as to warrant reversal of a conviction solely on that score. The failure of the complainant to state the exact date and time of the commission of the rape is a minor matter
(Pp. V. Bernaldez; GR 109780,Aug. 17, 1998)
EXAMPLE OF VIRTUAL CONFESSION OF FACT AND NOT IN LAW IN CASES OF RAPE
It is conceded that after the rape, Accused sent complainant two letters in which he implored her forgiveness and offered to leave his wife so that he could be with her. In fine, appellant sealed his own fate by admitting his crime under a seal of virtual confession in fact, if not in law. (Pp. V. Prades; GR 127569, July 30, 1998)
CHILD BORN BY REASON OF RAPE
MUST BE ACKNOWLEDGED BY OFFENDER
UPON ORDERS OF THE COURT
Furthermore, since ANALIZA begot a child by reason of the rape, DANTE must acknowledge and support the offspring pursuant to Article 345 of the Revised Penal Code in relation to Article 201 of the Family Code. (People v. Alfeche)
DWELLING AS AGGRAVATING
CIRCUMSTANCE IN RAPE CASES
It is clear, however, that the aggravating circumstance of dwelling is attendant in the commission of the crime. Article 14(5) of the Revised Penal Code provides that this circumstance aggravates a felony where the crime is committed in the dwelling of the offended party, if the latter has not given provocation. In the instant case, the aforesaid circumstance of dwelling was definitely present in the commission of the crime of rape with the use of a deadly weapon. (Pp. V. Prades; GR 127569, July 30, 1998)
INDEMNITY IN CERTAIN CASES OF RAPE
The recent judicial prescription is that the indemnification for the victim shall be in the increased amount of P75,000.00 if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the applicable amendatory laws. (Pp. V. Prades; GR127569, July 30, 1998)
MORAL DAMAGES NEED NOT BE ALLEGED
AND PROVED IN CASES OF RAPE
Indeed, the conventional requirement of allegata et probata in civil procedure and for essentially civil cases should be dispensed with in criminal prosecutions for rape with the civil aspect included therein, since no appropriate pleadings are file wherein such allegations can be made. (Pp. V. Prades; GR 127569, July 30, 1998)
MEANING OF DEADLY WEAPON
IN CASES OF RAPE
A “deadly weapon” is any weapon or instrument made and designed for offensive or defensive purposes, or for the destruction of life or thee infliction of injury; or one which, from the manner used, is calculated or likely to produce death or serious bodily harm. In our jurisdiction, it has been held that a knife is a deadly weapon. (Pp. V. Alfeche; GR 124213, Aug. 17, 1998)
FORCE AND INTIMIDATION NOT
NEEDED IN RAPE OF RETARDATE
Although the information alleged “force, threats, and intimidation”, it nevertheless also explicitly stated that Tessie is a “mentally retarded person.” We have held in a long line of cases that if the mental age of a woman above 12 years is that of a child below 12 years, even if she voluntarily submitted to the bestial desires of the accused, or even if the circumstances of force or intimidation or of the victim being deprived of reason or otherwise unconscious are absent, the accused would still be liable for rape under the 3rd circumstance of Art. 335. The rationale therefor is that if sexual intercourse with a victim under 12 years of age is rape, then it should follow that carnal knowledge of a woman whose mental age is that of a child below 12 years would constitute rape. (People v. Hector Estares; 12/5/97)
USE OF FORCE OR INTIMIDATION NOT
AN ELEMENT OF STATUTORY RAPE
In any event, the use of force or intimidation is not an element of statutory rape. The offense is established upon proof that the accused sexually violated the offended party, who was below 12 years of age at the time of the sexual assault. In other words, it is not relevant to this case whether appellant slapped or boxed the victim, or whether he used a single-bladed or a double-edged knife. (People v. Oliva; 12/5/97)
RAPE CAN BE COMMITTED IN
MANY DIFFERENT PLACES
It has been emphasized that rape can be committed in many different places, including places which to many would appear to be unlikely and high-risk venues for sexual advances. Thus, rape has been committed even in places where people congregate, in parks, along the roadside, within school premises, inside a house where there are other occupants, and even in the same room where other members of the family are also sleeping. (People v. Gementiza; 1/29/98)
WHEN SWEETHEART DEFENSE
IS TENABLE IN RAPE
The “sweetheart” defense put up by the accused merits serious consideration. While the theory does not often gain favor with the court, such is not always the case if the hard fact is that the accused and the supposed victim are in fact intimately related except that, as is true in most cases, the relationship is either illicit, or the parents are against it. In such instances, it is not improbable that when the relationship is uncovered, the victim’s parents would take the risk of instituting a criminal action rather than admit to the indiscretion of their daughter. And this, as the records reveal, is what happened in this case. (People vs Rico Jamlan Salem, October 16/97)
A MEDICAL EXAMINATION OF VICTIM
IS NOT ELEMENT OF RAPE
A medical examination is not an indispensable element in a prosecution for rape. The accused may be convicted on the sole basis of complainant’s testimony, if credible, and the findings of the medico-legal officer do not disprove the commission of rape. People v Jenelito Escober Y Resuento, Nov 6/97)
HEINOUSNESS OF RAPE OF
ONE’S DESCENDANT
In the case before us, the accused raped his own flesh and blood at such a tender age of eleven. He thus violated not only he purity and her trust but also the mores of his society which he has scornfully defined. By inflicting his animal greed on her in a disgusting coercion of incestuous lust, he forfeits all respect as human being and is justly spurned by all, not least of all, by the fruit of his own loins whose progeny he has forever stained with his shameful and shameless lechery. People v jenelito Escober Y Resuento, Nov 6/97)
MERE DISCIPLINARY CHASTISEMENT
IS NOT ENOUGH TO DOUBT CREDIBILITY
OF RAPE VICTIM WHO IS A DESCENDANT
Mere disciplinary chastisement is not strong enough to make daughters in a Filipino family invent a charge that would only bring shame and humiliation upon them and their own family and make them the object of gossip among their classmates and friends. It is unbelievable that Jacqueline would fabricate a serious criminal charge just to get even with her father and to emphasize with her sister. The sisters would not contrive stories of defloration and charge their own father with rape unless these stories are true. For that matter, no young Filipina of decent repute would falsely and publicly admit that she had been ravished and abused considering the social stigma thereof. People v Tabugoca, GR No. 125334)
SODOMY IS NOT THE SAME AS IGNOMINY NOR CAN IT BE CONSIDERED AS IGNOMINY.
"Ignominy is a circumstance pertaining to the moral order, which adds disgrace and obliloquy to the material injury caused by the crime." Thus, for ignominy to be appreciated as an aggravating circumstance in the instant case, it must be shown that the sexual assault on Francis Bart was done by accused-appellant to put the former to shame before killing him. This is clearly not the case here for accused-appellant's intention was shown to be the commission of sexual abuse on the victim as an act of revenge for his similar experience as a child.
WHEN THE INFORMATIONS ON RAPE CASES FAILED TO ALLEGE ACTUAL RELATIONSHIP ETC. HENCE DEATH PENALTY CANNOT BE IMPOSED
In this case, the information's in Criminal Case Nos. 8899-8900 alleged that accused-appellant, "who is the stepfather of the private offended party" by "force, violence and intimidation" succeeded in having carnal knowledge of the latter when she was then 14 and 13 years old, respectively. On the otherhand, the information in Criminal Case Nos. 8945-8946 alleged that accused-appellant, "who…. is the stepfather of victim Jenny Macaro" succeeded in having carnal knowledge of the latter, who was a girl below 12 years old. As already noted, contrary to these allegations, accused-appellant is not really the stepfather of complainants Lenny and Jenny because accused-appellant and complainants' mother were not legally married but were merely living in common-law relation. In fact, Lenny and Jenny interchangeably referred to accused-appellant as their stepfather, "kabit," "live-in partner ng Mama ko," "tiyo," and "tiyuhin." Complainants' sister-in-law, Rosalie Macaro, also testified that her "mother-in-law is not legally married to accused-appellant." Accused-appellant likewise said on direct and cross-examination that he was not legally married to the mother of the complainants, and he referred to her as his live-in partner. This was confirmed by Emma Macaro, mother of the complainants. Although the rape of a person under eighteen (18) years of age by the common-law spouse of the victim's mother is punishable by death, this penalty cannot be imposed on accused-appellant in these cases because this relationship was not what was alleged in the information's. What was alleged was that he is the stepfather of the complainants.
INFORMATION IN RAPE CASES WITH USE OF DEADLY WEAPON MUST BE ALLEGED OTHERWISE DEATH PENALTY, CANNOT BE IMPOSED
Neither can accused-appellant be meted the death penalty in Criminal Case No. 8900 where he committed the rape after threatening the victim, Lenny Macaro, with a knife. Under Art. 335 of the Revised Penal Code, simple rape is punishable by "reclusion perpetua." When the rape is committed "with the use of a deadly weapon," i.e., when a deadly weapon is used to make the victim submit to the will of the offender, the penalty is ”reclusion perpetua to death." This circumstance must however be alleged in the information because it is also in the nature of a qualifying circumstance which increases the range of the penalty to include death. In Criminal Case No. 8900, while complainant Lenny testified that accused-appellant raped her after threatening her with a knife, the "use of a deadly weapon" in the commission of the crime was not alleged in the information. Therefore, even if the same was prove, it cannot be appreciated as a qualifying circumstance. The same can only be treated as generic aggravating circumstance which, in this case, cannot affect the penalty to be impose, i.e., reclusion perpetua. Accordingly, the accused-appellant should be sentenced to the penalty of reclusion perpetua. Accordingly, the accused-appellant should be sentenced to the penalty of reclusion perpetua for each of the four counts of rape. (PP -vs- FELIXBERTO FRAGA Y BAYLON, G.R. Nos. 134130-33, April 12, 2000)
EXAMINATIONS OF ALL SPECIMENS IN DRUG CASES NOT NECESSARY
We are not persuaded by the claim of accused-appellants that in order for them to be convicted of selling 2,800 grams of marijuana, the whole specimen must be tested considering that Republic Act 7659 imposes a penalty dependent on the amount or the quantity of drugs seized or taken. This Court has ruled that a sample from one of the packages is logically presumed to be representative of the entire contents of the package unless proven otherwise by accused-appellant. (PP -vs- DIOLO BARITA Y SACPA, ET AL., G.R. No. 123541, Feb. 8, 2000)
MEDICAL EXAMINATION NOT REQUIRED IN RAPE CASES
This Court has also ruled that a medical examination is not indispensable to the prosecution of rape as long as the evidence on hand convinces the court that a conviction of rape is proper.
WHEN CARNAL KNOWLEDGE IS CONSUMATED
It is worth mentioning that in rape cases, the prosecution is not required to establish penile penetration because even the slightest touching of the female genitalia, or mere introduction of the male organ into the labia of the pudendum constitutes carnal knowledge. (PP -vs- FERNANDO CALANG MACOSTA, alias "DODONG" G.R. No. 126954, Dec. 14, 1999)
THE CHARGE OF RAPE DO NOT INCLUDE SIMPLE SEDUCTION. HENCE, IF ONE IS CHARGE WITH RAPE AND IS NT PROVEN, ACCUSED CANNOT BE HELD GUILTY OF SIMPLE SEDUCTION.
Even as the prosecution failed to proved the use of force, violence and intimidation by the accused-appellant, we cannot convict the accused-appellant of the crime of simple seduction without offense to the constitutional rights of the accused-appellant to due process and to be informed the accusation against him. The charge of rape does not include simple seduction. (PP -vs LOLITO MORENO Y LANCION alias "LOLOY" G.R. No. 115191, Dec. 21, 1999)
WHAT ARE THE ELEMENTS OF RAPE?
The elements of rape are: (1) that the offender had carnal knowledge of a woman; (2) that such act is accomplished by using force or intimidation; or when the woman is deprived of reason or otherwise unconscious; or when the woman is under twelve years of age or is demented.
MEANING OF TAKING ADVANTAGE OF SUPERIOR STRENGTH IN RAPE CASES
Taking advantage of superior strength means to purposely use excessive force out of proportion to the means available to the person attacked. It is abuse of superior numbers or employment of means to weaken the defense. This circumstance is always considered whenever there is notorious inequality of forces between the victim and the aggressor, assuming a situation of superiority notoriously advantageous for the aggressor deliberately chosen by him in the commission of the crime. To properly appreciate it, it is necessary to evaluate not only the physical condition of the parties and the arms or objects employed but the incidents in the total development of the case as well.
Moreover, like the crime of parricide by a husband on his wife, abuse of superior strength Is inherent in rape. It is generally accepted that under normal circumstances a man who commits rape on a woman is physically stronger than the latter. (PP -vs- EDGARDO DE LEON Y SANTOS, G.R. No. 128436, Dec. 10, 1999)
WHEN TESTIMONY OF VICTIM IS OVERLY GENERALIZED IN CRIME OF RAPE
Each and every charge of rape is a separate and distinct crime so that each of the sixteen other rapes charged should be proven beyond reasonable doubt. The victim's testimony was overly generalized and lacked specific details on how each of the alleged sixteen rapes was committed. Her bare statement that she was raped so many times on certain weeks is clearly inadequate and grossly insufficient to establish the guilt of accused-appellant insofar as the other sixteen rapes charged are concerned. In People vs. Garcia, this Court succinctly observed that:
xxx the indefinite testimonial evidence that complainant was raped every week is decidedly inadequate and grossly insufficient to establish the guilt of appellant therefor with the required quantum of evidence. So much of such indefinite imputations of rape, which are uncorroborated by any other evidence fall within this category. (PP -vs- EDMUNDO DE LEON Y JESUS, G.R. No 130985, Dec. 3, 1999
CONCURRENCE OF MINORITY OF VICTIM AND RELATIONSHIPS IN RAPE MUST BE ALLEGED SO THAT DEATH PENALTY MAYBE IMPOSED
The concurrence of the minority of the victim and her relationship to the offender should be specifically alleged in the information conformably with the accused's right to be informed of the accusation against him. In this case, although the minority of Poblica and her relationship with appellant were established by the prosecution beyond doubt, the death penalty cannot be imposed because these qualifying circumstances were not specified in the information. It would be a denial of the right of the appellant to be informed of the charges against him and consequently, a denial of due process if he is charged with simple rape and convicted of its qualified form punishable by death although the attendant circumstances qualifying the offense and resulting in capital punishment were not set forth in the indictment on which he was arraigned. (PP -vs- CHARITO ISUG MAGBANUA, G.R. No. 128888, Dec. 3, 1999)
QUALIFYING CIRCUMSTANCE IN RAPE CASES MUST BE ALLEGED IN ORDER THAT DEATH PENALTY MAYBE IMPOSED
This Court has ruled in a long line of cases that the circumstance under the amendatory provisions of Section 11 of Republic Act 7659, the attendance of any of which mandates the single indivisible penalty of death are in the nature of qualifying circumstances which cannot be proved as such unless alleged with particularity in the information unlike ordinary aggravating circumstances which affect only the period of the penalty and which may be proven even if not alleged in the information. It would be a denial of the right of the accused to be informed of the charge against him and consequently, a denial of due process, if he is charged with simple rape and will be convicted of its qualified form punishable by death although the attendant circumstance qualifying the offense and resulting in capital punishment was not alleged in the indictment under which he was arraigned. Procedurally, then, while the minority of Renelyn and her relationship to the accused-appellant were established during the trial, the accused-appellant can only be convicted of simple rape because he cannot be punished for a graver offense that that with which he was charged. Accordingly, the imposable penalty is reclusion perpetua. (PP -vs- EDWIN R. DECENA, G.R. No. 131843, May 31, 2000)
IMPORTANT CONSIDERATION IN RAPE
Neither is the absence of spermatozoa in Delia's genitalia fatal to the prosecution's case. The presence or absence of spermatozoa is immaterial in a prosecution for rape. The important consideration in rape cases is not the emission of semen but the unlawful penetration of the female genitalia by the male organ. (PP -vs- RODOLFO BATO alias 'RUDY BATO," G.R. No. 134939, Feb. 16, 2000)
WHEN RAPE IS NOT COMMITTED AND SWEETHEART THEORY GIVEN CREDENCE
First. Private complainant never objected or showed any resistance when accused-appellant allegedly dragged her forcibly across the pedestrian overpass and brought her to an undisclosed place at Quiapo. Although he was holding her wrist tightly, she could have easily extricated herself form him on several occasions: (a) while they were inside the bus bound for Quiapo; (b) when they alighted form the bus and roamed the sidestreets of Quiapo; and especially so, (c) when they entered the hotel and finally the room where the alleged rape took place. Accused-appellant was unarmed and his tight grip could not have prevented private complainant from at least shouting for help. Her demeanor was simply inconsistent with that of the ordinary Filipina whose instinct dictates that the summon every ounce of her strength and courage to thwart any attempt to besmirch her honor and blemish her purity. True, women react differently in similar situations, but it is too unnatural for an intended rape victim, as in this case, not to make even feeble attempt to free herself despite a myriad of opportunities to do so.
Second. The deportment of the private complainant after the alleged rape accentuates the dubiety of her testimony. After the alleged rape, she did not leave immediately but even refused to be separated from her supposed defiler despite the prodding of the latter. Worse, she went with him to the house of his sister and there they slept together. Indeed this attitude runs counter to logic and common sense. Surely private complainant would not risk a second molestation and undergo a reprise of the harrowing experience. To compound matters, it took her four (4) days to inform her parents about this agonizing episode in her life. Truly, her insouciance is very disturbing, to say the least.
Finally. The prosecution failed to substantiated any of its allegations. Instead, it opted to stand or fall on the uncorroborated and implausible testimony of the private complainant. It is elementary in our rules of evidence that a party must prove the affirmative of his allegations. (PP -vs- TOMAS CLAUDIO Y MENIJIE, G.R. No. 133694, Feb. 29, 2000)
WHEN TWO AFFIDAVITS ARE EXECUTED BY THE COMPLAINANT IN A RAPE CASE, ONE FOR ATTEMPTED RAPE AND ANOTHER FOR CONSUMMATED RAPE AND ARE INCONSISTENT WITH EACH OTHER, CONVICTION CANNOT BE HAD
It is true that affidavits are generally subordinated in importance to open court declarations. The general rule is that variance between an extrajudicial sworn statement of the complainant and here testimony in court does not impair the complainant's credibility when the said variance does not alter the essential fact that the complainant was raped. Variance as to the time and date of the rape, the number of times it was committed or the garments which the accused or the complainant wore at the time of the incident do not generally diminish the complainant's credibility. However, the serious discrepancy between the two sworn statements executed a day apart by the complainant in this case, bearing on a material fact, is very substantial because it pertains to the essential nature of the offense, i.e., whether the offense was consummated or merely attempted. In People vs. Ablaneda, wherein a housewife executed a sworn statement for attempted rape and later changed the accusation to consummated rape without a rational explanation, this Court held that the general rule does not apply when the complainant completely changed the nature of her accusation. The contradiction does not concern a trivial or inconsequential detail but involves the essential fact of the consummation of the rape. (PP -vs- ALBERT ERNEST WILSON, G.R. No. 135915, Dec. 21, 1999)
NATURE OF INCESTUOUS RAPE
Incestuous rape of a daughter by a father has heretofore been bitterly and vehemently denounced by this Court as more than just a shameful and shameless crime. Rape in itself is a nauseating crime that deserves the condemnation of all decent persons who recognize that a woman's cherished chastity is hers alone to surrender at her own free will, and whoever violates this norm descends to the level of the odious beast. But the act becomes doubly repulsive where the outrage is perpetrated on one's own flesh and blood for the culprit is further reduced to a level lower than the lowly animal and forfeits all respect otherwise due him as a human. (PP -vs- MELANDRO NICOLAS Y FAVELLA, G.R. Nos. 125125-27, Feb. 4, 2000)
LOVE RELATIONSHIP DO NOT RULE OUT RAPE
Even assuming ex gratia argumenti that accused-appellant and private complainant were indeed sweethearts as he claims, this fact alone will not extricate him from his predicament. The mere assertion of a "love relationship" would not necessarily rule out the use of force to consummate the crime. It must be stressed that in rape case, the gravamen of the offense is sexual intercourse with a woman against her will or without her consent. Thus, granting arguendo that the accused and the victim were really lovers this Court has reiterated time and again that "A sweetheart cannot be forced to have sex against her will. Definitely, a man cannot demand sexual gratification from a fiancée, worse, employ violence upon her on the pretext of love. Love is not a license for lust." (PP -vs- DANTE CEPEDA Y SAPOTALO, G.R. No. 124832, Feb. 1, 2000)
PLACES NOTORIOUS FOR HOLD-UPS DONE AT NIGHT - IS CONSIDERED AGGRAVATING AS NIGHT TIME
Considering that the place where the crime took place was "notorious for hold-ups done at night, precisely to maximize the advantage of darkness," we cannot but agree with the trial court that nighttime was purposely sought by accused-appellants "for the more successful consummation may be perpetrated unmolested or so that they could escape more thoroughly." (PP -vs- FELIMON ALIPAYO Y TEJADA, ET AL., G.R. No. 122979, Feb. 2, 2000)
RAPE MAY BE COMMITTED IN ALMOST ALL PLACES
Appellant considers it quite improbable for rape to be committed at a place within a well-lighted and fairly well-populated neighborhood. This argument does not hold water. Rape can be commi9tted even in places where people congregate, in parks, along the roadside, within school premises, inside a house where there are other occupants, and even in the same room in the presence of other members of the family. An overpowering wicked urge has been shown not to be deterred by circumstances of time or place.
DEATH PENALTY CANNOT BE IMPOSED WHEN INFORMATION FAILED TO INDICATE THE AGE OF THE VICTIM AND HER CORRECT RELATIONSHIP WITH THE ACCUSED
The penalty of death cannot be properly imposed since the indictment has failed to indicate the age of the victim and her correct relationship with appellant, concurrent qualifying circumstances, essential in the imposition of that penalty. Furthermore, appellant is not a "parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim." The latter's grandmother, Remedios Lustre, herself acknowledges that appellant has just for a time been her common-law husband. (PP -vs- FEDERICO LUSTRE Y ENCINAS, G.R. No. 134562, April 6, 2000)
COMPENSATORY DAMAGES IN CASES OF QUALIFIED RAPE
With regard to the award of compensatory damages, we have rule in People vs. Victor, which was later reaffirmed in People vs. Prades, that "if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law, the indemnity of the victim shall be in the increased amount of not less than P75,000.00." (PP -vs- ANTONIO MAGAT Y LONDONIO, G.R. No. 130026, May 31, 2000)
NATURE OF INTIMIDATION IN CASE OF RAPE
In People vs. Luzorata, the Court held that intimidation was addressed to the mind of the victim and therefore subjective, and its presence could not be tested by any hard-and-fast rule but must be viewed in light of the victim's perception and judgment at the time of the crime. Thus, when a rape victim becomes paralyzed with fear, she cannot be expected to think and act coherently, her failure to immediately take advantage of the early opportunity to escape does not automatically vitiate the credibility of her account. "Complainant cannot be faulted for not taking any action inasmuch as different people react differently to a given type of situation, there being no standard form of human behavioral response when one is confronted with a strange, startling or frightful experience." (PP -vs- VICENTE BALORA Y DELANTAR, G.R. No. 124976, May 31, 2000)
EACH AND EVERY RAPE ALLEGED MUST BE PROVEN
Each and every charge of rape is a separate and distinct crime so that each of the sixteen other rapes charged should be proven beyond reasonable doubt. The victim's testimony was overly generalized and lacked specific details on how each of the alleged sixteen rapes was committed. Her bare statement that she was raped so many times on certain weeks is clearly inadequate and grossly insufficient to establish the guilt of accused-appellant insofar as the other sixteen rapes charged are concerned. In People vs. Garcia this Court succinctly observed that:
xxx the indefinite testimonial evidence that complainant was raped every week is decidedly inadequate and grossly insufficient to establish the guilt of appellant therefor with the required quantum of evidence. So much of such indefinite imputations of rape, which are uncorroborated by any other evidence fall within this category. (PP -vs- EDMUNDO DE LEON Y JESUS, G.R. No. 130985, Dec. 3, 1999)
AT THE START THERE MUST BE RAPE, BUT SUBSEQUENT EVENTS MAY BECOME A FACTOR THAT THE REALTIONSHIP, ALTHOUGH INCESTOUS, CONVICTION FOR RAPE CANNOT BE HAD
"Complainant could have been raped the first time accused-appelant had carnal knowledge of her, when she was 13 years old. This however, is not a prosecution for such rape. When she complained of having been raped in this case, she was already 30 or 31 years old, 17 or 18 years after she had been allegedly ravished for the first time by her father, the herein accused-appelant. During the said period of 17 or 18 years, neither complainant nor her parents denounced accused-appellant despite the fact that he continued to have sexual relation allegedly without the consent of complainant. During this period, four children were born to complainant and accused-appellant. Complainant and accused-appellant practically cohabited, choosing the baptismal sponsors for their children, and even inviting friends and relatives to the feasts. The relationship was known to neighbors. Thus, their relationship might be incestuous, but it was not by reason of force or intimidation. For their part, while in the beginning complainant's mother and sisters may have disapproved of the relationship, in the end, it would appear that subsequently they just turned a blind eye on the whole affair. Given these facts, we cannot say that on September 19, 1995 when accused-appellant had sexual intercourse with complainant, he committed rape. (People v. Villalobos, G.R. 134294, 05/21/2001)
THE DELAY AND INITIAL RELUCTANCE OF A RAPE VICTIM TO MAKE PUBLIC THE ASSAULT ON HER VIRTUE IS NEITHER UNKNOWN OR UNCOMMON. AS HELD IN LTHE CASE OF PEOPLE VS. MALAGAR
"Vacillation in the filing of complaint by rape victim is not an uncommon phenomenon. This crime is normally accompanied by the rapist's threat on the victim's life, and the fear can last for quit a while. There is also the natural reluctance of a woman to admit her sullied chastity, accepting thereby all the stigma it leaves, and to then expose herself to the morbid curiosity of the public whom she may likely perceived rightly or wrongly, to be more interested in the prurient details of the ravishment than in her vindication and the punishment of the rapist. In People vs. Coloma (222 SCRA 255) we have even considered an 8-year delay in reporting the long history of rape by the victim's father as understandable and so not enough to render incredible the complaint of a 13-year old daughter. (PP -vs- CONRADO CABANA @ RANDY, G.R. No. 127124, May 9, 2000)
WHEN THERE IS A SEPARATE CRIME OF RAPE AND ROBBERY IS COMMITTED
As related by Private Complainant Amy de Guzman, accused-appellant suddenly jumped over the counter, strangled her, poked a knife at the left side of her neck, pulled her towards the kitchen where he forced her to undress, and gained carnal knowledge of her against her will and consent. Thereafter, he ordered her to proceed upstairs to get some clothes, so he could bring her out, saying he was not leaving her alive. At this point, appellant conceived the idea of robbery because, before they could reach the upper floor, he suddenly pulled Amy down and started mauling her until she lost consciousness; then he freely ransacked the place. Leaving Amy for dead after repeatedly banging her head, first on the wall, then on the toilet bowl, he took her bracelet, ring and wristwatch. He then proceeded upstairs where he took as well the jewelry box containing other valuables belonging to his victim's employer.
Under these circumstance, appellant cannot be convicted of the special complex crime of robbery with rape. However, since it was clearly proven beyond reasonable doubt that he raped Amy de Guzman and thereafter robbed her and Ana Marinay of valuables totaling P16,000.00, he committed two separate offenses -rape with the use of deadly weapon and simple robbery with force and intimidation against persons.
CASES WHEREIN THE SCANDAL RESULTING FROM RELATIONS OF COMPLAINANT AND ACCUSED IMPELS THE COMPLAINANT OR HER RELATIVES TO FILE COMPLAINT OF RAPE AGAINST THE ACCUSED BUT DID NOT PROSPER
Thus in People vs. Lamarroza, a case involving an eighteen-year old woman "intellectually weak and gullible," the Court found that the alleged victim's family was "obviously scandalized and embarrassed by (the victim) Elena's 'unexplained' pregnancy," prompting them to cry "rape." The Court acquitted the accused.
In People vs. Domogoy, private complainant was seen having sexual intercourse in the school premises with appellant therein by the latter's co-accused. "It is thus not farfetched," the Court held, "for complainant to have instituted the complainant for rape against the three to avoid being bruited around as a woman of loose morals."
Similarly, in People vs. Castillon, the Court considered the complainant's agreement to engage in pre-marital sexual intercourse "already a disgrace to her family, what more of her acquiescence to have sexual intercourse on a stage near the vicinity where the JS program was being held and prying eyes and ears abound."
In People vs. Bawar, the complainant was caught in flagrante by her sister-in-law engaging in sexual intercourse with the accused, a neighbor. The Court gathered from the complainant's testimony that "she filed the case because she thought it would be better to cry 'rape' and bring suit to salvage and redeem her honor, rather than have reputation sullied in the community by being bruited around and stigmatized as an adulterous woman."
People vs. Godoy also involved an adulterous relationship between the accused, who was married, and his seventeen-year old student. In acquitting the accused, the Court held:
The Court takes judicial cognizance of the fact that in rural areas in the Philippines, young ladies are strictly required to act with circumspection and prudence. Great caution is observed so that their reputations shall remain untainted. Any breath of scandal which brings dishonor to their character humiliates their entire families. It could precisely be that complainant's mother wanted to save face in the community where everybody knows everyone else, and in an effort to conceal her daughter's indiscretion and escape the wagging tongues of their small rural community, she had to weave the scenario of this rape drama.
Here, the elopement of a thirteen-year old with her nineteen-year old second cousin no doubt caused quite a tempest in the otherwise serene community of Vintar, Ilocos Norte. That complainant's parents were against their relationship, as evidenced in one of her letters, makes it more likely that the charges of rape were instigated to salvage the complainant's and her family's honor.
While the "sweetheart theory" does not often gain favor with this Court, such is not always the case if the hard fact is that the accused and the supposed victim are, in truth, intimately related except that, as is usual in most cases, either the relationship is illicit or the victim's parents are against it. It is not improbable that in some instances, when the relationship is uncovered, the alleged victim or her parents for that matter would take the risk of instituting a criminal action in the hope that the court would take the cudgels for them than for the woman to admit her own acts of indiscretion. (PP -vs- ERWIN AGRESOR, G.R. Nos. 119837-39, Dec. 9, 1999)
JUDGES SHOULD NOT BE OVERLY PROTECTIVE OF EVERY WOMAN IN RAPE CASES. THEY MUST LOOK AT THE CHARGE WITH EXTREME CAUTION AND CIRCUSMPECTION
Rape is a very emotional word, and the natural human reactions to it are categorical: sympathy for the victim and admiration for her in publicly seeking retribution for her outrageous misfortune, and condemnation of the rapist. However, being interpreters of the law and dispensers of justice, judges must look at a rape charge without those proclivities and deal and with it with extreme caution and circumspection. Judges must free themselves of the natural tendency to be overprotective of every woman decrying her having been sexually abused and demanding punishment for the abuser. While they ought to be cognizant of the anguish and humiliation the rape victim goes through as she demands justice, judges should equally bear in mind that their responsibility is to render justice based on the law. (PP -vs- EDWIN LADRILLO, G.R. No. 124342, Dec. 8, 1999)
SEXUAL HARASSMENT LAW
(RA 7877)
WORK, EDUCATION OR TRAINING-RELATED
SEXUAL HARASSMENT DEFINED.
Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act.
WHEN SEXUAL HARASSMENT IS COMMITTED:
Work, Education or Training-related Sexual Harassment Defined
Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act.
In work-related or employment environment:
(1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee;
(2) The above acts would impair the employee's rights or privileges under existing labor laws; or
(3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.
In an education or training environment:
(1) Against one who is under the care, custody or supervision of the offender;
(2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender;
(3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships or the payment of a stipend, allowance or other benefits, privileges, or considerations; or
(4) When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.
Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act.
CHILD AND YOUTH WELFARE CODE
( PD 603 with Amendments)
RELIGIOUS INSTRUCTION
The religious education of children in all public and private schools is a legitimate concern of the Church to which the students belong. All churches may offer religious instruction in public and private elementary and secondary schools, subject to the requirements of the Constitution and existing laws.
TERMINATION OF RIGHTS OF PARENTS
When a child shall have been committed to the Department of Social Welfare or any duly licensed child placement agency or individual pursuant to an order of the court, his parents or guardian shall thereafter exercise no authority over him except upon such conditions as the court may impose.
VIOLATION OF PD 603 BY A CHILD
Prohibited Acts:
It shall be unlawful for any child to leave the person or institution to which he has been judicially or voluntarily committed or the person under whose custody he has been placed in accordance with the next preceding article, or for any person to induce him to leave such person or institution, except in case of grave physical or moral danger, actual or imminent, to the child.
Any violation of this article shall be punishable by an imprisonment of not more than one year or by a fine of not more than two thousand pesos, or both such fine and imprisonment at the discretion of the court: Provided, That if the violation is committed by a foreigner, he shall also be subject to deportation.
CARE OF YOUTHFUL OFFENDER
HELD FOR EXAMINATION OR TRIAL
A youthful offender held for physical and mental examination or trial or pending appeal, if unable to furnish bail, shall from the time of his arrest be committed to the care of the Department of Social Welfare or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required: Provided, That in the absence of any such center or agency within a reasonable distance from the venue of the trial, the provincial, city and municipal jail shall provide quarters for youthful offenders separate from other detainees. The court may, in its discretion, upon recommendation of the Department of Social Welfare or other agency or agencies authorized by the Court, release a youthful offender on recognizance, to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required.
SUSPENSION OF SENTENCE AND COMMITMENT
OF YOUTHFUL OFFENDER
If after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him the court shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court shall suspend all further proceedings and shall commit such minor to the custody or care of the Department of Social Welfare, or to any training institution operated by the government, or duly licensed agencies or any other responsible person, until he shall have reached twenty-one years of age or, for a shorter period as the court may deem proper, after considering the reports and recommendations of the Department of Social Welfare or the agency or responsible individual under whose care he has been committed.
The youthful offender shall be subject to visitation and supervision by a representative of the Department of Social Welfare or any duly licensed agency or such other officer as the Court may designate subject to such conditions as it may prescribe.
PD 1210
ARTICLE 191 OF PD 603 IS HEREBY
AMENDED TO READ AS FOLLOWS
"Article 101. Care of Youthful Offender Held for Examination or Trial. - A youthful offender held for physical and mental examination or trial or pending appeal, if unable to furnish bail, shall from the time of his arrest be committed to the care of the Dept. of Social Services and Development or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required: Provided, that in the absence of any such center or agency within a reasonable distance from the venue of the trial, the provincial, city and municipal jail shall provide quarters for youthful offenders separate from other detainees. The court may, in its discretion upon recommendation of the Department of Social Services & Development or other agency or agencies authorized by the Court, release a youthful offender on recognizance, to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required. However, in the case of those whose cases fall under the exclusive jurisdiction of the Military Tribunals, they may be committed at any military detention or rehabilitation center.
PD 1210
ARTICLE 192 OF PD 603 AS AMENDED IS FURTHER
AMENDED TO READ AS FOLLOWS:
"Art. 192. Suspension of sentence and Commitment of Youthful Offender. - If after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him, the court, shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court upon application of the youthful offender and if it finds that the best interest of the public as well as that of the offender will be served thereby, may suspend all further proceedings and commit such minor to the custody or care of the Department of Social Services and Development or to any training institution operated by the government or any other responsible person until he shall have reached twenty one years of age, or for a shorter period as the court may deem proper, after considering the reports and recommendations of the Department of Social Services and Development or the government training institution or responsible person under whose care he has been committed.
Upon receipt of the application of the youthful offender for suspension of his sentence, the court may require the Department of Social Services and Development to prepare and submit to the court a social case study report over the offender and his family.
The Youthful offender shall be subject to visitation and supervision by a representative of the Department of Social Services & Development or government training institution as the court may designate subject to such conditions as it may prescribe.
The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension of sentence under its provisions or to one who is convicted of an offense punishable by death or life imprisonment or to one who is convicted for an offense by the Military Tribunals.
PD 1179
APPEAL
The order of the court denying an application for suspension of sentence under the provisions of Article 192 above shall not be appealable."
RETURN OF THE YOUTHFUL
OFFENDER TO THE COURT
Whenever the youthful offender has been found incorrigible or has wilfully failed to comply with the conditions of his rehabilitation programs, or should his continued stay in the training institution be inadvisable, he shall be returned to the committing court for the pronouncement of judgment.
When the youthful offender has reached the age of twenty-one while in commitment, the court shall determine whether to dismiss the case in accordance with the extent preceding article or to pronounce the judgment conviction. In the latter case, the convicted offender may apply for probation under the provisions of Presidential Decree Numbered Nine Hundred and Sixty-Eight.
In any case covered by this article, the youthful offender shall be credited in the service of his sentence with the full time spent in actual commitment and detention effected under the provisions of this Chapter."
RA 7610
CHILD ABUSE LAW
CHILD PROSTITUTION AND
OTHER SEXUAL ABUSE
Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means;
(3) Taking advantage of influence or relationship to procure a child as prostitute;
(4) Threatening or using violence towards a child to engage him as a prostitute; or
(5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution.
(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall reclusion temporal in its medium period; and
(c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.
ATTEMPT TO COMMIT
CHILD PROSTITUTION
There is an attempt to commit child prostitution under Section 5, paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse.
There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments. A penalty lower by two (2) degrees than that prescribed for the consummated felony under Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution under this Act, or, in the proper case, under the Revised Penal Code.
CHILD TRAFFICKING
Any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter, shall suffer the penalty of reclusion temporal to reclusion perpetua. The penalty shall be imposed in its maximum period when the victim under twelve (12) years of age.
ATTEMPT TO COMMIT
CHILD TRAFFICKING
There is an attempt to commit child trafficking under Section 7 of this Act:
(a) When a child travels alone to a foreign country without valid reason therefor and without clearance issued by the Department of Social Welfare and Development or written permit or justification from the child's parents or legal guardian;
(b) When a person, agency, establishment or child-caring institution recruits women or couples to bear a children for the purpose of child trafficking; or
(c) When doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking;
(d) When a person engages in the act of finding children among low-income families, hospitals, clinics, nurseries, day-care centers, or other child-during institutions who can be offered for the purpose of child trafficking.
A penalty lower two (2) degrees than that prescribed for the consummated felony under Section 7 hereof shall be imposed upon the principals of the attempt to commit child trafficking under this Act.
OBSCENE PUBLICATIONS
AND INDECENT SHOWS
Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period.
If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period.
Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause and/or allow such child to be employed or to participate in an obscene play, scene, act, movie or show or in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period.
OTHER ACTS OF NEGLECT, ABUSE,
CRUELTY OR EXPLOITATION AND
OTHER CONDITIONS PREJUDICIAL
TO THE CHILD’S DEVELOPMENT
(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period.
(b) Any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places shall suffer the penalty of prision mayor in its maximum period and a fine of not less than Fifty thousand pesos (P50,000): Provided, That this provision shall not apply to any person who is related within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty.
(c) Any person who shall induce, deliver or offer a minor to any one prohibited by this Act to keep or have in his company a minor as provided in the preceding paragraph shall suffer the penalty of prision mayor in its medium period and a fine of not less than Forty thousand pesos (P40,000); Provided, however, That should the perpetrator be an ascendant, stepparent or guardian of the minor, the penalty to be imposed shall be prision mayor in its maximum period, a fine of not less than Fifty thousand pesos (P50,000), and the loss of parental authority over the minor.
(d) Any person, owner, manager or one entrusted with the operation of may public or private place of accommodation, whether for occupancy, food, drink or otherwise, including residential places, who allows any person to take along with him to such place or places any minor herein described shall be imposed a penalty of prision mayor in its medium period and a fine of not less than Fifty thousand pesos (P50,000), and the loss of the license to operate such a place or establishment.
(e) Any person who shall use, coerce, force or intimidate a street child or any other child to :
(1) Beg or use begging as a means of living;
(2) Act as conduit or middlemen in drug trafficking or pushing; or
(3) Conduct any illegal activities, shall suffer the penalty of prision correccional in its medium period to reclusion perpetua.
For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age. The penalty for the commission of acts punishable under Article 337, 339, 340 and 341 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of qualified seduction, acts of lasciviousness with the consent of the offended party, corruption of minors, and white slave trade, respectively, shall be one (1) degree higher than that imposed by law when the victim is under twelve (12) years age.
The victim of the acts committed under this section shall be entrusted to the care of the department of Social Welfare and Development.
CHILDREN AS ZONES OF PEACE
Children are hereby declared as Zones of Peace. It shall be the responsibility of the State and all other sectors concerned to resolve armed conflicts in order to promote the goal of children as zones of peace. To attain this objective, the following policies shall be observed.
(a) Children shall not be the object of attack and shall be entitled to special respect. They shall be protected from any form of threat, assault, torture or other cruel, inhumane or degrading treatment;
(b) Children shall not be recruited to become members of the Armed Forces of the Philippines of its civilian units or other armed groups, nor be allowed to take part in the fighting, or used as guides, couriers, or spies;
(c) Delivery of basic social services such as education, primary health and emergency relief services shall be kept unhampered;
(d) The safety and protection of those who provide services including those involved in fact-finding missions from both government and non-government institutions shall be ensured. They shall not be subjected to undue harassment in the performance of their work;
(e) Public infrastructure such as schools, hospitals and rural health units shall not be utilized for military purposes such as command posts, barracks, detachments, and supply depots; and
(f) All appropriate steps shall be taken to facilitate the reunion of families temporarily separated due to armed conflict.
RIGHTS OF CHILDREN ARRESTED
FOR REASONS RELATED TO
ARMED CONFLICT
Any child who has been arrested for reasons related to armed conflict, either as combatant, courier, guide or spy is entitled to the following units;
(a) Separate detention from adults except where families are accommodated as family units;
(b) Immediate free legal assistance;
(c) Immediate notice of such arrest to the parents or guardians of the child; and
(d) Release of the child on recognizance within twenty-four (24) hours to the custody of the Department of Social Welfare and Development or any responsible member of the community as determined by the court.
If after hearing the evidence in the proper proceedings the court should find that the aforesaid child committed the acts charged against him, the court shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court shall suspend all further proceedings and shall commit such child to the custody or care of the Department of Social Welfare and Development or to any training institution operated by the Government, or duly-licensed agencies or any other responsible person, until he has had reached eighteen (18) years of age or, for a shorter period as the court may deem proper, after considering the reports and recommendations of the Department of Social Welfare and Development or the agency or responsible individual under whose care he has been committed.
The aforesaid child shall subject to visitation and supervision Development or any duly-licensed agency such other officer as the court may designate subject to such conditions as it may prescribe.
The aforesaid child whose sentence is suspended can appeal from the order of the court in the same manner as appeals in criminal cases.
CONFIDENTIALITY
At the instance of the offended party, his name may be withheld from the public until the court acquires jurisdiction over the case.
It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio broadcasting, producer and director of the film in case of the movie industry, to cause undue and sensationalized publicity of any case of violation of this Act which results in the moral degradation and suffering of the offended party.
PEDOPHILIA IS NOT INSANITY
When accused-appellant was committed to the National Center for Mental Health, he was not diagnosed as insane but was suffering from pedophilia. Thus, there is no doubt in our mind that he was sane during his two-year confinement in the center, pedophilia being dissimilar to insanity.
RA 7658
EMPLOYMENT OF CHILDREN
Children below fifteen (15) years of age shall not be employed except:
1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer's family are employed: Provided, however, That his employment neither endangers his life, safety, health and morals, nor impairs his normal development; Provided, further, That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; or
2) Where a child's employment or participation in public entertainment or information through cinema, theater, radio or television is essential: Provided, The employment contract is concluded by the child's parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: and Provided, That the following requirements in all instances are strictly complied with:
(a) The employer shall ensure the protection, health, safety, morals and normal development of the child;
(b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and
(c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the requirements.
In the above exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the child.
The Department of Labor and Employment shall promulgate rules and regulations necessary for the effective implementation of this Section."
IF MINOR DO NOT APPLY FOR
SUSPENSION OF SENTENCE IT IS
DEEMED WAIVED. THE COURT CANNOT
MOTU PROPIO GIVE HIM THE BENEFITS
OF ART. 192
The record, unfortunately for accused-appellant Buena, does not show that he filed with the trial court an application for suspension of sentence so as to put into operation the benevolent provisions of Presidential Decree No. 603. The Court, therefore, has no other choice but to deny him this privilege.
DISCHARGE; REPORT AND ECOMMENDATION
OF THE DEPARTMENT OF SOCIAL WELFARE,
SUBJECT TO JUDICIAL REVIEW
It is not the responsibility of this Court to order the release of accused Ricky Galit without the benefit of a review of the recommendation of the Department of Social Welfare by the trial court. Art 196 of PD 603 provides: "Art. 196. Dismissal of the case. — If it is shown to the satisfaction of the court that the youthful offender whose sentence has been suspended, has behaved properly and has shown his capability to be a useful member of the community, even before reaching the age of majority, upon recommendation of the Department of Social Welfare, it shall dismiss the case and order his final discharge." It is therefore clear that in cases where the DSWD recommends the discharge of a youthful offender, it is the trial court before whom the report and recommendation is subject to judicial review. Recommendation alone is not sufficient to warrant the release of a youthful offender. In reviewing the DSWD's recommendation, the trial judge must not base his judgment on mere conclusions but should seek out concrete, material and relevant facts to confirm that the youthful offender has indeed been reformed and is ready to re-enter society as a productive and law-abiding citizen. Caution, however, is given to the trial court. To begin with, the youthful offender is not to be tried anew for the same act for which he was charged. The inquiry is not a criminal prosecution but is rather limited to the determination of the offender's proper education and rehabilitation during his commitment in the Training Center and his moral and social fitness to re-join the community. (Pp. V. Galit; GR 97432, 3/1/94)
SUSPENSION OF SENTENCE NOT APPLICABLE
IF PENALTY IS RECLUSION PERPETUA,
LIFE IMPRISONMENT OR DEATH
As aforesaid, however, accused Ricky Galit and Raquel Tagalog did not appeal from the judgment of the trial court. Neither did the People question the suspension of their sentence. The benefits of suspension of sentence are not available where the youthful offender has been convicted of an offense punishable by life imprisonment or death. The last paragraph of section 2 of Presidential Decree No. 1210, which amended certain provisions of P.D. 603, provides:
"The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension of sentence under its provisions or to one who is convicted of an offense punishable by death or life imprisonment or to one who is convicted for an offense by the Military Tribunals." (Par. 4, Sec. 2, P.D. No. 1179, as amended by P.D. No. 1210; emphasis supplied)
(Pp. v. Galit, supra.)
YOUTHFUL OFFENDER, TO BE CRIMINALLY LIABLE, ACCUSED, A 13 YEAR OLD, MUST ACT WITH DISCERNMENT
There is a further obstacle that stands in the way of Estorque's conviction. While it has been proven that he was only thirteen years old at the time of the incident, there are no allegations in both informations that Estorque had acted with discernment. And even if we are to consider the allegations that he had committed the imputed acts "with intent to kill" as sufficient compliance — as we have in the past — he would still not be held liable as no proof was offered during trial that he had so acted with discernment. Accordingly, even if he was indeed a co-conspirator or an accessory, he would still be exempt from criminal liability. (Pp. V. Cordova; GR 83373-74, 7/5/93)
EVERY ACCUSED IS PRESUMED TO BE SANE AT THE TIME OF COMMISSION OF THE CRIME
The law presumes all acts to be voluntary, and that it is improper to presume that acts were done unconsciously. The quantum of evidence required to overthrow the presumption of sanity is proof beyond reasonable doubt. Since insanity is in the nature of a confession and avoidance, it must be proven beyond reasonable doubt. Moreover, an accused is presumed to have been sane at the time of the commission of the crime in the absence of positive evidence to show that he had lost his reason or was demented prior to or during the perpetration of the crime.
(Pp. v. Cordova, supra.)
FAILURE OF DEFENSE TO ASK FOR
SUSPENSION OF ARRAIGNMENT
NEGATES INSANITY
Appellant Eduardo Cordova did not even ask for the suspension of his arraignment on the ground that he was suffering from insanity. Paragraph (a), Section 12, Rule 116 of the Revised Rules of Court provides that the arraignment of an accused who appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto, shall be suspended. In the case at bar, Eduardo Cordova even took the witness stand to testify. (Pp. V. Cordova, supra.)
CHILD & YOUTH WELFARE CODE,
NOT APPLICABLE TO DEATH OR
RECLUSION PERPETUA SENTENCE
The Child and Youth Welfare Code does not apply to those convicted of offenses punishable by death, or reclusion perpetua (Presidential Decree No. 603, as amended by Presidential Decree N. 603, as amended by Presidential Decree Nos. 1179 and 1210). The fact is Bolioc is now twenty-three years old. He is not entitled to a suspended sentence. He is entitled to a two-degree reduction of the penalty (Art. 68, RPC). (Pp. V. Mendez; GR L-48131; 5/30/83)
SUSPENSION OF SENTENCE; CANNOT
BE AVAILED OF WHERE OFFENDER IS ALREADY OVER 21 YEARS OLD AT THE
TIME OF PROMULGATION OF HIS SENTENCE
It is true that Venancio Villanueva was a youthful offender as defined by Art. 189 because he was under 21 years of age when he committed the offense on February 22, 1974. However, when he was sentenced on July 30, 1975, he was over 21 years old and under the terms of Art. 192 (as well as Art. 197) he was no longer entitled to suspension of sentence. (Villanueva v. CFI; GR L-45798, 12/15/82)
WHEN PRESIDENTIAL DECREE NO. 603
MAY BE GIVEN RETROACTIVE EFFECT
Where P.D. 603 is more favorable to the accused in that the sentence against them may he suspended, said Decree may be given retroactive effect, not only with the end in view of giving force and effect to the laudable policies for which the P.D. otherwise known as the Child and Youth Welfare Code was promulgated, hut also in the light of the provisions of Article 22 of the Revised Penal Code. (People v. Garcia; GR L-45280-81, 6/11/81)
PRESIDENTIAL DECREE NO. 603;
ALTERNATIVE COURSES OF ACTION
OF THE COURT WHEN YOUTHFUL
OFFENDER IS RETURNED AFTER
REACHING THE AGE OF MAJORITY
The trial court has two alternative courses of action with respect to a youthful offender whose sentence it had suspended and who is returned to the court upon his reaching the age of majority. These are: (1) to dismiss the case and order the final discharge of said offender; or (2) to pronounce the judgment of conviction. In plain and simple language, it is either dismissal or sentence. (Pp. V. Garcia; supra.)
CIVIL LIABILITY OF YOUTHFUL
OFFENDER, DEFINED
The civil liability for damages referred to is apparently that obligation created by or arising from the crime, otherwise known as ex delicto the imposition of which is mandated by Articles 100, 104(3), 107 and 345(1) of the Revised Penal Code, (People vs. Peña, L-36434, December 20, 1977, 80 SCRA 589, 599) and is based upon a finding of the guilt of the accused. (Pp. V. Garcia, supra.)
REPUBLIC ACT NO. 8484
(The Access Device Regulation)
An act regulating the issuance and use of access devices, prohibiting fraudulent acts committed relative thereto, providing penalties and for other purposes.
The recent advances in modern technology have led to the extensive use of certain devices in commercial transactions, prompting the State to regulate the same. hence, on February 3, 1998, Congress enacted Republic Act Number 8484, otherwise known as The Access Devices Regulation Act of 1998.
Termed as "access devices" by RA No. 8484, any card, plate, code, account number, electronic serial number, personal identification number, or other telecommunication service, equipment, or instrumental identifier, or other means of account access t hat can be used to obtain money, good, services or any other thing of value or to initiate transfer of funds (other than transfer originated solely by paper instrument) is now subject to regulation. The issuance and use of access devices are ought to regulate in order to protect the rights and define the liabilities of parties in commercial transactions involving them.
Essentially, the law imposes duties both to the access device issuer and holder, and penalize certain acts deemed unlawful for being detrimental to either the issuer or holder, or both.
The law mandates an access device issuer, or "card issuer," to disclose either in writing or orally in any application or solicitation to open a credit card account the following: 1) annual percentage rate; 2) annual and other fees; 3) and balance calculation method; 4) cash advance fee; and 5)) over the limit fee.
Moreover, the computation used in order to arrive at such charges and fees required, to the extent practicable, to be explained in detail and a clear illustration of the manner by which it is made to apply is also necessary.
Nonetheless, there are certain exceptions for the above requirement of disclosure not to apply. This is when application or solicitation is made through telephone, provided that the issuer does not impose any annual fee, and fee in connection with telephone solicitation unless the customer signifies acceptance by using the card, and that a clear disclosure of the information enumerated in the preceding paragraph is made in writing within thirty (30) after the consumer requests for the card, but in no event later than the date of the delivery of the card, and that the consumer is not obligated to accept the card or account and the consumer will not be obligated to pay any fees or charges disclosed unless the consumer accepts the card or account by using the card.
Failure on the part of the issuer to fulfill the above requirements will result in the suspension or cancellation of its authority to issue credit cards, after due notice and hearing, by the Banko Sentral ng Pilipinas, the Securities and Exchange Commission and such other government agencies.
In sum therefore, the above omission is made punishable if the following elements occur. One, there is an application or solicitation. Second, such application or solicitation should include the information required by law. and third, failure on the part of the issuer to disclose such information.
In one case (Ermitano v. GR No. 127246, April 21, 1999), the Supreme Court had the occasion to rule on the validity of contracts involving credit cards. The credit cards holder contended that the credit card company should be blamed for the charges the same being unwarranted by the contract. As stipulated, once a lost card has been reported, purchases made thereafter should not accrue on the part of the holder.
The Court said notwithstanding the fact that the contract of the parties is a contract of adhesion the same is valid. However, if the same should include terms difficult to interpret as to hide the true intent to the detriment of the holder, holding it void requires no hesitation. Thus, contracts which provide for ambiguous terms of payment, imposition of charges and fees may be held void invoking the principle of the contract of adhesion.
Clearly, in this case decided in 1999, the Court was concerned about an access device issuer's vulnerability to abuse the provisions of the contract. It is quite surprising, however, that the Court did not make reference to RA No. 8484 to think that it was already in effect when the resolution was promulgated.
Nonetheless, in American Express International Co., Inc. vs. IAC (GR NO. 70766, November 9, 1988) Supreme Court turned down the argument of private respondent grounded on the adhesion principle saying indeed, in a contract of adhesion the maker of the contract has all the advantages, however, the one to whom it is offered has the absolute prerogative to accept or deny the same.
On the other hand, an access device holder may be penalized when he or she fraudulently applied for such device. An access device fraudulently applied for means any access device that was applied for or issued on account of the use of falsified document, false information, fictitious identities and addresses, or any form of false pretense or misrepresentation. Thus, the use, trafficking in, possession, and inducing, enticing or in any manner allowing one to use access device fraudulently applied for are considered unlawful.
The element of fraud is indispensable for this provision of RA 8484 to apply. It is a condition sine qua non before one may be charged with the defined offense.
Thus, the law provides for presumptions of Intent to defraud on the basis of mere possession, control or custody of: a) an access device without lawful authority; b) a counterfeit access device; any device making or altering equipment; c) an access device or medium on which an access device is written not in the ordinary course of the possessor's business; or d) any genuine access device, not in the name of the possessor.
A card holder who abandons or surreptitiously leaves the place of employment, business or residence stated in his application for credit card, without informing the credit card company of the place where he could actually be found, if at the time of such abandonment or surreptitious leaving, the outstanding and unpaid balance is past due for at least ninety (90) days and is more than ten thousand pesos (P10,000.00), shall be prima facie presumed to have used his credit card with intent to defraud.
At first glance, the above presumptions, when applied in real cases, may suffer from constitutional infirmities. The constitution provides that a person shall not be held to answer to a criminal offense without due process of law. it may be argued that such presumptions are rebuttable ones. However, the danger lies in the shifting of the burden of proof from the prosecution to the defense.
The law provides for sixteen (16) prohibited acts which refer to the production, use, possession of or trafficking in unauthorized or counterfeit access devices. It also includes acts deemed fraudulent that increase the amount involved in commercial transactions using access devices. Obtaining money or anything of value through the use of an access device with intent to defraud or gain, and fleeing thereafter.
In the final analysis, the law basically seeks to address the issue of fraud in the issuance and use of access devices, especially credit cards. Fraud may be committed by the issuer by making false or vague information in the application or solicitation to open credit card accounts. The applicant or holder, on the other hand, fraudulently misrepresents himself by giving wrong identity, false profession or employment, or bloated income.
Take the case for instance of Citibank v. Gatchalian (GR No. 111222, January 18, 1995) which shows how credit card applicants through false representation were able to amass in simple terms P790,000.00 from petitioner.
In this case, two employees of the Asian-Pacific Broadcasting Co,. Inc. (ABCI) applied for nineteen (19( credit cards with Citibank using different names other than their real names. The Citibank approved the applications and the credit cards were delivered to them for use. However, this case involves an illegal dismissal case where a Citibank employee was found guilty of gross negligence for effecting the delivery of the credit cards. Her dismissal was affirmed in this case.
Insofar as access device issuers are concerned, Eermitano v. C.A., may be a case in point. The credit card holder lost his credit card which he immediately reported to the card issuer. The contract stipulated that in case of lost, the same should be reported immediately, otherwise purchases made shall be charged to the holder. In this case, despite the prompt reporting of the holder, the issuer still charged the purchases against the former. The Court in this case held the issuer in breach of the contract.
The penalties provided for by RA 8484 are imprisonment and fine. Imprisonment is from six (6) years to ten (10) years and fine ranges from ten thousand pesos (10,000.00) or twice the value of the offense, whichever is higher.
The penalties are increased in case the offender has a similar previous conviction, meaning if he was previously found violating RA 8484. In which case, the accused shall suffer imprisonment of not less than twelve (12) years and not more than twenty (20) years.
The two other stages of felony, as defined by the Revised Penal Code is also made punishable. Thus, attempted and frustrated are meted out with the penalties of imprisonment and fine albeit only in fractions of the above penalties.
R.A. 8484 may seem to favor the issuer. A credit card company may only be meted out the penalty of cancellation or suspension, which may be considered as mere administrative sanctions. In fact, it is not the courts which impose such sanctions but administrative agencies such as the Bangko Sentral and the Securities and Exchange Commission.
On the other hand, a holder or mere possessor of a counterfeit fraudulently applied for access device may be convicted and be made to suffer imprisonment and fine.
DANGEROUS DRUG ACT OF 2002
(Republic Acts No. 9165)
DEFINITIONS OF TERMS
Chemical Diversion – the sale, distribution, supply or transport of legitimately imported, in-transit, manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures or in concentrated form, to any person or entity engaged in the manufacture of any dangerous drug, and shall include packaging, repackaging, labeling, relabeling or concealment of such transaction through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or mail fraud.
Controlled Delivery – The investigative technique of allowing an unlawful or suspect consignment of any dangerous drug and/or controlled precursor and essential chemical, equipment or paraphernalia, or property believed to be derived directly or indirectly from any offense, to pass into, through or out of the country under the supervision of any unauthorized officer, with a view to gathering evidence to identify any person involved in any dangerous drug related offense, or to facilitate prosecution of that offense.
Controlled Precursor and Essential Chemicals – Includes those listed in Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances as enumerated in the attached annex, which is an integral part of this Act.
Drug Dependence – As based on the World Health Organization definition, it is a cluster of physiological, behavioral and cognitive phenomena of variable intensity, in which the use of psychoactive drug takes on a high priority thereby involving, among others, a strong desire or a sense of compulsion to take the substance and the difficulties in controlling substance-taking behavior in terms of its onset, termination, or levels of use.
Drug Syndicate – Any organized group of two (2) or more persons forming or joining together with the intention of committing any offense prescribed under this Act.
Illegal Trafficking – The illegal cultivation, culture, delivery, administration, dispensation, manufacture, sale, trading, transportation, distribution, importation, exportation, and possession of any dangerous drug and/or controlled precursor and essential chemical.
Protector/Coddler – Any person who knowingly and willfully consents to the unlawful acts provided for in this Act and uses his/her influence, power or position in shielding, harboring, screening or facilitating the escape of any person he/she knows, or has reasonable ground to believe on or suspects, has violated the provision of this Act in order to prevent the arrest, prosecution and conviction of the violator.
Pusher – Any person who sells, trades, administers, dispenses, delivers, or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports dangerous drugs or who acts as a broker in any of such transaction, in violation of this Act.
Planting of evidence – the willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects or in the immediate vicinity of an innocent individual for the purpose of implicating, incriminating, or imputing the commission of any violation of this Act.
What are the significant Provisions in R.A. 6425
that have been changed?
1. Under this Act there is no more distinction between prohibited drug and regulated drugs and/or controlled precursors and essential chemicals enumerated in Tables I and II of the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
2. The penalties provided by R.A. 7659 was changed , adopting partially the penalties in R.A. 6425.
3. In planting evidence any person now maybe held liable. Before, only law enforcement agents.
4. the provisions of the Revised Penal Code have no suppletory effect except for minors who may be sentenced to reclusion perpatua.
What are the new kinds of drugs
that are included in R.A. 9165?
Methylenedioxymethamphetamine (MDMA) or commonly known as “Ecstasy”, or its any other name which refers to the drugs having such chemical composition, including any of its isomers or derivatives in any form. Paramethoxyamphetamine (PMA), Trimethoxyamphetamine (TMA), lysergic acid diethylamine (LSD), gamma hydroxybutyrate (GHB) and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirement, as determined and promulgated by the Board in accordance to Section 93, Art XI of this Act of R.A. 9165.
ACTS PUNISHABLE UNDER THE LAW
1.) Importation of any dangerous drug, regardless of the quantity and purity involved, including any and all species of opium poppy or any part thereof or substances derived thereform even for floral, decorative and culinary purposes.
2.) Importation of any controlled precursor and essential chemical.
3.) Importation of any dangerous drug and/or controlled precursor and essential chemical through the use of a diplomatic passport, diplomatic facilities or any other means involving his/her official status intended to facilitate the unlawful entry.
4.) Organizing, managing, or acting as a “financier” of any of the illegal activities penalized under Section 4 of the Law.
5.) Acting as “protector/coddler” of anyone who violates Section 4 of the Law.
6.) Sale, trading, administration, dispensation, distribution and transportation of dangerous drugs, regardless of quantity and purity involved, or acting as a broker in any of such transactions.
7.) Sale, trading, administration, dispensation, distribution and transportation of any controlled precursor and essential chemical, or acting as a broker in such transaction.
8.) Use by drug pushers of minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity directly connected to the trade of dangerous drugs and/or controlled precursor and chemicals.
9.) Acting as a protector/coddler of any violator of the provision of Sec. 5.
10.) Maintenance of a Den, Dive or Resort where any dangerous drug is used or sold in any form.
11.) Maintenance of a Den, Dive or Resort where any controlled precursors and essential chemical is used or sold in any form.
12.) Acting as “protector/coddler” of a maintainer of a Den, Dive, or Resort
13.) Employees and Visitors of a Den, Drive, or Resort
14.) Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals
15.) Acting as a protector or coddler of any violator of Sec. 8
16.) Illegal Chemical Diversion of Controlled Precursor and Essential Chemicals.
17.) Manufacture or Delivery of Equipment, Instrument, Apparatus, and other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.
18.) Possession of Drug.
19.) Possession of equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs
20.) Possession of Dangerous Drugs During Parties, Social Gathering or Meetings.
21.) Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs during Parties, Social Gathering or Meetings.
22.) Use of Dangerous Drugs.
23.) Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources thereof.
24.) Maintenance and keeping of Original Records of Transaction on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals
25. Unnecessary Prescription of Dangerous Drugs
26.) Unlawful Prescription of Dangerous Drugs
27.) Attempt or Conspiracy to commit the following unlawful acts: (a) Importation of any dangerous drugs and/or controlled precursor and essential chemical; (b) Sale, trading, administration, dispensation, delivery, distribution, and transportation of any dangerous drug and/or controlled precursor and essential chemical; (c) Maintenance of a den, dive, or resort where dangerous drugs is used in any form; (d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and (e) Cultivation or culture of plants which are sources of dangerous drugs.
CRIMINAL LIABILITY OF ALIENS, OFFICERS
OF PARTNERSHIP, CORPORATION, ASSOCIATIONS, OR OTHER JURIDIUCAL ENTITIES
1. In addition to the penalties prescribed in the unlawful act committed, any alien who violates such provisions of the Law, after service of sentences, shall be deported immediately without further proceedings, unless the penalty is death.
2. In case the violation of the Law is committed by a partnership, corporation, association or any juridical entity, the partner, president, director, manager, trustee, estate administrator, or officer who consents to or knowingly tolerates such violation shall be held criminally liable as co-principal.
3. The penalty provided for the offense under the Law shall be imposed upon the partner, president, director, manager, trustee, estate administrator, or officer who knowingly authorizes, tolerates, or consents to the use of a vehicle, vessel, aircraft, equipment or other facility as an instrument in the importation, sale, trading, administration, dispensation, delivery, distribution, transportation, or manufacture of dangerous drugs, or chemical diversion, if such vehicle, aircraft, equipment or other instrument is owned by or under the control or supervision of the partnership, corporation, association or juridical entity to which they are affiliated.
CRIMINAL LIABLITY OF PUBLIC OFFICERS OR EMPLOYEES
1. Any public officer or employee who (1) misappropriates, (2) misapplies or (3) fails to account for confiscated, seized or surrendered drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds or properties obtained from the unlawful acts punished under the Law shall be penalized with life imprisonment to death and a fine ranging fromP500,000.00 to P10,000,000.00 and with perpetual disqualification from any public office (Sec.27).
2. Any government official or employee found guilty of the unlawful acts punished under the Law shall be imposed the maximum penalties provided for the offense and shall be absolutely perpetually disqualified from holding any public office. (Sec. 28).
CRIMINAL LIABILITY OF ELECTIVE LOCAL OR NATIONAL OFFICIALS WHO BENEFITS FROM DRUG TRAFFICKING – whether or not he know that it came from drugs, but the one who gave must be convicted first by final judgment.
1. Any elective local or national official found to have (1) benefited from the proceeds of the trafficking of dangerous drugs as prescribed in the Law, or has (2) received any financial or material contributions or donations from natural or juridical persons found guilty of trafficking dangerous drug as prescribed in the law, shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the government, its divisions, subdivisions, and intermediaries, including government-owned or controlled corporations (\sec.27)
CRIMINALLIABILITY OF PRIVATE INDIVIDUAL
2. Any person found guilty of “planting” any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall be punished with death. (Sec. 29).
3. Any person violating any regulation issued by the Dangerous Drug Board shall be punished with imprisonment ranging from 6 months and 1 day to 4 years and a fine ranging from P10,000.00 to P50,000.00 in addition to the administrative sanction which may be imposed by the Board (Sec. 32)
CRIMINAL LIABILITY FOR
PLANTING OF EVIDENCE
Any person who is found guilty of planting nay dangerous drug and/ or controlled precursor and essential chemicals, regardless of quantity and purity, shall suffer the penalty of death. (Sec. 29). Previosly, only law enforcement agent maybe held liable (R.A. 7659).
ACCESORY PENALTIES
Any person convicted under this Law (R.A.9165 ) shall be disqualified to exercise his/her civil rights such as, but not limited to, the right of parental authority or guardianship, either as to the person or property of any ward, the rights to dispose of such property by any act or any conveyance inter vivos, and political rights such as but not limited to, the right to vote and be voted for. Such rights shall also be suspended during the pendency of an appeal from such conviction (Sec.35)
AGGRAVATING CIRCUMSTANCES
DRUG RELATED CASES
1.) If the importation or bringing into the Philippines of any dangerous drugs and/or controlled precursor and essential chemicals was done through the use of diplomatic passport, diplomatic facilities or any other means involving his/her official status intended to facilitate the unlawful entry of the same
2.) The sale trading, administration, dispensation, delivery, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpired within one hundred (100) meters from the school
3.) The drug pusher use minors or mentally incapacitated individuals as runners, couriers and messenger, or in any other capacity directly connected to the dangerous drug and/or controlled precursor and essential chemical trade.
4.) The victim of the offense is a minor or mentally incapacitated individual, or should a dangerous drug and/or controlled precursor and essential chemicals involved `in any offense be the proximate cause of death of a victim.
5.) In case the clandestine laboratory is undertaken or established under the following circumstances:
a.) Any phase of the manufacturing process was conducted in the presence or with the help of minor/s
b.) Any phase of manufacturing process was established or undertaken within one hundred (100) meters of a residential, business, church or school premises.
c.) Any clandestine laboratory was secured or protected with booby traps.
d.) Any clandestine laboratory was concealed with legitimate business operations.
e.) Any employment of a practitioner, chemical engineer, public official or foreigner.
6.) In case the person uses a minor or a mentally incapacitated individual to deliver equipment, instrument, apparatus and other paraphernalia use for dangerous drugs.
7.) Any person found possessing any dangerous drug during a party, or a social gathering or meeting, or in the proximate company of at least two (2) person.
8.) Possession or having under his/her control any equipment, instrument, apparatus and other paraphernalia fit of intended for smoking, consuming, administering, injecting, ingesting or introducing any dangerous drug into the body, during parties, social gatherings or meetings, or in the proximate company of at least two (2) person
WHAT ARE THE PRIVILEGE NOT
AVAILABLE TO VIOLATOR OF THIS ACT?
1.) Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.
2.) Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law of P.D. No. 968, as amended, except minors who are first-time offenders.
Note:- Pendency of appeal suspend the right of the accused
- Rights to Self-incrimination do not refer to giving blood.
IMMUNITY FROM PROSECUTION
AND PUNISHMENT
Immunity from Prosecution and punishment – Notwithstanding the provision of Section 17, Rule 119 of the Revised Rules of Criminal Procedure and the provisions of Republic Act No. 6981 or the Witness Protection, Security and Benefits Act of 1991, any person who has violated Sections 7,11, 12, 14, 15 and 19, Article II of this Act, who voluntarily gives information about any violation of Section 4, 5, 6, 8, 13 and 16, Article II of this Act as well as any violation of the offenses mentioned if committed by drug syndicate, or of any information leading to the whereabouts, identities and arrest of all or any of the members thereof; and who willingly testifies against such persons as described above, shall be exempted from the prosecution or punishment for the offense with reference to which his/her information of testimony in bar of such prosecution; Provided, that the following condition concur:
1.) The information and testimony are necessary for the conviction of the person described above;
2.) Such information are not yet in the possession of the State;
3.) Such information and testimony can be corroborated on its material points;
4.) The informant or witness has not been previously convicted of a crime involving moral turpitude, except when there is no other direct evidence available for the State other than the information and testimony of said informant or witness; and
5.) The informant or witness shall strictly and faithfully comply without delay, any condition or undertaking, reduced into writing, lawfully imposed by the State as further consideration for the grant of immunity from prosecution and punishment.
Provided, further, That this immunity may be enjoyed by such informant or witness who does not appear to be most guilty for the offense with reference to which his/her information or testimony were given. Provide, finally, that there is no direct evidence available for the State except for the information and testimony of the said informant or witness.
TERMINATION OF THE
GRANT OF IMMUNITY
The immunity above-granted shall not attach should it turn out subsequently that the information and/or testimony is false, malicious, or made only for the purpose of harassing, molesting or in any way prejudicing the persons described in Section 33 against whom such information or testimony is directed. In such case, the informant or witness shall be subject to prosecution and the enjoyment of all rights and benefits previously accorded him under the Law or any other law, decree or order shall be deemed terminated.
In case the informant or witness under the Law fails or refuse to testify without just cause, and when lawfully obliges to do so, or should he/she violate any condition accompanying such immunity as provided above, his/her immunity shall be removed and he/she shall be likewise be subjected to contempt and/or criminal prosecution, as the case may be and the enjoyment of all rights and benefits previously accorded him under the Law or in any other law, decree or order shall be deemed terminated. (Sec 34.)
In case the informant or witness referred to under the Law falls under the applicability of Section 34, such individual cannot avail of the provision under Article VIII of the Law.
PERSON/S WHO ARE SUBJECT
TO THE MANDATORY DRUG TESTING
a.) Applicants for driver’s license – no driver’s license shall be issued or renewed to nay person unless he/she presents a certification that he/she has undergone a mandatory drug test and indicating thereon that he/she is free from the use of dangerous drugs.
b.) Applicants for firearm’s license and permit to carry firearms outside of residence. – All applicants for firearms license and permit to carry firearms outside of residence shall undergo a mandatory drug test to ensure that they are free from the use of dangerous drugs; Provided, That all persons who by the nature of their profession carry firearms shall undergo drug testing;
c.) Officers and employees of public and private offices. – Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company’s work unless and regulation, which shall be borne by the employer, for purposes of reducing the risk in the workplace. Any officer or employee found positive for the sue of dangerous drug shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provision Article 282 of the Labor Code and pertinent provisions of the Civil Service Law.
d.) Officers and members of the military, police and other law enforcement agencies. – Officers and members of the military, police and other law enforcement agencies shall undergo an annual mandatory drug test.
e.) All persons charged before the prosecutor’s office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall have undergo a mandatory drug test.
f.) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.
CONFIDENTIALITY OF RECORDS UNDER
THE COMPULSARY SUBMISSION PROGRAM
The records of a drug dependent who was rehabilitated and discharged from the Center under the compulsory submission program, or who was charged for violation of Section 15 of this Act, shall be covered by Section 60 of this Act (R.A. 9165). However, the record of a drug dependant who was not rehabilitated, or who escaped but did not surrender himself/herself within the prescribed period, shall be forwarded to the court and their use shall be determined by the court, taking into consideration public interest and the welfare of the drug dependant (Sec. 64)
DISCHARGED AFTER COMPLIANCE WITH CONDITIONS OF SUSPENDED SENTENCE OF A FIRST-TIME MINOR OFFENDER
If the accused first time minor offender under suspended sentence complies with the applicable rules and regulation of the Board, including confinement in a Center, the court, upon a favorable recommendation of the Board for a final discharge of the accused, shall discharge the accused and dismiss all proceedings.
Upon the dismissal of the proceedings against the accused, the court shall enter an order to expunge all official records, other than the confidential record to be retained by the DOJ relating to the case. Such an order, which shall be kept confidential, shall restore the accused to his/her status prior to the case. He/she shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related therto in response to any inquiry madeof him for any purpose (Sec. 67)
THE DANGEROUS DRUGS BOARD AND
PHILIPPINE DRUG ENFORCEMENT AGENCY
The Dangerous Drug Board
A. Function
The Dangerous Drug Board shall be the policy-making and strategy formulating body in the planning and formulation of policies and programs on drug prevention and control. (Sec. 77)
B. Composition
Under R.A. 6424 as amended, the Dangerous Drug board was composed of seven ex officio members as follows: (a) The Minister of Health or his representative; (b) the Minister of Justice or his representative; (c) The Minister of National Defense or his representative; (d) The Minister of Education and Culture or his representative; (e) The Minister of Finance or his representative; (f) The Minister of Social Service and Development or his representative; and (g) The Minister of Local Government or his representative (Sec. 35 Art. 8, R.A. 6424)
The Minister of Health shall be the Chairman of the Board and the Director of the National Bureau of Investigation shall be the permanent consultant of the Board.
Under Section 78 of R.A. 9165, the membership of the Dangerous Drugs Board was expanded to seventeen (17) members, three (3) of which are permanent members, twelve (12) shall be in ex officio capacity, and the remaining two (2) shall be regular members.
The three (3) permanent members, who shall possess At least seven-year training andexperience in the field of dangerous drugs andin any of the following fields: in law, medicine, criminology, psychology or social work, shall be appointed by the President of the Philippines. The President shall designate a Chairman, who shall have the rank of a secretary from among the three (3) permanent members who shall serve for six (6) years. Of the two (2) other members, who shall have the rank of undersecretary, one (1) shall serve for four (4) and the other for two (2) years. Thereafter, the person appointed to succeed such members shall hold office for a term of six (6) years and until their successors shall have been duly appointed and qualified.
The other twelve (12) members who shall be ex officio members of the Board are the following: (1) Secretary of the Department of Justice or his/her representative; (2) Secretary of the Department of Health or his/her representative; (3) Secretary of the Department of National Defense or his/her representative; (4) Secretary of the Department of Finance or his/her representative; (5) Secretary of the Department of Labor and Employment or his/her representative; (6) Secretary of the Department of Interior and Local Government or his/her representative; (7) Secretary of the Department of Social Welfare and Development or his/her representative; (8) Secretary of the Department of Foreign Affairs or his/her representative; (9) Secretary of the Department of Education or his/her representative; (10) Chairman of the Commission of Higher Education or his/her representative; (11) Chairman of the National Youth Commission; and (12) Director General of the Philippine Drug Enforcement Agency.
Cabinet secretaries who are members of the Board may designate their duly authorized and permanent representatives whose rank shall in no case be lower than undersecretary.
The two (2) regular members shall be as follows: (a) The President of the Integrated Bar of the Philippines; and (b) The chairman or president of a non- chairman or president of a non- chairman or president of a non-government organization involved in dangerous drug campaign to be appointed by the President of the Philippines.
The Philippine Drug Enforcement Agency (PDEA)
A. Functions
Carry out the provision of the Dangerous Drug act of 2002. The Agency shall served as the implementing arm of the Dangerous Drug Board, and shall be responsible for the efficient and effective law enforcement of all provisions of any dangerous drug and/or controlled precursor and essential chemicals as provided for in the Law. (Sec. 82). The existing Secretariat of the National Drug Law Enforcement and Prevention Coordinating Center as created by Executive Order No. 61 is hereby modified and absorbed by the PDEA (Sec. 83, R.A. 9165)
B.) Powers and Duties
a.) Implement or cause the efficient and effective implementation of the national drug control strategy formulated by the Board thereby carrying out a national drug campaign program which shall include drug law enforcement, control and prevention campaign with the assistance of concerned government agencies;
b.) Undertake the enforcement of the provision of article II of this Act relative to the unlawful acts and penalties involving any dangerous drug and/or controlled precursor and essential chemical and investigate all violators and other matters involved in the commission of any crime relative to the use, abuse or trafficking of any dangerous drug and/or controlled precursor and essential chemicals as provided for in this Act and the provisions of Presidential Decree No. 1619;
c.) Administer oath, issue subpoena and subpoena duces tecum relative to the conduct of investigation involving violation of this Act;
d.) Arrest and apprehend as well as search all violators and seize or confiscate, the effects or proceeds of the crime as provided by law and take custody thereof, for this purpose the prosecutors and enforcement agents are authorized to possess firearms, in accordance with the existing laws;
e.) Take charge and have custody of all dangerous drugs and/or controlled precursors and essential chemicals seized, confiscated or surrendered to any national, provincial or local law enforcement agency; if no longer needed for purposes of evidence in court.
f.) Establish forensic laboratories in each PNP office in every province and city in order to facilitate action on seized or confiscated drugs; thereby hastening its destruction without delay;
g.) Recommend to the DOJ the forfeiture of properties and other assets of persons and/or corporations found to be violating the provisions of this Act and in accordance with the pertinent provisions of the Anti-Money Laundering Act of 2002.
h.) Prepare for prosecution or cause the filing of appropriate criminal and civil cases for violation of laws on dangerous drugs, controlled precursors and essential chemicals, and other similar controlled substance, and assist, support and coordinate with other government agencies for the proper and effective prosecution of the same;
i.) Monitor and if warranted by circumstances, in coordination with the Philippine Postal Office and the Bureau of Customs, inspect all air cargo packages, parcels and mails in the central post office, which appear from the packages and address itself to be a possible importation of dangerous drugs and/or controlled precursors and essential chemicals, through on-line or cyber shops via the internet or cyberspace;
j.) Conduct eradication programs to destroy wild or illegal growth of plants from which dangerous drugs may be extracted;
k.) Initiate and undertake the formation of a nationwide organization which shall coordinate and supervise all activities against drug abuse in every province, city, municipality and barangay with active and direct participation of all such local government units and non-governmental organizations, including the citizenry, subject to the provisions of previously formulated programs of action against dangerous drugs;
l.) Establish and maintain a national drug intelligence system in cooperation with law enforcement agencies, other government agencies/offices and local government units that will assist in its apprehension of big time drug lords;
m.) Established and maintain close coordination, cooperation and linkages with international drug control and administration agencies and organization and implement the applicable provisions of international conventions and agreement related to dangerous drugs to which the Philippines is a signatory;
n.) Create and maintain an efficient special enforcement unit to conduct an investigation, file charges and transmit evidence to the proper court, wherein members of the said unit shall possess suitable and adequate firearms for their protection in connection with the performance of their duties; Provided, That no previous special permit for such possession shall be required;
o.) Require all government and private hospitals, clinics, doctors, dentists and other practitioners to submit a report to it, in coordination with the Board, about all dangerous drugs and/or controlled precursors and essential chemicals which they have attended to for data and information purposes;
p.) Coordinate with the Board for the facilitation of the issuance of necessary guidelines, rules and regulations for the proper implementation of this Act;
q.) Initiate and undertake a national campaign for drug prevention and drug control programs, where it may enlist the assistance of any department, bureau, office, agency, or instrumentality of the government, including government-owned and/or controlled corporations, in the anti-illegal drugs drive, which may include the use of their respective personnel, facilities, and resources for a more resolute detection and investigation of drug-related crimes and prosecution of the drug traffickers; and
r.) Submit an annual and periodic report to the Board as may be required form time to time, and perform such other functions as may be authorized or required under existing laws and as directed by the President himself/herself or as recommended by the congressional committees concerned.
Note:
There are however certain power and duties of the PDEA enumerated under Section 84 of R.A. 9165 which seems to overlap with the functions of prosecutors such as (1) the preparation for prosecution or the causing of the filing of appropriate criminal cases for violation of the Law; and (2) filing of charges and transmittal of evidence to the proper court and which have to be clarified in the Implementing Rules and Regulation that may be issued by the DDB and the PDEA later.
JURISDICTION OVER DRUG RELATED CASES
The Supreme Court shall designate special court from among the existing Regional Trial Court in each judicial region to exclusively try and hear cases involving violations of this Act. The number of courts designated in each judicial region shall be based in their respective jurisdiction.
The DOJ shall designate special prosecutor to exclusively handle cases involving violations of this Act.
PRELIMINARY INVESTIGATION
OF DANGEROUS DRUG CASES
The preliminary investigation of cases filed under this Act shall be terminated within the period of thirty (30) days from the date of their filing
When the preliminary investigation is conducted by a public prosecutor and probable cause is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found to exist, the corresponding information shall be filed by the proper prosecutor within forty-eight (48) hours from the date of receipt of the records of the case. (Sec. 90)
The Department of Justice shall designate special prosecutors to exclusively handle cases involving violations of the Dangerous Drug Act of 2002 (Sec. 90)
Notwithstanding the provision 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 crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable (Sec. 25)
Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, including the Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential Chemicals
Every penalty imposed for the unlawful importation, sale, trading, administration, dispensation, delivery, distribution, transportation or manufacture of any dangerous drug and/or controlled precursor and essential chemical, the cultivation or culture of plants which are sources of dangerous drugs, and the possession of any equipment, instrument, apparatus and other paraphernalia for dangerous drugs including other laboratory equipment, shall carry with it the confiscation and forfeiture, in favor of the government, of all the proceeds and properties derived from unlawful act, including, but not limited to, money and other assets obtained thereby, and the instruments or tools with which the particular unlawful act was committed, unless they are the property of a third person not liable for the unlawful act, but those which are not of lawful commerce shall be ordered destroyed without delay pursuant to the provisions of Section 21 of this Act.
After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion to his/her lawful income; Provided, however, That if the forfeited property is a vehicle, the same shall be auctioned off not later than five (5) days upon order of confiscation or forfeiture.
During the pendency of the case in the Regional Trial Court, no property, or income derived thereform, which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in custodio legis and no bond shall be admitted for the release of the same.
The proceeds of any sale or disposition of any property confiscated under this section, forfeiture, custody and maintenance of the property pending disposition, as well as the expense for publication and court costs. The proceeds in excess of the above expenses shall accrue to the Board to be used in its campaign against illegal drugs.
CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED
AND/OR SURRENDERED DANGEROUS DRUGS, ETC.
The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment that was confiscated, seized and/or surrendered, for proper disposition in the following manner:
1. The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory 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, a representative from the media and the Department of Justice (DOJ) and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;
2. Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative examination;
3. A certification of the forensic laboratory examination results, which shall be under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject items/s: Provided, that when the volume of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally by the forensic laboratory: Provided, however, that a final certification on the same within the next twenty-four (24) hours;
4. After the filing of the criminal case, the Court shall within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursor and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from which such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society group and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender; Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes; Provided, further, That a representative sample, duly weighed and recorded, is retained;
5. The Board shall then issue a sworn statement as to the fact of destruction or burning of the subject item/s together with the representative sample/s shall be kept to a minimum quantity as determined by the Board;
6. The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney’s office to represent the former;
7. After the promulgation of judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-foru (24) hours from receipt of the same; and
8. Transitory Provision: a.) Within twenty-four hours from the effectivity of this Act (R.A. 9165), dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representative of the Court, DOJ, Department of Health (DOH) and the accused and/or his/her counsel, and b.) Pending the organization of the PDEA, the custody, disposition, and burning of seized or surrendered dangerous drugs provided under this Section shall be implemented by the DOH (Sec. 21, Art. 2, R.A. 9165)
SUSPENSION OF SENTENCE OF
FIRST-TIME MINOR OFFENDER
An accused who is over fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of R.A. 9165 but not more that eighteen (18) years of age at the time when the judgment should have been promulgated after having been found guilty of said offense, may be given the benefits of a suspended sentence, subject to the following conditions:
a.) He/She has not been previously convicted of violating any provision of this Act, or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code; or any special penal laws;
b.) He/She has not been previously committed to a Center or to the care of a DOH-accredited physician; and
c.) The Board favorably recommends that his/her sentence be suspended.
PRIVILEGE OF SUSPENDED SENTENCE CAN BE AVAIL ONLY ONCE BY A FIRST-TIME MINOR OFFENDER
The privilege of suspended sentence shall be availed of only once by accused drug dependent who is a first-time offender over fifteen (15) years of age at the time of the commission of the violation of Section 15 of this Act but not more than eighteen (18) years of age at the time when judgment should have been promulgated. (Sec. 68)
PROMULAGATION OF SENTENCE
FOR FIRST-TIME OFFENDER
If the accused first-time minor offender violates any of the conditions of his/her suspended sentence, the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance over him, including the rules and regulations of the Center should confinement be required, the court shall pronounce judgment of conviction and he/she shall serve sentence as any other convicted person. (Sec. 69)
PROBATION OR COMMUNITY SERVICE FOR A FIRST-TIME MINOR OFFENDER IN LIEU OF IMPRISONMENT
Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation, even if the sentence provided under this Act is higher than that provided under existing law on probation, or impose community service in lieu of imprisonment. In case of probation, the supervision and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the Board of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of the probation, the Board shall submit a written report to the court recommending termination of probation and a final discharge of the probationer, whereupon the court shall issue such an order.
The community service shall be complied with under conditions, time and place as may be determined by the court in its discretion and upon the recommendation of the Board and shall apply only to violators of Section 15 of this Act. The completion of the community service shall be under the supervision and rehabilitative surveillance of the Board during the period required by the court. Thereafter, the Board shall render a report on the manner of compliance of said community service. The court in its discretion may require extension of the community service or order a final discharge.
If the sentence promulgated by the court require imprisonment, the period spent in the Center by the accused shall be deducted from the sentence to be served. ( Sec. 70)
WHAT ARE THE LIABILITY AND RESPONSIBILITY OF A MEMBER OF LAW ENFORCEMENT AGENCIES AND OTHER GOVERNMENT OFFICIALS IN TESTIFYING AS PROSECUTION WITNESSES IN DANGEROUS DRUG CASES?
Any member of law enforcement agencies or any other government official and employee who, after due notice, fails or refuse intentionally or negligently, to appear as a witness for the prosecution in any proceedings, involving violation of this Act, without any valid reason shall be punished with imprisonment of not less than twelve (12) years and one (1) day to twenty (20) years and a fine of not less than Five hundred thousand pesos (P500,000.00), in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body.
The immediate superior of the member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than ten thousand (P10,000.00) but not more than Fifty thousand (P50,000.00) and in addition, perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned the former does not exert reasonable effort to present the latter to the court
The member of the law enforcement agency or any other government employee mentioned in the proceeding paragraphs shall not be transferred or re-assigned to any other government office located in another territorial jurisdiction during the pendency of the case in court. However, the concerned member of the law enforcement agency or government employee may be transferred or re-assigned for compelling reason: Provided, that his/her immediate superior shall notify the court where the case is pending of the order to transfer or re-assign, within twenty-four (24) hours from its approval: Provided further, that his/her immediate superior shall be penalized with imprisonment of not less than two (2) months and one (1)day but not more than six (6) years and a fine of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than Ten thousand (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office, should he/she fails to notify the court of such order to transfer or re-assign.
DELAY ANF BUNGLING IN THE
PROSECUTION OF DRUG CASES
Any government officer employee tasked with the prosecution of drug-related cases under this Act, who through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the unsuccessful prosecution and/or dismissal of the said drug cases, shall suffer the penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years without prejudice to his/her prosecution under the pertinent provision of the Revised Penal Code.
RECORDS TO BE KEPT BY THE
DEPARTMENT OF JUSTICE
The DOJ shall keep a confidential record of the proceedings on suspension of sentence and shall not be used for any purpose other than to determine whether or not a person accused under this Act is a first-time offender. (Sec. 71)
LIABILITY OF A PERSON WHO VIUOLATES
THE CONFIDENTIALITY OF RECORDS
The Penalty of imprisonment ranging from six (6) months and one (1) day to six (6) years and a fine ranging from One thousand pesos (P1,000.00) to Six thousand pesos (P6,000.00), shall be imposed upon any person who, having official custody of or access to the confidential records of any drug dependent under voluntary submission programs, or any one who, having gained possession of said records, whether lawfully or not, reveals their content to any person other than those charged with the prosecution of the offense under this Act and its implementation. The maximum penalty shall be imposed, in addition to the absolute perpetual disqualification from any public office, when the offender is a government official or employee. Should the records be used for unlawful purposes, such as blackmail of the drug defendant of the members of his/her family, the penalty imposed for the crime of violation of confidentiality shall be in addition to whatever crime he/she convicted of. (Sec. 72)
LIABILITY OF A PARENTS, SPOUSE OR
GUARDIAN WHO REFUSE TO COOPERATE
WITH THE BOARD OR ANY CONCERNED AGENCY
Any parent, spouse or guardian who, without valid reason parent, spouse or guardian who, without valid reason, refuses to cooperate with the Board or any concerned agency in the treatment and rehabilitation of a drug defendant who is a minor, or in any manner, prevents or delay the after-care, follow-up or other programs for the welfare of the accused drug defendant, whether under voluntary submission program or compulsory submission program, may be cited in contempt by the court.
COST-SHARING IN THE TREATMENT AND REHABILITATION OF A DRUG DEFENDENT
The parents, spouse, guardian or any relative within the fourth degree of consanguinity of any person who is confined under the voluntary submission program or compulsory submission program shall be charged a certain percentage of the cost of his/her treatment and rehabilitation, the guidelines of which shall be formulated by the DSWD taking into consideration the economic status of the family of the person confined. The guidelines therein formulated shall be implemented by a social worker of the local government unit. (Sec. 74)
LIMITED APPLICABILITY OF THE REVISED PENAL CODE
Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act. 3814) as amended, shall not apply to the provision of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided therein shall be reclusion perpetua to death. (Sec. 98)
EXCEPTION TO NECESSITY
OF A SEARCH WARRANT
There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person arrested. An officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was in fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping, which may be used as evidence in the trial of the case. (People v. Musa; GR 96177, 1/27/93)
LIKE ALIBI, FRAME UP IS EASY
TO FABRICATE, BUT DIFFICULT
TO PROVE
Frame-up, like alibi, is a defense that has been viewed by courts with disfavor for it can just as easily be connected and is a common and standard line of defense in most prosecution arising from violations of the Dangerous Drugs Act. In order for that defense to prosper, the evidence adduced must be clear and convincing. (People v. Girang; GR 27949, 2/1/95)
BUY-BUST OPERATION
Is a form of entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the commission of the offense. Entrapment has received judicial sanction as long as it is carried out with due regard to constitutional and legal safeguards. (People v. Basilgo; GR 107327, 8/5/94)
POSEUR-BUYER, GENERALLY
NEED NOT TESTIFY
The testimony of the poseur-buyer or of the confidential informant is no longer material considering that accused-appellant’s drug pushing was positively attested to. Moreover, informants are generally not presumed in court because of the need to hide their identity and preserve their invaluable service to the police. (People v. Girang; GR 97949, 2/1/95)
EFFECT OF LIMITATION UNDER
SECTION 19, ART. VII OF THE
CONSTITUTION ON GRANT OF PARDON
The "conviction by final judgment" limitation under Section 19, Article VII of the present Constitution prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal from his conviction by the trial court. Any application therefor, if one is made, should not be acted upon or the process toward its grant should not be begun unless the appeal is withdrawn. Accordingly, the agencies or instrumentalities of the Government concerned must require proof from the accused that he has not appealed from his conviction or that he has withdrawn his appeal Such proof may be in the form of a certification issued by the trial court or the appellate court, as the case may be The acceptance of the pardon shall not operate as an abandonment or waiver of the appeal, and the release of an accused by virtue of a pardon, commutation of sentence, or parole before the withdrawal of an appeal shall render those responsible therefor administratively liable Accordingly, those in custody of the accused must not solely rely on the pardon as a basis for the release of the accused from confinement. (People v. Maquilan)
RULE AS TO WHO SHOULD
BE CRIMINALLY CHARGED
The settled rule is that the determination of who should be criminally charged in court is essentially an executive function, not a judicial one. As the officer authorized to direct and control the prosecution of all criminal actions, the prosecutor is tasked to ascertain whether there is sufficient ground to engender a well-founded belief that an offense has been committed and that the accused is probably guilty thereof. (People v. Esparas; GR 120034, July 10, 1998)
WHEN THERE IS A WAIVER
OF WARRANTLESS ARREST
The appellants are now precluded from assailing the warrantless search and seizure when they voluntarily submitted to it as shown by their actuation during the search and seizure. The appellants never protested when SPO3 Jesus Faller, after identifying himself as a police officer, opened the tin can loaded in the appellants' vehicle and found eight (8) bundles. And when Faller opened one of the bundles, it smelled of marijuana. The NBI later confirmed the eight (8) bundles to be positive for marijuana. Again, the appellants did not raise any protest when they, together with their cargo of drugs and their vehicle, were brought to the police station for investigation and subsequent prosecution. We have ruled in a long line of cases that:
"When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631). The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly."
The appellants effectively waived their constitutional right against the search and seizure in question by their voluntary submission to the jurisdiction of the trial court, when they entered a plea of not guilty upon arraignment and by participating in the trial. (People v. Correa; GR 119246, Jan. 30, ’98)
WHEN USE OF MOTOR VEHICLE
IN DRUG CASES OR ANY OTHER
CASE IS NOT AGGRAVATING
Simply stated, the motor vehicle which was used to transport prohibited drugs was not purposely sought to facilitate the commission of the crime since such act of transporting constitutes the crime itself, punishable under Section 4, Article II of Republic Act No. 6425, as amended. That a motor vehicle was used in committing the crime is merely incidental to the act of transporting prohibited drugs. The use of a motor vehicle is inherent in the crime of transporting as it must of necessity accompany the commission thereof; hence, such use is not an aggravating circumstance. (People v. Correa)
CASES WHEN WARRANTLESS SEARCH IS ALLOWED
1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence;
2. Seizure of evidence in "plain view," the elements of which are:
(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right to be
where they are;
(c) the evidence must be immediately apparent, and
(d) "plain view" justified mere seizure of evidence without further search;
3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and Emergency Circumstances.
(People v. Menguin; GR 120915, Apr. 13, ’98)
CASES WHEN SEARCH WITHOUT
A WARRANT WAS VALID
In People v. Tangliben, acting on information supplied by informers, police officers conducted a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red travelling bag who was acting suspiciously. They confronted him and requested him to open his bag but he refused. He acceded later on when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of Tangliben on the night of his arrest.
In instant case, the apprehending officers already had prior knowledge from their informant regarding Aruta's alleged activities. In Tangliben policemen were confronted with an on-the-spot tip. Moreover, the policemen knew that the Victory Liner compound is being used by drug traffickers as their "business address". More significantly, Tangliben was acting suspiciously. His actuations and surrounding circumstances led the policemen to reasonably suspect that Tangliben is committing a crime. In instant case, there is no single indication that Aruta was acting suspiciously.
In People v. Malmstedt, the Narcom agents received reports that vehicles coming from Sagada were transporting marijuana. They likewise received information that a Caucasian coming from Sagada had prohibited drugs on his person. There was no reasonable time to obtain a search warrant, especially since the identity of the suspect could not be readily ascertained. His actuations also aroused the suspicion of the officers conducting the operation. The Court held that in light of such circumstances, to deprive the agents of the ability and facility to act promptly, including a search without a warrant, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.
Note, however, the glaring differences of Malmstedt to the instant case. In present case, the police officers had reasonable time within which to secure a search warrant. Second, Aruta's identity was priorly ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched aboard a moving vehicle, a legally accepted exception to the warrant requirement. Aruta, on the other hand, was searched while about to cross a street.
In People v. Bagista, the NARCOM officers had probable cause to stop and search all vehicles coming from the north to Acop, Tublay, Benguet in view of the confidential information they received from their regular informant that a woman having the same appearance as that of accused-appellant would be bringing marijuana from up north. They likewise had probable cause to search accused-appellant's belongings since she fitted the description given by the NARCOM informant. Since there was a valid warrantless search by the NARCOM agents, any evidence obtained in the course of said search is admissible against accused-appellant. Again, this case differs from Aruta as this involves a search of a moving vehicle plus the fact that the police officers erected a checkpoint. Both are exceptions to the requirements of a search warrant.
In Manalili v. Court of Appeals and People, the policemen conducted a surveillance in an area of the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching the place, they chanced upon a man in front of the cemetery who appeared to be "high" on drugs. He was observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be trying to avoid the policemen. When approached and asked what he was holding in his hands, he tried to resist. When he showed his wallet, it contained marijuana. The Court held that the policemen had sufficient reason to accost accused-appellant to determine if he was actually "high" on drugs due to his suspicious actuations, coupled with the fact that based on information, this area was a haven for drug addicts.
This case is similar to People v. Aminnudin where the police received information two days before the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9. His name was known, the vehicle was identified and the date of arrival was certain. From the information they had received, the police could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin. When the case was brought before this Court, the arrest was held to be illegal; hence any item seized from Aminnudin could not be used against him.
Another recent case is People v. Encinada where the police likewise received confidential information the day before at 4:00 in the afternoon from their informant that Encinada would be bringing in marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the following day. This intelligence information regarding the culprit's identity, the particular crime he allegedly committed and his exact whereabouts could have been a basis of probable cause for the lawmen to secure a warrant. This Court held that in accordance with Administrative Circular No. 13 and Circular No. 19, series of 1987, the lawmen could have applied for a warrant even after court hours. The failure or neglect to secure one cannot serve as an excuse for violating Encinada's constitutional right.
People v. Solayao, applied the stop and frisk principle which has been adopted in Posadas v. Court of Appeals. In said case, Solayao attempted to flee when he and his companions were accosted by government agents. In the instant case, there was no observable manifestation that could have aroused the suspicion of the NARCOM agents as to cause them to "stop and frisk" accused-appellant. To reiterate, accused-appellant was merely crossing the street when apprehended. Unlike in the abovementioned cases, accused-appellant never attempted to flee from the NARCOM agents when the latter identified themselves as such. Clearly, this is another indication of the paucity of probable cause that would sufficiently provoke a suspicion that accused-appellant was committing a crime.
This Court cannot agree with the Solicitor General's contention for the Malasugui case is inapplicable to the instant case. In said case, there was probable cause for the warrantless arrest thereby making the warrantless search effected immediately thereafter equally lawful. On the contrary, the most essential element of probable cause, as expounded above in detail, is wanting in the instant case making the warrantless arrest unjustified and illegal. Accordingly, the search which accompanied the warrantless arrest was likewise unjustified and illegal. Thus, all the articles seized from the accused-appellant could not be used as evidence against her. (People v. Menguin)
WHEN SEARCH IS NOT VALID
Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit one nor had she just committed a crime. Accused-appellant was merely crossing the street and was not acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and conclude that she was committing a crime. It was only when the informant pointed to accused-appellant and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. The NARCOM agents would not have apprehended accused-appellant were it not for the furtive finger of the informant because, as clearly illustrated by the evidence on record, there was no reason whatsoever for them to suspect that accused-appellant was committing a crime, except for the pointing finger of the informant. This the Court could neither sanction nor tolerate as it is a clear violation of the constitutional guarantee against unreasonable search and seizure. Neither was there any semblance of any compliance with the rigid requirements of probable cause and warrantless arrests.
Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of accused-appellant's bag, there being no probable cause and the accused-appellant not having been lawfully arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that the subsequent search was similarly illegal, it being not incidental to a lawful arrest. The constitutional guarantee against unreasonable search and seizure must perforce operate in favor of accused-appellant. As such, the articles seized could not be used as evidence against accused-appellant for these are "fruits of a poisoned tree" and, therefore, must be rejected, pursuant to Article III, Sec. 3(2) of the Constitution. (People v. Menguin)
WHEN VOLUNTARY SUBMISSION
TO SEARCH IS INAPPLICABLE
Aside from the inapplicability of the abovecited case, the act of herein accused-appellant in handing over her bag to the NARCOM agents could not be construed as voluntary submission or an implied acquiescence to the unreasonable search. The instant case is similar to People v. Encinada. (People v. Menguin)
WHEN SEARCH IS NOT
ALLOWED AFTER
AN ARREST IS MADE
In the case of People v. Lua, this Court held:
"As regards the brick of marijuana found inside the appellant's house, the trial court correctly ignored it apparently in view of its inadmissibility. While initially the arrest as well as the body search was lawful, the warrantless search made inside the appellant's house became unlawful since the police operatives were not armed with a search warrant. Such search cannot fall under "search made incidental to a lawful arrest," the same being limited to body search and to that point within reach or control of the person arrested, or that which may furnish him with the means of committing violence or of escaping. In the case at bar, appellant was admittedly outside his house when he was arrested. Hence, it can hardly be said that the inner portion of his house was within his reach or control.
(Espano v. C.A.; GR 120431, April 1, ’98)
MEANING OF “TO TRANSPORT”
IN DRUG CASES
In People vs. Lo Ho Wing, the Court defined the term "transport", as used under the Dangerous Drugs Act to mean "to carry or convey from one place to another" , the operative words being "to carry or to convey". The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed. It is immaterial whether or not the place of destination was reached. (People v. Latura)
WHEN POLICE OFFICERS INTENTIONALLY PEEPED THRU A WINDOW THEN WENT INSIDE AND ARRESTED THOSE INSIDE WHO ARE PACKING MARIJUANA. THE SAME IS ILLEGAL
The police officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing.
On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained. After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained during the illegal search cannot be used against accused-appellants; hence, their acquittal must follow in faithful obeisance to the fundamental law. (PP -vs- ZENAIDA BOLASA Y NAKOBOAN, ET AL., G.R. No. 125754, Dec. 22, 1999)
SEARCH AND SEIZURE WITHOUT THE REQUISITE JUDICIAL WARRANT IS ILLEGAL AND VOID AB INITIO
As a general rule, the procurement of a search warrant is required before law enforcer may validly search or seize the person, house, papers or effects of any individual. In People v. Valdez, the court ruled that search and seizure conducted without the requisite judicial warrant is illegal and void ab initio.
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“Lawmen cannot be allowed to violate the very law they are expected to enforce.” The Court is not unmindful of the difficulties of law enforcement agencies in suppressing the illegal traffic of dangerous drugs. However, quick solutions of crimes and apprehension of malefactors do not justify a callous disregard of the Bill of Rights”. We need not underscore that the protection against illegal search and seizures is constitutionally mandated and only under specific instances are seizures allowed without warrants.
In this case, the prosecution’s evidence clearly established that the police conducted a search of accused’s backyard garden without warrant; they had sufficient time to obtain a search warrant; they failed to secure one. There was no showing of urgency or necessity for the warrantless search, or the immediate seizure of the marijuana plants. (People vs. Alberto Pasudag)
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