ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT

(RA 9262, March 8, 2004)

I. PURPOSE (Sec. 2)

It is hereby declared that the State values the dignity of women and children and guarantees full respect for human rights

To protect the family and its members particularly women and children, from violence and threats to their personal safety and security

II. DEFINITION OF TERMS (Sec. 3)

VIOLENCE AGAINST WOMEN AND THEIR CHILDREN – any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:

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MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT OF 1995

(RA 8042)

I. PURPOSE

To institute the policies of overseas employment and establish a higher standard of protection and promotion of the welfare of migrant workers, their families and overseas Filipinos in distress, and for other purposes

II. DEFINITION OF TERMS (Sec. 3)

MIGRANT WORKER – a person who is to be engaged, is engaged or has been engaged in a renumerated activity in a state of which he or she is not a legal resident to be used interchangeably with overseas Filipino worker

OVERSEAS FILIPINOS – refers to dependents of migrant workers and other Filipino nationals abroad who are in distress

III. ILLEGAL RECRUITMENT (II)

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HUMAN SECURITY ACT

(RA 9372)

I. PURPOSE (Sec. 2)

To protect life, liberty, and property from acts of terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against the law of nations

II. ACTS PUNISHED

A. TERRORISM (Sec. 3)

Any person who commits an act punishable under any of the following provisions of the Revised Penal Code:

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Primer on Bouncing Checks Law

BP 22, April 3, 1979

I.HOW VIOLATED

A.DRAWING CHECK WITHOUT SUFFICIENT FUNDS (Sec. 1)

1. A person makes or draws and issues any check
2. The check is made or drawn and issued to apply on account or for value
3. The person who makes or draws and issues the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment
4. The check is subsequently dishonoured by the drawee bank for insufficiency of funds or credit, or would have been dishonoured for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment

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Primer on Obstruction of Justice

PD 1829, Jan. 16, 1981

I.PURPOSE

To discourage public indifference or apathy towards the apprehension and prosecution of criminal offenders


II.ACTS PUNISHED (Sec. 1)

Any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts:

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Primer on Anti-Graft and Corrupt Practices Act

RA 3019, Aug. 17, 1960

I.PURPOSE (Sec. 1)

In line with the principle that a public office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto.


II.DEFINITION OF TERMS (Sec. 2)

GOVERNMENT – includes the national government, the local governments, the government-owned and –controlled corporations, and all other instrumentalities or agencies of the Republic of the Philippines and their branches

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Santiago vs. Sandiganbayan

G.R. No. 128055, April 18, 2001

• Power of Sandiganbayan to suspend members of Congress vis-a-vis Congress' prerogative to discipline its own members: the former is not punitive, the latter is

FACTS:

A group of employees of the Commission of Immigration and Deportation (CID) filed a complaint for violation of Anti-Graft and Corrupt Practices Act against then CID Commissioner Miriam Defensor-Santiago. It was alleged that petitioner, with evident bad faith and manifest partiality in the exercise of her official functions, approved the application for legalization of the stay of several disqualified aliens. The Sandiganbayan then issued an order for her suspension effective for 90 days.

ISSUE:

• Whether or not the Sandiganbayan has authority to decree a 90-day preventive suspension against a Senator of the Republic of the Philippines

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JUVENILE JUSTICE AND WELFARE ACT OF 2006 Primer

(RA 9344)

I. PURPOSE (Sec. 2)

1. The State recognizes the vital role of children and youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.
2. The State shall protect the best interests of the child through measures that will ensure the observance of international standards of child protection, especially those to which the Philippines is a party. Proceedings before any authority shall be conducted in the best interest of the child and in a manner which allows the child to participate and to express himself/herself freely. The participation of children in the program and policy formulation and implementation related to juvenile justice and welfare shall be ensured by the concerned government agency.
3. The State likewise recognizes the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty and exploitation, and other conditions prejudicial to their development.
4. Pursuant to Article 40 of the United Nations Convention on the Rights of the Child, the State recognizes the right of every child alleged as, accused of, adjudged, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, taking into account the child's age and desirability of promoting his/her reintegration. Whenever appropriate and desirable, the State shall adopt measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. It shall ensure that children are dealt with in a manner appropriate to their well-being by providing for, among others, a variety of disposition measures such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programs and other alternatives to institutional care.
5. The administration of the juvenile justice and welfare system shall take into consideration the cultural and religious perspectives of the Filipino people, particularly the indigenous peoples and the Muslims, consistent with the protection of the rights of children belonging to these communities.
6. The State shall apply the principles of restorative justice in all its laws, policies and programs applicable to children in conflict with the law.

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ANTI-SEXUAL HARASSMENT ACT OF 1995 Primer

(RA 7877)

I. PURPOSE (Sec. 2)

The State shall value the dignity of every individual, enhance the development of it human resources, guarantee full respect for human rights, and uphold the dignity of workers, employees, applicants for employment, students or those undergoing training, instruction or education. Towards this end, all forms of sexual harassment in the employment, education or training environment are hereby declared unlawful.

II. SEXUAL HARASSMENT, DEFINED (Sec. 3)

Work, education or training-related sexual harassment is committed by an 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

III. HOW COMMITTED

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ANTI-MONEY LAUNDERING ACT Primer

(RA 9160, Sept. 29, 2001)

I. PURPOSE (Sec. 2)

To protect and preserve the integrity and confidentiality of bank accounts and to ensure that the Philippines shall not be used as a money laundering site for the proceeds of any unlawful activity

II. DEFINITIONS (Sec. 3)

COVERED INSTITUTIONS:

1. Banks, non-banks, quasi-banks, trust entities, and all other institutions and their subsidiaries and affiliates supervised or regulated by the BSP
2. Insurance companies and all other institutions supervised or regulated by the Insurance Commission; and
3. (i) securities dealers, brokers, salesmen, investment houses and other similar entities managing securities or rendering services as investment agent, advisor, or consultant, (ii) mutual funds, close and investment companies, common trust funds, pre-need companies and other similar entities, (iii) foreign exchange corporations, money changers, money payment, remittance, and transfer companies and other similar entities, and (iv) other entities administering or otherwise dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property supervised or regulated by Securities and Exchange Commission

COVERED TRANSACTIONS – a single, series, or combination of transactions involving a total amount in excess of 500,000 pesos or an equivalent amount in foreign currency based on the prevailing exchange rate within 5 consecutive banking days EXCEPT those between a covered institution and a person who, at the time of the transaction, was a properly identified client and the amount is commensurate with the business or financial capacity of the client; or those with an underlying legal or trade obligation, purpose, origin or economic justification

A single, series or combination or pattern of unusually large and complex transactions in excess of 500,000 pesos especially cash deposits and investments having no credible purpose or origin, underlying trade obligation or contract

TRANSACTION – any act establishing any right or obligation or giving rise to any contractual or legal relationship between the parties thereto; includes any movement of funds by any means with a covered institution

UNLAWFUL ACTIVITY:

1. Kidnapping for ransom
2. Secs. 3, 4, 5, 6, 7 and 9, Art. II of the Dangerous Drugs Act
3. Sec. 3, pars. B, C, E, G, H, and I of Anti-Graft and Corrupt Practices Act
4. Plunder
5. Robbery and extortion
6. Jueteng and Masiao as illegal gambling
7. Piracy on the high seas
8. Qualified theft
9. Swindling
10. Smuggling
11. Violations of the Electronic Commerce Act of 2000
12. Hijacking and other violations under RA 6235, destructive arson and murder, including those perpetrated by terrorists against non-combatant persons and similar targets
13. Fraudulent practices and other violations of the Securities Regulation Code of 2000
14. Felonies or offenses of a similar nature that are punishable under the penal laws of other countries

III. ACTS PUNISHED

A. MONEY LAUNDERING (Sec. 4)
A crime whereby the proceeds of an unlawful activity are transacted, thereby making them appear to have originated from legitimate sources, by:

1. Any person knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property
2. Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering
3. Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC), fails to do so

B. FAILURE TO KEEP RECORDS (Sec. 9(b))

C. MALICIOUS REPORTING (Sec. 14(c))

Any person who, with malice, or in bad faith, reports or files a completely unwarranted or false information relative to money laundering transaction against any person; probation not allowed

Any public official or employee who is called upon to testify and refuses to do the same or purposely fails to testify

D. BREACH OF CONFIDENTIALITY (Sec. 14(d))

IV. JURISDICTION (Sec. 5)

RTC – ordinary persons

Sandiganbayan – offenders who are public officers

V. PREVENTION OF MONEY LAUNDERING (Sec. 9)

Covered institutions are required to:

A. CUSTOMER IDENTIFICATION

Establish and record the true identity of its clients based on official documents

B. RECORD KEEPING

Maintain and safely store all records of all transactions for 5 years from the date of transactions. With respect to closed accounts, the records on customer identification, account files and business correspondence, shall be preserved and safely stored for at least 5 years from the dates when they were closed

C. REPORTING OF COVERED TRANSACTIONS

Report to the AMLC all covered transactions within 5 working days from occurrence thereof, unless the Supervising Authority concerned prescribes a longer period not exceeding 10 working days

VI. AUTHORITY TO FREEZE (Sec. 10)

A. FREEZE ORDER:

Upon determination of probable cause that any deposit or similar account is in any way related to an unlawful activity, AMLC may issue a freeze order, which shall be effective immediately, on the account for a period not exceeding 15 days (extendible upon order of court, tolled pending decision)

B. NOTICE TO DEPOSITOR:

Depositor shall be notified simultaneously with the issuance of freeze order and he has 72 hours upon receipt of notice to explain why the freeze order should be lifted

C. AMLC has 72 hours to dispose of the depositor’s explanation (automatically dissolve the freeze order)

D. TRO or writ of injunction not allowed to issue against any freeze order, EXCEPT CA or SC

VII. AUTHORITY TO INQUIRE INTO BANK DEPOSITS (Sec. 11)

Exception to Secrecy of Bank Deposits Act (RA 1405), RA 6426 and RA 8791 and other laws

AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense

VIII. FORFEITURE (Sec. 12)

A. CIVIL FORFEITURE

When there is a covered transaction report made, and the court has, in a petition filed for the purpose ordered seizure of any monetary instrument or property, in whole or in part, directly or indirectly, related to said report, the Revised Rules of Court on civil forfeiture shall apply

B. CLAIM ON FORFEITED ASSETS

The offender or any other person claiming an interest in forfeited monetary instrument or property may apply, by verified petition, for a declaration that the same legitimately belongs to him and for segregation or exclusion of the monetary instrument or property corresponding thereto (within 15 days from date of order of forfeiture)

C. PAYMENT IN LIEU OF FORFEITURE

Instead of enforcing the forfeiture order, the court may order the convicted offender to pay an amount equal to the value of said monetary instrument or property, if:

1. Any particular monetary instrument or property cannot, with due diligence, be located
2. It has been substantially altered, destroyed, diminished in value or otherwise rendered worthless by any act or omission, directly or indirectly, attributable to the offender
3. It has been concealed, removed, converted or otherwise transferred to prevent the same from being found or to avoid forfeiture thereof
4. It is located outside the Philippines or has been placed or brought outside the jurisdiction of the court
5. It has been commingled with other monetary instruments or property belonging to either the offender himself or a third person or entity, thereby rendering the same difficult to identify or be segregated for purposes of forfeiture

IX. PROHIBITIONS AGAINST POLITICAL HARASSMENT (Sec. 16)

No case for money laundering may be filed against and no assets shall be frozen, attached or forfeited to the prejudice of a candidate for an electoral office during an election office

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Primer on Anti-Trafficking in Persons Act of 2003

RA 9208, May 26, 2003

I. PURPOSE (Sec. 2)

To recognize the equal rights and inherent human dignity of women and men as enshrined in the United Nations Universal Declaration on Human Rights, United Nations Convention on the Rights of the Child, United Nations Convention on the Protection of Migrant Workers and their Families. United Nations Convention Against Transnational Organized Crime Including its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and all other relevant and universally accepted human rights instruments and other international conventions to which the Philippines is a signatory

II. DEFINITION OF TERMS (Sec. 3)

TRAFFICKING IN PERSONS - refers to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim's consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs.

The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall also be considered as "trafficking in persons" even if it does not involve any of the means set forth in the preceding paragraph.

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Primer on Anti-Plunder Law

Anti-Plunder Law (RA 7080)

I. DEFINITION OF TERMS (Sec. 1)

ILL-GOTTEN WEALTH - Any asset, property, business enterprise or material possession of any person within the purview of Section 2 hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes...

II. ACTS PUNISHED

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Anti-Fencing Law Primer

PD 1612, March 2, 1979

I. PURPOSE

To impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft.

II. DEFINITION OF TERMS (Sec. 2)

FENCING – the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft

FENCE – includes any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing

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Probation Law Primer

PD 968, as amended by PD 1257, BP 76 and PD 1990

PROBATION – a disposition under which a defendant, after conviction and sentence, is released, subject to the conditions imposed by the court and to the supervision of a probation officer

I. PURPOSE

• Promote the correction and rehabilitation of an offender by providing him with individualized treatment;
• Provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and
• Prevent the commission of offenses.

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Indeterminate Sentence Law Primer

RA No. 4103, Dec. 5, 1933

- Instead of imposing a “straight” penalty, the court must determine two penalties (maximum and minimum)

I. PURPOSE

To uplift and redeem valuable human material, and prevent unnecessary and excessive deprivation of liberty and economic usefulness. Penalties shall not be standardized but fitted as far as is possible to the individual, with due regard to the imperative necessity of protecting the social order (People v. Ducosin, 59 Phil 109).

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People v. Perfecto

G.R. No. L-18463, October 4, 1922

• "The important question is here squarely presented of whether article 256 of the Spanish Penal Code, punishing "Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other person in authority . . .," is still in force."
• public law: It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated -- "political" being used to denominate the laws regulating the relations sustained by the inhabitants to the sovereign.

FACTS:

This is a case relating to the loss of some documents which constituted the records of testimony given by witnesses in the Senate investigation of oil companies. The newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article about it to the effect that "the author or authors of the robbery of the records from the iron safe of the Senate have, perhaps, but followed the example of certain Senators who secured their election through fraud and robbery."

Consequently, the Attorney-General, through a resolution adopted by the Philippine Senate, filed an information alleging that the editorial constituted a violation of article 256 of the Penal Code.

The defendant Gregorio Perfecto was found guilty in the municipal court and again in the Court of First Instance of Manila.

ISSUEs:

• Whether or not article 256 of the Spanish Penal Code was abrogated with the change from Spanish to American sovereignty
• Whether or not Perfecto is guilty of libel

HELD:

It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated -- "political" being used to denominate the laws regulating the relations sustained by the inhabitants to the sovereign.

On American occupation of the Philippines, by instructions of the President to the Military Commander, and by proclamation of the latter, the municipal laws of the conquered territory affecting private rights of person and property and providing for the punishment of crime (e.g. the Spanish Penal Code) were nominally continued in force in so far as they were compatible with the new order of things.

Article 256 was enacted by the Government of Spain to protect Spanish officials who were the representatives of the King. But with the change of sovereignty, a new government, and a new theory of government, was set up in the Philippines. No longer is there a Minister of the Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath. Said article is contrary to the genius and fundamental principles of the American character and system of
government. It was crowded out by implication as soon as the United States established its authority in the Philippine Islands.

"From an entirely different point of view, it must be noted that this article punishes contempts against executive officials, although its terms are broad enough to cover the entire official class. Punishment for contempt of non-judicial officers has no place in a government based upon American principles. Our official class is not, as in monarchies, an agent of some authority greater than the people but it is an agent and servant of the people themselves. These officials are only entitled to respect and obedience when they are acting within the scope of their authority and jurisdiction. The American system of government is calculated to enforce respect and obedience where such respect and obedience is due, but never does it place around the individual who happens to occupy an official position by mandate of the people any official halo, which calls for drastic punishment for contemptuous remarks."

DECISION:

To summarize, the result is, that all the members of the court are of the opinion, although for different reasons, that the judgment should be reversed and the defendant and appellant acquitted, with costs de officio. So ordered.

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People vs. Stephen Cadley y Ciano

G.R. No. 150735, March 15, 2004

• W/N the appointment of a new judge, who has not personally heard any of the witnesses presented and, therefore, had no opportunity to observe their demeanor vis-a-vis the truthfulness of their versions, would render the assailed decision infirm
• W/N the alleged illegality of the buy-bust operation would entitle the accused to immediate release
• W/N the invalidity of a warrantless arrest would affect the validity of the crime imputed
• W/N unlawfulness of detention (violation of Art. 125, RPC) would invalidate the crime imputed

FACTS:

In May 2000, the PNP Narcotics Group received information from a female civilian informant that a certain "Steve" was a supplier of marijuana. Surveillance and intelligence investigation was thus conducted, after which, on June 10, 2000, a buy-bust operation was conducted wherein Steve Cadley y Ciano was arrested for having violated Art. II, R.A. No. 6425 (Dangerous Drugs Act).

The judge who originally heard the case was replaced by a newly appointed judge who rendered decision, finding accused guilty beyond reasonable doubt.

Ciano appealed and hence this case.

ISSUE/S:

• W/N the appointment of a new judge, who has not personally heard any of the witnesses presented and, therefore, had no opportunity to observe their demeanor vis-a-vis the truthfulness of their versions, would render the assailed decision infirm
• W/N the alleged illegality of the buy-bust operation would entitle the accused to immediate release
• W/N the invalidity of a warrantless arrest would affect the validity of the crime imputed
• W/N unlawfulness of detention (violation of Art. 125, RPC) would invalidate the crime imputed

HELD:

First Issue: Compentency of Judge's Authority

That a judge did not hear a case does not necessarily render him less competent in assessng the credibility of witnesses. He can rely on the transcripts of stenographic notes of their testimony and calibrate them in accordance with their conformity to common experience, knowledge and observation of ordinary men.

Second Issue: Illegality of Buy-bust Operation

A prior surveillance is not a prerequisite for the validity of an entrapment or buy-bust operation. Neither is the fact that no money changed hands a critical factor that affects the outcome of the case at bar. Moreover, Art. II, R.A. No. 6425 punishes not only the sale but also the mere act of delivery of prohibited drugs.

As for the alleged inconsistencies in the testimonies of PO2 Lopez and SPO4 Jamisolamin, the same are minor and do not detract from the veracity and weight of the salient points thereof. What is important is that the testimonies are supported by physical evidence.

Neither is it improbable for appellant (Ciano) to deal in drugs openly in a public place to persons he hardly knew, for drug dealers are known to sell their goods even to strangers. In the case at bar, the presentation of teh confidential informant, whose identity must be hidden to preserve his invaluable service to the police, the sale having been adequately proven by prosecution witnesses.

If the only reason appellant was brought to the police station was, as he claims, to extort money, why did he fail to file charges -- administrative or criminal -- against the policemen, especially in the light of the fact that his uncle who came to his rescue is a military sergeant and, therefore, ought to have been aware and knowledgeable of appellant's rights in the premises.

Third Issue: Invalidity of the Warrantless Arrest

Finally, appellant's challenge on his warrantless arrest fails. When an accused is apprehended in flagrante delicto, under sec. 5, rule 113, paragraphs (a) and (b) of the 1985 Rules on Criminal Procedure, as a result of a buy-bust operation, as in appellant's case, the police are not only authorized but duty-bound to arest him even without a warrant.

Fourth Issue: Unlawful Detainer

While a public officer who thus detains a person beyond the legal period (provided under Art. 125, RPC) may be held criminally liable, the proceeding taken against him for the act he has committed remains unaffected, for the two acts are distinct and separate.

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People vs. Bayya

G.R. No. 127845, March 10, 2000

FACTS:

Some time in 1994, when victim was still 12 years old, her father, the accused, forced her at the point of a knife to have sexual intercourse with him. He repeated the bestial act in their house about twice a week afterwards, and then later used her four (4) times a month, the last she remembered being on July 5, 1995.

During the trial, appellant unhesitatingly admitted having carnal knowledge of his daughter twice but theorized that he was "out of his mind" when he committed the incestous rape. In view of the facts established, the trial court rendered judgment of conviction, sentencing appellant to suffer the ultimate penalty of death.

Upon appeal, appellant questioned thepenalty imposed under R.A. 7659, considering that the Information filed against him was silent about the applicability of the same. He alleged denial of his constitutional right to be informed of the nature and cause of the accusation against him.

ISSUE:

Whether or not there was a transgression of appellant's right to be informed of the nature and cause of accusation against him

HELD:

A careful perusal of the Information indicting the appellant reveals a crucial omission in its averments of the minority of the victim. The objectives of the defendant's right to be informed are: (1) to furnish the accused with such a description of the charge against him as will enable him to make the defense; (2) to avail himself of his conviction or acquittal for protection against further prosecution for the same cause; and (3) to inform the court of the facts alleged, so that it may decide whether the are sufficient in law to support a conviction, if one should be had.

The Information does not allege the minority of the victim although the same was proven during trial as borne by the records. It matters not how conclusive and convincing evidence of guilt may be, but an accused cannot be convicted of any offense not charged in the Complaint or Information on which he is tried or therein necessarily included.

The Information charges nothing more than simple rape as absent are the special qualifying circumstances of relationship and minority which had the capacity of increasing the penalty by degrees.

"WHEREFORE, the judgment of conviction under review is AFFIRMED with the MODIFICATION that appelant LODRIGO BAYYA is adjudged guilty of simple rape and is sentenced to suffer the penalty of reclusion perpetua...."

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Tirol vs. Commission on Audit

G.R. No. 133954, Aug. 3, 2000

FACTS:

During petitioner's capacity as the DECS Regional Director of Region VIII, he and some officials of the Lalawigan National High School in Eastern Samar entered into a contract with Fairchild Marketing and Construction in the total amount of P80,000.

Upon filing of complaint by the Teachers and Employees Union, COA investigated the transaction and found that there was malversation of public funds. Instead of a competitive public bidding, the purchase of certain supplies and equipment was done through a negotiated contract, which resulted in an overprice of P35,100.

Petitioner's main allegation is that the Requisition and Issue Voucher (RIV) and check were previously reviewed by his subordinates before he approved and signed them. Said act, therefore, only constitutes a ministerial act on his part.

But the Office of the Ombudsman-Visayas rejected petitioner's defense because had he carefully scrutinized the documents he would have discovered that the purchases were made without competitive public bidding. Moreover, the magnitude of the amount involved would prevent a reasonable mind from accepting the claim that petitioner was merely careless or negligent in the performance of his functions.

Accordingly, it was recommended that petitioner and co-petitioners be indicted for violation of Sec. 3 (g) of R.A. No. 3019, as amended for entering into a contract or transaction manifestly and grossly disadvantageous to the Government. An information was subsequently filed with the Sandiganbayan, charging the petitioner and two others with the aforementioned offense.

Petitioner filed a Motion for Reconsideration of the Ombudsman's ruling but the Motion was dismissed, prompting petitioner to file the instant petition, seeking reversal of the Ombudsman's assailed Resolution and Order.

Petitioner alleged that (1) his participation was limited to signing of the RIV and the check as a matter of routine; (2) that the RIV did not involve the determination of the price of the supplies and equipment; (3) that the signing of the check was authority vested in him as the DECS Regional Director; and (4) that the presumption of regularity in the performance of public functions by public officers should apply in his favor.

Petitioner cited the cases of Arias v. Sandiganbayan and Magsuci v. Sandiganbayan where the Court held that heads of office may rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations.

In his comment, the Solicitor General contends that there was a conspiracy of silence and inaction and because of that petitioner was guilty of negligence. He further asserverates that it is beyond the ambit of the Court's authority to review the power of the Ombudsman in prosecuting and dismissing a complaint filed before it.

In his Reply, petitioner states that the petition does not involve a review of the factual finding of the Ombudsman but rather its conclusion based on undisputed facts.

ISSUES:

(1) Whether or not the issue is a question of law, and may therefore, be reviewed by the Supreme Court
(2) Whether or not the defense of good faith and regularity of performance of duty may be raised by the accused
(3) Whether or not there is conspiracy as would warrant conviction of the accused

HELD:

From the pleadings, it is clear that the questions raised by the petitioner are questions of fact rather than of law. What petitioner wants to happen is for the Supreme Court to review the evidence and determine whether in fact he acted in good faith and that no conspiracy existed among the accused.

The rulings in Arias and Magasuci are inapplicable to petitioner because the petitioners in the said cases were indicted and submitted themselves to trial before the Sandiganbayan, which convicted them for the offense charged. In Arias, the Court set aside the judgment against the petitioner becasue there was no evidence that the Government suffered undue injury. And in Magsuci, the reversal by the Court of the judgment of conviction was based on a finding that Magsuci acted in good faith and that there has been no intimation at all that he had foreknowledge of any irregularity committed by either or both Engr. Enriquez and Acia.

In both Arias and Magsuci, there was paucity of evidence on conspiracy, while in this case, there is only the claim of peitioner that he acted in good faith and that there was no conspiracy. The Ombudsman believes otherwise and the Court does not ordinarily interfere with the discretion of the said Office.

Moreover, this case is an appeal under Sec. 27 of the Ombudsman Act of 1989 in relation to Rule 45 of the 1997 Rules of Civil Procedure which has been declared unconstitutional in Fabian v. Desierto for increasing appellate jurisdiction of the Supreme Court without its advice and consent. Also, there is no right of appeal available since the Section mentions only appeals from all administrative disciplinary cases, orders, directives or decisions of the Ombudsman.

The Supreme Court also found that the petition was in fact a modified form of forum shopping as shown in the other case filed.

"WHEREFORE, the petition for certiorari in this case is hereby DENIED, and the Resolution of 20 March 1997 and Order of 5 March 1998 of the Office of the Ombudsman in OMB-Visayas-Crim-94-0836 are AFFIRMED."

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R.A. No. 8294 -- Illegal Possession of Firearm

Started with R.A. No. 54. The penalty was only arresto mayor. During his regime, Pres. Marcos ammended it by passing P.D. 1866.

The decree set the new penalty from arresto mayor to reclusion temporal in its maximum period (17 yrs. and 1 day - 20 yrs.) to reclusion perpetua (20 yrs. and 1 day - 40 yrs.). Furthermore, if the unlicensed firearm was used in the commission of the crime of murder or homicide, penalty is death.

The offender, however, could be tried for both crimes - Illegal Possession of Firearm and Murder/Homicide - and still it would not constitute double jeopardy. There was also no distinction made as to the caliber of the weapon. Whether it is .22, .35, .45, high-caliber or low-caliber, the penalty is the same RT max to RP.

Robin Padilla was sentenced to 17 yrs. and 1 day to 21 yrs. The Indeterminate Sentence Law did not apply so no possibility of parole. No probation either, and no mitigating circumstance, not even if the offender pleaded "guilty."

Q: If the firearm was licensed but the same is already expired?
A: It is the same as possessing an unlicensed firearm.

Q: How is a firearm obtained?
A: File an application at the Firearms and Explosives Office. If you are a member of the police force, you already have the "privilege" to carry a firearm. There are two separate licenses, one for the purpose of keeping a licensed firearm at home and one for carrying it outside. The order required for the latter is often termed as the "mission order."

Q: If your licensed firearm is only for home use and you are caught carrying it outside, are you liable under this law?
A: Yes, you're liable for carrying a firearm without authority.

Q: Can Illegal Possession of Firearms be complexed by Murder or Homicide?
A: In the case of People v. Barros, Justice Laurence Regalado said that under P.D. 1866, two kinds of crimes could be charged -- that of Illegal Possession of Firearm and Murder or Homicide. It would not constitute double jeopardy. However, if the law already punishes the act (Murder or Homicide) with death, the highest penalty under the law, it would be useless to punish the accused by another penalty for the other crime, which is Illegal Possession. The Supreme Court thus ruled, en banc, that there is only one crime - that of Murder or Homicide aggravated with the use of unlicensed firearm.

Later on, in a separate case of People v. Quijado, Justice Davide overturned Justice Regalado's ruling, by stating that the two crimes are under two separate laws. Murder or Homicide is governed by the Revised Penal Code while Illegal Possession is under Special Penal Laws. One crime cannot be absorbed into the other because the two are distinct and separate from each other. Besides, one is not barred from making two separate charges.

The issue became moot when Congress passed R.A. 8294.

Under the new law, several new distinctions were made, including the caliber of the weapon. For low-powered weapons, the penalty is only prision correccional (6 mos. and 1 day - 6 yrs.), which means that the offender can avail of the benefits of probation. If it is a high-powered gun, the measurement of the ring exceeds 9mm, the penalty is prision mayor (6 yrs. and 1 day - 12 yrs.).

Q: Are air rifles covered under this law?
A: There are air rifles that can be converted into .22 caliber rifles, in which case, it is covered under the law.

Q: Under the new law, are there still two separate crimes of Murder or Homicide and Illegal Possession?
A: No. R.A. No. 8294 provides that if the unlicensed firearm is used in the commission of any of the acts under the Revised Penal Code or special laws, possession is considered as an aggravated circumstance. The crime therefore is Murder or Homicide aggravated with the use of unlicensed firearm, and the penalty is death.

Q: The firearm is licensed but you are not the owner. Liable?
A: Yes, because the holder of the license is only the owner of the firearm.

Q: Security guards do not apply for license. Are they liable?
A: Not liable if the agency has a license. What the security guard holds, therefore, is not the actual license but an authority from the agency that he works for and that has a license. The rule is that these firearms are restricted to the designated posts of the guards. They could not be brought home. Otherwise, it would constitute a violation of the law. This is true even if the guard did not intend to bring home the gun. Under the Special Penal Laws, intention is immaterial.

Q: There are instances where the agency will only secure licenses for three guns and then go ahead and distribute six guns to six different guards, changing only the serial numbers of each gun to match the serial numbers in the licenses. Who is liable - the agency or the security gun?
A: A distinction must be made. If the security guard is aware that he is carrying an unlicensed firearm, then he can be charged with the crime. If not, the other two possible offenders are the owner of the company or the manager of the agency.

An employee is entitled to assume that his employer had the requisite license to possess the firearm.

Q: How many guns is a person allowed?
A: Usually two - one long caliber and one short. Long caliber weapons are usually just issued to the military.

Q: Who issues the license?
A: Only the President has the authority to issue a license, but his power is delegated to the Chief of the PNP. If your license was not issued by the PNP Chief, then that license is invalid.

NOTA BENE:

There is no such thing as a complex crime of Illegal Possession of Firearm with Homicide.

There is only one crime, but aggravated (Justice Regalado's ruling).

If you are a member of a gun club, the club will be the one who will process everything for you and you will only receive the gun.

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