Pre-week And Last Minute Lecture In Criminal Law (2019 Bar): Iii. Special Laws

PRE-WEEK AND LAST MINUTE LECTURE IN CRIMINAL LAW (2019 BAR) BY:

ATTY. SALVADOR N. MOYA II, LL.M.

III.

SPECIAL LAWS

ANTI-FENCING LAW OF 1979 (SECS. 2 AND 5, PD 1612) 1.Q.

What is fencing?

1.A. In Cahulogan vs. People (G.R. No. 225695, March 21, 2018)(Second Division) [Perlas-Bernabe, J.], the High Court said that: Section 2 of PD 1612 defines Fencing as 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.1 The same Section also states that a Fence includes any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing. 2 2.Q.

What are the essential elements of the crime of fencing?

2.A.

The essential elements of the crime of fencing are as follows:

(a)

a crime of robbery or theft has been committed;

(b) the accused, who is not a principal or an accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the crime of robbery or theft; (c) the accused knew or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and (d)

there is, on the part of one accused, intent to gain for oneself or for another. 3

Notably, Fencing is a malum prohibitum, and PD 1612 creates a prima facie presumption of Fencing from evidence of possession by the accused of any good, article, item, object or anything of value, which has been the subject of robbery or theft; and prescribes a higher penalty based on the value of the property. 4 3.Q. 3.A. 1612 read:

What is the proper penalty for the crime of fencing? Explain. Anent the proper penalty to be imposed pertinent portions of Section 3 of PD

SECTION 3. Penalties. – Any person guilty of fencing shall be punished as hereunder indicated: (a) The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter 1 2 3 4

See Section 2 (a) of PD 1612. See Section 2 (b) of PD 1612. Ong v. People, 708 Phil. 565, 571 (2013); citing Capili v. CA, 392 Phil. 577, 592 (2000). Ong v. People; id. at 574; citing Dizon-Pamintuan v. People, G.R. No. 111426, July 11, 1994, 234 SCRA 63, 72. See also Section 5 of PD 1612 which reads: Section 5. Presumption of Fencing. — Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.

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sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed. xxxx Notably, while the crime of Fencing is defined and penalized by a special penal law, the penalty provided therein is taken from the nomenclature in the Revised Penal Code (RPC). In Peralta v. People,5 the Supreme Court discussed the proper treatment of penalties found in special penal laws vis-a-vis Act No. 4103,6 otherwise known as the "Indeterminate Sentence Law, viz.: Meanwhile, Sec. 1 of Act No. 4103, otherwise known as the Indeterminate Sentence Law (ISL), provides that if the offense is ostensibly punished under a special law, the minimum and maximum prison term of the indeterminate sentence shall not be beyond what the special law prescribed. Be that as it may, the Court had clarified in the landmark ruling of People v. Simon that the situation is different where although the offense is defined in a special law, the penalty therefor is taken from the technical nomenclature in the RPC. Under such circumstance, the legal effects under the system of penalties native to the Code would also necessarily apply to the special law. 7 Otherwise stated, if the special penal law adopts the nomenclature of the penalties under the RPC, the ascertainment of the indeterminate sentence will be based on the rules applied for those crimes punishable under the RPC.8 At this point, the Court notes that as may be gleaned from its whereas clauses, PD 1612 was enacted in order to provide harsher penalties to those who would acquire properties which are proceeds of the crimes of Robbery or Theft, who prior to the enactment of said law, were punished merely as accessories after the fact of the said crimes. 9 This rationale was echoed in Dizon-Pamintuan v. People10 where the Court held that while a Fence may be prosecuted either as an accessory of Robbery/Theft or a principal for Fencing, there is a preference for the prosecution of the latter as it provides for harsher penalties: Before P.D. No. 1612, a fence could only be prosecuted for and held liable as an accessory, as the term is defined in Article 19 of the Revised Penal Code. The penalty applicable to an accessory is obviously light under the rules prescribed in Articles 53, 55, and 57 of the Revised Penal Code, subject to the qualification set forth in Article 60 thereof. Noting, however, the reports from law enforcement agencies that there is rampant robbery and thievery of government and private properties and that such robbery and thievery have become profitable on the part of the lawless elements because of the existence of ready buyers, commonly known as fence, of stolen properties, P.D. No. 1612 was enacted to impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft. 4.Q. Can the accessory in the crimes of robbery and theft be prosecuted either under the Revised Penal Code or P.D. No. 1612? What would be the effect if it will be prosecuted under P.D. No. 1612? 4.A. Yes. The accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the latter case, he ceases to be a mere accessory but becomes a principal in the crime of fencing. Elsewise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses.The state may thus choose to prosecute him either under the Revised Penal Code or P.D. No. 1612, although the preference for the latter would seem 5 6

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G.R. No. 221991, August 30, 2017 Entitled "AN ACT TO PROVIDE FOR AN INDETERMINATE SENTENCE AND PAROLE FOR ALL PERSONS CONVICTED OF CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE ISLANDS; TO CREATE A BOARD OF INDETERMINATE SENTENCE AND TO PROVIDE FUNDS THEREFOR, AND FOR OTHER PURPOSES" (December 5, 1933) See Peralta v. People, supra note 29; citing Quimvel v. People, G.R. No. 214497, April 18, 2017. See Peralta v. People, id.; citing Mabunot v. People, GR. No. 204659, September 19, 2016, 803 SCRA 349, 364. The whereas clauses of PD 1612 read: WHEREAS, reports from law enforcement agencies reveal that there is rampant robbery and thievery of government and private properties; WHEREAS, such robbery and thievery have become profitable on the part of the lawless elements because of the existence of ready buyers, commonly known as fence, of stolen properties; WHEREAS, under existing law, a fence can be prosecuted only as an accessory after the fact and punished lightly; WHEREAS, it is imperative to impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft. G.R. No. 111426, July 11, 1994, 234 SCRA 63, 72.

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inevitable considering that fencing is a malumprohibitum, and P.D. No. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property.11 5.Q. In view of the amendment of the RPC by R.A. No. 10951, fence, which is a mere accessory to the crime of Robbery/Theft, will be punished more severely than the principal of such latter crimes. What is the remedy thereto? 5.A. With the recent enactment of Republic Act No. 10951,12 which adjusted the values of the property and damage on which various penalties are based, taking into consideration the present value of money, as opposed to its archaic values when the RPC was enacted in 1932,13 the graduation of values in Article 309 was substantially amended, without any concomitant adjustment for PD 1612.This development would then result in instances where a Fence, which is theoretically a mere accessory to the crime of Robbery/Theft, will be punished more severely than the principal of such latter crimes. This incongruence in penalties therefore, impels an adjustment of penalties. Thus, in Cahulugan vs. People supra, the Supreme Court through Madam Justice Perlas-Bernabe said: However, while it may be the most expeditious approach, a short cut by judicial fiat is a dangerous proposition, lest the Court dare trespass on prohibited judicial legislation.14 As the Court remains mindful of the fact that the determination of penalties is a policy matter that belongs to the legislative branch of the government, it finds it prudent to instead, furnish both Houses of Congress, as well as the President of the Republic of the Philippines, through the Department of Justice, pursuant to Article 515 of the RPC, copies of this ruling in order to alert them on the aforestated incongruence of penalties, all with the hope of arriving at the proper solution to this predicament. ANTI-GRAFT AND CORRUPT PRACTICES ACT (SEC. 3, RA 3019, AS AMENDED) 6.Q.

What are the elements of the offense under Section 3(e) of RA 3019?

6.A.

In the following cases:

1. Cambe vs. Office of the Ombudsman (812 SCRA537, 6 December 2016)(En Banc)[Perlas-Bernabe, J.] 2. Bernabe, J.]

Reyes vs. Ombudsman (787 SCRA 354, 15 March 2016)(En Banc)[Perlas-

3. PCGG vs. Office of the Ombudsman (785 SCRA 55, 24 February 2016)(First Division)[Perlas-Bernabe, J.] 4. Bernabe, J.]

11 12

13 14 15

PDIC vs. Casimiro (769 SCRA 110, 2 September 2015)(First Division)[Perlas-

See Rivac v. People, G.R. No. 224673, January 22, 2018, supra note 22. Entitled "AN ACT ADJUSTING THE AMOUNT OR THE VALUE OF PROPERTY AND DAMAGE ON WHICH A PENALTY IS BASED, AND THE FINES IMPOSED UNDER THE REVISED PENAL CODE, AMENDING FOR THE PURPOSE ACT NO. 3815, OTHERWISE KNOWN AS 'THE REVISED PENAL CODE,' AS AMENDED" approved on August 29, 2017. See Rivac v. People, G.R. No. 224673 (22 January 2018). Corpuz v. People, 734 Phil. 353 (2014). Article 5 of the RPC reads: Article 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. - Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal legislation. In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.

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5. Garcia vs. Office of the Ombudsman16 (741 SCRA 172, 19 November 2014)(First Division)[Perlas-Bernabe, J.], it was held that: The elements of the offense are as follows: (1) with them;

that the accused are public officers or private persons charged in conspiracy

(2) that said public officers commit the prohibited acts during the performance of their official duties or in relation to their public positions; (3) that they caused undue injury to any party, whether the Government or a private party; (4) that such injury is caused by giving unwarranted benefits, advantage or preference to such parties; and (5) that the public officers have acted with manifest partiality, evident bad faith or gross inexcusable negligence.17 (Bustillo vs. People, 620 SCRA 483, 12 May 2010; See also Lumauig vs. People, 729 SCRA 191, 7 July 2014.) 7.Q.

What is the difference between manifest partiality and evident bad faith?

7.A. There is manifest partiality when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another. On the other hand, evident bad faith connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. It contemplates a state of mind affirmatively operating with furtive design or with some motive or self-interest or ill will or for ulterior purposes. 18 PROBLEM: Amalia Dimas is the sole proprietor of Triple A Ship Chandling and General Maritime Services in the Port of Iraga, a second class municipality in the province of Sampaga. By December 2018, she already completed all her requirements for the renewal of her business permit including all the clearances from the Barangay Chairman up to the Regional Office of the PNP, attesting that there is no pending criminal, civil or administrative case against her or her business enterprise. Despite all these compliance, the sitting Mayor Maximiano Monis of the Municipality of Iraga, refused and continue to refuse the renewal. Accordingly, the refusal of Mayor Monis was due to the information and humors he gathered that Dimas was engaged in illegal activities such as smuggling and drug trading. Upon receipt of the said information, Mayor Monis issued an unnumbered Memorandum addressed to port officials and the BOC. Monis maintained that if he went on with the approval of such permit and the rumors turned out to be true, many will suffer and will be victimized; on the other hand, if the rumors were false, then only one stands to suffer. However, similar Ship Chandlers operating in the Port of Iraga were issued Mayor’s permit by Mayor Monis, living Dimas as the only one who was denied. 8.Q.

What is the criminal liability of Mayor Monis, if there is any?

8.A. In the case of Fuentes vs. People (822 SCRA 509, 17 April 2017)(First Division)[Perlas-Bernabe, J.], a case with similar factual milieu with the problem, the High 16

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The elements of the crime of Violation of Section 3(e), RA 3019 are as follows: (a) the offender must be a public officer discharging administrative, judicial, or official functions; (b) he must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (c) his action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. (Lihaylihay vs. People, 702 SCRA 755, 31 July 2013.) Evangelista vs. People, 392 Phil. 449 (2000). Uriarte vs. People, 540 Phil. 474 (2006).

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Court ruled that: Mayor Monis is criminally liable for violation of Section 3 (e) of RA 3019. The upheld the conviction of the accused by the Sandiganbayan. In this case, Monis committed the acts not only with manifest partiality but also with bad faith. Monis, himself, averred that according to the rumors he heard, the ship chandlers operating in the Port of Iraga were allegedly involved in smuggling and drug trading. Yet, it was only Dimas’ chandling operations through Triple A that was refused issuance of a Business Permit. Record shows that he issued business permits to two (2) other chandling services operators in the said port. Under these questionable circumstances, Monis’ refusal to issue a Business Permit to Triple A was indeed committed with manifest partiality against the latter, and in favor of the other ship chandling operators in the Port of Iraga. PROBLEM: In the case of People vs. Go supra, respondent was indicted for violation of Section 3(g) of R.A. No. 3019 together with Secretary Arturo Enrile of the DOTC. Prior to the filing of the Information Secretary Enrile died. 9.Q. Can the respondent, a private person, be indicted for conspiracy in violating Section 3(g) of R.A. 3019 even if the public officer, with whom he was alleged to have conspired, has died prior to the filing of the case. 9.A. Yes. In the case of People vs. Go (719 SCRA 704, 25 March 2014)(En Banc) [Peralta, J.], it was held that: It is true that by reason of Secretary Enrile's death, there is no longer any public officer with whom respondent can be charged for violation of R.A. 3019. It does not mean, however, that the allegation of conspiracy between them can no longer be proved or that their alleged conspiracy is already expunged. The only thing extinguished by the death of Secretary Enrile is his criminal liability. His death did not extinguish the crime nor did it remove the basis of the charge of conspiracy between him and private respondent. Stated differently, the death of Secretary Enrile does not mean that there was no public officer who allegedly violated Section 3(g) of R.A. 3019. In fact, the Office of the Deputy Ombudsman for Luzon found probable cause to indict Secretary Enrile for infringement of Sections 3(e) and (g) of R.A. 3019. Were it not for his death, he should have been charged. The requirement before a private person may be indicted for violation of Section 3(g) of R.A. 3019, among others, is that such private person must be alleged to have acted in conspiracy with a public officer. The law, however, does not require that such person must, in all instances, be indicted together with the public officer. If circumstances exist where the public officer may no longer be charged in court, as in the present case where the public officer has already died, the private person may be indicted alone. 10.Q. In case of violation of Section 3(g), R.A. No. 3019, is it required to give undue advantage to private individual in order to be held liable? Explain. 10.A.

No. In the following cases:

1. PCGG vs. Office of the Ombudsman (785 SCRA 55, 24 February 2016)(First Division)[Perlas-Bernabe, J.] 2. People vs. Go (719 SCRA 704, 25 March 2014)(En Banc)[Peralta, J.], the High Court ruled that: Section 3 (g) of RA 3019 does not require the giving of unwarranted benefits, advantages or preferences to private parties who conspire with public officers, its core element being the engagement in a transaction or contract that is grossly and manifestly disadvantageous to the government.19 11.Q. What are the elements in order to be held liable for violations of Section 3(g) of R.A. No. 3019? 11.A. 19

The elements of the offense are:

Presidential Ad Hoc Fact-Finding Committee on Behest Loans vs. Desierto, 664 Phil. 16 (2011).

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(1)

that the accused is a public officer;

(2)

that he entered into a contract or transaction on behalf of the government;

(3) that such contract or transaction is grossly and manifestly disadvantageous to the government. ANTI-HAZING ACT OF 2018 (SECS. 2 AND 3, RA 8049, AS AMENDED BY RA 11053) 12.Q. What is the criminal liability of the officers and members of a fraternity or sorority if during the initiation rite, a neophyte suffered injuries or died? 12.A. In the case of Marcos vs. Cabrera-Faller (815 SCRA 285, 24 January 2017)(En Banc)[Per Curiam], the Supreme Court held that: Under Section 4 of R.A. No. 8049, if the person subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals, and the officers and members present during the hazing are prima facie presumed to have actually participated, unless it can be shown that he or she prevented the commission of the punishable acts. This disputable presumption arises from the mere presence of the offender during the hazing. Hazing is commonly characterized by secrecy and silence and to require the prosecution to indicate every step of the planned initiation rite in the information at the inception of the criminal case would be a strenuous task. ANTI-PLUNDER ACT (SECS. 1 AND 2, RA 7080, AS AMENDED BY RA 7659) 13.Q.

What are the elements of plunder?

13.A.

In the following cases:

1. Cambe vs. Office of the Ombudsman (812 SCRA 537, 6 December 2016)(En Banc)[Perlas-Bernabe, J.] 2. Reyes vs. Ombudsman (787 SCRA 354, 15 March 2016)(En Banc)[PerlasBernabe, J.], the High Court ruled that: Plunder, defined and penalized under Section 2 of RA 7080, as amended, has the following elements: (a) that the offender is a public officer, who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; (b) that he amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts described in Section 1 (d) thereof; and (c) that the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least Fifty Million Pesos (P50,000,000.00). 14.Q.

What does the phrase “raids on public treasury” mean?

14.A.

In the following cases:

1. In the case of Macapagal-Arroyo vs. People 823 SCRA 370, 18 April 2017)(En Banc)[Bersamin, J.](Resolution which DENIED the Motion for Reconsideration of the People); 2. Macapagal-Arroyo vs. People, 797 SCRA 241, 19 July 2016)(En Banc) [Bersamin, J.](Main Decision)(Petitioner initially filed a Demurrer to Evidence with the Sandiganbayan. However, it was Denied. By Petition for Certiorari to the Supreme Court, it was granted and ordered the Dismissal of the Case of Plunder), the High Court explained that: The phrase raids on the public treasury as used in Section 1(d) of R.A. No. 7080 is itself ambiguous. In order to ascertain the objective meaning of the phrase, the act of raiding the

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public treasury cannot be divided into parts. This is to differentiate the predicate act of raids on the public treasury from other offenses involving property, like robbery, theft, or estafa. Considering that R.A. No. 7080 does not expressly define this predicate act, the Court has necessarily resorted to statutory construction. In so doing, the Court did not adopt the State's submission that personal benefit on the part of the accused need not be alleged and shown because doing so would have defeated the clear intent of the law itself, which was to punish the amassing, accumulating, or acquiring of ill-gotten wealth in the aggregate amount or total value of at least P50,000,000.00 by any combination or series of acts of misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury. To discern the proper import of the phrase raids on the public treasury, the key is to look at the accompanying words: misappropriation, conversion, misuse or malversation of public funds. This process is conformable with the maxim of statutory construction noscitur a sociis, by which the correct construction of a particular word or phrase that is ambiguous in itself or is equally susceptible of various meanings may be made by considering the company of the words in which the word or phrase is found or with which it is associated. Verily, a word or phrase in a statute is always used in association with other words or phrases, and its meaning may, therefore, be modified or restricted by the latter. 15.Q. What does the law on plunder require in order that a public officer shall be held criminally liable? Explain. 15.A. The law on plunder requires that a particular public officer must be identified as the one who amassed, acquired or accumulated ill-gotten wealth because it plainly states that plunder is committed by any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth in the aggregate amount or total value of at least P50,000,000.00 through a combination or series of overt criminal acts as described in Section 1 (d) hereof. Surely, the law requires in the criminal charge for plunder against several individuals that there must be a main plunderer and her co-conspirators, who may be members of her family, relatives by affinity or consanguinity, business associates, subordinates or other persons. In other words, the allegation of the wheel conspiracy or express conspiracy in the information was appropriate because the main plunderer would then be identified in either manner. Of course, implied conspiracy could also identify the main plunderer, but that fact must be properly alleged and duly proven by the Prosecution. 16.Q.

What does “connivance” mean under the law on plunder?

16.A. In the case of Enrile vs. People (766 SCRA 1, 11 August 2015)(En Banc) [Brion, J.](Denial of the Bill of Particulars of Enrile which was granted by the SC), it was ruled that: The term connivance suggests an agreement or consent to commit an unlawful act or deed with another; to connive is to cooperate or take part secretly with another. It implies both knowledge and assent that may either be active or passive. Since the crime of plunder may be done in connivance or in conspiracy with other persons, and the Information filed clearly alleged that Enrile and Jessica Lucila Reyes conspired with one another and with Janet Lim Napoles, Ronald John Lim and John Raymund De Asis, then it is unnecessary to specify, as an essential element of the offense, whether the ill-gotten wealth amounting to at least P172,834,500.00 had been acquired by one, by two or by all of the accused. In the crime of plunder, the amount of ill-gotten wealth acquired by each accused in a conspiracy is immaterial for as long as the total amount amassed, acquired or accumulated is at least P50 million. 17.Q. Is it sufficient to allege in the Information that the amount of ill-gotten wealth amassed by the accused amounted to P50 million to constitute plunder? Explain. 17.A. No. Plunder is the crime committed by public officers when they amass wealth involving at least P50 million by means of a combination or series of overt acts. Under these terms, it is not sufficient to simply allege that the amount of ill-gotten wealth amassed amounted to at least P50 million; the manner of amassing the ill-gotten wealth – whether through a combination or series of overt acts under Section 1(d) of R.A. No. 7080 – is an important element that must be alleged.

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When the Plunder Law speaks of ―combination,‖ it refers to at least two (2) acts falling under different categories listed in Section 1, paragraph (d) of R.A. No. 7080 [for example, raids on the public treasury under Section 1, paragraph (d), subparagraph (1), and fraudulent conveyance of assets belonging to the National Government under Section 1, paragraph (d), subparagraph (3)]. On the other hand, to constitute a ―series‖ there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Section 1, paragraph (d) [for example, misappropriation, malversation and raids on the public treasury, all of which fall under Section 1, paragraph (d), subparagraph (1)]. 18.Q.

How is plunder proven?

18.A. Plunder is a crime composed of several predicate criminal acts. To prove plunder, the prosecution must weave a web out of the six ways of illegally amassing wealth and show how the various acts reveal a combination or series of means or schemes that reveal a pattern of criminality. The interrelationship of the separate acts must be shown and be established as a scheme to accumulate ill-gotten wealth amounting to at least P50 million. Plunder thus involves intricate predicate criminal acts and numerous transactions and schemes that span a period of time. Naturally, in its prosecution, the State possesses an effective flexibility of proving a predicate criminal act or transaction, not originally contemplated in the Information, but is otherwise included in the broad statutory definition, in light of subsequently discovered evidence. The unwarranted use of the flexibility is what the bill of particulars guards against. ANTI-TRAFFICKING IN PERSONS ACT OF 2003 (SECS. 3, 4, AND 6, RA 9208, AS AMENDED) 19.Q.

What does “trafficking in persons” mean?

19.A. In the case of People vs. XXX and YYY (G.R. No. 235652, 9 July 2018)(Second Division)[Perlas-Bernabe, J.], the High Court held that: Section 3(a) of RA 9208 defines the term ―Trafficking in Personsas” as 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 same provision further provides that 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. 20.Q.

What is meant by qualified trafficking in persons?

20.A. The crime of Trafficking in Persons becomes qualified under, among others, the following circumstances: SECTION 6. Qualified Trafficking in Persons.– The following are considered as qualified trafficking: (a)

When the trafficked person is a child;

x-x-x-x (d) When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; x xxx 21.Q.

What other acts constitute trafficking in persons?

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21.A. Under Section 4. Acts of Trafficking in Persons.–It shall be unlawful for any person, natural or juridical, to commit any of the following acts: (a) To recruit, transport, transfer, harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; x xx (e) pornography;

To maintain or hire a person to engage in prostitution or

x xxx 22.Q.

Can parents be convicted for violations of R.A. No. 9208?

22.A. Yes. In the case of People vs. XXX and YYY, the Supreme Court affirmed the convictions of the two accused. It was held that: As correctly ruled by the courts a quo, accused-appellants are guilty beyond reasonable doubt of three (3) counts of Qualified Trafficking in Persons under Section 4 (e) in relation to Section 6 (a) and (d) of RA 9208 as the prosecution had established beyond reasonable doubt that: (a) they admittedly are the biological parents of AAA, BBB, and CCC, who were all minors when the crimes against them were committed; (b) they made their children perform acts of cybersex for different foreigner customers, and thus, engaged them in prostitution and pornography; (c) they received various amounts of money in exchange for the sexual exploitation of their children; and (d) they achieved their criminal design by taking advantage of their children's vulnerability as minors and deceiving them that the money they make from their lewd shows are needed for the family's daily sustenance. In the same manner, the courts a quo likewise correctly convicted XXX of one (1) count of the same crime, this time under Section 4 (a) in relation to Section 6 (a) and (d) of RA 9208, as it was shown that XXX transported and provided her own minor biological child, AAA, to a foreigner in Makati City for the purpose of prostitution, again under the pretext that the money acquired from such illicit transaction is needed for their family's daily sustenance. 23.Q. Are violations of R.A. No. 9208, otherwise known as the Anti-Trafficking in Persons Act of 2003, involve public interest? 23.A. Yes. In Young vs. People (783 SCRA 286, 3 February 2016)(First Division) [Perlas-Bernabe, J.](Assailed in this petition for review on certiorari are the Decision and the Resolution of the Court of Appeals which reversed and set aside the Order of the Regional Trial Court of Cebu City, Branch 22 in Criminal Case No. CBU-96106, finding probable cause to indict petitioners Vinson D. Young a.k.a. Benzon Ong (Vinson) and Benny Young a.k.a. Benny Ong (Benny; collectively, petitioners) for violation of Sections 4 (a) and (e) in relation to Sections 6 (a) and (c) of Republic Act No. 9208, otherwise known as the Anti-Trafficking in Persons Act of 2003.)(The SC affirmed the ruling of the CA that the RTC gravely abuse its discretion when it dismissed the case), the High Court held that: Violations of RA 9208, or the Anti-Trafficking in Persons Act of 2003 involves public interest as it imputes, a crime so abhorrent and reprehensible that is characterized by sexual violence and slavery. Accordingly, direct resort to a certiorari petition sans a motion for reconsideration is clearly sanctioned in this case.

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ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 (SECS. 3, 5, AND 26, RA 9262) 24.Q.

What does economic abuse mean?

24.A. In the case of Melgar vs. People (G.R. No. 223477, 14 February 2018)(Second Division)[Perlas-Bernabe, J.], it was held that: Section 3 (D) and (E) of R.A. No. 9262 provides that: SECTION 3. Definition of Terms.–xxx. Economic abuse refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following: 1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code; 2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common; 3.

destroying household property;

4. controlling the victim's own money or properties or solely controlling the conjugal money or properties. xxxx As may be gathered from the foregoing, economic abuse may include the deprivation of support of a common child of the man-accused and the woman-victim, whether such common child is legitimate or not. This specific act is penalized by Section 5 (e) of RA 9262, pertinent portions of which read: SECTION 5. Acts of Violence Against Women and Their Children.– The crime of violence against women and their children is committed through any of the following acts: xxxx (e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or to desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: xxxx (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; (3) legal right; xxxx

Depriving or threatening to deprive the woman or her child of a

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Under this provision, the deprivation or denial of financial support to the child is considered an act of violence against women and children. Notably, case law instructs that the act of denying support to a child is a continuing offense. In Melgar, the Supreme Court affirmed with modification the conviction of the accused. It held that: In this case, the courts a quo correctly found that all the elements of violation of Section 5(e) of RA 9262 are present, as it was established that: (a)

Melgar and AAA had a romantic relationship, resulting in BBB's birth;

(b)

Melgar freely acknowledged his paternity over BBB;

(c) old; and

Melgar had failed to provide BBB support ever since the latter was just a year

(d) his intent of not supporting BBB was made more apparent when he sold to a third party his property which was supposed to answer for, among others, his support-inarrears to BBB. Thus, the Court finds no reason to deviate from the factual findings of the trial court, as affirmed by the CA, as there is no indication that it overlooked, misunderstood or misapplied the surrounding facts and circumstances of the case. In fact, the trial court was in the best position to assess and detennine the credibility of the witnesses presented by both parties and, hence, due deference should be accorded to the same. 25.Q. For alleged violations of R.A. No. 9262, what is required of the respondent upon receipt of the petition? 25.A. In Garcia vs. Drilon (699 SCRA 352, 25 June 2013)(En Banc)[Perlas-Bernabe, J.],20 the High Court held that: Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays down a new kind of procedure requiring the respondent to file an opposition to the petition and not an answer. Thus: SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition which he himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why a temporary or permanent protection order should not be issued. (b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party complaint, but any cause of action which could be the subject thereof may be litigated in a separate civil action. 26.Q. If the Family Court issued a Temporary Protection Order (TPO) for thirty (30) days and the same is about to expire, can it be extended? Explain. 26.A. Yes. To obviate potential dangers that may arise concomitant to the conduct of a hearing when necessary, Section 26(b) of A.M. No. 04-10-11-SC provides that if a temporary protection order issued is due to expire, the trial court may extend or renew the said order for a period of thirty (30) days each time until final judgment is rendered. It may likewise modify the extended or renewed temporary protection order as may be necessary to meet the needs of the parties. With the private respondent given ample protection, petitioner could proceed to litigate the constitutional issues, without necessarily running afoul of the very purpose for the adoption of the rules on summary procedure. 27.Q. Can the appellate court issue a TRO against a respondent who alleges that R.A. No. 9262 is unconstitutional? Explain. 27.A. No. As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited. Moreover, if the appeal of a judgment granting permanent protection shall not stay its enforcement, with more reason that a TPO, which is valid only for thirty (30) days at a time, should not be enjoined. 20

The SC upheld the Constitutionality of R.A. No. 9262 and held that: We reiterate here Justice Puno's observation that the history of the women's movement against domestic violence shows that one of its most difficult struggles was the fight against the violence of law itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for equality but will be its fulfillment. Accordingly, the constitutionality of R.A. 9262 is, as it should be, sustained.

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The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a litigant to have the same enjoined. In Younger vs. Harris, Jr., the Supreme Court of the United States declared, thus: Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. The sole objective of injunctions is to preserve the status quo until the trial court hears fully the merits of the case. It bears stressing, however, that protection orders are granted ex parte so as to protect women and their children from acts of violence. To issue an injunction against such orders will defeat the very purpose of the law against VAWC. 28.Q.

What is the purpose of the enactment of R.A. No. 9262? Explain.

28.A. The enactment of R.A. 9262 aims to address the discrimination brought about by biases and prejudices against women. As emphasized by the CEDAW Committee on the Elimination of Discrimination against Women, addressing or correcting discrimination through specific measures focused on women does not discriminate against men. Thus, in Garcia vs. Drilon supra, the High Court said that: the petitioner's contention, therefore, that R.A. 9262 is discriminatory and that it is an anti-male, husband-bashing, and hate-men law deserves scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. Justice Puno correctly pointed out that the paradigm shift changing the character of domestic violence from a private affair to a public offense will require the development of a distinct mindset on the part of the police, the prosecution and the judges. 29.Q.

Does the principle of conspiracy apply in violations of R.A. No. 9262?

29.A. Yes. VAWC may likewise be committed against a woman with whom the person has or had a sexual or dating relationship. Clearly, the use of the gender-neutral word person who has or had a sexual or dating relationship with the woman encompasses even lesbian relationships. Moreover, while the law provides that the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the Revised Penal Code (RPC). Thus, in the case of Go-Tan vs. Spouses Tan,21 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be proper respondents in the case filed by the latter upon the allegation that they and their son (Go-Tan's husband) had community of design and purpose in tormenting her by giving her insufficient financial support; harassing and pressuring her to be ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally and physically. 30.Q.

What is a Protection Order? Explain.

30.A. A protection order is an order issued to prevent further acts of violence against women and their children, their family or household members, and to grant other necessary reliefs. Its purpose is to safeguard the offended parties from further harm, minimize any disruption in their daily life and facilitate the opportunity and ability to regain control of their life. The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to safeguard the victim from greater risk of violence; to accord the victim and any designated family or household member safety in the family residence, and to prevent 21

567 SCRA 231 (30 September 2008).

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the perpetrator from committing acts that jeopardize the employment and support of the victim. It also enables the court to award temporary custody of minor children to protect the children from violence, to prevent their abduction by the perpetrator and to ensure their financial support. The rules require that petitions for protection order be in writing, signed and verified by the petitioner thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since time is of the essence in cases of VAWC if further violence is to be prevented, the court is authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or property of the victim is in jeopardy and there is reasonable ground to believe that the order is necessary to protect the victim from the immediate and imminent danger of VAWC or to prevent such violence, which is about to recur. 31.Q.

What constitutes the act of VAWC? Explain.

31.A. In the case of Dabalos vs. RTC, Branch 59, Angeles City (Pampanga)(G.R. No. 193960, 7 January 2013)(Second Division)[Perlas-Bernabe, J.], the High Court quoted the provision of Sec. 3(a) of RA 9262 as follows: SEC. 3. Definition of Terms. – As used in this Act, (a) Violence against women and their children refers to 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. 32.Q.

What are the elements of VAWC through harassment?

A. In Ang vs. Court of Appeals,22 the Court enumerated the elements of the crime of violence against women through harassment, to wit: 1. The offender has or had a sexual or dating relationship with the offended woman; 2. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and 3. The harassment alarms or causes substantial emotional or psychological distress to her. Notably, while it is required that the offender has or had a sexual or dating relationship with the offended woman, for RA 9262 to be applicable, it is not indispensable that the act of violence be a consequence of such relationship. Nowhere in the law can such limitation be inferred. Hence, applying the rule on statutory construction that when the law does not distinguish, neither should the courts, then, clearly, the punishable acts refer to all acts of violence against women with whom the offender has or had a sexual or dating relationship. It is immaterial whether the relationship had ceased for as long as there is sufficient evidence showing the past or present existence of such relationship between the offender and the victim when the physical harm was committed. Neither can the Court construe the statute in favor of petitioner using the rule of lenity because there is no ambiguity in RA 9262 that would necessitate any construction. While the degree of physical harm under RA 9262 and Article 266 of the Revised Penal Code are the same, there is sufficient justification for prescribing a higher penalty for the former. Clearly, the legislative intent is to purposely impose a more severe sanction on the offenders whose violent act/s physically harm women with whom they have or had a sexual or dating relationship, and/or their children with the end in view of promoting the protection of women and children.

22

618 SCRA 592 (20 April 2010).

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COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (SECS. 5, 11, 15, AND 21, RA 9165, AS AMENDED BY RA 10640) ILLEGAL TRADING OF DANGEROUS DRUGS; THE CRIME OF ILLEGAL TRAFFICKING EMBRACES VARIOUS OTHER OFFENSES PUNISHABLE BY R.A. NO. 9165 33.Q.

What does Illegal trafficking embraces?

33.A. In De Lima vs. Guerrero (843 SCRA 1, 10 October 2017)(En Banc)[Velasco, Jr., J.], the High Court held that: The crime of illegal trafficking embraces various other offenses punishable by RA 9165. Section 3(r) of RA 9165 provides: (r) 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. In turn, the crimes included in the definition of Illegal Trafficking of drugs are defined as follows: (a) Administer. – Any act of introducing any dangerous drug into the body of any person, with or without his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance to a person in administering a dangerous drug to himself/herself unless administered by a duly licensed practitioner for purposes of medication. xxxx (d) 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. xxxx (i) Cultivate or Culture. – Any act of knowingly planting, growing, raising, or permitting the planting, growing or raising of any plant which is the source of a dangerous drug. xxxx (k) Deliver. – Any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration. xxxx (m) Dispense. – Any act of giving away, selling or distributing medicine or any dangerous drug with or without the use of prescription. xxxx (u) Manufacture. – The production, preparation, compounding or processing of any dangerous drug and/or controlled precursor and essential chemical, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and shall include any packaging or repackaging of such substances, design or configuration of its form, or labeling or relabeling of its container; except that such terms do not include the preparation, compounding, packaging or labeling of a drug or other substances by a duly authorized practitioner as an incident to his/her administration or dispensation of such drug or substance in the course of

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his/her professional practice including research, teaching and chemical analysis of dangerous drugs or such substances that are not intended for sale or for any other purpose. xxxx (kk) Use. – Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system of the body, any of the dangerous drugs. 34.Q. In the prosecution for Illegal Trading of drugs is it required that the elements of Illegal Sale be present? 34.A. No. With the complexity of the operations involved in Illegal Trading of drugs, as recognized and defined in RA 9165, it will be quite myopic and restrictive to require the elements of Illegal Sale-a mere component act-in the prosecution for Illegal Trading. More so, that which qualifies the crime of Illegal Trafficking to Illegal Trading may make it impossible to provide the details of the elements of Illegal Sale. By using electronic devices such as, but not limited to, text messages, email, mobile or landlines, two-way radios, internet, instant messengers and chat rooms, the Illegal Trading can be remotely perpetrated away from where the drugs are actually being sold; away from the subject of the illegal sale. With the proliferation of digital technology coupled with ride sharing and delivery services, Illegal Trading under RA 9165 can be committed without getting one's hand on the substances or knowing and meeting the seller or buyer. To require the elements of Illegal Sale (the identities of the buyer, seller, the object and consideration, in Illegal Trade) would be impractical. 35.Q.

What is required in the prosecution for illegal trading of drugs to prosper?

35.A. For the prosecution of Illegal Trading of drugs to prosper, proof that the accused acted as a broker or brought together the buyer and seller of illegal drugs using electronic devices such as, but not limited to, text messages, e-mail, mobile or landlines, two-way radios, internet, instant messengers and chat rooms is sufficient. In some cases, this Court even acknowledged persons as brokers even where they actually took no part in the negotiations, never saw the customer. 23 For the Court, the primary occupation of a broker is simply bringing the buyer and the seller together, even if no sale is eventually made.24 Hence, in indictments for Illegal Trading, it is illogical to require the elements of Illegal Sale of drugs, such as the identities of the buyer and the seller, the object and consideration.25 The DOJ's designation of the charge as one for Illegal Drug Trading thus holds sway. After all, the prosecution is vested with a wide range of discretion-including the discretion of whether, what, and whom to charge.26 The exercise of this discretion depends on a smorgasboard of factors, which are best appreciated by the prosecutors. SALE, TRADING, ADMINISTRATION, DISPENSATION, DELIVERY, DISTRIBUTION AND TRANSPORTATION OF DANGEROUS DRUGS AND/OR CONTROLLED PRECURSORS AND ESSENTIAL CHEMICALS (SECTION 5, R.A. NO. 9165) 36.Q.

What are the elements of Illegal Sale of dangerous drugs?

36.A.

In the following cases:

1. People of the Philippines vs. Paz (G.R. No. 229512, 31 January 2018) (Second Division)[Perlas-Bernabe, J.](The Regional Trial Court of Pasig City, Branch 151 convicted the accused for violation of Sections 5 and 11, Article II of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. However, the accused was acquitted by

23 24 25 26

Medrano vs. Court of Appeals, 492 Phil. 222 (2005), citing Wickersham vs. T. D. Harris, 313 F.2d 468 (1963). Id., citing Tan vs. Spouses Gullas, 441 Phil. 622 (2002). People vs. Marcelino, Jr., 667 Phil. 495 (2011). People vs. Peralta, 435 Phil. 743 (2002). See also Gonzales vs. Hongkong and Shanghai Bank, G.R. No. 164904 (19 October 2007); People vs. Sy, 438 Phil. 383 (2002).

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the Supreme Court for failure of the prosecution to do its task to prove compliance with the procedure set forth in Section 21 of RA 9165, as amended.) 2. People vs. Calibod (845 SCRA 370, 20 November 2017)(Second Division) [Perlas-Bernabe, J.] 3. People vs. Ceralde (834 SCRA 613, 7 August 2017)(First Division)[PerlasBernabe, J.],27 the High Court held that: The offense of illegal sale of dangerous drugs has the following elements: (1)

identities of the buyer and seller, object, and consideration of the sale; and

(2)

delivery of the thing sold and the payment therefor.28

What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually occurred, coupled with the presentation in court of the substance seized as evidence.29 37.Q. In Illegal Sale and Possession of Dangerous Drugs, like shabu, what is incumbent to the prosecution to prove? Explain. 37.A.

In the following cases:

1. People vs. Ching (842 SCRA 280, 9 October 2017)(Second Divison)[PerlasBernabe, J.](Accused was acquitted for violations of Sec, 5, 11 and 12 of R.A. No. 9165.) 2. People vs. Geronimo, 839 SCRA 336, 11 September 2017)(Second Division)[Perlas-Bernabe, J.],30 the High Court ruled that: In both circumstances, the prosecution must: 1) Prove with moral certainty the identity of the prohibited drug, considering that the dangerous drug itself forms an integral part of the corpus delicti of the crime. 2) The prosecution has to show an unbroken chain of custody over the dangerous drugs so as to obviate any unnecessary doubts on the identity of the dangerous drugs on account of switching, planting, or contamination of evidence. 3) The prosecution must be able to account for each link of the chain of custody from the moment that the illegal drugs are seized up to their presentation in court as evidence of the crime.31 COMPLIANCE WITH SECTION 21, R.A. NO. 9165 In this regard, Section 21, Article II of RA 9165 outlines the procedure which the police officers must follow when handling the seized drugs in order to preserve their integrity and evidentiary value.32 Under the said provision the apprehending team shall, among others, immediately after seizure and confiscation: 1.

27

28 29

30

31

32

Conduct a physical inventory;

Accused was acquitted for violations of Section 5 and 11 of R.A. No. 9165. Reason: There was no justification why there was no compliance with Section 21 of R.A. No. 9165. People vs. Lorenzo, 633 Phil. 393 (2010); People vs. Sumili, 753 Phil. 342 (2015). People vs. Alberto, 611 SCRA 706 (5 February 2010); See also People vs. Abenes, 796 SCRA 56 (7 July 2016); People vs. Cunanan, 753 SCRA 275 (16 March 2015); People vs. Nepomuceno, 750 SCRA 209 (9 February 2015); People vs. Opiana, 745 SCRA 144 (12 January 2015); People vs. Dela Cruz, 743 SCRA 667 (3 December 2014); People vs. Baturi, 734 SCRA 55 (1 September 2014); People vs. Marcelo, 733 SCRA 223 (18 August 2014); People vs. Montevirgen, 712 SCRA 459 (11 December 2013); People vs. Gonzaga, 632 SCRA 551 (11 October 2010); People vs. Berdadero, 622 SCRA 196 (29 June 2010). Acquitted for violations of Sections 5 and 11, Article II of Republic Act No. 9165, due to non-compliance with Section 21. See People vs. Viterbo, 739 Phil. 593 (2014); See also People vs. Alivio, 664 Phil. 565 (2011) and People vs. Denoman, 612 Phil. 1165 (2009). People vs. Sumili, 753 Phil. 342 (2015).

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2. Photograph the seized items in the presence of the accused or the person from whom the items were seized; 3.

His representative or counsel;

4.

A representative from the media;

5.

The DOJ;

6.

Any elected public official;

7. Who shall be required to sign the copies of the inventory and be given a copy of the same; 8. The seized drugs must be turned over to the Philippine National Police (PNP) Crime Laboratory within twenty-four (24) hours from confiscation for examination.33 In the case of People v. Mendoza,34 the Court stressed that without the insulating presence of the representative from the media or the DOJ, or any elected public official during the seizure and marking of the seized drugs, the evils of switching, 'planting' or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the said drugs that were evidence herein of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused. Indeed, the presence of such witnesses would have preserved an unbroken chain of custody. The Court, however, clarified that under varied field conditions, strict compliance with the requirements of Section 21, Article II of RA 9165 may not always be possible.35 In fact, the Implementing Rules and Regulations (IRR) of RA 9165 - which is now crystallized into statutory law with the passage of RA 10640 36 - provide that the said inventory and photography may be conducted at the nearest police station or office of the apprehending team in instances of warrantless seizure, and that non-compliance with the requirements of Section 21, Article II of RA 9165 - under justifiable grounds - will not render void and invalid the seizure and custody over the seized items so long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer or team.37 38.Q. Does the non-compliance with Section 21 of R.A. No. 9165 renders void and invalid the seizure and custody over the seized items? 38.A.

33 34 35 36

37

No. In the following cases:

See Section 21 (1) and (2), Article II of RA 9165. 736 Phil. 749 (2014). See People vs. Sanchez, 590 Phil. 214 (2008). An Act to Further Strengthen the Anti-Drug Campaign of the Government, Amending for the Purpose Section 21 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, approved on 15 July 2014, Section 1 of which states: Section 1. Section 21 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of2002," is hereby amended to read as follows: SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/ Paraphernalia and/or Laboratory Equipment. — 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 so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That non-compliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items. x x x x See Section 21 (a), Article II of the IRR of RA 9165. See People vs. Ceralde, G.R. No. 228894 (7 August 2017).

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1. People vs. Geronimo (839 SCRA 336, 11 September 2017)(Second Division)[Perlas-Bernabe, J.] 2. People vs. Goco (806 SCRA 240, 17 October 2017)(First Division)[PerlasBernabe, J.], the High Court held that: R.A. No. 10640 provides that the said inventory and photography may be conducted at the nearest police station or office of the apprehending team in instances of warrantless seizure, and that non-compliance with the requirements of Section 21 of RA 9165 - under justifiable grounds -will not render void and invalid the seizure and custody over the seized items so long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer or team.38 In other words, the failure of the apprehending team to strictly comply with the procedure laid out in Section 21 of RA 9165 and its IRR does not ipso facto render the seizure and custody over the items void and invalid, provided that the prosecution satisfactorily proves that: (a) (b) preserved.39

there is justifiable ground for non-compliance; and the integrity and evidentiary value of the seized items are properly

In People vs. Almorfe,40 the Court explained that for the above-saving clause to apply, the prosecution must explain the reasons behind the procedural lapses, and that the integrity and value of the seized evidence had nonetheless been preserved.41 Also, in People vs. De Guzman,42 it was emphasized that the justifiable ground for non-compliance must be proven as a fact, because the Court cannot presume what these grounds are or that they even exist. TRANSPORTING OF DANGEROUS DRUGS 39.Q.

What does transport means under R.A. No. 9165? Explain.

39.A. In the case of People vs. Laba (689 SCRA 367, 28 January 2013)(Second Division)[Perlas-Bernabe, J.], where the SC affirmed the conviction of the accused for violation of Section 5, the High Court ruled that: Transport as used under the Dangerous Drugs Act is defined to mean to carry or convey from one place to another. The essential element of the charge is the movement of the dangerous drug from one place to another.43 In People vs. Laba supra, appellant was apprehended inside the airport, as he was intending to board his flight bound for Davao City with a substantial amount or 196.63 grams of methylamphetamine hydrochloride or shabu in his possession, concealed in separate plastic bags inside his oversized Spicer rubber shoes. While it may be argued that appellant was yet to board the aircraft or travel some distance with the illegal drugs in his possession, it cannot be denied that his presence at the airport at that particular instance was for the purpose of transporting or moving the dangerous drugs from one place to another. POSSESSION OF DANGEROUS DRUGS (SECTION 11, R.A. NO. 9165) 40.Q.

What are the essential elements of illegal possession of Dangerous Drugs?

40.A.

In the following cases:

1. Bernabe, J.]

People vs. Ching (842 SCRA 280, 9 October 2017)(Second Division)[Perlas-

2. Miguel vs. People (833 SCRA 440, 31 July 2017)(First Division)[PerlasBernabe, J.], it was held that: The essential elements in illegal possession of dangerous drugs are: (1) the accused is in possession of an item or object that is identified to be a prohibited drug; 38 39 40 41 42 43

See Section 21 (a), Article II of the IRR of RA 9165. People vs. Goco, G.R. No. 219584 (17 October 2016). 631 Phil. 51 (2010). 631 Phil. 51 (2010). 630 Phil. 637 (2010). San Juan vs. People, 649 SCRA 300 (30 May 2011), citing People vs. Del Mundo, 366 SCRA 471 (2 October 2001).

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(2)

such possession is not authorized by law; and

(3)

the accused freely and consciously possess the said drug. 44

19

CULTIVATION OR CULTURE OF PLANTS CLASSIFIED AS DANGEROUS DRUGS OR ARE SOURCES THEREOF (SECTION 16, R.A. NO. 9165) PROBLEM: Elmer Payra was involved in a mauling incident when struck Anthony Tavern with a piece of wood. The incident was investigated upon by the Police of the MunicIpality of Sampaga. The Chief of Police P/Insp. Amorky Santosa learned from Tavern that Payra has a Marijuana Plantation at Sitio Pulong Buhangin. During the investigation, it was revealed that prior to the mauling incident, Tavern already knew about the marijuana Plantation. It was in fact the reason why he was mauled by Payra. P/C Insp. Santosa, together with his men proceeded to the place of Payra and therein, search his house and his backyard. Thereafter, they found out that there was indeed Marijuana Plantation. They arrested Payra on the precept that the arrest was related to the mauling incident and invoked the plain view doctrine when they discovered the plantation. A case for violation of Section 16, R.A. No. 9165 was filed against Payra in the RTC of Sampaga by the Public Prosecutor. Payra interposed the defense that the discovered Marijuana Plantation was not a product of plain view but in fact inadmissible as evidence as it was the fruit of a poisonous tree? 41.Q. Can the discovery of the marijuana plantation be considered as an exception to a warrantless arrest which is the plain view doctrine? Explain. 41.A. No. In People vs. Acosta (G.R. No. 238865, 28 January 2019)(Second Division)[Perlas-Bernabe, J.], a case with similar factual milieu in the problem, the High Court held that: Section 2,45 Article III of the 1987 Constitution mandates that a search and seizure must be carried out through or on the strength of a judicial warrant predicated upon the existence of probable cause, absent which, such search and seizure become unreasonable within the meaning of said constitutional provision. To protect the people from unreasonable searches and seizures, Section 3(2), 46 Article III of the 1987 Constitution provides that evidence obtained from unreasonable searches and seizures shall be inadmissible in evidence for any purpose in any proceeding. In other words, evidence obtained and confiscated on the occasion of such unreasonable searches and seizures are deemed tainted and should be excluded for being the proverbial fruit of a poisonous tree. 47 One of the recognized exceptions to the need of a warrant before a search may be effected is when the plain view doctrine is applicable. In People vs. Lagman,48 the Supreme Court laid down the following parameters for its application: Objects falling in plain view of an officer who has a right to be in a position to have that view are subject to seizure even without a search warrant and may be introduced in evidence. The plain view doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; 44

45

46

47 48

People vs. Sembrano, 628 SCRA 328 (16 August 2010); People vs. Bio, 753 Phil. 730 (2015); Rebellion vs. People, 623 SCRA 343 (5 July 2010); See also Tionco vs. People, 752 SCRA 589 (11 March 2015); People vs. Bio, 750 SCRA 572 (16 February 2015); People vs. Eyam, 686 SCRA 408 (26 November 2012). Section 2, Article III of the 1987 Constitution states: Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Section 3 (2), Article III of the 1987 Constitution states: Section 3. x x x. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Sindac vs. People, 794 Phil. 421 (2016). 593 Phil. 617 (2008).

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(b)

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the discovery of evidence in plain view is inadvertent;

(c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent.49 In this case, the first and third requisites were not seriously contested by Payra. Instead, he argues that the second requisite is absent since the discovery of the police officers of the marijuana plants was not inadvertent as it was prompted by Tavern. In Acosta, the high court observed that: It is clear from Salucana's that he knew of Acosta's illegal activities even prior to the mauling incident. In fact, it may be reasonably inferred that the mauling incident had something to do with Acosta's planting of marijuana. It is also clear that Salucana apprised the police officers of the illegal planting and cultivation of the marijuana plants when he reported the mauling incident. Thus, when the police officers proceeded to Acosta's abode, they were already alerted to the fact that there could possibly be marijuana plants in the area. This belies the argument that the discovery of the plants was inadvertent. In People vs. Valdez,50 the high court held that the plain view doctrine cannot apply if the officers are actually searching for evidence against the accused, to wit: Note further that the police team was dispatched to appellant's kaingin precisely to search for and uproot the prohibited flora. The seizure of evidence in plain view applies only where the police officer is not searching for evidence against the accused, but inadvertently comes across an incriminating object. Clearly, their discovery of the cannabis plants was not inadvertent. We also note the testimony of SPO2 Tipay that upon arriving at the area, they first had to look around the area before they could spot the illegal plants. Patently, the seized marijuana plants were not immediately apparent and a further search was needed. In sum, the marijuana plants in question were not in plain view or open to eye and hand. The plain view doctrine, thus, cannot be made to apply. The discovery was inadvertent when the police officers already knew that there could be marijuana plants in the area. Armed with such knowledge, they would naturally be more circumspect in their observations. In effect, they proceeded to Acosta's abode, not only to arrest him for the mauling incident, but also to verify Salucana's report that Acosta was illegally planting marijuana. Thus, the second requisite for the plain view doctrine is absent. Considering that the plain view doctrine is inapplicable to the present case, the seized marijuana plants are inadmissible in evidence against Acosta for being fruits of the poisonous tree. 42.Q. Was the defense of Payra tenable that the alleged discovery of the marijuana plantation was the fruit of poisonous tree, hence, inadmissible as evidence? Explain. 42.A. Yes. The marijuana plants seized from Payra constitute as inadmissible evidence in violation of Section 3 (2), Article III of the 1987 Constitution,. Given that the confiscated plants are the very corpus delicti of the crime charged, Payra should be absolved of the crime charged. CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED, AND/OR SURRENDERED DANGEROUS DRUGS, PLANT SOURCES OF DANGEROUS DRUGS, CONTROLLED PRECURSORS AND ESSENTIAL CHEMICALS, INSTRUMENTS/PARAPHERNALIA AND/OR LABORATORY EQUIPMENT (SECTION 21, R.A. NO. 9165) 43.Q.

What is the post seizure procedure for the custody and disposition of seized

drugs? 43.A. In People vs. Medina (G.R. No. 225747, 5 December 2018)(Second Division) [Perlas-Bernabe, J.] and 48 other cases, it was held that: Section 21, Article II of RA 9165 outlines the procedure which the police officers must follow when handling the seized drugs

49 50

People vs. Doria, 361 Phil. 595 (1999). 395 Phil. 206 (2000).

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in order to preserve their integrity and evidentiary value. 51 Under the said section, the apprehending team shall, among others, immediately after seizure and confiscation conduct a physical inventory and photograph the seized items in the presence of the accused or the person from whom the items were seized, or his representative or counsel, a representative from the media and the Department of Justice, and any elected public official who shall be required to sign the copies of the inventory and be given a copy of the same, and the seized drugs must be turned over to the PNP Crime Laboratory within twentyfour (24) hours from confiscation for examination.52 In the case of People v. Mendoza,53 the Court stressed that without the insulating presence of the representative from the media or the Department of Justice, or any elected public official during the seizure and marking of the seized drugs, the evils of switching, 'planting' or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA No. 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the said drugs that were evidence herein of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused. Indeed, the x x x presence of such witnesses would have preserved an unbroken chain of custody. Notably, the Court declared that while the chain of custody rule demands utmost compliance from the police officers, strict adherence with the prescribed procedure may not always be possible under varied field conditions. 54 In fact, the Implementing Rules and Regulations (IRR) of RA 9165 - which is now crystallized into statutory law with the passage of RA 1064055 provide that the requisite inventory and photography may be conducted at the nearest police station or office of the apprehending team in instances of warrantless seizure, and that non-compliance with the requirements of Section 21 of R.A. 9165 - under justifiable grounds will not render void and invalid the seizure and custody over the seized items so long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer or team.56 Simply put, the failure of the apprehending team to strictly comply with the procedure laid out in Section 21 of RA 9165 and its IRR does not ipso facto render the seizure and custody over the items as void and invalid, provided that the prosecution satisfactorily proves that: (a) (b) preserved.57

there is justifiable ground for non-compliance; and the integrity and evidentiary value of the seized items are properly

In People vs. Almorfe,58 the Court explained that for the above-saving clause to apply, the prosecution must explain the reasons behind the procedural lapses, and that the integrity and value of the seized evidence had nonetheless been preserved. Moreover, in People v. De Guzman,59 it was emphasized that the justifiable ground for non-compliance 51 52 53 54 55

56 57 58 59

People vs. Sumili, supra. See Section 21 (1) and (2), Article II of RA 9165. 736 Phil. 749 (2014). See People vs. Sanchez, 590 Phil. 214 (2008). An Act to Further Strengthen the Anti-Drug Campaign of the Government, Amending for the Purpose Section 21 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, approved on 15 July 2014, Section 1 of which states: SECTION 1. Section 21 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002", is hereby amended to read as follows: SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - 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 so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items. xxxx See Section 21 (a), Article II of the IRR of RA 9165. See People vs. Goco, G.R. No. 219584 (17 October 2016). 631 Phil. 51 (2010). 630 Phil. 637 (2010).

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must be proven as a fact, because the Court cannot presume what these grounds are or that they even exist.60 Due to non-compliance of the statutory provision of Section 21, R.A. No. 9165 as amended and its IRR, Calibod was acquitted. the high court said: By and large, the plurality of the breaches of procedure committed by the police officers, unacknowledged and unexplained by the State, militates against a finding of guilt beyond reasonable doubt against the accused, as the integrity and evidentiary value of the corpus delicti had been compromised.61 It is well-settled that the procedure in Section 21 of RA 9165 is a matter of substantive law, and cannot be brushed aside as a simple procedural technicality; or worse, ignored as an impediment to the conviction of illegal drug suspects. 62 As such, since the prosecution failed to provide justifiable grounds for non-compliance with Section 21 of RA 9165, as amended by RA 10640, as well as its IRR, Calibod's acquittal is perforce in order. The Supreme Court through Madam Justice Perlas-Bernabe went on further to say that: As a final note, it is fitting to mention that 'the Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high-handedness from the authorities, however praiseworthy their intentions. Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the name of order. For indeed, order is too high a price for the loss of liberty.63 44.Q. What are the guidelines issued by the Supreme Court in case of violations of Section 5 and 11 of R.A. No. 9165? Explain. 44.A. In the case of People vs. Romy Lim (G.R. No. 231989, 4 September 2018)(En Banc)[Peralta, J.],64 the High Court pronounced that: In order to weed out early on from the courts' already congested docket any orchestrated or poorly built up drug-related cases, the following should henceforth be enforced as a mandatory policy: 1. In the sworn statements/ affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21 (1) of R.A. No. 9165, as amended, and its IRR. 2. In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized/confiscated items. 3. If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating fiscal must not immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine the (non) existence of probable cause. 4. If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5, 65 Rule 112, Rules of Court.

60

61 62 63 64

65

People vs. Nepomuceno, 750 SCRA 209 (9 February 2015); People vs. Salvador, 715 SCRA 617 (10 February 2014); See also People vs. Araza, 740 SCRA 437 (17 November 2014); People vs. Aneslag, 686 SCRA 150 (21 November 2013); People vs. Pascua, 656 SCRA 629 (31 August 2011). People vs. Sumili, supra. People vs. Umipang, supra. Bulauitan vs. People, G.R. No. 218891 (19 September 2016). Accused was acquitted for violation of Section 11 and 5, R.A. No. 9165)(Evident, however, is the absence of an elected public official and representatives of the DOJ and the media to witness the physical inventory and photograph of the seized items.64 In fact, their signatures do not appear in the Inventory Receipt. SEC. 5. When warrant of arrest may issue. -(a) By the Regional Trial Court. -Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to Section 6 of this Rule. In case of doubt on the existence of probable

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CHAIN OF CUSTODY 45.Q.

What is chain of custody? Explain.

45.A. Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002, which implements the law, defines chain of custody: As the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition.66 The chain of custody rule is but a variation of the principle that real evidence must be authenticated prior to its admission into evidence. 67 To establish a chain of custody sufficient to make evidence admissible, the proponent needs only to prove a rational basis from which to conclude that the evidence is what the party claims it to be. 68 In other words, in a criminal case, the prosecution must offer sufficient evidence from which the trier of fact could reasonably believe that an item still is what the government claims it to be.69 Specifically in the prosecution of illegal drugs, the well-established federal evidentiary rule in the United States is that when the evidence is not readily identifiable and is susceptible to alteration by tampering or contamination, courts require a more stringent foundation entailing a chain of custody of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.70 This was adopted in Mallillin vs. People,71 where this Court also discussed how, ideally, the chain of custody of seized items should be established: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.72 CHAIN OF CUSTODY LINKS

66

67 68

69 70

71 72

46.Q.

What are the links to be established in the chain of custody? Explain

46.A.

The links in the chain of custody that must be established are:

cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. See People vs. Badilla, 794 Phil. 263 (2016); People vs. Arenas, 791 Phil. 601 (2016); and Saraum vs. People, 779 Phil. 122 (2016). United States vs. Rawlins, 606 F.3d 73 (2010). United States vs. Rawlins, supra, as cited in United States vs. Mehmood, 2018 U.S. App. LEXIS 19232 (2018); United States vs. De Jesus-Concepcion, 652 Fed. Appx. 134 (2016); United States vs. Rodriguez, 2015 U.S. Dist. LEXIS 35215 (2015); and United States vs. Mark, 2012 U.S. Dist. LEXIS 95130 (2012). See United States vs. Rawlins, supra, as cited in United States vs. Mark, supra. See United States vs. Cardenas, 864 F.2d 1528 (1989), as cited in United States vs. Yeley-Davis, 632 F.3d 673 (2011); United States vs. Solis, 55 F. Supp. 2d 1182 (1999); United States vs. Anderson, 1994 U.S. App. LEXIS 9193 (1994); United States vs. Hogg, 1993 U.S. App. LEXIS 13732 (1993); United States vs. Rodriguez-Garcia, 983 F.2d 1563 (1993); United States vs. Johnson, 977 F.2d 1360 (1992); and United States vs. Clonts,966 F.2d 1366 (1992). 576 Phil. 576 (2008). Mallillin vs. People, supra, as cited in People vs. Tamano, 812 SCRA 203 (5 December 2016); People vs. Badilla, supra; Saraum vs. People, supra; People vs. Dalawis, 772 Phil. 406 (2015); and People vs. Flores, 765 Phil. 535 (2015). It appears that Mallillin was erroneously cited as "Lopez vs. People" in People vs. De la Cruz, 589 Phil. 259 (2008); People vs. Sanchez, 590 Phil. 214 (2008); People vs. Garcia, 599 Phil. 416 (2009); People vs. Denoman, 612 Phil. 1165 (2009); and People vs. Abelarde, G.R. No. 215713 (22 January 2018).

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(1) the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; (2) the turnover of the seized illegal drug by the apprehending officer to the investigating officer; (3) the turnover of the illegal drug by the investigating officer to the forensic chemist for laboratory examination; and (4) the court.73

the turnover and submission of the illegal drug from the forensic chemist to

47.Q.

What does the provision of Section 21, R.A. No. 9165 and its IRR provides?

47.A.

Section 21(1), Article II of R.A. No. 9165 states:

Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - 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 so 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 thereto. Supplementing the above-quoted provision, Section 21(a) of the Implementing Rules and Regulations of R.A. No. 9165 mandates: (a) The apprehending officer/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: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. 74 48.Q. Explain.

What is the amendment to R.A. No. 9165 as regards to Chain of Custody?

48.A. On July 15, 2014, R.A. No. 10640 was approved to amend R.A. No. 9165. Among other modifications, it essentially incorporated the saving clause contained in the IRR, thus: (1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: 73

74

People vs. Vicente Sipin y De Castro, supra; People vs. Amaro, 786 Phil. 139 (2016); and People vs. Enad, 780 Phil. 346 (2016). See People vs. Sic-Open, 795 Phil. 859 (2016); People vs. Badilla, supra; People vs. De la Cruz, 783 Phil. 620 (2016); People vs. Asislo, 778 Phil. 509 (2016); People vs. Dalawis, supra; and People vs. Flores, supra.

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Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items. 49.Q. What are the instances that the physical inventory and photograph of the seized items at the place of arrest may be excused? Explain. 49.A. In instances when the safety and security of the apprehending officers and the witnesses required by law or of the items seized are threatened by immediate or extreme danger such as retaliatory action of those who have the resources and capability to mount a counter-assault.75 The Supreme Court stressed in People v. Vicente Sipin y De Castro:76 The prosecution bears the burden of proving a valid cause for non-compliance with the procedure laid down in Section 21 of R.A. No. 9165, as amended. It has the positive duty to demonstrate observance thereto in such a way that during the trial proceedings, it must initiate in acknowledging and justifying any perceived deviations from the requirements of law. Its failure to follow the mandated procedure must be adequately explained, and must be proven as a fact in accordance with the rules on evidence. It should take note that the rules require that the apprehending officers do not simply mention a justifiable ground, but also clearly state this ground in their sworn affidavit, coupled with a statement on the steps they took to preserve the integrity of the seized items. Strict adherence to Section 21 is required where the quantity of illegal drugs seized is miniscule, since it is highly susceptible to planting, tampering or alteration of evidence.77 50.Q. What are the justifiable reasons that the three (3) witnesses rule on physical inventory and photograph was not obtained? 50.A. It must be alleged and proved that the presence of the three witnesses to the physical inventory and photograph of the illegal drug seized was not obtained due to reason/s such as: (1)

their attendance was impossible because the place of arrest was a remote

area; (2) their safety during the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape.78 51.Q. How should the earnest effort to contact the three (3) witnesses’ requirement should be made? Explain. 51.A. Earnest effort to secure the attendance of the necessary witnesses must be proven. People v. Ramos79 requires: 75 76 77 78 79

See People vs. Mola, supra. G.R. No. 224290 (11 June 2018). See also People vs. Reyes, supra and People vs. Mola, supra. People vs. Vicente Sipin y De Castro, supra. See also People vs. Reyes, supra and People vs. Mola, supra. G.R. No. 233744 (28 February 2018).

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It is well to note that the absence of these required witnesses does not per se render the confiscated items inadmissible. However, a justifiable reason for such failure or a showing of any genuine and sufficient effort to secure the required witnesses under Section 21 of RA 9165 must be adduced. In People vs. Umipang, the Court held that the prosecution must show that earnest efforts were employed in contacting the representatives enumerated under the law for a sheer statement that representatives were unavailable without so much as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances is to be regarded as a flimsy excuse. Verily, mere statements of unavailability, absent actual serious attempts to contact the required witnesses are unacceptable as justified grounds for non-compliance. These considerations arise from the fact that police officers are ordinarily given sufficient time - beginning from the moment they have received the information about the activities of the accused until the time of his arrest - to prepare for a buy-bust operation and consequently, make the necessary arrangements beforehand knowing full well that they would have to strictly comply with the set procedure prescribed in Section 21 of RA 9165. As such, police officers are compelled not only to state reasons for their non-compliance, but must in fact, also convince the Court that they exerted earnest efforts to comply with the mandated procedure, and that under the given circumstances, their actions were reasonable.80 52.Q.

What is chain of custody in regard to drug cases?

52.A. Chain of Custody means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court. Such record of movements and custody of seized item shall include the identity and signature of the person who had temporary custody of the seized item, the date and time when such transfer of custody was made in the course of safekeeping and use in court as evidence, and the final disposition. 81 53.Q.

What are the requirements of the chain of custody rule?

53.A. In People vs. Havana,82 the Court expounded the custodial chain procedure in this wise: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered in evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. While the testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard obtains in case the evidence is susceptible of alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering - without regard to whether the same is advertent or otherwise not - dictates the level of strictness in the application of the chain of custody rule. 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 (SECTION 23, R.A. NO. 9165) 54.Q.

80

81

82

Is plea bargaining for violation of R.A. No. 9165 allowed?

See also People vs. Crespo, G.R. No. 230065 (14 March 2018) and People vs. Sanchez, G.R. No. 231383 (7 March 2018). Section 1(b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002; re Guidelines on the Custody and Disposition of Seized Dangerous Drugs, Controlled Precursors and Essential Chemicals, and Laboratory Equipment. 778 SCRA 524 (11 January 2016).

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54.A. Yes. In the case of Estipona vs. Lobrigo (837 SCRA 160, 15 August 2017)(En Banc)[Peralta, J.], the High Court ruled that: After the finality of the decision in this case which declared Section 23 of R.A. No. 9165 unconstitutional, plea bargaining is now allowed subject however to the guidelines issued by the Supreme Court in A.M. No. 18-03-16SC dated 10 April 2018. CYBERCRIME PREVENTION ACT OF 2012 (SECS. 4 TO 6, RA 10175) 55.Q.

Who are referred to as ethical hackers?

55.A. In the case of Disini, Jr. vs. Secretary of Justice (716 SCRA 237, 18 February 2014)(En Banc)[Abad, J.], it was held that: Ethical hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in it and give instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors who come into an organization to verify its bookkeeping records. Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered from accessing the unrestricted user account of a person in the news to secure information about him that could be published. But this is not the essence of identity theft that the law seeks to prohibit and punish. 56.Q.

What is the essence of Identity Theft?

56.A. The theft of identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information made public by the user himself cannot be regarded as a form of theft. The Supreme Court has defined intent to gain as an internal act which can be established through the overt acts of the offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special circumstances reveal a different intent on the part of the perpetrator. As such, the press, whether in quest of news reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain which is required by this Section. 57.Q.

What are the cybercrime offenses punishable under R.A. No. 10175?

57.A.

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act: xxxx (c)

Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration. The subject of Section 4(c)(1) – lascivious exhibition of sexual organs or sexual activity – is not novel. Article 201 of the RPC punishes obscene publications and exhibitions and indecent shows. The Anti-Trafficking in Persons Act of 2003 penalizes those who maintain or hire a person to engage in prostitution or pornography. The law defines prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit, or any other consideration. The case of Nogales vs. People83 shows the extent to which the State can regulate materials that serve no other purpose than satisfy the market for violence, lust, or pornography. The Court weighed the property rights of individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right, has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women. 83

660 SCRA 475 (21 November 2011).

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In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of obscenity.The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended. 58.Q.

What is child pornography?

58.A. Child pornography is the unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, that the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775. It seems that the above merely expands the scope of the Anti-Child Pornography Act of 2009 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when prosecuting persons who commit child pornography using a computer system. Actually, ACPA’s definition of child pornography already embraces the use of electronic, mechanical, digital, optical, magnetic or any other means Notably, no one has questioned this ACPA provision. Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such higher penalty. The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded in the cyberspace is incalculable. 59.Q.

What is libel in contemplation of R.A. No. 10175?

59.A. R.A. No. 10175 does not define libel. Its definition is found in the Code (Article 353) which provides: A libel is a public and malicious imputation of a crime or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. As defined, the medium through which libel is committed is not an element of such offense. What is required of the prosecution are proof of the: (1) (2) (3) (4)

statement of a discreditable act or condition of another person; publication of the charge; identity of the person defamed; and existence of malice.

The irrelevance of the medium of libel in the definition of the crime is evident in Article 355 of the Code which punishes libel with a uniform penalty whether it is committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means. RA 10175 adopts the Code's definition of libel by describing online libel under Section 4(c)(4) as the unlawful or prohibited acts as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future. By adopting the Code's definition of libel, Section 4(c)(4) also adopts the elements of libel as defined in Article 353 in relation to Article 355 of the Code. Section 4(c)(4) merely adds the media of computer system or any other similar means which may be devised in the future to the list of media enumerated in Article 355. This is understandable because at the time the Code was enacted in 1930, the Internet was non-existent. In the words of the OSG itself (in contradiction to its position on the constitutionality of Section 7), Congress enacted Section 4(c)(4) not to create a new crime, but merely to make express an avenue already covered by the term 'similar means' under Article 355, to keep up with the times: 60.Q.

What is online libel?

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60.A. Online libel is not a new crime. Online libel is a crime punishable under x x x Article 353, in relation to Article 355 of the Revised Penal Code. Section 4(c)(4) just made express an avenue already covered by the term similar means under Article 355, to keep up with the times. For purposes of double jeopardy analysis, therefore, Section 4(c)(4) of RA 10175 and Article 353 in relation to Article 355 of the Code define and penalize the same offense of libel. Under the Double Jeopardy Clause, conviction or acquittal under either Section 4(c)(4) or Article 353 in relation to Article 355 constitutes a bar to another prosecution for the same offense of libel. The case of petitioners Ellen Tordesillas, Harry Roque and Romel Bagares in G.R. No. 203378 provides a perfect example for applying the rules on print and online libel in relation to the Double Jeopardy Clause. These petitioners write columns which are published online and in print by national and local papers. They allege, and respondents do not disprove, that ―their columns see publication in both print and online versions of the papers they write for.‖ Should these petitioners write columns for which they are prosecuted and found liable under Section 4(c)(4) of RA 10175 for online libel the Double Jeopardy Clause bars their second prosecution for print libel for the same columns upon which their first conviction rested, under Article 353 in relation to Article 355 of the Code. Such constitutional guarantee shields them from being twice put in jeopardy of punishment for the same offense of libel. The foregoing analysis applies to all other offenses defined and penalized under the Code or special laws which (1) are penalized as the same offense under RA 10175 committed through the use of a computer system; or (2) are considered aggravated offenses under RA 10175. Conviction or acquittal under the Code or such special laws constitutes a bar to the prosecution for the commission of any of the offenses defined under RA 10175. Thus, for instance, conviction or acquittal under Section 4(a) of RA 9775 (use of a child to create child pornography) constitutes a bar to the prosecution for violation of Section 4(c)(2) of RA 19175 (online child pornography) and vice versa. This is because the offense of child pornography under RA 9775 is the same offense of child pornography under RA 10175 committed through the use of a computer system. 61.Q. What is the implication of the provision of Section 4(c)(4) of the Cyber Crime Law on Articles 353, 354, and 355 of the Penal Code? 61.A. The libel provision of the cybercrime law merely incorporates to form part of it the provisions of the RPC on libel. Thus Section 4(c)(4) reads: Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act: xxxx (c)

Content-related Offenses:

xxxx (4) Libel. – The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future. 62.Q.

What are the elements of libel?

62.A.

The elements of libel are:

(a) another;

the allegation of a discreditable act or condition concerning

(b)

publication of the charge;

(c)

identity of the person defamed; and

(d)

existence of malice.

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There is actual malice or malice in fact when the offender makes the defamatory statement with the knowledge that it is false or with reckless disregard of whether it was false or not. The reckless disregard standard used here requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even extreme negligence is not sufficient to establish actual malice. The prosecution bears the burden of proving the presence of actual malice in instances where such element is required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter standard of ―malice‖ to convict the author of a defamatory statement where the offended party is a public figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs. 63.Q. If the offended party in a libel case is a private individual, is the prosecution required to prove malice? 63.A. No. The prosecution need not prove the presence of malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement. For his defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact true. Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v. Republic of the Philippines, the United Nations Human Rights Committee (UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the defense of truth. But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the accused has been prompted in making the statement by good motives and for justifiable ends. Thus: Art. 361. Proof of the truth. – In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted. Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties. In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted. Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression.Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be necessary and as may be provided by law. The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. 64.Q.

Is cyberlibel a new crime in this jurisdiction?

64.A. No. Cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes ―similar means‖ for committing libel.

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But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were enacted. The culture associated with internet media is distinct from that of print. The internet is characterized as encouraging a freewheeling, anything-goes writing style. In a sense, they are a world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed with which such reactions are disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on the internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court will deal with next in relation to Section 5 of the law. 65.Q.

What does aiding or abetting cyberlibel mean? Explain.

65.A. Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets another in destroying a forest, smuggling merchandise into the country, or interfering in the peaceful picketing of laborers, his action is essentially physical and so is susceptible to easy assessment as criminal in character. These forms of aiding or abetting lend themselves to the tests of common sense and human experience. But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The idea of “aiding or abetting” wrongdoings online threatens the heretofore popular and unchallenged dogmas of cyberspace use. The terms aiding or abetting constitute broad sweep that generates chilling effect on those who express themselves through cyberspace posts, comments, and other messages. Hence, Section 5 of the cybercrime law that punishes aiding or abetting libel on the cyberspace is a nullity. Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable unless consummated. In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny. Online libel is different. There should be no question that if the published material on print, said to be libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes the computer system as another means of publication. Charging the offender under both laws would be a blatant violation of the proscription against double jeopardy.

SPECIAL PROTECTION OF CHILDREN AGAINST ABUSE, DISCRIMINATION ACT (SECS. 3[A], 5, AND 10, RA 7610)

EXPLOITATION,

AND

66.Q. What is the present jurisprudential guidelines in designating or charging the proper offense in case lascivious conduct is committed under Section 5(b) of R.A. No. 7610, and in determining the imposable penalty? Explain. 66.A. In the case of People vs. Francisco Ejercito (G.R. No. 229861, 2 July 2018) (Second Division)[Perlas-Bernabe, J.], the High Court issued the following guidelines for the guidance of public prosecutors and the courts, to wit:

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(1) The age of the victim is taken into consideration in designating or charging the offense, and in determining the imposable penalty. (2) If the victim is under twelve (12) years of age, the nomenclature of the crime should be Acts of Lasciviousness under Article 336 of the Revised Penal Code in relation to Section 5(b) of R.A. No. 7610. Pursuant to the second proviso in Section 5(b) of R.A. No. 7610, the imposable penalty is reclusion temporal in its medium period. (3) If the victim is exactly twelve (12) years of age, or more than twelve (12) but below eighteen (18) years of age, or is eighteen (18) years old or older but is unable to fully take care of herself/himself or protect herself/himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition, the crime should be designated as Lascivious Conduct under Section 5 (b) of R.A. No. 7610, and the imposable penalty is reclusion temporal in its medium period to reclusion perpetua. 67.Q. Explain.

What are the parameters in the application of Section 5(b), R.A. No. 7610?

67.A. In People vs. Ejercito, citing the case of Quimvel vs. People,84 the Supreme Court set important parameters in the application of Section 5 (b) of RA 7610, to wit: (1) A child is considered as one exploited in prostitution or subjected to other sexual abuse when the child indulges in sexual intercourse or lascivious conduct under the coercion or influence of any adult. (2) A violation of Section 5 (b) of RA 7610 occurs even though the accused committed sexual abuse against the child victim only once, even without a prior sexual affront. (3) For purposes of determining the proper charge, the term coercion and influence as appearing in the law is broad enough to cover force and intimidation as used in the Information; in fact, as these terms are almost used synonymously, it is then of no moment that the terminologies employed by RA 7610 and by the Information are different. Thus, the Court, in Quimvel, observed that although the Information therein did not contain the words coercion or influence (as it instead, used the phrase through force and intimidation), the accused may still be convicted under Section 5 (b) of RA 7610. Further, following the rules on the sufficiency of an Information, the Court held that the Information need not even mention the exact phrase exploited in prostitution or subjected to other abuse for the accused to be convicted under Section 5(b) of RA 7610; it was enough for the Information to have alleged that the offense was committed by means of force and intimidation for the prosecution of an accused for violation of Section 5 (b) of RA 7610 to prosper. 68.Q. Can the accused be simultaneously charged with Rape and violation of Child Abuse under Section 5(b), Art. III of R.A. No. 7610? 68.A. No. In Alberto vs. CA (699 SCRA 104, 19 June 2013)(Second Division)[PerlasBernabe, J.], the Supreme Court held that: Existing jurisprudence, however, proscribes charging an accused for both crimes, rather, he may be charged only for either. As held in People vs. Pangilinan:85 If the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Article 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law. Thus, the High Court ruled further in Alberto: In this light, while the Court also finds that probable cause exists for the crime of Child Abuse against Gil for the same rape 84 85

See G.R. No. 214497 (18 April 2017). 660 SCRA 16 (14 November 2011).

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incidents of December 28, 2001 and April 23, 2002 in view of the substantial identity of its elements86 with that of Rape, he cannot be charged for both.

7610?

69.Q.

What is sexual abuse and lascivious conduct in contemplation of R.A. No.

69.A. In Orsos vs. People (845 SCRA 150, 20 November 2017)(Second Division) [Perlas-Bernabe, J.], it was held that: Sexual abuse includes the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children. Lascivious conduct means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.87 (People vs. Gaduyon, 709 SCRA 129, 11 November 2013; People vs. Lomaque, 697 SCRA 383, 5 June 2013.)

7610?

70.Q.

What are the requisites for violation of Section 5(b), Art. III of R.A. No.

70.A.

In the following cases:

1. Orsos vs. People (845 SCRA 150, 20 November 2017)(Second Division) [Perlas-Bernabe, J.](Petitioner's conviction was upheld by the SC not for the crime of acts of lasciviousness under Article 336 of the RPC in relation to Section 5 (b) of RA 7610, but for lascivious conduct' under Section 5 (b) of RA 7610, considering that she was 14 years of age at the time of the commission of the crime. 88 Petitioner was the CAT Commandant of the private complainant) 2. Bernabe, J.]

People vs. Ladra (831 SCRA 252, 17 July 2017)(First Division)[Perlas-

3. Quimvel vs. People (823 SCRA 192, 18 April 2017)(En Banc)[Velasco, Jr., J.],89 the High Court ruled that: Before an accused can be held criminally liable for lascivious conduct under Section 5 (b) of RA 7610, the requisites of the crime of Acts of Lasciviousness as penalized under Article 336 of the RPC above-enumerated must be met in addition to the requisites for sexual abuse under Section 5 (b) of RA 7610, as follows: (1) conduct;

the accused commits the act of sexual intercourse or lascivious

(2) the act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) of age.90

the child, whether male or female is below eighteen (18) years

This paragraph covers not only a situation where a child is abused for profit but also one in which a child, through coercion, intimidation or influence, engages in sexual intercourse or lascivious conduct. (People vs. Gaduyon, supra.) 86

87

88 89

90

For the same reasons attendant to the finding of probable cause for Rape, the Court observes that there lies probable cause for the crime of Child Abuse against Gil in connection with the December 28, 2001 and April 23, 2002 incidents. To note, the elements of Child Abuse under Section 5(b), Article III of RA 7610 are: (a) that the accused commits the act of sexual intercourse or lascivious conduct; (b) that the said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (c) that the child, whether male or female, is below eighteen (18) years of age. [See Olivarez vs. CA, 465 SCRA 473 (29 July 2005), citing Amployo vs. People, 496 Phil. 747 (2005)]. People vs. Abello, 582 SCRA 378 (25 March 2009); People vs. Sumingwa, 603 SCRA 638 (13 October 2009), citing Section 2(g) and (h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases promulgated to implement the provisions of Republic Act No. 7610. People vs. Caoili, G.R. No. 196342 & 196848 (8 August 2017). The SC affirm the CA's Decision finding petitioner guilty beyond reasonable doubt of the crime of Acts of Lasciviousness as penalized under Sec. 5 (b) of RA 7610. Malto vs. People, 533 SCRA 643 (21 September 2007).

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71.Q. How can the victim be classified as one who was exploited in prostitution or subjected to other sexual abuse? 71.A. This is anchored on the very definition of the phrase in Sec. 5 of RA 7610, which encompasses children who indulge in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group.91 72.Q. What are the acts punished by Section 5(a) and Section 5(b) of R.A. No. 7610? Explain. 72.A. Sec. 5(a) of RA 7610 punishes acts pertaining to or connected with child prostitution wherein the child is abused primarily for profit. On the other hand, paragraph (b) punishes sexual intercourse or lascivious conduct committed on a child subjected to other sexual abuse. It covers not only a situation where a child is abused for profit but also one in which a child, through coercion, intimidation or influence, engages in sexual intercourse or lascivious conduct. 92 Hence, the law punishes not only child prostitution but also other forms of sexual abuse against children. 73.Q. Is the information for violation of R.A. No. 7610 defective if, instead of coercion and influence, it alleges force and intimidation? Explain. 73.A. No. The term coercion and influence as appearing in the law is broad enough to cover force and intimidation if used in the Information. To be sure, Black's Law Dictionary defines coercion as compulsion; force; duress93 while undue influence is defined as persuasion carried to the point of overpowering the will.94 On the other hand, force refers to constraining power, compulsion; strength directed to an end 95 while jurisprudence defines intimidation as unlawful coercion; extortion; duress; putting in fear.96 As can be gleaned, the terms are used almost synonymously. It is then of no moment that the terminologies employed by RA 7610 and by the Information are different. And to dispel any remaining lingering doubt as to their interchangeability, the Supreme Court enunciated in Caballo v. People97 that: x x x sexual intercourse or lascivious conduct under the coercion or influence of any adult exists when there is some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party's free will. Corollary thereto, Section 2(g) of the Rules on Child Abuse Cases conveys that sexual abuse involves the element of influence which manifests in a variety of forms. It is defined as:The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children. To note, the term influence means the improper use of power or trust in any way that deprives a person of free will and substitutes another's objective. Meanwhile, coercion is the improper use of x x x power to compel another to submit to the wishes of one who wields it. The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children. 74.Q. To be held liable for violations of R.A. 7610, would it be necessary that the exact phrase of “exploited in prostitution or subjected to other abuse” or the words “coercion or influence” be alleged in the Information? Explain.

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People vs. Larin, 357 Phil. 987 (1998). Malto vs. People, 560 Phil. 119 (2007). last accessed on March 3, 2017. last accessed on March 3, 2017. last accessed on March 4, 2017. Sazon vs. Sandiganbayan, 598 Phil. 35 (2009). 710 Phil. 792 (2013).

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74.A. No. It need not specifically appear. The Supreme in Olivarez vs. Court of Appeals,98 has similarly sustained the conviction of therein petitioner Isidro Olivarez for violating Sec. 5, RA 7610. The absence of the phrase exploited in prostitution or subject to other sexual abuse or even the specific mention of coercion or influence was never a bar for the Court to uphold the finding of guilt against an accused for violation of RA 7610. The Supreme Court find no impediment in People vs. Abadies,99 Malta vs. People,100 People vs. Ching,101 People vs. Bonaagua,102 and Caballo vs. People103 to convict the accused therein for violation of Sec. 5, RA 7610 notwithstanding the non-mention in the Information of coercion, influence, or exploited in prostitution or subject to other abuse. In Malto vs. People,104 therein accused Michael John Z. Malto was charged for violation of RA 7610. Interestingly, the acts constitutive of the offense, as alleged in the Information, could make out a case for violation of either Sec. 5(b) of RA 7610 or Rape under the RPC.105 Nevertheless, the Court affirmed the finding that Malto is criminally liable for violation of RA 7610, and not for Rape. The Court is not unmindful of its pronouncements in People vs. Abello106 and Cabila vs. People107 that the second element must specifically be alleged in the Information and thereafter proved.- However, these rulings cannot support petitioner's prayer that he be convicted under Art. 336 of the RPC instead of under Sec. 5(b) of RA 7610. To begin with, the factual milieu of Abello significantly differs with that in the case at bar. Our refusal to convict therein accused Heracleo Abello was premised on the fact that his victim cannot be considered as a child within the purview of RA 7610. 108 The victim in Abello was 21 years of age when the offense was committed. Although she had polio, the prosecution failed to substantiate through evidence that the victim's physical condition rendered her incapable of fully taking care of herself or of protecting herself against sexual 98 99

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503 Phil. 421 (2005). 433 Phil. 814 (2002); the Information reads: That on or about July 1, 1997, in the Municipality of San Pedro, Province of Laguna, Philippines, and within the jurisdiction of this Honorable Court, said accused actuated by lewd design did then and there wilfully, unlawfully and feloniously, with force and intimidation commit acts of lasciviousness upon the person of his 17year old daughter [AAA] by kissing, mashing her breast and touching her private parts against her will and consent. CONTRARY TO LAW. 560 Phil. 119 (2007). 563 Phil. 433, 436 (2007); the Information reads: CRIMINAL CASE NO. Q-99-87053 That in or about the month of May, 1998, in xxx, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent. CRIMINAL CASE NO. Q-99-87054 That in or about the month of May, 1998, in xxx, Philippines, the said accused by means of force and intimidation, to wit by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent. CRIMINAL CASE NO. 0-99-87055 That in or about the year of 1996, in X:XX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent. 665 Phil. 750 (2011); the information reads: That on or about the month of December 1998 in the City of Las Piñas and within the jurisdiction of this Honorable Court, the above-named accused, with abuse of influence and moral ascendancy, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously insert ' his tongue and finger into the genital of his daughter, [AAA], a minor then eight (8) years of age, against her will and consent. CONTRARY TO LAW and with the special aggravating/qualifying circumstance of minority of the private offended party, [AAA], being then only eight (8) years of age and relationship of the said private offended party with the accused, Ireno Bonaagua y Berce, the latter being the biological father of the former. 710 Phil. 792 (2013). 560 Phil. 119 (2007). Rape was still classified as a crime against chastity under the RPC at the time the offense was committed. 601 Phil. 373 (2009). 538 SCRA 695 (23 November 2007). Section 3. Definition of Terms. - (a) "Children" refers to person below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition;

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abuse.109 Hence, Abello was only convicted of Acts of Lasciviousness under Art. 336 of the RPC. The very definition of child abuse under Sec. 3(b) of RA 7610 does not require that the victim suffer a separate and distinct act of sexual abuse aside from the act complained of. For it refers to the maltreatment, whether habitual or not, of the child. Thus, a violation of Sec. 5(b) of RA 7610 occurs even though the accused committed sexual abuse against the child victim only once, even without a prior sexual affront. 75.Q. Is the intervention of a third person (bugaw) necessary for the conviction of the accused under Section 5 of R.A. No. 7610? Explain. 75.A. No. The intervention by a third person is not necessary to convict an accused under Sec. 5 of RA 7610. As regards paragraph (a), a child may engage in sexual intercourse or lascivious conduct regardless of whether or not a “bugaw” is present. Although the presence of an offeror or a pimp is the typical set up in prostitution rings, this does not foreclose the possibility of a child voluntarily submitting himself or herself to another's lewd design for consideration, monetary or otherwise, without third person intervention. Needless to say, the child, would still be under the protection of the law, and the offender, in such a situation, could still be held criminally liable for violation of Sec. 5(a) of RA 7610. The Senate deliberations made clear, though, that other forms of sexual abuse, not just prostitution, are within the extended coverage of RA 7610. The offense is even penalized under the same provision as prostitution-Sec. 5 of the law. Both offenses must then be dealt with under the same parameters, in spite of the differences in their elements. Thus, concomitant with the earlier postulation, just as the participation of a third person is not necessary to commit the crime of prostitution, so too is the circumstance unessential in charging one for other sexual abuse. It is immaterial whether or not the accused himself employed the coercion or influence to subdue the will of the child for the latter to submit to his sexual advances for him to be convicted under paragraph (b). Sec. 5 of RA 7610 even provides that the offense can be committed by any adult, syndicate or group, without qualification.110 The clear language of the special law, therefore, does not preclude the prosecution of lascivious conduct performed by the same person who subdued the child through coercion or influence. This is, in fact, the more common scenario of abuse that reaches this Court and it would be an embarrassment for us to rule that such instances are outside the ambit Sec. 5(b) of RA 7610. In Quimvel vs. People supra, Mr. Justice Velasco said: It is as my esteemed colleagues Associate Justices Diosdado M. Peralta and Estela M. Perlas-Bernabe reminded the Court. Ratio legis est anima. The reason of the law is the soul of the law. In this case, the law would have miserably failed in fulfilling its lofty purpose 111 of providing special protection to children from all forms of abuse if the Court were to interpret its penal provisions so as to require the additional element of a prior or contemporaneous abuse that is different from what is complained of, and if the Court were to require that a third person act in concert with the accused. 76.Q. When can a child be considered as sexually abused under Section 5(b), R.A. No. 7610? Explain. 76.A. In Dimakuta vs. People (773 SCRA 228, 20 October 2015)(En Banc)[Peralta, J.],112 it was held that: A child is considered as sexually abused under Section 5(b) of R.A. No. 109 110

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601 Phil. 373 (2009). Section 5. 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. RA 7610, Section 2. Declaration of State Policy and Principles. - It is hereby declared to be the policy of the State to provide special protection to children from all firms of abuse, neglect, cruelty exploitation and discrimination and other conditions, prejudicial their development; provide sanctions for their commission and carry out a program for prevention and deterrence of and crisis intervention in situations of child abuse, exploitation and discrimination. The State shall intervene on behalf of the child when the parent, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuse, exploitation and discrimination or when such acts against the child are committed by the said parent, guardian, teacher or person having care and custody of the same. Denial of the Application for Probation due to the Notice of Appeal filed.

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7610 when he or she is subjected to lascivious conduct under the coercion or influence of any adult. Intimidation need not necessarily be irresistible. It is sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party.113 The law does not require physical violence on the person of the victim; moral coercion or ascendancy is sufficient.114

GOOD LUCK AND MAY ALL OF YOU REACH THE UNREACHABLE STAR!!!! - NOTHING FOLLOWS -

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People vs. Gerandoy, 735 SCRA 520 (17 September 2014); Caballo vs. People, supra; Garingarao vs. People, 669 Phil. 512 (2011); People vs. Rellota, 640 Phil. 471 (2010); People vs. Abello, supra; and Amployo vs. People, supra. People vs. Larin, supra.