CRIMINAL LAW REVIEWER BOOK TWO |. CRIMES AGAINST NATIONAL SECURITY AND LAW OF NATION TREASON Treason is committed by any Filipino citizen or an alien residing in the Philippines, who shall levy war against the Philippines or adhere to her enemies giving them aid or comfort within the Philippines or elsewhere. (Article 114; 1946 Bar Exam) ‘Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time. While there is peace, there are no traitors. (Laurel v. Misa, G.R. No. L-409, January 30, 1947) Filipino Citizen and Resident Alien ‘Treason is a breach of allegiance and can only be committed by a person who owes allegiance either perpetual or temporary. (52 Am Jur 796) Allegiance means obligation of fidelity and obedience which individuals owe to the government under which they live or to their sovereign in return for the protection which they receive. (Laurel v. ‘Misa, supra) A citizen owes, not a qualified and temporary, but an absolute and permanent allegiance, which consists in the obligation of fidelity and obedience to his government or sovereign. The absolute and permanent allegiance of the citizens to their legitimate government or sovereign is not abrogated or severed by the enemy (Japanese) occupation, because the sovereignty of the government or sovereign de jure is not transferred thereby to the occupier. (Laurel v. Misa, ibid.) A foreigner owes temporary allegiance to the government of the place wherein he resides in return for the protection hereceives. Such2 CRIMINAL LAW REVIEWER VOLUME II temporary allegiance continues during the period of his residence. If an alien, while residing in a foreign country, does an act, which would amount to treason if committed by a citizen of that country, he will be held liable for treason. (52 Am Jur 797) Furthermore, Article 114 of the Revised Penal Code punishes a resident alien for committing treason. (2012 Bar Exam) Levying War, and Giving Aid and Comfort Levying of war requires an actual assemblage of men for the purpose of executing a treasonable design by force. (52Am Jur 799) Actual arm encounter between the government forces and traitors is not required. The phrase “giving aid and comfort” means an act which strengthens or tends to strengthen the enemy, and weakens or tends to weaken the power of the traitor’s country, in the conduct of war between them. (Cramer v. U.S., 65 Sup. Ct. 918) Commandeering foodstuffs from civilian populace for the Japanese soldiers is treason. Food supplies are indispensable in the conduct of war. Insufficiency of food supplies tends to weaken the military power of the enemies. (see: People v. Mangahas, G.R. Nos. L-5367 and L-5368, June 9, 1953) However, commandeering women to satisfy the lust of the enemies is not treason. Enemy soldiers can fight in a war with or without sex. (see: People v. Perez, G.R. No. L-856, April 18, 1949) Aggravating Circumstances ‘Treachery and abuse of superior strength are by their nature, inherent in the offense of treason and may not be taken to aggravate the penalty. (People v. Adlawan, G.R. No. L-456, March 29, 1949) Evident premeditation is inherent in treason because adherence and the giving of aid and comfort to the enemy is a long, continued process requiring for the successful consummation of the traitor’s purpose a fixed, reflective and persistent determination and planning. (People v. Racaza, G.R. No. L-365, January 21, 1949) However, cruelty may be appreciated in treason by deliberately augmenting the wrong by being unnecessarily cruel to captured guerrilla suspects, subjecting them to barbarous forms of torture and finally putting them to death and ignominy by arresting and maltreating a guerrilla suspect and then stripping his wife of her clothes and then abusing her together with other Filipino girls. (People v. Adlawan, supra; 2012 Bar Exam)I. CRIMES AGAINST NATIONAL SECURITY 3 AND LAW OF NATION Two-witness Rule No person shall be convicted of treason unless on the testimony of two witnesses at least to the same over act or on confession of the accused in open court. (Article 114 of the Revised Penal Code) To meet the test under the two-witness rule, it is necessary that, at least, two witnesses should testify as to the perpetration of the same treasonous overt act. (People v. Agpangan, G.R. No. L-778, October 10, 1947) Three witnesses testified that accused burned different houses on the same day. However, the witnesses did not see the accused burned the same house. Accused was acquitted for lack of compliance with the two-witnesses rule. (People v. Gonzales, G.R. No. L-710, March 5, 1948) However, the accused can be held liable for arson. It is not however required that the testimony of the two witnesses must beidentical. Although there may not be corroboration between the two prosecution witnesses on the points they testified, yet when the witnesses are uniform in their testimony on the overt act of treason charged, the two-witnesses rule is complied with. (People v. Concepcion, G.R. No. L-1553, October 25, 1949) Thus, one witness might hear a gunshot, see a smoking gun in the hand of the accused and see the victim fall. Another witness, who was deaf, might see the accused raise and pointed the gun and see a puff of smoke from it. The testimony of both would certainly be to the same overt act. (Hauf v. U.S., 67 S. Ct. 874; The Revised Penal Code by CA Justice Luis Reyes) Testimony of two witnesses is needed to prove overt act of giving aid and comfort to the enemy but not to establish the element of adherence to the enemy. Thus, the testimony of one witness is enough to prove that the accused is a member of Makapili, an organization of traitors, to show that he is adhering to the Japanese Imperial Army. (People v. Rosas, G.R. No. L-2958, March 16, 1951) ‘Two witness rule is not applicable if there is a judicial confession. On the other hand, extrajudicial confession is not enough to convict the accused for treason. (Alarcon, G.R. No. L-407, July 28, 1947) At least two witnesses must still testify on the overt act of treason as a pre-condition for his conviction. ‘Two witnesses rule is not applicable in proving crime other than treason such as conspiracy or proposal to commit treason, misprision of treason or conspiracy to commit rebellion. (2018 Bar Exam)4 CRIMINAL LAW REVIEWER VOLUME IL In People v. Clores, G.R. No. 82362, April 26, 1990, the testimony of only one witness, if credible and positive, is sufficient to support a criminal conviction for murder. The fact that his testimony is uncorroborated will not detract from its credibility. There is no law which requires that the testimony of a single witness has to be corroborated, except where expressly mandated as in treason where the testimony of at least two witnesses to the same overt act is, needed. PROPOSAL OR CONSPIRACY TO COMMIT TREASON Proposal or conspiracy to commit treason is committed by Filipino citizen or resident alien, who has decided to commit treason and proposes its execution to some other person or persons. (Article 115) Conspiracy to commit treason is committed by two or more Filipino citizens and/or resident aliens, who come to an agreement concerning the commission of treason and decide to commit it. (Article 115) Appointment Mere possession of an appointment as officer of the enemy of the State is not an evidence of a crime. (US v. Manalo, G.R. No. L-2723, August 9, 1906) Mere acceptance of the commission as officer of the enemy of the State is not an evidence of treason. But the acceptorcan be held liable for a lesser crime. (U.S. v. Delos Reyes, G.R. No. 1434, February 23, 1904) Attending meeting where conspiracy to levy war against the government was hatched, acceptance of appointment as officer of the armed forces to be raised for the furtherance of the designs of the conspirators and assumption of obligation as officer constitute the crime of conspiracy to commit treason by levying war. (WS. v. Bautista, G.R. No. L-2189, November 3, 1906) Membership In treason by levying war, membership in an organization established to levy war against the Philippine government in adherence to foreign enemy is not constitutive of treason in the absence of actual assemblage of men for purpose of executing a treasonable design by force. However, members may be held liable for conspiracy to commit treason. If there is actual assemblage of men for treasonable purpose, there is treason even though thereI. CRIMES AGAINST NATIONAL SECURITY 5 AND LAW OF NATION is no actual clash of arms. (Criminal Law Conspectus by Justice Florenz Regalado) In treason by giving aid and comfort, membership in an organization established to adhere to the enemy by giving it aid and comfort is treason. Being a member of organization of traitors (eg., Makapili organization) is in itself constitutive of an overt act. It is not necessary, except for the purpose of increasing the punishment, that the member actually went to battle or committed nefarious acts against his country or countrymen. The crime of treason was committed if he placed himself at the enemy's call to fight side by side with him when the opportune time came even though an opportunity never presented itself. Such membership by its very nature gave the enemy aid and comfort. The enemy derived psychological comfort in the knowledge that he had on his side citizens of the State with which it was at war. It furnished the enemy aid in that his cause was advanced, his forces augmented, and his courage was enhanced by the knowledge that he could count on men such as the accused and his kind who were ready to strike at their own people. The practical effect of it was no different from that of enlisting in the invader’s army. (People v. Adriano, G.R. No. L-477, June 30, 1947) Doctrine of Absorption 1. Proposal — If a person to whom the proposal is made does not agree to commit treason, the proponent shall be held liable for “crime of proposal to commit treason.” 2. Conspiracy ~ If a person to whom the proposal is made agrees and decides to commit treason, said person and the proponent shall be held liable for the “crime of conspiracy to commit treason;” the proponent cannot be separately held liable for proposal to commit treason since conspiracy to commit treason absorbs proposal to commit treason. 3. Treason ~ If the person to whom the proposal is made actually commits the crime of treason, said person and the proponent as conspirators are liable for the “crime of treason”; the proponent is also considered as principal by inducement; the conspirators could not be separately held liable for conspiracy to commit treason since treason absorbs the crime of conspiracy to commit treason. Conspiracy in this case is just a mode of committing treason for purposes of applying the collective responsibility rule.6 CRIMINAL LAW REVIEWER. ‘VOLUME II Offenders To be held liable for conspiracy to commit treason, the offenders must be in the position to commit treason. Since treason can only be committed by Filipino citizen and resident alien, the offenders in conspiracy to commit treason must likewise be Filipino citizen and resident alien. Peacetime and Wartime Crime According to CA Justice Luis Reyes, conspiracy or proposal to commit treason is committed in time of war. However, according to Justice Florenz Regalado, the crime of proposal or conspiracy to commit treason or misprision of treason can be committed in peacetime although they are more often wartime offenses. If offenders conspired to levy war against the Philippine Government in adherence to its enemy, the plotters are liable for the crime of conspiracy to commit treason even though the conspiracy was hatched in peacetime. Group of armed men seized a southern island of the Philippines and declared war against the government. X, a Filipino, and, Y, a citizen of Rwanda, agreed to help the armed men by raising funds in support of their armed struggle. X and Y are not liable for conspiracy to commit treason for the following reasons: 1. ‘The armed men, who seized a southern island of the Philippines, are liable for rebellion by rising publicly and taking up arms to remove a southern island of the Philippines from the allegiance to the government and its laws. (see: Lagman s. Medeldea, G.R. No. 231658, July 4, 2017) Thus, agreeing and deciding to help the rebels by raising funds constitutes conspiracy to commit rebellion, and not conspiracy to commit treason. 2. Treason and conspiracy to commit treason are war crimes. ‘They cannot be committed in times of peace. The war contemplated in treason and conspiracy to commit treason pertains to armed disputes between the Philippines and a foreign state, and not a mere civil war. Since the Philippines is not at war with a foreign state, X and Y cannot be held liable for conspiracy to commit treason. 3. _ Y, fornotbeing a Filipinocitizen or a resident alien, cannot commit treason; hence, Y cannot conspire with X in committing treason.1 CRIMES AGAINST NATIONAL SECURITY 7 AND LAW OF NATION MISPRISION OF TREASON Misprision of treason is committed by a Filipino citizen (person who owes allegiance to the Philippines, without being a foreigner), who has knowledge of any conspiracy against them, and shall conceal or shall not disclose and make known the same, as soon as possible to the governor, mayor or fiscal of the place in which he resides. (Article 116) Misprision of rebellion, coup d'état or sedition is not punishable. Failure of a priest to disclose information given by a confessant pertaining to conspiracy to commit rebellion is not punishable. Misprision of rebellion is not a crime punishable under the book of statutes. Nullum crimen nulla poena sine lege. Moreover, his non- disclosure of such information is due to insuperable cause, which is an exempting circumstance, since confession is confidential, and he has an obligation to the Church not to reveal the same. (1994 Bar Exam) ‘Treason and conspiracy or proposal to commit treason can be committed by a Filipino citizen and a resident alien (2018 Bar Exam), while misprision of treason can only be committed by a Filipino citizen. A resident alien cannot commit misprision of treason. For example, A, a Filipino citizen, and B, a resident alien, were present when X, a Filipino citizen, and Z, a resident alien, conspired to commit treason. However, A and B did not disclose the information regarding such conspiracy to proper authorities. X and Z are liable for conspiracy to commit treason. A is liable for misprision of treason. B, for not being a Filipino citizen, is not liable for misprision of treason. In misprision of treason, a Filipino citizen obtains knowledge of conspiracy to commit treason by a Filipino citizen or resident alien but he fails to report the matters to proper authorities. (1955 Bar Exam) During the Japanese occupation, one could not commit misprision of treason since there are no authorities to whom information on conspiracy to commit treason could be reported. Misprision of treason cannot be committed without conspiracy t9 commit treason. Thus, failure to disclose information regarding the location of the food, supplies, and arms of the enemy is not misprision of treason. (1968 Bar Exam) If a Filipino citizen obtains knowledge of the crime of treason, failure to report the matter to proper authorities is not misprision of treason. Misprision of treason8 CRIMINAL LAW REVIEWER VOLUME II is failure to report conspiracy to commit treason, and not failure to report the crime of treason. While the Philippines is in a state of war against China, “A”, a Filipino citizen, obtained knowledge of a correspondence between “B”, a Chinese General, and “C”, an Italian citizen, who is a resident of the Philippines, where the latter agreed to provide vital information on the military defense of the Philippines to the Chinese government. However, “A” did not immediately report the matter to the proper authorities. “A” is not liable for misprision of treason. “B” cannot commit treason since he is a Chinese citizen, who is not residing in the Philippines. Since “B” cannot commit treason, he cannot conspire with “C” to commit treason. Since there is no conspiracy to commit treason, A cannot be held liable for misprision of treason. Providing military information to the enemy is treason by adherence to the enemy by giving aid and comfort. However, failure to report to authorities the intention of “C” to commit treason is not misprision of treason. (2010 Bar Exam) ESPIONAGE Espionage is committed by any person who, without authority therefor, shall enter a warship, fort or naval or military establishment or reservation to obtain any information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines; or by a public officer, who shall disclose to a representative of a foreign nation the contents of articles, data or information of a confidential nature relative to the defense of the Philippines, which is in his possession by reason of his office. (Article 117; 2012 Bar Exam) ‘The differences between treason and espionage are as follows: (1) treason is a war crime while espionage can be committed whether in time of war or peace; (2) treason can only be committed by a Filipino citizen or resident alien while espionage can be committed by a person regardless of his nationality or residency. The foreign status of a political detainee does not exclude him ipso facto from the scope of the law on espionage because this crime is not conditioned by the citizenship of the offender. (Go Tian Sek Santos v. Misa, G.R. No. L-819, March 28, 1946; 1966 Bar Exam) The concept of espionage may be embraced within the legal contemplation of treason. Disclosing confidential military information by a public officer to a representative of a foreign nation is espionage. But disclosing such information in adherence to anI. CRIMES AGAINST NATIONAL SECURITY 9 AND LAW OF NATION enemy in times of war constitutes treason and not espionage. (1966 Bar Exam) Revelation of classified information involving national defense is constitutive of the crime of espionage under Commonwealth Act No, 616. Revelation of classified information on terrorism under R.A. No. 9372 is punishable under Section 46 thereof. The crime of unauthorized revelation of classified materials under Section 46 of R.A. No. 9372 is committed by any person, police or law enforcement agent, judicial officer or civil servant who, not being authorized by the Court of Appeals to do so, reveals in any manner or form any classified information in connection with terrorism. INCITING TO WAR OR GIVING MOTIVES FOR REPRISAL Inciting to war or giving motives for reprisals is committed by any public officer or employee or any private individual who, by unlawful or unauthorized acts, provokes or gives occasion for a war involving or liable to involve the Philippines or exposes Filipino citizens to reprisals on their persons or property. (Article 118) VIOLATION OF NEUTRALITY Violation of neutrality is committed by anyone who, on the occasion of a war in which the Government is not involved, violates any regulation issued by competent authority for the purpose of enforcing neutrality. (Article 119) CORRESPONDENCE WITH HOSTILE COUNTRY Correspondence with hostile country is committed by any person who, in time of war, shall have correspondence with an enemy country or territory occupied by enemy troops: (1) if the correspondence has been prohibited by the Government; (2) if such correspondence be carried on in ciphers or conventional signs; (3) if notice or information be given thereby which might be useful to the enemy; or (4) if the offender intended to aid the enemy by giving such notice or information. (Article 120) FLIGHT TO ENEMY’S COUNTRY Flight to enemy's country is committed by any person who, owing allegiance to the Government, attempts to flee or go to an enemy country when prohibited by competent authority. (Article 121)10 CRIMINAL LAW REVIEWER ‘VOLUME II PIRACY Piracy is committed by any person who, not being a member of complement of a vessel nor a passenger thereof, shall attack or seize it or, shall seize the whole or part of the cargo thereof, its equipment or personal belongings of its complement or passengers on the high seas, or in Philippine waters. (Article 122) Qualified piracy is committed whenever the pirates have seized a vessel by boarding or firing upon the same; the pirates have abandoned their victims without means of saving themselves or; it is accompanied by murder, homicide, rape or physical injuries. (Article 123) ANTI-PIRACY LAW P.D. NO. 532 Piracy under Section 2 of P.D. No. 532 is committed by any person including a passenger or member of the complement of said vessel, who attacks upon or seizes a vessel, or takes away the whole or part of the vessel or its cargo, equipment, or the personal belongings of its complement or passengers by means of violence against or intimidation or force upon things in Philippine waters. The offenders shall be considered as pirates. Qualified piracy under Section 3 of P.D. No. 532 is committed if as a result or on the occasion of piracy rape, murder or homicide, physical injuries or other crimes are committed, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel. (Section 3) Seizing the cargo and equipment of the vessel and the personal belongings of the passenger by means of violence and intimidation in a river of a municipality constitutes piracy under P.D. No. 532. (People v. Dela Pena, G.R. No. 219581, January 31, 2018) Any person, who knowingly and in any manner aids or protects. pirates, or who directly or indirectly abets the commission of piracy, shall be considered as an accomplice of the principal offenders, and thus, the penalty prescribed by P.D. No. 532 for piracy shall be graduated one degree lower. Aiding or protecting pirates includes giving them information about the movement of police or other peace officers of the government, or acquiring or receiving property taken by pirates or in any manner derives any benefit therefrom.1 CRIMES AGAINST NATIONAL SECURITY uu AND LAW OF NATION It shall be presumed that any person who does any of the acts of an accomplice in piracy has performed knowingly, unless the contrary is proven. (Section 4 of P.D. No. 532) Piracy under the Revised Penal Code and Piracy under P.D. No. 532 Similarities and differences between piracy under the Revised Penal Code, and piracy under P.D. No. 532 are as follows: 1. _ Criminal Act ~The criminal act in both piracy under the Revised Penal Code and piracy under P.D. No. 532 is attacking upon or seizing a vessel, or taking away or seizing the vessel, or other properties with intent to gain. However, in piracy under P.D. No. 582, the seizure or taking must be committed by means of violence or intimidation or force upon things (such as destroying the door of a vessel's room). In piracy under the Revised Penal Code, by means of violence or intimidation or force upon things was not mentioned as an element. In 2006 Bar Exam, the offenders, who are from a vessel, took properties from another vessel while the crew were sleeping without violence or intimidation or force upon things, and yet, the panel organized by UP Law Center suggested that the crime is piracy under the Revised Penal Code. 2, Offender ~ In piracy under the Revised Penal Code, a pirate must neither be a member of complement of a vessel nor a passenger thereof. In sum, the pirate must be an outsider. In piracy under P.D. No. 532, a pirate is any person including a passenger or member of the complement of the vessel. In sum, the pirate can be an outsider or insider. 3. Vessel — Vessel for purposes of piracy under P.D. No. 532 refers to any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine waters. But it shall include vessels or boats used in fishing. (1977 Bar Exam) Thus, a ship or vessel constituting the dwelling of one or more persons is not a vessel within the meaning of P.D. No. 532. The Revised Penal Code provides no definition of a vessel for purposes of piracy. Hence, vessel for purposes of piracy under RPC is not confined to passenger, cargo or fishing vessel. However, under Article 301 of the Revised Penal Code, for purposes of robbery by using force upon thing, a ship or vessel constituting the dwelling of one or more persons is considered as an inhabited house.2 CRIMINAL LAW REVIEWER VOLUME II Ifthe accused used force upon thing (e.g., breaking the window) to enter into a residential vessel, the crime committed is piracy under the Code if the accused is an outsider or robbery by using force upon thing if he is an insider. Piracy under P.D. No. 532 is not committed since the crime is not committed in a passenger, cargo or fishing vessel. 4. Place of Commission — In piracy under P.D. No. 532, the vessel where the crime is committed must be in Philippine waters. P.D. No. 582 in defining “Philippine waters” merely copied the definition of territory under the 1973 Constitution. Since the 1987 Constitution introduces changes in the definition of territory, Philippine waters under P.D. No. 532 must now be understood within the context of the present Constitution. Philippine waters include national water such as Pasig river (1977 Bar Exam), and archipelagic waters such as those around, between, and connecting the islands of the Philippine archipelago and the 12-mile territorial water such as Manila Bay. (1970 Bar Exam) Beyond this point are high seas for purposes of piracy. Before, in piracy under the Revised Penal Code, the vessel where the crime is committed must be on high seas. But R.A. No. 7659 amended Article 122 of RPC by punishing piracy not only on high seas but also in Philippine waters. Since Philippine water has a technical meaning under PD No. 532, it is presumed that R.A. No. 7659 has adopted its concept in the definition of piracy. a. Philippine Water - If piracy is committed in Philippine waters such as the Pasig River (1977 Bar Exam; People v. Dela Pena, G.R. No. 219581, January 31, 2018), or Manila Bay (1970 Bar Exam), the pirates can be prosecuted for piracy under P.D. No. 532 whether the offenders are outsiders or insiders provided that there is violence or intimidation or force upon thing, or for piracy under the Revised Penal Code provided that the offenders are outsiders. If the acts constitute piracy under the Revised Penal Code and piracy under P.D. No. 532, the accused can be prosecuted for either of them. In People v. Tulin, G.R. No. 111709, August 30, 2001, the accused argued that R.A. No. 7659, which amended Article 122 of Revised Penal Code by punishing piracy in Philippines waters, impliedly repealed P.D. No. 532 on piracy in Philippine waters. The Supreme Court rejected such argument. It was held that R.A. No. 7659 neitherI CRIMES AGAINST NATIONAL SECURITY 13 AND LAW OF NATION superseded nor amended the provisions on piracy under P.D. No, 532. There is no contradiction between the provisions on piracy under the Revised Penal Code and P.D. No. 532. All the presidential decree did was to widen the coverage of the law by punishing piracy committed by a passenger and complement of the ship. For this reason, piracy under the Article 122 of Revised Penal Code and -piracy under P.D. No. 532 exist harmoniously as separate laws. While piracy under P.D. No. 532 must be committed by the principals in Philippines waters, the participation of accomplice can be made in foreign waters. In People v. Tulin, supra, the pirates boarded and seized a vessel by means of violence and intimidation while in the Philippine waters. They then directed the vessel to proceed to Singapore where the cargoes were unloaded, transferred and sold to accused Hiong. Although P.D. No. 532 requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters, the disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy. Hence, the participation of Hiong as an accomplice in receiving properties taken by the pirates need not be committed in Philippine waters. As to the issue of jurisdiction, piracy is a crime against the law of nations and as such, it is an exception to the rule on territoriality in criminal law. The extraterritoriality principle applies even if Hiong was charged with piracy under a special law. Regardless of the law penalizing the same, piracy committed by a principal or accomplice is a universal crime or crime against the whole world. b. HighSeas If piracy is committed on high seas such 300 miles away from Aparri, Cagayan, the pirates can only be prosecuted under the Revised Penal Code. (2006 and 2016 Bar Exams) The 12-mile territorial water of a foreign country such as Sabah (1986 Bar Exam), or Taiwan (2008 Bar Exam) may be considered as high seas because in People v. Lol-Lo and Saraw, G.R. No. L-17958, February 27, 1922, the Supreme Court convicted the accused of piracy even though the crime is committed within the territorial water of islands under the Dutch government. It was held that since piracy is a universal crime, it does not matter that the crime was committed within the jurisdictional three-mile limit (now 12-mile limit) of a foreign state.u“ CRIMINAL LAW REVIEWER VOLUME II Piracy on high seas under the Revised Penal Code is subject to the extraterritoriality rule under Article 2 of the Code and universality principle under international law. Hence, the court has jurisdiction over this crime. But homicide or murder committed not by a pirate but by a passenger, who took advantage of the calamity brought about by piracy, is subject to the flag state rule. Thus, the court of the State where the vessel is registered has jurisdiction over this crime. (2008 Bar Exam) ‘The differences between piracy on high seas and robbery on high seas are as follows: (1) piracy on high seas is committed by outsiders while robbery on the high seas is committed by insiders; and (2) piracy is subject to extraterritoriality or universality principle under international law while robbery is subject to the flag state principle. (1968 Bar Exam) 5. Qualifying Circumstance — Murder, homicide, rape and physical injuries that accompanied piracy shall be considered as components of qualified piracy under Article 123 of the Revised Penal Code. In P.D. No. 532, murder, homicide, rape, physical injuries or any other crime committed as a result or on the occasion of piracy qualifies the crime. If while piracy was taking place, the pirates stabbed a member of the crew while sleeping, the crime committed is qualified piracy. (2006 Bar Exam) If several victims, who resisted, were killed in the course of piracy (1970 Bar Exam) or multiple murders qualified by the circumstances of by means of explosion accompanied piracy (2016 Bar Exam), the crime committed is qualified piracy. The number of persons killed on the occasion of piracy is not material. The law considers qualified piracy as a special complex crime regardless of the number of victims. (People v. Siyoh, G.R. No. L-57292, February 18, 1986; 2016 Bar Exam) If in the course of piracy, a passenger taking advantage of the confusion to settle an old grudge with an enemy killed him, the crime committed by the pirates is simple piracy and not qualified piracy while the passenger is liable for murder or homicide. The pirates are not liable for qualified piracy since there is no direct connection or intimate relationship between piracy and murder. The passenger killed the victim for personal reason, which is unrelated and foreign to piracy. (1986 Bar Exam)1. CRIMES AGAINST NATIONAL SECURITY 15 AND LAW OF NATION Seizure of a vessel by boarding or firing upon the same or abandonment of victims without means of saving themselves is a qualifying circumstance in piracy under P.D. No. 532 and the Revised Penal Code. In a speedboat, accused fired a bazooka at the bow of another vessel, boarded it and divested the passengers of their money and jewelry, the crime committed is qualified piracy. (2008 Bar Exam) MUTINY Mutiny is committed by a member of complement of a vessel or a passenger thereof, who unlawfully resists a superior officer or raise commotion or disturbance on board a vessel against the authority of its commander on the high seas or in Philippine waters. (Article 122) The differences between piracy and mutiny are as follows: (1) in piracy, the criminal act is taking or seizing property with intent to gain; in mutiny, the criminal act is resisting the authorities in the vessel; (2) the concept of piracy is similar to robbery where intent to gain is an element; the concept of mutiny is similar to coercion where intent to gain is not an element; and (3) in piracy under the Revised Penal Code, the pirate must not be a passenger or member of the complement of the vessel; however, in piracy under P.D. No. 582, the pirate is any person; in mutiny, the mutineer must be a passenger or a member of the complement of the vessel. (1968 Bar Exam) ANTI-HIJACKING LAW R.A. NO. 6235 There are two kinds of hijacking, to wit: hijacking involving Philippine aircraft and hijacking involving foreign aircraft. Pi ppine Aircraft Hijacking is committed by a person, who compels a change in the course or destination of ai aircraft of Philippine registry, or seizes or usurps the control thereof, while it is in flight. (2013 Bar Exam) An aircraft is in fight from the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation. (Section 1 of R.A. No. 6235) The concept of hijacking is similar to that of coercion or mutiny and not of robbery. Intent to gain is not an element of hijacking.16 CRIMINAL LAW REVIEWER VOLUME II Hijacker ordered the pilot to fy the airplane to Peking instead of Davao, which was the plane’s destination. Since the pilot refused, the accused shot him to death. The crime committed is hijacking since the hijacker compelled the pilot to change the destination of the plane. Success in compelling a change of destination is not necessary to consummate the crime. Since the pilot is killed in the course of hijacking, the crime committed is qualified hijacking. (1975 Bar Exam) “A” boarded an airplane at the Manila Domestic Airport bound for Davao City. While the airplane was still on the tarmac, its door is still open and waiting for the last passenger to board, “A” ordered the pilot at gunpoint to take the airplane to Singapore. When the pilot refused, “A” shot him to death. Hijacking is not committed since the aircraft is not yet in flight. Neither is attempted hijacking committed. Article 6 of the Revised Penal Code on attempted crime will not apply. Since R.A. No. 6235 did not adopt the technical nomenclature of the penalty of the Code, the intention of the law is not to adopt the penal provision under the Code including Article 6 on attempted crime in relation to Article 51 on graduation of penalty. Hence, the crime committed is murder. (1978 Bar Exam) Offender committed hijacking of PAL airplane within the territory of San Francisco. The Philippines for being a flag state has territorial jurisdiction over the crime of hijacking because of the flag state rule under Article 2 of the Revised Penal Code. Moreover, hijacking is a universal crime; hence, all courts, including that of the Philippines have jurisdiction applying the universality principle under international law. (1971 Bar Exam) Foreign Aircraft Hijacking is likewise committed by a person, who compels an aircraft of foreign registry to land in Philippine territory, or seizes or usurps the control thereof while it is within the said territory. (Section 2 of R.A. No. 6235) In hijacking involving Philippine aircraft, flight is an element. In hijacking of foreign aircraft, flight is not an element. Hijacking involving Philippine aircraft is subject to the extraterritoriality principle. In hijacking of foreign aircraft flight, territoriality is an element. Offender committed hijacking of Cathay Pacific airplane within the territory of San Francisco. Crime under R.A. No. 6235 is1. CRIMES AGAINST NATIONAL SECURITY wv AND LAW OF NATION not committed since the hijacking did not take place while foreign aircraft is within the territory of the Philippines. Qualified Hijacking Qualified hijacking is committed: (1) whenever he has fired upon the pilot, member of the crew or passenger of the aircraft; (2) whenever he has exploded ‘or attempted to explode any bomb or explosive to destroy the aircraft; or (3) whenever the crime is accompanied by murder, homicide, serious physical injuries or rape. “A” ordered the pilot to take the PAL airplane to Sabah instead of Cebu. The pilot obeyed for a while, and then wrestled with A for the possession of the gun. In the struggle, A shot and killed the pilot. The crime committed is qualified hijacking. This is not a complex crime under Article 48 of the Revised Penal Code but a special complex crime of hijacking with homicide since the law (R.A. No. 6235) prescribes a single penalty for committing two crimes. Moreover, an offense punishable under special law such as hijacking cannot be made a component of a complex crime under Article 48 of the Code. (People v. Araneta, G.R. No. 24622, January 28, 1926; 1971 Bar Exam) HUMAN SECURITY ACT OF 2007 RA. NO. 9372 Terrorism The predicate crimes of terrorism are: (1) piracy, (2) highway robbery, (3) hijacking, (4) rebellion, (5) coup d'état, (6) murder, (7) kidnapping and serious illegal detention, (8) crimes involving destruction, (9) arson, and (10) crimes involving unlicensed (loose) firearm and explosives. It also includes violation of Toxic Substances and Hazardous and Nuclear Waste Control Act and violation of Atomic Energy Regulatory and Liability Act. Crimes involving destruction of property was punishable under Article 324 of the Revised Penal Code. However, Section 9 of P.D. No. 1613 expressly repealed this Article 324. Despite such repeal, the destruction of property as defined by Article 324 of the Code is a predicate crime of terrorism within the meaning of Section 3 of R.A. No. 9372. Terrorism is perpetrated by a person, who commits a predicate crime, which creates a condition of widespread and extraordinary fear18 CRIMINAL LAW REVIEWER VOLUME II and panic among the populace in order to coerce the government to give in to an unlawful demand. (Section 3 of R.A. No. 9372) Demand by Al-Qaeda against the US government not to interfere with the affairs of the Muslim is an example of the element of coercing the government to give in to an unlawful demand. Conspiracy to commit a crime is punishable only in cases in which the law specially provides a penalty therefor. (Article 8 of the Revised Penal Code) Hence, conspiracy to commit terrorism is punishable because Section 4 of R.A. No. 9372 specifically provides a penalty for it. Under R.A. No. 9372, upon judicial authorization, the bank deposits of terrorist organization declared by the court as such can be examined and communication between members thereof can be intercepted. However, R.A. No. 9372 does not prescribe a penalty for organizing or joining in such organization. But members of terrorist association may be held liable for conspiracy to commit terrorism under Section 4 of R.A. No. 9372 or illegal association under Article 147 of the Revised Penal Code. Offenders Terrorists are liable as principals in the crime of terrorism under Section 4 of R.A. No. 9372. However, Sections 6 and 6 thereof make accomplices and accessories liable for terrorism. The concept of accomplice and accessory and the exempting circumstance of relationship under R.A. No. 9372 is the same as those under the Revised Penal Code. However, under the Revised Penal Code, the penalty for accomplice and accessory is subject to the rule on graduation while R.A. No. 9372 prescribes a specific penalty for terrorism committed by an accomplice and accessory.il. CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE ARBITRARY DETENTION There are three ways of committing arbitrary detention: by detaining a person without any legal cause or ground therefor purposely to restrain his liberty (Article 124 of the Revised Penal Code); by delaying delivery to the proper judicial authority of a person lawfully arrested without a warrant (Article 125 of the Code); and by delaying release of a prisoner. (Article 126 of the Code; 1964 and 2006 Bar Exams) DETENTION WITHOUT LEGAL GROUNDS. Arbitrary detention is committed by any public officer or employee who detains a person without legal grounds. (Article 124; 1975 Bar Exam) In Pursuit of Duty to Arrest In arbitrary detention, the public officer must arrest a criminal suspect in pursuit of his authority to make arrest. In People v. Santiano, G.R. No. 123979, December 3, 1998, it was held that the fact that they are police officers would not exempt them from the criminal liability for kidnapping instead of arbitrary detention. ‘Taking the prisoner to a secluded place for purposes of detaining and maltreating him constitutes kidnapping and serious illegal detention qualified by the circumstance of serious physical injuries. Arbitrary detention is not committed since the accused did not commit the act in furtherance of official function or in the pursuit of authority vested in them. In sum, they committed the act in their purely private capacity. The element of “in pursuit of his duty to arrest’ in arbitrary detention is present if the purpose of the arrest is: 1. To deliver the suspect to judicial authority (U.S. v. Gellada, G.R. No. L-5151, January 31, 1910); 1920 CRIMINAL LAW REVIEWER VOLUME II 2. To conduct criminal investigation (U.S. v. Agravante, G.R. No. 3947, January 28, 1908); or 3. Todetermine if he committed a crime. (U.S. v. Hawchaw, G.R. No. L-6909, February 20, 1912) On the other hand, the element of “in pursuit of his duty to arrest” in arbitrary detention is not present: 1. Ifthe police authorities brought the suspect to a secluded place instead to the police station for purposes of maltreating him. (People v. Santiano, supra). 2, _ Ifthe police authorities arrested a criminal suspect (Pablo v. People, G.R. No. 152481, April 15, 2005) or innocent person (U.S. v. Sanchez, L-9102, November 5, 1913) to rob him. This is called in the layman's term as “hulidap.” 3. If the police authorities arrested a suspected drug pusher to demand ransom. (People v. Gonzalez, Jr., G.R. No. 192233, February 17, 2016) Note: The media describes an arrest of a drug suspect for ransom as “tokhang for ransom.” 4. If the police authorities arrested an innocent person to give him opportunity to plant incriminatory evidence. (People v. Alagao, G.R. No. L-20721, April 30, 1966) Legal Grounds for Detention ‘The commission of a crime, or violent insanity or any other ailment requiring the compulsory confinement of the patient in a hospital, shall be considered legal grounds for the detention of any person. (Article 124; 1975 and 2006 Bar Exams) 1. Lawful Warrantless Arrest — A peace officer or a private person may, without a warrant, arrest a person: a. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b. When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and c. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he isII. CRIMES AGAINST THE FUNDAMENTAL 21 ‘LAWS OF THE STATE serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (Section 5, Rule 113 of the Revised Rules of Criminal Procedure; 2006 Bar Exam) 2, Probable Cause - At about midnight, a patrolman saw three persons acting suspiciously in front of an uninhabited house and entering the same, he arrested them without warrant and took them to the municipal building where they were detained in jail for about five hours before they were released. The patrolman is not liable for arbitrary detention. Good people do not ordinarily lurk about streets and uninhabited premises at midnight. Prevention of crime is just as commendatory as the capture of criminals. Surely the officer must not be forced to await the commission of robbery or other felony. Reasonable ground of suspicion is a defense of public officer in arbitrary detention. Under such conditions, even if the suspected person is later found to be innocent, the peace officer is not liable. (U.S. v. Santos, G.R. No. 12779, September 10, 1917; 1948 and 1980 Bar Exams) “A,” a police officer, implemented a warrant of arrest for robbery against “B.” “B” posted bail. Three days later “A” sees “B” at the cockpit and immediately arrests him. “B” was telling “A” that he was out on bail, but “A” would not believe him. “A” did not make effort to verify if “B” had really been released on bail. “A”is not liable for arbitrary detention since he acted without malice. But for failure to verify the order of release before proceeding to make the re-arrest, he is liable for simple imprudence resulting in arbitrary detention. (People v. Misa, C.A., 36 0.G. 3496; 1960 Bar Exam) DELAY IN THE DELIVERY OF DETAINED PERSON Delay in the delivery of detained persons to the proper judicial authorities is committed by any public officer, who shall fail to deliver a person detained for some legal ground to the proper judicial authorities within the period of 12 hours for light penalty, 18 hours for correctional penalty or 36 hours for affictive penalty or capital punishment. (Article 125; 1969 and 1971 Bar Exams) Legally Arrested To be held liable for delay in the delivery of detained persons to the proper judicial authorities under Article 125, the offended party must be detained for some legal ground. If the police officer detained22 CRIMINAL LAW REVIEWER VOLUME II him without legal grounds, the crime committed is arbitrary detention under Article 124. Amy was apprehended and arrested by Patrolman Bart for illegal parking. She was detained at the police precinct, underwent investigation, and released only after 48 hours. Under R.A. No. 4136, or the Land Transportation and Traffic Code, the general procedure for dealing with a traffic violation is not the arrest of the offender, but the confiscation of the driver’s license of the latter. Moreover, under the Rules of Court, a warrant of arrest need not be issued if the information or charge was filed for an offense penalized by a fine only. It may be stated as a corollary that neither can a warrantless arrest be made for traffic violation involving illegal parking since the penalty for this crime is fine only. (Luz v. People, G.R. No. 197788, February 29, 2012) Since the arrest is illegal, the crime committed is not delay in the delivery of detained persons to the proper judicial authorities under Article 125, but arbitrary detention under Article 124. (1990 Bar Exam) Period to Make Judicial Delivery For the purpose of determining the criminal liability of an officer detaining a person for more than the 12-18-36-hours period prescribed by Article 125 of the Revised Penal Code, the means of communication as well as the hour of arrest and other circumstances, such as the time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information, must be taken into consideration. (Soria v. Desierto, G.R. Nos. 153524-25, January 31, 2005) An election day or a special holiday, should not be included in the computation of the period prescribed by Article 125 for the filing of complaint or information in courts in cases of warrantless arrests, it being a “no-office day.” Thus, the complaint for arbitrary detention will not prosper because the running of the 12-18-36-hours period prescribed by law for the filing of the complaint against him from the time of his arrest was interrupted by one day, which is an election day. (Soria v. Desierto, supra; 1972 Bar Exam) Delivery to Judicial Authorities ‘The arresting officer’s duty under Article 125 was either to deliver him to the proper judicial authorities within 12-18-36-hours period or release him after the expiration of the period. (Soria v. Desierto, supra)Il. CRIMES AGAINST THE FUNDAMENTAL 23 LAWS OF THE STATE The words “judicial authorities” within the meaning of Article 125 mean the courts vested with judicial power toorder the temporary detention or confinement of a person charged with having committed a public offense (and release of such person), that is, “the Supreme Court and such inferior courts as may be established by law.” The fiscal is not a judicial authority within the purview of Article 125. The fiscal, unlike a judicial authority, has no power to order either the commitment or the release on bail of persons charged with penal offenses. (Lino v. Fugoso, G.R. No. L-1159, January 30, 1947; Sayo v. Chief of Police of Manila, G.R. No. L-2128, May 12, 1948; Agbay v. Natividad, G.R. No. 134503, July 2, 1999; 1973 Bar Exam) The delivery to the judicial authority of an arrestee does not consist in a physical delivery because the arresting officer cannot transfer to the judge and the latter does not assume the physical custody of the person arrested. Delivery is the making of an accusation or charge or filing of an information against him with the corresponding court, whereby the latter acquires jurisdiction to issue an order of release or of commitment of the prisoner. (Sayo v. Chief of Police of Manila, supra; 1973 Bar Exam) Waiver of Right Under Article 125 of the Revised Penal Code, a person arrested with legal ground has the right not to be detained beyond the 12-18- 36-hour period stated therein. However, such right can be waived. Under R.A. No. 7438 (Custodial Investigation Law), any waiver by a person arrested or detained under the provisions of Article 125 of the Code shall be in writing and signed by such person in the presence of his counsel; otherwise, the waiver shall be null and void and of no effect. If the waiver is valid, the apprehending officer cannot be held liable for arbitrary detention even though the person, who was legally arrested, had been detained beyond the period stated in Article 125. If the waiver is invalid, apprehending officer may be held liable for arbitrary detention unless he honestly believed that the waiver is valid. Distinct Crimes The commission of crime of delay in the delivery of detained person to proper judicial authority will not affect the proceeding for possession of dangerous drugs for which he was detained since the two crimes are distinct and separate. The accused for possession of dangerous drugs cannot rely on shortcomings of police officers to24 CRIMINAL LAW REVIEWER. VOLUME II get a judgment of acquittal for these do not diminish the fact that illegal drugs were found in their possession. (People v. Liu, G.R. No. 189272, January 21, 2015) Period of Detention Under R.A. No. 9372 ‘As a rule, the period within which a person detained for terrorism or conspiracy to commit terrorism must be delivered to judicial authorities is 36 hours in accordance with Article 125 of the Revised Penal Code since the penalty of 40 years of imprisonment prescribed for it is equivalent to an afflictive penalty. If the apprehending police or law enforcement officers fail to deliver the suspected terrorist within the period of 36 hours, they are liable for delay in the delivery of detained person under Article 125 of RPC. However, as a result of surveillance and examination of bank deposits, the Anti-Terrorism Council may authorize in writing any police or law enforcement personnel to take custody of a person charged with or suspected of terrorism or conspiracy to commit terrorism. With this written authority, the policeorlaw enforcement personnel may arrest or take into custody the suspected terrorist and delivers him to the proper judicial authority within a period of three days therefrom without incurring any criminal liability for delay in the delivery of detained persons notwithstanding Article 125 of the Revised Penal Code to the contrary. (Section 18 of R.A. No. 9372) If the apprehending police or law enforcement officers fail to deliver the suspected terrorist within the period of three days as required by Section 18 of R.A. No. 9372, they are liable for failure to deliver suspect to the proper judicial authority under Section 20 of the same law. However, suspects may be detained for more than three days without violating Section 18 of R.A. No. 9372 subject to the following conditions: 1. There is an actual or imminent terrorist attack; 2. The apprehending officer obtains a written approval to detain the suspected terrorist bevond three (3) days from an official of a Human Rights Commission, or judge, or justice of the Sandiganbayan or the Court of Appeals, which is nearest to the place of the arrest. If the arrest is made during Saturdays,Il CRIMES AGAINST THE FUNDAMENTAL 25 LAWS OF THE STATE Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the nearest residence of any of the officials above-mentioned; 3. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five (5) days after the date of the detention of the persons concerned; 4. With respect to suspects, whose connection with the terror attack or threat is not established within three (3) days after the detention, they shall be released immediately. (Section 19 of R.A. No. 9372) DELAYING RELEASE Delaying release is committed by any public officer who delays the performance of any judicial or executive order for the release of a prisoner or detention prisoner, or unduly delays the service of the notice of such order to said prisoner or the proceedings upon any petition for the liberation of such person. (Article 126) EXPULSION Expulsion is committed by any public officer who expels any person from the Philippines or compels him to change his residence without being authorized by law. (Article 127) A mayor, who, without being authorized by law, compels prostitutes residing in his City of Manila to go to, and live in, another place against their will, is liable for expulsion. The prostitutes are not properties but human beings protected by the constitutional guaranties such as the provision on liberty of abode. The mayor could not even for the most praiseworthy of motives render the liberty of the citizen so insecure. No official, no matter how high, is above the law. (Villavicencio v. Lukban, G.R. No. 14639, March 25, 1919; 2012 Bar Exam) VIOLATION OF DOMICILE Violation of domicile is committed by any public officer who, without being authorized by judicial order, (1) enters any dwelling against the will of the owner thereof, (2) searches papers or other effects found therein without the previous consent of such owner, or (8) surreptitiously enters it, and refuses to leave after being required to do so. (Article 128) There are two qualifying circumstances in26 CRIMINAL LAW REVIEWER. VOLUME I Article 128, to wit: (1) nighttime and (2) failure to return any papers or effects not constituting evidence of a crime. Public Officer Violation of domicile is a crime against the fundamental law of the land. The act of the offender must be made in violation of the victim's constitutional right to be secured in his house, papers and effects against unreasonable search. Thus, to be held liable for violation of domicile, a public officer must be acting in his official capacity. (U.S. v. Macaspac, G.R. No. 3878, November 16, 1907) However, a private individual, who conspires with a public officer in committing violation of domicile, is also liable for this crime. Because of conspiracy, the act of the public officer in committing violation of domicile is imputable to the private individual although they are not similarly situated in relation to the object of the crime. (see: U.S. v. Ponte, G.R. No. L-5952, October 24, 1911; 1989 Bar Exam) Violation of domicile is committed by the public officer if his purpose is to violate the domicile of another. If that is not the purpose of his entrance, another crime is committed, as for example, robbery or rape, whatever the criminal intent may be (Quintano Ripolles, Codigo Penal, Vol. II) with aggravating circumstance of disregard of dwelling. A police officer entered a residential house against the will of the owner, and then, raped an occupant thereof. The crime committed is rape with the aggravating circumstance of disregard of dwelling. Arbitrary detention is not committed since the entry was made to rape the victim in his private capacity. The entry was not made in connection with his duty as a police officer. Unlawful Entry To constitute violation of domicile, the entry by the public officer must be against the will of the owner of the dwelling, which presupposes opposition or prohibition by the said owner, whether express or implied. If the public officer's entry into the dwelling is only made without previous consent of the owner, he is not liable for violation of domicile. (People v. Sane, CA 40 OG Supp 5, 113) 1. Implied Prohibition ~ There is an implied prohibition to enter where the entry was made by cutting a string fastening the door (U.S. Lindio, G.R. No. 4335, February 19, 1908) or presumed prohibition where the public officer used violence, force,IL. CRIMES AGAINST THE FUNDAMENTAL 27 LAWS OF THESTATE or intimidation to enter a dwelling. (U.S. v. Clauck, G.R. No. 2977, October 9, 1906) A police officer, who surreptitiously enters a dwelling through an unlocked door, is not liable for violation of domicile. 2. Owner of the Dwelling - According to Justice Florenz Regalado, although Article 128 of the Code speaks of the owner of the premises, it would be sufficient if the inhabitant is a lawful occupant using the premises as his dwelling, although he is not the proprietary owner thereof. Invitation to enter is a defense in violation of domicile by unlawful entry. Such invitation is considered as waiver of right of privacy in one’s domicile. In general, all members of a household must be presumed to have authority to extend an invitation to enter. Even a 12-year old occupant can extend such invitation. (U.S. v. Dulfo, G.R. No. 4133, August 10, 1908) However, even though a member of household invited a public officer to enter, violation of domicile is committed if the owner thereof expressly prohibited such entry. (U.S. v. Garcia, G.R. No. 4366, February 28, 1908) Unlawful Search In violation of domicile by unlawful entry, the entry is made “against the will of the owner” of the dwelling. In violation of domicile by unlawful search, the search is made “without his previ. » The phrase “against the will” presupposes “prohil of “without previous consent” connotes “lack of permission.” Ifa public officer entered the house and made search thereon either surreptitiously or without objection from the owner, the entry is not a violation of domicile because it was not made against the will of the owner; however, the search is a violation of domicile because it was made without previous consent of the owner. (1989 Bar Exam) Silence or failure to object is not tantamount to consent to search the house or waiver of right against unreasonable search. The fact that the owner failed to object to the entry into his house (People v. Barros, G.R. No. 90640, March 29, 1994) or he allowed the public officers to enter (People v. Compacion, G.R. No. 124442, July 20, 2001) does not amount to a permission to make a search therein. Refusal to Leave If a public officer entered the house surreptitiously and, thereafter, refused to leave the premises after being required to do28 CRIMINAL LAW REVIEWER, VOLUME IL so, the entry is not a violation of domicile because the entry was not made against the will of the owner; however, the “refusal to leave” is a violation of domicile. (1989 Bar Exam) OBTAINING AND SERVING SEARCH WARRANT Violation of domicile is also committed by any public officer by maliciously obtaining search warrants or procuring a search warrant without just cause. (Article 129) ‘The true test of lack of just cause is whether the affidavit filed in support of the application for search warrant has been drawn in such a manner that perjury could be charged thereon. (People v. Alvarez, G.R. No. 45358, January 29, 1937; People v. Sy Juco, G.R. No. 41957, August 28, 1937; 1975 Bar Exam) Under Article 129, the penalty for maliciously obtaining search warrant is in addition to the liability attaching to the offender for the commission of any other offense such as perjury. Abuse in the service of search warrants legally obtained is committed by any public officer who shall exceed his authority or use unnecessary severity in executing a search warrant, which legally is procured. (Article 129) This is another form of violation of domicile. Searching domicile without witnesses is committed by a public officer who, in cases where a search is proper, shall search a domicile, papers or other belongings of any person, in the absence of the latter, any member of his family, or two witnesses residing in the same locality. (Article 130) This is another form of violation of domicile. A public officer may commit violation of domicile although he is provided with a search warrant in cases of abuse in the service of search warrants or searching domicile without witnesses. (1957 Bar Exam)Ill. CRIMES AGAINST PUBLIC ORDER REBELLION Rebellion or insurrection is committed by multitude of persons who rise publicly and take arms against the Government for the purpose of: (1) removing the territory of the Philippines or part thereof, or its armed forces from the allegiance to said Government or its laws; or (2) depriving the Chief Executive or the Legislature of any of their powers or prerogatives or part thereof. (Article 134 of the Revised Penal Code) Insurrection Before, there isa distinction between rebellion andinsurrection. Public uprising and taking up arms against the government to effect some change of minor importance such as the manner of governance, or to prevent the exercise of government authority with respect to particular matters or subjects or to remove the locality under the control of the offenders from the allegiance to the laws of the government is called “insurrection.” If the rebels sought to have ‘a major change in the government, the crime is rebellion. A public and armed uprising to overthrow the government is rebellion. A public and armed uprising to make a city (e.g., Marawi City) a State independent and separate from the Republic of the Philippines is insurrection. However, Article 134 of the Revised Penal Code has eliminated the distinction between rebellion or insurrection. Whether the uprisers sought a minor or major change in the government, they shall be prosecuted for the crime of rebellion or insurrection under Article 134. (see: People v. Almazan, 37 O.G. 1932; The Revised Penal Code by CA Justice Luis Reyes; 2012 Bar Exam)20 CRIMINAL LAW REVIEWER VOLUME II Rebellion and Treason The differences between treason, which is an American concept, and rebellion, which is a Spanish concept, are as follows: 1. _ Intreason, the offender levies war against the government in adherence to an enemy; while in rebellion, the offenders engage war against the forces of government without adherence to the enemy; 2. ‘Treason includes giving aid and comfort in adherence to the enemy; while giving aid and comfort in adherence to rebels is not rebellion unless there is a conspiracy; 3. In treason, intent to betray the government by adherence to the enemy is required while the intention of the rebels in rising publicly and taking up arms is to remove the allegiance to the government and its laws from the territory of the Philippines or part thereof or armed forces, or to deprive executive or legislative power; 4. Treason can only be committed by a Filipino citizen or resident alien while rebellion can be committed by any person; 5. ‘Treason is a war crime while rebellion can be committed in times of war or peace; and 6. Treason is subject to the extraterritoriality rule while rebellion is governed by the territoriality principle. (1946 Bar Exam) Doctrine of Absorption Rebels cannot overthrow the government without using loose firearms, killing soldiers, burning military camps, demanding revolutionary taxes from the people, etc. ‘They are inherent in the commission of rebellion. Crimes committed in furtherance of rebellion are deemed absorbed in one single crime of rebellion. Direct assault, murder, homicide, arson, robbery, and kidnapping, just to name a few, are absorbed in the crime of rebellion if committed in furtherance of rebellion. It cannot be made a basis of a separate charge. Murder committed in furtherance of the crime of rebellion is stripped of its common complexion and is absorbed in the crime of rebellion. (People v. Hernandez, G.R. Nos, L-6025-26, July 18, 1956; People v. Geronimo, G.R. No. L-8936, October 23, 1956; Lagman v. Medeldea, G.R. No. 231658, July 4, 2017)Ill. CRIMES AGAINST PUBLIC ORDER 31 Not only common crimes may be absorbed in rebellion but also “offenses under special laws (such as obstruction of justice or illegal possession of loose firearm), which are perpetrated in furtherance of the political offense.” All crimes, whether punishable under a special law or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated and charged as separate crimes in themselves. (Lagman v. Medeldea, supra) It is of judicial notice that the sparrow unit is the liquidation squad of the New People’s Army with the objective of overthrowing the duly constituted government. Thus, the killing of a police officer (People v. Dasig, G.R. No. 100231, April 28, 1993) or governor (People v. Avila, G.R. No. 84612, March 11, 1992) by this squad in furtherance of the ends of the NPA is rebellion, which absorbs murder with direct assault. (1998 Bar Exam) The old version of Article 135 of the Revised Penal Code provides the modes of committing rebellion such as “engaging in war against the forces of the government, committing serious violence and destroying property.” However, R.A. No. 6968 eliminated the modes of committing rebellion in Article 135 of the Code. These modes as deleted by R.A. No. 6968 were used by the Supreme Court in justifying the doctrine of absorption in the Hernandez case. Because of this amendment, there are views that the Hernandez principle is not anymore controlling. But according to Justice Regalado, the amendment of Article 135 does not affect the accepted concept of rebellion and these “overt acts of violence” are deemed “subsumed” in the provision on public and armed uprising, which is an element of rebellion in Article 134. Hence, the doctrine of absorption is still good. It is submitted that the opinion of Regalado is the better view. The incidents in People v. Lovedioro, G.R. No. 112235, November 29, 1995 and People v. Solongan, G.R. No. 137182, April 24, 2003 happened after R.A. No. 6968, and yet, the Supreme Court is still applying the doctrine of absorption. In Lagman v. Medeldea, G.R. No. 231658, July 4, 2017, the Supreme Court, En Bane, has recognized the absorption doctrine in rebellion. Declaration of Martial Law Under Section 18, Article VII of the Constitution, martial Jaw can be declared on the basis of the existence of rebellion. Since32 CRIMINAL LAW REVIEWER, VOLUME Il the Constitution did not define the term “rebellion,” it must be understood to have the same meaning as the crime of “rebellion” in the Revised Penal Code. (Lagman v. Medeldea, G.R. No. 231658, duly 4, 2017) In Lagman v. Medeldea, supra, the petitioner questioned Duterte’s declaration of Martial Law in Mindanao despite the rebellion is merely confined in Marawi City. The Supreme Court denied the petition. Ithas been said that the gravamen of the crime of rebellion is an armed public uprising against the government; and that by nature rebellion is a crime of masses or multitudes, involving crowd action, that cannot be confined a priori, within predetermined bounds. To illustrate: A contingent armed with high-powered firearms publicly assembled in Padre Faura, Ermita, Manila where the Court’s compound is situated. They overpowered the guards, entered the Court's premises, and hoisted the ISIS flag. Their motive was political, i.., they want to remove from the allegiance tothe Philippine government a part of the territory of the Philippines, particularly the Court's compound and establish it as an ISIS territory. Based on the foregoing illustration, and vis-d-vis the nature of the crime of rebellion, it could not be validly said that the rebellion is confined only within the Court’s compound. The possibility that there are other rebels positioned in the nearby buildings or compound of the Philippine General Hospital (PGH) or the Manila Science High School (MSHS) could not be discounted. There is no way of knowing that all participants in the rebellion went and stayed inside the Court's compound. Neither could it be validly argued that the armed contingent positioned in PGH or MSHS is not engaged in rebellion because there is no publicity in their acts as, in fact, they were merely lurking inside the compound of PGH and MSHS. However, it must be pointed out that for the crime of rebellion to be consummated, it is not required that all armed participants should congregate in one place, in this case, the Court’s compound, and publicly rise in arms against the government for the attainment of their culpable purpose. It suffices that a portion of the contingent gathered and formed a mass or a crowd and engaged in an armed public uprising against the government. Similarly, it cannot be validly concluded that the grounds on which the armed public uprising actually took place should be theII]. CRIMES AGAINST PUBLIC ORDER 33 measure of the extent, scope or range, of the actual rebellion. This is logicalsince the other rebels positioned in PGH, MSHS, or elsewhere, whose participation did not involve the publicity aspect of rebellion, may also be considered as engaging in the crime of rebellion. Terrorism and Rebellion or Coup d’état If rebellion or coup d’état-creates a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand, the crime committed is terrorism. (Section 3 of R.A. No. 9372) However, sedition is not a predicate crime of terrorism. 1. Objectives in Rebellion and Terrorism -—The objective of a “terrorist” is to sow and create a condition of widespread fear among the populace in order to coerce the government to give in to an unlawful demand. This condition of widespread fear is traditionally achieved through bombing, kidnapping, mass killing, and beheading among others. In contrast, the purpose of rebellion is political, i.e.. (a) to remove from the allegiance to the Philippine Government or its laws: (i) the territory of the Philippines or any part thereof: (ii) any body of land, naval, or armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives. (Lagman v. Medeldea, supra) In determining what crime was committed, the court must look into the main objective of the malefactors. If t is political, such as for the purpose of severing the allegiance of Mindanao to the Philippine Government to establish a wilayat therein, the crime is rebellion. If, on the other hand, the primary objective is to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand, the crime is terrorism. (Lagman v. Medeldea, supra) 2. Variance Rule and Double Jeopardy Rule - The crime of rebellion or coup d'état is necessarily included in the charge of terrorism since the former is just an element of the latter; hence. terrorism and its predicate crime are subject to the variance rule and double jeopardy. Where the information charged the accused of terrorism in relation to rebellion, but the evidence merely establishes the crime of rebellion but not the other elements of terrorism such as coercing the government to give in to an unlawful demand, the court can convict the accused of the lesser crime of rebellion, which is34 CRIMINAL LAW REVIEWER VOLUME II necessarily included in the charge of terrorism. This is in accordance with the variance rule. Where the information charged the accused of terrorism in relation to rebellion, and then he was convicted or acquitted of terrorism, the accused cannot anymore be prosecuted for rebellion because the latter is necessarily included in the charge of the former. This is in accordance with the rule on double jeopardy under Section 49 of R.A. No. 9372. 3. Non-mutually Exclusive Rule and Double Jeopardy Rule - In Lagman v. Medeldea, G.R. No. 231658, July 4, 2017, the Supreme Court stated that there is nothing in Article 134 of the Revised Penal Code and R.A. No. 9372 which states that rebellion and terrorism are mutually exclusive of each other or that they cannot co-exist together. R.A. No. 9372 does not expressly or impliedly repeal Article 134 of the Code. And while rebellion is one of the predicate crimes of terrorism, one cannot absorb the other as they have different elements. With due respect to the Supreme Court, rebellion is a predicate crime or an element of terrorism, hence, the latter absorbs the former. Applying the Hernandez principle, since rebellion is an indispensable means to commit terrorism, the latter absorbs the former. In fact, Section 49 of R.A, No, 9372 has adopted the rule on double jeopardy. Under this provision, conviction or acquittal of the accused or the dismissal of the case for terrorism shall be a bar to another prosecution for a predicate crime (e.g., rebellion) which is necessarily included in the charge of terrorism. This legislative rule against double jeopardy is not compatible with the Lagman case on non-mutually exclusive rule. Under the double jeopardy rule, conviction for terrorism is a bar to prosecution for the predicate crime of rebellion. Under the non-mutually exclusive rule, conviction for terrorism is not a bar to prosecution for rebellion since both crimes can co-exist because they are not mutually exclusive of each other. In sum conviction for terrorism will not exclude conviction for rebellion and vice versa. It is humbly submitted that the non-mutually exclusive rule in Lagman case is an obiter dictum since this principle will not resolve the issue in the case, and that is, the constitutional basis for declaring Martial Law in Mindanao by President Duterte. Whether rebellion is a predicate crime of terrorism where double convictions are prohibited under the rule on double jeopardy; or a crimeII]. CRIMES AGAINST PUBLIC ORDER 36 independent from terrorism where double convictions are allowed under the non-mutually exclusive rule, the same can be used as a basis for declaring martial law. COUP D’ETAT Coup d'état is committed by a military, police or public officer, with or without support or participation of civilians, who swiftly and singly or simultaneously attacks by means of violence, intimidation, threat, strategy or stealth, the duly constituted authorities of the Philippines, or facilities needed for the exercise and continued possession of power such as military camp or installation, communications networks, or public utilities anywhere in the Philippines for the purpose of seizing or diminishing state power. (Article 134-A of the Revised Penal Code; 2002 and 2012 Bar Exams) Swift Attack by Military Men Military troops headed by Col. Amparo, withdrew firearms and bullets and attacked the offices of the Chief of Staff, and other offices, held hostage the Chief of Staff, killed three soldiers, inverted the Philippine flag, barricaded all entrances and exits of the camp, and announced complete control of the camp. Because of the superiority of the pro-Government forces, Col. Amparo and his troops surrendered. The crime committed is coup d'état. (1991 Bar Exam) During a military uprising aimed at ousting the duly consti- tuted authorities and taking over the government, General Tejero and his men forcibly took over the entire Rich Hotel which they used as their base. They used the rooms and other facilities of the hotel, ate all the available food they found, and detained some hotel guests. The crime of coup d’état is committed. Rich Hotel is a facil- ity needed for the exercise and continued possession of power. They swiftly attacked to seize state power. (2013 Bar Exam) Leader ‘The penalty for coup d'état committed by a leader is graver. If the leader is unknown, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, or performed similar acts, on behalf of the group, shall be deemed the leader of said coup d'état. (Article 135 of RPC; 2002 Bar Exam)36 CRIMINAL LAW REVIEWER VOLUME II Rebellion and Coup d’état The differences between rebellion and coup d’état are as follows: 1. The criminal act in rebellion is public uprising and taking up arms; while that in coup d'état is a swift attack by means of violence, intimidation, threat, strategy or stealth against the duly constituted authorities or facilities needed for the exercise and continued possession of power; 2. The purpose of rebellion is removal of the Philippine territory or part thereof or armed forces from the allegiance to the government and its laws or deprivation of executive or legislative powers or privileges; while that of coup d'état is seizure or diminution of State power; and 3. The offenders in rebellion are any persons; on the other hand, the offenders in coup détat are military officer, police officer and public officers; however, this crime can be committed with or without the participation of civilians. (1991 and 2004 Bar Exams) Overthrowing the government is an objective of rebellion or coup d'état since the purpose of the offenders is to remove the territory of the Philippines from the allegiance of the people to the government and its laws, or to seize state power. Secession is an objective of rebellion or coup d'état since the purpose of the offenders is to remove part of the territory of the Philippines (e.g., Mindanao) from the allegiance of the people to the government and its laws, or to diminish state power. Doctrine of Absorption Doctrine of absorption in the Hernandez case is applicable to coup d'état for being a political crime because the purpose of the coup plotter is to seize or diminish state power. (Gonzales v. Abaya, G.R. No. 164007, August 8, 2006, concurring opinion by Justice Callejo) SEDITION Sedition is committed by persons who rise publicly and tumultuously, and by means of force, intimidation, or by other means outside of legal methods, in order: (1) to prevent the promulgation or execution of any law, execution of any administrative order, or the holding of any popular election, or the free exercise of functions of any public officer or the government; (2) to inflict any act of hate orIIL. CRIMES AGAINST PUBLIC ORDER 37 revenge against private persons or any social class for any political or social end or upon the person or property of any public officer; or (3) to despoil any person, or government of its property for any political or social end. (Article 139) In People v. Cabrera, G.R. No. 17748, March 4, 1922, the encounter between policemen in Manila and Constabulary soldiers resulted in the death of a constabulary private. This encounter engendered a deep feeling of resentment on the part of the soldiers. They escaped through the window of their quarters and attacked the police force. They fired in the direction of a crossroads, killing a policeman and a civilian. They also fired at a street car, killing one and wounding other passengers. They attacked the Luneta police station and the office of the secret service. Seventy-seven members of the Philippine Constabulary were held guilty of sedition. The object of the public and tumultuous uprising is to inflict an act of hate or revenge upon the person of police officers. In U.S. v. Lapus, G.R. No. 1222, January 21, 1905, the accused were members of an illegal association, called “Santa Iglesia,” which was organized for the purpose of performing acts of hatred and vengeance against the authorities and the wealthy people. They had publicly and tumultuously attacked a town and roamed its streets, fring shots, yelling, and threatening the residents with death, and thereby frightening them. They performed acts of violence on the persons of the president and other residents of the town with political-social purposes. The reason for the uprising was that the rich people were loaning money at usurious terms to their farm laborers, and when the latter were unable to pay the loan, they compelled their children to work for them as servants. According wo them, if the wealthy landowners continued oppressing the poor, they would not stop disturbing the town, because the law must be equally applied to rich and poor. The crime committed is sedition because the object of public and tumultuous uprising is to inflict an act of hate or revenge upon private person. Rebellion and Sedition The differences between rebellion and sedition are as follows: 1. _ In rebellion, there must be public uprising and taking up arms against the government; in sedition, there must be public and tumultuous uprising by means of force, intimidation, or by other means outside of legal methods;38 CRIMINAL LAW REVIEWER. VOLUME II 2. _Inrebellion, the purpose of the rebels is political while in sedition the purpose of the seditionists is either political or social. 3. Rebellion absorbs crimes committed in furtherance thereof; the doctrine of absorption is not applicable to sedition. (1950 Bar Exam) In People v. Umali, G.R. No. L-5803, November 29, 1954, to" eliminate his political rival, the incumbent mayor, in the coming election, accused with others raided, burned, looted and robbed stores and houses including that of the mayor, and killed and wounded several persons. Rebellion is not committed because the acts of the raiders in rising publicly and taking up arms were not exactly against the Government. The purpose of the public and tumultuous uprising is to inflict an act of hate or revenge upon the person or property of a public official. Thus, the crime committed is sedition under Article 139. Doctrine of Absorption Doctrine of absorption in the Hernandez case is not applicable to sedition (People v. Hadji, G.R. No. L-12686, October 24, 1963) since this crime can be committed without killings, burning of properties and extortions. Hence, the accused can be convicted of sedition in addition to other crime. In People v. Cabrera, supra, accused was convicted of sedition and separate crimes of multiple murder, arson, frustrated murder and physical injuries. In People v. Umali, supra, accused was convicted of sedition and murder. CONSPIRACY TO COMMIT SEDITION Conspiracy to commit sedition is committed by two or more persons who come to an agreement concerning the commission of sedition and decide to commit it. (Article 141) Jose and Pedro proposed to the former soldiers that they recruit their comrades and organize a group of 100 for the purpose of challenging the government by force of arms in order to prevent the implementation of the Land Reform Law in Cotabato Province. Jose and Pedro promised to finance the group and to buy firearms for that purpose. The former soldiers agreed. They are liable for conspiracy to commit sedition. Jose, Pedro and the former soldiers agreed and decided to rise publicly and tumultuously and by means of force or intimidation to prevent the promulgation or execution of any law. (1987 Bar Exam)