SPECIAL PENAL LAWS

Fiscal Freddie Nojara

San Sebastian College of Law-Recoletos Manila
Leviathan Sorroritas
Prepared by: Ms. Monica May R. Ramos/Ariane Aquino

I. Nature and Concept

Criminal Law A branch of municipal law which defines crimes, treats of their nature and provides for their
punishment.
Sources of Criminal Law
1. The Revised Penal Code
2. Special Penal Laws Acts enacted of the Philippine Legislature punishing offenses or omissions

II. Mala in se v Mala Prohibita (Bar 1997, 2003, 2005)

Question: Distinguish between crimes mala in se and mala prohibita.

Crimes mala in se are felonious acts committed by dolo or culpa as defined in the Revised Penal Code. Lack of criminal
intent is a valid defense, except when the crime results from criminal negligence. On the other hand, crimes mala
prohibita are those considered wrong only because they are prohibited by statute. They constitute violations of mere
rules of convenience designed to secure a more orderly regulation of the affairs of society.

Question: May an act be both mala in se and mala prohibita?

Yes, an act may be malum in se and malum prohibitum at the same time. In People v. Sunico, et aL. (CA 50 OG 5880) it
was held that the omission or failure of election inspectors and poll clerks to include a voter's name in the registry list
of voters is wrong per se because it disenfranchises a voter of his right to vote. In this regard it is considered as malum
in se. Since it is punished under a special law (Sec. 101 and 103, Revised Election Code), it is considered malum
prohibitum.
Note: Test to determine if violation of special law is malum prohibitum or malum in se
Analyze the violation: Is it wrong because there is a law prohibiting it or punishing it as such? If you remove the law,
will the act still be wrong?
If the wording of the law punishing the crime uses the word willfully, then malice must be proven. Where malice is a
factor, good faith is a defense.
In violation of special law, the act constituting the crime is a prohibited act. Therefore culpa is not a basis of liability,
unless the special law punishes an omission.
When given a problem, take note if the crime is a violation of the Revised Penal Code or a special law.

III. Distinction between crimes punished under the Revised Penal Code and crimes punished under special
laws
1
RPC SPL
As to moral trait of the offender
moral trait of the offender is not considered; it is enough that the
considered. This is why liability would prohibited act was voluntarily done.
only arise when there is dolo or culpa
in the commission of the punishable
act.
As to use of good faith as defense
valid defense; unless the crime is the not a defense
result of culpa
As to degree of accomplishment of the crime
taken into account in punishing the The act gives rise to a crime only when it is
offender; thus, there are attempted, consummated; there are no attempted or
frustrated, and consummated stages frustrated stages, unless the special law
in the commission of the crime. expressly penalize the mere attempt or
frustration of the crime.

As to mitigating and aggravating circumstances

 mitigating and aggravating mitigating and aggravating circumstances
circumstances are taken into account are not taken into account in imposing the
in imposing the penalty since the penalty.
moral trait of the offender is
considered.
As to degree of participation

there is more than one offender, the
degree of participation of each in the
commission of the crime is taken into
account in imposing the penalty; thus,
offenders are classified as principal,
accomplice and accessory.
the degree of participation of the offenders
is not considered. All who perpetrated the
prohibited act are penalized to the same
extent. There is no principal or accomplice
or accessory to consider.

IV. RPC Applicability

Art. 10 RPC Offenses which are or in the future may be punishable under special laws are not subject to the provisions of
this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary.
For Special Laws: Penalties should be imprisonment, and not reclusion perpetua, etc.
Offenses that are attempted or frustrated are not punishable, unless otherwise stated.
Plea of guilty is not mitigating for offenses punishable by special laws.
No minimum, medium, and maximum periods for penalties.
No penalty for an accessory or accomplice, unless otherwise stated.

Provisions of RPC applicable to special laws:

1. Art. 16 Participation of Accomplices
2. Art. 22 Retroactivity of Penal laws if favorable to the accused
3. Art. 45 Confiscation of instruments used in the crime

SUPPLETORY APPLICATION OF THE REVISED PENAL CODE

In Article 10, there is a reservation provision of the Revised Penal Code may be applied suppletorily to special
laws. You will only apply the provisions of the Revised Penal Code as a supplement to the special law, or simply
correlate the violated special law, if needed to avoid an injustice. If no justice would result, do not give suppletorily
application of the Revised Penal Code to that of special law.

For example, a special law punishes a certain act as a crime. The special law is silent as to the civil liability of one who
violates the same.
Question: A person who violated the special law and he was prosecuted. His violation caused damage or injury to a
private party. May the court pronounce that he is civilly liable to the offended party, considering that the special law is
silent on this point?
Yes, because Article 10 of the Revised Penal Code may be given suppletory application to prevent an injustice from
being done to the offended party. Article 100 states that every person criminally liable for a felony is also civilly
liable. That article shall be applied suppletory to avoid an injustice that would be caused to the private offended party,
if he would not be indemnified for the damages or injuries sustained by him.
In People v. Rodriguez, it was held that the use of arms is an element of rebellion, so a rebel cannot be further
prosecuted for possession of firearms. A violation of a special law can never absorb a crime punishable under the
Revised Penal Code, because violations of the Revised Penal Code are more serious than a violation of a special law. But
a crime in the Revised Penal Code can absorb a crime punishable by a special law if it is a necessary ingredient of the
crime in the Revised Penal Code

In the crime of sedition, the use of firearms is not an ingredient of the crime. Hence, two prosecutions can be had: (1)
sedition; and (2) illegal possession of firearms.

But do not think that when a crime is punished outside of the Revised Penal Code, it is already a special law. For
example, the crime of cattle-rustling is not a mala prohibitum but a modification of the crime theft of large cattle. So
Presidential Decree No. 533, punishing cattle-rustling, is not a special law. It can absorb the crime of murder. If in the
course of cattle rustling, murder was committed, the offender cannot be prosecuted for murder. Murder would be a
qualifying circumstance in the crime of qualified cattle rustling. This was the ruling in People v. Martinada.
The amendments of Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972) by Republic Act No. 7659, which
adopted the scale of penalties in the Revised Penal Code, means that mitigating and aggravating circumstances can
now be considered in imposing penalties. Presidential Decree No. 6425 does not expressly prohibit the suppletory
application of the Revised Penal Code. The stages of the commission of felonies will also apply since suppletory
application is now allowed.
 Part II.
I. Against National Security
A. Human Security Act
-It created the crime known as terrorism and declared it to be a crime against the Filipino people, against humanity,
and against the law of nations.
-act punished: sowing and creating a condition of
1. widespread and extraordinary fear &
2. panic among the populace, in order to coerce the government to give in to an unlawful demand

Defines the crime of terrorism to be the commission of any of the crimes of :

Under the Revised Penal Code. Special Laws
i. Piracy in general and Mutiny in the High Arson under P.D. 1613
Seas or in the Philippine Waters ii. Violation of R.A. 6969 ( Toxic Substance ad Nuclear Waste
ii. rebellion Control)
iii. Coup detat iii. R.A. 5207 ( Atomic Energy Regulatory and Liability Act of
iv. Murder 1968)
v. Kidnapping and Serious Illegal iv. Hijacking
Detention v. Piracy in Phil. Waters and Highway Robbery
vi. P.D. 1866 ( Possession and Manufacture of
Firearms/explosives)

III. Requirements for Terrorism

A. The accused ( maybe a single individual or a group) must commit any of the enumerated crimes
B. There results a condition of widespread and extraordinary fear and panic among the populace
i. The extent and degree of fear and panic, including the number of people affected in order to meet the
term populace, are questions of facts to be determined by the courts and on a case to case basis.
ii. Is the term populace to be interpreted as referring to the local inhabitants where the acts were
committed, or does it refer to the national population?
C. The purpose of the accused must be to coerce the government to give into an unlawful demand
i. The word demand is too broad as to cover not only political, criminal or monetarial demands but also
those which maybe categorized as social or economic. This however is qualified by the word unlawful.
IV. Other Acts/Persons Liable
A. Conspiracy to commit terrorism. The penalty is the same as terrorism itself ( i.e. 40 years of imprisonment)
B. Accomplices- he cooperates in the execution of either terrorism or conspiracy to commit terrorism by previous or
simultaneous acts (Penalty is 17 yrs. 4 months and one day to 20 years)
C. Accessory-The acts punished are the same as that under Article 19 of the RPC. The penalty is 10 yrs. And one day
to 12 years
1. The law however adopts the absolutory cause of exemption of accessories from liability with respect to their
relatives
V. Surveillance of Suspects and Interception and Recording of Communications
A. Authorizes the grant of Judicial Authorization to listen, intercept, and record, any communication, message,
conversation, discussion, or of spoken or written words between members of (i) a judicially declared and outlawed
terrorist organization or association or group, or (ii) of any person charged with or suspected of the crime of terrorism
or conspiracy to commit terrorism
1. The Judicial Authorization can only be issued by the Court of Appeals (a) upon a written application filed by a
police or law enforcement official or members of his team and (b). after an ex parte hearing establishing (c).
probable cause that terrorism/conspiracy to commit terrorism has been committed, or is being committed, or is
about to be committed ( note that the wording is not attempted)

2. The applicant must have been authorized in writing to file the application by the Anti Terrorism Council (The
Body created to implement the law and assume responsibility for the effective implementation of the anti-
terrorism[policy of the country)
3. The Judicial Authority is effective for a maximum period not to exceed 30 days from date of receipt of the
written order and may be extended for another similar period
B. Punishes the act of failure to notify the person subject of the surveillance, monitoring or interception, if no case
was filed within the 30 day period/life time of the Order of Court authorizing the surveillance
C. Punishes any person who conducts any unauthorized or malicious interceptions and or recording of any form of
communications, messages, conversations, discussions or spoken or written words
VI. Provides for a Judicial Declaration of Terrorists and Outlawed organization, association, or group of persons, by any
RTC upon application by the DOJ and upon prior notice to the group affected.
VII. Procedure when a suspected terrorist is arrested
 A. A suspected terrorist maybe arrested by any law enforcement personnel provided:
1. The law enforcement agent was duly authorized in writing by the Anti Terrorism Council
2. The arrest was the result of a surveillance or examination of bank deposits
B. Upon arrest and prior to actual detention, the law enforcement agent must present the suspected terrorist before
any judge at the latters residence or office nearest the place of arrest, at any time of the day or night. The judge
shall, within three days, submit a written report of the presentation to the court where the suspect shall have been
charged.
C. Immediately after taking custody of a person charged or suspected as a terrorist, the police or law enforcement
personnel shall notify in writing the judge of the nearest place of apprehension or arrest, but if the arrest is made
during non-office days or after office hours, the written notice shall be served at the nearest residence of the judge
nearest the place of arrest
D. Failure to notify in writing is punished by 10 years and one day to12 years of imprisonment
VIII. Period of Detention : extended to 3days
A. The 3- day period is counted from the moment the person charged or suspected as terrorist has been apprehended
or arrested, detained and taken into custody
B. In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three days
without the written approval of the Human Rights Commission, or judge of the MTC RTC, Sandiganbayan or Court of
Appeals nearest the place of arrest
C. If arrest was on a nonworking day or hour, the person arrested shall be brought to the residence of any of the
above named officials nearest the place of arrest.
D. Failure to deliver the person charged or suspected as terrorists to the proper judicial; authority within three days
is punished by 10 years and one day to 12 years.
IX. Other Acts Punished As Offenses (punished by imprisonment of 10 years and one day to 12 years) which acts are
related to the arrest/detention of suspected terrorists
A. Violation of the rights of a person detained
1. Right to be informed of the nature and cause of the arrest; to remain silent; to counsel
2. To communicate and confer with counsel at any time without restriction
3. To communicate at any time and without restrictions with members of family or relatives and be visited by
them
4. To avail of the services of a physician of choice
XIII. Territorial Application of the law:

The law applies to any person who commits an act covered by the law if committed:

A. Within the terrestrial domain, interior waters, maritime zone and airspace of the Philippines
B. Inside the territorial limits of the Philippines
C. On board a Philippine ship or airship
D. Within any embassy, consulate, diplomatic premises belonging to or occupied by the Philippine government in an
official capacity
E. Against Philippine citizens or persons of Philippine descent where their citizenship or ethnicity was a factor in the
commission of the crime
F. Directly against the Philippine government.

Grave Coercion vs. Human Security

B. Anti-Piracy Act

PD 532 (ANTI-PIRACY AND ANTIHIGHWAY ROBBERY LAW OF 1974)

Vessel any vessel or watercraft used for (a) transport of passengers and cargo or (b) for fishing. Punishes the act of
AIDING OR ABETTING PIRACY.
Requisites:
1. Knowingly aids or protects pirates;
2. Acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; 3. Directly or
indirectly abets the commission of piracy. NOTE: Under PD 532, piracy may be committed even by a passenger or
member of the complement of the vessel

Robbery in Band Brigandage Brigandage under PD 532

offender At least 4 armed men 4 armed men Any person/group(even
one)
Venue anywhere PH Highway PH Highway
 Act punished Robbery Other unlawful acts with Robbery/extortion
use of violence and
intimidation

C. ANTI-HIJACKING LAW REPUBLIC ACT 6235

a. ACTS PUNISHED:
i. 1. usurping or seizing control of an aircraft of Philippine registry while it is
in flight; compelling the pilots thereof to change its course or destination
ii. 2. usurping or seizing control of an aircraft of foreign registry, while within
Philippine territory, compelling the pilots thereof to land in any part of
Philippine territory
iii. 3. carrying or loading on board an aircraft operating as a public utility
passenger aircraft in the Philippines flammable, corrosive, explosive or
poisonous substances; and
iv. 4. loading, shipping, or transporting on board a cargo aircraft operating as
a public utility in the Philippines, flammable, corrosive, or poisonous
substance if not done in accordance with the rules and regulations of the
Air Transportation Office.
MEANING OF aircraft is in flight From the moment all exterior doors are closed following
embarkation until the same doors are again opened for disembarkation.

Question: Compelling the pilot of an aircraft of Philippine Registry to change its destination is __________.
(0.5%)
(A) grave coercion
(B) a violation of the Anti-Hijacking Law or R.A. No. 6235
(C) grave threats
(D) a violation of the Human Security Act of 2007 or the Anti-Terrorism Law
(E) All of the above.

II. Against Fundamental Law of State

A. Human Security Act/ Terrorism Financing Prevention Act-to protect life, liberty, and property from
acts of terrorism and to condemn terrorism and those who support and finance it and to recognize
it as inimical and dangerous to national security and the welfare of the people, and to make the
financing of terrorism a crime against the Filipino people, against humanity, and against the law of
nations.
SEC. 3. Definition
(e) Designated persons refers to:
(1) any person or entity designated and/or identified as a terrorist, one who finances terrorism, or a terrorist
organization or group under the applicable United Nations Security Council Resolution or by another
jurisdiction or supranational jurisdiction;
(2) any organization, association, or group of persons proscribed pursuant to Section 17 of the Human Security
Act of 2007; or
(3) any person, organization, association, or group of persons whose funds or property, based on probable
cause are subject to seizure and sequestration under Section 39 of the Human Security Act of 2007.
(f) Forfeiture refers to a court order transferring in favor of the government, after due process, ownership of property or
funds representing, involving, or relating to financing of terrorism as defined in Section 4 or an offense under Sections 5,
6, 7, 8, or 9 of this Act.
(g) Freeze refers to the blocking or restraining of specific property or funds from being transacted, converted, concealed,
moved or disposed without affecting the ownership thereof.
(h) Property or funds refer to financial assets, property of every kind, whether tangible or intangible, movable or
immovable, however acquired, and legal documents or instruments in any form, including electronic or digital,
evidencing title to, or interest in, such funds or other assets, including, but not limited to, bank credits, travellers cheques,
bank cheques, money orders, shares, securities, bonds, drafts, or letters of credit, and any interest, dividends or other
income on or value accruing from or generated by such funds or other assets.
(i) Terrorist refers to any natural person who:
(1) commits, or attempts, or conspires to commit terrorist acts by any means, directly or indirectly,
unlawfully and willfully;
(2) participates, as a principal or as an accomplice, in terrorist acts;
(3) organizes or directs others to commit terrorist acts; or
 (4) contributes to the commission of terrorist acts by a group of persons acting with a common
purpose where the contribution is made intentionally and with the aim of furthering the terrorist act
or with the knowledge of the intention of the group to commit a terrorist act.
(j) Terrorist acts refer to the following:
(1) Any act in violation of Section 3 or Section 4 of the Human Security Act of 2007;
(2) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking
an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or
context, is to intimidate a population, or to compel a government or an international organization to do or to
abstain from doing any act; xxx
(k) Terrorist organization, association or a group of persons refers to any entity owned or controlled by any terrorist or
group of terrorists that: (1) commits, or attempts to commit, terrorist acts by any means, directly or indirectly, unlawfully
and willfully; (2) participates as an accomplice in terrorist acts; (3) organizes or directs others to commit terrorist acts; or
(4) contributes to the commission of terrorist acts by a group of persons acting with common purpose of furthering the
terrorist act where the contribution is made intentionally and with the aim of furthering the terrorist act or with the
knowledge of the intention of the group to commit a terrorist act.
SEC. 4. Financing of Terrorism. Any person who, directly or indirectly, willfully and without lawful excuse, possesses,
provides, collects or uses property or funds or makes available property, funds or financial service or other related
services, by any means, with the unlawful and willful intention that they should be used or with the knowledge that they
are to be used, in full or in part: (a) to carry out or facilitate the commission of any terrorist act; (b) by a terrorist
organization, association or group; or (c) by an individual terrorist, shall be guilty of the crime of financing of terrorism
-person who organizes or directs others to commit financing of terrorism under the immediately preceding
paragraph shall likewise be guilty of an offense
-knowledge or intent may be established by direct evidence or inferred from the attendant circumstances.
-not necessary that the funds were actually used to carry out a crime referred to in Section 3(j).

SEC. 5. Attempt or Conspiracy Any attempt to commit any crime under Section 4 or Section 8 under this Act.
Conspiracy - when two (2) or more persons come to an agreement concerning the commission of such offenses and
decided to commit it.
SEC. 6. Accomplice. not principal under Article 17 of the Revised Penal Code or a conspirator as defined in Section 5
hereof, cooperates in the execution of either the crime of financing of terrorism or conspiracy to commit the crime of
financing of terrorism by previous or simultaneous acts.
SEC. 7. Accessory. person having knowledge of the commission of the crime of financing of terrorism but without having
participated therein as a principal, takes part subsequent to its commission, by profiting from it or by assisting the
principal or principals to profit by the effects of the crime, or by concealing or destroying the effects of the crime in order
to prevent its discovery, or by harboring, concealing or assisting in the escape of a principal of the crime shall be imposed
a penalty two degrees lower than that prescribed for principals in the crime of financing terrorism.
SEC. 8. Prohibition Against Dealing with Property or Funds of Designated Persons. Any person who, not being an
accomplice under Section 6 or accessory under Section 7 in relation to any property or fund:
(i) deals directly or indirectly, in any way and by any means, with any property or fund that he knows or has
reasonable ground to believe is owned or controlled by a designated person, organization, association or
group of persons, including funds derived or generated from property or funds owned or controlled,
directly or indirectly, by a designated person, organization, association or group of persons; or
(ii) makes available any property or funds, or financial services or other related services to a designated
and/or identified person, organization, association, or group of persons, shall suffer the penalty
of reclusion temporal in its maximum period to reclusion perpetua and a fine of not less than Five hundred
thousand pesos (Php500,000.00) nor more than One million pesos (Php1,000,000.00).
SEC. 9. Offense by a Juridical Person, Corporate Body or Alien. who participated in, or allowed by their gross negligence,
the commission of the crime or who shall have knowingly permitted or failed to prevent its commission. If the offender
is a juridical person, the court may suspend or revoke its license. If the offender is an alien, the alien shall, in addition to
the penalties herein prescribed, be deported without further proceedings after serving the penalties herein prescribed.
SEC. 10. Authority to Investigate Financing of Terrorism. AMLC, either upon its own initiative or at the request of the
ATC, is hereby authorized to investigate:
(a) any property or funds that are in any way related to financing of terrorism or acts of terrorism;
(b) property or funds of any person or persons in relation to whom there is probable cause to believe that such person
or persons are committing or attempting or conspiring to commit, or participating in or facilitating the financing of
terrorism or acts of terrorism as defined herein.
The AMLC may also enlist the assistance of any branch, department, bureau, office, agency or instrumentality of the
government, including government-owned and -controlled corporations in undertaking measures to counter the
financing of terrorism, which may include the use of its personnel, facilities and resources.
SEC. 11. Authority to Freeze. AMLC, either upon its own initiative or at the request of the ATC, is hereby authorized to
issue an ex parte order to freeze without delay: (a) property or funds that are in any way related to financing of terrorism
or acts of terrorism; or (b) property or funds of any person, group of persons, terrorist organization, or association, in
relation to whom there is probable cause to believe that they are committing or attempting or conspiring to commit, or
participating in or facilitating the commission of financing of terrorism or acts of terrorism as defined herein.
The freeze order-effective not exceeding twenty (20) days and may be extended up to a period not exceeding six (6)
months upon order of the Court of Appeals provided 20 day period shall be tolled upon filing of a petition to extend the
effectivity of the freeze order.
The AMLC should issue a freeze order with respect to property or funds of a designated organization, association, group
or any individual to comply with binding terrorism-related Resolutions, including Resolution No. 1373, of the UN Security
Council pursuant to Article 41 of the Charter of the UN. Said freeze order shall be effective until the basis for the issuance
thereof shall have been lifted. During the effectivity of the freeze order, an aggrieved party may, within twenty (20) days
from issuance, file with the Court of Appeals a petition to determine the basis of the freeze order according to the
principle of effective judicial protection.
However, if the property or funds subject of the freeze order under the immediately preceding paragraph are found to
be in any way related to financing of terrorism or acts of terrorism committed within the jurisdiction of the Philippines,
said property or funds shall be the subject of civil forfeiture proceedings as hereinafter provided.
SEC. 19. Extra-Territorial Application of this Act. Subject to provision existing treaty, including the International
Convention for the Suppression of the Financing of Terrorism of which the Philippines is a State Party, and to any contrary
provision of any law of preferential application, the criminal provisions of this Act shall apply:
(a) to individual persons who, although physically outside the territorial limits of the Philippines, commit, conspire or plot
to commit any of the crimes defined and punished in this Act inside the territorial limits of the Philippines;
(b) to individual persons who, although physically outside the territorial limits of the Philippines, commit any of the said
crimes on board Philippine ship or Philippine airship;
(c) to individual persons who commit any of said crimes within any embassy, consulate, or diplomatic premises belonging
to or occupied by the Philippine government in an official capacity;
(d) to individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes
against Philippine citizens or persons of Philippine descent, where their citizenship or ethnicity was a factor in the
commission of the crime; and
(e) to individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes
directly against the Philippine government.
- apply to a Filipino national who, although outside the territorial jurisdiction of the Philippines, commit, conspire
or plot to commit any of the crimes defined and punished in this Act.
- alien whose extradition is requested pursuant to the International Convention for the Suppression of the
Financing of Terrorism, and that alien is not extradited to the requesting State, the Republic of the Philippines,
without exception whatsoever and whether or not the offense was committed in the Philippines, shall submit
the case without undue delay to the Department of Justice for the purpose of prosecution in the same manner
as if the act constituting the offense had been committed in the Philippines, in which case, the courts of the
Philippines shall have jurisdiction over the offense.
a. Anti-Torture Act
No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against
him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. Section 12,
Article III of the 1987 Constitution
R.A 9745 Anti Torture
(a) to value the dignity of every human person and guarantee full respect for human rights;
(b) to ensure that the rights of all persons, including suspects, detainees and prisoners are
respected at all times; that no person placed under investigation or held in custody by any person
in authority or agent of a person in authority shall be subjected to torture, physical harm, force,
violence, threat or intimidation or any act that impairs his/her free will; and that secret detention
places, solitary, incommunicado or other similar forms of detention, where torture may be carried
out with impunity, are hereby prohibited; and

i. (a) Physical torture is a form of treatment or punishment inflicted by a person in

authority or agent of a person in authority upon another in his/her custody that
causes severe pain, exhaustion, disability or dysfunction of one or more parts of the
body, such as:

1. systematic beating, headbanging, punching, kicking, striking with truncheon or

rifle butt or other similar objects, and jumping on the stomach;

2. food deprivation or forcible feeding with spoiled food, animal or human excreta
and other stuff or substances not normally eaten;

3. electric shock;
 4. cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing
of pepper or other chemical substances on mucous membranes, or acids or spices
directly on the wound(s);

5. the submersion of the head in water or water polluted with excrement, urine,
vomit and/or blood until the brink of suffocation;

6. being tied or forced to assume fixed and stressful bodily position;

7. rape and sexual abuse, including the insertion of foreign bodies into the sex organ
or rectum, or electrical torture of the genitals;

8. mutilation or amputation of the essential parts of the body such as the genitalia,
ear, tongue, etc.;

9. dental torture or the forced extraction of the teeth;

10. pulling out of fingernails;

11. harmful exposure to the elements such as sunlight and extreme cold;

12. the use of plastic bag and other materials placed over the head to the point of
asphyxiation;

13. the use of psychoactive drugs to change the perception, memory, alertness or
will of a person, such as: (i) the administration of drugs to induce confession and/or
reduce mental competency; or (ii) the use of drugs to induce extreme pain or
certain symptoms of a disease; and

14. other analogous acts of physical torture; and

(b) Mental/Psychological torture refers to acts committed by a person in authority

or agent of a person in authority which are calculated to affect or confuse the mind
and/or undermine a persons dignity and morale, such as:
1. blindfolding;
2. threatening a person(s) or his/her relative(s) with bodily harm, execution or other
wrongful acts;
3. confinement in solitary cells or secret detention places;

4. prolonged interrogation;
5. preparing a prisoner for a show trial, public display or publichumiliation of a
detainee or prisoner;
6. causing unscheduled transfer of a person deprived of liberty from one place to
another, creating the belief that he/she shall be summarily executed;
7. maltreating a member/s of a persons family;
8. causing the torture sessions to be witnessed by the persons family, relatives or
any third party;
9. denial of sleep/rest;
10. shame infliction such as stripping the person naked, parading him/her in public
places, shaving the victims head or putting marks on his/her body against his/her
will;
11. deliberately prohibiting the victim to communicate with any member of his/her
family; and
12. other analogous acts of mental/psychological torture.
ii. Penalty.
(1) penalty of reclusion perpetua upon the perpetrators of the following acts:
1. Torture resulting in the death of any person;
2. Torture resulting in mutilation;
3. Torture with rape;
4. Torture with other forms of sexual abuse and, in consequence of
torture, the victim shall have become insane, imbecile, impotent,
blind or maimed for life; and
5. Torture committed against children.
 (2) reclusion temporal shall be imposed on those who commit any act of
mental/psychological torture resulting in insanity, complete or partial
amnesia, fear of becoming insane or suicidal tendencies of the victim due
to guilt, worthlessness or shame.

(3) prision mayor in its medium and maximum periods shall be imposed if, in
consequence of torture, the victim shall have lost the power of speech or
the power to hear or to smell; or shall have lost an eye, a hand, a foot, an
arm or a leg; or shall have lost the use of any such member; or shall have
become permanently incapacitated for labor.

(4) prision correccional in its maximum period to prision mayor in its

minimum period shall be imposed if, in consequence of torture, the victim
shall have been ill or incapacitated for labor for more than thirty (30) days
but not more than ninety (90) days.

(5) prision correccional in its maximum period shall be imposed on the

immediate officer who, either deliberately or by inexcusable negligence,
failed to do an act even if he/she has knowledge or, owing to the
circumstances at the time, should have known that acts of torture or
other cruel, inhuman or degrading treatment or punishment shall be
committed, is being committed or has been committed by his/her
subordinates or by others within his/her area of responsibility and, despite
such knowledge, did not take preventive or corrective action either
before, during or immediately after its commission, when he/she has the
authority to prevent or investigate allegations of torture or other cruel,
inhuman and degrading treatment or punishment.

(6) prision correccional in its minimum and medium period shall be imposed
if, in consequence of torture, the victim shall have been ill or incapacitated
for labor for thirty (30) days or less.

(7) arresto mayor shall be imposed for acts constituting cruel, inhuman or
degrading treatment or punishment
Question: X, a police officer, placed a hood on the head of W, a suspected drug pusher, and watched as Y and Z, police
trainees, beat up and tortured W to get his confession. X is liable as

A. as accomplice in violation of the Anti-Torture Act.

B. a principal in violation of the Anti-Torture Act.
C. a principal in violation of the Anti-Hazing Law.
D. an accomplice in violation of the Anti-Hazing Law.

Such deprivation caused him physical discomfort. What crime, if any, was committed in connection with the solitary
confinement and food deprivation of AA? Explain your answer. (5%)

ANSWER:
The crime committed is Violation of RA 9745, The Anti-Torture Act. Food deprivation and
confinement in solitary cell are considered as physical and psychological torture under Section 4(2) of RA 9745.

b. Custodial Investigation
Any person under investigation for the commission of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in
the presence of counsel. Section 12 (1), Article III of the 1987 Constitution
This is different from preliminary investigation but it serves the same purpose: to protect the rights of a detained person.

Custodial investigation involves any questioning by law enforcement people after a person is taken into custody or
deprived of his freedom in any significant manner. That includes "inviting" a person to be investigated in connection of a
crime of which he's suspect and without prejudice to the "inviting" officer for any violation of law. If a person is taken
into custody and the interrogation/questioning tends to elicit incriminating statements, RA 7438 becomes operative
(People vs. Tan, GR 117321, February 11, 1998.) Application of actual force or restraint isn't necessary; intent to arrest
is sufficient as well as the intent of the detainee/arrested person to submit while thinking that submission is necessary.
It will also apply if the "invitation" is given by the military and the designated interrogation site is a military outpost
(Sanchez vs. Demetriou, GR 111771-77, November 9, 1993.)

Once a person has been taken into police custody the rules of RA 7438 are to be applied. The rights of a person under
custodial investigation are the following:

1.) To be assisted by counsel

2.) To be informed by the arresting officer, in a language he can understand, of his right to remain
silent and to counsel (and if he can't afford one, he'll be provided one)
3.) The custodial investigation report will be null and void if it hasn't been read and explained to him
by counsel before he signed (or thumbmarked if he is illiterate) it
4.) Extrajudicial confessions must be put in writing and must be signed by him in the presence of
counsel or, if there's a valid waiver, any one of his parents, older siblings, spouse, municipal mayor,
municipal judge, district school supervisor or a priest or religious minister chosen by him
5.) The waiver of a person under custodial investigation or detained under Art. 125 of the Revised
Penal Code (delay in delivering detained persons to the proper judicial authority) must be put in
writing and signed by the detainee in the presence of counsel or it will be null and void
6.) To be visited by, or have conferences with, members of his immediate family, counsel, doctor,
priest or religious minister or any national NGO duly accredited by the CHR or international NGO
duly accredited by the office of the President

The immediate family includes the following: spouse, parents, children, siblings, grandparents,
grandchildren, uncles, aunts, nephews, nieces, guardians, wards and girlfriends and boyfriends.

If the assisting counsel is a private practitioner, he is entitled to the certain amount for his services
in the custodial investigation:

If counsel is absent, a custodial investigation can't proceed and the detainee must be treated in
accordance with Art. 125 of the Revised Penal Code.

Obstructing counsel, immediate family members, doctors, priests or religious ministers from visiting or conferring with
the detainee at any time of the day (or night in urgent cases, like when the detainee needs to have the sacrament of
anointing the sick administered to him) will be penalized by 4 to 6 years' imprisonment and a fine of Php4,000.

A person under a normal audit investigation is not considered to be under custodial investigation since a COA
audit examiner isn't considered an arresting officer under RA 7438 (Navallo vs. Sandiganbayan, 234 SCRA 175.)

Grave Coercion vs. Maltreatment of Prisoner (1999)

Forcibly brought to the police headquarters, a person was tortured and maltreated by agents of the
law in order to compel him to confess a crime imputed to him. The agents failed, however, to draw
from him a confession which was their intention to obtain through the employment of such means.
What crime was committed by the agents of the law? Explain your answer. (3%)
SUGGESTED ANSWER: Evidently, the person tortured and maltreated by the agents of the law is a
suspect and may have been detained by them. If so and he had already been booked and put in jail,
the crime is maltreatment of prisoner and the fact that the suspect was subjected to torture to
extort a confession would bring about a higher penalty. In addition to the offender's liability for the
physical injuries inflicted. But if the suspect was forcibly brought to the police headquarters to
make him admit the crime and tortured/ maltreated to make him confess to such crime, but later
released because the agents failed to draw such confession, the crime is grave coercion because of
the violence employed to compel such confession without the offended party being confined in jail.
(US vs. Cusi, 10 Phil 143) It is noted that the offended party was merely "brought" to the police
headquarters and is thus not a detention prisoner. Had he been validly arrested, the crime
committed would be maltreatment of prisoners.
c. Anti-Wire Tapping Law
-to punish wiretapping and other related violations of the right to privacy of communication. It also intends to stop the
practice by officers of the government of spying on one anothera "most obnoxious instrument of oppression or
arbitrary power." The law also declares inadmissible such illegally obtained recordings in civil, criminal, administrative
and legislative hearings or investigations.
Does the Anti-Wiretapping Law prohibit the recording of all communications? No. The law prohibits the recording and
interception only of private communications. The law does not prohibit the recording of public speeches by members of
the audience, or other forms of "public" communication such as press conferences, interviews, and board meetings that
are openly recorded. The law expressly punishes those who secretly record or intercept private conversations and
communications. By private conversations and communications, the law simply refers to communication between
persons privately made:
Private vs. public communications.
In this case, the tape recording captured a heated conversation between a policeman and a reporter which later led to
the violent death of the reporter, and which took place at the police station in the presence of several people. The Court
held that the conversation was not a private communication, and therefore was admissible in evidence in the homicide
case filed against the policeman for the reporter's death, even if the policeman did not authorize the recording. Navarro
v. Court of Appeals
The law does not prohibit the recording of all private communications, but provides a limited and narrowly drawn exception
for law enforcers. The law provides that police and other law enforcement agencies may wiretap private communications
but
1. law enforcers must first secure a court order; and
2. only in cases involving crimes against national security under the Revised Penal Code (treason, espionage,
rebellion or sedition) and kidnapping; rebellion, conspiracy and proposal to commit rebellion, inciting to
rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, there must be prior proof that
rebellion or acts of sedition have actually been or are being committed.

The law does not prohibit the recording of private communications that are authorized by ALL parties.

-ALL the parties to the private conversation expressly or impliedly consent to its being recorded.

-If one party to the communication authorizes the recording, but the other party does not, the party who recorded the
conversation is liable for violating R.A. 4200

What offenses are punished by the Anti-Wiretapping Law?

The law punishes the following acts:
1. Wiretapping or using any other device or arrangement to secretly overhear, intercept or record a private
communication or spoken word, except where the same is done pursuant to a court order and complies
with all the conditions imposed by section 3 of R.A. 4200.
2. Possessing any tape, wire, disc or other record, or copies, of an illegally obtained recording of a private
communication, knowing that it was illegally obtained.
3. Replaying an illegally obtained recording for another person, or communicating its contents, or furnishing
transcripts of the communication, whether complete or partial.
4. Acts of peace officers (law enforcement agents) in violation of section 3 of R.A. 4200 on the proper procedure
for securing and implementing a court order authorizing the wiretapping of a private communication.
5. Persons who "wilfully or knowingly aid, permit or cause to be done the acts described above, equally liable as
direct participants to the illegal wiretap or secret recording.

What must be proven to sustain a charge of wiretapping or using any other device or arrangement to secretly overhear,
intercept or record a private communication? The prosecution must prove that a wiretap or other device was actually
used to secretly overhear, intercept or record a private communication without a court order.
What must be proven to sustain a charge of possessing a tape, wire, disc or other record, or copies of an illegally obtained
recording of a private communication?

R.A. 4200 requires that the accused knowingly possesses the illegally obtained recording. The Revised Rules on Evidence
define personal knowledge as facts derived from ones own perception.
(1) that an illegal wiretap actually took place;
(2) that the recording in the possession of the accused emanates from that illegal wiretap; &
(3) that the accused knew, i.e., had personal knowledge, that the recording was obtained illegally. To hold otherwise
would mean that persons could be convicted based on hearsay.

Question: C told his lawyer, Atty. T, to settle the criminal case he filed against L, and so Atty. T called up through telephone
L, and informed him that C is willing to have the case dismissed provided that L pays P8, 000.00 and makes a public
apology. L told Atty. T to call him up the following day as he would consult his lawyer. The following day when Atty. T
called up L, the latter requested his lawyer Atty. X, who was in his (L's) office at that time, to secretly listen to the
telephone conversation through a telephone extension. When the P8, 000.00 agreed upon on the telephone was
delivered to Atty. T at the appointed place and time, he (Atty, T) was arrested by the police for Robbery/Extortion on
complaint of L who was accompanied by his lawyer, Atty. X. Atty. X executed an affidavit stating that he heard Atty. T
demanding P8,000.00 for the withdrawal of the criminal complaint through a telephone extension. On the basis of this
affidavit, Atty, T filed a criminal complaint against Atty. X and L for violation of sec. 1 of RA. No. 4200, otherwise known
as the Anti-Wire Tapping Act. which says: "It shall be unlawful for any person not being authorized by all the parties to
any private conversation or spoken word to tap any wire or cable or by using any other device or arrangement, to secretly
overhear, intercept or record such communication or spoken word by using a device commonly known as Dictaphone or
dictograph or detectaphone, walkie talkie or tape recorder, or however otherwise described." If you were the Judge,
would you convict or acquit L and his lawyer, Atty. X? Support your decision with reasons.

Answer: No, because it is a telephone extension and those enumerated by law means an extension with permanent
recording of which a telephone extension is not. (Gaanan vs. IAC, 145 SCRA 112)
Does a person who has, listens to, distributes or replays, a copy of the alleged Gloria-Garci recording violate R.A. 4200?

To violate R.A. 4200, there must first be proof that (1) an illegal wiretap actually occurred; (2) that the recording listened to,
replayed or distributed emanates from that illegal wiretap; and (3) that the person who listened to, replayed or distributed the
recording knew (i.e., had personal knowledge) that the recording was illegally obtained.

Third partys claim that the recording was wiretapped is not enough to constitute a violation of R.A. 4200, since that is hearsay.

Can a person be arrested without a warrant for possessing or playing or distributing the alleged Gloria-Garci recording?

For a person to be validly arrested without a warrant, that person must be caught in the act of committing or attempting to commit
a crime, or when a crime has just been committed and the arresting officer has personal knowledge that that person probably
committed that crime.

Applied to R.A. 4200, law enforcement agents can only arrest a person without a warrant if they have probable cause based on
personal knowledge that the person to be arrested possesses or plays or distributes the recording knowing that it was illegally
obtained. Thus, even if the police have probable cause to believe that a person possesses the alleged Gloria-Garci recordings,
they cannot arrest that person unless they also have probable cause that that person has personal knowledge that the recording in
his possession was illegally obtained.

Can the media be prohibited from airing voice recordings that are allegedly illegally obtained?

Freedom of speech, freedom of the press and freedom to assemble and petition the government for redress of grievances are
founded on the need to discuss publicly and truthfully any matter of public concern without censorship or punishment. That is why
our courts have consistently rejected any prior restraint on the communication of views and free exchange of information on
matters of public concern.

Are illegally obtained voice recordings admissible in impeachment proceedings? Section 4 of R.A. 4200 expressly declares that
illegally obtained recordings are inadmissible in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
Assuming that a voice recording is admissible in evidence under R.A. 4200, how is it duly authenticated in civil, criminal and
administrative cases? SC requires that A voice recording is authenticated by the testimony of a witness (1) that he personally
recorded the conversation; (2) that the tape played in court was the one he recorded; and (3) that the voices on the tape are those
of the persons such are claimed to belong.
Rule 11, Section 1 of the Rules on Electronic Evidence: audio, photographic and video evidence of events, acts or transactions
shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or
authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof.
What are the penalties for violating the Anti-Wire Tapping Law?
The direct participants to the wiretapping, and any one who aids, permits or causes the violation are, upon conviction, punished
by imprisonment of not less than six months nor more than six years. If the offender is a public official at the time of the offense,
he shall suffer the accessory penalty of perpetual absolute disqualification from public office. If the offender is a foreigner, he shall
be subject to deportation.