San Beda College of Law

Mendiola, Manila

CRIMINAL LAW I

LIBRARY WORK No. 2

SECTION 1K
Contributors:

No. 1 - CUNANAN, MILANE ANNE C

LAMORENA, ANGELICO JOSHUA U.
GIRON, JOSE JUSTIN C.
CASTILLO, FRANCIS ANGELO L.
PASCUAL, PAOLO ENRINO T.

No. 2 - CAMACHO, LORENA LOIS M.

GINGOYON, CORDELL JERICHO M.
SANTOS, RAPH KEVIN L.
ALBERTO, JUDIE ANNE D.C.
MAGNAYON, PAOLO MILLAN A.

No. 3 - PEDRIÑA, NICHOLE PATRICIA B.

CUBE, EUNICE D.
TAMAYO, MICHAEL ANGELO G.
CUBILLO, KYLE LORENZO L.
CATBAGAN, RAPHAEL S.

No. 4 - ALVARO, THERESE ANNE F.

CAOILE, KIMBERLY CLAIRE P.
MARQUEZ, RIA YZABELA G.
TUMBALI, FATIMA MAE D

No. 5 - CRUZ, LOUIE LOU E.

DE GUZMAN, JOSEPH NOEL T.
SERRANO, JOSEPH NICHOLAS R.
GUERRERO, CARL EIHMER P
PALOS, ARCTURUS VIKTOR R

No. 6 - ENFECTANA, MA. ANGELICA M.

LECHUGA, ANDREA KLEIN T.
CELZO, CAMILLE C.
GACULA, RAYA RISHA D.

No. 7 - HERMOGENES, REA SHANINE C

FOJAS, ANGELICA N.
PABUSTAN, MHERYZA D.C
DELA RAMA, CZESCA ANGELICA P.
OLABRE, PAULLINE JOYCE N.
1. Can the police officers in the Kian Delos Santos case invoke
paragraphs 1, 4, 5 & 6 of Art. 11 RPC? Explain.

Overview of the case:

On the night of August 16, 2017, an 11-man team from the Caloocan
Police Community Precinct 7 conducted an anti-illegal drugs operation at Block
7, Riverside, Barangay 160, Caloocan City. Seventeen-year-old Kian Delos
Santos was killed over the course of this drug raid.

A complaint for murder, violation of Domicile under Article 128 of the

Revised Penal Code and Section 29 of the Comprehensive Dangerous Drugs
Act or planting of evidence have been filed against Chief Inspector Amor
Cerillo, Police Officer 3 Arnel Oares, PO1 Jeremias Tolete Pereda and Jerwin
Roque.

The NBI said contrary to the claim of the police officers that Kian fought
it out with the police, evidence showed that Kian was shot to the head —
behind the left ear and inside the left ear when he was in a fetal position.

“Police protocol mandates that any police officer making an arrest

should immediately search the arrested individual for any dangerous weapons
or prohibited items and afterwards bring the arrested individual at the police
station for proper filing of the case,” the NBI said.

However, on Kian’s case, the NBI said “PO3 Arnel Oares and his cohorts
accosted victim and afterwards dragged him towards Tullahan River and shot
him without mercy.”

The NBI said Kian was killed in the area opposite the police station
“which proves that they [police] have no intention in bringing victim to their
police office.”

Ballistic examination conducted by the Philippine National Police (PNP)

Crime Laboratory showed that a 9mm that was found in the crime scene has
the same characteristic as that of the 9mm pistol issued to Oares. The NBI
noted that the same firearm also yielded positive for gunpowder nitrate
residue.

“Given the circumstances, gathered evidence proved that it was PO3

Arnel Oares who shot the victim,” the NBI stated in its complaint.
Paraffin examination, the NBI added, showed that Kian was negative on both
is hands negating “the allegations that victim fired shots at them upon sensing
their arrival so they have no other option than to fire back at victim, hitting
him in the head causing his instantaneous death.”

The police argued that Kian has a .45 caliber pistol and two sachets of shabu.

But the NBI pointed out that Kian was only wearing boxer shorts making
it easier for the police to spot the firearm when they accosted him.

The complaint was signed by NBI Director Dante Gierran.

A criminal complaint is already pending before the DOJ also for murder
and torture were filed by Kian’s parents against the same police officers.
Police officers still claim that their actions were justified for they were acting
to defend themselves. They also claim that they were in performance of their
duty and were under order.
Art. 11. Justifying circumstances. — The following do not incur any
criminal liability:

1. Anyone who acts in defense of his person or rights, provided

that the following circumstances concur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.

2. Anyone who acts in defense of the person or rights of his

spouse, ascendants, descendants, or legitimate, natural, or
adopted brothers or sisters, or of his relatives by affinity in the
same degrees, and those by consanguinity with in the fourth
civil degree, provided that the first and second requisites
prescribed in the next preceding circumstance are present, and
the further requisite, in case the provocation was given by the
person attacked, that the one making defense had no part
therein.

3. Anyone who acts in defense of the person or rights of a

stranger, provided that the first and second requisites
mentioned in the first circumstance of this article are present
and that the person defending be not induced by revenge,
resentment or other evil motive.

4. Any person who, in order to avoid an evil or injury, does an

act which causes damage to another, provided that the
following requisites are present:

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to
avoid it.
Third. That there be no other practical and less harmful means
of preventing it.

5. Any person who acts in the fulfillment of a duty or in the

lawful exercise of a right or office.

6. Any person who acts in obedience to an order issued by a

superior for some lawful purpose.

Paragraph 1 (Self Defense)

The defense claims justification for their acts, for they were acting on
self-defense against the unlawful aggression from the victim. By firing shots
against the police officers, their lives were put into imminent danger, hence,
they had to act in order to defend themselves, which led to the death of the
suspect.

However, evidence of the prosecution suggests that Kian did not fire a
pistol against the police officers. According to the witnesses, the police officers
were able to subdue Kian and put him under their control, thus, he is no longer
a threat to anyone. This only proves that it is impossible for Kian to shoot at
them. Kian cannot be an unlawful aggressor under this circumstance.
 Unlawful aggression being absent; self-defense cannot be invoked by
the defense as a justifying circumstance to acquit the police officers from
criminal liability.

Paragraph 4 (Avoidance of greater evil)

For this justifying circumstance to be considered, the following requisites shall

be present:

1. That the evil sought to be avoided actually exists;

2. That the injury feared be greater than that done to avoid it; and
3. That there be no other practical and less harmful means of preventing
it.

In the claim for avoidance of greater evil, the police officers’ claims that
since the deceased, Kian Delos Santos, drew his pistol and fired at them, the
police in order to avoid their injury or death, they acted in accordance to the
imminent danger of losing their lives therefore they acted within their instinct
of self-preservation.

In connection with the three requisites of paragraph four, the prosecution

disagrees with the defense’ version since there is no unlawful aggression on
the part of the deceased. According to evidence of NBI and testimonies of NBI
and the testimonies of the witnesses, as discussed above there was no actual
evil sought to be prevented. With the absence of the first requisite the second
and third requisites cannot arise.

Paragraph 5 (In fulfillment of duty)

In order for this justifying circumstance to be considered, the following

requisites must be present:

1. That the accused acted in the performance of a duty or in the lawful

exercise of a right or office; and

2. That the injury caused or the offense committed be the necessary

consequence of the due performance of duty or the lawful exercise of
such right or office.

The defense stated that they were acting in their official duty as police
officers assigned to the drug raid. But they did not follow the standard
operating procedures in making sure that the person being arrested is
unarmed and poses no threat. Considering the fact that the police officers
assigned in this drug raid they should have considered this hostile situation.

On the other hand, the prosecution recognizes the presence of the first
requisite; the accused is indeed acting in the performance of their duty. But
the injury caused to the deceased, who had already been apprehended, was
neither warranted nor necessary. Being that the first requisite is present, and
the second is absent, the defense is only entitled to an incomplete justifying
circumstance to mitigate their sentence.
Paragraph 6 (In obedience to an order)

For this justifying circumstance to be considered, the following requisites shall

be present:

1. That an order has been issued by a superior;

2. That such order must be for some lawful purpose; and

3. That the means used by the subordinate to carry out said order is
lawful.

In the abovementioned case, the three Caloocan police officers, of whom

are part of the Oplan Galugad, are Police Officer 3 Arnel Oares and Police
Officers 1 Jeremias Pereda and Jerwin Cruz. Police claimed that they were
conducting drug raid during the shootout which led to the death of the victim.
Duterte reiterated that his order to the police was to “neutralize” criminals
who would resist but if the findings of the investigation will prove that there
is “rub out,” those who violated the law will put behind bars.

Assuming, arguendo, that there is an order to kill from an immediate

superior to shoot criminals who unlawfully aggressed with their arrest, the
means used to carry out the said order must be lawful. Based on the
testimonies of several witnesses, the police had beaten up the boy, gave him
a gun and forced him to run before shooting him. Thus, the means used by
the police will not fall within the ambit of the lawfulness of the means
employed. Further, lawfulness from the orders of an immediate superior
should always be taken into consideration. If proven unlawful, the
consequences, liabilities, and obligations of such acts may be passed to the
subordinates committing such acts.

Therefore, police officers in the above mentioned case cannot invoke the
justifying circumstances under paragraphs 1, 4, 5 & 6 of Article 11 of the
Revised Penal Code.

2. What evidence must be presented to convince the judge that

accused acted during lucid interval?

As provided in Article 12 of the Revised Penal Code, paragraph 1, an

insane is exempted from criminal liability, except if the person “acted during
a lucid interval.”

Insanity, by itself, is the complete deprivation of intellect as well as

freedom of will. Intellect and free will separate a man from a beast.

As an exempting circumstance, it must exist immediately preceding the

commission of a crime. Alternatively, it must be present at the precise
moment a crime is attempted or consummated.

In criminal proceedings, a defense of insanity should not be an afterthought

and should be brought up immediately. A party that pleads insanity bears the
burden of proving it.

The Supreme Court of Spain held that in order that the exempting
circumstance of insanity may be taken into account, it is necessary that (1)
there be a complete deprivation of intelligence while committing the act, that
is, that the accused be deprived of reason; (2) that he acts without the least
discernment; or (3) that there be a total deprivation of freedom of the will.
(People v. Formigones, 87 Phil. 658, 661) The insane is not so exempt in all
cases from criminal liability if it can be shown that he acted during a lucid
interval.

Lucid interval “refers to a brief period during which an insane person

regains sanity that is sufficient to regain the legal capacity to contract and to
act on his or her own behalf” (US Legal, 2016). During lucid interval, the
insane acts with intelligence.

In order to ascertain a person’s mental condition at the time of the act,

it is permissible to receive evidence of the condition of his mind during a
reasonable period both before and after that time. Mind can be known only by
outward acts. Thereby, we read the thoughts, the motives and emotions of a
person and come to determine whether his acts conform to the practice of
people of sound mind. To prove insanity, therefore, circumstancial evidence,
if clear and convincing, will suffice. (People v. Bonoan, 64 Phil. 93)

The prosecution may present an evidence that there was a motive on

the part of the insane to injure or kill the victim because of a quarrel or an
altercation or a disagreement few moments prior to the commission of the act
in question. Like in People v. Dungo, the court held that it was unusual for an
insane person to confront a specified person who may have wronged him for
it may be inferred that he was aware of his acts and has lucid intervals.

Although it has been held in People v. Rubios that any evidence that is
related to the mental condition of the accused after the commission of the
crime is inconsequential for the purposes of determining criminal liability
specially to support the plea of acquittal, however, other jurisprudences have
shown that the court was not excluded to use any subsequent acts or events
to prove that the accused indeed acted during lucid interval.

Thus, in the case of People vs. Dungo:

Experts testified that the accused was psychotic and insane before, during,
and after the commission of the crime. However, the court ruled that the
accused cannot invoke the defense of insanity because of the acts of the
accused immediately after the commission of the crime which is stated below:

XXX The evidence shows that the accused, at the time he

perpetrated the act, was carrying an envelope where the
fatal weapon was hidden. This is an evidence that the
accused consciously adopted a pattern to kill the victim.
The suddenness of the attack classified the killing as
treacherous and therefore murder. After the accused ran
away from the scene of incident after he stabbed the victim
several times, he was apprehended and arrested in Metro
Manila, an indication that he took flight in order to evade
arrest. This to the mind of the Court is another indication
that he was conscious and knew the consequences of his
acts in stabbing the victim XXX

The prosecution may also rely to the time when insanity was first raised
as a defense for the same must be invoked at the earliest possible or at the
very first opportunity. Thus, in People v. Opuran, the court held that the
accused-appellant Opuran acted during lucid interval as he only did raise
insanity after he testified on his defenses of alibi and denial. Invocation of
denial and alibi as defense indicates that the accused was in full control of his
mental faculties.
3. Can the bank security guard invoke par. 4 of Art. 12 RPC as his
defense in an alarm & scandal case for causing the discharge of his
firearm after slipping on the floor?

Article 12, paragraph 4 of the Revised Penal Code provides that “Any person
who, while performing a lawful act with due care, causes an injury by mere
accident without fault or intention of causing it” shall be exempt from criminal
liability. It is important to point out that the basis for this paragraph is the
lack of negligence and intent of the person who committed such act.

In this circumstance, if a bank security guard who in an alarm and

scandal case, slipped on the floor, causing the discharge of his firearm may or
may not invoke Art.12, Par.4 as his defense depending on the circumstances
which will be discussed below. But in order to strengthen or overthrow his
defense, we must distinguish negligence and an accident.

An accident occurs when there is an unforeseen event in which no fault

or negligence attaches to the defendant. It is an event without human agency,
or if happening wholly or partly through human agency, an event which under
the circumstance is unusual or unexpected by the person to whom it happens.
Negligence, on the other hand, occurs when there is failure to observe for the
protection or the interest of another person that degree of care, precaution
and vigilance which the circumstances justly demand without which such other
persons suffers injury. Thus, an accidental discharge of the firearm by the
accused would lean more on the mechanical nature of the firearm. A negligent
discharge of the firearm on the other hand, would arise from the failure of the
accused to exercise due care and vigilance in situations such as that would
disturb public peace.

In invoking Art. 12 par. 4 of the RPC as a defense to an unintentional

discharge of firearms in an alarm and scandals case, we must first understand
what constitutes it. Based on the situation provided, according to Art. 155 of
RPC, it falls under its category as “(1) Any person who within any town or
public place, shall discharge any firearm, rocket, firecracker, or other
explosive calculated to cause alarm or danger.” it was later agreed that the
phrase “cause alarm or danger” is a wrong translation of the spanish text
which reads, “que produzca alarma o peligro” which means that the act must
“produce alarm or danger” (Reyes, L., RPC, 18th ed., 2012 (book 2), 165)

We must also refer to the elements of RPC Art. 12, par. 4, for
reconciliation, which are (1) a person performing a lawful act (2) with due
care (3) causes an injury to another by mere accident (4) and without fault or
intention of causing it. Accident, as described by the third element, is
something that happens outside our will and although an act of our will, lies
beyond the bounds of humanly foreseeable consequences. (Reyes, L., RPC
book 1, 240, 2017)

Relying on the facts presented, though the “slipping on the floor” might
fall in the scope of ‘accident’, there was no evidence that there was an injury
caused to another. The absence of such makes it an absence of the 3rd
element and therefore makes the defense insufficient.

To further understand what are alarms and scandal cases the below-
mentioned article from the RPC shall be enumerated.

Article 155. Alarms and scandals. — The penalty of arresto menor or a fine
not exceeding P200 pesos shall be imposed upon:
1. Any person who within any town or public place, shall discharge any
firearm, rocket, firecracker, or other explosives calculated to cause alarm or
danger;

2. Any person who shall instigate or take an active part in any charivari or
other disorderly meeting offensive to another or prejudicial to public
tranquility;

3. Any person who, while wandering about at night or while engaged in any
other nocturnal amusements, shall disturb the public peace;

4. Any person who, while intoxicated or otherwise, shall cause any disturbance
or scandal in public places, provided that the circumstances of the case shall
not make the provisions of article 153 applicable.

What is this crime called alarms and scandals?

These are crimes of disturbance, disturbance of the public peace, by means of

causing a scandal or an alarming situation, as described by the above-
mentioned law.

Application to the case:

Can the security bank guard invoke par 4 of Art 12 as his defense in alarms
and scandals for causing the discharge of his firearm after slipping on the
floor?

No: Because it is stated in paragraph 1 of article 155 that regardless of the

intent of whether or not there was intentional firing, it is the result that will
matter which is the commotion, alarm, or scandal caused.

This defense would not hold up in court because it can be proven that although
there was a lack of intent on his part, there was negligence.

We consider the act of the security guard as negligent because first,

with reference to Republic Act No. 5487 (or an Act to Regulate the
Organization and Operation of Private Detective, Watchmen or Security
Guards Agencies), individuals who are employed by security agencies and
other agencies of similar nature are taught the basic rules of firearms safety
before the issuance of their firearm. Therefore, it is impossible for the
defendant not to be knowledgeable of the safety lock or catch of a firearm
that would have prevented the accidental discharge of the firearm. This would
already constitute negligence on his part.

Second, we consider the nature of an alarm and scandal case to be of a

public one, thus extra precaution and vigilance on part of the accused should
have been exercised since the presence of other individuals in such situation
would increase the risk the someone being injured.

In the case at bar, though the security guard did not intend to discharge
his firearm, once the prosecution has successfully proven beyond reasonable
doubt that there a commotion occurred, he must be punished. For his defense,
the guard may show that there were no people during that time or he was in
an isolated place that no one noticed the gunshot. But, to interpose as defense
that it was an accident, it will not hold in an Alarm and Scandal case.
 According to Justice Reyes, the phrase "calculated to cause alarm or
danger" is actually a wrong translation of the original Spanish text. It just
necessarily means that it is the result, not the intent, that counts. In other
words, the defense that he did not intentionally discharge the firearm will not
hold in an Alarm and Scandal case. The defense must only be that the
discharge of firearm did not result to a commotion, or alarm and scandal in its
literal sense. For as long as there is disorder and commotion that resulted, it
will already be punishable.

4. Any person who, while intoxicated or otherwise, shall cause any

disturbance or scandal in public places, provided that the
circumstances of the case shall not make the provisions of article 153
applicable.

What is this crime called alarms and scandals?

Briefly put, these are crimes of disturbance, disturbance of the public peace,
by means of cause a scandal or an alarming situation, as described by the law
above.

Paragraph 1 of Article 155

-If the accidental discharge and not aimed at any person, this paragraph can
be invoked along with Article 12 (4) “Anyone who acts in defense of his
persons or rights, provided that the following circumstances concur.
-On the other hand, discharge is aimed at a person, accused will be liable
under Art 254z

Application to the case:

Can the security bank guard invoke par 4 of Art 12 as his defense in alarms
and scandals for causing the discharge of his firearm after slipping on the
floor?

There can be 2 answers:

Yes: Provided that he accidentally discharged the firearm without aiming at

someone

No: Because it is stated in paragraph 1 of article 155 that regardless of the

intent of whether or not there was intentional firing, it is the result that will
matter which is the commotion, alarm, or scandal caused.

According to Justice Reyes, the phrase "calculated to cause alarm or danger"

is actually a wrong translation of the original Spanish text. It just necessarily
means that it is the result, not the intent, that counts. In other words, the
defense that he did not intentionally discharge the firearm will not hold in an
Alarm and Scandal case. The defense must only be that the discharge of
firearm did not result to a commotion, or alarm and scandal in its literal sense.
For as long as there is disorder and commotion that resulted, it will already
be punishable.
 In the case at bar, though the security guard did not intend to discharge
his firearm, once the prosecution has successfully proven beyond reasonable
doubt that there was a commotion that occurred, he must be punished. For
his defense, the guard may show that there were no people during that time
or he was in an isolated place that no one noticed the gunshot. But, to
interpose as defense that it was an accident, it will not hold in an Alarm and
Scandal case.

We consider the act of the security guard as negligent because first,

with reference to Republic Act No. 5487 (or an Act to Regulate the
Organization and Operation of Private Detective, Watchmen or Security
Guards Agencies), individuals who are employed by security agencies and
other agencies of similar nature are taught the basic rules of firearms safety
before the issuance of their firearm. Therefore, it is impossible for the
defendant not to be knowledgeable of the safety lock or catch of a firearm
that would have prevented the accidental discharge of the firearm. This would
already constitute negligence on his part.

Second, we consider the nature of an alarm and scandal case to be of a

public one, thus extra precaution and vigilance on part of the accused should
have been exercised since the presence of other individuals in such situation
would increase the risk the someone being injured.

4. Discuss the effect of RA 9344 on Art. 12

Republic Act No. 9344

AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE

SYSTEM, CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER
THE DEPARTMENT OF JUSTICE, APPROPRIATING FUNDS THEREFOR AND FOR
OTHER PURPOSES

Republic Act (RA) No. 9344, otherwise known as the Juvenile Justice
and Welfare Act of 2006, took effect on May 20, 2006. The author of this law
is Senator Francis “Kiko” Pangilinan, and it was approved by the Congress,
Senate and the former President Gloria Macapagal-Arroyo during her term on
April 28, 2006. The enactment was a progressive step towards a more
restorative and child-oriented juvenile justice system. It is in consonance with
the United Nations Convention on the Right of the Child (UN CRC) when
promoting the child's reintegration and constructive role in society. The old
and stigmatizing terminologies as “youthful offender” was changed in
accordance with international laws and guidelines to “child in conflict with law”
or (CICL) to avoid labeling – which only contributes to the development of a
consistent pattern of undesirable behavior.

Age required to be considered as a CICL and its legal effects

RA 9344 acknowledges the fact that most of the CICL have no proof of
age by presuming minority until otherwise proven. Sec 6, RA 9344 provides
for the Minimum age of criminal responsibility which states that a child 15
years of age or under at the time of the commission of the crime shall be
exempt from criminal liability. However, such child shall be subject to an
intervention program unless he/she acted with discernment in which case such
child will be subject to the appropriate proceedings set forth in the same Act.
Aforementioned section impliedly repealed Paragraphs 2 and 3 of Article 12 of
the Revised Penal Code. It declares that a child 15 years of age or under is
exempt from criminal liability and that a child above 15 years but below 18
years of age shall likewise be exempt from criminal liability unless he/she
acted with discernment, such child shall be subject to the appropriate
proceedings in accordance with this Act.

RA 9344 raises the age of absolute irresponsibility from nine to 15 years

of age and conditional irresponsibility from nine years of age and under fifteen
to 15 years of age to 18 years based on the complete absence of intelligence,
an element of voluntariness. This Act also provides for the periods of criminal
responsibility. Other than the two mentioned above, RA 9344 also states that
age of full responsibility covers people that are 18 years of age or over to 70
years and people of 15 years to 18 years and over 70 years of age, the
offender acting with discernment, as age of mitigated responsibility.

Legal effects:

The child shall be given to the custody and care of the parent or guardian
who shall be responsible with his surveillance and education. Otherwise, he
shall be committed to the care of the following, according to their order:

A. registered non- governmental organization

B. registered religious organization
C. member of the Barangay Council for the Protection of Children (BCPC)
D. local office of the Department of Social Welfare and Development (DSWD)
E. National office of the Department of DSWD

He shall also be subjected to a diversion program. It refers to an

alternative, child appropriate process of determining the responsibility and
treatment of the child in conflict of law in the basis of his social, cultural,
economic, psychological or educational background without resulting to formal
court proceedings. It may be conducted at the Katarungang Pambarangay,
police investigation or preliminary investigation and at all levels of proceedings
including judicial level.

It may not be subjected on court proceedings when the following conditions

concur:

1. Where the imposable penalty for the crime committed is not more than 6-
year imprisonment, it shall conduct mediation, family conferencing and
conciliation;
2. In victimless crime where the imposable penalty is not more than 6-year
imprisonment, the local social worker/officer shall meet with the child and
his/her parents or guardians for the development of the appropriate diversion
and rehabilitation program;
3. Where the imposable penalty for the crime exceeds 6 years, diversion
measured may be resorted only by the court.
At the same time, Republic Act 9344 provides for other effects:

i. decriminalizes the sniffling of rugby by a minor

ii. decriminalizes the violation of a minor of the Anti-Mendicancy Law,
which prohibits begging or beggars
iii. decriminalizes vagrancy and prostitution, punished under the
Revised Penal Code, when committed by a minor 15 years old or
below; the minor will not be criminally liable
iv. criminal records of minors above 15 or below 18 years of age are
kept confidential in order to protect the honor and reputation of
the minor
v. exempts minors from the offense of refusing to acknowledge the
fact that he/she had been involved or convicted in a criminal case
before
 vi. minors can deny under oath their criminal involvement or
conviction; they cannot be charged with perjury or falsification or
misinterpretation, for concealing the criminal involvement or
conviction, the purpose being it that to give the minor a new lease
in life and to prevent the stigma of conviction which extends in a
long-term basis (i.e. looking for a job or protecting the families'
reputation)
vii. retroactive application of RA 9344 on persons who were convicted
and are currently serving time for crimes they committed when
they were minors above 9 or below 15 years of age when they
committed the offense, because minors who acted with
discernment under this age bracket, were not exempted from
criminal liability before under the Revised Penal Code, but has
already been repealed by RA 9344 their criminal liability is erased
therefore they shall be released

RETROACTIVE RULE OF RA 9344

RA No. 9344 provides for its retroactive application:

Sec. 68. Children Who Have Been Convicted and are Serving
Sentence. — Persons who have been convicted and are serving sentence
at the time of the effectivity of this Act, and who were below the age of
eighteen (18) years at the time of the commission of the offense for
which they were convicted and are serving sentence, shall likewise
benefit from the retroactive application of this Act.

In People v. Ancajas, GR No. 199270, October 21, 2015, the Court ruled
the conviction of the accused-appellant of the crime rape, but the case against
appellant Allain Ancajas shall be REMANDED to the trial court for appropriate
disposition in accordance with Section 51 of Republic Act No. 9344 for Ancajas
committed the heinous crime 7 years prior to the enactment of RA 9344, a
time of which accused was still a minor. This section clearly justified the
retroactive application of the Act to those who have been convicted and are
serving sentence at the time of the effectivity of this said Act, and who were
below the age of 18 years at the time of the commission of the offense. With
more reason, the Act should apply to this (People v. Ancajas) case wherein
the conviction by the lower court is still under review.

Furthermore, in the case of People of the Philippines vs. Robert Sierra y

Caneda, G.R. No. 182941, July 3, 2009, the facts of the case were as follows:

In August 2000, thirteen-year-old AAA was playing with her friend BBB
in the second floor of her family's house in Palatiw, Pasig. The petitioner
arrived holding a knife and told AAA and BBB that he wanted to play with
them. The petitioner then undressed BBB and had sexual intercourse with her.
Afterwards, he turned to AAA, undressed her, and also had sexual intercourse
with her by inserting his male organ into hers. The petitioner warned AAA not
to tell anybody of what they did.

AAA subsequently disclosed the incident to Elena Gallano (her teacher)

and to Dolores Mangantula (the parent of a classmate), who both
accompanied AAA to the barangay office. AAA was later subjected to physical
examination that revealed a laceration on her hymen consistent with her claim
of sexual abuse. On the basis of the complaint and the physical findings, the
petitioner was charged with rape.
The Supreme Court ruled on the dismissal of the case and the retroactivity of
RA 9344 that:

That the petitioner committed the rape before R.A. No. 9344 took effect
and that he is no longer a minor (he was already 20 years old when he took
the stand) will not bar him from enjoying the benefit of total exemption that
Section 6 of R.A. No. 9344 grants. As we explained in discussing Sections 64
and 68 of R.A. No. 9344 in the recent case of Ortega v. People:

Section 64 of the law categorically provides that cases of children 15 years old
and below, at the time of the commission of the crime, shall immediately be
dismissed and the child shall be referred to the appropriate local social welfare
and development officers (LSWDO). What is controlling, therefore, with
respect to the exemption from criminal liability of the CICL, is not the CICL's
age at the time of the promulgation of judgment but the CICL's age at the
time of the commission of the offense. In short, by virtue of R.A. No. 9344,
the age of criminal irresponsibility has been raised from 9 to 15 years old.

LIMITATIONS OF RA 9344

The legislators recognize the vital role of children in nation building and
the State's duty to protect their physical, moral, spiritual, intellectual and
social well-being. To protect the best interest of the children, the Juvenile
Justice Welfare Act (JJWA) was crafted with transitory and retroactive
provisions. The transitory provisions are provided in Section 64, 65, 66, and
67 while the retroactive application of the law is provided in Section 68.

However, the retroactive application is not absolute as the law itself

provides for a limitation. It has been provided in Article 40 of the JJWA which
states:

If the court finds that the objective of the disposition measures

imposed upon the child in conflict with the law have not been fulfilled,
or if the child in conflict with the law has wilfully failed to
comply with the conditions of his/her disposition or rehabilitation
program, the child in conflict with the law shall be brought before the
court for execution of judgment.

If said child in conflict with the law has reached eighteen (18)
years of age while under suspended sentence, the court shall
determine whether to discharge the child in accordance with this Act,
to order execution of sentence, or to extend the suspended sentence
for a certain specified period or until the child reaches the maximum
age of twenty-one (21) years.

This provision was applied in the case of People v. Mantalaba wherein

the Supreme Court held that Mantalaba who was seventeen years old at the
time the crime was committed was still convicted for violation of Section 5 and
11, Article II of RA 9165 or the Comprehensive Dangerous Drugs Act of 2002.
In the said case, although the accused was a minor and could have extended
the retroactive effect of the law, the same has already been rendered moot
and academic. The accused who is now beyond the age of twenty-one (21)
years can no longer avail of the provisions of Sections 38 and 40 of RA 9344
as to his suspension of sentence. The Supreme Court noted that this would
not have happened if the CA, when this case was under its jurisdiction,
suspended the sentence of the accused. The records show that the appellant
filed his notice of appeal at the age of 19 (2005), hence, when RA 9344
became effective in 2006, appellant was 20 years old, and the case having
been elevated to the CA, the latter should have suspended the sentence of
the appellant because he was already entitled to the provisions of Section 38
of the same law, which now allows the suspension of sentence of minors
regardless of the penalty imposed

Empowering the Parental Involvement

In October of 2011, the proposal of lowering the age of criminal

responsibility of children from fifteen (15) years old down to nine (9) years
old was not approved and agreed by the Department of Justice (DOJ) and
Department of Social Welfare and Development (DSWD). DOJ and DSWD
believed that the children in conflict with the law are those who are neglected
and lacked parental love and guidance; those who come from impoverished
and dysfunctional families; whose parents are jobless or separated; whose
environment is filled with air of violence; or whose community is tolerant of
offending crimes as their normal way of living. These are reality bites that
conquer their motivations for survival. This kind of finding regarding the
reason set forth by the DOJ and DSWD entails that it is not their problem
whether the child below fifteen (15) or above because it has something to do
with the problem of family. Thus this paper would like to strengthen and
empower the importance of the family in rectifying the behavior or acts
committed by the child during the rehabilitation and reintegration of the child.
According to Title III Chapter 1 of Republic Act 9344, the family shall be
responsible for the primary nurturing and rearing of children which is critical
in delinquency prevention. As far as practicable and in accordance with the
procedure of this Act, a child in conflict with the law shall be maintained in
his/her family.
President Duterte, as early as the 2016 campaign, had sought the
amendment of Republic Act 9344 or the Juvenile Justice Act of 2006, which
allowed children below 15 years old to get away with their crimes – provided
they undergo intervention and rehabilitation.
What most people do not know is that RA 9344 was already amended
in 2013, through RA 10630. Section 20-A of the law allows children as young
as 12 years old to be detained for serious crimes such as rape, murder, and
homicide, among others. RA 10630 also mandates local government units to
manage their own Bahay Pag-Asa (Houses of Hope).

Duterte, echoed by his allies in the House of Representatives, wants to

lower the minimum age of criminal liability from 15 years old down to 9. He
believes it should be done because syndicates are using more children to
commit crimes. Despite the preference expressed by no less than the
President, social workers and pro-child groups do not agree. While they admit
there are indeed syndicates using children for crimes, they said the adults
should be punished, not the children who are mere victims.

5. Can a 14-year old minor, who had repeatedly been arrested for theft
and sale of shabu, invoke RA 9344 as his defense and be exempted
from liability?

Yes, RA 9344 Section 6 paragraph 1 states: “A child fifteen (15) years

of age or under at the time of the commission of the offense shall be exempt
from criminal liability. However, the child shall be subjected to an intervention
program pursuant to Section 20 of this Act.” This statute expressly provides
that children, 15 years old or below, are exempted from criminal liability,
however such exemption from criminal liability does not constitutes exemption
from civil liability that may arises as a consequence of the felony committed
by the child.

Section 20-A of RA 9344 paragraph 1 as amended states: “A child who

is above twelve (12) years of age up to fifteen (15) years of age and who
commits parricide, murder, infanticide, kidnapping and serious illegal
detention where the victim is killed or raped, robbery with homicide or rape,
destructive arson, rape, or carnapping where the driver or occupant is killed
or raped or offenses under Republic Act No. 9165 (Comprehensive Dangerous
Drugs Act of 2002) punishable by more than twelve (12) years of
imprisonment, shall be deemed a neglected child under Presidential Decree
No. 603, as amended, and shall be mandatorily placed in a special facility
within the youth care facility or 'Bahay Pag-asa' called the Intensive Juvenile
Intervention and Support Center (IJISC).”

Section 20-B of RA 9344 as amended states: “A child who is above

twelve (12) years of age up to fifteen (15) years of age and who commits an
offense for the second time or oftener: Provided, That the child was previously
subjected to a community-based intervention program, shall be deemed a
neglected child under Presidential Decree No. 603, as amended, and shall
undergo an intensive intervention program supervised by the local social
welfare and development officer: Provided, further, That, if the best interest
of the child requires that he/she be placed in a youth care facility or 'Bahay
Pag-asa', the child's parents or guardians shall execute a written authorization
for the voluntary commitment of the child: Provided, finally, That if the child
has no parents or guardians or if they refuse or fail to execute the written
authorization for voluntary commitment, the proper petition for involuntary
commitment shall be immediately filed by the DSWD or the LSWDO pursuant
to Presidential Decree No. 603, as amended."

Moreover, Sec. 66 of the Comprehensive Dangerous Drugs Act of 2002

provides that “In the case of minors under fifteen (15) years of age at the
time of the commission of any offense penalized under this Act, Article 192 of
Presidential Decree No. 603, otherwise known as the Child and Youth Welfare
Code, as amended by Presidential Decree No. 1179 shall apply, without
prejudice to the application of the provisions of this Section.” The act itself
provides that Child and Youth Welfare Code shall exempt minors under 15
years of age from criminal liability.

The fact that the child had repeatedly been arrested for theft and sale
of shabu is immaterial because the only qualification the Act provides for the
Child and Youth Welfare Code to be validly invoked is “minors under 15 years
of age”.

6. What is the liability of the parents/guardians of the minor in

number 5 to the complainant?

Yes, the parents have civil liability. Pertinent provision of Republic Act
No. 10630 or the Juvenile Justice and Welfare Act of 2006 mandates that the
parents of minor incur civil liability hence, shall be jointly liable for damages
unless they prove, to the satisfaction of the court, that they were exercising
reasonable supervision over the child at the time the child committed the
offense and exerted reasonable effort and utmost diligence to prevent or
discourage the child from committing another offense. Hence, the purpose of
the said provision is a hope that it will act as a deterrent against poor
parenting, essentially scaring parents into paying attention.
To wit, Section 20-D of the abovementioned act provides that:

“SEC. 20-D. Joint Parental Responsibility. – Based on the recommendation of

the multidisciplinary team of the IJISC, the LSWDO or the DSWD, the court
may require the parents of a child in conflict with the law to undergo
counseling or any other intervention that, in the opinion of the court, would
advance the welfare and best interest of the child.

“As used in this Act, ‘parents’ shall mean any of the following:

“(a) Biological parents of the child; or

“(b) Adoptive parents of the child; or

“(c) Individuals who have custody of the child.

“A court exercising jurisdiction over a child in conflict with the law may require
the attendance of one or both parents of the child at the place where the
proceedings are to be conducted.

“The parents shall be liable for damages unless they prove, to the
satisfaction of the court, that they were exercising reasonable
supervision over the child at the time the child committed the offense
and exerted reasonable effort and utmost diligence to prevent or
discourage the child from committing another offense.”

7. Can the parents/guardians of the minor in #5 be charged of child

abuse under RA 7610?

R.A. No. 7610, or the Special Protection of Children Against Child Abuse,
Exploitation, and Discrimination Act, was enacted in view of the State’s
responsibility to protect the children against all conditions prejudicial to their
development. The case to be considered involves a 14-year old minor who had
repeatedly been arrested for theft and sale of shabu. Clearly, the child is within
the purview of R.A. No. 7610 as to age, since it is provided in the law that:

Sec. 3. Definition of Terms. - (a) "Children" refers to person

below eighteen (18) years of age or those over but are
unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or
condition;

The law then defines “child abuse” in the next section:

(b) "Child abuse" refers to the maltreatment, whether

habitual or not, of the child which includes any of the
following:

(1) Psychological and physical abuse, neglect, cruelty,

sexual abuse and emotional maltreatment;
 (2) Any act by deeds or words which debases, degrades or
demeans the intrinsic worth and dignity of a child as a
human being;

(3) Unreasonable deprivation of his basic needs for survival,

such as food and shelter; or

(4) Failure to immediately give medical treatment to an

injured child resulting in serious impairment of his growth
and development or in his permanent incapacity or death.

Aside from those enumerated above, there are certain acts that are
punishable under the aforementioned law. In Sec. 2, the law states that, “it
shall be the policy of the State to protect and rehabilitate children gravely
threatened or endangered by circumstances which affect or will affect their
survival and normal development and over which they have no control.” In
relation to this, those circumstances may embrace a wide scope of acts by any
person as Sec. 3 provides that such circumstances include, “working under
conditions hazardous to life, safety and morals which unduly interfere with
their normal development.”

Art. VI of R.A. No. 7610 is straightforward on the matter of the liability

of persons who cause the child to be involved in drug trafficking and/or theft.
If the child in the case is used, coerced, forced, or intimidated by his or her
parents or guardian in said illegal activities, they may be charged with child
abuse under the Special Protection of Children Against Child Abuse,
Exploitation, and Discrimination Act. Par. 5 of Sec. 10 provides that:

(e) Any person who shall use, coerce, force or intimidate a

street child or any other child to:

(1) Beg or use begging as a means of living;

(2) Act as conduit or middlemen in drug trafficking or

pushing; or

(3) Conduct any illegal activities, shall suffer the

penalty of prision correccional in its medium period to
reclusion perpetua.

Furthermore, Sec. 12-D under Art. VIII on Working Children enumerates

worst forms of child labor. It is stressed that the “use, procuring or offering of
a child for illegal or illicit activities, including the production and trafficking of
dangerous drugs and volatile substances prohibited under existing laws” is
clearly prohibited under this law.
 Upon imposing charges on the parents/guardian of the minor in
question, R.A 7610 also supplements for protection thereafter. Remedial
procedures are provided in Art. XI, of which Sec. 28 specifically provides:

Section 28. Protective Custody of the Child. – The offended

party shall be immediately placed under the protective
custody of the Department of Social Welfare and
Development pursuant to Executive Order No. 56, series of
1986. In the regular performance of this function, the officer
of the Department of Social Welfare and Development shall
be free from any administrative, civil or criminal liability.
Custody proceedings shall be in accordance with the
provisions of Presidential Decree No. 603.
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Inquirer.net (2017). Kian was killed without mercy – NBI. Accesed on

September 2, 2017 from http://newsinfo.inquirer.net/927083/kian-delos-
santos-killing-no-mercy-nbi-case-police-criminal-complaint

Amurao, M.P. (2013). Commentaries on Criminal Law: Book One. Quezon

City, Philippines: Central Book Supply Inc.

Reyes, L.B. (2017). The Revised Penal Code. Manila, Philippines: Rex Book
Store.

US Legal (2016). Lucid Interval Law and Legal Definition. Retrieved on

September 2, 2017 from https://definitions.uslegal.com/l/lucid-interval/

Philippine Commision on Women (2009), Republic Act 7160, San Miguel,

Manila Philippines. Retrieved on September 2, 2017 from
http://pcw.gov.ph/law/republic-act-7610