a m + d g
Dear fellow student, hello. This reviewer is sourced from Boado’s book, some stuff from Reyes, Glenn Tuazon’s notes, Justice Callejo’s lectures and recitations, and case doctrines. Enjoy. And no stamping please!
Fundamental Principles
· Criminal law is that branch of public law which defines criminal offenses and prescribes specific punishments for them.
o Penal law: acts of the legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature and provide for their punishment
· All felonies in the RPC are public wrongs, as distinguished from private wrongs, the latter is just a breach of duty or contract of 2 private parties.
o While the State has the power to prosecute persons for private crimes, the law gives the victim the privilege of not instituting actions for private crimes (adultery, seduction, abduction,etc) to protect the latter from shame and humiliation. There must be a complaint initiated by the offended party.
§ Rape no longer a private crime. It’s a crime against persons.
· Ex post facto law is a penal law which is given retroactive application to the prejudice of the accused.
o Makes an act or omission criminal which when committed was not yet so
· Bill of attainder: law/act which inflicts punishment without judicial trial
· Characteristics of penal law
o Generality
§ Refers to the persons covered
§ Binding on all person who reside or sojourn in the Philippines, whether citizens or not
· Ex: those who are covered by treaties and laws of preferential application (example: Vienna Convention on Diplomatic Relations, see discussion on immunities)
o Territoriality
§ Refers to the situs of the act or the place where the penal law is applicable
§ Applicable to all crimes committed within the limits of the Philippine territory
· Ex: treaties, laws of preferential application, and Article 2
o Prospectivity
§ Penal laws have prospective application unless they are favorable to the offender who is not a habitual delinquent
§ Covers also penal circulars
· Immunities from criminal prosecution by certain individuals
By international comity/law/relations
o Heads of diplomatic missions (Vienna Convention on Diplomatic Relations):
§ Ambassadors or nuncios
§ Envoys, ministers or internuncios
§ Charges d’ affairs
o Staff of the mission are comprised of:
§ Diplomatic
§ Administrative, technical, and administrative staff
o Important: Immunity is granted only to the “diplomatic agents” which are made up of the heads of the diplomatic missions and the diplomatic staff. (Minucher v CA – test: does he perform duties of a diplomatic nature?)
o Not subject to local penal laws. Immune from arrest and prosecution for local laws.
§ But they may be temporarily restrained if they do stuff that threaten public order.
o Varying degrees of immunity depending on the status of the person (based on the enlightened discussion of the esteemed Justice Puno in Liang v People):
§ Diplomatic agent: inviolable, not liable to any form of arrest or detention; blanket immunity
§ Consular officials: immune for acts performed in the exercise of consular functions; not liable to arrest or detention pending trial, except in the case of a grave crime
§ Officials of specialized agencies/international officials: immune only for acts performed by them in their official capacity (functional immunities)
· Compared to diplomats, international officials are granted less immunity. Why? Because the privileges and immunities of diplomats and those of international officials rest upon different legal foundations.
· Diplomatic agents: based on customary international law
· International agents: based on treaties, legislation, or both
o In Minucher v CA, Scalzo, the DEA agent, was not considered a diplomatic agent. But, he was still immune because he was acting within the directive of the United States which placed him under state immunity from suit, following the doctrine of State Immunity from Suit.
§ A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be established that he is acting within the directives of the sending state.
o The DFA initially determines immunity, but the final determination is still with the Courts. (although in the WHO case, the Court said it was bound.)
o In the VFA, before the American accused is convicted, he is under the custody of the Americans. However, once convicted, he will be detained by the Philippine authorities, with the Americans having visitation rights. Hence, detention in the US embassy after conviction was held violative of the VFA. (Nicolas v Romulo)
By local legislation
o Transactional immunity (Tanchangco v Sandiganbayan)
o Omnibus Election Code: one who reports to the Comelec any incident of vote buying/selling and testifies is immune, even if he took part in the crime
o PD 749: immunity granted to those furnishing information regarding bribery, indirect bribery, corruption
o Parliamentary/Presidential immunity
· Is there any law which does not care for immunity? Is there any law which is immune from immunity statutes?
o Yes. RA 9851, or The Law against Crimes against Humanity/Genocide.
o It says that the law applies equally to all persons without any distinction based on official capacity.
§ It, however, makes exceptions.[1]
· What about members of the AFP, who has jurisdiction over them?
o Who are the members and officers of the AFP
§ Members of the AFP
§ Those subject to military law
§ Members of the CAFGU
o GR: Civilian courts have jurisdiction over crimes (RPC, SPL, ordinances) committed by members of the AFP
§ EXCEPT: when it comes to service-connected offenses (like conduct unbecoming an officer, disrespect towards superior officer, etc), courts martial have jurisdiction over them
· EXCEPTION to the EXCEPTION (when can a service oriented crime be tried by the civilan court?): the president, before arraignment, in the interest of justice, may refer the crime to a civilian court as long as it is covered by the RPC or any other SPL[2] (Gonzales v Abaya, Navales v Abaya)
o Justice Callejo: Service-oriented offenses are not absorbed by rebellion or coup d’etat because the former are disciplinary in nature. Hence, erring military men can be tried separately and independently under the RPC for the same act.
§ Justice Tinga does not agree with this.
o Justice Tinga: The civilian court is required to make a determination, independent of that of the court-martial, that the acts charged constitute a service-oriented offense.
§ Why? The general purpose of RA 7055 is to deprive the court-martial of jurisdiction to try cases which are properly cognizable before the civilian courts.
· How about members of the PNP, which entity of the government has jurisdiction over them?
o The civilian courts since PNP is civilian in character. (And because of RA 6975[3])
· Four schools of thought/philosophies:
o Classical/juristic
§ Basis of criminal liability: human free will – man has the capacity to choose good and evil
§ Purpose of penalty: retribution
§ Determination of penalty: specific and predetermined
§ Emphasis of the law: on the offense and not on the offender
o Positivist/realistic
§ Basis of criminal liability: man inherently good, but offender is socially sick; influenced by society
§ Purpose of penalty: reformation
§ Determination of penalty: arrived after an examination of the offender
§ Emphasis of the law: on the offender and not on the offense
· Samples of the influence of the positivist theory to our criminal laws:
o ISL Modifying Circumstances Probation
o Habitual delinquency law Extenuating/Absolutory Circumstances
o 3-fold rule 40-year max limit for penalty Pardon Impossible crimes
o Eclectic – combines both
o Utilitarian – primary function of punishment in criminal law is to protect society from potential and actual wrongdoers
· Nullum crimen nulla poena sine lege – there is no crime when there is no law that defines and punishes it.
o We follow this here, so we don’t have common law crimes.
· All laws must be interpreted liberally in favor of the accused and strictly against the state.
· Equipoise rule: if the inculpatory facts and circumstances are capable of two or more explanations, one consistent with the innocence of the accused and the other consistent with his guilt, then no conviction.
· Actus non facit reum, nisi mens sit rea – the act cannot be criminal unless the mind is criminal.
o Applies only to intentional felonies. Not to culpable felonies or mala prohibita where good faith or lack of intent are immaterial.
· Sources of criminal law (Perez v NPG Refillers):
o RPC
o SPL
o Municipal ordinances
o Admin regulations/IRRs
§ Violation of admin regulation must be made a crime by the delegating statute
§ Penalty for violation must be provided by the statute itself
§ Regulation must be published
o What about decisions of the SC interpreting criminal statutes? Not penal laws per se, merely interpretative.
· What happened in Bayan Muna v Romulo (Feb 1, 2011)?
o Bayan Muna was assailing the RP-US Non-Surrender Agreement. The Agreement basically said that persons found in the territory of the other will not be surrendered to any international tribunal without the consent of the other State. Bayan Muna claim that the Agreement violated the Rome Statute which created the International Criminal Court which had jurisdiction over persons for the most serious crimes of international concern.
o Issue 1: Was the President GADLEJ for signing it, even if the Rome Statute has not yet been ratified by the Senate? No.
o Issue 2: Is the Agreement void for being immoral and against recognized principles of IL? No.
o Issue 3: Was the Agreement valid even without concurrence of Senate? Yes. It’s not a treaty.
o The Agreement is but a form of affirmance and confirmance[4] of the Philippines’ national criminal jurisdiction. National criminal jurisdiction being primary, it is always the responsibility and within the prerogative of the RP either to prosecute criminal offenses equally covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try "persons" of the US, as the term is understood in the Agreement, under our national criminal justice system. Or it may opt not to exercise its criminal jurisdiction over its erring citizens or over US "persons" committing high crimes in the country and defer to the secondary criminal jurisdiction of the ICC over them. As to "persons" of the US whom the Philippines refuses to prosecute, the country would, in effect, accord discretion to the US to exercise either its national criminal jurisdiction over the "person" concerned or to give its consent to the referral of the matter to the ICC for trial. In the same breath, the US must extend the same privilege to the Philippines with respect to "persons" of the RP committing high crimes within US territorial jurisdiction.
o With respect to RA 9851 (Crimes against Humanity), the jurisdiction of the ICC is clearly and unmistakably complementary to the national jurisdiction of the signatory states.
o Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as evidenced by it requiring State consent.
Article 1. Time when Act takes effect. — This Code shall take effect on the first day of January, nineteen hundred and thirty-two.
Art. 2. Application of its provisions. — Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship
2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number;
4. While being public officers or employees, should commit an offense in the exercise of their functions; or
5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code.
· This article gives the exceptions to the territoriality principle of criminal law. Hence, the following acts can be prosecuted in the country, even if done abroad:
o Offenses committed while on a Philippine ship or airship
o Forgery or counterfeit of any coin or currency note of the Philippines or obligations and securities issued by the Government of the Philippines
o Connection with the introduction into the country of the obligations and securities mentioned
o Offenses committed by public employees or officers in the exercise of their functions
o Crimes of national security and the law of nations defined in Title One of Book 2
· Can there be crimes committed here but can not be prosecuted?
o Yes, those provided in treaties and laws of preferential application.
o See immunity discussion above.
· How about terrorism? What does the law say about that?
o Terrorism is the commission of the enumerated acts in the law which sow and create a condition of widespread and extradordinary fear and panic among the people, in order to coerce the government to give in to a lawful demand.
o The Human Security Act (RA 9372) says that even if committed abroad, the individual can still be prosecuted here if:
§ He commits, conspires or pots to commit terrorism inside the Philippines
§ Commit said crimes against Philippine citizens or persons of Philippine descent, where their citizenship or ethnicity was a factor to the commission of the crime
§ Commit crimes directly against the Philippine government[5]
o Also, prosecution under the Human Security Act is a bar to another prosecution under the RPC or any SPLs
o The provisions of Book 1 of the RPC is also applicable to the Human Security Act.
· How about crimes against humanity, genocide?
o In RA 9851, the law provides for extra-territorial jurisdiction in the following cases: