Univeristy of San Carlos CRIMINAL LAW REVIEW TRANSCRIPTION

Judge M. Paredes

Quiz

1. Committed in the context of an institutionalized regime of systematic oppression and domination by one racial group or groups and committed with intention of maintaining that regime. APARTHEID

2. It means the international infliction of conditions of life, the deprivation of access to food and medicine calculated to bring about the destruction of a part of a population. EXTERMINATION

3. Next, it means refusing to spare the life of any body even of persons manifestly unable to defend themselves or who clearly expressed their intention to surrender. NO QUARTER WILL BE GIVEN

4. A person who has been rendered unconscious or otherwise incapacitated by wounds or sickness and therefore is incapable of defending himself. HORS DE COMBAT

5. True or false, violation of RA 9851 penalizing crimes against International Humanitarian Law prescribes in 20 years. FALSE (imprescriptible)

6- 10. In the application and interpretation of RA 9851, Philippine Courts shall be guided by several sources give at least 5.

(a) The 1948 Genocide Convention;(b) The 1949 Genava Conventions I-IV, their 1977

Additional Protocols I and II and their 2005 Additional Protocol III;

(c) The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, its First Protocol and its 1999 Second Protocol;

(d) The 1989 Convention on the Rights of the Child and its 2000 Optional Protocol on the Involvement of Children in Armed Conflict;

(e) The rules and principles of customary international law;

(f) The judicial decisions of international courts and tribunals;

(g) Relevant and applicable international human rights instruments;

(h) Other relevant international treaties and conventions ratified or acceded to by the Republic of the Philippines; and

(i) Teachings of the most highly qualified publicists and authoritative commentaries on the foregoing sources as subsidiary means for the determination of rules of international law.

Section Four. — Falsification of legislative, public, commercial, and private documents, and wireless,

telegraph, and telephone message.

The falsification of documents, the writing must be complete in itself. Meaning, capable of creating rights and extinguishing obligations, capable of becoming evidence of the facts stated. A document is capable of creating rights and extinguishing obligations, kung mag Calimponize ka ug documents blanks ra siya blanks, dili pana siya matawag ug falsification. Pananglitan mag print kag lisensya unya blanko pa wa pa gyuy fill up, wa pa gyuy signature that is not yet a document because it is not capable of creating right or extinguishing an obligation. The crime is manufacturing or possession only.

Now there 5 classes of falsification, the first of which is article 170 falsification of legislative documents. The document here or legislative document must be genuine document; it’s limited to altering the legislative document. It is important to know that the alteration has changed the meaning of the document. Kung ang secretary sa Sanggunian gipang usab niya ang resolution kay grammatically wrong, bati kaayo ang mga member sa Sanggunian mo ininglis unya English Major siya gipang usab pero it did not change the meaning, that is not falsification.

General rule and you should never forget, what is punished is falsification not correction of documents, that’s US vs. Mateo. Priest ni si Mateo iyang gi usab and date of birth niya sa cedula, gikiha siyag falsification. Supreme Court said, No, because he was just trying to correct the false entry, so it’s falsification not correction which is punished by law. Repeat, the bill, resolution or ordinance must be genuine, limited to altering which changes its meaning.

Art. 171. Falsification by public officer, employee or notary or ecclesiastical minister. Why is it that the document here is not specified? There’s no mention of public official, commercial document. The reason is this, since the falsifier is a public officer, employee or notary, it means that the document must be either public official or commercial document. Please take note, who is liable? Public officer, employee or notary. If all these acts are committed by a private person, do not apply 171, you apply article 172 falsification by a private individual.

There is a very important phrase under 171, taking advantage of his official position. He maybe a public officer or employee, he maybe the falsifier but if he did not take advantage of his official position he is not liable under 171 but he is liable under 172 falsification by a private individual. What is the meaning of taking advantage of official position? He takes advantage if he has the duty to make, or to prepare or otherwise intervene in the preparation of the document or, he has the official custody of the document which he falsifies.

Now with respect to ecclesiastical minister, the law says: ecclesiastical minister committing any of the offenses, etc. with respect to any record or document of such character that its falsification may affect the civil status of person, legitimate or illegitimate, separated, etc.

You know what is a document? Must there be genuine document in falsification? Yes in two instances: making alteration or intercalation or including in a copy a different statement, there must be genuine document that is falsified. Falsification maybe committed by simulating or fabricating. In falsification, the falsification need not be made on an official form, di na kihanglan mangawat pa ang falsifier ug document from a government office unya fill up-an, puwedi maghimo ug document. Dunay gi raid somewhere near San Carlos, mang printa ug mga dokumento. Now, it is sufficient that the document is given the appearance of, or make to appear similar to the official form that’s People vs. Tupasi Molina an ancient case. Even totally false document maybe falsified.

Then paragraph 1 or first mode, counterfeiting or imitating meaning feigning any handwriting, signature or rubric. There are two ways of committing falsification under paragraph 1, counterfeiting which is imitating any handwriting, signature or rubric and number 2 feigning which is simulating a signature.

What are the requisites of counterfeiting?

Intent to imitate or an attempt to imitate, that the two signatures or handwritings the genuine and the forged bear some resemblance to each other. Murag gisuon ba, kuha kag genuine nga signature, gisuon di na kinahanglan nga perfect ang pagka kopya, it’s enough that there be intent to imitate or there is an attempt to imitate and the two handwritings or signatures are similar. So the forged and the genuine signatures or handwritings must bear some resemblance to each other.

Now if there is no attempt or whatsoever to imitate the signature of other persons, they are entirely unlike the genuine signatures the accused maybe found guilty under paragraph 2 article 171, causing it to appear that persons have participated in the act or proceeding when they did not in fact so participate. Wala ka mangupya sa signature, naghimo kag deed of sale unya ang ngalan diris ubos Pedro Capinez, pirmahan sad nimog Pedro Martinez wa ka mangupya gahimo-himo lang kag pirma, making appear that a person has participated in an act or proceeding when in fact he did not so participate. Meaning, making it appear that Pedro Martinez sold his parcel of land to Pablo Labu-labo, murag gi baligya ni Pedro, making it appear that Martinez sold his parcel of land when in fact he did not participate in the preparation of the deed of sale, that’s paragraph 2.

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An example of the first mode or another example is, common ni sa mga government offices kanang lain mo pirma sa or lain mo punch sa bundy clock naa man gali ni sa Kapitolyo usahay inig punch nako didto sa akong kuan.

Imitating, meaning feigning you apply the Spanish text fingiendo or imitation. In feigning there is no original signature or handwriting, but a forgery of a signature or handwriting that does not exist.

Second mode, causing it to appear that person have participated in an act or proceeding, I have given you an example already maghimog deed of sale unya ni ingon nga gibaligya ang yuta as if ang tag-iya maoy naghimo sa dokumento sa pagbaligya. Another example causing it to appear that person have participated in an act or proceeding common ni sa kaso kanang sa goberno kanang Department of Public Highways, naay payroll kini si Juan nagtrabaho nig usa ka adlaw unya naay nipirma didto nga present siya nikubra sa sweldo, making it appear that Juan participated in kining public works noh unya mi kubra sa sweldo, ok that’s an example.

Then 3rd mode, attributing to persons who have participated in any act or proceeding, statements other than those in fact made by them. Naay ignoranting tao mangutang unya he asked the lawyer “attorney himu-i ra gud kog dokumento sa prenda”, deed of mortgage kay mao nay sabot sa iyang utangan, ni participate sad ang lawyer. Unsa man diay tuyo? Prenda lagi ang yuta kay mangutang. Ang gihimo sa lawyer instead of deed of mortgage, deed of sale that’s an example of attributing to persons who have participated. Kinsay ni participate? Ang tag-iya sa yuta nga nangutang. Any act or proceedings, statements other than those in fact made by him. Unsa may tuyo niya? Deed of mortgage, unsay gihimo? Deed of sale.

Paragraph 4, making untruthful statements in a narration of facts. Please take note of the requisites especially number 2. He has legal obligation to disclose the truth of the facts narrated by him, the facts narrated by him are absolutely false. If it is not absolutely false, there’s some truth to it it’s not falsification. Last paragraph or last requisite, that the perversion of truth in the narration of facts was made with wrongful intent of injuring a third person. There is a recently decided case, I think it’s 2008 case not 2007, kandidato siya Local Sanggunian ni file siya sa certificate of candidacy iyang gibutang, gibutang didto unsa may imong qualification? CPA, certified public accountant. Dili diay siya CPA, maligya diay siyag Chicken Pork Adobo. Unsay nahitabo? Gikiha siya under the election code for disqualification, material misrepresentation in his certificate of candidacy plus falsification. Convicted, acquitted sa Supreme Court, why? Number 1, bisag asa kang bala-ura gikan sa constitution ngadto sa election law walay qualification bahin sa educational attainment. Si kuan bitaw Fernando Poe high school raman to, Joseph Estrada wa siya katapos gani ug AB, wala, no educational qualification kung mulansad ka. So there is no law which requires you to achieve certain educational level, gikiha pa gyud ug falsification ug perjury. No falsification, No perjury. Why? Kung maghisgot tag perjury it must be on a material matter and what is a material matter? It must refer to the issue, the very essence, unya immaterial manang educational qualification kung mulansad ka, bisag ibutang pa nimog doctor of laws didto dili gyud kay there is no law which requires you to disclose.

In an earlier case People vs. Yanza, nagtuo gyud siya nga 23 pa siya, pareha gud ni Ninoy pareha naay uban nga pag file nila sa certificate of candidacy wa pa mutunong sa edad pero at the time na elected sila natunong sa sila sa edad, that is not falsification. If you believe in good faith that you are qualified then there is no falsification.

So please take note there must be a legal obligation to disclose the truth of the facts narrated by him. What is the meaning of legal obligation? It means that there is a law requiring the disclosure of facts. Apply kag passport naa may facts to which you have to disclose, a good defense is good faith. Kung mayor ka unya naay gastuhan, mo issue kag certification of availability of funds kahibaw gyud ka nga way available funds ni certify ka, that is falsification. Please take note under the 4th element, the perversion of truth in the narration of facts was with wrongful intent of injuring a third person. The person

making the narration of facts must be aware of the falsity of the facts narrated by him. If the statements are not altogether false, there being some colorable truth in such statements, the crime of falsification is not deemed to have been committed.

In Cabigas vs. People, nagligas lang 1,539 to 1,533 pieces to conform to the actual number of treasury notes under custody, not falsification because it was made to speak the truth. Wrongful intent is not necessary when the document falsified is a public document. Remember kung a i-falsify public document, gain or intent to gain is not necessary. Repeat, gain or intent to gain is not necessary, it’s not an element. So wrongful intent is not necessary when the document falsified is a public document.

Then altering true dates, the alteration of the date or dates in a document must affect either the veracity of the document or the effects thereof otherwise there is no falsification. Pananglitan promissory note, to pay on or before unya naay date diha imo na i-falsify, i-forward nimong date, that’s falsification. Making alteration or intercalation in a genuine document which changes its meaning, so if the intercalation or alteration does not change the meaning, there is no falsification. To be an alteration in violation of the law, it must be one which causes the instrument to speak a language different in legal effect from that which it originally spoke. The alteration must affect the integrity or change the effect of the document. Like the case of People vs. Romualdez, gipang usab ang grado sa bar. In the case of La Nuevo, kadtong La Nuevo clerk of court gyud, gipa re-check niya ang notebooks sa usa ka examinee, he was dismissed from the service and criminally prosecuted.

Paragraph number 7, issuing in authenticated form a document purporting to be a copy of an original document when no such original exist, or including in such a copy a statement contrary to or different from, that of the genuine original. Warning, this can only be committed by a public officer, mu adto ka sa LCR kay gipangayu-an kag marriage certificate, wa gud ka kasla unya ni issue ang LCR certification. This is to certify that Mr. delos Santos was married to, ibutang diha, naang date ug place of marriage, that’s falsification issuing in authenticated form a document purporting to be a copy of an original. Way original kay there is no record of marriage in the LCR. Nagpakasal ug usab si Mr. delos Santos, nangayo siyag certification single siya single, single ka usa.

Intent to gain or prejudice is not necessary. The idea of gain or intent to gain to cause damage to a third person is not necessary, what is the reason? Because it is the interest of the community which is intended to be guaranteed by the strictest faithfulness of the official charge. Otherwise stated, kung public official document, we have to give them or it faith and credit, official gud na, remember sa evidence kung mo present kag public document it need not be authenticated, admissible na siya. Mo present ka ug private document, inadmissible if it is not authenticated.

Ok? I think my time is authentic 7:30.

CRIM 8:

When we say falsification, we refer to a document. Counterfeiting, money. Forgery, obligations, securities or credit.

You should distinguish forgery from falsification.

Falsification of document is punished separately from use of falsified document. A person in possession of a falsified document and uses said falsified document shall be charged with falsification, not use. But, if he is acquitted with the crime of falsification, he may be liable for use of falsified document. The user must not be the falsifier or the presumed falsifier.

In usurpation of authority, it is not necessary that the accused performs an act pertaining to public officer. But in usurpation of official function, it is essential that the offender should have performed an act pertaining to a person in authority or public officer. In usurpation of authority, what is required is mere representation with knowledge that the offender is a public officer of the

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Philippines or of a foreign government. False representation is enough. In usurpation, offender performs official functions pertaining to a public officer in the service of the Philippines or of a foreign government.

You should know the distinction between use of fictitious name and concealing true name.

False testimony against a defendant or accused. If this is not punishable in light felony, the crime is committed even if it is not given any weight or when the accused is acquitted. Motive of prosecution witness to falsely implicate accused must be shown.

Perjury refers to non-judicial proceeding.

R.A. 9165The Comprehensive Dangerous Drugs Act of 2002

The previous law is 6425 (Dangerous Drugs Act of 1972). What are some of the distinctions between 6425 and the new law 9165. Under the old law 6425, drugs were classified as prohibited drugs and regulated drugs. There is no classification under the present law. Dangerous drugs, essential chemical or precursor. Another distinction, under the old law 6425, possession of shabu paraphernalia is not punished. Under the present law, possession of paraphernalia is punished (Sec. 12, Art II, RA 9165). Another distinction, the penalty is stiffer under the present law. There are new requirements on photographing, inventory and submission of the dangerous drugs to the PNP Crime Laboratory.

Art. II. This is the most important article. The next most important is definition. Sec. 5 covers several subjects. Sec. 4 is importation of the following: (1) dangerous drugs; (2) controlled precursors and essential chemicals. What is the penalty? Life, P500,000 – P10,000,000 fine. Any person, who, unless authorized by law, shall import or bring into the Philippines any dangerous drug. That is the meaning of importation. To import or bring into port without authority. Why, can you import dangerous drugs? Yes, if you are authorized by the Dangerous Drugs Board. You will learn later that you should secure a license from the proper authority. The quantity or amount should be stated. If it says one kilo only, it should be one kilo. If there is an excess of one gram, that is already illegal importation. Take note that in importation, the law says, regardless of the quantity and purity. Even if it is 99% tawas and 1% shabu, it is still importation. Importation includes all species of opium poppy or afrony part thereof or substances derived therefrom even for floral, decorative and culinary purposes. The poppy is also a flower. If you want imported flowers, do not include poppy because even for decorative purposes, that is illegal. If you want delicious food, you import poppy, that’s illegal importation. The penalty is life imprisonment. If it’s one gram, life. One kilo, life.

Second paragraph is importation of controlled precursors and essential chemicals. There are essential chemicals for other purposes – furniture, etc., but they can also be converted into dangerous drugs. Pseudoephedrine is now classified as dangerous drugs. Reclassified by the Dangerous Drugs Board. What is precursor and essential chemical? Is it defined by law? Yes, letter h. Includes those listed in Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. If you look at it, it includes cuticle remover – acetone. Annex to the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs. There’s Table I and Table II. You read Table II, number one is acetone. So when you import, there must be a license. If you divert, the essential chemical and precursor, the crime is diversion. It’s found in one of the sections here. Penalty is maximum if you use diplomatic passport, diplomatic facility. What happens if you use diplomatic passport – confiscation and cancellation. How about financier [the one who finances the importation]? Maximum. Who is a financier? [It is also defined by law] Any person who pays for, raises or supplies money for, or underwrites any of the illegal activities prescribed under the law. How about penalty for protector and cuddler? 12 to 20 years. Who is a protector and cuddler? Any person who knowingly and willfully consents to the unlawful acts provided for in this Act. Under the RPC, he is an accessory but here, he is a principal. Uses his/her influence, power or position in shielding, harboring, screening or facilitating the escape of

any person he/she knows, or has reasonable grounds to believe on or suspects, has violated the provisions of this Act in order to prevent the arrest, prosecution and conviction of the violator. This is a verbatim of PD 1829. So two crimes are committed – protector and cuddler under 9165, and he is also liable for violation of PD 1829. What is PD 1829? It is a law which punishes those persons who protect criminal offenders from prosecution or apprehension. No double jeopardy because a single act may be punished by two or more laws. Penalty, apply the penalty under 9165 being the higher penalty.

Sec. 5 covers several subjects: (1) sale, (2) trading, (3) administration, (4) dispensation, (5) delivery, (6) distribution, and (7) transportation of (a) Dangerous drugs, and (b) controlled precursors and essential chemicals. What is the distinction between sale and delivery? The distinction is this, in sale, there must be consideration (money or any valuable consideration), in delivery, there is none. In one case, decided by the Supreme Court, a person was charged with violation of Sec. 5 for selling dangerous drugs. The poseur buyer wanted to buy ice (shabu) or “damo” (marijuana). So, he was given the illegal drugs. After that, he left without paying. If the intention of the buyer was to ridicule, he is also liable for estafa even if the merchandise is illegal. There is no distinction. But, if he did that because he is a government agent and it was his intention to bring the dangerous drugs to the authorities, there is no crime. But then he did not pay. He was convicted by RTC of selling. The Supreme Court convicted him, not of selling, but delivering. Why? Because there was no consideration. In delivery, the drug is delivered with or without consideration. So even if there is no consideration. If, while walking on the street, you found a pocket of shabu and you gave it to your friend – liable for delivery. If you live in Cebu City, you saw three pockets and shabu and you placed it in an envelope. Then you sent it to Santander, that is transportation of dangerous drugs under Sec. 5. What is sale? Any act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for money or any other consideration. Do not forget in sale, there is a consideration (US v. Ramos, US v. Marcos). 45 caliber pistol for shabu. Motorcycle for shabu. Those are still sale because there is valuable consideration. In one case, sex for marijuana. Is it material? well, the court said yes, it’s a material consideration. Do not say that because it was not paid, he is acquitted. No. Convicted for delivery. How about trading? Is it defined by law? Transactions involving the illegal trafficking of dangerous drugs and/or controlled precursors and essential chemicals using electronic devices such as, but not limited to, text messages, email, mobile or landlines, two-way radios, internet, instant messengers and chat rooms or acting as a broker. In trading, you do not touch the shabu, You do not personally deliver. You only use internet or text.

What are the elements of the crime of sale? (1) There must be an exchange of dangerous drug for money or any other consideration, (2) the seller and the buyer must be identified, and (3) the dangerous subject of the sale must be presented in court because the dangerous drug subject matter of the sale is the corpus delicti of the crime. It’s very very important to prove the existence of the dangerous drug subject matter of the sale. It’s possible for the other party to claim it to be tawas. It could happen that upon analysis in the laboratory, it is really tawas. It could also happen that the mayor, upon report by the police, would instruct the latter to add tawas just so the accused could not post bail. Usually, counsel for accused will a motion for quantitative examination. Usually, the NBI would analyze the quantity. 100% of those that they review, if 86 grams, it is only .86 gram because the other substances are talcum powder and tawas. However, despite the quantity and purity, the penalty is still high. Identify and present the dangerous drug in court – shabu, marijuana, ecstasy. If the prosecution fails to present the dangerous drug, the accused will be acquitted. Be very careful in the handling the dangerous drugs seized from the crime scene because in a long line of cases decided by the Supreme Court, 2008 to 2010, they are very strict in the chain of custody. You must prove that the dangerous drug presented in court is the very same dangerous drug seized from the accused at the crime scene, meaning, you must mark the dangerous drug at the crime scene. If done at the police station, that is not acceptable to the Court. The Court is very strict. That’s the reason why 60 to 70 percent of the

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cases are dismissed. Supreme Court said, “all persons who touched the object evidence must testify in court” [Who confiscated the dangerous drug? What did he do with the dangerous drug? Did he mark it? From him, to whom was it given? At the police station, who received the dangerous drug? What was done to it? Where was it placed? If placed in the cabinet, there is the possibility of mix up, tampering.] The integrity of the dangerous drug must be preserved. From there, you go directly to the crime laboratory. You should establish who delivered the dangerous drug to the crime laboratory. You must prove that that is the very same dangerous drug sent to the PNP Crime Lab for examination. From there, to the prosecutor’s office. From the prosecutor’s office to the court. There must be a property custodian of the buy-bust team. That is just a regulation of PDEA. There is also a property custodian in the police station. There is also a property custodian in PDEA. Another property custodian in the office of the city prosecutor. You break the chain and you will get an acquittal. Assuming there is substantial compliance of the rule on chain of custody, the dangerous drug was presented, identified, marked, the other side, meaning, the defense, cross-examined the witness. After the completion of the offer of testimonial evidence, what is the next step? Formal offer of the object evidence. Suppose at the time the object evidence shall have been offered, this is an actual case, one pack of shabu worth more than one million pesos. At the time of offer, the prosecution could no longer offer because it was stolen at the office of the city prosecutor. Why was it stolen? Because the DOJ was not able to provide to the office of the city prosecutor a safe cabinet. If taken home and it gets lost, malversation of public property. So what happened? The prosecution was not able to present. The poor prosecutor was prosecuted for malversation through negligence. Sentence – reclusion perpetua. Question: can you convict the accused when the object evidence is no longer available at the time it was formally offered? The answer is yes on the basis of a Supreme Court decision People v. Napat-a. Why? Because the defense was given opportunity to cross-examine the evidence. Object evidence was lost not through fault of prosecutor. The object evidence was identified, marked and offered in evidence.

We have discussed the elements of sale. 90 percent of sale, buy-bust operation. Buy-bust operation is a form of entrapment which sanctioned or allowed by law. There is no hard and fast rule in buy-bust operation. Usually, but not necessarily, there is an informant, an asset. Then it is followed by surveillance of the subject, whether the information is true. After surveillance, it may be followed by test buy. The drugs purchased will be examined in the Crime Laboratory to determine if dangerous drug. If confirmed, they can now perform a buy bust. The better procedure is to secure a search warrant if he is selling in his house or any fixed place. But if he is moving around, you apply buy bust. If you applied for search warrant, you conducted surveillance for one month, you know that he is selling dangerous drugs in his house and then you buy bust, usually will be struck by the Amminudin. If you have plenty of time to secure a search warrant, then secure a search warrant if you are really positive. You go to the court if you have probable cause, the search warrant will be issued. In search warrant, you also follow the knock-and-announce rule. Buy. Whether buy bust or search warrant, Sec. 21 is very strict. There should be marking. There should be inventory to be conducted in the place where the search was conducted. The dangerous drug must be marked and photographed in the presence of the accused or his representative, in the presence of representative of the DOJ [prosecutor], in the presence of media, representative of media and in the presence of a representative of the LGU [barangay councilor or chief justice of lupong tagapamayapa]. The Supreme Court said that failure to comply with this mandatory requirement, you must acquit the accused. If you are in Camotes, where can you find media? If you are in Santander? But then there is an exception. If the integrity of the dangerous drug presented in court is not tainted, no tampering, etc. The court may favor conviction of the accused. Otherwise, you have to follow the general rule. That is sale.

Going back to buy-bust operation, it is preceded by surveillance. But the Supreme Court, in many cases, said, surveillance is not indispensable because the elements of sale are the following: exchange of dangerous drug for money, identify the seller and the buyer, and

present the object evidence in court. Suppose there is no test buy, the Supreme Court said even if there is no test buy for as long as you can prove exchange of money for dangerous drugs, convicted. But, suppose there is no photographing or inventory, acquitted. In one case, after a lawful arrest, the accused was bodily frisked. The police officer found marijuana in his left pocket, shabu in his right pocket. How many cases will be filed? Supreme Court said two cases - one for possession of marijuana, one for possession of shabu. Buy bust – buy shabu, exchange of money for shabu – assuming that all the requisites were proved by prosecution witnesses. After the buy bust, then arrest, then search incident to a lawful arrest. Two cases – one for selling under Sec. 5 and one for possession under Sec. 11 – because the subject matter of sale is different from subject matter of possession. Those are well-settled cases.

Then, administration. Also falls under Sec. 5. Either injection or ingestion. What is the meaning of administration? Any act of introducing any dangerous drug into the body of any person, with or without his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance to a person in administering a dangerous drug to himself/herself unless administered by a duly licensed practitioner for purposes of medication. For example, a person who is chilling asks you to inject him with cocaine and you did it. You will be held liable for administration. This is the same as giving assistance to suicide.

Then, dispensation. Is there any definition? Any act of giving away, selling or distributing medicine or any dangerous drug with or without the use of prescription.

Going back to administration, there are persons who are allowed to administer. Doctors. Do not think that dangerous drugs cannot be used. They can be used if there is license and prescription.

Delivery. What is the meaning of “to deliver?” Any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration.

Then, distribution and transportation. Is there any definition? There is none. Transportation actually means. This is usually done with the use of conveyance (habal-habal, jeepney, or even jet plane as long as used in the transportation). Transportation presupposes asportation, transfer from one place to the other even if the transferor did not reach the destination. There are foreigners convicted. On their way to airport, they were arrested. That’s transportation. They argued that they have not even reached their destination. The Supreme Court said no. For as long as there is initial movement of the dangerous drug, that is transportation of dangerous drug. Yes if he knows that his vehicle or conveyance is knowingly used in the transportation. There is also a provision on confiscation of conveyances and materials. Penalty – life, P500,000 to P10,000,000. There is a penalty for sale, trading, etc. of precursor and essential chemical. If sale, trading, etc. of controlled precursor or essential chemical transpires within 100 meters from the school, maximum. If the culprits used minors or mentally incapacitated persons, maximum. If minor or mentally incapacitated individual dies, or if the selling, trading etc., is the proximate cause of death, maximum. For financier, maximum. For cuddler/protector, 12 years 1 day to 20 years.

Going back to buy bust operation, because 90 percent of Supreme Court decisions are decided on the basis of buy bust. No hard and fast rule. If a person is charged with sale, can he be charged of possession? The answer is no. If he is charged with sale, let say of one packet of shabu, he cannot be charged of possession. Possession is absorbed in sale. But sale of one dangerous drug and later on, he is found in possession of another dangerous drug, two cases – one for sale, another for possession. 51:44. Even if all are shabu but subject matter of sale is one packet, subject matter of possession must be another packet of shabu. Not the same. If the same, absorbed. For example, sale of shabu, then search incident to a lawful arrest, marijuana – two cases, one for sale of shabu, another case for possession of marijuana [Sec. 5 and Sec. 12].

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Then, Sec. 6 - Maintenance of a Den, Dive or Resort. What is a den, dive or resort? A place where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, stored for illegal purposes, distributed, sold or used in any form. It’s the place. Penalty is life then P500,000 to P10,000,000. Different penalty for dive, den or resort for precursor or essential chemical. Maximum if minors are involved. If death results, maximum. What happens to the den, dive or resort? Confiscated and escheated in favor of the government. There is a penalty for financier and protector or cuddler.

Then, Sec. 7 is penalty for employees and visitors of a den, dive or resort. What is the definition of employee? Employee of Den, Dive or Resort. – Caretaker, helper, watchman, lookout, and other persons working in the den, dive or resort, employed by the maintainer, owner and/or operator where any dangerous drug, etc. is administered, delivered, etc. Take note that the employee [caretaker, helper, etc] must know that he is working for the owner of the dive, den or resort. Found in Sec. 7, any employee of a den, dive or resort, who is aware of the nature of such place. Any person who, not being included in the provisions of the next preceding, paragraph, is aware of the nature of the place as such and shall knowingly visit the same. So visiting a drug den. There is one important element in visiting – knowledge that the place is a drug den.

Yes, of course, because if he uses drugs, he will be liable for use (Sec. 15). But you know, it’s better to be charged with the crime of use because if possession, the penalty is higher. If use, six months rehabilitation. The philosophy is that the law favors rehabilitation.

Sec. 8, manufacture. The definition is very broad because re-packing, re-labeling is within the ambit of manufacturing. If one kilo is re-packed into smaller packs, that is manufacturing even if you do not actually manufacture. Re-labeling. If the packs are labeled Talisay, Tabunok, Minglanilla, etc. and later on re-labeled Tuburan. That’s re-labeling. Where is it found? Manufacturing. Production, preparation, compounding or processing either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis etc., and shall include any packaging or repackaging of such substances, design or configuration of its form, or labeling or relabeling of its container. Penalty – life, P500,000 to P10,000,000. Precursor or essential chemical – 12 years 1 day to 20 years. The presence of any controlled precursor and essential chemical or laboratory equipment in the clandestine laboratory is a prima facie proof of manufacture of any dangerous drug.

Then , Sec. 9 – Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals. For example, ephedrine, acetone, sulfuric acid and other essential chemicals. Intended for beauty, it is used as for drugs. For furniture, it is used for another purpose. That is diversion. What is the definition of diversion? Sale, distribution, supply, etc., in diluted, mixtures or in concentrated form, to any person or entity engaged in the manufacture of any dangerous drug, and shall include packaging, repackaging, labeling, relabeling. Penalty – 12 years and 1 day to 20 years.

Then, Sec. 10 – Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia.

Sec. 11 – Possession. What are the elements of possession? (1) Possession, either actual or physical, or constructive. Found inside your flat or room, not in your personal possession or under your bed. That is constructive possession. Found inside the car, either in the baggage compartment or anywhere. You are the owner of the car, you are presumed to be the possessor of all things found inside the car. That is constructive possession. Actual physical – in your pocket, hand or bag that you personally carry. (2) Animus possidendi or intent to possess. Why is it an important element? Because if you are a victim of planting evidence, you will not be held liable. For example, unknowingly, dangerous drug is placed inside your bag. You are in physical and actual possession of the dangerous drug, but you are not liable for possession because of the absence of one element. That element is no animus possidendi. (3) Presentation of dangerous drug in court. You have to present the forensic

chemical officer. He must identify the dangerous drug report or the chemical analysis. There are two tests conducted before methylamphetamine or shabu may be found to contain dangerous drug or methylamphetamine hydrochloride. The penalty depends upon the type of dangerous drug and the weight or quantity. Highest penalty – life. Fine – P400,000 to P500,000. Then 20 years and 1 day to life. 12 years and 1 day to 20 years depending on the kind of drug.

Sec. 12 – Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs. Old law – not punished. What is punished is possession of opium pipe. 6425 – no penalty for possession of paraphernalia for shabu. 9165 (new law) – there is already a penalty (6 months and 1 day to 4 years), fine (P10,000 to P50,000).

Then, possession of dangerous drugs during parties, social gatherings or meetings of at least two persons – maximum penalty.

Possession of equipment, instrument, apparatus, etc. in social gatherings and meetings – also maximum penalty.

Sec. 15 is use of dangerous drugs. If possession, 12 years and 1 day, even if 0.1 gram only. If sale, even if only 0.1 gram, life imprisonment. If use, what is the penalty? The law says “a person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test [there must be confirmatory test], shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Art. VIII. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from 6 years and 1 day to 12 years, and P50,000 to P200,000 fine.

Sec. 16 – Cultivation or Culture which is defined by law. Any act of knowingly planting, growing, raising, or permitting the planting, growing or raising of any plant which is the source of a dangerous drug. If while trekking, you found a beautiful plant, without knowing it to be marijuana, and you planted it in front of your house. Liable? No, if you do not know the actual character of the plant because the law requires knowledge. Knowledge is an important element. Are there persons who are allowed to cultivate or culture plants classified as dangerous drugs or sources? Yes, the first proviso. Provided, that in the case of medical laboratories and medical research centers which cultivate or culture marijuana, etc., or for the creation of new types of medicine, the Board shall prescribe the necessary implementing guidelines. So you need to secure a permit from DDB. How about the greenhouses on which any of the plants cultivated and cultured? Confiscated and escheated in favor of the government. Financier – there is a specific penalty. Protector/cudder – yes. By the way, if you plant marijuana on your lot, your land will be confiscated and escheated in favor of the government, even if you’re not the one who planted it, but you know it’s marijuana.

Sec. 17 is maintenance and keeping of original records of transactions. If you are allowed to use or cultivate, etc. dangerous drugs, you must keep records. There are rules and regulations on record-keeping. If you fail in record-keeping, the penalty is 1 year only to 6 years and P10,000 to P50,000 fine. Who are meant by this? Practitioner, manufacturer, wholesaler, importer, distributor, etc. Then, in addition to the cancellation of business permit.

Sec. 18 – Unnecessary Prescription of Dangerous Drugs. There are physicians who are allowed to prescribe dangerous drugs. It must not be unnecessary. You are allowed to prescribe but it must be necessary. “Who shall prescribe any dangerous drug to any person whose physical or physiological condition does not require the use or in the dosage prescribed therein.

Then, unlawful prescription. Not all doctors are allowed to prescribe. He must secure a permit or authority from the Dangerous Drugs Board. For unlawful prescription, the penalty is life, then P500,000 to P10,000,000.

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Then there is a provision on confiscation and forfeiture of the proceeds or instruments of the unlawful act. This is the same as RPC, confiscation and seizure of instruments and the effects of the crime. If you are using “tri-sikad,” it will be confiscated. If you are using boat, it will also be confiscated.

Then Sec. 21 is the subject of very important Supreme Court decisions. This Sec. 21 resulted in the acquittal of no less than 60 percent of dangerous drugs cases.

Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. Which is the lead agency? PDEA, taking charge and having custody of all dangerous drugs, plant sources, etc. What is the duty of the apprehending team? Team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same [in whose presence?] in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, etc., the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination. But then this provision clashes with that of the Criminal Procedure. What is the provision on search warrant under Criminal Procedure? There must be a return of the search warrant. If the applicant does not make a return, he can be cited for contempt. Before turning them over to the PNP Crime Laboratory within 24 hours for examination, you must first make a return to the court. Thereafter, you go to the laboratory. That’s what the Supreme Court said. It acquitted because there was no report. It was submitted directly to the Crime Laboratory. It’s difficult to comply. If you don’t comply with the court, you can be cited for contempt. If you don’t comply with RA 9165, the accused will be acquitted.

A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s:

After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals [this has not been complied with].

The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s.

Then Sec. 22, not very important, grant of compensation, reward and award.

Then, plea bargaining shall not be allowed.

Then, probation law for drug traffickers and pushers, not applicable. Exception – RA 9344 (Juvenile Justice Law). If 17 years old, who did not act with discernment, he cannot be prosecuted. If he acted with discernment and he was convicted (life imprisonment), can he avail of Probation Law when it is life imprisonment? Yes, it is an exception also to the Probation Law. There are many criticisms of RA 9344. Why? They (the criminal syndicates) are using minors, those 15 year olds because of total criminal irresponsibility or non-responsibility. They cannot be imprisoned. The solution is not imprisonment or prosecution, but diversion.

Sec.25. Qualifying Aggravating Circumstances. – If the offender used or was influenced by dangerous drugs in the when he committed the crime, qualifying aggravating circumstamce.

Sec. 26. Attempt or Conspiracy. – Mere attempt or conspiracy is punished by law. Is there

an overt act? No. In the following cases, attempt or conspiracy are punished:

(a) Importation of any dangerous drug and/or controlled precursor and essential chemical;(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical;(c) Maintenance of a den, dive or resort where any dangerous drug is used in any form;(d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and(e) Cultivation or culture of plants which are sources of dangerous drugs.

Under the Revised Penal Code, we have a crime called malversation, committed by an accountable officer. Two kinds of malversation – either deliberate malversation or malversation through negligence – the penalty is the same. Suppose the public officer or employee misappropriated, misapplied or failed to account for the confiscated, seized and/or surrendered dangerous drugs, what is the penalty? If malversation only under RPC, the penalty is less. If under RA 9165, the penalty is life imprisonment and fine of P500,000 to P10,000,000.

Then, the second paragraph is narco-politics. Any elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs as prescribed in this Act, or have received any financial or material contributions or donations from natural or juridical persons found guilty of trafficking. The accused in the second paragraph cannot be convicted unless there is prior conviction of the drug lord or drug pusher because the law says “found guilty of trafficking.”

Sec. 28. Criminal Liability of Government Officials and Employees. – Maximum.

Sec. 29. Criminal Liability for Planting of Evidence. – Under RPC, we have incriminatory machination, committed only in one way or manner – doing an act. This planting of evidence is an act of incriminating an innocent person. The penalty is less grave in RPC, but under 9165, it’s life imprisonment. But, under People v. Mateo, the penalty would have been death [automatic review by the CA].

Sec. 30. Criminal Liability of Officers of Partnerships, Corporations, Associations or Other Juridical Entities. – Who shall be liable? President, director, manager, trustee, etc.

Sec. 31. Additional Penalty if Offender is an Alien. – Deportation.

Sec. 32. Liability to a Person Violating Any Regulation Issued by the Board. – Six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00).

Sec. 33. Immunity from Prosecution and Punishment. – The state witnesses. But, the grant of immunity may be terminated.

Sec. 34. Termination of the Grant of Immunity.

Sec. 35. Accessory Penalties.

Do not read Secs. 36, 37, 38, 39.

Sec. 40. Records Required for Transactions on Dangerous Drug and Precursors and Essential Chemicals.

There is a penalty for not following the rule on record-keeping

Skip Secs. 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51-53.

Art. VIII [Program for Treatment and Rehabilitation of Drug Dependents] is important.

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Under the old law RA 6425, if we talk about voluntary submission of a drug dependency examination, confinement, etc. You yourself must file the petition, not your spouse, your father or your sibling.

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. – A drug dependent or any person who violates Sec. 15 [use] of this Act may, by himself/herself or through his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity, apply to the Board or its duly recognized representative, for treatment and rehabilitation of the drug dependency. Under the old law, only the drug dependent can file. Now, the relatives can now file, but still voluntary. So you file an application for confinement, treatment or rehabilitation either directly with the DDB or representative of DDB (Parole and Probation Office). Before a petition is filed, the applicant must file the application with DDB. The DDB will issue an order for the examination of the drug dependent. The DDB-accredited physician will submit the report to the court. So there will be a hearing. That is voluntary.

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. – A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Sec. 15 of this act subject to the following conditions:

(1) He/she has complied with the rules and regulations of the center, the applicable rules and regulations of the Board, including the after-care and follow-up program for at least eighteen (18) months following temporary discharge from confinement in the Center or, in the case of a dependent placed under the care of the DOH-accredited physician, the after-care program and follow-up schedule formulated by the DSWD and approved by the Board: Provided, That capability-building of local government social workers shall be undertaken by the DSWD;(2) He/she has never been charged or convicted of any offense punishable under this Act, the Dangerous Drugs Act of 1972 or Republic Act No. 6425, as amended; the Revised Penal Code, as amended; or any special penal laws;(3) He/she has no record of escape from a Center: Provided, That had he/she escaped, he/she surrendered by himself/herself or through his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity, within one (1) week from the date of the said escape; and(4) He/she poses no serious danger to himself/herself, his/her family or the community by his/her exemption from criminal liability.

After he is rehabilitated, Sec. 56, there is an application for temporary release, the court will issue an order of temporary release. But, after temporary release, there is after care and services program to be conducted by the DOH.

Sec. 57. Probation and Community Service Under the Voluntary Submission Program.

Sec. 58. Filing of Charges Against a Drug Dependent Who is Not Rehabilitated Under the Voluntary Submission Program. – Can other persons seek the rehabilitation of a drug-dependent person? The answer is yes. A drug dependent, who is not rehabilitated after the second commitment to the Center under the voluntary submission program, shall, upon recommendation of the Board, be charged for violation.

Sec. 59. Escape and Recommitment for Confinement and Rehabilitation Under the Voluntary Submission Program. – First rehabilitation – he escaped. If he returns within one week, he shall be accepted. If he escapes again, he will be prosecuted already.

Sec. 60. Confidentiality of Records Under the Voluntary Submission Program. – These rehabilitation records are confidential. There was one head of a rehabilitation center who testified in court. [Judge: Are you sure with what you are doing when the records are confidential? It is found in Sec. 60]. Judicial and medical records - except to determine how many times.

Sec. 61. Compulsory Confinement of a Drug Dependent Who Refuses to Apply Under the Voluntary Submission Program. – [Here, the parents are unwilling.] Notwithstanding any law, rule and regulation to the contrary, any person determined and found to be dependent on dangerous drugs shall, upon petition by the Board or any of its authorized representative, be confined for treatment and rehabilitation.

A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center may be filed by any person authorized by the Board [ex: station commander].After the petition is filed, the court shall immediately fix a date for the hearing.

Sec. 62. Compulsory Submission of a Drug Dependent Charged with an Offense to Treatment and Rehabilitation. – This is different because the drug dependent here has a pending criminal case and the court and the prosecutor found that he is a drug dependent. He may be compulsorily be rehabilitated in a center for drug dependents.

Sec. 63. Prescription of the Offense Charged Against a Drug Dependent Under the Compulsory Submission Program.

Sec. 64. Confidentiality of Records Under the Compulsory Submission Program.

Sec. 65. Duty of the Prosecutor in the Proceedings.

Sec. 66. Suspension of Sentence of a First-Time Minor Offender. [Never mind Sec. 66 because of RA 9344.] If minor, 15 years old, he cannot be criminally prosecuted. If minor, below 18 years old [meaning 17 years old], not acting with discernment, you cannot also prosecute.

Sec. 67. Discharge After Compliance with Conditions of Suspended Sentence of a First-Time Minor Offender.

Sec. 68. Privilege of Suspended Sentence to be Availed of Only Once by a First-Time Minor Offender. – This is modified already. If a 15-year-old has dangerous drugs law violation, he cannot be prosecuted. If at 16 years old, he committed a crime, not acting with discernment. At the age of 17, he commits again a violation under this law, not acting with discernment, still, he cannot be prosecuted.

Sec. 69. Promulgation of Sentence for First-Time Minor Offender. – Modified already.

Sec. 70. Probation or Community Service for a First-Time Minor Offender in Lieu of Imprisonment.

Sec. 71. Records to be kept by the Department of Justice.

Sec. 72. Liability of a Person Who Violates the Confidentiality of Records. – Penalty is (6) months and one (1) day to six (6) years.

Sec. 73. Liability of a Parent, Spouse or Guardian Who Refuses to Cooperate with the Board or any Concerned Agency.

What’s the empasis? Art. II and definitions of terms.

CRIM 9:

Title Six: CRIMES AGAINST PUBLIC MORALS

Chapter One: GAMBLING AND BETTING

There are 8 crimes against public morals, please take note “public”. In one decision of the Supreme Court it said it is not after the morality or morals of an individual, so crimes against morals here is not morality of a single individual.

Chapter one supposed to be gambling and betting but repealed or amended already by PD 483 and

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other special laws. So 195 to 199 are amended, what’s left? Lottery ok, it is a scheme for the distribution of prizes by chance among persons who have paid or agreed to pay a valuable consideration for the chance to obtain a prize. If you buy from a department store and there is so called lottery or prize, if you do not pay extra prize that is not gambling, that’s not lottery but if you pay extra money then that is already lottery.

Article 196 there are 4 acts punished.

Importing, selling or distributing in connivance, possessing with intent to use, selling or distributing without connivance. PD 483 all concept of gambling it is a game of chance, meaning if the result depends cheaply or mainly on chance then it is gambling otherwise it is not. Forget the old definition of gambling, the new law says BETTING MONEY OR ANY OBJECT OR ARTICLE OF VALUE OR REPRESENTATIVE OF VALUE UPON THE RESULT OF ANY GAME, RACES AND OTHER SPORT CONTEST. Bisag mo boxing pa si Manny Pacquiao mupusta ka that is gambling. Kalimti ang chance ug istrikutuhon daghan mapriso including judges who bet on boxing. Basketball, mupusta ka that is gambling. No distinction ‘cuz the law says result of any game, race and other sports contest.

Now what is Game Fixing? Game fixing gani both teams are involved, any arrangement, combination, scheme or agreement by which the result of any game, races or sports contests shall be predicted and/or known other than on the basis of the honest playing skill or ability of the players or participants. Kanang football sometimes fixed na siya, both teams will agree, padag-on nimo sa pikas pero ang pusta bahin ta, that’s game fixing. Keywords, result shall be predicted and/or know other than the basis of the honest playing skill or ability.

It’s different from Point Shaving because in point shaving only one player maybe involve. You maybe the best scorer in your team, average 30 shots or goal per game. Ingnon dayon ka “for P1M limit it to 10 or 15”, that is point shaving. Law says result, arrangement, combination, scheme, agreement by which the skill or ability of any player or participant in a game. Only 1 player or participant to make points or scores shall be limited deliberately. “Ikaw may man ka mo football per game naa kay maximum of two, minimum of 1 zero-hi una ha o di ba 1.” Ok that is point shaving, purpose is to influence the result in favor of one or the other team, player or participant.

Then Game Machination, other fraudulent, deceitful, unfair or dishonest means, method, manner or practice employed for the purpose of influencing the result, section 2 is amended.

Art.198 Illegal betting on horse races, cockfighting is now found in 7160, cockpits subject to zoning law or ordinance. Who are involved in cockfighting? Bet taker or promoter (kristo), gaffer (taga tari), referee (sentenciador) then bettor, except for the bettor all must be licensed the cockpit must be licensed, taker, gaffer, referee licensed. When is cockfighting allowed? When is it not allowed? Unlikely mugawas sa exam pananglitan ang examiner sugarol, delikado ta. Allowed only in licensed cockpit, 7160 local government code only 1 cockpit per municipality. Allowed on Sundays, Legal Holidays, Fiestas, Provincial, City etc. Fair, Carnival or Exposition. Not allowed on the following days December 30 (Rizal Day), June 12 (Philippine Independence Day) November 30 (National Heroes Day), Holy Thursday, Good Friday, Election or Referendum Day and during Registration Days for such election or referendum.

Exception, for entertainment of tourists or for charitable purposes, balikbayan or for support of national or fund raising campaign for charitable purposes. Who are punished? Financier, owner, manager, operator, gaffer, referee, bet taker.

1602 as amended, this is already amended. Illegal gambling law, what are the acts punished? Taking part in any illegal or unauthorized activities or games of cockfighting there is a very long ah enumeration including basketball, boxing, volleyball, bowling, pingpong etc. Basta mupusta ka ayaw na nang chance, chance kay

panahon panang mamcor, mao nay definition sa karaan nga kinahanglan chance para gambling, dili basta including ha basketball, boxing. Ok? Who are the other persons punished? Person who shall knowingly permit any form of gambling to be carried in an uninhabited or inhabited house, vessel of any other means of transportation owned or controlled by him. Ni adto nga kusog pa kaayo manakay ug barko ang mga tao, naay mga sugarol diha sud sa barko. Sakay sila padong ngadtos manila, naog kadiyot tan-awg sine pagbalik sakay nasad para sugal. Ok? Who else? Maintainer, conductor, banker of gambling schemes. What are the other acts punished? Possession of lottery list, paper or other matter containing letters. Then, barangay officials who fail to abate gambling or take action in connection with gambling.

Chapter Two: OFFENSES AGAINST DECENCY AND GOOD CUSTOMS

Grave scandal, immoral doctrines, vagrancy. Scandal here is or rather involves morality, this is not the scandal in crimes against public order.

Art. 200 Grave scandal- any person who shall offend against decency or good customs by any highly scandalous conduct, there is a catch all provision not expressly falling within any other article of this Code. This catch all provision is similar to similar deceits and estafa. When is it considered grave scandal? If done in a public place or within public knowledge or view.

Ug mada kag uyab ngadto sa motel, that is not grave scandal kay nagtago man, not within public view, not within public knowledge. Highly scandalous offending against decency or good customs, so as long as the highly scandalous conduct is committed in a public place it is not necessary it be open to public view. Valentines Day way kwarta ang mag-uyab didto ni kamang sa mga kagubngan sa plaza independencia, da lang ug karton. That is a public place pero dili public view nitago sila pero dili mana puwedi ok? Pag-save gud before February 14.

“Decency” means propriety of conduct; proper observance of the requirements of modesty, good taste, etc. “Customs” means established usage, social conventions carried on by tradition and enforced by social disapproval of any violation thereof. Reyes defines grave scandal as follows; it consist of acts which are offensive to decency

and good customs which having been committed publicly, have given rise to public scandal to persons who have accidentally witnessed the same. Accidentally witnessed the same, February 14 hinay-hinay ang duha padong sila sa bushes noh diha sa plaza independencia, ang pulis sad sigeg sunod unya paghigda sa kuan kamang sad siya unya “huli ka!”,grave scandal? No, kay wa man mo comply sa phrase persons who have accidentally witnessed the same, iya man gi, namuso man. The acts must be those that can cause public scandal among the persons witnessing the same. The act must be performed in a public place or within public knowledge or view. Otherwise stated, it maybe a private place but within public knowledge or view.

Immoral doctrines, obscene publications, exhibitions and indecent shows. Dinhi na ni nimo makita ang essence sa crime against morals, balikon nako it’s the morality of the public not the individual maoy gitan-aw sa balaod. Those who shall publicly expound or proclaim doctrines openly contrary to public morals. Maghimo kag simbahan, Iglesia Delos Santos oh kadaghan naghimo dihag kuan ah, maghimog cult ba. Unya simba gani hubo tanan kay balik ta sa Adan ug Eva, you cleanse yourself of all your sins. Inig sugod sa misa pawng suga. Then authors of obscene literature published with their knowledge in any form. Si Mr. Delos Santos may man kaayo mo drawing gahimog komiks, triple x naa didto lain-lain lang ug position. Standing, side by side, back to back unya diha ra sud sa boarding house. Unya ug naay nikawat ato gibaligya sa gawas, gi xerox alkansi siya sa copyright. Is he liable? No, because it was published without his knowledge. Who else are liable? Editors, ngano i-apil man ang editor? Kay di mana mulusot ang article without the editor diba? Naay weekend editor, managing editor. Owners and operators of course of establishment selling the same in public places like theaters, fairs etc. exhibiting indecent or immoral plays, scenes, acts or shows. (1)

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Glorifying criminals. (2) Serving no other purpose but to satisfy the market of violence. (3) Offend any race or religion. (4) Tend to abet traffic in and use of prohibited drugs, you may also be held liable for violation of RA 9165 conspiracy, are contrary to law, public order, moral, good customs.

Ok next number 3, selling, giving away, or exhibiting films, prints, engravings, which are offensive to morals. The Supreme Court panahon pas amerkano up to the present, mere possession of obscene literature is not punished, what is punished is selling, giving away or exhibiting because this is crime against public morals. Ok repeat, mere possession of obscene literature is not punished, there must be selling, publishing, giving away, etc. In fact in his book Reyes said this offense in any of the forms mentioned in the article is committed only when there is publicity.

Now, Reyes and other books mentioned test of obscenity. Si Reyes naay iyang test of obscenity, si Ortega naa siyay test of obscenity, unsa may test nila? Kottinger Test. I tell you obsolete nana ilang libro kung maghisgot silag Kottinger Test. Daghan na kaayog developments sa jurisprudence naa sa notes nako ha it’s the Miller Test no longer the Kottinger Test. In fact around 5 Supreme Court decisions naa ba sa inyong notes? volume 1? Miller Test already, ang Kottinger sayon ra kaayong hinumduman kay kuha ninyo ang k ug g,e,r unsay mahabilin? Wa naning Kottinger Test, Miller na.

Special law in relation to 201, RA 3060 unsa mani? Creating the MTRCB, Movie, Television, Review Classification Board. Kini siya MTRCB di ni kihanglan nga obscene, obscene or not basta naay movie mu-agi gyud na siya sa MTRCB. Public exhibition of any motion picture which has not been previously passed by MTRCB that’s punishable by law, this is mala prohibita whereas Article 201 number 3 is mala inse. Kung i.capsulize nimong Miller Test, ang test sa obscenity is “hardcore” mao nay gi-ingon sa Supreme Court, the article must be hardcore. Basaha ninyo Supreme Court decision hardcore gyud, kung softcore lang di puwedi. Unsay meaning anang hardcore basta mugahi hardcore. Like art noh, nude unsa ba nimo obscene bana or dili, aw hard test. Inig tan-aw nimo mugahi gali, obscene. You read ha Miller Test we will, anyway we’re going to discuss the decisions.

Now, Reyes cited People vs. Aparici the object of the law is to protect the morals of the public not the individual. There is a special penal law applicable to children only, Sec. 9 RA 7610 Child Abuse Act. Hiring, employing, persuading, using, coercing a child to perform in obscene exhibition and indecent shows whether live in video, pose, or model in obscene publications or pornographic materials including selling, distributing. Maximum if the child is below 12 there is penalty for ascendant, guardian or person entrusted, please take note including persuading.

Then Article 202 vagrance and prostitutes mao niy gusto nga i-repeal ni Chiz Escudero, there are portions here of the law nga obsolete gyud but there are still portions which are good law. Persons having no apparent means of subsistence who has the physical ability to work and who neglects to apply himself or herself to some lawful calling. Gusto ning wagtangun ni Chiz kay pobre man gyud kuno ang Pilipino murag i.punish nimo ang way trabaho unya wa mansad gyuy trabaho nga makuha.

Next, loitering about public or semi public buildings or places, or tramping or wandering about the country or the streets without visible means of support. Numbers 1 and 2 here has an element of habituality according to the Supreme Court, all decisions of the Supreme Court. Loitering about public, semi public places, kana bang magka gidlay unya mag sigeg suroy-suroy kinahanglag element of habituality. Pananglitan ni adto ka sa bukid na abtan kag baha, gi anod ka nagka gisi-gisi imong sinina unya brief ray nakita mulakaw kas kalsada dakpon dayon “oh vagrancy ning imo” ka-usa ra gud na gud unya disgrasya pa gyud. So there is an element of habituality according to old Supreme Court decisions.

Idle or dissolute person who lodges in houses of ill-fame; ruffians or pimps naa ni sa 7610 trafficking in person gibalik-balik nia sa mga new laws. Question, may a millionaire be charge of vagrancy? The answer is Yes, according to number 3 those habitually associate with

prostitutes. Bisag milyonaryo paka if you habitually associate with prostitutes you are liable under Art. 202. Loitering in inhabited or uninhabited place belonging to another without any lawful or justifiable purpose again, there is an element of habituality. Ug adto ka suroy-suroy sa fenced estate where trespass is forbidden, the crime is other forms of trespass, crime against property.

Prostitutes, ang RPC sexist kay ni, gidaog-daog ang mga babaye, yes kay panahon pa ni sa katsila nga ang mga babaye second class citizen. RPC prostitution, ang lalaki nga mugamit sa prostitute dili ma prosecute, kinsay i. prosecute? ang babaye. Pero under our new law, especially sa trafficking, if a woman who is a prostitute who is trafficked repeat, who is trafficked is a victim, she should not be prosecuted the law says kaning ni gamit sa trafficked prostitute is the criminal not the one who is trafficked as a prostitute which is the better law. Ato maning ma discuss the 9208 trafficking in person. Under the RPC woman ra gyud ang makiha ug prostitution, ug ari ka sa 7610 boy or girl. Woman ra gyud so makita nimo nga pabor gyud sa laki ang RPC bisan sa adultery, concubinage alkansi gihapon ang babaye kay di masakpan ang laki wa may crime, hinuon wa say witness.

Women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct are deemed to be prostitutes. Is sexual intercourse necessary in prostitution? No, the law says lascivious conduct. There is one element here which is important habituality, kung usa ka babaye nagpa gamit ka usa lang virgin pa man 50k that is not prostitution because there is one element lacking, habituality.

Now, there is a special law 7610 again, section 5 article 3 child prostitution and other sexual abuse. Children whether male or female, RPC woman only, 7610 male or female, who for profit or any other consideration or due to coercion or influence of any adult, syndicate or group indulge in sexual intercourse or lascivious conduct are deemed to be children exploited in prostitution and other sexual abuse. Make no mistake who is punished here not the child but the one who prostituted the child. What’s the distinction between section 5 and RPC? Di mo makita sa RPC due to coercion or influence any adult, syndicate or group wala na sa RPC. Sa RPC mura ug no coercion, iyang kaugalingong kabubut-on, under 7610 child prostitution maybe through coercion or influence. Then who are punished under 7610 section 5? Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse. Kinsay gi punish ang child? No, the person who committed the act of sexual intercourse or lascivious conduct.

Who else is punished? Those who derive profit on, advantage there from whether as manager, owner of establishment etc. Section 6 was asked in the bar exams, there is an attempt to commit child prostitution in the following cases: when any, boys pagbantay mo ani ha, when any person who, not being a relative of the child is found alone with the said child inside a room, cubicle of the house and inn, hotel, motel, pension house, apartelle and other similar establishments, vessel vehicle or any other hidden or secluded area. Boys kung magda mog 17 years old ngari sa secluded area bisag cubicle pa puwedi mo ikiha ug attempt to commit child prostitution. Maglisud mog bar, pangayu-i ninyo ug birth certificate. So please take note ha, vehicle, any hidden or secluded area under circumstances which would lead a reasonable man to believe that the child is about to be exploited in prostitution and other sexual abuse. Take note, according to the Supreme Court sexual abuse is different from prostitution. Mas na labaw na boys kining 2nd paragraph mu bar gali mo ayaw mog sud-sud ug sauna kay massage clinic patay mo ha, nga per Sunday raba pamasahi ta di gyud mo ka bar. I’ll read to you what will happen; there is also an attempt to commit child prostitution etc., etc., when a person is receiving services from a child in a sauna, parlor bath, massage clinic, health club and other similar establishment. “Receiving services” unya wa ka kahibaw nga 17 diay kay ang nawng mura man ug 25 ug i.raid di ba makiha kag attempt to commit child prostitution? Kung imo istriktuhon? Ning gawas ni sa bar exams, gi unsa man pagpangutana sa bar? Naay koronel sa military, retired from the service nagpahayahay lagi, he brought a 14 year old girl to a beach house sila rang duha didto wa ingon nga ga unsa sila didto ga basketball ba, nangadje ba or unsa, wa or ga jackstone ba wa sad. Basta

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gida lang niya sa secluded place, what crime was committed? Mao nay pangutanas bar. Attempt to commit child prostitution. What are the defenses? Defenses relative, etc., etc. naay exception ani.

Ok, mendicancy ah there are also special penal laws nga ni modify ani. One who has no visible and legal means of support, or lawful employment and who is physically able to work but neglects to apply himself to some lawful calling and instead uses begging as a means of living. Mao na siya dead law. Abetting mendicancy, kung naay mu adto sa inyo manuktok sa pultahan magpalimos hatagan nimo No crime. Kung nia maglakaw-lakaw sa aseras, di ba sa bridge unya naay mangayo nimo hatagan nimo, what is the crime committed? Abetting mendicancy that’s what the law says. Any person who abets mendicancy by giving alms directly to mendicants, exploited infants and minors on public roads, sidewalks, parks and bridges pero sa balay dili kay dili mana public park.

We might as well discuss 7610.

R.A. 7610Special Protection of Children Against Child Abuse,

Exploitation and Discrimination Act

Section 3 definition of terms-

"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. Unsa may gi penalize under this law? Maghimo mog keywords, abuse, neglect, cruelty, exploitation, discrimination, Ok? Dunay gi aresto pag naug sa barko pusas, child abuse ngano man? Neglect, nagtrabaho siyas barko wa niya suportahi ang iyang mga anak. Unya kay naa may mga law offices nga mao nay ilang linya, di gikiha pusas for child neglect.

"Child abuse" refers to the maltreatment, whether habitual or not, of the child like physical, psychological abuse, neglect, cruelty, sexual abuse, emotional maltreatment. Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child. Batang gamay unya imong sug-sugon piang-piang, libat, that is child abuse ayaw tawn ug bugal-bugali kay di mo develop ang bata makuan na siya ma inferior hangtud ma dako. That’s child abuse, debasement of the child. Unreasonable deprivation of his basic needs for survival. Failure to immediately give medical treatment to an injured child, that is child abuse. Kining child abuse broad kaayo ni siya.

"Circumstances which gravely threaten or endanger the survival and normal development of child. Then we have already discussed Section 5 child prostitution and other sexual abuse.

Section 7. Child Trafficking, this is already modified by Trafficking in Person Law, this is trading and dealing with children including buying and selling of child. Is there a crime for buying and selling under the RPC? None. First law involving buying and selling of child, PD 603 Child and Youth Welfare Code and of course including 7610.

Section 8. Attempt to Commit Child Trafficking, child traveling alone to a foreign country without valid reason, without clearance from DSWD. Pregnant mother executes an affidavit of consent for adoption for a consideration. Person, agency, etc. recruits women or couples to bear children, pagpuyo mo diha sa apartment sige panganak mo diha. Doctor, hospital, clinic, etc. simulating birth for the purpose of child trafficking. Magdag mga bata didto angkunon nga mao nay iya. Person engages in the act of finding children among low income family, hospitals, etc. Mag suroy-suroy mag recruit ug bata but unsa mana for adoption ba? No, ang uban for pagkuha sa ilang mga organs, heart, kidney.

Section 9. Obscene Publications and Indecent Shows we have discussed. Then other acts of abuse, kini sad bantay mo ani mga boys including girls. Naa gali moy i.maintain nga bata sa inyong balay, 15 anyos ba ron pagbantay nga kamo rang duha na makiha gyud ka di ka magbantay. Kuyog-kuyog ka ug manghod nimo of several years, guyod-guyod kag chicks nga bata pa kaayo, patay.

Any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten (10) years or more his junior, pananglitan ang imong edad 27 ang imong gi guyod-guyod 17 or 16 is that a crime? Yes, if dad-on nimo sa public or private place, ma public or ma private place bisag mag tago-tago pa mo. hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places. Dad-on dad-on sa mga sekreto nga dapit that is violation of section 10 act of abuse, any person who shall induce, deliver or offer a minor to any one prohibited by this Act. Kung ari sa RPC, what is the crime committed? Kung muhatag ka ug minor ngadto sa somebody, dili para imo para sa laing tao, corruption of minors. Then who else are liable? Any person, owner, manager or one entrusted with the operation of any public or private place.

Then under section 11 Sanctions of Establishments or Enterprises which Promote, Facilitate, or Conduct Activities Constituting Child Prostitution. Naa gyuy ibutang according to the law sign with words “off limits” shall be conspicuously displayed, if you violate aside from penal sanction, revocation of license. Never mind article 8 “Working Children” kay ang Labor Code maoy imong tumanon besides, overtaken nasad ni sa child rather Trafficking in person ‘cuz one of the purposes in trafficking is slavery and servitude.

Then section 22 Children As Zones of Peace, It shall be the responsibility of the State and all other sectors concerned to resolve armed conflicts in order to promote the goal of children as zones of peace. Children not object of attack and shall not be recruited to become members of the Armed Forces. There must be delivery of basic social services, safety and protection then public infrastructure.

Section 23. Evacuation of Children During Armed Conflict. Section 25. Rights of Children Arrested for Reasons Related to Armed Conflict. Section 27. Who May File? Ug ari ta sa criminal procedure, minor himself/ for himself, father, mother, grand father, grand mother, custodian. But under this law, even strangers may initiate criminal action. Who may file? Offended party, parents or guardians, ascendants or collateral relatives, officer or social worker, barangay chairman and last, at least 3 concerned responsible citizens where the violation occurred. Meaning, bisag total stranger sila kung naa silay nakita nga child abuse, they can initiate or institute criminal action.

Section 29. Confidentiality, by the way section 27 who may file is already modified if not repealed by RA 9344, the rest penal provisions. You want a recess?

Title Seven: CRIMES COMMITTED BY PUBLIC OFFICERS

Chapter One: PRELIMINARY PROVISIONS

Title 7 crimes committed by public officers, bar exams who are public officers? Warning, because public officers or public officer is defined in the RPC, there is another definition under 3019 Anti- Graft, different definition in 6713 Code of Conduct, another definition in Plunder, another definition in 1379 Forfeiture Law and other special penal laws.

Is salary an element of public office? The answer is No, that’s the ruling of the Supreme Court in People vs. Hannah Eunice Serana, 19 years old. This happened in Cebu, Eunice was a member of the Board of Regents of UP Lahug Cebu, together with her brother nangulekta silag funds nga para sa UP so they are not public funds, private funds. Gikiha sila filed with the Sandiganbayan, Eunice was then 19 presidente sa ilang kuan sa UP Lahug, intelligent girl. Ang iyang depensa “I’m not a public officer”, number 1 I am paying tuition fee. Number 2, I’m not receiving anything as a member of the Board of Regents UP, di ba ang Board of Regents ang usa ana estudyante gyud?

Supreme Court said, salary is not an element of public office. At least in 3019, is she a public officer? Yes she is a public officer ‘cuz UP is exercising a sovereign function, educational institution catering to students who study in the UP system. But, for purposes for crimes under

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RPC we should follow the definition of public officers under Article 203. any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, of shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer. Do not forget that phrase performance of public function of performing public duties.

Chapter Two: MALFEASANCE AND MISFEASANCE IN OFFICE

Section One. — Dereliction of duty

Chapter 2 Malfeasance and Misfeasance. There are 8 crimes classified under malfeasance and misfeasance, misfeasance improper performance, malfeasance performance which ought not to be done, non-feasance omission of some act.

Section 1 Dereliction of Duty. Article 204 rendering unjust judgment, only a judge can commit this crime. Take note of the word “knowingly” meaning deliberately, maliciously and the judge knows that his judgment is unjust. Defense is lack of knowledge. When is a judgment unjust? If it is contrary to law or is not supported by the evidence.

Article 205 judgment rendered through negligence. Please take note inexcusable negligence or ignorance then shall render manifestly unjust judgment. Meaning, even a person having meager knowledge of the law cannot doubt the injustice.

Article 206 unjust interlocutory order. You of course know what is an interlocutory order, if there is something more to be done by the court, it is interlocutory. If it is complete then it is already final. The judge who shall knowingly render an unjust interlocutory order like issuing an order of attachment, issuing an order of injunction, again, manifestly unjust.

Malicious delay in the administration of justice Article 207. Delay is not or delaying the promulgation of a decision or if you delay the promulgation of judgment, the judge will not be held criminally liable but he maybe held administratively liable. To be criminal, the delay must be malicious, deliberate, and intent to inflict damage on either party in the case.

Then Article 208 Prosecution of offenses; negligence and tolerance. Actually, there is no negligence here, it says public officer or officer of the law who in dereliction of the duties of his office shall manifestly rather shall maliciously refrain from instituting, prosecution for the punishment of violators of the law or shall tolerate the commission of offenses. You will notice nga walay negligence, ang estudyante nga gisugo pag-translate from Spanish to English text gipun-an ug negligence, I repeat way negligence sa Article 208.

Now, in US vs. Mendoza, the guilt of violation of the law is a non-judicial question and must be established before prosecution. There are two acts punished here, now the offender acts with malice and the deliberate intent to favor the violator of the law. Please take note, dili ka maka prosecute under this article unless there is a violator of the law. I-convict una ang violator, kay unsaon ba nimo pagkahibaw nga violator siya kung wapa ma convicted? Is it not? Offender here is public officer or officer of the law, meaning duty bound to cause the prosecution and punishment of the offenders; they’re prosecutors under the DOJ or under the office of the Ombudsman. Tolerate the commission of crime, like barangay captain nga wala mugukod sa video karera. Maliciously signifies deliberate evil intent, a dereliction of duty cause by poor judgment or honest mistake is not punishable.

Art. 209. Betrayal of trust by an attorney or solicitor. There is no procurador judicial in our system. There are 3 acts punished, causing damage to client, revealing secrets of client, damage is not necessary. Under taking the defense of the opposing party without the consent of his first client, mura ug laban sa pikas, laban sas pikas. But if the client consents to the attorney’s

taking the defense of the opposing party, there is no crime.

Section Two. — Bribery

Section 2 Bribery. Who is liable? Any public officer who shall agree to perform an act constituting a crime. May a private person be liable? Yes if he conspires with a public officer of employee. May bribery be complex with other crime? The answer is No. Repeat, bribery cannot be complex with other crime. Like, naay stenographer ingnon nimo “day usba nang answer diha day, ang Yes himuang No, ang 10 himuang 12.” Di ba na falsification? Suppose gi usab, what are the crimes committed? Ma complex ba? Bribery or falsification to commit bribery? No, the law says article 210 underline ninyo nga phrase ni “in addition to the penalty corresponding to the crime agreed upon if the same shall have been committed”. So kung i-falsify sa stenographer, that’s falsification of official document, ang kadtong nihatag ug kwarta sa stenographer unsa may crime? Corruption of public official. Ang nidawat unsa may crime niya? Bribery, doble, falsification and bribery not complex. Repeat, because the law says in the addition to the penalty corresponding to the crime agreed upon.

Now there is no crime of extortion under the RPC, but there are crimes which are extortionate in character, kanang pugos, hulga, like robbery, kidnapping, blackmail. Now what are the acts punished in direct bribery? Number 1, by agreeing to perform or by performing in consideration of any offer, promise, gift or present, an act constituting a crime in connection with the performance his official duties. What makes the act a crime? It’s the consideration. Please take note also of the phrase “performance of his official duties”, if he does an act not in the performance of official duties and there is deceit the crime is estafa or othe crimes under the RPC.

The lawyer told the stenographer, “day usba nang tubag diha sa stenographic notes” ni ingon dayon ang stenographer “Ok, for P1000.00”, ni ingon ang lawyer “ugma na lang”, is there a crime committed? The answer is Yes, repeat, the answer is Yes because the law says “by agreeing to perform”. Ni agree man siya nga usbon, it is not necessary that he/she falsify the stenographic notes. So this is consummated “by mere agreement” the first act here agreeing to perform. Performance is not important, what is the theory behind this form of bribery? If two or more persons come to an agreement concerning the commission of a crime, there is conspiracy. Naay ni propose misugot, there is already conspiracy, there is already agreement. But here, it becomes a crime by mere agreement if the act to be performed constitutes a crime. Repeat, puwedi ra ning by mere agreement if the act sought to be committed constitutes a crime. Again, please take note do not forget of the phrase “ performance of his official duties.”

Number 2 accepting a gift, kini duna nay acceptance, ang first form agreement lang. “Accepting a gift in consideration of the execution of an act which does not constitute a crime”, importante na nga phrase. So kung agreement lang, the act to be performed does not constitute a crime it’s not bribery di ba? It’s not bribery, accepting a gift in consideration of the execution of an act which does not constitute a crime. Repeat kung mere agreement lang, the act to be perform does not constitute a crime, there is no crime of bribery. Again, in connection of with the performance of official duty. So mere agreement or promise without over act does not make the paragraph a crime.

Third by agreeing to refrain or by refraining from doing something which it is his official duty to do in consideration of gift or promise. There is always a consideration in bribery, consideration makes the act a crime. Kung refraining gani, mere agreement constitutes the crime of bribery of the third form. So please take note also of the elements of direct bribery.

How do you distinguish bribery from robbery? That’s People vs. Francisco, naay pulis ningadto sa tindahan “ oh namaligya man lagi kag bino” ,way lisensya, “d gali ka muhatag dakpon taka” nihatag ug chivas regal ang sud sioktong ok. Bribery or robbery? Robbery. Why? There was intimidation. The personal property was delivered or given because there was a threat or intimidation. Mu ingon ang pulis “wa man lagi kay lisensya?” Boss, bossing ok raman kaha kung chivas

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regal? Mu ingon dayon si bossing “Ok “, that is bribery di ba? Bribery not robbery.

Now public officer temporary performance of public functions is sufficient to constitute a person a public officer. Applicable to assessors, arbitrators, appraisal, plain commissioners, experts. Kung ari ka sa expropriation or kining pagbahin sa property, partition, the court will appoint 3 commissioners kung i-expropriate imong yuta. Mu appoint ang court ug 3 competent, disinterested persons, the following are appointed take oath sila, gibayran ang duha sa tag-iya sa yuta “padak-a na boss” gipadak-an ang price. Bribery ‘cuz even they are private persons they were exercising a public function. Pananglitan ni collapse ang bridge unya ni ingon ang court “sugot mo we will appoint an expert? Kung unsa gyuy cause of the collapse of the bridge, structural defect or whatever.” Ni hire sila ug expert architect ba, structural engineer unya ni pabor sa pikas kay dunay consideration, that’s bribery.

Dangerous drugs cases, di gyud na puwedi mag vista kung walay forensic chemical officer who must be an expert, usbon gali niya iyang findings para ingnon nga no presence of methamphetamine hydrochloride for a consideration, that is bribery. There is also a phrase, any other person performing public duties, so even private individuals maybe held liable.

One interesting case involving the late Senator Laurel, duna toy centennial commission gi create si President Ramos unya billions of pesos were spent ni ingon dayon si Laurel kay si Laurel may chairman sa commission “I’m not a public officer, I’m not receiving anything pro bono ning ako nitabang rako sa goberno, this is an honorary office.” Supreme Court said, No, liable because he was performing a public function or public duty, like the case of Eunice Serana of UP Lahug. Kinsay ni graduate ug UP, katong previous nga kuan, klase kato sila ni Grace Casano kaila sila kay UP mana sila, ni-ikyas oi, ni abroad siguro to.

Ok, gift or present need not be actually received by the public officer because an accepted offer or promise is sufficient. “I promise to give you my car basta buhata ni in connection with your duty”, promise lang, if the act to be perform constitutes a crime mere acceptance of the promise consummates the crime of bribery. The offer of gift or promise must be accepted by the officer, must be accepted otherwise there is no crime, there is a special law. Now a promise to give gift to and a promise to commit an unlawful act by a public officer will be sufficient in direct bribery under the first paragraph. There is a phrase “performance of official duties” must there be a law? In one case the Supreme Court “not necessary, the act need not be a statutory duty, it is sufficient if the action to be affected by the bribe be part of the established procedure of government agency. But there is no bribery if the act is in discharge of moral duty. The fact that the act agreed to be performed by the public officer is in excess of his power, jurisdiction or authority is of no defense. But if the act agreed upon to be performed is so foreign to the duties of the office as to lack even colorable authority, there is no bribery. Mere agreement or promise on the part of the public officer to execute an act not constituting a crime is not violation of Article 210.

Distinguish prevaricacion from bribery, in bribery the offender refrain from doing his official duty in consideration of a gift, present or promise. In prevaricacion there is no gift or promise.

Article 211 Indirect Bribery, public officer who shall accept gifts offered to him by reason of his office. Repeat, accept gifts offered to him by reason of his office. Pananglitan naa kay daghan taxi o mga tourist bus, pag Christmas gipadad-an nimo ug inasal, bino ang director sa LTO. “cge mao nana paglipay-lipay mo sa pasko”, that is indirect bribery kay naa siyay tuyo. In the future mag rehistro na whatever sayon na lang kaayo kay dunay man siyay gihimo in the past. But in indirect bribery there is one important thing you should remember, there must be an acceptance. Repeat, there must be an acceptance. The law says “upon any public officer who shall accept gifts offered to him by reason of his office.” Mere promise or offer is insufficient.

Padad-an ta mog inasal diha basta…so there is a condition that is not indirect bribery. Mao nay kasagaran

noh kanang mga dunay tuyo sa opisina, di bitaw kanang mo deal ka anang opisinaha Register of Deeds or whatever, sigeg tagaan, sigeg hatud. Unsa may tuyo ana? So that in the future humok kaayo kay mahinumdom man in the past, “oi sige raba ni silag pada dinhi” so that is indirect bribery. Repeat, there must be an acceptance, why? Pananglitan ikaw tag-iya kag taxi or mga unsa diha or naa kay mga barko unya muadto ka sa opisina MARINA. Unsay head sa MARINA director ba na? magda kog bino, musud ko sa opisina sa director “boss”, butang nimo dagan. If there is no evidence nga gi accept to niya, there is no indirect bribery.

Pero di ba sayon ra pag-entrap, sud kas opisina ibutang dagan dayon unya dakpan to tua. Prove acceptance, kung mu ingon gani nga “oh diay among ihatud namo diri” unya mu ingon dayon “cge, cge butang lang sa aparador” there is already evidence of acceptance, oh dili ba “oh mga bata ablihi ninyong bino inom ta” there is already evidence of acceptance, that’s very important otherwise according to Reyes, “a public officer should not accept a gift offered to him because such gift is offered in anticipation of future favor.”

Now, the essential ingredient of indirect bribery is that the public officer concern must have accepted the gift or material consideration. There must a clear intention on the part of the public officer to take the gift so offered and considered, to hold otherwise will encourage unscrupulous individuals to frame public officers by simply putting within there physical custody some gift, money or other property. In the beginning possible it’s indirect bribery only but indirect bribery may turn out later to be direct. Adto sa opisina LTO dag mga mahalon nga mga butang. “oi nia man ka unsay tuyo? Ah mao ni daghan kog follow up-on”, pagdawat “ah daghan ni, hoy follow up-a ninyo ang papeles ani niya.” So gadagan-dagan ang mga kuan, tapos dayon it’s already direct bribery. What started as indirect bribery maybe turn into direct bribery because of the acceptance, di nato by reason kay di naman in anticipation.

Distinguish direct from indirect bribery. Direct bribery there is agreement, indirect no such agreement exist. Timan-i ha in indirect bribery there is no agreement, what is required is acceptance. In direct bribery the offender agrees to perform or performs an act or refrains from doing something because of the gift or promise, so pag-abot gihatagan indirect rata to now because of the gift nihimo siyag shortcut. Indirect bribery it is not necessary that the officer should do any particular act or even promise to do an act, paghatud sa mga mahalong butang wa siya ni ingon nga “o sige follow up-on namo imong kuan”, dawat lang that’s already indirect bribery.

Then there is a special law PD 46, acceptance or receiving gifts by public officials and employees, giving of gifts by private persons in any occasion including Christmas. What is prohibited? Giving gift, present or other valuable thing on the occasion, on any occasion including Christmas when such gift, present or other valuable consideration or thing is given by reason of his official position regardless of whether the same is for past favors, or give him hope or expects to receive a favor or better treatment in the future from the public official or employee concern in the discharge of official functions. It included within the prohibition throwing of parties or entertainment, ok next time qualified bribery.

CRIM 10: JUNE 24, 2010

Chapter Two: MALFEASANCE AND MISFEASANCE IN OFFICE

Section One. — Dereliction of duty

Let’s review what we discussed last meeting. Definition of public officers under the RPC; there is no distinction between officer and employee.

Art. 204. Knowingly rendering unjust judgment. — Any judge who shall knowingly render an unjust judgment in any case submitted to him for decision, shall be punished by prision mayor and perpetual absolute disqualification.

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This article does not apply to the members of collegiate court like CA because they reach their conclusion in consultation.Art. 208. Prosecution of offenses; negligence and tolerance. — The penalty of –xxx- shall be imposed upon any public officer, or officer of the law, who, in dereliction of the duties of his office, shall maliciously refrain from instituting prosecution for the punishment of violators of the law, or shall tolerate the commission of offenses.

You have to convict first the violator before the public officer may be charged under Article 208 because the alleged violator may be innocent or acquitted of the crime charged.

Art. 209. Betrayal of trust by an attorney or solicitor. — Revelation of secrets. — (mentioned but was not discussed)

Section Two. — Bribery

Art. 210. Direct bribery.

Direct bribery cannot be complexed or absorbed by other crimes as the penalty for bribery is in addition to the penalty of the other crime charged.

Distinction between bribery and robbery. In bribery, the gift or present is given voluntarily, while in robbery, there is an element of intimidation or force. In all the ways of committing the crime of direct bribery, there must be a consideration for the doing of the act or for the refraining from doing the act. It is the consideration that makes it direct bribery. It is not necessary that the consideration be actually delivered.

First form: consummated by agreement. The moment agreement is definitely arrived at, bribery is consummated. Because the moment agreement is reached, there is conspiracy. But if the act does to be performed does not constitute a crime even if an agreement is made, there is no conspiracy; so there is no subject-matter for the bribery unless the giver has actually delivered the consideration and the public officer has already executed the act. There must be execution on either side because if there is no execution on either side, you have no evidence of the crime of bribery.

Third form: refraining. Act of refraining which will amount to a crime. Mere agreement here will consummate the crime of bribery because the refraining itself is a crime.

Can the crime of frustrated bribery be committed? NO. It is either attempted or consummated. It’s an old case of People vs Ilago.

When the crime requires the mutual participation of 2 persons, there is no frustrated stage. It is either that there is mutuality in which case it is consummated, there is no middle ground.

Art. 211. Indirect bribery.

It is necessary that the public officer receives the gift by reason of his office. Mere promise or offers are not sufficient. In indirect bribery, the officer is not to do anything. Otherwise, it becomes, direct bribery. The essential ingredient of indirect bribery is that the public officer accepted the gift or material consideration with clear intention to accept the gift and considered said gift. Mere physical receipt unaccompanied by any other circumstance or acts to show acceptance is not sufficient.

In the crime of indirect bribery, there is not even an attempted stage. It is always consummated.

In Article 211(a), qualified bribery. When is bribery qualified? If any public officer is entrusted with law enforcement (NBI, policeman) and he refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua in consideration of any offer, promise, gift or present. If it is the public officer who asked or demanded such gift, the penalty is supposed to be death, but since death penalty is prohibited, it is reclusion perpetua without possibility of parole. If the public officer is convicted, there is automatic review not by the Supreme Court but by the Court of Appeals because of the court decision in People vs Mateo.

Art. 212. Corruption of public officials.

In corruption of public officials, there is frustrated corruption if the public official refuses to accept.

Bribery is the crime committed by the receiver, corruption of public officials is the crime committed by the giver.

Who is liable? Any person who shall have made the offers or promises or given the gifts or presents. Penalty: same penalty imposed upon the officer corrupted, except those of disqualification and suspension

Bribery is usually proved by evidence acquired in entrapment. Before the amendment (before P.D. 749 was approved), it was difficult to prove bribery because it is a crime committed almost always committed in secrecy between two persons only. If you will prosecute the public officer, who will testify? The giver; the giver will also be prosecuted for corruption, so there must be a remedial measure. It’s P.D. 749: granting immunity from prosecution to givers of bribes and other gifts, and to their accomplices in bribery and other graft cases against public officers. Now who are immune? Those who willingly testify against public official or employee for violation of certain articles of the RPC on bribery. He shall be exempt from prosecution or punishment for the offense with reference to which his information and testimony were given. But there are conditions to be complied with: 1) refer to consummated violations only; 2) testimony is necessary for conviction; 3) information is not yet in the possession of the State; 4) testimony can be corroborated; 5) informant or witness has not yet been previously convicted of a crime involving moral turpitude.

Chapter Three: FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS

Art. 213. Frauds against the public treasury and similar offenses. — any public officer who:

1. In his official capacity, in dealing with any person with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds, shall enter into an agreement with any interested party or speculator or make use of any other scheme, to defraud the Government; (Please take not of the requisites here)

2. Being entrusted with the collection of taxes, licenses, fees and other imposts, shall be guilty or any of the following acts or omissions:

(a) Demanding, directly, or indirectly, the payment of sums different from or larger than those authorized by law.

If the for example a taxpayer asks the collector how much tax he owes and the collector says P1, 500 when in fact it is only P1, 000, how many crimes are committed? 2 crimes: illegal exaction for demanding larger amount and estafa for deceiving the taxpayer. If on the other hand, the taxpayer is a friend of the collector and he only asked P500, he also committed illegal exaction, remember, ‘the payment of sum different from those authorized by law’.

(b) Failing voluntarily to issue a receipt , as provided by law, for any sum of money collected by him officially.

This is official receipt. If payment is covered by official receipt, what is the effect? The amount received becomes public fund. For example, if you are a municipal treasurer and the deadline of payment is today, a person insisted to pay otherwise a penalty will be incurred, so you issued a temporary receipt, is that illegal exaction? NO. Because the law says ‘failing voluntarily to issue a

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receipt’.

(c) Collecting or receiving, directly or indirectly, by way of payment or otherwise things or objects of a nature different from that provided by law.

When the culprit is an officer or employee of the Bureau of Internal Revenue or the Bureau of Customs, the provisions of the Administrative Code shall be applied.

This crime is consummated by merely entering into an agreement with any interested party or speculator or by merely making use of any other scheme to defraud the government. But it is not necessary that the government is actually defrauded, it is sufficient that the public officer acted in his official capacity and he had intent to defraud the government. Mere demand for a larger or different amount is sufficient to consummate the offense.

When there is deceit in demanding greater fees than those prescribed by the law, the crime committed is estafa and not illegal exaction than insofar as the taxpayer is concerned.

Art. 214. Other frauds. In addition to the penalties prescribed in the provisions of Chapter Six, Title Ten, Book Two, of this Code, the penalty of temporary special disqualification in its maximum period to perpetual special disqualification shall be imposed upon any public officer who, taking advantage of his official position, shall commit any of the frauds or deceits enumerated in said provisions.

Here the public officer must take advantage of his official position.

Art. 215. Prohibited transactions. — -xxx- upon any appointive public officer who, during his incumbency, shall directly or indirectly become interested in any transaction of exchange or speculation within the territory subject to his jurisdiction.

If it is one of exchange or speculation, then there is no crime. If it is buying or selling of stocks, it is not covered, not prohibited.

Art. 216. Possession of prohibited interest by a public officer. — -xxx-upon a public officer who directly or indirectly, shall become interested in any contract or business in which it is his official duty to intervene.

This provisions is applicable to experts, arbitrators and private accountants who, in like manner, shall take part in any contract or transaction connected with the estate or property in appraisal, distribution or adjudication of which they shall have acted, and to the guardians and executors with respect to the property belonging to their wards or estate.

He may also be held liable under R.A. 3019: Anti-Graft and Corrupt Practices Act and R.A. 6713: Code of Conduct and Ethical Standards because there is conflict of interest.

Actual fraud is not necessary.

Chapter Four: MALVERSATION OF PUBLIC FUNDS OR PROPERTY

There are several crimes called malversation. There are 6:

1) Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, -xxx-

If funds are covered by official receipts, that is public funds, if there is misappropriation of conversion of such funds, that is malversation. If there is no official

receipt, there is misappropriation or conversion of such finds, that may be estafa.

If the State fails to prove that the funds misappropriated that the funds are public funds or property, the accused may yet be convicted of estafa f the funds are private funds.

Malveration is actually embezzlement. Note the word “embezzled” in the phrase “or equal to the total value of the property embezzled”.

Who are liable? The article says ‘any public officer who, by reason of the duties of his office, is accountable for public funds or property, Not all public officers who misappropriate are liable for malversation, But if he is a public officer (who is not accountable) or a private individual, conspiring with an accountable public officer or employee, he may be held liable for malvarsation. Please take note of the phrase ‘by reason of the duties of his office’, it’s not the nomenclature, it’s not the name that is important but the nature of the duties the accused is bound to perform.

Now, accountable officer is defined by law and jurisprudence. Government Auditing Code defines who an accountable officer is. There are three acts punishable by malversation:

a) By appropriating public funds or propertyb) By taking or misappropriating the same c) By consenting, or through abandonment or

negligence, permitting any other person to take such public funds or property.

Malversation may be committed deliberately, or may also be committed through abandonment or negligence. I warn you whether it is deliberate or through abandonment, the penalty is the same, no distinction.

Another consequence, perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

Elements:a) The offender be a public officerb) That he had custody or control of funds or

property by reason of the duties of his office.c) That those funds or property were public

funds or property for which he was accountable.

d) That he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them.

There are properties which are not strictly public properties; there are funds that are not strictly public funds. But if they are misappropriated or converted by a public officer, a crime of malversation is committed. A sheriff for example, he attached a personal property (a car), that is a property in custodia legis, a public property.

The vital fact is that he is an employee or in some way connected with government and that in the course of his employment, he receives money or property belonging to the government for which he is bound to account. In fact, emergency employee entrusted with collection and/or custody of public funds may be held liable for malversation if he misappropriates the same.

The funds or property must be received in official capacity but when the public officer has the official custody of public funds or property or the duty to collect or receive funds due the government and the obligation to account for them to the government is misappropriation of the same constitutes malversation.

Private individual conspiring with public officer in committing malversation is also liable for malversation. There are private individuals who did not conspire with public officers who may also be held liable for conversation. Under Article 222, private individuals who in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual.

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Example, you are the administrator appointed by the court, you sold or misappropriated, is there any crime of malversation? Well, if there is a court order and the administrator is the safe-keeper of the property under custodia legis, then he is liable for malversation.

Now private property may be involved in malversation, if the property is attached, seized, deposited by public authority, under Article 222.

Appropriating public funds or property. US vs Kalimag, in malversation, the negligence of the accountable public officer must be positively and clearly shown to be inexcusable approximating fraud or malice.

Example of malversation through abandonment or negligence, a case which happened in Tacloban City. Naay tig-collecta ug taxes nya naay cage (naa siya sa sud sa cage), practice na inigka12:00 na managon gyud. By 12:00 ang iyang collections 30thousand pesos, gisud nya sa envelope, gibutang sa garbage can nya gitabunan, nigawas sa cage, problema lang kay ang cage kay di malock, naniudto siya, pagbalik nawagtang ang public funds, liable for malversation through negligence or abandonment. Kung iya tong gibulsa, the same penalty. Another, naay military man (aha!), ang iyang task is to deposit the money with the bank, gisugo ang drayber, gidala sad sa driver, gitulis kuno ang drayber, malversation.

The measure of negligence is the standard of care commensurate with the occasion. In People vs Torres, (the case of military man), Supreme Court said, to entrust to a mere driver the delicate task of supervising the property delivery of big sums of money is, to say the least, a proof of negligence and abandonment of his duties as a finance officer rather than of diligence expected of an officer of the AFP.

Please take note also, this is important, even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in his account which he was not able to explain satisfactorily, there is malversation. So there is a presumption of malversation. But it is only a prima facie presumption which may be rebutted. Take note also, return of public funds or property is mitigating only if there is prompt return. In People vs Amante, the Supreme Court said there must be prompt refund of the shortage.

Is demand necessary in malversation? The answer is NO. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. So demand here only gives rise to a prima facie presumption. Previous demand is not necessary in spite of the last paragraph of Article 217.

In malversation, is damage to the government necessary? The answer is NO. At most, lack of proof of damage would affect civil liability. Article 217 states only the amount involve in the misappropriation or malversation. The penalty for malversation in that article is based on the amount involved not on the amount of the damage caused to the government

2) Art. 218. Failure of accountable officer to render accounts. — Any public officer, whether in the service or separated therefrom by resignation or any other cause, who is required by law or regulation to render account to the Commission on Audit, or to a provincial auditor and who fails to do so for a period of two months after such accounts should be rendered, is also liable.

3) Art. 219. Failure of a responsible public officer to render accounts before leaving the country. — Any public officer who unlawfully leaves or attempts to leave the Philippines without securing a certificate from the Commission on Audit showing that his accounts have been finally settled.

4) Art. 220. Illegal use of public funds or property.

This is a very interesting article. Also known as technical malversation or juggling of funds. Who is liable? Any public officer who shall apply any public fund or property under his administration to any public use other

than for which such fund or property were appropriated by law or ordinance. Take note, there must be a law or ordinance. Unsay message sa article? Ayaw i-substitute ang imung discretion sa discretion sa law-making body. You are not the law-maker, nevermind the wisdom of the ordinance or the law. Your duty is to apply. You are not allowed to use your own discretion. Suppose and diversion is for the good of the community, the same answer, technical malversation.

Elements:1. That the offender is a public officer;2. That there is a public fund or property under his

administration;3. That such public fund or property has been

appropriated by law or ordinance;4. That he applies the same to a public use other

than that for which such fund or property has been appropriated by law or ordinance.

If the law says, this funds and properties are for construction of bridges, bisag unsa kanindot ang bridge dira, basta muingon bridge and i-construct, gub-a ng bridge nya himu-a usab lain na bridge, ayaw himu-a para kalsada kay kung buhaton na nimo that’s technical malveration. May pagkabinuang gamay but that is the message.

How do you distinguish malversation from technical malversation? Both offenders are public officers. The offender in technical malversation does not derive any personal gain or profit. In malveration, offender in certain cases, profits from the proceeds of the crime except in cases of abandonment or negligence. In technical malversation, public funds or properties are applied to another public use while in malversation, public funds or properties are applied to personal use of offender or benefit of another person.

5) Art. 221. Failure to make delivery of public funds or property.

There are two acts punished:a. failure to make payment by any public officer

under obligation to make payment from Government funds in his possession. Example, a person is holding public funds or property, gi-ingnan ibayad para sa semento o ibayad para sa laborer, wa gibayad, he is liable under this article. What is the reason here? Kung pabayron ka anang adlawa, anang orasa to a specific person, nya wa nimo gibayad, there is a presumption na imung gigamit.

b. refusal to make such delivery by any public officer who, being ordered by competent authority to deliver any property in his custody or under his administration. Engineer, gipalitan na ug materials for road construction, naa nay gitakda na mga adlaw to start or finish the construction, wa gideliver, there is a presumption that he personally use the properties to be delivered.

Art. 222. Officers included in the preceding provisions. — xxx - private individuals who in any capacity whatever, have charge of any national, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual.

By the way judicial administrator is not covered because he is not in charge of any property attached, impounded or placed in deposit by public authority.

SHORT QUIZ:

1. The poseur-buyer approached the pusher and asked the latter, ‘do you have ice (shabu)?’ So the pusher gave I packet of shabu weighing 0.01 gram. After the poseur –buyer received the packet, he did not pay, he arrested the pusher. Convicted but on appeal, he argued, there was no sale because in sale there must be consideration (money or any other valuable consideration). Is he liable? What crime if any did he commit?

DELIVERY

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2. The poseur-buyer (police officer) approached the pusher; the former bought 1 packet of shabu from the latter. After the consummation of the transaction (after the exchange of money for shabu), the pusher was arrested. Incident to that lawful arrest, the police officer found in one of the pockets of the pusher a marijuana cigarette, how many crimes were committed by the pusher?

TWO CRIMES

3. Definition. It is any act of introducing any dangerous drug into the body of any person with or without his knowledge by injection, inhalation, ingestion or other means etc.

ADMINISTER/ADMINISTRATION

4. Definition. A place where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered and stored for illegal purposes distributed, sold or use in any form.

DEN, DIVE OR RESORT

5. Any act of injecting intra-veinously or intra-muscularly, of consuming either by chewing, smoking, sniffing, eating, swallowing etc. or otherwise introducing into the physiological system of the body any of the dangerous drugs.

USE

6. If a dangerous drug is seized, within what period should it be delivered to the PDEA or crime laboratory for chemical examination?

24 HOURS

7. – 9. Under Section 21, Article 2 of R.A. 9165, after dangerous drug is seized, it must photographed, there must an inventory and marking in the presence of the representatives of ________, ________ and _______.

ANY OF THE FOLLOWING: Sec. 21 (1.) in the presence of the ACCUSED or the persons from whom such items were confiscated and/or seized, or HIS/HER REPRESENTATIVE OR COUNSEL, a representative from MEDIA, and DOJ, and any ELECTED PUBLIC OFFICIAL who shall be required to sign the cpies of the inventory and be given a copy thereof.

10. X, Y and Z planned to import dangerous drugs from China so they hired a vessel for the purpose of loading dangerous drugs from administrative region of Hongkong. While the vessel was on its way to China, it sank because of bad weather; did X, Y and Z commit any crime? If yes, what crime?

Sec. 26. ATTEMPT or CONSPIRACY. Penalized by the same penalty prescribed for the commission of the same.

Chapter Five: INFIDELITY OF PUBLIC OFFICERS

Crimes classified under infidelity: prisoners, documents and secrets.

Section One. — Infidelity in the custody of prisoners

Three crimes: conniving, evasion and escape.

Art. 223. Conniving with or consenting to evasion. — Any public officer who shall consent to the escape of a prisoner in his custody or charge

Suppose there is a prisoner then the guard on duty consented to the escape of the prisoner in connivance with another guard who was not on duty. Are both liable? How many crimes are committed? Two crimes. Infidelity in so far as the guard on duty is concerned. Why? Because he was in custody or in-charge of the prisoner. How about the guard not on duty? The crime is delivering prisoners from jail. If there is conspiracy, then the crimes committed are infidelity and delivery.

Acts constituting the crime: connivance with the prisoner in his escape is an indispensable element of the offense.

Classes of prisoners: 1) prisoner by final judgment and 2) detention prisoner.

A policeman caught somebody stealing a piece of cake, unya ni-ingon ang nasakpan, imuha nalang ning katunga sir. Gikaon sad sa police, gipalakaw and nasakpan. Is the policeman liable for infidelity in the custody of prisoner? No, because that guy was not yet considered a prisoner. The moment a person is booked especially kung fingerprinted, he’s already a prisoner.

Release of detention prisoner who could not be delivered to judicial authority within the time fixed by law is not infidelity in the custody of prisoner.

Leniency or laxity is not infidelity but in some cases relaxation of imprisonment is considered infidelity.

Art. 224. Evasion through negligence. — If the evasion of the prisoner shall have taken place through the negligence of the officer charged with the conveyance or custody of the escaping prisoner, said officer shall suffer the penalties of arresto mayor in its maximum period to prision correccional in its minimum period and temporary special disqualification.

Not every negligence or distraction of a guard is penalized; it is only that positive carelessness that is short of deliberate non-performance of his duties as guard that is the gravamen of the crime under Article 224.

So it is negligence approximating malice. If there is no negligence approximating malice, then the police officer may only be held administratively liable.

Art. 225. Escape of prisoner under the custody of a person not a public officer. — Any private person to whom the conveyance or custody or a prisoner or person under arrest shall have been confided, who shall commit any of the offenses mentioned in the two preceding articles, shall suffer the penalty next lower in degree than that prescribed for the public officer.

Article 225 is not applicable if a private person was the one who made the arrest and consented to the escape of the person he arrested. Under the Rules of Court, example, if a police officer summons the bystanders to help him arrest person and then he instructed the bystanders na gunitan sah and iyang giarrest, pero paglakaw sa police gibuhian, then those guys may be held liable for Article 225. But if the bystanders themselves were the ones who arrested the person and then freed him later, then there is no crime under Article 225.

Section Two. — Infidelity in the custody of document

Kini sila gikan sa prisoner padung sa documents, custodian gyud ni siya, gi-entrust sa imo.

Three crimes under infidelity in the custody of documents: 1) removal, concealment or destruction of documents, 2) officer breaking seal 3) opening of closed documents.

Art. 226. Removal, concealment or destruction of documents. — Any public officer who shall remove, destroy or conceal documents or papers officially entrusted to him

What is the meaning of removal here? Records are removed from the place where it should be and transferred to a place where it is not supposed to be kept. Who is liable here?

So a postmaster who extracts money from letters is liable for infidelity on the custody of documents. Please take note that in infidelity, the damage is to public interest, example, to the postal system.

Please take note of element number 3: that the said documents or papers should have been entrusted to such public officer by reason of his office.

Documents must be complete. Books, periodicals are not documents. What is the meaning of “papers officially entrusted to him”? ‘Papers’ includes checks, promissory notes and paper money. Post office official who retain the mail without forwarding the letters to their destination is guilty of infidelity.

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You should distinguish infidelity in the custody of document from malveration and falsification. To illustrate, kung dangerous drugs unya buy bust, naay money, usually marked otherwise the serial number of the money is recorded. Inig-present sa prosecutor, ‘how much was given to the poseur-buyer’? 100 pesos. So markahan dayon. Wa pa gi-offer gisuksuk niya sa iyang court record, nalimtan man niya na gisuksuk diay niya ang 100 sa record, pagkakkita sa clerk of court, gikuha sa clerk of court. Is that infidelity in the custody of document? No, it was not entrusted to him. Is that malveration? No, kay dili pa man public fund. What crime if any did he commit? Theft, taking personal property with intent to gain belonging to another person.

Another example, offered in evidence, at the end of the presentation of testimonial evidence, the prosecutor will offer, ‘exhibit A your Honor (100 peso bill) is offered for the following purposes, etc. So admitted in evidence. Nya giturn-over sa court, kung gikuha sa clerk of court, what crime did the clerk of court commit? It’s malversation.

Reason why taking of mail by postmaster is infidelity. Kay kung kuhaon sa postmaster, gamay la ang damage sa private individual, the damage is to public interest. Money bills received in courts are papers.

Acts punishable in infidelity: removing, destroying, concealing. The removal must be for illicit purpose. The crime of removal or secreting away is consummated upon its removal or secreting away from its usual place.

Infidelity in the custody of document by destroying or concealing does not require proof of illicit purpose. Reason, while in the removal of documents, the accused may have a lawful or commendable motive, in destroying or concealing them, the offender could not have a good motive.

Delivering to the wrong party is infidelity in the custody of document.

There must be damage, great or small. Damage in this article may consist in the mere alarm to the public or in the alienation of its confidence in any branch of the government service.

Art. 227. Officer breaking seal. — Any public officer charged with the custody of papers or property sealed by proper authority, who shall break the seals or permit them to be broken. This is breaking, not opening of closed envelopes. Damage or intent to cause damage is not necessary. It is sufficient that the seal is broken even if the contents are not tampered with.

Art. 228. Opening of closed documents. — Any public officer not included in the provisions of the next preceding article who, without proper authority, shall open or shall permit to be opened any closed papers, documents or objects entrusted to his custody. Closed documents must be entrusted tot eh custody of the accused by reason of his office.

CRIM 11:

Ok let us review malversation. I said the penalty is same, whether committed deliberately or with malice or through negligence or imprudence. The trust is predicated on the relationship of the offender to the property or funds involved. Who can be held liable? Only accountable officer. Who is an accountable officer? Under the Government Auditing Code, cashiers, disbursing officers, property custodians and any public officer having custody of public funds or property for which he is accountable. It’s the nature of the office or position which is important, it’s not the nomenclature or the name of the officer which should be given importance.

In malversation versus estafa, the offender need not actually misappropriate the funds. It is enough that somebody else misappropriated public funds or property. It is enough that he has violated the trust reposed on him in connection with the property. No crime of malversation through negligence. Is damage to the government necessary? The answer is no. If the money is refunded on

the same day, will that exempt the offender from criminal liability? The answer is no, it maybe considered however as a mitigating circumstance.

Private property attached or levied by the sheriff either under article 39 or under the rule on attachment as a provisional remedy can be a subject of the crime of malversation because the property levied or attached is property in custodia legis. Suppose the municipal treasurer allowed a private person’s check to be encash using fund in his custody, can he be liable for malversation? The opinion of the author is yes. The act of changing the cash of the government with the check of a private person even though the check is good malversation is committed because a check is cleared only after 3 days, in the interim the government is denied the use of the public funds.

Private persons may commit the crime of malversation. 1. If he conspires with a public officer. 2. He has become an accomplice or accessory to a public officer. 3. When a private person is made custodian in whatever capacity of public funds or property, whether belonging to national or local government and he misappropriates the same. 4. When he is constituted as depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual.

A receiver is an officer of the court, possession by the receiver is possession by the court. Therefore, if the receiver misappropriates the property in his custody he maybe held liable for malversation. When does presumption of misappropriation arise? Answer, when a demand is made upon an accountable officer and he cannot produce the fund or property involved. But demand is not necessary; demand gives rise only to the presumption of misappropriation. How do you distinguish malversation from estafa? Malversation, committed by accountable public officer, in a recently decided case Supreme Court said, mayor is an accountable officer. Estafa, committed by private person or even a public officer who acts in a private not official capacity. Malversation deals with public funds of property, funds become public if an Official Receipt is issued. Estafa deals with private property. Malversation maybe committed without personal misappropriation. In estafa this is committed by personal misappropriation only.

Arcticle 218 we discussed this already, failure of accountable officer to render account. This is a felony by omission and misappropriation is not necessary. You must have read the case of Campomanes vs. People, Florencio Campomanes who died recently was the president of FIDE an association of chess players, dili mukaon ug cheese, dili sad Chiz Escudero. So he received funds or property from the government actually delivered or given to the FIDE, this is the organization. He was charged with estafa or conversion but acquitted by the Supreme Court because there is no claim by the PSC (Philippine Sports Commission) or the Commission on Audit that FIDE a foreign non-government entity is obligated under the contract to render an accounting.

We discussed Article 219 then we discussed illegal use of public funds or property. By the way, may a foreigner be held liable for malversation or violation of the anti-graft and corrupt practices act? Answer is no, because he is not a public officer, conspiracy yes but alone the crime must be some other crime under RPC like estafa, because a foreigner is not an accountable officer.

Ok, illegal use of public funds or property also known as technical malvesation, damage is not essential. In fact if public funds are used for other purposes and the use is more beneficial to the government it’s still technical malversation. Distinguish technical malversation from malversation. Both offenders are accountable public officers. Technical malvesation, offender derives no personal gain or profit. In malversation the offender derives personal benefit in general but in malversation through omission or negligence the offender need not derive personal benefit. Technical malversation, public fund or property is diverted to another public use other than that provided for in the law. So it’s the law which is important not the discretion of the public officer. In

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malversation the offender is the custodian of public funds. In technical malversation, the public officer is only an administrator, he administers public funds or property.

Article 221. Failure to make delivery of public funds or property. Failure or refusal must be malicious, so the defense is good faith.

Infidelity of public officers, evasion through negligence, escape of prisoner under the custody of a person not a public officer. So a private person maybe held liable for infidelity in the custody of prisoners.

Section Two. — Infidelity in the custody of document

Article 226. Removal, concealment or destruction. What is the meaning of removal? It is the appropriation of the official document; it does not require that the record be brought out of the premises where it is kept. It is enough that the record be removed from the place where it should be and transfer to another place where it is not suppose to be kept. Destruction means rendering useless or obliteration of the documents. Complete destruction not necessary. How about concealment? It means that the documents are not forwarded to their destination and it is not necessary that they’re secreted away in a place where they could not be found.

Article 227. Officer breaking seal. Mere breaking of the seal or mere opening of the document could already bring about infidelity even though no damage has been suffered by anyone. Remember this is crime against public interest. What is the reason? Because in breaking the seal or opening the envelope he violates the confidence or trust reposed on him. Breaking should not be given a literal meaning, even if actually the seal was not broken because the custodian managed to open the parcel without breaking the seal.

Article 228. Opening of closed documents. If the opening of closed documents the public officer abstracted the contents what crime or crimes are committed? Opening of closed documents, he may also be held liable for theft if there is intent to gain and there is asportation.

Section Three. — Revelation of secrets

Article 229. Revelation of secrets by an officer. There are two acts punished here; reveling any secrets known to the offending public officer by reason of his official capacity. The offender here may also be charged under R.A. 3019 anti-graft and R.A. 6713 code of conduct and ethical standards. Number 2 delivering wrongfully papers or copies of papers of which he may have charged and which should not be published. Again, the public officer may also be held liable under 3019 and 6713. secrets are those which have unofficial or public character, the revelation of which may prejudice public interest. Damage is not an essential element. Revealing must be without authority or justifiable reason. Military secrets which affect national security the offender may also be held liable for espionage under RPC.

Article 230. Public officer revealing secrets of private individual. Secrets here need not be revealed publicly, consummated if the same are communicated to another person even in close intimacy. Revelation will not amount to a crime if the secrets are contrary to public interest or the administration of justice.Article 231. Open disobedience. Offender is a judicial or executive officer, there is a judgment or decision or order of superior authority made within the scope or jurisdiction of the superior authority and issued with all legal formalities then offender without any legal justification openly refused to execute said judgment, decision or order which he is duty bound to obey. But the refusal must be clear, manifest, decisive, intentional and must not be confused with omission arising from oversight or inadvertence or mistake.

Chapter Six: OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS

Article 232. Disobedience to order of superior officer, when said order was suspended by inferior officer. But of course the order of the superior must be legal or

issued with authority. Disobedience must be open and repeated. What is punished is insubordination or the act of defying the authority which is detrimental to public interest.

Article 233. Refusal of assistance. Please take note, who is liable? Public officer. When a competent authority demands from the offender that he lend his cooperation towards the administration of justice for other public service then the offender fails to do so maliciously. Example, suppose naay sunog ni ingon fire marshal, o kamo diha fire station pardo tabangi ninyo ning pag-pawng sa sunod diri sa pasil unya ni ingon dayon ang taga pardo, wa pa man mi mahuman sa tong-its sir, tiwason una namo. Total mga taga pasil maayo ng mahurot ug sunog diha aron malimpyo. That is a case refusal of assistance, the law says he failed to lent his cooperation towards public service. Sunog sa pasil unya nanawag ang residente sa pasil namaligyag shabu, tawagan niya ang pardo police station way tubag, tawagan niya nag bumbero tubag, naay sunog diri tabangi mi, ah di mi mutubang ninyo namaligya mog shabu diha. Is the bumbero there in pardo liable? The answer is no, because the law says competent authority demands, and ni demand sa public service competent authority. Ang namaligya ug shabu di mana competent authority, bisag namaligya pana ug buwad mao ra gihapon because he is not a competent authority. Another example of refusal of assistance, pulis ka and then there’s a subpoena for you to appear, you failed and refused to appear because you favored the defense that is a case involving refusal of assistance for his failure to cooperate towards the administration of justice. Is the crime of refusal committed only in connection with administration of justice? No. please take note in the UST notes, the request must come from one public officer to another meaning, competent authority. The public officer should be under obligation by reason of his office to render the required assistance to administration of justice or any public service. Damage is not an element of the crime but serious damage may aggravate the imposition of penalty.

Article 234. Refusal to discharge elective office. Dili ni mahitabo sa Pilipinas, ma elected ka unya dili ka mo serve, mo serve man gali ang wa ma elected. Refusal to discharge, offender is elected by popular election, refuses to be sworn in or to discharge the duties of said office. Di gyud manumpa kay ug manumpa siya basig ma rebelde siya unya mo assist siya sa rebelde, ma accused siya ug disloyalty. No legal motive for such refusal, meaning if you have a legal ground to refuse then you are not liable under 234.

Article 235. Maltreatment of prisoners. Of course the offender is a public officer or employee, he has under his charge a prisoner or detention prisoner, he maltreat such prisoner either of the following manner: over doing in the correction or handling of prisoner, maltreating such prisoner to extort confession or to obtain information from the prisoner. Traffic policeman, sige siyag wara-wara unya bisag stop ni aging jeep perti rabang kusuga unya nalagsikan pa gyud siya sa tubig, gukod niya wa gyud ka apas. Nadakpan gi da sa jail, tua sa jail katong ni kuan katong ni agi sa imo diha nalapuk ka kay nalagput ang lapuk sa imo. Ingon siya maayo kay tua sa jail, so katong traffic policeman ni sud sa jail gikulata katong driver is that maltreatment of prisoner? The answer is no even if he maltreated the prisoner, because the law says the prisoner is under his charge or rather he has under his charge a prisoner or detention prisoner. Traffic policeman man siya di ba? Kinsay may in charged sa prisoner? Ang jail warden ug jail guards, sila maoy liable kung mangulata sila. What crime if any did he commit? Physical injuries, physical injuries only. Maltreatment does not only mean physical maltreatment, dili kay physical lang ning maltreatment, by over doing himself in the correction of handling prisoner or detention prisoner. Inflicting cruel and humiliating manner or punishments in a cruel or humiliating manner. Ug palukduhon na nimo ug hugaw sa baka unya pasuroy-suroyon nimo, unya pa singgit-singgitun ug balot, that is maltreatment of prisoner. Then maltreating such prisoner to extort confession or to obtain information from the prisoner. When does a person becomes a prisoner? If he is already booked in the station unya mo piano na siya kanang finger print. When a person is maltreated by a public officer who has actual charge to prisoners how many crimes maybe committed? Maltreatment and physical injuries. Pananglitan ang prisoner gikulata sa jail guard, perting gyung bun-uga black and blue, unya subra

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sa kulata gisi-gisi pa jud ang sinina. How many crimes are committed? 3, ngano man? in addition to maltreatment, he also liable for the material consequence, meaning physical injuries and damage to property. 2 crimes are committed maltreatment under 235 and physical injuries. Maltreatment and physical injuries may not be complexed kay in addition to man, in addition to. The law specify that the for maltreatment shall be in addition to his liability for the physical injuries or damage caused meaning the resulting damage. Kining damage caused apil natong sinina niya nga nagisi.

Suppose the prisoner maltreated is not a convict or a detention prisoner, what crimes is, are committed? It could either be coercion if he was… there are two kinds of coercion, compulsive and preventive. Coercion if the person not yet confined in jail is maltreated to extort confession. Physical injuries if the person maltreated has already been arrested but is not yet booked in the office of the police and put in jail. Kung booked na gali meaning ni piano na, ah he’s already a prisoner. Qualified if the purpose of maltreatment is to extort the confession or to obtain information from the prisoner. Dili mani mahitabo ang refusal to discharge, ang kanunayng mahitabo ang 236 anticipation of public office. Wa pa gani maka swear, wa pa gani maka post ug bond kung accountable officer ka, fiduciary officer like treasurer you should post a bond. The he assumes the performance of the duties and powers of his office and he has not yet taken his oath or given the bond required by law.

Section Two. — Anticipation, prolongation

and abandonment of the duties and powers of public office.

Article 237. Prolonging performance of duties and functions. Common sad ni sa Pilipinas bisag ni expire na sige lang gihapon. The period provided by law, regulation or special provisions for holding such office has already expired but he continues to exercise the duties and powers of such office.

Article 238. Abandonment of office or position. The offender here has formally resigned from his position but his resignation has not yet been accepted and he abandoned his office to the detriment of public service. If a councilor resigns, asa man siya mu submit sa iyang letter of resignation? Asa man? political law mana, ngilngig man kaayo mo ana. Kung ang governor mo resign asa man siya mo submit sa iyang letter of resignation? Di ba kung governor under mana sa executive? Adto sa presidente di ba? Kung member sa house, ari sa speaker. Barangay tanod? Asa man siya mo resign?

Ok, distinction between abandonment of office and dereliction of duties. Abandonment of office the public officer abandons the office to evade the discharge of his duties to prosecute any crime. Dereliction of duty, the public officer does not abandon his office but merely fails to prosecute a violation of the law. Kining abandonment applies to all of kinds of public officers, dereliction only those in charged with the prosecution of the law violator.

Section Three. — Usurpation of powers and unlawful appointments

Article 239. Usurpation of legislative powers. Committed by executive and judicial officer making general rules and regulations beyond the scope of his authority.

Article 240. Usurpation of executive functions. Committed by a judge assuming power pertaining to the executive.

Article 241. Usurpation of judicial function. Executive officer assuming judicial powers or obstructing the execution of any order or decision rendered by any judge.

Art. 242. Disobeying request for disqualification. Here there is a question brought before the proper authority regarding the jurisdiction of the public officer which is not yet decided. He has been lawfully required to refrain from continuing the proceeding yet he continued the proceeding.

Art. 243. Orders or requests by executive officers to any judicial authority. Here the executive officer addresses any order or suggestion to any judicial authority. Ah di sad ni mahimo karon oi, mu ingon dayon ang mayor, judge wa gyuy i-approve nga bill ha kung sabado, unya naa man miy kuan guidelines. Ok, the order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice.

Art. 244. Unlawful appointments. This is nominating or appointing a person to a public office and the person nominated lacks the legal qualifications and the offender knows the lack of qualification.

Section Four. — Abuses against chastity

Art. 245. Abuses against chastity. Warning! Abuses against chastity is not a crime against chastity. Repeat, abuses against chastity is not a crime against chastity. This is abuse in the performance of a public duty, abuse of power. What are the acts punished? Soliciting or making indecent or immoral advantage or advances to a woman interested in matters pending before the offending officer for decision or with respect to which he is required to submit a report to, or consult with a superior. Kining solicitation, kining sa binisaya pa hangyo lubo ba. Kanang subra na bitaw kaayo, kanang da pamugos noh solicit or making immoral or indecent advances. For example, lawyer namo unya ga hire mog secretary sexy kaayo unya naa moy kaso diri sa fiscals’ office, inyong sugu-on ang secretary, day hilig raba kaayong ng fiscal ug mini skirt tuwad-tuwad didto follow up-a atong kaso didto. Sugot sad ang secretary hinambid ingon dayon ang fiscal, unsay ato? Follow lagi ko sir fiscal, puwedi raman na makuan ba unya suroy-suroy ta Ok ra ka? Mura diay ug suroy-suroy sa sugbo, unya manghagad na gani making immoral or indecent advances. Does that fall under abuse against chastity? Ma-liable ba ang prosecutor in my example for abuse of chastity? Or is he liable for abuse against chastity? No, the answer is no. kay ma abuse rana kung kadtong secretary maoy dunay tuyo sa fiscal. Klaruhon nato ha. Making immoral or indecent advances to a woman interested in matters pending before the offending officer for decision. Ang cliente man nila maoy dunay tuyo dili man ang kuan ang secretary, so the liability if any maybe administrative only or maybe unjust vexation noh, kung nag kuhit-kuhit maybe acts of lasciviousness also known as acts of jalosjosness.

Example aning ikaduha to which he is required to submit a report to, ug pananglitan naa sa Department of Agriculture or DILG naa man gyud nay lawyer unya i-investigate ang usa ka babae nga employee ug dunay bay administrative liability or not. Unya day ako ra biya gyuy magbuot kung liable bakag di naa ra sa tumoy sa akong ballpen, muhangyo lubo gani siya ah, ma-igo siya sa article 245 abuse against chastity. Soliciting or making indecent or immoral advances to a woman under the offender’s custody. Soliciting or making indecent or immoral advances to wife, daughter, sister or relative within the same degree by affinity of any person in the custody of such offending warden or officer. Pananglitan naay priso unya gibisitahan sa anak, oi guwapa man unya mo take advantage ang warden, he made immoral or indecent advances either to the daughter unya ni abot man ang nanay, oi mas guwapa pa man diay ang nanay so ang nanay na sad. Suppose ang iyang gi amoral ang inahan, ang nanay sa priso, mo fall bana under sa abuse of chastity? No, dili kay ang gibutang dinhi advances to the wife, daughter, sister or relative within the same degree pero ang nanay way labot. Basin mo ingon sad si nanay ug salamat. The crime is committed by mere solicitation or making of indecent or immoral advances. Mere proposal consummates the crime. Essence, it is mere making of immoral or indecent solicitation or advances. What are the instances that given rise to the abuse? The woman who is the offended party is the party in-interest, so dili ang secretary kay di man party in-interest ang secretary. In a case where the offender is the investigator or he is required to render a report or he is required to consult with superior officer. This does not include in a casual or incidental in interest. It is immaterial whether the woman did not agree or agree to the solicitation. Then the woman is the offended party in the crime or the woman who is the offended party in the crime is prisoner under the custody of the warden or jailer. Abuse against chastity mani dili ma liable ang babae nga warden, kay naa ba diay chastity ang laki? abuse against chastity, ang lalaki ray liable. The crime cannot be committed if the

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warden is a woman and the prisoner is a man. Men have no chastity. Ug naa galiy mo claim naa siyay chastity magduda tas gender.

Immoral or indecent advances contemplated here must be persistent, mao lagi na hangyo lubo ba. It must be determined, a mere joke would not suffice. The crime is committed upon a female relative of a prisoner where the woman is the daughter, sister or relative by affinity. The mother is not included, so that any immoral or indecent solicitation upon the mother of the prisoner does not give rise to the crime but he is liable under anti-graft and corrupt practices act. If the jail warden forced himself against the will of the woman prisoner, what are the crimes committed? Rape is committed aside from abuse of chastity. Abuse of chastity is not absorbed in the crime of rape because the basis of penalizing the act is different from each other. RECESS 10 MINUTES. May diay ning di ta kada ug notes kay way exam.

What is the distinction between abuses against chastity from sexual harassment? First distinction, abuses against chastity the offender is a public officer or employee. Sexual harassment, public officer or even private person. Abuses against chastity are committed by public officers mentioned in article 245 especially warden. There are several acts constituting abuse against chastity. Sexual harassment is limited to 3 areas only. Repeat, only 3 wala pani siya gi expand. Work related sexual harassment, education and training related sexual harassment. Now abuses against chastity committed by public officer. Sexual harassment by employer, employee, manager, supervisor, agent. The employer, teacher, instructor, professor, coach or trainor. Wala pay sexual harassment sa army or military, wala pay sexual harassment sa parish kining pari or dili ba pari ug 13 year old boy, di ba uso mana karon sa Europe? Ok, abuses against chastity committed by soliciting or making immoral or indecent advances, this is abuse of power, abuse of administration. How about sexual harassment? Unsa may gi gamit sa offender? Authority, influence, moral ascendancy. Repeat authority, influence or moral ascendancy. Abuse against chastity committed by solicitation, meaning persistent, repeat persistent, it must be determined. Sexual harassment bisag request lang, day pakuhita rako day, request. It says demand, request or otherwise requires sexual favor from the other. Abuse against chastity committed by mere proposal. Sexual harassment also is consummated by mere proposal because there is yet a request. Any other person who, having authority influence or moral ascendancy over another in work or training or education related environment. Demands, request, etc., regardless of whether the demand, request or requirement is accepted by the object of said act.

Then there is a definition of work or employment environment. Sexual harassment is committed when sexual favor is made as a condition in hiring or employment, etc. In an education or training environment sexual harassment is committed against one who is under the care, custody or supervision of the offender. When the sexual favor is made as a condition to the giving of a passing grade, naa pay scholarship granting honors, sa U.P. pa unsa man kwatro or kwarto? That’s sexual harassment, San Carlos wa.

Ok, cases which reached the Supreme Court about 5. Dunay usa ka instructor sa swimming, dunay siyay estudyante nga 13 or 14 years old unya iyang gi-conilingus. Pangutan-a si delos Santos kay expert ana. Reclusion temporal, taas kaayo ug penalty. Another one a judge of the MTC, naa ni apply ug trabaho, unya Ok na lagi day basta sweetheart na tika. Unya na approve man tungod sa iyang signature, naa may endorsement unya kay gi-tinuod man ni judge. Pagkabuntag kinahanglan naa may one kiss, one kiss abot, one kiss lakaw. So unsay nahitabo? Administratively held liable for immoral or disgraceful conduct plus sexual harassment. Which court has jurisdiction? Sandiganbayan. Why? Because the crime was committed in relation to office, meaning in the performance of his function. Administrative sanction shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment.

Next time we’re going to study R.A. 3019 anti-graft, R.A. 6713 code of conduct R.A. 1379 forfeiture law then plunder. Nahutdan naman tag notes, ari nata sa

akong notes para lang maka sugod-sugod ta ba. The party can wait.

Refer to jurisdiction criminal cases. Adaza vs. Sandiganbayan- this is actually jurisdiction of the Sandiganbayan. Adaza was a public officer, he committed the crime of falsification. There is no falsification under the Sandiganbayan law, meaning the crime of falsification is not mentioned. But the Supreme Court said that the Sandiganbayan has jurisdiction over the offense charged. Normally kung bribery, indirect bribery, corruption of public officer, malversation, Sandigan na. falsification can be committed by private person nganong Sandigan man? The Supreme Court ruled that Sandiganbayan has jurisdiction because the crime of falsification was committed while the accused was discharging his official function. Bisag murder pa, bisag sexual harassment pa, basta committed in relation to office or in the performance of official function then Sandiganbayan has jurisdiction.

Ombudsman powers and functions. Ledesma vs. CA- Ombudsman and deputies protectors of the people. Take note mandated to act promptly on complaints filed in any form or manner. Bisan pa ug anonymous letter mu act na sila, ang problema kinsa may mo probar? Bisag maka dungog pa sila sa radyo puwede sila mo initiate ug investigation muto propio. Makabasa ang mga taga Ombudsman ug newspaper naay anomaliya sa goberno bisag way complainant they can initiate investigation, mao nay trabaho nilang Virgie Santiago.

So repeat, in any form against officers or employees of the government including GOCC’s. they have authority to investigate and prosecute cases. Section 13 states, investigate on its own, meaning even if there is no complainant or on complaint by any person any act or omission of any public officer or employee or agency. When such acts or omission appears to be number 1 illegal, so mo initiate sila. Number 2, it may not be illegal, it is unjust. Basta unjust investigate na sila. It may not be illegal or unjust, they will investigate if improper. The act or omission may not be illegal, may not be unjust, may not be improper but there is an allegation of inefficiency. So they will initiate investigation, Amado Perez vs. Office of the Ombudsman.

Section 27 R.A. 6770 was declared unconstitutional insofar as it provides appeal by certiorari under Rule 45 in an administrative disciplinary action. Kung administrative disciplinary action appeal is not to the Sandiganbayan but to the Court of Appeals. But criminal cases from RTC to Sandiganbayan.

Rogelio Esteban (dili Gabucan) vs. Sandiganbayan, this acts of lasciviousness committed by a judge. Maldito ni si Esteban ni object siya, nganong Sandigan man nga acts of lasciviousness mana, may mana ug bribery or indirect bribery or corruption or malversation. Surpreme Court said, Sandigan because while it is true that public office is not an element of acts of lasciviousness, petitioner could not have committed the crime as charged where it not for the fact that as judge he had the authority to recommend complainant for appointment.

Judge Jose Cawidis (not sure with surname) vs. Ombudsman, Supreme Court not Ombudsman is vested exclusive administrative supervision of all courts and its personnel. No other branch of government may intrude into the administrative supervision of the Supreme Court without running afoul of the doctrine of separation of powers. Actually this is not the first case involving the same principle. The first is case is Judge Antonio Maceda vs. Sandiganbayan, si Judge Maceda may pagka maldito sad hinuon bisag asa to siya naa gyuy ingkwentro, gi-assign siya sa Antique si demonstrate-tan. Gilabay ngadto sa Naval mao sad gi demonstrate-tan hangtud ni abot ngadto sa Manila unya daghan sad kaayog mga administrative cases. What happened in the case of Judge Maceda, gi filan siya ug administrative case, unya ngadto sa Ombudsman gi-file, unya taga Ombudsman ni require sa Office of the Court Administrator, i-produce ninyo and record ni Judge Maceda. Supreme Court said, No way, kay kung administrative gani exlusive jurisdiction na sa Supreme Court ang Ombudsman di kapanghilabot because we have separation of powers. So gibadlong ang Ombudsman, ayaw mo panghilabot basta administrative case involving a judge. Ug criminal case pa hinuon to

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bribery, yes of course, way labot ang Supreme Court kay ang Supreme Court is not a triar of facts.

PCGG vs. Sandiganbayan- Sandigan has jurisdiction to annul the judgment of RTC in a sequestration related case because RTC has no jurisdiction over sequestration cases exclusive original, Sandigan. Who may conduct investigation, preliminary investigation involving sequestration cases? Only the PCGG not the Ombudsman. Sandigan has original and exclusive jurisdiction not only over principal causes of action involving ill-gotten wealth but also over all incidents arising from, incident to, or related to such cases.

Esquivel vs. Ombusdman- Supreme Court will ordinarily interfere with the Ombudsman’s exercise of his investigatory and prosecutory powers, except if there is good and compelling reason to indicate otherwise, like there is grave abuse of discretion amounting to lack or in excess of jurisdiction on the part of the Ombudsman. Organo vs.Sandiganbayan- salary grade 27.

Ok, Plunder. Which could has jurisdiction over the crime of plunder? Supreme Court said, Sandiganbayan because section 4-B of the law provides other offenses or felonies whether simple or complexed with other crimes. Now plunder is clearly a crime committed by public officers in relation to office.

Samson vs. Cabanos- case of unfair competition jurisdiction lodged in RTC despite the imposable penalty of 2 years to 5 years.

Major General Carlos Garcia vs. Sandigan- violations of R.A. 3019 anti-graft, 6713 code of conduct, Sandigan.

There is a special law R.A. 1379 the forfeiture law. What is the forfeiture law? If you are a public officer or employee and you have acquired wealth which is not justified by your salary and other lawful income. A taxpayer will lodge a complaint with the Office of the Prosecutor, the Office of the Prosecutor will a conduct a sort of preliminary investigation. Explain how you acquired these properties, your salary is only P 30k, why is it you have 5 limousines, 3vacation houses, 2 mansions. This is your income, this is your other lawful income, if you cannot explain so the Office of the Solicitor General will institute a proceeding of forfeiture. Now the forfeiture here is considered a penalty, pecuniary penalty. But the proceeding is not a criminal proceeding it is civil in nature a proceeding in rem. Why civil in nature? Because you are made to explain why your acquired so much when your income is only so much.

Crisostomo vs. Sandiganbayan- murder, pariha rani sa kaso ni Mayor Abrenica of Moalboal. Unsa may gihimo ni Abrenica? Naa siyay kontra nga Amerkano si Mr. Goodman, si Mr. Goodman naa siyay beach house perting dakoa sa karatula unya naay ordinance nga dili ka magbutang ug karatula diha tunga-tunga sa kalsada. So, Mayor Abrenica together with some policemen went to the beach resort, konprontasi sila ni Goodman, gi pusil si Goodman an American Citizen. Issue, which court has jurisdiction? Abrenica insisted RTC, the State insisted Sandigan. Supreme Court said, Sandigan, crime is murder. Why? Because the crime was committed in relation to office, he was there as chief executive of the town to execute the law, meaning the ordinance, to enforce the ordinance. So, committed in relation to office.

But in this case of Crisostomo, the information must allege the close connection between the offense charged and the office of the accused. In this case Crisostomo was a jailer of the municipal jail of Solano Nueva Ecija, he conspired with some inmates to kill another inmate he had the kill to the cell. So patyon tani, gi-ablihan, gipatay, murder. Which court has jurisdiction? Argument ni Crisostomo RTC, may mana ug bribery, wala mana mo fall sa crimes committed by public officers under the RPC. Di mansad na anti-graft 3019. Supreme Court said, No, Sandigan because the crime of murder was committed in relation to office. So, even a jailer who is receiving very much less salary below grade 27, ayaw na ng grade system basta crimes committed outside of those mentioned in the Sandiganbayan law forget the grade 27. mao manay mga wrong view sa uban, nga oh gamay raman ni siya nga kuan public officer, gamay raman ni ug

sweldo. It’s not the salary when the crime committed is in relation to office. So, let’s party, apas rako.

CRIM 12: JULY 01, 2010

Additional notes under Abuses against Chastity

Mere attempt is already punished as consummated felony. Take note also that in abuses against chastity, the public officer took advantage of his public position. The abuse here is not directed against the chastity of a woman, but actually the position occupied by the public officer. It is an abuse of position directed to the chastity of the woman involve, this is similar to sexual harassment which is also abuse of power.

Laurel vs. Desierto (381 SCRA 48). Laurel was appointed as Chairman of NCC, National Centennial Commission, by then Pres. Ramos. He was charged with violation of RA 3019, Anti-Graft. He argued that he is not a public officer, because (1) he is not receiving any salary from the government, and (2) his position is temporary, not permanent. The Supreme Court said that the most important characteristic which distinguishes an office from an employment or contract, is that the creation and conferring of an office involves delegation to the individual of some of the sovereign function of the government, like that case of Eunice Serrana vs. Sandiganbayan, the function is to be exercised by him for the benefit of the public. Now as to his argument that he did not receive any salary as NCC Chair, the SC rule, that salary is a usual but not necessary criterion in determining the nature of the position. It is not conclusive. Salary is a mere incident and forms no part of the office. He argued that his position of Chairman is honorary in character, as suppose or oppose to a lucrative office or office of profit. But the Supreme Court said the position of NCC chair is a public office nonetheless. As to the argument of Laurel, that NCC is merely a temporary office, it (SC) said that neither is this fact make said commission less of a public office. Now the element of continuance cannot be considered as indispensable.

In another case, Azarcon vs. Sandiganbayan, there is an administrative act effecting constructive distraint over property of the taxpayer. The distraint of personal property shall be effected by requiring the taxpayer or any person to sign a receipt covering the property distraint and obligate himself to conserve and preserve the property distraint. There is a directive not to dispose of the property in any manner. Suppose the taxpayer whose property is under distraint, disposes of the property, is he liable for malversation? And has the Sandiganbayan acquire jurisdiction over his person? The Supreme Court said No because the taxpayer is NOT considered a public officer if he is tasked to conserve and preserve his property.

Cuizon vs. Ombudsman, Mendoza R.C. vs. Office of the Ombudsman; if the Office of the Ombudsman finds probable cause in criminal cases and administrative cases and there is grave abuse of discretion, of course you know a Petition for Certiorari under Rule 65 is available, but the problem is, to which court to file the petition for certiorari, Court of Appeals or Supreme Court? It should be Supreme Court under Rule 65. In Estrada vs. Desierto & Perez vs. Office of Ombudsman, the Supreme Court ruled that in cases when the aggrieved party is questioning the Office of the Ombudsman’s finding of lack of probable cause, there is likewise the remedy of Certiorari under Rule 65 to be filed with the Supreme Court, not Court of Appeals.

May private individuals be charged in the Sandiganbayan? Yes. If the private individual is (1) charged as a co-principal, accomplice or accessory with public officers, and (2) in sequestration cases, private individuals may be held to the Sandiganbayan.

You should distinguish an act constituting a crime from an unjust act. In bribery, the first form, the act must constitute a crime and the second form, the act must be unjust. So how do you distinguish? If the act to be performed by the public officer constitutes a crime, the law does not go beyond mere agreement between the public officer and the bribe giver, theory is Conspiracy. If both parties agree, even if the gift or present is not yet delivered, the crime is already committed. The law does not wait until the consideration is actually is given. In contrast, if the act to be performed is an unjust act, not

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constituting a crime, the consideration, meaning the gift or present, must be actually be received by the public officer.May foreign public officials and officials of a public international organization be held liable under Art. 210 punishing Direct Bribery? The answer is No. In a case, Dr. Shigori of the World Health Organization based in Manila received a huge sum from a construction company in exchange for awarding the company, contract for the construction of a new office building. Question is, without considering his possible diplomatic immunity, is Dr. Shigori liable for Direct Bribery under Art. 210? No, he is not. Dr. Shigori is not a public officer under Art. 210 being an official of a public international organization. The problem is, how about a private individual in conspiracy with Dr. Shigori? Is the private individual who is a Filipino, liable? Not answered actually by the Supreme Court.

Corruption may be consummated or attempted. In order to consummate corruption of public official, it is sufficient that the public officer has accepted the offer or promise, or had taken the gift or present. If the public officer did otherwise, meaning he refused, the crime is only attempted corruption of a public officer.What are the attributes of an Accountable Public Officer?

Tanggoti vs. Sandiganbayan (236 SCRA 273), an accountable officer under Art. 217 RPC, is a public officer who in the discharge of his official function, receives money or property of the government which he is bound to later account for. It is the nature, not the nomenclature or the relative significance of the title to the position, which controls. Art. 217 RPC, one who has custody of public funds or property by reason of the duties of his office, this is an accountable officer. The name or relative importance of the officer or employment is NOT the controlling factor. What is decisive is the nature of the duties. The controlling factor is the public official’s usual, expected and regular duties, and not merely isolated and incidental acts. The funds or property must be impressed with public attributes. The act of issuing an official receipt is the operative act which makes the fund part of public treasury. So in a case if a cashier collects taxpayer’s payment without issuing an official receipt and he pockets the amount, the crime cannot be malversation, because the amount has not been accounted for the public treasury. But there are certain cases where money or property is not strictly government money or property yet the misappropriation of the same may constitute malversation. In Art. 222 RPC, private property which is attached, seized or deposited by public authority, or property placed under custodia legis.

Prima Facie Presumption of Misappropriation

Enriquez et al vs. People (331 SCRA 538), the prima facie presumption of misappropriation arises only if there is NO issue as to the accuracy, correctness, regularity of the audit findings and if the fact that funds are missing is indubitably established.Cabrera et al vs. Marcelo et al decided Dec. 13, 2004, Ombudsman should not rely on the findings of the Commission on Audit. The Office of the Ombudsman should exercise caution when it utilizes the findings of COA, in support of its determination of probable cause as the prelude to the filing of criminal complaint against the public officer. Ombudsman should refrain from committing undue haste in prosecuting public officials based on COA audit reports. Ombudsman should make an independent determination of his own on the existing probable cause that the give public officer has committed a penal law violation.

In Failure of a Public Officer to Render Accounts

Third element of the crime, offender is required by law or regulation to render an account to the COA or to a provincial auditor. So a verbal or written instruction or order from a superior is not enough to hold a public officer liable under this Article. The duty to render account must come from an applicable law enacted by Congress or a regulation promulgated by competent authority.What is the distinction between the phrase “to render an account of” from “to account for”?

“To render an account of” – means to give the examining officer a statement of the receipts, disbursements, etc. with proper receipts and vouchers.

“To account for” – means to produce and turn over the government, funds or property.

In technical malversation, public funds should have been earmarked by law or ordinance for a particular purpose.

Infidelity in the Custody of Documents distinguished from Estafa with Falsification of Public Documents. In Infidelity, the document concealed, removed or destroyed, is no bar to the prosecution for the falsification of the same document. The offender may not falsify the documents in any of the ways provided in Art. 171. In order that the public officer may be punished for the crime of falsification of a public document, it is not necessary that it should conceal, remove or destroy the public document.-=5 mins break=- -=quiz=-

Handbook of Anti-Graft and Corrupt Practices Act by Aquino

What is the purpose of the Republic Act 3019?

To deter public officials and employees from committing acts of dishonesty and improve the tone of morality in public service.Under the Constitution, public office is a public trust. Under 3019, the law is designed to repress certain acts of public officers AND private persons which constitutes graft and corrupt practices act OR which may lead to graft and corrupt practice. There is a definition of public officer, peculiar to 3019, this is different from the definition of public officer under RPC or under 6713 or under the plunder law or under 1379.

Public Officer - elective, appointed, permanent, temporary, classified or unclassified or exempt service, the law says, receiving compensation, even nominal, from the government.Emphasizing even nominal, because under 6713, Code of Conduct and Ethical Standards, a person may be considered a public officer even if he is not receiving anything from the government.Government means national, local, GOCC, other instrumentalities or agencies of the government.

An important case, not yet asked in the bar exams, Engr. Claro J. Piclaro vs. Sandiganbayan. Engr. Piclaro was a private individual hired by the government or government agency, on contractual basis, to construct a building; then he demanded 200 thousand pesos from a private contractor. So he was charge with violation under RA 3019 Anti-Graft and Corrupt Practices Act. Convicted, he appealed and argued, he was not a public officer; there was no employment contract (there is a construction contract entered into by and between him and the government agency); not required to use the bundy clock, in fact he was not made to regularly report to the construction site; he was not issued any appointment paper, separate from the construction contract; he did not take an oath of office, thus Sandiganbayan has no jurisdiction. The Supreme Court said Engr. Piclaro is a public officer in so far as RA 3019 is concerned, because defining public officer, under Section 2 (b), there’s a phrase “x x x whether classified or unclassified or exempt service x x x”. The words: classified or unclassified or exempt service has been reclassified into career and non-career service. Career service is characterized by entrance based on merit and fitness; whereas Non-career service is characterized by entrance on basis other than those of the usual test of merit and fitness. Non-career service includes contractual personnel, like Engr. Piclaro, whose employment in the government is in accordance with a special contract to undertake a specific work or job. He falls under this definition. So, Engr. Piclaro is held liable for violation of RA 3019 and Sandiganbayan has jurisdiction over the crime charged.Aguinaldo DoctrineRe-election of public official condones administrative guilt only, but there’s no exemption from prosecution of crimes committed prior thereto. Under the Anti Graft and Practices Act, if a public officer is convicted, he will also suffer the accessory penalty of perpetual disqualification from office.Coverage of RA 3019, aside from public officers or employees, there is also prohibition on private individuals, certain relatives of members of Congress; jurisdiction is Sandiganbayan.

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(Judge Paredes asks if the jurisdiction of Sandiganbayan and Ombudsman has been discussed)

There is a provision on Preventive Suspension under the Anti-Graft Act. Section 13 Suspension and Loss of Benefit. Any incumbent officer against whom in a criminal prosecution under a valid information x x x shall be suspended from office. Suspension is not more than 90 days.

Suspension under Section 13 is NOT a penalty, but merely preventive measure before final judgment. But if there is already a final judgment of suspension, suspension becomes a penalty. What is the purpose of suspension? To prevent the public officer from frustrating or hampering the prosecution by intimidating or influencing witnesses or tampering with documentary evidence or from committing further acts of malfeasance while in office. (Segovia vs. Sandiganbayan & other cases) Suspension is MANDATORY.

There is a presumption that unless the accused is suspended, he may frustrate the prosecution or commit further acts of malfeasance or do both. Although suspension is mandatory, there must be a PRE-SUSPENSION HEARING, for the purpose of determining the validity of the information. Once the information is found to be sufficient in form or substance, Sandiganbayan must issue an Order of suspension as a matter of course. In Socrates vs. Sandiganbayan (Socrates was the governor of Palawan) Supreme Court said that it is not within the court’s discretion to hold in abeyance the suspension of the accused. Imposition of preventive suspension is not automatic or self-operative; there must be a pre-suspension hearing. Of course, there are rights accorded to the accused during the pre-suspension hearing. Preventive suspension shall not exceed the maximum of 90 days because its continuance, meaning over 90 days or continuance for an unreasonable length of time, raises a due process question.

The law says ‘suspension from public office’. Now what office? Present office or future office?

In Political Law, you’ll learn Santiago vs. Sandiganbayan. Miriam Defensor-Santiago was Bureau of Immigration commissioner, she fast-craft the naturalization of several Chinese nationals. She was charged with the violation of RA 3019 Anti-Graft. Then she severed her stint with the B.I., she was elected as Senator. When she was Senator, arraignment started and scheduled pre-trial, so Sandiganbayan suspended Senator Santiago. She argued as to why she should be suspended when she was no longer B.I. commissioner. Supreme Court said, wrong, because Office does not necessarily mean the previous office she was holding, but also the present office. Her case is not actually a case of First Impression, because there was another case involving the same issue: Segovia vs. Sandiganbayan, Libanan vs. Sandiganbayan; where the Supreme Court said, the term “Office” in Section 13 applies to any office which the officer might be currently holding and not necessarily the particular office or position in relation to which he is charged. The Supreme Court also cited the case of Bayot. When Bayot was government auditor for COA, he was charged the crime of Estafa thru Falsification of Public Documents. Then he was elected as Mayor of Amadeo Cavite, he was suspended when he was holding the position of Mayor. Supreme Court said the suspension is VALID.

But with respect to administrative cases, there shall be NO suspension. In Luciano vs. Provincial Governor, there shall be new suspension order in case the public officer is re-elected. Reiterated in Oliveros vs. Villaluz. A pending criminal prosecution for violation of 3019 committed by an elected officer during one term may be the basis of the suspension in a subsequent term, if he is re-elected to the same office.

Segovia vs. Sandiganbayan. An information was filed. The accused filed a motion to quash the information. He was suspended. He argued that he cannot be suspended because there is a pending motion to quash. Supreme Court said notwithstanding the pendency of a motion to quash, Segovia may be suspended. The Court ruled that the pendency of an Appeal or Petition for Review of an Order denying a motion to quash before the appellate court is not a valid ground to hold in abeyance

the suspension of the accused official. That is also the case of Socrates.

Do not confuse the suspension by the Sandiganbayan from suspension by the Ombudsman. They are different. In 3019, Sandiganbayan, it is 90 days. If the Ombudsman suspends, it is not more than 6 months. But in the case of Yasay vs. Desierto (Yasay was SEC commissioner), Supreme Court ruled that the indefinite suspension of Yasay is NOT valid. It is only until 6 months.

When may a public officer be preventively suspended by the Ombudsman? The following requisites are present:

1. Evidence of guilt is strong2. Charge involves Dishonesty, Oppression, Gross

Misconduct or Neglect3. Charge would warrant removal from the service4. Respondent’s continued stay in office may

prejudice the case against him

In suspension by the Sandiganbayan, there must be a pre-suspension hearing meaning preliminary hearing; NOT required in suspension by Ombudsman. Castillo Kho vs. Barbers citing Gloria Lastimosa (Dalawampu), the Supreme Court ruled a preliminary hearing is not necessary before the disciplining authority issues the order of preventive suspension. In fact in the case of Lastimosa-Dalawampu, it can be issued even before the Respondent has filed his answer to the charge, because according to the Supreme Court (of repeated decisions) Suspension is NOT a punishment or penalty but a PREVENTIVE MEASURE.

Now Corrupt Practices under Section 3, there is an opening statement:

“In addition to acts or omissions of public officers already penalized by existing law, the following will constitute corrupt practices, x x x .”Meaning if a public officer is charged under 3019 Anti-Graft, he may also be charged for the same act under the Revised Penal Code or even 6713, Code of Conduct and Ethical Standards, has similar provision (“in addition to acts or omissions x x x…”). There is NO double jeopardy. The public officer may face three charges: Anti-Graft, RPC, 6713 and sometimes 1379, Forfeiture Law.

Section 3 (A) Persuading, Inducing, Influencing another public officer to perform an act constituting a violation of rules and regulations promulgated by competent authority, or an offense in connection with the official duties of the latter, allowing himself to be persuaded, induced or influenced to commit such violation or offense.

There are two ways therefore in committing Section 3 (A):

1. Persuading, Inducing, Influencing, Violation of rules and regulation or committing an Offense; or,

2. Allowing himself to be persuaded, induced, or influenced

There is a case, In Re Victorio Lanuevo (Bar confidant & also Deputy Clerk of Court of the SC), on his own initiative, he requested the members of the 1971 Bar Examination Committee to reevaluate five notebooks of one bar examinee to increase the grade from 66.25% to 74.15 percent, to pass. He had no authority to initiate such steps towards the reevaluation. The Committee also had no authority from the Supreme Court to reevaluate. The Court held that criminal proceedings may be instituted against respondent under Sec. 3 (A) of R.A. 3019 Persuading, inducing, to violate rules and regulation or commit an offense; falsification.

Section 3 (B) Requesting or Receiving any gift, present, share, percentage or benefit for himself or for any other person in connection with a contract or transaction between the government or any other party wherein the public officer in his official capacity has to intervene under the law. There are four elements or requisites under this act:

1. Public officer2. Requesting/receiving3. In connection with a contract or transaction4. In his official capacity

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Haravata vs. Sandiganbayan, a School superintendent asked for reimbursement for his expenses during his trip to Manila (trip was for the purpose to follow-up the differentials to be given to the teachers) the administrator of the school did not approve his offer, in fact he was ordered to return the money. He was charged with violation of Sec. 3(B) of R.A. 3019, and found guilty by the Sandiganbayan, but acquitted by the Supreme Court. There was no doubt that he received money, reimbursement. But he was only a supervisor, an assistant principal. He did not receive the money in his official capacity. He did not intervene in his official capacity, since he had no power. Sec. 3 (B) RA 3019 refers to a public officer whose official intervention is required by law in a contract or transaction. He was a mere humble supplicant. In his official capacity as assistant principal, he is not required by law to intervene in the payment of salary differentials.

Soriano vs. Sandiganbayan, a public prosecutor demanded money from the accused under investigation in consideration for a favorable resolution. He was charged with violation of Sec. 3 (B) RA 3019. Sec. 3 (B) speaks of requesting or receiving in connection to any contract or transaction. Is he liable under Sec. 3 (B)? Supreme Court held NO, because the investigation conducted by the public prosecutor was NOT a contract, NEITHER was it a transaction because this term must be construed as analogous to the term which precedes it. A transaction, like a contract, is one which involves some consideration as in credit transaction. He is not liable for 3019, he is liable for bribery.

Section 3 (C) Requesting, Receiving gift, present or other pecuniary or material benefit for himself or for another from any person for whom the public officer has secured or obtained or will secure or obtain any government permit or license in consideration for the help given or to be given. There are five elements:

1. Public officer2. Requesting/receiving3. Gift/ present/ other pecuniary or material

benefit4. Has secured or obtain or will secure or obtain

government permit or license in any manner or capacity

5. in consideration for the help given or to be given

What is the meaning of “receiving gift” in both sub-paragraphs B & C in RA 3019?

It includes the act of accepting, directly or indirectly, a gift from a person other than a member of his family or relative within the 4th civil degree. Even during Christmas, if the value of the gift is under the circumstances is manifestly excessive.

Under Sec. 3 (C) the public officer need not have the right to intervene in the issuance of the permit or license. It is not even indispensable that the permit or licensed was secured or will be secured in the same government office or agency.

Section 3 (B) and (C) must be distinguished from Bribery.

Section 3 (D) Accepting or having any member of his family accepts employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after termination. There are four elements:

1. public officer2. accepting or having member of family accept

employment in a private enterprise 3. with pending official business with the

accused4. acceptance of employment by the accused

or member occurred during the pendency of the official business or within one year from its termination

((Memorize Section 3 (E); usually asked in the Bar; terms are defined by law & jurisprudence))

Section 3 (E) Causing any UNDUE injury to any party, including the Government, or giving any private party any UNWARRANTED benefits, advantage or

preference in the discharge of his official, administrative or judicial functions through MANIFEST partiality , EVIDENT bad faith or GROSS INEXCUSABLE negligence . Provision shall apply to officers or employees offices or government corporations charged with the grant of licenses or permits or other concessions.

There are four elements:1. public officer discharging official,

administrative or judicial function, OR private person in conspiracy with them

2. he committed the prohibited act during the performance of official duty or in relation to his public position

3. he acted with manifest partiality, evident bad faith or gross inexcusable negligence

4. Undue injury not only to the government but to also to any private party for giving any party unwarranted benefit, advantage or preference.

There are therefore two ways of committing Section 3 (E):

1. causing any undue injury to the government2. giving any private individual any

unwarranted benefit, advantage or preference

The act of giving any private party any unwarranted benefit, advantage or preference is NOT an indispensable element of the offense of causing undue injury to any party.

Three modes by which the offense may be is penalized under Sec. 3 (E):

1. manifest partiality2. evident bad faith3. gross inexcusable negligence

Please take note under Sec. 3 (E), only CONSUMMATED offense is penalized. So, first element: public office; he need not an officer charged with the duty granting of permits or license or concessions. Are private persons liable? YES, if they conspire with public officers. The word “administrative” need not refer to quasi-judicial or quasi-adjudicatory function, but purely official administrative functions. Second element: offense committed in relation to office. What is the meaning of committed in relation to office? The offense cannot exist without the office. In other words, the office must be the constituent element of the crime. The offense charged is intimately connected with the respective offices and was perpetrated while they were in the performance, though improper or irregular, of their functions.

Case of Mayor Abrenica, as executive of the town, he went to the beach resort of Mr. Goodman to enforce the ordinance on billboards. Goodman was killed, and Mayor Abrenica was charged for murder. Sandiganbayan has jurisdiction because the crime was committed in relation to office, meaning in the performance of his function as mayor.

When is there MANIFEST partiality?

Conacier vs. Sandiganbayan defines manifest partiality. Manifest meaning obvious to the understanding; evident to the mind, etc. (according to Webster).There is therefore manifest partiality when the bias of the offender towards another individual or entity is clearly evident to the mind and unmistakably evident by the act or action itself.

What is the meaning of EVIDENT bad faith?

Bad faith does not simply connote bad judgment or negligence. It imputes dishonest purpose or some moral obliquity and conscious doing of a wrong. Evident bad faith connotes manifest, deliberate intent on the part of the accused to do wrong or cause damage.

What is the meaning of GROSS negligence?

It is defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act. Gross negligence, meaning after disregard of or conscious indifferent to consequences; it means flagrant and palpable.

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Example, Queval vs. Sandiganbayan, the contract price is 652, 262 for the construction of the municipal market. At the time of payment, the construction was only 36.24% completed but the entire contract price was paid. Payment should be based on the percentage of work, what should have been paid was 36% of the contract price. Supreme Court convicted Queval for manifest partiality, evident bad faith.

Fourth element: causing undue injury; giving unwarranted benefit. Injury to be characterized as undue injury must be more than necessary, excessive, improper or illegal. An injury which is negligible is NOT such an injury. Classic case is Llorente vs. Sandiganbayan; “Undue Injury” is consistently interpreted as actual damage. “Undue” has been defined as more than necessary, not proper or illegal. “Causing” means to be the cause or occasion of to effect as an agent (?).

One last point, there was a city engineer in Davao City, used a backhoe for his treasure hunting. He was charged Anti-graft, using government property without authority causes undue injury. Why is there undue injury when it was only a backhoe? The Supreme Court said, Undue, wear and tear caused to the said equipment and its use without consideration.

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Additional Notes: Anti-Graft

The law covers public officers and private persons.

Remember 3019. Do not exclude felonies defined and penalized under the Revised Penal Code because Sec. 3 states in addition to acts and omissions of public officers already penalized by existing laws. So in addition to 3019, the public officer may be prosecuted under RPC.

Sec. 3. Corrupt practices of public officers.

(b) Receipt of a gift or other benefit. Mere receipt of a gift or other benefit is enough even without any express demand for it (Pelegrino v. People). The Supreme Court in said case ruled that in order to convict the accused in a prosecution for the violation of Sec. 3(b), mere receipt of a gift or any other benefit is enough, even without any express demand for it. 

(c) [3(c) is extortion] Requesting or receiving for himself or for another. The person liable under 3(c) is the public officer, who in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license for another person. Must the value of the gift or present be specified in the information in view of Sec. 3(c), RA 3019? The case is Mendoza-Ong v. Sandiganbayan where the value of the gift is not mentioned at all as an essential element of the offense charged under Sec. 3(c) and there appears no need to require the prosecution to specify such value in order to comply with the requirements of showing prima facie case.

(e) [As I said, 70 percent of the cases revolve around 3(e). “Partiality” is synonymous with “bias” which “excites a disposition to see and report matters as they are wished for rather than as they are” (Fonacier et. al v. Sandiganbayan). “Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud.” “Gross negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property.”]

There is an Arias doctrine. Also a good defense in malversation. Mere signature or approval appearing on a voucher by the final approving authority cannot sustain a conspiracy charge of causing undue injury to the government and giving a private party unwarranted

benefits. That authority who may be a department secretary, bureau chief, commission chairman, etc. need not personally examine every single detail, painstakingly trace every step from inception and investigate the motives of every person involved in a transaction before affixing his signature. Almost all executives sign hundreds of documents a day, including barangay captains. Whatever is placed on the table, sometimes, no question is asked. Otherwise, if he is going to scrutinize each and every document of the hundred documents, how long will it take him to sign all papers in the morning? Probably, the whole morning or even the whole day if he will scrutinize each and every paper placed on his table. With more reason if mayor. With more reason if governor. The Arias doctrine is this, if the public officer relied in good faith on his subordinates and he signed papers, which later on, were discovered to be a source of anomalous transaction, he should not be held liable because there is no conspiracy. Exception to the Arias doctrine, if it is very clear that the public officer conspired with persons to ask him to sign papers, then he is liable for malversation or violation of RA 3019. Simply because a person in a chain of processing officers happens to sign or initial a voucher as it is going the rounds, it does not necessarily follow that he becomes part of the conspiracy in an illegal scheme. The guilt beyond reasonable of each supposed conspirator must be established. Every person who signs or initials documents in the course of transit through standard operating procedures does not automatically become a conspirator in a crime which transpired at a stage where he had no participation. [Kana bang palutsan ba ka ba. Naay mga subordinates nmo, nay mga binuang. Unya ihatag sa imo. You relied in good faith kung kinsay gahatag especially kung pasa-pasa ang papel, ika-unom ka nga nipirma, you should not be held liable because there is no conspiracy.] His knowledge of the conspiracy and his active and knowing participation therein must be proved by positive evidence. That’s the Arias doctrine. I repeat, the exception is if there is clear and convincing evidence of conspiracy. 

(f) Neglecting or refusing to act within a reasonable time on any matter pending before him. [So dugay-dugayon kay maghuwat pa ug naay padangog.] There are four (4) elements: (1) neglected or refused to act without sufficient justification; (2) a reasonable time must elapse; (3) [what is the purpose?] obtaining pecuniary or material benefit or advantage [Neglect is failure to do what can be done and what is required to be done. Like in one case, he failed to act for a period of 5 months. There was 5-month delay in the service of court order. To warrant conviction for violation of Sec. 3(f), the law itself additionally requires that the accused’s dereliction being without justification must be for the purpose of obtaining pecuniary or material benefit or advantage or discriminating against any or another interested party.]

(g) [Unlawful act of] entering, on behalf of the Government, into manifestly and grossly disadvantageous contracts. Take note of the words “manifestly” and “grossly.” Take note also of the phrase under 3(g) “whether or not the public officer profited or will profit thereby.” So even if he did not profit, he is still liable. Under this section, the accused must be acting as a public officer when he entered into contract or transaction. Imelda Marcos escaped 3(g). She was the Minister of the Human Settlements Commission. She entered into a contract in her capacity as chairman of an NGO, PGHFI. Acquitted because she entered into a contract or transaction in her private capacity and not as a public officer. PGHFI, by the way, was a private charitable foundation.

Culpability may not attach to a public officer who has no authority to conclude a transaction. The officer enters into a contract or transaction at the time he signs the document evidencing contract or transaction. The validity of the contract perforce need establish first before the indictment. Just read this case of Luciano v. Estrella.

Contract must be grossly and manifestly disadvantageous, not “or” but “and.” Grossly and manifestly disadvantageous means the terms and conditions must perforce flagrantly, shamefully and clearly or unmistakably be inimical to the interest of the government, leaving no doubt to mind of the presence of

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such prejudice. A disadvantage to the government that is merely negligible does not render the public officer liable.

(h) Having financial or pecuniary interest in any business, contract or transaction If you read 6713, it’s all the same. There is just slight difference. Here, the public officer intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. This may be committed in 2 ways: (1) having financial or pecuniary interest in any contract or transaction in connection with which he intervenes or takes part in his official capacity; and, (2) when he has financial or pecuniary interest in any business, contract or transaction and he is prohibited by the Constitution or by any law from having any interest. Under the second way, the public officer need not have to intervene in his official capacity. Macariola v. Asuncion: Respondent judge cannot be held liable because there is no showing that he participated or intervened in his official capacity in the business or transaction of Traders’ Manufacturing and Fishing Industries. This section contemplates actual intervention in the transaction in which the accused has financial or pecuniary interest in order that liability may attach. There is, therefore, conflict of interest.

(i) Becoming interested, for personal gain, or having material interest in any transaction or act requiring approval of the board where he is a member of the board, committee, panel, etc. then the panel or group has discretion to approve or not the pending act or transaction. He becomes interested for personal gain or has material interest in the said act or transaction. It is the public officer’s membership in the approving committee, not his favorable vote or participation that may render him liable.

(j) Approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled. Since to be culpable the accused must have approved or granted the license, good faith in approving or granting the same may be a defense.

(k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. If the information involves national defense, he may also be held liable for espionage under the RPC, then anti-graft under Sec. 3(k) and violation of RA 6713 (Code of Conduct). There are 2 acts penalized: (1) divulging; and, (2) releasing information. The law qualifies the information to be both valuable and confidential in nature.

Liability of persons other than public officers. A private person who conspires with a public officer may be held liable under this law. The private individual conspiring with public officers shall be tried jointly with public officers or employees. Bondoc v. Sandiganbayan: Requiring that private individuals accused in the Sandiganbayan together with public officers or employees must be tried jointly with the latter unless the attendant circumstances are made impossible or impracticable such joint trial.

Sec 4. Prohibition on private individuals. (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage. The word "close personal relation" shall include close personal relationship, social and fraternal connections. They belong to the same civic organization – Kiwanis, Lions, Rotary or whatever. Fraternity.

Sec. 5. Prohibition on certain relatives. President, Vice-President, Senate President, Speaker cannot intervene in any business, transaction, contract or application with the Government. But there are exceptions. You are familiar with these constitutional provisions.

Sec. 6. Prohibition on Members of Congress to acquire or receive any personal pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution authored by him.

Never mind on the provision on statements and disclosures because this is already modified by 6713.

Sec. 8. [prima facie evidence of and] Dismissal due to unexplained wealth. If a public officer is under investigation for unexplained wealth and the court found him to have acquired illegally properties then the properties acquired shall be forfeited in favor of the government. If there is an order of forfeiture, he shall also be dismissed from the service. So 1379 (Unexplained Wealth Law) should be read together with Sec. 8, RA 1319. I repeat, if a public officer is ordered by the court to forfeit certain properties for being unlawfully acquired then he may be dismissed or removed from service.

Additional Notes:

Under Sec. 3(e), manifest partiality, evident bad faith or gross inexcusable negligence must be alleged with sufficient particularity in the information sufficiently to inform the accused of the charge against him and to enable the court properly to render decision.

May manifest partiality, evident bad faith and gross inexcusable negligence be used in the same information? The Supreme Court answered in the affirmative in Gallego v. Sandiganbayan. The use of all these phrases in the same information does not mean that the indictment charges three distinct offenses. The use of the three phrases “manifest partiality, evident bad faith or gross inexcusable negligence” in the same information does not mean that the indictment charges three distinct offenses but only implies that the offense charged may have been committed through any of the modes provided by law. If that’s the case, the accused is deprived of his constitutional right to know the nature and cause of accusation against him. Which really of the three? But, that’s the Supreme Court speaking. The logical conclusion is that the three modes are not really inconsistent, but are in fact akin to one other. The phrases “undue injury” and “unwarranted advantage or preference” is synonymous to actual damages which is akin to that in civil law.

There are two principal reasons why Sec. 3(e) can be said to penalize only consummated offenses: [So take note. This 3(e) is consummated only.] (1) the penalty imposed is imprisonment for not less than 6 years and 1 month or more than 15 years, perpetual disqualification from office, confiscation, or forfeiture; (2) the third requisite of Sec. 3(e), causing undue injury, etc., shall only mean actual injury or damage, which is the present participle of the word “cause.”

Is Sec. 3(e) applicable only to public officers charged with the grant of licenses or permits or other concessions as the last sentence thereof seems to imply? [Ako ning ipangutana sa exam. Yes or no ra ba gyud ang answer. Para mag-notes gyud mo.] Answer in Buencamino-Cruz v. Sandiganbayan. Regardless of whether or not accused public officer is charged with the grant of licenses or permits or other concessions. Not necessary.

Take note of letter (f) neglecting or refusing to act within a reasonable time on any matter pending before him. What is the purpose? Obtaining pecuniary or material benefit. Now, the accused here may also be held liable under Art. 27 of the Civil Code. [Dba, taas kaau ang enumeration? Kanang constitutional right nmo giviolate sa public officer. Dba liable na sya for damages?] Damages under Art. 27 of the Civil Code for malicious inaction must be taken in relation to Sec. 3(f) of 3019. The case is Mesia v. Fermin where the Supreme Court held that while respondent Fermin may not be compelled by mandamus to approve vouchers because they exceeded the budgetary appropriations, he may nevertheless be held liable for damages under Art. 27 of the Civil Code for malicious inaction because he did not on the vouchers. So in this regard, official inaction cannot be equated with disapproval.

By the way, what is nepotism? There is prohibition against nepotism under 3019. Nepotism is the practice of favoring relatives in the appointment or recommendation process because of their relationship with the appointing or recommending authority or power rather than because of their competence or qualifications. Take note also that under the Administrative Code, there are exceptions to the rules on nepotism: (1) persons

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employed in a confidential capacity [teachers, physicians, members of the armed forces of the Philippines. Now, in Layno v. People (213 SCRA 686), the appointing or recommending authority is obliged to disclose his true relationship to the appointee. What did Mayor Layno do? He appointed his son as meat inspector. [Unsa tong klasehas meat?] He was prosecuted criminally and punished for falsification of public document. One of the legal issues raised was whether the appointing authority is obliged to disclose his true relationship to the appointee. Affirmative, according to the Supreme Court.

Then Sec. 4, prohibition on private individuals and relatives of certain public officials. Unlawful for any person having family or close personal relation to capitalize or exploit or take advantage of such family or close personal relation, etc. This crime is known as influence peddling according to the Supreme Court. This is influence peddling. It is a practice of using ones influence in the government or connection with persons in authority in order to obtain favors or preferential treatment for another usually in return for payment. So remember Sec. 4.

Sec. 5, prohibition on certain relatives. President, Vice-President, Senate President, Speaker. What is the meaning of the word “intervene.” There several cases – Romualdez v. Sandiganbayan, Vans v. People. According to the Supreme Court, the term “intervene” should be understood in its ordinary acceptation, which is to come in between.

Then Statement of Assets and Liabilities. Forget 3019. Apply 6713.

Do we still have Bank Secrecy Law vis-à-vis Anti-Money Laundering? Yes, there is still. Inquiry into illegally acquired property extends to cases where such property is held by or recorded in the name of other persons. [So maka-examine sila sa bank accounts kung anti-graft ang kaso.] Banco Filipino v. Purisima. The Supreme Court reiterated and further extended the exception to the Bank Secrecy Law in PBB v. Gancayco. It ruled that in anti-graft cases, the inquiry into unlawfully acquired properties to the extent to deposit accounts of other persons including relatives and friends of the respondent public official. We have discussed preventive suspension and loss of benefits.

Sec. 13 covers two types of offenses: (1) any offense involving fraud on the government; and, (2) any offense involving public funds or property. The phrase “any offense involving fraud upon government or public funds or property” is clear and categorical. The phrase “fraud upon government” means any instance or act of trickery or deceit against the government. For example you are a mayor, who is under suspension, but you still assumed office. What criminal liability if any is incurred? What’s his liability? Then he signed vouchers. If he assumed office, he is liable under the Anti-Graft Law. It is fraud upon government was committed when the petitioner allegedly assumed the duties and performed acts pertaining to the mayor under pretense of official position.

Can the respondent in a forfeiture case be preventively suspended under Sec. 13, RA 3019? Under the Anti-Graft Act, Sec. 13, a public officer shall be preventively suspended for 90 days. Suppose he is charged under 1379 (Forfeiture Law), may that public officer be suspended if he is under investigation for unexplained wealth? Supreme Court said that no because 1379 is not a criminal statute. It is a forfeiture law since forfeiture proceeding under 1379 is not a criminal action. We will discuss 1379 later.

If there is no longer any possibility that the accused can influence or intimidate witnesses, may he still be preventively suspended? Beroña et. al. v. Sandiganbayan (July 27, 2004). The answer is yes. According to the Supreme Court, the purpose is also to prevent the accused from committing further acts of malfeasance while in office.

Suppose a public officer is charged under RA 3019, a mayor for example. Since it is for 90 days, he also filed for leave of absence. Is leave of absence a bar to preventive suspension? Doromal v. Sandiganbayan: An approved leave, whether it be for a fixed or indefinite

period, may be cancelled or shortened at will by the incumbent. The answer is no. That’s the reason. The purpose of pre-suspension hearing is to determine the validity of the information. [Balikan nato.] The preventive suspension is mandatory but it is not automatic because there must a pre-suspension hearing. What is the purpose of pre-suspension hearing? The purpose is to test the validity of the information, whether it is quashable or not.

Must suspension hearing be a full-blown hearing? No. Torres et. al. v. Garchitorena (2002): What is required only is that the accused be given a fair and adequate opportunity to challenge the validity of the criminal proceeding, filing of pleadings is sufficient.

Has Sandiganbayan discretion to order suspension? Answer, mandatory. Bolastig v. Sandiganbayan. Bolastig was governor of Samar. Under the law, the case must be decided within 90 days. Suppose the case was terminated before 90 days [for example, on the 60th day], will the public officer be considered suspended after 60 days? Answer in Bolastig. The duration of preventive suspension is co-equal with the period prescribed for deciding administrative disciplinary cases. If the case is decided before 90 days, then the suspension will last less than 90 days. But if the case is not decided within 90 days, then the preventive suspension must be up to 90 days only.

We have discussed this. Suspension pendente lite applies to any office than the accused public officer might be presently occupying. Miriam Defensor Santiago v. Sandiganbayan. She was charged as BI Commissioner. She was elected as senator. Suspended as senator. Because for as long as the accused occupiy a public office, they can be suspended pendente lite.

Going back to the question, if the public officer is preventively suspended, aside from liability under the Anti-Graft Act, what other crime did he commit? [Gisuspend siya, mipadayon.] The crime is violation of Art. 177, usurpation of authority or official functions. Under pretense of official position, he performs any act pertaining to any person in authority or public officer of the Philippine Government without being lawfully entitled to do so.

Are all the penalties in Sec. 9, RA 3019, imposable on a private person? No, because a private person has no perpetual or absolute disqualification, or perpetual or temporary special disqualification. [Pareha ra na sa nay usa ka architect dinhi cebu, mag sige lang ug pangiha. muappear sad sya sa korte. di sya mahadlok ma-disbar. natural kay di man sya lawyer. salig lng.]

Recess…

RA 6713 Code of Conduct and Ethical Standards for

Public Officials and Employees

The following norms shall serve as standards of personal conduct in the discharge and execution of official duties: [Basically, the Code of Conduct and Ethical Standards is not a penal law. There are only few penal provisions. A violation of any of the following norms of conducts per se does not make an offender criminally liable. Here mere incurs administrative liability and/or civil liability if his conduct has caused damage to the government or to another person. Penal sanctions including imprisonment are imposed only for violations of Secs. 7, 8 and 9. But, if you read Secs. 7, 8 and 9, there is just slight difference with RA 3019. The difference is just few words only. The whole law, Code of Conduct, the essence is conflict of interest. There are many provisions, but the common denominator is conflict of interest.]

(a) Commitment to public interest. - Public officials and employees shall always uphold the public interest over and above personal interest.

(b) Professionalism. - Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.

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(c) Justness and sincerity. - Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity. They shall not dispense or extend undue favors on account of their office to their relatives.

(d) Political neutrality. - Public officials and employees shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference.

(e) Responsiveness to the public. - Public officials and employees shall extend prompt, courteous, and adequate service to the public.

(f) Nationalism and patriotism. - Public officials and employees shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion.

(g) Commitment to democracy. - Public officials and employees shall commit themselves to the democratic way of life and values.

(h) Simple living. - Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form.

What is the meaning of modest and simple living? As maintaining a standard of living within the public official’s and employee’s visible means of income.

Sec. 5. Duties of Public Officials and Employees.

(a) Act promptly on letters and requests. – Answer within fifteen (15) working days from receipt of letter. Then, action taken must also be indicated. [If you don’t answer, the Ombudsman will be the one to ask you to answer. There was a clerk of court, Mojico v. Jaratan, who did not answer. So, he was administratively held liable. Since he did not answer, the Supreme Court reprimanded him.]

(b) Submit annual performance reports. - Within forty-five (45) working days from the end of the year.

(c) Process documents and papers expeditiously. Must be processed and completed within a reasonable time from the preparation thereof.

(d) Act immediately on the public's personal transactions. - Must attend to anyone who wants to avail himself of the services of their offices and must, at all times, act promptly and expeditiously.

(e) Make documents accessible to the public. – [Who violates this? The Ombudsman herself, excluding Virgie Santiago. The assets and liabilities are not disclosed. Why is it that they won’t disclose? It should be disclosed so that people would know]. All public documents must be made accessible to, and readily available for inspection by, the public within reasonable working hours. [There is a constitutional right – access to information, to public records – but of course, like all rights, it is not absolute. It is subject to reasonable office regulation. If court records, you cannot take it out of the court for photocopying alone, you have to be accompanied by court employee.]

Penal Provisions.

Sec. 7. Prohibited Acts and Transactions. – [If you are liable under 6713, it is possible that you will also be liable under 3019 and under RPC since Sec. 7 states] in addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws [no double jeopardy].

(a) Financial and material interest. - Public officials and employees shall not have any financial or material interest in any transaction requiring the approval of their office. [Mere possession of the prohibited interest is sufficient to incur criminal liability. Sec. 11-A, which is the latest enactment, provides that if a violation of said law is punishable via heavier penalty under another law, the offender shall be prosecuted under the latter statute. This should be compared with 3(h) of 3019. Under 3(h) of

3019, there are 2 modes by which a public officer may violate said section.]

(b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:

(1) Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law [conflict of interest];

(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions [Judges can teach. It does conflict with official functions. Mayors, can they practice? No.] ; or

(3) Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office [conflict of interest].

[If a public officer resigns, retires or is separated from service, can he practice his profession? Yes, after one year. That is why there is a ban on senators and vice-president who lost in the election. They can be appointed after one year.]

(c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office [not in their private capacity] and not made available to the public, either:

(1) To further their private interests, or give undue advantage to anyone; or

(2) To prejudice the public interest [May be those information related to business and a public official discloses it, that is not allowed. This is just like the case of a stenographer whom you instructed to type the decision convicting the accused of a crime. Even if the decision was not yet signed by the judge, she already informed the accused about it. As a result, the accused escaped and never appeared at the promulgation of judgment.]

[You should distinguish letter (c) from prohibition under 3(k) RA 3019. Under 3(k), the law does not consider the purpose or motive of the offender. Here, in 6713, there is motive – private interest, giving undue advantage.

(d) Solicitation or acceptance of gifts. - Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office [still conflict of interest. If there is a question in the bar, analyze it. If there is conflict of interest, that is 6713.

As to gifts or grants from foreign governments allowed in the following cases: (1) gift of nominal value received as souvenir or mark of courtesy; (2) scholarship, fellowship grant or medical treatment; (3) travel grants or expenses for travel.

In re Julian Ocamp III: Clerk of Court solicited air-conditioner from Robertson Department Store owned by Robert Obiedo who had pending cases before MTCC. Liable under 6713.

Sec. 8. Statements and Disclosure. – [This is the one that governs, not the Anti-Graft.] Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know [Why doesn’t the Ombudsman disclose the SALN? Why is it the they won’t release it? Because that’s the order of Merciditas Gutierrez to protect government officials under the Arroyo regime.], their assets, liabilities, net worth and financial and business interests including

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those of their spouses and of unmarried children under eighteen (18) years of age living in their households. If under 3019, only SAL – Statements of Assets and Liabilities. If under 6713, Statement of Assets and Liabilities and Net Worth, and financial and business interest.

All officials and employees, except those who serve in an honorary capacity, laborers and casuals or temporary workers, shall submit under oath SALN and disclosure of business interest and financial interest.

(A) Statements of Assets and Liabilities and Financial Disclosure. – [Who shall file?] All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall submit under oath SALN and Disclosure of Business Interests and Financial Connections. The information should contain the items mentioned in Sec. 8(a). Who shall file SALN? Constitutional and national elective officials – senators, congressman, all other public officials and employees defined in RA 3019.

(B) Identification and disclosure of relatives.

(C) Accessibility of documents. - (1) Any and all statements filed under this Act, shall be made available for inspection at reasonable hours. [Is this followed by the Ombudsman? No.]

(D) Prohibited acts. - It shall be unlawful for any

person to obtain or use any statement filed under this Act for:

(a) any purpose contrary to morals or public policy; or(b) any commercial purpose other than by news and communications media for dissemination to the general public.

Duty of Disclosure. Two documents required to be filed: (1) Statements of Assets, Liabilities and Net Worth (SALN); and, (2) Disclosure of Business Interest and Financial Connections. This is not found in 3019.

How do you distinguish violation of Sec. 8, 6713 from the crime of perjury? This is failure to accomplish and submit declarations under Sec. 8 versus perjury under RPC. In order to be liable for perjury, the falsehood upon a material matter must not be a product of mistake or oversight.

Then this is the most important – prohibition against conflict of interest. By the way, there is definition of conflict of interest. This was asked in the Bar Exams. What should be done if there is a conflict of interest? There is conflict of interest when a public official or employee is a member of a board and officer or a substantial stockholder of a private corporation or owner or has substantial interest in a business and the interest of such corporation or business or his rights and duties therein may be opposed to or affected by the faithful performance of official duty. Only this last phrase is important “may be opposed to or affected by the faithful performance of official duty.” You can shorten the definition but the last phrase is important.

A public official or employee shall avoid conflicts of interest at all times. What should be done if there is conflict of interest? You either do the following: (1) you either resign from your position in any private business enterprise within 30 days from assumption of office; or, (2) divest yourself of shareholdings or interest within 60 days from such assumption. So two things, either resign or divest.

The same rule shall apply where the public official or employee is a partner in a partnership.

Conflict of interest does not apply to the following: if the position is honorary capacity; laborers; casual or temporary workers.

What is divestment? It the act required to be done by a public official or employee whenever a conflict of interest arises on his part. Divestment is the transfer of title or disposal of interest in property by voluntarily, completely and actually depriving or dispossessing oneself

of his right or title to it in favor of a person or persons other than his spouse and relatives.

There was a court interpreter and she has a business in public market. Is there a conflict of interest? Rabe vs. Flores: The Supreme Court said no. [Unsa may labot sa clerk of court anang maninda ka dha sa carbon. May mag ang court ang nagregulate anang manindahay. So kamog mafiscal mo, pwde ra mu mamaligyag ice cream.]

There are provisions on penalties. [Ayaw nlng ng penalties kay di gyud na manggawas ug pilay penalty.]

Plunder

The next law – Plunder. When the law on plunder came out, Desierto was confused. 39 cases were filed against Joseph Estrada. There is malversation, falsification, illegal exaction, etc. All the 39 cases were dismissed. [Di niingon dayon ang uban, wa na, napalit na si Desierto kay ngano gipangdismiss.] No, you combine all those cases equals plunder. So if you are asked, is plunder mala in se or mala prohibita? Mala in se because most of the crimes constituting plunder are found in the Revised Penal Code, which is mala in se.

What is plunder? Crime of public officer of amassing wealth of at least 50 million pesos by means of an act or series of overt acts of which may constitute different offenses. It does not require that each act be proved distinctly from each other.

The author quoted Boado. [Wrong ra ba! Wrong! I tell you this Notes is wrong. It says by means of an act or series of acts! Wrong!] Because it is either series or combination. If it’s single act, that is not plunder. It’s already settled. The case is Estrada v. Sandiganbayan. So I repeat, if it’s plunder, it is series or combination.

In Estrada v. Sandiganbayan, Supreme Court held that Sec. 2 is sufficiently explicit in its description of the acts, conduct and conditions required or forbidden and prescribes the elements. And what are the elements of the crime of plunder? (1) Offender is a public officer who acts by himself or in connivance with member of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons. (2) Amassing, accumulating, acquiring ill-gotten wealth through a combination or series of the following overt or criminal acts. [You see combination or series. If you say combination – malversation, raid against public treasury, illegal exaction – that is combination. Equals 50 million. If you say series – 6 ba ka malversation ba, 4 ba ka illegal exaction – basta ang na-acquire 50 million. Kung combination gani, different crimes. Series gani, the same crime like 10 malversation, series na sya. For example, 1 malversation, 100 million, is that plunder? That is not plunder because there was only one act. Wa may series, usa ra man. Pero 10 malversations unya nka-amass siya ug 60 million, that is plunder. Maau kaau ni pagka-discuss ni Cong. Pablo Garcia. Gi-explain gyud nya ning series and combination. For example in the information, there are several crimes mentioned, motion to quash dayon si Atty. Saguisag on ground of multiplicity. Supreme Court said wa mn nay multiplicity because the series and combinations constitute plunder. Usa ra ka crime. Suppose there is malversation, jueteng or other crimes, 10 crimes are mentioned. If he was able to establish 5 combination or series, can he stop presenting evidence [dli ang tanan. dli nya probahon ang 10 crimes]? The answer is yes. Why? Because what is required is only a pattern of overt acts [pattern lang]. You need not prove all the acts, the criminal acts mentioned in the information. So please take note of the following over or criminal acts: misappropriation; conversion; malversation; receiving commission, gift, share, etc.; illegal or fraudulent conveyance of government property; obtaining, receiving, etc. shares of stock, equity [this is kickback]; establishing agricultural, industrial or commercial monopolies; combinations and or implementation of decrees; taking advantage of official position, authority, relationship, etc. The aggregate amount or total value is at least 50 million. Original law – 70 million [amended and reduced].

Plunder law is constitutional. The first argument of Saguisag was that it was void for vagueness. Supreme Court said no. Not void because persons of common intelligence understand what is the law. A statute is void

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for vagueness when: (1) it is unclear what persons fall within their scope [klaro mn didto si Estrada]; (2) what conduct is forbidden [naa sad sa information]; (3) what punishment may be imposed.

Plunder law contains ascertainable standards and well-defined parameters which would enable the accused to determine the nature of the violation. When plunder law speaks of combination, it is referring to at least two enumeration provided in Sec. 1 example raids on public treasury, fraudulent conveyance, etc. [kana combination]. Series, there must be two or more overt or criminal acts falling under the same category of enumeration. As I said if 10 malversations and was able to acquire 50 million, that is series. [Kanang annotation nga act or acts, wrong na. Ug act lang, di na sya plunder bisan pag ang nakuha more than 50 million.] Now, pattern. [As I said, kung ang ibutang sa information 10 series or combination, is it necessary to prove all? The answer is no because what is required is pattern only.] As for pattern, this is [I’m quoting] Estrada v. Sandiganbayan. This term is sufficiently defined in Sec. 4. A pattern consists of at least a combination or series of overt or criminal acts enumerated in Subsecs. 1 to 6 pursuant to Sec. 2 of the law. The pattern of overt acts is directed towards a common purpose or goal which is to enable public officer to amass, accumulate or acquire ill-gotten wealth.

Does Sec. 4 of the Plunder Law circumvent the obligation of the prosecution to prove the guilt of the accused beyond reasonable doubt? Answered in the negative by the Supreme Court. Now, this enumeration (a) to (f) is known as predicate crimes. You have to commit these crimes in order to commit [flunder!] plunder. [Pareha ra na sa kadtong anti-terrorim law. Mu-commit ka adto nga crime, nya plus other elements, that is crime of terrorism. Kani sad naa ni syay predicate crimes. You commit any of the crimes mentioned, then if the result is 50 million, it’s plunder. Pareha na sa anti-money laundering law. Dli tanang deposits sa bangko, mahug sa anti-money laundering law. You have to commit one of the predicate crimes. Paghimo sa anti-money laundering law, wa pa ng balaud sa trafficking in person. So, ang proceeds sa trafficking ideposit nmos bangko, di na mahug sa money laundering kay wa mn na gi-enumerate. So kinhanglan na ug amendment.]

Which court has jurisdiction? Of course, Sandiganbayan. Penalty? Reclusion perpetua.

Now, relative to cases under plunder, we have plenty in our notes.

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