Univeristy of San Carlos

CRIMINAL LAW REVIEW TRANSCRIPTION

Judge M. Paredes
Quiz
1.

2.

3.

4.

5.
6-

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
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
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
A person who has been rendered unconscious or
otherwise incapacitated by wounds or sickness
and therefore is incapable of defending himself.
HORS DE COMBAT
True or false, violation of RA 9851 penalizing
crimes against International Humanitarian Law
prescribes in 20 years. FALSE (imprescriptible)
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; its 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,
thats 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 its 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? Theres 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 thats 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, its 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

Criminal Law Review 2nd Installment

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, thats paragraph 2.
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 thats 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 thats 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,
theres some truth to it its 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 its 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, its 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, iforward nimong date, thats 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, thats 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.

Criminal Law Review 2nd Installment

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
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. 9165
The 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, thats illegal importation. The penalty is life
imprisonment. If its 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. Theres
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. Its 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, its 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. Its very very important to prove the existence of
the dangerous drug subject matter of the sale. Its

Criminal Law Review 2nd Installment

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. Thats the reason why 60 to 70 percent of the
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
prosecutors office. From the prosecutors 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.

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.

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

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.

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.

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. Thats 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
Criminal Law Review 2nd Installment

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].
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. Its 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, its 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.
Thats 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

Criminal Law Review 2nd Installment

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 youre not the one who
planted it, but you know its 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.
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. Thats what
the Supreme Court said. It acquitted because there was
no report. It was submitted directly to the Crime
Laboratory. Its difficult to comply. If you dont comply
with the court, you can be cited for contempt. If you dont
comply with RA 9165, the accused will be acquitted.

A
examination
the forensic
twenty-four
item/s:

certification of the forensic laboratory

results, which shall be done under oath by
laboratory examiner, shall be issued within
(24) hours after the receipt of the subject

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.

Criminal Law Review 2nd Installment

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, its 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
Regulation Issued by the Board.
(1) day to four (4) years and
thousand pesos (P10,000.00)
(P50,000.00).

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.

a Person Violating Any

Six (6) months and one
a fine ranging from Ten
to Fifty thousand pesos

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. 33. Immunity from Prosecution and

Punishment. The state witnesses. But, the grant of
immunity may be terminated.

Sec. 57. Probation and Community Service Under

the Voluntary Submission Program.

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
Rehabilitation of Drug Dependents] is important.

and

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 DOHaccredited physician, the after-care program and
follow-up schedule formulated by the DSWD and
approved by the Board: Provided, That capability-

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.
Proceedings.

65.

Duty

of

the

Prosecutor

in

Criminal Law Review 2nd Installment

the

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.
Whats 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
other special laws. So 195 to 199 are amended, whats
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, thats 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.
teams

Now what is Game Fixing? Game fixing gani both

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, thats game fixing.
Keywords, result shall be predicted and/or know
other than the basis of the honest playing skill or
ability.
Its 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.

Criminal Law Review 2nd Installment

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 its 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) 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 its 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 thats
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 were 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

Criminal Law Review 2nd Installment

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.

kung naay mu adto sa inyo manuktok sa pultahan

magpalimos hatagan nimo No crime. Kung nia maglakawlakaw sa aseras, di ba sa bridge unya naay mangayo nimo
hatagan nimo, what is the crime committed? Abetting
mendicancy thats 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.

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.

We might as well discuss 7610.

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.
Whats 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. Ill 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
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,

R.A. 7610
Special 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 bugalbugali kay di mo develop ang bata makuan na siya ma
inferior hangtud ma dako. Thats 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.

Criminal Law Review 2nd Installment

10

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.

under 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.

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.

Chapter Two: MALFEASANCE AND MISFEASANCE IN

OFFICE

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, thats 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 Im not a public
officer, number 1 I am paying tuition fee. Number 2, Im
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

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; theyre
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.
Criminal Law Review 2nd Installment

11

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 attorneys
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,
thats 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? Its 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 its not bribery di ba? Its 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?
Thats 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
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,
thats 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 Im not a public officer, Im 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.

Criminal Law Review 2nd Installment

12

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 bastaso 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, thats 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 its 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 its 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 thats 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
Lets 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.
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.
Its 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

Criminal Law Review 2nd Installment

13

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. Its 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
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

Criminal Law Review 2nd Installment

14

guardians and executors with respect to the property

belonging to their wards or estate.

negligence, permitted another person to take

them.

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

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.

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, -xxxIf 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, its not the nomenclature, its 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 property
b) 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 officer
b) 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

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.
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.

Criminal Law Review 2nd Installment

15

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.
1.
2.
3.
4.

Elements:
That the offender is a public officer;
That there is a public fund or property under his
administration;
That such public fund or property has been
appropriated by law or ordinance;
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 thats 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.

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, giingnan 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.

2.

3.

4.

5.

6.

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
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
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
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
Any act of injecting intra-veinously or intramuscularly, 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
If a dangerous drug is seized, within what period
should it be delivered to the PDEA or crime
laboratory for chemical examination?
24 HOURS

There are two acts punished:

Criminal Law Review 2nd Installment

16

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

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.
prisoner

by

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

Three crimes: conniving, evasion and escape.

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

So it is negligence approximating malice. If there

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

final

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, hes 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.

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.
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? Its
malversation.
Reason why taking of mail by postmaster is

Criminal Law Review 2nd Installment

17

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.
Its the nature of the office or position which is important,
its 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 persons 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
malversation.
1. If he conspires with a public officer.

the

crime

of

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 its 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 its the law which is
important not the discretion of the public officer. In
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

Criminal Law Review 2nd Installment

18

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
theyre 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 pagpawng 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 theres 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 singgitsinggitun 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 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

Criminal Law Review 2nd Installment

19

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 hes 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 iinvestigate 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
offenders 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 ininterest 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.

Criminal Law Review 2nd Installment

20

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 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? Thats 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 giconilingus. 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 were going to study R.A. 3019 antigraft, 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 GOCCs. 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, giassign 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

Criminal Law Review 2nd Installment

21

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
bribery, yes of course, way labot ang Supreme Court kay
ang Supreme Court is not a triar of facts.
PCGG
vs.
SandiganbayanSandigan
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 Ombudsmans 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. Sandiganviolations 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. Its not the salary when the crime committed is in
relation to office. So, lets 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 Ombudsmans 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.

Criminal Law Review 2nd Installment

22

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
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 officials 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 taxpayers
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), theres a
phrase x x x whether classified or unclassified or exempt

Criminal Law Review 2nd Installment

23

service x x x. The words: classified or unclassified or

exempt service has been reclassified into career and noncareer 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 Doctrine
Re-election of public official condones administrative guilt
only, but theres 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.
(Judge Paredes asks if the jurisdiction
Sandiganbayan and Ombudsman has been discussed)

of

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 PRESUSPENSION 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 courts 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 presuspension 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, youll 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 strong
2. Charge involves Dishonesty, Oppression, Gross
Misconduct or Neglect
3. Charge would warrant removal from the service
4. Respondents 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 AntiGraft, 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.

Criminal Law Review 2nd Installment

24

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

What is the meaning of receiving gift in both

sub-paragraphs B & C in RA 3019?

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.

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) 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 officer
2. Requesting/receiving
3. In connection with a contract or transaction
4. In his official capacity
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 officer
2. Requesting/receiving
3. Gift/ present/ other pecuniary or material
benefit
4. 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

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.

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 officer
2. accepting or having member of family accept
employment in a private enterprise
3. with pending official business with the
accused
4. 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 government
2. 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 partiality
2. evident bad faith
3. 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

Criminal Law Review 2nd Installment

25

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.
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.

CRIM 13
Additional Notes: Anti-Graft
persons.

The

law

covers

public

officers

and

private

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. Thats the Arias doctrine. I

Criminal Law Review 2nd Installment

26

repeat, the exception is if there is clear and convincing

evidence of conspiracy.

committee, not his favorable vote or participation that

may render him liable.

(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 accuseds
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.]

(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.

(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.

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.

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
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, its 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 officers membership in the approving

(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.

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

Criminal Law Review 2nd Installment

27

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 thats 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,
thats 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
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--vis AntiMoney 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?
Whats 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?
Beroa
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. Thats 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

Criminal Law Review 2nd Installment

28

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 madisbar. 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.
(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
officials and employees 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
dont 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 wont 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

Criminal Law Review 2nd Installment

29

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 vicepresident 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 doesnt the Ombudsman disclose the
SALN? Why is it the they wont release it? Because thats
the order of Merciditas Gutierrez to protect government
officials under the Arroyo regime.], their assets, liabilities,
net worth and financial and business interests including
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.

Criminal Law Review 2nd Installment

30

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 its single act, that is not plunder. Its
already settled. The case is Estrada v. Sandiganbayan. So
I repeat, if its 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 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 [Im
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. Mucommit 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, its plunder. Pareha na sa antimoney 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 gienumerate. So kinhanglan na ug amendment.]
Which court has jurisdiction? Of
Sandiganbayan. Penalty? Reclusion perpetua.

course,

Now, relative to cases under plunder, we have

plenty in our notes.

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
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.

Criminal Law Review 2nd Installment

31