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CRIMINAL LAW II BLOCK 1‐K AY 2011‐2012 RECITATION AND LECTURE NOTES FROM THE CLASSES OF PROFESSOR MAXIMO AMURAO SAN BEDA COLLEGE OF LAW MENDIOLA, MANILA In Loving Memory of Marvin ‘Mar...
CRIMINAL LAW II BLOCK 1‐K AY 2011‐2012
RECITATION AND LECTURE NOTES FROM THE CLASSES OF PROFESSOR MAXIMO AMURAO SAN BEDA COLLEGE OF LAW MENDIOLA, MANILA
In Loving Memory of Marvin ‘Marvs’ P. Reglos – Block mate, Brother and Friend
CRIMINAL LAW II 2 K notes
Q: who may commit treason? Filipinos and aliens residing within the country Q: if the offender is a Filipino Citizen, where may he commit treason? Anywhere Q: So Filipinos who commit treason abroad may be held criminally liable under Philippine laws? Yes Q: Does this not violate the principle of territoriality? It does Q: What is the principle of territoriality? The penal laws of a State extend only as far as its territory Philippine penal laws punish crimes committed only within Philippine territory Q: Is there a conflict between the principle of territoriality and the fact that a Filipino who commits treason abroad may be liable under Philippine laws? Yes, there is. Q: How would you then resolve the conflict? State your legal bases. 1. Under par.5, art.2 of the RPC, treason is a crime against national security. It falls within the exceptions to the doctrine of territoriality. 2. Art.114 uses the phrase ‘Any Filipino citizen who levies war against the Philippines or adheres to her enemies, giving them aid and comfort within the Philippines or elsewhere’ Q: What’s the principle behind the fact that a Filipino Citizen, as opposed to an alien, may be held liable for treason even if he happens to commit it outside Philippine shores? 1. Because treason is a crime against national security and the State 2. and his CITIZENSHIP requires him to owe permanent allegiance to his State Q: As far as the alien is concerned, where may he commit treason? Only within the Philippines Q: Why is that? Because the ‘Treason’ he commits is treason against the host state, and he may only commit it during his actual residence within that state. Q: Doesn’t an alien residing in the Philippines owe the state his allegiance, too? Yes, he does. But the allegiance he owes to the state is temporary. Q: What do you mean by ‘temporary’? He only owes it to the state during his actual residence there, in return for the protection he receives from the state. Q: How long does he (the alien) have to stay in the Philippines in order to be held liable for the Commission of treason? Any length of time would suffice for the liability to attach. Q: Even if he stays for only a day and commits treason within that day? Yes, even then. Q: But doesn’t ‘residence’ entail a longer period of time?
H I R Y U K I M I K O O K U B O
ART. 114 TREASON
CRIMINAL LAW II 3 K notes
*NB: ‘residence’ here does not connote any definite length of time. The raison de etre of the law is to make any alien who betrays the state liable. Theoretically, even if he stays for an hour, and commits treason within that hour, he may still be held liable. What is meant by ‘residence’ is the stay of the alien within the country, during which stay he shares our resources, and the protection afforded to us by the State. Q: What if the alien was a former Japanese citizen when he committed treason, and then he becomes Naturalized. May he still be held liable? Yes. Q: How is treason committed? 1. By levying war against the government 2. By adhering to her (the Philippines’) enemies, giving them aid and comfort Q: Treason in the first mode (Levying war). How is this committed? Through the assembling of persons for the purpose of delivering the government to a foreign country Q: What are the elements of committing treason by levying war against the government? 1. There is an assembling of persons 2. The purpose is to execute a treasonable design against the government Q: In levying war, should there be an actual military encounter with the government forces? Not necessarily. The mere assembly of persons for the purpose of executing a treasonable design is already made punishable. Q: Can this be committed by a single person? No. The law speaks of ‘men’. There is a presupposition of the plurality of offenders. Q: Is it necessary that this assembly of men be armed? No, the law does not qualify. Q: Supposing the Philippine government was at war with Japan. We were all unarmed inside this classroom and were discussing ways and means of effectively delivering the government into the hands of a foreign power. May we be held liable for treason? Yes. There is compliance with all the elements of levying war against the government. Q: Treason in the 2nd mode (adhering to the enemies and giving them aid and comfort), does the ‘adherence’ have to be a physical act? Yes, it does. Q: What do you mean by ‘adhere’? Favouring the enemy either mentally, psychologically, or emotionally. Q: If that’s the case, then you mean that mere adherence – the favouring of the enemy mentally – is punishable? No. Mere mental adherence is not punishable. The adherence has to be coupled with a physical, overt act. Adherence is qualified by the phrase ‘giving them aid and comfort’. Q: What do you mean by ‘giving them aid’? The act of strengthening or aiding to strengthen the enemy The act of weakening or aiding to weaken the Philippines *NB: note the bipolar consequence. You aid the enemy, you weaken our defence.
H I R Y U K I M I K O O K U B O
Not in this case. ‘Residence’ as contemplated by the provision on treason is not synonymous to ‘residence’ contemplated by civil law. The alien may be held liable even if his ‘residence’ within the country is only for a day.
CRIMINAL LAW II 4 K notes
Q: Supposing during that same occupation you were a merchant engaged in the selling of weapons. You had transactions with the Japanese involving those weapons. Is this treasonous? Yes. Arming them augments their capability for war and is analogous to adhering to them and giving them aid or comfort. Q: How is ‘adherence’ proven? It may be implied by the nature of the act. Q: Suppose that you were engaged in the transportation business. Japanese hired your buses to transport their troops to another province. Are you liable? Yes. The act directly strengthens the enemy. Q: Suppose you were a rice dealer and the Japanese bought rice from you. Are you liable? No. The purpose here is purely commercial. *NB: unless I exclusively supply it to them. Q: Why not? Won’t the selling of rice to them operate to strengthen them? It will, but there is no adherence on my part. Aid or comfort must be extended to the enemies in their capacity as enemies, not as regular or paying customers or individuals. Q: And if you were supplying the Japanese troops with comfort women? I will not be liable. This does not aid them in war. Q: Supposing you performed an act of duty in favour of the enemy government (i.e.: serving as an official under their regime), will you be liable? It depends. If the position is a highly‐responsible one (think: policy‐determining), I am liable. If the duty contemplated is purely a ministerial one, I am not liable. Q: In the prosecution for treason, what is necessary to secure a conviction? 1. The testimony of AT LEAST TWO witnesses to the SAME overt act or 2. The confession of the accused of his guilt in the commission of the crime Q: How is compliance with the with the 2‐witness rule achieved? 1. By the presentation of at least 2 witnesses who testify to the same overt act AND 2. These 2 witnesses’ testimonies must be lent credence by the court *NB: If you present 2 witnesses, but only one is believed, there is no compliance. The two requirements must concur. Q: Is it necessary that those 2 witnesses testify to the same overt act? Yes Q: Why? (Ah, the killer question. 3 rounds of shotgun recits for us here, mates. Be careful) Because… 1. The law requires it 2. The seriousness of the offense of treason and its corresponding afflictive penalties need to be proven by evidence greater than proof beyond reasonable doubt. 3. The crime of treason is a continuing crime composed of many acts 4. Treason is committed in time of war and under abnormal circumstances 5. To prevent to miscarriage of justice
H I R Y U K I M I K O O K U B O
Q: Supposing that during the Japanese occupation, certain Filipinos were moving around, convincing the people that the principles of the Japanese government were better than those of the Philippines. Is this treasonous? No. There is only adherence in this case. Adherence and giving aid or comfort must concur to consummate the crime of treason in the second mode.
CRIMINAL LAW II 5 K notes
*NB: Treason is the only crime where proof beyond reasonable is not sufficient. Q: Is a plea of ‘guilty’ mitigating in treason? Yes, it is. Q: When should this plea be made? During Arraignment, for it to be mitigating under Article 13, par.7 *NB: During arraignment, the contents of the information are read to the accused in a language Or dialect known to him. He is asked whether or not he understands the charges levied against Him, then he is asked how he pleads: guilty or not guilty. THIS is the ‘confession of guilt’ contemplated by Art.13, par.7 Q: What is the legal effect of a plea of guilty? It serves as an admission by the accused of the veracity of ALL the facts and charges alleged in the information Q: If the accused pleads guilty, does the prosecution still need to present evidence against him to prove his culpability? Not anymore Q: What about the defence? What proof may it present, assuming the accused pleads guilty? The defence may present evidence to mitigate or justify the act. *NB: this is known as a reverse trial. Defence presents evidence of mitigation, Prosecution refutes the evidence of the defence. Q: If during arraignment, the accused is asked if he understands the charges read to him and he says no, what should the court do? Exert effort to make him understand (think: translators, sign language experts etc.) Q: And if after those efforts, he still does not understand, may the court proceed with trial? No. *NB: to proceed at this stage would violate the accused’s constitutional right to be informed of the nature and cause of the accusations against him. (Btw this may sound ridiculous, but there you have it.) Q: If the accused pleads guilty at another time, will it still be considered mitigating? Not anymore. The plea of guilty must be done in open court before the prosecution presents its Evidence Q: Does the two‐witness rule apply in proving adherence? No. Adherence may be proved by the testimony of only one witness. NOTES: *Treason, definition: a breach of allegiance to the government, committed by a person who owes allegiance to it. *Allegiance: the obligation of fidelity and obedience owed by a citizen to his state, and the alien to the host state. It may be permanent or temporary.
H I R Y U K I M I K O O K U B O
Q: You mean to say ‘proof beyond reasonable doubt’ is not enough? Yes, it isn’t enough. There must be compliance with the 2‐witness rule.
CRIMINAL LAW II 6 K notes
*The following circumstances are inherent in treason and are therefore not aggravating: evident premeditation, abuse of superior strength and treachery. *Treason is a war crime. It cannot be committed during times of peace. It is, however, not necessary that there be a formal declaration of war. *Treason cannot be proved by circumstantial evidence or by extra‐judicial confessions *There is no such thing as ‘attempted treason’. The mere attempt to commit it is punishable. *Treason absorbs other common crimes committed in furtherance of its goals. It may not be complexed with them.
ART. 115 CONSPIRACY AND PROPOSAL TO COMMIT TREASON Q: What are the elements? a. In the time of war b. 2 or more persons come to an agreement to – 1. Levy war against the government 2. Adhere to the enemies and give them aid or comfort c. They decide to commit it Q: Can a foreigner be held liable for conspiracy or proposal to commit treason? Yes. Q: Elements of Proposal to commit treason a. In time of war b. A person who has decided to levy war against the government, or to adhere to the enemies to give them aid and comfort proposes its execution to some other person/s NOTES: *Mere agreement and decision to commit ~ consummates the crime *Mere proposal, even without acceptance, is punishable too. If the other person accepts, the crime is already conspiracy to commit treason.
Q: Does mere silence make a person criminally liable? Generally, No. Q: Are there any exceptions to the rule? Yes. When the law specifically provides. Q: Why then is failure to disclose knowledge of a conspiracy to commit treason punishable? 1. Because the very existence of the state itself threatened 2. Because conspiracy to commit treason is mired in secrecy, hence the need for disclosure (and a mechanism to ensure disclosure). Q: Why is there no punishment for failure to disclose knowledge of actual treason? Because in full blown treason, the overt acts are plain for the government to see.
H I R Y U K I M I K O O K U B O
ART. 116 MISPRISION OF TREASON
CRIMINAL LAW II 7 K notes
Q: May a foreigner be held liable for misprision of treason? No. The offender must be a Filipino citizen owing full and permanent allegiance to the Republic. Q: Does this violate the principle of generality? Yes, it does. Q: What is the principle of generality? All persons within a state’s criminal jurisdiction are equally liable for acts committed against That state’s laws. Q: How then would you resolve the conflict? The principle of generality has certain exceptions: 1. Treaties 2. The law of nations (international law) 3. Express provisions to this effect in our own laws Q: What is concealed in misprision in treason? Knowledge of the conspiracy to commit treason Q: Who are the authorities to whom this knowledge should be disclosed? Mayors, Judges, City Fiscals/Prosecutors Q: Supposing you have knowledge of a conspiracy to commit treason. You did not disclose it to the authorities because to your mind, they are all corrupt. You disclosed the information instead to the Chief of Staff. Are you liable? No. There is no intention to keep the secret. No criminal intent Q: How soon should the disclosure be made? Within a reasonable period. The actual time depends on the sound discretion of the court. Q: The accused is prosecuted for MT, it was alleged in the information that, being a Filipino citizen, he owed permanent allegiance to the Philippines and yet, having knowledge of persons who were armed and who performed acts with the view of overthrowing the government, he did not disclose the same. May he be held liable? No. The knowledge he had was knowledge of full‐blown treason already, and not a mere conspiracy. Q: The accused is a resident of a city, has knowledge of a conspiracy to commit treason, but refused to disclose the same to the proper authorities because they are among the most corrupt. He disclosed his knowledge to the AFP. Is he liable? No. There was no intent to NOT disclose the information he had.
NOTES: *Art.116 does not apply when the crime of treason is already committed because Art.116 speaks of ‘knowledge of conspiracy against… xxx’ *The offender in Art.116 is punished as an accessory (penalty: 2 degrees lower than that for principals in treason), although he is a principal in the crime of misprision of treason. *Art.116 is an exception to the rule that mere silence does not make a person criminally liable.
H I R Y U K I M I K O O K U B O
Q: Will the two‐witness rule apply to the prosecution of this crime? No. This is a distinct offence from that of reason.
CRIMINAL LAW II 8 K notes
Q: How is this committed? 1. By entering without authority therefor, any warship, fort or naval or military establishment or reservation to obtain any information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines; or 2. By disclosing to the representatives of a foreign nation the contents of the articles, data, or information referred to in par.1, art.117, which the offender had in his possession by reason of the public office he holds Q: Under the 1st mode of commission, who may be held liable? Any person Q: You mean to say that in this first manner of commission, liability is not conditioned by citizenship? Yes Q: When is the crime consummated? When the offender has entered any of the enumerated places in par.1, art.117 and has taken the articles, data or information with intent to gain the same Q: Is it necessary that the offender possess intent to gain? Yes, intent is necessary. Refer to the phrasing: ‘for the purpose of… xxx’. Q: Is it necessary that he succeeds? No, it isn’t. Mere entrance with purpose to obtain classified information is enough for liability to attach Q: Supposing the US donated armaments, etc. to the RP for us to use against Malaysia. These arms were stored in a warehouse in Nueva Ecija. A newspaper reporter, without permission from the government, entered the place in order to take pictures. On his way out, he was apprehended. Is he liable? Yes. The elements of espionage in the first mode are complete. Q: What if he chartered a private helicopter to take aerial pictures? Liable. Q: Under the RPC? No, the law that governs in this case is CA 616 Q: What if he climbed a tree to get a better view? Liable. (CA 616) Q: Suppose a journalist who was accosted told the authorities that he only wanted to take pictures of modern war machines he previously read about in the Manila Bulletin? No. The information he intends to obtain is no longer confidential. It has been declassified. (think: publication in a newspaper) Q: What is the second manner of commission? By disclosing to the representatives of a foreign nation the contents of the articles, data or information referred to in par.1, art.117, which the offender had in his possession by reason of his public office. Q: A high‐ranking official has possession of classified information. In order to impress a foreign beauty candidat...