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Book IICrimes and PenaltiesTITLE I. CRIMES AGAINST NATIONAL SECURITYAND THE LAW OF NATIONSCrimes against national security Treason (Art. 114); Conspiracy and proposal to commit treason (Art. 115); Misprision of treason (Art. 116); and Espionage (Art. 117). Crimes against the law of nations Inciting ...

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Book II Crimes and Penalties TITLE I. CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS Crimes against national security 1. Treason (Art. 114); 2. Conspiracy and proposal to commit treason (Art. 115); 3. Misprision of treason (Art. 116); and 4. Espionage (Art. 117). Crimes against the law of nations 1. Inciting to war or giving motives for reprisals (Art. 118); 2. Violation of neutrality (Art. 119); 3. Corresponding with hostile country (Art. 120); 4. Flight to enemy's country (Art. 121); 5. Piracy in general and mutiny on the high seas (Art. 122).

3. 4.

Intent is to deliver the country in whole or in part to the enemy; and Collaboration with foreign enemy or some foreign sovereign

Two ways of proving treason 1. Testimony of at least two witnesses to the same overt act; or 2. Confession of accused in open court.

Article 115. Treason

Conspiracy and Proposal to Commit

Elements of conspiracy to commit treason 1. There is a war in which the Philippines is involved; 2. At least two persons come to an agreement to – a. levy war against the government; or b. adhere to the enemies, giving them aid or comfort; 3. They decide to commit it. Elements of proposal to commit treason 1. There is a war in which the Philippines is involved; 2. At least one person decides to – A. LEVY WAR AGAINST THE GOVERNMENT; OR b.

The crimes under this title can be prosecuted even if the criminal act or acts were committed outside the Philippine territorial jurisdiction. However, prosecution can proceed only if the offender is within Philippine territory or brought to the Philippines pursuant to an extradition treaty. This is one of the instances where the Revised Penal Code may be given extra-territorial application under Article 2 (5) thereof. In the case of crimes against the law of nations, the offender can be prosecuted whenever he may be found because the crimes are regarded as committed against humanity in general. Almost all of these are crimes committed in times of war, except the following, which can be committed in times of peace: (1)

Espionage, under Article 114 – This is also covered by Commonwealth Act No. 616 which punishes conspiracy to commit espionage. This may be committed both in times of war and in times of peace. Inciting to War or Giving Motives for Reprisals, under Article 118 – This can be committed even if the Philippines is not a participant. Exposing the Filipinos or their properties because the offender performed an unauthorized act, like those who recruit Filipinos to participate in the gulf war. If they involve themselves to the war, this crime is committed. Relevant in the cases of Flor Contemplacion or Abner Afuang, the police officer who stepped on a Singaporean flag. Violation of Neutrality, under Article 119 – The Philippines is not a party to a war but there is a war going on. This may be committed in the light of the Middle East war.

(2)

(3)

Article 114. Treason Elements 1. Offender is a Filipino or resident alien; 2. THERE IS A WAR IN WHICH THE PHILIPPINES IS INVOLVED; 3.

Offender either – A.

LEVIES WAR AGAINST THE GOVERNMENT; OR

b.

adheres to the enemies, giving them aid or comfort within the Philippines or elsewhere

3.

adhere to the enemies, giving them aid or comfort; He proposes its execution to some other persons.

Article 116. Misprision of Treason Elements 1. Offender owes allegiance to the government, and not a foreigner; 2. He has knowledge of conspiracy to commit treason against the government; 3. He conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province in which he resides, or the mayor or fiscal of the city in which he resides.

While in treason, even aliens can commit said crime because of the amendment to the article, no such amendment was made in misprision of treason. Misprision of treason is a crime that may be committed only by citizens of the Philippines. The essence of the crime is that there are persons who conspire to commit treason and the offender knew this and failed to make the necessary report to the government within the earliest possible time. What is required is to report it as soon as possible. The criminal liability arises if the treasonous activity was still at the conspiratorial stage. Because if the treason already erupted into an overt act, the implication is that the government is already aware of it. There is no need to report the same. This is a felony by omission although committed with dolo, not with culpa. The persons mentioned in Article 116 are not limited to mayor, fiscal or governor. Any person in authority having equivalent jurisdiction, like a provincial commander, will already negate criminal liability. Whether the conspirators are parents or children, and the ones who learn the conspiracy is a parent or child, they are required to report the same. The reason is that although blood is thicker than water so to speak, when it comes to security of the state, blood relationship is always subservient to national security. Article 20 does not apply here because the persons found liable for this crime are not considered accessories; they are treated as principals. In the 1994 bar examination, a problem was given with respect to misprision of treason. The text of the provision simply refers to a conspiracy to overthrow the government. The examiner failed to note that this crime can only be committed in times of war. The conspiracy adverted to

Requirements of levying war 1. Actual assembling of men; 2. To execute a treasonable design by force;

must be treasonous in character. In the problem given, it was rebellion. A conspiracy to overthrow the government is

2 a crime of rebellion because there is no war. Under the Revised Penal Code, there is no crime of misprision of rebellion. Article 117. Espionage Acts punished 1. By entering, without authority therefore, a warship, fort or naval or military establishment or reservation to obtain any information, plans, photograph or other data of a confidential nature relative to the defense of the Philippines; Elements a. Offender enters any of the places mentioned; b. He has no authority therefore; c. His purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines. 2.

By disclosing to the representative of a foreign nation the contents of the articles, data or information referred to in paragraph 1 of Article 117, which he had in his possession by reason of the public office he holds. Elements a. Offender is a public officer; b. He has in his possession the articles, data or information referred to in paragraph 1 of Article 117, by reason of the public office he holds; c. He discloses their contents to a representative of a foreign nation.

Commonwealth Act No. 616 – An Act to Punish Espionage and Other Offenses against National Security Acts punished 1. Unlawfully obtaining or permitting to be obtained information affecting national defense; 2. Unlawful disclosing of information affecting national defense; 3. Disloyal acts or words in times of peace; 4. Disloyal acts or words in times of war; 5. Conspiracy to violate preceding sections; and 6. Harboring or concealing violators of law. Article 118. Inciting to War or Giving Motives for Reprisals Elements 1. Offender performs unlawful or unauthorized acts; 2. The acts provoke or give occasion for – a. a war involving or liable to involve the Philippines; or b. exposure of Filipino citizens to reprisals on their persons or property. Article 119. Violation of Neutrality Elements 1. There is a war in which the Philippines is not involved; 2. There is a regulation issued by a competent authority to enforce neutrality; 3. Offender violates the regulation. When we say national security, it should be interpreted as including rebellion, sedition and subversion. The Revised Penal Code does not treat rebellion, sedition and subversion as crimes against national security, but more of crimes against public order because during the time that the Penal Code was enacted, rebellion was carried out only with bolos and spears; hence, national security was not really threatened. Now, the threat of rebellion or internal wars is serious as a national threat. Article 120. Correspondence with Hostile Country Elements 1. It is in time of war in which the Philippines is involved; 2. Offender makes correspondence with an enemy

3.

The correspondence is either – a. prohibited by the government; b. carried on in ciphers or conventional signs; or c. containing notice or information which might be useful to the enemy.

Article 121.

Flight to Enemy's Country

Elements 1. There is a war in which the Philippines is involved; 2. Offender must be owing allegiance to the government; 3. Offender attempts to flee or go to enemy country; 4. Going to the enemy country is prohibited by competent authority. In crimes against the law of nations, the offenders can be prosecuted anywhere in the world because these crimes are considered as against humanity in general, like piracy and mutiny. Crimes against national security can be tried only in the Philippines, as there is a need to bring the offender here before he can be made to suffer the consequences of the law. The acts against national security may be committed abroad and still be punishable under our law, but it can not be tried under foreign law. Article 122. Piracy in general and Mutiny on the High Seas or in Philippine Waters Acts punished as piracy 1. Attacking or seizing a vessel on the high seas or in Philippine waters; 2. Seizing in the vessel while on the high seas or in Philippine waters the whole or part of its cargo, its equipment or personal belongings of its complement or passengers.

Elements of piracy 1. The vessel is on the high seas or Philippine waters; 2. Offenders are neither members of its complement nor passengers of the vessel; 3. Offenders either – a. attack or seize a vessel on the high seas or in Philippine waters; or b. seize in the vessel while on the high seas or in Philippine waters the whole or part of its cargo, its equipment or personal belongings of its complement or passengers; 4. There is intent to gain. Originally, the crimes of piracy and mutiny can only be committed in the high seas, that is, outside Philippine territorial waters. But in August 1974, Presidential Decree No. 532 (The Anti-Piracy and AntiHighway Robbery Law of 1974) was issued, punishing piracy, but not mutiny, in Philippine territorial waters. Thus came about two kinds of piracy: (1) that which is punished under the Revised Penal Code if committed in the high seas; and (2) that which is punished under Presidential Decree No. 532 if committed in Philippine territorial waters. Amending Article 122, Republic Act No. 7659 included therein piracy in Philippine waters, thus, pro tanto superseding Presidential Decree No. 532. As amended, the article now punishes piracy, as well as mutiny, whether committed in the high seas or in Philippine territorial waters, and the penalty has been increased to reclusion perpetua from reclusion temporal. But while under Presidential Decree No. 532, piracy in Philippine waters could be committed by any person, including a passenger or member of the complement of a vessel, under the amended article, piracy can only be committed by a person

country or territory occupied by enemy troops;

who is not a passenger nor member of the

3 complement of the vessel irrespective of venue. So if a passenger or complement of the vessel commits acts of robbery in the high seas, the crime is robbery, not piracy. Note, however, that in Section 4 of Presidential Decree No. 532, the act of aiding pirates or abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any person who knowingly and in any manner aids or protects pirates, such as giving them information about the movement of the police or other peace officers of the government, or acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; or who directly or indirectly abets the commission of piracy. Also, it is expressly provided in the same section that the offender shall be considered as an accomplice of the principal offenders and punished in accordance with the Revised Penal Code. This provision of Presidential Decree No. 532 with respect to piracy in Philippine water has not been incorporated in the Revised Penal Code. Neither may it be considered repealed by Republic Act No. 7659 since there is nothing in the amendatory law is inconsistent with said section. Apparently, there is still the crime of abetting piracy in Philippine waters under Presidential Decree No. 532.

In piracy, the criminal intent is for gain. Article 123. Qualified Piracy Elements 1. The vessel is on the high seas or Philippine waters; 2. Offenders may or may not be members of its complement, or passengers of the vessel; 3. Offenders either – a. attack or seize the vessel; or b. seize the whole or part of the cargo, its equipment., or personal belongings of the crew or passengers; 4. The preceding were committed under any of the following circumstances: a. whenever they have seized a vessel by boarding or firing upon the same; b. whenever the pirates have abandoned their victims without means of saving themselves; or c. whenever the crime is accompanied by murder, homicide, physical injuries or rape.

If any of the circumstances in Article 123 is present, piracy is qualified. Take note of the specific crimes involve in number 4 c (murder, homicide, physical injuries or rape). When any of these crimes accompany piracy, there is no complex crime. Instead, there is only one crime committed – qualified piracy. Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and cannot be punished as separate crimes, nor can they be complexed with piracy. Although in Article 123 merely refers to qualified piracy, there is also the crime of qualified mutiny. Mutiny is qualified under the following circumstances: (1)

Considering that the essence of piracy is one of robbery, any taking in a vessel with force upon things or with violence or intimidation against person is employed will always be piracy. It cannot co-exist with the crime of robbery. Robbery, therefore, cannot be committed on board a vessel. But if the taking is without violence or intimidation on persons of force upon things, the crime of piracy cannot be committed, but only theft. PIRACY is a crime against humanity (hostes humanes generis) Questions & Answers Could theft be committed on board a vessel?  Yes. The essence of piracy is one of robbery. Mutiny is the unlawful resistance to a superior officer, or the raising of commotions and disturbances aboard a ship against the authority of its commander. Elements of mutiny 1. The vessel is on the high seas or Philippine waters; 2. Offenders are either members of its complement, or passengers of the vessel; 3. Offenders either – a. attack or seize the vessel; or b. seize the whole or part of the cargo, its equipment, or personal belongings of the crew or passengers. Distinction between mutiny and piracy (1) As to offenders Mutiny is committed by members of the complement or the passengers of the vessel.

(2)

Piracy is committed by persons who are not members of the complement or the passengers of the vessel. As to criminal intent In mutiny, there is no criminal intent.

(2)

When the offenders abandoned the victims without means of saving themselves; or When the mutiny is accompanied by rape, murder, homicide, or physical injuries.

Note that the first circumstance which qualifies piracy does not apply to mutiny. Republic Act No. 6235 (The Anti Hi-Jacking Law) Anti hi-jacking is another kind of piracy which is committed in an aircraft. In other countries, this crime is known as aircraft piracy. Four situations governed by anti hi-jacking law: (1) usurping or seizing control of an aircraft of Philippine registry while it is in flight, compelling the pilots thereof to change the course or destination of the aircraft; (2) usurping or seizing control of an aircraft of foreign registry while within Philippine territory, compelling the pilots thereof to land in any part of Philippine territory; (3) carrying or loading on board an aircraft operating as a public utility passenger aircraft in the Philippines, any flammable, corrosive, explosive, or poisonous substance; and (4) loading, shipping, or transporting on board a cargo aircraft operating as a public utility in the Philippines, any flammable, corrosive, explosive, or poisonous substance if this was done not in accordance with the rules and regulations set and promulgated by the Air Transportation Office on this matter. Between numbers 1 and 2, the point of distinction is whether the aircraft is of Philippine registry or foreign registry. The common bar question on this law usually involves number 1. The important thing is that before the anti hi-jacking law can apply, the aircraft must be in flight. If not in flight, whatever crimes committed shall be governed by the Revised Penal Code. The law makes a distinction between aircraft of a foreign registry and of Philippine registry. If the aircraft subject of the hi-jack is of Philippine registry, it should be in flight at the time of

the hi-jacking. Otherwise, the anti hi-jacking law will not

4 manifest, the doors were still open. Hence, the anti hi-jacking law is not applicable. Instead, the Revised Penal Code shall govern. The crime committed was grave coercion or grave threat, depending upon whether or not any serious offense violence was inflicted upon the pilot.

apply and the crime is still punished under the Revised Penal Code. The correlative crime may be one of grave coercion or grave threat. If somebody is killed, the crime is homicide or murder, as the case may be. If there are some explosives carried there, the crime is destructive arson. Explosives are by nature pyro-techniques. Destruction of property with the use of pyro-technique is destructive arson. If there is illegally possessed or carried firearm, other special laws will apply. On the other hand, if the aircraft is of foreign registry, the law does not require that it be in flight before the anti hi-jacking law can apply. This is because aircrafts of foreign registry are considered in transit while they are in foreign countries. Although they may have been in a foreign country, technically they are still in flight, because they have to move out of that foreign country. So even if any of the acts mentioned were committed while the exterior doors of the foreign aircraft were still open, the anti hi-jacking law will already govern. Note that under this law, an aircraft is considered in flight from the moment all exterior doors are closed following embarkation until such time when the same doors are again opened for disembarkation. This means that there are passengers that boarded. So if the doors are closed to bring the aircraft to the hangar, the aircraft is not considered as in flight. The aircraft shall be deemed to be already in flight even if its engine has not yet been started. Questions & Answers 1.

The pilots of the Pan Am aircraft were accosted by some armed men and were told to proceed to the aircraft to fly it to a foreign destination. The armed men walked with the pilots and went on board the aircraft. But before they could do anything on the aircraft, alert marshals arrested them. What crime was committed? The criminal intent definitely is to take control of the aircraft, which is hi-jacking. It is a question now of whether the anti-hi-jacking law shall govern. The anti hi-jacking law is applicable in this case. Even if the aircraft is not yet about to fly, the requirement that it be in flight does not ...