SPECIAL PENAL LAW

UPDATED SPECIAL PENAL LAWS JUDGE OSCAR B. PIMENTEL Regional Trial Court, Branch 148, Makati City

SPL Notes | 2014 INDETERMINATE SENTENCE LAW (Act No. 4103 as amended by Act No. 4225)

APPLICATION OF INDETERMINATE SENTENCE LAW (ISL) - The Indeterminate Sentence Law does not apply to persons convicted of offenses punishable with reclusion perpetua. In People vs. Gabres, the Court explained that under the ISL: - the maximum term of the penalty shall be: o that which, in view of the attending circumstances, could be properly imposed' under the RPC and o the modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence o Ex. The fact that the amount involved exceeds 22K should not be considered in the initial determination of the IS penalty; it should be so taken as analogous to modifying circumstances in the imposition of the maximum term - the minimum term shall be: o within the range of the penalty next lower to that prescribed for the offense o the determination of the minimum penalty is left by law to the sound discretion of the court o it can be anywhere w/in the range of the penalty next lower w/o any reference to the periods into which it might be subdivided

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- The penalty next lower should be based on the penalty prescribed by the Code for the offense: o w/out first considering any modifying circumstance attendant to the commission of the crime. Example: - Penalty prescribed: prision correccional max to prision mayor min - Penalty next lower: prision correccional min to med - Thus minimum term: anywhere w/in 6 mos and 1 day to 4 years and 2 mos RELEVANCE OF MAXIMUM AND MINIMUM PERIODS - Maximum Period: Important for the imposition of accessory penalties. Also mitigating and aggravating circumstances is required to be considered ONLY in the imposition of the maximum term. - Minimum Period: Important for determination of eligibility for parole (the convict must serve the minimum period before he becomes eligible for parole) HOW TO APPLY THE ISL 1. First: Determine the penalty imposable by law 2. Second, Determine the existence of aggravating and mitigating circumstances o Aggravating: Apply the maximum period o Mitigating: Apply the minimum period o Both Aggravating and Mitigating are Present: Offset each other o Special Aggravating: Apply the maximum period regardless of the presence of mitigating circumstances o Privileged Mitigating: Apply such privileged mitigating before special aggravating 3. Third: Determine the minimum period - 1 degree lower from penalty prescribed by law for the offense 4. Fourth: Judge will exercise discretion in determining the IS which can be anywhere within the range of the penalty next lower ISL – APPLICABLE ALSO IN DRUG CASES - It applies to drug offenses PROVIDED:

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o Accused has NOT committed any other act which would put him w/in the exceptions to said law o the penalty to be imposed:  does not involve reclusion perpetua or death  BUT will exceed 1 year of imprisonment.

Section 1 of the ISL: “IF the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same" - This quoted portion refers to an offense under a special law wherein the penalty imposed was not taken from and is w/o reference to the RPC - This rule on IS for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 71 of the RPC, hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," - Such offense, although provided for in a special law, is now in the effect punished by and under the Revised Penal Code. PENALTY REQUIRED FOR APPLICABILITY OF ISL 1. The penalty must be divisible 2. Imprisonment must be one of the penalties 3. Imprisonment must exceed 1 year WHEN THE BENEFITS OF THE ISL ARE NOT APPLICABLE 1. Offenses punished by death or life imprisonment. 2. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art. 115). 3. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art. 139), or espionage (Art. 117). 4. Those convicted of piracy (Art. 122). 5. Habitual delinquents (Art. 62, par. 5). 6. Those who escaped from confinement or those who evaded sentence. 3

7. Those granted conditional pardon and who violated the terms of the same (Art. 159). 8. Those whose maximum period of imprisonment does not exceed one year. 9. Those who are already serving final judgment upon the approval of the Indeterminate Sentence Law. 10. Those offenses or crimes not punishable by imprisonment such as distierro and suspension. Note: Nos 2-4 are crimes against national security

RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE ISL - They are not disqualified to avail of the benefits of the law even if the crime is committed while he is on parole. NATURE OF RECLUSION PERPETUA: AN INDIVISIBLE PENALTY. - Hence, the penalty does not have any minimum, medium and maximum period JUDGMENT IMPOSING A WRONG PENALTY DOES NOT OBTAIN FINALITY - Ex. Penalty Imposed: 25 years of reclusion perpetua for the crime of rape - Such judgment is null and void because it imposed a non-existent penalty. - The court may nevertheless correct the penalty imposed, that is, reclusion perpetua, as it is merely performing an inherent duty

THE PENALTY OF RECLUSION PERPETUA IS DIFFERENT FROM LIFE IMPRISONMENT Reclusion Perpetua Carries accessory penalties

Life Imprisonment Does not carry any accessory penalty May be reduced by one or Cannot be so reduced. two degrees Has a duration of from 20 Does not have a fixed years and 1 day to 40 years duration or extent BUT may span the 4

natural life of the convict. RECLUSION PERPETUA AND LIFE IMPRISONMENT - GR: Cannot be inter-changed when imposed as penalty by law - EXC: People v. Priscilla Balasa : Rare case of application of RPC in a suppletory character despite the penalty being life imprisonment: “If the imposable penalty is life imprisonment to death and if the accused is entitled to a mitigating circumstance, the court should impose life imprisonment applying, in a suppletory character the RPC.” (GR No. 106357, 1998)

REASON WHY RECLUSION PERPETUA HAS A RANGE DESPITE THE SAME BEING INDIVISIBLE - IF reclusion perpetua was reclassified as a divisible penalty, then Art 63 of the RPC would lose its reason and basis for existence. - The imputed duration of 30 years of reclusion perpetua, only serves as the basis for determining the convict's eligibility: o for pardon or o for the application of the 3 fold rule in the service of multiple penalties. AN ACCUSED SENTENCE TO RECLUSION PERPETUA IS STILL ENTITLED TO THE REDUCTION OF HIS PREVENTIVE IMPRISONMENT - Either full or ¾ of his preventive imprisonment (imprisonment during trial) - Accused is still entitled to the full credit of his preventive imprisonment because Art 29 of the RPC does not distinguish between divisible and indivisible penalties. QUALIFIED THEFT: PENALIZED BY RECLUSION PERPETUA IF THE AMOUNT INVOLVED IS OVER 22K - Art 309 RPC, the maximum of the penalty for qualified theft is prision mayor to reclusion temporal. - Art 310 RPC, the penalty for the crime shall be 2 degrees higher than the specified in Art 309.

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- Art 74 RPC, In case the law prescribes a penalty higher than another given penalty, and if such higher penalty is death, the penalty shall be reclusion perpetua of 40 years with the accessory penalties of death under Art 40 RPC. - The accused shall not be entitled to pardon before the lapse of 40 years.

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THE PROBATION LAW (P.D. 968) and its AMENDMENTS

PROBATION, DEFINED: A disposition under which a defendant, after conviction and sentence, is subject to conditions imposed by the Court and under the supervision of a probation officer. PURPOSE OF PROBATION: a. To promote the correction and rehabilitation of an offender by providing him with personalized community based treatment; b. To provide an opportunity for his reformation and reintegration into the community; c. To prevent the commission of offenses. PETITION FOR PROBATION - Must be filed: o directly with the Court which sentenced the accused o w/in 15 days FROM date of promulgation of the decision convicting the accused (within the period to appeal) - Otherwise: o the judgment shall become final and o the accused shall be deemed to have waived his right to probation. EFFECT OF FILING OF PETITION FOR PROBATION: - Upon filing, the court shall suspend the execution of sentence. - Filing of a petition for probation shall be deemed a waiver of the right to appeal - In case an appeal is already filed, filing such petition shall be deemed a withdrawal of the appeal. PRIVILEGES GIVEN TO THE ACCUSED PENDING RESOLUTION OF THE PETITION FOR PROBATION - IF the accused, prior to the promulgation of decision of conviction is out on bail: o he may be allowed on temporary liberty under his bail filed in said case - IF he is under detention 7

o upon motion, he may be allowed temporary liberty, - IF he cannot post a bond: o He shall be released on a recognizance of a responsible member of a community who shall guarantee his appearance whenever required by the court. o IF he cannot be produced by such custodian on recognizance:  Custodian shall be asked to explain why he should not be cited for contempt  Summary hearing shall then be held  If custodian does not produce the accused or does not explain his failure – he shall be cited in contempt POST SENTENCE INVESTIGATION REPORT, DEFINED: A report of the Parole and Probation Officer after conducting post sentence investigation and interviews containing the circumstances surrounding the offense for which the petitioner was convicted. - Findings should be drawn FROM: court records, police records, statement of the defendant, aggrieved party or other persons who may know the accused and all other matters material to the petition. - Includes: The psychological and social information regarding the probationer; evaluation of the petitioner; suitability for probation; his potential for rehabilitation; - It shall recommend either: To deny or grant the probation o If granted, it shall recommend the program for supervision and suggested terms or conditions of probation “MANDATORY” CONDITIONS OF PROBATION 1. To present himself to the probation officer concerned for supervision within 72 hours from receipt of said order and 2. to report to the probation officer at least once a month during the period of probation. “OTHER” CONDITIONS OF PROBATION 1. Cooperate with a program of supervision; 2. Meet his family responsibilities; 3. Devote himself to a specific employment and not to charge said employment without prior written approval of the probation officer; 8

4. Comply with a program of payment of civil liability to the victim of his heirs; 5. Undergo medical, psychological or psychiatric examination and treatment and/or enter and remain in a specific institution, when required for that purposes; 6. Pursue a prescribed secular study or vocational training; 7. Attend or reside in a facility established for instruction or recreation of persons on probation; 8. Refrain from visiting houses of ill-repute; 9. Abstain from drinking intoxicating beverages to excess; 10. Permit the probation officer or an authorized social worker to visit his home and place of work; 11. Reside at premises approved by the court and not to change his residence w/o prior written approval; and 12. Satisfy any other condition related to the rehabilitation of the probationer and not unduly restrictive of his liberty or incompatible with his freedom of conscience. 13. Plant trees (see circular of the SC ) RULES ON OUTSIDE TRAVEL OF PROBATIONER A probationer who desires to travel outside the jurisdiction of the city or provincial probation officer, MUST SEEK THE PERMISSION OF: - IF for NOT more than 30 days: o The parole and probation officer - If for MORE than 30 days: o The parole and probation officer AS WELL as the court EFFECT OF APPEAL BY THE ACCUSED OF HIS CONVICTION IF the accused appeals his conviction: - For the purpose of totally reversing his conviction OR - EVEN if the appeal is only with respect to the penalty (on the ground that it is excessive or wrong or is probationable) He is deemed to have waived his right to probation. If already filed, then it is an abandonment of such petition for probation. CONFIDENTIALITY OF RECORDS OF PROBATION

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- GR: The investigation report and the supervision and history of a probationer: o shall be privileged and o shall not be disclosed directly or indirectly to anyone other than the probation administration or the court - EXC: Any government office may ask for the records of probation from the court or the administrator for its official use Note: The court which granted the probation or where the probation was transferred may allow the probationer or his lawyer to inspect such documents, whenever such disclosure may be desirable or helpful to them. Violation of Confidential Nature of Probation Reports (Sec 29, PD 968) Penalty: - imprisonment (6 months and 1 day TO 6 years) and - fine (hundred to 6K pesos) MODIFICATION OF CONDITION OR PERIOD OF PROBATION - The court, on motion, OR motu propio may modify the conditions or the period of probation as circumstances may warrant. DISQUALIFIED FROM UNDERGOING PROBATION 1. Those sentenced to serve a maximum term of imprisonment of more than 6 years. 2. Those convicted of any offense against the security of the state; 3. Those who have been previously convicted by final judgment of an offense punished by imprisonment of not less than one moth and one day and/or a fine of not less than P200.00; 4. Those who have been once on probation under the provisions of this decree. 5. Those convicted of RA 9156. 6. Those convicted of violation of election laws. From Other Notes: 7. Those who are already serving sentence at the time the substantive provisions of the decree became applicable 8. Those entitled to benefits under PD 603 or Child and Youth Welfare Code and related laws.

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9. Those who have perfected an appeal (probation and appeal are mutually exclusive remedies) Period of Probation IF sentence of Probation: shall NE 2 years imprisonment is NOT more than 1 year In all other case Probation: not to exceed 6 years; In case the penalty is Probation: not be less than fine the period of subsidiary imprisonment nor more than twice of the subsidiary imprisonment.

AMENDMENT TO SECTION 4 OF PD 968 The trial court may: - after it shall have convicted and sentenced a defendant, and - upon application by said defendant w/in the period to appeal, suspend the execution of the sentence AND place the defendant on probation for such period and upon such terms and conditions as it may deem best; PROVIDED that no application for probation shall be entertained or granted: - IF the defendant has perfected the appeal from the judgment of conviction.  Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.  An application for probation shall be filed with the trial court.  The filing of the application shall be deemed a waiver of the right to appeal.  An order granting or denying probation shall not be appealable Note: A person who was sentenced to destierro cannot apply for probation. Reason: it does not involved imprisonment or fine. (PD 1990) [JURISPRUDENCE] 11

UNDERLYING PHILOSOPHY OF PROBATION - The underlying philosophy is indeed one of liberality towards the accused. It is not served by a harsh and stringent interpretation of the statutory provisions. - Probation is taken towards the deterrence and minimizing of crime and the humanization of criminal justice. - The right of appeal should not be irrevocably lost from the moment a convicted accused files an application for probation. Appeal and probation spring from the same policy considerations of justice, humanity, and compassion. PROBATION IS NOT A RIGHT BUT A PRIVILEGE - Probation is a mere privilege and its grant rests solely upon the discretion of the court. This discretion is to be exercised primarily for the benefit of organized society and only incidentally for the benefit of the accused. - Even if a convicted person is not disqualified, the grant of probation is nevertheless not automatic nor ministerial; a petition for probation may be denied by the Court. MAIN CRITERION FOR DETERMINING WHO MAY BE GRANTED PROBATION - The main criterion: Based on the penalty imposed and NOT on the nature of the crime. - The reason given by a judge for denying a petition for probation that, "probation will depreciate the seriousness of the offense committed" would thus be writing into the law a new ground for disqualifying a first-offender from the benefits of probation. WHEN TO FILE A PETITION FOR PROBATION - Accused must file the petition: w/in the period for appeal. - IF the decision of conviction has become final and executory: the accused is barred from filing such petition. ORDER DENYING PROBATION IS NOT APPEALABLE: PROPER REMEDY IS CERTIORARI EFFECT OF FILING PETITION FOR PROBATION 1. Filing makes a judgment of conviction final. 12

o HOWEVER, the judgement is not executory until the petition for probation is resolved. 2. The filing of such petition is a waiver by the accused of his right to appeal the judgement of conviction. MULTIPLE CONVICTIONS IN SEVERAL CASES IS STILL PROBATIONABLE - IF THE PENALTY FOR EACH CONVICTION IS PROBATIONABLE - The law does not intend to sum up the penalties imposed but to take each penalty, separately and distinctly with the others. - Each crime committed on each date of each case, as alleged in the informations, even if one was charged of different crimes by different complainants, committed on separate days is probationable o IF each prison term imposed on petitioner was probationable. CUT OFF POINT OF PROBATION: MAXIMUM OF 6 YEARS IMPRISONMENT - Reason: Fixing the cut off point is based on the assumption that those sentenced to higher penalties pose too great a risk to society, not just because of their demonstrated capability for serious wrongdoing but because of the gravity and serious consequences of the offense they might further commit. - The Probation Law disqualifies: o Only those who have been convicted of grave felonies Art. 9 o and not necessarily those who have been convicted of multiple offenses in a single proceeding - Basis of the disqualification: is principally the gravity of the offense committed and the concomitant degree of penalty imposed. Note: Those sentenced to a maximum term NE 6 yrs are not generally considered callous, hard core criminals, and thus may avail of probation

VIOLATION OF RA 6425: A VALID CAUSE FOR DISMISSAL IN SERVICE IN THE GOVERNMENT DESPITE PROBATION - Drug-pushing as a crime: o Has been variously condemned as "an especially vicious crime” where offenders become a grave menace to the safety of law-abiding

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members of society while “peddlers of drugs” are actually agents of destruction and merchants of death. o It is a crime which involves moral turpitude and implies "every thing which is done contrary to justice, honesty, modesty or good morals". o Court and police records also show that a significant number of murders, rapes, and similar offenses have been committed by persons under the influence of dangerous drugs. - On Probation Law o Unlike pardon, probation does not obliterate the crime of which the person under probation has been convicted. o The reform and rehabilitation of the probationer cannot justify his retention in the government service. He may seek to reenter government service, but only after he has shown that he is fit to serve once again. o A public office is a public trust, which demands of those in its service the highest degree of morality. PETITIONER MAY STILL EXHORT OFFENDER TO PERFORM CERTAIN ACTS DESPITE HIS DISCHARGE FROM PROBATION: - Discharge from probation without any infraction of the attendant conditions and the various certifications attesting a convict’s righteous, peaceful and civic-oriented character prove that he has taken decisive steps to purge himself of his deficiency in moral character and atone for his crimes. - A convicted lawyer may be exhorted to conduct himself beyond reproach at all times and to live strictly according to his oath and the Code of Professional Responsibility. - A lawyer must continue with the assistance he has been giving to his community. As a lawyer he will now be in a better position to render legal and other services to the more unfortunate members of society. EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION – AN ORDER OF THE COURT IS REQUIRED - The mere expiration of the period for probation does not, ipso facto, terminate the probation. - Probation is not co-terminus with its period, there must be an order from the Court of final discharge, terminating the probation. 14

- If the accused violates the condition of the probation before the issuance of said order, the probation may be revoked by the Court NOTES FROM LECTURE: Procedure Upon Application for Probation 1. Order by the court to decide on the application 2. Comment of prosecutor not mandatory 3. Hearing in the application shall be conducted especially upon opposition of the prosecution 4. A post-sentence investigation shall be made and be submitted w/in 60 days to the court

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BATAS PAMBANSA BLG. 22 BOUNCING CHECKS LAW

ACTS PUNISHABLE IN BP 22 a. any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank, for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds, or credit, or would have been dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment. b. Any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety days from date appearing thereon, for which reason, it is dishonored by the drawee bank. c. Any person who issue any check whose account already closed whether the drawee knows that his account is closed or not. HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22 To establish her guilt, it is indispensable that the checks she issued for which she was subsequently charged, be offered in evidence because the gravamen of the offense charged is the act of knowingly issuing a check with insufficient funds. Clearly, it was error to convict complainant on the basis of her letter alone. Nevertheless, despite this incorrect interpretation of a rule on evidence, we do not find the same as sufficiently constitutive of the charges of gross ignorance of the law and of knowingly rendering an unjust decision. Rather, it is at most an error in judgment, for which, as a general rule, he cannot be held 16

administratively liable. In this regard, we reiterate the prevailing rule in our jurisdiction as established by current jurisprudence. (Gutierrez v Pallatao; 8/8/98)

NOTICE, AN INDISPENSABLE REQUISITE FOR PROSECUTION Section 3 of BP 22 requires that the holder of the check or the drawee bank, must notify the drawer of the check that the same was dishonored, if the same is presented within ninety days from date of issuance, and upon notice the drawer has five days within which to make arrangements for the payment of the check or pay the same in full.

DUTY OF THE DRAWEE BANK The drawee bank has the duty to cause to be written, printed or stamped in plain language thereon, or attached thereto the reason for the drawee’s dishonor or refusal to pay the same. If the drawee bank fails to do so, prosecution for violation of BP 22 may not prosper.

DUTY OF THE BANK AND RULE IN CASE OF DISHONOR DUE TO STOP PAYMENT The drawee bank has not only the duty to indicate that the drawer stopped the payment and the reason for the stop payment. The drawee bank is further obligated to state whether the drawer of the check has sufficient funds in the bank or not.

AGREEMENT OF PARTIES REGARDING THE CHECK 17

IS NOT A DEFENSE In the case of People vs Nitafan, 215 SCRA, the agreement of the parties in respect to the issuance of the check is inconsequential or will not affect the violation of BP 22, if the check is presented to the bank and the same was dishonored due to insufficiency of funds.

CHECKS ISSUED IN PAYMENT OF INSTALLMENT STILL IN VIOLATION OF B.P. 22 Checks issued in payment for installment covered by promissory note and said checks bounced, the drawer is liable if the checks were drawn against insufficient funds, especially that the drawer, upon signing of the promissory note, closed his account. Said check is still with consideration. (Caram Resources v. Contreras) In this case, the Judge was even held administratively liable.

CHECK DRAWN AGAINST A DOLLAR ACCOUNT IN FOREIGN COUNTRY IS STILL A VIOLATION OF B.P. 22 AS LONG AS THE CHECK IS DELIVERED ON THE PHILS. AND IF IT IS PAYABLE OUTSIDE OF THE PHILS. A check drawn against a dollar account in a foreign country is still violative of the provisions of BP 22 so long as the check is issued, delivered or uttered in the Philippines, even if the same is payable outside of the Philippines (De Villa v. CA)

GUARANTEE CHECKS, DRAWER IS NOT LIABLE IF THE LESSOR WHO IS RECIPIENT OF GUARANTEE CHECK PULLED OUT OF THE LOANED EQUIPMENT.

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The mere act of issuing a worthless check is punishable. Offender cannot claim good faith for it is malum prohibitum. In the case of Magno vs CA, when accused issued a check as warranty deposit for lease of certain equipment, even knowing that he has no funds or insufficient funds in the bank is not liable, if the lessor of the equipment pulled out the loaned equipment. The drawer has no obligation to make good the check because there is no more deposit to guaranty.

ISSUANCE OF GUARANTEE CHECKS WHICH WAS DISHONORED IS STILL A VIOLATION OF BP 22. PREJUDICE OR DAMAGE IS NOT NECESSARRY The intention of the framers of BP 22 is to make a mere act of issuing a worthless check malum prohibitum. In prosecutions for violation of BP 22, therefore, prejudice or damage is not prerequisite for conviction. The agreement surrounding the issuance of the checks need not be first locked into, since the law has provided that the mere issuance of any kind of check; regardless of the intent of the parties, i.e., whether the check is intended merely to serve as guarantee or deposit, but which checks is subsequently dishonored, makes the person who issued the check liable. (Lazaro vs CA, et al., GR 105461).

CAN A PERSON BE HELD LIABLE FOR VIOLATION OF B.P. 22 IN ISSUING A CHECK WITH SUFFICIENT FUNDS? Yes. Paragraph 2 of Section 1 of BP 22 provides: 19

The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon, for which reason, it is dishonored by the drawee bank.

DIFFERENCE BETWEEN ESTAFA AND VIOLATION OF BP 22 In the crime of estafa, deceit and damage are essential elements of the offense and have to be established with satisfactory proof to warrant conviction. For violation of the Bouncing Checks Law, on the other hand, the elements of deceit and damage are neither essential nor required. Rather, the elements of B.P. Blg. 22 are (a) the making, drawing and issuance of any check to apply to account or for value; (b) the maker, drawer or issuer knows at the time of issuance that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and, (c) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without valid reason, ordered the bank to stop payment. (Uy v Court of Appeals, GR 119000, July 28, 1997)

RULES OR JURISDICTION IN RELATION TO THE COURTS WHERE BP 22 CASES MAYBE FILED In respect of the Bouncing checks case, the offense also appears to be continuing in nature. It is true that the offense is committed by the very fact of its performance (Colmenares vs. Villar, No. L-27126, 20

May 29, 1970, 33 SCRA 186); and that the Bouncing Checks Law penalizes not only the fact of dishonor of a check but also the act of making or drawing and issuance of a bouncing check (People vs. Hon. Veridiano, II, No. L-62243, 132 SCRA 523). The case, therefore, could have been filed also in Bulacan. As held in Que vs. People of the Philippines, G.R. Nos. 75217-18, September 11, 1987 "the determinative factor (in determining venue) is the place of the issuance of the check". However, it is likewise true that knowledge on the part of the maker or drawer of the check of the insufficiency of his funds, which is an essential ingredient of the offense is by itself a continuing eventuality, whether the accused be within one territory or another (People vs. Hon. Manzanilla, G.R. Nos. 66003-04, December 11, 1987). Accordingly, jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of Pampanga (now M.T.C. of the proper town of Pampanga). And, as pointed out in the Manzanilla case, jurisdiction or venue is determined by the allegation in the Information, which are controlling (Arches vs. Bellosillo, 81 Phil. 190, cited in Tuzon vs. Cruz, No. L-27410, August 28, 1975, 66 SCRA 235). The Information filed herein specifically alleges that the crime was committed in San Fernando Pampanga and therefore within the jurisdiction of the Court below. This ruling was reiterated in the case of Lim vs. Rodrigo, 167 SCRA 487, where it was held: Besides, it was held in People v. Hon. Manzanilla, supra, that as "violation of the bad checks act is committed when one 'makes or draws and issues any check [sic] to apply on account or for value, knowing at the time issue that he does not have sufficient funds' or having sufficient funds in or credit with the drawee bank . . . shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank," "knowledge" is an essential ingredient of the offense charge. As defined by the statute, knowledge, is, by itself, a continuing eventuality, 21

whether the accused be within one territory or another. This being the case, the Regional Trial Court of Baguio City has jurisdiction to try Criminal Case No. 2089-R (688). Moreover, we ruled in the same case of People v. Hon. Manzanilla, reiterated in People vs. Grospe, supra, that jurisdiction or venue is determined by the allegations in the information. The allegation in the information under consideration that the offense was committed in Baguio City is therefore controlling and sufficient to vest jurisdiction upon the Regional Trial Court of Baguio City. In the case at bench it appears that the three (3) checks were deposited in Lucena City. As to the second error wherein the petitioner asserted that the checks were issued "as a guarantee only for the feeds delivered to him" and that there is no estafa if a check is issued in payment of a pre-existing obligation, the Court of Appeals pointed out that the petitioner obviously failed to distinguish a violation of B.P. Blg. 22 from estafa under Article 315 (2) [d] of the Revised Penal Code. It further stressed that B.P. Blg. 22 applies even in cases where dishonored checks were issued as a guarantee or for deposit only, for it makes no distinction as to whether the checks within its contemplation are issued in payment of an obligation or merely to guarantee the said obligation and the history of its enactment evinces the definite legislative intent to make the prohibition all-embracing. (Ibasco vs CA, 261 SCRA 572)

ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS ESSENTIAL IN BP 22 Knowledge of insufficiency of funds or credit in the drawee bank for the payment of a check upon its presentment is an essential element of the offense. There is a prima facie presumption of the existence of this element from the fact of drawing, issuing or making a check, the payment of which was subsequently refused for insufficiency of funds. It is important to stress, however, that this is not a conclusive 22

presumption that forecloses or precludes the presentation of evidence to the contrary. (Lim Lao v CA 274 SCRA 572)

WHEN LACK OF KNOWLEDGE AND LACK OF POWER TO FUND THE CHECKS IN CASES OF BP 22 A DEFENSE After a thorough review of the case at bar, the Court finds that Petitioner Lina Lim Lao did not have actual knowledge of the insufficiency of funds in the corporate accounts at the time she affixed her signature to the checks involved in this case, at the time the same were issued, and even at the time the checks were subsequently dishonored by the drawee bank. The scope of petitioner's duties and responsibilities did not encompass the funding of the corporation's checks; her duties were limited to the marketing department of the Binondo branch. Under the organizational structure of Premiere Financing Corporation, funding of checks was the sole responsibility of the Treasury Department. (Lim Lao v CA 274 SCRA 572)

LACK OF ADEQUATE NOTICE OF DISHONOR, A DEFENSE There can be no prima facie evidence of knowledge of insufficiency of funds in the instant case because no notice of dishonor was actually sent to or received by the petitioner. The notice of dishonor may be sent by the offended party or the drawee bank. The trial court itself found absent a personal notice of dishonor to Petitioner Lina Lim Lao by the drawee bank based on the unrebutted testimony of Ocampo "(t)hat the checks bounced when presented with the drawee bank but she did not inform anymore the Binondo branch and Lina Lim Lao as there was no need to inform them as the corporation was in distress." The Court of Appeals affirmed this 23

factual finding. Pursuant to prevailing jurisprudence, this finding is binding on this Court. (Lim Lao v CA; 6/20/97)

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ANTI-FENCING LAW OF 1979 (PD NO. 1612)

FENCING, DEFINED: The act of any person who, with intent to gain for himself or for another: - shall buy receive, possess, keep, acquire, conceal, sell, dispose of, or - shall buy and sell, or in any other manner deal in any article, item, object or anything of value: - which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft Sec. 2 of PD No. 1612 Note: Crime of estafa is not included. It is limited to robbery and theft. FENCE, DEFINED: Includes any person, firm, association, corporation or partnership or other organization who/which commits the act of fencing.

PD NO. 1612 (ANTI-FENCING LAW OF 1979) - Enacted under President Ferdinand Marcos - Took effect: March 2, 1979 - IRR formulated and it took effect: June 15, 1979. PURPOSE OF THE ANTI-FENCING LAW - To curtail and put an end to the rampant robbery of government and private properties. With the existence of "ready buyers", the "business" of robbing and stealing has become profitable. - To also punish those who buy stolen properties. For if there are no buyers then the malefactors could not profit from their wrong doings. . PERSONS LIABLE AND THEIR CORRESPONDING PENALTIES - Person liable: o One buying, keeping, concealing and selling the stolen items. 25

o If the fence is a corporation, partnership, association or firm:  the president or the manager or the officer who knows or should have known the fact that the offense was committed.

- Penalty: Depends on the value of the goods/items stolen or bought: Value of the PENALTY Property E 22k prision mayor maximum (adding 1 yr for each additional 10k) PROV. Total penalty shall NE 20yrs *If 20 yrs = reclusion temporal E 12k but NE prision mayor 22k E 6k but NE prision correccional med and max 12k periods E 200 but NE prision correccional min and med 6k periods, E 50 but NE arresto mayor med to prision 200 correccional min E 5 but NE 50 arresto mayor med NE 5 arresto mayor min RULES REGARDING BUY AND SELL OF GOODS PARTICULARLY SECOND HAND GOODS - The establishment engaged in the buy and sell of goods is required to obtain a clearance or permit to sell "used second hand items", - Failure of which makes the owner or manager liable as a fence. DEFINITION OF TERMS (IRR) "Used secondhand article (USA)": Any goods, article, items, object or anything of value obtained from an unlicensed dealer or supplier, regardless of whether the same has actually or in fact been used. 26

"Unlicensed dealer/supplier": Any persons, partnership, firm, corporation, association or any other entity or establishment not licensed by the gov’t to engage in the business of dealing in or of supplying of USA "Store", "establishment" or "entity": Includes also any individual dealing in the buying and selling of used secondhand articles "Buy and Sell": Transaction whereby one purchases USAs for the purpose of resale to third persons; "Station Commander": The Station Commander of the Integrated National Police w/in the territorial limits of the town or city district where the store, establishment or entity dealing in the buying and selling of used secondhand articles is located. PROCEDURE FOR SECURING PERMIT/CLEARANCE - IRR provides for the method of obtaining clearance or permit. - No fee will be charged for its issuance. - Failure to secure clearance/permit shall be punished as a fence, that may result to the cancellation of business license. DUTIES AND RESPONSIBILITIES OF THE STATION MANAGER AND OWNER OF SECONDHAND STORES - The Station Commander shall require the owner of a store or the President, manager or responsible officer having in stock, USAs: o to submit an initial affidavit  w/in 30 days from receipt of notice and o subsequent affidavits:  once every 15 days w/in 5 days after the period covered - which shall contain: o Complete inventory of such articles including the names and addresses from whom the articles were acquired. o Full list of articles to be sold or offered for sale including the time and place of sale o Place where the articles are presently deposited.

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WHAT MAY BE REQUIRED BY THE STATION COMMANDER OR OWNER OF SECONDHAND STORES OR DEALERS The Station Commander (St-Co) may, require the submission of an affidavit accompanied by other documents showing proof of legitimacy of acquisition. 1. Those who wish to secure the permit/clearance, shall file an application with the St-Co concerned, which states: a. name, address and other pertinent circumstances b. article to be sold or offered for sale to the public and the name and address of the unlicensed dealer or supplier from whom such article was acquired. c. He must also include the receipt or document showing proof of legitimacy of acquisition. 2. The St-Co: - shall examine the documents attached to the application and - may require the presentation of other additional documents, if necessary, to show satisfactory proof of the legitimacy of acquisition of the article, subject to the following conditions: - If the St- Co is not satisfied with the proof of legitimacy of acquisition: o he shall cause the publication of the notice, o at the expense of the one seeking clearance/permit, in a newspaper of general circulation for 2 consecutive days, stating:  Articles acquired from unlicensed dealer or supplier  The names and addresses of the persons from whom they were acquired  That such articles are to be sold or offered for sale to the public at the address of the store seeking the clearance/permit. 3. If there are no newspapers in general circulation, the party: - shall post a notice daily for 1 week on the bulletin board of the municipal building of the town where the store is located or, - in the case of an individual, where the articles in his possession are to be sold or offered for sale. 4. If after 15 days, upon expiration of the period of publication or of the notice, no claim is made to any of the articles: 28

- the St-Co shall issue the clearance or permit sought. 5. If before expiration of the same period for the publication of the notice or its posting, it shall appear that any of the articles in question is stolen: - the St-Co shall hold the article in restraint as evidence in any appropriate case to be filed. - Articles held in restraint shall be kept and disposed of as the circumstances of each case permit. - It shall be the duty of the St-Co concerned to advise/notify the Commission on Audit of the case and comply with such procedure. 6. The St-Co shall, w/in 72 hours from receipt of the application: - act thereon by either issuing the clearance/permit requested or denying the same. - Denial of an application shall be in writing and shall state the reason/s thereof. 7. Any party not satisfied with the decision of the St-Co may appeal: - w/in 10 days to the PNP District Superintendent and PNP Director. The decision of the Director can still be appealed to the Director-General: - w/in 10 days, whose decision may be appealed - with the Secretary of National Defense, w/in 15 days, which decision is final. PRIMA FACIE EVIDENCE OF FENCING: - Mere possession of any good, article, item, object or anything of value which has been the subject of robbery or thievery - The accused is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft ELEMENTS OF VIOLATION OF THE ANTI-FENCING LAW: 1. A crime of robbery or theft has been committed; 2. The accused: - who is not a principal or accomplice in the commission of the crime of robbery or theft, - buys, receives, possess, keeps, acquires, conceals, sells, or disposes, or buys and sells, or in any manner deals in - any article, item, object or anything of value which has been derived from the proceeds of the said crime; 29

3. The accused knows or should have known that: - the said article, item, or object or anything of value has been derived from the proceeds of the crime of robbery or theft; and 4. There is, on the part of the accused, intent to gain for himself or for another. (See page 10 where this element need not be proven) DISCUSSION OF THE ELEMENTS First Element: - The crime of robbery or theft should have been committed before crime of fencing can be committed. - The person committing the crime of robbery or theft, is not the same person committing the crime of fencing. Second Element: - This element speaks of the overt act of keeping, buying, receiving, possessing, acquiring, concealing, selling or disposing or in any manner deals with stolen items. - Ex. Lim vs. Court of Appeals: The accused stored and kept in his bodega and subsequently disposed of the 9 pcs. of stolen tires with rims Third Element: - The accused knew or should have known that the goods were stolen - The fact that a person was willing to part with a considerable number of jewelry at measly sum, should have apprised the accused of the possibility that they were stolen goods. - Also, the fact that the offender is engaged in the business of buying and selling gold and silver, which business is very well exposed to the practice of fencing should require more caution in dealing with customers than an ordinary case WHEN POSSESSION UNDER CERTAIN CIRCUMSTANCES CAN BE AN ACT OF FENCING - Stolen articles when found displayed in petitioner's shelves inside his compound is an act of fencing. WHEN THE 3RD ELEMENT NOT PROVEN 30

- When there is no proof that the accused bought or sold articles knowing the same to be stolen – the 3rd element is lacking - There is no proof that the accused had knowledge that the product was stolen when he purchased the stereo from a known merchant and the unit is displayed for sale in their store. - When the accused can present sales receipts covering the purchase of items from a known hardware store, it means that there was no reason for them to suspect that the items were stolen - These actions are not indicative of a conduct of a guilty person. INTENT TO GAIN NEED NOT BE PROVEN UNDER THE ANTI-FENCING LAW (PD 1612): (When the prosecution chooses to prosecuted under a special law instead of prosecuting under the RPC) - The last element need not be proven. - Intent to gain need not be proven in crimes punishable by a special law such as the Anti-Fencing Law. - These crimes are called "acts mala prohibita". - The only inquiry is whether the law has been violated - When the act is prohibited by a special law, intent is immaterial. DELIBERATE INTENT OR DOLO OR DECEIT IS NOT ALSO MATERIAL IN ANTI-FENCING UNDER PD 1612 - Dolo or deceit is immaterial in crimes punishable by special statute. - It is the act itself which constitutes the offense and not the motive or intent. - Intent to gain is a mental state, the existence of which is demonstrated by the overt acts of the person. - The mental state is presumed from the commission of an unlawful act.

A FENCE MAY BE PROSECUTED UNDER THE RPC OR PD 1612 OR BOTH - The state may choose to prosecute him either under the RPC or PD NO. 1612 - PD No. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property. FENCING ROBBERY See Definition in Page It is the taking of personal 31

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Fencing does not require the accused to have participation in the criminal design in the commission of the crime of robbery or theft.

property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon anything Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated

FENCING AS A CRIME INVOLVING MORAL TURPITUDE - Actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious deprivation of one's rightful property which by their very nature are crimes of moral turpitude. - Moral turpitude can be derived from the third element - accused knows or should have known that the items were stolen. - The crime negates the principle of each person's duty to his fellowmen not to appropriate things that they do not own or return something acquired by mistake or with malice. ESSENCE OF VIOLATION OF THE ANTI-FENCING LAW: The law requires that the offender buys or otherwise acquires and then sells or disposes of any object of value which he knows or should be known to him to have been derived from the proceeds of the crime of robbery or theft.

PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF THE OFFENDER IS NOT NECESSARY IN ANTI-FENCING - Mere possession thereof is enough to give rise to a presumption of fencing. - This presumption must be overthrown by sufficient and convincing evidence.

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PD No. 1829 PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL OFFENDERS

WHEREAS, crime and violence continue to proliferate despite the sustained vigorous efforts of the government to effectively contain them; WHEREAS, to discourage public indifference or apathy towards the apprehension and prosecution of criminal offenders, it is necessary to penalize acts which obstruct or frustrate or tend to obstruct or frustrate the successful apprehension and prosecution of criminal offenders; OFFENDER: Any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts: 1. Preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats 2. Altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases; 3. Harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction; 4. Publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes; 5. Delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal's offices, in Tanodbayan, or in the courts;

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6. Making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases; 7. Soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender; 8. Threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases; 9. Giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court. PENALTY: Prision correccional in its maximum period OR a fine ranging from 1K to 6K pesos, or both, - If any of the acts mentioned is penalized by any other law with a higher penalty: The higher penalty shall be imposed - Additional Penalty: Perpetual disqualification from holding public office - IF committed by a public official or employee

What is the stated purpose of PD 1829? As stated in the law, its purpose is to discourage public indifference or apathy towards the apprehension and prosecution of criminal offenders, it is necessary to penalize acts which obstruct or frustrate or tend to obstruct or frustrate the successful apprehension and prosecution of criminal offenders. What is the penalty for “Obstruction of Justice”? The penalty is imprisonment, fine or both. Imprisonment ranges from 4 years, 2 months and 1 day to 6 years (prision correccional in its maximum period). The fine ranges from P1,000 – P6,000. 34

Who may be charged under PD 1829? Any person — whether private or public — who commits the acts enumerated below may be charged with violating PD 1829. In case a public officer is found guilty, he shall also suffer perpetual disqualification from holding public office. What are the acts punishable under this law? The law covers the following acts of any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases: a. Preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats. b. Altering, destroying, suppressing or concealing any paper, record, document, or object with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases. c. Harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction. d. Publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes. e. Delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscals’ offices, in Tanodbayan, or in the courts. f. Making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases. g. Soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discontinuing, or impeding the prosecution of a criminal offender.

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h. Threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent a person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in criminal cases. i. Giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or the court. What are some of the instances when questions against charges under PD 1829 reached the Supreme Court? In Posadas vs. Ombudsman (G.R. No. 131492, 29 September 2000), certain officials of the University of the Philippines (UP) were charged for violating PD 1829 (paragraph c above). The UP officers objected to the warrantless arrest of certain students by the National Bureau of Investigation (NBI). According to the Supreme Court, the police had no ground for the warrantless arrest. The UP Officers, therefore, had a right to prevent the arrest of the students at the time because their attempted arrest was illegal. The “need to enforce the law cannot be justified by sacrificing constitutional rights.” In another case, Sen. Juan Ponce Enrile was charged under PD 1829, for allegedly accommodating Col. Gregorio Honasan by giving him food and comfort on 1 December 1989 in his house. “Knowing that Colonel Honasan is a fugitive from justice, Sen. Enrile allegedly did not do anything to have Honasan arrested or apprehended.” The Supreme Court ruled that Sen. Enrile could not be separately charged under PD 1829, as this is absorbed in the charge of rebellion already filed against Sen. Enrile.

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ANTI-GRAFT & CORRUPT PRACTICES ACT (RA NO 3019) CORRUPT PRACTICES OF PUBLIC OFFICERS. (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law. (c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. (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. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the 37

purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. (h) Directly or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he 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. (i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. ( j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. (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. UNEXPLAINED WEALTH: - Prima facie evidence of unexplained wealth: When a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income Note: That fact shall be a ground for dismissal or removal. 38

Note: Unsolicited gifts or presents of small or insignificant value, offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage shall be exempted from the provision of this act. VIOLATION OF SECTION 3(E) OF RA 3019 REQUIRES PROOF OF THE FOLLOWING ELEMENTS: 1. The accused is a public officer discharging administrative or official functions OR private persons charged in conspiracy with them; 2. The public officer committed the prohibited act during the performance of his official duty or in relation to his public position; 3. The public officer acted with manifest partiality evident bad faith or gross, inexcusable negligence; and 4. His action caused undue injury to the government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties. MEANING OF “CAUSING UNDUE INJURY” - The act of giving any private party any unwarranted benefit, advantage or preference is not an indispensable element of causing any undue injury to any part, although there may be instances where both elements concur. - The injury may be a result when a public officer acted with manifest partiality, evident bad faith, or inexcusable neglect. - The commission of the act does not refer only to those who are in charge of or have the duty of giving permits, licenses or concessions but all acts of public officers or employees which have caused undue injury to others. Its reference to any public officer is without distinction or qualification – it only specifies the acts declared unlawful. MEANING OF “BAD FAITH” UNDER SECTION 3(E) - "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. - It contemplates a state of mind affirmatively operating with furtive design or some motive of self interest or ill will for ulterior purposes - Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage. (Acts for no reason to justify it)

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ELEMENTS OF NEGLECT OF DUTY UNDER SEC 3(F) OF RA 3019 1. The offender is a public officer; 2. The said officer has neglected or has refused to act without sufficient justification after due demand or request has been made upon him; 3. Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him; 4. Such failure to so act is for the purpose of obtaining directly or indirectly from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party or discriminating against another. SUSPENSION UNDER RA 3019 IS MANDATORY BUT COURTS ARE ALLOWED TO DETERMINE WHETHER INFORMATION IS VALID OR NOT - RA 3019 makes it mandatory for the Sandiganbayan (or the Court) to suspend any public officer against whom a valid information charging violation of this law or any offense involving fraud upon government or public funds or property is filed in court. - All that is required: for the court to make a finding that the accused stands charged under a valid information for any of the above-described crimes. Period of Preventive Suspension: - Any single preventive suspension of local elective officials shall not extend beyond 60 days. (Local Gov’t Code) - Maximum period for suspension: 90 days. It will be for less than 90 days only if the case is decided within that period Pre-Condition of Preventive Suspension - Imposition of suspension, is not automatic or self-operative. - A pre-condition is the existence of a valid information, determined at a presuspension hearing. Pre-suspension hearing is necessary: (Suspension is NOT Automatic) - Purpose: To determine the validity of the information and thereby furnish the court with a basis to either suspend the accused and proceed with the trial on the merits of the case, or refuse suspension. - Such a hearing is in accord with the spirit of the law, considering the serious consequences of a suspension of a public official even before his conviction, and the demands of public interest for a speedy determination of the issues involved in the case.

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- The accused should be given adequate opportunity to challenge the validity or regularity of the criminal proceedings against him: o He should be afforded the right to due preliminary investigation o Acts imputed to him should constitute a specific crime Note: But once a proper determination of the validity of the information has been made, it becomes the ministerial duty of the court to forthwith issue the order of preventive suspension. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required. GUIDELINES TO BE FOLLOWED IN IMPOSING PREVENTIVE SUSPENSION: - Upon the filing of an information, the trial court should issue an order with proper notice requiring the accused officer to show cause at a specific date of hearing why he should not be ordered suspended from office. - Where either: o The prosecution seasonably files a motion for an order of suspension or o The accused files a motion to quash the information or challenges the validity thereof, such show-cause order of the trial court would no longer be necessary. - What is indispensable: That the trial court duly hear the parties at a hearing held for determining the validity of the information. - Guidelines for the pre-suspension hearing. o The accused should be given a fair and adequate opportunity to challenge the validity of the criminal proceedings against him, o However, the hearing should be expeditious, and not unduly protracted such as to frustrate the prompt suspension envisioned by the Act. RE-ELECTION IN PUBLIC OFFICE EXTINGUISHES ONLY HIS ADMINISTRATIVE LIABILITY AND NOT HIS CRIMINAL LIABILITY - Public Officer may be suspended from his present position EVEN if the crime charged was committed during his previous term. - The rule that a public official cannot be removed for administrative misconduct committed during a prior term (since his re-election to office operates as a condonation of the officer's previous misconduct committed during a prior term) – finds no application to criminal cases. It refers only to an action for removal from office and does not apply to a criminal case. 41

- It refers only to an action for removal from office and does not apply to criminal cases because a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is injurious not only to a person or group of persons but to the State as a whole. - Article 89 of the RPC, which enumerates the grounds for extinction of criminal liability, does not include reelection to office.

APPROVAL OF LEAVE OF ABSENCE IS NOT A BAR TO SUSPENSION - If the accused is charged under a valid information, the law's command that he "shall be suspended from office" pendente lite must be obeyed. - His approved leave of absence is not a bar to his preventive suspension for as indicated by the SolGen, an approved leave, whether it be for a fixed or indefinite period, may be cancelled or shortened at will by the incumbent. UNDUE DELAY IN PRELIMINARY INVESTIGATIONS IS VIOLATIVE OF DUE PROCESS AND IS A GROUND TO DISMISS - The inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the accused to due process and to a speedy disposition of the cases against him. - Accordingly, the informations should be dismissed. Note: Accused must be charged with the proper subsection of the law. Otherwise, the court may not convict the accused without violating his constitutional right to due process.

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