TITLE 1: Article 114-123: Criminal Law II Review Notes - Revised Penal Code

CRIMINAL LAW II (Article 114- 123)

Reyes, 2012, Arellano University School of Law

aiza ebina/2014

Title One: CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATION Section One: Treason and Espionage Crimes Against National Security: 1. 2. 3. 4.

Treason (114) Conspiracy and Proposal To commit Treason (115) Misprision of Treason (116) Espionage (117)

TREASON Article 114. Treason. – Any Filipino citizen who levies war against the Philippines or adheres to her enemies, giving them aid or comfort within the Philippines or elsewhere, shall be punished by reclusion perpetua to death and shall pay a fine not to excess 100,000 pesos. No person shall be convicted of treason unless on the testimony of two witnesses at least to the same overt act or on confession of the accused in open court. Likewise, an alien, residing in the Philippines, who commits acts of treason as defined in paragraph 1 of this Article shall be punished by reclusion temporal to death and shall pay a fine not to exceed 100,000 pesos. ELEMENTS OF TREASON 1. 2. 3.

The offender is a Filipino citizen or an alien residing in the Philippines (offender owes allegiance to the Government of the Philippines) There is a war in which the Philippines is involved The offender either – a) levies war against the Government b) adheres to the enemies, giving them aid or comfort

First Element TREASON – a breach of allegiance to a government, committed by a person who owes allegiance to it. ALLEGIANCE – the obligation of fidelity and obedience which the individuals owe to the government under which they live or to their sovereign, in return for the protection they receive. Permanent Allegiance – obligation of fidelity and obedience of a citizen to his government / sovereign Temporary Allegiance – obligation of fidelity and obedience of a resident alien owes to our government Second Element Treason cannot be committed in time of peace. Treason is a war crime. It is not an all-time offense. While there is peace, there are no traitors. Treasonable acts may actually be perpetuated during peace, but there are no traitors until war has started. Third Element Ways of Committing Treason 1) Levying war against the Government There is an actual assembling of men For the purpose of executing a treasonable design by force

CRIMINAL LAW II (Article 114- 123)

Reyes, 2012, Arellano University School of Law

aiza ebina/2014

It is not necessary that there be a formal declaration of the existence of a state of war. Actual hostilities may determine the date of the commencement of war. The levying of war must be with the intent to overthrow the government, as such, not to merely resist a particular statute or repel a particular officer. REBELLION – it is not treason if the levying of war is merely a civil uprising, without any intention of helping an external enemy - the crime is rebellion. (Art. 134 -135) SEDITION – internal conflict; causing disturbances in one’s country 2) Adhering to the enemies of the Philippines; giving them aid or comfort BOTH must concur together Existence of ONLY ONE is not treason ADHERENCE TO THE ENEMY – 1) intent to betray; 2) when a citizen intellectually or emotionally favors the enemy and harbors sympathies or convictions disloyal to his country’s policy or interest AID OR COMFORT – 1) an act which strengthens or tends to strengthen the enemy in the conduct of war against the traitor’s country; 2) an act which weakens or tends to weaken the power of the traitor’s country to resist or attack the enemy; 3) must be given to the enemy by some kind of action. It must be a deed or physical activity, not merely a mental operation. Treason by a Filipino citizen can be committed by a Filipino who is outside of the Philippines. Treason by an alien must be committed in the Philippines. Ways of Proving Treason 1) -

Testimony of two witnesses, at least, to the same overt act Required to prove the overt act of giving aid or comfort (TWO-WITNESS RULE) The testimonies must refer to the same act, place, and moment of time Not necessary to prove adherence ADHERENCE may be proved 1) by one witness (does not require the two-witness rule); 2) from the nature of the act itself; 3) from the circumstances surrounding the act

OVERT ACT – physical activity, deed that constitutes the rendering of aid and comfort 2) Confession of the accused in open court (not by circumstantial evidence or extrajudicial confession) CONFESSION – 1) confession of guilt; 2) not only an admission of acts made by the accused in giving his testimony after a plea of not guilty, from which admissions of his guilt can be inferred (admission only, not confession of guilt applies to this instance) Aggravating Circumstances in Treason 1) Cruelty (e.g. torturing before putting someone else to death, physical injuries, brutality) 2) Ignominy (e.g. abusing a wife in the presence of her husband, rapes, wanton robbery for personal gain)  Evident premeditation is not aggravating (treason is a long continued process requiring reflective and persistent determination and planning)  Superior strength and treachery not aggravating (they are inherent in treason)  When there are no mitigating and aggravating circumstances, divisible penalty is in medium period.

CRIMINAL LAW II (Article 114- 123)

Reyes, 2012, Arellano University School of Law

aiza ebina/2014

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Gravity and seriousness of the acts of treason (amount or degree of aid or comfort given to the enemy and gravity of separate and distinct acts of treason) are considered for imposing penalty. Defense Not Accepted in Treason 1) Suspended allegiance ( a citizen owes absolute and permanent allegiance to his Government) 2) Change of sovereignty (the sovereignty of the Government is not transferred to the enemy by mere occupation, what is suspended is the exercise of the rights of sovereignty only) Defense Accepted in Treason 1) Defense of Duress (uncontrollable fear – fear of immediate death, not of personal injury or apprehension of apprehension upon property) 2) Lawful obedience to a de facto government RECLUSION PERPETUA – 20 years and 1 day to 40 years RECLUSION TEMPORAL – 12 years and 1 day to 20 years

Article 115. Conspiracy and proposal to commit treason. – Penalty. – The conspiracy and proposal to commit the crime of treason shall be punished respectively, by prision mayor and a fine not exceeding 10,000 pesos, and by prision correccional and a fine not exceeding 5,000 pesos. CONSPIRACY TO COMMIT TREASON – 1) committed when in time of war; 2) two or more persons come to an agreement to levy war against the Government; 3) to adhere to the enemies and to give them aid or comfort, and decide to commit it PROPOSAL TO COMMIT TREASON – 1) committed when in time of war; 2) a person who has decided to levy war against the Government or to adhere to the enemies and to give them aid or comfort, proposes its execution to some other person or persons The mere conspiracy to commit treason is a felony. The mere proposal, even without acceptance to commit treason is a felony. The two-witness rule does not apply to conspiracy or proposal to commit treason. PRISION MAYOR – 6 years and 1 day to 12 years PRISION CORRECCIONAL – 6 months and 1 day to 6 years

Article 116. Misprision of Treason. – Every person owing allegiance to (the United States or) the Government of the Philippine Islands, without being a foreigner, and having knowledge of any conspiracy against them, who conceals or does not disclose and make known the same, as soon as possible, to the governor or fiscal of the province, or the mayor or fiscal of the city in which he resides, as the case may be, shall be punished as an accessory to the crime of treason. ELEMENTS OF MISPRISION OF TREASON 1) Offender must be owing allegiance to the Government, and not a foreigner Misprision of treason cannot be committed by a resident alien 2) He has knowledge of any conspiracy (to commit treason) against the Government The conspiracy is one to commit treason as defined in Article 115

CRIMINAL LAW II (Article 114- 123)

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Reyes, 2012, Arellano University School of Law

aiza ebina/2014

Knowledge of any conspiracy against the Government, not knowledge of treason actually committed by another

3) He conceals or does not disclose and make known the same as soon as possible the governor or fiscal of the province or the mayor or the fiscal of the city in which he resides PENALTY -

The offender under Article 116 is punished as an ACCESSORY TO THE CRIME OF TREASON Penalty is two degrees lower than that provided for treason (two degrees lower than Reclusion Perpetua) The offender is a PRINCIPAL IN THE CRIME OF MISPRISION OF TREASON, which is a separate and distinct offense from the crime of treason

Article 116 is an exception to the rule that mere silence does not make a person criminally liable because the very existence of the state itself is threatened and conspiracy to commit treason is mired in secrecy, hence the need for disclosure.

Article 117. Espionage. – The penalty of prision correccional shall be inflicted upon any person who: 1.

2.

Without authority therefor, enters a 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 Philippine Archipelago, or Being in possession, by reason of public office he holds, of the articles, data, or information referred to in the preceding paragraph, discloses their contents to a representative of a foreign nation.

The penalty next higher in degree shall be imposed if the offender be a public officer or employee. ESPIONAGE – offense of gathering, transmitting, or losing information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the Republic of the Philippines or to the advantage of any foreign nation. Ways of Committing Espionage 1) By entering, without authority therefor, a 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 ELEMENTS: 1) The offender enters any of the places mentioned therein 2) He has no authority therefor 3) His purpose is to obtain any 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 no. 1 of Article 117, which he had in his possession by reason of the public office he holds ELEMENTS: 1) The offender is a public officer

CRIMINAL LAW II (Article 114- 123)

Reyes, 2012, Arellano University School of Law

aiza ebina/2014

2) He has in his possession the articles, data or information referred to in paragraph no. 1 of Article 117, by reason of the public office he holds 3) He discloses their contents to a representative of a foreign nation The offender must have the intention to obtain information relative to the defense of the Philippines to be liable. It is sufficient that he has the purpose to obtain any of them when he entered a warship, fort, or naval or military establishment. COMMONWEALTH ACT No. 616 An Act to Punish Espionage and Other Offenses Against National Security Sec 1. Unlawfully obtaining or permitting to be obtained information affecting national defense. Sec 2. Unlawful disclosing of information affecting national defense. Sec 3. Disloyal acts or words in time of peace. Sec 4. Disloyal acts or words in time of war. Sec 5. Conspiracy to violate preceding sections. Sec 6. Harboring or concealing violators of the law. Sec 9. Using or permitting or procuring the use of an aircraft for the purpose of making photograph, sketch, etc. of vital installations or equipment of the AFP. Sec 10. Reproducing, publishing, selling, etc. uncensored copies of photograph, sketch, etc. of the vital military, naval or air post, camp or station, without permission of the commanding officer. Sec 11. Injuring or destroying or attempting to injure or destroy war materials, premises or war utilities when the Philippines is at war. Sec 12. Making or causing war materials to be made in a defective manner when the Philippines is at war. Sec 13. Injuring or destroying national defense material, premises, or utilities. Sec 14. Making or causing to be made in a defective manner, or attempting to make or cause to be made in a defective manner, national defense material. ESPIONAGE VS. TREASON Espionage is a crime not conditioned by the citizenship of the offender, same as with treason. Treason is committed only in time of war. Espionage may be committed both in time of peace and in time of war. Treason is limited in two ways of committing the crime - 1) levying war; 2) adhering to the enemy and giving him aid or comfort. Espionage may be committed in many ways (including provisions of Commonwealth Act No. 616). PENALTY PRISION CORRECCIONAL – 6 months and 1 day to 6 years

Section Two: Provoking War and Disloyalty in Case of War Crimes Against the Law of Nations: 1. 2. 3. 4. 5.

Inciting to war or giving motives for reprisals (118) Violation of neutrality (119) Correspondence with hostile country (120) Flight to enemy’s country (121) Piracy in general and mutiny on the high seas or in Philippine waters (122)

CRIMINAL LAW II (Article 114- 123)

Reyes, 2012, Arellano University School of Law

aiza ebina/2014

Art. 118. Inciting to war or giving motives for reprisals. — The penalty of reclusion temporal shall be imposed upon any public officer or employee, and that of prision mayor upon any private individual, who, by unlawful or unauthorized acts, provokes or gives occasion for a war involving or liable to involve the Philippine Islands or exposes Filipino citizens to reprisals on their persons or property. ELEMENTS: 1) The offender performs unlawful or unauthorized acts 2) Such acts provoke or give occasion for a war involving or liable to involve the Philippines or expose Filipino citizens to reprisals on their persons or property To be liable for inciting to war or giving motives for reprisals, the intention of the accused is immaterial. Such acts might disturb the friendly relation that we have with a foreign country, and they are penalized even if they constitute a mere imprudence. The crime of inciting to war or giving motives for reprisals is committed in time of peace. PENALTY RECLUSION TEMPORAL – 12 years and 1 day to 20 years (public officer or employee) PRISION MAYOR – 6 years and 1 day to 12 years (private individual)

Art. 119. Violation of neutrality. — The penalty of prision correccional shall be inflicted upon anyone who, on the occasion of a war in which the Government is not involved, violates any regulation issued by competent authority for the purpose of enforcing neutrality. ELEMENTS: 1) There is a war in which the Philippines is not involved 2) There is a regulation issued by competent authority for the purpose of enforcing neutrality (The violation of such regulation is what constitutes the crime.) 3) The offender violates such regulation NEUTRALITY – a nation or power whichtakes no part in a contest of arms going on between others is referred to as neutral. PENALTY PRISION CORRECCIONAL – 6 months and 1 day to 6 years

Art. 120. Correspondence with hostile country. — Any person who in time of war, shall have correspondence with an enemy country or territory occupied by enemy troops shall be punished: 1. By prision correccional, if the correspondence has been prohibited by the Government; 2. By prision mayor, if such correspondence be carried on in ciphers or conventional signs; and 3. By reclusion temporal, if notice or information be given thereby which might be useful to the enemy. If the offender intended to aid the enemy by giving such notice or information, he shall suffer the penalty of reclusion temporal to death.

CRIMINAL LAW II (Article 114- 123)

Reyes, 2012, Arellano University School of Law

aiza ebina/2014

ELEMENTS: 1) 2) 3) -

It is in time of war in which the Philippines is involved The offender makes correspondence with an enemy country or territory occupied by enemy troops The correspondence is either Prohibited by the Government (even if correspondence contains innocent matters) Carried on in ciphers or conventional signs (prohibition by the Government is not essential) Containing notice or information which might be useful to the enemy (prohibition by the Government is not essential)

CORRESPONDENCE – communication by means of letters; may refer to the letters which pass between those who have friendly or business relations. CIRCUMSTANCES QUALIFYING THE OFFENSE: 1) Notice or information might be useful to the enemy 2) The offender intended to aid the enemy -

BOTH circumstances must concur together.

If the offender intended to aid the enemy by giving such notice or information, the crime amounts to treason; hence, the penalty is the same as that for treason. PENALTY PRISION CORRECCIONAL – 6 months and 1 day to 6 years PRISION MAYOR – 6 years and 1 day to 12 years RECLUSION TEMPORAL – 12 years and 1 day to 20 years

Art. 121. Flight to enemy’s country. — The penalty of arresto mayor shall be inflicted upon any person who, owing allegiance to the Government, attempts to flee or go to an enemy country when prohibited by competent authority. ELEMENTS: 1) 2) 3) 4)

There is a war in which the Philippines is involved The offender must be owing allegiance to the Government The offender attempts to flee or go to enemy country Going to enemy country is prohibited by competent authority

An alien resident may be guilty of flight to enemy country. The law does not say “not being a foreigner”. The allegiance contemplated in this article is either natural or temporary allegiance. Mere attempt to flee or go to enemy country when prohibited by competent authority consummates the crime. If fleeing is not prohibited by competent authority, the crime defined in Article 121 cannot be committed. (must be implemented by the Government) PENALTY ARRESTO MAYOR – 1 month and 1 day to 6 years

CRIMINAL LAW II (Article 114- 123)

Reyes, 2012, Arellano University School of Law

aiza ebina/2014

Section Three: Piracy and Mutiny on the High Seas Art. 122. Piracy in general and mutiny on the high seas. — The penalty of reclusion perpetua shall be inflicted upon any person who, on the high seas, or in Philippine waters, shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers. The same penalty shall be inflicted in case of mutiny on the high seas or in Philippine waters. Ways of Committing Piracy 1) By attacking or seizing a vessel on the high seas or in Philippine waters 2) By seizing in the vessel while on the high seas or in Philippine waters the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers Elements of Piracy 1) A vessel is on the high seas or in Philippine waters 2) The offenders are not members of its complement or passengers of the vessel 3) The offenders 1) attack or seize that vessel; 2) seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers HIGH SEAS – any waters on the sea coast which are without the boundaries of low-water mark, although such waters may be in the jurisdictional limits of a foreign government; parts of the seas that are not included in the exclusive economic zone, in the territorial seas, or in the internal waters of a state, or in the archipelagic waters of an archipelagic state. PHILIPPINE WATERS – refer to all bodies of water, such as but not limited to, seas, gulfs, bays around, between and connecting each of the Islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension, and all other waters belonging to the Philippines by historic or legal title, including territorial sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction. VESSEL – any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine waters. It shall include all kinds and types of vessels or boats used in fishing. PIRACY – robbery or forcible depredation on the high seas, without lawful authority and done with animo furandi and in the spirit and intention of universal hostility MUTINY – the unlawful resistance to a superior officer, or the raising of commotions and disturbances on board a ship against the authority of its commander. PIRACY VS. MUTINY Piracy – persons who attack a vessel or seize its cargo are strangers to said vessels (intent to gain is essential) Mutiny – committed by members of the crew or passengers (intent to ignore the ship’s officers; prompted by a desire to commit plunder) PENALTY RECLUSION PERPETUA – 20 years and 1 day to 40 years

CRIMINAL LAW II (Article 114- 123)

Reyes, 2012, Arellano University School of Law

aiza ebina/2014

PIRACY AND MUTINY AS TERRORISM (R.A. No. 9372, Human Security Act of 2007) When a person who commits an act punishable as piracy and mutiny under Article 122 thereby sowing and creating condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty years of imprisonment, without the benefit of parole. P.D. No. 532 (Anti-Piracy Law) – covers any person Article 122 (amended by R.A. No. 7659) – covers only persons who are not passengers or members of its complement R.A. No. 6235 (Anti-Hijacking Law) Acts Punished: 1) Compelling a change the course or destination of an aircraft of Philippine registry, or to seize and usurp the control thereof, while it is in flight “AIRCRAFT IS IN FLIGHT” – from the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation When aircraft is not in flight, the usurpation or seizure of the aircraft may amount to coercion or threat. When death results, the crime is homicide or murder, as the case may be. 2) Compelling an aircraft of foreign registry to land in Philippine territory, or to seize or usurp the control thereof while it is within the said territory -

It is not required that the aircraft be a public utility PENALTY Imprisonment of not less than 12 years but not more than 20 years Fine of not less than 20,000 pesos, but more than 40,000 pesos AGGRAVATING CIRCUMSTANCES: 1) Offender has fired upon the pilot, member of the crew or passenger of the aircraft 2) He has exploded or attempted to explode any bomb or explosive to destroy the aircraft 3) Whenever the crime is accompanied by murder, homicide, serious physical injuries or rape PENALTY Imprisonment of 15 years to death Fine not less than 25,000 pesos but not more than 50,000 pesos

3) Shipping, loading, or carrying in any passenger aircraft operating as a public utility within the Philippines, any explosive, flammable, corrosive or poisonous substance or material -

Mere carrying or loading of explosive, flammable, corrosive or poisonous substances or materials brings about criminal liability

CRIMINAL LAW II (Article 114- 123)

Reyes, 2012, Arellano University School of Law

aiza ebina/2014

4) Shipping, loading or carrying of any substance or material mentioned in the preceding section in any cargo aircraft operating as a public utility within the Philippines shall be in accordance with regulations issued by the Civil Aeronautics Administration PENALTY Imprisonment of at least 5 years but not more than 10 years Fine of not less than 10,000 pesos but not more than 20,000 pesos

Art. 123. Qualified piracy. — The penalty of reclusion temporal to death shall be imposed upon those who commit any of the crimes referred to in the preceding article, under any of the following circumstances: 1. Whenever they have seized a vessel by boarding or firing upon the same; 2. Whenever the pirates have abandoned their victims without means of saving themselves; or 3. Whenever the crime is accompanied by murder, homicide, physical injuries or rape. CRIMES – piracy and mutiny Circumstances of Qualified Piracy 1) Whenever the offenders have seized the vessel by boarding or firing upon the same 2) Whenever the pirates have abandoned their victims without means of saving themselves (also for qualified mutiny) 3) Whenever the crime is accompanied by murder, homicide, physical injuries or rape (also for qualified mutiny) nd

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Qualified Mutiny – 2 and 3 circumstance accompanies the crime of mutiny under Article 122 Piracy is a crime not against any particular state but against all mankind. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. Any person who aids or protects pirates or abets the commission of piracy shall be considered as an accomplice. PENALTY RECLUSION TEMPORAL – 12 years and 1 day to 20 years