Crimes Against National Security and the Law of Nations

a m + d g

From some Reyes, mostly Boado, Justice Callejo’s lectures, Rosie (02-03) elements table and Glenn Tuazon’s brilliant notes! Good luck! Have fun! And be sure to take breaks! (No stamping please!)

BOOK TWO

CRIMES AND PENALTIES

Title One

CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS

Chapter One

CRIMES AGAINST NATIONAL SECURITY

Section One. — Treason and espionage

Art. 114. Treason. — Any person who, owing allegiance to (the United States or) the Government of the Philippine Islands, not being a foreigner, levies war against them or adheres to their enemies, giving them aid or comfort within the Philippine Islands or elsewhere, shall be punished by reclusion temporal to death and shall pay a fine not to exceed P20,000 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 Philippine Islands, who commits acts of treason as defined in paragraph 1 of this Article shall be punished by prision mayor to death and shall pay a fine not to exceed P20,000 pesos. (As amended by E.O. No. 44, May 31, 1945).

Elements:
Offender is a Filipino citizen or an alien residing in the Philippines
There is a war in which the Philippines is involved
The offender either
Levies war against the government, or
Adheres to the enemies, giving them aid or comfort
Who may be liable for treason?
Filipinos, where ever they may be
Aliens, who reside here, even temporarily (codal and Laurel v Misa)
How come? Because of allegiance to the country, whether temporary (aliens) or permanent (Filipinos)
Allegiance: obligation for fidelity and obedience which the individual owes to his government or to his sovereign in return for the protection which he receives
Are dual citizens liable for treason?
Yes. Dual citizenship is not a defense. There must have been a prior (to the treasonous act) renunciation of citizenship to serve as a valid defense to treason. (D’Aquino v US, Kawakita v US).
So if you’re a Filipino-Malaysian who helps Malaysians during a war between the Philippines and Malaysia, you’ll be liable for treason.
Relate to Art 2 (extra-territoriality principle)
Two modes of committing treason:
Levying war against the Philippines
Adhering to the enemy, by giving aid or comfort within the Philippines or elsewhere
First mode: levying war against the Philippines
Means an assemblage of armed men committing acts of violence for the purpose of overthrowing the government
Mere conspiracy is not enough
There must be actual assemblage of men for the purpose of executing the treasonous design by force
No need to be with high-powered guns, enough that they constitute enough men to overthrow the government (hence, the number is the determining factor)
The capability to overthrow is NOT important, the probability is immaterial
No need for the act to be consummated, meaning, no need for the government to be actually overthrown.
Second mode: adhering to the enemy, giving them aid or comfort within the Philippines or elsewhere
Must have adhered to the enemy AND given them aid or comfort
Both must concur. He must translate his “adherence” to overt acts.
The requirement of the overt act of giving aid or comfort is to make sure that the crime of treason has moved from the realm of through to the realm of action.
Enemy here is a foreign power, foreign country.
Cannot refer to rebels under Art 135.
“Adhering” – emotionally or intellectually favors the enemy, harbors sympathies disloyal to his own country
This mental act need not be testified to by 2 witnesses
Overt acts enough even if it did not succeed in helping the enemy
The overt act must be testified to by 2 witnesses
As long as you performed an overt act, there is treason already.
No accomplices or accessories in treason.
So if you hide traitors or helped them by giving arms, there is treason already.
Treason differs from other crimes because all persons are regarded as principals.
Even those playing a small part are considered principals. (Corpus Juris)
Treason is delito continuado.
It contemplates a series of acts committed over time, but only instigated by a single criminal resolution.
Either a single act, or a series of acts impelled by one criminal intent.
Treason is a specific intent crime.
It can only be done by dolo.
The specific intent is to deliver the country to the enemy.
If you don’t intend to deliver the country to an enemy, then it’s mere rebellion.
Treason is a war crime.
It cannot be committed during time of peace.
It may be incubated during peace, but once a war commences, treason may blossom into a crime. Only then will it be considered treason.
No need for a declaration of state of war. As long as there is actual war going on.
NO complex crime of treason with rape, murder, etc.
Treason is a POLITICAL crime and thus absorbs these other component acts.
These crimes are essential elements of treason, without these, treason could not be committed.
On the two-witness rule
Not an element of the crime, but a REQUIREMENT to prosecute.
No person shall be convicted of treason unless on the testimony of two witnesses to the SAME overt act.
If the overt act is separable, two witnesses must also testify to each part of the overt act for conviction. (P v Adriano)
In these cases, no need to prove the entire composite act, enough to have the witnesses prove each component. (P v Deguyo)
The two witness rule is the only provision in the RPC that is based on the US Constitution and not borrowed from Spain.
The purpose is to prevent the possible fabrication of evidence to prosecute a person.
The two witnesses must be credible. Just because there are two witnesses testifying doesn’t mean that sure conviction, they must be credible.
What if there were no witnesses, is there any other way to convict one for treason?
Yes. If he confesses in OPEN COURT.
Extra-judicial confessions NOT enough.
Treasonous or not?
Acceptance of public office/duties in de facto government during occupation: NOT treason
Unless you do other acts to show sympathy to the enemy
Getting women to satisfy sexual urges of enemy soldiers: NOT treason (P v Perez, Lozano)
J-Call DISAGREES. This should fall under aid and comfort.
Being part of the Philippine constabulary during enemy occupation: NOT treason (P v Recode, since not aid or comfort)
Unless you yourself tortured the Filipinos.
Making speeches to support the enemy: TREASON (Gillard v US)
Aid and comfort may be made by speech
Broadcasting messages over the radio which discourages your troops: TREASON. (D’Aquino v US)
Letting one’s son (who is aligned with the enemy) work in a weapons firm during the time of war: TREASON (Haut v US)
Giving aid and comfort to the enemy.
Will Art 12 defenses apply?
YES! Uncontrollable fear, etc will apply.
Will the ISL apply to treason?
No! By express provision of law.
What about minors?
They can avail of the privileged mitigating circumstance of minority. (P v Nunez)
Art 13 and 14 are not applicable to treason. The penalty does not depend on Art 13 and 14 but on the nature of the crime committed.
The SC will not apply these articles but assess the crime according to the barbarity.
Use of unlicensed firearms are NOT aggravating.

Art. 115. Conspiracy and proposal to commit treason; Penalty. — The conspiracy or proposal to commit the crime of treason shall be punished respectively, by prision mayor and a fine not exceeding P10,000 pesos, and prision correccional and a fine not exceeding P5,000 pesos.

Conspiracy or proposal to commit treason is a crime in itself. (Relate to Art 8)
But when the acts of treason are carried out, the conspiracy loses juridical existence and become mere modes to commit treason.
Unlike treason, conspiracy and proposal to commit treason may be committed during times of peace.
But see Reyes who said that it must be committed in time of war. (so I don’t know. Follow J-Call)

Art. 116. Misprision of treason. — Every person owing allegiance to the Government of the Philippine Islands, without being a foreigner, and having knowledge of any conspiracy against them, 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:
Offender must owe allegiance to the Government, and is not a foreigner
He has knowledge of any conspiracy (to commit treason) against the Government
He conceals or does not disclose and make known the same asap to the governor or fiscal of the province or the mayor or fiscal of the city in which he resides
Misprision of treason is the failure of a citizen to report asap a conspiracy, which comes to his knowledge, against the government.
Gravamen of crime: WILLFUL or MALICIOUS concealment.
Hence, crime by DOLO.
Only committed by Filipinos, not foreigners.
Dual citizens may NOT be liable for misprision of treason. (Remember this!)
Two-witness rule does not apply.
Misprision of treason is different from being an accessory-after-the-fact.
The latter hides the principal. (But remember, no accessories in treason!)
Misprision hides the conspiracy.
Misprision is punished two degrees lower than treason since the person who committed it is “punished as an accessory to the crime of treason.” But he is still a PRINCIPAL of misprision of treason.
Boado says there must be a war in which the Philippines is involved. (not sure about this though because J-Call said conspiracy to commit treason may be committed during times of peace)
Art 20 does not apply.

Art. 117. Espionage. — The penalty of prision correccional shall be inflicted upon any person who:

1. 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

2. Being in possession, by reason of the 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.

Offenses:
Without authority, entering warship, fort, naval or military establishment to obtain any information, plans, etc of a confidential nature relative to the defense of the Philippines
As long as there is intent, accused will be held liable. No need to actually obtain such plans
Possessing by reason of public office such information and disclosing them to a foreign representative
Elements of 1st way:
Offender enters any of the places mentioned therein
He has not authority therefore
His purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines
Elements of 2nd way:
Offender is a public officer
He has in his possession the articles, data or information referred in the paragraph 1, by reason of the public office he holds
He discloses their contents to a representative of a foreign nation
Can be committed even in times of peace

Section Two. — Provoking war and disloyalty in case of war

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:
Offender performs unlawful or unauthorized acts
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
Done in times of peace

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:
There is a war in which the Philippines is not involved
There is a regulation issued by competent authority for the purpose of enforcing neutrality
Offender violates such

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.

Elements:
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, or
Carried on in ciphers or conventional signs, or
Containing notice or information which might be useful to the enemy
Qualified when:
Notice or information might be useful to the enemy, and
Offender intended to aid the enemy

Art. 121. Flight to enemy 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:
There is a war in which the Philippines is involved
Offender must owe allegiance to the Government
Offender attempts to flee or go to enemy country
Going to such enemy country is prohibited by competent authority

Section Three. — Piracy and mutiny on the high seas or in Philippine waters

Art. 122. Piracy in general and mutiny on the high seas. — The penalty of reclusion temporal 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. (As amended by Sec 3, RA 7659)

Two modes of committing piracy:
Attacking or seizing a vessel on high seas or Philippine wares
Seizing the vessel whole/part of its cargo, equipment or personal belongings or complement or passengers while in high seas or Philippine waters
Elements:
Vessel is on the high seas or in Philippine waters
Offenders are not members of its complement or passengers of the vessel
Offenders:
Attack or seize the vessel, or
Seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers
The offenders must not be members of the complement or passengers
Complement: all persons on board, from the captain to the cabin boy
If those who take the cargo or implements are part of the complement and they are in the high seas, the act is robbery under Art 293, 294
If in Philippine waters, you can charge them with PD 532, because under that PD, the offenders can be members of the complement or the passengers[1]
Can you still charge Art 122 even if the complement took the cargo?
Yes. If they conspired with the people outside the ship who participated.
Is there a conflict between PD 532 and Art 122 (as amended by RA 7659)?
No. All the PD did was to widen the coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring states for crimes against the law of nations. (P v Tulin)
How do you distinguish between PD 532 and Art 122 (as amended)?
In PD 532, one must prove that the perpetrators were purposely organized not just for one act of robbery, but several indiscriminate commissions thereof. There must be evidence of similar attempts or takings before. (P v Puno, this was actually a highway robbery case, but it is applicable to piracy under PD 532 as well)
If just one act, and done in the highway, crime is only robbery.
If just one act, and done in Philippine waters or high seas, charge under Art 122/123.
In P v Tulin, J-Call said that it was proved in the RTC decision that the pirates engage in several indiscriminate commissions in the past. It was just not written into the SC decision.
If piracy was committed outside the Philippine waters, will the Philippine courts have jurisdiction over the offense?
Yes. Under Art 2.
The same rule will apply even when charged with PD 532, which penalizes piracy in Philippine waters. PD 532 should be applied with more force since is purpose is precisely to discourage and prevent piracy in Philippine waters.
Moreover, it is well-settled that regardless of the law penalizing the same, piracy is a reprehensible crime against the whole world (hostes humani generis)
Piracy on the high seas is a crime against the law of nations. (P v Lol-lo) It has two aspects
Violation of the common right of nations
Criminal liability of the pirates may be imposed by the municipal law of the country where the pirates are found
In P v Tulin, Hiong (the person who supervised the transfer of the stolen goods to another ship in Singapore waters) claimed the courts had no jurisdiction over him since the disposition was done outside the Philippine waters. He was charged with PD 532.
SC said that although PD 532 requires that the attack and seizure of the vessel be in Philippine waters, the disposition by the pirates of the vessel and its cargo is still deemed part of piracy, hence the same need not be committed in the Philippine waters.
Moreover, piracy is an exception to the rule on territoriality. Regardless of the law penalizing piracy, it remains to be a reprehensible crime against the whole world.
Relate piracy with terrorism.
Piracy in Philippine waters or high seas (both Art 122 and PD 532) are predicate crimes of terrorism.
If these are committed for purpose of sowing terror in the population, then terrorism is committed, with piracy as predicate crimes.
But once you are charged with terrorism, you can no longer be charged with piracy.[2]
Terrorism is a crime against the law of nations and against humanity.
It says so in Sec 2 of RA 9372.
Aircraft highjacking (RA 6235) is also a predicate crime for terrorism.
Using an illegal firearm when highjacking a plane is neither a separate crime nor an aggravating circumstance.
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. (PD 532, hence it includes a banca)
Distinguish Art 19, PD 1612, PD 1829 and Art 122/123.
Art 19 – talks of accomplices and accessories
Will apply to Art 122
PD 1612 (Anti-Fencing) – will only apply to robbery and theft cases[3]
PD 1829 (Obstruction of Justice) – can be charge in lieu of Art 19, since PD 1829 also talks of harboring or concealing escapees
Will apply to Art 122
Take note of PD 532, as related to Art 19
In PD 532, those who acquire or receive property taken by pirates or brigands or benefits therefrom are considered accomplices (not accessories!)[4]
Take note that MUTINY is also punished

Piracy / Mutiny
Offenders are neither members of the complement of the vessel nor passengers (under Art 122) / Offenders are the passengers and may include the members of the complement of the vessel
Essence: robbery where the taking is the seizure of the vessel or cargo or personal belongings of the passengers / Essence: to protest or to go against the lawful command of the captain employing violence and endangering the safety of passengers. Gain is merely incidental.

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: