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August 2, 2018

Basis of retroactivity of penal laws: Article 22, RPC

What is Article 21, RPC?

- No felony shall be punishable by any penalty not prescribed by law prior to its

When did the RPC take effect?

- January 1, 1932

When was it enacted?

- December 8, 1930

What is Article 2, RPC?

- Except as provided in the treaties and laws of prefferential application, the

provisions of this Code shall be enforced not only within the Philippine
archipelago, but also outside of its jurisdiction against those who:

1. Should commit an offence while on a Philippine ship or airship;

2. Should forge or counterfeit any coin or currency note of the Philippine Islands
or the obligations and securities issued by the Government of the Philippine

3. Should be liable for any act connected with the introduction into these islands
of the obligations and securities mentioned in the preceding number;

4. While being public officers and employees, should commit an offence in the
exercise of their functions;

5. Should commit any of the crimes against national security and the law of nations
as defined in Title I Book II of this Code.

Note: Memorize verbatim the first provisions of the RPC.

What is the English rule?

- It is one of the rules in identifying the country having jurisdiction over crimes
committed while on foreign merchant vessels. This rule follows territoriality,
meaning, the jurisdiction over crimes committed while on the foreign merchant
vessel falls under the country where the vessel is found. Exceptions would be
crimes involving purely internal matters within the vessel.

Applies to what kind of vessel?

-Foreign merchant vessel

What is the French rule?

- This rule follows nationality, meaning, the jurisdiction over crimes committed
while on the foreign merchant vessel falls under the country to which the vessel is
registered. Exceptions would be crimes that puts into danger the peace and security
of the state where it is found.

What do we follow and why?

- In the case of People v. Wong Cheng, we followed the English rule as it is the
prevailing rule in the US, to which the Philippines was a territory. However, the
UNCLOS, a treaty to which the Philippines is a signatory, provides that: �The
criminal jurisdiction of the coastal State should not be exercised on board a
foreign ship passing through the territorial sea to arrest any person or to conduct
any investigation in connection with any crime committed on board the ship during
its passage, save only in the following cases: (a) if the consequences of the crime
extend to the coastal State; (b) if the crime is of a kind to disturb the peace of
the country or the good order of the territorial sea; (c) if the assistance of the
local authorities has been requested by the master of the ship or by a diplomatic
agent or consular officer of the flag State; or (d) if such measures are necessary
for the suppression of illicit traffic in narcotic drugs or psychotropic
substances. (UNCLOS Art. 27)

Note: Read the case of People v. Wong Cheng. What is observed by US v. UN

Convention on the Law of the Sea (to which the PH is a signatory

What is extraterritorial jurisdiction?

- The application of our criminal laws and jurisdiction of Philippine courts to

crimes committed outside of its territory as enumerated under Article 2, RPC.

What is the difference between extraterritoriality and extraterritorial


- The first is the non-application of our criminal laws to certain individuals

exempted by treaty and laws of preferential application. The second is the
application of our criminal laws to certain persons or crimes committed outside the
Philippine territory as provided by Article 2, RPC.

Note: Extraterritoriality and exterritoriality are the same.

How do you determine if it a Philippine ship or airship?

- If registered with MARINA Marine Industry Authority (ship) or CAAP Civil Aviation
Authority of the Philippines (airship)

If rebellion was committed abroad, can the offenders be held criminally liable here
in the Philippines? Legal basis?
- No. Because rebellion is not covered by our extraterritorial jurisdiction. It
does not fall under any of the 5 instances provided in Art. 2, RPC.

Enumerate the felonies against national security?

- Treason, Conspiracy and proposal to commit treason, Misprision of treason, and


Note: Differentiate felonies against national security and crimes against the laws
of nation.

- Crimes against the law of nations include Inciting war or giving motives for
reprisals, Violation of neutrality, Correspondence with hostile country, Flight to
enemy�s country, Piracy in general and mutiny in the high seas or Philippine water

What is hostes humani generis?

- Enemies of mankind

What is the case of People v. Lol-lo and Saraw?

- Piracy*** Pirates are hostis humani generis �enemies of mankind�

What is the distance of the territorial sea? The contiguous zone?

- The territorial sea is 12 nautical miles from the baseline, and the contiguous
zone is 24 nautical miles from the baseline or streatching another 12 miles from
the territorial sea.

Does our criminal laws apply in the contiguous zone?

- No. Only customs, fiscal, immigration and sanitary laws and regulations are
applicable in the contiguous zone (UNCLOS Art. 33)

What is the cannon shot rule?

- It is the three mile rule from the coast where a nation can exercise ownership
over waters. It was an old rule based from the distance of the sea that a cannon
shot from the shore can reach.

There is a foreign merchant vessel in the high seas, one Filipino punched another
Filipino. Who has jurisdiction?

- The national where the foreign vessel is registered because of extraterritorial

jurisdiction. The Philippines cannot take cognisance of the case because a foreign
merchant vessel in the high seas is outside our jurisdiction.

What if another foreign vessel arrived and attacked the Filipinos on board, seized
their belongings and killed them. Can the Philippines exercise jurisdiction?
- Yes. Because the acts committed constitute piracy, which is a crime not subject
to territorial limitations. Piracy is a crime not against any particular State but
to a crime against all nations and thus may be tried under any jurisdiction.

You got married in the Philippines then you went to Japan and got married again
with someone else there. Your were charged here of bigamy. Can you be held liable?
Legal basis?

- No. Because of the rule of territoriality. Crimes committed outside the

Philippines are not within Philippine jurisdiction except those provided in Art. 2,

What is the case of AAA v. BBB?

- Mental abuse in violation of the VAWC law***

Note: SC made a wrong decision in this case. The court classified the crime as a
transitory or continuing crime and disregarded the territoriality principle.

What is RA 75?

- One of the laws on preferential application which exempts public ministers,

ambassadors and their domestic servants from arrest, prosecution and imprisonment,
including their goods and chattels from restrain, attachment and seizure.

An American ambassador to Japan went to the Philippines to travel and killed a

Filipino. Can he be held liable here?

- Yes. Because he is not an ambassador to the Philippines and does not enjoy
immunity insofar as the Philippines is concerned.

Who else are immune under RA 75?

- Ministers and the domestic servants of these ambassadors and ministers

How can a domestic servant be exempt?

- A domestic servant is exempt when accredited by the Philippine Government through

registration with the Department of Foreign Affairs.

When are they not exempt?

- When the domestic servant is a Filipino citizen and the procedure related to a
debt he/she contracted prior to entering the service.

- Also, when the hosted country do not practice reciprocity.

What is the rule of reciprocity?

- It is the rule where the Philippine laws only grant rights and privileges to
certain foreign individuals when the same rights and privileges are granted by
their laws in favor of Filipinos of similar standing staying in their country.

What are the other instances of extraterritorial jurisdiction aside from those
provided in Article 2, RPC?

Note: Human Security Act, Anti-Human Trafficking, Violations of International

Humanitarian Law, Genocide, Piracy Law, Data Privacy Law

Give examples of treaties and laws of preferential application aside from RA 75?

- Visiting Forces Agreement w/ USA, ADB Charter, Vienna Convention on Diplomatic

Relations, UN Convention, WHO Host Agreement

*The Vienna Convention on Diplomatic Relations, which was ratified on 18 April

1961, is a codification of centuries-old customary law affording protection to
foreign diplomats. The Convention lists the classes of heads of diplomatic missions
to include (a) ambassadors or nuncios accredited to the heads of state, (b) envoys,
ministers or internuncios accredited to the heads of states; and (c) charges d�
affairs accredited to the ministers of foreign affairs. Comprising the �staff of
the (diplomatic) mission� are the diplomatic staff, the administrative staff and
the technical and service staff.

*The Philippines has accorded the Holy See (Vatican) the status of a foreign
sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had
diplomatic representations with the Philippine government since 1957. This appears
to be the universal practice in international relations.

*The Philippines is a member of the UN and a party to the Convention on the

Privileges and Immunities of the Specialized Agencies of the United Nations. It
adheres to the doctrine of immunity granted to the UN and its specialized agencies.
These treaties have the force and effect of law here in the Philippines. Among the
UN specialized agencies, the immunity of which were upheld by the Philippine
Supreme Court: World Health Organization (WHO) and the United Nations Revolving
Fund for Natural Resources Exploration (UNRFNRE).

*Other international organisations accorded immunity in the Philippines:

1. Southeast Asian Fisheries Development Center (SEAFDEC), which was established by

Burma, Cambodia, Indonesia, Japan, Laos, Malaysia, Philippines, Singapore, Thailand
and Vietnam, for the purpose of contributing to the promotion of the fisheries
development in Southeast Asia.

2. International Rice Research Institute (IRRI), which enjoys immunities accorded

to international organizations. Presidential Decree No. 1620 provides:

Art. 3. Immunity from Legal Process. The Institute shall enjoy immunity from any
penal, civil and administrative proceedings, except insofar as that immunity has
been expressly waived by the Director-General of the Institute or his authorized

3. International Catholic Migration Commission (ICMC), which was accredited by the

Philippine Government to operate the refugee processing center in Morong, Bataan.
It�s a non-profit agency involved in international humanitarian and voluntary work.

4. Asian Development Bank (ADB). Being an international organization that has been
extended diplomatic status, the ADB is independent of the municipal law. The
Supreme Court, while cognizant of this immunity, also found that the immunity
applies only to acts performed in an official capacity. Section 45 (a) of the
Agreement Between the Asian Development Bank and the Government of the Republic of
the Philippines Regarding the Headquarters of the Asian Development Bank provides:

Officers and staff of the Bank, including for the purpose of this Article experts
and consultants performing missions for the Bank, shall enjoy the following
privileges and immunities:

(a) Immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.

What is WHO v. Aquino?

- Importation of 12 crates of personal effects by WHO Acting Assistant Director of

Health Services Dr. Verstuyft was seized pursuant to a search warrant issued by
Judge Aquino*** in violation of the Convention on the Privileges and Immunities of
the Specialized Agents of the United Nations particularly the Host Agreement
between Philippines and the World Health Organisation.

What is VFA?

- Visiting Forces Agreement with the US, providing for the rules on jurisdiction
over crimes committed within the Philippines by US military personnel and civilian
personnel connected to the US military operations. It provides for exclusive,
concurrent and primary jurisdiction. Under the VFA, the following are under US
jurisdiction, crimes committed by US military personnel:

1. against the security of another US military personnel

2. against the property of another US military personnel

3. against the security of US

4. against the property of US

5. while in the performance of official duties

Note: The Philippines had the Military Bases Agreement and Mutual Defense Treaty
with the USA. But it was not extended in 1991. Later, the VFA was signed giving
more jurisdiction to the Philippines.

What is exclusive jurisdiction? What is primary jurisdiction?

- Exclusive jurisdiction is present when the crime is punishable only by the laws
of one country, to which the exclusive jurisdiction will pertain. When the crime is
punishable under the laws of both countries, there is concurrent jurisdiction.
Under the VFA, the Philippines practice primary jurisdiction or is the preferred
jurisdiction when there is concurrency. The Philippine has absolute primary
jurisdiction over crimes that threat national security. For other crimes, the
Philippines still have primary jurisdiction but the US may request a waiver of
jurisdiction, to which the Philippines must accommodate, except if the crime is of
particular importance: (a) RA 9659 Heinous crimes, (b) RA 7610 Child abuse, and (c)
RA 9165 Dangerous drugs.
Who commits the crime?

US military personnel or civilian personnel connected with the US military


You were with your girlfriend in the Japanese embassy and killed her. Can you be
held criminally liable in the Philippines?

- Yes. The Japanese embassy is still part of the Philippine territory.

The ground occupied by an embassy is not in fact the territory of the foreign State
to which the premises belong through possession or ownership. The lawfulness or
unlawfulness of acts there committed is determined by the territorial sovereign. If
an attache commits an offense within the precincts of an embassy, his immunity from
prosecution is not because he has not violated the local law, but rather for the
reason that the individual is exempt from prosecution.

Note: Embassy remain under the jurisdiction of the host state. The embassy rule
only applies when beneficial to the host state.

Other examples of people who can commit crimes in the Philippines but cannot be
criminally liable?

- Vienna Convention on Diplomatic Relations

- Presidential, Parliamentary and Judicial immunity

The Japanese President went to the Philippines and killed a Filipino. Can he be

- No. Head of State and cannot be sued under the Vienna Convention and the
principle of par in parem non habet imperium.

Why are the President, members of Congress and Justices of the Supreme Court immune
from criminal laws until impeached?

- Because they enjoy an immunity for the following reasons:

1. Action upon important matters of state are not delayed by the time and effort
taken by court proceedings;

2. Avoid disrespect to the position they hold;

3. Avoid distrust to government integrity; and

4. To allow these high officials to perform their duties without the fear of

Note: Read the case of Estrada v. Desierto.

*Status of Ejercito Estrada with regards to his presidency and if he entitled to

absolute immunity.
Note to self: Rubrico v. Macapagal-Arroyo

Settled is the doctrine that the President, during his tenure of office or actual
incumbency,may not be sued in any civil or criminal case, and there is no need to
provide for it in the Constitution or law. It will degrade the dignity of the high
office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed
from any form of harassment, hindrance or distraction to enable him to fully attend
to the performance of his official duties and functions. Unlike the legislative and
judicial branch, only one constitutes the executive branch and anything which
impairs his usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the operation of the

You were convicted to a punishment of 10 years. On your 5th year, a law was passed
making the crime you committed no longer punishable. What should happen to you?

- I will be released because the law can apply retroactively being favorable to me,
assuming I am not a habitual delinquent and the law does not prohibit its
retroactive application.

What is the difference of releasing a prisoner and acquitting a prisoner?

- Acquitting a prisoner is finding him not guilty of the crime charged. This is
obtained upon trial of the merits of the case. On the other hand, releasing a
prisoner means the trial is not pursued to determine liability since the crime has
been abolished or the release of a prisoner from imprisonment who is already
serving sentence for being previously found guilty.

What is Article 3?

- Acts and omissions punishable by law are felonies (delitos).

Felonies are committed not only by means of deceit (dolo), but also by means of
fault (culpa).

There is deceit when the act is performed with deliberate intent and there is fault
when the wrongful act results from negligence, imprudence, lack of foresight and
lack of skill.

What is imprudence? Negligence?

- Imprudence is the deficiency of action of lack of skill. Negligence is the

deficiency of perception or lack of foresight.

Note: Draw an outside bracket to connect imprudence with lack of skill, and an
inner bracket to connect negligence with lack of foresight. There is no basis for
defining imprudence and negligence like this except from Reyes (book). But old
jurisprudence defined imprudence as lack of precaution, and its difference with
negligence is the degree.
According to critics, Article 3, RPC has 2 mistakes. What are these?

- There are 2:

1. The word felony should be termed �crime� or, alternatively, the word �law�
should be �this Code (RPC)�

2. The word �dolo� should have been �dolus" that is the strict latin translation of


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