TRACK RECORD: Using GPS on Suspects

By Obiter07

Can the police track you electronically while using your vehicle without a warrant? Is this a valid mode of surveillance since roads are public places? The U.S. Supreme Court ruled against this practice in the case of United States vs. Jones, January 23, 2012.  U.S. jurisprudence has persuasive effect in our jurisdiction (PHILIPPINE HEALTH CARE PROVIDERS, INC. vs. COMMISSIONER OF INTERNAL REVENUE, G.R. No. 167330, September 18, 2009]. US vs Jones is potentially important to us when our law enforcement authorities begin to use electronic means for surveillance and information-gathering.

In this case, a search warrant was secured allowing the installation of a Global-Positioning-System (GPS) tracking device on a Jeep registered to the defendants’ wife.  This was supposed to be installed in a certain state and within 10 days.  However, the GPS was installed 11 days later and in another state.   In effect, the vehicle was tracked without a warrant for almost a month.  Hence, by “means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.”

The defendant was later convicted of drug trafficking conspiracy charges but this was overturned on appeal because of the “admission of the evidence obtained by warrantless use of the GPS device which, it said, violated the Fourth Amendment.”  The government raised the issue to the U.S. Supreme Court.

As affirmed by the U.S. Supreme Court, the Fourth Amendment deals with the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Court held that a vehicle falls under the term “effects” and that the “Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’”  Placing the GPS on the vehicle was a physical occupation of private property for the purpose of obtaining information. And “such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment  xxx.”  

The Government argued that the defendant “had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all.”  The Court stated that the Fourth Amendment also relates to insuring “preservation of that degree of privacy against government that existed when the Fourth Amendmentwas adopted.”  It made a distinction with previous cases where electronic tracking devices were also installed on containers with the consent of a third party which somehow ended up with the defendant who accepted it.  The transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade xxx privacy.”  In this case, the defendant “who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing.”

The Government also points to a previous decision where “[t]he exterior of a car . . . is thrust into the public eye, and thus to examine it does not constitute a ‘search.’ ” The Court was unconvinced, finding that “xxx By attaching the device to the Jeep, officers encroached on a protected area.”  In any event, the Court stated that it is not deviating “from the understanding that mere visual observation does not constitute a search” such that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”   This seems to raise the question, what is the real difference between the police tailing a suspect and placing a tracker on his car instead?  It seems the difference is that a device was placed on the car without a warrant which appears to have been what the Court found objectionable. Law enforcement authorities do not have an untrammeled discretion to effect searches on citizens either through GPS or other physical means.

This can be a philandering husband’s worse nightmare, a GPS tracker attached to his car by his wife to trace his whereabouts.  Unfortunately for him, this decision only targets possible excesses by law enforcement, not the possible actions of a suspicious spouse.

NEWER POST       |       PREVIOUS POST

HULI-DAP AND THE LIKE: When Probable Cause is a Pre-requisite to a Warrantless Arrest and Search

By Obiter 07

If you shout in public, can you be arrested and searched for drugs just like that? The police in Goco vs. People of the Philippines, February 13, 2013 G.R. No. 198694 obviously thought so. In December 29, 2007, they were on foot patrol when they took into custody the accused in this case, ostensibly for shouting ““Putangina mo, Limang daan na ba ito?” in a public place as he pointed to his pocket. Using a Manila Ordinance, which penalizes breaches of the peace, he was apprehended and asked to empty his pockets. The police recovered a plastic sachet containing what was suspected to be shabu which they confiscated. This was later examined and found to be positive as methylamphetamine hydrochloride (or shabu). The story seems particularly inspired, as it paints a drug buyer protesting being short-changed just within earshot of the police.

This account of the police was denied by the accused who alleged that he was walking at around 4 p.m. when a man in civilian clothes approached him and asked him his name. After responding, he was handcuffed and detained. He was asked if he was carrying illegal drugs which he denied. A policeman then asked his wife for P20,000 in exchange for his release. When this could not be produced, he was brought in for inquest proceedings. He was convicted by the Regional Trial Court (“RTC”) which verdict was affirmed by the Court of Appeals. The lower court upheld his warrantless arrest as he was disturbing the peace at the time of his apprehension. The Court of Appeals agreed, stating that the “body search made on Ramon as an incident of a lawful warrantless arrest for breach of the peace which he committed in the presence of the police officers, notwithstanding its subsequent dismissal (i.e., the case for breach of the peace) for failure to prosecute. xxx” So it would appear that the original charge which led to his conviction was not even pursued. This case seems very curious. And it seems more curious that the courts were not apparently aware of how the police would resort to shortcuts, or worse, “hulidap” arrests. The Court of Appeals even made reference to “the presumption of regularity in the performance of the police officers’ official duties.” When this presumption goes against the presumption of innocence, which would prevail?

The Supreme Court ruled in the accused’s favor and overturned his conviction.  It cited Section 2, Article III of the 1987 Philippine Constitution which states:

“Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.”

To ensure that this “sacrosanct right remains revered, effects secured by government authorities in contravention of the foregoing are rendered inadmissible in evidence for any purpose, in any proceeding.”   This is provided for Section 3(2), Article Ill of the Constitution: “Any evidence obtained in violation of this or the preceding section [referring to Section 2] shall be inadmissible for any purpose in any proceeding.” This is known as the “exclusionary rule” which is subject to certain traditional exceptions such as “customs searches, searches of moving vehicles, seizure of evidence in plain view, consented searches, “stop and frisk” measures and searches incidental to a lawful arrest.” This last exception was relied upon in the instant case.

The Court stated the basis for a valid arrest without a warrant:

“A valid warrantless arrest which justifies a subsequent search is one that is carried out under the parameters of Section 5(a), Rule 113 of the Rules of Court which requires that the apprehending officer must have been spurred by probable cause to arrest a person caught in flagrante delicto. To be sure, the term probable cause has been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged.” Specifically with respect to arrests, it is such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. In this light, the determination of the existence or absence of probable cause necessitates a re-examination of the factual incidents.”

The Court reviewed the facts surrounding the accused’s arrest for breach of the peace under

Section 844 of the Manila City Ordinance which provides:

“Sec. 844. Breaches of the Peace. No person shall make, and, countenance, or assist in making any riot, affray, disorder, disturbance, or breach of the peace; or assault, beat or use personal violence upon another without just cause in any public place; or utter any slanderous, threatening or abusive language or expression or exhibit or display any emblem, transparency, representation, motto, language, device, instrument, or thing; or do any act, in any public place, meeting or procession, tending to disturb the peace or excite a riot, or collect with other persons in a body or crowd for any unlawful purpose; or disturbance or disquiet any congregation engaged in any lawful assembly. xxx”

The Court observed that the “the gravamen of these offenses is the disruption of communal tranquillity. Thus, to justify a warrantless arrest based on the same, it must be established that the apprehension was effected after a reasonable assessment by the police officer that a public disturbance is being committed.”

Based on the apprehending officer’s own testimony, they were on routine patrol when they heard the accused shout.  He admitted that the place was thickly populated, with many people outside their houses where everybody was also talking and noisy.  For the Court, this negated “the presence of probable cause when the police officers conducted their warrantless arrest of Ramon. To elucidate, it cannot be said that the act of shouting in a thickly-populated place, with many people conversing with each other on the street, would constitute any of the acts punishable under Section 844 of the Manila City Ordinance as above-quoted. Ramon was not making or assisting in any riot, affray, disorder, disturbance, or breach of the peace; he was not assaulting, beating or using personal violence upon another; and, the words he allegedly shouted - “Putangina mo Limang daan na ba ito’ - are not slanderous, threatening or abusive, and thus, could not have tended to disturb the peace or excite a riot considering that at the time of the incident, Balingkit Street was still teeming with people and alive with activity.”

In fact, a witness testified the accused was just taken away. “Further, it bears stressing that no one present at the place of arrest ever complained that Ramon’s shouting disturbed the public. On the contrary, a disinterested member of the community (a certain Rosemarie Escobal) even testified that Ramon was merely standing in front of the store of a certain Mang Romy when a man in civilian clothes, later identified as PO2 Soque, approached Ramon, immediately handcuffed and took him away.”

The Court did not that find that “these facts and circumstances could not have engendered a well-founded belief that any breach of the peace had been committed by Ramon at the time that his warrantless arrest was effected. All told, no probable cause existed to justify Ramon’s warrantless arrest.”

                                                     

While the Court acknowledged that the legality of an arrest “depends upon the reasonable discretion of the officer or functionary to whom the law at the moment leaves the decision to characterize the nature of the act or deed of the person for the urgent purpose of suspending his liberty for this should not be exercised in a whimsical manner, else a person’s liberty be subjected to ubiquitous abuse. As law enforcers, it is largely expected of them to conduct a more circumspect assessment of the situation at hand. The determination of probable cause is not a blanket-license to withhold liberty or to conduct unwarranted fishing expeditions. It demarcates the line between legitimate human conduct on the one hand, and ostensible criminal activity, on the other. In this respect, it must be performed wisely and cautiously, applying the exacting standards of a reasonably discreet and prudent man. Surely, as constitutionally guaranteed rights lie at the fore, the duty to determine probable cause should be clothed with utmost conscientiousness as well as impelled by a higher sense of public accountability.”

Since the accused was not validly arrested, the “warrantless search that resulted from it was also illegal.” The shabu purportedly seized from the accused is “inadmissible in evidence for being the proverbial fruit of the poisonous tree as mandated by the above discussed constitutional provisions.” The accused was therefore acquitted.

It is alarming to read about police involvement in crime and abuses, a favorite one of which is the “hulidap” and which merited a definition by the Supreme Court thus: “A term for "Arrest-Hold-up" employed for “framing innocent people” (People vs. Tiu, et al. G.R. 142885. October 22, 2003) and often employed to extort money from them.   As shown in the Goco case though, we can at least look to the Supreme Court to arrest the abuses by the police in effecting warrantless arrests and illegal searches. And it is unfortunate that such a seemingly uncomplicated case had to reach the Supreme Court in the first place. What would be even more unfortunate is the time the accused may have had to spend under detention while his case was heard.

NEWER POST       |       PREVIOUS POST

True Confessions: Admissibility of TV interviews

By Obiter07

As enshrined in Article III of the Constitution, a suspect is guaranteed certain rights:

SECTION 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2)        . . .

(3)        Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

(4)        . . ."[1]

Convictions have been thrown out because of confessions secured illegally since this was not made in the presence of counsel.  What is not commonly known is the fact that certain admissions can actually be used against the accused even in the absence of counsel.  And this was what happened in PEOPLE vs. ANDAN [G.R. No. 116437.  March 3, 1997.]

The accused in this case was charged with rape and homicide.  The victim, a 2^nd year Nursing student, was invited inside the accused’s house on the pretext that she was to take the blood pressure of his grandmother-in-law.  As established by the prosecution, she agreed.  He “then punched her in the abdomen, brought her to the kitchen and raped her. His lust sated, appellant dragged the unconscious girl to an old toilet at the back of the house and left her there until dark.  Night came and appellant pulled Marianne, who was still unconscious, to their backyard.  The yard had a pigpen bordered on one side by a six-foot high concrete fence.  On the other side was a vacant lot.  Appellant stood on a bench beside the pigpen and then lifted and draped the girl's body over the fence to transfer it to the vacant lot.  When the girl moved, he hit her head with a piece of concrete block.  He heard her moan and hit her again on the face. After silence reigned, he pulled her body to the other side of the fence, dragged it towards a shallow portion of the lot and abandoned it. xxx”

The mayor formed a police team to apprehend the culprit.  They found the “a broken piece of concrete block stained with what appeared to be blood” at the crime scene, among other items.  When the accused’s nearby house was searched, they found bloodstains on the pigpen’s wall at the backyard. They traced the accused to his parent’s house and brought him to police headquarters.  He denied any knowledge of the crime during the initial interrogation.  When confronted with the concrete block, he pointed to his two neighbors as the killers, stating that he was only the lookout.  He then indicated where the victim’s two bags could be found which were recovered at his house.

The three suspects were then brought back to headquarters.  During a medical examination, the suspect was found to have multiple scratches on his neck and abrasions on his chest and back.  The mayor arrived and at the investigation room, the suspect approached him and asked for a private audience.  He then “broke down and said "Mayor, patawarin mo ako! I will tell you the truth. I am the one who killed Marianne."

The mayor then allowed the public and media to witness the confession.  He asked for a lawyer to assist but since one could not be found, he directed that the proceedings be photographed and videotaped.  In the presence of the mayor, the police, representatives of the media and his own wife and son, the accused confessed his guilt.  His confession was captured on videotape and covered by the media.  Over the next two days, he was again interviewed and he affirmed his confession to the mayor and reenacted the crime. However, at trial, he entered a plea of "not guilty."  His alibi was that he had attended a birthday party and was with his family until picked up by the police. And that he was brought to a hotel by the police and tortured to confess.

He was convicted by the trial court. Upon review with the Supreme Court, he questioned the “admission of the testimonies of the policemen, the mayor and the news reporters because they were made during custodial investigation without the assistance of counsel.”  Hence, any confession or admission made is inadmissible against him.

The Court ruled that his confession to the police as well as the two bags found at his house were inadmissible.  He was already a suspect when interrogated and he was already entitled to his rights under the Constitution.  However, the Court ruled against him with respect to his public confessions to the mayor and media.  While the “mayor has "operational supervision and control" over the local police and may arguably be deemed a law enforcement officer for purposes of applying Section 12 (1) and (3) of Article III of the Constitution, his “confession to the mayor was not made in response to any interrogation by the latter. In fact, the mayor did not question appellant at all. No police authority ordered appellant to talk to the mayor.” He “spontaneously, freely and voluntarily” sought the mayor for a meeting. As observed by the Court: “The mayor did not know that appellant was going to confess his guilt to him. When appellant talked with the mayor as a confidant and not as a law enforcement officer, his uncounselled confession to him did not violate his constitutional rights.  Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime.  What the Constitution bars is the compulsory disclosure of incriminating facts or confessions.  The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth.  Hence we hold that appellant's confession to the mayor was correctly admitted by the trial court.”

As to the confessions before media, these “were likewise properly admitted. The confessions were made in response to questions by news reporters, not by the police or any other investigating officer. We have held that statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence.”

The Court further stated thus: “Clearly, appellant's confessions to the news reporters were given free from any undue influence from the police authorities.  The news reporters acted as news reporters when they interviewed appellant.  They were not acting under the direction and control of the police.  They were there to check appellant's confession to the mayor.  They did not force appellant to grant them an interview and reenact the commission of the crime.  In fact, they asked his permission before interviewing him.  They interviewed him on separate days not once did appellant protest his innocence.  Instead, he repeatedly confessed his guilt to them.  He even supplied all the details in the commission of the crime, and consented to its reenactment.  All his confessions to the news reporters were witnessed by his family and other relatives. There was no coercive atmosphere in the interview of appellant by the news reporters.”

“We rule that appellant's verbal confessions to the newsmen are not covered by Section 12 (1) and (3) of Article III of the Constitution. The Bill of Rights does not concern itself with the relation between a private individual and another individual It governs the relationship between the individual and the State.  The prohibitions therein are primarily addressed to the State and its agents.  They confirm that certain rights of the individual exist without need of any governmental grant, rights that may not be taken away by government, rights that government has the duty to protect.  Governmental power is not unlimited and the Bill of Rights lays down these limitations to protect the individual against aggression and unwarranted interference by any department of government and its agencies.”

It is a truism that a liar is sometimes caught by his own tongue.  Even a criminal can be caught in the same manner as well.  It is sad to note that the accused here could have gotten away scot-free if the only evidence came from the police.  Fortunately, driven by his conscience or loquacity, and with the help of a quick-thinking mayor and media, the victim here got some measure of justice.  Confessions, no matter how true, will not be heard by the courts if secured through foul means.  And confessions, though made without counsel, are admissible if made voluntarily.  As the accused here found, talk is not always so cheap.

---

[1]  This has been further codified in R.A. No. 7438 55 which requires that "[a]ny person arrested, detained or under custodial investigation shall at all times be assisted by counsel." The last paragraph of Section 3 of the same law mandates that "[i]n the absence of any lawyer, no custodial investigation shall be conducted."

NEWER POST       |       PREVIOUS POST

CRIMINAL LIBEL IS AGAINST FREEDOM OF EXPRESSION (The United Nations Human Rights Committee expresses itself to the Philippines)

By Siesta-friendly

We should have de-criminalized decades ago after we ratified the International Covenant on Civil and Political Rights (ICCPR)[1] on October 23, 1986.[2]  Yet, we continue to imprison people guilty of libel pursuant to Article 355 of the Revised Penal Code which imposes the penalty of “prision correccional in its minimum and medium periods [i.e., from 6 months and 1 day to 4 years and 2 months] or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.”

This unwarranted inconsistency between our treaty obligation and our local law was made glaring by the decision of the United Nations Human Rights Committee (UNHRC) in Adonis vs. The Philippines (aka the Views adopted by the UNHRC at its 103rd session, 17 October–4 November 2011).[3]

Background of Adonis vs. The Philippines

Alexander Adonis is a “broadcast journalist based in General Santos City in Mindanao and commentator for the program Radyo Alerto”[4] who made commentaries back in July 2001 –

“In those commentaries, he criticized the alleged illicit relationship between then Congressman Prospero Nograles and Davao City television personality Jeanette Leuterio …

He called Nograles “Burlesque King” after Leuterio’s husband allegedly caught the two in bed in a Makati Hotel. In his commentaries, Adonis said Nograles ran naked from the room to escape the husband’s wrath.

Nograles filed two libel cases against Adonis.  In April 2007, Adonis was convicted on the second libel case, and was sentenced to four years and six months in prison.  He served time for two years.

The Department of Justice Board of Pardon and Paroles granted his parole in December 2007 but he wasn’t released until a year later because Leuterio filed another libel case against Adonis based on the same “Burlesque King” report…

While he was in prison, he sent a Communication through the help of Center for International Law before the United Nations Human Rights Committee (UNHRC) questioning his imprisonment, saying that it violated his right to free expression.”[5]

Adonis vs The Philippines: Imprisonment for Libel is Incompatible with the Right to Freedom of Expression

In his complaint before the UNHRC, Adonis alleged “that his conviction for defamation under the Philippine Penal Code constitutes an illegitimate restriction of his right to freedom of expression because it does not conform to the standards set by article 19, paragraph 3, of the [ICCPR].”[6]

Although Adonis specifically cites Article 19 paragraph 3 of the ICCPR, it is helpful to know the entire Article 19 which refers to freedom of expression -

1.      Everyone shall have the right to hold opinions without interference.

2.      Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3.      The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a)    For respect of the rights or reputations of others;

(b)   For the protection of national security or of public order (ordre public), or of public health or morals.

In holding that Adonis’ imprisonment was incompatible with Article 19, paragraph 3 of the ICCR., the UNHRC cited its General Comment No. 34[7] which states that:

“defamation laws must be crafted with care to ensure that they comply with paragraph 3, and that they do not serve, in practice, to stifle freedom of expression. All such laws, in particular penal defamation laws, should include such defences as the defence of truth and they should not be applied with regard to those forms of expressions that are not, of their nature, subject to verification. At least with regard to comments about public figures, consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defence. Care should be taken by States parties to avoid excessively punitive measures and penalties. … States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty”.

In other words, the UNHRC said that defamation laws: (1) should allow the accused to put up defenses of truthful statement/s, statements made in error but without malice, and/or public interest in the subject matter, (2) should not provide “excessively punitive measures and penalties” and, (3) should not impose imprisonment in any case.  Also, pursuant to Article 19, paragraph 3, the UNHRC urged that our defamation laws be decriminalized and that criminal law should only be allowed “in the most serious of cases”.  None of these are true as regards our laws on defamation/libel.

Further, the UNHRC held that –

“the [Philippines] is under an obligation to provide [Adonis] with an effective remedy, including adequate compensation for the time served in prison. The [Philippines] is also under an obligation to take steps to prevent similar violations occurring in the future, including by reviewing the relevant libel legislation.”

In ending, the UNHRC reminded the Philippines of Article 2 of the ICCPR which we deem important to detail below:

1.      Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2.      Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3.      Each State Party to the present Covenant undertakes:

(a)    To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b)   To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c)    To ensure that the competent authorities shall enforce such remedies when granted.

Therefore, the UNHRC held that, since the Philippines under Article 2 has “undertaken to [1] ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the [ICCPR] and [2] to provide an effective remedy when it has been determined that a violation has occurred”, the [UNHRC] requested from the Philippines, “information about the measures taken to give effect to the [UNHRC’s] Views”, within 180 days.[8]

It is sad, frustrating and shameful that Filipinos have to go to an international body to find redress from the application of our local laws.  There is no good reason why we have not amended our libel laws after ratifying the ICCPR and after nearly 3 decades to boot.

Before we end, we note that the ICCPR encompasses other civil and political rights that more Filipinos may have to go the UNCHR for redress in case these rights are violated or otherwise disrespected by the state, like say, the right to freedom of information.

---

[1]  999 UNTS 171 and 1057 UNTS 407 / [1980] ATS 23 / 6 ILM 368 (1967)

[2]  Retrieved from: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en

[3]  Communication No. 1815/2008 : Human Rights Committee : Views Adopted By The Committee At Its 103rd Session, 17 October-4 November 2011.  CCPR/C/103/D/1815/2008/Rev.1. (2012, April 26).  Retrieved from http://ccprcentre.org/doc/OP1/Decisions/103/1815%202008%20Adonis%20v.%20the%20Philippine_en.pdf  

[4]  Ordenes, L. (2012, October 1). Jailed for libel, broadcaster asks sc to protect free speech. Retrieved from http://verafiles.org/jailed-for-libel-broadcaster-asks-sc-to-protect-free-speech/

[5]  Ibid.

[6]  See supra note 3.

[7]  General Comment No. 34, Article 19, Freedoms Of Opinion And Expression. CCPR/C/GC/34. (September 12, 2011). Retrieved from  http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf

[8]  See supra note 3.

NEWER POST       |       PREVIOUS POST

GUNNING FOR GUN CONTROL (Some Arguments in favor of Gun Control)

By Siesta-friendly

Amazingly, the Philippine government seems to not have made the connection between gun-related crimes and gun ownership.  For why else would we have Executive Order 194 (February 24, 2000)which allows Filipinos to own practically as many firearms as they want? E.O. 194 repealed “General Order Nos. 7, 7-A, 7-B and 7-C which authorize[d] certain individuals to possess and carry firearms, limit[ed] the number of firearms to be possessed and regulate[d] the operation of gun clubs” (Sec. 1).

Government allows ownership of unlimited number of firearms

Sec. 2 of the E.O. makes it clear by stating “all citizens of the Philippines may possess firearms of any type and/or caliber”.  The only exceptions are the following weapons:

1. crew-served weapons (CSWs) – we just learned that it means any weapon that requires 2 or more people to operate it
2. light anti-tank weapons (LAWs),
3. light machine guns (LMGs),
4. anti-tank,
5. anti-personnel recoilless rifles,
6. bazookas, and
7. etc. – we have yet to determine what type of weapon this term exactly refers to.

So we prevent people from possessing weapons for war but we don’t prevent them from possessing weapons for massacre?  

Last January 3, 2013, drug-crazed Ronald Bae shot and killed 2 children and 5 adults and shot and injured 2 more children and 10 more adults.  Although he only used a .45 cal pistol during his murderous rage, in 2007, he had “gun licenses for an AK-47 assault rifle, a 5.56-mm-cal. M16 Elisco rifle and a .45-cal. Sig Sauer pistol” before the PDEA found them and confiscated them from him.[1]  We shudder to imagine how many more Bae could have killed if he still had the confiscated weapons with him.  And how many more Ronald Baes do we need to go on a shooting spree before we scrap this ill-conceived E.O. and get more strict on gun ownership? 

That Sec. 2 of E.O. 194 requires all firearms to be “test-fired for ballistics, stenciled and properly licensed” only partially helps in gun control efforts because it does not limit the number of guns one may own.  Same goes for the PNP Guidelines In The Issuance Of Permit To Carry Firearms Outside Of Residence which state that “persons who are lawful holders of firearms … are prohibited from carrying their firearms outside of residence”.[2]  

People who go on shooting sprees are not likely to first consider whether their weapons have been “test-fired for ballistics, stenciled and properly licensed” nor whether they have a permit to carry the same.

It also doesn’t help that the Permit To Carry Firearms Outside Of Residence (PTCFOR) seems not that difficult to obtain especially if one can afford paying for the permit and the corresponding requirements.   An article on Rappler.com by Natashya Gutierrez “Want to own a gun? Here's how easy it is” is informative.

In the U.S.A., gun control efforts are opposed pursuant to the U.S. Constitution’s 2^nd amendment guaranteeing the “right of the people to keep and bear arms”.  We do not have any similar Constitutional guarantee.  What we apparently have is an official surrender by our authorities of their responsibility for peace and order, from a reading of 2 of the Whereas Clauses of E.O. 194 -     

“WHEREAS, the rising threat to peace and order posed by criminality, insurgency, subversion, and the secessionist movement requires the dedicated efforts not only of law enforcement agencies but private citizens as well;

WHEREAS, the present thrust of the PNP is to combat all kinds of criminality while current government programs need the support and participation of the citizenry to effectively prevent and suppress criminality and to maintain public order and safety in the land;”

Of all the news reports on gun shootings – deliberate or indiscriminate – we daresay less than 1% involves ordinary folks surviving shootings because they were able to fire back.  Likely nil involving instances of children surviving because they were able to shoot back.

E.O. 194 encourages shoot-outs between victim and perpetrator.  This scenario just places more innocent victims at risk to both parties’ shootings.   Consider what happened in August 2012 in New York involving a gunman and police officers – people trained to use guns.  When the NY police officers caught up on foot with the man who just shot and killed his co-worker, the gunman shot at the police officers who were just a few feet away from him. A gun battle ensued.  The gunman didn’t hit anyone but the police shot and killed him while also shooting and injuring 9 innocent pedestrians -

“Three passersby sustained direct gunshot wounds, while the remaining six were hit by fragments, according to New York Police Commissioner Ray Kelly. All injuries were caused by police, he said Saturday.”[3]

If a well-trained police force cannot even prevent collateral damage (with their target only a few steps away), how can we expect ordinary people to have less casualties under similar circumstances? Why would we ordinary people – with no firearms training – be allowed unlimited firearms for the purpose of supporting and participating in the government’s efforts “to effectively prevent and suppress criminality and to maintain public order and safety in the land”?  Who wants to engage in a shootout, even with a criminal?

Government efforts should be focused on limiting guns not in multiplying them. The casualties – from actual fatalities to a paranoid citizenry - resulting from one environment against the other are so divergent that those who truly want peace and order would not even think twice of allowing ordinary citizens to own as many firearms as they want.

Government Lowered the Penalty for the Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition

This apparent acceptance, if not encouragement, of a gun culture is further exemplified by the downgrade of the penalty for the “Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition” under R.A. 8294[4] which amended R.A. 1866[5].  Sec. 1 of R.A. 1866 provides the stiff penalty of reclusion temporal in its maximum period (i.e., from 17 years, 4 months and 1 day to 20 years) to reclusion perpetua (at least 30 years) ” while the amendatory law lowers the penalties as follows:

a)      prision correccional in its maximum period (i.e., from 4 years, 2 months and 1 day to 6 years) and a fine of not less than P15,000 any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition Provided, That no other crime was committed; or

b)      prision mayor in its minimum period (i.e., from 10 years and 1 day to 12 years) and a fine of P30,000 shall be imposed if the firearm is a high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three.; Provided, however, That no other crime was committed by the person arrested.

"If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.

If the violation of this Sec. is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat.”  (Sec. 1 R.A. 8294)

This substantial downgrade of penalties (from the old maximum of 20 years to the new maximum of 6 or 12 years) allowed actor Robin Padilla to be paroled after only serving less than 3 years in prison[6] following his conviction for illegal possession of the following weapons:

1. A .357 Caliber revolver, Smith and Wesson, SN-32919 with 6 live ammunitions;
2. A M-16 Baby Armalite rifle, SN-RP 131120 with 4 long and 1 short magazine with ammunitions;
3. A .380 Pietro Beretta, SN-A 35723 Y with clip and 8 ammunitions; and
4. 6 additional live double action ammunitions of .38 caliber revolver.[7]

Further, apart from the substantial downgrade which also allows for earlier parole, why now make a penalty distinction between low-powered and high-powered firearms?  Aren’t they all designed to kill?

Can the Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition go Unpunished?

We are likewise confused with the amended penalties under Sec. 1 of R.A. 8294 which are subject to the proviso that “no other crime was committed”.  The last 2 paragraphs of Sec. 1 as stated above list the crimes that affect the imposition of both penalties. In case of homicide or murder, “the use of an unlicensed firearm shall be considered as an aggravating circumstance.” And in cases of rebellion or insurrection, sedition, or attempted coup d'etat, the use of the unlicensed firearm is “absorbed as an element’ of said crimes.  This implies that if a crime other than homicide, murder rebellion insurrection, sedition, or attempted coup d'etat is committed, the penalty is also different. But what is it then?

People caught firing guns during new year’s eve celebrations – provided they don’t hurt anyone - are charged with the crime of Alarms and Scandals (under Art. 155, Revised Penal Code). Alarms and Scandals carry the penalty of Arresto Menor (i.e. from 1-30 days) or a fine not exceeding P200 pesos.  The penalty and crime for Alarms and Scandals are far less than the penalties for illegal possession of firearms.  Yet, Sec. 1 of R.A. 8294 states that the penalties for illegal possession of firearms are subject to the condition that “no other crime was committed”.  So when Alarm and Scandal is committed with the use of an illegal firearm, which penalty is imposed? The higher penalty for illegal possession of firearm or the lower penalty for Alarm and Scandal?

As with our plea for Government to stem gun proliferation, we urge Government to also focus their efforts on the penalties for the Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition.  There are inconsistencies in the law regarding penalties which can only benefit criminals and therefore be disastrous to any peace and order effort.

A gun-free society may be a dream (like a drug-free society) because there are legitimate reasons for drugs and guns. Some civilians need firearms for legitimate sport and self-defense.  But we should recognize that sport and defense do not require allowing more than 1 non-assault weapon (i.e., not semi or full automatic weapon) per adult and only after a genuine background examination.  

---

[1] Ramos, M. (2013, January 06). Kawit gunman had stash of high-powered firearms—pnp. Retrieved from http://newsinfo.inquirer.net/336129/kawit-gunman-had-stash-of-high-powered-firearms-pnp 

[2]  Section 2.a.,

[3]  Ariosto, D. (2012, August 26). Police: All empire state shooting victims were wounded by officers. Retrieved from http://edition.cnn.com/2012/08/25/justice/new-york-empire-state-shooting/

[4]  “An Act Amending The Provisions Of Presidential Decree No. 1866, As Amended, Entitled "Codifying The Laws On Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition Or Disposition Of Firearms, Ammunition Or Explosives Or Instruments Used In The Manufacture Of Firearms, Ammunition Or Explosives, And Imposing Stiffer Penalties For Certain Violations Thereof, And For Relevant Purposes”. June 6, 1997.

[5]  “Codifying The Laws On Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition Or Disposition, Of Firearms, Ammunition Or Explosives Or Instruments Used In The Manufacture Of Firearms, Ammunition Or Explosives, And Imposing Stiffer Penalties For Certain Violations Thereof And For Relevant Purposes". June 29, 1983.

[6]  Vanzi, S. J. (1998, April 8). Robin padilla is free . Retrieved from http://www.newsflash.org/199804/sb/sb000345.htm

[7]  Padilla vs. CA, G.R. No. 121917. March 12, 1997.  Retrieved from http://sc.judiciary.gov.ph/jurisprudence/1997/mar1997/121917.htm

NEWER POST       |       PREVIOUS POST