A. Title I – Crimes Against National Security and the Law of Nations

A. Title One - Crimes Against National Security and the Law of Nations (Articles 114-123)

• Anti-Terrorism Act – R.A. No. 11479, secs. 3-12, 25, 26, 29 and 36
• Terrorism Financing Prevention and Suppression Act – R.A. No. 10168, secs. 4-9, 17 and 19
• Anti-Piracy and Anti-Highway Robbery Law – P.D. No. 532, secs. 2-4
• Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity – R.A. No. 9851, secs. 3- 6, 10-12 and 17

CRIMES AGAINST NATIONAL SECURITY AND THE LAWS OF NATION

Chapter 1: Crimes against National Security

R.A. 75

Any writ or process issued out or prosecuted by any person in any court of the Republic of the Philippines, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign State, authorized and received as such by the President, or any domestic or domestic servant of any such ambassador or minister is arrested or imprisoned, or his goods or chattels are distrained, seized or attached, shall be deemed void, and every person by whom the same is obtained or prosecuted, whether as party or as attorney, and every officer concerned in executing it, shall upon conviction, be punished by imprisonment for not more than three years and a fine of not exceeding two hundred pesos in the discretion of the court. (Sec. 4)

R.A. 75 shall be applicable only in cases where the country of the diplomatic or consular representative adversely affected has provided for similar protection to duly accredited diplomatic or consular representatives of the Republic of the Philippines by prescribing like or similar penalties for like or similar offenses. (Sec. 7)

Art. 114 Treason

Treason is a breach of allegiance to a government committed by a person who owes allegiance to it.

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c. Principles of Public International Law

The following are not subject to the operation of our criminal laws:

• Sovereigns and other chiefs of state
• Ambassadors, ministers plenipotentiary, ministers resident, and charges d'affaires

Only "diplomatic agents," under the terms of the Convention, are vested with blanket diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the heads of missions or members of the diplomatic staff, thus impliedly withholding the same privileges from all others. Even consuls, who represent their respective states in concerns of commerce and navigation and perform certain administrative and notarial duties, such as the issuance of passports and visas, authentication of documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges accorded diplomats, mainly for the reason that they are not charged with the duty of representing their states in political matters. (Minucher vss. CA and Scalzo, G.R. No. 142396)

The main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic nature. (Id)

Elements:

• that the offender (a Filipino citizen or a Resident Alien) owes allegiance to the Government of the Philippines
• the offender either:
• Levies war against the Government; or
• Adheres to the enemies by giving them aid or comfort
• that there is a War in which the Philippines is involved

Allegiance

Obligation of fidelity and obedience which the individuals owe to the government under which they live or to their sovereign, in return for protection they receive. (Laurel v Misa, GR No. L-409)

Punishable Acts

• Levying war – requires concurrence of:
• An actual assembling of men; and
• For the purpose of executing a treasonable design by force;
• Adherence to enemies – requires concurrence of:
• Actual adherence to the enemies; and
• Giving aid or comfort to them.

Not necessary that there be a Formal Declaration of War

In treason by levying war, 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. (Concurring Opinion of Justice Perfecto, Laurel v. Misa, G.R. No. L-409)

Levying in Collaboration with a Foreign Enemy

If an uprising is merely against the Government, without intent to aid a foreign enemy, it may constitute rebellion rather than treason. If war is levied to aid a foreign enemy, assess liability for treason. The offenders may be held liable for rebellion. (LUIS B. REYES, THE REVISED PENAL CODE BOOK TWO p. 6, 2017)

Example of crimes included:

• Direct/indirect/qualified bribery (Art. 210-211)
• Corruption of public officials (Art. 212)
• Frauds against the public treasury (Art. 213)
• Possession of prohibited interest (Art. 216)
• Malversation of public funds or property (Art. 217)

e. Those who should commit any of the crimes against National security and the law of nations defined in Title One of Book Two (Arts. 114-123, RPC)

Crimes against national security and the law of nations:

• Treason (Art. 114)
• Conspiracy and proposal to commit treason (Art. 115)
• Misprision of treason (Art. 116)
• Espionage (Art. 117)
• Inciting to war or giving motives for reprisals (Art. 118)
• Violation of neutrality (Art. 119)
• Correspondence with hostile country (Art. 120)
• Flight to enemy’s country (Art. 121)
• Piracy in general and mutiny in the high seas (Art. 122)
• Qualified piracy (Art. 123)

However, when the rebellion, coup d’état and sedition are committed abroad, PH courts will not have jurisdiction because these are crimes against public order.

There are only three crimes against the laws of nation under the Revised Penal Code, to wit: piracy, qualified piracy, and mutiny. Pirates are in law hostes humani generis. 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. Universal jurisdiction applies to piracy on the high seas; territorial waters are subject to the sovereignty of the coastal state, and piracy there must be addressed under applicable domestic law and jurisdictional rules. (UNCLOS, Arts. 2, 100–101 and 105; Revised Penal Code, Art. 122, as amended by R.A. No. 7659) The broader language in People vs. Lol-Lo and Saraw, G.R. No. 17958, concerning acts in a foreign state’s territorial waters must be read in its historical context, not as a categorical rule of present-day universal jurisdiction.

Enemy

The term enemy should refer to a foreign country (US v Lagnayon, 3 Phil 478). It applies only to the subjects of a foreign power in a State of hostility with the traitor’s country because this Article treats of circumstances of war. It does not embrace rebels in insurrection against their own country, for in that case the crime would be rebellion. (REYES, BOOK TWO)

Aid or Comfort

Act which strengthens or tends to strengthen the enemy in the conduct of war against the traitor’s country and an act which weakens or tends to weaken the power of the traitor’s country to resist or to attack the enemy. (Cramer v US, 65 Sup. Ct. 918)

Acceptance of public office and discharge of official duties under the enemy

Mere acceptance of public office and discharge of official duties under the enemy do not constitute the felony of treason. But when the position is policy-determining, the acceptance of public office and the discharge of official duties constitute treason.

Policy-Determining – Officials who defined the norm of conduct that all offices and officials under the department he headed had to adopt and enforce, and helped in the propagation of the creed of the invader, and the acts and utterances of the accused while holding the position which were done in earnest implement of such policy, and the acceptance of such public office and discharge of such official duties constitute treason. (People v Sison, P.C., 42 O.G. 748)

Acts not considered as treason

• Commandeering of women merely to satisfy the lust of the enemy (People v Perez, GR No. L856)
• Marriage of the accused to a Japanese woman and employment as an interpreter (People v Bascon, GR No. L-1548)

Crimes done for personal or other purposes

If other common crimes are done for personal purposes, even while the person is in rebellion, the person will be held separately liable.

Who shall be deemed the leader of the rebellion, insurrection or coup d’etat in case he is unknown?

Any person who in fact:

• Directed the others;
• Spoke for them;
• Signed receipts and other documents issued in their names; or
• Performed similar acts, on behalf of the rebels

Defenses in Treason

When common crimes may be considered separately from crime of Treason

Common crimes such as murder, physical injuries, kidnapping, illegal detention, or robbery may be considered separately from the crime of treason when they are committed for a private or personal purpose or motive and not for the purpose of ‘giving aid or comfort to the enemy’ as an element of treason. (1 AMURAO, Book Two)

Against whom the crime may be committed

Legal expulsion may only be committed against an alien on grounds provided by law and with observance of due process in deportation proceedings; hence, criminal expulsion may be committed also only against aliens. The second punishable act (compelling change of residence) may be committed against aliens or Filipino citizens. (1 AMURAO, Book Two)

Two-Witness Rule not Applicable

The two-witness rule is not applicable since this is a crime separate and distinct from treason. The rule applies only to treason.

Elements:

• That the offender is a citizen of the Philippines, and not a foreigner;
• That he has knowledge of any conspiracy against the Government;
• That the conspiracy is one to commit treason;
• That he conceals or does not disclose and make known the same, as soon as possible from coming to know thereof, to the proper authority

Can a resident alien commit the crime of misprision?

No. A resident alien cannot commit misprision of treason. Art. 116 expressly provides “without being a foreigner”.

When misprision not applicable

Art. 116 does not apply when treason is already committed by someone and the accused does not report its commission. (REYES, BOOK TWO, p. 20)

Art. 137. Disloyalty of Public Officers or Employees

Any public officer or employee who failed to resist a rebellion by all the means in his/her power or shall continue to discharge the duties of his/her office under the control of the rebels or shall accept appointment to office under them.

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Art. 117. Espionage

Under Article 117 of the Revised Penal Code, espionage is committed by (1) entering, without authority, a warship, fort, or military or naval establishment or reservation to obtain confidential defense information; or (2) a public officer disclosing such information, held by reason of office, to a representative of a foreign nation.

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Punishable Acts (modes of committing Espionage):

• Entering, without authority, upon a warship, fort, or military or naval establishment or reservation to obtain any information, plans, photographs or other data of confidential nature relative to the defense of the Philippines
• Disclosing to the representative of a foreign nation the contents of the articles, data or information referred to in the preceding paragraph, which he had in his possession by reason of the public office he holds

Persons liable:

• First mode:

ANY person whether:

• Filipino citizen OR resident alien (foreigner); or
• Private individual or a public officer; and
• Second mode:
• A public officer

Art. 138. Inciting To Rebellion Or Insurrection

Any person who, without taking arms or being in open hostility against the Government, shall incite others to the execution of any of the acts under Art.134, by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end

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Elements:

• By entering without authority, upon a warship, fort or military or naval establishment or reservation
• that the offender enters any of the places mentioned;
• that he has no authority therefor;
• that his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines
• By disclosing to the representative of a foreign nation the contents of the aforementioned information, etc.
• that the offender is a public officer;
• that he has in his possession the articles, data, or information referred to in par. 1 by reason of the public office he holds;
• that he discloses their contents to a representative of a foreign nation

Is wiretapping considered espionage?

Wiretapping is not, by itself, espionage under Article 117; determine whether the particular conduct satisfies Article 117 or an applicable offense under Commonwealth Act No. 616.

Espionage and Treason, Distinguished.

Section Two: Provoking War and Disloyalty In Case of War

Art. 118. Inciting To War or Giving Motives for Reprisals

Unlawful or unauthorized acts of an individual which provoke or give occasion for a war involving or liable to involve the Philippines or expose Filipinos to reprisals on their persons or property.

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Elements:

• Offender Performs Unlawful or unauthorized acts; and
• 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

Notes:

• Secret must affect public interest, not secrets of a private individual.
• Espionage for the benefit of another State is not contemplated by the article. If the secrets are with regard to military secrets or secrets affecting Philippine State security, the crime may be espionage.

Characteristics of the offender

In inciting to war, the offender is any person. If the offender is a public officer, the penalty is reclusion temporal, while the penalty for a private individual is prision mayor.

Art. 119. Violation of Neutrality

This refers to any act which violates any regulation issued by competent authority for the purpose of enforcing neutrality.

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Art. 142. Inciting To Sedition Punishable Acts

Any person who, without taking any direct part in the crime of sedition, should commit any of the punishable acts indicated below

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Elements:

• War in which the Philippines is Not Involved;
• For the Purpose of Enforcing neutrality, a Regulation is issued by competent authority; and
• That the offender Violates such

Neutrality

It is the condition of a nation that, in times of war, takes no part in the dispute but continues peaceful dealings with the belligerents. There must be a regulation issued by competent authority for the enforcement of neutrality.

Elements: Inciting Others to Sedition

• That the offender Does not take a direct part in the crime of sedition;
• That he Incites others to the accomplishment of any of the acts which constitute sedition; and
• That the inciting is done by means of Speeches, Proclamations, Writing, Emblems, Cartoons, Banners, or other representations tending to the same end.

Two rules relative to seditious words

• Clear and present danger rule
• Danger should be both clear and imminent;
• Reasonable ground to believe that the danger apprehended is imminent and that the evil to be prevented is a serious one to the State; and
• Present time element: not only probable but very likely inevitable
• Dangerous tendency rule
• Tends to create a danger of public uprising;
• Easily produces disaffection; and
• Produces state of feelings incompatible with a disposition to remain loyal to the government

Philippines should not be part of the war

It is the neutrality of the Philippines that is violated. Philippines should not be a party to the war.

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, in any of the modes of commission indicated in Art. 120.

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Elements:

• A WAR in which the Philippines is Involved;
• That the offender makes Correspondence with an enemy country or territory occupied by enemy troops;
• That the correspondence is either –
• Prohibited by the government,
• carried on in Ciphers or Conventional signs, or
• containing notice or information which might be useful to the Enemy.

Correspondence

Communication by means of letters, or it may refer to the letters which pass between those who have friendly or business relations. Note that, even if the correspondence contains innocent matters, if the correspondence has been prohibited by the government, it is punishable because of the possibility that some information useful to the enemy might be revealed unwittingly.

When prohibition by government not essential

Prohibition by the government is not essential when the correspondence: a) is carried on in ciphers or conventional signs, or b) contains notice or information which might be useful to the enemy.

Qualifying circumstances:

The following must concur together –

• That the notice or information might be useful to the enemy; and
• That the offender intended to aid the enemy.

Similarity to Treason

If the offender intended to aid the enemy by giving such notice or information, the act also amounts to treason; hence penalty same as that for treason.

Art. 121. Flight to Enemy’s Country

Any person owing allegiance to the Philippine Government who, during war, attempts to flee or go to an enemy country when prohibited from doing so by competent authority.

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Tests for determining if there is a violation of Art. 131 (see notes on Art. 142):

Tests for determining if there is a violation of Art. 142:

• Dangerous tendency rule; and
• Clear and present danger rule.

Why alien may be guilty of the crime

An alien resident may be guilty of flight to enemy country because an alien owes temporary allegiance to the Philippine government.

Two kinds of Meetings

• Meeting attended by armed persons for the purpose of committing any of the crimes punishable under the RPC

Elements:

• There is a Meeting;
• The meeting is attended by Armed persons; and
• The Purpose of the meeting is to commit any of the crimes punishable under the RPC
• Meeting in which the audience, whether armed or not, is incited to the commission of the crimes of treason, rebellion or insurrection, sedition or assault upon a person in authority or his agent

Elements:

• There is a Meeting;
• The Audience may or may Not be armed; and
• The Purpose of the meeting is to incite the audience to commit the crime of treason, rebellion or insurrection, sedition or direct assault.

Piracy triable anywhere

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 carried. (People v Lol-lo, GR No. 17958)

Effect when Audience incited

If the audience is incited to commit rebellion or sedition, the crimes committed are illegal assembly as regards the organizers or leaders and persons merely present (but with intent to illegally assemble) and inciting to rebellion or sedition insofar as the one inciting them is concerned.

Art. 123. Qualified Piracy

Elements:

A. Qualifying Circumstances (Piracy):

• Seizure of the vessel by Boarding or Firing upon the same;
• Abandonment by pirates of victims without means of saving themselves; or
• Crime was Accompanied by murder, homicide, physical injuries, or rape.

B. Mutiny: When the second or third circumstance accompanies the crime of mutiny mentioned in Art. 122, mutiny is then qualified. First circumstance may not qualify the crime of mutiny.

Qualified Piracy is a special complex crime for which Article 123 prescribes reclusion temporal to death, regardless of the number of victims; death may no longer be imposed under Republic Act No. 9346, Secs. 2–3.

Note: The word “crimes” in the opening sentence of Art. 123 refers to both piracy and mutiny. However, the second qualifying circumstance specifically mentions “pirates”, thereby excluding mutineers.

Direct Assault and Rebellion, Distinguished

f. Derailment of a locomotive; and

14. CRAFT, FRAUD, OR DISGUISE BE EMPLOYED (PAR. 14)