Monday, July 22, 2013

Illegal Possession of Firearms

While the Philippines started crafting laws on Firearms on the heels of the 20th Century, it was not until 1983 that we have come up with, by Presidential Decree 1866, a law rounding up all the hodgepodge of laws on firearms, and incorporating therein provisions on explosives.

PD 1866 codified the existing laws on firearms, while Republic Act 8294 amended the same effecting a reduction in the penalty from reclusion temporal, in its maximum period, to reclusion perpetua, based on the classification of firearms, ammunition and explosives.

What is a firearm?

Interestingly, while PD 1866 and RA 8294 are considered the basic laws on firearms, neither law defines what a firearm is. To save the day, the implementing rules provide for the void left in the law, and define a firearm:

"includes rifles, muskets, carbines, shotguns, revolvers, pistols and all other deadly weapons from which a bullet, ball, shot, shell or other missile may be discharged by means of gunpowder or other explosives. The term also includes air rifles and air pistols not classified as toys under the provisions of Executive Order No. 712 dated 28 July 1981. The barrel of any firearm shall be considered a complete firearm."

On the other hand, Unserviceable firearms are also included (Zuno vs Dizon June 23, 1993, ENBANC).

Airsoft guns and airguns are covered by the Gun Ban during election period. Replicas and imitations are excluded (Orceo vs COMELEC, GR 190779, EN BANC March 26, 2010).

Possession of firearm per se, not illegal  

It must be emphasized though, that possession of firearms, per se, is NOT illegal. It is the possession by unlicensed/unauthorized holder of unlicensed/unregistered firearms that is outlawed and punished.

Unlicensed firearm

RA 8294 defines unlicensed firearm, viz:
“Section 5. Coverage of the Term Unlicensed Firearm. – The term unlicensed firearm shall include:
1)  firearms with expired license; or
2) unauthorized use of licensed firearm in the commission of the crime.”
Of course, the foregoing mean on top or in addition to firearms that are not licensed or registered at all.

Here’s where I disagree with the law. Certainly, you cannot equate the evil brought by a firearm with expired license with a firearm that is not licensed or registered at all. In the former, it is presupposed that the holder had originally been vetted and qualified, the evil which the law seeks to defeat having been determined and ruled out, while in the latter, the holder had not been evaluated and vetted at all.

License/Permit or Authority to Possess is Not Transferable

The license/permit or authority to possess firearms is issued to the holder considering his qualifications. Thus, unlike the registration of motor vehicle, the license/permit or authority to possess is not transferable to the purchaser (succeeding/second owner) of the firearm. Every applicant for a license must be vetted based on his personal circumstances and qualifications. (Pastrano vs. Court of Appeals, G.R. No. 104504)

Acts Prohibited, and their Corresponding Penalty

RA 8294, Sec. 1, as amended, provides:

“Section 1. Sec. 1 Presidential Decree No. 1866, as amended, is hereby further amended to read as follows (Tabular Presentation):

Punishable Acts
Firearm Involved
Penalty
1. Unlawful manufacture, sale,
acquisition,
disposition or
possession of LOWPOWERED firearms or ammunition or
instruments used
or intended to be
used in the
manufacture of
such firearms or
ammunition,
provided, that no
other crime was
committed.
rim fire 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 such firearm
or ammunition
Imprisonment of
four years two
months and one
day to six years
AND fine of not
less than Php15,000.00
2. Unlawful
manufacture, sale,
acquisition,
disposition or
possession of
HIGH-POWERED
firearms or
ammunition or
instruments used
or intended to be
used in the
manufacture of
such firearms or
ammunition,
provided, that no
other crime was
committed.
with bores bigger
in diameter than
Cal. 38 and Cal
9mm such as
calibers .40, .41,
.44, .45 and also
firearms with lesser
caliber but
considered
powerful such as
caliber .357 and
caliber .22 centerfire magnum and
other firearms with
firing capability of
full automatic and
by burst of two or
three
imprisonment of 6
years and 1 day to
8 years AND a fine
of Php30,000.00
3. any person
who shall carry
any licensed
firearm outside his
residence without
legal authority
ANY LICENSED
FIREARM
Imprisonment of
one month and
one day to six
months
Violation of
the
COMELEC
GUN BAN
ANY FIREARM
(licensed or
unlicensed)
Imprisonment of
one year to six
years

 
"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.

"The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment.

"The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor." (Italics and emphasis supplied)

If any of the crimes mentioned above is also committed, then an information for Illegal Possession of Firearms may be quashed and the same becomes an aggravating circumstance or an element of the crime committed, as the case may be.

Conversely, if the other crime committed is none of those enumerated under the law (RA 8294), then it shall be prosecuted separately from Illegal Possession of Firearm.

Election Period suspends the privilege under PTCFOR
 


In an Election Period where gun ban is in force, bearing, carrying or transporting firearms are prohibited, unless the holder is authorized in writing by the COMELEC. (sec. 261[p], [q], [r], and [s], Omnibus Election Code as amended by Sec. 32, R.A. No. 7166).
During this period, the privilege under PTCFOR or Permit to Carry Firearms Outside Residence is suspended.  Only regular members of the PNP, the AFP and other enforcement agencies of the government who are duly deputized in writing by COMELEC for election duty are authorized to carry and possess firearms. The mentioned officers, having been deputized , must be: in full uniform with their name, rank, and serial number, legibly and clearly shown and visible at all times; and they must be in the actual performance of their election duty in the specific area as designated by COMELEC.”
Anyone who violates the election law on firearms shall be prosecuted for both illegal possession and election offense.
Elements of Illegal Possession of Firearm
For a successful prosecution of illegal possession of firearm case, the following requisites must be established, to wit:
  1. The existence of the subject firearm; and,
Note, though, that the Supreme Court has held in People of the Philippines vs. NARVASA, GR No. 128618, Nov. 16, 1998, that the firearm itself may not be presented as evidence. Its existence can be established by testimony.
  1. The fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess” (People vs. Solayao, G.R. No. 119220, September 20, 1996).
Application for Search Warrant
In applying for a search warrant, the applicant has to take into consideration the constitutional guarantee against unreasonable searches. Take heed of Sec. 2, Article III thereof, which provides;
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 highlight the primacy of this right, Sec. 5, Rule 126 of the Revised Rules of Court requires that the judge examine the complainant and the witnesses in the form of searching questions and answers, in writing and under oath xxx
Failure of the judge to observe the above requirement affords the person against whom the warrant is sought to move for its quashal. Conversely, failure by the person subject of the warrant to raise the legality of its issuance prior to arraingment, or object to the admission of the objects seized for being fruits of the poisonous tree, amounts to waiver of such right, consequently curing whatever defect there may have been in its issuance, and allowing the objects so seized by force thereof to be admitted in evidence.
Nala vs. Barroso  instructs that in order to satisfy the foregoing constitutional requirement, in applying for a search warrant, the applicant must:
1.       Present and establish facts and circumstances enough to convince the judge that the person against whom the process is sought is in possession of a firearm; and

2.      Present a certification from Firearms and Explosives Office (FEO) of the PNP that the person subject of the search warrant is not on the list of persons authorized to possess a firearm.

The certification is issued by FEO only at the request of the court, the PNP, the prosecutor’s office, and other law enforcement agencies, and may not be applied for by just any private individuals seeking to find out whether certain personalities have a license to possess or have guns registered under their names.

There is a new law on Firearms, RA 10591 (click on the link to read the full text), which the President signed on May 29, 2013.We will discuss this new law next.

 
 

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