Thursday, August 1, 2013

Illegal Possession of Firearms and Ammunition as amended by Republic Act 10591

President Pnoy, on May 29, 2013, signed into law the latest amending legislative act on Firearms and Ammunition, Republic Act 10591, to take effect 15 days from its publication in a newspaper of national circulation. As of this writing, the law would have taken effect.
While the PNP (now tasked what DOJ and DILG were under RA 8294) is still crafting the Implementing Rules and Regulation (IRR) for the law, which the law mandates to be ready for roll out in 120 days from effectivity of the Act, it is presumed that the substance of the law are already reflected in the procedure for procuring license and PTCFOR.
A reading of the law highlights significant differences from its predecessors. It is, by far, more comprehensive and well-thought of. It is more stringent in its requirements for issuance of license, and a leap more rigorous for issuance of Permit to Carry Firearms Outside Residence (PTCFOR). I know, because I have just gone through the process, and I haven’t finished yet.
It is more cumbersome now if you fail to renew your license within six (6) months before expiry date. It will have the effect of NOT only revoking your license, but the registration of your firearm as well, even if the latter is effective for four (4) years. This is a far cry from the eight (8) years that it took for an unrenewed license to get revoked prior to this law, I was told.
In case your license is revoked, and you intend to renew the same, you will be required to submit, on top of NBI clearance and proof of billing (make sense but something I don’t remember having to bother about in the past), a Letter of Explanation for failure to renew the license. Your application for renewal will be evaluated taking into account the validity or reasonability of your justification for failing to renew. A Resolution will be issued therefor, so you can’t say it is simple procedure, you could actually be prevented from renewing your license.
Failing twice, in succession, to renew the license or registration within the time allowed, will perpetually bar you from applying for any firearm license.
This is how stringent the law is worded, but let’s await the guidance in the IRR.
Who May Be Issued a Firearm License?
As in most laws, if not all, there is entitlement and prohibition. Let’s discuss entitlement first before we go to prohibition. Let’s look into the policy of the state declared in the law:
Section 2. Declaration of State Policy. – It is the policy of the State to maintain peace and order and protect the people against violence. The State also recognizes the right of its qualified citizens to self-defense through, when it is the reasonable means to repel the unlawful aggression under the circumstances, the use of firearms.
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So we see there’s a colatilla on firearm possession and ownership – qualified citizen.
Who are Qualified Citizens?
                                                         ARTICLE II

Section 4.
Standards and Requisites for Issuance of and Obtaining a License to Own and Possess Firearms. – In order to qualify and acquire a license to own and possess a firearm or firearms and ammunition, the applicant must be a Filipino citizen, at least twenty-one (21) years old AND has gainful work, occupation or business or has filed an Income Tax Return (ITR) for the preceding year as proof of income, profession, business or occupation.
In addition, the applicant shall submit the following certification issued by appropriate authorities attesting the following:
(a) The applicant has not been convicted of any crime involving moral turpitude;
(b) The applicant has passed the psychiatric test administered by a PNP-accredited psychologist or psychiatrist;
(c) The applicant has passed the drug test conducted by an accredited and authorized drug testing laboratory or clinic;
(d) The applicant has passed a gun safety seminar which is administered by the PNP or a registered and authorized gun club;
(e) The applicant has filed in writing the application to possess a registered firearm which shall state the personal circumstances of the applicant;
(f) The applicant must present a police clearance from the city or municipality police office; and
(g) The applicant has not been convicted or is currently an accused in a pending criminal case before any court of law for a crime that is punishable with a penalty of more than two (2) years.
For purposes of this Act, an acquittal or permanent dismissal of a criminal case before the courts of law shall qualify the accused thereof to qualify and acquire a license.
The applicant shall pay the reasonable licensing fees as may be provided in the implementing rules and regulations of this Act.
An applicant who intends to possess a firearm owned by a juridical entity shall submit his/her duty detail order to the FEO of the PNP.
OWNERSHIP AND POSSESSION OF FIREARMS
Subparagraph (a) makes sense. If a person has been convicted (I presume by final judgment to reconcile with legal presumption of innocence), it is doubtful if it serves the policy of the state of protecting its citizens if it allows him to possess or carry firearm/s, notwithstanding. Although, the doctrine of non-sequitor taught us against concluding that one who has committed a crime in the past will surely have committed a similar crime now or in the future, it is certainly not the intent of the law to take a gamble on one’s innate character (hoping it is immaculate), after having been convicted by final judgment, by putting a gun in his hands for his self-defense than protect the rest who are presumed to be law-abiding.
But what is moral turpitude?
"Moral turpitude has been defined in Can v. Galing citing In Re Basa and Tak Ng v. Republic as everything which is done contrary to justice, modesty, or good morals; an act of baseness, vileness or depravity in the private and social duties which a man owes his fellowmen, or to society in general, contrary to justice, honesty, modesty or good morals.
This is not to say that all convictions of the crime of homicide do not involve moral turpitude. Homicide may or may not involve moral turpitude depending on the degree of the crime. Moral turpitude is not involved in every criminal act and is not shown by every known and intentional violation of statute, but whether any particular conviction involves moral turpitude may be a question of fact and frequently depends on all the surrounding circumstances. While . . . generally but not always, crimes mala in se (inherently evil) involve moral turpitude, while crimes mala prohibita (simply because the prohibits) do not, it cannot always be ascertained whether moral turpitude does or does not exist by classifying a crime as malum in se or as malum prohibitum, since there are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. It follows therefore, that moral turpitude is somewhat a vague and indefinite term, the meaning of which must be left to the process of judicial inclusion or exclusion as the cases are reached." (IRRI v. NLRC and Nestor Micosa, G.R. No. 97239 May 12, 1993).
LEDESMA DE JESUS-PARAS v. QUINCIANO VAILOCES, A.C. No. 439             April 12, 1961, illustrates, albeit inexhaustively, what moral turpitude is in layman’s tersm:
"Among the examples given of crimes of this nature by former Chief Justice Moran are the crime of seduction and the crime of concubinage.2 The crime of which respondent was convicted is falsification of public document, which is indeed of this nature, for the act is clearly contrary to justice, honesty and good morals. Hence, such crime involves moral turpitude. Indeed, it is well-settled that "embezzlement, forgery, robbery, and swindling are crimes which denote moral turpitude and, as a general rule, all crimes of which fraud is an element are looked on as involving moral turpitude." (58 C.J.S., 1206).
Subparagraphs (b), (c), and (d), while sensible, I doubt their integrity, especially drug testing, knowing who operate these drug testing centers, you can’t really say if they are reliable at all. For sure, this is money machine for operators.
Gun safety seminars by Gun Clubs? This is another life-saving design, but in reality, hardly implemented. Gun dealers don’t care if buyers eventually attend to their gun clubs for gun handling lessons. What when they’re paid already.
Subparagraph (f) may be replaced by NBI clearance, which is already a requirement as of this writing.           
Subparagraph (g) makes the prosecutors relatively powerful. Note that even a pendency of a criminal case carrying a penalty of more than two years disqualifies an applicant. Good for those who are legally provisioned. They can dismiss a complaint, not always by overt graft, but even by fairly swarming the prosecutor’s office with their legal team, or handing over a courtesy business card from top-notch law firms, quiet but effective. Other times, it’s just plain “money talks.”
Of course, juridical entity, too, are entitled to possess and own firearms. They include security agencies and LGUs.
Section 5. Ownership of Firearms and Ammunition by a Juridical Entity. – A juridical person maintaining its own security force may be issued a regular license to own and possess firearms and ammunition under the following conditions:
 (a) It must be Filipino-owned and duly registered with the Securities   and Exchange Commission (SEC);
 (b) It is current, operational and a continuing concern;
 (c) It has completed and submitted all its reportorial requirements to the SEC; and
 (d) It has paid all its income taxes for the year, as duly certified by the Bureau of Internal Revenue.
The application shall be made in the name of the juridical person represented by its President or any of its officers mentioned below as duly authorized in a board resolution to that effect: Provided, That the officer applying for the juridical entity, shall possess all the qualifications required of a citizen applying for a license to possess firearms.
 
Other corporate officers eligible to represent the juridical person are: the vice president, treasurer, and board secretary.
Security agencies and LGUs shall be included in this category of licensed holders but shall be subject to additional requirements as may be required by the Chief of the PNP.
Section 6. Ownership of Firearms by the National Government. – All firearms owned by the National Government shall be registered with the FEO of the PNP in the name of the Republic of the Philippines. Such registration shall be exempt from all duties and taxes that may otherwise be levied on other authorized owners of firearms. For reason of national security, firearms of the Armed Forces of the Philippines (AFP), Coast Guard and other law enforcement agencies shall only be reported to the FEO of the PNP.
Another privilege, and more important, of a qualified citizen is to carry firearms outside residence, for which you have to secure a Permit to Carry firearms Outside Residence (PTCFOR). Since only qualified persons get to enjoy the privilege, it presupposes that for you to be issued a PTCFOR, you must be a license holder. Possession of PTCFOR does not obviate the requirement of a license. The latter is a prerequisite to a valid PTCFOR.
So who are qualified for PTCFOR?
Section 7. Carrying of Firearms Outside of Residence or Place of Business. – A permit to carry firearms outside of residence shall be issued by the Chief of the PNP or his/her duly authorized representative to any qualified person whose life is under actual threat or his/her life is in imminent danger due to the nature of his/her profession, occupation or business.
It shall be the burden of the applicant to prove that his/her life is under actual threat by submitting a threat assessment certificate from the PNP.
For purposes of this Act, the following professionals are considered to be in imminent danger due to the nature of their profession, occupation or business:
(a) Members of the Philippine Bar;
(b) Certified Public Accountants;
(c) Accredited Media Practitioners;
(d) Cashiers, Bank Tellers;
(e) Priests, Ministers, Rabbi, Imams;
(f) Physicians and Nurses;
(g) Engineers; and
(h) Businessmen, who by the nature of their business or undertaking, are exposed to high risk of being targets of criminal elements.
Having identified who the qualified persons are to the twin privilege of possession of firearm (in and outside of residence), let us now discuss the prohibited acts and their corresponding penalties.
ARTICLE V
PENAL PROVISIONS
Section 28. Unlawful Acquisition, or Possession of Firearms and Ammunition. – The unlawful acquisition, possession of firearms and ammunition shall be penalized as follows:
(a) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess a small arm;
(b) The penalty of reclusion temporal to reclusion perpetua shall be imposed if three (3) or more small arms or Class-A light weapons are unlawfully acquired or possessed by any person;
(c) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall unlawfully acquire or possess a Class-A light weapon;
(d) The penalty of reclusion perpetua shall be imposed upon any person who shall, unlawfully acquire or possess a Class-B light weapon;
(e) The penalty of one (1) degree higher than that provided in paragraphs (a) to (c) in this section shall be imposed upon any person who shall unlawfully possess any firearm under any or combination of the following conditions:
(1) Loaded with ammunition or inserted with a loaded magazine;
(2) Fitted or mounted with laser or any gadget used to guide the shooter to hit the target such as thermal weapon sight (TWS) and the like;
(3) Fitted or mounted with sniper scopes, firearm muffler or firearm silencer;
(4) Accompanied with an extra barrel; and
(5) Converted to be capable of firing full automatic bursts.
(f) The penalty of prision mayor in its minimum period shall be imposed upon any person who shall unlawfully acquire or possess a major part of a small arm;
(g) The penalty of prision mayor in its minimum period shall be imposed upon any person who shall unlawfully acquire or possess ammunition for a small arm or Class-A light weapon. If the violation of this paragraph is committed by the same person charged with the unlawful acquisition or possession of a small arm, the former violation shall be absorbed by the latter;
(h) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess a major part of a Class-A light weapon;
(i) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess ammunition for a Class-A light weapon. If the violation of this paragraph is committed by the same person charged with the unlawful acquisition or possession of a Class-A light weapon, the former violation shall be absorbed by the latter;
(j) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall unlawfully acquire or possess a major part of a Class-B light weapon; and
(k) The penalty of prision mayor in its maximum period shall be imposed upon any person who shall unlawfully acquire or possess ammunition for a Class-B light weapon. If the violation of this paragraph is committed by the same person charged with the unlawful acquisition or possession of a Class-B light weapon, the former violation shall be absorbed by the latter.
Section 29. Use of Loose Firearm in the Commission of a Crime. – The use of a loose firearm, when inherent in the commission of a crime punishable under the Revised Penal Code or other special laws, shall be considered as an aggravating circumstance: Provided, That if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is lower than that prescribed in the preceding section for illegal possession of firearm, the penalty for illegal possession of firearm shall be imposed in lieu of the penalty for the crime charged: Provided, further, That if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is equal to that imposed under the preceding section for illegal possession of firearms, the penalty of prision mayor in its minimum period shall be imposed in addition to the penalty for the crime punishable under the Revised Penal Code or other special laws of which he/she is found guilty.
If the violation of this Act is in furtherance of, or incident to, or in connection with the crime of rebellion of insurrection, or attempted coup d’ etat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, or attempted coup d’ etat.
If the crime is committed by the person without using the loose firearm, the violation of this Act shall be considered as a distinct and separate offense.
Section 30. Liability of Juridical Person. – The penalty of prision mayor in its minimum to prision mayor in its medium period 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 section, or willfully or knowingly allow any of them to use unregistered firearm or firearms without any legal authority to be carried outside of their residence in the course of their employment.
Section 31. Absence of Permit to Carry Outside of Residence. – The penalty of prision correccional and a fine of Ten thousand pesos (P10,000.00) shall be imposed upon any person who is licensed to own a firearm but who shall carry the registered firearm outside his/her residence without any legal authority therefor.
Section 32. Unlawful Manufacture, Importation, Sale or Disposition of Firearms or Ammunition or Parts Thereof, Machinery, Tool or Instrument Used or Intended to be Used in the Manufacture of Firearms, Ammunition or Parts Thereof. – The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall unlawfully engage in the manufacture, importation, sale or disposition of a firearm or ammunition, or a major part of a firearm or ammunition, or machinery, tool or instrument used or intended to be used by the same person in the manufacture of a firearm, ammunition, or a major part thereof.
The possession of any machinery, tool or instrument used directly in the manufacture of firearms, ammunition, or major parts thereof by any person whose business, employment or activity does not lawfully deal with the possession of such article, shall be prima facie evidence that such article is intended to be used in the unlawful or illegal manufacture of firearms, ammunition or parts thereof.
The penalty of prision mayor in its minimum period to prision mayor in its medium period shall be imposed upon any laborer, worker or employee of a licensed firearms dealer who shall unlawfully take, sell or otherwise dispose of parts of firearms or ammunition which the company manufactures and sells, and other materials used by the company in the manufacture or sale of firearms or ammunition. The buyer or possessor of such stolen part or material, who is aware that such part or material was stolen, shall suffer the same penalty as the laborer, worker or employee.
If the violation or offense is committed by a corporation, partnership, association or other juridical entity, the penalty provided for in this section shall be imposed upon the directors, officers, employees or other officials or persons therein who knowingly and willingly participated in the unlawful act.
Section 33. Arms Smuggling.– The penalty of reclusion perpetua shall be imposed upon any person who shall engage or participate in arms smuggling as defined in this Act.
Section 34. Tampering, Obliteration or Alteration of Firearms Identification. – The penalty of prision correccional to prision mayor in its minimum period shall be imposed upon any person who shall tamper, obliterate or alter without authority the barrel, slide, frame, receiver, cylinder, or bolt assembly, including the name of the maker, model, or serial number of any firearm, or who shall replace without authority the barrel, slide, frame, receiver, cylinder, or bolt assembly, including its individual or peculiar identifying characteristics essential in forensic examination of a firearm or light weapon.
The PNP shall place this information, including its individual or peculiar identifying characteristics into the database of integrated firearms identification system of the PNP Crime Laboratory for future use and identification of a particular firearm.
Section 35. Use of an Imitation Firearm. – An imitation firearm used in the commission of a crime shall be considered a real firearm as defined in this Act and the person who committed the crime shall be punished in accordance with this Act: Provided, That injuries caused on the occasion of the conduct of competitions, sports, games, or any recreation activities involving imitation firearms shall not be punishable under this Act.
Section 36. In Custodia Legis.– During the pendency of any case filed in violation of this Act, seized firearm, ammunition, or parts thereof, machinery, tools or instruments shall remain in the custody of the court. If the court decides that it has no adequate means to safely keep the same, the court shall issue an order to turn over to the PNP Crime Laboratory such firearm, ammunition, or parts thereof, machinery, tools or instruments in its custody during the pendency of the case and to produce the same to the court when so ordered. No bond shall be admitted for the release of the firearm, ammunition or parts thereof, machinery, tool or instrument. Any violation of this paragraph shall be punishable by prision mayor in its minimum period to prision mayor in its medium period.
 Section 37. Confiscation and Forfeiture. – The imposition of penalty for any violation of this Act shall carry with it the accessory penalty of confiscation and forfeiture of the firearm, ammunition, or parts thereof, machinery, tool or instrument in favor of the government which shall be disposed of in accordance with law.
Section 38. Liability for Planting Evidence. – The penalty of prision mayor in its maximum period shall be imposed upon any person who shall willfully and maliciously insert; place, and/or attach, directly or indirectly, through any overt or covert act, any firearm, or ammunition, or parts thereof in the person, house, effects, or in the immediate vicinity of an innocent individual for the purpose of implicating or incriminating the person, or imputing the commission of any violation of the provisions of this Act to said individual. If the person found guilty under this paragraph is a public officer or employee, such person shall suffer the penalty of reclusion perpetua
Increased Penalties
The law highlights the shift in policy direction vis-à-vis penalties imposed for violation of gun laws. The law has distinguished acquisition or possession from manufacture, importation, sale, or disposition, of firearms or ammunition or any major parts thereof, tools, machinery used or intended to be used in the manufacture of firearm or ammunition, or any major part thereof.
In the former the law has maintained the penalty of prision mayor, but at varying degrees depending on the classification thereof whether small arms, Class A-light, or Class-B light weapons. It also increases the penalty by a degree if the firearm is loaded with ammunition or magazine, fitted or mounted with sniper scopes, firearm muffler or silencer, with extra barrel, or capable of firing automatic bursts.
In the latter, the law has increased the penalty to “reclusion temporal to reclusion perpetua” for unlawful manufacture, importation, sale, or disposition of firearms or ammunition, or any major parts thereof or machinery or tool used or intended to be used in the manufacture of firearms of ammunition, or any major parts thereof.
Grounds for revocation and other miscellaneous provisions
Section 39. Grounds for Revocation, Cancellation or Suspension of License or Permit. – The Chief of the PNP or his/her authorized representative may revoke, cancel or suspend a license or permit on the following grounds:
(a) Commission of a crime or offense involving the firearm, ammunition, of major parts thereof;
(b) Conviction of a crime involving moral turpitude or any offense where the penalty carries an imprisonment of more than six (6) years;
(c) Loss of the firearm, ammunition, or any parts thereof through negligence;
(d) Carrying of the firearm, ammunition, or major parts thereof outside of residence or workplace without, the proper permit to carry the same;
(e) Carrying of the firearm, ammunition, or major parts thereof in prohibited places;
(f) Dismissal for cause from the service in case of government official and employee;
(g) Commission of any of the acts penalized under Republic Act No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002″;
(h) Submission of falsified documents or misrepresentation in the application to obtain a license or permit;
(i) Noncompliance of reportorial requirements; and
(j) By virtue of a court order.
Section 40. Failure to Notify Lost or Stolen Firearm or Light Weapon. – A fine of Ten thousand pesos (P10,000.00) shall be imposed upon any licensed firearm holder who fails to report to the FEO of the PNP that the subject firearm has been lost or stolen within a period of thirty (30) days from the date of discovery.
Likewise, a fine of Five thousand pesos (P5,000.00) shall be imposed upon any person holding a valid firearm license who changes residence or office address other than that indicated in the license card and fails within a period of thirty (30) days from said transfer to notify the FEO of the PNP of such change of address.
 Section 41. Illegal Transfer/Registration of Firearms. – It shall be unlawful to transfer possession of any firearm to any person who has not yet obtained or secured the necessary license or permit thereof.
The penalty of prision correccional shall be imposed upon any person who shall violate the provision of the preceding paragraph. In addition, he/she shall be disqualified to apply for a license to possess other firearms and all his/her existing firearms licenses whether for purposes of commerce or possession, shall be revoked. If government-issued firearms, ammunition or major parts of firearms or light weapons are unlawfully disposed, sold or transferred by any law enforcement agent or public officer to private individuals, the penalty of reclusion temporal shall be imposed.
Any public officer or employee or any person who shall facilitate the registration of a firearm through fraud, deceit, misrepresentation or submission of falsified documents shall suffer the penalty of prision correccional.
Note that this law does not repeal the prior laws (particulary PD 1866, and RA 8294) on firearms and ammunition in their entirety, so it helps to also read those laws and articles applying to them.
 

3 comments:

  1. Did you know what is the Elements of Illegal Possession of FireArms?

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  2. Hope you Answer it as soon as possible thanks !

    ReplyDelete
  3. sir i have this nagging question. I have a relative who was caught in possession of an unlicensed firearm. He is willing to change his plea to a lesser offense and undergo probation. Will he be allowed to plead guilty to offenses punished under RA 8294 or even to the older law, PD 1866? Your answer will be very much appreciated, sir.

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