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:
- 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.
- 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.
