Monday, September 01, 2008

Illegal possession of firearms

The law on illegal possession for firearms comes to light in the wake of the brief arrest-and-release of Noreco II General Manager Ephraim Taclob when the vehicle he was was driving was flagged down by Philippine Army personnel.
The Army purportedly acting on reports that rebels were in the area held checkpoint and uncovered heavy firearms in the vehicle driven by Engr. Taclob.
According to the local Philippine National Police, charges of illegal possession of firearms are going to be filed.
Not very long ago, the law on illegal possession of firearms was very harsh.
This was a product of those Marcos decrees designed to fight the so-called enemies of the state.
For Marcos to ensure that those who ever try to mount an insurrection, or rebellion against the state received the full force of the law, he enacted Presidential Decree No. 1866.
Those found guilty under this decree were meted a penalty of up to forty years in prison.
That was the law then.

Robin Padilla episode

Then came Robin Padilla.
If you recall, Robin Padilla was then the poster boy of the Ramos administration, and was once even regarded as a “role model” for the youth.
But Robin had brushes with the law.
Once, he figured in a hit-and-run while driving his Pajero.
He was pursued by police, and eventually flagged down. He was found to have in his possession various firearms.
To cut a long story short, he was convicted of illegal possession of firearms under the harsh P.D. 1866.
If you want to read this colorful episode of Robin Padilla, I refer you to the Supreme Court decision in Robin Carino Padilla versus Court of Appeals, G.R. No. 121917 March 12,1997.
Robin was sentenced and spent jail in the national penitentiary in Muntinlupa.

Ramon Revilla rescue

Then enter Senator Ramon Revilla, a fellow actor like Robin, who perhaps took pity on the sad state of a young promising colleague.
Thinking that the law is just too harsh, Senator Ramon Revilla authored what is now Republic Act 8294, the current law against illegal possession of firearms. This law took effect July 6, 1997.
I always regard R.A. 8294 as the “Robin Padilla law” because I cannot help but think---rightly or wrongly---that this law was for Robin Padilla. Or at least he was the law’s principal beneficiary.
Because of this law, Robin Padilla is now a free man.
And I think Robin has redeemed himself (so far) , as he has since shown himself to be a “responsible member of society.”

The penalty

The penalty for illegal possession of firearms had been drastically reduced. It is bailable.
The penalty for simple possession of a .38 caliber, 9 millimeter, or similarly (low) powered gun is from four to six years, with a fine of P15,000.
For possessing a higher powered firearms like a .45 caliber, .357 magnum, .22 center-fire magnum, and firearms with automatic firing capability, the penalty under the new law ranges between six to eight years, with a fine of P30,000.

Supreme Court rules

According to the Supreme Court there are mainly two elements needed to convict one of illegal possession of firearms.
First, the prosecution needs to establish the existence of the subject firearm.
Second the prosecution should prove the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same.
To prove the second element, a certification by the PNP firearms and explosives division is needed.
But if the firearm involved is one that cannot be issued to civilians, like an M-16, this certification may be dispensed with.
Another rule laid down by the Supreme Court is that ownership is not an essential element of illegal possession of firearms and ammunition.
What the law requires is merely possession.
“Possession” includes, not only actual physical possession, but also constructive possession.
“Constructive possession” means the subjection of the thing to one's control and management.


Essentially, it is not that difficult to prove the elements of illegal possession of firearms.
If one is in possession of a firearms, and he does not have the license to possess, then there is a strong case against him ahead.
But the new law on illegal possession of firearms, R.A. 8294 strikingly provides the accused a wide latitude of “creative” ways to raise a defense.
That is what makes this law controversial, some say non-sensical.

The controversial proviso

Under the law on illegal possession of firearms, one caught unlawfully possessing firearms can be charged with the law, “PROVIDED NO OTHER CRIME WAS COMMITTED.”
I do not know the rationale of this last phrase in the law.
This is the “escape clause” of the law on illegal possession of firearms.
One can be charged with illegal possession of firearms. But if, at the time he was caught, another crime was committed, then he cannot be charged with illegal possession of firearms?
This provision challenges the creative minds of defense lawyers.


Let me give an example.
Suppose, a person is caught by a policeman possessing a .38 caliber gun.
While being arrested, the suspect gives another identity to conceal his true name.
The‘minor’ crime of concealment carries a lighter penalty.
Can the state lawfully charge the suspect of illegal possession of firearms?
Or can he be charged with concealment of name?
Remember, under the law on illegal possession of firearms, there is a proviso which states: “Provided no other crime was committed.”

Outrage in Cebu

I am reminded of that outrageous story I read that happened in Cebu not long ago.
A group of people suspected to be high profile, notorious kidnappers were caught with firearms.
At the time of the arrest they used faked military id's
The notorious gang were charged, not with illegal possession of firearms but usurpation of authoriyt
The latter carried a lighter penalty.
This sparked outrage among member of the legal community in Cebu, who called for an amendment of the law.


So the law on illegal possession of firearms in its present form sparks the imaginative, creative adrenalin of defense lawyers.
This is one of those laws that makes lawyering much more interesting.


Anonymous said...


Please view this video link and see for yourselves the culprit of the murder of Prem Bernadez:

Anonymous said...

what happened to Taclob's case? any updates? he can't go unpunished. the case is all clear, no doubt that was in flagranti delicto.

Jay Dejaresco said...

Believe it or not, the case was dismissed.