As matter of law, preservation, and obligation, the State has the duty to secure its constituents in their homes relative to their persons, properties, and effects. However, the State also recognizes the right of the people to legally defend themselves, when the necessity arises to repel any unlawful aggression, with their legitimate and lawful possession and use of firearms.
Nonetheless, their possession of the same shall be subject to the rules regulating the “ownership, possession, carrying, manufacture, dealing in and importation of firearms, ammunition, or parts thereof” provided by the State.
The rules and punishable acts as to the illegal possession of firearms and ammunition are provided under Republic Act [RA] No. 10591,1 otherwise known as “Comprehensive Firearms and Ammunition Regulation Act.”
Section 3 (l) defines firearm as referring to:
“any handheld or portable weapon, whether a small arm or light weapon, that expels or is designed to expel a bullet, shot, slug, missile or any projectile, which is discharged by means of expansive force of gases from burning gunpowder or other form of combustion or any similar instrument or implement. For purposes of this Act, the barrel, frame or receiver is considered a firearm.”2
While ammunition is the “complete unfixed unit consisting of a bullet, gunpowder, cartridge case and primer or loaded shell for use in any firearm,” under Section 3 (b) thereof.3
And, Loose firearm is defined as:
“an unregistered firearm, an obliterated or altered firearm, firearm which has been lost or stolen, illegally manufactured firearms, registered firearms in the possession of an individual other than the licensee and those with revoked licenses in accordance with the rules and regulations,”4
What is an illegal firearm?
Illegal firearms are those that are not lawfully acquired by any means prescribed by the RA 10591, regardless whether the firearm itself is legal. The fact remains that it was acquired in an illegal manner. These means that:
- if the firearm itself is not registered in accordance with the Act
- the serial number of the firearms were removed, tampered, or altered
- the means of obtaining them were illegal or if it’s stolen
What is an unlawful possession of ammunition?
It is deemed an unlawful possession of ammunition when the person possessing the same is not a qualified citizens or juridical entities to possess a firearm or they possess more than fifty (50) rounds of the maximum ammunition allowed by the Act; and, if he’s a dealer or importer he’s not authorized by law to do such.5
In cases wherein the person is in the manufacturing business, they are mandated by law to operate under valid License to Manufacture. This shall mean that they are, otherwise, prohibited from importing those ammunitions. Thus:
“Section 13. Issuance of License to Manufacture or Deal In Firearms and Ammunition. – Any person desiring to manufacture or deal in firearms, parts of firearms or ammunition thereof, or instruments and implements used or intended to be used in the manufacture of firearms, parts of firearms or ammunition, shall make an application to:6
“(a) The Secretary of the Department of the Interior and Local Government (DILG) in the case of an application for a license to manufacture; and7
“(b) The Chief of the PNP in the case of a license to deal in firearms and firearms parts, ammunition and gun repair.7
“x x x x . . . .”
What are the elements of the crime of illegal possession of firearms and ammunition?
To successfully prosecute for the crime of illegal possession of firearms and ammunition, the essential elements are the instances that:
(1) the accused does not have the corresponding license for the subject firearm and
(2) the very existence of such subject firearm.
Is ownership of the firearm material in the prosecution for illegal possession thereof?
No, ownership is immaterial. In a jurisprudence decided by the Court, it emphasizes “that ownership is not an essential element of illegal possession of firearms and ammunition.” Thus, once the prosecution’s evidence undoubtedly “points to possession without the requisite authority or license and coupled with the intent to possess, conviction must follow.
What is the concept of possession in relation to this special penal law?
The law merely requires “possession” and this does not mean that one has to be in “actual physical possession” of the firearm or ammunitions, as the case may be. It is enough that there’s a “constructive possession” or that he has control and management over the subject weapon.
What is the difference between criminal intent and intent to possess?
Intent to possess or Animus Possidendi is a state of mind that shall depend on the attendant circumstances. Generally, it is the subjective mind of a person to appropriate to himself the use of a thing.
On the other hand, there are cases wherein the intent to possess does not equate to a criminal intent. Criminal intent is directly punishable while the intent to possess is not per se penalized.
Anent RA 10591, the intent to possess a firearm is not a criminal offense, as long as it went through the legal process of obtaining the license to own and possess the same. It is the intent of acquiring them illegally that is being punished and prosecuted.
In one case,8 the Supreme Court ruled that:
“In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused.9
“Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm.9
“This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent.9
Is proof of being an unlicensed firearm an essential element of the crime?
Undoubtedly, it is an essential element. The possession of the unlicensed firearm is the very act that is being punished by the RA 10591.
Under this law, so long as the qualified citizens and/or juridical persons have applied for license to own and possess and to have license to manufacture, as the case may be, and they are duly permitted and properly issued the same, they are not violating any provisions of the Act. Their possession and manufacturing are not illegal.
There is a need to prove that firearms do not have any license issued by proper authority. Otherwise, law abiding citizens may be prosecuted unjustly.
What is the corpus delicti in illegal possession of firearm?
In the case of Peralta Y Zareno vs People,10 the Court held that:
“the corpus delicti in the crime of illegal possession of firearms is the accused’s lack of license or permit to possess or carry the firearm, as possession itself is not prohibited by law. To establish the corpus delicti, the prosecution has the burden of proving that: (a) the firearm exists; and (b) the accused who owned or possessed it does not have the corresponding license or permit to possess or carry the same.”11
When the firearm cannot be physically produced in court because the same was lost, how can the prosecution prove its existence?
In cases where the unlicensed firearm was lost or cannot be physically produced in Court, it is sufficient that the prosecution may produce testimonial evidence of witnesses who saw the firearm, the fact that it was unlicensed and the affirmative identity of the accused who had the subject firearm and his lack of authority to possess one.
“Jurisprudence dictates that the existence of the firearm can be established by mere testimony, the fact that appellant was not a licensed firearm holder must still be established. The prosecution failed to present written or testimonial evidence to prove that appellant did not have a license to carry or own a firearm, hence, the use of unlicensed firearm as an aggravating circumstance cannot be appreciated.”12
Is the non-presentation of the firearm fatal to the prosecution’s case?
It is not. The non-presentation of the firearm is not fatal to the prosecution’s case. There is only the need to establish the fact that the unlicensed firearm exist through witnesses. The subject of the latter’s testimony will be the identification of the person, having in his control a certain firearm, who does not have any valid and legitimate license to possess the same.
What is the consequence if homicide or murder is committed using unlicensed firearm?
The use of an unlicensed firearm in the commission of the crime of homicide or murder shall be deemed as an aggravating circumstance. The legislative intent of the lawmakers is to treat the crimes as a single offense or felony.
Simply put, the penalty imposable for the crime of illegal possession of firearms, subject to certain limitations, shall not be applied absolutely since the offense is merely a special aggravating circumstance in such case.
If an unlicensed firearm is utilized in the commission of any crime, what would be the nature of the criminal liability of the offender?
The following rules shall apply in the event that the unlicensed firearm is used in the commission of a crime, whether a felony under the Revised Penal Code or another Special Penal Law for that matter.
“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:13
“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:14
“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.”14
What is the consequence if unlicensed firearms are used in furtherance of, incident to, or in connection with the crime of rebellion, insurrection, sedition, or attempted coup d’etat?
If the violation of the 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.15
If the crime is committed by the person without using the loose firearm, the violation of the Act shall be considered as a distinct and separate offense.16
What is the presumption of illegal manufacture of firearms and ammunition?
The possession of any machinery, tool or instrument, used directly in the manufacture of firearms or ammunition, by any person whose business or employment does not lawfully deal with the manufacture of firearms or ammunition, shall be prima facie evidence that such article is intended to be used in the unlawful/illegal manufacture of firearms or ammunition.17
What is the liability of Juridical Persons, explain?
Crime is personal. Hence, it is the owner, president, manager, director, or other responsible officers of the corporation or juridical persons who should be penalized in case of any violation of RA 10591 is committed by a aforesaid artificial persons. Hence:
“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 30, RA 10591)
Is the crime of illegal possession of firearm a bailable offense?
Without prejudice to the provisions of Section 28 [b] and [d], certain situations contemplated in Section 28 [e], Section 32, and Section 33 of RA 10591, the crime of illegal possession of firearm is a bailable offense.
Section 13, Article III of the 1987 Philippine Constitution, guarantees the right to bail:
“all persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.”18
This is pronounced in the case of People vs Escobar,19 the Supreme Court unequivocally stated that the right to bail is cognate to the fundamental right to be presumed innocent.
Final Thoughts
The Fundamental law of the land or the Constitution, being that of the Supreme law and where all laws must bow down, has been consistent on keeping and maintaining the rights of every accused to be presumed innocent, until proven guilty,
Such must be taken into consideration by the law-making authorities in crafting the law in relation to the civil rights and liberties of an individual and the people in general.
The Philippine National Police [PNP] chief had expressed his concerns on the gun control on account that, despite their active efforts on such campaign, people still take it lightly because they are granted bail as a matter of right by mere possession of illegal firearms, subject to certain exceptions mentioned above.
Nevertheless, this cannot be authorized under the law because the Constitution is clear on the right of the people to post bail. No law can go against the Constitution because it is also the will of the people.
It bears stressing that RA 10591 aims to curb the use, possession, carry, importation and manufacture of firearms and ammunition without the proper license and authority, issued and given by the proper government authorities in favor of certain individuals, to posses, import, and manufacture the same.
- RA 10591[↩]
- Section 3[m], RA 10591, Definition of Terms[↩]
- Section 3[b], Id.[↩]
- Section 3 [v], Id.[↩]
- Section 12, RA 10591[↩]
- Section 13, RA 10591[↩]
- Id.[↩][↩]
- Fajardo vs. People, G. R. No. 190889[↩]
- Ibid.[↩][↩][↩]
- G.R. No. 221991, August 30, 2017[↩]
- Ibid.[↩]
- People vs De Leon vs. Homo, G.R. No. 179943, June 26, 2009[↩]
- Section 29 [par. 1], RA 10591[↩]
- Ibid.[↩][↩]
- Section 29 [par. 2], RA 10591[↩]
- Section 29 [par. 3], RA 10591[↩]
- Section 32, [par. 2], RA 10591[↩]
- Section 13, Article III of the 1987 Philippine Constitution[↩]
- G. R. No. 214300, July 26, 2017[↩]