What is Piracy in Criminal Law?
We shall discuss what is piracy in criminal law. Piracy has a technical meaning when we talk about it as a felony under the Revised Penal Code1 of the Philippines and Presidential Decree [PD] No. 532.2. Therefore, it is a maritime piracy.3
Piracy in criminal law is robbery or forcible depredation on the high-seas, without lawful authority, done animo furandi,4 in the spirit and intention of universal hostility. 5
“Most of us know that Piracy is about the illegal acquisition of digital copy of copyrighted films, music, games etc.” –The thing that we know piracy now, generally. Yet in criminal law, Piracy is not corruption or stealing of digital materials.
In an article of Maritime Fairtrade,6 the Philippine’s piracy problem still continues even amid the pandemic and continue to ravage our peaceful seas. Despite the pandemic, bandits or should we say Pirates see it as an opportunity to attack and seize an unsuspecting crew on the high seas. It explicitly states that:
“According to data from the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (RECAAP), a government-to-government initiative among Asian states formed in 2006 to monitor and combat maritime crimes, more than 50 incidents and at least 11 attempts happened in Philippine waters and ports during the same time five-year period.”7
We can picture out what is piracy in a film called “Captain Philipps”, where he and his crew were hijacked and taken hostage by Somali Pirates. They have perpetrated the crime on high seas because they were fully aware that the ships were isolated, and it will take a long time for such crews to cry for help.
Piracy is considered to be the most heinous crimes committed in our high seas, and the same poses a serious threat to our maritime defenses. One of the four crimes against the laws of the nation is Piracy, in which our Penal Laws state:
Art. 122. Piracy in general and mutiny on the high seas or on Philippine waters. — The penalty of reclusion perpetua shall be inflicted upon any person who, on the high seas, shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers.8
According to the Revised Penal Code [RPC], Book II by Reyes, there are two ways of committing Piracy, to wit:
- By attacking or seizing a vessel on the high seas or in Philippine waters.9
- By seizing in the vessel while on the high seas or in Philippine waters the whole or part of its cargo, its equipment or personal belongings of its complement or passengers.10
The following elements must be present:
- The vessel should be on the high seas or on Philippine waters.
The following element is where the vessel is located. The vessel can either be on the high seas (in international waters) or on Philippine waters. Before the amendment of RA 7659, Piracy under this Article 122 can only be committed when the said vessel is on the high seas and not within Philippine waters. But because of this amendment, Piracy can now be committed when the said vessel is on Philippine waters.
- The offenders should not be members of the complement or passengers of the vessel.
General Rule: The offenders must not be members of the complement or passengers of the vessel. They must be strangers to the vessel.
Exception: PD No. 532. When the offenders are members or crew of the ship that seize the shipment or cargo of the said vessel in Philippine Waters.
In Article 122, RPC, it is a requisite that the said offenders are strangers to the vessel.
The offenders either:
1] Attacked or seized the vessel; or11
2] Seized in whole or in part the cargo, the equipment, or the personal belongings of the passengers or members of the complement.12
Piracy is akin to robbery. It is referred to as piracy because the object of the thing is either the vessel or the cargo or the equipment of the said vessel. There is also the use of force or intimidation, use of violence against persons, and intent to gain. Hence, it is similar to robbery.
What is the definition of a vessel?
Any watercraft which is used as a means of transportation on water. It includes ships of all kinds, steamboats, steamships, barges, canal boats and every structure adapted to navigation from place to place for the transportation of persons or property.13
What is Piracy under P.D. No. 532?
Under this law, Piracy is committed when the offender attacked or seized the vessel or a part of the shipment. The personal belongings of the passengers, irrespective of its value. The criminal act is executed by means of force and violence, whether the offender may be a part of the crew or a stranger to the vessel, is on the Philippine waters, and is ruled under PD 532.14 On the other hand, if the vessel is on the high seas, Art. 122 of the RPC shall apply.
Distinguish Piracy under the Revised Penal Code Art 122 and with P.D. No. 532
- The vessel where it is located.
Under the RPC, the vessel is in the Philippine waters or high seas. In PD No. 532, the vessel must be in the Philippine waters.
- Who perpetrated the crime or the offenders?
Under the RPC, the offender is any person who seizes the vessel or any person who seizes the cargo, equipment, or personal belongings, and who is not a crew member or complement. In PD No. 532, the offender is any person.
- When it comes to penalties.
Under the RPC, the penalty for a simple piracy is reclusion perpetua.
Under PD No. 532, the penalty is reclusion temporal, except when physical injuries or other crimes are committed, in this case, it is penalized by reclusion perpetua.
Similarities of Piracy under the Revised Penal Code Art 122 and with P.D. No. 532
- Piracy for both is committed by means of attacking or seizing the vessel, or takes away the whole part thereof or its cargo, equipment, or the personal belongings of its complements or passengers.
- The penalty for Qualified Piracy under the RPC and PD No. 532 is the same: Reclusion perpetua.
What type of crime is Piracy?
Piracy is a Crime against Law of Nation. Based in the nature of this crime, the people indicted with the crimes of Piracy in the High seas can be tried and punished under International Law or under the laws of the particular nation where the pirates had been captured. In cases where Piracy happened inside Philippine Waters, jurisdiction is within the purview of the Philippine Courts. Jurisdiction for Crimes against Piracy were discussed in the below cases:
- In People of the Philippine Islands vs. Lol-Lo and Saraw:
“ The jurisdiction of piracy unlike all other crimes has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state, “for those limits, though neutral to war, are not neutral to crimes.” (U.S. vs. Furlong , 5 Wheat., 184.)” 15
- In People of the Philippines vs. Roger P. Tulin:
“ As regards the contention that the trial court did not acquire jurisdiction over the person of accused-appellant Hiong since the crime was committed outside Philippine waters, suffice it to state that unquestionably, the attack on and seizure of “M/T Tabangao” (renamed “M/T Galilee” by the pirates) and its cargo were committed in Philippine waters, although the captive vessel was later brought by the pirates to Singapore where its cargo was off-loaded, transferred, and sold. And such transfer was done under accused-appellant Hiong’s direct supervision. Although Presidential Decree No. 532 requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters, the disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence, the same need not be committed in Philippine waters.”16
What is Mutiny under Article 122 of the Revised Penal Code?
Mutiny is mentioned in the last paragraph of Article 122. The felony of Mutiny also has the same penalty with that of Piracy. As defined in Bouvier’s Law Dictionary, it refers to the unlawful resistance to a superior officer, or the raising of commotions and disturbances on board a ship against the authority of its commander.17
Elements of Mutiny
The following elements must be present in order to determine the existence of Mutiny:
- The vessel is on the high seas or Philippine waters;
- Offenders are either members of its complement, or passengers of the vessel;
- Offenders either –
3.1. attack or seize the vessel; or
3.2. seize the whole or part of the cargo, its equipment, or personal belonging of the crew or passenger
Distinguish Piracy from Mutiny
Piracy and Mutiny though provided in the same article of the Revised Penal Code, the two concepts are distinct from each other. The following are the distinction between Piracy and Mutiny:
- With regard to the perpetrators/offenders; In Piracy, offenders are generally strangers to the vessels, hence these offenders are neither passengers nor crew members, with the exception of Piracy as defined under PD 532 wherein it can be committed by any persons including the vessel’s complement or the passengers of the vessel only if the offense was committed inside Philippine Waters. While for Mutiny, the offenders are members of the complement or the passenger of the vessel.
- With regard to the purpose; In Piracy, the act is done with animo furandi to steal or an intent to gain in the spirit of universal hostility. In Mutiny, the purpose is against the authority of the ship and the offenders only intend to ignore the authority of the ship’s officer or may be prompted by the desire to commit plunder.
Can a member of the complement or passenger commit a crime of robbery inside a vessel?
This is dependent as to where the vessel is currently located when the offense was committed. If the attack or the seizing of the vessel or its cargos happened in the high seas and was committed by the members of the vessel’s complement or passengers, the offense committed would then be theft or robbery which is cognizable in the Philippine courts should the crime be committed inside a Philippine Ship, pursuant to paragraph 1 Article 2 of the Revised Penal Code.
Can a member of the complement or passenger commit a crime of piracy inside the vessel?
In relation to the preceding paragraph, the answer, as well, depends on the location of the vessel when the offense was committed. The general rule, as one of the elements of Piracy, is that the offenders are strangers and must not be members of the complement or passenger of the vessel.
Yet, with the promulgation of PD No. 532, it provides that the offense of Piracy can be committed by any person, including the vessel’s complement or passengers. Nonetheless, the ultimate element, so that even a member of the complement or passenger can perpetrate the felony of piracy, should be that the vessel is within Philippine waters.
- Section 2.Definition of Terms. The following terms shall mean and be understood, as follows:
x x x x . . . .
- Piracy. Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided.18
Therefore, any complement or passenger who attacks or seizes the vessel or seizes the whole or part of the cargo on where they are in, as well as its equipment or personal belonging of the other crews or passenger, will be held liable for the crime of Piracy not under Article 122 of the Revised Penal Code but of PD 532, if the same transpired within Philippine Waters.
The Article 123 of the Revised Penal Code mentions the crime of Qualified Piracy. How does it differ from the Piracy mentioned in the Article 122 of the RPC and the P. D. No. 532?
Qualified Piracy is the commission of the crime of piracy under any of the following circumstances:
- Whenever they have seized a vessel by boarding or firing upon the same.
- Whenever the pirates have abandoned their victims without means of saving themselves.
- Whenever the crime is accompanied by murder, homicide, physical injuries or rape.
In Paragraph 3, it mentions the accompaniment of the crime of murder, homicide, physical injuries, or rape. Will the crimes specifically mentioned in the provision of the article be separated from the crime of Qualified Piracy? In the situation that multiple counts of the listed crimes were committed will it matter to the gravamen of the offense?
These questions were answered by the Supreme Court in the case of People of the Philippines vs. Siyoh, et al 19, where it ruled as follows:
“But the number of persons killed on the occasion of piracy is not material. P.D. No. 532 considers qualified piracy, i.e. rape, murder or homicide is committed as a result or on the occasion of piracy, as a special complex crime punishable by death regardless of the number of victims.”20
The crimes mentioned in the qualifying circumstances are not treated as separate crimes but are only qualifiers for the crime of qualified piracy. Qualified Piracy is a special complex crime which was punishable of Reclusion Temporal to Death regardless of the number of victims of murder, homicide, physical injuries, or rape.
Is there Qualified Piracy under P.D. No. 532?
Qualified Piracy applies to both the Piracy mentioned in the Article 122 and P.D. No. 532. Should the crime of piracy be committed with at least one of the above-mentioned circumstances it would be considered as Qualified Piracy.
However, the provision under P.D. No. 532 where it includes passenger and members of the crew as possible offenders of the crime piracy conflicts with the first provision of qualifying circumstances. Paragraph 1 states that, “Whenever they have seized a vessel by boarding or firing upon the same.” Considering that under P.D. No. 532 the offenders are already boarded or are insiders of the vessel being pirated this shall not merit to qualified piracy but is only a simple piracy under P.D. No. 532.
Abetting the Commission of Piracy
Under P.D. No. 532, “Any person who directly or indirectly abets the commission of piracy, shall be considered as an accomplice of the principal offenders and be punished in accordance with the Rules prescribed by the Revised Penal Code.”21
High Seas or Philippine Waters? Does the Venue of the Crime Matter?
Often mentioned in the above stated provisions is the word Philippine waters. What bodies of water are considered to be part Philippine waters? Defined in P.D. No. 532:
Philippine waters shall refer to all bodies of water, such as but not limited to, seas, gulfs, bays around, between and connecting each of the Islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension, and all other waters belonging to the Philippines by historic or legal title, including territorial sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction.22
Mentioned also is the term high seas, how can we differentiate it with the Philippine waters? High seas are those which are beyond the jurisdiction of any country.23 As elucidated in the Geneva Convention on the High Seas 1958, High seas are all parts of the sea that are not included in the territorial sea or in the internal waters of a state.
Applying the said definition, shall A commit the crime of qualified piracy in the Exclusive Economic Zone or (EEZ), it shall not be in relation to P.D. No. 532 but to the Article 122 of the RPC considering that EEZ is outside of the Philippine Waters.
However, if A, a passenger of the vessel looted and stole the cargo of the vessel he is boarded into while it is in the high seas, he is not criminally liable for the crime of piracy but for the crime of robbery since the Article 122 of the RPC clearly states that the offenders shall not be a member of its complement nor a passenger.
Jurisdiction Over Piracy Cases
Criminal Laws are territorial in nature hence the venue of the commission of the crime matters in determining which court shall have jurisdiction of the criminal case. However, Piracy cases are deviant to the territorial principle of criminal law.
Pirates are in law hostes humani generis which means enemy to mankind. This nature of piracy leads to its deviance to the territoriality principle of penal laws.
Piracy is a crime not against any particular state but against all mankind. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. The jurisdiction of piracy unlike all other crimes has no territorial limits.
As it is against all so may it be punished by all. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state, “for those limits, though neutral to war, are not neutral to crimes.”24
The crime of piracy is a crime against mankind and to deter said crime multiple provisions of law covers and penalizes the same and are mentioned in this article.
We have Article 122 of the Revised Penal Code, which provides for the crime of piracy in general, and Presidential Decree No. 532, which includes passengers and members of the vessel as possible offenders of the crime of piracy, and Article 123 of the Revised Penal Code, which provides qualifying circumstances for qualifies piracy.
As a summary to which law shall govern, we must look into the following:
- If all the elements of piracy are present and it happens either in the Philippine waters or in the High Seas, commenced by offenders not part or member of the vessel nor a passenger of the same, and there are no qualifying circumstances as indicated in the Article 123 of the RPC the law which shall apply is the Article 122 of the Revised Penal Code.
- If all the elements of piracy are present and it happens in the Philippine waters only and the offenders are part of the vessel or a passenger of the same, and there are no qualifying circumstances as above indicated in the Article 123 of the RPC the law which shall apply is the Presidential Decree No. 532.
- If all the elements of piracy are present and it happens either in the Philippine waters or in the High Seas, commenced by offenders which are not members of the vessel nor a passenger, and there is at least one of the qualifying circumstances as above indicated they are liable for Qualified Piracy under Article 123 of the RPC in relation to Article 122.
- If all the elements of piracy are present and it happens only in the Philippine waters, commenced by offenders which are members of the vessel or a passenger, and there is at least one of the qualifying circumstances as above indicated they are liable for Qualified Piracy under Article 123 of the RPC in relation to Presidential Decree No. 532.
- Revised Penal Code[↩]
- PD No. 532[↩]
- The Lethal Problem Of Philippine Maritime Piracy[↩]
- With an intention to steal[↩]
- G.R. No. 17958, February 27, 1922. People v. Lol-lo, et al., 43 Phil. 19[↩]
- Supra., The Lethal Problem Of Philippine Maritime Piracy[↩]
- Article 122, Revised Penal Code[↩]
- The Revised Penal Code by Luis B. Reyes. Pp 35-42[↩]
- Article 122, RPC[↩]
- Vessel Law and Legal Definition[↩]
- Section 2[d], PD No. 532[↩]
- Supra., G.R. No. 17958, February 27, 1922.[↩]
- G. R. No. 111709. August 30, 2001[↩]
- Bouvier’s Law Dictionary, Vol. 2, p. 2283[↩]
- Supra., Section 2[d], PD No. 532[↩]
- G. R. No. L-57292 February 18, 1986[↩]
- Section 4, PD No. 532[↩]
- Section 2[a], PD No. 532[↩]
- U. S. vs. Fowler, G.R. No. L-496 December 31, 1902[↩]
- Supra., People vs. Lol-Lo[↩]
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