As embodied in the Constitution, the prime duty of the government is to serve and protect the people.1 The government is also tasked to the maintenance of peace and order, the protection of life, liberty, and property, and the promotion of general welfare.2
In the same way, the government is tasked in keeping the nation safe from different attacks, may it be domestic or international, on the citizens and government. Uncontrollably, every nation experience threats. Crimes against national security is an issue that disturbs the entire country. Thus, the government enacted criminal statutes that protect itself and its citizen from offenders who disturb the peace of the country.
In talking about attacks against government, one may immediately think about treason. What is treason? Does a person who does an act which is deemed to be against the government be considered treason? Is treason a crime of disloyalty? Is there any legal definition of treason? When can a person be held liable for such? To give us an overview, in this article we shall discuss the crimes against national security focusing on treason, misprision of treason, and espionage.
What is Treason in the Philippines?
In the case of People vs. Adriano,4 it was discussed that the Philippine law on treason is of Anglo-American origin, and so [the Court] ha[s] to look for guidance from American sources on its meaning and scope.
In the Philippines, the crime of treason is provided under the Revised Penal Code.
Article 114 of the Revised Penal Code provides:
“Art. 114. Treason – Any Filipino citizen who levies war against the Philippines or adheres to her enemies, giving them aid or comfort within the Philippines or elsewhere, shall be punished by reclusion perpetua to death and shall pay a fine not to exceed Four million pesos (₱4,000,000).
“No person shall be convicted of treason unless on the testimony of two (2) witnesses at least to the same overt act or on confession of the accused in open court.
“Likewise, an alien, residing in the Philippines, who commits act of treason as defined in paragraph 1 of this article shall be punished by reclusion temporal to death and shall pay a fine not to exceed Four million pesos (₱4,000,000). [As amended by Republic Act 109515]”6
Penalty for Treason in the Philippines
In the past, Republic Act [RA] No. 7659 of 1993, has imposed fine not exceeding to 100,000.00 pesos for any Filipino citizen and an alien residing in the Philippines who commit treason. However, the specific provision has been recently amended last 2017 under Republic Act 10951, which imposes stiffer penalties by imposing fine not exceeding 4,000,000 pesos.
To reiterate, the punishment for a Filipino citizen is reclusion perpetua to death and a fine not to exceed Four million pesos (₱4,000,000).7 While for an alien residing in the Philippines, the punishment is reclusion temporal to death and a fine not to exceed Four million pesos (₱4,000,000).8
Meanwhile it must be noted that in the Philippines the 1987 Constitution amended the death penalty for all crimes. RA 7659 is its effects. Thirteen years later, the death penalty was abolished in 2006 and has remained until now, under RA 9346, entitled “An Act Prohibiting the Imposition of the Death Penalty”.
Thus, the maximum penalty for a Filipino citizen who committed treason will only be reclusion perpetua while for an alien residing in the Philippines, maximum penalty would be reclusion temporal.
Elements of Treason in the Philippines
In capsule form, the following are the element of treason in the Philippines, to wit:
1] That the offender owes allegiance to the Government of the Philippines9
2] That there is a war in which the Philippines is involved10
3] That the offender either –11
3.1] levies war against the government, or12
3.2] adheres to the enemies, giving them aid and comfort13
The first element of treason is that it can only be committed by an offender who owes allegiance to the government of the Philippines. In its generally accepted sense, the word “allegiance” means the obligation of fidelity and obedience which an individual owes to a government in exchange for the protection he or she receives.14
Allegiance can be permanent or temporary. A Filipino citizen owes permanent allegiance to the government of the Philippines, being a citizen thereof while an alien residing in the Philippines owes temporary allegiance in the Philippine government so long as he resides thereto in exchange for the protection he or she receives.
The second element presupposes that the treason can only be committed during a war in which the Philippines is involved. This element is simple and direct to the point, however, you might still be wondering whether or not treason can be committed during a time wherein there is no war. The answer is no, treason is a war crime, a war in which the Philippines is involved.
Lastly, the third element is that the offender either (a) levies war against the government, or (b) adheres to the enemies, giving them aid and comfort. These two actions are also the modes of committing treason which will be discussed in detail later on.
Can Treason be committed outside the Philippines?
Article 114 of the Revised Penal Code states that treason can be committed “within the Philippines or elsewhere”. However, take note that it can only be committed elsewhere by a Filipino citizen. Treason committed by an alien must be within the Philippines.
Moreover, an alien or foreigner can commit the crime of treason if he is residing the Philippines. The law says “x x x . . . alien, residing in the Philippines, who commits act of treason as defined in paragraph 1 of this article shall be punished by reclusion temporal to death and shall pay a fine not to exceed Four million pesos (₱4,000,000).”15
What are the modes of committing Treason?
The modes of committing treason are:
- By levying war against the Government;16
- By adhering to the enemies of the Philippines, giving them aid or comfort.17
To “levy” means to “to enlist” or “to carry on (war). Mere enlistment to go against the government does not amount to levying war. One person acting alone cannot be guilty of levying a war. In committing treason, levying a war equates to assembling a number of men for the purpose using force against the government. Note that levying war must be directed to the Government and not to a specific statute or officer.
In addition, to constitute treason, levying war against the government must also have the intention of helping an enemy country; if the war is instituted due to a civil uprising, then it is not considered a treason but rather a rebellion.
To adhere to the enemies of the Philippines by giving them aid and comfort must be in the form of some action, a physical and actual activity and not merely a mental calisthenics or strategy.
The aid and comfort must be given to the enemy by some kind of action – it must be a deed or physical activity, not merely a mental operation. As general rule, to be treasonous the extent of the aid and comfort given to the enemies must be to render assistance to them as enemies and not merely as individuals and in addition, be directly in furtherance of the enemies’ hostile designs.18
A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country’s policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions, which do aid and comfort the enemy—making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.19
What is considered Treason in the Philippines?
Adhering to the enemies, giving them aid and comfort are acts of treason. There is adherence to enemies when a citizen intellectually or emotionally favors the enemies and harbors sympathies or convictions disloyal to his country’s policy or interest.20
Adherence alone without aid and comfort does not constitute treason, but such adherence may be inferred from the acts committed by a person. Same goes with how aid or comfort alone, without adherence, is not treason.
Aid and comfort are overt acts which strengthen or tend to strengthen the enemy of the government in the conduct of war against the government or an act which weakens or tends to weaken the power of the government to resist or to attach the enemies of the government.
The aid and comfort must be given to the enemy by some kind of action. It must be a deed or physical activity, not merely a mental operation. It must be an act that has passed from the realm of thought into the realm of action. The expression includes such acts as furnishing the enemy with arms, troops, supplies, information, or means of transportation.21
While it is bound that occupants will have relations with the inhabitants, as a general rule, for an act to be considered as treason, the extent of aid and comfort must not just be a mere assistance as an individual but rather to render an assistance to enemies as direct furtherance of their hostile designs.
To make a simple distinction: To lend or give money to an enemy as a friend or out of charity to the beneficiary so that he may buy personal necessities is to assist him as individual and is not technically traitorous. On the other hand, to lend or give him money to enable him to buy arms or ammunition to use in waging war against the giver’s country enhance his strength and by the same count injures the interest of the government of the giver. That is treason.22.
Treason cannot be committed through negligence. The overt acts of aid and comfort must be intentional as distinguished from merely negligent or undesigned act.23
Can the crime of Treason be committed during peace time?
The second element of treason is that there is a war in which the Philippines is involved.
Treason cannot be committed in time of peace because it implies the absence of traitors or enemies. However, treasonable acts can actually be perpetrated in time of peace but there are no traitors since a war has not started.
In the case of Laurel v. Misa (77 Phi. 865),24 Justice Perfecto wrote in his separate opinion that “Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time. While there is peace, there are no traitors. Treason may be incubated when peace reigns. Treasonable acts may actually be perpetrated during peace, but there are no traitors until war has started.25
As treason is basically a war crime, it is punished by the state as a measure of self-defense and self-preservation. The law of treason is an emergency measure. It remains dormant until the emergency arises. But as soon as war starts, it is relentlessly put into effect.”26
Two-witnesses rule requirement in prosecuting Treason
Paragraph 2 of Art. 114 of the Revised Penal Code of the Philippines states that: “No person shall be convicted of treason unless on the testimony of two witnesses at least to the same overt act or on confession of the accused in open court.”27
The two-witnesses rule is a rule which entails the testimony of at least two witnesses to prove the overt act of giving aid or comfort. The two-witness rule is severely restrictive and requires that each of the witness must testify to the whole overt act; or if it is separable, there must be two witnesses to each part of the overt act 28.
The reason for requiring the two witnesses to testify to the same overt act is that of the special nature of the offense. It requires that the accused be afforded a special protection not required in other cases so as to prevent or negate miscarriage of justice.29
The extreme seriousness of the crime, for which death is one of the penalties provided by law, and the fact that the crime is committed on abnormal times, when large portions of the people are undergoing nervous hypertension, and when small differences may and in mortal enmity, which may wipe out all scruples in sacrificing the truth, the law requires that, at least, two witnesses must testify as to overt acts of treason, if the same should be accepted by the tribunals as legal basis to condemn a person as a traitor.30
Adherence need not be proved by the oaths of two witnesses. Criminal intent and knowledge may be gathered from the testimony of one witness, or from the nature of the act itself, or from circumstances surrounding the act.
On the other hand, an overt act, must be established by the deposition of two witnesses. Each of the witnesses must testify to the whole of the overt act; or if it is separable, there must be two witnesses to each part of the overt act.31.
In proving “adherence to enemy”, during the prosecution of Treason, does the two-witnesses rule apply?
In establishing the fact of “adherence to the enemy” by the prosecution, the two-witnesses rule does not apply. Adherence to enemy per se is not an overt act. Such is only a state of mind. The two-witnesses rule applies only in proving the overt acts of treason.
What is the effect of the enactment of Republic Act No. 7659 in the then felony of treason?
The 1987 Constitution provides that death penalty shall not be imposed pursuant to Art. 3, Sec. 19, par. 1. However, if there are compelling reasons, the death penalty may be imposed. RA 7659 provides crimes punishable by death.32
This act punishes such “heinous crimes for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society.”33
RA 7659 regarded treason as heinous crimes. The Act’s purpose in imposing death penalty is “to foster and ensure not only obedience to its authority, but also to adopt such measures as would effectively promote the maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare which are essential for the enjoyment by all the people of the blessings of democracy in a just and humane society.”34
However, it must be noted, lest it be forgotten, that under the current state of law and legal system in the Philippines, the Capital Punishment of Death is prohibited. RA 934635 prohibits such imposition.
Hence, the provisions in RA 7659 or the Revised Penal Code itself, imposing death penalty, are abrogated. Death penalty is downgraded to Reclusion Perpetua.
What is Misprision of Treason?
Art. 114 and 115 of the Revised Penal Code speaks about acts of treason and conspiracy and proposal to commit treason. One may ask: what if someone heard or learned that a person will commit treason and omission, but will do nothing and remain silent? Will there be any crime committed? Will a person be criminally liable upon being silent during these situations?
Art. 116 of the Revised Penal Code defines what crime is committed in concealing the knowledge of the conspiracy to commit treason. The Revised Penal Code sets punishment for this offense. This offense is known as misprision of treason.
Misprision of treason. – Every person owing allegiance to (the United States) the Government of the Philippine Islands, without being a foreigner, and having knowledge of any conspiracy against them, conceals or does not disclose and make known the same, as soon as possible to the governor or fiscal of the province, or the mayor or fiscal of the city in which he resides, as the case may be, shall be punished as an accessory to the crime of treason.36
Omission is the failure to perform a positive duty which one is bound to do under the law. However, to establish a person’s culpability under omission, it is indispensable that there must be a law requiring the performance of an act.
Without such law, there is no liability. Misprision of treason is a crime of omission. This is an exception to the rule that mere passive presence at the scene of the crime and mere silence does not make a person criminally liable.
The crime of misprision of treason is defined and penalized under Article 116 of the Revised Penal Code.
Article 116 of the RPC provides that “Every person owing allegiance to (the United States) the Government of the Philippine Islands, without being a foreigner, and having knowledge of any conspiracy against them, conceals or does not disclose and make known the same, as soon as possible to the governor or fiscal of the province, or the mayor or fiscal of the city in which he resides, as the case may be, shall be punished as an accessory to the crime of treason.”38
Simply put, a person who knows that a treason is being or is about to be committed but does not report it to a proper authority commits a misprision of treason.
It must be noted from its definition that the term “having knowledge of any conspiracy against…” presupposes that a treason is about to be committed. In other words, the treasonous activities are not yet actually done or consummated.
Can a priest be held liable for Misprision of Treason if he learns of a plan to commit treasonous activities during the confession of one of the planners?
Under circumstances, if a Filipino citizen, despite the knowledge of conspiracy to commit treason, has failed to disclose or conceal the same to the local authorities, he becomes liable for Misprision of Treason under Art.116 of the Revised Penal Code for failing to perform an act which is required by law.
However, if a person confessed to a Filipino priest that he and several others were in conspiracy against the Government to commit treasonous activities, the priest having known of the said conspiracy to commit treason is exempted from criminal liability under Article 12, par. 7 of the Revised Penal Code.
As the priest’s failure to report can be considered as due to insuperable cause. A priest cannot be compelled to reveal any information which he came to know by reason of confession as this involves the sanctity and inviolability of a confession.
Having said that, it is only inside the confession that a priest is exempted. Thus, if he knows a conspiracy to commit treason outside the confession, he is criminally liable.
What is the treatment for other crimes such as murders, homicide, physical injuries, or rape committed during treasonous activities?
Just as one cannot be held guilty of trespass to dwelling in a prosecution for robbery because trespass is inherent in robbery, a person is not liable for murder and other crimes as a separate crime if they are committed in furtherance of treason.
These crimes cannot be separated if the same complement, and are foreseeable consequences, making them intertwined, to further the objectives and goals of treason.
Conversely, if these crimes are have independent and private objectives on the part of the perpetrators, even though committed during the war, by those committing treason against their own State and Government, these offense will be deemed as separate crimes.
What has been decided
In the case of People vs. Prieto,39 the Supreme Court explained that treason can be complexed with the crime of murder, to quote:
“…in the nature of things, the giving of aid and comfort can only be accomplished by some kind of action. Its very nature partakes of a deed or physical activity as opposed to a mental operation. This deed or physical activity may be, and often is, in itself a criminal offense under another penal statute or provision. Even so, when the deed is charged as an element of treason it becomes identified with the latter crime and cannot be the subject of a separate punishment, or used in combination with treason to increase the penalty as article 48 of the Revised Penal Code provides.”40
What is Espionage under the Revised Penal Code?
Espionage, as a crime, according to Justice Luis Reyes, is “the offense of gathering, transmitting, or losing information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the Republic of the Philippines or to the advantage of any foreign nation.”41
The crime of espionage in the Philippines is governed by Article 117 of the RPC. Under Art. 117, espionage can be committed in two ways by a person who,
- Without authority therefore, enters a warship, fort, or naval or military establishment or reservation to obtain any information, plans, photographs, or other data of a confidential nature relative to the defense of the Philippine Archipelago; or42
- Being in possession, by reason of the public office he holds, of the articles, data, or information referred to in the preceding paragraph, discloses their contents to a representative of a foreign nation.43
It must be observed that the offender must have the intention or purpose to obtain information relative to the Philippines’ defense. Nevertheless, if the accused has no such intention, even if he enters a warship, fort or naval or military establishment, Art. 117, par. 1 does not apply. Hence, he is not liable for the crime of espionage. Under par. 1, the offender is any person.
In fine, the crime of espionage is not conditioned by the citizenship of the offender. Par. 2 of the same provision, however, states that to establish a person’s culpability under espionage, it is a sine qua non requirement that the offender must be a public officer who has in his possession the articles, data or information by reason of the public he holds and discloses their contents to a representative of a foreign nation. Furthermore, an offender being a public officer or employee, the penalty next higher in degree shall be imposed.
With it being a crime against national security, is espionage then committed in times of war or in times of peace? The answer is either. Espionage can be committed in times of war or in times of peace. Crimes against national security are generally committed in times of war except for espionage and misprision of treason which can be committed in both situations.
Jurisprudence on Espionage
Espionage was included in the discussion in the 1946 case of Go Tian Sek Santos v. Eriberto Misa.44 In this case, the Supreme Court ruled that espionage is a crime not conditioned by the citizenship of the offender.
Solicitor-General had admitted that Go Tian Sek Santos for active collaboration with the Japanese. Meanwhile, petitioner avers that he is a Chinese citizen. He claims that his detention is illegal and he must not be confined under Commonwealth Act. No. 682 as he did not owe allegiance either to the United States or to the Commonwealth of the Philippines.45
The Supreme Court has repeatedly ruled that petitioner’s foreign status does not exclude him ipso facto from the scope of the above provisions. As stated by the Solicitor-General, he might be prosecuted for espionage, (Commonwealth Act No. 616) a crime not conditioned by the citizenship of the offender and considered as an offense against national security.46
What is espionage under Commonwealth Act No. 616
Commonwealth Act No. 616 expanded and broadened the acts of espionage. Thus, under CA 616, the following are acts of espionage:
- Unlawfully obtaining or permitting to be obtained information affecting national defense.47
- Unlawful disclosing of information affecting national defense.48
- Disloyal acts or words in times of peace.49
- Disloyal acts or words in times of war.50
- Conspiracy to violate preceding sections.51
- Harboring or concealing violators of the law.52
There can be nothing more beautiful than a country, where inhabitants and citizens thereof, are living their lives in peace. Unluckily, every nation may experience threats. It is unavoidable that there are people who wants a better government. However, a good outcome cannot excuse any wrong committed to attain it.
National security must always be prioritized, for such also protects its citizens. As such, every country, including the Philippines, must be equipped to forestall any sovereign intrusion, whether actual war or otherwsise.
The crimes that have been discussed are crimes against the national security. As a general rule, they are mostly committed when one country is at war or on the edge of such atrocities. However, as an exception, misprision of treason and espionage can be committed in times of peace.
- Art. 2, Sec. 4 of the 1987 Constitution
- Art. 2, Sec. 5 of the 1987 Constitution
- LB Reyes (2021), The Revised Penal Code, Book Two, p. 3
- People vs. Adriano, G.R. No. L-477, June 30, 1947
- Section 3, RA 10951
- Art. 114, Act. No. 3815 or “The Revised Penal Code”
- Supra., RA 10591
- LB Reyes (2021), The Revised Penal Code, Book Two, p. 2
- Ibid, page 4
- Act No. 3815, Article 114, The Revised Penal Code, as amended by RA 7659 and RA 10951
- People vs. Perez, G.R. No. L-856, April 18, 1949
- Cramer vs. U.S., 65 Sup. Ct. 918, April 23, 1945
- Cramer vs. U.S., Supra.
- People vs. Perez, Supra.
- Cramer v. U.S., Supra.
- Laurel vs. Misa, G.R. No. L-409 January 30, 1947
- Art. 114, par. 2, Act. No. 3815 or “The Revised Penal Code”
- People vs. Escleto, G. R. No. L-1006. June 28, 1949, 84 Phil. 121
- LB Reyes (2017), The Revised Penal Code, Book Two, p. 15
- Separate Opinion, Justice Perfecto, El Pueblo de Filipinas vs. Pedro Marcaida, G.R. No. L-953, September 18, 1947
- Supra., People vs. Adriano, 78 Phil. 563-567
- RA 7659, An Act To Impose The Death Penalty On Certain Heinous Crimes, Amending For That Purpose The Revised Penal Laws, As Amended, Other Special Penal Laws, And For Other Purposes
- RA 9346, An Act Prohibiting The Imposition Of Death Penalty In The Philippines
- Article 116, Act No. 3815 or “The Revised Penal Code”
- Article 3, Act. No. 3815 or “The Revised Penal Code”
- Article 116, Ibid.
- G. R. No. L-399, January 29, 1948
- LB Reyes (2017), The Revised Penal Code, Book Two, p. 22
- Art. 117, Act. No. 3815 or “The Revised Penal Code”
- G.R. No. L-319 March 28, 1946
- Section 1, Commonwealth Act No. 616, An Act To Punish Espionage and Other Offenses Against National Security
- Id., Section 2
- Id., Section 3
- Id., Section 4
- Id., Section 5
- Id., Section 6