Blog Lecture No. 72: Illegal detention

Now for another timely topic…

This will be very short and straightforward…

What are the kinds of illegal detention?

It’s basically kidnapping, serious illegal detention and slight illegal detention.

What does our penal laws provide?

The Revised Penal Code states:

Art. 267. Kidnapping and serious illegal detention. — Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.

Art. 268. Slight illegal detention. — The penalty of reclusion temporal shall be imposed upon any private individual who shall commit the crimes described in the next preceding article without the attendance of any of circumstances enumerated therein.

The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime.

If the offender shall voluntarily release the person so kidnapped or detained within three days from the commencement of the detention, without having attained the purpose intended, and before the institution of criminal proceedings against him, the penalty shall be prision mayor in its minimum and medium periods and a fine not exceeding seven hundred pesos.

What is kidnapping?

It’s a compound of two words: kid and napping (from an obsolete term “napper” meaning a thief). To seize and detain or carry away by unlawful force or fraud and often with a demand for ransom.

It used to refer only to stealing a child but now covers a person of any age.

What is illegal detention?

This means to jail, cage or any manner of deprivation of liberty. As long as a person is forbidden to leave to place of detention or go anywhere he/she pleases, there is illegal detention.

There is illegal detention if schoolchildren are not allowed to leave a tourist bus.

What makes an illegal detention serious?

It will be serious (and hence, serious penalties) when:

1. If the kidnapping or detention lasted more than five days.

2. If it was committed simulating public authority. (for instance, the kidnapper impersonated a police officer, etc.)

3. If any serious physical injuries was inflicted upon the person kidnapped or detained; or if threats to kill him were made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

5. If the kidnapper was for purposes of ransom (known here as a “KFR” or a kidnap-for-ransom); and the law does not seem to require require ransom being actually demanded, but see slight illegal detention below.

What is slight illegal detention?

It is such when:

1. If it does not qualify as serious illegal detention above.

2. If the offender merely furnished the place of detention (unless there is a conspiracy, of course)

3. If the kidnapper offender voluntarily released the person so kidnapped or detained within three days, without having attained the purpose intended, and before the institution of criminal proceedings against him.

So what is the crime committed by that bus hostage-taker?

Serious illegal detention, because he hostaged minors.

COMELEC, WTF?

I’m particularly disturbed by this news item that stated the COMELEC was prohibiting people from wearing t-shirts and hats of a candidate unless accompanied by the candidate himself.

I checked the Omnibus Election Code and Section 85 indeed states it was unlawful

“To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as pens, lighters, fans of whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats, bandanas, matches, cigarettes and the like, except that campaign supporters accompanying a candidate shall be allowed to wear hats and/or shirts or T-shirts advertising a candidate;”

That darn thing should be declared unconstitutional, just as that COMELEC resolution banning stickers was struck down by the Supreme Court in Blo Umpar Adiong vs. COMELEC.

The COMELEC does not have the right to tell me what not to wear. And my endorsement of a candidate and my personal expression of my choice of candidate goes to the heart of freedom of expression. As stated in that case,

“In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.”

Banning my wearing of a candidate’s tshirt without the candidate, therefore, becomes, censorship.