Comments to Proposed House Bill No. 6658 Re: Amendments to P.D. 1866

COMMENTS TO PROPOSED BILL FOR AMMENDMENT OF PD 1866 AS AMENDED BY RA 8294. By Atty. Ernesto A. Tabujara III PROGUN director Chairman and Founder, United Airsoft Alliance (UAA) DEFINITIONS Firearm – “Any hand held or portable weapon that from which any shot, bullet, or missile, or other deadly projectile may be discharged by means of explosion or percussion or any instrument or implement which can be readily convertible or has been converted to be capable of doing the same.” Note: This definition does not apply to items such as toy guns, cap guns, bb guns, pellet guns, and Class C common fireworks. According to Section 921, U.S. Code, the following are included within the definition - any weapon which will or is designed to or may readily be converted to expel a projectile by the action of any explosive; - the frame or receiver of any weapon described above; - any firearm muffler or firearm silencer; - any destructive device, which includes: 1. any weapon which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, 2. any combination or parts either designed or intended for use in converting any device into any destructive device described in the two immediately preceding examples, and from which a destructive device may be readily assembled Light Weapons - There is no internationally agreed definition of small arms and light weapons. Small arms and light weapons are man-portable weapons made or modified to military specifications for use as lethal instruments of war. Small arms are broadly categorized as those weapons intended for use by individual members of armed or security forces. They include revolvers and self-loading pistols; rifles and carbines; sub-machine guns; assault rifles; and light machine guns. Light weapons are broadly categorized as those weapons intended for use by several members of armed or security forces serving as a crew. They include heavy machine guns; hand-held under-barrel and mounted grenade launchers; portable anti-aircraft guns; portable anti-tank guns; recoilless rifles; portable launchers of anti-tank missile and rocket systems; portable launchers of anti-aircraft missile systems; and mortars of calibers less than 100 mm. Comments : The traditional and universally accepted definition of firearms are those weapons that expel or projectiles or missiles through explosion or percussion. This is the UNIVERSAL DEFINITION from the laws of each and every country. The issue of airguns and airsoft guns, replicas and toy guns (“airguns”) should be separated from that of Firearms, since these are two different objects. The intention of the firearms law (PD 1866, as amended) deals with firearms or those weapons which are classified as deadly weapons or those which can kill or cause serious injury r grave bodily harm. Airguns are not traditionally regarded as firearms since precisely they expel their projectiles, albeit harmlessly, using spring or air at velocities which are harmless to humans. Airguns are already regulated under Section 8 of PD 1866, as amended, in relation with EO No. 712, from which the Rules and Regulations for the Manufacture, Sale, Possession or airguns dated 29 February 1992 In turn the foregoing Rule, EO 712, in relation with Section 8 of PD 1866, was likewise the basis for the PNP Order No. 12 regulating airsoft guns, dated December 7, 2007. There is thus already LEGAL BASIS under the law for the regulation of airguns, and there is no need to further amend PD 1866 to implement an already existing state of law. Ammunition - Projectiles, such as bullets and shot, together with their fuses and primers, that can be fired or otherwise propelled or discharged from firearms, including Nuclear, biological, radiological, chemical, or explosive material, such as rockets or grenades, that are used as weapons. Comments: 1. The term “ammunition” should exclude those items which are defined by PD 1866 as “explosives” since they are already mentioned and treated as a separate item and which already have corresponding penalties for manufacture, possession, and use thereof. (See Sec. 3, PD 1866, as amended) Penalties Comments: 1. The penalties excessive and too harsh and not commensurate to the crime sought to be punished. Note that illegal possession of firearms is malum prohibitum; intent is not an element. Hence, the possibility of abuse and planting evidence by the police and military is very much a problem. This is a reality that we have to admit and face head on. 2. Increasing the penalties disproportionately will actually encourage rather than deter the commission of crimes. If the penalty is increased to such extent that it becomes unattractive for criminals to surrender or voluntarily desist for the commission of the crime, when confronted by the police during arrest. The criminals, when faced with a disproportionate penalty, would rather resist or shoot it out rather than surrender. 3. Increasing the penalty will not deter the commission of the crime. This is the Universally and well-accepted principle among jurists, criminologists, and psychologists worldwide, who have studied the effect of penalties as a possible deterrent to crime. We have seen how the death penalty has failed to prevent crimes, consequently it was abolished by congress. In fact the worldwide trend in criminal law among all nations is to lower penalties and instead concentrate on societal or sociological means with which to prevent crime. Crime prevention begins with good and effective law enforcement. Regardless of the magnitude of the penalties or the number of laws we have, crime will always be prevalent, if we cannot effectively arrest criminals, try, prosecute, and convict them under our criminal justice system. Constructive Possession Principle Comments: 1. The principle of constructive possession may be potentially unconstitutional. Illegal possession of firearms under PD 1866 is defined as a malum prohibitum crime. Since it is a special law, intent to commit the crime is not an element, as distinguished from those crimes which are defined under the Revised Penal Code. The essential element of the crime is unlawful possession. Possession, whether constructive or actual is personal. Any other person who does not possess the firearm, even if present, is not liable. The principle of constructive possession applies only to situations like vehicles, for example, wherein the offender is within reach of the firearm or the firearm is within his immediate control. Under the proposed bill constructive possession is expanded to include persons who do not actually possess the firearm but are merely present during the commission thereof. This violates the rule on due process and presumption of innocence under the Constitution. Unlawful manufacture, dealing, acquisition, disposition or possession of machinery, tool, or instruments, used for the manufacturer or firearms light weapons, parts, and ammunition. Comments: 1. The proposed bill fails to take into consideration that many of the machinery, tools, or instruments used in the manufacture of firearms are likewise used for the lawful manufacture of other instruments, such as lathes, drills, and similar implements. It is suggested therefore that a proviso be added to the definition of the crime by adding the following, to make it clear that such instruments or machineries are truly being used for illegal firearms manufacturing: “Possession of any machinery, tool, or instrument used in the manufacture of firearms, light weapons, parts, accessories and ammunition, by any person whose business or employment does not lawfully deal with the manufacture of firearms or ammunition, provided that there are firearms assemblies, parts, ammunition or components, which are likewise present with such machinery, tool, or instruments.” Without Permit to Carry Comment: The prescribed penalty for carrying a licensed firearm outside of residence without permit to carry is excessive and unduly harsh. Legitimate gun owners with licensed firearms should not be penalized in such harsh manner precisely since they have taken the time to follow the rules on licensing and registration. Penalty should be maintained as it is in the present law which is Arresto Mayor. Expanded Definition of Firearms with expired licenses. Firearms with expired licenses should not be equated with “loose firearms”, which have no license or legitimate origin whatsoever. Rather, the penalty for expired licenses to include those which have not been renewed for a period of six months from the date of expiration thereof, should be LOWER than the penalty for loose firearms, for example Arresto mayor. This is to distinguish legitimate gun owners from criminals who own spurious and unlicensed firearms. Expired licensed firearms are held by lawful gun owners who went through the process of licensing and registration. They should not be penalized for their compliance with the law in registering and licensing their firearms, even if these licenses have expired. Illegal Transfer of Firearms Comment: The draft section does not appear to reflect the true intention of the drafters of provision. It should be revised to read as follows: “Any person who knowingly sells and transfers possession of a licensed firearm to another, without first having obtained the prior approval of the proper authorities for the sale or transfer, shall have his firearms license cancelled and shall be suspended from acquiring any further firearms license for a period of two years.” Non-Applicability of the Probation Law. Comment: This is a redundant and unnecessary provision. The Probation law is clear that it applies only to crimes wherein the penalty prescribed does not exceed six years imprisonment. Hence, if the penalty for any of the crimes specified in the draft bill exceeds six years imprisonment, then automatically, the convict or accused is not entitled to avail of the benefits of the Probation Law.