LAWS OF PREFERENTIAL APPLICATION - 107 PJP 19 (2019)
In Article 2 of Act No. 3815, otherwise known as the Revised Penal Code (RPC), the law uses the term “laws of preferential application.” It says that, except as provided in the treaties and laws of preferential application, the provisions of the RPC shall be enforced not only within the Philippine Archipelago, including its atmosphere, interior waters, and maritime zone but also outside of its jurisdiction, against those who:[1]
- Should commit an offense while on a Philippine ship or airship;
- Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands;
- Should be liable for acts connected with the introduction into these Islands of the obligations and securities mentioned in the preceding number;
- While being public officers or employees, should commit an offense in the exercise of their functions; or
- Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code.
The rationale behind this provision is to ensure that individuals who commit crimes that have a significant impact on the Philippines, or its citizens, are held accountable, regardless of where the crime is committed. This is particularly important in cases involving national security, counterfeiting, and crimes committed by government officials in the exercise of their functions.
Below are three examples of laws of preferential application.
First, a member of Congress shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. Neither shall such member be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.[2] The Constitution says that they cannot be “questioned nor be held liable in any other place.” Therefore, senators and representatives can be “questioned” or disciplined only by the concerned House through the fact-finding recommendation of its ethics committee.[3]
Second, any writ or process sued out or prosecuted by any person in any court
of the Republic of the Philippines, or by any judge or justice, whereby the
person of any ambassador or public minister of any foreign state, authorized
and received as such by the President, or any domestic or domestic servant of
any such ambassador or minister is arrested or imprisoned, or his goods or
chattels are distrained, seized, or attached, shall be deemed void, and every
person by whom the same is obtained or prosecuted, whether as party or as
attorney, and every officer concerned in executing it, shall, upon conviction,
be punished by imprisonment for not more than three years.[4]
Diplomatic immunity is a principle of international law that confers upon
diplomats and their families certain privileges and immunities from the
jurisdiction of the state hosting them. These privileges and immunities are
designed to protect diplomats, who have been received by the President and
have been given a letter of credence, in the performance of their official
duties and to ensure the effective functioning of diplomatic missions. It is
an established principle in public international law and private international
law and its purpose is to avoid a situation in which a diplomatic official
would receive harassment and intimidation from the host state due to its
hostilities against the sending state.
Third, warships on the high seas have complete immunity from the jurisdiction of any state other than the flag state.[5] Also, ships owned or operated by a state and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any state other than the flag state.[6]
“Warship” means a ship belonging to the armed forces of a state bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the state and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.[7] If any warship does not comply with the laws and regulations of the coastal state concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal state may require it to leave the territorial sea immediately.[8]
The warship rule is a well-established principle of international law that confers upon warships a degree of extraterritoriality. This means that a warship is under the exclusive authority of its flag state, even when it is docked in a foreign port.[9]
[1] Cited in RALB LAW, "Territoriality Principle - Criminal Law," https://ralblaw.com/territoriality-principle-criminal-law.
[2] CONSTITUTION, Article VI, Section 11.
[3] POBRE v. SANTIAGO, 613 Phil. 352 (A.C. No. 7399, August 25, 2009) [Per J. Velasco, Jr., Third Division].
[4] REPUBLIC ACT NO. 75, Section 4 (October 21, 1946).
[5] UNCLOS III, Article 95, found at https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf, Page 59.
[6] UNCLOS III, Article 96, ibid.
[7] UNCLOS III, Article 29.
[8] UNCLOS III, Article 30.
[9] HEINEGG (2015), "Warships," Oxford Public International Law, found at https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e443.