| SUBJECT: The Rule on ‘Illegal Possession of Firearms’ (RA 10591) and the ‘Negative Averment’ |
I. Introduction
This memorandum provides an exhaustive analysis of the relationship between the crime of illegal possession of firearms under Republic Act No. 10591, otherwise known as “The Comprehensive Firearms and Ammunition Regulation Act,” and the procedural concept of the negative averment in criminal law. The core issue is the allocation of the burden of proof when an exception or exemption within the statute is invoked by the accused. The discussion will center on whether the absence of a license or permit, a core element of the offense, constitutes a negative averment that the prosecution must prove beyond reasonable doubt, or whether it is a matter of defense that the accused must establish.
II. Statement of the Issue
Whether, in a prosecution for illegal possession of firearms under R.A. 10591, the lack of a license or permit is a negative averment that forms an essential element of the offense which the prosecution must allege and prove beyond reasonable doubt, or whether possession of a valid license or permit is an exempting circumstance that the accused must prove.
III. The Governing Law: R.A. 10591
The primary offense is defined under Section 28 of R.A. 10591. The pertinent portions state:
“Unlawful Acquisition, or Possession of Firearms and Ammunition. – The unlawful acquisition, possession of firearms and ammunition shall be penalized as follows:
(a) The penalty of prision mayor in its medium period shall be imposed upon any person who shall unlawfully acquire or possess a small arm…
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For purposes of this section, ‘unlawful acquisition, or possession of firearms’ shall include any of the following:
(1) possession of a firearm or ammunition by any person who has not been issued a valid license or permit to possess the same…”
The law creates a presumption of illegality for any possession of a firearm absent the requisite government-issued authority. Other relevant sections, such as Sections 7 and 10, detail the requirements and procedures for obtaining a license to own and possess firearms and a permit to carry firearms outside of residence.
IV. The Concept of the Negative Averment in Criminal Law
A negative averment is an allegation in an information that a necessary legal qualification, license, or authority is absent. The general rule in criminal procedure, derived from the constitutional presumption of innocence, is that the prosecution must prove every element of the crime, including negative averments, beyond reasonable doubt. However, a well-established exception exists when the fact alleged negatively is peculiarly within the knowledge of the accused. In such cases, while the prosecution must still allege the negative fact in the information, the burden of evidence may shift to the accused to produce evidence of the affirmative (e.g., the existence of a license). If the accused raises reasonable doubt, the prosecution retains the ultimate burden of proof to overcome it and establish guilt.
V. Jurisprudential Application to Firearms Cases
Philippine jurisprudence has consistently held that in prosecutions for illegal possession of firearms, the lack of a license is a negative averment that is an essential element of the offense.
The seminal case of People v. Tampon (G.R. No. L-45648, 28 September 1984) established the doctrine. The Supreme Court ruled: “In a prosecution for illegal possession of firearm, it is incumbent upon the prosecution to prove that the accused had no license to possess the same. The fact that the accused had no license is a negative averment which is an essential ingredient of the crime of illegal possession of firearm.”
This doctrine was reaffirmed under R.A. 10591 in People v. Mariñas (G.R. No. 230080, 7 August 2019). The Court explicitly stated: “In illegal possession of firearms, the prosecution has the burden of proving the corpus delicti: (a) the existence of the firearm; and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit for it. The second element involves a negative averment which the prosecution must prove.”
VI. The Prosecution’s Burden and the Accused’s Burden of Evidence
Following Tampon and Mariñas, the procedural mechanics are as follows:
VII. Comparative Analysis: Negative Averment vs. Affirmative Defense
The distinction lies in whether the fact is an element of the crime or an exempting circumstance.
| Aspect | Negative Averment (as applied in RA 10591) | Affirmative Defense / Exempting Circumstance |
|---|---|---|
| Nature | It is an essential element of the crime defined by statute. | It is an independent fact that, if proven, negates liability despite the elements being present. |
| Statutory Location | The lack of license is embedded in the very definition of the offense (Sec. 28, RA 10591). | Typically found in a separate provision listing justifying or exempting circumstances (e.g., Art. 11 & 12, RPC). |
| Burden of Proof | The prosecution must allege and prove it beyond reasonable doubt as part of its case-in-chief. | The accused must plead and prove it by clear and convincing evidence. |
| Effect on Information | Must be alleged expressly or impliedly in the information; otherwise, it is fatally defective. | Need not be alleged in the information; it is a matter of defense. |
| Example in RA 10591 | “Possession… by any person who has not been issued a valid license” (Sec. 28). | A duty-bound officer possessing a firearm during a coup d’état (Sec. 33, RA 10591) or a person acting in self-defense. |
VIII. Practical Implications for Case Preparation
For the prosecution, the initial step is to secure a certification from the FEO that the accused is not a licensed firearm holder for the subject firearm. This document is crucial to establishing the negative averment. For the defense, the strategy involves either: (a) challenging the prosecution’s proof of the negative averment (e.g., attacking the authenticity or scope of the FEO certification), or (b) affirmatively presenting the license or permit. Merely claiming the existence of a license without proof is insufficient.
IX. Related Considerations and Exceptions
Presumptions: R.A. 10591 contains statutory presumptions (e.g., possession of a firearm is prima facie evidence of ownership). These are disputable presumptions that do not eliminate the prosecution’s duty to prove the negative averment* of lack of license.
Jurisdiction: The offense is a continuing crime. The negative averment* must be proven for the time and place of the accused’s apprehension and possession.
Inseparability Principle: Under the Doctrine of Inseparability (prior to its suspension for crimes under R.A. 10591 by R.A. 11449), the illegal possession was absorbed by a more serious crime. The analysis of the negative averment* remains relevant for the standalone charge.
X. Conclusion
Under prevailing Philippine law and jurisprudence, the lack of a license or permit in a prosecution for illegal possession of firearms under R.A. 10591 is unequivocally treated as a negative averment. This means it is an essential element of the corpus delicti of the offense. Consequently, the prosecution bears the non-negotiable burden of proof to establish this fact beyond reasonable doubt. While the burden of evidence may shift to the accused to produce the license given its peculiar accessibility to him, this does not alter the prosecution’s ultimate obligation. Any failure by the prosecution to adequately allege and prove this negative averment results in the failure to prove the crime itself, warranting an acquittal.
