"x x x.
The original IRR[42] of P.D. 1866 was issued by then Lieutenant General of the Armed Forces of the Philippines (AFP) Fidel V. Ramos on 28 October 1983. The IRR provides that, except when specifically authorized by the Chief of Constabulary, lawful holders of firearms are prohibited from carrying them outside their residences, to wit:
SECTION 3. Authority of Private Individuals to Carry Firearms Outside of Residence. —
a. As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate of registration or M/R) are prohibited from carrying their firearms outside of residence.
b. However, the Chief of Constabulary may, in meritorious cases as determined by him and under such conditions as he may impose, authorize such person or persons to carry firearm outside of residence.
c. Except as otherwise provided in Secs. 4 and 5 hereof, the carrying of firearm outside of residence or official station in pursuance of an official mission or duty shall have the prior approval of the Chief of Constabulary.
By virtue of R.A. 6975,[43] the PNP absorbed the Philippine Constabulary. Consequently, the PNP Chief succeeded the Chief of the Constabulary and, therefore, assumed the latter’s licensing authority.[44]
On 31 January 2003, PNP Chief Hermogenes Ebdane issued Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of Residence (Guidelines). In these Guidelines, the PNP Chief revoked all PTCFOR previously issued, thereby prohibiting holders of licensed firearms from carrying these outside their residences, to wit:
4. Specific Instructions on the Ban on the Carrying of Firearms:
a. All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered with valid PTCFOR may re-apply for a new PTCFOR in accordance with the conditions hereinafter prescribed.
b. All holders of licensed or government firearms are hereby prohibited from carrying their firearms outside their residence except those covered with mission/letter orders and duty detail orders issued by competent authority pursuant to Section 5, IRR, PD 1866, provided, that the said exception shall pertain only to organic and regular employees.
Section 4 of the IRR lists the following persons as those authorized to carry their duty-issued firearms outside their residences, even without a PTCFOR, whenever they are on duty:
SECTION 4. Authority of Personnel of Certain Civilian Government Entities and Guards of Private Security Agencies, Company Guard Forces and Government Guard Forces to Carry Firearms. — The personnel of the following civilian agencies commanding guards of private security agencies, company guard forces and government guard forces are authorized to carry their duty issued firearms whenever they are on duty detail subject to the specific guidelines provided in Sec. 6 hereof:
a. Guards of the National Bureau of Prisons, Provincial and City Jails;
b. Members of the Bureau of Customs Police, Philippine Ports Authority Security Force, and Export Processing Zones Authority Police Force; and x
c. Guards of private security agencies, company guard forces, and government guard forces.
Section 5 of the guidelines, on the other hand, enumerates persons who have the authority to carry firearms outside their residences, viz:
5. The following persons may be authorized to carry firearms outside of residence.
a. All persons whose application for a new PTCFOR has been approved, provided, that the persons and security of those so authorized are under actual threat, or by the nature of their position, occupation and profession are under imminent danger.
b. All organic and regular employees with Mission/Letter Orders granted by their respective agencies so authorized pursuant to Section 5, IRR, PD 1866, provided, that such Mission/Letter Orders is valid only for the duration of the official mission which in no case shall be more than ten (10) days.
c. All guards covered with Duty Detail Orders granted by their respective security agencies so authorized pursuant to Section 4, IRR, PD 1866, provided, that such DDO shall in no case exceed 24-hour duration.
d. Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by the PNP for purposes of practice and competition, provided, that such firearms while in transit must not be loaded with ammunition and secured in an appropriate box or case detached from the person.
e. Authorized members of the Diplomatic Corps.
It is true therefore, that, as petitioner claims, a barangay captain is not one of those authorized to carry firearms outside their residences unless armed with the appropriate PTCFOR under the Guidelines.[45]
However, we find merit in respondents’ contention that the authority of Aguillon to carry his firearm outside his residence was not based on the IRR or the guidelines of P.D. 1866 but, rather, was rooted in the authority given to him by Local Government Code (LGC).
In People v. Monton,[46] the house of Mariano Monton—the Barrio Captain of Bacao, General Trias, Cavite—was raided, and an automatic carbine with one long magazine containing several rounds of ammunition was found hidden under a pillow covered with a mat. He was charged with the crime of illegal possession of firearm, but this Court acquitted him on the basis of Section 88(3) of Batas Pambansa Bilang 337(B.P. 337), the LGC of 1983, which reads:
In the performance of his peace and order functions, the punong barangay shall be entitled to possess and carry the necessary firearms within his territorial jurisdiction subject to existing rules and regulations on the possession and carrying of firearms.
Republic Act No. 7160, the LGC of 1991, repealed B.P. 337. It retained the foregoing provision as reflected in its Section 389 (b), viz:
CHAPTER 3 - THE PUNONG BARANGAY
SEC. 389. Chief Executive: Powers, Duties, and Functions.
x x x x x x x x x
(b) In the performance of his peace and order functions, the punong barangay shall be entitled to possess and carry the necessary firearm within his territorial jurisdiction, subject to appropriate rules and regulations.
Provincial Prosecutor Dusaban’s standpoint on this matter is correct. All the guidelines and rules cited in the instant Petition “refers to civilian agents, private security guards, company guard forces and government guard forces.” These rules and guidelines should not be applied to Aguillon, as he is neither an agent nor a guard. Asbarangay captain, he is the head of a local government unit; as such, his powers and responsibilities are properly outlined in the LGC. This law specifically gives him, by virtue of his position, the authority to carry the necessary firearm within his territorial jurisdiction. Petitioner does not deny that when he found Aguillon “openly carrying a rifle,” the latter was within his territorial jurisdiction as the captain of the barangay.
In the absence of a clear showing of arbitrariness, this Court will give credence to the finding and determination of probable cause by prosecutors in a preliminary investigation.[47]
This Court has consistently adopted a policy of non-interference in the exercise of the Ombudsman's investigatory powers.[48] It is incumbent upon petitioner to prove that such discretion was gravely abused in order to warrant this Court’s reversal of theOmbudsman’s findings.[49] This, petitioner has failed to do.
The Court hereby rules that respondent Deputy Ombudsman Casimiro did not commit grave abuse of discretion in finding that there was no probable cause to hold respondent Aguillon for trial.
The Dissent contends that probable cause was already established by facts of this case, which show that Aguillon was found carrying a licensed firearm outside his residence without a PTCFOR. Thus, Deputy Ombudsman Casimiro committed grave abuse of discretion in dismissing the criminal Complaint. However, even though Aguillon did not possess a PTCFOR, he had the “legal authority” to carry his firearm outside his residence, as required by P.D. 1866 as amended by R.A. 8294. This authority was granted to him by Section 389 (b) of the LGC of 1991, which specifically carved out an exception to P.D. 1866.
Following the suggestion of the Dissent, prosecutors have the authority to disregard existing exemptions, as long as the requirements of the general rule apply. This should not be the case. Although the Dissent correctly declared that the prosecutor cannot peremptorily apply a statutory exception without weighing it against the facts and evidence before him, we find that the facts of the case prove that there is no probable cause to charge Aguillon with the crime of illegal possession of firearm.
In interpreting Section 389 (b) of the LGC of 1991, the Dissent found that the factual circumstances of the present case show that the conditions set forth in the law have not been met. Thus, the exemption should not apply.
Contrary to the allegation of the dissent, there is no question as to the fact that Aguillon was within his territorial jurisdiction when he was found in possession of his rifle.
The authority of punong barangays to possess the necessary firearm within their territorial jurisdiction is necessary to enforce their duty to maintain peace and order within the barangays. Owing to the similar functions, that is, to keep peace and order, this Court deems that, like police officers, punong barangays have a duty as a peace officer that must be discharged 24 hours a day. As a peace officer, a barangay captain may be called by his constituents, at any time, to assist in maintaining the peace and security of his barangay.[50] As long as Aguillon is within his barangay, he cannot be separated from his duty as a punong barangay—to maintain peace and order.
As to the last phrase in Section 389 (b) of the LGC of 1991, stating that the exception it carved out is subject to “appropriate rules and regulations,” suffice it to say that although P.D. 1866 was not repealed, it was modified by the LGC by specifically adding to the exceptions found in the former. Even the IRR of P.D. 1866 was modified by Section 389 (b) of the LGC as the latter provision already existed when Congress enacted the LGC. Thus, Section 389 (b) of the LGC of 1991 added to the list found in Section 3 of the IRR of P.D. 1866, which enumerated the persons given the authority to carry firearms outside of residence without an issued permit. The phrase “subject to appropriate rules and regulations” found in the LGC refers to those found in the IRR of the LGC itself or a later IRR of P.D. 1866 and not those that it has already amended.
Indeed, petitioner’s mere allegation does not establish the fact that Aguillon was drunk at the time of his arrest. This Court, however, is alarmed at the idea that government officials, who are not only particularly charged with the responsibility to maintain peace and order within their barangays but are also given the authority to carry any form of firearm necessary to perform their duty, could be the very same person who would put their barangays in danger by carelessly carrying high-powered firearms especially when they are not in full control of their senses.
While this Court does not condone the acts of Aguillon, it cannot order the prosecutor to file a case against him since there is no law that penalizes a local chief executive for imbibing liquor while carrying his firearm. Neither is there any law that restricts the kind of firearms that punong barangays may carry in the performance of their peace and order functions. Unfortunately, it also appears that the term “peace and order function” has not been adequately defined by law or appropriate regulations.
x x x."
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