LOI - 1264 Q&A

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LOI - 1264 Q&A

Post by darklands on Sun Aug 03, 2008 9:24 pm

sirs,

here's some q & a about LOI-1264.
thanks to sir sonwar of F.A.S. for posting at F.A.S. web and the premission to repost.
btw, this the U.A.A. position.
thanks.


What is LOI 1264?

LOI 1264 is a Letter of Instruction, from then President Ferdinand Marcos in 1983, directing the then Ministry of Finance (now dept of finance), constabulary, (now pnp), and minsitry of defense (Now Department of Defense) to ban the sale, manufacture, importation, and display of replica guns. It was issued pursuant to the infamous Amendment no. 6 of the 1973 Constitution, which granted then President Marcos the power to issue decrees, executive orders, letters of instruction, etc., which shall form "part of the law of the land". During the martial law period (1972-1981), we had no congress or senate as we know it today, then president-dictator Marcos was the one who issued decrees, known as "presidential decrees", which had the force of law.


Is LOI 1264 a law?

No. A Letter of Instruction is simply a directive from the then-president Marcos to executive agencies to perform a certain act. It is similar to an Executive Order.

The case of Legaspi v. Minister of Finance, which quoted amendment no. 6 as giving the president the power to enact such decrees, executive orders, general instructions, or letters of instruction, which "shall form part of the law of the land", did not mean that such LOI's have the force of law that require a law (Republic Act) to repeal or amend them. The phrase "part of the law of the land" was meant in the general sense that LOI's shall form part of the entire legal system of the philippines. In the same manner as Supreme Court decisions, administrative regulations, and executive orders, form part of the law of the land, they are not laws which require acts of congress to repeal or amend. (refer to civil code).

Of course an LOI may be repealed by a law (act of congress) but in such case it would be as illogical as trying to kill a mouse with a machine gun. LOI's can be simply repealed by an executive act.


What are the chances for repeal of LOI 1264?

The chances of repeal of LOI 1264, right now, are almost zero. Whether LOI 1264 is considered as an Executive Issuance of a Law, one thing is clear: our current president GMA is not inclined to sign a repeal of LOI 1264. Moreover, neither our congress or senate seems to be insterested in filing, pursuing, and/or enacting any bill which would be the basis for any airsoft law.

The reason is plain and simple. Airsoft and/or guns are not a priority for our government. With the multitude of problems besetting our country today, our legislators and their backers in malacanang would rather deal with and legislate more prioritized issues and laws such as infrastructure, budget and appropriations, natural resources, and the like.


Will the continued existence of LOI 1264 endanger our legalization of airsoft?

Absolutely not. The power of the PNP to classify airguns are firearms or toys is vested by law under section 8, PD 1866, as amended, in relation to the Rules Implementing PD 1866, and Executive Order no. 712. Pursuant to such power, the PNP issued the Rules and Regulations Governing the manufacture, sale, and carrying of rifles/ pistols in 29 january 1992. The just released amendment dated 24 July 2006 is an exercise of such powers by the PNP.

In contrast, it is debatable that LOI 1264 is even a law. And as between a power vested by law and a simple LOI, which is an executive act, the power vested by law should prevail.


Are there any precedents, existing right now, which confirm that replica guns that are classified as toy airguns are not covered by LOI 1264?


Yes. For the past two decades or so, replica airguns such as crosman 357 revolver, 45 1911, walther ppk, as well as replica revolver starter guns, armscor retractable (black assault version), and carbine models, have been sold openly and legally in sporting goods store nationwide, over the counter. These guns can be seen being sold in malls through stores such as Toby's, Sports house, COD, Lumanog, etc. Notice that in the section of the store selling such guns, there is a certification posted that such guns are classified as airgun toys, and are therefore legal to sell.

To my mind, there has been no such incident yet of such stores being raided by the police or being questioned as being illegal. For the simple reason that since the items being sold are classified as "airguns", no government law enforcement officer or agency is willing to assail them. Bear in mind that these guns apparently directly violate LOI 1264, as being imported (in the case of the imported ones), sold, and manufactured (armscor) in the philippines. And yet, there has been no legal issue raised or case filed against such guns.


Are there any actual cases wherein the discretionary power of the PNP FED to issue licenses and permits has been tested legally in an actual case involving guns?


Yes, there are several. The most celebrated case was about five years ago when ryan jaworski, the son of senator robert jaworski, was accosted by the poilce in greenhills, while he was shooting rats in a nearby creek. at that time, the young guy was in his early twenties, an overstaying student at U.P. the young jaworski was using a bushmaster m4 carbine with red dot and silencer. He was caught and charged with alarm and scandal for shooting up the neighborhood, however, he was not charged with illegal possession of firearms. The simple reason was that ryan was able to produce a license for the m4, with a permit to carry issued in his name.

Two years later, our young jaworski was once again in trouble. This time he engaged in a gun battle using his same bushmaster m4, with the mandaluyong police and a few other rogue youths in their teens, behind saisaki restaurant madanluyong, EDSA. In spite of hosing the neighborhood down with about 80 rounds of 5.56mm, and getting wounded himself, the young boy was not charged with illegal possession of firearms. Same reason as above.

Of course, he was charged with other criminal offenses such as frustrated murder, etc.

The big question is: how could a 20 year old student, obtain a license and permit to carry for a bushmaster m4? The law explicitly prohibits hi-powered firearms from being licensed, possessed, and carried by civilians, much less by minors. No one has the answer, but since his gun had in fact the necessary papers issued by the PNP FED, the police could neither touch nor criminally charge the young jaworski. Neither could they confiscate his weapon.

Moral of the story: When the axe falls and you are confronted by the police regarding your gun, as long as you have the appropriate papers (whether registration or license), you are safe and cannot be charged for possession of the weapon. The bottom line is that both the police and/or the prosecutor (if the matter gets to court) will rely upon whether or not you have the proper papers to show that you legally possess the gun. If in the affirmative, you're legal they can't touch you.

Can we live with LOI 1264?

Of course. we have done it for the past 20 years, as our airsoft elders and "founders" are so fond of telling us.


Is it worth going for repeal of LOI 1264?

In my opinion, no. The people who are pushing for repeal of LOI 1264 have no idea what magnitude of effort is required for this task.

As stated above, the current president is not willing to sign a repeal of LOI 1264., whether by law of executive order. Moreover, there is no congressman or senator who is openly progun who would sponsor, file, and pursue an airsoft bill for us. On the contrary, senators Drilon and Magsaysay have filed bills to BAN replica guns. Mad

However there is an issue of repeal by implication. With the current PNP FED Rules which re-classify airsoft guns as airguns "whether or not they are similar in appearance to real firearms or not", may constitute an implied (indirect) repeal of LOI 1264 insofar as airsoft guns are concerned. Both are executive acts, one being latter issued.

Also, there are three cebu lawyers who filed a civil case this month for declaratory relief to declare LOI 1264 unconstitutional because it is confiscatory, and does not provide a sufficient standard for its implementation. We hail and support these brave souls and wish them luck in their case.

Where does this all leave us?

This leaves us with two distinct schools of thought.

On one hand, we have the optimists and pragmatists, who face reality and are willing to do something to legalize the sport through amendment of the PNP Rules on airguns by re-classifiying airsoft guns as airguns.

On the other hand we have the pessimists, theorists, and perenial cry babys who know that there is a problem, complain about it, but offer us nothing by way of any practical solution to our problem.

One side argues in favor of the airsoft community, the other side argues against us. You choose which side you're on.

The bottom line is that legalization of airsoft boils down to a state of mind. If you feel that registration of your aeg will add legitimacy to your holding of your weapon, then by all means do so. If on the other hand you feel that it will do you no good, then don't."
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